Appeal by defendant from Rousseau, Judge. Judgments entered 27 February 1981, in Superior Court, Guilford County. Heard in the Court of Appeals 6 January 1982.
Martin (Robert M.), Judge. Chief Judge Morris and Judge Hedrick concur.
Prior to his trial, defendant filed a motion requesting that the State be required to furnish the identity of an informant or, in the alternative, that the cases against him be dismissed. The person defendant wanted identified in full was the man called "Pete." The record shows that, on the day of the trial, his full name was divulged. Defendant's alternative motion to dismiss was denied by the trial court.
The defendant now assigns as error the trial court's denial of his motion to disclose the full identity of "Pete" and his motion to dismiss. Citing Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957) and our recent case, State v. Hodges, 51 N.C. App. 229, 275 S.E.2d 533 (1981), the defendant contends that the court's denial of his motions deprived him of his constitutional rights to present a defense, to confront his accusers, and to be afforded fundamental fairness and due process of law.
The State has the privilege, in appropriate situations, to withhold from disclosure the identity of persons who furnish to law enforcement officers information concerning violations of laws which the officers must enforce. Scher v. United States, 305 U.S. 251, 59 S. Ct. 174, 83 L. Ed. 151 (1938). The purpose of this privilege is to advance and protect the public interest in effective law enforcement. Roviaro v. United States, supra. The privilege, however, has certain limitations, one of which arises from the fundamental requirements of fairness to the accused. Id. "Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Id. at 60-61, 77 S. Ct. at 628, 1 L. Ed. 2d at 645.
With these principles guiding our analysis of the factual situation in the case sub judice, we have determined that defendant's constitutional rights were not violated by the trial court's denial of his motions for disclosure and dismissal. It is important to note that there was nothing in the record to indicate that "Pete" was an informer or that he participated in the drug transaction for which defendant was tried. The State in no way relied on "Pete's" activities to gain an indictment against, or a conviction of, the defendant. When we contrast this with the factual setting in Roviaro, we find that that case's limitation on the State's privilege does not apply here. In Roviaro, the informer, "John Doe," was the person actually purchasing the drugs from the defendant. Defendant's convictions were obtained through testimony of alleged witnesses who observed the transactions without defendant's knowledge. As the Supreme Court noted, as far as Roviaro knew, he and "John Doe" were alone and unobserved during the crucial occurrence for which he was indicted. By contrast, in the case before us, Officer Farrish was the one who purchased the drugs from defendant, and she was the prosecuting witness against him. The State's case did not require any evidence concerning "Pete."
Moreover, we find that the Hodges case which this Court recently decided is distinguishable. In Hodges, unlike this case, the person whose name was undisclosed was allegedly a participating informant. Furthermore, once the defendant discovered the name of the informant (the day before trial) he moved for a continuance, but the motion was denied. This Court found that
denial error. In the present case, defendant made no motion for a continuance. Once he received the full name of the person whose identity he sought, he was, as the record shows, adamant about a dismissal.
The Court: Well, what is your motion now, Mr. Carroll?
Mr. Carroll: I made my motion in the alternative, either disclosure or dismissal of the cases.
The Court: Either disclosure or ...