STATE OF NEW JERSEY v. SHAWN SPIVEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN SPIVEY, a/k/a SHAWN

L. SPIVEY,

Defendant-Appellant.

July 6, 2015

Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-06-1046.

Joseph E. Krakora, Public Defender, attorney forappellant (MicheleA. Adubato, Designated Counsel, on the brief).

AndrewC. Carey,Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Shawn Spivey was tried before a jury and found guilty of eight counts of a ten-count indictment, including four drug offenses. He appeals from the judgment of conviction entered by the trial court on August 20, 2013, and challenges his convictions and the sentences imposed. We affirm.

I.

Defendant was charged under Middlesex County Indictment No. 09-06-1046, with third-degree possession of a controlled dangerous substance ("CDS"), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3); third-degree distribution of CDS, N.J.S.A. 2C:35-5a(1), b(3) (count three); third-degree possession of CDS with intent to distribute on or near a school zone, N.J.S.A. 2C:35-5a, -7 (count four); third-degree distribution of CDS on or near school property, N.J.S.A. 2C:35-5a, -7 (count five); two counts of third-degree resisting arrest, N.J.S.A. 2C:29-a(3) (counts six and seven); two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(5) (counts eight and nine); and third-degree terroristic threats, N.J.S.A. 2C:12-3a (count ten).

Defendant's first trial in October 2011 ended in a mistrial because not enough jurors were able to complete the trial. In May 2012, defendant moved to dismiss the indictment based on double jeopardy grounds, which the judge denied.

Defendant's second trial began in June 2013, before a jury and a different judge. The jury found defendant guilty of all counts, except for counts six (resisting arrest)1 and ten (terroristic threats).

In August 2013, the judge denied defendant's motion for a new trial. Defendant was then sentenced to eight years with a four-year period of parole ineligibility on count five; five years with a thirty-month period of parole ineligibility on counts seven, eight, and nine, concurrent with each other but consecutive to count five; and six months for count six, concurrent with the other counts. On September 23, 2013, the court amended the judgment of conviction to provide for the sentence to run consecutive to Indictment No. 10-06-972, an unrelated case. See State v. Spivey, 179 N.J. 229, 245 (2014).

We briefly summarize the salient facts, drawn from the record. On May 9, 2009, Lieutenant Paul Schuster was conducting surveillance using binoculars when he observed defendant walking in his direction down the sidewalk with a bicycle and a group of three or four other people. A red car parked near defendant and Jacqueline McCleod exited the car. She then approached defendant and showed him some photographs. Lieutenant Schuster saw defendant look up and down the street, remove a light-colored object from his mouth, and give it to McCleod. The officer observed defendant and McCleod repeat this process again a "very short time later."

Lieutenant Schuster contacted backup police officers in order to assist in making an arrest. Detectives Joshua Alexander and Michael Sabo were in one backup car, while Detectives Rosario Maimone and Anthony Adobe were in a second car. These officers received the call, drove to the scene, quickly exited their vehicles, identified themselves, and told defendant to put his hands behind his back. A struggle ensued and the officers took defendant to the ground and handcuffed him. During the struggle, defendant spit two bags of cocaine onto the ground. Detective Maimone retrieved the CDS and took it into evidence.

The officers transported defendant to police headquarters and Detectives Sabo, Maimone, and Adobe searched him. Defendant's handcuffs were removed and he was asked to remove his shoelaces. Defendant sat down, but then jumped up and punched Detective Maimone in the face twice, knocking him to the ground. After Detective Alexander tackled him, defendant then punched Detective Sabo in the face.

The officers were unable to complete their search, and consequently, they removed defendant's jeans because they were unsure whether he had weapons in them, and dragged defendant to a cell. Detective Adobe later approached the cell to fingerprint defendant, but defendant told the officer that if he opened the door defendant "would knock [him] the fuck out."

At trial, the jury heard evidence from the State that Lieutenant Schuster used binoculars to observe defendant from about 100 feet away, while a defense witness testified that the distance was 115 feet. During deliberations, the jury requested to use the binoculars, which were admitted into evidence, to look down the hallway to test the binoculars at "roughly 100 feet[.]" The judge permitted this, and a distance of 100 feet was paced off in the hallway of the courthouse. The hallway was cleared of all people so that no person walked in front of the jurors while they were looking through the binoculars. The court provided no other guidance on how to test the binoculars.

On appeal, defendant argues

POINT I

THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT ON DOUBLE JEOPARDY GROUNDS SHOULD HAVE BEEN GRANTED.

POINT II

THE PROSECUTOR'S IMPEACHMENT OF DEFENSE WITNESSES BY THE USE OF PRIOR DRUG CONVICTIONS IN THIS DRUG CASE WAS GROSSLY IMPROPER AND DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not raised below).

POINT III

THE COURT'S RESPONSE TO THE JURY'S REQUEST TO USE BINOCULARS WAS IMPROPER AND DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT IV

DENIAL OF DEFENDANT'S MOTION FOR NEW TRIAL WAS ERROR.

POINT V

THE REMARKS MADE BY SGT. QUICK AT SENTENCING WERE IMPROPER VICTIM IMPACT EVIDENCE WHICH DENIED DEFENDANT A FAIR SENTENCING HEARING.

POINT VI

THE CONSECUTIVE SENTENCES IMPOSED UPON DEFENDANT WERE EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (Not raised below).

II.

We reject defendant's argument that the first trial judge should have granted his motion to dismiss the indictment based on double jeopardy grounds following the mistrial.

"Whether an indictment should be dismissed or quashed lies within the discretion of the trial court." State v. N.J. Waste Ass'n, 96 N.J.8, 18 (1984). This "discretion should not be exercised except on 'the clearest and plainest ground' and an indictment should stand 'unless it is palpably defective.'" Id.at 18-19 (quoting State v. Weleck, 10 N.J.355, 364 (1952)). Moreover, the trial court has the sound discretion to grant or deny a motion for a mistrial, and is reviewed for an abuse of that discretion. State v. Winter, 96 N.J.640, 646-47 (1984).

The Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb[.]" U.S. Const.amend. V. This clause is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707, 716 (1969). The New Jersey Constitution similarly provides that "[n]o person shall, after acquittal, be tried for the same offense." N.J. Const.art. I, 11. Our Supreme Court has "interpreted the state constitutional double jeopardy protection as co-extensive with the guarantee of the federal Constitution." State v. DeLuca, 108 N.J.98, 102, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987).

Nevertheless, "the double jeopardy protection does not mean that once an accused has been put on trial regularly, the proceeding must run its ordinary course to judgment of conviction or acquittal. The rule does not operate so mechanistically." State v. Farmer, 48 N.J.145, 174 (1966), cert. denied, 386 U.S. 991, 87 S. Ct. 1305, 18 L. Ed. 2d 335 (1967). N.J.S.A.2C:1-9d provides that double jeopardy applies when "[t]he former prosecution was improperly terminated." However, the statute also specifies that termination is not improper when "[t]he defendant consents to the termination, or waives by motion to dismiss or otherwise, his right to object to the termination," or when "[t]he trial court finds that the termination is required by a sufficient legal reason and a manifest or absolute or overriding necessity." N.J.S.A.2C:1-9d(1), (3).

Determining "[w]hether 'manifest necessity' or 'the ends of public justice' require declaration of a mistrial depends on the unique facts of the case and the sound discretion of the trial court." State v. Loyal, 164 N.J.418, 435 (2000). The

[e]xistence of these two criteria depends upon balancing two prime factors: Public interest in seeing that there is a fair trial designed to end in a just and equitable judgment, and the constitutional protection to which the defendant is entitled that he shall not be harassed by subjection to two trials and two punishments for essentially the same offense.

[State v. Rechtschaffer, 70 N.J. 395, 405 (1976).]

There is a "balancing of interests and special deference afforded in circumstances where the mistrial resulted from the court's concern with the fair administration of justice rather than from misconduct by the prosecutor or defense counsel." State v. Georges, 345 N.J. Super. 538, 547 (App. Div. 2001), certif. denied, 174 N.J. 41 (2002).

In Rechtschaffer, the Supreme Court set forth a series of questions appellate courts should consider in reviewing a sua sponte declaration of a mistrial

Did the trial court properly exercise its discretion so that a mistrial was justified? Did it have a viable alternative? If justified, what circumstances created the situation? Was it due to prosecutorial or defense misconduct? Will a second trial accord with the ends of public justice and with proper judicial administration? Will the defendant be prejudiced by a second trial, and if so, to what extent?

[Rechtschaffer, supra, 70 N.J. at 410-11.]

In this case, while the trial was estimated to take seven days, the court scheduled the trial for nine trial days, beginning on October 4, 2011. When it became clear that the trial would go longer than originally projected, the judge added another trial day, on a Friday, and also asked the jury to come in early. On October 19, 2011, the judge discussed with the parties that "[b]oth sides underestimated greatly the amount of time this case was going to take." After the parties discussed what remained of their cases, the judge determined that the trial required another seven days, plus an extra day, and a day for jury deliberations.

The judge then explained the situation to the jury and asked each member if he or she would be available to continue the trial after a one-week break, as the judge had a previously scheduled commitment. After questioning each juror, the judge stated that "[b]ased upon the answers from the jurors I am going to have to declare a mistrial in this case. There is no way we can continue. We won't have enough jurors. We're all in agreement on that." The judge then asked if either counsel had any comments, and defense counsel stated, "I am in agreement with your findings" and that "[w]e don't have a choice."

We conclude that the judge fully considered the only real alternative, a one-week break in the trial, and found it wanting. Under the circumstances, we find no abuse of discretion in the sua sponte declaration of a mistrial in the manifest interest of public justice. Nor do we discern any mistaken exercise of discretion in the denial of defendant's motion to dismiss the indictment based on double jeopardy grounds. Defendant effectively consented to the mistrial by not objecting to it when offered the opportunity to comment. Additionally, the judge considered whether any viable alternatives existed, brought the jurors in early and for an extra day, and questioned them individually as to whether they would be able to sit for an extended trial. Therefore, the termination was not improper and did not trigger double jeopardy. SeeN.J.S.A.2C:1-9d; Georges, supra, 345 N.J. Super.at 410-11.

III.

We also reject defendant's contention that the State improperly used prior convictions to impeach three defense witnesses and that the prosecutor's comments regarding these convictions during summation were improper.

In this case, the prosecutor questioned three defense witnesses about their prior criminal convictions for CDS offenses. Additionally, the prosecutor noted during summation that the witnesses' prior convictions could be considered when the jury assessed their credibility.

Defendant did not object at trial to the introduction of the convictions nor the summation comments. Therefore, we consider whether the admission of this evidence was erroneous and, if so, whether any error was "clearly capable of producing an unjust result[.]" R. 2:10-2; State v. Maloney, 216 N.J. 91, 104 (2013). The possibility of an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

Prior criminal convictions are admissible to impeach the credibility of witnesses in a criminal case. N.J.R.E. 609. Trial judges have broad discretion to admit evidence of prior criminal convictions. State v. T.J.M., 220 N.J. 220, 233 (2015). Additionally, "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice[.]" N.J.R.E. 403.

Moreover, "[p]rosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). For prosecutorial comments "[t]o justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper," and "so egregious that it deprived the defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 438 (2007) (alteration in original) (citations and internal quotation marks omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Furthermore, "[t]he failure to object [at trial] suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Frost, supra, 158 N.J. at 84.

We conclude there was no plain error. The prosecutor was permitted to impeach the witnesses with their prior convictions, and abided by the limitation of only questioning them regarding the nature of their crimes. Additionally, the State's closing argument did not deprive defendant of a fair trial. See id. at 83-84. Although the prosecutor commented that one of the witnesses' offense was similar to defendant's current offense, it was not clearly capable of producing an unjust result. See R. 2:10-2.

IV.

Defendant next argues that the trial court's response to the jury's request to use the binoculars was improper. He asserts that the court should not have measured 100 feet for the jury because it provided them with information not presented at trial, compromised the judge's neutral position, and could have influenced the jury. Defendant did not object at trial.

There was no plain error resulting from the use of the binoculars by the jury. The binoculars were entered into evidence and defendant failed to object to the use of them at trial. Even if improper, the error was not clearly capable of producing an unjust result. See R. 2:10-2.

V.

Defendant also challenges the judge's denial of his motion for a new trial because of the jury's use of the binoculars and because the verdict was against the weight of the evidence. We disagree.

We do not reverse a trial court's denial of a motion for a new trial based on the verdict that is against the weight of the evidence "'unless it clearly appears that there was a miscarriage of justice under the law.'" State v. Perez, 177 N.J. 540, 555 (2003) (quoting R. 2:10-1). We must consider the totality of the evidence in the light most favorable to the State. Additionally, we defer to the trial court with respect to "intangible aspects" not gleaned from the record, such as credibility and demeanor. Carrino v. Novoty, 78 N.J. 355, 360-61 n.2 (1979).

Applying these standards, we see no evidence that the denial of defendant's motion for a new trial resulted in a "miscarriage of justice under the law." R. 2:10-1. Defendant's arguments pertain to determinations of credibility and witness testimony. See Carrino, supra, 78 N.J. at 360-61 n.2. Moreover, his arguments regarding the jury's use of the binoculars and the weight of the evidence clearly lack substantive merit. The record contains substantial credible evidence that established defendant's guilt of the charged offenses that resulted in convictions.

VI.

We further reject defendant's argument that the comments of Sergeant Quick, the head of the New Brunswick Police Department's Anti-Crime Unit but who was not involved in defendant's case, deprived defendant of a fair sentencing hearing.

Sergeant Quick provided comments at defendant's sentencing hearing that defendant was "[o]ne of the most violent people I know," that he "has no regard for law enforcement," and that he was a "man that needs to be in jail, stay in jail." However, defendant immediately objected, arguing that Sergeant Quick's comments were improper because he was not a victim in the present case. See N.J.S.A. 52:4B-34 to -37. The judge agreed and stated that he was "not going to consider" Sergeant Quick's comments and also commented that he was "not sure why it was appropriate to have the Sergeant [testify] . . . since he [was not] one of the victims."

We conclude Sergeant Quick's comments did not prevent defendant from receiving a fair sentencing hearing. The judge stated on the record that he was not going to consider the Sergeant's comments and acknowledged he was not a victim involved in this case.

VII.

We also reject defendant's contention that his sentence was excessive. Defendant challenges the judge's imposition of consecutive sentences, arguing that the sentence imposed for Indictment No. 10-06-972 and the sentence imposed in the case under review, total thirty-two years of imprisonment, with fourteen and one-half years of parole ineligibility, and that this total is excessive.

We are required to affirm a sentence so long as it "properly identifies and balances aggravating and mitigating factors" supported by credible evidence and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215 (1989). Additionally, under N.J.S.A. 2C:43-6b, a period of parole ineligibility is appropriate "where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors[.]" If the sentencing judge determines that parole ineligibility is appropriate, the court "'shall state on the record the reasons for imposing the sentence[.]'" State v. Bessix, 309 N.J. Super. 126, 130 (App. Div. 1998) (quoting State v. Kruse, 105 N.J. 354, 359 (1987)).

In this case, defendant was sentenced to the extended term for count five, distribution of CDS on or near school property, receiving an eight-year term with a four-year period of parole ineligibility. The sentence was concurrent with the five-year term and two-and-one-half year parole ineligibility imposed for counts one through four, and the six-month sentence imposed for the disorderly persons offense of resisting arrest on count six. Defendant was further sentenced to five-years imprisonment and two-and-one-half years parole ineligibility for counts seven, eight, and nine, which were to run concurrent with each other, but consecutive to count five.

In determining the sentence, the judge found aggravating factors N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); -1a(6) (prior criminal record and seriousness of convictions); and -1a(11) ("imposition of a fine [or] penalty . . . without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business"). This sentence was concurrent with defendant's prior conviction under indictment number 10-06-972.

While we agree with defendant that aggravating factor eleven is inappropriate here,2 its exclusion does not materially affect the weight of the aggravating factors to change defendant's sentence. The trial judge explained his reasoning for imposing a consecutive sentence, stating that the assault and CDS charges were separate offenses, occurring at separate times. The sentence imposed here also is consistent with the principle that "there can be no free crimes . . . ." State v. Yarbough, 100 N.J. 627, 643 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

We therefore conclude that the trial judge's findings and the resulting sentence are supported by sufficient credible evidence and the sentence does not shock the judicial conscience.

Affirmed.

1 The jury did find defendant guilty of resisting arrest as a disorderly persons offense.

2 This factor is applicable only when the judge is balancing a noncustodial term against a State prison sentence. State v. Rivera, 351 N.J. Super. 93, 110 (App. Div. 2002) aff'd o.b., 175 N.J. 612 (2003). Notably, aggravating factor eleven is not listed on the judgment of conviction,