STATE OF NEW JERSEY v. TYRONE SPICER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4741-01T44741-01T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRONE SPICER,

Defendant-Appellant.

_____________________________

 

Submitted April 5, 2006 - Decided

Before Judges Wefing, Wecker and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Union County,

Indictment No. 99-05-0702.

Yvonne Smith Segars, Public Defender,

attorney for appellant (James M. Doyle,

Designated Counsel, on the brief).

Zulima V. Farber, Attorney General,

attorney for respondent (Jeanne Screen,

Deputy Attorney General, of counsel and

on the brief).

PER CURIAM

On October 16, 1996, police officers with the Plainfield Police Department arrested defendant Tyrone Spicer and charged him with possession of narcotics with intent to distribute and possession of handguns and dum-dum bullets. On June 5, 1997, a Union County Grand Jury indicted defendant and co-defendants Rochelle Eure and his sister Bernice Eure, under Indictment No. 97-06-628, with third-degree possession of heroin and/or cocaine, in violation of N.J.S.A. 2C:35-10a(1) (count one); second-degree possession of heroin and/or cocaine in a quantity of half an ounce or more with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (count two); and third-degree possession of heroin and/or cocaine with intent to distribute within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-7 (count three).

Approximately one and a half years later, the trial court conducted pre-trial hearings to determine the admissibility of surveillance evidence to be offered by the State in its case in chief. The court ruled that N.J.R.E. 404(b) precluded the State from introducing into evidence surveillance observations allegedly showing defendant and co-defendant Rochelle Eure in possession of a duffel bag during a three-week period prior to the execution of a search warrant. The State alleged that the duffel bag observed was the same bag in which the police found narcotics on the date of the execution of the search warrant.

The court also precluded the testimony of a police expert. This witness would have characterized defendants' activities as consistent with distribution of narcotics from the duffel bag. The court, however, granted the State's application to present evidence that firearms were discovered on the premises during the search conducted pursuant to the search warrant. Finally, the court deferred ruling on whether the State would be permitted to introduce expert testimony concerning the significance of having found illicit drugs and firearms together.

Following these rulings, the State sought interlocutory appellate review and summary reversal of the trial court's determination concerning the surveillance observations. We granted the State's motion for leave to appeal, vacated the trial court's order, and remanded the matter for further proceedings. In so doing, we held that:

We cannot tell from the record which has been created whether or not the court's in limine order excluding evidence was a mistaken exercise of discretion. The trial court is directed to conduct an evidentiary hearing outside the presence of the jury so that the State can establish the evidence which it contends it is entitled to introduce, and so that defendants can make their objections on the record. At the completion of that hearing, the trial court will be free to modify its present ruling or to confirm it.

Thereafter, the trial court conducted an evidentiary hearing in which the State presented the testimony of three police officers. After considering oral argument from counsel as to the admissibility of the surveillance observations, as well as statements made by defendants at or near the time of arrest, the trial court barred the State from using the surveillance observations at trial. The court ruled, however, that the State could introduce at trial defendants' statements to the police.

On May 20, 1999, a Union County Grand Jury indicted defendants, under Indictment No. 99-05-00702, with the same counts reflected in the original indictment No. 97-06-628, but included two additional counts: third-degree unlawful possession of two firearms without first having obtained a permit to carry as provided in N.J.S.A. 2C:58-4, in violation of N.J.S.A. 2C:39-5b (count four); and fourth-degree possession of prohibited devices, in violation of N.J.S.A. 2C:39-3f (count five).

Defendants moved to dismiss counts four and five, contending that the addition of these charges was tantamount to vindictive prosecution. The trial court denied the motion. The court also denied defendants' motion to suppress the firearms seized in connection with the execution of the search warrant. The trial commenced later on that same day. Defendant was convicted of fourth-degree possession of prohibited devices (dum-dum bullets). Rochelle Eure was acquitted of the same charge. The jury could not reach a verdict with respect to the other four counts, resulting in a mistrial as to those counts.

Following the mistrial, a different trial court judge denied defendants' motion to suppress physical evidence, determining that there was "ample probable cause supporting the searches found in the affidavits." The matter then proceeded to a second jury trial before yet another trial court judge. Defendant testified at this trial, but did not call any witnesses.

Prior to closing arguments, defense counsel requested that the court charge the jury with the exemptions enumerated in N.J.S.A. 2C:39-6f read in conjunction with N.J.S.A. 2C:39-6g. The court denied this request. The jury found defendant guilty on Count 4, possession of a weapon without a permit, in violation of N.J.S.A. 2C:39-5(b), and acquitted co-defendant Rochelle Eure. Again, the jury was unable to reach a verdict on the first three counts of the indictment. The court once again declared a mistrial with respect to these three counts.

On October 19, 2001, the trial court sentenced defendant to two concurrent two-year terms of probation, conditioned upon defendant (1) remaining arrest free; (2) maintaining employment; (3) reporting to probation as ordered; (4) refraining from possessing any unlicensed weapon; (5) submitting to random urine testing; (6) abiding by the general conditions of probation; and (7) forfeiting the Glock handgun and dum-dum bullets seized by the State. The court also imposed the mandatory fines and penalties. The court dismissed the remaining three counts of the indictment based on the State's decision not to retry defendant, for a third time, on these charges.

Defendant now appeals raising the following arguments:

POINT I

THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS COUNTS 4 AND 5 OF SUPERCEDING INDICTMENT NO: 99-05-702.

POINT II

THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AND IN FAILING TO HOLD AN EVIDENTIARY HEARING.

POINT III

DEFENDANT WAS ENTITLED TO A JURY CHARGE THAT N.J.S.A. 2C:39-6f(1) COULD BE APPLIED IN DETERMINING DEFENDANT'S GUILT.

After reviewing the record, and based on prevailing legal standards, we reject these arguments and affirm. We will summarize the salient facts based on the evidence presented at trial.

On October 16, 1996, City of Plainfield Police Officer Robertson obtained a search warrant based on information contained in an affidavit, which included facts provided by a confidential informant ("CI"). The CI had allegedly conducted three controlled buys of cocaine from defendant and Rochelle Eure. Laboratory tests confirmed that the items purchased were cocaine. The laboratory report, relied on by Robertson to obtain the search warrant, was not signed by the chemist who performed the analysis.

The affidavit provided, in relevant part that:

2. During the course of my duties as an Officer with the Plainfield Police Division Narcotics Bureau, I [Robertson] have come to believe that two black males named Rochelle Lee Eure and Tyrone Patrick Spicer AKA "Midnight" are currently involved in the illegal distribution of cocaine from the premises of 104 North Avenue, Choice Cuts Barbershop, Plainfield, NJ, and from 1033 West Fourth Street, Plainfield, NJ.

* * * *

3. During the week of 22 September 96, this affiant debriefed a confidential informant, CI-1 who has been proven reliable by providing information regarding narcotics trafficking to this affiant which has proven reliable through independent investigations, but whose information has not directly led to any arrests. CI-1 stated to this affiant that a Rochelle Lee Eure and a Tyrone Patrick Spicer AKA "Midnight" are currently involved in the illegal distribution of cocaine from 104 North Avenue, Choice Cuts Barbershop, Plainfield, NJ, and from 1033 West Fourth Street, Plainfield, NJ. CI-1 further stated to this affiant that CI-1 has observed on numerous occasions and as recently as the past week individuals both known and unknown to CI-1 purchase cocaine from Rochelle Lee Eure while in the premise of 104 North Avenue, Choice Cuts Barbershop, Plainfield, NJ, and from 1033 West Fourth Street, Plainfield, NJ and from Tyrone Patrick Spicer AKA "Midnight" while within the premise of 104 North Avenue, Choice Cuts Barbershop, Plainfield, NJ. CI-1 also stated to this affiant that both Rochelle Lee Eure and Tyrone Patrick Spicer AKA "Midnight" utilized a black Honda Accord, four-door, bearing NJ Registration MH894X to transport the narcotics to and from 104 North Avenue, Choice Cuts Barbershop, Plainfield, NJ, and 1033 West Fourth Street, Plainfield, NJ.

The affidavit further provided that the CI participated in three controlled purchases of cocaine, twice during the week of September 22, 1996 and once during the week of September 29, 1996. The first controlled buy, which took place inside Choice Cuts Barber Shop (the "barbershop"), involved Rochelle Eure as the seller of the cocaine. In the second controlled buy, which took place inside 1033 West Forth Street, Rochelle Eure retrieved the cocaine from a dark blue or black duffel bag. During the third controlled purchase, the CI bought cocaine directly from defendant, while the two were inside the barbershop. According to the CI, defendant retrieved the drugs from a dark-colored duffel bag that he removed from his car. The drugs purchased on all three occasions were submitted for testing to the Union County Prosecutor's Office Laboratory for chemical analysis, and on all three occasions tested positive as cocaine.

For approximately three weeks, from September 22 to October 6, 1996, Robertson conducted several stationary and mobile surveillances of both the barbershop and the residence located at 1033 West Fourth Street. On several occasions, Robertson observed Rochelle Eure leave the residence carrying a dark-colored duffel bag and then drive the Honda to the barbershop. In situations where someone would enter the barbershop, and the duffle bag was in the trunk of the car, Robertson observed defendant or Rochelle Eure leave the barbershop, retrieve the bag from the trunk of the car, and return to the barbershop with the bag. Shortly thereafter, the unknown individual (customer/buyer) would leave the barbershop. Robertson described the premises of 104 North Avenue as Choice Cuts Barbershop, but indicated in the affidavit that the front picture window in black and red letters reads "CHICO'S HOLE IN THE WALL."

A search of Public Service Electric & Gas Company records revealed that the subscriber for the utilities at 104 North Avenue was Lawrence Brown, and for 1033 West Fourth Street the subscribers were Henry and Minnie Eure. Law enforcement records also indicated that Rochelle Eure had been convicted four times for drug-related offenses. State motor vehicle records reflected that defendant was the registered owner of the Honda.

Armed with this information, Robertson successfully obtained a search warrant for 104 North Avenue, 1033 West Fourth Street, the Honda, defendant and Rochelle Eure. On October 16, 1996, Detective Jeffrey Carrier of the Plainfield Police Department was conducting surveillance of the barbershop, as part of a police team led by Robertson, when the search warrant of the barbershop was executed. Carrier arrived at his surveillance position between 8:00 p.m. and 8:30 p.m. At approximately 9:30 p.m., Carrier saw defendant walk out of the barbershop and get into a 1995 black Honda Accord with three females. Rochelle Eure then left the barbershop, opened the vehicle's trunk and removed a dark blue bag, before returning to the barbershop. Defendant then drove away with the three females in the car. A few minutes after 10:00 p.m., defendant returned alone, parked the Honda in front of the barbershop and then entered the barbershop.

Shortly thereafter, Robertson and a number of other officers executed the search warrant. The lights inside the barbershop were on, and the door was unlocked. When the police entered the barbershop, Rochelle Eure was on the telephone and defendant was sitting in a chair up against the wall. Upon searching the barbershop, the police discovered and seized a blue duffel bag. At this point, Eure allegedly said, "there's stuff in there." Detective Simeon opened the bag, and found several plastic baggies containing heroin and cocaine, as well as drug paraphernalia. Detective Caminiti also found a black duffel bag behind a television and stereo in the corner of the barbershop.

In response to Caminiti's discovery, defendant allegedly said, "my guns are over there." The bag referred to by defendant contained two handguns, a . 380 Titan and a 40 caliber Glock. The police also discovered four magazines, three of which were loaded and five permits, in defendant's name to purchase handguns. Next to this black bag, the police also found another blue bag containing ammunition for .380 caliber, .40 caliber, and nine millimeter handguns. There were approximately 800 bullets recovered, several of which, were hollow point bullets.

Defendant had a permit to purchase a .40 caliber handgun, but did not have a permit to purchase a .380 caliber gun. Rochelle Eure did not have a permit to purchase any firearm. Neither defendant nor Eure had a permit to carry a firearm. Both Defendant and Rochelle Eure were charged with possession of narcotics with intent to distribute, and unlawful possession of handguns and dum-dum bullets. Defendant's key ring contained a key to the barbershop. Defendant also had the Honda's keys on his person at the time of his arrest.

In Limine Motions

Prior to the commencement of the first trial, Rochelle Eure, joined by defendant, moved to dismiss counts four and five of the superseding indictment. Counsel argued that the belated introduction of these two additional weapons counts was tantamount to prosecutorial vindictiveness, because the charges did not come about as a result of newly discovered evidence. Eure's attorney argued that the State bears the burden of showing that the prosecutor's motive in securing a superseding indictment was not vindictive. Defendant's attorney further argued that the grand jury should have been instructed on the exemptions contained in N.J.S.A. 2C:39-6, allowing certain persons in specific situations, to transport handguns lawfully without a permit.

In response, the State argued that N.J.S.A. 2C:39-6 did not apply since the guns were not being directly transported to a range or shooting exhibition. The assistant prosecutor contended that the addition of the two weapons counts were not due to prosecutorial vindictiveness, but rather because:

[I]t was only late that myself, I was able to understand that the exceptions did not apply in this case.

Mr. Eure, although he worked at the barber shop, does not apparently own it. And they're not permitted to -- they are not his guns as far as legal ownership goes. As far as possession, that's another issue.

With regard to [defendant], in fact, he did say that the guns were his in a statement to the police officers. However, that doesn't -- is of no moment.

As far as vindictiveness goes, the State just realized what the law was, Judge, and properly presented it to the Grand Jury so that the indictment could be corrected. It was actually an awkward indictment originally, because there were guns in the case which were not indicted, leading [sic] for the jury to speculate that it was lawful for the guns to be there, and it was not lawful, Judge.

The trial court rejected defendant's argument based on vindictiveness, and denied the motion to dismiss counts four and five. The court provided the following explanation in support of its ruling:

As to it being vindictive, I understand [defendant's] argument, and, quite honestly, I have to agree, it does make a different picture here in terms of the gun issue as it relates to guns and drugs and the expert opinion.

But because the State can utilize it now to tie in the issue concerning guns and drugs, that doesn't mean it's vindictive. It's still a criminal offense. It is [a] legitimate criminal offense, if the jury accepts it.

I don't know what the proofs will be, completely. I remember the testimony concerning the surveillance.

My ruling was the State cannot testify as to the continued surveillance observations made by the officer.

There's some 30 or 40 other observations. What can be testify [sic] and allow him to testify concerning the drive-bys where he saw, for example, the car present and saw the bag being taken out of the car, a similar bag, and being brought in. I said he cannot render the final opinion, because through the expert, because this bag contained drugs this time, therefore, the other times the similar bags were transported, that they contained drugs, too. That I will not allow that opinion. It's not based upon fact and it's -- there's nothing to support it for the reasons I expressed earlier.

But there's nothing vindictive about this. It is at the last hour. Quite honestly, my concern is not so much was I going to dismiss it, but whether or not I was going to bar the State and sever it, because of the late notice. But the more I analyze it in terms of, after I read the indictment, there's nothing new in the case. Everybody knew about this, knew about the permits. All it does is present additional issues to the jury in terms of determination of two additional charges.

As far as enhancing penalties, obviously these are third degree offenses, the dumdum bullets and the unlawful possession of [] weapons. More serious offense is the second degree drug offense.

Well, certainly it can potentially enhance penalties. You have issues as to whether or not that will even occur, because, number one, it's all one incident. Under [State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986)] all those factors have to be taken into together [sic]. There's no merger issues so to some extent it does potentially increase penalties, but certainly not making the penalties more severe in the sense of this is a third degree crime as against the second degree crime.

And I find there's legitimate law enforcement issues in terms of the presentment of this matter, and State does have a right to amend a Grand Jury indictment based on a mistake that may have [ ] made earlier in terms of presentation. And they did it in this case. And it doesn't prejudice the defense in terms of any type of late notice.

I'm going to allow it to proceed as part of the case.

I find it's not vindictive. I am not going to dismiss.

Pre-Trial Motions

Immediately following the trial court's denial of defendants' motion to dismiss, defendant's counsel moved to reargue a motion to suppress, as it related to the handguns. The court agreed to re-hear the motion to suppress as related to the guns, noting that he had "already heard all the testimony when we -- when we did the pretrial hearings earlier . . . [b]ut as it related to the drugs."

Defendant's counsel argued that the affidavit in support of the warrant did not establish probable cause because: (1) the physical description given for Spicer did not match defendant's appearance; (2) the lab report that identified the substances purchased in the undercover buy as cocaine, was unsigned; and (3) that absent probable cause concerning defendant, the police should not have searched the locked bag containing the guns.

The trial court rejected these arguments, finding that other facts included in the affidavit supported the issuance of the warrant. The judge explained his reasons as follows:

I think [the police] have every right in the world to search that contraband. This is different than if you have a situation, as an example, where they stop a car because of a motor vehicle violation, and there's luggage in the trunk, there's a passenger in the car, and there's this [sic] is my luggage, and they have nothing by way of probable cause to attack that passenger's right of ownership, and they have no right to go into the bag.

Those are whole separate different type of cases than the police were faced with here. So as to the guns and the motion to suppress, the guns based on the original facts I relied on when I made my decision concerning the drugs, the same findings apply to the guns as well. And I'm going to deny the motion, plus the added fact that they were there lawfully, meaning the police, they had a right to seize this, a right to search once they saw the guns in the bags, they had a right to open the bag.

[Emphasis added.]

At the first trial, the defense rested at the end of the State's case, without calling any witnesses. Prior to the State calling its final witness, the parties discussed the jury charges and whether any of the exceptions under to N.J.S.A. 2C:39-6(f) were applicable to defendant. The court decided not to address the issue that day, in order to permit both sides to do additional research on this and another matter. The following day, after additional discussion, the court made the following findings:

So there's no testimony that he was going to a range, coming from a range. All we know is that a bag is removed from the vehicle.

* * * *

Why then does he stop at the barber shop to begin with -- and if he was coming from a range? But the bottom line, still don't know where he's coming from.

You also have the issue that there's all that factual allegation I just put forward is inconsistent with what there are, three bags, guns in one of them, bullets in another, and the firearm in the third, and only one bag is taken out, to draw a reasonable inference from that proof that Mr. Spicer had just come from a firing range makes no sense. It really doesn't.

* * * *

The issue is did he comply with the exception of the statute as a matter of law? And are there sufficient facts to show that?

And there isn't sufficient facts at this point to make that inference from the evidence in this case.

So as far as I'm concerned, that reasonable inference cannot be drawn from the proofs that have been presented in this case. Remember that if it's not within the facts of the case, there's no basis under which to charge the exceptions. And that is both as to the dumdum bullets and as to the guns. So I'm not going to charge it.

The jury convicted defendant of possession of hollow nose bullets, and acquitted Rochelle Eure of the same charge. The jury could not reach a verdict as to the other four counts.

The Second Trial

Prior to the start of the second trial, defendant and Rochelle Eure moved to suppress the evidence gathered from the execution of the search warrant. Defense counsel argued that the CI did not have a sufficient track record of reliability to support the veracity of his statements, and there was insufficient corroboration of the CI statements. The defense also contended that the results of the laboratory analysis were not reliable, because the chemist did not sign the report, and the description by the CI did not match an actual description of defendant. The State countered by emphasizing that the three controlled purchases, bolstered by the police observations and findings, amply supported a finding of probable cause.

The trial court held that the controlled purchases and police observations provided sufficient probable cause for the warrant. Although the court recognized that the unsigned laboratory reports affected their admissibility into evidence, this factor alone did not sufficiently undermine the finding of probable cause supporting the issuance of the search warrant.

In reaching this conclusion, the court noted that hearsay may be used to establish probable cause, as long as it is "sufficiently reliable." Here, Officer Robertson's affidavit that he submitted the white substance recovered from the search to the Union County Prosecutor's Office Laboratory, and each time received test results indicating that it was cocaine, was sufficient to support a finding of probable cause. The court explained that:

[R]eliance on hearsay for the purpose[] of establishing probable cause is acceptable. [State v. Novembrino, 105 N.J. 95 (1987)] also adopts the federal standard of the totality of circumstances analysis that was adopted by the federal courts previously. The Court goes on to note that this signals a re-emphasis of the fact of non-technical conception of probable cause, but does so without repudiating the relevance of the v[e]racity and basis of knowledge required with respect to the allegations of the informant.

Basically, what the test is simply a practical, common sense decision given all the circumstances set forth in the affidavit including the v[e]racity and basis of knowledge of the person supplying the hearsay information, whether there's a fair probability that the contraband or evidence of a crime will be found in a particular place. I find that that standard is met here.

The confidential informant stated that the defendants were selling narcotics from the two locations which were searched and we[re] utilized in a black Honda to transport the CDS. And he also told the drugs were transported in a dark blue or black duffle bag. The confidential informant was observed going into the two locations that were searched with money and no drugs and came out three to five minutes later with drugs and no money. On 9/22/96 this was done on 104 North Avenue and the informant said the purchase was for Mr. Eure. [I]n the same week there was another purchase from Eure at 10- 33 West 4th Street under the same circumstances in the week of 9/29/96 at 104 North Avenue, the confidential informant went into the location, Spicer came out, walked to the driver's door of the black Honda, removed a dark colored duffle and went back into the location at 104 North Avenue and three to five minutes later the confidential informant came out with drugs and stated that he purchased the drugs from Spicer and Spicer got the drugs from the dark colored duffle.

The black Honda in question was registered to Spicer. There was also additional observations between September 22nd and October 6th, and on several occasions the officers observed Eure leaving the 10-33 address, enter a black Honda carrying a dark duffle and drive to and go into 104 North Avenue, which was the barbershop.

On some occasions he left the bag in the car, on other occasions he brought the dark colored duffle into the shop. On these occasions the officers observed a number of unknown individuals enter 104 North Avenue. If the duffle was left in the car, then either Eure or Spicer would exit the shop after the individual came into the shop, enter the car, go into the duffle, get something out of the duffle, and return to the shop. After a brief period of time, the unknown individual would leave the shop. On occasions where the duffle was brought into 104 North Avenue, the individual would -- unknown individual was observed entering 104 North Avenue and then leaving a few minutes after.

During these observations and the controlled purchases provide corroboration to the information provided by the confidential informant based on the totality of the circumstances including the informant's knowledge and v[e]racity, I find that there's a fair probability that the magistrate reasonably concluded that there was a fair probability that the contraband or the evidence of the crime would be found in the location searched and there was probable cause for the search.

Defendant testified on his own behalf at the second trial. He told the jury that on October 16, 1996, he stopped in at the barbershop to get a haircut while on his way to practice target shooting at Ray's Range Sports Shop, a target range in North Plainfield, New Jersey. Defendant testified that the guns in question belonged to him, as well as the magazines and ammunition that were stored in the maroon and blue bag, which had a lock on the outside. He indicated that he had legally purchased the .380 caliber handgun while in the military in Fort Campbell, Kentucky, and had legally purchased the .40 Glock from Ray's Range Sports Shop.

Defendant testified that the guns were separated from the bullets, so that he could transport them lawfully. Because Rochelle Eure was not able to cut his hair immediately, he left the barbershop to go to the range. On the way out he saw three women that needed a ride and he offered them a ride to North Plainfield. Because he did not want to travel with the guns in his car, he had Eure assist him in removing the weapons from the trunk, and putting them in the barbershop. He did not tell Eure, however, that the guns were inside the bag. He only asked Eure if he could "store" the bag at the shop. Eure allegedly agreed without any knowledge of the bag's content. He told Eure that he would be back to pick up the bag and to get a haircut.

Defendant testified that there was a lock on the duffel bag when police discovered it, and that he had given the police a key to unlock it. On cross-examination, he conceded that he never applied for or received a permit to carry a handgun. He also testified that he did not arrive at the barbershop until approximately 9:00 p.m., and that he left with the three women approximately 5 minutes later.

Defendant indicated that he drove two of the women to North Plainfield, and the third one into Plainfield. After dropping the women off, he returned to the barbershop at about 10:00 p.m. He testified that he would normally stay at the shooting range anywhere from an hour to an hour and a half. The parties stipulated that the target range closed at 10:00 p.m., and that 15 minutes prior to closing, the range's policy was to ask all shooters to leave, and would not permit any shooters to enter.

At the close of all testimony, defendant's attorney requested that the trial court charge the jury on N.J.S.A. 2C:39-6f(3)(b). Counsel indicated that based on defendant's testimony, there was enough evidence for this charge to be submitted for the jury to consider whether or not defendant was going directly to the range. The State contended that defendant was not traveling "directly to or from any target range." The State claimed that even based on defendant's testimony, and arguably conceding that his intent was to go directly to the target range, defendant was not transporting the guns directly, nor was his deviation from a direct route to get a haircut and drop off the three women reasonably necessary.

After considering oral argument from counsel, the court found that N.J.S.A. 2C:39-6(f)(b)(3) was an ordinary defense and as such:

[T]here must be a rational basis in the facts before a defense will be charged to the jury. . . .

. . . I think [that] . . . there is not sufficient evidence, there is no evidence, that would support giving this charge to the jury.

Defendant's own proofs from Mr. Spicer's testimony indicate that he was en route to Ray's Sport Shop in North Plainfield for target practice when he stopped at the barber shop at 104 North Avenue in Plainfield to ascertain when he could get a haircut. He parked his black Honda Accord and went inside the barber shop. S-13 and S-14, the handguns he admitted were his, were still in the trunk of the Honda when he went into the barber shop.

Mr. Spicer said he was trying to fit in both a haircut and some target practice into his schedule that evening. While at the barber shop he had a conversation with three women to whom he ultimately gave rides.

Prior to giving them rides, he offloaded the bags in his trunk, including S-11, which he testified contained [handguns]. And he put the bag with the handguns inside the barber shop behind the VCR and TV. The guns in S-11 and the bag, he said, [were] locked.

He then went to North Plainfield to drop off two of the women and then went to the east side of Plainfield where he dropped the third woman. He thereafter returned to the barber shop where he was seated in the chair when the police executed the search warrant and found the bag containing the handguns[.]

* * * *

[N.J.S.A.] 39-6G provides that, "All weapons being transported under Paragraph '2' of Subsection B, Subsection E or Paragraph '1' or '3' of Subsection F of this section shall be carried unloaded and contained in a closed and fastened case, gun box, securely tied package, or locked in the trunk of the automobile in which it is being transported, and in the course of travel shall include only such deviations as are reasonably necessary under the circumstances.

Citing the language in N.J.S.A. 2C:39-6f(3)(b) as backdrop, the court reached the following conclusion:

This was not Mr. Spicer's place of business or his residence or premises or other land owned or possessed by him. Nor do any of the transportation exceptions in [N.J.S.A.] 39-6C apply. Spicer transported the guns not from his residence to Ray's for target practice or even repair. His stops at the barber shop and then at North Plainfield and Plainfield after storing the guns in the barber shop do not constitute deviations that are reasonably necessary under the circumstances. And, therefore, Subsection G of [N.J.S.A.] 39-6 does not apply.

Subsection G is further inapplicable because the weapons were not being transported under Paragraph B of Subsection 2. I don't think any of the other sections really apply. There is no evidence that Spicer was a licensed dealer in firearms or a registered employee acting during the normal course of his normal business, traveling from a place of business or other place for purposes of demonstration, exhibition, or delivery in connection with a sale.

Thus, N.J.S.A. 39-6f(1) is not applicable "because there is no evidence that the defendant was a member of any rifle or pistol club. N.J.S.A. 39-6f(3)(b) is similarly inapplicable, because defendant was not transporting the guns "directly, to or from any target range."

We are in complete agreement with the legal conclusions reached by the various trial judges that, at one point or another, had responsibility for the management of this case. We thus affirm substantially for the reasons expressed by the trial court, as chronicled herein. We add the following only in the interest of clarity.

We will first address defendant's argument concerning prosecutorial vindictiveness. At its essence, prosecutorial vindictiveness involves a violation of due process, whereby the State retaliates against a defendant for exercising a legal right. State v. Gomez, 341 N.J. Super. 560, 571 (App. Div.), certif. denied, 170 N.J. 86 (2001). The notion of prosecutorial vindictiveness is an outgrowth of the concept of judicial vindictiveness. Gomez, supra, 341 N.J. Super. at 572 (citing North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

In Blackledge v. Perry, 417 U.S. 21, 27-28, 94 S. Ct. 2098, 2102, 40 L. Ed. 2d 628, 634 (1974), the U.S. Supreme Court held that where a defendant successfully appeals a misdemeanor conviction and obtains a trial de novo and the prosecutor then seeks a felony indictment based on the same underlying acts, that this creates a presumption of prosecutorial vindictiveness.

In Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978), the Supreme Court considered whether a prosecutor's threat to re-indict a defendant, which could potentially result in a much harsher sentence, if the defendant did not accept the plea offer, was prosecutorial vindictiveness. The Bordenkircher Court found that the presumption of vindictiveness was not applicable and distinguished its facts from that of Blackledge and Pearce on the basis that the prosecutor's actions in its case occurred pre-trial and during plea bargaining negotiations. The Supreme Court wrote:

In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Within the limits set by the legislature's constitutionally valid definition of chargeable offenses, "the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation" so long as "the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification."

[Bordenkircher, supra, 434 U.S. at 364, 98 S. Ct. at 668-69, 54 L. Ed. 2d at 611 (quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 506 7 L. Ed. 2d 446, 453 (1962).]

We have recognized that "no presumption of vindictiveness arises in the pretrial stage." Gomez, supra, 341 N.J. Super. at 573. In Goodwin, the United States Supreme Court reasoned:

There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor's assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins - and certainly by the time a conviction has been obtained - it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.

In addition, a defendant before trial is expected to invoke procedural rights that inevitably impose some "burden" on the prosecutor. Defense counsel routinely file pretrial motions to suppress evidence; to challenge the sufficiency and form of an indictment; to plead an affirmative defense; to request psychiatric services; to obtain access to government files; to be tried by jury. It is unrealistic to assume that a prosecutor's probable response to such motions is to seek to penalize and to deter. The invocation of procedural rights is an integral part of the adversary process in which our criminal justice system operates.

Thus, the timing of the prosecutor's action in this case suggests that a presumption of vindictiveness is not warranted. A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct. As we made clear in Bordenkircher, the initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.

[United States v. Goodwin, 457 U.S. 368, 381-82 102 S. Ct. 2485, 2492-93, 73 L. Ed. 2d 74, 85-86 (1982)(emphasis added).]

As we have noted, the "'mere opportunity for vindictiveness is insufficient to justify' a presumption of vindictiveness." State v. Froland, 378 N.J. Super. 20, 39 (App. Div. 2005) (quoting State v. Long, 119 N.J. 439, 466-67 (1990)); Gomez, supra, 341 N.J. Super. at 574. Therefore, a prosecutor should not be prohibited, after conducting additional investigation or research, from seeking an indictment on additional charges when appropriate. Gomez, supra, 341 N.J. Super. at 575.

In Gomez, we held that the presumption of prosecutorial vindictiveness was inapplicable and in the alternative, that the State set forth a sufficient proof of a non-vindictive purpose when it presented the case to a second grand jury. Id. at 578. In Gomez, the State initially did not thoroughly investigate a hit-and-run death involving the defendant, since the defendant was going to serve misdemeanor jail time for a previous conviction. When the defendant had her previous conviction vacated, the State then presented evidence to another grand jury and obtained an indictment for felony death by automobile. In this context, we acknowledged that even though the State was careless, where the new charges were filed before the trial commenced, the presumption of vindictiveness was inapplicable. Ibid. Similarly in State v. Long, the New Jersey Supreme Court declined to find that a pre-trial superseding indictment that "did not significantly increase the potential punishment" should invoke a presumption of prosecutorial vindictiveness. Long, supra, 119 N.J. at 467.

Even though the presumption of vindictiveness was inapplicable in these pre-trial cases, the Supreme Court did not foreclose the possibility that the defendant could prove actual vindictiveness. Wasman v. United States, 468 U.S. 559, 569, 104 S. Ct. 3217, 3223, 82 L. Ed. 2d 424, 433 (1984); Goodwin, supra, 457 U.S. at 384, 102 S. Ct. at 2494, 73 L. Ed. 2d at 87. See also State v. Bauman, 298 N.J. Super. 176, 205 (App. Div.), certif. denied, 150 N.J. 25 (1997).

Here, the procedural history giving rise to our discussion of prosecutorial vindictiveness amply demonstrates its inapplicability. Prior to the commencement of the first trial, Rochelle Eure's attorney moved to dismiss count four and count five of the superseding indictment. Defendant joined in the motion. Defense counsel argued that, since there was no newly discovered evidence, the State's submission of two additional weapons counts was tantamount to prosecutorial vindictiveness. Under these circumstances, defense counsel argued that the State should bear the burden of showing that the prosecutor's motive in securing a superseding indictment was not vindictive.

Defendant further contended that the State only submitted the firearms charges to the grand jury after a pretrial ruling limiting the admissibility of surveillance evidence, and after hearing defense counsel's argument that the State's expert witness should not be permitted to relate guns with drugs, where the guns were "legal."

In response, the State argued that the late addition of the two weapons counts was prompted by his initial misapprehension of the legal significance of the relevant facts. The trial court rejected defendant's arguments, and accepted the State's explanation. We agree.

As in Goodwin and Gomez, the prosecutor at the time of the first indictment did not fully understand the extent to which defendant could be prosecuted, but prior to the start of trial realized that the State had probable cause for charging the defendant with another statutory offense. In addition, the gun counts, which were third and fourth degree offenses, subjected defendant to a less severe punishment than the second degree drug offense in the original indictment. Thus, defendant's claims that the superseding charges were vindictive "are mere speculation without factual basis." Froland, supra, 378 N.J. Super. at 39.

We are satisfied, as was the trial court, that the prosecutor, upon gaining a better understanding of the facts in defendant's case, as well as the exceptions pursuant to N.J.S.A. 2C:39-6f, realized that the State could bring additional charges for statutory offenses. In the absence of evidence of actual vindictiveness, we must defer to the prosecutor's decision to bring charges before the grand jury. Froland, supra, 378 N.J. Super. at 38-39.

The balance of defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the trial courts.

 
Affirmed.

During an April 26, 1999 pre-trial hearing, the trial court severed Bernice Eure's case.

The judgment of conviction erroneously indicates that defendant's convictions resulted from a negotiated plea. We therefore remand the matter for the trial court to correct the judgment of conviction to reflect that defendant was found guilty by a jury.

Union County Prosecutor's Office Detective Richard Stamler was admitted by the trial court as an expert in the field of narcotics distribution. According to Stamler, hollow point bullets are generally considered to be more dangerous than ordinary bullets, because they are designed to open up on impact as jagged pieces of shrapnel, resulting in more serious injuries.

Although not entirely clear from the record, it appears that the trial court did not in fact conduct an evidentiary hearing.

We believe that the transcripts and brief refer in error to this Fort as "Fort Canel" and "Fort Camel."

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A-4741-01T4

April 24, 2006