NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 1, 2013.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-01-0106.
Paul Casteleiro argued the cause for appellant.
Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief).
Before Judges Simonelli, Koblitz and Accurso.
Defendant Paul Cibelli, Jr. appeals from a January 5, 2011 judgment of conviction. A jury convicted him of first-degree murder, N.J.S.A. 2C:11-3 (count one); third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b) (count two); and third-degree possession of a weapon (a stapler) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three). After merger of count three into count one, defendant was sentenced on count one to fifty years in prison, subject to an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge sentenced defendant on count two to a consecutive five-year term. We affirm.
Defendant was originally convicted in 2007 of the murder of his girlfriend Tania Silva; however, we reversed the convictions in part because of the improper admission of evidence concerning his treatment of his former wife, and improper argument by the State in summation. State v. Cibelli, No. A-6422-06 (App. Div. June 12, 2009), certif. denied, 200 N.J. 371 (2009). Defendant raises issues concerning the grand jury presentation, jury screening procedures and alleged errors during his second trial. We summarize the facts and then review aspects of the grand jury presentation and jury screening procedure that are relevant to defendant's appeal.
Silva and defendant moved in with defendant's father in the spring of 2005 after defendant was laid off from his job.
On October 6, 2005, having decided to leave defendant, Silva rented an apartment where she planned to move the next day. That evening she went with defendant to rent a U-Haul truck and arranged to pick it up the following morning at 8 a.m.
Defendant and Silva returned home to pack. Defendant's father woke up around 6:30 a.m. the next morning and went out. Upon returning, he noticed that both defendant's and Silva's cars were in the driveway. Silva was not home and defendant said that he did not know where she was.
Silva's two friends who had agreed to help her move tried calling her, but she did not answer her cellphone. When they called again later, defendant answered and informed them that he was unsure of her whereabouts. They drove to defendant's house and Silva was not there. Soon two other friends came to defendant's home to look for Silva after she failed to answer their phone calls. Defendant approached their vehicle and explained that he did not know where she was.
Silva's four friends converged on the police station to report her missing. The police drove to defendant's home where he informed them that he last saw Silva at 1:00 a.m., did not know where she was, and that her cellphone and purse were still upstairs. Later, the police saw Silva's clothes hanging in the closet, dirty clothes in the corner of the room and an open purse with a cellphone on top, which they took.
Two days later, on October 9, 2005, defendant's father called the police to report him missing. That same day, the New Paltz, New York Police Department responded to a call at a motel, where they found defendant in an incoherent state. A backpack was recovered that contained suicide notes and a document entitled last will and testament. Defendant agreed to go to the hospital.
Three days later, Silva's body was found by an employee of a paper company who was sorting trash from recyclable papers at a plant in Philadelphia, Pennsylvania. The plant receives garbage from various pick-up locations in the region. The body was found in trash bags that also contained a yellow short-sleeve T-shirt with the words "Corona Extra Cancun" on it, yellow and blue bath towels, a Bostitch stapler and a green dowel. The State presented evidence that it takes approximately one hour and eighteen minutes to drive from defendant's house to the plant's pick-up location.
Dr. Edward Chmara performed the autopsy and determined that the cause of death was asphyxiation by manual strangulation. The body also had a fractured left collarbone, a blunt force injury below the right eye, and multiple bruises about the head, thorax and extremities. The body also had multiple defensive abrasions on the back of the hands and a two-inch laceration on the crown of the head, likely caused by being struck with a firm, hard item. Dr. Chmara believed the head would have bled profusely.
The Chief Medical Examiner of the State of Delaware testified on defendant's behalf and offered testimony consistent with Dr. Chmara about the cause of death. He believed there would have been blood found in the area where the head injury took place.
After the body was found, the FBI's Evidence Response Team searched defendant's home and the two cars. Several items were seized, including a blue-colored Bathroom Basics brand bath towel, which was similar in style, size and fiber content to the towel recovered with Silva's body. Photos on the hard drive of a computer in the home showed defendant wearing a yellow T-shirt that said "Corona Extra Cancun, " and a photo of construction work being done on the house showed a green handled tool and hammer like the Bostitch stapler. These three items resembled the ones found with the body and were not found in defendant's house. Police seized a tool belt with a sheath labeled Bostitch. The Bostitch stapler recovered with the body fit into the sheath.
Laura Cannon, an expert on mitochondrial DNA, performed tests on a pubic hair that was recovered from the yellow towel found with the body. She was on maternity leave at the time of trial. Accordingly, Colleen Kumar, an expert on mitochondrial DNA, testified without objection, based on a review of Cannon's work and her own independent analysis. Kumar agreed with the analysis done by Cannon and another done by the FBI. The hair did not belong to Silva. According to the mitochondrial DNA testing, it was consistent with defendant's hair.
A defense forensic scientist testified that blood tends to stick and get absorbed under floor tiles and wood flooring, which makes it difficult to remove. Even when invisible to the naked eye, crime scene officers can detect blood and evidence of attempts to clean ...