Opinion
Docket No. 134, 1998.
March 3, 1999.
Appeal from Superior Court, Kent County, CrA IK96-10-0387 and 0391.
AFFIRMED.
Unpublished Opinion is below.
JAIR A. MARIN, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 134, 1998. In the Supreme Court of the State of Delaware. Submitted: January 12, 1999. Decided: March 3, 1999.
Court Below: Superior Court of the State of Delaware in and for Kent County Cr.A. Nos. IK96-10-0387 and 0391.
Before VEASEY, Chief Justice, WALSH and BERGER, Justices.
ORDER
This 3rd day of March, 1999, upon consideration of the briefs of the parties, it appears to the Court that:
1) Jair A. Marin was convicted, following a jury trial, of possession with intent to deliver cocaine and trafficking in cocaine. He was stopped and arrested as the result of a tip the State Police received from a confidential informant. Marin moved to compel the State to identify the confidential informant, but his motion was denied. Marin's sole argument on appeal is that the Superior Court abused its discretion in refusing to require disclosure of the informant's identity.
2) On the evening of October 15, 1996, Delaware State Police Detective Leslie Grow stopped a green Nissan Maxima heading south on Route 1 toward Dover, Delaware. Grow and another officer searched the Maxima and found a package, later determined to contain cocaine, wrapped in green duct tape. When Grow questioned Marin about the package, Marin claimed not to know what was in it. Marin explained that he was helping a friend by driving the friend's package to Dover in exchange for $300. At the time of his arraignment a few hours later, however, Marin admitted that he knew the package contained cocaine.
3) Grow learned about Marin from a confidential informant who told him that Marin regularly transported drugs from New Jersey to Dover in a green Nissan Maxima. At Grow's request, the informant called Marin and arranged for Marin to deliver a "half car" to Dover. The informant explained that a "half car" is the code for a half kilogram of cocaine.
4) Prior to trial, Marin moved to compel disclosure of the informant's identity and whereabouts on the ground that his testimony would materially aid the defense. At argument on the motion, Marin stated that the informant's testimony was needed to interpret the cryptic telephone conversation, which, he believed, might support an entrapment defense. The trial court specifically asked if identification was an issue and Marin said that it was not. The trial court denied the motion, without prejudice, after reviewing a transcript of the informant's telephone conversation with Marin.
5) Marin does not now claim that he needed the informant's testimony to support an entrapment defense. Rather, he contends that disclosure was required because: (i) the informant was a principal in the illegal drug transaction, and (ii) the informant might have testified that Marin was not the person he spoke with on the phone to arrange the drug sale.
6) We review the trial court's decision for abuse of discretion. Under D.R.E. 509, the identity of a confidential informant is privileged unless there is a reasonable probability that the informant possesses information that would materially aid the defense. If it appears that the informant may have such information, the rule contemplates that the court will hold a so-called " Flowers hearing" to decide, from affidavits and/or testimony, whether the informant's identity should be revealed or other appropriate relief should be granted. Marin has the burden of showing, "beyond mere speculation," that the informant possesses information that could "materially aid the defense."
Davis v. State, Del. Supr., No. 427, 1997, 1998 WL 666713 (July 15, 1998) (ORDER).
State v. Flowers, Del.Super., 316 A.2d 564 (1973).
Davis, 1998 WL 666713, at **2.
7) In considering Marin's motion to compel disclosure, the Superior Court reviewed the transcript of the informant's conversation with Marin and found nothing in the transcript that would support an entrapment defense. Since Marin's motion was based on entrapment, it was denied. We find that the Superior Court acted well within its discretion in denying the motion without prejudice. If Marin wanted to pursue the question of whether the informant could be helpful to the defense of mistaken identification, he was free to move for disclosure later in the trial. He chose not to, and cannot now raise that theory on appeal.
See Wheatley v. State, Del. Supr., 465 A.2d 1110, 1111-1112 (1983); Weber v. State, Del. Supr., 457 A.2d 674, 684 (1983).
8) Marin also argues that disclosure was required because the informant arranged for the delivery of the cocaine and, therefore, was a party to the illegal transaction. This argument lacks merit. To be convicted of the crime of trafficking in cocaine, the State must prove knowing possession of a specified quantity of the drug, and, for the crime of possession with intent to deliver, the State must prove possession and intent. The sale of cocaine is not a required element of either crime. Thus, the informant was not a party to the crimes charged and there was no requirement that he be identified.
State v. Flowers, 316 A.2d at 567 (disclosure required where informant is an actual party to the transaction).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.
BY THE COURT:
/s/ Carolyn Berger, Justice