August 9, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID L. JOHNSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-10-00940.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 1, 2012
Before Judges Payne, Reisner and Simonelli.
Defendant, David L. Johnson, appeals from his conviction for second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b, and from his discretionary extended-term sentence, imposed pursuant to N.J.S.A. 2C:44-3a, of fifteen years of imprisonment with six years of parole ineligibility pursuant to N.J.S.A. 2C:39-7b and 2C:43-7b. On appeal, defendant raises the following arguments for our consideration:
THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE GUN BECAUSE THE OFFICER'S TESTIMONY, OFFERED TO ESTABLISH PROBABLE CAUSE, LACKED CREDIBILITY.
THE TRIAL JUDGE ERRED IN GIVING A FLIGHT INSTRUCTION TO THE JURY BECAUSE NO EVIDENCE OF FLIGHT WAS ADDUCED AT TRIAL. (NOT RAISED BELOW.)
THE PROSECUTOR'S MISCONDUCT DURING HIS SUMMATION, INCLUDING MISSTATING THE LAW AND FACTS OF THE CASE AND DISPARAGING THE DEFENSE, DEPRIVED DEFENDANT OF A FAIR TRIAL. (PARTIALLY RAISED BELOW.)
A. Defendant Was Prejudiced by the Prosecutor's Misstatement of the Law Regarding His Presumption of Innocence.
B. Defendant Was Prejudiced by the Prosecutor's Disparaging Comments About the Defense and the Prosecutor's Statement that Defendant Created a Story to Explain His Actions.
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE WARRANTING A REMAND FOR RESENTENCING.
Defendant, who was found by the police in possession of a loaded handgun, was indicted for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and for possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. Prior to his trial, defendant moved to suppress the gun found in his possession at the time of his arrest. A testimonial hearing was held on his motion, at which time testimony was offered for the State by Mercer County Sheriff's Office Detective James Udijohn, a member of the office's shooting response team charged with investigating non-deadly shootings in the City of Trenton.
Detective Udijohn testified that, on the evening of March 19, 2008, at approximately 11:00 p.m., he and his partner, Jonathan Cincilla, a member of the Trenton Police Department, were conducting a plain-clothes investigation of shootings in the area of Hoffman Avenue and the Roger Garden housing projects in West Trenton. As Detective Udijohn drove along Coolidge Avenue, he saw two females and a male standing beside a white four-door Jeep Cherokee. The male was drinking from a beer bottle held in his left hand.
Upon seeing the open beer bottle, the Detective pulled up, so that he could issue a summons for violation of a local ordinance. As he and his partner exited their vehicle, the male, later identified as defendant David Johnson, appeared visibly startled. His eyes widened and he grabbed his waistband with his right hand. As the result of his police experience, Detective Udijohn suspected from defendant's hand movement that he was carrying a concealed gun. At that point, defendant "ran and got into the rear passenger door of the Jeep Cherokee, which was open at the time." Detective Udijohn followed defendant, and when he illuminated the inside of the Jeep with his flashlight, the Detective saw defendant sitting in the rear passenger seat, reaching down, with his hands between his legs. In the area where defendant's hands were located, Detective Udijohn saw a black handle sticking out from under the rear passenger seat that he thought was part of a handgun.
Upon seeing what he believed to be a weapon, the Detective drew his own gun and ordered defendant to exit the vehicle. Defendant complied and was patted down by Officer Cincilla. As that occurred, Detective Udijohn retrieved a weapon from under the back seat of the Jeep, as well as the bottle of beer that defendant had been holding. No contraband was found on defendant. The gun, a twenty-five-caliber semi-automatic handgun, was found to have one bullet in its chamber and four in the magazine. Custody of the gun and the beer bottle was taken by Officer Cincilla.
While these events were taking place, the two women who had been with defendant remained on the street. Additionally, there were people in the courtyard of a nearby apartment complex and on the porches of the apartments. Detective Udijohn and Officer Cincilla were the only two law enforcement members present at the scene.
On cross-examination, defense counsel contrasted Detective Udijohn's hearing testimony with the report he had written shortly after defendant's arrest, noting in the report, the Detective did not indicate that defendant was standing four to five feet from the Jeep when sighted, but rather, that he was next to the vehicle. Further, the report did not indicate that defendant had run, but rather that he had "quickly entered" the Jeep. Additionally, in his report, the Detective indicated that he saw defendant with his hands down between his feet, not "between his legs down to the floor board" as he had testified. In an affidavit of probable cause written during the morning of March 20, Detective Udijohn described defendant as "bent between his legs, reaching under the passenger seat of the vehicle with his right arm."
Defense counsel also elicited testimony that Detective Udijohn had written in his report that he had seen a weapon, but that statement did not appear in his affidavit of probable cause. The Detective explained: the first report is merely an affidavit of probable cause, it is to basically summarize the incident in a quick fashion so we can type the warrant for his arrest and place him in the detention unit. This is a mere summary. . . . Once the affidavit is complete and once the complaints are typed and the person is lodged in the detention unit, then that is when you have more time to get your thoughts together and actually write a detailed in-depth police report.
At the conclusion of the testimony, defendant's counsel argued that Detective Udijohn did not have a reasonable suspicion that defendant was carrying a weapon when he reached for his waist, because defendant was wearing baggy jeans and was likely merely pulling them up. She contested the Detective's testimony that defendant had run, and she emphasized the fact that, in his affidavit of probable cause, the Detective did not mention seeing a weapon under the seat. Further, Detective Udijohn did not testify that he witnessed defendant removing a handgun from his waistband and placing it on the floor of the car, despite his close proximity to defendant. In these circumstances, counsel argued, the Detective's warrantless search of the vehicle, after defendant had been removed from it, violated the Fourth Amendment, there being no exigent circumstances to justify a warrantless search.
In denying defendant's suppression motion, the court found Detective Udijohn to have been a credible witness, and the court accepted the testimony he had provided at the hearing as true. The court found "no glaring inconsistencies" between the affidavit of probable cause and the Detective's trial testimony, and he accepted as plausible that Detective Udijohn would not have seen defendant actually remove the weapon from his waistband.
The court then found the search to have been permissible under the automobile exception to the warrant requirement, determining that the stop was unexpected; there was probable cause to believe that the vehicle contained a weapon, a part of which was in plain view when the interior of the vehicle was legally viewed by the light of the flashlight; and exigent circumstances were present making it impracticable to obtain a warrant. In that regard, the court found the situation to be rapidly developing, the neighborhood to be one in which there had been several recent shootings and homicides, and law enforcement was outnumbered by defendant and his companions, together with people in the neighborhood who were outside and nearby. The officer's own safety was a consideration. Further, the Detective and his partner had to consider the preservation of evidence and even whether the vehicle would remain at its then-existing location, given the presence of the two women who remained uncharged. In these circumstances, the court found that the automobile exception to the warrant requirement justified the warrantless search that was performed.
Prior to trial, the State dismissed the charge of second-degree unlawful possession of a weapon. As a consequence, trial took place only on the charge of possession of a weapon by a convicted felon. At trial, Detective Udijohn testified for the State, offering testimony that was very similar to that given at the suppression hearing, and testifying additionally that the two women standing with defendant denied any knowledge of the gun, that one woman was the owner of the Jeep, and that the two women were permitted to drive off in it after defendant's arrest. Trenton Police Detective Thomas Ertel testified that the handgun recovered from the Jeep was operable. No fingerprints could be recovered from the weapon or its magazine. A stipulation was read to the jury that:
Defendant David L. Johnson stipulates that he previously has been convicted of a crime which forms a predicate offense to the charge of certain persons not to possess a firearm.
Defendant testified on his own behalf, and in response to his counsel's questioning, he admitted that on December 3, 2003, he was sentenced to three years of imprisonment on a charge, and to a five-year concurrent term on another charge. Also, defendant admitted that he was convicted of another charge and was sentenced on August 17, 2007 to three years of probation.
Defendant testified that, at approximately 11:00 on March 19, 2008, he walked from Hoffman to Coolidge Avenues, carrying a bottle of beer, while intending to meet a female friend, "Yama," whom he found with a female companion standing next to a white Jeep on Coolidge Avenue. Defendant spoke to Yama, and then entered the Jeep, only to be "snatched out" by "a cop" from the Trenton Police Department. He was then put in handcuffs and searched, but nothing was found. Once that had taken place, one of the officers "grabbed the girls out" of the Jeep while the other one began to search it, continuing the search for fifteen to twenty minutes.
Defendant denied having possession of a handgun that day, he denied that he had reached for the floorboards of the Jeep, and he denied knowing that the Jeep contained a weapon. Defendant characterized the Jeep as a "party car," and he said that "[e]verybody" rode in it.
Defendant also testified that he was wearing clothing that was so baggy that he had problems keeping his pants up, even with a belt. As a consequence, he just held his pants up at the waist with his hands.
The jury did not accept defendant's version of events, and convicted him of possession of a weapon as a convicted felon. Following sentencing, this appeal was filed.
Defendant first argues that the trial court erred in denying his motion to suppress the weapon found by Detective Udijohn, arguing that the Detective's testimony lacked credibility because he failed to explain discrepancies between his affidavit of probable cause and his subsequent report. In this regard, defendant focuses on the fact that, in the affidavit, Detective Udijohn did not indicate that he had seen a weapon protruding from under the Jeep's seat, but instead stated that, "[b]ased on [his] training and experience, [he] feared that [defendant] was attempting to conceal a weapon." Defendant argues that this statement is fundamentally inconsistent with the Detective's later statement that he saw a weapon, and that the two statements cannot be reconciled by testimony by Detective Udijohn that, when writing his report, he had more opportunity to reflect. Relying on State v. Segars, 172 N.J. 481, 497-98 (2002), a racial profiling case, defendant argues that the State's failure to present an adequate explanation for the inconsistency in the Detective's testimony raised an inference that, at the hearing, he was not telling the truth.
We disagree, finding Segars inapplicable in the present context because the Court there utilized a burden-shifting analysis that was applicable only to cases involving improper racial targeting. See id. at 493-96 (adopting a Title VII, 42 U.S.C.A. § 2000e-2, model for analysis of what burden each party bears in a case involving improper racial targeting because racial targeting is a subset of discrimination).
Moreover, we note that the particular discrepancy upon which appellate counsel focuses was not discussed at the hearing, at which time the only focus was on the fact that Detective Udijohn had failed to mention that he had sighted the weapon in his affidavit of probable cause, not on the wording of that affidavit. For that reason, and in contrast to the facts of Segars, in which the trial focused on whether a discrepancy in police testimony suggested that the testifying police officer knew defendant to have been African-American before he ran a MDT check of his license plates, there was no reason for Detective Udijohn to offer any basis for the differences between the affidavit and his report other than the one to which he testified at the hearing. Furthermore, the hearing record establishes that the Detective saw what he "thought was a handgun." This statement thus can be reconciled with the statement that, on the basis of his training and experience, Detective Udijohn thought defendant was attempting to conceal a weapon.
As a consequence, we perceive no legal basis to disturb the trial court's credibility findings, to which we defer, State v. Johnson, 42 N.J. 146, 161 (1964). We also find the factual determinations underlying the court's decision to apply the automobile exception to the warrant requirement in this case to have been supported by sufficient credible evidence in the record. State v. Robinson, 200 N.J. 1, 15 (2009); State v. Elders, 192 N.J. 224, 243 (2007).
Defendant next argues that the court erred in giving a flight instruction, because no evidence of flight was adduced at trial. However, as the State points out, defense counsel proposed a voir dire question: "Do you think individuals who run from law enforcement are more likely to be guilty than those who do not flee?" Counsel stated before the trial began that: "I would be requesting a flight charge[.]" And at the charge conference on July 13, 2010, defense counsel inquired whether a flight charge would be given. Although counsel then stated that the evidence did not support such a charge, she agreed to a charge stating:
There has been testimony from which you may infer that the defendant fled shortly after the commission of the crime. The defense has suggested there was no flight. Mr. Johnson said he was sitting in the car when the officers arrived. And then, if you find the defendant's explanation credible, you should not draw any inference.
Our review of the record establishes that the court gave the following preface to the standard flight charge, to which there was no objection:
Now, ladies and gentlemen, there has been some testimony in the case from which you may infer that the defendant fled shortly after the alleged commission of the crime. The defendant has denied that he committed the crime and that he engaged in conduct that would constitute flight. He says he was already in the car when he was taken out of it. I believe he testified that he was, quote snatched out, close quote of the car by the police. He testified he did not see them before this occurred.
The record also reflects trial testimony by Detective Udijohn that, when he sighted defendant, he and the two females were standing three to five feet from the Jeep. After pulling up behind the Jeep and exiting the vehicle, the Detective observed defendant to become "visibly startled" and to grab his waistband with his right hand. Immediately thereafter, "[h]e runs into the right-rear passenger side of the vehicle and that door was open already." Within seconds, defendant was then seen by the Detective in the Jeep acting in a fashion that suggested he was concealing a weapon.
As a consequence of the foregoing, we are satisfied that evidence of defendant's rapid entry into the Jeep, at the sight of the officers, for the purpose of hiding evidence, was sufficient for the jury to infer a consciousness of guilt from flight. State v. Ingram, 196 N.J. 23, 46 (2008); State v. Mann, 132 N.J. 410, 418-19 (1993). In that regard, we note that all that is required is evidence of a departure, and then evidence of a motive for that departure. Id. at 421. While that motive is usually a desire to avoid arrest or prosecution, there is no basis for concluding that evidence of a desire to hide the evidence that would lead to the arrest and prosecution is insufficient to support a flight charge.
Moreover, we find that if any error occurred in giving the instruction, a proposition for which we find no support, it was invited. State v. Kemp, 195 N.J. 136, 155 (2008); State v. Lykes, 192 N.J. 519, 539 n.7 (2007).
During summation, the prosecutor erroneously stated in his closing argument:
David Johnson was presumed innocent when this trial started. The evidence came in. And once you start to deliberate that presumption is gone, because it's in your hands.
An objection was raised by defense counsel, leading to the following colloquy and further comment by the prosecutor:
THE COURT: I don't mean to interrupt everybody here, but I'm not sure I understand [counsel's] objection. I understand what the law is but my understanding of what the prosecutor was saying is he's commenting on when you come to that point in your deliberations.
DEFENSE COUNSEL: His comment was that as soon as you enter into the deliberating room that presumption is gone, that's inaccurate.
PROSECUTOR: I said once you deliberate.
THE COURT: I didn't hear that phrase that you said, so what I'm going to do is I'm going to overrule the objection. And, prosecutor, you understand what my ruling is. You have to make it clear that's when they come to that point in the deliberations that they find beyond a reasonable doubt, but I didn't hear it the way you said it.
DEFENSE COUNSEL: That's fine. . . . .
PROSECUTOR: Ladies and gentlemen, as I was saying, once you deliberate, that presumption is gone. It's up to you. It is the State's burden in this case to prove to you it's beyond a reasonable doubt.
Following closing arguments, the court instructed the jury that "any statements by the attorneys about what the law may be must be disregarded by you if they are in conflict with this charge." The court then properly instructed the jury that "[t]he defendant on trial is presumed to be innocent . . . unless each and every essential element of an offense charged is proved beyond a reasonable doubt." The court further instructed the jury that the burden never shifted to the defendant, and the court informed the jury what constituted proof beyond a reasonable doubt.
On appeal, defendant claims that the prosecutor's comment constituted misconduct of sufficient magnitude to warrant a new trial. We agree that the prosecutor's first statement was legally inaccurate. See State v. Daniels, 182 N.J. 80, 92 (2004) (the "presumption of innocence  survives until a guilty verdict is returned") (quoting Portuondo v. Agard, 529 U.S. 61, 76, 120 S. Ct. 1119, 1129, 146 L. Ed. 2d 47, 60-61 (2000) (Stevens, J., concurring)). We additionally find the prosecutor's amendatory comment to have been unclear since, in it, he did not specify that the presumption remained until quilt was found on each element of the crime under consideration.
However, we are satisfied that any error or confusion caused by the prosecutor's comment was rectified by the court's jury instructions, which clearly told its members to disregard any statements made by the attorneys with respect to the law and, instead, to follow the court's instructions, which properly set forth the State's burden and the presumption of innocence.*fn1
Absent evidence to the contrary, which is nonexistent here, the jury is presumed to have followed the court's instruction. State v. Martini, 187 N.J. 469, 477 (2006), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007); State v. Marshall, 173 N.J. 343, 355 (2002); cf. also State v. Medina, 147 N.J. 43, 52-53 (1996) (finding that the fact that an inaccurate description of reasonable doubt by the court was followed by a more accurate one "leads us to believe that the offending language was unlikely to have lessened the State's burden of proof in the eyes of the jury"). As a consequence, we do not find a new trial to be warranted, being satisfied that defendant was not deprived of his "fundamental right to have a jury fairly evaluate the merits of his defense." State v. Wakefield, 190 N.J. 397, 437-38 (2007) (citations omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
Defendant also complains that the prosecutor disparaged the defense and suggested that defendant had created a story to explain his actions. He suggests that the court committed plain error when it failed to instruct the jury to disregard the prosecutor's statements, and as a consequence, defendant claims he is entitled to a new trial, since the comments were "clearly capable of producing an unjust result."
Defendant notes that the prosecutor characterized defendant's version of what had occurred as "nonsense," that his testimony that it took a fifteen- to twenty-minute search to locate the gun was "a bunch of nonsense," and that defendant's assertion that he was targeted because he was black was "ridiculous," given the fact that the population in the area was predominately African-American. Defendant also objects to the prosecutor's further statements regarding defendant's theory of targeting:
Most of the people out there are African Americans. How are they targeting him then if everybody else out there was African American that night. Doesn't even make sense. That's ridiculous. And after that his story gets even more ridiculous. You see he can't escape the fact that Detective Udijohn recovered a handgun right from where he was sitting in that Jeep, so what he does is he denies that he was ever reaching down between his legs. He can't put himself that close to the weapon, but he has to come up with some explanation as to why a handgun was right where he was, inches away from him, after the police saw him running to the car. So he comes up with, well, it's a party car. . . . It's ridiculous. It's a story and it's not true. So, ladies and gentlemen, the story you heard from the defendant on the stand is nonsense; and there are two things that you can do with that: First is, you know what, this is just garbage and just disregard it entirely.
We are satisfied that the prosecutor's comments were improper. A prosecutor is not permitted to cast unjustified aspersions on defense counsel or the defense. State v. Frost, 158 N.J. 76, 86 (1999); State v. Lockett, 249 N.J. Super. 428, 434 (App. Div.), certif. denied, 127 N.J. 553 (1991).
However, we do not find that the comments were so egregious, inflammatory and prejudicial as to have denied defendant a fair trial. Compare, e.g., Frost, supra, 158 N.J. at 80-81. While the prosecutor should not have expressed his disbelief in defendant's version of events in the terms that he did, there was a substantial basis in the record for concluding that defendant's testimony constituted a fabrication.
Further, we do not find this case to be similar to State v. Acker, 265 N.J. Super. 351 (App. Div.), certif. denied, 134 N.J. 485 (1993), upon which defendant relies. In Acker, the prosecutor not only disparaged the defense, but also suggested to the jury in a prosecution for sexual abuse of young girls that it was the jury's duty to protect children who had no other spokesperson, and that the alleged child victims should be given justice. Id. at 354-55. No such blatant appeal exists in the present record. As a result, we do not find the prosecutor's misconduct to have been so egregious in the context of the summation as a whole as to deprive defendant of a fair trial. State v. Smith, 167 N.J. 158, 181-82 (2001); Frost, supra, 158 N.J. at 83.
As a final matter, defendant claims that his extended-term sentence of fifteen years in custody with a six-year parole disqualifier was excessive. At sentencing, to establish defendant's eligibility for a discretionary extended term pursuant to N.J.S.A. 2C:44-3a, the prosecutor offered evidence of a December 3, 2003 Delaware judgment of conviction for second-degree robbery and of a Delaware judgment of conviction under a separate indictment for possession of a firearm in the course of committing a felony. He also produced an August 17, 2007 conviction in Mercer County for third-degree possession of a controlled dangerous substance. Remarking that the present matter thus constituted defendant's fourth felony conviction, and holding that the evidence presented met statutory criteria for the imposition of an extended term, the court granted the State's motion, declaring that defendant would be sentenced, in accordance with State v. Pierce, 188 N.J. 155 (2006), to a term between five and twenty years.*fn2
In establishing a sentence, the court found aggravating factor three (the risk that defendant would commit another offense), six (the extent of his prior record and the seriousness of the offenses, including a second-degree robbery), and nine (the need for deterrence). N.J.S.A. 2C:44-1a(3), (6) and (9). The court found no mitigating factors, emphasizing that defendant had never held "a legitimate long-term verifiable position of employment" and that he had no specialized skills. The court reiterated that an extended-term sentence was appropriate, given the fact that this was defendant's second conviction for a firearm crime, and the existence of his two violent crime convictions in Delaware. The court thus imposed the fifteen-year sentence with six years of parole ineligibility that has previously been mentioned. Defendant was sentenced to a concurrent term of five years on a violation of his 2007 probationary sentence.
On appeal, defendant contends that the court should have found mitigating factors (1) that his conduct did not cause serious harm, and (2) that defendant did not contemplate that his conduct would cause serious harm. N.J.S.A. 2C:44-1b(1) and (2). Given the fact that the gun in defendant's possession was found to have a bullet in the chamber, we do not regard defendant's position as factually sustainable.
Defendant also argues that the court abused its discretion when it gave weight to defendant's convictions for robbery and drug possession both in determining to impose an extended term and setting the sentence above the midrange. We disagree, regarding the court's focus in setting defendant's term of custody to have been on the fact that more than one gun possession conviction had been established and that defendant had committed crimes of violence. Neither fact required consideration in granting the State's extended term motion. We thus find no error. State v. Bieniek, 200 N.J. 601, 607-08 (2010).