Opinion
A-3372-20
12-21-2022
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHAWN SPIVEY, a/k/a SHAWN L. SPIVEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Andrew R. Burroughs, Designated Counsel, on the briefs). Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (Joie D. Piderit, Assistant Prosecutor, of counsel and on the brief).
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Submitted December 13, 2022
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 09-06-1046 and 10-06-0972.
Joseph E. Krakora, Public Defender, attorney for appellant (Andrew R. Burroughs, Designated Counsel, on the briefs).
Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (Joie D. Piderit, Assistant Prosecutor, of counsel and on the brief).
Before Judges Geiger and Fisher.
PER CURIAM
Defendant appeals the denial of post-conviction relief without an evidentiary hearing, arguing that his trial attorney was ineffective in advising him to consent to, and in failing to oppose, the State's seizure from him of a buccal swab that defendant claims was collected in a manner contrary to State v. Gathers, 234 N.J. 208 (2018). Because the State had probable cause to obtain the buccal swab and because any action by defense counsel would have been unavailing, we conclude that defendant failed to satisfy either prong of the Strickland/Fritz ineffectiveness test.
Strickland v. Washington, 466 U.S. 668, 687 (1984) declared that the Sixth Amendment requires a defendant, when seeking to demonstrate a denial of the effective assistance of counsel, to show the attorney's performance was deficient and the deficient performance prejudiced the defense. Our Supreme Court adopted this same test for determining attorney effectiveness under state constitutional principles. State v. Fritz, 105 N.J. 42, 58 (1987).
Defendant was charged in 2009 under two separate indictments for various drug offenses alleged to have occurred a year apart. Both matters went to trial; the first trial (on the more recent indictment) occurred in March 2013; the second took place three months later. Both juries convicted defendant of numerous offenses. He was sentenced for the convictions resulting from the first trial to an aggregate nineteen-year prison term and to an aggregate thirteen-year prison term on the other matter. We affirmed both judgments, State v. Spivey, No. A-0669-13 (App. Div. May 7, 2015); State v. Spivey, No. A-1155-13 (App. Div. July 6, 2015), and the Supreme Court denied defendant's petitions for certification in both matters, State v. Spivey, 233 N.J. 164 (2015); State v. Spivey, 223 N.J. 557 (2015).
In March 2016, defendant filed separate post-conviction relief petitions that were denied in January 2018. We affirmed the dispositions of these PCR petitions but, citing a merger problem, remanded for the vacation of four of the convictions in one of the matters. State v. Spivey, Nos. A-3018-17, A-3082-17 (App. Div. Apr. 11, 2019). In May 2019, a trial judge vacated four of defendant's convictions in one of the judgments and directed that the remaining terms imposed in that judgment run concurrent with the prison terms imposed in the other judgment of conviction.
During the pendency of the PCR petitions in the trial court, defendant amended his papers with an assertion about the seizure from him, prior to trial, of a buccal swab; he alleged the taking of this evidence was inconsistent with State v. Gathers, 449 N.J.Super. 265 (App. Div. 2017). The PCR judge did not then consider this issue because the Supreme Court had granted leave to appeal in Gathers, 230 N.J. 502 (2017), and stayed our mandate, 231 N.J. 293 (2017). Months after the judge ruled on defendant's other issues in his PCR petitions, the Court affirmed our judgment in Gathers, holding that the order that compelled the buccal swab there was erroneous. 234 N.J. at 213.
Defendant then reasserted his Gathers argument in the trial court. The judge denied relief, without permitting an evidentiary hearing, finding the Court's holding in Gathers was inapplicable to what occurred here.
Defendant appeals, arguing that his Gathers claim was "not procedurally barred," that his trial attorneys in both matters "failed to challenge the taking of the DNA buccal swab used to connect defendant to the drugs seized," that the DNA results in both trials "should be suppressed pursuant to . . . Gathers," and that an evidentiary hearing should have been conducted to resolve "a genuine dispute over material facts." We agree defendant's Gathers argument was not procedurally barred in the trial court but find insufficient merit in his other arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(2). We add a few brief comments.
To start, defendant argues that to the extent the record would suggest he consented to the buccal swab, it was the result of deficient advice given by counsel and, if he did not consent, then his counsel was ineffective for failing to seek the suppression of the DNA evidence resulting from the buccal swab. We disagree that either situation gives rise to a cognizable claim of attorney ineffectiveness.
We held in our Gathers decision that, unlike the level of suspicion required at the time of arrest, probable cause is required for a buccal swab well after the accused's arrest, 449 N.J.Super. at 274, and that the affidavit relied on by the State to demonstrate probable cause was inadequate because it consisted of "nothing but hearsay," id. at 269. In affirming, the Supreme Court recognized the State must support an application for a buccal swab with an affidavit based on personal knowledge and that the affidavit must show there is "a fair probability that defendant's DNA will be found on the evidence." 234 N.J. at 213. In Gathers, the Court found that the support for the State's motion to compel a buccal swab was inadequate.
The State sought the swab here to show a link between the drugs seized and defendant. Unlike Gathers, the State supported its motion to obtain a buccal swab with an affidavit from a police officer who recounted how he had witnessed the drug transactions in which defendant was involved and observed defendant on multiple occasions take packets of cocaine from his mouth and hand them to buyers who were soon after arrested in possession of those packets. The affiant also explained that, when defendant was arrested, "he spit out two more packets of cocaine that were recovered" by another officer. This affidavit fully complied with the requirements imposed by the Supreme Court in Gathers. Thus, any advice counsel may have given to defendant about cooperating with the buccal swab was not contrary to professional norms, and any decision by counsel not to seek to suppress the DNA obtained from the buccal swab would not have been contrary to professional norms because such a motion would have had no likelihood of success.
Similarly, and for the sake of completeness, we also recognize that defendant did not present a prima facie case of prejudice under Strickland's second prong since the State presented evidence not only that defendant's DNA was on the packets of cocaine but also testimony that recounted eyewitness observations about the illegal drug transactions and provided a link to defendant's possession of the illegal drugs seized. Even without the DNA obtained from the buccal swab, the evidence of defendant's guilt was overwhelming.
Affirmed.