Caswell County No. 09CRS050885
The opinion of the court was delivered by: Stroud, Judge.
Appeal by defendant from a judgment entered on or about 28 April 2010 by Judge W. Osmond Smith, III in Superior Court, Caswell County. Heard in the Court of Appeals 24 March 2011.
Robert Mack, Jr. ("defendant") appeals from a conviction for possession of cocaine with intent to sell or deliver, arguing that the trial court erred by denying his motion to disclose the identity of the State's confidential informant. Because defendant failed to show that the circumstances of his case mandate disclosure of the confidential informant's identity, we find no error in defendant's trial.
On 15 December 2009, defendant was indicted for possession of cocaine with intent to manufacture, sell, and deliver, and for selling cocaine, in violation of N.C. Gen. Stat. § 90-95(a)(1). Defendant was tried on these charges at the 26 April 2010 Criminal Session of Superior Court, Caswell County.
The State's evidence tended to show that on 26 August 2009, undercover officer Deputy Kim Starr ("Deputy Starr") with the Alamance County Sheriff's Department, while working with the Caswell County Sheriff's Department and a confidential informant ("CI"), conducted an undercover purchase of illegal drugs at defendant's house at 14048 N.C. Hwy 119 N., Semora, North Carolina. On the day in question, the CI introduced Deputy Starr to defendant, and defendant asked the CI whether Deputy Starr was "straight." The CI affirmed that Deputy Starr was "straight" and then walked a few feet away to talk with another person in the room while Deputy Starr and defendant carried on their conversation. They "haggl[ed]" over the price of the drugs, and Deputy Starr purchased $25.00 worth of crack cocaine from defendant. At a post-buy location following the undercover purchase, Deputy Starr was shown a picture of defendant, and identified defendant as the person from whom she had purchased drugs. At trial, Deputy Starr again identified defendant as the man who sold her the cocaine on the day in question. Defendant presented no evidence at trial.
On 28 April 2010, the jury found defendant guilty of possession of cocaine with intent to sell or deliver. The trial court sentenced defendant to a term of eight to ten months imprisonment for this conviction. The trial court declared a mistrial on the count of selling cocaine because the jury could not reach a unanimous verdict. Defendant gave oral notice of appeal in open court. Defendant's only argument on appeal is that "the trial court commit[ed] prejudicial error and violated [his] rights under the United States Constitution and State law when it denied [his] motion for the State to reveal the identity of the State's confidential informant."
Although not addressed by either party, the record before us presents issues as to whether defendant properly preserved his arguments for appellate review. As noted above, defendant raises a constitutional argument on appeal. However, "[c]onstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal." State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473, (citation omitted), cert. denied, 537 U.S. 896, 154 L.Ed 2d 165 (2005). A thorough search of the trial transcript reveals that defendant did not raise any constitutional issues at trial; thus, defendant did not preserve any constitutional issue for appellate review.
As to defendant's argument that the trial court violated his rights under State law, defendant properly preserved his appellate rights as to his motion to disclose the identity of the State's CI by raising it before the trial court and obtaining a ruling on his motion. See N.C.R. App. P. 10(b)(1). In addressing the substance of a claim that the trial court erred in denying his motion to disclose the CI's identity, we have previously stated that
"In Roviaro v. United States, 353 U.S. 53, 1 L.Ed. 2d 639, (1957), the United States Supreme Court held it was error not to order the Government to reveal the name of an informant when it was alleged that the informant actually took part in the drug transaction for which the defendant was being tried. The Supreme Court recognized the State has the right to withhold the identity of persons who furnish information to law enforcement officers, but said this privilege is limited by the fundamental requirements of fairness." State v. Leazer, 337 N.C. 454, 459, 446 S.E.2d 54, 57 (1994). Roviaro held that "no fixed rule with respect to disclosure is justifiable. . . . 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, 353 U.S. at 62, 1 L.Ed. 2d at 646.
"The privilege of nondisclosure, however, ordinarily applies where the informant is neither a participant in the offense, nor helps arrange its commission, but is a mere tipster who only supplies a lead to law enforcement officers." State v. Grainger, 60 N.C. App. 188, 190, 298 S.E.2d 203, 204 (1982) (citations omitted). Moreover, "[b]efore the courts should even begin the balancing of competing interests which Roviaro envisions, a defendant who requests that the identity of a confidential informant be revealed must make a sufficient showing that the particular circumstances of his case mandate such disclosure." State v. Watson, 303 N.C. 533, 537, 279 S.E.2d 580, 582 (1981). . . . State v. Stokley, 184 N.C. App. 336, 341-42, 646 S.E.2d 640, 644 (2007), disc. review denied, 362 N.C. 243, 660 S.E.2d 542 (2008). This Court has further stated that [t]wo factors weighing in favor of disclosure are (1) the informer was an actual participant in the crime compared to a mere informant, e.g., Roviaro v. United States, supra; State v. Ketchie, 286 N.C. 387, 211 S.E. 2d 207 (1975), and (2) the state's evidence and defendant's evidence contradict on material facts that the informant could clarify, McLawhorn v. State of North Carolina, 484 F. 2d 1 (4th Cir. 1973); ...