Defendant was indicted for the alleged 6 September 1974 felonious distribution of marijuana to State Bureau of Investigation Agent V. R. Eastman.
According to State's evidence, Agent Eastman went to defendant's Connection Lounge ". . . with the purpose of meetng [meeting] Mr. Parks and making a purchase of marijuana." At trial, Eastman further recalled that he ". . . went with a confidential source, I do not know the name, to the lounge. They were a male and female. It was through this source that I met Mr. Parks. On August the 30th after a brief conversation of introduction to Mr. Parks, we discussed the price of a pound of marijuana. . . . [H]e agreed to sell a pound of marijuana but not to myself. He agreed to sell it to a confidential source. . . . After I transferred the money to the confidential source, a substance was given to me by the confidential source. It was a vegetable type substance which was in a dry form and ground up. . . . I [then] had a further conversation with him in regard to the buy of further marijuana. I asked Mr. Parks what the price would be per pound for five pounds of marijuana. I asked him this as I was standing by Mr. Parks and the confidential informer. Mr. Parks said he would sell me five pounds for $175.00 per pound. I advised him that the price was a little steep to be buying five pounds, meaning the price was too high."
"Mr. Parks stated that the quality of the marijuana was of good quality, and he could not reduce the price. . . . [A]s the two confidential informers and myself were leaving the front of the Connection [Lounge], . . . I then asked Mr. Parks or advised Mr. Parks that I would return the next Friday to purchase five pounds, and he agreed and said, O.K."
On Friday, 6 September 1974, Eastman returned by himself to the defendant's lounge and testified that:
Eastman immediately took the suspected contraband to Special Agent Ross waiting at a nearby motel and the purchased material was properly channeled and tagged throughout police custody. According to the State Crime Laboratory Chemist, the substance allegedly purchased from the defendant on 6 September 1974 contained tetrahydrocannabinol, the active ingredient normally found in marijuana.
Defendant maintained that neither on 30 August nor 6 September 1974 did he ever arrange with Eastman for the sale of marijuana. Defendant testified that he stayed home on 6 September 1974 with his son, helping the child prepare his football gear for an upcoming game. The son and business partner both corroborated defendant's alibi.
From a plea of not guilty, the jury returned a verdict of guilty. Sentenced to a term of imprisonment, defendant appealed.
MORRIS, Judge.
Defendant, citing as error the failure of the trial court to require disclosure of the identity of the confidential informers involved in the purported 30 August 1974 meeting and drug transaction, maintains that disclosure was necessary for the effective presentation of his alibi defense and his related contention of misidentification.
The United States Supreme Court, though recognizing the government's privilege of informant nondisclosure, noted the counterbalancing principle that disclosure is warranted where informant identity is ". . . relevant and helpful to the defense of an accused, or is essential for a fair determination of a cause. . . ." Roviaro v. United States, 353 U.S. 53, 60-61, 1 L.Ed.2d 639, 77 S.Ct. 623 (1957); also see McLawhorn v. State of North Carolina, 484 F.2d 1, 5 (4th Cir. 1973); State v. Cameron, 283 N.C. 191, 193, 195 S.E.2d 481 (1973). The Supreme Court, rather than amplify on the details of this basic problem, broadly opined ". . . 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 informer's testimony, and other relevant factors." Roviaro, supra, at 62; McLawhorn, supra, at 4.
Our Supreme Court, interpreting the Roviaro decision, has concluded that "Roviaro makes two things clear: (1) There is a distinct need for an informer's privilege but the general rule of nondisclosure is not absolute, and (2) disclosure is required where the informer directly participates in the alleged crime so as to make him a material witness on the issue of guilt or innocence." State v. Ketchie, 286 N.C. 387, 390, 211 S.E.2d 207 (1975). This Court, consistent with our Supreme Court's analysis, will compel disclosure ". . . if it appears that he [i.e. the informant] is a participant as opposed to a `mere tipster.'" State v. Lisk, 21 N.C. App. 474, 476, 204 S.E.2d 868 (1974), cert. denied 285 N.C. 666 (1974). Also see McLawhorn, supra at pp. 5-6. Whether the informant is a participant or a "mere tipster" turns, at least partially, on the ". . . qualification of the informant to testify directly concerning the very transaction constituting the crime." (Emphasis supplied.) McLawhorn, supra, at p. 5. If the informant can testify as to the details surrounding the actual crime, then the defendant should be given the opportunity to test his credibility as a witness.
In this case, the informants purportedly accompanied Agent Eastman to the defendant's Connection Lounge on 30 August 1974 and allegedly made the "buy" for Eastman. However, defendant was not charged with the felonious distribution of drugs on 30 August, but rather, stood on trial for the illegal and felonious sale of five pounds of marijuana on 6 September 1974 to Agent Eastman. Defendant dealt only with Eastman with respect to the 6 September "deal" and the informants never participated in the negotiation or actual culmination of the purported unlawful transaction. Without question, the informants provided Eastman 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.
We are familiar with the California Supreme Court's decisions in People v. Durazo, 52 Cal.2d 354, 340 P.2d 594 (1959) and People v. Williams, 51 Cal.2d 355, 333 P.2d 19 (1958), but we consider their reasoning faulty and illogical and expressly reject their position. In Durazo and Williams the California Supreme Court held that when a subsequent transaction, even though accomplished without the assistance of the informant ". . . was consummated in reliance upon the prior one . . ." then disclosure was necessary. Williams, supra, at 360. In Durazo, Justice Shenk, forcefully dissenting, argued that disclosure was unwarranted because "there was no informant participation." Durazo, supra, at 357. We believe Justice Shenk's opinion more accurately reflects the proper application of the law. In North Carolina, participation is the essential factor and when the ". . . unknown person was not present at the time of the actual sale . . ." there is no necessity for revealing the confidential source's name. State v. Cameron, supra, at 194.
Here, the officer was sure and certain of his identification. It was not based on an observation lasting just a few minute she was in the presence of defendant for almost an hour. Most of that time the two were alone and engaged in face to face conversation. Felony narcotics violations appear to be increasing at a rather alarming rate. Because of the nature of the crime, the use of informers has to play a major role in the apprehension and conviction of narcotics violators. Further extension of the rule with respect to disclosure of the name of the informer could well result in the elimination of the use of informers and correspondingly, ineffective law enforcement in the area of narcotics violations. To adopt the majority rule in Durazo and Williams would result in requiring disclosure of the informer's name in almost every case where the defendant claims he is "not the man." This we are unwilling to do, especially, where, as here, there was positive, direct, face to face testimony of the arresting officer that defendant was "the man," and the informer had nothing to do with the transaction for which defendant was arrested.
No error.
Judges HEDRICK and ARNOLD concur.