State v. Johnson

• Decision Date: 13 May 1992
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Jerome JOHNSON and Wanda Bonet, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 458

127 N.J. 458

606 A.2d 315

STATE of New Jersey, Plaintiff-Appellant, v. Jerome JOHNSON and Wanda Bonet, Defendants-Respondents.

Supreme Court of New Jersey.

Argued Sept. 24, 1991.

Decided May 13, 1992.

James D. Harris, Deputy Atty. Gen., argued the cause, for plaintiff-appellant (Robert J. Del Tufo, Atty. Gen. of N.J., attorney; Alexander P. Waugh, Jr., Asst. Atty. Gen., of counsel).

Diane Toscano, Asst. Deputy Public Defender, argued the cause, for defendant-respondent Jerome Johnson (Wilfredo Caraballo, Public Defender, attorney; Diane Toscano and Joseph E. Krakora, First Asst. Deputy Public Defender, on the briefs).

Marcia Blum, Asst. Deputy Public Defender, argued the cause, for defendant-respondent Wanda Bonet (Wilfredo Caraballo, Public Defender, attorney).

The opinion of the Court was delivered by

HANDLER, J.

This criminal case requires the Court to revisit the defense of entrapment. Defendants, a police officer and his girlfriend, attempted to sell drugs pursuant to a plan that had been devised by law enforcement officers and proposed to defendants through an informant. As a result, defendants were indicted for drug and other related offenses. They then moved to dismiss the indictment on the ground that they had been entrapped. The trial court dismissed the indictment, concluding that defendants had been entrapped as a matter of due process. The Appellate Division affirmed in an unreported opinion. This Court granted the State's petition for certification. 127 N.J. 327, 604 A.2d 601 (1991).

I

During the summer of 1988, defendants, Jerome Johnson, a New Jersey State Trooper, and Wanda Bonet, his girlfriend, met a person with whom they used cocaine. Thereafter, on a fairly regular basis, that person supplied Johnson and Bonet with small amounts of cocaine. On one of those occasions, Johnson told his cocaine supplier, "I would like to rip off a drug dealer with a lot of cocaine and then I could turn around and sell it and make some money."

Some months later, Johnson's supplier was arrested while delivering a large quantity of cocaine to an undercover agent of the Drug Enforcement Task Force. The supplier thereafter decided to cooperate with law enforcement authorities by becoming an informant. He told agents of the United States Drug Enforcement Administration that Johnson would be willing to "rip off" drugs from a drug dealer and then sell those drugs for money.

The federal agents verified Johnson's employment as a State Trooper, and then communicated what they had learned to the New Jersey State Police. The two law enforcement agencies then jointly developed a plan to give Johnson the opportunity to steal drugs from a drug dealer and to sell those drugs. The plan contemplated that the informant would tell Johnson that he knew of an opportunity for Johnson to steal drugs from a drug courier and make a lot of money; that he, the informant, was acting as a broker for the sale of a kilogram of cocaine, and that he had arranged for a "mule," a paid courier, to transport the drugs by car to a meeting place with a prospective buyer; and that the informant and the seller of the cocaine would be in a second car following the mule. According to the plan, Johnson, wearing his State Trooper uniform, would pretend to make a traffic stop of the mule's car at a prearranged location on Frelinghuysen Avenue in Newark, and then would seize the cocaine. The seller of the cocaine, following in the car with the broker-informant, would see the seizure and chalk up the loss of the cocaine as a cost of doing business. Johnson then would meet the broker at Johnson's apartment and sell the cocaine to the mule for $5,000.

The informant thereafter presented and explained the scheme to Johnson. Johnson readily agreed to participate, adding new elements to the plan. He requested $1,000 cash in advance, an unmarked car, and a portable flashing red light to use to make the traffic stop. Johnson also indicated he would change shifts so that he would be off-duty at the time of the stop. Bonet, present during the meeting, actively participated in the conversation, at times explaining to Johnson how the plan would be accomplished.

On December 22, 1988, the informant and a detective, acting as the mule, met with defendants at defendants' Newark apartment. The parties reviewed and discussed the details of the plan. Bonet encouraged Johnson's participation, and both defendants actively engaged in the discussions and refinement of the plan. The detective gave Johnson $1,000 in marked one-hundred-dollar bills and the portable flashing red light. The participants arranged to meet again the following morning.

The next morning, Johnson, who had changed shifts, was supplied with the 1988 Chevrolet Caprice automobile to be used in stopping the mule. Johnson also viewed the car that the mule would be driving at the time of the stop and the precise location where the seizure of the drugs would occur. Johnson then changed into his State Trooper uniform. At approximately 11:30 a.m., the plan was put into effect. Driving the Chevrolet with the portable flashing red light and dressed in his uniform, Johnson stopped the mule and seized from him one kilogram of cocaine. The informant and a special agent, posing as the seller, drove off. Johnson drove to his apartment, followed by the mule. On his arrival at approximately 12:05 p.m., Johnson was arrested. In his possession were the kilogram of cocaine, the Chevrolet, the flashing red light, and seven of the ten marked one-hundred-dollar bills. The sale of the cocaine back to the mule was not completed.

The State Grand Jury indicted defendants on five counts. Count One charged them with a second-degree conspiracy to violate the drug laws of this State, to exercise unlawful control over movable property of the State, and to commit misconduct in office, contrary to N.J.S.A. 2C:5-2. Count Two charged defendants with possession with intent to distribute a controlled dangerous substance, a first-degree crime contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1). The third count charged possession of a controlled dangerous substance, a crime of the third degree, contrary to N.J.S.A. 2C:35-10a(1). Count Four charged theft of movable property, a second-degree crime contrary to N.J.S.A. 2C:20-3, and Count Five charged official misconduct in office, a second-degree crime contrary to N.J.S.A. 2C:30-2.

Defendants conceded for purposes of their motion to dismiss the indictment that they were predisposed to commit the crime, the effect of which was to raise the defense of entrapment only as a matter of due process. Because the parties did not dispute the facts concerning the nature of the government's conduct in investigating the crimes and predisposition was not an issue, they agreed to have the matter decided on the facts adduced in the Grand Jury proceedings. The lower courts were satisfied that the government conduct was improper and constituted entrapment as a matter of due process. That determination calls for an examination of the general doctrine of entrapment and the entrapment defense as it has evolved in this state. We can then address entrapment as a constitutional doctrine and consider whether the facts in this case demonstrate that defendants were entrapped as a matter of due process.

II

The defense of entrapment, which serves to excuse the defendant from criminal responsibility, can arise whenever a defendant introduces evidence of the government's involvement in the crime through initiation, solicitation, or active participation. Ted K. Yasuda, Entrapment as a Due Process Defense, 57 Ind.L.J. 89, 92 (1982) ("Entrapment Due Process "). There are two major, somewhat opposing views of entrapment: subjective and objective. The choice between the two theories usually "centers on whether the purpose of the entrapment defense is to deter government misconduct or to protect the innocent." Paul Marcus, The Entrapment Defense 81 (1989).

Subjective entrapment concentrates on the criminal predisposition of the defendant wholly apart from the nature of the police conduct. The defense will fail if the defendant was ready and willing to commit the crime. The subjective approach reflects the policy that law enforcement officials should detect existing crime rather than entice the innocent into committing crime. State v. Dolce, 41 N.J. 422, 432, 197 A.2d 185 (1964). Subjective entrapment protects the unwary innocent but not the unwary criminal.

In contrast, objective entrapment stresses the wrongfulness of government action without regard to the defendant's criminal predisposition. "The crucial question, not easy of answer, to which the court must direct itself is whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of government power." Sherman v. United States, 356 U.S. 369, 382, 78 S.Ct. 819, 825, 2 L.Ed.2d 848, 856 (1958) (Frankfurter, J., concurring). Objective entrapment seeks to deter police misconduct, even if the unwary criminal goes free.

The determinative elements of the respective tests are the defendant's criminal predisposition and the government's conduct. The objective theory focusing on improper police conduct asks whether the government acts would have induced the average law abiding citizen to commit crime. The subjective theory stressing individual culpability asks whether the particular defendant would have committed the crime even without the government inducement. Kevin H. Marino, Outrageous Conduct: The Third Circuit's Treatment of the Due Process Defense, 19 Seton Hall L.Rev. 606, 612-13, 625, 630 (1989) ("Outrageous Conduct "). Although many courts purport to espouse either a pure subjective test or a pure objective test, "[a]s a matter of practicality, in many instances the application of the two theories overlap." People v. Jamieson, 436 Mich. 61, 461 N.W.2d 884, 889 (199...