STATE OF NEW JERSEY v. YAHYAH JOHNSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1210-04T41210-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

YAHYAH JOHNSON,

Defendant-Appellant.

___________________________________________________________

 

Submitted March 28, 2006 - Decided August 8, 2006

Before Judges Kestin and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 02-10-1283, 04-01-0026, 04-01-0261; Accusation Nos. 01-03-0307, 03-12-1528, 04-05-0631.

Yvonne Smith Segars, Public Defender, attorney for appellant; (Alison Perrone, Designated Counsel, on the brief).

Nancy Kaplan, Acting Attorney General of New Jersey, attorney for respondent; (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief).

PER CURIAM

Although this appeal involves multiple convictions of defendant Yahyah Johnson for drug related offenses dating back to 2001, the central focus of the appeal is upon the admission of the testimony of an expert witness at the jury trial of charges contained in Indictment No. 02-10-1283. For proper context, however, and because defendant was sentenced on the same date for several convictions, it will be helpful to review the charges underlying each of defendant's various convictions.

Defendant's first conviction arose out of Union County Accusation No. 01-03-0307, which was filed on March 14, 2001, and charged defendant with third degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1). Defendant pled guilty to that accusation, and on July 13, 2001, he was sentenced to three years probation with house arrest for ninety days under the wristlet program. On September 6, 2001, defendant pled guilty to violating probation, but he was permitted to continue on probation.

On October 24, 2002, while he was still on probation, defendant was charged in the indictment the trial of which is the principal focus of this appeal. That indictment, Union County Indictment No. 02-10-1283, charged that on March 13, 2002, defendant committed the following drug-related offenses: third degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one); third degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); second degree possession of heroin with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four); third degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count five); third degree distribution of heroin within 1000 feet of school property, N.J.S.A. 2C:35-7 (count six), and second degree distribution of heroin within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count seven). On March 29, 2004, prior to the start of the jury trial on those charges, the court granted the State's motion to dismiss counts four and seven. Then, on March 31, 2004, at the close of the State's proofs, the school zone charges, counts three and six, were dismissed. The jury deliberated and found defendant guilty of the remaining charges: possession of heroin (count one); possession of heroin with intent to distribute (count two); and distribution of heroin (count five).

On April 26, 2004, while defendant was awaiting sentencing on Indictment No. 02-10-1283, he entered guilty pleas under Union County Indictment No. 04-01-0026 to third degree possession of CDS, with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two), and under Accusation No. 01-03-0307, for violating probation.

On May 28, 2004, defendant was sentenced on these various matters. The court revoked probation and re-sentenced defendant, under Accusation No. 01-03-0307, to a four-year term in prison. Under Indictment No. 02-10-1283, the court merged count one, third degree possession of CDS with intent to distribute, with count two, third degree distribution of CDS, and sentenced defendant on counts two and five to concurrent terms of five years in prison with an eighteen-month period of parole ineligibility. Those prison terms were to be served consecutively to the sentence for the violation of probation. Under Indictment No. 04-01-0261, defendant pled guilty to third degree possession of CDS with intent to distribute and was sentenced to five years in prison, consecutive to Accusation 01-03-0307 and Indictment No. 02-10-1283, with a thirty-month parole disqualifier. Under Accusation No. 04-05-0631, the judge imposed another five-year prison term, with thirty months of parole ineligibility, concurrent to Accusation No. 04-05-0631, but consecutive to the five year sentences on Accusation No. 01-03-0307 and Indictment No. 02-10-1283. Thus, defendant was sentenced to an aggregate prison term of fourteen years with four years of parole ineligibility.

On this appeal, defendant makes the following assertions of error:

POINT I: THE ADMISSION OF EXPERT TESTIMONY OF DRUG TRAFFICKING THAT INCLUDED NOT ONLY GENERAL METHODS OF DRUG DISTRIBUTION BUT ALSO THE OPINION THAT DEFENDANT HAD ENGAGED IN STREET-LEVEL DRUG DISTRIBUTION IMPERMISSIBLY INVADED THE PROVINCE OF THE JURY.

POINT II: PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW).

POINT III: THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO AN AGGREGATE TERM OF FOURTEEN YEARS WITH FOUR YEARS OF PAROLE INELIGIBILITY.

POINT IV: IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR RESENTENCING PURSUANT TO STATE V. NATALE, 184 N.J. 458 (2005). (NOT RAISED BELOW).

We are not persuaded by defendant's arguments of trial error, but the State concedes that re-sentencing is required under State v. Natale, 184 N.J. 458 (2005), because the trial judge relied on aggravating factor eleven (11), the cost of doing business, to impose a sentence in excess of the then presumptive. Since the sentences on all of the indictments and accusations were imposed at the same time and likely influenced one another, we remand the entire sentencing package for the trial judge for further review.

The following facts, derived from the record, relate to defendant's assertions of trial error. On March 13, 2002, at around 3:00 p.m., Officer Joseph Gramiak, then in his twelfth year with the Elizabeth Police Department, and his partner, Officer Kiely, responded to the 600 block of Franklin Street in Elizabeth based on information received. The officers were dressed in plainclothes. They were using an unmarked vehicle.

Officer Gramiak testified that he observed a Hispanic male and a black female, later identified as co-defendants Pedro Malve and Sandra Leon, approach defendant and co-defendant Carlos Cosme on the sidewalk on Franklin Street. The officers parked their vehicle several houses away from the group in order to observe their activities. Defendant and his three companions had a brief conversation and then started walking in the direction of the officers' undercover vehicle. Gramiak observed defendant hand a small item to Malve and Leon. At this point, defendant, Malve, Leon and Cosme looked around the area nervously. Gramiak testified he then observed Malve and Leon in the process of handing currency to defendant.

Officer Robert Cifrodelli was also in the area at that time driving alone in a marked police patrol truck. He testified he saw, as he came around the corner from Seventh onto Franklin Street, a group of people standing on the side, three males and one female. He observed defendant hand something to Malve and Malve start to hand money to defendant. Cifrodelli quickly stopped his police vehicle and angled it to try to stop the group from escaping and then he exited the vehicle. As he did, the car occupied by Keily and Gramiak also pulled up. Cifrodelli saw defendant drop a clear plastic bag to the ground, which Cifrodelli testified he pretended not to see so he could talk to defendant and put everybody there at ease.

As Officers Gramiak and Keily approached, Officer Cifrodelli placed handcuffs on defendant. Gramiak picked up the plastic bag which he had also seen defendant discard. The bag contained sixteen packets of heroin, each having the identical stamp of "State Property." The heroin weighed 1.41 grams.

Gramiak also testified he observed Malve walking back and forth with his left hand clenched. When he asked Malve to walk to him, Malve dropped a bag from his hand. That bag contained .080 grams of heroin. Defendant, Cosme, Malve and Leon were arrested and transported to police headquarters and each was searched. Nothing was found on defendant. Malve had $465.50 in cash. Cosme had a glassine envelope stamped "State Property" containing .031 grams of heroin and $40.50 in cash.

Defendant did not testify at trial but presented the testimony of co-defendant Carlos Cosme. Cosme had previously pled guilty to possession of heroin for this offense and was sentenced to probation. At the time of trial, he was incarcerated on a violation of the terms of his probation. Cosme testified he was with defendant on May 13, 2002 and they went to Franklin Street so Cosme could buy some heroin. Cosme said that he bought a bag of heroin from a "Mexican joker" in a hand-to-hand transaction. Cosme paid $5 and put the heroin in his pocket. After the transaction was complete, six to seven police officers arrived and arrested him, defendant, the "Mexican" and a woman. Cosme denied that he bought the drugs from defendant or that defendant bought drugs from anyone. Cosme saw the bag of drugs on the ground and initially testified that the "Mexican" dropped it. He admitted on cross-examination that he did not see who actually dropped the bag of heroin.

Detective Jamieson Antonio of the Union County Prosecutor's Office testified for the State as an expert in the field of narcotics and narcotics distribution. He expressed his opinion, in response to a hypothetical question that assumed facts that paralleled the facts presented in this case, that the hypothetical individual identified as "Mr. X possessed the narcotics with the intent to distribute" and that the individuals in the hypothetical were involved in a drug distribution scheme. Specifically, the prosecutor elicited the following:

Q. Okay. Detective, assume the following facts.

In a high narcotics arrest two officers in separate units saw a person referred to as Mr. X involved in what was a hand-to-hand transaction. That is, they saw Mr. X hand a small item to another individual, whom we will call the buyer, and this buyer attempted in exchange for that small item to hand US currency to Mr. X. After observing this they converged on the location.

. . . .

[The prosecutor]: I'll refer to the buyer as Mr. Y.

Q. Mr. X hands Mr. Y a small item in exchange for US currency. After the officers saw this they converge on the area and as they do both officers see Mr. X drop a plastic bag containing what is later to be determined folds of heroin in two bundles, which are substantially similar to that which is contained in what's been marked S-2a for identification.

In addition, Mr. Y, as he attempts to walk away, drops a fold of heroin, which is later recovered by those officers, which is substantially similar to that which has been marked S-2b for identification.

It's also later determined that another individual that happens to be in the group has a -- what's later to be determined as another fold of heroin, which was substantially similar to what's been marked S-2c for identification.

All of these individuals are then subsequently arrested. Mr. X is found to be in possession of no US currency. Mr. Y has $456.00 in US currency in his possession. And the other individual has $40.00 in currency in his possession.

Based on the hypothetical set of facts, Detective, are you able to render an opinion as to whether Mr. X possessed the drugs, that are substantially similar to S-2a, for distribution or for personal use?

A. I am.

Q. And what is that opinion?

. . . .

Q. Would you tell the jury what that opinion is?

A. The individual you described in your hypothetical as Mr. X possessed the narcotics you described with the intent to distribute.

Q. And what are the reasons for that opinion?

A. It's based on five factors. They include the quantity of narcotics recovered, packaging of the narcotics recovered, monetary value of those narcotics, the results of the surveillance and observation of the investigative team, and the geographical area the hypothetical took place.

On re-direct examination, the following questions and answers were presented:

Q. In the . . . original hypothetical that I gave you.

In that hypothetical I indicated that Mr. X was attempting to hand a small object to Mr. Y while Mr. Y was attempting to hand currency back to Mr. X.

Did that have any significance in your opinion that you gave here in court today?

A. Certainly.

Q. Very quickly, again, what was the significance of that?

A. The activity you described in your hypothetical is the prototypical hand-to-hand narcotics transaction where the dealer is handing over the small object, what is presumably the vessel of narcotics, in return for the currency which was being supplied by the buyer to complete the transaction. That is textbook.

[(Emphasis added).]

Defendant argues that testimony impermissibly invaded the province of the jury. We disagree.

We start with the premise that "[a]dmission of expert testimony on drug possession and distribution techniques is permissible when reasonably required to assist jurors in understanding subjects that are beyond the ken of an average layperson." State v. Nesbitt, 185 N.J. 504, 507 (2006). See also N.J.R.E. 702. Therefore, "[i]f the expert's testimony on such a subject would help the jury understand the evidence presented and determine the facts, it may be used as evidence." State v. Summers, 176 N.J. 306, 312 (2003) (quoting State v. Odom, 116 N.J. 65, 71 (1989)). See also State v. Berry, 140 N.J. 280, 304 (1995) ("[J]urors in general are totally unfamiliar with the techniques used by street-level drug dealers.").

On the other hand, no expert is needed to explain transactions that take place in a straightforward manner. Nesbitt, supra, 185 N.J. at 516. See also State v. Boston, 380 N.J. Super. 487 (App. Div. 2005); State v. Singleton, 326 N.J. Super. 351 (App. Div. 1999); and State v. Baskerville, 324 N.J. Super. 245 (App. Div. 1999) certif. denied, 163 N.J. 10 (2000). The problem, which the Court has openly acknowledged is that "[a]lthough an expert is not needed to state that which is obvious, the circumstances underlying [a] defendant's drug charges may not have been obvious to the laypersons of the jury." Nesbitt, supra, 185 N.J. at 507. Thus, "[t]rial courts are expected to perform a gatekeeper role in determining whether there exists a reasonable need for an expert's testimony, and what the parameters of that testimony may be." Id. at 514. "Whether expert testimony is admissible rests in the trial court's sound discretion. 'Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.'" Summers, supra, 176 N.J. at 312; N.J.R.E. 704. "The underlying rationale in allowing expert testimony is that jurors normally require 'the insight of an expert to explain the significance of the properties, packaging and value of illegal drugs.'" Ibid. (quoting Odom, supra, 116 N.J. at 76. Such is true of this case.

Obviously, "an expert's testimony that expresses a direct opinion that defendant is guilty of the crime charged is wholly improper." Odom, supra, 116 N.J. at 77. The State's expert avoided such a direct opinion. The witness, whose qualifications are not disputed, observed the Court's guidelines by confining his opinions to the hypothetical characters identified in the questions posed.

Moreover, the trial court reminded the attorneys and the jurors before any opinion was expressed that "He's qualified in the area of narcotics trafficking and the issue of intent [but] the ultimate issue before you is still yours. He can't give an opinion as to this gentleman here, just on the issue only." Again during the charge to the jury, the court reiterated:

[Expert witnesses] are permitted to testify to their knowledge, seeking to give you an aid about an area beyond your expertise.

Now, you are not required to accept them as being truthful or a credible person. You must size them up as you would anybody else. In this case, the man testified based upon a hypothetical question and he was asked, you heard it, "Assume the following facts to be true, and do you have an opinion," and he told us. The cross asks, "Change the facts a little bit. What is your opinion?" A, you must determine the underlying facts yourselves, vis- -vis this case, because the underlying facts he was asked to assume are the predicate for his particular opinion.

B, you must determine to what extent it's helpful, that his knowledge that he put forth to you on this particular issue, did he give you some insight or not, but the ultimate decision of this gentleman's intent or non-intent cannot be given by the expert. You could only talk on a hypothetical basis because that is the law. You must determine this man's guilt or innocence yourselves on the count involved on intent, and the expert cannot relieve you or your responsibility in any way.

The jurors did not need expert assistance to decide whether or not to believe the State's witnesses who testified they saw defendant drop a container of drugs after they saw him exchange drugs for money, or whether or not they should believe Cosme, one of the participants who himself pled guilty but who testified that defendant had merely accompanied him to the location and that defendant neither held or bought drugs. The testimony of the expert did not usurp the jurors role on those basic questions. That testimony did, however, provide insight that might have assisted the jurors in deciding those issues.

Defendant also contends that the prosecutor violated defendant's right to a fair trial by vouching for the credibility of Officers Gramiak and Cifrodelli. At issue are the following statements made by the prosecutor:

In this case there is really a choice before you. You could believe the cops or not or you could believe Mr. Cosme or not and, obviously, it's the State's position you should believe the cops, and now let's talk about why you should believe the cops. Let's look at their motive to lie or not tell the truth.

There is really no motive for them to lie in this case. In fact, ladies and gentlemen, you heard Officer Gramiak admit to you on the stand a mistake. There is no reason why he had to admit that other than that he's a credible, honest cop and testified truthfully before you.

Because the defendant did not object to the prosecutor's comments at the time, our review of his challenge is under the plain error standard. Summers, supra, 176 N.J. at 316. In order for defendant to prevail, the alleged error or omission must "have been clearly capable of producing an unjust result." R. 2:10-2.

When presenting the summation, the prosecutor is bound to confine his comments to the facts revealed during trial and any reasonable inferences that may be drawn therefrom. State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989). Prosecutors are allowed significant freedom as long as the commentary is "reasonably related to the scope of the evidence before the jury." State v. Harris, 141 N.J. 525, 559 (1995). In fact, in criminal cases, prosecutors are entitled and "expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999); Harris, supra, 141 N.J. at 559.

When determining whether a prosecutor's remarks during summation were improper and require reversal, an appellate court must first decide whether the prosecutor's conduct deprived a defendant of a fair trial. Frost, supra, 158 N.J. at 83. To warrant reversal, the prosecutor's conduct "must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Smith, 167 N.J. 158, 182 (2001) (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001)). In making this determination, the court should consider factors such as "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Ramseur, 106 N.J. 123, 322-23 (1987). When no objection is made, an appellate tribunal often will find no prejudice because the absence of a timely objection indicates that the defense did not find the remarks prejudicial when made. Frost, supra, 158 N.J. at 83-84. The failure to interpose a timely objection also deprives the court of a chance to remedy the problem. Id. at 84.

Based on our independent review of the record in this case, we are convinced the prosecutor's summation was a fair response to the defense summation and did not amount to impermissible vouching. See State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000) (holding that a prosecutor is not required to "idly sit as a defense attorney attacks the credibility of the State's witnesses"). The defense summation attacked the credibility of the two police officers who testified that they observed defendant participating in a drug transaction and discarding drugs. Defense counsel argued that the police officers had "a different perspective" that influenced their testimony. For example, defense counsel stated:

[The officers] think they [saw] Yahyah Johnson throwing something down. They think so much that they will put their hand on the Bible and swear that is what they saw and I, honestly, believe that they think that and they will think that till the death, but they are wrong. The circumstantial evidence proves they are wrong. It doesn't make sense if it happened the way they say. That is not going to change their minds, but their minds are not what needs to be decided, it's your minds.

The prosecutor's response did not exceed proper bounds. "A prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.) certif. denied, 182 N.J. 148 (2004). Here, the prosecutor's comments did not vouch for the truth or accuracy of the witness's statements. He merely asserted they had no motive to lie. State v. Murray, 338 N.J. Super. 80, 88 (App. Div.) certif. denied, 169 N.J. 608 (2001). In the end, it is left to the jury to judge whether the officers were mistaken about what they claimed they saw or whether they had a "perspective" or motive that colored their perceptions or recollections. Given the absence of any objection and considering the context of the comments of the prosecutor, we do not find error, much less plain error.

As we noted, the State has conceded that a remand for sentencing is necessary under Natale. Accordingly, we remand solely for that purpose.

Remanded for consideration of sentence in light of Natale. Otherwise, affirmed.

 

Defendant admitted that on August 19, 2003, he was a passenger in a vehicle with Luis Cancio and Terry Washington. The vehicle was stopped by the police for motor vehicle infractions. Drugs belonging to defendant were found in the rear seat armrest in plain view. Defendant was in possession of thirty bags of heroin and two vials of cocaine intended for distribution.

Defendant pled guilty on May 28, 2004, to third degree possession of heroin with intent to distribute. He admitted that on October 9, 2003, he was in Elizabeth working with Darnell Manning, selling heroin and they had one-hundred bags of heroin hidden in a backyard.

Officer Gramiak admitted that in the complaint he signed and in his testimony before the grand jury he had sworn, mistakenly, that he had observed the subject activities in front of 623 Franklin Street. At trial, he testified the correct address was 642 Franklin Street. That address was not within 1000 feet of a school zone nor within 500 feet of a public park.

(continued)

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A-1210-04T4

August 8, 2006