{
  "id": 8546726,
  "name": "STATE OF NORTH CAROLINA v. MASON FREEMAN PARKS",
  "name_abbreviation": "State v. Parks",
  "decision_date": "1975-12-17",
  "docket_number": "No. 7526SC491",
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    "judges": [
      "Judges Hedrick and Arnold concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. MASON FREEMAN PARKS"
    ],
    "opinions": [
      {
        "text": "MORRIS, Judge.\nDefendant, 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.\nThe United States Supreme Court, though recognizing the government\u2019s privilege of informant nondisclosure, noted the counterbalancing principle that disclosure is warranted where informant identity is \u201c . . . relevant and helpful to the defense of an accused, or is essential for a fair determination of a cause. ...\u201d 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 \u201c . . . 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\u2019s 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\u2019s testimony, and other relevant factors.\u201d Roviaro, supra, at 62; McLawhorn, supra, at 4.\nOur Supreme Court, interpreting the Roviaro decision, has concluded that \u201cRoviaro makes two things clear: (1) There is a distinct need for an informer\u2019s 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.\u201d State v. Ketchie, 286 N.C. 387, 390, 211 S.E. 2d 207 (1975). This Court, consistent with our Supreme Court\u2019s analysis, will compel disclosure \u201c ... if it appears that he \\i.e. the informant] is a participant as opposed to a \u2018mere tipster.\u2019 \u201d 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 \u201cmere tipster\u201d turns, at least partially, on the \u201c . . . qualification of the informant to testify directly concerning the very transaction constituting the crime.\u201d (Emphasis supplied.) Mc-Lawhorn, 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.\nIn this case, the informants purportedly accompanied Agent Eastman to the defendant\u2019s Connection Lounge on 30 August 1974 and allegedly made the \u201cbuy\u201d 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 \u201cdeal\u201d 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\u2019s 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.\nWe are familiar with the California Supreme Court\u2019s 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, \u201c .. . was consummated in reliance upon the prior one ...\u201d then disclosure was necessary. Williams, supra, at 360. In Durazo, Justice Shenk, forcefully dissenting, argued that disclosure was unwarranted because \u201cthere was no informant participation.\u201d Durazo, supra, at 357. We believe Justice Shenk\u2019s opinion more accurately reflects the proper application of the law. In North Carolina, participation is the essential factor and when the \u201c . . . unknown person was not present at the time of the actual sale ...\u201d there is no necessity for revealing the confidential source\u2019s name. State v. Cameron, supra, at 194.\nHere, the officer was sure and certain of his identification. It was not based on an observation lasting just a few minutes; he 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\u2019s name in almost every case where the defendant claims he is \u201cnot the man.\u201d 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 \u201cthe man,\u201d and the informer had nothing to do with the transaction for which defendant was arrested.\nNo error.\nJudges Hedrick and Arnold concur.",
        "type": "majority",
        "author": "MORRIS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General Charles J. Murray, for the State.",
      "James, Williams, McElroy & Diehl, P.A., by William K. Diehl, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. MASON FREEMAN PARKS\nNo. 7526SC491\n(Filed 17 December 1975)\nConstitutional Law \u00a7 31 \u2014 identity of confidential informants \u2014 necessity for disclosure\nWhere two confidential informants introduced an SBI agent to defendant and made a buy of marijuana for the agent from defendant on 30 August, and the agent bought marijuana from defendant on 6 September without the assistance of the informants, disclosure of the identity of the confidential informants in a trial of defendant for the 6 September sale of marijuana was not required since the informants did not participate in that sale.\nAppeal by defendant from Baley, Judge. Judgment entered 16 January 1975 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 25 September 1975.\nDefendant was indicted for the alleged 6 September 1974 felonious distribution of marijuana to State Bureau of Investigation Agent Y. R. Eastman.\nAccording to State\u2019s evidence, Agent Eastman went to defendant\u2019s Connection Lounge \u201c . . . with the purpose of meetng Mr. Parks and making a purchase of marijuana.\u201d At trial, Eastman further recalled that he \u201c . . . 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.\u201d\n\u201cMr. 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.\u201d\nOn Friday, 6 September 1974, Eastman returned by himself to the defendant\u2019s lounge and testified that:\n\u201c . . . Mason Parks was at the lounge when I arrived. I arrived at the lounge and after my arrival, I went inside at the bar and ordered a beer. I then took the beer and went to a booth which was located inside the lounge. I sat down one booth over from Mr. Parks and an unknown white male that he was talking to. After sitting there for a few minutes, the other male left Mr. Parks\u2019 presence. I then advised Mr. Parks to have a seat, asked him if he would have a seat in my booth, and he did.\nAfter he sat there for a few minutes, I introduced myself again, and he advised me he remembered me from the last week. I introduced myself as Ray Eason. I asked Mr. Parks if he had the five pounds that I requested on August 30. Mr. Parks advised me that he did not know me, and that he didn\u2019t want to deal with anybody that he did not know. After a few seconds, I advised Mr. Parks that I had come to the Connection Lounge with the intent of buying five pounds of marijuana. I stated that I had people who were expecting parts of the five pounds on the same evening. Mr. Parks then stated that, or I then stated to Mr. Parks, that I had the entire amount of money to purchase five pounds of marijuana. Mr. Parks then advised me that he would deal with me, but if I was an informer or working for the police, that he would have me done away with. At that point I advised Mr. Parks that I felt the same way about informers or people working for the police. Mr. Parks then agreed to sell me five pounds of marijuana, and we began a discussion about the price. After arguing over the price of $175 per pound, Mr. Parks agreed to sell me five pounds of marijuana for $850, being approximately $170 per pound, I think. I then handed Mr. Parks $850 in United States currency. He left my presence and went into his office and returned in a few minutes and stated that he would have to go about a block away to pick up the five pounds.\nTo the best of my knowledge, the $850 was broken down into two $100 bills and the rest was in $20 bills, and perhaps one $10. He was in his office approximately five to ten minutes. When he came out, he advised me to accompany him outside. On the way out, he asked me if I had a vehicle, and I informed him that I did, and he advised that we would take my vehicle to pick up the marijuana. I was operating a \u201974 Continental Pontiac. It was green with a light green top. We then drove north on Tryon Street approximately a block and a half. No one was in the car besides Mr. Parks and myself, and I was driving. We went up to the Bowens A & G Store. It was at the intersection of Tryon Street and Eastway. We arrived and parked beside the store and sat there for approximately fifteen minutes in a parking lot. It was approximately 8:25 when we arrived at the Bowens Store. While we were there, the party that we were supposed to have met did not arrive at that time. Mr. Parks and myself engaged in a conversation and during that conversation, Mr. Parks advised me about the marijuana. He advised me about the use of marijuana and stated that he believed there wasn\u2019t anything wrong with marijuana and he said that he used marijuana. He said he used marijuana as a sexual stimulant during intercourse, and he further stated he did not see anything wrong with the use of marijuana or with the sale of marijuana.\nA. I then asked Mr. Parks if he sold any other type drugs. Mr. Parks stated that he did. ... I asked him about the price of cocaine and he stated that he sold cocaine for fourteen hundred dollars per ounce .... and seven hundred and fifty dollars per half ounce. At that time I agreed with Mr. Parks as to the price and agreed to contact him later on, after I had gotten money together to buy the ounce of cocaine, or half ounce of cocaine. . . .\nI would say we sat in the parking lot of the A & G Store with Mr. Parks for approximately twelve to fifteen minutes. After the party that we were supposed to have met didn\u2019t show up, Mr. Parks advised me to return to the Connection Lounge which I did. I hadn\u2019t gotten out of the car at any time while I was at the parking lot. And he didn\u2019t get out of the car until we got back to the Connection Lounge. Neither of us got out of the car from the time I left the lounge at around 8:25 until I returned to the lounge which would have been around twenty minutes of nine. At that time, Mr. Parks went inside the lounge and during the time he was inside the lounge, two ABC officers came up in State type vehicle. They went inside and came outside. One of them was looking around the outside of the premises. I was still in my car behind the driver\u2019s portion.'Mr. Parks returned to the vehicle in approximately ten to twelve minutes, and I asked him who the gentlemen were in the vehicle that was parked in front of the lounge. He said they were ABC officers and they had a job to do and they were checking his place for ABC violations. He did not indicate to me in those words who operated the Connection Lounge. When he returned to the car he advised me that we would return to the same parking lot, which we did. We stayed there for approximately five to seven minutes, and in a few minutes, a white over red \u201973 Eldorado Cadillac arrived occupied by one white female and a shaggy dog. Mr. Parks advised me to open my trunk, which I did. At that time, he was in the process of getting out of the right side of my vehicle. I didn\u2019t see anybody else in the parking lot when the white over red Cadillac drove up. It was a white convertible top over a red body. The driver was a white female with long brownish type hair. After Parks told me to open the trunk, I did so, and Mr. Parks went to the red and white Cadillac, opened the door and reached behind the driver\u2019s seat and he grasped five white plastic bags in his hand and brought them over to my vehicle and put them in my trunk. The Cadillac was approximately twelve to fifteen feet from my car. He brought all the bags at one time. I didn\u2019t open the bags. The bags were placed in the trunk of my vehicle.\nAlso in my trunk at that time were a couple of boxes and my police SBI radio was in the back seat. It was covered at the time in the back in the trunk of my car. The bags were placed together in the trunk of my car. As I said before, Mr. Parks placed them himself in the trunk of the car. Mr. Parks then wished me a farewell and said, \u2018I\u2019ll see you again later,\u2019 and I said, \u2018O.K., goodnight,\u2019 and left the area.\u201d\nEastman 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 tetrahydrocannabinal, the active ingredient normally found in marijuana.\nDefendant 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\u2019s alibi.\nFrom a plea of not guilty, the jury returned a verdict of guilty. Sentenced to a term of imprisonment, defendant appealed.\nAttorney General Edmisten, by Assistant Attorney General Charles J. Murray, for the State.\nJames, Williams, McElroy & Diehl, P.A., by William K. Diehl, Jr., for defendant appellant."
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