Opinion
I.D. No. 1502010981
12-09-2015
STATE OF DELAWARE v. JERMAINE A. COLBERT, Defendant.
ORDER
Upon Defendant's Motion to Disclose Identity of a Confidential Informant - Denied
Defendant Jermaine Colbert has moved for disclosure of the identity of a confidential informant. The State opposes the motion. Upon consideration of the written submissions of the parties and after an in camera hearing, the Court finds as follows:
1. Under Rule 509(a) of the Delaware Rules of Evidence, the State has the privilege to refuse to disclose an informant's identity.
2. The Delaware Supreme Court has addressed the showing which a defendant must make in order to overcome the State's privilege. The Court has stated, "[a] defendant attempting to invoke the exception must show, beyond mere speculation, that the confidential informant may be able to give testimony that would materially aid the defense." In Butcher v. State, the Delaware Supreme Court addressed the trial court's obligation to engage in a balancing of the interests: specifically, "the public interest in protecting the flow of information against the individual's right to prepare his defense."
McNair v. State, 2008 WL 199831, at *1(Del. Jan. 23, 2008)(internal quotation marks and citations omitted).
Butcher v. State, 906 A.2d 798, 802 (Del. 2006)(quoting Roviaro v. United States, 353 U.S. 53, 77 (1957)).
3. In State v. Flowers, the Superior Court described the following four situations in which the issue of disclosing an informer's identity arises: (1) the informer is used merely to establish probable cause for a search; (2) the informer witnessed the criminal act; (3) the informer participated in, but was not a party to the illegal transaction; and (4) the informer was an actual party to the illegal transaction. The Court noted that while the privilege is generally protected in the first scenario and disclosure is generally required in the fourth scenario, there is no general rule for the second and third scenarios. Under the second and third scenarios, "disclosure of the informer's identity is required only if the trial judge determines that the informer's testimony is material to the defense."
State v. Flowers, 316 A.2d 564, 567 (Del. Super. 1973).
Id.
Butcher, 906 A.2d at 803.
4. On December 9, 2015 , the Court conducted an in camera hearing regarding this issue. Prior to the hearing, the Court reviewed questions proferred by the Defendant and posed some of those questions and the Court's own questions in the hearing. The Court also reviewed the written submissions of the parties and a CD provided to the Court.
6. The February 18, 2015 charges at issue are Possession of a Firearm or Firearm Ammunition by a Person Prohibited, and two counts of Illegal Possession of a Controlled Substance. The Defendant was not charged with any offenses alleging the illegal sale or attempted sale of drugs or a firearm.
5. After a hearing, the Court finds that the confidential informant in this case allegedly arranged an illegal transaction between he or she and the Defendant. As a result, the State obtained a search warrant and arrested Defendant and seized his vehicle. A search of Defendant's vehicle produced a twelve gauge shotgun and illegal drugs. The confidential informant did not observe the criminal acts at issue. Namely, he or she did not observe the gun or drugs that Defendant allegedly possessed.
6. Accordingly, the confidential informant's involvement in the alleged criminal activity falls under the first of the Flowers scenarios. Namely, the informer was used to establish probable cause. The Defendant argues that the confidential informant was a party to the transaction. Any alleged transaction or attempted transaction involving guns or drugs, however, is not at issue in this case. Namely, the Defendant was charged only with possession related offenses - possession of a firearm (with an accompanying attendant status) and possession of drugs. Furthermore, after conducting a hearing and considering the positions of the parties, the Court does not find that disclosure of the informant would materially aid the defense. Accordingly, disclosure of the confidential informant's identity is not warranted pursuant to Flowers v. State. NOW, THEREFORE, this 9th day of December, 2015, the Defendant's Motion to Disclose Identity of a Confidential Informant is hereby DENIED. IT IS SO ORDERED .
See Flowers, 316 A.2d at 567. --------
/s/ Jeffrey J Clark
Judge cc: Zachary A. George, Esquire
Thomas D. Donvovan, Esquire
Prothonotary
File