          IN THE SUPREME COURT OF THE STATE OF DELAWARE

    JORDON HARRIS,                        §
                                          §   No. 484, 2017
        Defendant Below-                  §
        Appellant,                        §   Court Below: Superior Court
                                          §   of the State of Delaware
        v.                                §
                                          §   ID. No. S1610001844B
    STATE OF DELAWARE,                    §
                                          §
        Plaintiff Below-                  §
        Appellee.                         §

                      Submitted: November 29, 20181
                       Decided: December 5, 2018

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                          ORDER

       Upon consideration of the parties’ briefs and the record on appeal, it appears

to the Court that:

       (1)     At his October 2017 trial, the State alleged that the defendant, Jordon

Harris, sold a handgun to an undercover police officer. Harris was prohibited from

possessing a firearm because of a prior felony conviction. The Superior Court jury

convicted Harris of one count of Possession of a Firearm by a Person Prohibited, and

the Superior Court sentenced him to five years in prison. Harris was represented by




1
  Although the case first was submitted for decision on September 7, 2018, the necessary additional
transcript was not filed with the Court until November 29, 2018.
counsel at trial in the Superior Court, but he waived his right to counsel and is now

representing himself on direct appeal.

      (2)    The record at trial reflects that Detective Whitman of the Rehoboth

Beach police department and Detective Bumgarner of the Dover police department,

together with officers from other cooperating agencies, were engaged in an

undercover operation involving the sale of a handgun. A cooperating individual

(“CI”) told Detective Whitman that Jordon Harris wanted to sell a handgun.

Detective Bumgarner made arrangements through the CI to purchase the weapon

from Harris in a meeting at a McDonald’s parking lot in Rehoboth Beach. The police

made photocopies of the $275 in currency that Detective Bumgarner would use to

complete the sale.

      (3)    Around noon on July 19, 2016, the scheduled meeting time, Harris

arrived at the McDonald’s in a black Kia Optima. Detective Bumgarner, who was

wearing a hidden listening device, exited the car he arrived in and got into the back

seat of the Optima. Harris was in the driver’s seat. The CI was in the front passenger

seat. Harris told Detective Bumgarner to call him “J.” Harris took the gun out from

under the driver’s seat, removed it from a bag, and showed it to the detective. After

discussing the purchase price, Harris accepted the $275 in cash from the detective.

Harris then took the gun back, wiped it down, and gave it back to the detective.

Detective Bumgarner put the gun into a brown McDonald’s paper bag and got out


                                          2
of the car. Harris and Detective Bumgarner each drove out of the parking lot in their

respective vehicles. To protect both the CI and Detective Bumgarner, Harris was

not arrested at that time.

         (4)     Detective Whitman and ATF Agent Reisch watched the transaction

from their position inside a vehicle parked in an adjacent parking lot and were able

to listen in on the conversation inside the car. Agent Reisch also took a video of the

transaction, which was shown at trial. Detectives Whitman and Bumgarner both

testified at trial and identified Harris as the individual from whom Detective

Bumgarner had purchased the gun. Although neither detective knew Harris before

the gun transaction, they were able to identify him based on a Facebook photo they

had seen of Harris with his brother from which the CI had identified Harris. Harris’

defense at trial was misidentification.

         (5)     Harris enumerates seven issues in his opening brief on appeal. First, he

contends that the Superior Court erred in denying his motion to compel the identity

of the CI, who arranged the gun sale. Second, Harris contends that he was denied

his constitutional right to confront a witness against him, i.e. the CI. Third, he

contends that the Superior Court held an inadequate Flowers2 hearing on his motion

to compel. Fourth, he contends that the Superior Court erred in allowing certain

photos and messages into evidence. Fifth, he contends that the prosecutor engaged


2
    State v. Flowers, 316 A.2d 564 (Del. Super. 1973).
                                                 3
in misconduct. Sixth, he contends that the trial judge was biased. Finally, he

contends that the investigating officers engaged in misconduct and committed

perjury.

      (6)    Harris’ first three issues relate to the Superior Court’s denial of his

motion to compel the identity of the CI. The record reflects that Harris did not file

his motion to compel until one week before his scheduled trial date. Despite the

untimely motion, the Superior Court nonetheless granted Harris’ request for a

Flowers hearing and ordered the State to compel the CI, who was in Florida at the

time, to appear in Delaware to be interviewed by the judge in camera. After holding

the in camera interview, the Superior Court concluded that the CI was a witness to

the transaction but was not a participant and had no information that would

materially aid the defense. Thus, the Superior Court denied Harris’ motion to

compel the identity of the CI.

      (7)    In his opening brief, Harris argues that the Superior Court did not

conduct a proper Flowers hearing and denied him his constitutional right to confront

a witness against him by erroneously denying his motion to compel the CI’s identity.

We review the Superior Court’s refusal to compel the disclosure of the identity of




                                         4
the CI for abuse of discretion.3 An abuse of discretion occurs if the trial court’s

decision is based on unreasonable or capricious grounds.4

       (8)    Under Delaware Uniform Rule of Evidence 509, the State has a

privilege to refuse to disclose the identity of a CI in a criminal case unless it appears

that the CI “may be able to give testimony [that] would materially aid the defense.”5

The defense has the burden of establishing, beyond mere speculation, that the CI’s

testimony would materially aid the defense.6

       (9)    The rule of informer privilege in Rule 509 follows, in part, the Superior

Court’s holding in State v. Flowers, in which the court recognized four typical

situations in which the issue of the disclosure of the CI’s identity arises: (i) when the

CI is used to establish probable cause for a search; (ii) when the CI witnesses the

illegal transaction; (iii) when the CI participates in, but is not a party to, the illegal

transaction; and (iv) when the CI is an actual party to illegal transaction.7 In the first

situation, the State’s privilege is protected. In the last situation, the State must

disclose the CI’s identity.8 In the second and third situations, there is no general rule

of disclosure or nondisclosure. Rather, the trial court must look at the circumstances




3
  Kennard v. State, 2007 WL 2523022, *3 (Del. Sept. 6, 2007).
4
  Waples v. State, 2018 WL 3359271, *3 (Del. July 9, 2018)
5
  Del. Unif. R. Evid. 509(a), (c)(2).
6
  Kennard v. State, 2007 WL 2523022, at *3.
7
  State v. Flowers, 316 A.2d at 567.
8
  Id.
                                              5
of the individual case to determine if the CI’s testimony would materially aid the

defense.9

          (10) In the present case, the video evidence established that the CI, at the

least, witnessed the illegal transaction. Although Harris knew the CI by first name,

he did not know his full name. The State represented that the CI did not want his

identity disclosed for fear of retaliation. The Superior Court thus ordered the State

to produce the CI for an in camera interview with the judge. After conducting the

interview, the Superior Court concluded that the CI was a witness but not a party to

the illegal transaction and that the CI had no information that would materially aid

the defense.

          (11) After reviewing the record including the transcript of the in camera

interview, we find no abuse of the Superior Court’s discretion in denying Harris’s

motion for disclosure of the CI’s identity. The trial record supports the Superior

Court’s conclusion that the CI was present for, but was not a party to, the illegal

transaction and that the CI did not have information that would materially aid Harris’

defense. Contrary to Harris’ argument, the Superior Court’s process in ruling on

Harris’ motion was more than adequate and fair. Moreover, given that the CI did

not provide any evidence or testimony against him, there is no basis for Harris’




9
    Id.
                                            6
argument that he was denied his constitutional right to confront a witness against

him.

       (12) Harris next claims that the Superior Court erred in admitting certain

photographs and “messages” into evidence. Harris does not specify what evidence

he is referring to, and the trial record does not reflect the admission of any messages

into evidence at trial. Accordingly, we conclude that this aspect of his argument has

no basis in fact.

       (13) With respect to his argument regarding the improper admission of

photographs, the record reflects that Detective Whitman testified at trial that he

viewed Harris’ public Facebook page with the CI. The CI identified Harris from his

Facebook cover photo, which showed Harris standing with his brother. That photo,

along with another public Facebook photo of Harris standing in front of a black Kia

Optima, were both admitted into evidence without objection.10 Given Detective

Whitman’s testimony that the photos were indeed photos of Harris—a fact the jury

could judge for itself—we conclude the photos were properly authenticated under

Delaware Uniform Rule of Evidence 901.11 Moreover, Harris’ contention that his




10
   See Chance v. State, 685 A.2d 351, 354 (Del. 1996) (claims not raised to the trial court in the
first instance are reviewed on appeal for plain error).
11
   Del. Unif. R. Evid. 901(a) (authentication is satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent claims).
                                                  7
public Facebook photos were “illegally seized” has no merit. 12 We find no plain

error in the Superior Court’s admission of the photographs into evidence.

       (14) Harris’ remaining three claims, alleging prosecutorial misconduct,

judicial bias, and witness perjury, are conclusory and unsubstantiated and were not

raised in the proceedings below. We find no plain error on appeal.13

       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                             BY THE COURT:


                                             /s/ James T. Vaughn, Jr.
                                                   Justice




12
   Everett v. State, 186 A.3d 1224, 1229 (Del. 2018) (finding no reasonable expectation of privacy
in shared social media posts).
13
   Supr. Ct. R. 8.
                                                8
