On appeal from Superior Court of New Jersey, Law Division, Mercer County.
Antell, Long and Baime. The opinion of the court was delivered by Baime, J.A.D.
Defendant was convicted of distribution of heroin (N.J.S.A. 2C:35-5b(3)). The State's principal evidence consisted of the testimony of a police officer who allegedly witnessed the transaction in the course of his surveillance of a "high crime" area. Prior to trial, the prosecutor obtained an order barring the defense from cross-examining the officer concerning the vantage point from which he allegedly observed the sale of the drug. Under the order, defense counsel was precluded from questioning the officer concerning the height of the location, its nature and character, its direction, and the angle from which his observations were made. The only testimony allowed to be elicited at trial concerning the officer's ability to observe the incident was that he was inside an undisclosed building some 50 to 75 feet from the defendant when the sale occurred. We hold that the pretrial order deprived defendant of his sixth amendment right to confrontation.
The State's chief witness at trial was Michael Mihalik, a member of the Trenton Police Department. Officer Mihalik testified that at approximately 2:00 p.m. on June 1, 1988, he embarked upon a surveillance of the corner of Stockton and Academy Streets, an area known for its drug activity. It was a "clear day" and Officer Mihalik had an "unobstructed" view of
the area. The officer related that he had taken binoculars with him but found them unnecessary in light of his close proximity to the corner.
During his surveillance, Officer Mihalik observed three people approach Rafael Fernandez. Fernandez referred these individuals to defendant, who was standing nearby. No arrests were made because the officer was unable to determine whether drugs were sold. At 2:40 p.m., Officer Mihalik observed a black woman, later identified as Joanne Carroll, approach Fernandez. Fernandez gestured toward defendant. Defendant then accompanied Carroll to a vacant lot across the street. Officer Mihalik saw Carroll give defendant an undetermined amount of money in exchange for a small package. The officer alerted several policemen who arrested Carroll a few blocks from the scene. A search of her clothing revealed a small quantity of heroin.
After the alleged sale, Officer Mihalik observed defendant cross the street and hand Fernandez an undetermined amount of money. Fernandez ran into a nearby building and returned several minutes later. Both defendant and Fernandez were then apprehended. Neither drugs nor money were found on defendant. A search of Fernandez's pocket disclosed $250 in cash.
Defendant elected to testify. He admitted that he had engaged in conversation with Fernandez, who he knew resided in the area. Defendant denied any contact with Carroll.
It is against this factual backdrop that we consider the issues presented.
We first address questions concerning the procedure utilized by the Law Division in deciding the State's motion. Prior to trial, the State applied for an order barring the defense from questioning Officer Mihalik concerning the vantage point of his surveillance. Pursuant to Evid.R. 8, a hearing was conducted
in open court in the presence of defendant and his attorney. Officer Mihalik testified under oath that he observed the drug transaction from a distance of 50 to 75 feet. However, the officer refused to disclose which side of the street he was on, the level or height of the location, its direction, whether it was a private residence, a business, or an abandoned building, and the angle from which his observations were made. The officer testified that disclosure of the location could ...