Submitted: November 29, 2018 
Below: Superior Court of the State of Delaware ID. No.
VALIHURA, VAUGHN, and SEITZ, Justices.
T. Vaughn, Jr. Justice.
consideration of the parties' briefs and the record on
appeal, it appears to the Court that:
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 counsel at
trial in the Superior Court, but he waived his right to
counsel and is now representing himself on direct appeal.
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
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 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.
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.
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 Flowers 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 in misconduct. Sixth, he
contends that the trial judge was biased. Finally, he
contends that the investigating officers engaged in
misconduct and committed perjury.
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.
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 the CI for abuse of
discretion. An abuse of discretion occurs if the trial
court's decision is based on unreasonable or capricious
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."The defense has the burden of establishing,
beyond mere speculation, that the CI's testimony would
materially aid the defense.
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. In the first situation, the State's
privilege is protected. In the last situation, the State must
disclose the CI's identity. In the second and third
situations, there is no general rule of ...