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State v. Herrerra

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 12, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALFONSO HERRERRA, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NELSON GONZALEZ, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 93-03-0064.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 22, 2010

Before Judges Fisher, Sapp-Peterson and Simonelli.

This is the third time these cases have been before us. The first time -- defendants' direct appeals -- we affirmed their convictions for weapons offenses and the attempted murder of a state trooper, who had stopped their vehicle on Route 78 in Warren County, as well as drug offenses based on evidence seized during that encounter.

In seeking post-conviction relief (PCR), defendants argued the stop of their vehicle was racially motivated. In the appeals of the orders denying their PCR petitions and motions for racial-profiling discovery, we reversed and directed the PCR judge to reconsider the PCR petitions, and the State's claim that defendants' convictions were attenuated from the alleged unlawful stop after racial-profiling discovery was turned over. State v. Gonzalez, 382 N.J. Super. 27, 43 (App. Div. 2005), certif. denied, 192 N.J. 291 (2007).

Following our remand, the PCR judge granted the State's motion to dismiss the drug offenses; as a result, he concluded that the discovery sought was no longer relevant to the other convictions and denied the PCR petitions.

In the current appeals, which have been calendared back-to-back, we consider whether the PCR judge failed to adhere to our earlier mandate, prematurely ruled on the State's attenuation theory, and erred in concluding that racial profiling discovery was relevant only to the dismissed drug offenses.

I.

The issues in question arise from the following circumstances:

[O]n August 16, 1992, at approximately 10:00 p.m., State Trooper David Acevedo observed defendant [Herrerra] 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 traveling 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 license. Further, the title listed defendant's address at a location in Reading, Pennsylvania.

The Trooper directed defendant to exit the vehicle and asked him where he had come from. He replied that he had come from New York but could not identify a particular part of the State. When he was asked about the passenger in the vehicle, defendant stated that he did not know Gonzalez's last name; he only knew Gonzalez as Nelson.

Based upon these events, the Trooper asked Gonzalez to exit the vehicle. Upon questioning, Gonzalez also did not know where they had come from, other than New York. When asked for identification, Gonzalez displayed a Missouri driver's license with the same address as defendant's, a peculiar circumstance after defendant stated that he did not know Gonzalez's last name.

Based on these discrepancies, the Trooper asked defendant to consent to a search of the vehicle. The Trooper obtained a consent to search form for defendant's signature. Defendant indicated that he did not understand the form and therefore wanted assistance from Gonzalez. At this time, the Trooper had defendant and Gonzalez separated for reasons of safety. He then called Gonzalez to exchange places with defendant so that Gonzalez could review the consent to search form.

As Gonzalez looked at the form, defendant started approaching the Trooper and said he would sign the form. Gonzalez then grabbed the Trooper from behind in a "bear hug." Defendant then charged the Trooper and began to choke him. During the ensuing struggle, Gonzalez attempted to obtain the Trooper's gun while urging defendant to choke the Trooper. At the same time, defendant was urging Gonzalez to "get it," meaning the gun. Although the remarks by defendant and Gonzalez were spoken in Spanish, the Trooper, who is Hispanic, understood them. Eventually the Trooper was able "to break the grip of Gonzalez who had a hold of [his] weapon and [he] was able to retrieve his weapon from his holster." He pulled out his weapon and "fire[d] two rounds in the direction of defendant and Gonzalez." Defendant was wounded by one of the shots and therefore was unable to move. The Trooper prevented Gonzalez from attempting to flee. Other officers arrived on the scene and arrested defendants. They were transported to the hospital for medical assistance.

Subsequently, a warrant was obtained and a search of the vehicle was conducted. The search revealed more than fourteen ounces of cocaine. [Gonzalez, supra, 382 N.J. Super. at 34.]

Defendants were tried separately and each convicted of: attempted murder, N.J.S.A. 2C:5-1; N.J.S.A. 2C:11-3a(1) and (2); 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; N.J.S.A. 2C:39-4a; attempted unlawful possession of a handgun, N.J.S.A. 2C:5-1; N.J.S.A. 2C:39-5b; and hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(1). Herrerra was also 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 was charged with third-degree aggravated assault but the jury found him guilty of the lesser-included offense of simple assault, N.J.S.A. 2C:12-1a. Defendants each received an aggregate terms of forty years with a seventeen-year period of parole ineligibility. We affirmed the judgments of conviction, State v. Gonzalez, No. A- 3902-95 (App. Div. Apr. 23, 1998); State v. Herrerra, No. A-5353-95 (App. Div. Apr. 23, 1998), and the Supreme Court denied defendants' petitions for certification, State v. Gonzalez, 156 N.J. 406 (1998); State v. Herrerra, 156 N.J. 406 (1998).

Defendants thereafter filed PCR petitions alleging, among other things, they were victims of racial profiling. Questions regarding defendants' entitlement to racial-profiling discovery were considered by Judge Walter R. Barisonek, who had been designated by the Supreme Court to hear all motions for discovery relating to racial profiling by the New Jersey State Police. See State v. Lee, 190 N.J. 270, 274 (2007). Judge Barisonek concluded there was "sufficient intervening cause of a separate nature independent from the discriminatory act either post-stop or pre-stop which would take it out of racial profiling," and denied defendants' requests for discovery. As a result, defendants were left to argue to the PCR judge their remaining unrelated issues, including their claims that they were denied the effective assistance of counsel. Both petitions were denied.

Defendants appealed, arguing they were entitled to racial profiling discovery for two reasons:

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."... 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, 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. [Gonzalez, supra, 382 N.J. Super. at 30-31 (footnote omitted).]

In evaluating those arguments, we distinguished defendants' potential suppression argument relating to their drug convictions from the charges relating to the attempted murder of and assault on the trooper and "disavow[ed] any suggestion that a person who is stopped by police, irrespective of a sincere belief that he or she has been selectively targeted based upon improper factors, has the right to respond with force or resistance." Id. at 41. Nevertheless, we held that defendants were entitled to racial-profiling discovery and found it "premature... to decide whether the stop is sufficiently attenuated to uphold admission of the challenged evidence with respect to any of defendants' convictions." Ibid.

Following our remand, the State moved for a dismissal of the drug charges and a vacation of defendants' convictions on those counts. In granting that motion, the PCR judge concluded:

Every right must have a remedy. Citizens and noncitizens have a right to expect that they will not be racially profiled by our law enforcement officers. The remedy for that, if it is true, would be to dismiss the charges against the defendants. That's put perhaps too simply. By dismissing the charges the Attorney General is tacitly admitting that the racial profiling probably occurred. And the remedy is to dismiss all drug charges against these defendants.

With little further explanation, the judge rejected defendants' other arguments. Both defendants again appealed.

In his appeal, Herrerra argues:

I. DEFENDANT MUST BE AFFORDED DISCOVERY REGARDING ALL HIS CONVICTIONS.

II. THE DENIAL OF DEFENDANT'S MOTION FOR DISCOVERY MUST BE REVERSED, AND THIS MATTER... REMANDED TO JUDGE BARISONEK (Not Raised Below).

In his appeal, Gonzalez argues:

I. THE LOWER COURT ORDER, TO THE EXTENT THAT IT DENIES RACIAL PROFILING DISCOVERY, MUST BE REVERSED SINCE DEFENDANT IS ENTITLED TO SUCH DISCOVERY UNDER THIS COURT'S PRIOR OPINION.

II. THE LOWER COURT ORDER MUST BE REVERSED SINCE THE COURT FAILED TO HOLD A HEARING TO DETERMINE WHETHER THE ASSIGNMENT OF NEW COUNSEL OR SELF[-]REPRESENTATION WAS WARRANTED.

A. THE TRIAL COURT SHOULD HAVE HELD A HEARING DESPITE THE ABSENCE OF A FORMAL MOTION SINCE DEFENDANT'S LETTER WAS TANTAMOUNT TO A FORMAL MOTION.

B. EVEN IF DEFENDANT'S LETTER IS NOT CONSIDERED TANTAMOUNT TO A FORMAL MOTION, THE LOWER COURT SHOULD HAVE, NONETHELESS, HELD A HEARING SUA SPONTE.

C. THE TRIAL COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER DEFENDANT HAD KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO COUNSEL.

D. THE LOWER COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER COUNSEL'S REPRESENTATION OF DEFENDANT GAVE RISE TO A CONFLICT OF INTEREST REQUIRING THE SUBSTITUTION OF COUNSEL (Not Raised Below).

III. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PETITION FOR POST-CONVICTION RELIEF AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED (Not Raised Below).*fn1

We find insufficient merit in Gonzalez's Points II and III to warrant discussion in a written opinion. R. 2:11-3(e)(2). We reverse and remand with regard to the other issues.

II.

Post-conviction relief is New Jersey's equivalent to the federal writ of habeas corpus. State v. Preciose, 129 N.J. 451, 459 (1992). It represents a "defendant's last opportunity to raise a constitutional challenge to the fairness and reliability of a criminal verdict in our state system." State v. Feaster, 184 N.J. 235, 249 (2005) (citing State v. Rue, 175 N.J. 1, 18 (2002)).

The petitioner's burden is to establish the right to relief "by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citing State v. Mitchell, 126 N.J. 565, 579 (1992)). A PCR petition "is cognizable if based upon... [a] [s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." R. 3:22-2(a).

It is beyond questioning that police violate due process and equal protection rights when they selectively stop a motor vehicle based on the race of its driver. See United States v. Armstrong, 517 U.S. 456, 463-66, 116 S.Ct. 1480, 1486-87, 134 L.Ed. 2d 687, 698-700 (1996); State v. Ballard, 331 N.J. Super. 529, 539-40 (App. Div. 2000); State v. Smith, 306 N.J. Super. 370, 376-78 (App. Div. 1997). To obtain discovery related to a racial profiling claim, "[a]ll that is needed is proof of a colorable basis for a selective enforcement defense." State v. Kennedy, 247 N.J. Super. 21, 34 (App. Div. 1991). The selective enforcement defense, if proven, may be used to exclude evidence pursuant to the exclusionary rule. Id. at 30; Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed. 2d 441, 455 (1963). However, proof of selective enforcement does not automatically require exclusion of all unlawfully obtained evidence; in determining the admissibility of evidence obtained from an illegal search and seizure, the relevant inquiry is whether the "connection between the lawless conduct of the police and the discovery of the challenged evidence has 'become so attenuated as to dissipate the taint.'" Wong Sun, supra, 371 U.S. at 487, 83 S.Ct. at 417, 9 L.Ed. 2d at 455 (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 226, 268, 84 L.Ed. 307, 312 (1939)). Here, this tension between the request for racial-profiling discovery and the State's contention that the remaining offenses are attenuated from the alleged unlawful vehicle stop lies at the heart of this appeal.

In Ballard, we considered a defendant's entitlement to post-indictment discovery for a selective enforcement defense. In determining whether a sufficient showing has been made to justify the turnover of racial profiling discovery, we considered State v. Soto, 324 N.J. Super. 66, 69 (Law Div. 1996), where Judge Robert Francis found that statistical evidence established a "prima facie case of selective enforcement which the State has failed to rebut...." Ballard, supra, 331 N.J. Super. at 542-44. We also considered a report issued by the Attorney General that found "minority motorists have been treated differently than non-minority motorists during the course of traffic stops on the New Jersey Turnpike."*fn2 We concluded in Ballard that the defendants, as members of an identifiable minority subjected to a traffic stop on the New Jersey Turnpike, Route 78 or Route 80 during the period between Soto and the Interim Report, had satisfied the necessary threshold to gain access to discovery for their selective enforcement defense. Ballard, supra, 331 N.J. Super. at 542-43.

We encountered similar circumstances in State v. Ball, 381 N.J. Super. 545 (App. Div. 2005), where the defendant, convicted of both a drug offense and hindering prosecution, appealed the denial of his PCR petition and sought racial-profiling discovery. In Ball, the State did not dispute that the defendant was stopped based on his race but instead argued the defendant's intervening criminal acts, which included fleeing the scene and unsuccessfully attempting to dispose of contraband during his flight "attenuated any taint that may have attached to the stop[.]" Id. at 551-52, 560. We disagreed, reasoning that "[t]he attenuation issue is relevant to the ultimate determination of whether the stop was racially motivated, but not to whether defendant is entitled to discovery." Id. at 562. Because the defendant had presented a "'colorable claim' of racial profiling to qualify for discovery," we held he was entitled to any relevant discovery. Id. at 562-63 (quoting Kennedy, supra, 247 N.J. Super. at 25).

The Supreme Court considered circumstances in State v. Lee, supra, 190 N.J. 270, that are quite similar to those presented here. In Lee, the defendant was convicted of drug offenses, as well as resisting arrest, escape, and aggravated assault on the trooper who conducted the highway stop. Id. at 273-74. The State moved to dismiss the defendant's request for discovery, claiming that all criminal conduct that occurred after the stop of the vehicle constituted a break in the causal chain of events between the highway stop and the discovery of drugs. Id. at 275. The defendant countered that he needed the profiling discovery to attack the credibility of the trooper because he sought to dispute the validity of the alleged intervening act. Ibid. Although the trial judge viewed the credibility issue as an interesting one "because it may have some relevancy to the fact finder's obligation," he ultimately agreed with the State's position and granted its motion. Id. at 276. On appeal, the Supreme Court recognized that the chief issue was whether the attenuation doctrine should be considered before determining whether to grant discovery. Id. at 272, 277. Because the parties agreed the defendant had made a prima facie racial profiling claim, the Court found premature any consideration of the attenuation doctrine prior to the turnover of discovery. Id. at 282.

Against this backdrop, we examine the orders under review, which barred the turnover of racial-profiling discovery and denied the PCR petitions by accepting the State's attenuation theory in the absence of that discovery.

III.

After closely examining the issues, we reverse the orders under review because the PCR judge, in failing to comply with our earlier mandate, mistakenly assumed the State's attenuation theory could be determined on its merits without turnover of the mandated discovery. Moreover, even assuming the attenuation theory was ripe for determination, the judge erroneously adopted another judge's decision, which generated an order we reversed in our last opinion, and, in so doing, both failed to apply the Barry factors*fn3 as required by Lee and then expressed no opinion on defendants' contention that the racial profiling discovery would have been admissible at trial to challenge the trooper's credibility. For these three reasons, we conclude that the matter must be remanded again for a turnover of the discovery previously ordered and for reconsideration of the PCR petitions in light of that discovery.

A.

This matter arrives in a different posture than the cases discussed above. By dismissing the drug convictions, the State sought to remove what it believed was the linchpin to defendants' right to racial-profiling discovery. The PCR judge interpreted this as a "tacit admission" that defendants were "probably" racially profiled -- a characterization the State has not disputed. From that, the PCR judge appears to have concluded that the racial-profiling discovery was no longer relevant to the other offenses for which defendants were convicted by adopting Judge Barisonek's earlier decision on the attenuation issue. By arriving at that conclusion, the PCR judge not only assumed we had agreed with Judge Barisonek's earlier attenuation ruling -- when we said no such thing*fn4 and in fact reversed the order upon which that ruling was based -- but also ran afoul of what was made abundantly clear in both Lee and our earlier opinion in this case: a decision on attenuation is premature until racial-profiling discovery is turned over.*fn5

The mandate contained in our earlier opinion unmistakably directed the entry of "an order granting defendants' discovery requests" and, thereafter, for the PCR judge "to reconsider defendants' post-conviction relief motions solely on issues arising from such discovery." Gonzalez, supra, 382 N.J. Super. at 43. To be sure, the circumstances underlying our earlier decision were altered by the dismissal of the drug offenses. But there is nothing in our earlier opinion that would suggest our mandate was founded only on the continued viability of the drug convictions. To the contrary, we clearly held that until racial-profiling discovery -- including "discovery of this trooper's history and any other relevant information" -- was provided, it was premature to decide the application of the State's attenuation theory "to any of defendants' convictions." Id. at 41 (emphasis added).

The PCR judge was not free to disregard our mandate. See Flanigan v. McFeely, 20 N.J. 414, 420 (1956). For that reason alone, the order denying racial-profiling discovery must be reversed and the matter again remanded for turnover of that discovery and reconsideration of the PCR petitions.

B.

Even if we could agree that the PCR judge was free of the mandate in light of the change in circumstances brought about by the dismissal of the drug charges, we do not agree there was sufficient evidence from which the judge could safely conclude that the State's attenuation theory had merit. Indeed, the PCR judge made no independent finding on this point, but instead adopted Judge Barisonek's earlier decision that the causal link between the assumed act of racial profiling and the attempted murder and other related charges had been broken. Putting aside the questionable status of that determination in light of our reversal of the order that resulted from it, Gonzalez, supra, 382 N.J. Super. at 38, 43, the PCR judge's adoption of that determination disregards what we said in reviewing Judge Barisonek's ruling and what the Supreme Court later said in Lee -- the State's attenuation theory cannot be considered on its merits in the absence of the discovery sought.

And, even if we were to intuit from those earlier decisions that the attenuation theory would lose its prematurity upon a concession that racial profiling occurred, and assuming further it was appropriate to view the State's dismissal of the drug offenses as a "tacit admission" of "probable" racial profiling, we nevertheless must remand for further proceedings because the PCR judge did not correctly analyze the State's attenuation theory. As held in Lee, once a defendant is "successful in proving that racial profiling was implicated, then the State may offer its attenuation argument[,]" which must be resolved through a "weigh[ing] [of] the Barry factors in light of the evidence to determine if attenuation applies." 190 N.J. at 283. The Barry factors were described by the Court in Lee as including: "(1) the temporal proximity of the arrest; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct[.]" Id. at 277.

Because the State's attenuation theory has yet to be examined in light of the Barry factors, we remand for further proceedings in conformity with Lee's requirements.

C.

We also decline to consider on its merits whether evidence of racial profiling evidence would have been admissible at trial to challenge the trooper's credibility even if the State's attenuation theory is ultimately adopted. Defendants' position on this point was summarized in the trial court by Herrerra's counsel in the following way:

[N]otwithstanding dismiss[al] [of] the drug charges,... it is our position that my client is still entitled to a new trial because we are arguing there was racial profiling in this case, that he's entitled to have that discovery. Because, your Honor, the only evidence that came before the jury that convicted my client that there had been this attempted murder was from the testimony of the trooper. [I]t is my client's position that, in fact, he was shot in the back from some distance when the trooper became angry. And the [State's] ballistic expert confirmed that the bullet had been shot from some distance away. It wasn't point blank as the trooper had described the series of events.

So it's our position that the objective evidence would suggest that there was another version of the events other than what the trooper testified to. And that my client is entitled to a new trial and to obtain the discovery, which it's our position will be useful in attacking the credibility of the trooper. And again, it's only the trooper's word against my client's as to what happened there that night. The evidence suggests that, in fact, it didn't happen the way the trooper said it did.

In response, the State then argued, and continues to argue here, that N.J.R.E. 608 would not permit admission of the trooper's alleged profiling of these defendants to attack his credibility. In addition, the State asserted that to permit such evidence to be used in a new trial would require "a massive trial within a trial about this... trooper's past history," which would include the testimony of "superintendents of state police here, past and present, attorney generals, past and present." The State further argued that defendants' convictions for attempted murder did not turn solely on the trooper's credibility because the trooper's version was supported by other corroborating evidence. In this regard, the State urged that, if necessary, the PCR judge consider "all the corroborating evidence that all supported the trooper's account," including "photographs of the injuries to his neck, choke marks[,...] injuries to his hand, injuries to the forearm, transmission tapes from the scene, photos of mud caked on his pants, crammed into his holster, caked on to his shirt, $40,000 worth of cocaine."

The PCR judge did not discuss any of these arguments. The judge did not examine or discuss the evidence adduced at trial; he did not consider the role that racial-profiling evidence or evidence of the trooper's history might have played at trial; he did not determine whether this evidence would be admissible for purposes of challenging the trooper's credibility; he did not consider whether there was any accuracy in the prosecutor's contention that admission of this type of evidence at trial would have led to "a massive trial within a trial." Aside from his comments, quoted earlier, that the remedy for the Attorney General's "tacit[] admi[ssion] that the racial profiling probably occurred," was the dismissal of the drug charges, the judge provided only the following additional comments in denying racial-profiling discovery and post-conviction relief:

I have reviewed the Appellate Division decision [in Gonzalez, supra, 382 N.J. Super. 27], and that decision it appears to me to be eminently clear in that it does not overturn Judge Barisonek's decision regarding the attenuation of the attempted murder charges from the possession of narcotics charges. I cannot find in that opinion anywhere that that is an issue.

It is, therefore, the opinion of the [c]court that the motion of the defendants to compel that the Attorney General release profiling information, in light of the fact that the narcotics charges are going to be dismissed, is denied. That seems to this [c]court to be a perfect remedy to a right which may have been violated. As brief as it is, that is my decision.

As is readily apparent, the PCR judge was silent on the admissibility of racial-profiling evidence or evidence of the trooper's history to attack the trooper's credibility. We deem it inappropriate to address these arguments on their merits. Absent turnover of the discovery previously ordered -- and ordered again -- we are in no position to form a view about the admissibility of this evidence had it been offered at trial to attack the trooper's credibility. It is for the trial court to opine on these matters in the first instance.

IV.

To be clear -- considering the extent to which our prior opinion has been construed to date -- we intimate no view of either the State's attenuation theory or defendants' argument that the evidence sought would have been admissible at trial to attack the trooper's credibility. Instead, we simply -- once again -- remand for entry of an order compelling the State to turnover that information. Upon its turnover, the PCR judge should consider on their merits both the State's attenuation theory, upon a principled application of the Barry factors, and defendants' argument regarding the admissibility of that evidence to challenge the trooper's credibility and, if admissible, whether its absence from the trial prejudiced defendants' right to a fair trial.

Reversed and remanded.


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