State v. Gibson, A-5163-10T2; Appellate Division; opinion by Ostrer, J.A.D.; decided and approved for publication February 7, 2013. Before Judges Alvarez, Nugent and Ostrer. On appeal from the Law Division, Camden County, Municipal Appeal No. 50-10. DDS No. 14-2-xxxx [18 pp.]

Defendant Bruno Gibson asserted that police lacked reasonable suspicion to stop his motor vehicle and probable cause to arrest him for driving while under the influence (DUI), N.J.S.A. 39:4-50. At the suppression hearing, Winslow Township Police Officer Carl Mueller testified he stopped Gibson shortly after 4 a.m. after defendant passed his police vehicle at a high rate of speed and failed to use his turn signal; that he detected an alcoholic beverage odor; and that defendant admitted he had been drinking. Mueller said defendant performed poorly on two field sobriety tests, the one-legged stand and the walk-and-turn test, and resisted arrest.

The defense introduced video footage of the stop. Defense counsel and the prosecutor sharply disagreed about whether the video supported Mueller’s description of defendant’s performance on the field tests.

The municipal court found there was probable cause for the stop based on defendant’s speed and probable cause to arrest based on the field tests and denied the motion to suppress. Regarding a trial on the merits, the prosecutor advised that the state would proceed based on Mueller’s observations. He asked if the court wanted him to reproduce Mueller.

Without saying whether it would rely on the suppression hearing testimony, the court turned to defense counsel, who moved to dismiss in the absence of evidence in the trial on the merits. Without ruling on the motion, or the prosecutor’s inquiry whether additional evidence was needed, the court asked defense counsel if the evidence in the pretrial hearing satisfied the state’s burden of proof. Defense counsel argued that it did not.

After hearing the state’s responsive argument, the court found defendant guilty of DUI and failing to signal, and not guilty of reckless driving, relying on defendant’s performance on the field tests and his postarrest behavior.

At the trial de novo, the Law Division judge found that defendant did not object to the municipal court’s procedure. It held that defendant failed to show he was prejudiced by the procedure and found him guilty of DUI, relying on the video and defendant’s odor of alcohol, admission of drinking, performance on the field tests, and combative behavior.

Held: A court, sitting as fact finder in a quasi-criminal matter, may not, without defendant’s consent, rely on the evidence heard in a pretrial suppression hearing as proof of guilt in the trial on the merits. Defendant’s conviction for DUI, which was entered solely on the basis of evidence elicited at a pretrial hearing to suppress the fruits of the stop and subsequent arrest, is reversed.

The panel rejects the trial court’s determination that defendant did not object to a trial based on the evidence at the suppression hearing. It says defense counsel expressed his objection by moving to dismiss the charges if the state did not call Mueller in the trial on the merits. Thus, the issue is whether the court was empowered, over defendant’s objection, to consider the pretrial 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 concludes it was not.

The panel says a DUI defendant enjoys a broad array of procedural rights. The state must prove the elements of the violation beyond a reasonable doubt. The Rules of Evidence apply. He has the right against self-incrimination and the right of confrontation and an indigent defendant is entitled to an appointed attorney.

These specific rights coexist with a general right to procedural due process, including adequate notice and a fair hearing.

The panel says the court’s reliance on the evidence at the pretrial hearing in the trial on the merits violated defendant’s rights to procedural due process and fundamental fairness because the two proceedings are designed to determine discrete issues and are governed by different rules.

A trial on the merits determines a defendant’s guilt; a suppression hearing determines the admissibility of evidence based on the lawfulness of police conduct. The state must prove guilt beyond a reasonable doubt, but must prove a reasonable and articulable suspicion to stop, and probable cause to arrest, by a preponderance of the evidence. The suppression hearing may include evidence inadmissible in the trial on the merits. The Rules of Evidence do not apply in the suppression hearing, except as to N.J.R.E. 403 and claims of privilege. Thus, unobjectionable evidence in the suppression hearing, such as hearsay, could be excluded in a trial.

Moreover, if a defendant chooses to testify at a suppression hearing, his statements may not be used at trial, unless he testifies at trial and gives conflicting testimony. Even then, his prior statements may only be used to impeach. A defense attorney’s tactics, strategy and proofs in a suppression hearing may differ markedly from those at trial. By foreclosing additional testimony from the officer at trial, the court limited defendant’s right of confrontation.

Thus, the panel concludes that in relying on the suppression hearing evidence in the trial on the merits, the court deprived defendant of his right to due process.

Excluding the suppression hearing evidence, the state presented no evidence in its case on the merits. Thus, the record evidence was insufficient to support the finding of guilt. Consequently, a judgment of acquittal is warranted.

For appellant — George R. Szymanski. For respondent — Jason Magid, Assistant Prosecutor (Warren W. Faulk, Camden County Prosecutor).