STATE OF NEW JERSEY v. MARK T. BARNES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6844-03T46844-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK T. BARNES,

Defendant-Appellant.

____________________________________

 

Submitted September 14, 2005 -- Decided

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 99-04-0530.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gilbert G. Miller, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel and on the letter-brief).

PER CURIAM

Defendant appeals the denial of his post-conviction application for racial profiling discovery and new trial. We affirm.

On January 19, 1999, Linden Police Office William Turbett, along with Roselle Police Officer Joseph Osty, were on joint patrol. Turbett saw a vehicle go through a stop sign without stopping. A chase ensued, ultimately ending up with the driver's arrest. The driver was defendant. The upshot was a jury conviction for second-degree eluding, along with a disorderly persons resisting arrest. A persistent offender extended term of fourteen years with a six-year disqualifier was imposed on the eluding conviction. In March 2003, we affirmed the conviction and sentence. State v. Barnes, A-2481-01 (App. Div. March 5, 2003).

Thereafter, defendant moved for discovery of Turbett's personnel records and for a new trial. In doing so, defendant pointed out that before becoming a Linden Police Officer, Turbett had been a New Jersey State Trooper. Defendant sought discovery to establish a claim of racial profiling. See generally, State v. Ballard, 331 N.J. Super. 529, 542 (App. Div. 2000).

In denying the motion, the trial judge said:

[In State v. Clark, 345 N.J. Super. 349 (App. Div. 2001),] the Appellate Division addressed the issue of whether a post- conviction petitioner is entitled to apply for discovery to support a claim he was a victim of racial profiling. The petitioner asserted . . . [t]hat the proofs needed to support his racial profiling claim were not available at the time of trial and direct appeal. Petitioner noted that the [Interim Report of the State Police Review Teams Regarding Profiling Allegations] was not released until April of 1999, over two years following his motion to suppress and conviction.

. . . .

Based on the totality of the circumstances, the Appellate Division in Clark found that the petitioner was entitled to the requested discovery. The Appellate Division considered the following factors[:] one, petitioner filed a timely PCR petition; two, the petitioner had filed a timely pretrial motion to suppress the evidence which was obtained following the stop on the Turnpike by the state trooper[;] [three], the stop and consent search issues occurred in October 1995, after the court in [State v. Soto, 324 N.J. Super. 66 (Law Div. 1996),] found that profiling by the state troopers was occurring on the Turnpike but before the Attorney General and State Police endeavored to remedy the problem; four, the petitioner challenged the stop and search on his unsuccessful direct appeal.

We have none of those factors in our case. There was no motion to suppress, . . . everything occurred with respect to trial and with respect to conviction post interim report, and the petitioner never challenged this on direct appeal either.

. . . .

The defendant is moving for a new trial on the basis of newly discovered evidence. However, he has not presented any evidence and is simultaneously moving to obtain discovery of racial profiling in support of his motion for new trial. This is the procedure that was discussed in Ballard and in [State v. Kennedy, 247 N.J. Super. 21 (App. Div. 1991)]. This is really a fishing expedition. Number one, it does not involve the State Police; number two, there's nothing presented in this court to show there was either a de jure or a de facto policy of racial profiling by the Linden Police. The only assertion made by this defendant is because Turbett was previously employed by the State Police, therefore, he must have been using racial profiling as a guise to stop motor vehicles while he was employed in Linden.

He has done nothing, meaning the defendant has done nothing[,] to show a nexus between any activities or training that Turbett may have received by the State Police with what he was doing as a police officer individually in Linden or that in fact Linden as a department adopted the policies de jure or de facto of the New Jersey State Police as related to racial profiling.

. . . [T]he Attorney General's [April 20, 1999,] Interim Report, among the discovery items requested by the defendant, does not qualify as newly discovered evidence. It was published. It was public at that time. It had been public for an extended period of time, with substantial national publicity regarding the admissions -- I will use that term as contained in the report -- which supported the finding in Ballard that said the burden has been met, initial burden met to establish sufficient proofs to warrant additional discovery to be furnished.

There is no such item or admission by the Linden Police Department and the defendant provides nothing to support his jump from the State Police training of Officer Turbett to a policy of racial profiling either by Turbett himself in Linden or de facto or de jure policy by the Linden Police Department.

The discovery material that he speaks of, meaning the interim report and the knowledge that Turbett was with the State Police prior to the time that he was employed as a Linden Police Officer[,] was known to the defendant at the time of trial and before direct appeal. The defendant never raised the issue.

. . . .

Even if the defendant obtained the requested discovery, the motion for new trial should still be denied. Again, in order for defendant to succeed on a motion for a new trial on newly discovered evidence, it has to be material, and if it cannot be reasonably discoverable prior to trial, it must be of a nature so as to probably change the jury's verdict. State v. Carter, 85 N.J. 300, 314 (1981).

Here, I've already made a finding the evidence was reasonably discoverable, at least during trial, soon after trial and certainly before appeal. The evidence also is not material as [it] . . . would probably [not] change the verdict.

I'll note that the defendant was charged with eluding and a fourth degree resisting arrest offense, of which he was eventually found guilty of a disorderly persons [offense] as opposed to a fourth degree offense of resisting.

It is well established law that after an individual receives a signal from a law enforcement officer to stop he has a duty to bring his vehicle to a full stop immediately. In this case, he was not charged with any, as an example, controlled dangerous substance that was seized as a result of a profiling stop.

There is a whole series of cases that deal with this particular issue. I'm not going to cite all of them but I will deal with some of them. State v. Casimono, 250 N.J. Super. 173 (App. Div. 1991) [, certif. denied, 127 N.J. 558 (1992)]; State v. Battle, 256 N.J. Super. 268 (App. Div. 1992) [, certif. denied, 130 N.J. 393 (1992)]; United States v. Bailey, 691 F.2d 1009 (11th Cir. 1982) [, cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1987)].

Although these cases dealt with issues where a person's initial stop may have been questionable in terms of being a Fourth Amendment violation, the defendant either chose to physically resist and fight with the officer or chose to flee. Every one of these cases, including the case cited by the State, State v. Seymour, 289 N.J. Super. 80 (App. Div. 1996), found that where a defendant receives a signal from a police officer to halt, to stop their vehicle, even if the stop is questionable or if the defendant decides to take the law in his own hands and resist an arrest, even if illegal, he commits an independent crime separate and apart from the initial stop and any subsequent act on his part is considered as a new incident for which he is directly responsible. And that is clearly what happened in this case.

He was charged with an eluding and resisting arrest. I'm not going to delineate all the facts contained in the transcript. The bottom line is he received a signal from a police vehicle, which he knew to be a police vehicle from the nature of the testimony, to stop his car; he accelerated, went through numerous city blocks, traveling at speeds up to 50 miles an hour, slid down in the car, sped up the car, eventually fled from the car through yards, ran a great distance and then eventually was involved in an altercation with the police when he was stopped.

This clearly fits within the category of all the cases that I previously cited as an independent act and one need only consider the risk that the public is placed in when a defendant decides to take the law in his own hands, even if he honestly believes that in fact the stop is illegal.

You cannot, you cannot as a member of the public start making determinations in your mind as to whether or not the police actions are legal or illegal and take the law into your own hands.

That's exactly what Mr. Barnes did. He committed a crime independent, even if you concede that there was racial profiling, which I don't he committed crimes independent of any unlawful acts that any policy officer may have been involved with in stopping that vehicle, and for those reasons, there is no way that the verdict would have been other than what was entered by the jury in this particular case.

Having heard all of the facts as presented by the State, even if the defendant obtained the requested discovery, his motion for a new trial would still be denied based on those factors.

On appeal, defendant contends:

POINT I: THE TRIAL COURT ERRONEOUSLY DEPRIVED DEFDENDANT OF DISCOVERY WHICH HE COULD USE TO PURSUE HIS RACIAL PROFILING CLAIM.

POINT II: THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR A NEW TRIAL WAS ERRONEOUS, AS DEFENDANT HAD NOT BEEN AFFORDED THE OPPORTUNITY TO CONDUCT DISCOVERY.

We have carefully considered these contentions in light of the record and applicable law. We are convinced they are without merit and affirm for the reasons set forth by Judge Walter R. Barisonek. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

(continued)

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A-6844-03T4

September 21, 2005