STATE OF NEW JERSEY VS. LEONARD K. JOHNSON (15-09-0825, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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
APPELLATE DIVISION
DOCKET NO. A-2312-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEONARD K. JOHNSON, a/k/a
LEONARD K. FLAGG, KEITH
L. FLAGG, KEITH JOHNSON,
LEONARD JOHNSON, and
MARCUS W. FLAGG,

Defendant-Appellant.

Argued September 19, 2019 – Decided January 13, 2020

Before Judges Alvarez, Suter, and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 15-09-
0825.

John Walter Douard, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; John Walter
Douard, of counsel and on the briefs).
 Andre R. Araujo, Assistant Prosecutor, argued the
cause for respondent (Jennifer Webb-McRae,
Cumberland County Prosecutor, attorney; Andre R.
Araujo, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant Leonard K. Johnson was convicted of the first-

degree armed robbery, N.J.S.A. 2C:15-1, of a bank in Vineland. The jury

acquitted defendant of second-degree attempted robbery at a separate bank

location. N.J.S.A. 2C:15-1 and 2C:5-1.1 On November 9, 2017, the trial judge

sentenced defendant to fifteen years subject to the No Early Release Act's

eighty-five percent parole ineligibility. N.J.S.A. 2C:43-7.2. Defendant now

appeals, and we affirm.

Before the trial began, the judge conducted a Miranda2 hearing during

which he listened to defendant's recorded interview with police and a Federal

Bureau of Investigations (FBI) agent. Early in the three-to-four-hour interview,

defendant admitted that on the relevant date and time he rode his mountain bike

to a bank in Vineland. He gave the teller a note demanding money from the cash

register, showed her a gun, and she passed him $1000 from her register drawer.

1
Pre-trial, the State dismissed a second count of first-degree armed robbery and
second-degree attempt to commit armed robbery.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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2
 At trial, the teller testified that the incident occurred on April 24, 2013, at

approximately 9:20 a.m. The perpetrator, whom she was not able to identify,

was wearing a knitted hat, black sunglasses, and a "bubble-type" jacket. The

note instructed she hand over unmarked cash and informed her he had a gun.

The teller looked up, the perpetrator lifted his jacket, and she saw the handle of

a black gun protruding from his waistband. She gave him the money from her

drawer, defendant walked out of the bank, and rode away on his bicycle.

The bank surveillance footage as well as the redacted portions of

defendant's videotaped statement were played to the jury. Defendant's identity

was discovered when police connected him to a green minivan in his girlfriend's

name, which had been captured on various surveillance cameras.

In his statement, after admitting his involvement in the Vineland bank

robbery, and that he had ridden his bike to Millville intending to rob a bank

there, defendant denied involvement in several other bank robberies about which

his interrogators posed a host of questions. His admission came almost

immediately after an FBI agent joined the session. Defendant thereafter denied

any involvement in any other crimes, and denied that anyone had assisted him,

whether friend or family member. The note defendant handed the teller was

written on the back of defendant's son's paystub.

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 The judge found the statement admissible despite defendant's argument

that he tried to stop the questioning and exercise the right to remain silent. The

judge observed that the argument was colorable when the statement transcript

was read, but that watching the video made clear that the language defendant

was relying upon was not an attempt to stop the interview.

The relevant portion of the statement took place before the arrival of the

FBI agent. Defendant engaged in the following colloquy with a Vineland police

detective:

[Detective]: All right. So can I ask you
this, and I want you to be honest with me. Are you
willing, if I ask you a question today, something as
simple as your date of birth to something involving the
investigation, are you willing to be honest with me
today?

Or -- I'd almost have -- like, I would definitely
have more respect for you if you say, I'm not going to
answer you truthfully. You know what I mean? Like,
some people would just rather lie.

[Defendant]: I'm not lying. I'm just
(inaudible) anything.

[Detective]: No, no, no. I'm asking you --

[Defendant]: I don't have anything to say
about it. I don't -- whatever it is. I'm saying, if we've
got to go to court, that what (inaudible).

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 [Detective]: No, I understand but what I'm
saying, if you say -- you know, I'm asking you, are you
willing to be truthful today if I ask you a question? If I
ask you a question?

[Defendant]: You asked me a question and I
answered and I don't -- I'm like, I (inaudible) to say.
I'm like, you ask a question. I don't have anything to
say. You all want to ask a question, I'll answer the
question.

[Detective]: Okay. No, well, I'm asking
you, when I do ask it, if that's going to be a truthful
answer; okay? So I mean, you're truthful when you're
answering a question?

[Defendant]: Um-hum.

After the exchange, defendant continued to speak to the officers at some length.

On occasion, he fell silent and became emotional.

The judge explained his findings as follows:

That if you look at that sheet of paper and you
read it, it sounds like he's saying something that might
be able to be construed as an invocation of his Fifth
Amendment rights.

I'm going to deal with each of these separately
and I'm going to start with the quote on page 13. And
I went back and -- during my lunch break and I re-
reviewed the tape because, quite honestly, when the
tape was first played to me, I didn't pick up on any of
this.

I had a transcript in front of me and it went by,
and it wasn't until cross-examination by defense

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5
 counsel, after the tape had been completely played, that
I started to understand the position with regard to the
defense's assertion.

What bothered me was, is that I said to myself,
well, how could I have missed that when I was listening
to the tape? Because when you read the words on the
page, it sounds like what defense counsel is [talking]
about has credence.

Then I went back and I looked at the tape, and the
printed word is a wonderful thing but it lacks temporal
relevance and that is where the actual recording
explains more than the simple translation or the printed
transcript.

The judge described the officers' psychological ploy as treating defendant as a

"stand up guy" who would acknowledge responsibility and tell them the truth.

During the interrogation, defendant asserted his honesty, claimed he was

ignorant of the details about what he was being told, and invited the officers to

present their evidence and take him to court. The judge concluded that the

language quoted above was not an invocation of defendant's Fifth Amendment

right because it was made:

in response to a lengthy colloquy being presented to
him about, don't deny it because we think if you deny it
you're lying, and he says, I'm not lying.

And then he's asserting his innocence by saying,
I don't know anything about this, and his reference to
going to court has to go -- do with, we'll just go to court
and they can present, you know, what you think I am.

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 It is not a disengagement from the questioning.
So with regard to that initial statement, I do not find
that as even an ambiguous invocation of his right to
remain silent because it must be taken in the context of
this lengthy statement by both of the officers doing that.

The judge said the issue the detective and defendant were discussing was

whether defendant was willing to be truthful, not whether defendant wanted to

stop questioning. The judge summarized the effect of watching the video in his

interpretation of the words:

That clarified the entire picture. This is not an
invocation and even if it was an . . . ambiguous
invocation, the reaction by Mr. Johnson himself
clarified it that he was not declining to answer
questions. He was simply wanting them to stop
inferring that he's lying if he denies it.

So to the extent that he made a knowing and
voluntary waiver, he made no clear invocation of his
right and clarified that he was willing to talk after he
made an ambiguous invocation or ambiguous statement
related to his right to not answer questions further, and
that is borne out throughout the remainder of the
transcript.

At trial, defendant denied committing the offenses, and denied having

voluntarily waived his right to remain silent. He testified that he did not want

to speak with the authorities, but only did so because he was emotionally

exhausted. Defendant claimed he told the detectives that he did not "really want

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to talk to them" but that they ignored him and continued. He added that he

continued talking to them only because they threatened to involve his family.

The judge also conducted a Batson/Gilmore3 hearing during jury selection.

Defendant alleged that the State's exercise of three out of four peremptory

challenges of African-American jurors, given that defendant was African-

American, was unconstitutional. The jury panel was comprised of less than fifty

percent African-American potential jurors, while seventy-five percent of the

State's peremptory challenges were of African-Americans. The judge concluded

"the mere statistical imbalance . . . with regard to the percentage of African-

Americans challenged by the Prosecutor . . . establish[es] a prima facie showing

in order to move to the second step of the analysis . . . ."

The peremptory challenges made by the prosecutor were as follows:

1) Juror K.H., an African-American, was
challenged because "her son had been in a similar
situation as this defendant, was charged and convicted
of an armed robbery. And . . . it did remind her of her
son" so the prosecutor feared that it was "too close to
home" because of the nature of the offense.

2) Juror P.H., an African-American, was
challenged because he failed to follow instructions
while answering the jury screening questions. The
prosecutor was also concerned he would not be able to

3
Batson v. Kentucky, 476 U.S. 79 (1986); State v. Gilmore, 103 N.J. 508
(1986).
A-2312-17T2
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 follow the instructions given at trial either. However,
the prosecutor went on to state that her "main concern"
was that P.H. "had multiple brothers in and out of
prison, one of which [was] charged with the same type
of charge here, armed robbery."

3) Juror K.J., an African-American, was
challenged because he "has three nephews . . . that have
been very involved [with the prosecutor's] office . . . ."
The Prosecutor stated the juror could feel animosity
towards the State for the prosecution of his nephews.

The prosecutor identified an African-American member of the jury whose

daughter was convicted of a dissimilar crime and was left on the jury. After

hearing the prosecutor's response, the judge determined that the State's reasons

were legitimate and shifted the burden to defendant to show they were

pretextual. Defense counsel was unable to demonstrate that a Caucasian juror

remaining on the jury had friends and relatives who had prior offenses.

The judge found that despite defendant's prima facie case of

discrimination, "the State has successfully demonstrated non-discriminatory

reasons for the challenges exercised on each of the three African-American

jurors, who were excluded." He determined the reasons were not pretext for a

discriminatory exclusion but were "based on a [sic] legitimate jury selection

concerns, referencing similar criminal offenses in the history of family members

to that of the allegations against the defendant in this case."

A-2312-17T2
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 While testifying before the jury, the FBI agent to whom defendant

confessed was cross-examined as follows:

Q. Right. Okay. But in the questioning, and
I'm going to direct your attention to one of the pages
here, you said to Mr. Johnson, you know, what did you
say in the note and didn't he say I don't know? I don't
remember?

A. The inference I got was he couldn't remember.

Q. Okay. So you show him the note and you
told us that even after the statement that was taken from
Mr. Johnson you still didn't feel closure, you didn't feel
comfortable enough. Did you ever instruct Detective
Burke or suggest to Detective Burke, hey maybe we
should get a handwriting analysis of this statement to
make sure it is Mr. Johnson? Did you ever do that?

A. I did not because I didn't feel it was necessary
because he admitted that that was his note. And you
keep saying I didn't feel comfortable, I didn't feel
comfortable about other things. I knew he robbed the
bank.

Q. No, my question was you said that you
didn't have closure?

A. I didn't have closure for other reasons.

Q. Okay.

A. I knew he robbed the bank.

Q. Okay. So in your position he robbed the
bank; right?

A-2312-17T2
10
 A. Absolutely.

Q. Okay. So let me ask you this, and I'm going
to direct your attention to ---

THE COURT: Can I see Counsel at sidebar
please?

[(Emphasis added).]

Upon hearing the exchange, the judge advised counsel that he was going

to give the jury a limiting instruction. He did so:

THE COURT: Listen, his belief is not
relevant. That is -- so I'm going to give a limiting
instruction. I'm just letting you know now I'm going to
do that. Okay. All right. It's not even up for debate.
Okay.

(Sidebar Concluded)

THE COURT: All right. Ladies and
Gentlemen, a couple of minutes ago, Special Agent
Furey told us that he believed that Mr. Johnson did it.
I'm striking that. Do you understand? You are not to
consider that statement at all and here's why.

Whether or not the Defendant is guilty of these
charges is for you and you alone to determine. Do you
understand that? Whether he believes that or not is
irrelevant. Okay. And you're not to consider his
opinion or belief as to what the Defendant did or did
not do. That is for you to determine, but you can not
use in that consideration, his opinion. Do you
understand?

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11
 So to the extent that he indicated to you what his
belief was, you can't consider that and you should not
-- that should not enter into your deliberations in
anyway. Does everybody understand that?

Now, I'm not talking about the rest of his
testimony, I'm only talking about specifically those
references that he made. Okay. Thank you very much.
You may continue.

Prior to sentencing defendant, the judge thoroughly reviewed his prior

criminal history and personal circumstances. He found as a result aggravating

factors three, six, and nine, and in mitigation factor seven. See N.J.S.A.

2C:44-1. As the judge said, at age fifty-three, defendant had a history of twelve

arrests, two twenty-year-old indictable convictions, and two ten-year-old

disorderly persons offenses. His arrest history "run[s] through 2006." He

opined that in defendant's case, aggravating factor nine, the need to deter, was

particularly meaningful because defendant in times of financial stress had turned

to crime. The judge said, "if things get bad enough, things get hard enough, one

of the options that he would choose or has chosen is to commit an offense like

this and it is a first-degree offense." Because of his unusual criminal history,

the judge gave the aggravating factors "moderate weight," as he did mitigating

factor seven. As he explained, the factors were "in equipoise," and therefore

warranted a sentence in the mid-range for a first-degree offense.

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On appeal, defendant raises the following points:

POINT I
JOHNSON'S PURPORTED WAIVER OF HIS
MIRANDA RIGHTS, AND HIS SUBSEQUENT
CUSTODIAL STATEMENTS, WERE NOT
KNOWINGLY AND VOLUNTARILY GIVEN, AND
THEREFORE SHOULD NOT HAVE BEEN
ADMITTED AT TRIAL.

A. Miranda Rights Invocation: The Law.

B. Johnson's Invocation of His Rights.

C. Limiting Instructions At Trial.

POINT II
THE PROSECUTION'S PEREMPTORY STRIKES OF
THREE AFRICAN-AMERICAN JURORS WERE
NOT FOR CREDIBLY RACE-NEUTRAL REASONS,
THEREBY VIOLATING DEFENDANT'S STATE
AND FEDERAL CONSTITUTIONAL RIGHTS TO
AN IMPARTIAL JURY. U.S. Const., Amends. VI,
XIV; N.J. Const. (1947), ART. 1, Pars. 5, 9, 10.

POINT III
FBI AGENT FUREY, FOR NO REASONS
WHATSOEVER, IMPROPERLY AND
REPEATEDLY ASSERTED HIS BELIEF THAT
JOHNSON WAS GUILTY, THEREBY VIOLATING
JOHNSON'S RIGHTS TO DUE PROCESS AND A
FAIR TRIAL. U.S. Const., Amends. V, XIV; N.J.
Const., Art. I, Pars. 1, 9, 10. (Not raised below).

POINT IV
THE CUMULATIVE EFFECT OF THE TRIAL
ERRORS DEPRIVED DEFENDANT OF A FAIR
TRIAL AND WARRANTS REVERSAL OF HIS

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13
 CONVICTION. U.S. Const., Amend. VI, XIV; N.J.
Const., Art. 1, Pars. 1, 10. (Not raised below).

POINT V
THE CASE SHOULD BE REMANDED FOR
RESENTENCING BECAUSE THE JUDGE
IMPOSED A MANIFESTLY EXCESSIVE AND
OVERLY PUNITIVE SENTENCE, IN LIGHT OF
THE MODERATE WEIGHT GIVEN TO
AGGRAVATING FACTOR (3), THE IMPROPRIETY
OF APPLYING AGGRAVATING FACTOR (6), THE
FAILURE TO WEIGH HEAVILY ENOUGH
MITIGATING FACTOR (7), AND THE FAILURE TO
APPLY OTHER APPROPRIATE MITIGATING
FACTORS.

I.

We deferentially review a trial court's factual findings regarding a

defendant's waiver of his right to remain silent. See State v. Tillery, 238 N.J.

293, 314 (2019). The Court recently reiterated that those findings should be

disturbed only if "so clearly mistaken that the interests of justice demand

intervention and correction." Ibid. (quoting State v. A.M., 237 N.J. 384, 395

(2019)) (internal quotation marks omitted). Legal conclusions, however, are

reviewed de novo. Ibid.

During custodial interrogation, a suspect must be advised of the following

panoply of rights: the right to remain silent, that statements may be used against

him, the right to counsel, the right to counsel even if he cannot afford one, the

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14
right to counsel during questioning, and the right to assert his privilege to remain

silent at any point during the interrogation. Id. at 315. In New Jersey, we require

the State to "prove beyond a reasonable doubt that the suspect's waiver was

knowing, intelligent, and voluntary in light of all the circumstances." State v.

Presha, 163 N.J. 304, 313 (2000). Such waivers may be found even when not

explicitly stated. See Tillery, 238 N.J. at 316. In order to determine questions

of waiver, a trial court considers the totality of the circumstances surrounding

the custodial interrogation. Ibid.

According the trial judge appropriate deference, defendant's statements

were not an assertion of his right to remain silent. His responses were

occasionally confused and confusing, but at no point did he say the interrogation

was over. At times he simply did not answer questions, at others denied

involvement, and vigorously, unequivocally denied the involvement of his

family after he made his inculpatory statements. Thus, defendant's first point

lacks merit.

We agree with the judge that as mixed as some of defendant's answers

were, in the context of the specific portion of the interview he identifies as his

statement that he no longer wanted to answer questions, defendant was not

asserting his right to be silent. He was merely reiterating that he had no

A-2312-17T2
15
information to provide. Otherwise, he said he would answer questions when he

had information he could give. Defendant's point was not that he was exercising

his right to remain silent, but that he knew nothing about the robberies.

It is noteworthy that defendant, after he confessed to the Vineland bank

robbery, and the attempt to rob the Millville bank, forcefully insisted that no one

else was involved in the crimes, and that he did not commit any other bank

robberies about which he was being asked. Even when confronted with the fact

his minivan had been captured on surveillance cameras at other bank locations

where robberies had occurred, he adamantly denied them. Defendant's

demeanor on the video demonstrated that just as he had the capacity to deny

culpability for other offenses after confessing to two crimes, and just as he had

the ability to deny that anyone else was involved, he had the ability to assert his

right to remain silent and did not do so. He was not intimidated by the officers

and was not going to answer questions unless and until he was quite ready to do

so. In fact, defendant acknowledged guilt only when confronted with very

detailed information.

Defendant's trial testimony that he only confessed because he felt

pressured by the officers, and to protect his family, was not convincing. It was

refuted by the narrative captured on video.

A-2312-17T2
16
 Defendant's contention on appeal that his references to court proceedings

were an invocation of his right to counsel lacks merit. Initially, defendant told

the officers that he was prepared to go to court because he knew nothing about

the crime. That is a far cry from any mention of the right to counsel. This

argument lacks merit to warrant further discussion in a written opinion. R. 2:11-

3(e)(2).

II.

Turning to defendant's next point, in Batson v. Kentucky, the United

States Supreme Court held that the Equal Protection Clause of the Fourteenth

Amendment "forbids the prosecutor to challenge potential jurors solely on

account of their race . . . ." 476 U.S. at 89. A defendant asserting the State

wrongfully exercised peremptory challenges under Batson must first "make a

prima facie showing that a peremptory challenge has been exercised on the basis

of race . . . ." Snyder v. Louisiana, 552 U.S. 472, 476 (2008) (citations and

quotation marks omitted). Once this burden has been met, the prosecutor "must

offer a race-neutral basis for striking the juror in question . . . ." Id. at 477.

"Thereafter, the trial court is tasked with determining whether the defendant has

established intentional discrimination, 'in light of the parties' submissions.''

State v. Thompson, 224 N.J. 324, 339 (2016) (quoting Snyder, 552 U.S. at 476).

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"It is not until the third step that the persuasiveness of the justification becomes

relevant -- the step in which the trial court determines whether the opponent of

the strike has carried his burden of proving purposeful discrimination." Ibid.

(quoting Purkett v. Elem, 514 U.S. 765, 768 (1995)).

The Court in State v. Gilmore, 103 N.J. 508 (1986), "determined that the

provisions of the New Jersey Constitution, Article I, Paragraphs five, nine, and

ten, likewise prohibited a prosecutor from exercising peremptory challenges on

the basis of religious principles, race, color, ancestry, national origin, or sex."

Thompson, 224 N.J. at 340 (citing Gilmore, 103 N.J. at 524-29). The Court then

outlined a similar three-step analysis for trial courts to follow when adjudicating

a claim of unconstitutional discrimination in the use of peremptory challenges.

Gilmore, 103 N.J. at 533-39.

"That analysis begins with the 'rebuttable presumption that the

prosecution has exercised its peremptory challenges on' constitutionally

permissible grounds." Thompson, 224 N.J. at 340 (quoting id. at 535).

Defendant must make a "prima facie showing that the prosecution exercised its

peremptory challenges on constitutionally-impermissible grounds." Gilmore,

103 N.J. at 535. In order to establish a prima facie claim, Gilmore required a

defendant to show "that the potential jurors wholly or disproportionally

A-2312-17T2
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excluded were members of a cognizable group," and that "there is a substantial

likelihood that the peremptory challenges resulting in the exclusion were based

on assumptions about group bias rather than any indication of situat ion-specific

bias." Id. at 535-36.

We defer to the trial court's findings as to a prosecutor's exercise of

peremptory challenges. State v. Clark, 316 N.J. Super. 462, 473 (App. Div.

1998). In this case, the statistical data satisfied defendant's initial burden of

proof—but the reasons stated by the prosecutor were proper. Id. at 473-74.

The three excused jurors who were African-American all had family

members who had either been charged with armed robbery or been prosecuted

by that county's prosecutor's office. Those factors establish non-discriminatory

reasons for dismissal. Additionally, the prosecutor did not excuse an African-

American juror who also had a family member convicted of a crime because the

crime was dissimilar.

Defendant's argument on appeal that there are inherent racial biases built

into the criminal justice system which make the exercise of peremptory

challenges itself biased does not, on this record, warrant discussion in a written

opinion. See R. 2:11-3(e)(2).

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 III.

Addressing defendant's next claim of error, it is undisputed that the FBI

agent's testimony that he "knew" defendant robbed the bank was improper. But

it bears mention that at that juncture the jury had already watched the redacted

video of defendant's inculpatory statements.

The judge immediately called counsel to sidebar after the FBI agent made

the comment and immediately explained to the jury that the agent's beliefs were

"irrelevant," instructing that they were not to take them into account when

deliberating. The instruction made the necessary point without highlighting the

statements more than absolutely necessary. We assume that jurors follow

instructions. State v. Herbert, 457 N.J. Super. 490, 504-05 (App. Div. 2019);

see also State v. Burns, 192 N.J. 312, 335 (2007) ("One of the foundations of

our jury system is that the jury is presumed to follow the trial court's

instructions.") (citing State v. Nelson, 155 N.J. 487, 526 (1998)).

Thus, we do not consider meritorious defendant's argument on appeal that

the judge should have declared a mistrial because of the agent's statements. In

the overall context of the trial, and since the jury had seen defendant's

videotaped admissions, no mistrial was required.

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 IV.

Defendant also contends that the cumulative effect of trial errors warrants

a new trial. With the exception of the agent's statements, no error occurred. And

that mistake was promptly cured by the trial judge with an appropriate

instruction, making a mistrial unnecessary. The cumulative error argument

lacks sufficient merit to warrant further discussion in a written opinion. R.

2:11-3(e)(2); see also State v. Orecchio, 16 N.J. 125 (1954).

V.

Finally, defendant argues that the matter should at a minimum be

remanded for resentencing because of the length of the term of years imposed

for these offenses. In reviewing excessive sentence claims, we do not substitute

our judgment for that of the trial court. State v. Fuentes, 217 N.J. 57, 70 (2014).

A sentence will be affirmed unless the Code's sentencing guidelines have been

violated, where competent and credible evidence does not support the statutory

aggravating and mitigating factors, or the sentence shocks the judicial

conscience. Ibid.

In this case, the trial court reviewed defendant's criminal history and

personal circumstances thoroughly before finding aggravating or mitigating

factors. The record supported his conclusions. The judge's thoughtful

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consideration of the factors readily survives appellate review. The sentence

does not shock the judicial conscience.

Affirmed.

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