NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3189-18T4
STATE OF NEW JERSEY,
JOHNELL MCCOY, a/k/a
JOHNELL WILLIAMS, III,
and JOHNELL MCCOY, JR.,
Submitted November 5, 2020 – Decided November 24, 2020
Before Judges Ostrer and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 17-02-
Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel V. Gautieri, Assistant Deputy Public
Defender, of counsel and on the brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Stephen C. Sayer,
Assistant Prosecutor, of counsel and on the brief).
For about a month, police surveilled defendant Johnell McCoy while he
visited his mother's Vineland home. Then, pursuant to a warrant, they searched
the home and seized cocaine, drug packaging, a scale, and cash from one room,
and a handgun from a closet. They also arrested McCoy, alleging that the drugs,
gun and money all belonged to him.
After a trial, a jury found McCoy guilty of possession of a controlled
dangerous substance (CDS), cocaine, N.J.S.A. 2C:35–10(a)(1), and of doing so
with the intent to distribute, N.J.S.A. 2C:35–5(b)(3) — both third-degree crimes.
The jury acquitted McCoy of possession of a weapon while committing a CDS
offense, N.J.S.A. 2C:39–4.1(a), a second-degree crime. The court then imposed
an extended term of five years, with a two-and-a-half-year period of parole
On appeal, McCoy contends that three errors, singly or cumulatively,
denied him a fair trial. First, he complains that the jury heard testimony from
which it could infer that, before arresting McCoy, police obtained drugs from
the Vineland home three times. The judge promised to instruct the jury to
disregard that testimony, but he never actually gave the instruction. Second, the
prosecutor stated in summation — contrary to the record — that people visited
McCoy at the home at all hours of the night. This misstatement was especially
prejudicial because it dovetailed with a State expert's opinion that such visits
typically occur where drugs are sold. Third, McCoy contends that the court
should have delivered the "mere presence" section of the model jury instruction
We agree that the first two errors, together if not singly, were clearly
capable of producing an unjust result. See R. 2:10–2. When viewed in light of
the record as a whole, those errors evidently convinced the jury that much more
drug activity occurred at the Vineland home than the State proved by admissible
evidence. Therefore, we reverse.
The State's case was circumstantial. No one testified to seeing McCoy
selling, or even possessing, drugs. No forensic evidence tied McCoy's DNA or
fingerprints to any of the items police seized.
New Jersey State Trooper Michael Cresci, the lead investigator, testified
that he observed the Vineland home more than twenty times during the roughly
month-long surveillance period. He did so at various times of day, for up to
forty-five minutes at a time. McCoy was the only person he observed outside
the home; the trooper never saw anyone else with McCoy. He evidently did not
see McCoy's mother, who lived there and parked her car there, but who worked
long hours. He often saw McCoy playing with two pit bulls, and he once saw
McCoy remove a duffle bag from his car.
The State did not contend that McCoy lived at his mother's home.
McCoy's mother testified that he often visited to help with the dogs while she
was at work. She said that he occasionally slept over, probably staying in the
living room. The mother of one of McCoy's children testified that McCoy lived
with her before his arrest. She also owned the car McCoy drove to and from the
McCoy's mother testified that McCoy was not the only family member
who stayed in her home. Others — including her adult nephew and McCoy's
adult brother — also visited. Her adult nephew stayed in the living room when
he visited, and McCoy's adult brother had access to every room in the home. An
adult granddaughter, who had moved out a few weeks before the search and
seizure, had also stayed in the living room.
McCoy's mother testified that she never saw McCoy with a gun nor was
she aware of any drugs in her home. McCoy's paramour testified that she never
saw McCoy with drugs or a gun. However, McCoy was the only person present
in the home when the drugs and gun were seized. Police found the drugs, $1600
in cash, and small plastic bags in a closed but clear plastic Tupperware container
in the living room of the two-bedroom apartment. They also found a scale in
the apartment, and additional cash in the car McCoy drove.
To persuade the jury that McCoy possessed the drugs, and that he did so
with intent to distribute, the State called a police drug expert. He testified that,
in conducting their business, drug dealers often possess guard dogs, guns, scales,
plastic bags, and substantial amounts of cash — all things police observed or
However, the expert also confirmed that a "high volume of foot traffic . . .
coming into a specific residence would be indicative of drug sales" — but no
one testified to seeing a high volume of foot traffic at the Vineland home. The
expert explained that, if drug sales were occurring at a house, police might see
a visitor who did not "live at that house or have any reason to even be at that
house," and that "anything from seconds to minutes later," the visitor would
leave. He added that "that would happen numerous different times a day with
The State's laboratory expert, called to establish that the substance seized
from the home was in fact cocaine, indicated that drugs originated from the
home on three prior occasions and that there were four "offense date[s]" — not
just the one for which McCoy was tried. Specifically, on direct examination,
the expert testified that she had "four separate evidence receipts." She
explained, "So even though all four of them came into the laboratory at the same
time, if you look in the center of the evidence receipt, it has an offense date of
April 4, 2016; April 11, 2016; April 18, 2016; and May 9, 2016." She added
that each sample had to be tested "per . . . protocol."
The expert's testimony violated a pre-trial ruling. The three prior dates
apparently related to a confidential informant's "controlled purchases" at the
home. After the jury was impaneled but before trial began, the trial court had
confirmed that there would be no testimony "about anything the confidential
informant did, including surveillance of . . . him or her going to the property,
purchasing anything and leaving the property." The prosecutor agreed.
The court did allow witnesses to testify that they had seen persons other
than the informant. But no witness testified to seeing anyone but McCoy.
Although defense counsel did not object when the laboratory expert
referred to multiple offense dates, the judge called for a side-bar as soon as the
expert answered the prosecutor's question. However, the transcript reports the
side-bar exchange as essentially indecipherable (except for the prosecutor's
statement that only one sample was actually tested).
Once the witness resumed her testimony, she again referred to multiple
dates, noting that the scientist who actually did the testing "was assigned to do
one item from each date." Defense counsel did not object.
After defense counsel briefly cross-examined the expert to confirm that
the cocaine weighed less than a half-ounce, the prosecutor asked for a side-bar.
Again, the transcript reports the lawyers' comments as largely indecipherable.
But during the side-bar, the judge clearly stated that he intended to deliver
a curative instruction. Referring to May 9, when police searched the home and
arrested McCoy, the judge stated:
As a matter of fact, I'm going to give a limiting
instruction to the jurors with reference to samples.
I don't want the (indecipherable). I want the
record to be clear (indecipherable) not consider any
reference to anything prior to May 9, okay. All right.
For reasons that I have explained (indecipherable).
The prosecutor consented. However, the judge never delivered the instruction.
In summation, defense counsel argued that McCoy, one of several family
members who visited the home, was unaware of the cocaine in the living room.
The prosecutor pointed out that McCoy was the only person present when police
entered the home; that the drugs were easily discernable in a clear container; and
that the drugs, scale, and plastic bags were in the only room that was actively
occupied when the police entered.
But the prosecutor did not stop there. She bolstered the State's case by
asserting, without evidential support, that police saw multiple people coming
and going at the Vineland home. According to her account, Trooper Cresci
testified that he not only saw defendant "consistently enter[ing] and exit[ing]
this house," but that he also saw "a lot of foot traffic and other people
continuously enter through" the same door. She embellished:
[H]e explained to you that during the time that these
observations were met [sic], people would come to this
particular residence on this side of the door on foot, in
cars, at all times of night. They would enter and they
would be greeted by the defendant. The defendant
would allow them in the house, they would stay there
for -- and you remember. I want you to recall
specifically how long he stated that he would -- that
those people would be in there for. Not long. Seconds.
He described it as what would be seconds. And after
that, they would leave.
As noted, the trooper said nothing of the kind. He testified that the only person
he ever saw at the home was defendant.
The jury evidently accepted the prosecutor's false characterization of the
trooper's testimony. Shortly after the jury began deliberating, it asked, "Can you
confirm that Mr. McCoy was the only one in the house during the investigation
when people were coming in and out of the house for seconds at a time?" The
court responded, "We're not here to tell us [sic] what the facts are. So you have
to make that determination as to those facts in this case." Defense counsel did
not object during or after this exchange.
The jury also requested a playback of the trooper's testimony, but before
the playback, an alternate juror was substituted, and the jury began deliberating
anew. The reconstituted jury again asked for the playback and the court obliged.
Less than three hours later, the jury rendered its verdict.
Defendant presents the following points for our consideration:
WHILE THE COURT RECOGNIZED THE
IMPROPRIETY OF EVIDENCE THAT McCOY HAD
COMMITTED DRUG CRIMES ON PRIOR
OCCASIONS THAT WERE NOT CHARGED IN THE
INDICTMENT, IT COMMITTED REVERSIBLE
ERROR WHEN IT FAILED TO STRIKE THAT
TESTIMONY AND PROVIDE THE LIMITING
INSTRUCTION THAT IT RECOGNIZED WAS
A NEW TRIAL IS REQUIRED BECAUSE THE
PROSECUTOR TOLD THE JURORS IN HER
SUMMATION ABOUT EVIDENCE, NEVER
PRESENTED AT TRIAL, THAT ESTABLISHED
THAT McCOY WAS A DRUG DEALER. (NOT
BECAUSE THE DEFENSE TO THE DRUG
CHARGES WAS THAT McCOY DID NOT POSSESS
THE NARCOTICS BUT WAS MERELY PRESENT
IN THE ROOM WHERE THEY WERE LOCATED,
THE COURT COMMITTED REVERSIBLE ERROR
WHEN IT OMITTED THE PARAGRAPH OF THE
MODEL CHARGE ON "POSSESSION" THAT
ADDRESSES "MERE PRESENCE." (NOT RAISED
THE COURT SHOULD REVERSE BASED ON
CUMULATIVE ERROR. (NOT RAISED BELOW).
We are persuaded that the laboratory expert's uncured reference to
multiple offense dates and drug samples, combined with the prosecutor's
uncorrected misstatement about people visiting and interacting with defendant
at all hours of the night, may have "led the jury to a result it otherwise might not
have reached." See State v. Macon, 57 N.J. 325, 336 (1971). That is plain error.
Id. at 337. Thus, it warrants reversal, notwithstanding defense counsel's failure
The competent and admissible evidence against McCoy was less than
overwhelming. Notably, the jury did not find that McCoy possessed the gun in
the course of committing a drug crime — perhaps because police found the gun
outside the room with the drugs, or perhaps because DNA analysis failed to link
McCoy to the gun.
Obviously, someone possessed the gun and drugs that police found in the
home. On one hand, McCoy was the only person present when police seized the
items. Furthermore, the trooper often saw McCoy at the house. On the other
hand, McCoy's mother testified that other adult family members, including
McCoy's brother, visited the home and had access to the room where the drugs
The expert's reference to multiple offense dates and multiple drug samples
helped link the drugs to McCoy. Her testimony suggested uncharged drug
crimes, and although she did not mention McCoy in connection with those
crimes, the jury could easily infer his involvement. McCoy was the only
constant presence at the home, in the eyes of the surveilling trooper.
"The likelihood of prejudice is acute when the proffered evidence is proof
of a defendant's uncharged misconduct." State v. Stevens, 115 N.J. 289, 302
(1989) (quoting Edward J. Imwinkelried, The Need to Amend Federal Rule of
Evidence 404(b): The Threat to the Future of the Federal Rules of Evidence ,
Vill. L. Rev. 1465, 1487 (1985)). Evidence of previous crimes "risks conviction
because the jury may conclude defendant is a bad person with a propensity to
commit crimes." State v. Herbert, 457 N.J. Super. 490, 509 (App. Div. 2019)
A court must exclude other-crimes evidence unless the proponent offers it
for a permissible purpose, "such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident when
such matters are relevant to a material issue in dispute." N.J.R.E. 404(b)(2).
Even then, the evidence of the uncharged crimes must be clear and convincing,
and its prejudice must not outweigh its probative value. State v. Cofield, 127 N.J. 328, 338 (1992); and, in some cases, the uncharged conduct "must be
similar in kind and reasonably close in time" to the charged offense, State v.
Williams, 190 N.J. 114, 122, 131 (2007) (quoting Cofield, 127 N.J. at 338).
This rule guards against a jury concluding that, because a defendant likely
sold drugs before, he must have been dealing drugs when he was arrested. See
United States v. Barnes, 822 F.3d 914, 922 (6th Cir. 2016) (quoting United
States v. Bell, 516 F.3d 432, 444 (6th Cir. 2008)) (noting "that Rule 404(b)
prohibits . . . reasoning that amounts to 'once a drug dealer, always a drug
In this case, the State did not try to use the testimony about other samples
and "offense date[s]" for a permissible purpose. Nor did the State try to
demonstrate that the testimony's probative value outweighed its prejudice.
Absent a permissible purpose, the court was obliged to instruct the jury to
disregard the testimony, and not to infer from it that McCoy likely possessed the
final set of drugs. Although the trial judge promised to instruct the jury to
disregard the testimony regarding the other samples and "offense date[s]," he
never gave that instruction.
We reject the State's suggestion that the laboratory expert's remark was
made in passing and likely caused McCoy no harm. We have no reason to
conclude that the expert's remark went unnoticed. For one thing, the judge
halted the trial and called a sidebar immediately after the remark. In addition,
the expert referred to multiple samples a second time. Compare Herbert, 457 N.J. Super. at 508–09 (reversing conviction because a detective's brief
references suggesting defendant's gang involvement were "prejudicial" where
"[e]ach time the detective referred to gangs, the trial came to an abrupt halt" and
"[t]he second time . . . the jury gasped"), with Jackowitz v. Lang, 408 N.J. Super.
495, 505 (App. Div. 2009) (stating that a "fleeting comment" about a previous
crime "may not warrant a new trial, particularly when the verdict is fair").
We need not decide whether the laboratory expert's testimony, taken by
itself, was sufficiently prejudicial to warrant a new trial. Rather, we consider
the cumulative impact of her testimony and the prosecutor's erroneous
summation. We shall reverse even if "any one of several errors assigned would
not in itself be sufficient to warrant a reversal . . . if all of them taken together
justify the conclusion that defendant was not accorded a fair trial." State v.
Weaver, 219 N.J. 131, 155 (2014) (quoting State v. Orecchio, 16 N.J. 125, 134
(1954)). Cumulatively, the laboratory expert's testimony and the prosecutor's
misstatement warrant reversal.
The prosecutor asserted — without any evidential support — that McCoy
welcomed people to the house at all hours of the night. The statement tied in
neatly with the drug expert's testimony that heavy foot traffic suggested drug-
dealing. It also refuted defense counsel's theory that one of McCoy's relatives
possessed the drugs.
In State v. Farrell, 61 N.J. 99, 102 (1972), our Supreme Court held that
"[i]t is error for a trial judge to permit a prosecutor in summing up to comment
on facts not shown or reasonably inferable from the evidence in the case." The
Farrell court reversed the defendant's conviction where the prosecutor
improperly implied and referred to prejudicial information not in evidence. Id.
at 102–03, 106–07.
Unlike in this case, however, defense counsel in Farrell objected and
unsuccessfully sought a mistrial. Id. at 106. A defense counsel's silence is often
powerful evidence that a misstatement should not be deemed prejudicial. See
State v. Frost, 158 N.J. 76, 83–84 (1999); State v. Johnson, 31 N.J. 489, 511
(1960). And defense counsel's failure to object also deprives the court of the
opportunity to correct the misstatement. See Johnson, 31 N.J. at 511.
Nonetheless, as Justice Brennan observed many years ago, "an appellate
court is at liberty to upset the verdict if the prejudice done the defendant is
apparent . . . even when the improper remarks have not been objected to by
defense counsel." State v. Bogen, 13 N.J. 137, 142 (1953). Our Court has also
noted that "[w]e have not hesitated to reverse convictions where we have found
that the prosecutor in his [or her] summation overstepped the bounds of
propriety and created a real danger of prejudice to the accused." Johnson, 31 N.J. at 511.
In light of the jury's question, the prejudicial nature of the prosecutor's
remarks seems undeniable. Notwithstanding the judge's instruction that the
prosecutor's statements were not facts, her statements evidently convinced the
jury that "people were coming in and out of the house for seconds at a time."
The jury solely sought to confirm "that Mr. McCoy was the only one in the
house" when other people came and went.
Although defense counsel did not object and thus prompt the court to cure
the misstatement, the jury's question gave the court another chance to set the
record straight. However, the court said only that the jury had to determine the
facts. Where a prosecutor states "facts" lacking any support in the record, such
an instruction effectively tolerates misstatements and fails to prevent an unjust
result. See Farrell, 61 N.J. at 102.
Perhaps, after hearing the trooper's testimony read back, the jury was
dissuaded from believing that people were coming and going at the Vineland
home. But "perhaps" is not enough. Our Court has recognized that "because
the prosecutor represents the government and people of the State, it is reasonable
to say that jurors have confidence that he [or she] will fairly fulfill his [or her]
duty to see that justice is done whether by conviction of the guilty or acquittal
of the innocent." Farrell, 61 N.J. at 105. Furthermore, "[i]t is unlikely a juror
will believe a prosecutor would intentionally mislead him [or her]." Ibid. As
noted, the jury's own question indicated that it wanted to review the trooper's
testimony merely to confirm that McCoy was the only person receiving the
visitors. The jury was apparently already convinced that other people visited
In sum, the prosecutor's misstatement — particularly when coupled with
the laboratory expert's reference to multiple offense dates and samples — was
"sufficient to raise a reasonable doubt as to whether the error led the jury to a
result it otherwise might not have reached." See Macon, 57 N.J. at 336; see also
State v. G.E.P., 243 N.J. 362, 389–90 (2020) (applying this plain error standard).
Given our conclusion, we need not address at length defendant's argument
that the court should have, sua sponte, delivered the "mere presence" jury
instruction.1 Although we prefer courts to give the instruction, we are
unpersuaded that its omission constitutes plain error. The Court reached the
same conclusion when faced with a similar argument in State v. Randolph, 228 N.J. 566, 592 (2017).
The "Mere Presence" section of the model jury instruction on possession,
Model Jury Charges (Criminal), "Possession (N.J.S.A. 2C:2–1)" (rev. June 11,
2018), specifically instructs a jury that a "[d]efendant's mere presence" where
drugs are found does not prove, beyond a reasonable doubt, constructive
possession. Mere presence is "a circumstance to be considered" along with other
evidence of guilt. Ibid.
Reversed and remanded. We do not retain jurisdiction.