Appeal from the Superior Court of the District of Columbia; (Hon. Mildred M. Edwards, Trial Judge)
Before Rogers, Chief Judge, and Terry and Sullivan, Associate Judges.
The opinion of the court was delivered by: Terry
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.
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, *fn1 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. *fn2
Carter and Day were jointly charged in one count of a six-count indictment with distribution of heroin. *fn3 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. *fn4
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 ...