August 30, 2019 at 4:52 p.m.
Motion to dismiss homicide charge filed in overdose death case
ADA files amended criminal complaint
Motion to dismiss homicide charge filed in overdose death case
David Penn, defense attorney for Bradley F. Noble, filed motions to dismiss count one, dismiss duplicate counts and to sever the lesser charges and try them separately from Count 1.
Noble was charged Aug. 14 with first-degree negligent homicide, two counts of possession of narcotic drugs, possession with intent to deliver narcotic drugs and possession of drug paraphernalia.
The homicide charge is related to the Feb. 22, 2018 death of Wesley F. Hoeft. Police believe Hoeft died as a result of ingesting drugs provided to him by Noble, according to the complaint.
The Aug. 26 hearing was supposed to be a preliminary examination to determine if there is sufficient evidence for the case to proceed, but Penn requested an adjournment of the hearing so that Oneida County Circuit Judge Patrick O'Melia could rule on the motions.
"Yes, we need to adjourn the prelim to give proper advance notice to a hearing on the three motions we filed challenging the complaint," Penn said. "And I discussed with my client the fact that he has the right to a timely preliminary hearing, which in this case would be 10 days. He knows the court bent over backwards to set this matter for a preliminary hearing today. He is willing to waive his right to a timely preliminary hearing today."
Penn then asked that O'Melia set a date to hear arguments on the three motions. He added that he might have to subpoena a witness for the preliminary hearing.
"Well, there will be a prelim, regardless," O'Melia replied, noting that the motion to dismiss one of the possession of narcotic drugs charges contained some valid points.
"What I'm saying is if (counts) one and four were dismissed today, and I'd say give me 10 minutes to sit down with my client and I would waive a prelim on the balance of the charges," Penn said.
O'Melia asked assistant district attorney Jillian Pfeifer if she was prepared for a hearing on the motions and she indicated she was.
"Well, I didn't see the motion concerning Count 1 until he just mentioned it," O'Melia said, adding that he would prefer to further review all three motions before holding a hearing.
O'Melia then set a Sept. 9 date to serve as a combination motion and preliminary hearing.
Penn then asked for a chance to argue for a reduction in the $40,000 cash bond set in the case. If Noble remains in custody, he will lose his social security disability benefits which would cause him to lose his home, Penn said.
He also noted that Noble has one misdemeanor conviction from 30 years ago and no record of ever missing a court date.
Penn argued that the purpose of bond is to ensure the defendant makes future court appearances and to protect the public. Non-monetary conditions usually accomplish the second aspect, he noted.
"(Noble) had a prescription for opioids at the time of his arrest," Penn noted, explaining that his client was prescribed opioids after suffering injuries in a 2005 traffic accident.
This led to a prolonged discussion related to the motion to dismiss one or both the possession of narcotics charges.
Penn argued that some of the drugs found in Noble's vehicle during a traffic stop Aug. 12 in the town of Monico were prescribed.
"But I think that it's clear that the court is going to have to examine the character and strength of Count 1 in the complaint to appropriately assess the amount of bond for Mr. Noble in this case," Penn argued. "My assertion is that there isn't probable cause."
Penn then pointed out under Count 1 of the criminal complain specifically mentions that Noble allegedly provided Hoeft with heroin which caused his death.
He then read from the excerpt of the pathology results by Michael A. Stier, MD, in the probable cause statement which stated "[t]he decedent's cause of death is attributed to a toxicologic process, specifically involving fentanyl and cocaine."
He argued that Count 1 was not supported because of the inconsistency in the drugs listed in the charge itself.
"So there is no legal or logical nexus between heroin and the toxicological process causing death specifically involving fentanyl and cocaine," Penn argued.
When given a chance to respond, Pfeifer stood by the strength of her evidence and argued against the modification of bail.
She also noted that she had not yet turned over discovery materials to the defense, thus Penn could not know how strong of a case she actually has.
"Also I think that the drugs located on the defendant and in his vehicle during the traffic stop showed continuing involvement in drug activity," Pfeifer said. "In addition, we did a search of his vehicle last week and we located an additional 3.5 grams of cocaine and an additional 3.5 grams of heroin."
Based on the seriousness of the charges and the potential length of sentence Noble faces if convicted, she argued "a $40,000 cash bond is more than appropriate."
O'Melia said that in this case, protection of the public was the overriding factor in determining bond.
"Someone is dead," O'Melia said. "The fact that you got put on the dashboard heroin or fentanyl or whatever substance it was that they went down to pick up or whatever substance they ultimately got - regardless of what they went down there to get - this person ultimately died as a result of it. It's conjecture to suggest that all the way back he is snorting some unknown substance in the back of the truck. There is no evidence of that."
When a sheriff's deputy stopped Noble on Aug. 12, Noble's driver's license was suspended and he also had an active arrest warrant out of Vilas County, according to the complaint.
The vehicle allegedly contained a large quantity of illegal drugs, along with a digital scale and numerous items used to either smoke or snort drugs, according to the complaint.
The judge said all of these items indicated not only drug use but drug sales as well.
The judge also noted that while Noble may lose his SSDI benefits if he remains incarcerated, if he wins release through bond or is found innocent at trial , he could reapply to have them reinstated.
He then left the $40,000 cash bond in place.
On August 28, Pfeifer filed an amended criminal complaint changing Count 1 to note that the drug police believe Noble gave Hoeft that caused his death was fentanyl. The remainder of the complaint and probable cause statement remained the same.
If convicted on the reckless homicide charge, Noble faces up to 40 years in prison and a fine of up to $100,000. The possession with intent to deliver charge carries a 15-year maximum period of incarceration and $50,000 fine and the two possession of narcotic charges each carry a maximum prison term of three years, six months and $10,000 fine.
Jamie Taylor may be reached via email at [email protected].
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