On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-02-0118.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Nugent.
Defendant Douglas Noble appeals from the January 29, 2009 order that denied his petition for post-conviction relief (PCR). He argues that his conviction on the charge of first-degree attempted murder for brutally beating his brother-in-law should be reversed because his trial attorney failed to interview potentially favorable witnesses, and elicited trial testimony from the victim about defendant threatening the victim with an axe. Defendant further argues that he is entitled to an evidentiary hearing on his claims because he was deprived of his right to be present at the PCR hearing.
For the reasons that follow, we agree with the PCR judge that defendant failed to establish a prima facie case of ineffective assistance of counsel. We also conclude that the court did not err by honoring defendant's request to not be present at the hearing. Accordingly, we affirm.
The trial testimony is comprehensively recounted in our decision affirming defendant's conviction on direct appeal, State v. Noble, 398 N.J. Super. 574, 580-87 (App. Div.), certif. denied, 195 N.J. 522 (2008), and we need only summarize it here. The victim, Paul Smith, was married to defendant's sister who had a daughter by another marriage. After Smith's stepdaughter accused him of sexually assaulting her, defendant's brother, Dante Noble, forcibly took Smith to the Nobles' mother's home and confronted him about the allegations. As a result, Smith had defendant's brother arrested and charged with kidnapping.
On June 4, 2003, six days after Dante Noble's arrest, Smith was walking on the street at approximately 8:00 p.m. when a car pulled alongside him and defendant exited, carrying an object that looked like a bat or 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 object and hit Smith on the left side of the face, rendering him unconscious.
Later that night the police found Smith lying on the sidewalk, badly beaten, and bleeding profusely from his head. Smith had suffered nine fractures to bones in his skull, face, nose and jaw; lost his sight; became partially deaf; and lost his senses of taste and smell. Although Smith was incoherent and mumbling, when asked by the police if he knew his assailant, he uttered a name that sounded to the police like "Don Mobley." Smith testified at trial that he told the police his assailant was Doug Noble, not Don Mobley.
On June 9, 2003, while recovering at the hospital, Smith told detectives his assailant was his brother-in-law, Doug Noble. His identification of defendant was inconsistent with a note in the "History of Present Illness" section of the hospital discharge summary. That note, dictated on June 20, 2003 by an attending physician, stated that Smith was "admitted to the ER . . . after having been assaulted by [an] unknown person and beaten about the head with an iron pipe or a baseball bat; the exact mechanism of injury [is] unknown." Additionally, a note in a physical therapy evaluation form prepared on August 30, 2003, stated, "[Patient] reports he was 'jumped' by 3 men on 6/6/03."
Defendant testified that on the night of the assault he was at home, telephoned his sister at approximately 8:00 p.m., and spoke to her for twenty to forty-five minutes. After finishing the telephone conversation, defendant drove his wife to a Bible study class and then returned home, where he stayed until 9:30 p.m. when he left to pick her up. Defendant's account of the time of the call was inconsistent with the alibi notice he had provided to the prosecutor the day before jury selection began. When confronted with the alibi notice during cross-examination, defendant conceded he must have been mistaken about the exact time of the call.
Defendant also presented the testimony of his wife and sister as alibi witnesses. Although each testified about the telephone conversation that took place on June 4, 2003, they were impeached with statements they gave to detectives two days earlier. Defendant's wife told a detective that the conversation occurred at the end of June, and defendant's sister told a detective she did not know if the conversation took place in the beginning, middle, or end of the month.
The jury convicted defendant of attempted murder and possession of a weapon for an unlawful purpose. At sentencing, the court merged the weapons conviction with the attempted murder conviction and imposed a sixteen-year term of imprisonment, with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed appropriate fines and ...