Appeal from the Superior Court of the District of Columbia (CF2-29769-07) (Hon. John M. Mott, Trial Judge)
The opinion of the court was delivered by: Washington, Chief Judge
Before WASHINGTON, Chief Judge, and REID and FISHER, Associate Judges.
Recco Valentin appeals from his convictions on two counts of distribution of cocaine and one count of possession with intent to distribute cocaine, all in violation of D.C. Code § 48-904.01 (a)(1) (2001). Valentin raises two issues on appeal, challenging: (1) the trial court's denial of his motion to compel disclosure of the location of the secret observation post from which officers observed Valentin committing the crimes; and (2) the trial court's failure to require the government to turn over alleged Jencks*fn1 material requested by Valentin. We affirm all three convictions.
In the afternoon on December 28, 2007, Metropolitan Police Officers Jason Ross and Christopher Cartwright, who were in an undisclosed observation post, observed Valentin engage in what the officers believed to be two separate hand-to-hand drug transactions on the 1300 block of Riggs Street, Northwest. First, Valentin appeared to sell drugs to a woman later identified as Jeanette Ware, and second, he appeared to sell drugs to a man later identified as Miguel Quezada. Based on those events, Valentin was convicted by a jury of the three aforementioned charges and now appeals.
Prior to trial, the trial court held a hearing on Valentin's motion to compel the government to disclose the precise location of the observation post. At that hearing, Officer Cartwright testified regarding the two officers' observations. The officers observed Valentin standing in an area known for drug trafficking and then saw Ware enter the block. Ware and Valentin met at the mouth of an alley where Officer Ross saw them exchange items in a hand-to-hand transaction, after which Ware left the block and Ross saw Valentin counting money. Ross put out a broadcast lookout for Ware, who was apprehended nearby; a search of Ware revealed two blue ziplock bags containing cocaine.
After the Valentin-Ware encounter ended, Cartwright saw Quezada enter the block, and Valentin met him at the mouth of the same alley. There, Valentin knelt down near a bush and retrieved something, after which he and Quezada engaged in a hand-to-hand transaction similar to the exchange with Ware. Thereafter, Ross again saw Valentin counting money. One of the officers broadcast a lookout for Quezada, who was arrested nearby in possession of two more blue ziplock bags containing cocaine. Valentin began to leave the block at this time, and Officers Ross and Cartwright put out a broadcast of his description and left the observation post to follow him. After they saw the arrest team apprehend Valentin and identified him as the individual they had observed, Ross and Cartwright returned to the block and retrieved a paper bag from the bush; inside the bag, they found twenty-six blue ziplock bags containing cocaine.
On cross-examination at the hearing, Cartwright testified as to many of the details of the officers' observations but did not disclose the precise address of the observation post. He testified as to the side of the block the officers were on, the side of the block Valentin was on, the distance between the officers and Valentin, the presence of trees and cars on the street, and the fact that the observation post was elevated an undisclosed height above street level. Cartwright also stated that the officers did not use any visual aids and that the post was indoors, requiring the officers to look through a closed glass window to see Valentin. However, their view was not obstructed. Cartwright said that it was "possible" that he briefly lost sight of Valentin at certain times but that he could not go into any more detail since to do so would risk disclosing the location of the observation post. After hearing argument from both sides, the trial court then engaged in an ex parte bench conference with the prosecutor, who disclosed to the trial court the exact location of the observation post and detailed his reasons for opposing disclosure of that location to Valentin. The trial court then denied the motion to compel disclosure of that precise location.
Valentin's primary challenge on appeal is that the trial court abused its discretion by refusing to require the government to disclose the exact location of the observation post from which Cartwright and Ross observed Valentin sell cocaine. Particularly in light of the fact that the trial court reviewed the location in camera, we are satisfied that it did not abuse its discretion, and we therefore deny Valentin's challenge on this issue.
This court and others "long have recognized" an "'informant's privilege,' which allows the government to withhold the identities of persons who furnish information to law enforcement officers about the commission of crimes, as long as confidentiality does not jeopardize the fairness of the proceedings." Hicks v. United States, 431 A.2d 18, 21 (D.C. 1981) (citing, inter alia, Roviaro v. United States, 353 U.S. 53 (1957)). In Hicks, we extended that privilege to permit the government to withhold disclosure of the precise location of secret law enforcement observation posts for a number of reasons:
If an observation location becomes known to the public at large, its value to law enforcement probably will be lost. The revelation, moreover, may jeopardize the lives of police officers and of cooperative occupants of the building. These potential consequences mandate the same qualified testimonial privilege regarding surveillance positions as the protection given to police informants.
Id. The privilege to withhold the location is not absolute, however, and the trial court must balance the competing interests of the government and the defendant in nondisclosure and disclosure, respectively, by engaging in a two-step inquiry. Bueno v. United States, 761 A.2d 856, ...