IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
Kent County

V.

ALVIN L. WILLIAMS,

I.D. No. 1808020201
and

JIMMY F. ARTIS,

I.D. No. 1808020266

Defendants.
Submitted: January 3 , 201 9
Decided: January 16, 2019
ORI)ER

Upon Defendants’ Motions for Reargument.
Granted.

Sean A. Motoyoshi, Esquire of the Department of Justice, Dover, Delaware; attorney
for the State of Delaware.

Zachary A. George, Esquire of Hudson Jones Jaywork & Fisher, LLC, Dover,
Delaware; attorney for Defendants.

VVITHAM, R.J.

State of Delaware v. Alvin Williams and Jimmy Artl`s
I.D. Nos. 1808020201 and 1808020266
January 16, 2019

INTRODUCTION

Bef`ore the Court are Defendants, Alvin Williams and Jimmy Artis
(“Williams/Artis”), and their Motions for Reargument.l Both motions follow this
Court’s November 21, 2018 order that denied Williams/Artis’ Motion to Disclose
Confidential Informants.2 The State filed its response in opposition to the instant
motion on December 10, 2018. The Court heard oral arguments on December 21,
2018 and reserved judgment.

Af`ter carefully considering the motions, responses, and oral arguments, the
Court finds Williams/Artis have demonstrated sufficient grounds for reargument. For
the forthcoming reasons, the motions for reargument are hereby GRANTED.

FACTUAL AND PROCEDURAL BACKGROUND

l. Williams is charged With one count of drug dealing pursuant to 16 Del. C.
§ 4754(1). He filed his motion to disclose confidential informants on October 9,
20183 and asserted that individuals he allegedly sold drugs to Were identified in an
Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) report by Detective

 

1 This order is applicable to both Williams and Artis’ motions for reargument, however, these
Defendants are being tried separately.

2 The Court notes that both motions to disclose confidential informants are almost identical.
The only difference between the motions is that in Williams’ motion, he includes confidential
informant identifying information specifically identifying the individuals in question as
“[confidential informant] 1850" and “[confidential informant] 8892” that Was contained in an ATF
report authored by “Detective Bumgarner.” Artis’ motion to disclose confidential informants only
speaks of the individuals as “confidential informants” generally, Without specific identifiers. The
Court further notes that both Defendants’ motions for reargument are identical.

3 Williams (W.) Mot. to Disclose Confidential lnformant, Oct. 9, 2018.

2

State of Delaware v. Alvin Williams and Jimmy Artis
I.D. Nos. 1808020201 and 1808020266
January 16, 2019

Bumgarner, as confidential informants 1850 and 8892.4

2. Artis is charged with four counts of drug dealing pursuant to 16 Del. C. §
4754(1). He filed his motion to disclose confidential informants on October 18, 20185
and also asserted that individuals he allegedly sold drugs to were confidential
informants

3. The Court denied both motions in an order on November 21, 2018.
Williams/Artis subsequently filed timely motions for reargument on November 26,
2018.6 The State filed its responses in opposition on December 10, 2018 and oral
arguments were heard on December 21, 2018.7 The Court reserved judgment.

STANDARD OF REVIEW
4. A motion for reargument in a criminal case is governed by Superior Court

Civil Rule (“Rule”) 59(e).8 Upon a Rule 59(e) motion, the Court has the discretion9

 

4 Id. at 11 4. The ATF report was not presented to the Court at the time of the initial motion
to disclose confidential informants, nor was it presented in Williams’ motion for reargument, or oral
argument.

5 Artis Mot. for Disclose Confidential lnformant, Oct. 18, 2018.

6 See Binaird v. State, 2014 WL 7454239, at *2 (Del. 2014) (“A motion for reargument must
be filed within five days of the filing of the Superior Court's decision.”); see also Super. Ct. Crim.
R. 45(a) (the five days excludes Saturdays, Sundays and legal holidays).

7 As a result of Williams/Artis presenting, for the first time, case law that the State was
unprepared to address, the Court granted an extension until January 3, 2019, which served as a final
opportunity for the Defendants and the State to submit additional case law not previously cited in
motions or responses.

8 State v. Harrison, 2016 WL 5871628, at *l (Del. Super. Oct. 6, 2016) (citing State v.
Brinkley, 132 A.3d 839, 842 (Del. Super. Mar. 22, 2016).

9 State v. Remea'io, 2015 WL 511059, at *1 (Super. Ct. Jan. 26, 2015).

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State of Delaware v. Alvin Williams ana' Jimmy Artis
I.D. NoS. 1808020201 and 1808020266
January 16, 2019

to determine the merits of the motion.10

5. A motion for reargument will be granted only if “the Court has overlooked
a controlling precedent or legal principles, or the Court has misapprehended the law
or facts such as would have changed the outcome of the underlying decision.”11 A
motion for reargument is not an opportunity for a party to rehash arguments already
decided by the Court or to present new arguments not previously raised.12

6. The party seeking reargument has the burden to demonstrate newly
discovered evidence, a change in the law, or manifest injz,¢stice.13

DISCUSSION

7. The Court will first address Williams’ motion for reargument.14 Williams
argues that the Court “misapprehended the law and facts in a manner that would
change the outcome of the case.”15 As before, he asserts that the State’s witnesses
were in fact not witnesses, but “confidential informants [as] parties to the alleged

1916

illegal transaction.... and fall under Flowers17 Category 4, requiring disclosure.

8. Now, however, for the first time, Williams argues that there is an issue of

 

1° Ia'. (citing Super. Ct. Civ. R. 59(e)).

11 Brinkley, 132 A.3d 839, 842 (Del. Super. Mar. 22, 2016) (citing
Kennea'y v. Invacare, Inc., 2006 WL 488590, at *1 (Del. Super. Jan. 31, 2006).

12 Kennea'y, 2016 WL 488590, at *1.

13 Reia' v. Hina't, 2008 WL 2943373, at *l (Del. Super. July 31, 2008) (emphasis added).
14 Williams (W.) Mot. for Reargument at 11 6, Nov. 26, 2018.

15 Ia'.

16 Ia'. at 11 7. See also W. Mot. to Disclose Confidential Inforrnant at 11 5.

17 316 A.2d 564 (Del. Super. 1973).

State of Delaware v. Alvin Williams and Jimmy Artis
I.D. Nos. 1808020201 and 1808020266
January 16, 2019

material fact regarding whether the witnesses are “witnesses” or “confidential
informants” He asserts the State’s classification of these individuals as witnesses
requires the Court to hold a Flowers evidentiary hearing to determine whether the
Witnesses are in fact “witnesses,” or “confidential informants.”18

9. The State, in opposition, counters that a Flowers hearing is inappropriate
because it has not, nor does it intend to, invoke its privilege pursuant to Delaware
Uniform Rule of Evidence (D.R.E.) 50919 regarding confidential informants because
there are no confidential informants in this case.20 At oral argument, the State argued
that the individuals’ identities would be disclosed before trial, where they would be
called to testify as witnesses for the State.

10. At first glance, Williams’ motion for reargument appears to be a new
argument and prohibited pursuant to Rule 59(e). He further fails to present new
evidence that might support his assertion.

1 l. Delaware law is clear. Superior Court Criminal Rule (“Rule”) 16 provides

121

that the State is not required to disclose the identity of its witnesses prior to tria or

to provide a “complete and detailed accounting...of all police investigatory work on

 

18 W. Mot. at 11 9.
19 See D.R.E. 509.

20 lt is especially noted that the State has consistently argued that the individuals in question
are not confidential informants, and are to be treated as state witnesses

21 Goode v. State, 136 A.3d 303, 312 (Del. 2016) (citing Davis v. State, 99 A.3d 226 (Table),
2014 WL 3943100, at *3 (Del. 2014); Liket v. State, 719 A.2d 935, 937 (Del.1998) (“When the
testimony or background of a witness offers no exculpatory value, the State does not have to disclose
the identity of that witness prior to that witness' testimony.”).

5

State of Delaware v. Alvin Williams and Jimmy Artis
I.D. Nos. 1808020201 and 1808020266
January 16, 2019

a case.”22 The State also correctly states that a Flowers hearing is generally
appropriate only when it has invoked privilege pursuant to D.R.E. 509.23 Thus, it
appears the Court should deny Williams/Artis’ motions

12. However, this case deeply troubles the Court. Specifically, the Court is
disturbed by Williams’ allegation that the individuals in question are, in reality,
confidential informants This allegation appears to be confirmed by the State at the
oral argument.

13. At oral argument, and for the first time, the State disclosed to the Court
that the individuals in question are actively participating in multiple pending
investigations with law enforcement24 Given the admission that these individuals are
being used in current and ongoing criminal investigations the State all but admits that
these individuals are confidential informants, but are not identified as such. The State,
to this point, has not disclosed the identities However if they are not confidential
informants, but agents of law enforcement or other purposeful non-parties utilized in
alleged drug transactions for a state or federal agency, they may indeed be
confidential informants treated as witnesses

14. In this case, it appears that the exact opposite is true regarding these

 

22 Id. (citing Lovett v. State, 516 A.2d 455, 472 (Del. 1986) (quoting Moore v. lllinois, 408
U.S. 786, 795 (1972)).

23 See D.R.E. 509.

24 At oral argument, Defense counsel also indicated that the individuals were professional
confidential informants who travel to participate in multiple investigations and further suggested that
they are in some sort of a business relationship with law enforcement agencies and not participating
in only a few controlled buys.

State of Delaware v. Alvin Williams and Jimmy Artis
I.D. Nos. 1808020201 and 1808020266
January 16, 2019

specific individuals Under these unique and troubling circumstances the Court finds
the State’s classification of these individuals as “witnesses,” rather than “confidential
informants,” is a misuse of the law and privilege pursuant to D.R.E. 509 given the
fact that the State has described these so called “confidential informants” to the Court
as “witnesses” to alleged incidents of drug dealing and plan to use these individuals
frequently as “witnesses” in ongoing criminal proceedings, involving other
defendants The Court views this as a clear attempt to circumvent D.R.E. 509 and
finds, based chiefly on the State’s admission at oral argument, that these witnesses
are in fact “quasi” confidential informants who have and continue to cooperate with
law enforcement.

15. Thus, in the interests of justice, the Court further finds, despite the State’s
decision to forego invoking privilege pursuant to D.R.E. 509, that this scenario is
akin to Flowers and that manifest injustice would occur if the Court did not conduct
an analysis to determine whether the State must, or must not, disclose the individuals’
identities to Williams

16. D.R.E. 509 grants the State a privilege to refuse to disclose the identity of
a confidential informant to a defendant.25 An exception to the State’s privilege exists

when “an informer may be able to give testimony which would materially aid the

 

25 D.R.E. 509(a) states:
[t]he United States or a state or subdivision thereof has a privilege to refuse to
disclose the identity of a person who has furnished information relating to or assisting
in an investigation of a possible violation of a law to a law-enforcement officer or
member of a legislative committee or its staff conducting an investigation.

7

State of Delaware v. Alvin Williams and Jimmy Artis
I.D. Nos. 1808020201 and 1808020266
January 16, 2019

defense.”26 A defendant challenging the State’s privilege has the burden to
demonstrate, beyond mere speculation, that disclosure of the confidential informant’ s
identity would materially aid the defense.27

17. Under Flowers, there are four standard situations in which the issue of a
confidential informant's identity may arise:

i. the informer is used merely to establish probable cause for a search;

ii. the informer witnesses the criminal act;

iii. the informer participates, but is not a party, to the illegal transaction; and

iv. the informer is an actual party to the illegal transaction.”28
Our Supreme Court has further recognized “that generally the privilege afforded
under [D.R.E.] 509 is protected in the first Flowers scenario, but not in the forth.”29
ln the second and third scenarios, disclosure of the informer's identity is only required
if the trial judge determines that the informer's testimony materially aids the defense.30

18. Here, other than accusations made in motion and oral argument, Williams
provides the Court no evidence to support his assertion that these individuals in

question meet Flowers Category 4 criteria, or that disclosure of their identities would

 

26 D.R.E. 509(¢).

27 Cooper v. State, 2011 WL 6039613, at *9 (Del. 2011) (“To invoke this exception, the
defendant must show, beyond mere speculation, that the confidential informant may be able to give
testimony that would materially aid the defense.”).

28 Flowers, 316 A.2d at 567.
29 Cooper, 32 A.3d at 988 (citing Butcher v. State, 906 A.2d 798, 802-03 (Del. 2006)).
30 Butcher, 906 A.2d at 803.

State of Delaware v. Alvin Williams and Jimmy Artis
I.D. Nos. 1808020201 and 1808020266
January16, 2019

materially aid his defense.31 On the other hand, the Court is not comfortable in
accepting the State’s argument that these individuals will be witnesses at trial to
testify and, therefore, will be disclosed eventually.32 The Court could view this
argument as a subterfuge to prevent disclosure. As a result, the Court is left with
insufficient information to determine which Flowers category, if any, these quasi
confidential informants would fall under further justifying the need to conduct a
Flowers hearing.33

19. The Court finds the guidance provided by Flowers and Butcher helpful.
In those cases, the confidential informer put law enforcement in contact with the
defendants and remained present during the transaction. As a result, this Court
ordered two appropriate procedures First, the Court ordered the State to submit
affidavits which would be sealed, to support its argument that the confidential
informer's identity should not be disclosed.34 Second, the Court also required the

State to produce the confidential informer for an in camera review by the trial judge

 

31 Rather, Williams states insufficient time to prepare portions of cross examination would
occur.

32 The Court also declines to speculate why, under these particular circumstances the State
has not invoked privilege pursuant to D.R.E. 509.

33 The Court suggests that it could be logically presumed that if these witnesses are
confidential informants, they are participating in controlled purchases at the behest of the law
enforcement agencies Indeed, even at oral argument, Williams, through counsel, stated that these
individuals were conducting multiple purchases from multiple individuals However, the Court is
not in the habit of making assumptions, especially when there is no evidence presented to remotely
support any assumption.

34 See Flowers, 316 A.2d at 568; Butcher, 906 A.2d at 803.

9

State ofDelaware v. Alvin Williams and Jimmy Artis
I.D. Nos. 1808020201 and 1808020266
January 16, 2019

so that a determination could be made by the trial judge whether disclosure of the
informer's identity would materially aid the defense.35

20. Since both parties in the present case have stated that these individuals
have, and still are, actively participating in pending investigations the Court finds
Flowers and Butcher helpful in this case. Therefore, the Court orders the State to
produce: (1) affidavit(s), which the Court will seal, to support its argument that the
quasi confidential informers’ identities should either remain undisclosed or truly are
only witnesses to a crime; and (2) the quasi confidential informers in camera for the
Court’s review.

21. Williams may, if he can, provide evidence supporting his assertion that
these quasi confidential informants were participants in an illegal action, or any other
basis for disclosure before trial. Thus the Court grants Williams’ motion for
reargument.

22. As for Artis’ arguments in his motion for reargument, it is a virtual carbon
copy36 of Williams’ arguments Therefore, for the reasons stated above, the Court will
also permit Artis to provide evidence, if he can, supporting his assertions that these
quasi confidential informants were participants in an illegal action, or any other basis

for disclosure before trial. Thus the Court grants Artis’ motion for reargument.

 

35 Id.

36 Defense counsel also made a claim that there was insufficient video evidence regarding
Artis’ case. This was disputed by the State.

10

State of Delaware v. Alvin Williams and Jimmy Artis
I.D. Nos. 1808020201 and 1808020266
January 16, 2019

CONCLUSION

23. For the above mentioned reasons the Court finds Williams/Artis have
demonstrated sufficient grounds entitling both to reargue their motions for disclosure
of the “quasi” confidential informants Therefore, their motions for reargument are
GRANTED.

24. The Court also orders the State to produce supporting affidavits and the
individuals in question for an in camera review conducted by the Court. The Court
will determine whether the individuals’ identities must be disclosed by the State and

whether or not they are confidential informants

' %%///a@

Hon.'Wiiiiam L. witham, Jr.
Resident Judge

 

WLW/dmh

oc: Prothonotary

cc: Sean A. Motoyoshi, Esquire
Zachary A. George, Esquire

11

