State v. Spivey

• Decision Date: 01 April 2004
• Citation: 179 N.J. 229,844 A.2d 512
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Shawn L. SPIVEY, Defendant-Appellant.
• Court: New Jersey Supreme Court

844 A.2d 512

179 N.J. 229

STATE of New Jersey, Plaintiff-Respondent, v. Shawn L. SPIVEY, Defendant-Appellant.

Supreme Court of New Jersey.

Argued January 21, 2004.

Decided April 1, 2004.

Michael J. Confusione, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Steven J. Kaflowitz, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney). Justice ALBIN delivered the opinion of the Court.

A person who possesses a firearm "while in the course of" possessing with intent to distribute a controlled dangerous substance within 500 feet of a public park commits a second-degree crime. N.J.S.A. 2C:39-4.1a. In this case, defendant was arrested outside his apartment building as the police began a search of his apartment that uncovered a sizeable stash of drugs and a loaded gun. We must determine whether that evidence was sufficient to convict defendant under N.J.S.A. 2C:39-4.1a.

I.

On September 9, 1998, two teams of officers of the Plainfield Police Department—designated perimeter and search teams—executed a no-knock warrant to search the person and home of defendant Shawn L. Spivey, who lived in a second floor apartment in Plainfield, with his wife, codefendant Niki Harrison, and their two young children. The police officers wore windbreakers with the insignia "Police" on the front and back of their jackets. The perimeter team sighted defendant across the street from his apartment building and immediately moved to secure him while the search team forced its way into the apartment by use of a battering ram. Defendant resisted as Officer Jerry Plum attempted to detain him, striking the officer in the side of the head and causing him to fall to the ground and lose consciousness. Officer Plum suffered a concussion and fractured nose. Defendant was arrested, handcuffed, and brought into the apartment.

Inside the apartment, the officers found Harrison in the kitchen and their five-year-old son hiding under a bed in one of the bedrooms. After the residents of the apartment were secured, the officers proceeded to search the apartment. In one bedroom, they found a blue bag containing approximately 700 grams of marijuana and several hundred new and unused small Ziploc bags; a sneaker box containing twenty vials of cocaine; a digital scale and razor blades on the dresser; over $7,000 in cash in a dresser drawer; and a police scanner. The officers also retrieved from a kitchen cabinet a .22 caliber revolver loaded with five hollow point bullets, an additional cylinder for that revolver, and six Ziploc bags containing marijuana. Defendant's apartment was located less than 500 feet from a public park.

Defendant and Harrison testified that they had no knowledge that drugs, drug paraphernalia, and a gun were in their apartment. Defendant explained that the $7,000 in cash in the dresser drawer was the proceeds of his sale of several pit bulls. He also claimed that when Officer Plum grabbed him he struck Plum not realizing that he was a police officer. Two witnesses who testified for defendant stated that the police used excessive force in subduing defendant. In summation, defense counsel argued that the police planted the drugs in the apartment in retaliation for a prior altercation that defendant had with a Plainfield police officer.

The jury convicted defendant and Harrison of a number of drug-related offenses contained in a multi-count indictment. In particular, defendant was convicted of possession of a controlled dangerous substance (CDS), a third-degree offense in violation of N.J.S.A. 2C:35-10a(1) (count one); possession of a CDS with intent to distribute, a second-degree offense in violation of N.J.S.A. 2C:35-5a(1), b(2) (count two); possession of a CDS with intent to distribute within 500 feet of a public park, a second-degree offense in violation of N.J.S.A. 2C:35-7.1 (count three); possession of a CDS, a fourth-degree offense in violation of N.J.S.A. 2C:35-10a(3) (count four); possession of a CDS with intent to distribute, a third-degree offense in violation of N.J.S.A. 2C:35-5a(1), b(11) (count five); possession of a CDS with intent to distribute within 500 feet of a public park, a third-degree offense in violation of N.J.S.A. 2C:35-7.1 (count six); possession of a firearm while in the course of committing a drug offense, a second-degree offense in violation of N.J.S.A. 2C:39-4.1a (count seven); aggravated assault upon a police officer, a third-degree offense in violation of N.J.S.A. 2C:12-1b(5) (count nine); and resisting arrest, which had been downgraded by the trial court to a disorderly persons offense, in violation of N.J.S.A. 2C:29-2a (count ten). The trial court dismissed count eight, which charged defendant with aggravated assault, a second-degree crime in violation of N.J.S.A. 2C:12-1b, because there was insufficient evidence that defendant caused or attempted to cause serious bodily injury to Officer Plum.

The trial court sentenced defendant on count three to an extended term of eighteen years with a nine-year parole disqualifier, on count seven to a consecutive term of nine years with a four-year parole disqualifier, and on count nine to a consecutive term of five years with a two-year parole disqualifier. The trial court also sentenced defendant on count six to an extended term of eighteen years with a nine-year parole disqualifier concurrent to count three and on count ten to a 180-day term concurrent to counts three, six, and seven.¹ The remaining counts were merged into those counts on which defendant was sentenced. In all, defendant received an aggregate state prison term of thirty-two years with fifteen years of parole ineligibility.

Defendant raised a number of issues on appeal, but the Appellate Division found only one to have sufficient merit to warrant discussion. The appellate panel specifically addressed defendant's claim that, at the conclusion of the State's case, the trial court erred in denying his motion for a judgment of acquittal on the charge of possession of a firearm while in the course of committing a drug offense within 500 feet of a public park. The panel, in a well-reasoned opinion by Judge Wecker, upheld defendant's convictions and found that the State satisfied its burden of proof under N.J.S.A. 2C:39-4.1a by showing that defendant jointly and constructively possessed both the drugs and the firearm, which were in close proximity to each other. State v. Harrison, 358 N.J.Super. 578, 587, 818 A.2d 487, 493 (App.Div.2003). We granted defendant's petition for certification, 177 N.J. 495, 828 A.2d 922 (2003), and now affirm.

II.

Defendant contends that to sustain a conviction of possession of a firearm while in the course of committing a drug offense the State must prove that he actually possessed the weapon or constructively possessed it in close physical proximity to his person at the time he committed the predicate drug offense. Defendant argues that the State failed to do so and that the trial court erred in denying his motion for a judgment of acquittal pursuant to Rule 3:18-1. The State responds that defendant's joint and constructive possession of the drugs and the firearm in his apartment in the circumstances of this case was sufficient for a conviction under N.J.S.A. 2C:39-4.1a. In reviewing whether the trial court properly denied the motion for a judgment of acquittal, we must view the State's evidence "in its entirety and giv[e] the State the benefit of all its favorable testimony and all of the favorable inferences" to be drawn from that testimony to determine whether a jury could find guilt beyond a reasonable doubt under the statute. State v. Moffa, 42 N.J. 258, 263, 200 A.2d 108, 110 (1964) (citing State v. Fiorello, 36 N.J. 80, 90, 174 A.2d 900 (1961),cert. denied, 368 U.S. 967, 82 S.Ct. 439, 7 L.Ed.2d 396 (1962)); State v. Reyes, 50 N.J. 454, 458-59, 236 A.2d 385, 387 (1967). If the evidence satisfies that standard, the motion must be denied.

N.J.S.A. 2C:39-4.1a provides that "[a]ny person who has in his possession any firearm while in the course of committing, attempting to commit, or conspiring to commit" the drug offenses specified in the statute, such as possessing with intent to distribute a CDS within 500 feet of a public park in violation of N.J.S.A. 2C:35-7.1, is guilty of a crime of the second degree. N.J.S.A. 2C:39-4.1a.² We must determine whether defendant simultaneously possessed the firearm and drugs and, if so, whether the firearm was possessed "while in the course of committing" a statutorily specified crime. We begin our analysis by noting that an object may be actually or constructively possessed. State v. Schmidt, 110 N.J. 258, 270, 540 A.2d 1256, 1262 (1988); State v. Stewart, 96 N.J. 596, 603, 477 A.2d 300, 303-04 (1984). A person actually possesses an object when he has physical or manual control of it. State v. Brown, 80 N.J. 587, 597, 404 A.2d 1111, 1116 (1979). A person constructively possesses an object when, although he lacks "physical or manual control," the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time. Schmidt, supra, 110 N.J. at 270, 540 A.2d at 1262.

A person does not abandon legal possession of the items in his home every time he exits the front door. See State v. Merritt, 247 N.J.Super. 425, 430, 589 A.2d 648, 650 (App.Div.) ("[A] person who stores firearms in his home would be considered to be in possession of the firearms when he is away from home ...."), certif. denied, 126 N.J. 336, 598 A.2d 893 (1991). A person who leaves his tennis racket behind as he goes to work retains constructive possession of that racket so long as he has the intent and ability to exercise control over it some time in the future, say, to play tennis. The evidence here permitted the jury to draw the...