On appeal from the Superior Court of New Jersey, Law Division, Warren County, I-93-03-0064.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Wecker and Graves.
These appeals from separate orders denying each defendant's motion for post-conviction relief (PCR) include appeals from interim orders denying discovery. We have consolidated these appeals for purposes of this opinion because they arise out of the same highway stop and ensuing events, and present once again the question of a defendant's right to so-called "profiling" discovery. We now reverse the order denying discovery and remand for entry of a discovery order and reconsideration of defendants' PCR motions in light of the discovery provided. Defendants were tried separately on an indictment charging each of them with numerous crimes on the night of August 16, 1992. Each was convicted of attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1) and (2); first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(1); attempted possession of a handgun for an unlawful purpose, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:39-4a; attempted unlawful possession of a handgun, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:39-5b; hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(1).
Herrerra also was convicted of third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5), and speeding, N.J.S.A. 39:4-98. Gonzalez also was charged with third-degree aggravated assault, but was found guilty of the lesser-included offense of simple assault.
Each defendant was sentenced to a twenty-year custodial term with a ten-year parole disqualifier on the attempted murder conviction and a consecutive twenty-year term with a seven-year parole disqualifier on the conviction for possession with intent to distribute. The other convictions either were merged or resulted in concurrent sentences. Each defendant thus received an aggregate term of forty years with a seventeen-year parole disqualifier. We affirmed each defendant's conviction on direct appeal. In a consolidated opinion, we affirmed the denial of each defendant's motion to suppress drugs found in their car, and we affirmed their convictions and sentences on all charges. State v. Gonzalez and State v. Herrerra, No. A-3902-95T4, A-5353-95T4 (App. Div. April 23, 1998). Defendants' petitions for certification were denied. State v. Gonzalez, 156 N.J. 406 (1998); State v. Herrerra, 156 N.J. 406 (1998).
Defendants sought discovery as part of their PCR motions. See State v. Ballard, 331 N.J. Super. 529, 559-60 (App. Div. 2000). Defendants, who were tried separately on an eleven-count indictment, moved for PCR in part on the ground that they were erroneously denied "profiling" discovery, including the arresting trooper's stop and arrest records and related requests. On appeal, they claim they were entitled to such discovery on two grounds.
First, they contend that the highway stop, subsequent questioning, and request for Herrerra's consent to search were based upon unlawful profiling and should have been excluded as "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed. 2d 441, 455 (1963). Defendants argue that without discovery, including the trooper's individual records, they were unable to establish the unlawful profile stop that requires suppression of the drugs found in their vehicle. Second, defendants contend that at the trial of all charges,*fn1 which included assault, attempted murder, and weapons charges arising out of defendants' conduct after the stop, they were deprived of the opportunity to challenge the trooper's credibility on the basis of his alleged motive to cover-up an illegal stop, as well as his alleged history of profile stops.
Given the background of the discovery issue in cases where profiling was alleged, as set forth in detail in State v. Ballard, supra, 331 N.J. Super. at 538-50, we find no justification for denying these defendants the discovery they sought. The State has conceded that during a period of years from approximately 1990 to 1999, there was evidence of racial and ethnic profiling engaged in by some state troopers on certain highways, including Route 78, where these defendants were stopped in Warren County in August 1992. See Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling (issued by the Office of the Attorney General, April 20, 1999) ("Interim Report")*fn2; State v. Soto, 324 N.J. Super. 66 (Law Div. 1996).
In Soto, Judge Robert Francis found, after a lengthy evidentiary hearing, that statistical evidence established a "prima facie case of selective enforcement which the State has failed to rebut . . . ." Id. at 69. The evidence produced in that case established that African-American drivers were disproportionately stopped on the New Jersey Turnpike between Exits 1 and 7A, the section where the defendants in that case had been stopped. Ibid. As a result, the Soto defendants' motions to suppress drug evidence were granted. Id. at 85. Obviously, the existence of such a pattern did not mean that all or even a majority of state troopers engaged in such behavior; nor did it mean that any one trooper routinely engaged in such behavior. But it did lead to the creation of the Review Team, whose Interim Report led us to provide for consistent procedures and a uniform approach to discovery decisions involving claims of profiling by State Police troopers. Ballard, supra, 331 N.J. Super. at 548-51.
We held in Ballard that the findings published in the Interim Report and in Soto met the threshold, that is, established a colorable claim of selective enforcement (profiling) against members of an identifiable minority who had been subjected to a motor vehicle stop on the New Jersey Turnpike, on Route 78, or on Route 80, during the period between Soto and the Interim Report. Id. at 541-43. We held that such persons could be entitled to discovery, including statistical reports of state trooper stops in the relevant area and time period, as well as the records of individual troopers involved in the stop. We explained that a colorable claim does not mean that discovery is automatic, but it does establish a prima facie right to discovery and shifts the evidentiary burden to the State to rebut that right. Id. at 540. In Ballard, we found insufficient rebuttal evidence and therefore ordered discovery in three contested cases. Id. at 542.
Our decision in Ballard, in turn, led the State to dismiss a substantial number of criminal indictments rather than produce the discovery sought or challenge the allegation of profiling. Ballard followed the Supreme Court's designation of Judge Walter R. Barisonek to hear all cases involving discovery requests based upon allegations of racial profiling.
With that brief background, we turn to the appeals now before us. In our consolidated opinion on defendants' direct appeals, we described the events surrounding the stop:
[O]n August 16, 1992, at approximately 10:00 p.m., State Trooper David Acevedo observed defendant driving a vehicle at a high rate of speed on Route 78 in Warren County. Gonzalez was a passenger in the vehicle. The Trooper's radar unit clocked the vehicle travelling at sixty-eight miles per hour in a fifty-five mile per hour zone.
The Trooper stopped the vehicle and requested defendant's driving credentials. Defendant produced a Missouri driver's license bearing his name with an address in Kansas City. He did not have the registration for the vehicle but did have the title which revealed a different spelling of his name than how it was spelled on his driver's ...