State v. Zenquis

• Decision Date: 29 October 1991
• Citation: 251 N.J.Super. 358,598 A.2d 245
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Luis D. ZENQUIS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 358

251 N.J.Super. 358

598 A.2d 245

STATE of New Jersey, Plaintiff-Respondent, v. Luis D. ZENQUIS, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Oct. 8, 1991.

Decided Oct. 29, 1991.

Steven J. Fram, designated counsel, Haddonfield, for defendant-appellant (Wilfredo Caraballo, Public Defender, Newark, attorney; Steven J. Fram, Haddonfield, of counsel and on the brief).

Mark E. Bailey, Deputy Atty. Gen., for plaintiff-respondent (Robert J. Del Tufo, Atty. Gen., attorney; Mark E. Bailey, of counsel and on the letter-brief).

Before Judges ANTELL, LONG and BAIME.

The opinion of the court was delivered by

BAIME, J.A.D.

Defendant was convicted of distribution of heroin ( N.J.S.A. 2C:35-5b(3)). The State's principal evidence consisted of the testimony of a police officer who allegedly witnessed the transaction in the course of his surveillance of a "high crime" area. Prior to trial, the prosecutor obtained an order barring the defense from cross-examining the officer concerning the vantage point from which he allegedly observed the sale of the drug. Under the order, defense counsel was precluded from questioning the officer concerning the height of the location, its nature and character, its direction, and the angle from which his observations were made. The only testimony allowed to be elicited at trial concerning the officer's ability to observe the incident was that he was inside an undisclosed building some 50 to 75 feet from the defendant when the sale occurred. We hold that the pretrial order deprived defendant of his sixth amendment right to confrontation.

I.

The State's chief witness at trial was Michael Mihalik, a member of the Trenton Police Department. Officer Mihalik testified that at approximately 2:00 p.m. on June 1, 1988, he embarked upon a surveillance of the corner of Stockton and Academy Streets, an area known for its drug activity. It was a "clear day" and Officer Mihalik had an "unobstructed" view of the area. The officer related that he had taken binoculars with him but found them unnecessary in light of his close proximity to the corner.

During his surveillance, Officer Mihalik observed three people approach Rafael Fernandez. Fernandez referred these individuals to defendant, who was standing nearby. No arrests were made because the officer was unable to determine whether drugs were sold. At 2:40 p.m., Officer Mihalik observed a black woman, later identified as Joanne Carroll, approach Fernandez. Fernandez gestured toward defendant. Defendant then accompanied Carroll to a vacant lot across the street. Officer Mihalik saw Carroll give defendant an undetermined amount of money in exchange for a small package. The officer alerted several policemen who arrested Carroll a few blocks from the scene. A search of her clothing revealed a small quantity of heroin.

After the alleged sale, Officer Mihalik observed defendant cross the street and hand Fernandez an undetermined amount of money. Fernandez ran into a nearby building and returned several minutes later. Both defendant and Fernandez were then apprehended. Neither drugs nor money were found on defendant. A search of Fernandez's pocket disclosed $250 in cash.

Defendant elected to testify. He admitted that he had engaged in conversation with Fernandez, who he knew resided in the area. Defendant denied any contact with Carroll.

It is against this factual backdrop that we consider the issues presented.

II.

We first address questions concerning the procedure utilized by the Law Division in deciding the State's motion. Prior to trial, the State applied for an order barring the defense from questioning Officer Mihalik concerning the vantage point of his surveillance. Pursuant to Evid.R. 8, a hearing was conducted in open court in the presence of defendant and his attorney. Officer Mihalik testified under oath that he observed the drug transaction from a distance of 50 to 75 feet. However, the officer refused to disclose which side of the street he was on, the level or height of the location, its direction, whether it was a private residence, a business, or an abandoned building, and the angle from which his observations were made. The officer testified that disclosure of the location could possibly result in reprisals. He also recounted that the police continued to use the location for drug surveillance purposes.

The court then conducted an in camera hearing from which both defendant and his attorney were excluded. We need not recount in detail what occurred at the hearing. It is enough to say that the exact location of the officer's vantage point was described at length. In addition, the witness repeated his concern that disclosure of the location might result in reprisals and would impair future investigations.

After the in camera hearing, the proceedings continued in open court. Following the arguments of counsel, the trial court entered the order barring the defense from cross-examining Officer Mihalik concerning the location from which he allegedly observed the drug transaction.

We reject defendant's argument that he was denied his sixth amendment right of confrontation when he and his attorney were excluded from the in camera hearing. In the context of the limited nature of the hearing and the societal interests sought to be vindicated, the exclusion of the defense did no real violence to the constitutional values underlying the confrontation clause.

Of course, we recognize that a defendant has a fundamental right to be present at every critical stage of a trial. See, e.g., State v. Trent, 157 N.J.Super. 231, 241, 384 A.2d 888 (App.Div.1978), rev'd on other grounds, 79 N.J. 251, 398 A.2d 1271 (1979); R. 3:16. Though confrontation means more than being allowed to confront the witness physically, the opportunity to meet the accuser "face to face" before the trier of fact forms the core of the values upon which the confrontation clause rests. See Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597, 606 (1980); Mattox v. United States, 156 U.S. 237, 242, 15 S.Ct. 337, 242, 39 L.Ed. 409, 410-11 (1895). Physical presence of the defendant enhances the reliability of the fact-finding process and promotes society's interest in "having the accused and the accuser engage in open and even contest in a public trial." Lee v. Illinois, 476 U.S. 530, 540, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514, 525 (1986).

This much conceded, the right of confrontation is not absolute. The right of the accused to be present must be anchored to the reason for its existence. The right to meet one's accuser face to face is not guaranteed "when presence would be useless, or the benefit but a shadow." Snyder v. Massachusetts, 291 U.S. 97, 106-07, 54 S.Ct. 330, 332-33, 78 L.Ed. 674, 678 (1934). The right of confrontation and due process require that a defendant be allowed to be present to the extent that a fair and impartial hearing would be impaired in his absence. Id. at 108, 54 S.Ct. at 333, 78 L.Ed. at 679. It has thus been said that "a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631, 647 (1987).

Within this analytical framework, we must look to the nature of the hearing to determine whether a defendant has the right to be present. The object of the hearing in this case was to determine whether Officer Mihalik's surveillance point was to be accorded confidentiality. In State v. Williams, 239 N.J.Super. 620, 571 A.2d 1358 (App.Div.1990) and State v. Crudup, 176 N.J.Super. 215, 422 A.2d 790 (App.Div.1980), we analogized the issue of the confidentiality of a surveillance site to the well known "informant's privilege." We said that the purpose of both privileges "is to further the public interest in effective law enforcement." State v. Williams, 239 N.J.Super. at 627, 571 A.2d 1358. By preserving the confidentiality of a surveillance point, innocent persons are protected against reprisals, and ongoing and future investigations are free to take their course. Ibid. However, these law enforcement interests must be balanced against the defendant's right to contest the State's charges. Id. at 631, 571 A.2d 1358. We explained that a defendant seeking to learn the location of a police surveillance post should ordinarily show that he or she needs the evidence to conduct his or her defense and that there are no adequate alternative means of "getting at the same point." Ibid. The degree of handicap established by the defendant must then be weighed by the trial court against the policies underlying the privilege. Ibid.

In Crudup, we held that a hearing should be conducted to ensure a proper weighing of the appropriate factors. At the hearing, the trial judge must seek to accommodate the competing interests of the defendant and the State. 176 N.J.Super. at 220, 422 A.2d 790. Specifically,

[T]he trial judge must determine the importance of disclosure in the particular case to counsel's ability to conduct an effective cross-examination on the witness' ability to perceive. The necessity for disclosure must then be weighed against the consequences of revealing the vantage point.... If the vantage point is in a private home or a place of business, real potential for reprisal against the owner may weigh against disclosure. If maintenance of secrecy is necessary to protect ongoing investigations, this must be considered; if the site is no longer used or useful, other considerations could control.

Ibid.

We conclude that defendant's constitutional rights were not violated by his exclusion from the hearing. The purpose of the hearing was to apprise the court of the location from which the surveillance took place and to identify the law enforcement interests that allegedly required protection. Although the...