On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Number 94-09-1009.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2005
Before Judges Stern, Fall and Parker.
In this appeal from denial of defendant's petition for post-conviction relief (PCR), among other issues, we are presented with the question of whether a defendant's illegal conduct after a stop allegedly based on racial profiling attenuates*fn1 the taint of the allegedly illegal stop thereby precluding defendant from obtaining racial profiling discovery. We hold that a defendant is entitled to racial profiling discovery upon establishing a colorable claim and that only after the discovery has been made available to defendant is it appropriate to decide whether there was an illegal stop which was attenuated by defendant's post-stop conduct.*fn2
Defendant Kermit Ball, an African-American man, appeals from an order entered on December 12, 2003, denying his petition for post-conviction relief (PCR). In his petition, he alleged ineffective assistance of trial counsel and racial profiling.
Defendant was tried and convicted of first degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 35-5b(1), and third degree hindering prosecution, N.J.S.A. 2C:29-3. He was sentenced to an aggregate term of twenty-four years subject to eight years parole ineligibility and the mandatory penalties. Defendant's conviction and sentence were affirmed in an unpublished opinion on direct appeal and his petition for certification was denied on April 27, 2001 by the Supreme Court. State v. Ball, No. A-1096-98 (App. Div. Feb. 13, 2001), certif. denied, 168 N.J. 291 (2001).
On May 20, 2002, defendant filed a PCR petition pro se. In March 2003, after counsel assumed representation, defendant moved for discovery on the issue of racial profiling. That motion was denied in an order entered on April 11, 2003. On December 12, 2003, the PCR petition was denied in its entirety.
Defendant's arrest arose out of a stop on the New Jersey Turnpike (Turnpike) on June 19, 1994. At 12:04 p.m., New Jersey State Police Trooper Eric Estok was traveling south on the outer roadway in an unmarked car. The trooper observed a black Toyota and a white Buick traveling south on the inner roadway. Both cars had out-of-state license plates and were speeding, making frequent lane changes and tailgating other cars on the highway. The Toyota was occupied by a white man and woman, and the Buick was occupied by three African-American men, one of whom was defendant, and was driven by a Hispanic man. Estok did not have radar, so he paced the vehicles, estimating their speeds between seventy-five and eighty miles per hour. Estok crossed over to the inner roadway, activated his lights and siren and pulled both cars to the shoulder of the road at mile post 102.9 between exits thirteen and fourteen.
The trooper first approached the passenger side of the Toyota and asked the driver for identification. After he obtained the necessary information, he walked to the passenger side of the Buick and asked the driver, co-defendant William Pabon, for his identification. Estok noticed the smell of marijuana in the vehicle and, after taking Pabon's identification, walked to the rear of the Buick to radio for backup. As he was talking on the radio, Estok heard the Buick being placed into drive and shouted to Pabon to turn the car off. As Estok returned to the passenger side of the vehicle to take Pabon's keys, co-defendant Donell Cradle, who was sitting in the front passenger seat, reached under the seat, retrieved a brown paper bag and tossed it to defendant who was sitting in the left rear seat. Defendant took the bag, bolted from the vehicle and ran across the inner southbound lanes onto the inner northbound lanes, bringing traffic to a screeching halt. He fell in the inner northbound lane, dropped the bag, picked it up and continued running across the inner road, jumped the guardrail, crossed the outer northbound lanes and ran into a marshy swamp area along the shoulder of the Turnpike.
At that point, the first backup trooper arrived at the scene, chased defendant to the swamp and saw him throw the brown paper bag toward a fence. Two other troopers who had arrived on the scene went into the swamp and recovered the bag tossed by defendant. The paper bag contained a clear plastic bag filled with a white powdery substance, which was later tested and found to be 484.2 grams, approximately 17.08 ounces, of 74.1 percent pure cocaine, valued between $600 and $900 an ounce. Defendant was arrested, charged with possession of cocaine with intent to distribute and hindering prosecution. All four occupants of the Buick were tried as co-defendants. The driver, Pabon, and the right rear seat passenger, David McDuffy, were acquitted. Only defendant and Cradle were convicted.
In his PCR petition, defendant argued ineffective assistance of trial counsel, alleging that trial counsel (1) failed to explain the plea offer in detail; (2) failed to advise defendant that a suppression motion had not been made; and (3) inadequately advised defendant of his right to testify at trial.
In this appeal, defendant argues:
THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
(1) Trial Counsel failed to Explain the Plea Offer in Detail
(2) Trial Counsel failed to file a Suppression Motion
(3) Trial Counsel Misadvised Defendant regarding the Suppression Motion
(4) Trial Counsel failed to adequately advise Defendant regarding ...