State v. Spivey

• Decision Date: 01 February 1973
• Citation: 122 N.J.Super. 249,300 A.2d 167
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Frank D. SPIVEY, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 249

122 N.J.Super. 249

300 A.2d 167

STATE of New Jersey, Plaintiff-Respondent, v. Frank D. SPIVEY, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Nov. 6, 1972.

Decided Feb. 1, 1973.

Stanley C. Van Ness, Public Defender, for defendant-appellant (Martha K. Kwitny, Asst. Deputy Public Defender, of counsel and on the brief).

Joseph P. Lordi, Essex County Prosecutor, for plaintiff-respondent (Ralph J. Jabbour, Asst. Prosecutor, of counsel and on the brief).

Before Judges COLLESTER, LEONARD and HALPERN.

The opinion of the court was delivered by

COLLESTER, P.J.A.D.

Defendant was found guilty by a jury of the rape and robbery of Sadaline Moster. He was sentenced to a prison term of 16--23 years on the conviction for rape and to a concurrent prison term of 6--9 years on the conviction for robbery.

The crimes occurred on November 26, 1969 and defendant was arrested on that date. The case first came on for trial on September 21, 1970 but resulted in a mistrial caused by defendant's disruptive tactics. On the second day of that trial the court conducted a Voir dire hearing and found that the victim's out-of-court identification of defendant, while she was in a hospital a few hours after the crimes were committed, was admissible in evidence.

On January 4, 1971 a hearing was held with a jury, pursuant to N.J.S.A. 2A:163--2, to determine defendant's sanity at the time of the hearing, at the time of commission of the offenses, and his competency to stand trial. The jury found defendant same on both occasions and that he was capable of conferring with counsel and aiding in the conduct of his defense.

Defendant's second trial began on May 3, 1971 and continued through May 7. At the outset, over objection, the trial judge ruled that his earlier finding in September 1970 that the pretrial identification by the victim was admissible, was the law of the case. The judge also denied defense counsel's request for another competency hearing.

Prior to the selection of the jury defendant was brought into the courtroom, but because of his refusal to be seated or to desist from railing at the court he was bound and gagged. He continued to moan, groan and bang his hands on the counsel table. The court ruled that until defendant behaved properly the only time he would be brought into the courtroom was at the time his presence was required for identification. The court also denied defense counsel's motion to be relieved. Thereafter, during the course of the trial when defendant was brought into the courtroom he continued his disruptive tactics.

The State's proofs indicated that on the evening of November 26, 1969 Miss Moster alighted from a bus at Bloomfield Avenue in Montclair and started across the street looking for a taxicab. She was accosted by a black man and a white man (subsequently identified as defendant Spivey and Frank Fabrizio) who were in a pizzeria delivery truck. Miss Moster was forcibly pulled into the truck, which was then driven away to a secluded area where the men robbed her and defendant raped and beat her. When she was finally released she went to a house for aid. She was taken to a hospital and the police were notified of the attack. A short time later defendant and Fabrizio were apprehended and taken to the hospital where Miss Moster identified them as her assailants. Fabrizio testified on behalf of the State at defendant's trial.

The defense presented no evidence to refute the State's charges but offered expert testimony in an attempt to show that defendant was insane. The State, in rebuttal, presented medical testimony to establish that defendant was sane and that he was feigning insanity.

On appeal the Public Defender, on behalf of defendant, raised the following points as grounds for reversal: (1) error in denial of a motion for a mistrial at the conclusion of the sanity hearing; (2) plain error in the court's reliance on the jury's findings in the sanity hearing in determining that defendant was competent to stand trial; (3) error in the failure of the court to conduct a competency hearing immediately before or during the trial and sentencing; (4) defendant was deprived of a fair trial because he was tried and sentenced while incompetent; (5) the court erred in continuing the trial after defendant's bizarre behavior necessitated his removal from the courtroom; (6) the court erred in not adopting a method of courtroom discipline which would permit defendant to remain in the courtroom; (7) the court erred in denying defense counsel's motion to be relieved; (8) plain error in depriving defendant of his right to be present at the sanity hearing; (9) there was insufficient evidence adduced to establish the elements of robbery; (10) the court erred in refusing a postponement of the trial so that one of defendant's psychiatrists could be present to testify; (11) error in denial of a mistrial motion on the ground that the victim said defendant was pretending to be insane; (12) the court erred during the Voir dire examination of jurors by referring to the racial differences between defendant and the victim; (13) defendant was denied a jury of his peers because the prosecutor contributed to the systematic exclusion of black jurors; (14) the prosecutor's summation improperly directed the jury's attention to the possibility that an insane defendant might be released; (15) the sentence was excessive, and (16) the aggregate errors denied defendant a fair trial. In addition thereto defendant submitted a Pro se brief contending: (a) the court failed to provide a speedy trial; (b) police identification procedures were improper; defendant was deprived of a Wade hearing; (c) the court admitted testimony from a psychiatrist in violation of his Miranda rights and his doctor-patient privilege; (d) the presentence investigator never interviewed defendant, and (e) defendant was denied his right to a preliminary hearing.

We have carefully considered the points raised and find no reversible error in any of them. Only a few of them warrant any discussion.

We deal first with the contention that the trial judge committed error in submitting the issue of defendant's competency to stand trial to the determination of a jury in the proceeding brought pursuant to N.J.S.A. 2A:163--2. He argues that the statute relates only to the question of his sanity at the time of the hearing and at the time the offenses charged against him were alleged to have been committed. He asserts that the issue of competency to stand trial must be tried by the judge alone, and that since the judge, following the jury verdict, indicated that if he had been the trier of the facts he would have found defendant to be insane, he should not have allowed his own fact-finding to be overridden by the jury. We note first that defendant's contention is raised as plain error since the record clearly indicates that at no time did his counsel object to having the jury decide the issue of defendant's capacity to stand trial. In fact, in his opening to the jury at the sanity hearing defense counsel specifically stated, 'First, you must decide whether Mr. Spivey can consult with me, his attorney, in an intelligent manner, so that I can prepare his case and defend his case.' Moreover, no case has been cited which holds that it is mandatory for the judge to decide the issue of competency sitting without a jury. To the contrary, there are cases which indicate that the competency of an accused to stand trial may be submitted to a jury impaneled for that purpose. State v. Gibson, 15 N.J. 384, 387--388, 105 A.2d 1 (1954); State v. Auld, 2 N.J. 426, 435, 67 A.2d 175 (1949). See also, Aponte v. State, 30 N.J. 441, 153 A.2d 665 (1959), which states that the issue of capacity for trial can be decided by the court alone, or with a jury, although suggesting that it would ordinarily be more appropriate that the issue be tried by the court alone. We are satisfied that there was no plain error in the determination of defendant's competency by the jury.

We find no error in the court's failure to conduct another competency hearing of defendant. At the outset of the trial on May 3, 1971 a report of a psychiatric examination of defendant made on April 30, 1971 by Dr. Winsten, one of defendant's medical experts, was submitted to the court. The record shows that it indicated to change in defendant's mental condition since the sanity hearing held in January 1971. The granting of a request for a competency hearing is committed to the sound discretion of the trial court. The court's failure to order such an inquiry will not be reviewed on appeal unless it clearly and convincingly appears that the defendant was incapable of standing trial. State v. Lucas, 30 N.J. 37, 73--74, 152 A.2d 50 (1959). We conclude there was no mistaken exercise of the court's discretion in the instant case.

We turn next to the Public Defender's argument that the court erred in continuing the trial after defendant's 'bizarre behavior' necessitated his removal from the courtroom, and in failing to adopt a disciplinary measure which would have permitted defendant's presence. The record indicates that at the outset of the trial defendant began the same disruptive tactics he had engaged in during his first trial which had resulted in a mistrial. His conduct is described in the Public Defender's brief as 'braying, kicking, spitting, singing, moaning, etc.,' and the record shows he mouthed obscenities and insults to the trial judge and others. Attempts to cope with such tactics by binding and gagging defendant outside of the jury's presence were unsuccessful. As a result the trial judge was required to ban him from the courtroom. Defendant was advised that he would be permitted to return when he agreed to comport himself properly, but thereafter when he was brought into the...