State v. Derry
| Decision Date | 08 June 2022 |
| Docket Number | A-13/14 September Term 2021,085795 |
| Citation | 250 N.J. 611,275 A.3d 444 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Mykal L. DERRY, a/k/a Mykac Derry, Mykel Derry, and Stevens Mykel, Defendant-Appellant. State of New Jersey, Plaintiff-Respondent, v. Malik Derry, a/k/a Malik F. Derry, and Mykell Watson, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Lauren S. Michaels, Assistant Deputy Public Defender, argued the cause for appellant Mykal L. Derry (Joseph E. Krakora, Public Defender, attorney; Lauren S. Michaels, of counsel and on the briefs, and Frank M. Gennaro, Designated Counsel, on the briefs).
Stephen W. Kirsch, Designated Counsel, argued the cause for appellant Malik Derry (Joseph E. Krakora, Public Defender, attorney; Stephen W. Kirsch, on the briefs).
Daniel A. Finkelstein, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Acting Attorney General, attorney; Daniel A. Finkelstein, of counsel and on the briefs).
David White argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; David White, Hackensack, and Joshua P. Law, on the brief).
This appeal requires us to assess two issues arising from the State's prosecution of defendants Mykal and Malik Derry for murder and other offenses after they were convicted in the United States District Court for the District of New Jersey for various drug offenses and for the discharge of a firearm during the commission of those offenses. Both the federal and the state prosecutions stemmed from a cooperative investigation into defendants' drug trafficking activities in Atlantic County.
We first address the effect of N.J.S.A. 2C:1-3(f) on this prosecution. That statute provides a court with the discretion to dismiss an indictment if it finds that another jurisdiction prosecuted the defendant for the same conduct, the result of that prosecution adequately served New Jersey's interests, and dismissal of the indictment is in the interest of justice. Here, the State indicted defendants for what appears to be a drug-related murder after their convictions for drug trafficking and other offenses.
We next address an evidentiary issue. During defendants' federal trial, the federal agent who led the investigation testified about his interpretations of slang terms used by defendants and their coconspirators in intercepted telephone communications. The agent testified in the state trial against defendants. The Law Division admitted the agent's interpretations as lay opinion testimony under N.J.R.E. 701. On appeal, the Appellate Division concluded that the interpretations should have been admitted as expert opinion testimony under N.J.R.E. 702, but that the trial court's failure to do so was harmless because the agent would have qualified as an expert based on the trial record.
We affirm the judgment of the Appellate Division on both issues with modification. Based on the differences between the federal and state proceedings, we conclude that the trial court did not abuse its discretion in denying defendants' motion to dismiss the indictment. We also agree with the Appellate Division that the agent's interpretations were expert rather than lay opinions, but that the error in admitting them as lay opinion testimony was harmless. We base our finding of harmless error, however, upon the overwhelming evidence of defendants' guilt presented at trial rather than the hypothetical qualifications of the agent.
We derive the following facts from the record of defendants' trial and pretrial motions made in the Law Division and from the relevant federal proceedings.
In 2010, a joint task force that included agents of the FBI, members of the Atlantic City Police Department and Atlantic County Prosecutor's Office, and representatives of other law enforcement agencies began an investigation into a narcotics operation in the Stanley Homes Villages in Atlantic City. Led by FBI Special Agent Christopher Kopp, the investigation targeted defendant Mykal Derry, the leader of the drug organization, and his brother, Malik, among others.1
During the course of the investigation, a man named Tyquinn "T.Y." James, a member of a drug trafficking organization that had clashed with defendants' organization in the past, was shot and killed in front of two businesses in Atlantic City. Surveillance footage from both businesses captured James standing outside of the two establishments when an unidentified man wearing a hood and mask rode up on a bicycle and shot James three times.
A court-approved wiretap intercepted calls and text messages among defendants and their coconspirators. The intercepted exchanges included veiled references to the shooting of James.
A grand jury indicted nineteen individuals involved with the Derry drug organization in the United States District Court for the District of New Jersey. Following their trial before the Honorable Noel L. Hillman, U.S.D.J., defendants were convicted of various drug offenses, as well as the discharge of a firearm during the commission of a drug trafficking crime under 18 U.S.C. § 924(c). Following their federal convictions, the Atlantic County Prosecutor's Office indicted defendants for James' murder under N.J.S.A. 2C:11-3(a)(1) (first degree murder) and 2C:5-2 (conspiracy to commit murder), along with several other offenses that were later dismissed.
Relying on interrogatories put before and answered by the jury -- "that Malik Derry discharged a weapon in furtherance of a drug trafficking conspiracy," and that "the only evidence in this case that Malik Derry discharged a weapon is the evidence presented by the Government regarding the shooting of Tyquinn James" -- the court found the cross reference to be applicable by a preponderance of the evidence.
At sentencing, the court noted that the United States was not seeking restitution. The federal prosecutor explained that he did not seek restitution because he was informed that New Jersey had charged defendants with James' murder and would seek restitution in state court. The District Court ultimately sentenced defendants to life without parole on the drug trafficking conviction;3 four years on all other drug and conspiracy convictions, to be served concurrently with the life sentence; ten years on the 18 U.S.C. § 924(c) conviction, to be served consecutively to the life sentence; and ten years' supervised release. Both defendants' convictions and sentences were affirmed on appeal, and the United States Supreme Court denied Malik's petition for certiorari.
Defendants moved to dismiss their state-court indictment under 2C:1-3(f),4 arguing that the federal prosecution already captured James' murder because the § 924(c) charge covered the shooting of the victim. They further contended that the sentencing enhancement and resultant term of life-plus-ten-years adequately served New Jersey's interests such that dismissal was in the interest of justice.
The trial court denied defendants' motion, concluding that the federal proceeding did not culminate in a jury finding that defendants had in fact murdered James. In the court's view, that sufficiently distinguished the State's interest in prosecuting defendants for murder from the United States' interest in prosecuting them for their drug crimes.
Before trial, the State moved to admit, through the testimony of Agent Kopp, several of defendants' statements intercepted during the wiretap investigation and from the federal proceedings. The court held an N.J.R.E. 104(c) hearing to determine whether the recorded conversations between defendants and their alleged coconspirators were admissible under N.J.R.E. 803(b)(5). At the hearing, Agent Kopp explained how the wiretap functioned and how he was able to verify defendants' voices using recordings of calls made by defendants from jail. Kopp also explained that he became familiar with the slang that defendants and their coconspirators used in their conversations through his experience leading the investigation, and by corroborating and cross-referencing the wiretap intercepts from approximately 7,000 calls and numerous text messages with real-time surveillance conducted by law enforcement agents in the field.
Using his interpretations of the slang that defendants and their coconspirators used, Kopp discussed a series of conversations occurring throughout the night of James' shooting, offering translations of some terms. For instance, a call was played for the jury in which Mykal said to his confederate that "Lik [had] splashed T.Y." Kopp testified that the statement indicated Malik "just did something" to Tyquinn James.
On cross-examination by defense counsel, Kopp explained how he learned the meanings of several terms by contextualizing them with events and actions taken by defendants and their coconspirators, as well as through repeated use of the terms by defendants and their coconspirators. Ultimately, the trial court admitted defendants' wiretap conversations but, to reduce the prejudicial effect of the testimony, required the parties to characterize the federal investigation as an unrelated investigation without mentioning that defendants were targets.
At trial, before Agent Kopp testified, defendants objected to Kopp's translation and interpretation of slang terms used by...
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