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State v. Spivey

Decided: February 1, 1973.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK D. SPIVEY, DEFENDANT-APPELLANT



On appeal from the Essex County Court.

Collester, Leonard and Halpern. The opinion of the court was delivered by Collester, P.J.A.D. Halpern, J.A.D. (dissenting).

Collester

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 sane 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 [122 NJSuper Page 253] 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 ...


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