State v. Bruno Gibson (072257) , 219 N.J. 227 ( 2014 )

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 of New Jersey v. Bruno Gibson (A-11-13) (072257)
Argued March 31, 2014 -- Decided September 16, 2014
CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this appeal, the Court determines the correct remedy when a municipal court convicts a defendant solely
based on evidence adduced in a pre-trial suppression hearing, without defendant’s consent but without objection.
On November 17, 2007, Winslow Township Police Patrolman Carl Mueller stopped defendant Bruno
Gibson. According to Mueller, after approaching the car, he detected the odor of alcohol and defendant admitted
that he had been drinking. As a result of defendant’s poor performance on two field sobriety tests and the odor of
alcohol, Mueller decided to arrest defendant. Defendant resisted and had to be subdued. Defendant was charged
with DUI, reckless driving, and failure to signal, and was indicted for third-degree aggravated assault on a police
officer, third-degree resisting arrest, and two counts of fourth-degree subjecting a law enforcement officer to bodily
fluid. Following defendant’s sentence to two years non-custodial probation pursuant to a guilty plea, the motor
vehicle charges were remanded to the municipal court.
Defendant appeared before the municipal court for a pre-trial hearing to suppress the fruits of the stop and
subsequent arrest. Following Mueller’s testimony at the suppression hearing and review of video footage of the
stop, the municipal court determined that reasonable suspicion for the stop and probable cause for defendant’s arrest
existed, and denied defendant’s motion to suppress. After the suppression hearing, the State inquired whether it was
necessary for Mueller to testify again at trial since the State would be relying strictly on Mueller’s physical
observations. The court asked defense counsel whether there was sufficient basis for the court to find beyond a
reasonable doubt that defendant was intoxicated. In response, defense counsel commenced his summation, arguing
that the State’s evidence failed to satisfy its burden of proof. The court did not ask whether defense counsel wanted
to conduct further cross-examination of Mueller, and counsel did not object. Relying on the observational evidence,
the municipal court found defendant guilty of DUI and failing to signal.
Following a trial de novo in the Law Division, the court found that the State carried its burden of proof to
establish that defendant drove while intoxicated, describing the evidence as “overwhelming.” The Law Division
noted that Mueller’s testimony was credible, unrebutted and corroborated by the videotape. With respect to
defendant’s argument that the municipal court violated his right to procedural due process by deciding the merits of
the case based on the suppression motion record, the Law Division recognized that the municipal court did not
follow normal procedures, but noted that defense counsel neither objected, sought to admit additional evidence, nor
sought additional cross-examination. The Law Division concluded that defendant failed to show he was prejudiced.
On appeal, the Appellate Division reversed, concluding that the municipal court was not empowered to
consider the pre-trial hearing evidence in the trial on the merits, and to proceed to closing argument without
expressly asking defense counsel if he intended to call witnesses. The panel emphasized that the suppression
hearing and trial are governed by different rules and determine discrete issues. Moreover, differing standards of
proof influence the scope of cross-examination and presentation of witnesses in each proceeding, and suppression
hearings may include evidence that is inadmissible at trial. The panel also noted that a person charged with DUI has
broad procedural rights, including the right to confront the witnesses and evidence against him. Determining that
the State presented no evidence to permit either the municipal court or the Law Division to find beyond a reasonable
doubt that defendant operated a motor vehicle under the influence of alcohol, the panel directed the Law Division to
enter a judgment of acquittal. This Court granted the State’s petition for certification. 215 N.J. 488 (2013).
HELD: Due to the fundamental differences between a pre-trial motion to suppress and a trial on the merits, the best
1
practice is to conduct two separate proceedings. However, the motion record may be incorporated into the trial
record if both parties consent and counsel are given wide latitude in cross-examination. Where the evidence from a
pre-trial hearing is improperly admitted at the trial on the merits, the correct remedy is remand for a new trial.
1. Municipal court proceedings are quasi-criminal proceedings in which defendants are entitled to due process of
law. A defendant charged with a DUI enjoys a broad array of procedural rights, including a trial in accordance with
the Rules of Evidence and the right to confront witnesses. State v. Allan, 283 N.J. Super. 622 (Law Div. 1995) is
the only reported opinion addressing the practice of incorporating the evidence from a suppression motion into the
trial record. There, the Law Division cautioned against the continued use of this common practice, finding that the
better practice is to conduct two separate proceedings. However, the Law Division noted that the motion testimony
and exhibits could be incorporated in the trial record if both counsel consented and defense counsel had been given
wide latitude during cross-examination. (pp. 13-16)
2. Error in a pre-trial proceeding or trial may require reversal of a conviction and remand for a new trial,
particularly in the case of an error that impacts a fundamental right affecting the framework of the trial. Here,
incorporation of the motion record into the municipal court trial record deprived defendant of his right to complete
cross-examination of the arresting officer, thereby implicating his fundamental right to confront the witnesses
against him. Although the error contravened a fundamental right, it did not undermine the legitimacy of the trial
itself, and the prejudice it caused was readily assessed. Therefore, the remedy for such an error is reversal of the
conviction and a new trial. (pp. 16-18)
3. In certain circumstances, an error that interferes with a defendant’s right to confront the witnesses against him
may also produce a factual record that provides insufficient evidence to support a finding of guilt beyond a
reasonable doubt, thereby implicating a defendant’s double jeopardy guarantee and preventing the State from
retrying the case. However, the Double Jeopardy Clause permits a retrial when evidence, without which a
conviction cannot be supported, is erroneously admitted against a defendant. Reversal for such trial error is
appropriate because it implies nothing about a defendant’s guilt or innocence, but rather that the judicial process by
which the defendant was convicted was defective in some fundamental respect. Under those circumstances, a retrial
merely recreates the situation that would have been obtained had the trial error not occurred. (pp. 18-22)
4. With respect to incorporation of the record of the motion to suppress into the trial record, the Court subscribes to
the rule set forth in Allan. In light of the separate nature of each proceeding, the limited scope of a suppression
motion, and the different standards of proof governing each proceeding, the better practice is to conduct two
separate proceedings. On the other hand, if both counsel stipulate that testimony and exhibits from the pre-trial
motion may be incorporated into the trial record and counsel are given wide latitude in cross-examination in
connection with the issues raised, the trial court may use the pre-trial record. Here, without the improperly-admitted
video evidence and testimony from the suppression hearing, the State could not meet its burden of proof. Since this
error was procedural and did not affect the sufficiency of the evidence, the proper remedy is a remand to the
municipal court for a trial based on the observational evidence, with defendant being afforded the full opportunity to
cross-examine Mueller and test the State’s proofs. Under these circumstances, a new trial does not violate
defendant’s double jeopardy right. (pp. 22-28)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the municipal
court for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-
VINA; and JUDGE RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF’s opinion.
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SUPREME COURT OF NEW JERSEY
A-11 September Term 2013
072257
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
BRUNO GIBSON,
Defendant-Respondent.
Argued March 31, 2014 – Decided September 16, 2014
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 429 N.J. Super. 456 (2013).
Jason Magid, Assistant Prosecutor, argued
the cause for appellant (Warren W. Faulk,
Camden County Prosecutor, attorney).
George R. Szymanski argued the cause for
respondent.
JUDGE CUFF (temporarily assigned) delivered the opinion of
the Court.
Defendant Bruno Gibson was convicted of driving under the
influence (DUI), in violation of N.J.S.A. 39:4-50. At trial,
the conviction was entered solely on the basis of evidence
elicited at a pre-trial hearing to suppress the fruits of the
stop and subsequent arrest. The Appellate Division reversed
defendant’s conviction, and entered a judgment of acquittal,
holding that a trial court sitting as a fact-finder in a quasi-
1
criminal matter may not rely on the evidence heard in a pre-
trial suppression hearing as proof of guilt in the trial on the
merits without defendant’s consent.
This appeal requires the Court to determine the correct
remedy when the municipal court convicts a defendant solely
based on evidence adduced in a pre-trial suppression hearing,
without defendant’s consent but without objection. Due to the
fundamental differences between the purposes of a suppression
hearing and a trial on the merits of the charges, the evidence
from the pre-trial hearing cannot be used in a subsequent trial
on the merits, without a stipulation from both parties.
However, the correct remedy for this error is a remand for a new
trial rather than a judgment of acquittal. We therefore reverse
the judgment of the Appellate Division and remand the case to
the municipal court for proceedings consistent with this
opinion.
I.
A.
The following facts are derived from the pre-trial
suppression hearing. Winslow Township Police Patrolman Carl
Mueller testified that on November 17, 2007, at around 4:00
a.m., he stopped defendant after defendant’s car passed the
officer’s police vehicle. Officer Mueller testified defendant
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was traveling at a “high rate of speed,” and failed to use his
turn signal when returning to the normal travel lane.
After he approached the vehicle, Officer Mueller detected
an odor of alcoholic beverage. Defendant admitted that he had
been drinking. Officer Mueller ordered defendant to perform
field sobriety tests and defendant acquiesced. According to the
officer, defendant performed poorly on the one-legged stand and
the walk-and-turn tests. Officer Mueller testified that he
decided to arrest defendant because he believed defendant was
intoxicated due to his poor performance on the two field
sobriety tests and the odor of alcoholic beverages. When
defendant resisted arrest, the officer requested backup, and
eventually resorted to the use of pepper spray to subdue
defendant.
Defendant was charged with DUI, in violation of N.J.S.A.
39:4-50, reckless driving, in violation of N.J.S.A. 39:4-96, and
failure to signal, in violation of N.J.S.A. 39:4-126. A Camden
County Grand Jury also indicted defendant for third-degree
aggravated assault on a police officer, in violation of N.J.S.A.
2C:12-1(b)(5)(a) (count one), third-degree resisting arrest, in
violation of N.J.S.A. 2C:29-2(a)(3) (count two), and two counts
of fourth-degree subjecting a law enforcement officer to bodily
fluid, in violation of N.J.S.A. 2C:12-13 (counts three and
four). On December 1, 2008, defendant pled guilty to count one
3
of the indictment and was sentenced to two years non-custodial
probation. The remaining counts of the indictment were
dismissed and the motor vehicle charges were remanded to
municipal court for disposition.
On May 26, 2010, and October 27, 2010, defendant appeared
before the municipal court initially for a suppression hearing,
and then for a trial. At the May 2010 suppression hearing,
Officer Mueller testified to the above facts. The pre-trial
hearing continued in October 2010, when the defense introduced
video footage of the stop. Defense counsel and the prosecutor
contested whether the video supported Officer Mueller’s
description of defendant’s performance on the field sobriety
tests. Following review of the videotape and the argument of
counsel, the municipal court determined that reasonable
suspicion for the motor vehicle stop and probable cause for
defendant’s arrest existed. The municipal court stated that
[w]ith regard to the second prong of the
motion, . . . on the first test, the one leg
stand, . . . I saw the defendant lift his
leg up and quickly put it down. He did not
hold for 20 seconds. . . . I would say it
was more like two seconds[.] He never
walked heel-to-toe.
It looked like he was attempt[ing] to
walk heel-to-toe, but he wasn’t successful
at all with that . . . he took four steps
then stopped. He failed.
The resisting arrest . . . comes into
play, not that he was charged with it, but
4
it appeared as though [defendant] was not
able to understand the instructions he was
given. Maybe he didn’t understand the
instructions on the -- the psychophysicals,
but he clearly couldn’t do it, and the --
that entire incident involving his refusal
or inability to get into the vehicle, he was
taken into custody, and the -- the
instructions were clear, get into the
vehicle, and how long did that take?
I think that there is sufficient
probable cause for the State to proceed with
the -- the charge of driving while
intoxicated[.]
After denying defendant’s motion to suppress, the municipal
court discussed the trial on the merits:
THE COURT: Reckless driving stands, and the
failure to signal. I find that there is
probable cause for those charges. We ready
to start the trial?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: Now, Mr. Prosecutor, in addition
to Officer Mueller, were there other
officers that were being called?
[PROSECUTOR]: I don’t think we need anyone
else, your Honor.
THE COURT: Okay.
The prosecutor told the court that the blood alcohol reading
would have admissibility problems in court because “it wasn’t
[done] with our kit, and we don’t really know who drew it.” The
State therefore informed the municipal court it would be relying
strictly on the physical observations of Officer Mueller.
5
The prosecutor was prepared to present Officer Mueller to
testify at the trial but inquired whether the officer should
testify again. In response, the municipal court turned to
defense counsel, who moved to dismiss the charges. The
following exchange occurred between the municipal court and
defense counsel:
THE COURT: Mr. Szymanski?
[DEFENSE COUNSEL]: We’d move for the
dismissal of all the charges against him if
there is not going to be any evidence
presented in the case on behalf of the
witness, it’s not necessarily –- in other
words. . . .
The court interrupted defense counsel mid-sentence to ask
counsel if the evidence presented in the pre-trial hearing
satisfied the State’s burden of proof.
THE COURT: There is no evidence of a
reading. The officer did testify that he
smelled odor of alcohol, and as you and I
well know and the Prosecutor knows, that
does not establish guilt beyond a reasonable
doubt.
So what I have before me at this
juncture, I have the officer’s testimony
that he smelled the odor of alcohol. I have
the –- the failure of the defendant to
perform the psychophysicals and then the
demeanor of the defendant.
What I need to hear from you is whether
or not you feel there is sufficient basis
for the Court to find beyond a reasonable
doubt that this defendant was intoxicated.
6
Defense counsel responded by commencing his summation, arguing
that the State’s evidence of speeding, the odor of an alcoholic
beverage, and the results of the field sobriety tests failed to
satisfy the State’s burden of proof. The prosecutor then
presented his summation. The municipal court, relying on the
observational evidence, delivered its decision and found
defendant guilty of DUI and failing to signal, but not guilty of
reckless driving.
The municipal court did not ask if defense counsel wished
to conduct further cross-examination of Officer Mueller. When
the municipal court pronounced its findings of fact, defense
counsel did not object. The municipal court imposed a ninety-
day license suspension and a $250 fine, all appropriate fees,
costs, and surcharges, and ordered completion of twelve hours at
the Intoxicated Driver Resource Center. At defense counsel’s
request, the municipal court stayed the sentence for twenty days
to permit him to file an appeal in the Law Division. After
sentencing, the court re-opened the record to formally admit the
videotape into evidence.
B.
A trial de novo in the Law Division occurred in May 2011.
The parties presented no oral argument. The Law Division found
that the State carried its burden of proof to establish that
defendant drove while intoxicated. In fact, the Law Division
7
found that “[t]here was overwhelming evidence of . . .
defendant’s guilt, even absent any blood alcohol concentration
reading from a breathalyzer.” The court found that the
officer’s observation of an odor of alcohol on defendant’s
breath was unrebutted. The Law Division also found that the
videotape corroborated the officer’s testimony.
Further, the Law Division found credible the officer’s
testimony regarding defendant’s behavior when he passed the
officer’s vehicle. The court found that defendant did not
activate the turn signal when he changed lanes to pass the
officer or when he resumed the normal travel lane.
Addressing defendant’s argument that the municipal court
violated his right to procedural due process by deciding the
merits of the case based on the suppression motion record, the
Law Division cited defendant’s “multiple failed attempts at two
field sobriety tests,” his admission that he had been drinking
that evening, and his “hostile behavior and demeanor during the
arrest.” The Law Division distinguished State v. Allan, 283
N.J. Super. 622, 630 (Law Div. 1995), which holds that a
municipal court should not incorporate suppression hearing
evidence into the trial on the merits unless defendant receives
notice of the court’s intention to proceed in this manner and
consents. Moreover, the court noted that Allan prescribes that
counsel must be “given wide latitude in cross-examination in
8
connection with the issues raised during the motion to
suppress[.]” Ibid. Here, the Law Division recognized that the
municipal court did not follow normal procedures but noted the
lack of objection from defendant:
While acknowledging neither party
formally incorporated Officer Mueller’s
testimony in evidence, the Court notes that
after a probable cause hearing defense
counsel did not object to the proceedings
and made closing arguments based on
testimony he now claims was not in evidence
in trial.
The Defendant raised no objection by
defense [c]ounsel, did not seek to introduce
additional testimony, nor did he seek
additional cross-examination . . . . The
Defendant cannot now rely on evidence, make
arguments on said evidence and subsequently
deny the existence of that very evidence.
While the proceedings in the lower court did
not follow the normal procedures, the
Defendant did not raise any objection to the
procedure, was not limited in their cross-
examination unlike the case in Allan and
failed to show he was prejudiced by the
procedure.
C.
On appeal, the Appellate Division reversed the Law Division
judgment. In a published opinion, the appellate panel concluded
that the municipal court was not empowered, over defendant’s
objection, to consider the pre-trial hearing evidence in the
trial on the merits, and to proceed to closing argument without
expressly asking defense counsel if he intended to call
witnesses, including defendant. State v. Gibson, 429 N.J. Super.
9
456, 463 (App. Div. 2013). The panel emphasized that a
suppression hearing and a trial are “designed to determine
discrete issues and are governed by different rules.” Id. at
465. The discrete nature of the proceedings influences the
presentation of the evidence. It noted, for example, that if
evidence existed that defendant’s performance on the field
sobriety tests was due to a medical condition, then that
evidence would inform the issue of probable cause to arrest
rather than intoxication, but might bear little or no
relationship to the underlying charge. Id. at 466. Further,
the panel noted that the standards of proof differ -- proof
beyond a reasonable doubt governs the trial, while proof by a
preponderance of the evidence governs a probable cause hearing.
Id. at 465. The panel stated that those differing standards
influence the scope of cross-examination and the presentation of
witnesses. Ibid. Furthermore, the panel commented that a
suppression hearing may include evidence inadmissible in a trial
on the merits, such as hearsay. Id. at 466.
The appellate panel also recognized the broad procedural
rights accorded to a person charged with DUI. Id. at 464-65.
Specifically, the panel identified the heightened burden of
proof, a defendant’s right to confront the witnesses and
evidence against him, and the inability of the de novo trial
court to enhance the sentence imposed in the municipal court.
10
Id. at 464. It held that those rights “coexist with a general
right to procedural due process,” ibid., which, in turn, informs
the rule that a trial court may not compromise those rights and
that the Law Division was required to strike the incorporated
evidence and to determine if the State had met its burden of
proof, id. at 468-69. Invoking that remedy, the panel
determined that the State presented no evidence to permit either
the municipal court or the Law Division to find beyond a
reasonable doubt that defendant operated a motor vehicle under
the influence of alcohol, id. at 468, and directed the Law
Division to enter a judgment of acquittal, id. at 469.
This Court granted the State’s petition for certification.
215 N.J. 488 (2013).
II.
A.
The State “does not object to the rule of law” pronounced
in the Appellate Division decision. However, it argues that the
remedy for a violation of defendant’s procedural due process
rights is a reversal of the conviction and a remand for a new
trial. The State argues that the Appellate Division relied on
archaic case law to determine that the appropriate remedy for a
violation of defendant’s procedural due process rights is a
judgment of acquittal. Moreover, the State maintains that the
panel ignored the remedy imposed in Allan, supra, a case the
11
panel cited with approval, which ordered a new trial on the
substantive charges.
The State asserts that the panel’s reliance on prior case
law is erroneous because those cases concerned instances where
the State failed to meet its burden of proof due to
insufficiency of the evidence, a discovery violation, or a
combination of both circumstances. Here, the State informed
both the municipal court and defendant that it would rely
exclusively on observation evidence and would call only one
officer as a witness. Thus, because the municipal court had
counsel present argument with respect to whether that
observational evidence was sufficient, the State asserts it did
not admit evidence that was either insufficient or in violation
of a statute.
The State also contends that when a defendant’s right to
confrontation has been abridged, the proper remedy is a reversal
of the conviction and remand for a new trial. The State
analogizes this case to cases in which the trial court
impermissibly admitted either demonstrative or testimonial
evidence without affording the defendant the opportunity to test
the reliability of the evidence. In those cases, the remedy was
a remand for a new trial.
The State finds support for its position in Rule 3:23-8(a),
noting that when an appeal is taken from a municipal court
12
conviction to the Law Division, the “[t]rial of the appeal shall
be heard de novo on the record unless it shall appear . . . the
rights of defendant were prejudiced below in which event the
[Law Division] may either reverse and remand for a new trial or
conduct a plenary trial de novo without a jury.”
B.
Defendant emphasizes the inherent differences between
suppression hearings and trials. Defendant maintains that the
prosecution presented no evidence at trial and the municipal
court committed error in admitting the police videotape into
evidence sua sponte. Defendant asserts that Allan, supra, “is
right on point in supporting the validity of this appeal.”
Defendant further argues that, given fair warning of
incorporation of the suppression evidence into the trial record,
he would have adjusted his questioning or strategy at the
suppression hearing. Defendant argues that exclusion of the
evidence adduced at the suppression hearing is the appropriate
remedy, and once that evidence is excluded, the State failed to
prove beyond reasonable doubt that defendant violated N.J.S.A.
39:4-50.
III.
A.
We begin with some basic principles. “A municipal court
proceeding is a quasi-criminal proceeding in which a defendant
13
is entitled to due process of law. The essence of due process
certainly requires that the parties have adequate notice and
opportunity to know the State’s evidence and to present evidence
in argument and response.” State v. Garthe, 145 N.J. 1, 8
(1996). Although a DUI violation is a quasi-criminal charge --
neither a crime nor an offense under the Criminal Code -- a
defendant charged with DUI enjoys a broad array of procedural
rights. Those include the requirement that the State prove the
elements of the crime beyond a reasonable doubt, State v. Emery,
27 N.J. 348, 353 (1958), a trial in accordance with the Rules of
Evidence, N.J.R.E. 101, the right against self-incrimination,
State v. Stas, 212 N.J. 37, 42 (2012), and the right to confront
the witnesses against him, State v. Kent, 391 N.J. Super. 352,
366 (App. Div. 2007); State v. Berezansky, 386 N.J. Super. 84,
90 (App. Div. 2006), certif. granted, 191 N.J. 317 (2007),
appeal dismissed by 196 N.J. 82 (2008). The right of
confrontation “bars admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable to
testify, and the defendant had a prior opportunity for cross
examination.” Davis v. Washington, 547 U.S. 813, 821, 126 S.
Ct. 2266, 2273, 165 L. Ed. 2d 224, 236 (2006). Errors at a DUI
trial that prevent a defendant from confronting a witness
against him implicate the Confrontation Clause. See Kent,
14
supra, 391 N.J. Super. at 366; State v. Renshaw, 390 N.J. Super.
456, 463 n.4 (App. Div. 2007).
Allan is the only reported opinion that addresses the
practice of incorporating the evidence from a suppression motion
into the trial record. Allan, supra, recognized that it may
have been common practice at that time to incorporate testimony
from the motion to suppress into the trial of the underlying
charges. 283 N.J. Super. at 629-30. Nevertheless, the Law
Division cautioned against continued use of the practice, noting
that municipal court judges had been counselled against it. Id.
at 630. In fact, the Municipal Courts Training Guide
incorporated remarks by Judge Philip S. Carchman at a seminar in
1989, in which he underscored that a motion to suppress and a
trial
are two separate proceedings. The standards
that you would be applying are separate
standards . . . . I think it’s generally a
good practice, given the different standards
of proof which are required in these cases,
that you separate out the motion to suppress
and the issues on the motion to suppress
from the issues on the trial.
[Ibid. (quoting Seminar: Administrative
Office of the Courts Municipal Services
Division, Municipal Court Education
Subcommittee on Vicinage Training, Mercer
Vicinage Seminar, June 30, 1989).]
In Allan, supra, the trial court observed that the better
practice is to conduct two separate proceedings. 283 N.J.
15
Super. at 630. The court, however, stated that the motion
testimony and exhibits could be incorporated in the trial record
if both counsel consented and defense counsel had been given
wide latitude during cross-examination of the State’s witnesses.
Ibid.
B.
A single error or a combination of errors in a pre-trial
proceeding or a trial or both may require an appellate court to
reverse the conviction and to remand for a new trial. See State
v. Jenewicz, 193 N.J. 440, 474 (2008). When an appellate panel
orders a new trial, it has determined that the error deprived
the defendant of a fair trial. State v. Smith, 212 N.J. 365,
404 (2012); State v. Frost, 158 N.J. 76, 87-88 (1999). In some
circumstances, the error may impact a fundamental right that
affects the framework of the trial, thereby undermining the
legitimacy of the trial itself. Johnson v. United States, 520
U.S. 461, 468, 117 S. Ct. 1544, 1549, 137 L. Ed. 2d 718, 728
(1997); State v. Purnell, 161 N.J. 44, 60-61 (1999). This type
of error is sometimes referred to as structural error. State v.
Camacho, ___ N.J. ___, ___ (2014) (slip op. at 23). This Court
has held that summarily rejecting a defendant’s request to
retain counsel of his choice tramples the fundamental right to
counsel of one’s choice. State v. Kates, 216 N.J. 393, 397
(2014). Similarly, we have followed the approach of Snyder v.
16
Massachusetts, 291 U.S. 97, 105-06, 545 S. Ct. 330, 333, 78 L.
Ed. 674, 678 (1934), and held that a defendant’s absence from
every stage of a trial when his presence has a reasonably
substantial relation to a full defense of the pending charges is
a violation of a fundamental right. State v. Auld, 2 N.J. 426,
433-35 (1949); see also Sullivan v. Louisiana, 508 U.S. 275,
277, 113 S. Ct. 2078, 2099, 124 L. Ed. 2d 182, 188 (1993)
(holding erroneous reasonable doubt instruction structural
error); Vasquez v. Hillery, 474 U.S. 254, 261-64, 106 S. Ct.
617, 622-23, 88 L. Ed. 2d 598, 607-09 (1986) (holding unlawful
exclusion of grand jurors of defendant’s race structural error);
Waller v. Georgia, 467 U.S. 39, 48-49, 104 S. Ct. 2210, 2016-17,
81 L. Ed. 2d 31, 39-40 (1984) (holding violation of right to
public trial structural error). The remedy for such error is
normally reversal of the conviction and remand for a new trial.
See, e.g., Neder v. United States, 527 U.S. 1, 8, 119 S. Ct.
1827, 1833, 144 L. Ed. 2d 35, 46 (1999); Camacho, supra, ___
N.J. at ___ (slip op. at 23). In some instances, however, even
a fundamental right, such as a defendant’s right to be present
at trial, may be waived and when waived the error may be
considered harmless. State v. Dellisanti, 203 N.J. 444, 460-61
(2010).
The trial error at issue in this appeal implicates
defendant’s right to confront the witnesses against him.
17
Incorporation of the motion record into the municipal court
trial record deprived defendant of his right to complete cross-
examination of the arresting officer. That error was compounded
in the Law Division on de novo review. That error contravened a
fundamental right, but it did not undermine the legitimacy of
the trial itself. It was also error that permitted the
prejudice caused by that error “[to] be readily assessed.” Id.
at 459. The remedy for such an error is reversal of the
conviction and a new trial. State v. Byrd, 198 N.J. 319, 353-57
(2009); State v. W.A., 184 N.J. 45, 65-67 (2005).
In certain circumstances, an error that interferes with the
right of a defendant to confront the witnesses against him or
her may also produce a factual record that provides insufficient
evidence to support a finding of guilt beyond a reasonable
doubt. In those circumstances, a defendant’s double jeopardy
guarantee is implicated.
The New Jersey Constitution provides that “[n]o person
shall, after acquittal, be tried for the same offense,” N.J.
Const. art. I, ¶ 11, and this clause has been “consistently
interpreted . . . as co-extensive with the guarantee of the
federal Constitution.” State v. De Luca, 108 N.J. 98, 102
(citing State v. Dively, 92 N.J. 573, 578 (1983); State v.
Barnes, 84 N.J. 362, 370 (1980); State v. Rechtschaffer, 70 N.J.
395, 404 (1976); State v. Wolf, 46 N.J. 301, 303 (1966)), cert.
18
denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987).
“[T]he double jeopardy clause ‘protects against a second
prosecution for the same offense after acquittal. It protects
against a second prosecution for the same offense after
conviction. And it protects against multiple punishments for
the same offense.’” De Luca, supra, 108 N.J. at 102 (quoting
North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072,
2076, 23 L. Ed. 2d 656, 664-65 (1969)).
The Double Jeopardy Clause prevents the State from retrying
a case where a conviction has been overturned due to
insufficient evidence. See, e.g., State v. Koedatich, 118 N.J.
513, 519 (1990) (“[I]t is consistent with the guarantee against
double jeopardy to retry a defendant who has succeeded in
obtaining reversal of his conviction based on trial errors . . .
. Where a defendant’s conviction has been overturned due to
insufficient evidence, however, principles of double jeopardy
prohibit retrial.”) (citing United States v. Tateo, 377 U.S.
463, 466, 84 S. Ct. 1587, 1589, 12 L. Ed. 2d 448, 451 (1964);
Burks v. United States, 437 U.S. 1, 11, 98 S. Ct. 2141, 2147, 57
L. Ed. 2d 1, 9-10 (1978)).
In Lockhart v. Nelson, the Supreme Court held that the
Double Jeopardy Clause does permit a retrial “when a reviewing
court determines that a defendant’s conviction must be reversed
because evidence was erroneously admitted against him, and also
19
concludes that without the inadmissible evidence there was
insufficient evidence to support a conviction.” 488 U.S. 33,
40, 109 S. Ct. 285, 290, 102 L. Ed. 2d 265, 273 (1988).
Further, according to the Court, reversal for trial error
“implies nothing with respect to the guilt or innocence of the
defendant” but rather “is a determination that a defendant has
been convicted through a judicial process which is defective in
some fundamental respect.” Burks, supra, 437 U.S. at 15, 98 S.
Ct. at 2149, 57 L. Ed. 2d at 12.
In Lockhart, supra, the defendant pled guilty to burglary
and misdemeanor theft and was sentenced to an enhanced term of
imprisonment as a habitual offender. 488 U.S. at 34–35, 109 S.
Ct. at 287, 102 L. Ed. 2d at 270. Under the statute permitting
an enhanced sentence, Arkansas was required to prove beyond a
reasonable doubt that the defendant had previously been
convicted or found guilty of four or more felonies. Id. at 35,
109 S. Ct. at 287–88, 102 L. Ed. 2d at 270. The state
introduced certified copies of four prior felony convictions but
was unaware that the governor had granted the defendant a pardon
for one of them. Id. at 36, 109 S. Ct. at 288, 102 L. Ed. 2d at
270. The defendant’s attorney did not object, but the defendant
indicated on cross-examination that he believed he had received
a pardon for one conviction. Ibid. When the defendant’s
sentence was overturned in a habeas corpus proceeding, the state
20
announced its intention to resentence him under the habitual
offender statute, using a different conviction that had not
previously been introduced. Id. at 37, 109 S. Ct. at 289, 102
L. Ed. 2d at 271. The Court of Appeals for the Eighth Circuit
stated that the pardoned conviction was not admissible under
state law, and that without it the state had failed to produce
sufficient evidence for the enhanced sentence. Ibid.
The United States Supreme Court disagreed, stating that the
appropriate remedy was a “reversal for ‘trial error’ -- the
trial court erred in admitting a particular piece of evidence,
and without it there was insufficient evidence to support a
judgment of conviction.” Id. at 40, 109 S. Ct. at 290–91, 102
L. Ed. 2d at 273. On the other hand, “clearly with that
evidence, there was enough to support the sentence.” Id. at 40,
109 S. Ct. at 290, 102 L. Ed. 2d at 273. That the conviction
had been pardoned “vitiated its legal effect, but it did not
deprive the certified copy of that conviction of its probative
value under the statute.” Id. at 40, 109 S. Ct. at 291, 102 L.
Ed. 2d at 273. The Court interpreted Burks as requiring a
reviewing court to “consider all of the evidence admitted by the
trial court in deciding whether retrial is permissible under the
Double Jeopardy Clause.” Id. at 41, 109 S. Ct. at 291, 102 L.
Ed. 2d at 274. Furthermore, the Court reasoned that if the
defendant had offered proof of the pardon at trial, the trial
21
court likely would have permitted the prosecutor to offer
another prior conviction. Id. at 42, 109 S. Ct. at 291, 102 L.
Ed. 2d at 274-75. A retrial “merely recreates the situation
that would have been obtained” if the evidence had been properly
excluded. Ibid.
IV.
We commence our discussion with the practice of
incorporating the record of the motion to suppress into the
trial record. We subscribe to the rule discussed in Allan. The
better practice is to conduct two separate proceedings.
Following this procedure underscores the separate nature of each
proceeding, the limited scope of a suppression motion, and the
different standards of proof governing each proceeding. On the
infrequent occasions when circumstances suggest that the motion
record should be incorporated into the trial record, counsel
must be notified in advance, defense counsel must be given the
opportunity to conduct a broad-ranging cross-examination of the
State’s witnesses, and both counsel must consent on the record.
That did not occur in this appeal. The issue is the
appropriate remedy to address this substantial procedural lapse.
Where, as here, the trial court did not obtain the consent of
both counsel, defense counsel did not object to incorporation
and actually acquiesced to the procedure by commencing his
summation, we must address the appropriate remedy.
22
We find the Lockhart reasoning regarding the remedy
persuasive due to its similarities to this case. The trial
court clearly erred in this case when it admitted the video
evidence and testimony of Officer Mueller from the pre-trial
suppression hearing, sweeping aside the prosecutor’s stated
intention to recall the arresting officer and proceeding without
defendant’s consent. Absent the consent of both counsel, the
municipal court should not have incorporated the suppression
motion record in the subsequent trial record. Here, the
evidence adduced at the suppression hearing was confined to
addressing whether probable cause existed. Defense counsel
conducted a thorough cross-examination of the arresting officer
but it could not be characterized as a free-ranging cross-
examination.
Without that evidence, the State could not meet its burden
of proof. However, like the Court in Lockhart, we determine
that this evidence was sufficient for a finder of fact to
determine defendant guilty beyond a reasonable doubt. We are
satisfied that the officer’s testimony about the odor of
alcohol, as well as defendant’s performance on the field
sobriety tests, are highly relevant and probative of whether
defendant operated a motor vehicle under the influence of
alcohol. Furthermore, defendant did not object. Rather, he
proceeded to fashion his argument on the merits, referring to
23
evidence adduced at the suppression hearing and incorporated
into the trial record. As in Lockhart, the prosecutor could
have called the arresting officer as a witness at the trial, and
defendant could have cross-examined him regarding defendant’s
physical characteristics. The proper procedure in this case is
a remand to the municipal court for a trial based on the
observational evidence, with defendant being afforded the full
opportunity to cross-examine Officer Mueller and test the
State’s proofs.
We emphasize the importance of distinguishing between those
errors that are procedural in nature, and those errors that
affect the sufficiency of the evidence. Many trial errors, even
those which affect the legitimacy of the trial itself, so-called
structural errors, result in a reversal of the conviction and a
remand for a new trial. The Supreme Court has observed, “[i]t
would be a high price indeed for society to pay were every
accused granted immunity from punishment because of any defect
sufficient to constitute reversible error in the proceedings
leading to conviction.” Tateo, supra, 377 U.S. at 466, 84 S.
Ct. at 1589, 12 L. Ed. 2d at 451. The Appellate Division, while
correctly noting the fundamental differences between evidence
produced at a suppression hearing and evidence produced for
trial, mischaracterized this case as a sufficiency of the
24
evidence case that prohibited a remand for what it characterized
as supplementation of the record.
The cases cited by the appellate panel in support of its
remedy are not procedural error cases, but rather cases
involving substantive problems with the State’s evidence. In
State v. Sparks, 261 N.J. Super. 458, 460 (App. Div. 1993), the
Law Division found that a laboratory report was improperly
admitted at a municipal court trial. The Appellate Division
held that instead of reviewing the record de novo without the
inadmissible evidence pursuant to Rule 3:23-8(a), the Law
Division erroneously remanded the case for a new trial rather
than entering a judgment of acquittal. Ibid. In State v.
Hardy, 211 N.J. Super. 630, 633-34 (App. Div. 1986), the
Appellate Division held that the Law Division erred in ordering
a remand to the municipal court to permit the State to
supplement the record to support admission of breathalyzer
results where the municipal court erroneously admitted the
results over the defendant’s objection. The Law Division did
not recognize that the State had failed to introduce sufficient
evidence to support the conviction and should not have been
given a second chance to prove its case. Id. at 633-34. In
State v. Musgrave, 171 N.J. Super. 477, 479-80 (App. Div. 1979),
the Appellate Division held that the Law Division erroneously
permitted the State to supplement the record by presenting
25
expert testimony regarding the scientific reliability of a
device calculating the defendant-motorist’s speed. Sparks,
Hardy, and Musgrave involved substantive issues with the State’s
evidence, and in each case the Law Division erred in not
conducting a de novo review of the municipal record pursuant to
Rule 3:23-8(a) and evaluating the sufficiency of the evidence in
support of the charges.
This case involves an entirely distinguishable procedural
error made by the trial court. Here, the State never had the
opportunity to properly present its evidence at trial. This is
not a case where the sufficiency of the State’s evidence was
implicated but, instead, involved a procedural error where
defendant was convicted “through a judicial process which [was]
defective in some fundamental respect.” Burks, supra, 437 U.S.
at 15, 98 S. Ct. at 2149, 57 L. Ed. 2d at 12. The municipal
court, in its attempt at efficiency, failed to distinguish the
limited purpose of the motion to suppress and the trial on the
merits of the charge. Notably, the municipal court proceeded in
this fashion contrary to the prosecutor’s stated intention to
produce the arresting officer and the acquiescence of defendant.
Under these circumstances, a new trial does not violate
defendant’s double jeopardy right.
V.
26
In conclusion, we recognize that incorporation of the
testimony from a motion to suppress into the trial record may be
tempting given the challenging calendars in many municipal
courts. See State v. Locurto, 157 N.J. 463, 475 (1999) (noting
“extremely voluminous case loads” of municipal courts and court
system “that is already overburdened”). However, we have
consistently held that “‘the interest in judicial economy cannot
override a defendant’s right to a fair trial.’” State v. Brown,
170 N.J. 138, 160 (2001) (quoting State v. Sanchez, 143 N.J.
273, 282 (1996)). We emphasize the difference between a pre-
trial motion to suppress and a trial on the merits, and we
reiterate the prior admonition in Allan and instructions to
municipal court judges. See Mercer Vicinage Seminar, supra, at
8. The better practice is for the municipal court judge to make
findings of fact and conclusions of law on the suppression
motion and, when it is denied, to start the trial anew. “This
is the judicially recognized best practice, and despite the
additional consumption of time, it is the method that best
protects the defendant’s right to a fair trial.” 17 Robert
Ramsey, New Jersey Practice, Municipal Court Practice § 18:11 at
652 (3d ed. 2006). On the other hand, if both counsel stipulate
that testimony and exhibits from the pre-trial motion may be
incorporated into the trial record, and counsel are given wide
latitude in cross-examination in connection with the issues
27
raised, the trial judge is permitted to use the pre-trial
record. Allan, supra, 283 N.J. Super. at 630.
Furthermore, the error here was one of process. As such,
as with any other trial error, even one that denied defendant a
basic constitutional right, the remedy is a new trial not an
acquittal.
VI.
The judgment of the Appellate Division is reversed and the
matter is remanded to the municipal court for proceedings
consistent with this opinion.
CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA, ALBIN, PATTERSON,
and FERNANDEZ-VINA, and JUDGE RODRÍGUEZ (temporarily assigned)
join in JUDGE CUFF’s opinion.
28
SUPREME COURT OF NEW JERSEY
NO. A-11 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
BRUNO GIBSON,
Defendant-Respondent.
DECIDED September 16, 2014
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7
1