State v. Bruno Gibson (072257)

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

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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

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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

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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.

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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.

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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

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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

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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.

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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

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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,

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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