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State of New Jersey v. Kalin Spann


July 12, 2011


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-02-0549.

Per curiam.


Submitted March 2, 2011

Before Judges Cuff, Sapp-Peterson and Simonelli.

A grand jury indicted defendant Kalin Spann for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); second-degree robbery, N.J.S.A. 2C:15-1 (count two); and second-degree eluding the police, while creating a risk of death or injury to another person, N.J.S.A. 2C:29-2b (count three). The charges stem from defendant's involvement in a purse-snatching in Maplewood.

Following a jury trial, defendant was convicted of second-degree robbery (count two) and second-degree eluding the police, while creating a risk of death or injury to another person (count three), and on count one of the lesser-included offense of third-degree conspiracy to commit theft by unlawful taking, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3. At sentencing, Judge Bernstein merged count one with count two and imposed an eight-year term of imprisonment, subject to an eighty-five percent period of parole ineligibility pursuant to the "No Early Release Act" (NERA), N.J.S.A. 2C:43-7.2. On count three, the judge imposed a concurrent eight-year term of imprisonment subject to NERA. The judge also imposed the appropriate fines, penalties, and assessments.

On appeal, defendant raises the following contentions:

















We reject these contentions and affirm.

We gather the following facts from the evidence presented at trial. At approximately 11:00 a.m. on July 18, 2005, Esterina Giordano was in the parking lot of an A&P supermarket in Maplewood retrieving paperwork from her car while speaking to her employer on her cellular phone. Co-defendant Kevin Lewis approached Giordano, grabbed her phone and told her to "shut up." Giordano began screaming and fought back. Lewis pushed her into her car door, and she fell to the ground. The two then struggled over Giordano's black Versace bag. Lewis punched or pushed his hand into Giordano's face, eventually wrestled the purse away from Giordano and walked away. Defendant drove his car to Lewis, and Lewis got into it. Giordano saw the car slowly exit the parking lot and turn left. She memorized the license plate number.

Giordano flagged down the driver of a red truck on Valley Road, and the two pursued defendant's car. They spotted a police vehicle approaching in the opposite direction and stopped it. Giordano told Police Officers Butler and Radde of the South Orange Police Department what happened and gave them the license plate number of defendant's car. Officer Butler made a U-turn, activated his lights and sirens, pursued defendant's car, and radioed police headquarters to relay what was happening. Police Officer Terrence O'Connor later joined in the pursuit when he spotted defendant's vehicle turn on Irvington Road.

During the pursuit, the officers observed defendant travel at a high rate of speed, fail to stop at red lights and stop signs, including one near an elementary school, make an illegal left-hand turn, and travel on the wrong side of the street. The pursuit extended briefly onto the Garden State Parkway where defendant's vehicle reached a speed of sixty-five to seventy miles per hour. The pursuit continued for approximately eight miles. The officers saw a black purse thrown from the passenger-side window of defendant's car. Defendant entered a dead-end street, where he and Lewis were eventually arrested.


Defendant contends in Point I that Judge Bernstein erred in failing to suppress a statement defendant gave to the police following his arrest. He argues that he did not make the statement voluntarily because he was not questioned until ten minutes after receiving his Miranda*fn1 rights, the police did not re-administer Miranda warnings to him before questioning, and was handcuffed when he received his Miranda rights.

Detective Daniel Lenzo from the Maplewood Police Department read defendant his Miranda rights while defendant was handcuffed. Defendant admitted he could read, write, and understand English, understood his Miranda rights, voluntarily waived them, agreed to speak with Detective Lenzo, was not threatened, coerced, or forced to give a statement or promised anything of value in exchange for giving a statement. Defendant read, initialed each line, and signed each page of the Miranda form.

Following a ten-minute interval, during which Detective Lenzo prepared his computer and no questioning occurred, defendant gave the following statement:

I drove my friend to the A&P because I didn't know where it was, so he gave me directions. I pulled into the parking lot of this A&P because he said [he] wanted to fill out a job application. I was parked, and I saw him turn the corner, and I saw him, like, say, like, come on. I started the car and drove up towards him.

He jumped in the car and made a left out of the parking lot and I drove. And I think at the first light I saw an officer. He was like drive, drive, drive. I can't go to jail. So, I drove. Then I saw the officer's car lights go on behind me and I got nervous 'cause I got no license.

So, when the police officer had his lights and siren on, I kept driving. I just wanted to get to Bloomfield so I could get my girlfriend her car back. The police chased me to her job in Bloomfield, so I just drove down this block and stopped. The officer pulled up behind us and told us [to] get out of the car, get on the ground. So I just got out of the car and got on the ground. Then the other officers came.

Judge Bernstein denied defendant's motion to suppress this statement, finding the State had proved beyond a reasonable doubt that defendant made it voluntarily and knowingly.

Our review of a trial judge's factual determination is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we "'must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Additionally, factual findings of the trial court are entitled to deference when they "'are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting Elders, supra, 192 N.J. at 244).

When we are satisfied that the findings of the trial court could reasonably have been reached on the record, "[our] task is complete and [we] should not disturb the result, even though [we have] the feeling [we] might have reached a different conclusion were [we] the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964). Nevertheless, "if the trial court's findings are so clearly mistaken 'that the interests of justice demand intervention and correction,' then [we] should review 'the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" State v. Mann, 203 N.J. 328, 337 (2010) (quoting Johnson, supra, 42 N.J. at 162). "[We] owe[] no deference to the trial court in deciding matters of law. When a question of law is at stake, [we] must apply the law as [we] understand[] it." Ibid. (citation omitted).

A defendant's waiver of Miranda rights must be made voluntarily, knowingly, and intelligently. State v. Bey, 112 N.J. 123, 134 (1988). In order to survive a motion to suppress a statement on Miranda grounds, the State must prove beyond a reasonable doubt that the defendant provided a voluntary and uncoerced waiver of his right to remain silent. State v. Knight, 183 N.J. 449, 462 (2005). In determining whether a statement is voluntary, courts consider the totality of the circumstances, including the characteristics of the accused and the details of the interrogation. Ibid.; Bey, supra, 112 N.J. at 134-35. "Relevant factors include the defendant's age, education, intelligence, advice concerning his constitutional rights, [the] length of detention, . . . the nature of the questioning," Bey, supra, 112 N.J. at 135, the defendant's "previous encounters with law enforcement, and the period of time between [the] 'administration of the [Miranda] warnings and the volunteered statement[,]'" Knight, supra, 183 N.J. at 463 (last alteration in original) (citation omitted).

Here, there is more than ample evidence that defendant voluntarily, knowingly, and intelligently waived his Miranda rights. Defendant clearly understood his rights and waived them. There is was no need to re-administer Miranda warnings to defendant during the brief ten-minute interval. Defendant did not claim he misunderstood his Miranda rights, and there is no evidence defendant invoked them during the interval. See State v. Hartley, 103 N.J. 252, 267 (1986) (holding that where a suspect indicates his desire to remain silent, the police must re-administer Miranda warnings to him before questioning can recommence). There also is no evidence that despite being handcuffed, defendant gave the statement under coercive circumstances. See State v. Cook, 179 N.J. 533, 563 (2004) (agreeing with the trial court's conclusions that abuse or sleep deprivation may constitute coercive circumstances but emotional distress arising out of confessing to a crime is not enough).


Defendant contends in Point II that Judge Bernstein erred in admitting the statement into evidence after Detective Lenzo read it to the jury. Defendant argues the judge should have excluded the statement pursuant to N.J.R.E. 403 because it was prejudicial. He also contends the statement was cumulative and "created an inference in the minds of the jurors that the statement should carry greater weight in their minds than any other piece of evidence."

We review a trial court's evidentiary determinations under an abuse-of-discretion standard. State v. Buda, 195 N.J. 278, 294 (2008). An "abuse of discretion only arises on demonstration of 'manifest error or injustice[,]'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs when the trial judge's "'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States ex rel. USDA v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). Applying this standard, we discern no abuse of discretion here.

N.J.R.E. 403 provides:

Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.

Our Supreme Court has found that "[i]n most cases . . . the probative value of a defendant's statement would outweigh its prejudicial effect and be admitted" unless "there is available less inflammatory evidence." State v. Covell, 157 N.J. 554, 573-74 (1999); see also State v. Jackson, 182 N.J. Super. 98, 101 (App. Div. 1981) (indicating voluntary confessions are highly probative and it is not unfair to offer them into evidence at trial).

Defendant has not shown there was less inflammatory evidence available, nor has he shown undue prejudice from the statement's admission. To the contrary, the statement supports defendant's defense that he did not stop when signaled by the police because he did not have a driver's license, not because he took part in the robbery. Defendant, therefore, benefited from the admission of the actual statement rather than have the jury rely on its recollection of Detective Lenzo's testimony during trial.

We discern no abuse of discretion in Judge Bernstein's refusal to exclude the statement as cumulative in light of its high probative value. Moreover, the statement did not create a danger of misleading the jury as defendant contends. The court may exclude evidence for its capacity to mislead where the evidence pertains to subordinate issues, that is, issues not addressing defendant's guilt or innocence. See Biunno, Weissbard & Zegas Current N.J. Rules of Evidence, comment 6 on N.J.R.E. 403 (2011). In this case, defendant's statement directly addresses his guilt or innocence. Thus, the judge properly admitted defendant's statement into evidence.



Defendant contends in Point III that Judge Bernstein erred in permitting testimony about the rate of speed he was traveling during the pursuit because the State failed to produce the summonses issued to him for speeding. He argues that "but for" this testimony, the jury would only have convicted him of third-degree not second-degree eluding.

There was no question the State failed to produce the summonses defendant received for speeding. Accordingly, Judge Bernstein properly precluded the State from presenting evidence that the police had issued speeding summonses to defendant. However, the judge permitted the State to present testimony from Officer Butler about any motor vehicle violations he observed defendant commit during the pursuit.

We discern no prejudice to defendant or abuse of discretion in this ruling. The issuance of summonses to defendant was irrelevant; rather, defendant's conduct while driving his car, such as disregarding traffic signals, stop signs, and speed restrictions, was relevant. Accordingly, the judge properly permitted Officer Butler to testify about his observations of defendant's violations of motor vehicle laws during the pursuit.

Moreover, the State had produced the motor vehicle pursuit report, which stated the fastest speed achieved during the pursuit, thus placing defense counsel on notice that defendant was speeding. Also, because Officer Butler testified that he saw defendant speeding, he was subject to cross-examination. Consequently, we reject this aspect of defendant's argument.


Defendant contends in Point IV that Judge Bernstein erred in denying his motion for a judgment of acquittal on the robbery count after the close of the State's case. We disagree.

We use the same standard as the trial judge in reviewing a motion for judgment of acquittal. State v. Johnson, 287 N.J. Super. 247, 268 (App. Div.), certif. denied, 144 N.J. 587 (1996); State v. Tarver, 272 N.J. Super. 414, 425 (App. Div. 1994). We must determine whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Reyes, 50 N.J. 454, 459 (1967) (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962)).]

See also R. 3:18-1; State v. Spivey, 179 N.J. 229, 236 (2004); State v. Josephs, 174 N.J. 44, 80-81 (2002).

Under Rule 3:18-1, the court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). "If the evidence satisfies that standard, the motion must be denied." Spivey, supra, 179 N.J. at 236.

We are satisfied that the evidence in this case, viewed in a light most favorable to the State, was more than sufficient to allow a reasonable jury to find defendant guilty of robbery beyond a reasonable doubt. N.J.S.A. 2C:15-1a provides that,

A person is guilty of robbery if, in the course of committing a theft, he:

(1) Inflicts bodily injury or uses force upon another; or

(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or

(3) Commits or threatens immediately to commit any crime of the first or second degree.

An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission. [N.J.S.A. 2C:15-1a.]

Giordano's testimony provided sufficient evidence for the jury to infer that defendant took part in the robbery. Her testimony established that defendant saw what was occurring between her and Lewis and drove his car to Lewis in order to make a quicker getaway. The subsequent eight-mile pursuit further supports this inference.


Defendant contends in Point V that the prosecutor made prejudicial comments on summation. Defendant argues for the first time on appeal that the prosecutor misstated the State's burden of proof by suggesting that if the testimony of the State's witnesses was reasonable, defendant was guilty of eluding.

When a defendant raises prosecutorial misconduct for the first time on appeal, we need only be concerned with "whether the remarks, if improper, substantially prejudiced the defendant['s] fundamental right to have the jury fairly evaluate the merits of [his or her] defense, and thus had a clear capacity to bring about an unjust result." State v. Johnson, 31 N.J. 489, 510 (1960). Even where a prosecutor has been guilty of misconduct, reversal of a defendant's conviction is not necessary unless the conduct was so egregious that it deprived the defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 437 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

Here, the prosecutor said,

I submit to you, ladies and gentlemen, this eluding charge, the second-degree eluding charge, hasn't just been proven beyond a reasonable doubt; . . . this has been proven to a mathematical certainty. To the level that we have certainties in this world, that second-degree eluding charge has been proven. I submit to you that once you look at that second-degree eluding charge and you render your verdict on that, the rest of the facts of what happened on July 18th of 2005 will all fall into place.

Because when you look at the eluding charge . . . and . . . you look at where the officers marked off the route that was taken that starts off in this lower left-hand corner and finishes up here in this upper-right hand corner, ask yourselves as you go through the facts of what happened on July 18th of 2005, what's a reasonable explanation? What would a reasonable person do?

. . . [W]e don't ask that anybody leaves common sense at the door. We don't ask that you not question what a reasonable person does, what a reasonable explanation is for the events of the facts that happened as they unfolded in front of you on July 18th of 2005.

And, again, ask yourselves throughout all of this, what is the reasonable explanation? Is it coincidence that [defendant] . . . is pulling up to [co-defendant] right as he's finished this robbery? Or is it that they planned it? . .

Just because the defendant got lucky and didn't hit anybody and didn't take anybody out doesn't mean he gets the benefit of the doubt. He put every single person that morning from this route to the end at risk, any and everybody that was out on the street that day. . . .

And then finally ask yourselves what's the reasonable explanation? What's the reasonable explanation for taking the police through this chase, through this eight-mile, 15-minute chase, hitting speeds of 70 miles an hour? Is it because you don't have a license? Is that what you're afraid of? Or is it because you and your buddy just committed a robbery and you're trying to get away from the police? That, I submit to you, is the reasonable explanation from what happened on July 18th of 2005.

Reviewing these comments as a whole, we conclude the prosecutor said nothing improper. Contrary to defendant's contention, the prosecutor did not comment on the burden of proof; rather, the prosecutor properly commented on the evidence and the reasonable inferences the jury could draw therefrom.

Even if the comments were improper, defendant was not prejudiced thereby. Subsequent to the prosecutor's comments, Judge Bernstein charged the jury on the burden of proof beyond a reasonable doubt and specifically instructed that the jury must follow his instructions, accept and apply the law as he stated, and disregard counsel's statements regarding the law if that conflicted with the judge's instructions. See State v. Papasavvas, 163 N.J. 565, 623 (2000).

Defendant also contends that the prosecutor improperly told the jury to first consider the eluding charge, and implied that the jury could find defendant guilty of robbery and conspiracy to commit robbery if the jury found him guilty of eluding. Although the prosecutor may have suggested that the jury first consider the eluding charge, the judge's instruction cured that error. The judge outlined and discussed the charges in the order they are listed in the indictment and the verdict sheet, discussed the eluding charge last, and reminded the jury to consider each charge separately.

Finally, defendant also contends for the first time on appeal that the prosecutor improperly mentioned defendant's post-arrest silence, specifically, his failure to admit his involvement in the robbery when giving his statement to the police. The prosecutor said,

And [defendant] gives this statement from waiving his [Miranda] rights, he gives his statement, this statement. And he knows he's got to admit to the eluding 'cause he's been eluding. He's got Officer O'Connor, he's got Officer Butler behind him. So, he does. He says I know, I know they had the lights and the sirens on, but doesn't say that he did the robbery.

. . . He says he eluded. He put those words in there. He says he didn't know anything about the robbery. He put that in there.

There is nothing improper about this comment. Clearly, the prosecutor was fairly commenting on defendant's post-arrest statement and not his silence.


Defendant contends for the first time on appeal in Point VI that Judge Bernstein erred by (1) failing to specifically dispel the prosecutor's summation comment that defendant was guilty of robbery as an accomplice even if he did not share his co-defendant's intent to commit theft before or at the time the theft was committed; and (2) giving a flight charge. We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments.

Defendant concedes the instruction on accomplice liability was correct. We must assume that the jury followed the judge's instruction on accomplice liability rather than the prosecutor's statement of the law. See State v. Martini, 187 N.J. 469, 477 (2006), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007). Thus, no error occurred with respect to the accomplice charge.

The flight charge was also proper. The judge made clear that the flight charge pertained "particularly" to the conspiracy and robbery charges, which diminished any confusion that it might overlap with the eluding charge. Also, the evidence suggests flight. Defendant's eight-mile police evasion demonstrated he was avoiding the imminent stop by the police; regardless of the reason why he was evading the police, his conduct clearly constitutes flight because it evidenced "consciousness of guilt." See Model Jury Charge (Criminal), "Flight" (2010).


Defendant also challenges his sentence. He argues that the record did not support the judge's findings of aggravating factors, and the judge erred in failing to find certain mitigating factors. He also argues the judge erred in failing to sentence him within the third-degree range for robbery and eluding.

Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, the appellate court must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) modify sentences only "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).

The judge properly found and applied aggravating factors one, N.J.S.A. 2C:44-1a(3) ("[t]he risk that the defendant will commit another offense"), and two, N.J.S.A. 2C:44-1a(6) ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"). Defendant has seven adult arrests, was imprisoned for cocaine distribution and unlawful possession with intent to distribute within 1000 feet of school premises, violated probation three times between 2002 and 2004, and his conviction in this case represents his fourth and fifth indictable offenses.

The judge also appropriately found and applied aggravating factor nine, N.J.S.A. 2C:44-1a(9) ("[t]he need for deterring the defendant and others from violating the law"). Defendant has a history of committing crimes. General deterrence is always appropriate, and here, the less common need for specific deterrence is especially strong.

The record does not support finding mitigating factors one N.J.S.A. 2C:44-1b(1) ("[t]he defendant's conduct neither caused nor threatened serious harm"), and two, N.J.S.A. 2C:44-1b(2) ("[t]he defendant did not contemplate that his conduct would cause or threaten serious harm"). By finding defendant guilty of second-degree eluding, the jury explicitly found that his flight created a risk of death or injury to another person. The record supports this -- defendant engaged in a mid-day, high-speed pursuit on residential streets and a highway.

The record does not support finding mitigating factor nine, N.J.S.A. 2C:44-1b(9) ("[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense"). Indeed, defendant's prior criminal history militates strongly against this factor.

The record also does not support finding mitigating factor eleven, N.J.S.A. 2C:44-1b(11) ("[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents"). Although defendant was living with his pregnant fianceee, he was unemployed and there is no evidence he supported her or anyone else. Cf. State v. Dalziel, 182 N.J. 494, 505 (2005) (holding that "because defendant has never . . . supported his fianceee and child, his incarceration could not constitute an excessive hardship on them").

Finally, we discern no reason to sentence defendant in the third-degree range. N.J.S.A. 2C:44-1f(2) states in pertinent part:

In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.

The statute thus establishes a two-prong test. State v. Megargel, 143 N.J. 484, 496 (1996). "The court must be 'clearly convinced that the mitigating factors substantially outweigh the aggravating ones and that the interest of justice demands a downgraded sentence.'" Ibid. (quoting N.J.S.A. 2C:44-1f(2)).

The judge properly found no mitigating factors applied in this case. Accordingly, a downgraded sentence is not warranted. Defendant's sentence of eight years for a second-degree offense, is within the statutory range, is supported by the aggravating and lack of mitigating factors, and does not shock the judicial conscience. See Roth, supra, 95 N.J. at 364-65.


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