State v. Darden
| Decision Date | 07 March 2002 |
| Docket Number | No. 70586-1.,70586-1. |
| Citation | 145 Wash.2d 612,41 P.3d 1189 |
| Parties | STATE of Washington, Respondent, v. Clarence DARDEN, Petitioner. |
| Court | Washington Supreme Court |
Nielsen, Broman & Koch, Dana M. Nelson, Seattle, for Petitioner.
Norm Maleng, King County Prosecutor, Ann Marie Summers, Deputy, Daniel Jason Clark, Deputy, Seattle, for Respondent.
The question is whether a criminal defendant's right to crossexamine adverse witnesses is trumped by the State's interest to avoid disclosure of a secret law enforcement surveillance location.
The facts arise out of a trial for possession of a controlled substance with the intent to deliver, during which the trial court prohibited the defendant from cross-examining a surveillance officer on the specific location of his observation post. We hold a defendant's confrontation right to challenge the accuracy and veracity of a key witness for the State triumphs over the State's asserted interest to not reveal the precise location of an observation post. In so doing, we limit the compelling-state-interest test from State v. Hudlow to the circumstances for which it was crafted, prevention of the introduction of prejudicial evidence at trial. 99 Wash.2d 1, 659 P.2d 514 (1983). We also decline to adopt a new evidentiary privilege encompassing surveillance locations, as such a privilege has not heretofore been recognized under either Washington statute or Washington common law.
In the spring of 1998 Clarence Darden was arrested for possession of a controlled substance with the intent to deliver. His arrest was the result of a so-called "see-pop" operation conducted by the Seattle Police Department. A see-pop operation is proactive, with an emphasis on narcotics, using a fixed surveillance post and one or more arrest teams at street level.
The prosecution's first, and most important, witness at Darden's trial was Sgt. Vandergiessen, the surveillance officer during the operation that led to Darden's arrest. During his direct examination Sgt. Vandergiessen described the general location of his surveillance post, and drew a map of the area on which he indicated his general location by marking it with an "X." He also marked the street corner he had been observing, describing the distance between his surveillance post and the corner as being a little over half a block. Sgt. Vandergiessen specified his observation post was in a fixed position, and that it was outside and elevated but refused to be more specific, referring only in general terms to the safety of the location.
Sgt. Vandergiessen's direct examination also covered the conditions under which he claimed to have observed various activities at the street corner, including drug transactions involving Darden. According to Sgt. Vandergiessen he was conducting his surveillance using 10×40 binoculars, visibility was clear, and although it was nighttime the lighting at the corner was quite good because of street lamps and light from surrounding business. He also claimed there were no obstructions, not even windows, between the surveillance post and the corner.
When the examination moved to what Sgt. Vandergiessen had seen during the see-pop operation he testified he had been observing six people, including Darden, that night. He claimed he was able to distinguish Darden from the others because Darden wore a dark knit cap and a parka with an orange triangle on the left chest and distinctive white lettering. He testified he witnessed Darden engage in three separate "exchanges" with unidentified third persons, and that he saw some kind of white wrapping in the palm of Darden's hand during each of these exchanges. He also claimed he saw Darden take something out of the wrapping and give it to the purported "customer." Although he acknowledged he could not see what it was Darden took out of the wrapping, Sgt. Vandergiessen testified he saw what appeared to be rock cocaine in the palm of the hands of the purported customer after each exchange. He also testified he saw money in Darden's hands after one of those exchanges.
After observing Darden for approximately an hour, Sgt. Vandergiessen called in the arrest team. But before the officers could arrive, Darden strolled into a nearby bus shelter where others were already gathered. Sgt. Vandergiessen admitted he could not see inside the bus shelter from his observation post. When the arrest team arrived they therefore had Darden and the others in the bus shelter step outside so that Sgt. Vandergiessen could identify Darden. Sgt. Vandergiessen's description of Darden was the only means by which the arrest team identified Darden as the person to be arrested. After this identification Darden was arrested and brought to the precinct.
At the precinct Darden was strip searched, during which a white wrapping fell from Darden's jacket arm to the floor. Sgt. Vandergiessen testified the wrapping on the precinct floor was consistent with the one he saw in Darden's hands on the street. The wrapping held a content later established to be 1.74 grams of cocaine. Darden also had $79 in his pants pocket.
On cross-examination defense counsel sought to independently verify what Sgt. Vandergiessen could and could not see by discovering the precise location of the observation post. When counsel asked Sgt. Vandergiessen how many stories above street level he was when he saw Darden engage in the drug transactions, the examination proceeded as follows:
Report of Proceedings (RP) (Apr. 8, 1999) at 33. This exchange is the heart of Darden's appeal.
Throughout the remainder of his cross-examination of Sgt. Vandergiessen, defense counsel was limited to asking general questions about Sgt. Vandergiessen's ability to see the alleged drug transactions involving Darden. In spite of these limitations, this cross-examination revealed another person in the immediate area had worn a jacket identical to the one worn by Darden and that this person actually was in the bus shelter with Darden when the arrest team arrived. According to Sgt. Vandergiessen, his only means of telling the two apart was the shoes the two were wearing.
The prosecution called only two other witnesses. Following Sgt. Vandergiessen was a member of the arrest team that had arrested Darden. Last, the State called a forensic scientist who established the compound found on Darden after his arrest was cocaine. Of the three, only Sgt. Vandergiessen had seen the drug transactions Darden allegedly conducted.
After conviction of possession of a controlled substance with the intent to deliver Darden appealed, claiming the trial court violated his confrontation rights by prohibiting him from cross-examining Sgt. Vandergiessen on his specific location. State v. Darden, 103 Wash.App. 368, 369, 12 P.3d 650 (2000). On appeal the State initially conceded the trial court abused its discretion, but the Court of Appeals summarily rejected this concession instead concluding Sgt. Vandergiessen's precise location was not relevant. Id. It then affirmed Darden's conviction, causing him to seek discretionary review in this court.
We granted his petition to determine whether a criminal defendant's right to cross-examine adverse witnesses may be limited to avoid disclosure of a secret law enforcement surveillance location, and we hold that it may not.
Although the dispositive issue before us concerns the confrontation clause, ultimately we are asked to review the trial court's ruling on the admissibility of Sgt. Vandergiessen's surveillance location. A trial court's ruling on the admissibility of evidence is reviewed for abuse of discretion. State v. Powell, 126 Wash.2d 244, 258, 893 P.2d 615 (1995); State v. Luvene, 127 Wash.2d 690, 706-07, 903 P.2d 960 (1995). Abuse exists when the trial court's exercise of discretion is "manifestly unreasonable or based upon untenable grounds or reasons." Powell, 126 Wash.2d at 258,893 P.2d 615. Similarly, a court's limitation of the scope of cross-examination will not be disturbed unless it is the result of manifest abuse of discretion. State v. Campbell, 103 Wash.2d 1, 20, 691 P.2d 929 (1984). However, the more essential the witness is to the prosecution's case, the more latitude the defense should be given to explore fundamental elements such as motive, bias, credibility, or foundational matters. See State v. Dickenson, 48 Wash.App. 457, 466, 740 P.2d 312 (1987)
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Darden argues the trial court violated his confrontation rights when it prevented him from discovering Sgt. Vandergiessen's precise surveillance location. According to Darden, because his conviction for possession with intent to deliver was utterly dependent on Sgt. Vandergiessen's eyewitness testimony, the location of the observation post was undeniably relevant. Absent Sgt. Vandergiessen's testimony there was no proof of Darden's intent to deliver. Precluding cross-examination on this point, the trial court effectively denied Darden the only means available to contest the charge against him.
The State responds Sgt. Vandergiessen testified in detail about what he observed, and the conditions under which he did so, and argues Darden has failed to show disclosure of additional details regarding Sgt. Vandergiessen's location was of even...
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§ 42.03 Surveillance Location Privilege
...the location.); Commonwealth v. Lugo, 548 N.E.2d 1263 (Mass. 1990); State v. Garcia, 618 A.2d 326 (N.J. 1993).[36] See State v. Darden, 41 P.3d 1189, 1197 (Wash. 2002) ("[W]e stand without authority from Washington statutes or common law to recognize a surveillance location...
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§ 42.03 SURVEILLANCE LOCATION PRIVILEGE
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