Carter v. US

• Decision Date: 18 September 1992
• Docket Number: No. 90-CF-318.,90-CF-318.
• Citation: 614 A.2d 913
• Parties: Robert S. CARTER, a/k/a Robert S. Jones, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

614 A.2d 913

Robert S. CARTER, a/k/a Robert S. Jones, Appellant, v. UNITED STATES, Appellee.

No. 90-CF-318.

District of Columbia Court of Appeals.

Argued May 8, 1992.

Decided September 18, 1992.

Richard Seligman, appointed by this court, for appellant.

William M. Sullivan, Jr., Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Thomas J. Tourish, Jr., and Joyce Jiyoung Bang, Asst. U.S. Attys., were on the brief, for appellee.

Before ROGERS, Chief Judge, and TERRY and SULLIVAN, Associate Judges.

TERRY, Associate Judge:

The government has a qualified privilege not to reveal the exact location of a concealed surveillance post used by police officers in their continuing battle against drug traffic. In this case, as in the past, the government refused to reveal the location of one such observation post. Appellant challenges the trial court's refusal to compel its disclosure. Since we find no error in the trial court's decision, and since we see no merit in appellant's other arguments, we affirm his conviction of distribution of heroin.

I

One afternoon in August 1989, Officer Ralph Nitz of the Metropolitan Police was assigned to investigate illegal narcotics activity in and around the 1900 block of Ninth Street, N.W. With the aid of binoculars, Officer Nitz was watching for suspected drug sales from a concealed observation post, from which he could see the 1800 and 1900 blocks of Ninth Street as well as the 800 and 900 blocks of T Street, N.W. Nitz testified that the observation post was on the second floor of a building, that he was looking down at the street through a window made of untinted glass, and that his view was not blocked by trees.

From his observation post, Officer Nitz caught sight of appellant Carter on the sidewalk on the east side of Ninth Street, just south of the building at number 1909. Nitz also saw another man, Michael Day, seated on a banister in front of 1909 Ninth Street. The officer watched as a third man, Carlos Dorsey, approached Carter and spoke with him briefly. Carter and Dorsey then walked over to where Day was sitting. After Carter said something to Day, Day gave him a small object, which he in turn handed to Dorsey. Officer Nitz then saw Dorsey give appellant a sum of money and walk away.

Nitz radioed descriptions of Carter, Day, and Dorsey to other police officers in the area who were working as an arrest team. Almost immediately the arrest team stopped and arrested Carter and Day within sight of Officer Nitz, who promptly identified the two men (apparently also by radio) as the ones he had seen earlier. The arrest team then stopped Dorsey, recovered from his person a small packet of white powder,¹ and placed him under arrest. Officer Nitz later identified Dorsey as the man he had previously seen approach Carter and then give him money in exchange for an object.²

Carter and Day were jointly charged in one count of a six-count indictment with distribution of heroin.³ That count was severed from the other five, and after a jury trial on that count alone, both defendants were found guilty as charged. From the judgment of conviction, Carter brings this appeal.⁴

II

Carter makes three arguments on appeal. First, he contends that the trial court erred in failing to hold an in camera hearing and ultimately to force the government to reveal the location of the observation post from which Officer Nitz viewed the transaction at issue. Carter's argument about the observation post is defeated by this court's recent decision in Anderson v. United States, 607 A.2d 490 (D.C.1992), which outlines the showing of need required to defeat the government's privilege not to reveal the post's location. We hold that Carter's showing at trial did not meet the requirements of Anderson.

Carter also claims that the prosecutor's cross-examination of Carlos Dorsey, the single defense witness, was improper, and that as a result his conviction should be reversed. Assuming (without deciding) that some of the prosecutor's questioning of Mr. Dorsey was improper, we do not find it so prejudicial as to require reversal. Finally, Carter asserts that the trial court committed plain error by allowing Officer Nitz to state his opinion that he had witnessed a drug transaction from the observation post. This court has held, however, that a fact witness may express an opinion based on his or her personal observations if that opinion will be helpful to the jury; consequently, we find no plain error.

A. Location of the Observation Post

In the District of Columbia it is well established that "the government has a qualified privilege to withhold the exact location of an observation post." Thompson v. United States, 472 A.2d 899, 900 (D.C.1984); see Jenkins v. United States, 541 A.2d 1269, 1272 (D.C.1988); Hicks v. United States, 431 A.2d 18, 19 (D.C.1981); United States v. Harley, 221 U.S.App.D.C. 69, 71, 682 F.2d 1018, 1020 (1982). That privilege, however, is not absolute. A defendant can force the government to divulge the exact location of an observation post upon a sufficient showing of need. Our recent Anderson opinion described that showing:

Under our precedents, the determination whether disclosure of a concealed observation post shall be required proceeds in two stages. First, the defendant must make a threshold showing of need for the information; he must establish "that he needs the evidence to conduct his defense and that there are no alternative means of getting at the same point." ... The defendant's burden in making his initial showing of need is ... significantly more modest than his second-stage burden of establishing that, in spite of the possible peril to officers and civilians and the potential curtailment of a legitimate means of law enforcement arising in the particular case, disclosure should nevertheless be required.

Anderson v. United States, supra, 607 A.2d at 496 (citations omitted).

We rejected in Anderson the notion that a defendant could make the requisite showing of need "simply by showing that there was some `vantage point in the relevant area that would not permit a clear view of his activities.'" Id. (citations omitted). The standard we set forth in Anderson calls for more:

We ... hold that the defendant is obliged to show not only that there are locations in the area from which the view is impaired or obstructed, but also that there is some reason to believe that the officer was making his observations from such a location. Without some reason so to believe, the existence of obstructed locations is logically irrelevant.

Id. at 497. Thus Anderson requires a defendant seeking to compel disclosure of the location of a surveillance post to show not only that some possible observation posts were obstructed, but also that there is reason to believe that the observing officer was actually situated in such a place.

Appellant Carter did make an effort to show that Officer Nitz had conducted his surveillance from an observation post from which the view was obstructed. Defense counsel sent an investigator to the scene at least twice. The investigator and counsel came up with a theory of where the observation post was located, and counsel argued that the view from that spot was obstructed. Despite this detective work, the trial court did not accept counsel's hypothesis that Officer Nitz had seen the drug transaction from an impaired vantage point; on the contrary, the court characterized counsel's proffer as to the location of the post as "very speculative." The court credited instead Officer Nitz's consistent and unambiguous testimony that he could see the transaction clearly and without obstruction.

Carter asserts that requiring a defendant to produce evidence to discredit the officer's assertion about his observations creates a heavy burden. But that heavy burden is exactly what we intended in Anderson:

If ... the officer unambiguously testifies that he was not in any of the impaired locations, and if his testimony to that effect is credited by the court, then it will ordinarily be difficult if not impossible, absent other indicia of unreliability, for the accused to sustain his threshold burden, for there will be no reason for the court to believe that the officer's view was obstructed.

607 A.2d at 497 (footnote omitted). Thus Anderson anticipated the situation presented in the case at bar. Officer Nitz testified that he could see the drug transaction clearly, and Carter did not present any evidence which cast doubt on that testimony. Since the defense failed to demonstrate that the location from which Officer Nitz watched Carter's dealings with Messrs. Day and Dorsey had an obstructed view, we hold that Carter's showing did not meet the Anderson standard.⁵

Carter also argues that the trial court erred by not conducting an in camera hearing about the location of the surveillance post.⁶ We have recognized that the trial court has discretion to conduct an in camera hearing in the course of deciding whether to require disclosure. See Thompson v. United States, supra, 472 A.2d at 901 (trial court was "well within its discretion in refusing to entertain" defense counsel's request for an in camera hearing); Hicks v. United States, supra, 431 A.2d at 22 n. 2. The Supreme Court, in another context, has said that a trial court "should require a showing of a factual basis adequate to support a good faith belief by a reasonable person ... that in camera review of the materials may reveal evidence to establish the claim...." United States v. Zolin, 491 U.S. 554, 572, 109 S.Ct. 2619, 2631, 105 L.Ed.2d 469 (1989) (citation and internal quotation marks omitted). We apply this principle here and hold that the trial court "should require a showing of a factual basis adequate to support" the request for an in camera hearing. The trial court in this case credited Officer Nitz's testimony that his view of the relevant transaction from the observation post was not...