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State of New Jersey v. Alfonso Herrerra

August 7, 2012

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



On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Chief Justice Rabner

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.)

State v. Alfonso Herrerra/State v. Nelson Gonzalez (A-121-10) (067308)

Argued April 25, 2012 -- Decided August 7, 2012

RABNER, C.J., writing for a unanimous Court.

The issues in this appeal are whether the exclusionary rule applies to a prosecution for a violent attack against a police officer after a possibly unlawful motor vehicle stop, and whether defendants would be entitled to racial profiling discovery to challenge Trooper Acevedo's credibility at a new trial for attempted murder.

According to the evidence at trial, in August 1992, New Jersey State Police Trooper David Acevedo stopped a Pontiac for speeding on Route 78. Alfonso Herrerra was driving and Nelson Gonzalez was in the front passenger seat. Herrerra produced a Missouri driver's license in the name of "Herrerra, Alfonso Lorenzo," and a Pennsylvania title issued to "Lorenzo A. Herrera." The Trooper directed him to get out and they spoke behind the car. Herrerra said he had come from New York but could not remember from where. He identified the passenger as "Nelson" but could not recall his last name. Gonzalez provided a Missouri license with the same street address and also said he could not recall where they had driven from. The Trooper asked Gonzalez to get out and spoke with him. Then the Trooper returned to Herrerra, asked for permission to search the car, obtained a consent form written in Spanish from the police car, called for backup, and explained the form to Herrerra in Spanish. Herrerra said he did not understand and wanted Gonzalez to explain it. While keeping them separated, the Trooper reviewed the form with Gonzalez behind the police car. Then, Herrerra walked toward the Trooper, Gonzalez grabbed the Trooper from behind, and Herrerra grabbed him around the neck. All three fell to the grassy part of the shoulder. Gonzalez tried to take the Trooper's weapon while Herrerra choked the Trooper. The Trooper heard defendants direct each other in Spanish to choke him and get his gun. The Trooper broke Gonzalez's grip, retrieved his weapon and fired two shots, hitting Herrerra in the buttocks and Gonzalez near his knee. Other officers arrived and arrested Herrerra and Gonzalez, who were taken to the hospital. The police obtained a search warrant for the Pontiac the next day and found fourteen ounces of cocaine. Photos introduced at trial showed mud on the Trooper's pants, arm and holster; grass stuck in the seam of his shoes; cuts on his hand; and bruises on his elbow and throat. Photos also showed mud on Gonzalez's shirt; grass and blood stains on Herrerra's pants; and trampled grass near the police car.

Defendants were charged with drug offenses and offenses involving the attack, including attempted murder, aggravated assault, and weapons charges. Defendants filed pretrial motions challenging the admissibility of evidence and asked the court to inspect the Trooper's personnel file. They argued that the grand jury transcripts conflicted with the Trooper's version of events and that his file would show bias, motive to fabricate, and proof of prior bad acts. The court reviewed the file and found nothing discoverable in it. Following trials in 1995, both defendants were convicted of drug charges and attempted murder, aggravated assault, and related offenses. The Appellate Division affirmed, rejecting the challenge to the denial of the motions to suppress the cocaine. This Court denied certification.

In 1999, defendants filed actions for post-conviction relief (PCR), seeking racial profiling discovery to prove the stop was racially motivated. After a series of rulings at the trial and appellate levels, the Attorney General dismissed the drug convictions, leaving only the convictions for attempted murder and related offenses. Defendants continue to seek profiling discovery to challenge the remaining convictions and demonstrate that the drug evidence should have been suppressed. The Appellate Division remanded to compel the State to provide discovery. The panel concluded that until discovery about the Trooper's history was reviewed, a decision on attenuation -- whether defendants' conduct after the stop created a sufficient break in events to avoid suppression -- was premature; and that the trial judge had not addressed whether racial profiling discovery would have been admissible at trial to challenge the Trooper's credibility. The Court granted the State's petition for certification. 207 N.J. 64 (2011).

HELD: The exclusionary rule does not apply to a prosecution for attempted murder and related offenses after a possibly unlawful stop. An attenuation analysis is unnecessary. Defendants are not entitled to racial profiling discovery in seeking to suppress the drug evidence or to challenge the Trooper's credibility at a new trial.

1. In 1999, the Attorney General issued an Interim Report that concluded that minority motorists had been treated differently in State Police traffic stops on the Turnpike. The State initiated reform measures and entered into a consent decree with the Department of Justice. The Legislature codified the reforms and created an office to carry out training and monitoring activities. The Court provided for statewide management of cases in which defendants sought discovery on alleged racial profiling and designated Judge Barisonek to hear all motions. In State v. Ballard, 331 N.J. Super. 529 (App. Div. 2000), the court found a basis for a claim of selective enforcement. As a result, absent proof to rebut that claim, defendants may obtain racial profiling discovery. Judge Barisonek then directed that minority defendants were entitled to discovery for stops during a specific period on many interstate roads and ordered disclosure of stop data for various trooper stations, data on individual trooper stops prior to a stop in question, and profiling complaints. By 2002, the Attorney General, citing the interests of justice as part of an effort to move forward, obtained dismissal of all cases in which defendants were entitled to racial profiling discovery. The Attorney General offered the same reasons for dismissing the drug charges against Herrerra and Gonzalez, the last defendants to seek such discovery. (pp. 19-24)

2. Discovery is limited in a PCR proceeding. To obtain PCR relief, defendants must at least show that the alleged violation played a role in the determination of guilt. Here, defendants seek the Trooper's personnel file, raw data on stops, and discovery relevant to show State Police racial profiling generally. Because the drug convictions were dismissed, it is not necessary to determine whether drugs seized during a possibly unlawful stop should have been excluded in a drug prosecution. The question is whether the exclusionary rule applies to evidence of a violent attack against a police officer after the stop. Only if the rule applies and the stop was illegal would it be necessary to consider whether defendants' later conduct was sufficiently attenuated from the stop. (pp. 24-27)

3. The exclusionary rule bars the State from introducing evidence of the "fruits" of an illegal search or seizure. The rule's purposes include deterring police misconduct and preserving the integrity of the courts by not providing a forum for tainted evidence. The attenuation doctrine provides an exception to the rule when the connection between the violation and the evidence is attenuated by time and circumstances such that the taint of unlawful conduct is dissipated. Those concerns were addressed in State v. Battle, 256 N.J. Super. 268 (App. Div. 1992). In that case, after there was no basis to continue the motor vehicle stop, events led to defendant's causing injuries to the police officer. As to the drug charges against defendant, the court suppressed the drug evidence, but the court allowed that evidence in connection with the assault charge. The State dismissed the drug charges and defendant was convicted of assault. The Appellate Division explained that applying the exclusionary rule to protect a defendant from prosecution for crimes committed after police misconduct would give suspects free rein to commit further crimes, cost society too much in order to deter police misconduct, and undermine the truth seeking function of the trial. Admitting the evidence to prosecute an assault would not encourage misconduct, and suppression as to any drug offenses was an adequate deterrent because the aim of the unlawful search was not to cause a violent response but to discover drugs. Thus, without conducting an attenuation analysis, the court in Battle did not apply the exclusionary rule to the aggravated assault charge. Many other jurisdictions have similarly declined to apply the rule to the prosecution of a violent response to an unlawful arrest or seizure. Further, defendants have no right to resist arrest in response to an unlawful stop or detention. For compelling public safety reasons, they must submit to the detention and take their challenge to court. (pp. 27-36)

4. Regardless of the legality of the initial stop, the exclusionary rule does not apply to evidence of defendants' attempted murder of Trooper Acevedo and related offenses. Thus, defendants are not entitled to racial profiling discovery in an effort to try to suppress the drug evidence. Had they complied peacefully with the Trooper's instructions, they could have challenged the cocaine seized from their car in court and pursued a claim of racial profiling then; and they would likely be entitled to discovery under Ballard and Judge Barisonek's orders, which might have provided a basis to bar the drug evidence at a new trial for drug-related offenses. But nothing about the legality of the stop can excuse a violent attack on the Trooper. Even if the stop was unlawful, there is no basis to extend the exclusionary rule to bar relevant evidence at a trial for the attempted murder of a police officer after an unlawful stop. Such a rule would help immunize lawless acts of violence and deprive the jury of learning the motive for the attack, and it would not discourage police misconduct or enhance trust in the courts. (pp. 36-39)

5. Defendants also seek racial profiling discovery to challenge the Trooper's credibility at a new trial. The type of discovery envisioned by Ballard and Judge Barisonek's orders can be relevant at a suppression hearing to claim selective enforcement, but that is not a defense on the merits to the charges and is directed to the court, not a jury. Evidence of racial profiling discovery also would not be admissible at trial under N.J.R.E. 404(b), which permits evidence of "other crimes, wrongs, or acts" to prove motive or intent "when such matters are relevant to a material issue in dispute." A judge has already examined the Trooper's personnel file and found nothing discoverable in it. Evidence of other troopers' stops and training would have no bearing on Trooper Acevedo. Even if evidence of a pattern of wrongdoing existed, introducing it would lead to a substantial mini-trial on a collateral issue, as jurors heard evidence about the validity of other stops and the credibility of the Trooper and others involved in those stops. This would distract the jury and confuse the issues. Possible profiling evidence also would not be admissible under N.J.R.E. 608(b), which provides that witness credibility may be attacked by evidence that the witness "made a prior false accusation against any person of a crime similar to the crime with which defendant is charged." That rule does not encompass the facts here, where defendants stand convicted of attempted murder and seek discovery to show that the Trooper stopped other drivers because of their race and fabricated the reasons for those stops. (pp. 39-45)

6. In sum, if defendants were trying to suppress cocaine found in their car at a pretrial hearing in a drug prosecution or to seek a new trial on drug charges, they would be entitled to racial profiling discovery. But they have offered no viable theory about how that evidence could be used during trial. Even if they discovered probative evidence and a rule of evidence supported its admission, it would have to be weighed against the risk of undue prejudice, misleading the jury, and the time needed to present it under N.J.R.E. 403. Further, to obtain a new trial based on newly discovered evidence, defendants would have to show that the evidence "would probably change the jury's verdict." The evidence would have to be evaluated in light of strong proofs corroborating the Trooper's testimony. (pp. 45-47)

The judgment of the Appellate Division is REVERSED.

JUSTICES LaVECCHIA, ALBIN, HOENS, and PATTERSON and JUDGE WEFING (temporarily assigned) join in CHIEF JUSTICE RABNER's opinion.

Argued April 25, 2012

CHIEF JUSTICE RABNER delivered the opinion of the Court. In this case, we must decide whether defendants are entitled to racial profiling discovery to challenge their convictions for attempted murder. The convictions relate to defendants' attack on a law enforcement officer after a motor vehicle stop.

According to the evidence at trial, a New Jersey State Trooper stopped two Hispanic men for speeding on the New Jersey Turnpike in 1992. As the officer questioned the men immediately after the stop, they tried to overpower him. One defendant grabbed the officer around the neck and began to choke him, while the other tried to get control of the officer's firearm. During that struggle, the officer ultimately broke the second defendant's grip, retrieved his weapon, and fired twice, hitting the defendants. The police later obtained a search warrant for defendants' car and found about fourteen ounces of cocaine in it.

At trial, the State introduced the cocaine seized after the stop as evidence in support of all of the charges. Both defendants were convicted for drug charges as well as attempted murder and related offenses.

Years later, in a motion for post-conviction relief, defendants sought racial profiling discovery to prove that the stop was racially motivated. After a series of rulings at the trial and appellate levels, the Attorney General dismissed the drug convictions, leaving only defendants' convictions for attempted murder and related offenses. Defendants now continue to press for profiling discovery to challenge the remaining convictions. They contend that they need the discovery to demonstrate that the drug evidence should have been suppressed.

That sequence of events raises the following question: whether the exclusionary rule applies to the prosecution of a violent attack on a police officer if the initial stop was unlawful.

The law can and must protect citizens from racial profiling at the same time it protects law enforcement officers from violent attacks in the field. Both are intolerable, and this case does not require us to choose between those principles.

When acts of racial profiling occur, there are very real legal consequences. To deter official misconduct, the exclusionary rule typically bars the use of any drugs seized after an unlawful stop in a prosecution for violating the drug laws. But extending the exclusionary rule to a prosecution for a violent attack on a police officer after an illegal stop would not serve any of the rule's purposes. Instead, such an approach would help immunize defendants for separate, deliberate, violent acts that are unrelated to the initial stop.

Because we conclude that the exclusionary rule does not apply in this case -- to a prosecution for attempted murder after a possibly unlawful stop -- there is no need for further discovery to determine whether the stop was in fact illegal. In short, defendants could not take the law into their own hands and later seek to suppress evidence in a prosecution for attempting to kill a trooper. Instead, they should have peacefully obeyed the officer's directions and tried to suppress the drugs in court.

Defendants also seek racial profiling discovery to challenge the trooper's credibility at a new trial. Under the rules of evidence, specific instances of conduct are generally inadmissible to attack a witness's credibility at trial, aside from certain limited exceptions. Defendants offer no viable theory to use possible evidence of racial profiling at trial. We also note that the trial judge reviewed the trooper's personnel file and found "nothing whatsoever of a discoverable nature in the file."

For those reasons, we reverse the judgment of the Appellate Division directing that discovery be produced.

I.

A.

The State presented the following evidence. On August 16, 1992, Trooper David Acevedo of the New Jersey State Police was patrolling Route 78 in Warren County. At about 10:00 p.m., he saw a blue Pontiac driving at a high rate of speed. According to the Trooper's radar unit, the driver was traveling sixty-eight miles per hour in a fifty-five mile per hour zone.

The Trooper pulled the car over onto the shoulder of the road. Two men were in the front seats: defendant Herrerra had been driving, and defendant Gonzalez was in the passenger seat. The Trooper approached the driver's side and asked Herrerra for his license and registration. He produced a Missouri driver's license in the name of "Herrerra, Alfonso Lorenzo," with a Kansas City address. He could not find the car's registration but handed the Trooper a Pennsylvania title issued to "Lorenzo

A. Herrera" of Reading, Pennsylvania. Thus, the first and middle names appeared in a different order on the documents; the last name was spelled differently with three or four "R's";*fn1 and the documents listed different addresses.

The Trooper directed Herrerra to get out of the car, and the two spoke behind the Pontiac. In response to the Trooper's questions, Herrerra said he had come from New York but could not remember from where specifically. When the Trooper asked about the passenger, Herrerra identified him as a friend whose name was "Nelson" but said he could not recall his last name.

The Trooper then approached the passenger and asked for identification. Gonzalez provided a Missouri driver's license with the same street address in Kansas City as defendant Herrerra's but a different apartment number. Gonzalez also said that he was traveling from New York but could not remember from where. The Trooper, by now concerned, asked Gonzalez to get out of the car, and the two continued speaking in front of the Pontiac. In response to a question about the driver, Gonzalez described him as a friend and identified him by a name other than what appeared on Herrerra's license and title.

At that point, the Trooper returned to Herrerra and asked for permission to search the Pontiac. Herrerra agreed to the request and said he preferred a consent form written in Spanish. The Trooper retrieved the form from the police car and called for backup. He then explained the consent form to Herrerra in Spanish. In response, Herrerra said he did not understand the form and wanted Gonzalez to explain it to him.

The Trooper continued to keep the men separate from each other and reviewed the form with Gonzalez behind the police car. Midway through the explanation, Herrerra began walking toward the Trooper while saying, "I'll sign it. I'll sign it." At that moment, Gonzalez grabbed the Trooper from behind in a "bear hug." Herrerra then charged the Trooper and grabbed him around the neck.

All three fell to the grassy part of the shoulder. The Trooper landed on top of Gonzalez, who tugged at the Trooper's weapon and tried to remove it from its holster. Meanwhile, Herrerra had his hands around the Trooper's neck and was choking him. During the struggle, the Trooper -- who speaks Spanish --heard Gonzalez and Herrerra direct each other in Spanish: Gonzalez told Herrerra to choke the Trooper; and Herrerra urged Gonzalez to "get it" -- referring to the gun. The Trooper pressed down on his weapon to prevent Gonzalez from getting hold of the gun, and eventually broke Gonzalez's grip. Once the Trooper retrieved the weapon from his holster, he fired two shots at the defendants. One round hit Herrerra in the buttocks. The other hit Gonzalez in the area of his right knee.

Herrerra fell to the ground, and Gonzalez began to run toward the Pontiac. The Trooper yelled at Gonzalez to stop and get down, and he complied. The Trooper then radioed for backup again and advised that shots had been fired. Soon after, other officers arrived and arrested Herrerra and Gonzalez. The two were taken to the hospital by ambulance.

The police obtained a search warrant for the Pontiac the following day. They found a little more than fourteen ounces of cocaine in the car, which had an estimated street value of about $40,000.

Defendants offered conflicting accounts of the incident. Herrerra testified at trial that he was stopped after driving sixty miles per hour. He stated that he gave the Trooper his license and title but refused to consent to a search of the car. According to Herrerra, the Trooper then spoke with Gonzalez. Afterward, the Trooper reportedly told Herrerra that "[w]hether you want to or not, I am going to search the car." In response, Herrerra said that he told the Trooper, "you are a mother ******. Do whatever you want to do, I'm not going to sign any paper and I turned around. And when I turned, he shot me." Herrerra added that he never touched the Trooper.

Herrerra also disputed testimony that Detective Nicholas Olenick offered. The Detective described meeting with Herrerra in the hospital two days after the incident on August 18, 1992. According to the Detective, after Herrerra waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), he relayed the following: the Trooper asked if there were weapons in the car and asked Herrerra to sign a consent to search form; Herrerra was angry about being asked whether the steering wheel lock bar was a weapon; he asked for Gonzalez's assistance with the form and the two switched places; he returned soon after and told the Trooper to "go ahead and search, but if you don't find anything you will be in trouble"; the Trooper pushed him away with his clipboard; he responded by grabbing the Trooper by the chest; during the ensuing struggle, Gonzalez touched the Trooper's right shoulder; all three men slipped and fell to the ground; and the Trooper fired shots while Herrerra faced him nearby.

Herrerra repudiated the statement. At a pretrial hearing, he testified that he did not recall meeting the Detective or any police officers in the hospital. At trial, he denied ever speaking with the Detective. A nurse, however, testified that on August 18, 1992, two members of the State Police spent about two hours with Herrerra. The nurse did not witness the meeting but explained that Herrerra was alert, oriented, and cooperative that day. A sheriff's officer assigned to guard Herrerra in the hospital also testified that the meeting took place.

Gonzalez made a statement to the State Police on August 28, 1992, while in the Warren County Jail. He acknowledged that he knew about the cocaine in the car, which he said belonged to Herrerra. Gonzalez added that Herrerra initially pushed the Trooper but that neither he nor Herrerra attempted to take the Trooper's gun. When asked about cuts and bruises to the Trooper's neck and hand, Gonzalez replied that the Trooper must have done that to himself.

A grand jury in Warren County indicted both defendants on March 25, 1993. The charges addressed the cocaine found in the Pontiac as well as the attack on the Trooper. In particular, the indictment contained the following allegations: third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) & (b)(1); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5); first-degree attempted murder, N.J.S.A. 2C:11-3(a)(1) & (2) & 2C:5-1; third-degree attempted unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) & 2C:5-1; second-degree attempted possession of a handgun for an unlawful purpose, ...


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