           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                     IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE                                 )
                                                  )
           v.                                     )      I.D. No. 140200979
                                                  )
CHARLES JOHNSON,                                  )
         Defendant.                               )


       Upon Defendant’s Motion to Disclose Identity of a Confidential
                          Informant - Denied

           Defendant Charles Johnson 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, the Court DENIES Defendant’s motion.

           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.       As set forth in Rule 509(c)(2), there is an exception to the State’s

privilege, “[i]f it appears . . . that an informer may be able to give testimony which

would materially aid the defense.” 1

           3.       When a defendant seeks to invoke the exception to the rule of

privilege, the defendant must make that threshold showing in order to overcome

the privilege.


1
    D.R.E. 509 (c)(2).
           4.       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 defenses." 2

           5.       In the case before the Court, the police used a confidential informant

to make a controlled buy from Charles Johnson’s co-defendant, Victor Burgos.

The defendant, Charles Johnson, came to the police’s attention during surveillance

of Burgos and the confidential informant allegedly drove up in a car during the

controlled buy transaction between the confidential informant and the co-defendant

Burgos. It is alleged that the police followed Johnson after Johnson’s interaction

with Burgos. In the meantime, during the simultaneous investigation of Burgos–

specifically, a search warrant was executed and the police learned that the heroin

sold to the confidential informant in the controlled buy with Burgos was obtained

by Burgos from the car that was driven by defendant Charles Johnson and was

under surveillance.




2
    McNair v. State, 2008 WL 199831, at *1(Del. Jan. 23, 2008) (internal quotation marks and citations omitted).
        6.       The State concedes that the “[confidential informant] advised [the

police officers] that Burgos received the heroin from the individuals in the

vehicle.”3

        7.       The defendant, Charles Johnson, states that the identity of the

confidential informant should be disclosed because “[t]he confidential informant

was directly involved in the transaction providing the basis to charge the defendant

and may provide potentially exculpatory information for the defendant.”4

        8.       Defendant Johnson further states that the identity of the confidential

informant should be disclosed “[s]ince the confidential informant was and [sic]

actual party to the transaction in this case, disclosure of his identity is required.” 5

        9.       The State points out that the police officers observed the interactions

of defendant Charles Johnson with Burgos.

        10.      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.” 6

        11.      Here the confidential informant was a party to the controlled drug buy

with Burgos, defendant Charles Johnson’s co-defendant.                                 But the confidential


3
  St. Response, at ¶ 5.
4
  Def. Mot., at ¶ 3.
5
  Id., at ¶ 5.
6
  Butcher v. State, 906 A.2d 798, 802 (Del. 2006) (quoting Roviaro v. United States, 353 U.S. 53, 77 (1957)).
informant was not a party to the alleged transaction between co-defendant Burgos

and defendant Charles Johnson. Moreover, the police officers were witnesses to

the alleged transaction between Burgos and Johnson.                        Nevertheless, it is the

confidential informant who told the police that the heroin purchased by the

confidential informant from Burgos was supplied by defendant Johnson.

Ultimately, after his arrest Johnson admitted that he sold the heroin to Burgos.

        12.      In State v. Flowers, the Superior Court described four situations in

which the issue of disclosing the 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.7

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.8                        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.”9

        13.      The Court rejects defendant Johnson’s argument that “the illegal

transaction between the informant and Burgos is the sole basis for the drug-related



7
  State v. Flowers, 316 A.2d 564, 567 (Del. Super. 1973).
8
  Id.
9
  Butcher, 906 A.2d at 803.
charges against Johnson.”10 This is simply not accurate because the state relies

upon other evidence, especially the surveillance of the interaction between Burgos

and Johnson, as well as defendant Johnson’s own actions when he was followed

when the police attempted a vehicle stop and his own admissions to police.

            14.      The Court finds that defendant Johnson has not met his burden of

proving how disclosure of the identity of the confidential informant would

materially aid his defense. The confidential informant, at best, has only minimal

information about how Burgos implicated Johnson as Burgos’ supplier. Because

the other evidence gathered independently by the State significantly outweighs this

single piece of evidence supplied by the confidential informant, the Defendant has

not shown that disclosure of the identity of the confidential informant would

materially aid his defense. For example, there was no interaction between the

confidential informant and defendant Johnson. And Burgos can be challenged

directly regarding whether or not Burgos implicated defendant Johnson as Burgos’

supplier.




10
     Def. Ltr. Reply, at ¶ 2.
      15.    The Court finds that defendant Johnson has met the threshold showing

that disclosure of the identity of the confidential informant will materially aid his

defense.

      NOW, THEREFORE, this 13th day of August, 2014, the Defendant’s

Motion to Disclose Identity of a Confidential Informant is hereby DENIED.


      IT IS SO ORDERED.



                                       Andrea L. Rocanelli
                                       _____         ________________
                                       The Honorable Andrea L. Rocanelli
