State v. Gillespie

• Decision Date: 12 January 1968
• Docket Number: No. A--691,A--691
• Citation: 100 N.J.Super. 71,241 A.2d 239
• Parties: , 29 A.L.R.3d 927 STATE of New Jersey, Plaintiff-Respondent, v. Charles W. GILLESPIE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 71

100 N.J.Super. 71

241 A.2d 239, 29 A.L.R.3d 927

STATE of New Jersey, Plaintiff-Respondent, v. Charles W. GILLESPIE, Defendant-Appellant.

No. A--691.

Superior Court of New Jersey Appellate Division.

Argued Sept. 18, 1967.

Decided Jan. 12, 1968.

George K. Meier, Jr., Montclair, for appellant.

Archibald Kreiger, Asst. Prosecutor, for respondent (John G. Thevos, Passaic County Prosecutor, attorney).

Before Judges CONFORD, COLLESTER and LABRECQUE.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

Defendant appeals from a conviction of driving a motor vehicle under the influence of intoxicating liquor (N.J.S.A. 39:4--50) in the Passaic County Court following an appeal to that court on the transcript made before the Municipal Court where there had been an initial conviction. The defendant was fined $200 plus $25 costs and his driver's license was revoked for two years. Under the statute, a first-time offender is subject to a fine of between $200 and $500 or imprisonment for a term of between 30 days and three months, or both, in the discretion of the judge, and to a mandatory revocation of his driver's license for two years. Subsequent offenses are punishable by a mandatory three months jail sentence and ten years' revocation.

A number of questions, constitutional and otherwise, where raised in the county court and here. It should be noted at the outset that the formal charge against defendant fixes the place of alleged violation at 'Parking Lot, 140 Hepburn Rd. (Clifton).'

I.

At the time in question, May 8, 1966, the defendant resided in an apartment house at 140 Hepburn Rd., Clifton. Supplemental testimony taken before the county court on a remand at our direction establishes that the owner and operator of the apartment house also maintained a parking garage with two indoor levels and a roof parking area. As of May 8, 1966 the indoor levels were open only to tenants, but the rooftop, where this offense allegedly occurred, was open not only to tenants, but visitors, tradesmen and anyone else having occasion to be at the property. Even persons having no business there were not impeded from parking on the rooftop prior to July 1, 1966 when a gate was installed excluding those with no business at the premises.

On the basis of the foregoing proofs the county court found the rooftop garage area to be as of May 8, 1966 a 'quasi-public' place and within the purpose and object of the statute as to places where driving under the influence is intended to be proscribed.

In State v. Sisti, 62 N.J.Super. 84, 162 A.2d 297 (App.Div.1960) we held the act was not designed to limit the field of its prohibition to public highways and included the general parking area made available for customers of a private business concern--a shopping center. Defendant argues that the factual situations there and here are not analogous. We do not agree. Except in terms of the number of vehicles potentially involved, we do not regard this case as distinguishable in principle from Sisti. The operation of a motor vehicle while under the influence of intoxicating liquor in a quasi-public place involves extraordinary danger of injury to the driver or other members of the public or damage to their property, just as does driving in that condition on a public highway.

II.

Defendant's major contention is that he was convicted illegally because of the introduction before both trial courts against him of admissions in police custody to, and as a result of a interrogation by, a police officer and an examining police physician without the prerequisite warnings and waiver of rights required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Defendant did not testify in his own defense. The pertinent proofs are as follows.

At approximately 7:30 P.M. on the evening of May 8, 1966 Mr. Koubek, a tenant at the apartment house, noticed from his patio a car having difficulty getting into a parking place on the parking roof. A grey Buick sedan was attempting to park immediately adjacent to his own car. As he continued his observation, from a distance of 150 feet, he saw and heard his car bumped by the Buick, whereupon he started downstairs, calling the superintendent to come out with him. When he got to the parking area Koubek saw defendant looking at the damage to Koubek's car. At this point defendant was either entirely out of the Buick or was just getting out. In the course of their conversation defendant acknowledged to Koubeck that the Buick belonged to him and said: 'Look at the damage to my car and I don't know how I got any of them.'

Clifton Police Officer Sembertovich testified he was detailed to the scene of 'an accident' at 7:40 P.M. that day and went to the premises. He saw defendant leaning against the Buick. Koubek told him defendant had struck his car and defendant denied it. The officer concluded that defendant's car had struck Koubek's by examining the location of damage and paint scrapes on the vehicles. Somewhere in the course of his investigation the officer conducted an interrogation of defendant and arrested him for drunken driving, but the transcript unfortunately makes it impossible to determine just how much of the interrogation preceded the arrest. The significant testimony of the officer is as follows:

'Q. What then occurred (after inspecting the damage)? A. I then asked Mr. Gillespie what had occurred. He said he didn't know. I asked him for his driver's license and registration. He was fumbling with his wallet and could not produce them. Then I asked Mr. Koubek what happened. His statement is on the report, your Honor. I asked Mr. Gillespie to walk a line that was in the road. He could not do so. He staggered and stumbled from side to side. He had to lean against the cars, and he needed support. I then told Mr Gillespie I am placing him under arrest while driving under the influence of alcohol, due to Mr. Koubek's statement.

Q. Officer, did you ask Mr. Gillespie if he had been driving? A. Yes, I did. He said he had been driving. He said he drove from New York. He thought he was still in New York.

Q. Would you describe the defendant's appearance at the scene of this accident? A. Well, his eyes were bloodshot and he had a very strong odor of alcohol on his breath. As I stated, he was staggering and could not support himself without aid from the police truck or the other vehicles in the immediate area.

Q. Will you describe his speech at the scene of the accident? A. It was slurred. It was difficult to understand.'

On cross-examination, the officer also testified responsively that defendant said 'he had tried to park his car in the parking lot, but he coudn't make it.'

The officer testified that after the arrest defendant was placed in the police van for the trip to headquarters and at that time he informed defendant 'he had a right to refuse to answer all questions that were put to him and that he was entitled to a lawyer.' At headquarters, he took defendant to the examination room. Defendant then asked, 'when can I get a lawyer?' He was told, 'any time he wants to.' Defendant asked that a lawyer be called, but upon the officer's asking for the telephone number, defendant said he did not know the name of the lawyer--only that he was in New York. At that point Dr. Gerow, the police examining physician, began his examination of defendant in the officer's presence.

Dr. Gerow testified that when the defendant was brought into the examining room, he 'was swaying, staggering, falling against the wall and furniture * * * he kept falling.' He told the defendant who he was and said if the defendant had his own lawyer and doctor he could refuse any tests or questions. Defendant did not respond to that. He gave his age (49), weight (190) and occupation (consulting engineer). The doctor had defendant sign his name for comparison with his driver's license and found it 'very poor.' On interrogation, defendant said he was driving his car when arrested; had had four drinks of scotch, but couldn't say when. He had not been to a doctor recently, was not under medication, had no physical disability in driving a car, or otherwise, or history of illness. However, he said he had a right leg three-quarters of an inch shorter then the left and that he walked with a limp. He said he knew he was being examined for sobriety. When asked whether he would submit to a blood test, the defendant stated he wanted first to consult with a lawyer, and at that point the doctor ceased his examinations and observations.

The doctor's observations of the defendant were stated as follows:

'A. He had a very strong alcoholic odor. His face was flushed, clothes were orderly. His attitude, he was very talkative. His eyes were watery, marked bloodshot. Pupils were dilated. Balance, wobbly, staggering. Walking was swaying, staggering. He needed constant help to keep from falling. Turning around was swaying and staggering and stumbling. Speech was confused, and talking was a little difficult at times to understand.'

On objection at that point the court (magistrate) ruled it would not admit in evidence any interrogation after the request for a lawyer last mentioned, but would admit any observations of the defendant's condition before or after. The doctor gave it as his opinion that the defendant was at the time under the influence of intoxicating liquor--'under the extreme effects of alcohol * * * ability to drive (was) impossible * * *. (T)he limp had nothing to do with defendant's swaying, staggering and falling.'

After denial of a motion to dismiss on grounds of insufficiency of proof and that the place was a private area, defendant's brother John Gillespie testified for the defense that defendant drove to his home (Cedar Grove) at 5:00 P.M. on the date indicated. He was soon after served a drink of liquor of 1 1/2-2 ounces with water and another an hour later. He knew of no other drink taken by defendant.

A...