STATE OF NEW JERSEY v. SHALIK SPRUILL

NOT FOR PUBLICATION WITHOUT THE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.

SHALIK SPRUILL,

Defendant-Appellant.

_________________________________

December 17, 2015

Submitted October 5, 2015 - Decided

Before Judges Messano and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-08-1191.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

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

PER CURIAM

This appeal arises out of a robbery that occurred in June 2010. In July 2010, a Middlesex County grand jury returned Indictment No. 10-08-1191, charging Shalik Spruill and co-defendant, Islam E. El-Ghoul, with second-degree robbery, N.J.S.A.2C:15-1 (count one); and third-degree aggravated assault, N.J.S.A.2C:12-1(b)(7) (count two). A juvenile participant, D.A., was charged with robbery, aggravated assault and theft. D.A. was adjudicated in Family Court.

Following an unsuccessful pre-trial motion to suppress evidence seized at arrest, and denial of a motion for mistrial, a jury found Spruill guilty of second-degree robbery, N.J.S.A.2C:15-1 and simple assault, N.J.S.A.2C:12-la. The court sentenced Spruill to a five-year prison term subject to the No Early Release Act on the robbery offense, and to a concurrent twelve-month term of incarceration on the simple assault disorderly persons offense. The court also imposed a three-year period of parole supervision, along with the appropriate fines and penalties. Spruill appeals the conviction, claiming that the motions below were erroneously denied.1 For the reasons that follow, we affirm the denial of the motion to suppress. However, we reverse the conviction because defendant's motion for a mistrial should have been granted, as no limiting instruction could cure the prejudice caused by the disclosure of Spruill's confession.

I.

On June 5, 2010, at approximately 9:30 p.m., the victim, J.R., left his apartment in the London Terrace complex in Old Bridge to buy a telephone calling card. As he walked past the Quick Chek convenience store, several individuals began following him. J.R. tried to evade the men by taking a shortcut between buildings, but they caught up and attacked him. He fell to the ground and covered his face with his arms as he was beaten. His golden rosary beads, baseball cap, Nike brand sneakers, and wallet containing cash, identification, and a debit card were taken. J.R. watched his attackers run back towards the Quick Chek parking lot area.

Detective Gregory Morris of the Old Bridge Police Department testified at the suppression hearing that he was assigned to assist with the robbery investigation. When Morris arrived at the police station, he interviewed J.R. who reported that he had been robbed by a group of men near the Quick Chek convenience store. J.R. had identified El-Ghoul, who lived in the same apartment complex, as one assailant. He described another as "a bigger, heavy set black guy, wearing a green hat and a green shirt," and who was "much larger . . . than the other individuals involved." Morris also spoke with El-Ghoul, who was already in police custody.

Shortly after J.R. left the police station, Morris received a telephone call with information that "the individual . . . in the green hat and the green shirt as well as another black male involved [in the robbery]" was standing at the Quick Chek parking lot. Morris radioed for assistance and proceeded to that area. Upon arrival, he found two men, later identified as Spruill and D.A., with two responding police officers. Morris observed that Spruill was "much bigger" than either El-Ghoul or D.A., and he was wearing a green shirt and green hat. Police took Spruill into custody. Before placing him in a patrol car, police conducted a pat-down search for weapons. Upon finding none, they asked Spruill to empty his pockets. J.R.'s debit and photo identification card were found in his pockets. Spruill told police "that if he was going to be arrested then the other individual [D.A.] needs to be arrested because he did just as much and was there the whole time." Police transported Spruill to headquarters where he gave a recorded statement admitting that he was present during the incident, and that he intended to return the cards to the victim.

Morris wrote in his police report that an "anonymous" informant called to inform him that the man, later identified as Spruill, was at the Quick Chek store. However, at the hearing, he testified that the call he received actually came from J.R., made while he was driving home from the police station. Morris explained that he made the false report to protect J.R. from retaliation

The reason I wrote that at that point was because we have a small apartment complex and this individual lives there with his family and he was very concerned for his safety. He walks everywhere, he works nearby, and he still lives there. And he was very concerned at that point of walking and he was in fear of his own safety for saying that.

So at that point, we had the I.D. as well as the personal belongings in Mr. Spruill's pocket. We also had a statement from Mr. Spruill, indicating he was involved as well as another individual who was arrested. There was more than enough, at that point we felt, for the safety of the victim that we didn't have to put him [sic] name in there at that point.

On cross-examination, Morris admitted that he presented the same false information to the grand jury. He also acknowledged that he did not have J.R. positively identify Spruill.

Morris's report also stated that Spruill cooperatively agreed to go to headquarters to speak with him, before being subjected to a pat-down. Morris had testified similarly before the grand jury. At the suppression hearing, however, Morris testified that because he "had more information" than the two responding officers, he considered Spruill effectively under arrest once he arrived and Spruill was not free to leave. Consequently, when Spruill was "asked to empty his pockets," he was actually being searched "[i]ncident to [the] arrest." Morris explained that Spruill and D.A. were not immediately handcuffed because Spruill was being "very cooperative," and Morris believed a "friendly approach" would better contribute to the investigation.

Spruill argued that the police lacked probable cause to arrest him, and challenged Morris' credibility regarding the identity of the informant and the timeline of his arrest and search. Spruill maintained that Morris' inconsistent stories were designed to "cure an illegal search."

The court delivered an oral decision denying the motion. The court found Morris credible, notwithstanding the prior inconsistent statements contained in his report and grand jury testimony. The court explained

Morris testified that he merely made those statement[s] for the purpose of protecting the victim in this case because the victim lived in the same community with the defendant. . . . [T]hat assertion by - - or that testimony by Morris is credible because there was [no one] else who would have been able to ascertain that information and [no one] else who had an interest in giving that information to the police.

There's no indication that there are any other witnesses to the crime. There is no indication that anybody else had an interest in reporting this information to the police but the victim.

The court also found that the police had probable cause to arrest and search Spruill, stating

So when the Police Officer approached the defendant, Spruill, he knew based on information given to him by the victim that the person who he had previously identified as being a larger male wearing a green hat and green shirt, was at the location where this incident had just, two hours earlier, taken place.

Upon seeing the defendant in a green hat, in a green shirt, heavy set black male at that location, the Officer had probable cause to believe that Spruill was one of the individuals who had robbed the victim, [J.R.] and therefore, had probable cause to arrest.

Prior to trial, Spruill sought to sever his trial from co-defendant El-Ghoul's. The parties agreed to a joint trial conditioned upon the State's representation that it would not introduce Spruill's incriminating statement in its case-in-chief. Accordingly, Morris was instructed not to mention Spruill's confession during the trial. However, during Morris' cross-examination, Spruill's counsel asked Morris a question regarding Spruill's intentions with respect to the debit and identification cards. The State objected, expressing concern that the question would both elicit hearsay and open the door to disclosing Spruill's confession, which the parties had agreed to exclude. A lengthy sidebar ensued out of the presence of the jury. Counsel proposed the rephrased question to ask, "[I]s there any reason that you would have to believe that those cards were never - - there was never an attempt to return those cards in that time period?" The court approved the question.

In open court, counsel withdrew the prior question and asked Morris, "Did it ever come to your attention in any way that Mr. Spruill may have tried to return these cards to the victim?" Morris answered

I spoke - - once Mr. Spruill is brought into the police station, I did speak with him where he confessed to the robbery. And he said that the only reason he had the items in his pocket, he admitted to being there. He gave information about the necklace, and his excuse was that he was going to at some point give the items back to our victim.

Defense counsel requested a sidebar to discuss Morris' response. He contended that Morris should have responded "yes" or "no," and that Morris had been warned not to disclose the confession and statement. Counsel moved for a mistrial. He argued that, based upon the evidence to that point, the jury could have believed that Spruill merely found the wallet and cards on the road. Counsel argued that a limiting instruction was not sufficient to protect Spruill's interest. The State argued that counsel invited Morris' response by asking a question that called for inadmissible hearsay. The judge indicated he would not grant a mistrial, but released the jury for the day to permit the drafting of an appropriate curative instruction.

As proceedings commenced the following day the judge denied defendant's mistrial motion, in part because defendant elicited the testimony. He gave a limiting instruction, the wording of which, was agreed to by defense counsel. The court informed the jury

In response to a question yesterday . . . about whether it came to Officer Morris' attention that Mr. Spruill tried to return certain cards to the victim, the Officer stated that he had a conversation with Mr. Spruill about the incident, his part in the incident and the return of certain items.

I'm instructing you to disregard all of the Officer's comments in connection with that response to that question. The comments by the Officer are not evidence and they must be disregarded.

So let me repeat and emphasize that you must disregard the comments and they may not be used by you and must not enter into your deliberations or play any part in your consideration of the evidence in this matter or your verdict. I do not want you to forget about it, but remember it only for the purposes that you are not to use it.

Please understand that if during your deliberations you realize that the information is necessary to your decision, you may not use it.

Counsel did not object to the instruction, then proceeded to complete Morris' cross-examination. The State rested after Morris' testimony, and the court denied Spruill's motions for acquittal and a new trial. Defendants did not testify, nor did they present any witnesses.

The jury found Spruill guilty of simple assault and robbery. After sentencing, this appeal followed.

Spruill raises the following points for our consideration.

Point I

EVIDENCE WAS ILLEGALLY SEIZED FROM DEFENDANT WHO WAS ARRESTED WITHOUT PROBABLE CAUSE.

POINT II

THE TRIAL COURT'S DENIAL OF DEFENDANT'S APPLICATION FOR A MISTRIAL WAS ERROR WHICH DENIED DEFENDANT A FAIR TRIAL.

POINT III

THE TRIAL COURT ERRED BY DENYING DEFENDANT'S JUDGMENT OF ACQUITTAL AND NEW TRIAL MOTIONS.

POINT IV

DEFENDANT WAS PREJUDICED BY A FAULTY JURY INSTRUCTION ON THE SUBSTANTIVE USE OF PRIOR INCONSISTENT STATEMENTS.

II.

In Point I, Spruill argues the police lacked probable cause to arrest him, therefore the court erred in denying the motion to suppress physical evidence seized following an illegal arrest. In support of his argument, Spruill challenges the court's credibility determination and urges that we exercise original jurisdiction and make new factual findings.

We "may only consider whether the motion to suppress was properly decided based on the evidence presented at that time." State v. Turcotte, 239 N.J. Super 285, 299 (App. Div. 1990) (citing State v. Jordan, 115 N.J. Super73, 76 (App. Div.), certif. denied, 59 N.J.293 (1971)). When an error of judicial fact finding is alleged, the scope of appellate review is quite narrow. We "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Rockford, 213 N.J.424, 440 (2013) (quoting State v. Elders, 192 N.J.224, 243 (2007)). We accord particular deference when a trial judge has had the "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. To the extent that the trial court's determination rests upon a legal conclusion, we conduct a de novo, plenary review. Ibid.

Finally, while Rule2:10-5 grants us the power to make new findings of fact "as is necessary to the complete determination of any matter on review," our precedent has consistently warned against the exercise of original jurisdiction if circumstances require the "subjective and intuitive evaluations" ordinarily left to trial courts. State v. Sugar, 108 N.J.151, 159-60 (1987). See alsoCypress Point Condo. Ass'n, Inc. v. Adria Towers, L.L.C., 441 N.J. Super. 369, 385 (App. Div. 2015) (quoting State v. Micelli, 215 N.J.284, 293 (2013)) ("original jurisdiction should be exercised with 'great frugality' and not when there is a need to 'weigh[] evidence anew' or 'mak[e] independent factual findings[.]").

Here, the credibility and factual findings made by the judge hearing Spruill's motion to suppress were inextricably intertwined. There is no question that Morris' police report, statements to the grand jury, and suppression hearing testimony contained contradictory factual information about his informant. The court disfavored Morris' lack of candor and noted the unusual situation, stating, "I view the conduct of the Officer in providing false information in his report and then testifying falsely to the grand jury as - - as problematic and unacceptable." The court ultimately accepted Morris' testimony as credible because it was only plausible that J.R. made the call providing the description, and no one else. That conclusion was not clearly erroneous or "so wide of the mark that a manifest denial of justice resulted." State v. Brown, 170 N.J.138, 147 (2001) (quoting State v. Kelly, 97 N.J.178, 216 (1984)).

Furthermore, whether Morris rehabilitated his credibility by admitting his past untruthful conduct is not an objective question. We cannot possibly extract from the cold record the extent to which the judge relied on his own "feel" for the case, after observing Morris and hearing his testimony. Therefore, we will not substitute our own less-informed judgement for that of the Judge.

Finally, we decline Spruill's invitation to exercise original jurisdiction. The circumstances call for fact finding that would require us to engage in improper "subjective and intuitive evaluations" about Morris' credibility. Sugar, supra, 108 N.J.at 159-60.

We reject Spruill's contention that the arrest was not based on probable cause and that the search incident to arrest was invalid. Both the United States and New Jersey Constitutions guarantee an individual's right to be free from "unreasonable searches and seizures." U.S. Const.amend. IV; N.J. Const.art. I, 7. A warrantless search is "presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Wilson, 178 N.J.7, 12 (2003) (citing State v. Cooke, 163 N.J.657, 664 (2000)). The State bears the burden of proving that a warrantless search or seizure "falls within one of the few well-delineated exceptions to the warrant requirement." State v. Pineiro, 181 N.J.13, 19-20 (2004) (internal quotation marks and citation omitted).

The Fourth Amendment permits a police officer to make a warrantless arrest of a defendant in a public place provided the officer has probable cause to believe the defendant committed a crime. SeeMaryland v. Pringle, 540 U.S. 366, 370, 124 S. Ct. 795, 799, 157 L. Ed. 2d 769, 774 (2003). Probable cause is the touchstone for determining the validity of the arrest in this case.

In determining whether there was probable cause to make an arrest, a court must look to the totality of the circumstances, Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983); State v. Moore, 181 N.J.40, 46 (2004), and view those circumstances from the standpoint of an objectively reasonable police officer, Pringle, supra, 540 U.S.at 371, 124 S. Ct.at 800, 157 L. Ed. 2d at 775. (internal citation and quotation marks omitted). In assessing the facts available to a police officer, important considerations are the witness's veracity, reliability, and basis of knowledge. SeeGates, supra, 462 U.S.at 233, 238, 103 S. Ct.at 2329, 2332, 76 L. Ed. 2d at 545, 548.

When a tip is furnished by an ordinary citizen, rather than a criminal informant, "New Jersey courts assume that the informant has sufficient veracity and require no further demonstration of reliability." State v. Stovall, 170 N.J.346, 362 (2002) (citation omitted). This is because there is an assumption that a report by an ordinary citizen "is motivated by factors that are consistent with law enforcement goals." State v. Davis, 104 N.J.490, 506 (1986).

In this case, the police properly relied on J.R.'s statement and phone call which provided a nearly-contemporaneous description of the second assailant as a larger, black man wearing a green shirt and green hat at the Quick Chek store. Both of J.R.'s descriptions took place within a short span of time, as the phone call occurred within ten minutes of J.R. leaving the police station. There was no evidence of any other witnesses to the offense. Given the nature, timing, and accuracy of the information provided, the suppression court's finding that J.R. was the informant-caller is entitled to deference. SeeRockford, supra, 213 N.J.at 440.

Additionally, the description was not provided by a tip from an anonymous informant, but from one "in the nature of a victim or complainant, whose information could be taken at face value irrespective of other evidence concerning [his] reliability." State v. Amelio, 197 N.J.207, 213 (2008) (internal citation omitted). Moreover, when Morris arrived at the Quick Chek, he corroborated J.R.'s information regarding Spruill's "much bigger" stature, green shirt, green hat, and predicted location. This provided the probable cause necessary to effect Spruill's arrest.

It is not constitutionally significant whether Spruill's arrest or search was conducted first. State v. O'Neal, 190 N.J.at 614-15; see alsoState v. Bell, 195 N.J. Super.49, 58 (App. Div. 1984) (holding that when the police search an individual before placing him under arrest as part of a single uninterrupted transaction, it does not matter whether the arrest precedes the search). In this matter, though the police did not verbally place Spruill under arrest before searching him, he was not free to leave. Under these circumstances, which included Spruill's "cooperative" attitude, we conclude that the police had probable cause to arrest Spruill, and the seizure of the physical evidence during the search that preceded the arrest was lawful.

In Point II, Spruill contends that Morris' disclosure of Spruill's confession warranted a mistrial. The State urges that Morris' comment was elicited on cross-examination and, thus, constitutes invited error.

It is well-settled that "trial errors that were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal." State v. Munafo, 222 N.J. 480, 487 (2015) (quoting State v. A.R., 213 N.J. 542, 561 (2013)) (internal quotation marks omitted). In this case, defense counsel insisted on asking Morris about Spruill's intentions to return the cards to J.R. When defense counsel asked Morris a different question than that which had been approved by the court, he received the non-responsive answer at issue. The discussion that ensued with the court lays bare the problems inherent in defense counsel's insistence upon asking the question, namely the potential for eliciting impermissible hearsay and for disclosing Spruill's confession. Nevertheless, we are convinced that defense counsel's question clearly did not invite Morris' response regarding defendant's confession. This is particularly true since Morris had been warned prior to testifying not to mention the confession.2

In this context, we address the denial of Spruill's motion for a mistrial. "The grant of a mistrial is an extraordinary remedy to be exercised only when necessary 'to prevent an obvious failure of justice.'" State v. Yough, 208 N.J. 385, 397 (2011) (quoting State v. Harvey, 151 N.J. 117, 205 (1997)). Whether testimony or remarks are prejudicial, and whether fairness requires a curative instruction, are questions that trial courts are particularly suited to decide. Ibid. (citing State v. Winter, 96 N.J. 640, 646-47 (1984)). Thus, appellate courts should not reverse a denial of a mistrial motion without a clear showing of actual harm or abuse of discretion. Ibid. (citing State v. Labrutto, 114 N.J. 187, 207 (1989)). In particular, "when inadmissible evidence erroneously comes before the jury, an appellate court should not order a new trial unless the error was clearly capable of producing an unjust result." Ibid. (citing R. 2:10-2; State v. Frisby, 174 N.J. 583, 591 (2002)) (internal quotation marks omitted).

Here, there could be no more prejudicial evidence than Morris' revelation to the jury that defendant confessed to the crimes. Prior to its disclosure, Spruill had not been identified by J.R. in or outside of court as one of his assailants. In addition, D.A. presented inconsistent testimony as to Spruill's role, at several points testifying that Spruill did not strike the victim nor take any of his property. Therefore, while there was some direct evidence linking Spruill to the crimes, namely the debit and identification cards, there was only circumstantial evidence of his participation in the assault and robbery for which he was convicted.

We find that Morris' disclosure of the confession was clearly capable of producing an unjust result. The court's instruction to the jury could not cure the prejudice to defendant. Therefore, we conclude the trial court misapplied its discretion by failing to grant a mistrial, and we reverse defendant's conviction. In light of that disposition, we need not reach Spruill's remaining arguments in Points III and IV.

We affirm the denial of defendant's motion to suppress. We reverse the judgment of conviction and remand the matter to the Law Division for further proceedings.

1 In a separate hearing, the court denied El-Ghoul's motion to suppress the victim's out-of-court identification. We address arguments raised in El-Ghoul's appeal in a separate opinion, State v. El-Ghoul, No. A-2713-12, being filed simultaneously on December 17, 2015.

2 Before denying the mistrial motion, the judge questioned Morris under oath as to whether he had been so instructed by the prosecutor. The detective admitted he was told not to mention defendant's confession during his testimony.