State v. Covington

206 S.E.2d 361 (1974) 22 N.C. App. 250

STATE of North Carolina
v.
Jimmy Dexter COVINGTON.

No. 7414SC349.

Court of Appeals of North Carolina.

July 3, 1974.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Robert G. Webb, Raleigh, for the State.

Everett, Everett & Creech by James B. Craven, III, Durham, for defendant.

BROCK, Chief Judge.

Defendant contends the trial court committed error in refusing to order disclosure of the identity of the confidential informant, who was relied upon by the police in procuring the search warrant for defendant's apartment. Defendant argues the informant's identity was an indispensable element in preparing his defense and that his constitutional right of confrontation with his accuser was abridged by this nondisclosure.

"A defendant is not necessarily entitled to elicit the name of an informer from the State's witnesses. [Citation omitted]. The Government's privilege against disclosure of an informant's identity is based on the public policy of ``the furtherance and protection of the public interest in effective law enforcement.' [Citation omitted]. However, the privilege must give way ``[w]here the disclosure of the informer's identity, or of the contents of his communication, is relevant and helpful to the defense of the accused, or is essential to a fair determination of a cause . . . .' (Citation omitted)." State v. Moore, 275 N.C. 141, 166 S.E.2d 53.

Defendant has failed to present reasons for disclosure of the confidential informant's identity other than the right to confront his accuser. This right has been balanced against, and found subservient to, the public interest in protecting the flow of information regarding criminal activities in the community. Absent a showing of necessity for divulgence of the informant's identity, the trial court may properly refuse such requested disclosure. This assignment of error is overruled.

Defendant contends the trial court committed error in sustaining the validity of the search warrant and admitting the evidence seized pursuant thereto.

The affidavit to obtain the search warrant was based upon information furnished by an informant to Officer F. R. Wiggins of the Durham Police Department. The affidavit described the premises, the defendant, and the heroin contained within the premises. The informant had seen heroin in defendant's apartment and in defendant's possession on 13 August 1973. The informant had used heroin in the past and could recognize it on sight. The informant had furnished information in the past resulting in arrests and convictions on drug offenses.

This information furnished by the informant describes with reasonable certainty the person and premises to be searched, and contraband for which a search is to be made. The affidavit goes further in showing instances of past reliability upon the informant. Inasmuch as the affidavit to procure the search warrant and the search warrant itself are not defective, the evidence seized pursuant to the search warrant was properly admitted into evidence. This assignment of error is overruled.

Defendant contends the trial court committed error in allowing a police officer to testify as an expert witness concerning the use of narcotics paraphernalia and the cutting of heroin.

The testimony of the witness cited in defendant's exceptions is a description of the use of such narcotics paraphernalia in general in the drug trade or traffic in Durham, based upon the witness' personal knowledge and experience in working with the Vice Squad for a period of years. The trial court cautioned the jury during the witness' testimony that the jury was not to infer that the particular instruments found in defendant's apartment were used for the preparation of heroin for injection.

The ruling of the trial court in admitting the testimony of Officer Ray amounts to a finding by the court that the witness is qualified to testify concerning the use of narcotics paraphernalia and the cutting of heroin in the Durham area. This is knowledge peculiar to the witness and which would serve to acquaint the jury with the use of the paraphernalia, and would aid the jury in evaluating the evidence presented by the State. This assignment of error is overruled.

Defendant contends the trial court committed error in admitting in evidence a hypodermic needle and syringe alleged by defendant to be owned and used by Tommy Noell, but found in defendant's apartment during the search.

The needle and syringe were part of the paraphernalia discovered by officers in the search of the apartment. Admissibility of evidence is governed by its relevance to the issue. The weight to be given the evidence is determined by the finder of facts. The needle and syringe were admissible as relevant evidence which, along with other narcotics paraphernalia, tended to show the intent of defendant to possess heroin with intent to distribute and intent to manufacture. This assignment of error is overruled.

Defendant, in his final argument, contends the District Attorney made inflammatory and prejudicial remarks which prevented defendant from receiving a fair trial.

A review of the record reveals that none of the questions contended by defendant to be prejudicial were addressd to the offenses with which defendant is presently charged. Although we may admit that some of the questions and the fashion in which they were asked were not in the best manner of detached cross-examination, each such question was objected to, and the trial court promptly sustained each of these objections. However, all of these questions dealt with collateral matters and were not prejudicial to defendant's cause. Absent a showing of harmful or prejudicial error, this assignment of error is overruled.

In our opinion, defendant received a fair trial, free from prejudicial error.

No error.

CAMPBELL and BRITT, JJ., concur.