Court cannot consider Sup Mt testimony unless agreed by defendant State v Gibson

Court cannot consider Sup Mt testimony unless agreed by defendant
State v Gibson __ NJ __

A-11-13

         Due to the fundamental differences between a pre-trial motion to suppress and a trial on the merits, the best 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.

State of New Jersey v. Bruno Gibson (A-11-13) (072257)

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.

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

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.  

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.  

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.  

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.  

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.