July 15, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
PAUL CIBELLI, JR., Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 it up. No trace blood evidence was found in the house or in the cars.
The prosecutor theorized in his summation that Silva was murdered on the unfinished upstairs deck. Defendant argued that there was no evidence that Silva was murdered in his home or that the body was transported from his home to Pennsylvania.
Grand Jury Proceedings
The grand jury met on January 13 and 20, 2006. Detective Battaille, who responded to the missing persons report, testified that he told defendant he should take a polygraph test so that he was no longer a suspect in Silva's disappearance. The prosecutor told the detective that he should not discuss "polygraph issues" before the grand jury.
Det. Battaille highlighted aspects of the police investigation. Over the course of a search of defendant's home, police found a notch in the ceiling, even though defendant appeared to be careful and meticulous about making repairs. The detective responded "yes" to the prosecutor's question asking if it was possible "that [the] damage to the ceiling could have occurred when a weapon was being lifted up over [defendant's] head to be brought down on the body of [Silva], who was sleeping on [the] sofa[.]" The detective testified that the police department believed that a Bostitch hammer stapler, found with Silva's body, caused the mark on the ceiling. He also believed that the stapler could have caused Silva's head injury.
Defendant's father testified that Silva and defendant appeared fine on the evening of October 6, 2005. That evening, both defendant and Silva told defendant's father that Silva was going to move out in the morning. They packed her belongings until approximately 1 a.m. He was unaware of any problems between the couple. Defendant's father also testified that two days later, before the body was discovered, defendant went by himself to see an attorney. In response to a grand juror's questions, he clarified that he believed the lawyer was a criminal lawyer.
Defendant's longtime friend, George Graves, who happened to be an FBI agent, testified that defendant and Silva began a relationship in late 2004 or early 2005. He explained that Silva wanted to end the relationship, but defendant wanted to stay together. A juror asked Graves whether he thought defendant murdered Silva, to which Graves responded that it was a possibility.
Detective Scott, who was the lead detective, replied "yes" when the prosecutor asked if "during the course of their marriage [defendant] had struck [his former wife] with his fist, threatened her with a knife [and] held a gun to her head. . . . And told her that if she ever tried to leave him, he would kill her rather than let her leave, and that they would never find her body." Det. Scott also replied "yes" when asked if, around the time of the murder, defendant was depressed and angry, talked of suicide and was "running through the halls naked and smearing feces on the wall, which caused him to be put in a mental institution for evaluation."
The prosecutor posed the following question to Det. Scott,
And as a result of the many interviews you conducted, your observations at the scene where the body was found, your knowledge of evidence that was located relating to the case, you and other members of the office, including myself and the prosecutor, decided to charge [defendant] with the murder of [Silva][?]
To which Det. Scott responded "[y]es, sir."
Det. Scott agreed that his decision was based on the "angry and contentious relationship, " defendant's prior domestic violence dispute with his ex-wife, and the items found with Silva's body, including the towels and shirt.
Upon questioning by the grand jurors, the prosecutor answered that they could consider defendant's history of domestic violence with his ex-wife, although previously instructed not to consider prior crime evidence.
On January 20, 2006, after the grand jury vote, the prosecutor elaborated on the law regarding Det. Scott's testimony about defendant's ex-wife. The prosecutor explained, "it's really up to you to decide whether there is a close enough relationship, whether the other crimes are relevant to this crime, in terms in particular of his motive, his plan, his state of mind, his preparation." The prosecutor stated, "I should give you an opportunity to vote again, if you want to. If you feel a need to. Does anybody feel the need to vote again?" The grand jurors responded "no."
Pre-screening of Jurors
On September 20, 2010, before the retrial began, the judge told the parties that seventy-five jurors would be coming in each day of the following week. He explained that he would ask the jurors if they could sit for a two to three week trial, but he would not give them the name of the case or provide any "significant outline." The judge planned to inform the jurors that the trial was a murder case. He intended "to get a decent size jury pool who can sit[, ]" and then start the jury selection process.
He informed the parties that they were not required to be present during the gathering of the jury pool, but could order a transcript. Defense counsel objected because he could not attend due to his other obligations, and his client wanted "to attend each and every proceeding in the process of this case . . . ." The judge explained that "[t]his [wa]s not an issue of consequence because in point of fact you will be picking the jury."
Beginning a week later, over four days, the judge solicited volunteer jurors. On each day, the judge told the potential jurors that he was going to conduct a homicide trial that would take three weeks. He asked those who wished to serve to report to a court employee.
Defendant raises the following issues on appeal:
POINT I: THE EVIDENCE WAS LEGALLY INSUFFICIENT AND THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S MULTIPLE MOTIONS FOR JUDGMENT OF ACQUITTAL.
POINT II: THE MISCONDUCT OF THE PROSECUTOR BEFORE THE GRAND JURY DEPRIVED THE DEFENDANT OF HIS RIGHT TO DUE PROCESS AND HIS RIGHT TO INDICTMENT UNDER [N.J. CONST. ART. I, PAR. 8] AND THE TRIAL COURT ERRED IN DENYING THE MOTION TO DISMISS THE INDICTMENT.
POINT III: COUNSEL'S AND THE DEFENDANT'S ABSENCE DURING THE TRIAL JUDGE'S MEETINGS WITH POTENTIAL JURORS VIOLATED THE DEFENDANT'S RIGHT TO COUNSEL AND TO BE PRESENT AT HIS OWN TRIAL.
POINT IV: THE EXPERT OPINION TESTIMONY OF COLLEEN KUMAR WAS INADMISSIBLE AND THE TRIAL COURT ERRED IN PERMITTING HER TO TESTIFY THAT SHE AGREED WITH THE OPINION OF OTHER NON-TESTIFYING EXPERTS THAT THE DEFENDANT COULD NOT BE EXCLUDED AS BEING THE CONTRIBUTOR OF A PUBIC HAIR ON A TOWEL FOUND WITH THE BODY. (PARTIALLY RAISED BELOW).
In his first point, defendant argues that the judge should have granted his motion for a judgment of acquittal. When a defendant moves for acquittal at the conclusion of the State's case under Rule 3:18-1, or after the verdict under Rule 3:18-2, the standard employed by the trial judge is the same. State v. Speth, 323 N.J.Super. 67, 81 (App. Div. 1999). In reviewing a trial court's decision to deny such a motion, "the relevant question is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Josephs, 174 N.J. 44, 81 (2002) (citation omitted). The State's evidence should be viewed in its entirety and given "'the benefit of all its favorable testimony and all of the favorable inferences' to be drawn from that testimony . . . ." State v. Spivey, 179 N.J. 229, 236 (2004) (citation omitted). On appeal, a reviewing court applies the same standard. State v. Bunch, 180 N.J. 534, 548-49 (2004).
A case can be proven with circumstantial evidence, as long as the evidence proves guilt beyond a reasonable doubt. State v. Dancyger, 29 N.J. 76, 84 (1959), cert. denied, 360 U.S. 903, 79 S.Ct. 1286, 3 L.Ed.2d 1255 (1959).
Sufficient evidence was presented to convict defendant. First, the jury heard testimony about the physical evidence that was recovered with Silva's body. The yellow towel contained a pubic hair consistent with defendant's hair. The blue Bathroom Basics towel was similar to those seized from defendant's house. The yellow T-shirt looked like the shirt defendant was previously photographed wearing. The Bostitch stapler and green dowel looked like ones previously photographed at defendant's house, and the stapler fit into a sheath owned by defendant. The stapler, green dowel and yellow shirt were not found in the home after Silva disappeared.
Defendant confided in his friend, Graves, that he and Silva were having problems that he was hoping they could work out. Defendant's father told police that defendant was obsessed with Silva. Silva did not tell either defendant or his father where she was moving. It was suspicious that Silva's car and various personal belongings were still at defendant's residence although she was gone.
On October 7, when Silva's friends spoke with defendant about Silva's whereabouts, defendant became emotional. He was distraught shortly after Silva disappeared and wrote suicide notes to his father, children and to Graves.
Defendant was the last person who saw Silva alive and he had enough time to drive to a dumpster to drop off her body before his father, who was a heavy sleeper, woke up. Additionally, by the time police conducted an additional investigation, heavy rain may have washed away trace blood evidence from the second floor deck, where the murder may have taken place.
While the lack of blood evidence is surprising given the testimony that the trauma Silva suffered would have resulted in significant blood splatter, the State presented sufficient evidence to allow a jury to find, beyond a reasonable doubt, that defendant killed Silva.
Defendant argues in Point II of his brief that the indictment should have been dismissed due to an improper grand jury presentation in that (1) the prosecutor opined to the grand jury that he and members of his office believed the evidence supported a murder charge against defendant; (2) the prosecutor instructed the grand jury that it could consider defendant's domestic violence history; (3) the prosecutor presented an incorrect supposition that the stapler may have caused the notch in the ceiling; (4) a police officer testified that defendant was asked to take a polygraph; and (5) grand jurors questioned defendant's father about defendant consulting a criminal defense attorney and questioned defendant's friend about whether he believed defendant committed the murder.
Although we reversed defendant's conviction in large part because the trial judge allowed into evidence defendant's history of domestic violence with his ex-wife, Cibelli, supra, (slip op. at 14-22), we review the admission of evidence before a grand jury differently than at trial.
We review a trial court's denial of a motion to dismiss the indictment for an abuse of discretion. State v. Warmbrun, 277 N.J.Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). An indictment should be dismissed "only on the clearest and plainest ground, . . . and only when the indictment is manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996) (citations and internal quotation marks omitted). Prosecutorial misconduct should not be used as a means to dismiss an indictment, unless it "is extreme and clearly infringes upon the [grand] jury's decision-making function, " State v. Murphy, 110 N.J. 20, 35 (1988) (alteration in original) (citing State v. Schamberg, 146 N.J.Super. 559, 564 (App. Div.), certif. denied, 75 N.J. 10 (1977)), and "amounted to an intentional subversion of the grand jury process." Ibid.
In State v. Engel, 249 N.J.Super. 336, 361 (App. Div.), certif. denied, 130 N.J. 393 (1991), we found the grand jury proceedings fair even though numerous errors were made by the prosecutor. The prosecutor, as here, erred by presenting evidence about the defendant's mistreatment of his first wife. Ibid. The prosecutor also attempted to show that the defendants had made up a story about the victim, "where the record d[id] not in any way support a conclusion that the State had evidence of such a fabrication." Ibid. Lastly, the prosecutor referenced the defendants' incarceration and that bail was denied. Ibid. Nevertheless, we concluded that, "[w]hile we do not endorse all of the prosecutor's tactics or methods, we discern no course of conduct impairing the grand jury's capacity to fairly decide the issues before it." Ibid.
A "'grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge.'" State v. Grant, 361 N.J.Super. 349, 357 (App. Div. 2003) (quoting United States v. Williams, 504 U.S. 36, 51, 112 S.Ct. 1735, 1744, 118 L.Ed.2d 352, 368 (1992)). "Consistent with that view we have upheld the validity of indictments by grand juries presented with a variety of evidence that would have been inadmissible at trial." Ibid. The grand jury's "power of inquiry is not bound by the rules of evidence." State v. Hogan, 336 N.J.Super. 319, 338 (App. Div.), certif. denied, 167 N.J. 635 (2001). See also State v. Scherzer, 301 N.J.Super. 363, 428-29 (App. Div.) (permitting evidence of prior bad acts), certif. denied, 151 N.J. 466 (1997); State v. Holsten, 223 N.J.Super. 578, 585-86 (App. Div. 1988) (permitting hearsay and leading questions).
Even if errors occur in grand jury proceedings, the errors are typically cured if the petit jury later finds the defendant guilty. State v. Cook, 330 N.J.Super. 395, 411 (App. Div.) (A guilty verdict renders harmless any failure to present exculpatory evidence to the grand jury.), certif. denied, 165 N.J. 486 (2000); State v. Laws, 262 N.J.Super. 551, 563 (App. Div.) (finding the slight chance that the grand jury was uninformed as to the law "was rendered moot by defendant's subsequent trial and convictions"), certif. denied, 134 N.J. 475 (1993); State v. Ball, 268 N.J.Super. 72, 120 (App. Div. 1993) (finding that even if grand jury instructions were erroneous, the error was rendered moot by a later conviction at trial), aff'd, 141 N.J. 142 (1995), cert. denied, sub nom. Mocco v. New Jersey, 516 U.S. 1075, 116 S.Ct. 779, 133 L.Ed.2d 731 (1996).
In the context of our limited review of grand jury proceedings, the errors claimed by defendant are of the same type that we have previously found insufficient to dismiss an indictment. Further, we are satisfied that any error in the grand jury proceeding was cured by the jury's guilty verdict following a demonstrably fair trial.
In Point III defendant argues that the pre-screening of jurors violated his right to be present during every aspect of the trial. A defendant has a constitutional "right to be present in the courtroom during every 'critical stage' of the trial." State v. Reevey, 417 N.J.Super. 134, 149 (App. Div. 2010) (citation omitted), certif. denied, 206 N.J. 64 (2011). This right is guaranteed pursuant to a defendant's right to confront witnesses and protected by the Fourteenth Amendment if his or her absence would "hinder a fair and just hearing." Ibid. (citations omitted). Accordingly, this right exists not only at trial, but at pretrial proceedings. Id. at 149-50; see also R. 3:16(b). Defendant has the right to be present at jury selection. State v. W.A., 184 N.J. 45, 48 (2005); State v. Smith, 346 N.J.Super. 233, 236-37 (App. Div. 2002) (finding that a defendant was deprived of a fair trial because he was not present until after the jury was selected); R. 3:16. A judge may not conduct voir dire of a prospective juror in sidebar interviews while the attorneys remain at the counsel table, even if the interaction is recorded and defense counsel does not object. State v. Lomax, 311 N.J.Super. 48, 57 (App. Div. 1998); see also State v. Dishon, 297 N.J.Super. 254, 269-75 (App. Div.) (determining that a judge's refusal to allow a defendant to be present during part of voir dire denied him a fair trial), certif. denied, 149 N.J. 144 (1997). Here, however, defendant was present during jury selection, although not at the jurors' pre-screening.
Defendant objects that he was not present to view the demeanor of the jurors who volunteered to serve in his jury pool and thus was unable to gain more information for the exercise of his preemptory challenges. See W.A., supra, 184 N.J. at 54-55 (discussing that a defendant should be present during jury voir dire in order to glean an impression of the jurors).
We are troubled by the ad hoc method of accumulating jurors used here. Jurors are administratively excused based on physical or medical incapacity, prior criminal conviction, age or inability to read or understand English. See N.J.S.A. 2B:20-1. They may also defer service or seek a hardship excuse. N.J.S.A. 2B:20-10(c). We are unaware of any precedent, however, for asking jurors to volunteer for service on a murder trial at a later date. Such a process could skew the jury pool by obtaining a disproportionate number of retired people, people who are paid by their employer to serve on jury duty, or people eager to serve on a murder case. Whether these categories of jurors are inclined to favor the defense or the State is unknown. But a pool should be a random selection of eligible jurors. N.J.S.A. 2B:20-2. Arguably, this process might interfere with that random selection. Defendant cannot demonstrate, however, that he was prejudiced in any way by this unorthodox method of pre-screening and therefore we do not order a third trial. See State v. Dellisanti, 203 N.J. 444, 458-59 (2010) (stating that where confrontation issues are not present, a defendant must show prejudice from violation of his right to be present).
In Point IV defendant asserts that, although he did not object to Kumar's testimony, his objection to her reliance on the opinions of Cannon and the FBI report should have caused the judge to suppress Kumar's testimony in its entirety. He argues that her testimony was nothing more than an agreement with the conclusion of the scientist who did the testing and another scientist who reviewed the testing scientist's work. Defendant argues that he was deprived of his right of confrontation.
Kumar testified that she "independently analyzed all the data" and came to her own conclusions. Kumar also stated that she agreed with the analysis done by Cannon. We analyze the issue of whether Kumar should have been permitted to testify under the plain error standard. R. 2:10-2.
Defendant relies on Bullcoming v. New Mexico, 564 U.S. ___, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), arguing that a forensic report cannot be introduced for the purpose of proving a fact through testimony of a scientist who did not sign the report. In Bullcoming, however, the expert who testified about a defendant's blood alcohol content did not do the testing and was only familiar with the lab's testing procedures. Id. at ___, 131 S.Ct. at 2709, 180 L.Ed.2d at 616. The Supreme Court found the report testimonial, and found a Crawford violation since the defendant could not confront the analyst. Id. at ___, ___, 131 S.Ct. at 2710, 2716, 180 L.Ed.2d at 616, 623.
These facts are more analogous to Williams v. Illinois, 567 U.S. ___, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), where a plurality of the Supreme Court held that the Confrontation Clause was not violated when a forensic expert testified about her independent conclusions based on information that was provided by a DNA testing laboratory. In Williams, technicians from an outside lab generated a DNA profile for a male whose sperm was identified in a vaginal swab taken of the crime victim. Id. at ___, 132 S.Ct. at 2229, 183 L.Ed.2d at 100. The testifying expert, a member of the state police lab, entered that profile into the State's DNA computer database and found a matching profile Ibid At the subsequent rape trial the expert testified about the profile match Id at ___, 132 S.Ct. at 2230 183 L.Ed.2d at 101 The testifying expert did not vouch for the quality of the lab work Id. at ___, 132 S.Ct. at 2227 183 L.Ed.2d at 98 The Court reasoned
Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause Applying this rule to the present case we conclude that the expert's testimony did not violate the Sixth Amendment
Here the forensic report was not introduced into evidence Additionally Kumar confirmed that she conducted her own independent analysis and only after conducting that analysis did she agree with Cannon's conclusions Kumar was cross-examined There was no Crawford violation
No defendant is entitled to a perfect trial Lutwak v United States 344 U.S. 604 619 73 S.Ct. 481 490 97 L.Ed. 593 605 (1953); State v Feaster 156 N.J. 1 84 (1998) Defendant's second trial was fair and did not violate his rights.