STATE OF NEW JERSEY v. KAREEM SPANN

NOT FOR PUBLICATION WITHOUT THE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.

KAREEM SPANN, a/k/a

KAREEM O. SPANN, a/k/a

KARIM SPANN, a/k/a

KAHLI D. BAKER,

Defendant-Appellant.

________________________________________________________________

September 9, 2015

Submitted February 4, 2015 Decided

Before Judges Alvarez and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-04-1072.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Kareem Spann appeals his convictions for second-degree eluding, N.J.S.A. 2C:29-2(b); third-degree aggravated assault against a police officer, N.J.S.A. 2C:12-1(b)(5)(a); and fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1. The court sentenced Spann to a nine-year term of imprisonment for the eluding, concurrent four-and-one-half-year term for the assault on City of Orange Police Sergeant Hector Rosado, a concurrent sixteen-month term for obstruction, and fines for the related traffic offenses. On appeal, Spann contends that his conviction must be reversed because the trial court did not charge the jury on prior inconsistent statements, despite variations between the police reports and the officers' testimony. Spann also appeals his sentence as excessive. For the reasons that follow, we affirm the convictions and sentence, but remand to correct the judgment of conviction (JOC).

I.

We glean the following facts and procedural history from the record on appeal, including the transcript of Spann's trial.

Spann's April 2012 indictment included an additional charge of third-degree aggravated assault against another police officer, Lieutenant Christopher Dunn.1 The jury acquitted Spann of that offense.

The court conducted trial over five days in June 2013. Dunn, of the City of Orange Police Department, testified that around 8:00 p.m. on September 13, 2011, he and Detective Edward Malia, also of the City of Orange Police Department, stopped a black Lexus in the area of North Center Street and Wallace Street after they saw it roll through a stop sign. After pulling over the Lexus, Dunn and Malia exited their vehicle and radioed in the license plate number. Dunn approached the driver's side window and Malia approached the vehicle's rear passenger side. At Dunn's request, Spann gave the officer his driver's license.

Dunn smelled a strong odor of marijuana coming from the vehicle and asked Spann to step out of the car. Spann, who was already "clearly upset," became "very angry" and refused. He began to scream obscenities, saying "fuck that, fuck you, I'm not getting out of the car." Dunn attempted to calm Spann down and asked him several times to exit the vehicle. During this exchange, Dunn noticed that Spann was trying to put the car into gear, and he reached through the window to try to turn it off. Spann rolled the window up on Dunn's arm. Malia came around to help him dislodge his arm. Dunn ordered Spann to roll the window back down and advised him that he was under arrest. Spann did not comply, but instead continued "screaming and yelling . . . obscenities."

When Rosado arrived on the scene, he reached into the passenger-side window in an attempt to distract Spann so that Dunn could dislodge his arm. In response, Spann rolled up the passenger-side window on Rosado's arm. Rosado freed himself by unlocking and opening the passenger door and rolling down the window.

Dunn also managed to free himself and tried to grope for Spann's keys. Rosado, who was partially inside the vehicle, warned Dunn that Spann was reaching for the gear shifter. Spann put the vehicle in gear and sped away, "almost taking Officer Rosado with him as the passenger side door was still open." Rosado was hit on his left shoulder blade by the passenger-side door as Spann drove away. Dunn suffered a minor bruise on his arm. Neither officer required medical treatment.

Rosado got back into his vehicle to pursue Spann. Malia also followed, leaving Dunn at the scene. Rosado activated his lights and sirens and radioed the East Orange police that the Lexus was heading in their direction down Park Avenue. Rosado, however, quickly broke off his pursuit as too dangerous, after he saw the Lexus run a red light and weave dangerously through traffic on the busy street. The two police vehicles returned to the scene of the traffic stop to pick up Dunn who still had Spann's driver's license.

When the officers returned to headquarters, Rosado prepared a pursuit report. Malia authored the incident report, which Dunn approved. Dunn wrote a supplemental report, which Malia incorporated by reference into his report.

The officers identified Spann by his driver's license and confirmed his identity by comparing the driver's license image with another photograph the police had of Spann.2 The police issued Spann summonses for several motor vehicle violations and obtained an arrest warrant for the indictable offenses. The warrant was entered into the statewide computer system.

Two days later, on September 15, 2011, Officer David Fanfan of the Orange Police Department saw a Lexus on South Main Street matching the description of Spann's vehicle. Fanfan and his partner followed for a short distance, checked the license plate on their computer, and stopped the car in front of the police department. Once Fanfan confirmed Spann was the driver, the officer arrested him on the outstanding warrant.

On cross-examination, Dunn acknowledged that Malia's incident report did not mention that Spann gave Dunn his driver's license. However, on redirect, Dunn clarified that Malia's incident report noted that Dunn's supplemental report identified property being held by police, that property being Spann's driver's license. Dunn explained that an incident report is a "face sheet" that provided only "basic information" whereas the supplement report "carries more of [the details] of the incident." Defense counsel also elicited from Dunn that he had not documented the injuries to his arm or included the injury in his supplemental report.

Rosado testified that when Spann put the car in gear, he drove off at an excessive rate of speed, weaving between cars on a busy road. After chasing him for about one-half block, Rosado discontinued the pursuit because of the risks and because the officers already knew Spann's identity. At headquarters, Rosado prepared a pursuit report, identified Spann from the photograph, and logged the driver's license into evidence. On cross-examination, he acknowledged that he did not include information regarding the traffic conditions in his report.

Fanfan testified that he was aware that there was an active warrant for Spann. He also stated that, when he stopped Spann in front of the police station, Spann gave him "his I.D." that confirmed his identity.

Before summations, the court provided both counsel with proposed jury charges, which were later discussed on the record. Defense counsel did not request a jury charge on the use of prior inconsistent statements.3 Though other revisions not relevant to this appeal were made to the instructions, defense counsel did not object to the revised charges.

In summation, defense counsel argued that the State failed to prove identification and failed to prove the elements of the eluding offense. Counsel emphasized that Malia's incident report omitted that Spann gave Dunn his driver's license. He argued that Fanfan received identification from Spann when he stopped him, "identification that's generally . . . a driver's license." Thus, defense counsel argued that Dunn's testimony was not corroborated by Malia's report and was contradicted by Fanfan's testimony. Defense counsel also argued that the State failed to prove that Spann's eluding posed a "risk of death or injury to any person" because Rosado did not mention the traffic conditions in his pursuit report.

The judge's final instructions included the model jury charge on credibility.4 Defense counsel did not object to the jury instructions.

The jury convicted Spann of second-degree eluding, fourth-degree obstruction, and third-degree aggravated assault against Rosado. It acquitted him of aggravated assault against Dunn. This appeal followed.

II.

On appeal, Spann raises the following arguments

I. THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY THAT THE PRIOR INCONSISTENT STATEMENTS IN POLICE WITNESSES' REPORTS WERE ADMISSIBLE AS SUBSTANTIVE EVIDENCE. (Not Raised Below)

II. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.

A.

In Point One, Spann argues that the trial judge erred by failing to instruct the jury on the use of prior inconsistent statements of witnesses. Because this argument was not raised in the trial court, we must determine whether the court's failure to provide the instruction was erroneous and, if so, whether the error was "clearly capable of producing an unjust result." R. 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result.").

The Court has said

In the context of a jury charge, plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."

[State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]

The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006) (citing State v. DiFrisco, 137 N.J. 434, 491 (1994)). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422-23 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to object signifies that "in the context of the trial[,] the [alleged] error was actually of no moment." State v. Ingram, 196 N.J. 23, 42 (2008) (internal quotation marks and citation omitted). In this case, the alleged error does not amount to plain error requiring reversal.

Spann contends that there were inconsistencies among Dunn, Rosado, and Fanfan's testimony, Malia's incident report, and Dunn's supplemental police report. According to Spann, the judge was therefore required to instruct the jury that prior inconsistent statements may be considered in assessing a witness's credibility and "as substantive evidence or proof of the truth of the prior inconsistent contradictory statement or omitted statement." The Model Jury Charge (Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant)" (1994), provides, in relevant part

Evidence, including a witness' statement or testimony prior to the trial, showing that at a prior time a witness has said something which is inconsistent with the witness' testimony at the trial may be considered by you for the purpose of judging the witness' credibility. It may also be considered by you as substantive evidence, that is, as proof of the truth of what is stated in the prior contradictory statement.

Evidence has been presented showing that at a prior time a witness has said something or has failed to say something which is inconsistent with the witness' testimony at the trial. This evidence may be considered by you as substantive evidence or proof of the prior contradictory statement or omitted statement.

The charge informs the jury that they must determine "[t]he extent to which such inconsistencies or omissions reflect the truth" and that they may consider the inconsistent statement in light of any explanation given. During his final charge, the judge instructed the jury that they must determine the credibility of the witnesses.5 Defendant did not object to this charge.

Under these circumstances, we discern no error "sufficiently grievous" that it was "clearly capable of producing an unjust result," especially in light of the overwhelming evidence of Spann's guilt. R. 2:10-2; Chapland, supra, 187 N.J. at 289. Dunn and Rosado corroborated each other's testimony, which established that Spann fled a traffic stop and injured Rosado in the process. Moreover, the officers' testimony is consistent that Spann was identified as the driver by his driver's license and by the photograph comparison. The officers' testimony was undisputed.

After careful review, we are satisfied that the judge provided the jury with clear, unequivocal instructions. The instructions tracked the model jury charges and accurately informed them of their obligation to weigh the evidence and determine the credibility of witnesses. While we cannot speculate on the jury's thought process, we presume the jury followed the court's instructions. State v. Smith, 212 N.J. 365, 409 (2012). Accordingly, we conclude that a charge on prior contradictory statements would not have produced a different result and that the trial court did not commit plain error, or any error, in its instructions.

Spann also argues that the police failed to prove the elements of the eluding charge because Rosado failed to mention the traffic conditions in his pursuit report. Under N.J.S.A. 2C:29-2(b), a person is guilty of second-degree eluding if, "while operating a motor vehicle on any street or highway in this State," the driver "knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop . . . [and] the flight or attempt to elude creates a risk of death or injury to any person."

Here, Dunn and Rosado both testified that they sustained injuries, albeit minor bruises, when Spann drove off at an excessive rate of speed. Further, Rosado stated that he discontinued his pursuit after observing Spann weave dangerously between cars as he sped away on the busy roadway. We are satisfied that this evidence was sufficient to permit a jury to conclude that Spann eluded the police.

B.

Next, Spann argues that the trial court imposed an excessive sentence and that the court did not explain its finding of aggravating factors eight and nine. We apply a deferential standard in our review of sentences. State v. Fuentes, 217 N.J. 57, 70 (2014). We do not substitute our judgment for a sentencing court's. State v. O'Donnell, 117 N.J. 210, 215 (1989). We may correct a sentence if the determination of the trial court was clearly mistaken, for example if: (1) the trial court failed to follow the applicable sentencing guidelines; (2) the aggravating and mitigating factors it found were not based on sufficient evidence in the record; or (3) the sentence imposed was "clearly unreasonable so as to shock the judicial conscience." State v. Jarbath, 114 N.J. 394, 401 (1989) (internal quotation marks and citation omitted).

At the sentencing hearing, the judge found aggravating factors three (the risk defendant will reoffend), N.J.S.A. 2C:44-1(a)(3); six (the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted), N.J.S.A. 2C:44-1(a)(6); and nine (the need to deter defendant and others), N.J.S.A. 2C:44-1(a)(9). He found no mitigating factors. The judge considered the jury verdict and the presentence investigation report, which included Spann's lengthy criminal history. Spann had a 1996 disorderly persons conviction for theft, 2004 indictable theft convictions and a probation violation, 2004 convictions for conspiracy and possession of controlled dangerous substances (CDS), and two 2005 indictable convictions for CDS distribution. His prior sentences included fines, probation, and imprisonment. Spann's extensive criminal history supports the court's reliance upon aggravating factors three, six, and nine. The aggregate sentence of nine years is within the range for a second-degree offense and is reasonable given the well-supported findings of three aggravating and no mitigating factors.

The JOC noted the court's application of aggravating factors three, six, and nine, but also listed aggravating factor eight, that Spann committed the offense against a police or other law enforcement officer. Defendant argues that the inclusion of aggravating factor eight in the JOC was error. Further, he contends that the application of aggravating factor eight amounts to double counting elements of the offense for which he was convicted.

A review of the oral sentencing transcript discloses, however, that the trial court did not mention aggravating factor eight or make any findings or conclusions about its applicability. A trial court's oral opinion normally controls over an inconsistent JOC. State v. Vasquez, 374 N.J. Super. 252, 270 (App. Div. 2005) (citing State v. Warmbrun, 277 N.J. Super. 51, 58 n.2 (App. Div. 1994)). The State agrees that the judge did not discuss aggravating factor eight and that its inclusion in the JOC was likely mistaken. Accordingly, we are satisfied that the reference to aggravating factor eight was a ministerial error that should be corrected on remand. We need not address defendant's double counting argument because the judge said nothing about aggravating factor eight during the sentence hearing.

Notwithstanding the reference to aggravating factor eight in the JOC, we discern no error in the trial court's actual sentence. Thus, we affirm and remand solely for the correction of the JOC.

Affirmed, remanded in part.

1 At the time of trial, Dunn had been promoted to the rank of Captain.

2 At trial, the Prosecutor sought to the use photograph during Dunn's direct examination. Although it is not clear from the record, we presume the photo was a mugshot. At sidebar, the parties agreed that all information printed on the photograph would be redacted prior to introducing the photo into evidence.

3 Model Jury Charge (Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant)" (1994).

4 Model Jury Charge (Criminal), "Criminal Final Charge, Parts 1 & 2" (2014).

5 Model Jury Charge (Criminal), "Criminal Final Charge, Parts 1 & 2" (2014).