People v. Palmer

• Decision Date: 21 November 2017
• Docket Number: No. 1–15–1253,1–15–1253
• Citation: 92 N.E.3d 483,2017 IL App (1st) 151253
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Ronald PALMER, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 151253

92 N.E.3d 483

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Ronald PALMER, Defendant–Appellant.

No. 1–15–1253

Appellate Court of Illinois, First District, Second Division.

November 21, 2017

Michael J. Pelletier, Patricia Mysza, and Mario Kladis, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Joseph Alexander, and Michelle Corda, Assistant State's Attorneys, of counsel), for the People.

JUSTICE MASON delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Ronald Palmer was convicted of possession of a controlled substance with intent to deliver and sentenced to six years in prison. On appeal, Palmer contends that his conviction should be reversed because the trial court erred in finding that the sole testifying police officer's surveillance location was privileged. Palmer argues that the "surveillance location privilege" should be rejected as a matter of law; asserts that even if the privilege is valid, disclosure was merited here because the State's case turned exclusively on the surveillance officer's uncorroborated testimony; and contends that application of the privilege in his case was not harmless. In the alternative, Palmer contends that the mittimus should be corrected to reflect the accurate name and class of the offense of which he was convicted.

¶ 2 Because we agree that the surveillance officer's location should have been disclosed and that the lack of disclosure deprived Palmer of a fair trial, we reverse and remand for a new trial.

¶ 3 Palmer's conviction arose from the events of May 11, 2013. Following his arrest, Palmer was charged by information with one count of possession with intent to deliver between 1 and 15 grams of heroin within 1000 feet of a church. Before trial, the State amended the charge to strike the element of being within 1000 feet of a church. Also before trial, a codefendant, Marc Hardiman, pled guilty to one count of possession of less than 15 grams of heroin in exchange for a sentence of 18 months in prison.

¶ 4 At trial, Chicago police officer Paul Zogg, a 15–year veteran of the police force, testified that on May 11, 2013, he and his partner, Officer J. Rojas, were working as surveillance officers with a narcotics team in the area of 4037 West Jackson Boulevard. Zogg, who was familiar with the neighborhood from having conducted "dozens and dozens of surveillances" in the area over the past 11 years, explained that the building at the given address was an abandoned two-flat. About 11 p.m., Zogg saw Palmer on the porch and steps area of the two-flat. Zogg was approximately 40 yards from Palmer, using 10 power binoculars. Although it was dark outside, a streetlight immediately in front of the two-flat provided light. Palmer was wearing a gray jacket, gray hoodie, blue jeans, and light green shoes.

¶ 5 Zogg testified that during his surveillance, three different men approached Palmer on separate occasions: a Hispanic man in a tan jacket, a black man in a black jacket, and a different black man in a black jacket. On each occasion, the customer gave United States currency to Palmer. Palmer would then place the money in his right jacket pocket, pull out a yellow strip of tape from his left jacket pocket, and tear off and tender to the customer items that had been attached to the strip. Zogg could not tell how much money Palmer received.

¶ 6 After the third transaction, Zogg radioed the enforcement officers on his team, broke surveillance, and approached Palmer and his third customer, who was later determined to be codefendant Hardiman. Palmer and Hardiman looked in Zogg's direction and fled into the two-flat. Just before Palmer entered the building, he dropped the yellow strip at the top of the steps. Zogg, who was about 10 yards behind Palmer at that point, picked up the yellow strip. He, Officer Rojas, and the enforcement officers then pursued Palmer inside the building. Rojas detained Palmer in the vestibule area and Zogg detained Hardiman in the rear of the building. Once Palmer was in custody, Rojas conducted a custodial search of his person in Zogg's presence. Rojas recovered $20 in multiple denominations from Palmer's right jacket pocket. Zogg testified that the item he had recovered at the top of the steps consisted of two yellow strips holding 16 clear zip baggies, each with a "blue lady" design on them and each containing suspect heroin. Zogg brought the baggies to the police station, where they were inventoried, heat-sealed, and placed in a narcotics vault.

¶ 7 On cross-examination, Zogg testified that his surveillance of Palmer lasted less than 10 minutes, that he periodically radioed enforcement officers during the surveillance, and that less than five minutes passed between the time he broke surveillance and Palmer was detained. When asked how Palmer could have engaged in three narcotics transactions but only have $20 on him, Zogg explained that the recovered items were "nickel hit bags of heroin," meaning they sold for $5 each. He also explained that the cash recovered from Palmer was not inventoried because, pursuant to department policy, Palmer was allowed to retain the money.

¶ 8 Defense counsel then questioned Zogg about his surveillance location as follows:

"Q. * * * You stated that you had observed my client for, approximately, ten minutes; and that you were 20 to 40 feet away?

A. No, I was about 40 yards away, Counsel.

Q. I'm sorry, 40 yards away?

A. Correct.

Q. And you had to use binoculars?

A. I do, correct.

Q. And were you elevated or on foot?

A. Street level.

Q. Were you in a vehicle or outside of a vehicle?

A. Outside of a vehicle.

Q. Were you in plain clothes or uniform?

A. Uniform, with cover clothing over the top of it, that being a camouflage jacket.

Q. Were you working alone or with a partner?

A. Surveillance officer was Rojas.

Q. And you said you were on the street level, correct?

A. That's correct."

¶ 9 Following this exchange, Zogg testified that he was not able to hear any conversation between Palmer and the men who approached him and could not see what denominations of bills the men gave Palmer. Zogg acknowledged that four people were inside the two-flat when the police entered, that the narcotics the police recovered were inventoried under four different numbers, and that only the set inventoried with the number ending "2929" was "assigned to" Palmer.

¶ 10 Zogg further testified on cross-examination that during his surveillance, (i) he had a front view of Palmer, (ii) Officer Rojas was "in the rough vicinity" of his own surveillance location and (iii) they were observing Palmer from the same direction. When defense counsel asked where exactly Zogg had been located, the prosecutor objected, arguing against disclosure due to officer safety. Defense counsel responded that concerns for officer safety did not apply, as Zogg had stated he was on street level, in uniform, and using a radio, which indicated this was not an undercover situation. The trial court had Zogg leave the room and then addressed the attorneys regarding officer safety. The prosecutor answered that he believed the surveillance location "may be a spot that they still use," and suggested that the court have an in camera conversation with the officer on that topic. Defense counsel responded that based on Zogg's testimony that he was at street level and in uniform, the location could not be secret since "anybody in the neighborhood who walks by is going to see the cops."

¶ 11 The trial court decided to hold an "in camera review of the information" in the presence of the prosecutor and defense counsel. In chambers, the prosecutor questioned Zogg as follows:

"Q. Officer, were you outside your—were you outside of your vehicle?

A. That's correct.

Q. And were you on the street?

A. No.

Q. Or were you in a building?

A. Neither.

Q. Where were you?

A. At—there's a vacant property there, with ample vegetation.

Q. I'm sorry, I didn't hear the—

A. Vacant lot with a lot of vegetation."

¶ 12 At this point, the trial court stopped the questioning and went off record. When the court came back on record, it stated, "Based on the representation that it was a spot that they use continually, and revealing it will compromise officer safety—." Defense counsel interrupted, arguing that this was not a case involving the police using private property and thus compromising the safety of the property's owner. Defense counsel asserted that the exact surveillance location was relevant to cross-examination because it had to do with the view Zogg had of Palmer and Zogg's ability "to see what he says he saw" through the vegetation he was using to conceal himself. The prosecutor responded that Zogg had been clear that he was able to see over the vegetation with binoculars and had given "as many details as necessary."

The trial court made the following decision:

"All right. Considering the arguments of counsel, together with the elicited information as to the exact location, I do think you are able to elicit the issue you want to on cross-examination, without revealing the exact location. * * * So, over the State's—I will permit you to ask questions that will not reveal the exact location. It will not be revealed; but certainly, you may challenge, based on the in camera , off-the-record questioning process, facts that address the issues you want to raise on cross-examination, okay?"

¶ 13 In open court, the trial court reiterated that its ruling was that the surveillance location would not be revealed, but defense counsel would be permitted to inquire as to other circumstances surrounding the location. Defense counsel then elicited from Zogg that in his surveillance location, he was kneeling and surrounded by bushes, grass, and weeds; that his head was above the shrubs; and that he held binoculars to his face. When counsel asked Zogg whether his view of Palmer was compromised by the bushes and grass,...