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State of New Jersey v. Mark A. Brown

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 18, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARK A. BROWN, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 06-09-0811.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 14, 2011

Before Judges Fuentes, Graves, and J. N. Harris.

In September 2006, a Gloucester County grand jury returned a six-count indictment charging defendant Mark A. Brown with fourth-degree possession of fifty grams or more of marijuana, N.J.S.A. 2C:35-10(a)(3) (count one); third-degree possession of more than one ounce of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count two); third-degree possession of phencyclidine (PCP), N.J.S.A. 2C:35-10(a)(1) (count three); first-degree possession of more than ten grams of PCP with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(6) (count four); and third-degree hindering apprehension by providing false information to a law enforcement officer, N.J.S.A. 2C:29-3(b) (count five).*fn1 A five-day jury trial in 2009 resulted in defendant's acquittal of first-degree possession of more than ten grams of PCP with intent to distribute. Defendant, however, was convicted of the remaining charges, together with the lesser-included offense in count four of second-degree possession of less than ten grams of PCP with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(7). At sentencing, the trial court granted the State's motion for an enhanced sentence pursuant to N.J.S.A. 2C:43-6(f) and imposed an aggregate term of imprisonment of twelve years with a five-year period of parole ineligibility.

Defendant appeals, raising the following arguments for our consideration:

POINT I: THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.

A. THE DRUGS CONFISCATED FROM THE BACK SEAT OF THE CAR SHOULD BE SUPPRESSED BECAUSE THE STATE FAILED TO MEET ITS BURDEN TO ESTABLISH AN EXCEPTION TO THE WARRANT REQUIREMENTS.

B. DEFENDANT'S PURPORTED CONFESSION SHOULD HAVE BEEN SUPPRESSED AS FRUIT OF THE POISONOUS TREE.

POINT II: THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING THE DEFENDANT'S MOTION TO DISMISS COUNTS 3 AND 4 OF THE INDICTMENT WHERE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THOSE CHARGES.

POINT III: DEFENDANT IS ENTITLED TO A NEW TRIAL DUE TO PROSECUTORIAL MISCONDUCT DURING THE STATE'S CROSS-EXAMINATION OF THE DEFENDANT, AND TO THE TRIAL COURT'S ABUSE OF DISCRETION BY DENYING THE DEFENDANT'S REQUEST FOR A MISTRIAL AND/OR REQUEST FOR A CURATIVE JURY INSTRUCTION.

POINT IV: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO COMPEL DISCOVERY WHERE THE REQUESTED EVIDENCE WAS RELEVANT, MATERIAL, AND DISCOVERABLE UNDER BRADY.

POINT V: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

A. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE PROSECUTOR'S MOTION FOR AN EXTENDED TERM WHERE DEFENDANT ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT THE PROSECUTOR'S REFUSAL TO OFFER A POST-CONVICTION PLEA WAS ARBITRARY AND VINDICTIVE.

B. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO CONSIDER CERTAIN MITIGATING FACTORS.

POINT VI: THE ACCUMULATION OF ERRORS DEMAND THAT THE DEFENDANT BE RETRIED.

POINT VII: THE ISSUES RAISED IN DEFENDANTS PRO SE BRIEF, IF ANY, SUPPORT HIS REQUEST FOR A REVERSAL OF HIS CONVICTION AND SENTENCE.*fn2

We agree with defendant's first point that the Law Division erred in not suppressing certain evidence found in the backseat of the car in which defendant was a passenger, which led to the improper admission of defendant's statement. The consequences of these errors result in the entire jury verdict being irretrievably tainted. Accordingly, we reverse and remand for a new trial on all charges.

I.

A.

The following facts are derived from the suppression motion and trial. On April 27, 2006, at approximately 8:45 p.m., Investigator Michael Cramer of the West Deptford Township Police Department observed an automobile traveling on Route 295 in West Deptford Township pass his patrol car in the left-hand lane.

The vehicle was driven by defendant's uncle, John Gross. Defendant and co-defendant, Vincent Daniels, were passengers. Cramer observed the vehicle abruptly move across two or three lanes of traffic without signaling, and proceed to exit the highway at a high rate of speed, nearly striking a guardrail in the maneuver. He followed the vehicle and directed it to pull over on Route 45, "approximately 100 feet from the Colonial Cafe Bar, which is located on the corner of Colonial Avenue and Route 45."

Cramer approached the passenger side of the vehicle and observed three individuals inside. He then asked Gross to produce his license, registration, and insurance papers, which Gross provided as he informed Cramer that his license was suspended. At this time, Cramer also observed that defendant, who was seated in the front passenger seat, was not wearing a seatbelt and asked him for identification in order to issue a summons. Defendant did not produce any identification but did falsely identify himself as John Carr. Cramer then asked defendant for his age and date of birth, which were not in agreement, giving Cramer more cause for suspicion.

As he stood beside the passenger side window, Cramer smelled the odor of raw marijuana emanating from the vehicle. Satisfied that he had accurately identified the source of the odor, having reportedly smelled raw marijuana on hundreds of occasions during his eleven years as a police officer, Cramer asked Gross to exit the vehicle, read him his Miranda*fn3 rights, and informed him that he and the two passengers would be searched. A pat-down search of Gross and Daniels revealed no weapons or contraband. The two men, who were then not yet under arrest, were asked to remain with three backup police officers who had since arrived. Defendant was then requested to exit the vehicle, at which point Cramer noticed a "large bulge . . . in [defendant's] waistband." When asked what was in his waistband, defendant "turn[ed] his body away from [Cramer] so that [Cramer] was unable to look at the front of [defendant's] body where the bulge was [located]." Concerned that defendant might be in possession of a weapon, Cramer "leg-swept [defendant] and put [defendant] on the ground," at which point defendant exclaimed, "[d]on't shoot. Don't shoot me. It's only a bag of weed."

Cramer handcuffed defendant, stood him upright, and lifted his shirt up, revealing a bag containing marijuana. The officer also uncovered a second bag from defendant's waistband containing thirteen vials of PCP before placing defendant under arrest. A subsequent search of the backseat passenger compartment revealed thirty additional vials of PCP inside Styrofoam food containers also containing chicken and ribs.

Defendant, Gross, and Daniels were arrested for possession of controlled dangerous substances with the intent to distribute. They were transported to the West Deptford Police Department for processing.*fn4 Gross was issued motor vehicle summonses for driving with a suspended license, careless driving, and failure to keep right on the highway. Defendant received a summons for failure to wear a seatbelt.

At the police station, defendant asked if he could provide a statement that all of the controlled dangerous substances recovered from the vehicle were his. Investigator Michael Pfeiffer took defendant's statement, which was recorded on audiotape. Although defendant insisted that the drugs were his alone, he also spoke in the first person plural at times, suggesting he acted with at least one other person. When asked for what purpose he had the drugs, defendant answered that "[h]e was going to smoke it." Pfeiffer then asked, "[y]ou smoke that much?" to which defendant responded, "[w]ell, I was going to split it with some people."

At trial, defendant testified in his own defense. He stated that on April 27, 2006, he, Gross, and Daniels were in Salem when they decided to travel to Camden by bus to "get some wet or some PCP or whatever."*fn5 Defendant admitted purchasing four ounces of marijuana and a bundle of PCP, consisting of thirteen vials. He and Daniels then walked to defendant's grandmother's house where defendant's uncle, Gross, agreed to give the pair a ride back to Salem.

When asked about the four ounces of marijuana found on his person, defendant maintained that the drugs were for his personal use, stating that it would take him "two, three weeks at the most" to smoke four ounces of marijuana since he typically smoked it all day long. However, when confronted about his recorded admission that the PCP-filled vials in the backseat were also his, defendant claimed that he only made the statement so that his uncle, who defendant believed was on parole at the time, wouldn't be charged:

So I knew [Cramer] was going to charge all of us. I basically was like, I already got caught red-handed with drugs on me, so I might as well take the rest of the drugs so all of us won't get charged -- or basically so [my uncle] won't get charged and get [a parole violation].

After realizing he was "facing all that time [in prison]" defendant disavowed knowledge of how the PCP-filled vials came to be found in the Styrofoam containers, and expressly claimed that those drugs were not his.

Heather Garoh, the State's expert forensic scientist, testified without objection that PCP was found in the vials, and its aggregate weight was 17.18 grams. When asked, "how much it would weigh if it were [thirteen] vials," she replied that the net weight would be "[a]pproximately . . . about [two] or [three] grams."

Charles Landi, a detective in the Gloucester County Prosecutor's Office, Narcotics Strike Force, offered expert testimony (without objection) about "the distribution and quantity of controlled dangerous substances." He concluded that the forty-three vials of PCP, with a $645 street value, and four ounces of marijuana, with a $400 street value, found between defendant's person and the automobile's interior was consistent with distribution as opposed to personal use. He further opined that the lack of drug paraphernalia in the car and in the possession of the occupants also suggested that the drugs were intended for distribution.

Defendant called David Leff, an expert in drug "usage, packaging and distribution," to rebut Landi's opinion that the drugs were possessed for distribution. Leff opined that the quantity of drugs found on defendant's person was consistent with personal use, and not distribution. He also noted that no money was found on defendant, Gross, or Daniels, further suggesting that the drugs were intended for personal consumption and not distribution.

B.

At a pretrial hearing on October 3, 2008, defendant moved to suppress the thirty vials of PCP located inside the vehicle as fruits of an unconstitutional search. The Law Division denied the motion, finding that 1) the police had probable cause to search the vehicle after finding marijuana in defendant's possession and 2) exigent circumstances existed, since neither Gross nor Daniels were under arrest and "were going to remain with the car."

C.

At sentencing, the prosecution moved for a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f) of fifteen years imprisonment with a five-year period of parole ineligibility on count four (a second-degree offense) and a consecutive seven-year extended term sentence with a three-year period of parole ineligibility on count two (a third-degree offense), for an aggregate sentence of twenty-two years. The court granted the State's motion for a mandatory extended term on count four and sentenced defendant to a twelve-year term of imprisonment with a five-year period of parole ineligibility. On count two, the court imposed a concurrent six-year term of imprisonment with a three-year period of parole ineligibility; a concurrent term of three years was imposed on count five. Count one merged with count two; count three merged with count four. This appeal followed.

II.

A.

Defendant's first point links what he claims was an illegal search of the car's backseat (and the resultant seizure of the thirty vials of PCP) with his recanted admission claiming dominion and control over all of the drugs in the car. The State counters defendant's arguments by suggesting -- without conceding the illegality of the search and the connection to the admission -- that because defendant was convicted only of the lesser-included offense of second-degree possession with intent to distribute less than ten grams of PCP, rather than the greater amount charged in the indictment, the jury rejected defendant's involvement with those thirty vials of PCP. The State adds that defendant was only convicted for the thirteen vials that he was found with "red-handed," and therefore defendant's claims of error are moot.*fn6 We agree with defendant that the State failed to satisfy the requisite burden of proof to validate the warrantless search of the backseat of the car. We disagree that the jury verdict of guilty to the lesser-included offense moots defendant's grievance.

Our review of the grant or denial of a motion to suppress is limited. We are bound to defer to the factual findings of the motion court "so long as those findings 'are supported by sufficient credible evidence in the record.'" State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)), aff'd 206 N.J. 39 (2011). We owe particular "'deference to those findings of the [motion] judge which are substantially influenced by [her] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy,'" and will not upset such findings simply because we would have reached a different result. Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We reverse only when "'the interests of justice demand intervention and correction.'"

Ibid. However, our review of the legal conclusions that flow from established facts is plenary. Handy, supra, 412 N.J. Super. at 498 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect citizens against unreasonable searches and seizures. State v. Mann, 203 N.J. 328, 337 (2010); U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. A warrantless search or seizure is presumptively invalid and the State bears the burden of proving by a preponderance of the evidence that "'[the search] falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. Privott, 203 N.J. 16, 24 (2010) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)); see also State v. Pineiro, 181 N.J. 13, 19-20 (2004).

One such exception is the automobile exception. Pursuant to the federal Constitution, "a warrantless search of a motor vehicle pursuant to the automobile exception is permissible so long as the vehicle is readily mobile and there is probable cause to believe it contains evidence of criminality." State v. Pena-Flores, 198 N.J. 6, 20 (2009) (citing Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487, 135 L. Ed. 2d 1031, 1036 (1996)).

Our Supreme Court, however, has interpreted art. I, ¶ 7 of our State Constitution as providing greater protection against unreasonable searches and seizures than the federal Constitution. State v. Pierce, 136 N.J. 184, 208-09 (1994). Thus, in Pena-Flores, the Court reaffirmed its holding in State v. Cooke, 163 N.J. 657, 667-68 (2000), that the warrantless search of an automobile is "permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant." Pena-Flores, supra, 198 N.J. at 28.

The first two requirements were satisfied in this case. First, the motor vehicle stop was unplanned and triggered by Gross's erratic driving. Second, the smell of raw marijuana emanating from the vehicle gave Cramer probable cause to search the automobile for drugs or other contraband, especially after a bag of marijuana was found on defendant's person. See State v. Nishina, 175 N.J. 502, 515-16 (2003) (holding that smell of marijuana constitutes probable cause to believe crime has been committed and that additional contraband might be present). Cramer also testified that in his experience, it was common for drug traffickers to store a small amount of drugs on their person to avoid prosecution for a larger amount stored elsewhere. Thus, the critical inquiry here is whether exigent circumstances existed rendering it "impracticable to obtain a warrant." Pena-Flores, supra, 198 N.J. at 28.

The determination of exigent circumstances is fact sensitive and must be resolved on a "case-by-case basis" with consideration of the "totality of the circumstances." Ibid. Central to the analysis is the officer's safety and the preservation of evidence. Id. at 29. The motion judge found that exigent circumstances existed simply because "[t]he car [was] on the side of the highway and the other occupants still remain[ed] with the car." The State also argued that exigency was created by the location of the vehicle along the side of a busy highway, in close proximity to a business establishment. The record evidence, however, does not support either the motion judge's conclusions or the State's argument.

Although at the time of the backseat search Gross and Daniels were not yet under arrest, and theoretically had the capacity to return to the vehicle to destroy or hide the thirty vials of PCP, the motion record reveals nothing more than raw conjecture that the evidence was in jeopardy. There were four police officers on the scene, and, except for defendant before he was thrown to the ground, the civilians were cooperative, if dissembling. There was no indication that other confederates of the occupants of the car were in the area, and there was nothing to suggest that tavern patrons were interested in or actually observed the events at the scene. Moreover, no one described the area as being a high-crime neighborhood. The "high traffic on the highway," as argued by the State, is a non sequitor.

The record reveals that the State utterly failed to prove that Cramer did not have time to call for a search warrant without compromising his safety and the preservation of evidence. We therefore conclude that the absence of exigent circumstances "vitiat[ed] invocation of the automobile exception." Id. at 32. Consequently, the thirty vials of PCP seized from the vehicle should have been suppressed.

We also view defendant's subsequent admission that he was responsible for all of the drugs to be derivative of the illegal search. We recognize that even at trial, defendant did not disavow the contraband found in his waistband. Indeed, at the scene of the motor vehicle stop, defendant acknowledged that his waistband harbored "only a bag of weed." Nevertheless, we are satisfied that a proximate factor motivating defendant to confess to the police was the exposure of his uncle to the fruits of the illegal search. As such, defendant's statements implicating himself were plainly linked to, and impelled by, the improper recovery of the thirty vials of PCP. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 454 (1963); State v. James, 346 N.J. Super. 441, 453 (App. Div.), certif. denied, 174 N.J. 193 (2002). Accordingly, defendant's statements at police headquarters should not have been considered by the jury.

In light of these conclusions, we must still analyze the State's unsupported claim of mootness. That is, its view that the jury verdict bespeaks a rejection of the State's evidence of defendant's possession with intent to distribute the thirty vials of PCP. Since we cannot accurately explicate the jury verdict from the jury verdict sheet, we can only speculate why defendant was convicted of the lesser-included offense of possession of less than ten grams of PCP with the intent to distribute. We note that the grand jury's inelegant indictment did not distinguish the quantity of PCP found on defendant's person from the quantity found in the Styrofoam container in the backseat of the car. Thus, it is pure conjecture to deduce the nature of the jury's verdict, rendering the mootness argument inapplicable.

We further view the cumulative effect of the jury's improvident consideration of the thirty vials of PCP and defendant's confession (albeit recanted) as warranting a new trial. These errors were so significant that the possibility of producing an unjust result was "real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Although there is a plausible argument that the jury's conviction of defendant on the other charges were sufficiently unrelated (1) to the thirty vials of PCP and (2) to defendant's confession that they should remain intact, we cannot sever the effect of the jury's wrongful consideration of the proscribed evidentiary materials from its general verdict in a principled fashion.

"Our obligation is to ensure that defendant had a fair trial." State v. Jenewicz, 193 N.J. 440, 473 (2008). We are satisfied that the presentation of material information to the jury that it should never have considered casts substantial doubt over the reliability of the outcome achieved in these proceedings. See State v. Koskovich, 168 N.J. 448, 540 (2001); State v. Orecchio, 16 N.J. 125, 129 (1954). Consequently, we vacate the judgment of conviction, and reverse and remand for a new trial on all charges.

B.

Since this matter must be retried, we need not address the balance of the arguments presented by defendant, except for one.

Because defendant's claim that he was deprived of putative Brady*fn7 materials is likely to arise again during the remand proceedings, we elect to consider the issue.

Defendant filed a pretrial motion to compel discovery of "two years of tickets, warnings, arrests, and stops by Investigator Cramer, which involved the failure to keep to the right on the highway." Defendant intended to show that Cramer's initial stop was pretextual and based on the occupants' race. On August 15, 2008, the Law Division denied the motion "for failure of defendant to provide sufficient evidence to raise a colorable claim of selective enforcement." Relying on Rule 3:13-3 and Brady for support, defendant now contends that the denial of his motion amounted to an abuse of discretion. The State maintains that defendant's claim of "selective enforcement" was unsubstantiated by the record and therefore the motion to compel discovery was properly denied.

We review the grant or denial of a motion to compel discovery on an abuse of discretion standard. State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009), aff'd, 201 N.J. 229 2010). Although discovery requests are to be liberally construed, "a reviewing court will 'normally defer to the trial court's disposition of discovery matters.'" Serrano v. Underground Utils. Corp., 407 N.J. Super. 253, 268 (App. Div. 2009) (quoting Spinks v. Twp. of Clinton, 402 N.J. Super. 454, 459 (App. Div. 2008)).

Although defendant couches his discovery demand as an innocuous request for evidence with which to merely impair the credibility of Cramer due to supposed bias, the essence of the demand is undergirded by a claim of selective enforcement. Successful claims of selective enforcement are almost always supported by police records, which demonstrate a policy or pattern of discriminatory enforcement in a particular geographic area. State v. Halsey, 340 N.J. Super. 492, 501 (App. Div. 2001), certif. denied, 171 N.J. 443 (2002). However, in order to obtain discovery of such records, a defendant must first demonstrate "'a colorable basis for a claim of selective enforcement.'" Ibid. (quoting State v. Kennedy, 247 N.J. Super. 21, 25 (App. Div. 1991)).*fn8 This test strikes a balance between the relevance and probative value of such records and "the privacy of other citizens and the State's legitimate need for confidentiality with respect to particular items." Kennedy, supra, 247 N.J. Super. at 35.

Specifically, "a defendant must present 'some evidence tending to show the existence of the essential elements of the defense and that the documents in the government's possession would indeed be probative of these elements.'" Halsey, supra, 340 N.J. Super. at 501 (quoting Kennedy, supra, 247 N.J. Super. at 32). The colorable basis test was further explained as follows:

The threshold test we adopt here constitutes a reasonable accommodation of competing values. A more lenient standard would encourage the assertion of spurious claims of selective enforcement as a means of burdening criminal trials with massive discovery of material completely irrelevant to the defendant's case. The "colorable basis" standard is nonetheless consistent with our Supreme Court's repeated exhortations that liberal pretrial discovery practice "promotes the quest for truth." [Kennedy, supra, 247 N.J. Super. at 32 (quoting State in Interest of W.C., 85 N.J. 218, 221 (1981)).]

Notably, a defendant is not required to make out a prima facie case of selective enforcement, that is, "one that if unrebutted will lead to a finding of selective prosecution."

Id. at 34. Rather, there need only be a colorable basis for the claim "'that a police agency has an officially sanctioned or de facto policy of selective enforcement against minorities.'"

Halsey, supra, 340 N.J. Super. at 501-02 (quoting State v. Smith, 306 N.J. Super. 370, 378 (App. Div. 1997)).

While defendant's proofs need not rise to the level of a prima facie case, "the burden to establish such a claim 'is a demanding one.'" Id. at 501 (quoting United States v. Armstrong, 517 U.S. 456, 463, 116 S. Ct. 1480, 1486, 134 L. Ed. 2d 687, 698 (1996)). Defendant must, however, "show that similarly situated individuals of a different class were not prosecuted for similar crimes." Ibid.

Defendant has failed to meet this burden. There is not a shred of evidence in the record, much less credible evidence, which would support defendant's claim of selective enforcement against any police officer or law enforcement agency. In Smith, defendant affixed to his motion to suppress three years of municipal court logs, a six-year old report commissioned by the Public Defender's Office "indicating that from December 6 to December 12, 1988 between 9 a.m. and 4:15 p.m. five percent of the cars between exits eight and twelve on the New Jersey Turnpike contained black motorists in vehicles with out-of-state licenses plates," and miscellaneous newspaper articles in which the State Police discussed the effect to which they used profiles in effecting motor vehicle stops. Id. at 376-77. There, we held the supporting documentation to be "less satisfactory than was deemed 'marginally sufficient' in Kennedy," and denied defendant's motion to compel discovery. Id. at 377. Here, defendant has provided no evidence of either an officially sanctioned or de facto policy of racial targeting to support a colorable claim of selective enforcement. Therefore, the pretrial motion to compel discovery was properly denied.

Defendant's reliance on Brady is also misplaced. In that case, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment." Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1197, 10 L. Ed. 2d at 218. Here, defendant has produced no evidence of the existence of exculpatory evidence in the possession of the State to invoke Brady.

Reversed. The judgment of conviction is vacated and the matter is remanded for a new trial on all charges. We do not retain jurisdiction.


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