Opinion
ID No. 0609021733.
March 29, 2007.
Carole J. Dunn, Esquire Assistant Public Defender 14 The Circle, 2nd Floor Georgetown, DE 19947.
Dear Ms. Dunn:
This is the Court's decision on the Motion for New Trial of Mr. Henry's first set of charges in which he was convicted on March 19, 2007. The Motion is denied.
In your Motion for New Trial, you acknowledge that there was no motion to compel the disclosure of the identity of the confidential informant that was used in that case. You also acknowledge that defense counsel for strategic reasons did not subpoena the informant. I note that while we use the nomenclature "confidential informant", that person's identity is either known to the defense or is easily available. The informant made a phone call to his supplier from his home in the presence of police and placed an order. That supplier was allegedly Patrick Henry. Thereafter, Mr. Henry came to the informant's home, entered it, and was immediately taken into custody in the presence of the informant. The defense is fully aware of the address where this took place; and, therefore, assuming the defendant did not know the informant who was present at his arrest, reasonable investigation would have disclosed that information. Again, what is important is that defense counsel, for strategic reasons, did not subpoena the informant.
When the defendant was taken into custody in the informant's residence, the drugs were physically removed from his pocket. This is not a case of mistaken identity.
Therefore, the defendant's present personal desire for you to file a Motion for New Trial based upon the informant not testifying at trial has no traction.
The Motion for New Trial is denied because a strategically defense chose to not seek or subpoena the informant; and, (b) the informant's testimony would not have in any way assisted the defendant because the defendant, when arrested, had the trafficking weight cocaine in his pocket.
IT IS SO ORDERED.