April 26, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DOUGLAS NOBLE, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 18, 2011
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 penalties. We affirmed defendant's conviction on direct appeal. Noble, supra, 398 N.J. Super. at 600.
Defendant filed his PCR petition on June 30, 2008, and the court thereafter denied defendant relief. This appeal followed. Defendant raises the following points in his pro se brief:
THE PCR COURT ERRONEOUSLY DENIED THE PETITION WITHOUT GIVING AN EVIDENTIARY HEARING, WITHOUT ALLOWING PETITIONER TO BE PRESENT, AND WITHOUT ADDRESSING ALL ISSUES RAISED.
A. The PCR Court failed to hold an evidentiary hearing.
B. The PCR Court did not allow petitioner to be present for his first PCR hearing.
C. The PCR Court did not address all issues raised by counsel.
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON POST-CONVICTION RELIEF.
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL. POINT IV
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM DEFENDANT THAT THE PROSECUTOR MADE A PLEA OFFER.
THE CUMULATIVE ERRORS OF TRIAL COUNSEL REQUIRE THIS MATTER BE REMANDED FOR NEW TRIAL.
INEFFECTIVE ASSISTANCE OF DIRECT APPEAL COUNSEL.
Defendant makes the following arguments in a brief filed by his counsel:
THE DENIAL OF APPELLANT'S PETITION FOR POST-CONVICTION RELIEF MUST BE REVERSED
A. THE PCR COURT ERRED BY DENYING APPELLANT'S PCR PETITION.
B. IN THE ALTERNATIVE, THE PCR COURT ERRED BY RULING ON APPELLANT'S PCR PETITION WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING.
1. APPELLANT ESTABLISHED A PRIMA FACIE CASE IN SUPPORT OF POST-CONVICTION RELIEF.
2. AT A MINIMUM, AN EVIDENTIARY HEARING WAS NECESSARY TO RESOLVE APPELLANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.
To prove ineffective assistance of counsel, defendant must show that counsel's performance was deficient, that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; and that the deficient performance prejudiced the defense, that is, "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Our Supreme Court has adopted the Strickland standard for such claims arising under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
To satisfy the two-prong Strickland test, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel"; he must allege specific facts sufficient to demonstrate counsel's alleged substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). As to the second prong, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Defendant first argues that "trial counsel failed to investigate . . . available evidence regarding contradictory statements made by the victim . . . to third parties regarding the number and identity of his attacker(s)." Defendant cites the emergency room discharge summary and physical therapy form as examples of the victim's inconsistent statements, but has provided no certifications from those who made the entries in the records or those who made the statements.
"[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, supra, 321 N.J. Super. at 170. Instead of providing such certifications or affidavits, defendant has relied upon unreliable hearsay statements. Having produced no certifications based on personal knowledge attesting to what facts additional investigation would have revealed, defendant has failed to establish a prima facie case of ineffective assistance of counsel. See id. at 170-71.
Defendant next argues that counsel was ineffective because he cross-examined the victim about defendant threatening the victim with an axe "just days before the alleged assault." There was a broader context to the cross-examination, however. When Smith reported to the police that Dante Noble had kidnapped him, he also said that defendant was in the back yard of his mother's home. According to Smith, defendant said, "Y'all should have . . . came and got me, I would have killed this mother F'er [sic]." At trial, defense counsel elicited from Smith that defendant was holding a small axe when he allegedly made that threat. Through continued cross-examination counsel suggested that had Smith truly been concerned about defendant's threat, he would have insisted the police arrest defendant. Smith responded that he was not interested in pursuing charges against defendant, and that his statement to police about defendant's threat "was just talk."
The judge who denied defendant's PCR petition had presided over defendant's trial. In denying the petition, the judge explained:
With regard to the -- the axe incident, I -- I can't come to the same conclusion about that. That could, I think -- of course, you know it's when you're Monday morning quarterbacking as we're doing here and we do on every post-conviction relief about the lawyers who tried the case, no matter what the lawyer did, it can -- it will always be argued that he should have done the other. And with regard to the axe incident, I agree with the Prosecutor. I frankly thought that while someone who was -- might be less experienced at trial work might look at that as something they should stay away from, I thought I could understand why the defense on balance might think this is something that could be crucial to getting the jury to have some doubt about accepting the testimony of the victim. Because the testimony of the victim was extraordinarily compelling. There's no denying that. Even if you didn't see it, if you just read the transcript of it, you know about that. There's no way the person could be mistaken. The -- the -- the dialogue that went on back and forth identified the -- the perpetrator, if that dialogue occurred. So -- and the opportunity to look someone right in the face and in this setting makes it just incomprehensible that the victim could be mistaken here.
So it seemed to me in that context, the way that testimony came across, so compelling, almost insurmountable, that it was worth going after the -- the axe-handle incident to show that this person is not the person that Paul Smith had a concern about. That he didn't have any motivation to go after this person. He thought Dante has to be the one who committed the serious offense, didn't even charge Douglas, which is, you know, the point or one of the points the defense wanted to go after to -- to make --to -- in bringing this out.
And while it is a little dicey to do that, when you're behind like you are, then that's the time that a lawyer can justify taking a chance at that. And I frankly think on balance, while you can argue both sides of this, probably the better strategy was to do what [defense counsel] did.
The record fully supports the judge's conclusion that defense counsel's cross-examination was strategic. A defendant's "complaints merely of matters of trial strategy will not serve to ground a constitutional claim of inadequacy of representation by counsel." Fritz, supra, 105 N.J. at 54 (internal quotation marks and citations omitted).
Finally, defendant contends that he was denied due process of law when he was excluded from oral argument on his PCR petition. A defendant's presence during oral argument on a PCR petition is not mandatory. See R. 3:22-10;*fn1 State v. Flores, 228 N.J. Super. 586, 589-90 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989). Here, though defendant was brought from state prison to the county jail on the day of oral argument on his petition, he was not brought to the courtroom. His attorney informed the court that defendant had asked not to be present during the hearing. Counsel represented that she had spoken with defendant the previous evening and he had not changed his mind. Counsel also represented that defendant's family was present in court. She had the family members confirm that defendant did not desire to be present at the argument. Under those circumstances, the trial judge acted well within his discretion in not ordering defendant's presence at the hearing.
The remaining points raised by defendant do not warrant discussion in a written opinion. R. 2:11-3(e)(2).