State v. Johnson

344 S.E.2d 318 (1986)

STATE of North Carolina
v.
Donald Edward JOHNSON.

No. 8512SC1170.

Court of Appeals of North Carolina.

June 17, 1986.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Sylvia Thibaut, Raleigh, for the State.

Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender David W. Dorey, Raleigh, for defendant.

JOHNSON, Judge.

The only issue that we must decide is whether the trial court committed reversible error in denying defendant's motion to compel the State to disclose the identity of the confidential informant. In support of his motion defendant relies upon Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957). In Roviaro, petitioner was charged with violating the Narcotics Drug Import and Export Act by selling heroin to a confidential informant known only as "John Doe." Petitioner was also charged with having knowingly transported heroin to be unlawfully imported. In response to petitioner's motion before and during the trial, the government claimed that John Doe was a confidential informant and his identity was privileged. The United States District Court upheld the privilege asserted by the Government. In Roviaro, with six Justices concurring and one Justice dissenting, the Court's synopsis of the fact pattern of the case was stated as follows:

This is a case where the Government's informer was the sole participant, other than the accused in the transaction charged. The informer was the only witness in a position to amplify or contradict the testimony of government witnesses. Moreover, a government witness testified that Doe denied knowing petitioner or ever having seen him before. Roviaro, at 64-65, 77 S. Ct. at 630, 1 L.Ed.2d at 647. The Court decided that a balancing test, as follows, should be applied in deciding whether disclosure should be granted.

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informant's testimony, and other relevant factors.

Id. at 62, 77 S. Ct. at 628, 1 L.Ed.2d at 646. In State v. Gilchrest, 71 N.C.App. 180, 321 S.E.2d 445 (1984), disc. rev. denied, 313 N.C. 332, 327 S.E.2d 894 (1985), this Court, without mention of Roviaro, supra, held the following:

The prosecution is privileged to withhold the identity of an informant unless the informant was a participant in the crime or unless the informant's identity is essential to a fair trial or material to defendant's defense. A defendant must make a sufficient showing that the particular circumstances of his case mandate disclosure before the identity of a confidential informant, must be revealed. When the defendant fails to make a sufficient showing of need to justify disclosure of the informant's identity he acquires no greater rights to compel disclosure of details about the informant than he initially had. In the present case, the defendant has failed to establish that any additional information about the informant was relevant to his defense or essential to a fair determination of his case. Because the informant was not a participant in the offense and the informant's reliability or credibility was not at issue, we hold the trial court properly sustained objections to questions about the informant.

Gilchrest, 71 N.C.App. at 182-83, 321 S.E.2d at 447-48 (citations omitted). In Gilchrest, defendant did not assert a need to know the confidential informant's identity so that defendant could have a fair trial. The defendant in Gilchrest merely sought to attack the reliability and credibility of the confidential informant. In the case sub judice, defendant, in support of his motion, stated the following:

VIII That there is no independent evidence of the events leading up to Defendant's arrest other than the testimony of Agent Johnson.

IX That meaningful disclosure of the alleged C.S.I.'s identity is material and crucial to Defendant's preparation of his defense; it is only through such disclosure that defendant can have access to the sole witness who may both directly corroborate his defense and impeach the witnesses against him.

Defendant contends that the confidential informant in the case sub judice was not a tipster, but was an actual participant in the commission of the offense for which defendant was charged. We agree. In State v. Parks, 28 N.C.App. 20, 220 S.E.2d 382 (1975), disc. rev. denied, 289 N.C. 301, 222 S.E.2d 701 (1976), this Court relying on State v. Ketchie, 286 N.C. 387, 211 S.E.2d 207 (1975) and McLawhorn v. State of North Carolina, 484 F.2d 1 (4th Cir.1973), stated, "If the informant can testify as to the details surrounding the actual crime, then the defendant should be given the opportunity to establish his credibility as a witness." Parks, 28 N.C.App. at 25, 220 S.E.2d at 386 (emphasis in original). In the case sub judice, according to Agent Johnson, the State's confidential informant would be able to testify with respect to every aspect of testimony he gave as the State's primary witness. In Parks, the drug deal for which defendant was convicted was separate and apart from the drug deal that the State's confidential informant gave the undercover agent an entree for. In sustaining the defendant's conviction the Court in Parks, supra, stated "without question, the informants provided Eastman [State Bureau of Investigation Agent] with the necessary entree to defendant's purported drug business, but once the course of dealing was established on 30 August 1974 and defendant felt confident that he was dealing with a safe buyer, the relationship became one uniquely personal between defendant and Eastman." Id. at 26, 220 S.E.2d at 386. The evidence presented in the case sub judice, tends to show that the confidential informant played an integral part and would have firsthand knowledge of the criminal offenses defendant was charged with. The State's confidential informant's presence was required during every phase of Agent Johnson's undercover investigation. There is no evidence which would support an assertion that defendant felt confident he was dealing with a safe buyer or that the relationship between Agent Johnson and defendant was uniquely personal. According to evidence presented by the State, the confidential informant participated in this drug sale and accepted meprobromate from defendant when the drug sale was consummated. Moreover, defendant rightfully contends that the confidential informant's identity is necessary to his defense since Agent Johnson waivered in his identification of defendant during a pre-trial photographic lineup, but convincingly identified defendant at trial. The State's confidential informant could, as defendant contends, testify that defendant is not the person Agent Johnson was introduced to as Snag. Prior to defendant's arrest there was no evidence of defendant's commission of a criminal offense, other than Agent Johnson's allegations. The circumstances of this case boil down to a swearing match between defendant and Agent Johnson. We understand that it was within the jury's province to decide the issue based on the evidence before it; however, under the circumstances of this particular case, we deem that defendant has established that the disclosure of the identity of the State's confidential informant is essential to a fair determination of his case. The record herein does not reveal any assertion by the State that the disclosure of the identity of the confidential informant would jeopardize any pending investigation or the flow of information as was asserted in Roviaro, supra. When we balance defendant's right to a fair trial against the free flow of information, we find that the scales tip in defendant's favor.

New trial.

ARNOLD and WHICHARD, JJ., concur.