Upon Defendant's Motion to Disclose Identity of a Confidential Informant.
HONORABLE ANDREA L. ROCANELLI
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."
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.
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."
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.
6. The State concedes that the "[confidential informant] advised [the police officers] that Burgos received the heroin from the individuals in the vehicle."
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."
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."
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 ...