Johnson v. State

• Decision Date: 23 October 2001
• Docket Number: No. 46,1999.,46,1999.
• Citation: 813 A.2d 161
• Court: Supreme Court of Delaware
• Parties: Edward N. JOHNSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

813 A.2d 161

Edward N. JOHNSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

No. 46,1999.

Supreme Court of Delaware.

Submitted: June 26, 2001.

Decided: October 23, 2001.

Thomas A. Foley, Wilmington, for appellant.

John Williams, Department of Justice, Dover, for appellee.

Before VEASEY, Chief Justice, WALSH, HOLLAND, BERGER, and STEELE, Justices. HOLLAND, Justice:

The defendant-appellant, Edward N. Johnson, was charged with: Trafficking Cocaine,¹ Possession with Intent to Deliver a Narcotic Schedule II Controlled Substance,² and Endangering the Welfare of a Child.³ Following a jury trial in the Superior Court, Johnson was convicted as charged. He was sentenced, inter alia, to be incarcerated for thirty years.

This is Johnson's direct appeal. The sole issue originally presented to this Court was an argument that it was plain error for the State, during its case-in-chief, to introduce drug courier profile evidence through the testimony of a police officer who was appearing as an expert witness. In a prior opinion, we concluded that the plain error claim presented by Johnson raises an issue about the effectiveness of his trial counsel. We remanded the case for a hearing on the issue of ineffective assistance of trial counsel. In the interests of justice and judicial economy, we decided to defer ruling on the plain error issue.

Upon remand, the Superior Court concluded that Johnson's trial attorney was not ineffective. The parties have filed supplemental briefs addressing that issue. The matter is now before this Court to decide Johnson's original claim of plain error and the supplemental issue regarding the effectiveness of Johnson's trial counsel.

We have concluded that Johnson has failed to demonstrate plain error. We have also concluded that the Superior Court's determination regarding the effectiveness of Johnson's trial counsel is the product of an orderly and logical deductive process. Accordingly, the Superior Court's judgments of conviction are affirmed.

FACTS⁴

At approximately 9:00 p.m. on December 2, 1997, officers from the City of Dover Police Department were dispatched to an apartment in response to an "assault in progress" complaint made by an anonymous female 911 caller. Upon entering the premises, a second floor apartment, the officers discovered Johnson lying on the living room/kitchen floor. Johnson had been shot in the thigh. His legs were bound together with duct tape. It was later determined that the beating had also fractured Johnson's right femur. When the officers arrived at the apartment, Johnson told them that a person named Chris had shot him.

In the apartment, the police officers also discovered a small female child, later determined to be 18-months old, positioned on the floor next to Johnson. On the same floor, the police discovered a .25 caliber shell casing, a clean diaper, a roll of duct tape, and a box of sandwich type bags. Another box, containing several .25 caliber rounds, was found on the kitchen counter. The police found Cheryl Harris, the tennant, sitting in her bedroom. Harris's lethargic presence made the officers believe that she was under the influence of some drug.

The paramedics took both Johnson and the child to the Kent General Hospital. The police assumed the child was Johnson's daughter. Once at Kent General, a nurse cared for the child, while other medical staff in the emergency room attended to Johnson's wounds. Because the child's diaper felt heavy, the nurse proceeded to change the child's diaper in an adjacent room.

When the nurse opened the diaper, she discovered two bags containing a total of 136 grams of cocaine inside the diaper. There were also several paper towels that were placed between the cocaine and the child's crotch. Although the paper towels appeared soiled, the diaper was dry.

Without telling Johnson that cocaine had been discovered in the child's diaper, a detective questioned Johnson in the emergency room. Johnson told the detective that he was from New Jersey. According to Johnson, he and the child were going to Maryland in a rental car to visit a person named Charles Riley. Johnson said he did not know the name of the town in Maryland where Riley lived. While driving to Maryland, Johnson stated that he was paged by Chris, who asked Johnson to come to the Dover apartment.

After arriving at the Dover address, Johnson approached the apartment. He was immediately accosted by two males, one of whom had a gun. The assailants forced Johnson upstairs into an apartment. One of the assailants took the child from him. Johnson was beaten and bound with duct tape, before being shot in the leg by Chris. Johnson told the police that Chris and he had "a beef" earlier in their relationship, but did not know why Chris and the others attacked him.

When the detective confronted Johnson about the cocaine found inside the diaper, Johnson denied any knowledge. He surmised that Chris must have planted it to set him up. The police suspected that "Chris" was Chris Burroughs, who was known to them as a drug dealer in Dover, and frequented the Dover apartment where they found Johnson. After presenting him with a photo line-up, Johnson identified Burroughs as the person who shot him.

Upon searching Johnson's clothing at the hospital, the police found keys for an Avis rental car. These keys listed the tag number for an automobile. Other Dover police officers located the rental car parked approximately 150 feet from the Dover apartment where Johnson had been found. The police suspected that someone had rummaged through the car, which was unlocked when they found it.

After obtaining a search warrant, the Dover Police conducted a thorough search of the car. No contraband or drug paraphernalia was found in the car. The police did, however, seize: correspondence, addressed to Johnson at a Poughkeepsie, New York address; an Avis rental agreement, issued to a "Lincoln Grant" that same day at 3:55 p.m. in Mount Vernon, New York; and a backpack containing the same type of diapers worn by the infant child who was with Johnson.

Without any objection from Johnson's defense attorney at trial, the State called Detective William L. Kent to testify as an expert witness regarding the sale of illegal drugs. Detective Kent told the jury that Johnson fit the profile of a drug courier because: Mount Vernon, New York, where the car was rented, is only 10-15 miles north of the Bronx; that New York City is a major "source city" for cocaine sold in Dover; and that illegal drug dealers often have couriers transport the contraband in rental cars. In its closing argument to the jury, the State theorized that the drugs must have belonged to Johnson, in part, because he is from New York City, the source city for cocaine, and because he had a rental car, a "red flag" indicator for a drug courier.

Johnson did not testify at trial. His defense attorney argued that no one saw Johnson place two plastic bags of crack cocaine in the 18-month-old child's diaper. The defense attorney also argued that any contraband found in the diaper was probably put there by Johnson's attackers, in order to get Johnson in trouble with the police.

The jury found Johnson guilty of Trafficking Cocaine, Possession with Intent to Deliver Cocaine, and Endangering the Welfare of a Child. Johnson's sentences included a minimum mandatory term of 30 years imprisonment.

Plain Error Review

In this appeal, Johnson argues that it was reversible error for the jury to hear Detective Kent's testimonial evidence that Johnson fit the profile of a drug courier. Johnson's trial attorney, however, made no contemporaneous objection to the drug courier profile evidence offered by Detective Kent at trial. Accordingly, Johnson's claim that the drug courier profile evidence was inadmissible may be reviewed in this direct appeal only for plain error.⁵ Under the plain error standard of review, this Court will take notice of and grant relief for "plain errors affecting substantial rights" of a defendant.⁶ In demonstrating that an error not raised at trial constitutes plain error, the burden of persuasion is on the defendant to prove both aspects of this standard of appellate review.⁷ First, to be "plain," the error must be clear under current law.⁸ Second, to adversely affect "substantial rights," the alleged error must be so clearly prejudicial as to jeopardize the fairness and integrity of the trial process.⁹

The United States Supreme Court and this Court have not yet decided whether drug courier profile evidence may be introduced during a criminal trial, as substantive evidence of guilt, as distinguished from being considered as a component of probable cause for a search or seizure by law enforcement officers.¹⁰ There is a split of authority among the federal Circuit Courts of Appeals that have addressed the former issue on the merits.¹¹ The use of drug courier profile evidence is "vigorously debated in academic circles."¹² We are persuaded by the ratio decidendi of those cases that hold drug courier profile evidence may not be admitted during a criminal trial as substantive evidence of guilt.

Nevertheless, Johnson has not demonstrated plain error. The Second and Ninth Circuit Courts of Appeals, have each stated: "we do not see how an error can be plain error when the Supreme Court and this court have not spoken on the subject and the authority in other circuits is split."¹³ We agree. If neither the United States Supreme Court nor this Court has definitively ruled on the issue of whether drug courier profile evidence can be used as substantive evidence of guilt, and the federal courts that have addressed the issue are divided, we conclude that the Superior Court's failure to exclude such evidence sua sponte, in the absence of any contemporaneous defense objection, did not constitute plain error.¹⁴

Trial Counsel's Effectiveness

The Superior Court held a hearing on the issue of...