Opinion
2d Crim. No. B162834.
11-24-2003
THE PEOPLE, Plaintiff and Respondent, v. EUGENE MARTIN, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Deborah J. Chuang, Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Eugene Martin was tried before a jury and convicted of selling cocaine base in violation of Health and Safety Code section 11352, subdivision (a). He was sentenced to 13 years in prison after the trial court made true findings on prior conviction allegations under Health and Safety Code section 11370.2, subdivision (a) and prior prison term allegations under Penal Code section 667.5, subdivision (b). Appellant contends the judgment must be reversed because the detective who observed the transaction leading to his arrest was allowed to invoke the official information privilege under Evidence Code section 1040 and refused to disclose her exact surveillance location. We remand the case for an in camera hearing to determine the materiality of the information sought by defense counsel.
Facts
On the afternoon of May 15, 2002, Los Angeles Police Department Detective Debbie Lopez was working near the intersection of Fifth Street and Main as part of a narcotics surveillance unit. She and a partner were focusing on the area near the Frontier Motel, where drugs were frequently sold.
There were many people in the area. Lopez noticed woman later identified as Nichole Brown, who appeared to be selling drugs. Brown was joined by appellant, a large man who stood out in the crowd. Brown and appellant talked for a few minutes and then stood on the northeast corner of the intersection, where they were approached by several people. One man gave money to appellant, which he in turn gave to Brown. Brown gave appellant what appeared to be a few rocks of cocaine and he passed the rocks on to the man.
Brown and appellant walked into a delicatessen for a few minutes. When they came out, they were approached by five or six people, including Ronald Morita. Lopez saw several rapid transactions in which Brown placed small rocks in the peoples hands while appellant grabbed money from them and gave it to Brown. Morita waited patiently and then handed appellant some money. Appellant counted the money and held up three fingers to Brown, which could have signified three rocks or $30. Lopez saw Brown hand some white rocks to appellant, who gave them to Morita.
At Lopezs direction, Morita was detained by another officer. He was searched and discovered to be carrying rocks of cocaine base. Appellant and Brown were also arrested. Neither was carrying any drugs, but Brown had $284 in her hooded sweatshirt, $ 84 of which was in one-dollar bills. Appellant was carrying $ 30, a $20 bill and a $10 bill. In Lopezs experience, the denominations of currency possessed by Brown were commonly used in drug sales in downtown Los Angeles.
Appellants conviction was based on the sale of drugs to Morita. The jury was instructed solely on the theory that he aided and abetted Brown.
Discussion
Evidence Code section 1040, subdivision (a) establishes a privilege for certain "information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made." This privilege applies when "[d]isclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice . . . ." (Id., subd. (b)(2).)
This official information privilege extends to the location of a police surveillance site if the court determines that the need for confidentiality in a particular case outweighs the necessity of disclosure. (See People v. Haider (1995) 34 Cal.App.4th 661, 664; People v. Montgomery (1988) 205 Cal.App.3d 1011, 1019.) ""Like confidential informants, hidden observation posts may often prove to be useful law enforcement tools, so long as they remain secret. Just as the disclosure of an informants identity may destroy his [or her] future usefulness in criminal investigations, the identification of a hidden observation post will likely destroy the future value of that location for police surveillance. The revelation of a surveillance location might also threaten the safety of the police officers using the observation post, or lead to adversity for cooperative owners or occupants of the building."" (Montgomery, at p. 1019.)
When an officer asserts the official information privilege in response to a question about a police surveillance location in a criminal case, the defendant must make a prima facie showing that disclosure of the location is appropriate. (People v. Montgomery , supra, 205 Cal.App.3d at p. 1021.) When a prima facie showing is made, the court should hold an in camera hearing with the officer claiming the privilege. (Ibid.) If the court determines that the privilege applies, it "shall make such order or finding of fact adverse to the public entity bringing the proceeding as is required by law upon any issue in the proceeding to which the privileged information is material." (Evid. Code, § 1042, subd. (a).)
In this case, Detective Lopez was the only eyewitness to the transaction involving appellant and Morita. She asserted the official information privilege when asked to reveal her exact location during the surveillance. In a hearing outside the presence of the jury, Lopez invoked the privilege when asked by defense counsel to describe the elevation of her vantage point and the direction from which she was making the observation. Lopez did testify that she was 50-80 feet away from appellant during the entire time that she observed him, that the surveillance location had three windows, that she was looking through untinted glass, that she was with her partner at all times, that she sometimes used binoculars, and that her view of appellant was unobstructed by trees.
Defense counsel acknowledged that the police still used the site and said he could understand why they did not want to reveal the exact address of the surveillance location. His main complaint was that the officer would not reveal the general direction of the surveillance location from the site where the drug sale allegedly occurred, or whether the surveillance location was elevated or at street level. Counsel argued that if the officer provided this information, the defense might be able to show that the elevation and angles from such a vantage point made it impossible for Detective Lopez to see what she claimed to have seen.
The trial court upheld the privilege without holding an in camera hearing with Detective Lopez. It concluded that the exact location of the surveillance site, its elevation and its direction vis-à-vis appellant were not material to the defense because counsel could cross-examine the detective about her distance from the alleged drug sale, her use of visual aids, possible distractions from her partner, and obstructions of her view. Appellant contends the trial court should have ordered disclosure of the surveillance location and argues that its failure to do so requires a reversal of his conviction.
We do not agree that appellant established his entitlement to disclosure of the surveillance location. He did, however, make a prima facie case for disclosure. Appellant was prosecuted as an aider and abettor. He was not carrying drugs at the time of his arrest, and the only evidence of his involvement in the sale to Morita was Detective Lopezs testimony. Although Lopez testified that she saw appellant take the drugs from Nichole Brown and hand them to Morita, her police report stated that Brown handed the drugs directly to Morita. Lopezs credibility was thus a critical issue and the location of her vantage point logically would affect her ability to accurately observe appellants conduct. This suffices for a prima facie showing. (See People v. Montgomery, supra, 205 Cal.App.3d at p. 1022; Hines v. Superior Court (1988) 203 Cal.App.3d 1231, 1235.)
Once the defense established a prima facie case for disclosure, it was incumbent on the trial court to hold an in camera hearing to ascertain the surveillance location and determine whether it was material to appellants defense. The court did not do so. It gave defense counsel the opportunity to question Detective Lopez in a hearing outside the presence of the jury, and concluded that in light of her answers, the exact location was not material to appellants defense. But this begs the question. Because the court did not itself know the surveillance location, it had no way of determining whether information about that location would tend to refute Lopezs testimony that she had an unobstructed view of the transaction involving Morita. (See People v. Montgomery, supra, 205 Cal.App.3d at pp. 1021-1022.)
The Attorney General relies primarily on In re Sergio M. (1993) 13 Cal.App.4th 809, in which a police officer testified that he saw appellant sell drugso a man in a truck. The officer invoked the official information privilege when asked to reveal his location at the time he witnessed the transaction. The trial judge held an in camera hearing and concluded the privilege applied. On appeal, the court upheld this ruling and rejected an argument that the trial judge should have stricken the officers testimony. The appellate court noted that the nondisclosure of privileged information about a surveillance site requires protective measures such as striking the witnesss testimony only when the privileged information is material to the defense, i.e., when there is a reasonable possibility the disclosure of the location would have resulted in the defendants exoneration. (Id. at p. 814.).
The decision in Sergio M. is distinguishable because in that case, the trial court held an in camera hearing and presumably had ascertained the officers location before ruling on the defense request for disclosure. The transcript of that in camera hearing was part of the record on appeal and enabled the appellate court to determine the materiality of the surveillance location. Here, by contrast, we can only accept the Attorney Generals argument that the surveillance location was not material if we assume the truth of the officers testimony about what she saw. This puts the cart before the horse. "We cannot and should not try to guess what defense might have been supported by revelation of the surveillance site." (People v. Montgomery , supra, 205 Cal.App.3d at p. 1020.)
DISPOSITION
The case is remanded to the superior court with directions to conduct an in camera hearing to determine whether the information regarding the surveillance location, its elevation and/or its direction vis-à-vis the corner where appellant was observed, is privileged under Evidence Code section 1040, subdivision (b)(2). The court shall further determine whether the information is material to the issue of appellants guilt or innocence within the meaning of Evidence Code section 1042, subdivision (a). If the court determines the surveillance location is not material, the judgment shall remain intact. If it determines the information is material, the court shall vacate the judgment and reset the cause for trial. (Pen. Code, § 1382, subd. (a)(2).) On retrial, if any, evidence of police observations from the surveillance location shall not be received unless the People waive the privilege under Evidence Code section 1042.
We concur: GILBERT, P.J. & PERREN, J.