16 N.C. App. 153 | N.C. Ct. App. | 1972
Defendant assigns as error the denial of his motions to dismiss all charges “based upon violations of his constitutional right to a speedy arrest and trial.” The alleged offenses occurred on 7 August 1971, arrest warrants were issued and executed on 11 December 1971, indictments were returned at the 28 February 1972 Criminal Session of the court and trial was had at the 10 April 1972 session.
In support of this assignment of error defendant relies on State v. Johnson, 275 N.C. 264, 167 S.E. 2d 274 (1969) wherein the court said at page 277: “We here hold that when there has-been an atypical delay in issuing a warrant or in securing an indictment and the defendant shows (1) that the prosecution deliberately and unnecessarily caused the delay for the conveni
We do not think the instant case is controlled by Johnson where there was a four years delay (as opposed to four months in this case) in securing an indictment and where the delay was the “purposeful choice of the prosecution, and it created the reasonable possibility that prejudice resulted to defendant.” We think this case is similar to our case of State v. Farris, 13 N.C. App. 143, 185 S.E. 2d 275 (1971), cert. den., 280 N.C. 302, and apply here, by reference, the reasoning set forth in Farris. The assignment of error is overruled.
Defendant assigns as error the failure of the trial court in its charge to the jury to declare and explain the law arising on substantial features of the case, and to relate the law to the contentions of defendant. In his brief defendant states that his primary contention was his defense of entrapment. Defendant did not testify and offered no evidence but attempted to assert his defense of entrapment by voir dire examination of a police detective and cross-examination of witnesses for the State.
It is doubtful that defendant was entitled to jury instructions on the question of entrapment. See State v. Kilgore, 246 N.C. 455, 98 S.E. 2d 346 (1957). Assuming, arguendo, that he was, we think the trial judge fully submitted the legal principles with respect to entrapment as set forth in State v. Burnette, 242 N.C. 164, 87 S.E. 2d 191 (1955) and related the law to any possible contention as to entrapment raised by defendant. We perceive no prejudice to defendant, therefore, the assignment of error is overruled.
In his next assignment of error defendant contends that the court erred “in refusing to require the State’s witness to reveal the identity, whereabouts and present status of the confidential informer with whom the alleged sale was actually negotiated, and to whom the delivery was actually made.” In .support of this contention defendant relies on Roviaro v. United States, 353 U.S. 53, 1 L.Ed. 2d 639, 77 S.Ct. 623 (1957). We think the cases are clearly distinguishable. In Roviaro defendant was charged with illegal transportation of heroin and selling heroin to one “John Doe” (the informer). A police officer was concealed in the trunk of Doe’s car and testified to a
The Supreme Court of North Carolina appears to hold consistently that the State is allowed the privilege of nondisclosure unless the defendant makes a sufficient showing that the ends of justice require disclosure. State v. Swaney, 277 N.C. 602, 178 S.E. 2d 399 (1971); State v. Moore, 275 N.C. 141, 166 S.E. 2d 53 (1969) and State v. Boles, 246 N.C. 83, 97 S.E. 2d 476 (1957). In Roviaro, supra, page 646, the U. S. Supreme Court said: “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 informer’s testimony, and other relevant factors.”
We hold that defendant in the instant case did not make a sufficient showing that the ends of justice required disclosure of the identity, whereabout and present status of the informer. The assignment of error is overruled.
Finally, defendant contends that the record discloses a fatal variance between the charge of sale to a police officer and evidence of sale to a confidential informer. The contention is without merit. The evidence was sufficient to support a jury finding that defendant sold cocaine to police officer S. Daughtry as alleged in the indictment.
For the reasons stated, we find
No error.
