Opinion
No. 1-12-1877
02-18-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DUNTAE MANUEL, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 10 CR 16859
Honorable
William H. Hooks,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Simon and Liu concurred in the judgment.
ORDER
¶ 1 Held: Defendant forfeited plain error review of his contentions regarding the trial court's recognition of the State's qualified privilege against disclosure of a surveillance officer's exact point of surveillance and the court's failure to create a record of the in camera hearing with the surveillance officer; mittimus corrected. ¶ 2 Following a bench trial, defendant Duntae Manuel was found guilty of possession of a controlled substance with intent to deliver and sentenced as a Class X offender to six years' imprisonment. On appeal, defendant contends that the trial court violated his constitutional right to confront the witnesses against him by limiting his cross-examination of the narcotics officer regarding his surveillance location. He also contends that the trial court's failure to make a record of the in camera hearing regarding the surveillance location effectively denies him the right to appeal the court's ruling on the issue. Lastly, defendant contends that his mittimus must be amended to reflect the proper offense for which he was convicted. ¶ 3 The evidence adduced at trial showed that at 7:20 p.m., on August 18, 2011, defendant was arrested after a narcotics surveillance officer observed him engage in two suspected drug transactions at the mouth of the alley behind 1058 North Springfield Avenue, where there had been numerous citizen complaints about drugs being sold. Chicago police officer James Sajdak testified that he made these unobstructed observations from about 150 feet with the aid of binoculars. After two individuals approached defendant with an unknown amount of money, which he placed into his right, front pocket, defendant ran south approximately 50 feet down the alley and retrieved unknown items from a shiny object hidden underneath the lip of a city garbage can. Defendant returned to the two individuals at the mouth of the alley and gave each of them an unknown item. Officer Sajdak acknowledged that he briefly lost sight of defendant and the garbage can when he left his surveillance point and joined enforcement officers at the mouth of the alley, where defendant was detained. He directed another enforcement officer to search the garbage can in the alley, and that officer recovered a potato chip bag containing eight Ziploc bags of suspect cocaine. Officer Sajdak recognized the potato chip bag as the same shiny object that he had seen defendant retrieving items from previously, and then took defendant into custody. A custodial search of defendant at the police station yielded $198 in his right, front pocket. ¶ 4 On cross-examination, defense counsel extensively questioned Officer Sajdak about his surveillance which established that he was on foot, at ground level 150 feet away, and that he observed defendant standing at the "sidewalk level" of the mouth of the alley, "not at the intersection of Thomas [Street], at the street, like the curb level." When defense counsel asked Officer Sajdak about his exact surveillance location, the State objected on the ground that the surveillance point is privileged. ¶ 5 Because neither party moved in limine for a determination of the applicability of the surveillance location privilege, the trial court engaged the parties in the following colloquy, which we quote in detail as it is instrumental to our finding that the trial court did not deprive defendant of his constitutional right to confront the witnesses against him [see People v. Graham, 2012 IL App (1st) 102351, ¶ 2 (colloquy relating to counsel of choice)]:
"THE COURT: The state [sic] is asserting privilege with respect to the officer's position, so that could cause me to have to, at this point based on state's objection, actually make the inquiries necessary to make a ruling on that.¶ 6 The trial court then called a short recess and informed defense counsel that it would let him make a record when court resumed. Before doing so, the court stated that it was "ruling that the exact location of the officer at the time of his observation is not going to be allowed, based on the proffer given to me by the officer and the objection given to me by the officer and the objection given to me by the State." After the recess, the colloquy continued:
Mr. Drew, if you want me to do that, based on the state's objection, I'll have to stop the proceedings and we can do that. Is the officer's point of surveillance something you feel necessary for what you're doing?
MR. DREW [defense counsel]: Judge, the officer has testified that he was on foot at ground level 150 feet away. That does not describe an especially sensitive location. I would like to know where he was.
THE COURT: State, I'm going to give you a chance, this just coming about, typically in these cases there is a motion that gives the state some degree of notice that you're getting ready to go into this. Do you want me to stop the proceedings and make the inquiries?
Since the state is asserting a privilege, I would imagine the inference is there is some degree of safety involved here with respect to the officers involved in future operations or something to that effect?
MS. GUERRERO [assistant State's Attorney]: Yes, Judge.
MR. DREW: Judge, I must ask where he was, if you please.
THE COURT: This just coming to the state's attention at this point, that you need that degree of specificity, we'll take a short recess. I need to make the inquiries. Thank you.
State, do you need to talk with your officer before articulating your view on this matter?
MS. GUERRERO: I don't believe so, Judge.
THE COURT: Can you state for me what your view is, and if I have to do an in-camera, I will do an in-camera.
MS. GUERRERO: First, no motion was made at any point to disclose the surveillance point.
THE COURT: Is it the state's position that such a motion is necessary?
MS. GUERRERO: Yes.
THE COURT: Proceed.
MS. GUERRERO: Second, any specifics as to the reasons, I would ask that the court would question the officer and make the court's determination, Judge.
THE COURT: State, it is reasonable to anticipate that the defense would do this. In some *** cases I've seen motions in limine by the state prohibiting defense from making such inquiries. *** Is there case law that suggests that the defense has to tell you that they're going to ask where the police officer is going to be? It's pretty predictable that that's what they're going to ask.
MS. GUERRERO: Judge, my understanding is that they are able to cross-examine as to distance and vantage point and the like, but the actual point or particular location where the officer is doesn't have to be disclosed unless the court rules that it does. That's my understanding.
THE COURT: *** Now you're proffering that to disclose the location would compromise officer safety in future operations?
MS. GUERRERO: Yes, Judge.
THE COURT: Defense, I've kind of changed my position from when I first heard the objection. I actually think the state needs to bring a motion in limine when they are seeking not to disclose certain information like this.
That having been said, the remedy being suggested by the state now is for me to examine the officer in-camera to make my own assessment as to whether or not it would
compromise officer—now, the only basis that you have, state, is officer safety for future operations, or is there another basis?
MS. GUERRERO: Judge, I believe the safety and future, as well.
THE COURT: Officer safety and future narcotics operations?
MS. GUERRERO: Correct.
THE COURT: So the disclosure would not be potentially injurious to cooperating citizens at or near the area in question is what you're telling me.
MS. GUERRERO: Judge, respectfully, is it possible that the court would actually inquire with the officer[?]
THE COURT: Mr. Drew, do you have any objection to me having an in-camera with the officer[?]
MR. DREW: I have no objection.
THE COURT: We're going to take a five minute recess. I'll retire in chambers, I'll ask the officer to join me. I'll make a decision when I come back out.
Officer, if you could step in chambers, I would appreciate it.
(Whereupon, a recess was taken.)
THE COURT: In future cases, we're going to try to deal with these by way of motions in limine. It catches all sides by surprise. That having been said, though, based upon the information given to me by the officer, if I were to allow you to cross-examine as to exact location, it is the court's feeling that that would result in possible retribution against property or property owners in the area in question that could be dangerous to those persons who may or may not have owned or given permission to officers in the past in that area.
Testimony concerning distances, whether or not obstructions existed, elevation, and matters of that nature will be allowed."
"THE COURT: Mr. Drew, I gave you a ruling without giving you a chance to respond to the ruling. ***¶ 7 Cross-examination resumed, and Officer Sajdak further testified, that he did not recall what defendant or the two unknown individuals that approached him were wearing, and that he was standing with defendant at the mouth of the alley when he directed the enforcement officer to search the garbage can where defendant was previously observed. ¶ 8 Chicago police officer Michael Jolliff-Blake testified that he was the enforcement officer who, at the direction of Officer Sajdak, recovered the foil potato chip bag containing eight baggies of suspected cocaine from an alley garbage can. On cross-examination, defense counsel elicited testimony from Officer Jolliff-Blake that the narcotics surveillance operation consisted of one surveillance officer, three enforcement officers and one unmarked squad car, and that he did not witness the transactions in question. ¶ 9 After the parties stipulated to the chain of custody and forensic analysis of the contraband, which tested positive for cocaine, the State rested and the trial court denied defendant's motion for a directed verdict. ¶ 10 Defendant chose to testify in his own behalf after the trial court ruled on the admissibility of two prior drug-related convictions for impeachment purposes. Defendant denied selling drugs that day and, specifically, any connection to the drugs hidden in the alley garbage can. He acknowledged that the officers recovered $198 from his right, front pocket, but he explained that his girlfriend gave it to him. Defendant testified that he had been in the area of Springfield Avenue and Thomas Street since morning of that day, and while he was shooting dice with six or seven neighborhood acquaintances at the corner of that intersection, someone said, "lights out," which meant that the police were coming. Everyone ran down Springfield Avenue toward Augusta Boulevard, except for him and an acquaintance. Meanwhile, a "black female officer" accompanied by three other officers pulled up in an unmarked Chevrolet Tahoe and asked him how much money he had. When he told her that he had $200, she handcuffed him and placed him in the back of the Tahoe, then left with the other officers on foot and searched the neighboring alleys for about 30 minutes. ¶ 11 On cross-examination, defendant stated that he had been shooting dice for about an hour before the police arrested him at 7:20 p.m. However, he could not recall what he was doing before that time. Defendant stated that Officers Sajdak and Jolliff-Blake were among the four police officers inside the Tahoe, and while he was unattended inside that vehicle, he saw a computer screen displaying a general clothing description, which "everyone out there had on" including him. Specifically, defendant was wearing a white hat and T-shirt and blue jeans. ¶ 12 In rebuttal, Officer Sajdak testified that he observed defendant with no other than the two unknown individuals that approached with money during his entire surveillance. He did not observe defendant shooting dice with anyone, and defendant was never left unattended in the unmarked squad car. ¶ 13 Following closing arguments, the trial court found defendant guilty of possession of a controlled substance with intent to deliver. In doing so, the court credited the testimony of the officers over that of defendant, which it deemed completely fabricated based on his demeanor and the "illogical nature" of his testimony. The court noted defendant's selective memory in stark contrast to the officers' testimony regarding the incident, and rejected defense counsel's argument that there was little evidence to prove beyond a reasonable doubt that defendant possessed the recovered drugs with intent to deliver them, given the small quantity involved and the surveillance officer's observations with respect to distance. Defendant subsequently filed a motion for a new trial, alleging that he was not proved guilty beyond a reasonable doubt, which the trial court denied. ¶ 14 In this court, defendant contends that the trial court violated his constitutional right to confront the witnesses against him by limiting his cross-examination of the narcotics officer regarding his exact point of surveillance. He also contends that the trial court's failure to make a record of the in camera hearing in that regard effectively denies him the right to appeal the court's ruling on the issue. ¶ 15 As a threshold matter, the State observes that defendant failed to raise the issue of the surveillance location privilege in his motion for a new trial, thus waiving the issue for review. People v. Enoch, 122 Ill. 2d 176, 189 (1988). We note, however, that this court has recognized that the right to confront witnesses, including the right to cross-examination, is a fundamental right, and, as such, the issue is not waived and may be considered under the plain error doctrine. People v. Stokes, 392 Ill. App. 3d 335, 340 (2009) (citing People v. Knight, 323 Ill. App. 3d 1117, 1125 (2001)). This is so, even though defendant did not argue plain error in his opening brief and raises it for the first time in his reply brief. People v. Ramsey, 239 Ill. 2d 342, 412 (2010), citing People v. Williams, 193 Ill. 2d 306, 347-48 (2000). ¶ 16 To merit plain error review, defendant must first show that a "clear or obvious error" occurred at trial. People v. Price, 404 Ill. App. 3d 324, 329 (2010) (citing People v. Piatkowski, 225 Ill. 2d 551, 565 (2007)). Then, defendant must show that either "the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant," or the "error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process." Price, 404 Ill. App. 3d at 329 (citing People v. Averett, 237 Ill. 2d 1, 18 (2010) (quoting Piatkowski, 225 Ill. 2d at 565). For the reasons to follow, we agree with the State that no clear or obvious error occurred in this case. ¶ 17 Defendant has a constitutional right to cross-examination, but that right is not absolute, and the trial court has broad discretion to limit the scope of cross-examination at trial. Price, 404 Ill. App. 3d at 330. We will not disturb the trial court's determination in this regard absent an abuse of discretion. People v. Reed, 2013 IL App (1st) 113465, ¶ 17. ¶ 18 In People v. Quinn, 332 Ill. App. 3d 40, 43 (2002) (citing People v. Criss, 294 Ill. App. 3d 276, 281 (1998)), this court noted that the State enjoys a "qualified privilege" regarding the disclosure of covert surveillance locations, the need for which is determined on a case-by-case basis, balancing the public interest in keeping the location secret with defendant's need to prepare a defense. Disclosure must "almost always" be required if the State's case against defendant depends almost exclusively on one police officer's testimony, but would not be required where there is no question about the surveillance officer's ability to observe, or where evidence appears on a contemporaneous videotape. Reed, 2013 IL App (1st) 113465, ¶ 18. ¶ 19 Where the State invokes the privilege against disclosure of the surveillance location at trial, the State has the initial burden of demonstrating that the privilege applies by presenting evidence to the court that the surveillance location was either on private property with the owner's permission, or in a useful location that would be compromised by disclosure. Price, 404 Ill. App. 3d at 331-32. Once the State has met its burden of proof, the defense bears the burden of persuasion and can overcome the assertion of privilege by showing that the surveillance location " 'is relevant and helpful to the defense' " or is " 'essential to the fair determination of a cause.' " Price, 404 Ill. App. 3d at 332 (quoting Roviaro v. United States, 353 U.S. 53, 60-61 (1957)). The trial court has discretion in balancing the interests of the State and defendant in order to determine whether the privilege has been overcome, and to aid in this determination, the trial court may require the surveillance officer to disclose the surveillance location in camera outside the presence of the parties. Price, 404 Ill. App. 3d at 332-33. Even if the defense cannot overcome the privilege, defense counsel should be permitted to cross-examine the officer's observations regarding distance, weather, and any other possible obstructions. Stokes, 392 Ill. App. 3d at 340. ¶ 20 Defendant asserts that the trial court failed to follow the proper procedure when the State invoked the surveillance location privilege at trial because, rather than the State advancing any reasons for its application, the trial court "stated why the State was asserting the privilege and the State simply agreed with the judge." The court then conducted an in camera hearing with Officer Sajdak, and ruled that disclosure of his exact surveillance location would result in possible retribution against property or property owners in that area and otherwise compromise future surveillance operations there. Defendant notes that the trial court never stated, nor does the record reflect, that any balancing test was ever conducted; and, further, that the balancing may be done only after the State invokes the surveillance location privilege and has carried its initial burden of proof and the defense has an opportunity to meet its burden of persuasion. He reasons that if the defense does not have an opportunity to overcome the privilege, it is not possible for the trial court to make a case-by-case balancing of the parties' competing interests. ¶ 21 Our review, however, discloses no clear or obvious error as alleged by defendant. As indicated in the above-quoted colloquy, the State's assertion of the surveillance location privilege was followed by the trial court's questioning of defense counsel as to whether he wished the court to stop the proceedings to "make the inquiries necessary to make a ruling on that," and "[i]s the officer's point of surveillance something you feel necessary for what you're doing?" Defense counsel responded affirmatively, adding that Officer Sajdak's testimony that he was on foot at ground level 150 feet away "does not describe an especially sensitive location." After rejecting the State's position that a defense motion to disclose Officer Sajdak's exact surveillance location was necessary, the trial court acknowledged the State's request that the court "examine the officer in-camera to make my own assessment as to whether or not [disclosure] would compromise [officer safety and future narcotics operations]," and defense counsel voiced no objection to this procedure. Following the trial court's in camera hearing with Officer Sajdak, the court denied disclosure of Officer Sajdak's exact surveillance location "based on the proffer given to me by the officer." The trial court also ruled, however, that "[t]estimony concerning distances, whether or not obstructions existed, elevation, and matters of that nature will be allowed," then took a short recess. ¶ 22 It is this break in the proceedings that defendant focuses upon in claiming that the trial court failed to follow proper procedure by not giving the defense an opportunity to meet its burden of persuasion before ruling against the disclosure of Officer Sajdak's exact surveillance location. However, the colloquy, on its face, fails to support defendant's characterization of the trial court's actions, or lack thereof, in addressing the State's invocation of the surveillance location privilege. People v. Saunders, 122 Ill. App. 3d 922, 936 (1984). ¶ 23 Likewise, we are unpersuaded by defendant's further argument that the trial court's ultimate ruling denying cross-examination as to the officer's exact surveillance location was erroneous because "the judge based his ruling, in part, on a false and improper premise—that the officer would not lie or 'put his career on the line for this matter' " and "failed to realize that 'there is a presumption in favor of disclosure when the case against the defendant is based primarily on eyewitness testimony,' " quoting People v. Knight, 323 Ill. App. 3d 1117, 1128 (2001). As the State points out, the trial court's comment that the surveillance officer would not lie or "put his career on the line for this matter," was made after its ruling, in response to defense counsel's assertion that it is "easy for the officer to claim there were no obstructions," and not as the basis of the ruling. Defendant cannot claim error where the allegedly improper comment was in reply to and invited by defense counsel's argument and where those arguments invited a response and comment on witness credibility. People v. Collins, 227 Ill. App. 3d 670, 679 (1992). ¶ 24 Furthermore, Knight does not stand for the proposition that defendant must be allowed to cross-examine an officer about his exact surveillance location, but rather that in a trial context, the trial court should hold an in camera hearing to aid in determining whether the surveillance location privilege is applicable. Stokes, 392 Ill. App. 3d at 342. In addition, the presumption in favor of disclosure applies in cases where the officer's testimony is uncorroborated and the application of the privilege will severely impede defendant's ability to cross-examine the officer on key factual issues. Knight, 323 Ill. App. 3d at 1128. ¶ 25 Unlike Knight, the instant case against defendant did not turn exclusively on Officer Sajdak's testimony where Officer Jolliff-Blake testified that he was the enforcement officer who recovered the foil potato chip bag containing individual baggies of suspected cocaine from the alley garbage can, at the direction of Officer Sajdak, and the parties stipulated to the chain of custody and forensic analysis of the physical evidence, i.e., the suspected cocaine. Also, unlike Knight, identity was not the main issue in this case notwithstanding defendant's contrary assertions, i.e., that he was shooting dice with a group of neighborhood acquaintances a short distance from the mouth of the alley were the alleged transactions occurred, but which version of the events presented at trial should be believed. People v. Houston, 229 Ill. 2d 1, 16 (2008). We note that defense counsel was allowed to extensively cross-examine Officer Sajdak, who was using binoculars, and sufficiently pinpoint his surveillance location to allow the trial court to evaluate his testimony. Quinn, 332 Ill. App. 3d at 45; see also Reed, 2013 IL App (1st) 113465, ¶ 23 (unlike Knight, there was no evidence that seriously called into question the officer's ability to observe). ¶ 26 Considering the public interest in keeping the exact surveillance location secret to avoid compromising officer safety and future operations, and the relative insignificance of the exact surveillance location in light of the specificity uncovered on cross-examination, we find that no "clear or obvious error" occurred and conclude that the trial court did not abuse its discretion in limiting the cross-examination of Officer Sajdak regarding his exact surveillance location. Stokes, 392 Ill. App. 3d at 342-43; People v. Bell, 373 Ill. App. 3d 811, 820 (2007); Quinn, 332 Ill. App. 3d at 45. As a result, we conclude that no error occurred at trial as alleged by defendant, and we honor his procedural default of this issue. People v. Hillier, 237 Ill. 2d 539, 545 (2010). ¶ 27 In reaching this conclusion, we observe that defendant's assertion in his reply brief, that the State never met its initial burden of proof regarding the surveillance location privilege, was not raised in his opening brief and, thus, cannot be raised for the first time in his reply brief. People v. Jacobs, 405 Ill. App. 3d 210, 218 (2010). We also decline defendant's invitation to reject the surveillance location privilege as a matter of law simply because our supreme court "has never approved of this Court's occasional recognition" of that privilege, which we observe is qualified and determined on a case-by-case basis. We are not persuaded by defendant's citing State v. Williams, 2005 WL 1654350 (Del. Super. Ct. 2005), an unpublished decision with precedential value only under Delaware court rules. ¶ 28 Relatedly, defendant complains for the first time that the trial court's failure to make a record of the in camera hearing with the surveillance officer effectively denies him the right to appeal the trial court's ruling on the issue. Although defendant presents a plain error argument in his reply brief, we find that no clear or obvious error occurred where he made no request that a record be made of the in camera hearing (People v. Friend, 177 Ill. App. 3d 1002, 1020 (1988)), and specifically raised no objection to the court holding that hearing. Because any alleged error in this regard was not of record, we need not address plain error. People v. Harding, 2012 IL (2d) 101011, ¶ 22. ¶ 29 Lastly, defendant requests that we amend his mittimus to correctly reflect his conviction for possession of a controlled substance with intent to deliver, rather than manufacture or delivery of a controlled substance. Defendant's mittimus reflects the proper statutory citation in support of his conviction, but incorrectly lists the offense as manufacture or delivery of cocaine. We therefore order that defendant's mittimus be amended to reflect the proper name of the offense for which he was convicted. Ill. S. Ct. R. 615(b)(1) (eff. May 1, 2007); People v. Blakney, 375 Ill. App. 3d 554, 560 (2007); People v. Wade, 2013 IL App (1st) 112547, ¶ 40. ¶ 30 For the reasons stated, we direct the clerk of the circuit court to amend defendant's mittimus as indicated, and we affirm the judgment of the circuit court of Cook County in all other respects. ¶ 31 Affirmed; mittimus corrected.
MR. DREW: *** Judge, our position on this, and I understand the court has ruled, but our position is that [defendant] has a right to confront the witnesses against him and ask him this kind of question. This operation is over. And even though we're allowed to ask distance and elevation and so on, if we don't know exactly where he is, I can't cross-examine him about the possibility of obstructions to his vision.
THE COURT: Well, you can cross-examine him about obstructions. He can tell you whether or not there are obstructions, and if there were obstructions, describe them.
The point that you raise about this operation being over, that's certainly true. Except that there might be future operations and there may have been previous operations. So it is true that this operation is over, but previous operations took place in the area, as I understand it by the proffer from the officer, this area has arrests every week or so, roughly, and there might be future operations based upon citizens complaints."