Appeal from the Superior Court of the District of Columbia; (Hon. Susan Holmes Winfield, Trial Judge)
Before Steadman and Schwelb, Associate Judges, and Mack, Senior Judge. Opinion for the court by Associate Judge Schwelb. Dissenting opinion by Senior Judge Mack.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: Anderson was convicted by a jury of distribution of cocaine, in violation of D.C. Code § 33-541 (a) (1988). On appeal, he contends that the trial Judge committed reversible error by refusing to require the police officer who was the principal witness for the prosecution to disclose the location of a concealed observation post from which the officer claimed to have seen Anderson make two sales of crack cocaine. Because Anderson failed to show that he "need the evidence to conduct his defense and that there are no adequate alternative means of getting at the same point," United States v. Harley, 221 U.S. App. D.C. 69, 71, 682 F.2d 1018, 1020 (1982), he did not overcome the government's qualified privilege in maintaining the secrecy of surveillance locations. Accordingly, we affirm Anderson's conviction.
The evidence in this case embraces a number of compelling vignettes regarding the way in which the "war on drugs" plays out in some of the neighborhoods of our capital. The Metropolitan Police Department (MPD) had received complaints of unlawful drug traffic in or near a small park and playground in the vicinity of 9th and Westminster Streets in northwest Washington. On April 22, 1988, several members of the MPD, including Officer Phillip Burton, decided to come to the park to check into these complaints and to conduct surveillance of the area to determine if any unlawful activity was afoot. They came, and there was.
Upon arriving in the area, the officers spoke with several individuals in the park. They did so, in Burton's words, because "I wanted to get a closer look at all the various people who were there, and a close look at their faces for future identification." Officer Kenneth Bryson testified that the purpose of this questioning was what could be called a "diversionary tactic. " He said the officers wanted "to let them know we're in the area, not to arouse them or get them out of the area or anything like that, and to allow an observation officer to get somewhere in the area without detection." Although the police ostensibly intended to divert attention from the officer who was to man the observation post, that individual -- Officer Burton -- nevertheless participated in the questioning. One of the young men to whom he spoke was the appellant, Richard Anderson. *fn1
Officer Burton then made his way to the observation post, which was apparently ten to twenty feet from the ground, and "pitch black" inside. There, using binoculars which enabled him to view the park as though it were seven to ten times closer than it actually was, he enjoyed what he said was an unobstructed view of the playground.
If one of the purposes of the police interrogations in the playground was the prophylactic one of deterring unlawful activity, it was not achieved for very long. Officer Burton testified that shortly after his arrival in the observation post, he saw Anderson -- the very individual whom he had encountered under disputed circumstances minutes earlier -- speaking to a man (later identified as Leon Thompson) who had approached Anderson on a blue moped. Anderson soon jogged away, but promptly returned, holding a small object in his right hand. He handed the object to Thompson, who gave Anderson an undisclosed amount of currency in return. Thompson put the object which he had just purchased into a cigarette pack and departed on his moped. Anderson remained on location, apparently counting his money.
Suspecting that he had witnessed a drug sale, Officer Burton notified an arrest team by radio of the events that had just transpired. Officers followed Thompson and eventually surrounded his moped several blocks west of the park. Resorting to a desperate stratagem common to those who are about to be apprehended in possession of suddenly unwanted contraband, Thompson threw a pack of Newport cigarettes under a car which was parked nearby. Officers recovered the cigarette pack and found that it contained a small quantity of what turned out to be crack cocaine. Thompson was arrested, and he eventually entered a plea of guilty to unlawful possession of cocaine.
Meanwhile, back at the park, Anderson was continuing to market his wares. According to Officer Burton, a second apparent customer arrived and had a brief conversation with Anderson. Anderson again sped away, but soon returned with several small objects, which he gave to the man in exchange for currency. The buyer left on foot, and Burton radioed his description to the arrest team; the officers were, however, unable to locate the man. Officer Burton then directed his colleagues to arrest Anderson, whom he described as a black male wearing a green jersey and stone-washed jeans. *fn2 Anderson was promptly taken into custody, and officers recovered $251 from his person.
Anderson testified on his own behalf and called several witnesses. The gravamen of the defense case was that after the officers had hassled Anderson as described above, see note 1, (supra) , he had gone to his home and spent time with a neighbor and some children, and had then returned to the park to meet a photographer. He claimed that he had not sold any drugs and that he was arrested almost immediately after returning to the scene. Anderson and a former girlfriend both testified that the $251 recovered from him belonged to her, and that she had given Anderson the money "for safekeeping" so that the couple could purchase a pair of earrings later that evening. The jurors evidently did not credit the defense version of events, and Anderson was found guilty as charged.
A. The Trial Judge's Rulings.
Anderson's sole claim on appeal is that his opportunity to confront and cross-examine Officer Burton, the principal witness against him, was unfairly and unlawfully impaired because the trial Judge declined to order disclosure of the location of the observation post, *fn3 or even to perform the balancing said to be required by our precedents. In assessing this contention, it is necessary first to explicate the context in which the issue arose.
On direct examination, Officer Burton testified that his observation post was 150 to 180 feet from Anderson's location, that it was a clear day, and that his view of the activity was both unobstructed and enhanced by powerful binoculars. On cross-examination, the following colloquy occurred:
DEFENSE COUNSEL: Now your observation post was on the south side of the street, is that correct?
DEFENSE COUNSEL: May we approach?
THE COURT: No, ask your next question.
DEFENSE COUNSEL: Well, you were in, you were in a building?
PROSECUTOR: Objection, ...