Harris v. State ( 2018 )

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