On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-02-0118.
The opinion of the court was delivered by: Baxter, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Gilroy and Baxter.
This appeal presents the question of whether the State may, consistent with a defendant's right to remain silent, cross- examine him on the late filing of his alibi notice when such cross-examination is designed to highlight inconsistencies between the alibi notice and defendant's trial testimony a mere two days later. We conclude that here, where the cross-examination on the timing of the alibi notice served to demonstrate the unlikelihood that defendant's recollection of the facts supporting his alibi defense would change so significantly in a two-day period, the State's cross-examination did not constitute a prohibited evisceration of defendant's right to remain silent.
Defendant Douglas Noble appeals from his conviction on a charge of first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3.*fn1 The judge sentenced him to a sixteen-year term of imprisonment, of which eighty-five percent was ordered to be served without eligibility for parole in accordance with the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Appropriate fines and penalties were imposed.
On appeal, defendant presents the following arguments for our consideration:
I. NOBLE'S CONVICTION MUST BE REVERSED BECAUSE PERVASIVE PROSECUTORIAL MISCONDUCT RENDERED HIS TRIAL FUNDAMENTALLY UNFAIR. (NOT RAISED BELOW)
A. THE PROSECUTOR'S REPEATED REFERENCES TO THE TIMING OF NOBLE'S ALIBI NOTICE EVISCERATED NOBLE'S FUNDAMENTAL RIGHT TO REMAIN SILENT AND DIRECTLY CONTRAVENED DEATORE AND ITS PROGENY.
B. THE PROSECUTOR ENGAGED IN NUMEROUS ADDITIONAL INSTANCES OF MISCONDUCT WHICH, PARTICULARLY WHEN VIEWED CUMULATIVELY AND IN COMBINATION WITH THE IMPROPER USE OF THE TIMING OF NOBLE'S ALIBI NOTICE, REQUIRE REVERSAL OF NOBLE'S CONVICTION.
II. NOBLE'S CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO CHARGE THE JURY WITH THE LESSER-INCLUDED OFFENSE OF ATTEMPTED PASSION/PROVOCATION MANSLAUGHTER. (RAISED BELOW)
III. NOBLE'S SENTENCE MUST BE VACATED BECAUSE THE TRIAL COURT FAILED TO ESTABLISH ITS BASIS IN APPLYING AN AGGRAVATING FACTOR AND DID NOT APPLY SEVERAL MITIGATING FACTORS THAT WERE ESTABLISHED BY THE EVIDENCE ON RECORD. (RAISED BELOW)
These were the facts presented at trial. The victim, Paul Smith, married defendant's sister, Yakisha Noble, in the spring of 2003. At the time of their marriage, Yakisha already had an eleven-year-old daughter from a previous relationship. In April 2003, shortly after the marriage, Yakisha's daughter accused Smith of sexually assaulting her. In response to her allegations, the Passaic County Prosecutor's Office began an investigation.
On April 30, 2003, Smith went to the Passaic County Prosecutor's Office because he was "scared for his life" as a result of threats that had been made by defendant, defendant's brother Dante Noble and an individual named Aaron. The prosecutor's office advised Smith that he should inform the Paterson police of his fears because the prosecutor's office was dealing only with the child abuse allegations.
One month later, on May 29, 2003, defendant's brother Dante forcibly took Smith to the Nobles' mother's house where Dante confronted Smith about the sexual abuse allegations that Yakisha's daughter had made. Smith testified that defendant was in the backyard of the house and he heard defendant say to Dante, "You should have come and got me, I would have killed him." After that incident, Smith went to the police and filed charges against Dante, who was arrested and charged with kidnapping.
On Wednesday, June 4, 2003, six days after Dante was arrested for kidnapping Smith, Smith left his apartment in Paterson shortly after 8:00 p.m. It was dusk, but the area was illuminated by a street lamp. As Smith was walking, a red car pulled up along aside him. Smith heard someone shout out his name, "Paul." When Smith turned around, he saw defendant get out of the passenger seat of the vehicle and walk toward him. Smith saw defendant carrying an object "like a bat or a pipe." According to Smith, defendant said "You pressed charges on my brother. Either you drop them or you go to the morgue." Defendant then swung "the bat" and smashed Smith on the left side of his head, causing him to lose consciousness.
At approximately 8:51 p.m. that night, two Paterson police officers were dispatched to a call regarding an injured man. Officer Steven Leishman testified that when he arrived at the scene of the incident, he saw a man who was badly beaten and bleeding profusely from his head. The man was subsequently identified as Paul Smith. Covered in blood, Smith kept repeating "I can't see." Leishman testified that Smith was not in any condition to give a detailed statement. Leishman did, however, ask Smith who attacked him. Smith's reply sounded to Leishman like, "Don Mobley." Leishman described Smith as "very incoherent" and "pretty much mumbling." The prosecutor's office conducted an investigation and ascertained that there was no one named Don Mobley in the county or surrounding area. At trial, Smith testified that he told Leishman that his assailant was Doug Noble and that he never said Don Mobley.
Detective Steven Sela of the Paterson police department testified that he and another detective spoke with Smith at the hospital on June 9, 2003. Based upon Smith's statement that he was assaulted by his brother-in-law Douglas Noble, Sela prepared a complaint charging Noble with attempted murder. According to Sela's testimony, there was "no hesitation, equivocation, uncertainty or doubt voiced by Smith" when he told Sela that it was defendant who assaulted him. Sela canvassed the neighborhood where the attack took place, but was unable to find any witnesses. Defendant was not apprehended and arrested on the attempted murder complaint until July 29, 2003.
The State also presented the testimony of Dr. John A. Schultz, the surgeon who operated on Smith the night of the assault. Schultz testified that as a result of the attack, Smith suffered nine different fractures to his head, including fractures to the bones around both eyes, his nose, and his jawbone. The attack left Smith blind in both eyes, partially deaf, and without a sense of taste or smell.
Trial was scheduled to begin on May 17, 2005. At a pretrial conference on May 16, defendant stated for the first time that his wife Chenita Noble would be presented as an alibi witness. The judge directed defense counsel to prepare an alibi notice, have defendant sign it and provide it to the State. The alibi notice that was filed on May 17, the day the trial began, stated that defendant was talking with his sister on the telephone from his home in East Orange between 8:00 and 8:20 p.m. on the night in question. The notice also specified that after the phone call ended, defendant drove his wife to her Bible study class in East Orange.
Defendant testified at trial. On direct examination, he denied that he had beaten Smith and maintained that he was not in Paterson on the night in question. He also testified that on Wednesday nights, his wife attended Bible study classes and she liked to be punctual. According to defendant's initial version at trial, at approximately 8:00 p.m. on June 4, 2003, his sister Shirley Noble called and he and his wife both spoke with her. The telephone conversation lasted for twenty to forty-five minutes. After the phone call concluded, he drove Chenita from their home in East Orange to her Bible study session, which was also located in East Orange approximately ten to fifteen minutes away. They arrived at the study session at 8:38 p.m. According to defendant's testimony, he returned home after dropping her off and did not leave the house again until he went to pick her up shortly before 9:30. According to defendant, he did not stop anywhere either on the way to Bible study or on the way back.
The prosecutor began his cross-examination by asking defendant a series of questions about when defendant furnished his alibi notice to the State:
Q: The second page indicates when it was dated, which would be the day it was prepared, the day it was signed and it was given to the State. What was the day that this alibi notice was given?
Q: Okay. Now today is the 19th, correct?
Q: So the 17th would have been Tuesday, is that correct?
Q: Does that sound right to you, that it was Tuesday morning that you had signed it and we had gotten it?
Q: Okay. That was the day we actually started jury selection and gave our opening statements in this case, correct?
Q: The day before that, Monday, Monday afternoon is when we started doing the pretrials, discussing this case before we sent for a jury panel, is that correct?
Q: And that was when you first gave information that you had alibi ...