STATE OF NEW JERSEY v. ZEB KOCH

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0602-10T1




STATE OF NEW JERSEY,


Plaintiff-Respondent,


v.


ZEB KOCH,


Defendant-Appellant.


______________________________________

September 26, 2011


Argued April 4, 2011 Decided


Before Judges A. A. Rodr guez and C. L. Miniman.


On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Warren County, Municipal Appeal No. A-41-09-Y17.


John P. Scollo argued the cause for appellant.


Gebhardt & Kiefer, attorneys for respondent (Judith A. Kopen, on the statement in lieu of brief).


PER CURIAM

Zeb Koch was convicted in the Municipal Court of Mansfield of underage consumption of alcohol, in violation of Township of Independence Local Ordinance 121-12.1 It is undisputed that the ordinance makes it unlawful for "any person under the legal age to knowingly possess or consume alcoholic beverage on private property." The municipal court judge imposed a $250 fine, and $33 court costs.

Koch appealed. At a trial de novo in the Law Division, the judge heard oral argument and issued a written decision, finding Koch guilty of the same charge. The judge imposed the same sanctions. Koch appeals from the judgment of the Law Division. We reverse.

These are the salient facts. On May 8, 2009, Koch, an eighteen-year-old high school student, went to a party in Independence with his nineteen-year-old girlfriend Ashley. The party was held at a home on Barkers Mill Road. A neighbor complained to the police that young people attending the party were smoking marijuana and urinating on his lawn. Independence Township Patrolman Joseph DeWitt testified that he responded to the location of the party. He saw that there were thirty to fifty cars parked near the home. It is undisputed that alcoholic beverages were being consumed in and around the home and on its deck. Upon the arrival of DeWitt in a marked squad car, around twenty young people ran into the woods behind the home. DeWitt did not pursue them. He did detain the forty to fifty young people who had not run into the woods. He lined them up; told them they were not free to leave; and proceeded to sniff the breath of each to determine if they had consumed alcohol. It is undisputed that no Miranda2 warnings were given. Specifically, no one was advised that they had the right to refuse to submit to being sniffed, or to remain silent.

According to DeWitt, just before he sniffed Koch, the young man said spontaneously, "I only had one." He remembered that Koch's breath smelled of alcohol. After about twenty minutes, DeWitt told the group that they were free to leave, but must do so with a "sober" driver. No summonses were issued at that time.

Ninety minutes after DeWitt left the scene of the party, he came across Koch again. According to DeWitt, he saw a maroon Pontiac, later determined to be registered to Ashley Perch, stationary on the side of the road. He testified that Koch, Ashley and a young woman were the occupants of the vehicle, but, "the operator of the [Pontiac] when I first arrived was not Zeb Koch." DeWitt distinctly remembered speaking with Koch about Koch and Ashley exchanging places, because "Ashley Perch was only 17 years old and was not allowed to drive after midnight."

Ashley testified that Koch was with her the whole time at the party. He did not drink any alcoholic beverages, nor make any comment to DeWitt about drinking. She would not have let Koch drive her car if he had consumed an alcoholic beverage. According to her, after leaving the party with Koch, DeWitt pulled over her Pontiac. Koch was driving. The Pontiac was moving when DeWitt activated his overhead lights to pull it over. She confirmed that that she was nineteen years old, not seventeen as DeWitt had testified.

Koch testified and denied drinking any alcoholic beverages at the party. He was over eighteen on the day of the party. Ashley was not subject to a midnight curfew for new drivers.

After speaking briefly, DeWitt told Koch to continue driving the Pontiac. The motor vehicle stop ended and no charges were issued against anyone.

The defense attempted to introduce into evidence as Exhibit D-5, a videotape made by a camera in DeWitt's police vehicle. The exhibit was excluded from evidence, but it is part of the record on appeal. We have seen it. D-5 shows that the Pontiac was operated by Koch. It was moving for a considerable distance before DeWitt activated his overhead lights and pulled it over.

Four days later, on May 12, 2009, DeWitt issued a summons for underage drinking to Koch. Several days later, Koch learned about the charge for the first time, when his high school principal told him that he was being suspended from school activities because of an underage drinking charge.

Koch appeals, contending:

IT WAS PLAIN ERROR FOR [THE MUNICIPAL COURT AND LAW DIVISION JUDGES] TO EXCLUDE EXHIBIT D-5 AND TESTIMONY ABOUT OFFICER DEWITT'S STOPPING OF THE CAR DRIVEN BY KOCH. BY DOING SO, THE JUDGES EXCLUDED RELEVANT AND MATERIAL EVIDENCE CRUCIAL TO THE CROSS-EXAMINATION OF OFFICER DEWITT AND DENIED KOCH THE OPPORTUNITY TO FULLY AND FAIRLY CHALLENGE BY CROSS-EXAMINATION THE POLICE OFFICER'S ABILITY TO ACCURATELY RECOLLECT THE FACTS CONCERNING THE EVENTS OF THE NIGHT IN QUESTION, INCLUDING HIS IDENTIFICATION OF [KOCH] AS A PERSON WHO MADE A PURPORTED ADMISSION THAT HE HAD BEEN DRINKING ALCOHOL. THIS PLAIN ERROR WAS SO WIDE OF THE MARK THAT IT VIOLATED THE SIXTH AMENDMENT.


We agree.

After a careful review of the record, we conclude that the Law Division judge erred in excluding Exhibit D-5, the videotape of a motor vehicle stop of Koch about an hour and a half after DeWitt left the scene of the party. That videotape directly impeached DeWitt's testimony. It tended to raise a reasonable doubt about the credibility and accuracy of DeWitt's identification of Koch as one of the partygoers who consumed alcohol. The videotape tended to impeach DeWitt's testimony that the Pontiac was stationery when he first saw it and someone other than Koch was the driver.

Koch also contends:

THE STATE BEARS THE BURDEN OF PROVING THAT A SUSPECT HAS BEEN ADVISED OF HIS RIGHTS. [KOCH] AND OTHERS WERE "DETAINED" AND QUESTIONED. THEY WERE NOT FREE TO LEAVE AND THEREFORE WERE "IN CUSTODY". [KOCH'S] PURPORTED "ADMISSION" OF GUILT TO OFFICER DEWITT (WHICH DEFENDANT DENIES MAKING) MUST BE SUPPRESSED BECAUSE NO MIRANDA WARNING WAS GIVEN.


Koch has raised a valid Miranda issue. The partygoers who remained at the scene were detained for about twenty minutes. They were not free to leave. DeWitt's sniffing of their breath was clearly in a custodial setting. His actions were an implied question to Koch and others to indicate whether they had consumed alcoholic beverages. For Miranda purposes, when determining whether a suspect has been subjected to custodial interrogation courts look "not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689-90, 64 L. Ed.2d 297, 307-08 (1980). In keeping with Miranda's protective aims, consideration is paid to the suspect's perception of events, not the intent of police. Innis, supra, 446 U.S. at 301, 100 S. Ct. at 1690, 64 L. Ed. 2d at 308.

Here, Koch was charged in a quasi-criminal matter, which resulted in the imposition of a penal consequence (a fine). Therefore, the statement attributed to Koch should have been suppressed, for failure to give Miranda warnings. In light of this exclusion, the credibility of DeWitt is even more critical with respect to establishing Koch's guilt.

Moreover, the testimony of DeWitt that he sniffed alcohol on Koch's breath, even if believed, is insufficient as a matter of law to sustain a conviction. There were many young people at this party. Alcohol was being consumed by many of them. Therefore, the smell of alcohol in the area of the party was a given. The sniff test without excluding other sources, was not sufficient to establish that Koch was drinking. This is so, in light of the serious impeachment of DeWitt's credibility by D-5, which was erroneously excluded. The conviction cannot stand.

Having determined that the conviction must be vacated due to the exclusion of D-5, and the failure to give Miranda warnings, we do not address the remaining contentions:

THE LAW DIVISION JUDGE WAS OBLIGATED TO MAKE HIS OWN EVIDENTIARY RULINGS AND FINDINGS OF FACT. INSTEAD, HE UNDULY DEFERRED TO THE RULINGS AND FINDINGS OF THE MUNICIPAL COURT JUDGE. BOTH JUDGES' EXCLUSION OF THE PROFFERED EVIDENCE WAS ERRONEOUS.


OFFICER DEWITT'S TESTIMONY WAS NOT CREDIBLE NOR SUFFICIENT TO SUSTAIN A VERDICT OF GUILTY BEYOND A REASONABLE DOUBT.


THE STATE'S BURDEN OF PROOF IN A CRIMINAL CASE IS PROOF BEYOND A REASONABLE DOUBT. NEITHER A MERE PREPONDERANCE OF THE CREDIBLE EVIDENCE, NOR THE PRESENTATION OF CLEAR AND CONVINCING EVIDENCE IS SUFFICIENT TO MEET THE STATE'S BURDEN IN A CRIMINAL CASE. THE EVIDENCE PRESENTED IN THE TRIAL COURT BY THE STATE'S SOLE WITNESS IS OUTWEIGHED BY THE TESTIMONY OF [KOCH], ASHLEY PERCH AND EXHIBIT D-5, SHOULD HAVE BEEN A DEFENSE VERDICT.


THE PROOF PRESENTED WAS INADEQUATE TO ESTABLISH THAT [KOCH] HAD INGESTED AN ALCOHOLIC BEVERAGE. AN OBJECTIVE, SCIENTIFICALLY-RELIABLE TEST WOULD BE NEEDED IN ORDER TO ESTABLISH THE PRESENCE OF ALCOHOL IN A HUMAN BODY. A POLICE OFFICER'S NOSE IS NOT A SCIENTIFICALLY-RELIABLE INSTRUMENT FOR THE DETECTION OF ALCOHOL IN THE HUMAN BODY. VERIFIABLE TESTING IS DESIRABLE. A 'SNIFF' TEST MAY BE ADEQUATE FOR PURPOSES OF ESTABLISHING PROBABLE CAUSE TO INVESTIGATE FURTHER, BUT IS NOT SUFFICIENT FOR ESTABLISHING GUILT BEYOND A REASONABLE DOUBT.


The conviction is reversed.

1 The charges arose in Independence Township, but the trial was held in the Mansfield Township municipal court due to the judge's schedule.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).