State v. Johnson

• Decision Date: 01 December 2022
• Docket Number: A-5622-18
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANA R. JOHNSON, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

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STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANA R. JOHNSON, Defendant-Appellant.

No. A-5622-18

Superior Court of New Jersey, Appellate Division

December 1, 2022

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.

Argued March 30, 2022

On appeal from the Superior Court of New Jersey, Law Division Camden County, Indictment No. 18-06-1343.

Taylor L. Napolitano, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender attorney; Taylor L. Napolitano, of counsel and on the brief).

Maura Murphy Sullivan, Assistant Prosecutor, argued the cause for respondent (Grace C. MacAulay, Camden County Prosecutor attorney; Maura Murphy Sullivan, of counsel and on the brief).

Before Judges Gilson, Gooden Brown and Gummer.

OPINION

GOODEN BROWN, J.A.D.

On June 12, 2018, defendant Dana Johnson, a Federal Bureau of Prisons (BOP) employee, was charged in a Camden County indictment with second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count one); second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)(1) (count two); and fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4) (count three).

Prior to trial, the trial judge denied defendant's motion to dismiss count two pursuant to the Law Enforcement Officers Safety Act of 2004 (LEOSA), 18 U.S.C. § 926B, which permits "a qualified law enforcement officer" to carry a concealed firearm subject to certain conditions. Thereafter, defendant was tried by a jury and convicted of count two but acquitted of counts one and three. After denying defendant's motion for a sentence reduction under the "escape-valve provision" of the Graves Act, N.J.S.A. 2C:43-6.2, the judge sentenced defendant to the mandatory minimum term of five years' imprisonment, with a three-and-one-half-year period of parole ineligibility, pursuant to N.J.S.A. 2C:43-6.

The charges stemmed from an altercation between defendant, her estranged wife, and her wife's then-girlfriend that occurred in the parking lot of her wife's apartment building. According to the girlfriend, defendant pointed a gun at her during the altercation, then left the scene before police arrived. When police went to defendant's home, they found an unloaded handgun in the console of defendant's vehicle after defendant consented to a search. Although the jury discredited the girlfriend's testimony that defendant had threatened her with a gun, defendant admitted during her trial testimony that the unloaded gun was in her car when she had driven to her wife's apartment and that she did not have a permit to carry the gun.

On appeal, defendant raises the following points^[1] for our consideration:

POINT I

BECAUSE [DEFENDANT] WAS AUTHORIZED TO CARRY A FIREARM WITHOUT A PERMIT UNDER FEDERAL LAW, SHE COMMITTED NO CRIME AND THE TRIAL COURT ERRED BY DENYING HER MOTION TO DISMISS COUNT TWO, POSSESSION OF A GUN WITHOUT A PERMIT UNDER N.J.S.A. 2C:39-5(b)(1).

POINT II

THE COURT ERRED BY FAILING TO INSTRUCT THE JURY THAT, UNDER N.J.S.A. 2C:39-6(e), IT IS NOT ILLEGAL TO POSSESS OR CARRY A GUN WITHOUT A PERMIT ON THE PREMISES OF ONE'S OWN HOME AND COUNSEL WAS INEFFECTIVE FOR FAILING TO ARGUE THE SAME. (NOT RAISED BELOW).

[A]. The Trial Court Erred by Failing to Inform the Jury that [Defendant] Did Not Need a Permit to Possess a Gun on the Premises of Her Own Home Under 2C:39-6(e).

[B]. Counsel was Ineffective for Failing to Argue that [Defendant] Possessed the Gun Legally at Her Own Home Under the 2C:39-6(e) Exemption.

POINT III

THE STATE FAILED TO MEET ITS BURDEN TO PROVE BEYOND A REASONABLE DOUBT THAT [DEFENDANT] POSSESSED A GUN WITHOUT A PERMIT BECAUSE IT RELIED PRINCIPALLY ON AN AFFIDAVIT FROM A NONTESTIFYING POLICE WITNESS AVERRING THAT HE "CAUSED" A SEARCH FOR A PERMIT USING THE WRONG SOCIAL SECURITY NUMBER FOR [DEFENDANT]. IN THE ALTERNATIVE, ADMISSION OF THAT AFFIDAVIT VIOLATED THE CONFRONTATION CLAUSE AND COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO ITS ADMISSION. (NOT RAISED BELOW).

[A]. The Affidavit Attesting that Police Searched for the Wrong Person in Permit Records Was Misleading and Insufficient to Support [Defendant's] Conviction.

[B]. In the Alternative, the Trial Court's Admission of the Affidavit Violated the Confrontation Clause and Counsel was Ineffective for Failing to Object.

POINT IV

[DEFENDANT] IS ENTITLED TO A NEW GRAVES ACT WAIVER HEARING BECAUSE[:] (1) THE STATE FAILED TO PROVIDE A LEGITIMATE STATEMENT OF REASONS EXPLAINING ITS REFUSAL TO CONSENT TO A WAIVER OF THE GRAVES ACT TERM OF PAROLE INELIGIBILITY[;] AND (2) THE 2008 [ATTORNEY GENERAL] DIRECTIVE ON WHICH THE STATE RELIED IN ITS REFUSAL IS ARBITRARY AND CAPRICIOUS AND UNFAIRLY BURDENS [DEFENDANT'S] CONSTITUTIONAL RIGHT TO TRIAL.

POINT V

[DEFENDANT] IS ENTITLED TO RESENTENCING BECAUSE THE TRIAL COURT IMPROPERLY FOUND THAT THE CIRCUMSTANCES OF THIS CASE WERE LIKELY TO RECUR BASED SOLELY ON THE FACT OF HER CONVICTION, AND THAT SHE REQUIRED DETERRENCE WHEN SHE IS A LAW-ABIDING CITIZEN.

Because we hold that the trial judge erred in denying defendant's pre-trial motion to dismiss count two, we reverse on that ground and need not address the remaining points challenging purported trial errors and the sentence imposed.

I.

We glean these facts from the five-day trial conducted in February 2019, during which the State produced seven witnesses, including defendant's estranged wife, Jade Johnson; her wife's then-girlfriend, Tamika Boone; the responding officers; the lead detective; and a ballistics expert. Defendant testified on her own behalf and produced one character witness.

Defendant and Jade^[2] married in 2015. Jade had two teenage children from a previous relationship whom defendant helped raise. In early 2018, defendant and Jade separated, and Jade and the children moved into an apartment with Boone in Gloucester Township. After the separation, on March 26, 2018, defendant received a phone call from Jade's son's school. That evening, defendant went to Jade's home to pick up Jade's son "so [she] could discuss what [had] happened with him in school earlier that day."

Defendant arrived at Jade's apartment complex around 7:00 p.m., as Boone was leaving to go to work. According to Boone, she noticed defendant's black GMC "truck sitting at the end of the parking lot" and then saw defendant "walking in [her] direction," "yell[ing]." As defendant tried to walk around Boone "to go upstairs" to Jade's apartment, defendant continued "yelling" and was acting "aggressive[ly]." Boone testified that she started feeling "threatened" and began recording the encounter on her phone, which was in her pocket. The recording was played for the jury.

Boone stated that as the interaction escalated, defendant acted "as if she wanted to fight" and repeatedly shoved Boone. When Jade eventually came downstairs, defendant became "increasingly aggressive," "throwing her arms," and "stomping around the parking lot." Boone explained that Jade "got between" her and defendant and asked Boone to "go upstairs for a while," but Boone refused because she was concerned about Jade's safety. Boone testified that "[t]he next thing [she] remember[ed]" was defendant "pulling a gun from her pocket and . . . cock[ing] it and aim[ing] it at [her]." At that point, Boone stopped the recording, "pulled [her] phone out of [her] pocket," and "called 911." Boone testified that "at some point during th[e] call . . . defendant g[ot] in her truck and le[ft]."

Because defendant had already left the scene when police arrived, Gloucester Township Police Detective Dennis Richards, who was the lead detective, testified that he issued a "BOLO" for defendant's vehicle and was notified later that evening that defendant's car was parked in Winslow Township at "defendant's [home] address." Richards stated that sometime after midnight, he and other officers went to defendant's home to take her into custody and recover the firearm. When the officers arrived, defendant had "just got[ten] out of a shower." Richards told defendant that Boone had reported the altercation and advised her that they "needed to recover the firearm." Defendant informed Richards that the gun was "in the console of her vehicle" and consented to a search of the vehicle. During the search, police recovered an unloaded "Glock Model 26" "semi-automatic handgun in a . . . soft leather holster" from the console of the vehicle. Defendant was then placed under arrest.

During her testimony, defendant denied touching, pushing, or pointing a firearm at Boone. Defendant stated they "had an argument," "[n]othing more, nothing less." Defendant admitted that she had an "unloaded" "9[-]millimeter Glock 26" in her vehicle when she drove to Jade's apartment, but denied removing the gun from her truck during the argument with Boone. Defendant also admitted that she did not have a permit to carry the firearm.^[3]

Jade testified for the State and denied seeing defendant brandish a gun. Although Jade had previously given a conflicting statement to police on the night of the incident, during her trial testimony, Jade maintained that she did not see defendant point a gun at Boone and admitted that she had previously lied to the police because she was "upset" with defendant.

On February 14, 2019, the jury returned its verdict,^[4] and on May 23, 2019, the judge sentenced defendant. A conforming judgment of conviction was entered on June 3, 2019, and this appeal followed.

II.

In Point I, defendant argues that the trial judge's "flawed interpretation" of LEOSA led to the...