Opinion
ID No. 9905018722 and 9905018893.
Submitted: April 10, 2000.
Decided: April 13, 2000.
Defendant's Flowers Motion — Denied .
Dennis Kelleher, Esquire; Deputy Attorney General, 45 The Green Dover, Delaware 19901.
Christopher D. Tease, Esquire; 1232 North King Street, Suite 1, Wilmington, Delaware 19801.
Dear Counsel:
This is the Court's decision on Defendant's request for a Flowers hearing. As the parties are well-aware, a criminal defendant does not have an unqualified right to discover the identity of government informants. State v. Flowers, Del. Supr., 316 A.2d 564 (1973). Under Delaware Rule of Evidence 509(a), the identity of the informant is privileged. However, Rule 509(c) provides an exception in cases where the informer's testimony will materially aid the defense. If it appears that an informant may be able to give testimony which would materially aid the defense, and the State invokes the privilege, the Court shall give the State an opportunity to show in camera facts relevant to determining whether the informer can supply the alleged testimony.
Ultimately, it is the defendant's responsibility to show, "beyond mere speculation, that the confidential informant may be able to give testimony that `would materially aid the defense.'" Hooks v. State, Del. Supr., 612 A.2d 158 (ORDER). In Hooks, a confidential witness to a drug transaction did not have to be revealed because it was mere speculation on the part of the defense that the State's witness would have given exculpatory information. Moreover, in State v. Brown, Del. Supr., 608 A.2d 725 (1992), the Delaware Supreme Court held that
[a]lthough Brown alleges that he was `set up' by Paulette Corea, there is nothing in the record to support Brown's contention that the identity of the confidential informant would have materially aided him in proving this defense. Even assuming arguendo that Brown's speculation about the identity of the confidential informant was correct, that fact alone was not a sufficient reason for the Superior Court to require disclosure of the informant's identity. See Preston v. State, Del. Supr., 338 A.2d 562, 563 (1975). The Superior Court in this case carefully considered the testimony of the confidential informant and determined, in its discretion, that the disclosure of the identity of the confidential informant would not materially aid Brown's defense. State v. Flowers, Del. Supr., 316 A.2d 564 (1973); D.R.E. 509(b). The record does not reflect that the Superior Court abused its discretion. Id.
In the case at bar, the State has submitted an affidavit in camera in opposition to the Defendant's motion pursuant to Rule 509(c)(2). The State's affidavit makes it clear that the confidential informant did arrange the three meetings between the police and the Defendant for a buy of narcotics to occur. However, the affidavit also demonstrates that the confidential informant did not take part in any of the transactions. The undercover police officer was the individual who consummated the transactions. The confidential informant merely arranged the meeting place and observed the undercover officer make the three purchases of narcotics.
Under Flowers and its progeny, if the confidential informant was not an active participant in the transaction, his identity does not have to be disclosed by the State. As I see the facts of this case, the affidavit states that only the undercover officer was an active participant in the narcotic transactions in question; the confidential informant only arranged for the transactions to occur. This amount of involvement by the informant does not rise to a level that would require the disclosure of his identity. The Defendant has failed to meet his burden of showing that the confidential informant may be able to give testimony which would materially aid his defense. Therefore, it would not be proper for this Court to disclose the identity of the confidential informant at this time. Defendant's Flowers motion is denied.
IT IS SO ORDERED.
WLW/dmh oc: Prothonotary xc: Counsel Order Distribution File