State of Delaware v. Van Vliet.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR KENT COUNTY
STATE OF DELAWARE )
)
v. ) I.D. No. 140200979
)
THOMAS N. VAN VLIET, )
Defendant. )
ORDER
Upon Defendant’s Motion to Disclose Identity of a Confidential
Informant - Denied
Defendant Thomas N. Van Vliet 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 and after an in camera hearing, 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. 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
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would materially aid the defense." 1
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.” 2
3. In State v. Flowers, the Superior Court described the following 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. The Court noted that while the privilege is generally protected in the
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first scenario and disclosure is generally required in the fourth scenario, there is no
general rule for the second and third scenarios.4 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.” 5
1
McNair v. State, 2008 WL 199831, at *1(Del. Jan. 23, 2008)(internal quotation marks
and citations omitted).
2
Butcher v. State, 906 A.2d 798, 802 (Del. 2006)(quoting Roviaro v. United States, 353
U.S. 53, 77 (1957)).
3
State v. Flowers, 316 A.2d 564, 567 (Del. Super. 1973).
4
Id.
5
Butcher, 906 A.2d at 803.
2
4. On July 28, 2015, the Court conducted an in camera hearing
regarding this issue. Prior to the hearing, the Court reviewed questions proferred
by the Defendant and the State and posed in the hearing some of those questions in
addition to the Court’s own questions.
5. The Court finds that the site of the alleged crime in this case was
1658 Woodyard Road, Harrington, Delaware. The indictment alleges the criminal
activity occurred on June 11, 2014. The confidential informant in this case took a
video of allegedly illegal activity at the site well in advance of the execution of a
search warrant at the location. This video, and certain statements allegedly made
by occupants at the crime site were relayed to the police, and were used for the
purposes of formulating probable cause for a search. Furthermore, the
confidential informant testified that he witnessed criminal activity at that location
and recorded such activity by video.
6. Th confidential informant’s involvement in the transactions at issue falls
under the first and second Flowers scenarios.6 Namely, the informer was used to
establish probable cause and he also witnessed criminal activity at the site at issue.
After carefully questioning the confidential informant, however, the Court finds
that the informant’s testimony would not be material to the defense. Accordingly,
6
See Flowers, 3156 A.2d at 567.
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disclosure of the confidential informant’s identity is not warranted pursuant to
Flowers v. State.
NOW, THEREFORE, this 29th day of July, 2015, the Defendant’s Motion to
Disclose Identity of a Confidential Informant is hereby DENIED.
IT IS SO ORDERED.
/s/ Jeffrey J Clark
Judge
cc: Lindsay A. Taylor, Esquire
Andre M. Beauregard, Esquire
Prothonotary
File
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