State v. Johnson

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

RODRICK LYNN JOHNSON, Appellant.

No. 1 CA-CR 13-0571
FILED 11-20-14

Appeal from the Superior Court in Maricopa County
No. CR 2011-114400-002
The Honorable Pamela Hearn Svoboda, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adele Ponce
Counsel for Appellee

Law Office of Nicole Farnum, Phoenix
By Nicole T. Farnum
Counsel for Appellant
 STATE v. JOHNSON
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MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Samuel A. Thumma
joined.

GOULD, Judge:

¶1 Rodrick Lynn Johnson appeals his convictions and sentences
for possession of dangerous drugs for sale, a class two felony; possession
of narcotics for sale, a class two felony; and possession of marijuana, a
class six felony. The principal issue on appeal is whether the trial court
erred in precluding cross-examination as to the specific surveillance
locations from which police officers observed Johnson at a drug house.
For reasons that follow, we hold there was no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Police officers conducted surveillance on an apartment after
receiving information from a citizen about possible illegal drug activity at
that location. Officers watched the apartment on several occasions from
different locations over a period of one week and observed a number of
people going in and out of the apartment. During their surveillance,
officers observed a person, later identified as Johnson, letting people in
and out of the apartment. The officers subsequently stopped and
searched two of the people they had observed enter and leave the
apartment and found crack cocaine. The police then obtained a search
warrant for the apartment.

¶3 In executing the search warrant, the police found PCP, crack
cocaine, marijuana, guns, cash, and a drug ledger inside the apartment
and arrested Johnson and two other adult occupants. One officer, who
had been watching the apartment for approximately forty minutes prior to
the execution of the search warrant, saw seventeen people visit the
apartment, each staying less than five minutes. After Johnson was
arrested, this same officer identified Johnson as the person he saw letting
people in and out of the apartment.

¶4 Johnson was indicted on two counts of misconduct
involving weapons, one count of possession of dangerous drugs for sale,

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Decision of the Court

one count of possession of narcotic drugs for sale, and one count of
possession of marijuana. Upon trial to a jury, Johnson was acquitted on
the two counts of misconduct involving weapons, but convicted on the
three drug charges. At sentencing, the trial court determined that Johnson
had six historical prior felony convictions and sentenced him as a
repetitive offender to concurrent aggravated prison terms, the longest
being eighteen years on the two class two felony convictions. The trial
court also ordered that Johnson pay a total of $6930.50 in fines and other
mandatory fees and assessments. Johnson timely appealed.

DISCUSSION

Limitation on Cross-Examination

¶5 At the start of trial, the State moved to preclude any
testimony regarding the precise locations from which the police officers
conducted their surveillance of the apartment. The State argued that the
specific surveillance locations were not relevant, and that revealing such
information would jeopardize future police investigations and place the
citizens who gave permission for the officers to use the locations at risk.
Johnson opposed the motion, asserting that knowing the location was
critical to cross-examining the officers about their observations. The trial
court granted the State’s motion in part, ruling Johnson would be
permitted to question the officers about their surveillance, including
distance from the apartment, whether faces were seen from full frontal or
side views, whether there were any obstructions to the officers’ view, and
whether any assistive devices such as scopes were employed, but not the
officers’ specific surveillance locations. In explaining the ruling, the trial
court stated that it had balanced Johnson’s due process right to a fair trial
against the public safety risk and concluded that the limitation would not
hamper the defense’s ability to put before the jury all the facts necessary
for the jury to determine whether the officers “got good views or not,
whether their vision was obscured somehow or not.”

¶6 During trial, three officers testified about their surveillance
of the apartment, with two of these officers identifying Johnson as a
person they saw letting people in and out of the apartment. Following the
testimony by these officers, Johnson moved for reconsideration of the
ruling concerning the surveillance locations “so we can really
meaningfully cross-examine about what may or may not have been in
their way.” The trial court denied the motion, reiterating that there was
no limitation on cross-examination regarding the officers’ ability to
observe, only on the particular locations of their observation sites for

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public safety concerns. In addressing the matter of the officers’ sight lines,
the trial court noted that photographs of the apartment had been admitted
into evidence and that “it is clear that there are no trees or bushes or
anything like that” obstructing the officers’ view of the front door to the
apartment.

¶7 Johnson argues that the trial court’s ruling precluding cross-
examination of the officers as to the specific locations from which they
observed the apartment deprived him of his constitutional right to
confront testifying witnesses against him. As a result, he claims, he was
denied a fair trial because his ability to test the State’s evidence was
compromised. Specifically, he asserts that testimony about the
surveillance locations was necessary to determine if the officers could
actually see him letting people in and out of the apartment.

¶8 We review a trial court’s rulings on the admission of
evidence for an abuse of discretion. State v. Ellison, 213 Ariz. 116, 129, ¶
42, 140 P.3d 899, 912 (2006). Rulings implicating constitutional rights are
reviewed de novo. Id.

¶9 A criminal defendant has a constitutional right to confront
witnesses against him, which includes the right to cross-examination. See
U.S. Const., amends. VI, XIV; Ariz. Const. art 2, § 24; Crawford v.
Washington, 541 U.S. 36, 54 (2004). A defendant’s rights under the
Confrontation Clause, however, are not absolute. Rather, “the
Confrontation Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and
to whatever extent, the defense might wish.” Delaware v. Fensterer, 474
U.S. 15, 20 (1985). Thus, Confrontation Clause guarantees are
impermissibly compromised only where cross-examination is
“unreasonably limited.” State v. Dunlap, 125 Ariz. 104, 105, 608 P.2d 41, 42
(1980). A trial court’s limitation on cross-examination is evaluated “on a
case-by-case basis to determine whether the defendant was denied the
opportunity to present evidence relevant to issues in the case or the
witness’[s] credibility.” State v. Cañez, 202 Ariz. 133, 153, ¶ 62, 42 P.3d 564,
584 (2002). “The trial court exercises considerable discretion in
determining the proper extent of cross-examination, and we will not
disturb the court’s ruling absent a clear showing of prejudice.” State v.
Doody, 187 Ariz. 363, 374, 930 P.2d 440, 451 (App. 1996).

¶10 In Arizona, claims of privilege are governed by the common
law unless otherwise provided by constitution, statute, or court rule. Ariz.
R. Evid. 501. Long before the adoption of the Arizona Rules of Evidence,

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Arizona recognized the common law governmental qualified privilege of
non-disclosure of information in the furtherance and protection of the
public interest in effective law enforcement. See, e.g., State v. Tisnado, 105
Ariz. 23, 24, 458 P.2d 957, 958 (1969) (recognizing privilege in regards to
information concerning confidential informants); State v. Kelly, 99 Ariz.
136, 143, 407 P.2d 95, 100 (1965) (same). While there are no reported
decisions in Arizona applying the privilege to surveillance locations,
several courts in other jurisdictions have done so. See, e.g., United States v.
Harley, 682 F.2d 1018, 1020-21 (D.C. Cir. 1982); Anderson v. United States,
607 A.2d 490, 495 (D.C. 1992); People v. Criss, 689 N.E.2d 645, 649 (Ill. App.
1998); Commonwealth v. Lugo, 548 N.E.2d 1263, 1265 (Mass. 1990); State v.
Garcia, 618 A.2d 326, 329 (N.J. 1993); Commonwealth v. Rodriquez, 674 A.2d
225, 228-29 (Pa. 1996). As these courts have recognized, the government
has similar interests in protecting both confidential informants and
surveillance locations:

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 informer’s
identity may destroy his usefulness in criminal
investigations, the identification of a hidden observation
post will likely destroy the future value of the location for
police surveillance. The revelation of a surveillance location
might also threaten the safety of police officers using the
observation post, or lead to adversity for cooperative owners
or occupants of the building. Finally, the assurance of
nondisclosure of a surveillance location may be necessary to
encourage property owners or occupants to allow the police
to make such use of their property.

United States v. Green, 670 F.2d 1148, 1155 (D.C. Cir 1981). Courts also
have applied the privilege to other sensitive law enforcement sources and
methods. See United States v. Cintolo, 818 F.2d 980, 1002 (1st Cir. 1987)
(location of secret identification numbers on automobile parts); United
States v. Van Horn, 789 F.2d 1492, 1508 (11th Cir. 1986) (location and nature
of surveillance equipment); United States v. Crumley, 565 F.2d 945, 950–51
(5th Cir. 1978) (location of hidden “track sheet” in automobile).

¶11 Because it is qualified, the privilege for public interest in
effective law enforcement is subject to due process limitations, but there is
“no fixed rule” as to disclosure. Roviaro v. United States, 353 U.S. 53, 62
(1957). Instead, whether the privilege permits non-disclosure in a
particular case is determined through a balancing test controlled by “the

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fundamental requirements of fairness.” Id. at 60. The outcome depends
on the circumstances of each case, taking into consideration the crime
charged, the defenses, the significance of the information, and any other
relevant factors. Id. at 62. However, where the information “is relevant
and helpful to the defense of an accused, or is essential to a fair
determination of a cause, the privilege must give way.” Id. at 60-61.

¶12 The defendant bears the burden of overcoming the public
safety/law enforcement privilege. State v. Grounds, 128 Ariz. 14, 15, 623
P.2d 803, 804 (1981). A mere possibility or speculative hope that the
information might be helpful to the defendant is insufficient to overcome
the privilege. State ex rel. Berger v. Superior Court, 21 Ariz. App. 170, 172,
517 P.2d 523, 525 (1974). Generalized claims that the information is
needed for effective cross-examination or to mount an effective defense
are equally insufficient. See Rodriquez, 674 A.2d at 229 (holding defendant
seeking privileged surveillance location information “cannot rely solely
on a claim that he was denied the opportunity to effectively cross-examine
the officer”) (internal citation and quotations omitted); Commonwealth v.
Jennings, 630 A.2d 1257, 1263 (Pa. Super. 1993) (holding “very general
argument” that “cross-examination would be blocked without specific
knowledge of the location from which [the officer] viewed the alleged
criminal activity . . . falls far short” of overcoming the privilege); Hollins v.
Commonwealth, 450 S.E.2d 397, 400 (Va. App. 1994) (upholding the
surveillance location privilege where defendant “only generally alleged
that disclosure was ‘material’ to his effective cross-examination of the
officer”). To overcome the privilege, the defendant must make a showing
of particularized need supported by evidence, with our supreme court
making clear that “[a]rgument of counsel is not evidence.” Grounds, 128
Ariz. at 15, 623 P.2d at 804.

¶13 Here, the sole claim advanced by Johnson is that cross-
examination of the officers as to their specific surveillance locations was
necessary to determine whether the officers could see Johnson at the front
door of the apartment. As the trial court noted in denying the motion for
reconsideration, however, the evidence at trial showed that there were no
obstructions to any view of the door to the apartment. Johnson did not
dispute the trial court’s observation at trial and does not identify on
appeal any evidence in the record that raises any issue of fact as to
whether information on the specific surveillance locations would have
assisted in showing that the officers’ views of the apartment door were
obstructed. On this record, there was no error by the trial court in
precluding disclosure of the surveillance locations.

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Restitution Order

¶14 Johnson argues the trial court erred by entering a criminal
restitution order at sentencing with respect to the fines and fees assessed
against him. A trial court lacks authority to enter a criminal restitution
order for fines and fees at sentencing; such an order may only be entered
at completion of the sentence. Ariz. Rev. Stat. § 13-805(C)(1); State v. Cota,
234 Ariz. 180, 184-85, ¶ 15, 319 P.3d 242, 246-47 (App. 2014); see also State v.
Lopez, 231 Ariz. 561, 562, ¶ 2, 298 P.3d 909, 910 (App 2013) (holding
imposition of criminal restitution order before defendant’s probation or
sentence has expired constitutes an illegal sentence, which is fundamental,
reversible error).

¶15 Although the trial court did state without qualification while
sentencing a co-defendant that the various fines and fees assessed would
be reduced to a restitution order, the trial court later correctly told
Johnson during his sentencing that, in accordance with A.R.S. § 13-
805(C)(1), any outstanding balance on the assessed fines and fees “will be
reduced to a criminal restitution order upon your release from the
Department of Corrections.” Review of the record reveals that no criminal
restitution order has yet been entered by the trial court against Johnson in
this matter. Accordingly, this claim of error is without merit.

CONCLUSION

¶16 For the reasons stated, we affirm.

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