Original WP 5.1 Version (NOTE: This decision was approved by the court for publication.)
This case can also be found at 302 N.J. Super. 408.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
STATE OF NEW JERSEY,
JOHN W. DREHER,
Argued March 18, 1997 - Decided June 20,
Before Judges Michels, Muir, Jr., and Kleiner
On appeal from the Superior Court of
New Jersey, Law Division, Morris County.
Paul Mogin (Williams & Connolly) of the
Washington, D.C. bar, admitted pro hac vice,
argued the cause for appellant (Stern &
Greenberg, and Mr. Mogin, attorneys; Mr.
Mogin, of counsel; Marcie R. Ziegler, Dan S.
Sokolov, Herbert J. Stern, Jeffrey Speiser,
and Mr. Mogin, on the brief).
Joseph Connor, Jr., Assistant Prosecutor, and
Josephine R. Potuto, Special Assistant
Prosecutor, argued the cause for respondent
(John B. Dangler, Morris County Prosecutor,
attorney; Mr. Connor, on the brief).
The opinion of the court was delivered by
Defendant appeals from his conviction of the purposeful and
knowing murder of his wife. Defendant's previous conviction for
this same crime resulted in a reversal on appeal and a remand for
a new trial.
On this second appeal, defendant raises the following points
I. THE TRIAL COURT IMPOSED ERRONEOUS
RESTRICTIONS ON THE CROSS-EXAMINATION OF
II. THE TRIAL COURT ERRONEOUSLY PERMITTED THE
STATE TO ELICIT A PURPORTED EXPERT OPINION
CONCERNING TIME OF DEATH THAT WAS BASED ON AN
ARBITRARY AND UNSCIENTIFIC METHODOLOGY.
III. THE TRIAL COURT'S SUPPLEMENTAL INSTRUCTION
IMPROPERLY DILUTED THE REQUIREMENT OF PROOF
BEYOND A REASONABLE DOUBT.
IV. THE TRIAL COURT ERRED IN PERMITTING
THE STATE TO RELY ON DEFENDANT'S
PRE-ARREST SILENCE AS PROOF OF
V. THE TRIAL COURT ERRED IN ITS
RULINGS CONCERNING THE STATE'S
EXTRAORDINARY ACTION IN CAUSING A
POLICE CAPTAIN TO ORDER THE
DESTRUCTION OF ALL CONTEMPORANEOUS
VI. IT WAS ERROR TO ADMIT AUSTIN LETT'S
TESTIMONY DESPITE THE DESTRUCTION
OF CRUCIAL EVIDENCE OF HIS
VII. LETT'S TESTIMONY SHOULD HAVE BEEN
EXCLUDED BECAUSE THE HYPNOSIS WAS
CONDUCTED IN DISREGARD OF HURD.
VIII. THE EXCLUSION OF THE
CONTEMPORANEOUS BENCH NOTES
DOCUMENTING THE OBSERVATION OF A
SPERM WAS ERROR.
IX. THE TRIAL COURT ERRONEOUSLY
ADMITTED UNRELIABLE HEARSAY.
X. THE TRIAL COURT ERRED IN FAILING TO
CONDUCT AN ADEQUATE INQUIRY INTO
EVIDENCE OF EXTRANEOUS INFLUENCE ON
XI. IT WAS ERROR NOT TO INSTRUCT THE
JURY THAT NATHAN SEIFRIT WAS
XII. THE TRIAL COURT ERRONEOUSLY BARRED
CROSS-EXAMINATION THAT WOULD HAVE
ELICITED EXCULPATORY EVIDENCE.
XIII. THE STATE VIOLATED DEFENDANT'S
RIGHT TO AN INFORMED AND UNBIASED
After a thorough review of the extensive record, we are
satisfied that defendant's conviction should stand. We therefore
Defendant John W. Dreher was originally indicted in May 1987
and charged with the purposeful or knowing murder of his wife,
N.J.S.A. 2C:11-3a(1) and (2); unlawful possession of a knife,
N.J.S.A. 2C:39-5d; possession of a knife with an unlawful
purpose, N.J.S.A. 2C:39-4d; and conspiracy to commit murder,
N.J.S.A. 2C:11-3a and 2C:5-2. He was found guilty by a jury and
sentenced to life in prison with a 30-year period of parole
This court then reversed defendant's conviction and remanded
for a new trial because of error in admitting hearsay statements
made by the murder victim prior to her death and because of the
prosecutor's improper reference in summation to hearsay
statements made by defendant's son. SeeState v. Dreher,
251 N.J. Super. 300, 316-21 (1991), certif. denied,
127 N.J. 564
(1992) (hereinafter Dreher I). We found that the errors were not
On November 4, 1993, a Morris County grand jury returned a
superseding indictment, charging defendant with purposeful
murder, N.J.S.A. 2C:11-3a(1), (count one); knowing murder,
N.J.S.A. 2C:11-3a(2), (count two); purposeful infliction of
serious bodily injury resulting in death, N.J.S.A. 2C:11-3a(1),
(count three); knowing infliction of serious bodily injury
resulting in death, N.J.S.A. 2C:11-3a(2), (count four);
conspiracy to commit murder, N.J.S.A. 2C:11-3a and N.J.S.A. 2C:5-2,(count five); and possession of a knife with an unlawful
purpose, N.J.S.A. 2C:39-4d, (count six).
After many months of pre-trial motions, defendant's second
trial commenced on March 1, 1995. The trial continued on various
dates until its conclusion with a guilty verdict on all charges
on May 10, 1995. Defendant's subsequent motions for a new trial
or judgment of acquittal were denied as was his motion to examine
the jurors. The sentencing judge merged all of defendant's
convictions into the first count of purposeful murder and
sentenced defendant to life imprisonment with a thirty-year
period of parole ineligibility. Appropriate penalties were also
On July 28, 1995, defendant filed a timely notice of appeal
with this court. He has been denied bail pending appeal.
Defendant met Nance Seifrit in a bar in early 1985 while he
was in El Paso, Texas for business reasons; the two began to have
an affair. During 1985, the two kept in touch and met on several
occasions. In the fall of 1985, Seifrit moved to Chatham, where
defendant lived with his family.
Seifrit, the State's chief witness, who was granted
immunity, testified that defendant complained that his wife was a
heavy drinker and did not properly care for their two children.
Defendant told Seifrit that the two of them would be happy
together if he were not married. Beyond this, however, they
never discussed marriage, he never asked Seifrit to marry him,
and he never discussed divorcing his wife. Other witnesses, who
knew defendant's wife, Gail Dreher, confirmed that the marriage
had been rocky. Both of defendant's sons, Peter and David,
however, testified that their parents were not having any marital
problems. The two sons were both in middle school at the time of
their mother's murder and were in their early twenties during the
second trial. At that time, they both lived at their father's
house and worked for the family's leather business.
According to Seifrit, defendant called her at her mother's
house on New Year's Day 1986 to make sure that she would be at
her apartment in Chatham the following morning. On January 2,
1986, defendant and Seifrit made plans to confront defendant's
wife and tell her about their affair. They arranged for Seifrit
to come to defendant's house at about 7:30 a.m., after his sons
had left for school.
When Seifrit arrived, she pulled into the driveway and
parked her car in the garage as defendant had instructed.
Defendant's car was in the back of the driveway, and the garage
door was open. Seifrit knocked twice on a door that led from the
garage into the house, but there was no answer. Instead, the
door swung open by itself, and Seifrit saw the laundry room. She
then saw Gail Dreher enter the laundry room, wearing a nightgown.
Gail became upset and asked Seifrit who she was. Seifrit
immediately began yelling for defendant.
Defendant came up from behind Gail and hit her with a block
of wood. As Gail started to turn, defendant hit her again, on
the shoulder. Defendant started to pull Gail by her arm toward
the doorway, yelling for her to keep moving. The angrier
defendant got, the less Gail argued. They went down the basement
steps, with defendant yelling, "just move it, bitch." Gail was
saying, "just do what you want, please."
Defendant yelled for Seifrit to come downstairs. She went
halfway down the basement stairs, where she was able to see the
lower part of Gail's legs. She then went back up and said that
she would not come back down. Defendant said that he needed
help. He asked Seifrit to bring him something sharp. When
Seifrit replied that she did not know what defendant wanted,
defendant told her to get something sharp from the kitchen, like
a knife or a pair of scissors. Seifrit opened up a kitchen
drawer and pulled out a knife. She went back down the stairs and
saw Gail tied by her neck to a pole. Gail was in somewhat of a
sitting position, but her face was blue. Defendant was kneeling
beside his wife, pulling on the rope around her neck. Seifrit
tossed the knife to defendant. He picked it up and stabbed Gail
in the throat. Seifrit, who was standing at the bottom of the
stairs while this happened, then went back upstairs.
Defendant came upstairs, removed the gloves that he had been
wearing and put them, as well as the twine that he was holding,
on the kitchen table. He then went to a hall closet and handed
Seifrit a fur coat. He instructed her to put it in the trunk of
her car, which she did. Defendant then told her to take jewelry
and other items from the house and make the house look as if it
had been robbed. Defendant, in the meantime, was getting dressed
for work. Defendant then announced that he had to leave to pick
up his father for work. Defendant told Seifrit to go back down
to the basement to make sure that "everything was done" and to
find everything that was on the pool table.
When Seifrit went downstairs, she saw a metal cobbler's
lastSee footnote 1 on the pool table, which she picked up and dropped on
Gail's head. She then picked up the knife and stabbed Gail a
couple of times. Gail made no movement or noise; her head was
hanging down, and Seifrit could not see her face. Seifrit went
upstairs with the knife without looking for anything further on
the pool table. As she started up the steps, she saw a necklace
on the floor, which she picked up. She put the necklace and the
knife in the pillowcase, left the house, and returned to her
apartment. There, she put the pillowcase in a garbage bag, which
she put in the trash cans behind her apartment. The garbage was
picked up later that morning. Seifrit claimed that she had been
wearing her driving gloves the entire time that she was in
Seifrit then phoned defendant at his office. He told her to
calm down and not to worry. He asked her if she had gotten rid
of the jewelry, and Seifrit said that she had. Defendant seemed
upset that she had picked up the knife. He also asked her about
the earrings on the pool table. Seifrit said that she never saw
them. Defendant told her that he'd "take care of it" and that he
would call her back later. Telephone records confirmed that
Seifrit placed this call at 8:49 a.m. and that it lasted for ten
minutes. Seifrit spoke to defendant again before she left to go
to work at her job at a restaurant. Again, he tried to reassure
her. She spoke to him a third time that day when he called her
at work. He told her that he intended to return to his home
before his sons got home from school.
For Peter and David Dreher, January 2, 1986, started out as
a typical day. They both came downstairs to eat breakfast before
school, and they both recall seeing their mother dressed in her
pink nightgown. Their father had brought bagels home after
playing squash, and their parents had tried out their new coffee
maker. Peter and David left for school at about 7:30 a.m.; Peter
left first, and David followed shortly behind. Peter went home
with a friend after school that day. David arrived home at his
usual time, shortly before 3:00 p.m.
As David walked in through the unlocked garage door, he saw
his mother's station wagon in the garage. He called out for her;
when he got no answer, he assumed that she was out visiting a
neighbor. Defendant came home about ten minutes later. He said
that he was home early because he and Gail had a social
engagement that evening. Although David never said so at the
first trial, at the second trial, he claimed that when his father
walked in, he asked where everybody was.
Defendant went upstairs and then came back down and
announced, "I think we've been robbed." He called the police
from the kitchen. At no point did defendant call out for his
wife. After calling the police, defendant went downstairs to the
basement. He came up shortly thereafter, hugged David, and said,
"Mom's downstairs, I think she's dead." David was in shock. His
father called the police a second time from the sunroom. When
Peter called from his friend's house, David told him to stay
where he was because there had been a break-in.
The Chatham Township Police dispatcher confirmed that he
received defendant's first call at 3:32 p.m. reporting a robbery.
Two patrol officers were immediately dispatched to the house.
Five minutes later, defendant called again, stating, "Can you
hurry. I think my wife is dead." An emergency squad and a
mobile intensive care unit were notified. The tape recordings of
both phone calls were played to the jury. Officers arrived on
the scene at 3:39 p.m. The criminal identification division of
the sheriff's department, the Morris County prosecutor's office,
and the medical examiner were notified within minutes of the
officers' arrival on the scene.
Chatham Police Officer Peter Katsakos, along with his
partner Eric Carlson, were among the first to arrive at the crime
scene. The officers observed a female victim lying with her back
toward the stairs, tied with her hands behind her back with
string. The string continued around her neck, and her head and
shoulders were suspended from a lally column,See footnote 2 about six to ten
inches off the carpeted floor. She was wearing a nightgown,
which was bunched up around her waist. There was what appeared
to be a dried blood stain near the shoulders of the gown, and
dried fecal matter was on the victim's bare buttocks and legs.
Katsakos later observed that the victim's face was bloated,
purple, and blotchy. About a foot away from the body was a metal
cobbler's last. The string used to tie the victim's hands and
neck had a lot of haphazard knots in it. The victim had a wound
on her scalp and spittle coming out of her mouth. There was a
gold bracelet on her left wrist, and, as her body was being
removed, Katsakos found a gold heart on the floor beneath her.
Gregory Allman of the Morris County prosecutor's office
arrived on the scene at about 4:30 p.m. He confirmed Katsakos'
and Carlson's observations. He also explained that the victim's
head wounds were not immediately visible from the bottom of the
stairs and that it was not until he got closer to the body and
examined it that he observed multiple blunt force trauma wounds
to the head.
Later that afternoon and evening, the investigators walked
through the house to look for obvious signs of disruption. In
the den, the officers noticed that all of the drawers of a roll-top desk had been pulled out and that papers on the top were
scattered. None of the contents of the drawers had been
ransacked. In the living room, the doors to the liquor cabinet
had been opened, but the contents were not disturbed. In the
dining room, a silver tea service, china, and crystal all
appeared undisturbed. In the kitchen, an empty frying pan was on
the stove; a pair of soft shoes or slippers were found on the
kitchen floor. Katsakos observed a television and videocassette
recorder in the sunroom, and Allman observed a fur coat and
several purses in the hallway closet.
Upstairs, in the master bedroom, a jewelry box was observed
on the floor, with its contents scattered. The doors to the
armoire were open and its drawers pulled out, as were the drawers
to an end table. The drawers to the table appeared as if they
had all been pulled open to the same length. It appeared as if
the contents of one of the drawers had been emptied onto a
pillow. In the master bathroom, the drawers to the vanity had
been pulled out, exposing miscellaneous toiletries; some cleaning
supplies had been thrown onto the floor.
Katsakos checked the house for possible points of entry but
found none. He also went outside to check for disturbances in
the yard or around the exterior of the house. He found no points
of entry at any of the doors or windows. That fact was
subsequently confirmed by a locksmith who changed defendant's
locks the following day.
Ernest Tucker, the chief medical examiner for Morris County
at the time of the murder, arrived on the scene at 4:30 p.m. He
noted that the victim's head was suspended about six to eight
inches off the floor and that her face, lips, and ears were blue,
a condition known as cyanosis from the loss of oxygen in the
blood. This loss was due to the occlusion of her upper airway,
which had been caused by the string passing above her larynx,
causing her tongue to block the back of her throat. Blood had
soaked into the back and right arm of her nightgown. There was a
stab wound to the throat and three gashes to her head which had
exposed the bone underneath the scalp. Her body was cold and
stiff, and she had defecated.See footnote 3 She was not wearing any
underwear, and her feet were bare.
The nylon string that had been used to tie the victim's head
to the lally column was about fifteen inches off the floor. It
was tied in an open loop, not a noose, using four separate
strands of string. Her hands were tied behind her back but not
close together. The skin between the string on her arms was
swollen, indicating that she had been alive at the time that she
had been bound. The only other sign of struggle in the basement
was a broken kite. There was very little blood on the floor.
The blood, the fecal material on the victim's buttocks and legs,
and the spittle coming from the victim's mouth, were all dried.
The body temperature at 5:30 p.m. was eighty-three degrees.
The temperature of the basement was seventy degrees. At 5:40
p.m., Tucker drew vitreous fluid from the victim's left eye to
help him determine the time of death. Her body was removed from
the basement at 9:00 p.m. so that an autopsy could be performed.
The autopsy revealed that the victim was approximately 5'5"
tall and that she weighed between 130 and 150 pounds. She had
eight stab wounds in her back, the largest of which was one inch
in diameter. Four wounds were on her right side, and she had
four wounds on her left side. Tucker described each of the eight
wounds in detail for the jury. He explained that some of the
wounds were superficial but that two had actually penetrated the
victim's lungs. The left lung was partially collapsed. There
was not much bleeding associated with any of these wounds,
indicating that they were inflicted either at the time of death
or after the victim had already died.
Tucker could not say in what sequence the wounds had been
inflicted. He estimated that the wounds had been inflicted with
a knife, with a tapering blade no wider than one inch. An
ordinary kitchen knife was consistent with such wounds. Neither
the wounds nor the collapsed lung, however, were the cause of
The three wounds to the victim's head were consistent with
the metal cobbler's last. The skull was not fractured, there was
no injury to the brain, and there was some bleeding, but it was
minimal. He opined that the wounds were probably inflicted at
the time of death but were not the cause of death.
Tucker also observed a stab wound in the front of the
victim's neck. The wound was associated with a small amount of
bleeding, some of it internal. It caused no injury to the
victim's larynx and was consistent with a knife wound. Although
it was inflicted at the time of death, it was also not the cause
A purplish discoloration on the left side of the victim's
neck suggested an attempted manual strangulation, as did a small
hemorrhage in the inner surface of the trachea and larynx. In
addition, a bruise on the inner front of the victim's right upper
arm, overlying the biceps, was consistent with someone having
grabbed her with a thumb.See footnote 4 Another bruise was found on the
front of her right shoulder, just below the collar bone.
With regard to internal injuries, Tucker found a subcapsular
hematoma of the liver and a tiny hemorrhage in one of the
capillary muscles of the heart's left ventricle, both of which
were consistent with a heavy blow being delivered by a knee or
fist to the victim's lower chest or upper abdomen. The victim's
stomach contents were retrieved and revealed a brownish liquid
material consistent with coffee.
Tucker examined the victim's vagina, both internally and
externally, and found no signs of injury. No injury was found in
either the anal or rectal area. Specimens were taken from all
three areas, as well as from her nasal and oral cavities, and
preserved for testing. Based on his observations, Tucker
concluded that there was no evidence of a sexual assault. He
concluded that the victim died of ligature strangulation.
With respect to the time of death, Tucker first noted that
such an estimation is not an exact science. In this case, the
medical examiner considered such factors as rigor mortis, the
stiffening of muscles after death; liver mortis or lividity, the
discoloration of the lower surfaces of the body where red blood
cells collect after death due to gravity; body temperature, and
the concentration of vitreous potassium, the gelatinous fluid in
the back of the lens of the eye into which potassium is released
Tucker opined that rigor mortis does not begin until two to
five hours after death. Here, the victim had generalized rigor
mortis over her entire body. This occurs usually at eight hours
after death, give or take two hours. Hence, she had probably
been dead for a minimum of six hours. He noted, however, that
physical exertion prior to death could cause rigor mortis to
settle in more rapidly, as could a warm room.
Tucker noted that liver mortis begins within thirty minutes
of death and continues for the next couple of hours. Once
lividity becomes fixed, a red or pink area on the skin will not
blanche even when pushed. Fixed lividity, which was demonstrated
in this case, requires a minimum of six hours. Tucker noted,
however, that there was a portion of the lividity that was
inconsistent with the position of the body as found. There was
lividity along the victim's right leg and buttocks, which
suggested that the body may have been moved after death. The
time required for lividity to redistribute itself is longer than
the time required for it to develop in the first place.
Tucker stated that the victim's potassium concentration
level was 7.3 milliequivalents per liter. Using a graph that
plotted known potassium concentration levels in people who had
died versus the number of hours since their death, Tucker
concluded that the victim had died ten hours earlier, give or
take four hours. Since her vitreous fluid was drawn at 5:40
p.m., she died sometime between 3:40 a.m. and 11:40 a.m. but
probably closer to 7:40 a.m. This conclusion was also consistent
with his findings on rigor mortis and lividity. Tucker was
careful to note it was a range only and not a precise time.
With regard to body temperature, Tucker noted that the rule
of thumb was that a dead body loses one-and-one-half degrees per
hour. Here, the victim lost 15.6 degrees, which meant that she
had been dead for a little over ten hours, placing her time of
death at 7:30 a.m. The factors affecting this calculation
included the amount of clothing on the victim, her body build,
and room temperature.
Considering all of the above factors, Tucker concluded
within a reasonable degree of medical certainty that the victim
had been killed sometime between 7:00 and 8:00 a.m., with a
diminishing probability that it was later than 8:00 a.m.
Tucker was vigorously cross-examined about the manner in
which he took the specimens from the victim's oral and nasal
passages and about the methodology that he used for determining
the probable time of death. Tucker admitted that he may have
taken a specimen from only the very front of the victim's mouth
because her jaw was clenched due to rigor mortis. Edward Poli of
the sheriff's office, who was present to photograph the autopsy,
verified that the victim had been placed in the body bag in a
face-down position and had remained that way for almost one-and-one-half hours prior to the start of the autopsy. Tucker
conceded that if any saliva had flowed out of the victim's mouth
during the body's transportation to the morgue, it had not been
Regarding the time of death, Tucker admitted that, as of
January 9, 1986, he had estimated the time of death to be 9:00
a.m., give or take four hours. This estimate, however, was
before he had done his vitreous potassium calculations. Tucker
admitted that if he had done his vitreous potassium calculations
differently, using a linear regression instead of a range plucked
from two points on the graph, time of death would have been
estimated at 10:10 a.m.See footnote 5 Tucker also admitted that he had
testified before the grand jury in 1993 that time of death was
between 7:30 a.m. and 3:30 p.m. Tucker nevertheless maintained
that it was his opinion that the victim had been killed in the
morning and that it was more likely that she was killed in the
early morning. He stated that he was "quite" sure it was the
morning, and "reasonably" sure it was the early morning.
Patricia Kantha Rose, a forensic chemist at the New Jersey
State Police laboratory, conducted the examination of the
specimens taken from the victim at the time of her autopsy.
According to Rose, the victim's oral swabs were negative for
seminal material but positive for blood. The swabs were tested
for acid phosphatase, an enzyme found in high concentration in
semen. The oral smears were placed under the microscope to
ascertain the presence of any sperm cells. Both slides were
negative. The vaginal swabs and smears were likewise negative
for any seminal material or sperm cells, as were the anal swabs
and smears. Similarly, the cervical swabs, the vaginal smears,
the vaginal washings, the anal washings, and the anal wipe were
Rose explained that she performed three separate tests on
the victim's saliva swabs. She first did a screening for acid
phosphatase, which was negative. At a later point in time, she
did a P30 test to test for the presence of a certain protein, and
she also did a microscopic examination. All three tests produced
negative results. The saliva smears were also negative for
Rose did the same three tests on the nasal swabs that she
did on the saliva swabs. All three were negative. On one of the
slides for the nasal smears, however, Rose found a single sperm
cell. According to Rose, it was a "textbook perfect" sperm cell.
It was the proper size for a sperm and it had all the
morphological features of a sperm. Nevertheless, because she
felt that it was an unusual finding, Rose had two of her
supervisors, Burt Heaney and Joselito Versoza, confirm it. They
both did. Versoza also testified at trial that the sperm was a
"textbook" finding. Rose explained that all it takes to render a
sperm result "positive" is the finding of at least one perfect
In Rose's opinion, elicited on cross examination, the
presence of even one sperm cell was dispositive for the presence
of semen and that there was sexual contact with the victim. Rose
also explained how it could happen that sperm was detected in the
victim's nose but not in her mouth. According to Rose, the oral
and saliva samples could have degraded due to moisture, heat, or
bacterial contamination or they might not have been air dried
thoroughly enough before they were packaged. She also noted that
the oral smears were "thick" when she examined them, rendering it
more difficult to detect the presence of sperm. In her opinion,
the fact that something was not detected did not mean that it was
not deposited. She believed that the finding of one sperm on the
nasal slide was significant.
The medical examiner vehemently disagreed with Rose's
interpretation of the significance of the single sperm finding.
Tucker explained that the typical male ejaculation contains
approximately 250 million sperm. Tucker believed that the
reported finding of a single sperm in a nasal passage, without
any other evidence of sperm, semen, or sexual trauma or injury in
or to any other part of the victim's body, was aberrational and
should not be taken seriously. He noted that it was very easy to
make a mistaken identification because mucous, pollen, and fungus
all look like sperm. He pointed out that there was no
explanation for what had happened to the other 249,999,999 sperm
from the putative ejaculation. He also noted that sperm can be
detected for up to three days following intercourse, meaning that
the victim could have had sexual contact in the three days prior
to her death. He was not sure, however, how long sperm survived
in the nose.
Tucker was forced to admit on cross-examination that all
that it takes is one sperm to create a human being, that he was
not sure how many sperm would ordinarily show up on a nasal smear
following oral sex and that he never personally examined the
nasal slide in question. He posited that there were other ways,
besides oral sex that a single sperm could have ended up on the
victim's nasal smear. For example, the victim could have come
into contact with semen on her sons' underwear and then touched
The crime scene was carefully processed for evidence.
Sheriff's Officer Poli explained that he collected various pieces
of evidence from the house and that he took fingerprints, palm
prints, hair samples, and saliva samples from the victim as well
as from the immediate members of defendant's family. He
acknowledged that three knives, each with blades of six to seven
inches, were sitting in plain view in the kitchen on the
countertop. Six additional knives were found in the kitchen
drawers, and five more were found in the dishwasher. No string
was found in the house that matched the string used to tie up the
Sheriff's Officer Thomas Baxter processed the house for
fingerprints. Elimination prints were taken from defendant,
members of his family, people who worked in the house, friends,
and, at a later time, Nance Seifrit. Baxter lifted many
identifiable prints from the house. Although he ultimately did
seventy-four examinations for comparison, none of the lifted
prints matched anyone other than defendant and his family.
Baxter conceded that one of the two glasses found in the
dining room contained the victim's prints along with an
"unidentified" print, but he claimed that the unidentified print
was of no evidential value. When the print was later submitted
to the FBI, it was determined that it did not belong to anyone in
the Dreher family or any other known print. Nance Seifrit and
her brother Nathan Seifrit were also excluded as possible sources
of that print. The FBI also determined that no latent
fingerprints of any value could be found on the cobbler's last.
FBI blood and hair experts also testified. They confirmed
that blood and hair found on various items at the scene were
consistent with the victim's blood and hair.
David Bing, a DNA expert called by the State, testified that
he had examined the victim's fingernail scrapings, the victim's
dried whole blood stains, and Nance Seifrit's blood stains.
According to Bing, the blood from the victim's fingernail
scrapings matched her own blood type, which is found in 1.9" to
4" of the Caucasian population, and excluded Seifrit as a
possible source. Bing subsequently performed more detailed DNA
testing on the specimens, and concluded that the fingernail
scrapings had a combination of genetic types identical to the
victim's, that this combination was found in one out of 2,227
Caucasians, and that Seifrit was excluded as a donor.
After the police were finished collecting and preserving
evidence at the scene, defendant was anxious to get back into his
house. At about 7:00 p.m. on January 3, 1986, Katsakos and
Chatham Police Captain Thomas Ramsey accompanied defendant on a
walk through the house so that defendant could give the police a
more detailed list of what had been stolen. The first thing that
defendant said to Katsakos was that he had heard that the house
was a mess and that the police had taken the basement bannister.
He was also concerned that the fingerprint powder would irritate
his son, who had asthma. An attorney, William O'Connor, also
accompanied defendant on his walk-through.
Both officers were struck by the fact that defendant knew
that it was the police and not the alleged intruder who had
disturbed the condition of the house. For example, defendant
first entered the kitchen and noted concern about garbage that he
assumed had been left behind by the police officers. Entering
the basement, he looked at the spot where his wife's body had
been. He then walked to the door that led to his workshop area.
The area had a closet off to the side, the door of which was
slightly ajar. Defendant remarked, "You must have found the key
for this." He then reached above the door frame and retrieved
the key. He closed and locked the door.
Defendant then turned to his tacklebox and other items on
the workbench and remarked that the police must have moved them
because they were normally kept on the shelf. As defendant
walked up the basement stairs, he stopped and said, "I thought
she was hit in the head with the shoe thing but the papers said
she was strangled." (Emphasis added)See footnote 6 Ramsey found this comment
suspicious because he had given orders not to release information
regarding the metal cobbler's last to anyone outside of the
investigation. Also, Ramsey testified that the victim's head
injuries were not visible upon first entering the basement.
Upstairs in the den, Katsakos asked defendant if he could
tell what was missing from the den. Instead of answering,
defendant began to straighten things out. He asked about his
leather postcards and the keys to his safe deposit box. When he
had trouble closing the closet doors, he asked what the police
had done to it. Katsakos again asked defendant for the list and
told him that he could straighten up later.
In the master bedroom, defendant stated that he would not
know if anything was missing from his wife's closet. He then
made a comment about things being moved around in his closet and
said that nothing was missing. He asked why the bed had been
stripped. Although defendant first stated that no jewelry was
missing, Katsakos pointed to the jewelry box on the floor.
Defendant then identified six items that were missing, including
a diamond ring, a gold bracelet, a pair of diamond earrings, a
gold and diamond pendant, a pair of gold earrings, and a cocktail
ring. Defendant also determined that his wife's beaver coat was
missing; however, her mink coat was not. Defendant could not
tell if anything was missing from the master bathroom. Katsakos
did not see any jewelry in the bathroom. Defendant never
supplemented the list of missing items.
The fact that defendant never modified the list of missing
items was significant to the State, as the allegedly stolen
diamond earrings soon surfaced. On January 4, 1986, the funeral
director handling the burial arrangements asked defendant if he
had any jewelry that he wanted to use for the viewing. Defendant
said that it had all been taken but that he knew where he could
get some. The next morning, defendant brought in a pair of
diamond stud earrings, each weighing about one-half to three-quarters of a carat. The earrings were then put on Gail's body
for the viewing and returned to defendant after the viewing.
Reagan Callaghan, whose family formerly lived next door to
defendant and who had been friends with Gail, came back to
Chatham for Gail's funeral. She saw defendant on the afternoon
of January 4, 1986. He told her that he wanted her to have a
pair of Gail's diamond earrings. At first Callaghan refused, but
defendant insisted. Defendant showed them to her and said that
he had found them in a dish in the bathroom. About a week after
the funeral, defendant gave the earrings to Callaghan.
Wendy O'Connor, another of Gail's friends, also saw
defendant on January 4, 1986. He told her that he had given Gail
diamond earrings for Christmas but that "they" did not get them.
He told her that he had found them on a ledge in the bathroom and
that he planned to give them to Callaghan.
On January 5, 1986, Ramsey instructed Carlson to interview
defendant again in order to get additional information regarding
the stolen property. Defendant told Carlson that he would have
to get into his safe deposit box before providing such a list.
He never told Carlson that he had found the diamond earrings.
Defendant also told Carlson that one of his wife's pocketbooks
had been gone through and that her wallet was missing. During
this contact with defendant on January 5, 1986, defendant did not
ask Carlson about the status of the investigation or the cause of
his wife's death.
In the days following the murder, Ramsey had the
neighborhood canvassed for leads. He was looking for any
information regarding break-ins, suspicious cars, people, or
phone calls, or other unusual patterns that might have been
noticed by workmen in the area. He also ordered a grid search of
the outside grounds. The police followed up on all leads and
contacted many people who surfaced as potentially suspicious
individuals. Catch basins were searched for discarded items, a
practice common to burglars, and all of defendant's friends,
maids, and service people were interviewed. Ramsey claimed that
no lead for the murder turned up and that the investigation led
nowhere. According to Ramsey's "street" sources, no information
regarding Gail Dreher's murder had surfaced.
Carlson interviewed defendant at his parents' house two
hours after the discovery of the murder. Defendant told Carlson
that he had left his house that morning at 8:00 a.m. and had
picked up his father for work. His sons had left for school at
7:30 a.m. He claimed that Gail did not work and that she did not
have plans that day to go out, nor was she expecting any
visitors. He did not talk to his wife on the telephone during
the day, and he left his office to go home at about 3:00 p.m.
When he arrived home, his two dogs were inside the house, and one
of the garage doors was open. His wife's car was in the garage.
When he entered the house, he saw that the den was a mess so
he assumed that he had been robbed. He went upstairs and saw
that the master bedroom was also a mess. He went downstairs to
the kitchen where his son David was and called the police. He
then went downstairs to the basement to check the liquor cabinet
because he assumed that it was kids who had broken in.
According to defendant, as soon as he reached the bottom of
the stairs, he saw his wife lying on the floor. He turned
around, went upstairs, and called the police from the sunroom.
He claimed that he did not go over to his wife's body.
Significant to this appeal, discussed hereafter, Carlson
testified that defendant never asked him about his wife's cause
of death, the status of the investigation, or whether there were
Although defendant originally claimed that he had been at
his office all day, Carlson noticed a bank deposit slip in
defendant's shirt pocket. Defendant then remembered that he had
gone to the bank that morning. The bank deposit slip was stamped
at 10:09 a.m. on January 2, 1986, for a bank located on Broad
Street in Newark.
At about 7:30 p.m. that evening, defendant approached
Ramsey, who was coordinating the investigation at Huron Drive.
Defendant asked Ramsey if he could get back into his house to get
school books for his sons. Ramsey assured defendant that he
would be allowed back in the house as soon as the officers were
finished with their work.
Later that evening, at about 9:00 p.m., Police Officer James
Condus, acting pursuant to Ramsey's instructions, arrived at
defendant's parents' house in order to deliver defendant's two
dogs, which had been barking continuously at the back of
defendant's house. According to Condus, all of the lights, both
inside and outside the house, were off, and no one responded to
the doorbell. The officer then knocked on the door, and
defendant's father answered, dressed in his night clothes.
Defendant then came to the door, dressed only in his pants
without a shirt or socks. It appeared to Condus that defendant
had been sleeping. Defendant asked him no questions about the
Still later that evening, Ramsey determined that he wanted
defendant reinterviewed while things were still fresh in his
mind. Ramsey felt that it was critical to act quickly because
there had just been a brutal murder, nobody had been apprehended,
and the community was upset. Accordingly, at 11:18 p.m., Carlson
called defendant's parents' house and asked to speak to
defendant. At first, defendant's mother said that he was
sleeping, but defendant then came to the phone. Carlson asked
defendant to come to the police station, and defendant agreed to
do so. Defendant arrived just past midnight, now January 3,
1986. According to Carlson, defendant was anxious to get back
into his house.
During the interview, defendant told Carlson that he had
left his house on the morning of January 2 at 5:00 a.m. to play
squash at the Chatham Squash Club. His court time was between
5:30 and 6:30 a.m. He then stopped to buy bagels and returned
home at 6:45 a.m. He had coffee with his wife and saw his sons
leave for school shortly before 7:30 a.m. He left at 8:00 a.m.
and picked up his father at 8:05 or 8:10 a.m. Since traffic was
light following the holiday, he arrived at work at about 8:35
Defendant further told Carlson that he went to a bank, which
was near his office, at 10:00 a.m. and that he ate lunch in his
office. He left work at 3:00 p.m. because he and his wife had a
dinner engagement in New York City at 6:30 or 7:00 p.m.
Defendant admitted to Carlson that his marriage was not as smooth
as normal. He claimed, however, that there was no possibility of
his wife leaving him and that he did not believe that she was
having an affair, although he could not be sure. He did not
believe that his wife would have answered the door dressed in her
nightgown, and he had not seen anything suspicious in the
neighborhood that morning. He did say, however, that he had
recently been receiving some "hang-up calls."
When confronted with the fact that a neighbor had seen
defendant leave his house and return that morning, defendant
seemed annoyed and claimed that he never returned to his house.
Several more times during the interview, defendant returned to
this topic and denied having returned to the house. He was angry
that someone would say such a thing, and he wanted the police to
bring that person in for questioning.See footnote 7
Defendant gave Carlson the names of some of his wife's
friends and the names of people at his office who would have seen
him that day. Carlson then noticed that defendant's right hand
had nicks on it and that there was a cut on his pinky finger.
Defendant claimed he did not know how his hands had gotten like
that but said it could have happened when he played squash that
morning. Defendant's playing partner, Robert Cashel, would later
testify that no one suffered any injury that morning and that he
did not see defendant injure his hand.
Significant to Carlson was the fact that defendant never
inquired about his wife's cause of death, the status of the
investigation, or whether the police had any suspects. Ramsey,
who was in the station house that night and saw defendant several
times, stated that defendant never asked him any of those
On January 4, 1986, the police received a call from one of
defendant's neighbors, Austin Lett. Lett told the police that he
had just read in the newspaper about defendant's claim that he
did not see his wife after he left his house at 8:00 a.m. on the
day of the murder. Lett was surprised by this claim because he
recalled seeing defendant's car pull out of the driveway later
that morning. Based on this phone call, the police interviewed
Lett at his home later that evening.See footnote 8
According to Lett, who lived two houses away from defendant,
on the opposite side of the street, he saw defendant on the
morning of January 2, 1986, at approximately 9:15 a.m. On that
morning, Lett's wife had left for work at about 8:00 a.m.
Shortly before she left, contractors arrived at the Letts' house
to install some windows. Although Lett normally left for work at
8:00 a.m., he had decided to ask the contractors to help him
remove a Christmas tree from within his home to his front yard so
that it could be planted.
Shortly after 8:00 a.m., the contractors helped Lett
transport the tree by wheelbarrow up his steep driveway to the
front yard. Lett then had to cut away the burlap bag from around
the tree and plant it in the previously-dug hole. He planted the
tree, filled in the hole, and returned the wheelbarrow and tools
to the shed behind his house. The entire procedure lasted about
When he returned to his house, the contractors were
concerned about the structural support above the ceiling where
the windows were to be installed. Lett then spent some time
helping the contractors gain access to a crawl space so that they
could inspect the structural support.
Lett then went upstairs to get dressed for work. He
showered, shaved, and put on a suit and tie. He went downstairs
to talk to the contractors again. As he opened the garage door
to leave for work, Lett saw that the contractors had parked their
trucks in the bottom of his driveway and were blocking his exit
route. Instead of asking the contractors to move the trucks,
Lett decided to maneuver around the trucks by backing up his
driveway to the street.
As Lett reached the top of his driveway, he saw defendant's
car to his left, coming down defendant's driveway "nose first."
Because Lett was leaving so late for work, he did not want
defendant to see him. Lett explained that this was because the
neighborhood had a certain work ethic and because he was an
alcoholic at the time and did not want defendant to assume that
he had been drinking.See footnote 9 To avoid being seen, Lett accelerated
his car and scooted down in his seat. He then proceeded to work.
Lett did not notice defendant's car in his rearview mirror
when he stopped at a corner several blocks away. Defendant's car
was a green Oldsmobile Tornado that was similar to a Cadillac
Eldorado that Lett had once owned. Lett had seen defendant
driving that car many times. Although defendant's car had a
distinctive license plate, "LEDER," the German word for leather,
Lett did not recall seeing it that day.
Lett estimated that it took him ten minutes to drive to work
and that he arrived at about 9:30 a.m. Based on his travel time
and the time spent with the contractors, he determined that he
had seen defendant's car at about 9:15 a.m. He acknowledged,
however, that he had previously testified that he had seen
defendant's car as late as 9:30 or 9:35 a.m. He claimed that his
time range was an estimate and that 9:15 was the most
"conservative" estimate in the range.
Gary Sager, one of the contractors who worked on Lett's
house that morning, verified that he arrived at about 8:00 a.m.
that morning and that he helped Lett move his tree. He also
verified that Lett had to provide him access to the crawl space
and that they spent some time talking. Sager estimated that he
spent "at least an hour and a half, maybe longer" with Lett
before Lett left. Although Sager claimed that this was the
minimum amount of time that he spent with Lett, he conceded that
he had previously testified that he arrived at 7:45 a.m. and
spent "at least a good hour, hour and a half easily" before Lett
Seifrit continued to see defendant after the murder. He
went to her apartment between two of the viewings of his wife's
body. He told her that he had been questioned by the police but
that they did not know about her. When he asked her about the
jewelry and fur, she realized that the fur coat was still in her
trunk. She later put it in a garbage bag and dumped it outside
the restaurant where she worked.
Seifrit continued to have sexual relations with defendant
throughout the month of January 1986. After the murder, she no
longer called him; rather, he would call her, usually from pay
phones, because he was afraid that the police were checking his
In February 1986, defendant asked her if she would come to
his house and cook for him and his sons. They first planned an
"accidental" meeting at the grocery store so that defendant could
introduce her to his sons as somebody that he knew from the
restaurant where defendant and his family used to dine. Shortly
after that meeting, she came over to cook dinner for them. As
she pulled onto defendant's street that night, she saw a car
watching defendant's house.
The following Sunday, Seifrit came over to defendant's house
to eat take-out Chinese food with defendant and his sons. On her
way home, she was stopped by the police. Investigators from the
prosecutor's office confirmed that defendant's house had been
under surveillance and that, on February 21 and 23, 1986,
Seifrit's car was seen there.
Once Seifrit's identity became known, she became a target
for questioning. On February 28, 1986, Allman showed up at her
place of work to interview her. Although Seifrit was asked about
her relationship with defendant, she maintained that it was
platonic. Seifrit was also interviewed on May 27 and May 29,
1986. She advised defendant of each interview. After her first
interview, defendant told Seifrit "not to worry." After
Seifrit's third interview, defendant gave Seifrit the name and
number of an attorney to call. This attorney told Seifrit not to
speak to the prosecutor's office unless she was subpoenaed. On
June 2, 1986, Seifrit was subpoenaed to appear before a grand
jury but the appearance was postponed.
Although Seifrit still maintained that her relationship with
defendant was platonic and that she knew nothing about
defendant's marriage or about Gail's death, she claimed at trial
that she and defendant had rehearsed exactly what she should say
to the investigators. Seifrit and defendant continued to
socialize during the summer of 1986 and began to be seen together
in public and with friends.
Meanwhile, Allman's continuing investigation of Seifrit
revealed that she had used various dates of birth and social
security numbers. Also, there were discrepancies in many of the
facts surrounding her personal history.
On August 25, 1986, Seifrit was arrested as a material
witness. On the date of her arrest, she was living in Maplewood
and stated that her height and weight were 5'11" and 150 pounds,
respectively. She posted bail and was released. Despite her
arrest, defendant still told her not to worry because the police
did not have anything, and defendant had friends in the
Seifrit appeared before a grand jury in October 1986 at
which time she was represented by an attorney, paid for by
defendant. She pled the Fifth Amendment. Although the
prosecutor's office knew that she was an untrustworthy witness,
they did not know that Seifrit had had any involvement in the
murder. Hence, on December 23, 1986, a decision was made to
grant Seifrit immunity.
Although defendant still urged Seifrit not to say anything,
she insisted that she had to say something now that she had
immunity. Thus, when Seifrit testified before the grand jury on
December 30, 1996, she admitted that she was at the house and
that she had participated in the staged burglary, but she denied
having anything to do with the murder itself. Shortly
afterwards, she retained the services of a different attorney.
On January 20 and 27, 1987, Seifrit again testified before
the grand jury. She admitted that she went down to the basement
when defendant called out to her and that she went back to the
basement after defendant left in order to retrieve the knife.
She did not testify that she had stabbed or hit the victim. On
February 3, 1987, Seifrit again testified before the grand jury.
This time, she admitted that she gave defendant the knife and
that when she went back down to the basement she hit and stabbed
the victim.See footnote 10
Seifrit moved to North Carolina in 1987, and her last
conversation with defendant occurred in April or May 1987, after
defendant learned what Seifrit had said to the grand jury. While
Seifrit was in North Carolina, she had difficulty getting
defendant to return her telephone calls. She claimed that her
life was very miserable because she had been forced to testify,
that she became angry when defendant refused to call her, and
that she did not know if she would be alive or dead to testify.
The defense played for the jury a tape recording of a message
that Seifrit had left on defendant's answering machine,
apparently threatening to make defendant's life as miserable as
hers. Defendant was indicted in May 1987.
Wendy O'Connor testified that when she saw defendant in
early 1987, he told her that both his boys liked Seifrit and that
Gail had not known about her. He also told O'Connor that he knew
that Gail was having an affair with someone, possibly more than
Jane Peltier Hunt, another of Gail's friends, also saw
defendant after the murder. He offered her some of Gail's
clothes, but she refused the offer. He indicated that he was
planning on staying in the house and wanted to show her the
things that he had done to it. When Hunt, a single parent
herself, suggested that defendant had had a tough time, defendant
responded that a divorce would have been easier.
Al Jeffers, an employee of Dreher Leather, was interviewed
by Allman and Katsakos. He recalled speaking to defendant by
phone on the day of the murder, although it was disputed whether
he spoke to defendant by phone at 9:05 or 9:15 a.m. Jeffers
recalled that he also saw defendant at 11:30 a.m. at which time
Jeffers test-drove defendant's car in anticipation of buying it
The State also verified that Andrew Reilly, the automobile
dealer from whom defendant was buying his new car, had called
defendant's office that morning, at 9:05 a.m., to get automobile
insurance information in anticipation of delivering the car to
him. Reilly asked the receptionist for defendant but did not
speak to him at that time. Instead, Reilly got the information
that he needed from someone else at the company. Defendant
returned Reilly's call later that morning, at about 11:00 a.m.
Still later that day, at about 1:00 p.m., Reilly called defendant
back to tell him that his car was ready for delivery. Defendant,
however, did not make arrangements to pick up the car that day
and did not mention any dinner engagement that he had in New
York. Defendant instead picked up the car on January 10,
1986.See footnote 11
A dry cleaning delivery man testified that when he got to
defendant's home that afternoon, at about 2:00 p.m., the dogs
were inside defendant's house.
Defendant did not testify in his own behalf and offered only
two witnesses. In addition to a general challenge to the State's
having met its burden of proof beyond a reasonable doubt, his
defense consisted of: (a) an attack upon Seifrit's credibility;
(b) proof to suggest that Seifrit committed the crime with a male
other than defendant, possibly her brother Nathan; and (c) an
alibi for a portion of the day in question.
The defense portrayed Seifrit as a person who had lied on
numerous occasions in her past, who had led a life filled with
deception, and who had been out to capture herself a rich
husband. In addition, the defense was able to suggest that her
trial testimony was not worthy of belief because it was
inconsistent with her prior testimony. The defense was able to
point out inconsistencies not only between her trial testimony
and her 1986-1987 grand jury appearances but also between her
first and second trial testimony and between her trial testimony
and her most recent grand jury appearance in October 1993.
Finally, the defense suggested to the jury that Seifrit's
relationship with the prosecution was a "cozy" one and that her
testimony had been achieved at a very high cost, her immunity
from prosecution. In all, Seifrit testified for six days. On
Seifrit's general credibility, the evidence showed that she had
used different versions and spellings of her name, different
dates of birth, and different social security numbers on numerous
occasions to evade her creditors. She also may have been trying
to avoid law enforcement because she had bounced checks and did
not have proper motor vehicle paperwork. In addition, there was
evidence that she had told lies about her ability to fly a plane,
the level of her formal education, where she had attended school,
and her reasons for leaving prior jobs. These deceits were
usually part of an effort to obtain employment. Seifrit admitted
that she often lied to serve her own interests and that she had
told so many lies about herself that it was hard to keep track of
Seifrit also admitted: that she owned a registered gun;
that she had told Allman that she had once shot a man in Miami,
but that this was false; that after she moved to North Carolina,
she told a diet doctor that she weighed 186 pounds and needed to
lose weight for a job;See footnote 12 that, at the time of the murder, she
had a close male friend, a former boyfriend, who was married,
living in Ohio, and with whom she talked by phone; and that in
North Carolina she had lived for an extended period of time with
a man who raced cars.
When questioned about her love for defendant, Seifrit
claimed that she continued to love him up until the conclusion of
her cross-examination at the prior trial and that there was a
part of her that could still love him. She denied that she fell
in love with him for his money. Although she would have married
him, it was a moot issue because he was already married.
Seifrit also admitted that she did not throw the diamond
ring that she had taken from defendant's house into the dumpster
but that she instead wore it to work as an engagement ring to
keep other men from hounding her. She claimed that defendant had
told her to keep it but that when the police started asking
questions about it and when defendant asked for it back, she
threw it out of her car window while driving through West Orange.
She denied selling it.
With regard to inconsistencies in her testimony, Seifrit
admitted that she was not completely forthright in her first
three grand jury appearances. She maintained, however, that it
was only her involvement, and not defendant's, that she had lied
about. She also admitted to numerous inconsistencies in the
details of the murder, including where she had parked that day,
whether the garage door was up or down, whether she had thrown up
or washed her face while in defendant's house, the manner and
number of times that she had assaulted the victim, and whether
defendant had asked her about the earrings during their 8:49 a.m.
She also admitted that it was not until her most recent
appearance before the grand jury that she admitted that the
victim saw her when she walked in the house on the morning of the
murder. Seifrit believed that it took her a long time to come to
terms with the fact that she had actually seen a woman face-to-face prior to taking part in her murder. Also, Seifrit had been
ashamed that she had had the opportunity to turn around and walk
away but had chosen not to.
With respect to her relationship with the prosecution,
Seifrit admitted that, despite her numerous lies, including ones
that she told under oath while testifying in court, she had never
been prosecuted for anything, not even perjury. Also, she
admitted that she had tried to solicit Allman's help in getting
her out of a problem with a bounced check.
The defense also used its cross-examination of Seifrit to
suggest that her brother, Nathan Seifrit, might have helped her
commit the murder. Implicit in this suggestion was that Nathan
had forced the victim to have oral sex, thereby explaining the
sperm in her nasal passage. Seifrit, however, claimed that she
did not know where her brother was living or working in 1985 and
1986, that she did not speak to him very often, that they saw
each other only occasionally, and that, at the time of trial, she
had not seen him in years. She further claimed that he had never
visited her in New Jersey and that, prior to the murder, the last
time she had corresponded with him was in 1983, when she was
living in Florida.
Although Seifrit recalled seeing Nathan one Christmas at her
mother's house in Pennsylvania, she was not sure whether it was
the Christmas of 1985. She was sure, however, that she did not
see him around New Year's day in 1986. She later found out in
1989, that he had been working at Great Adventure in New Jersey
in January 1986.
On cross-examination the defense elicited Seifrit's
testimony that in the fall of 1986, Nathan helped Seifrit move
their mother to Hilton Head, South Carolina; Nathan then moved
there himself. Seifrit recalled that, between 1986 and 1989, she
saw him at Christmas in Hilton Head while she was visiting her
mother. Nathan moved away from Hilton Head a short time after
Seifrit moved to Hilton Head, sometime in 1989 or 1990. The last
time that she spoke with him was the day their mother died. He
called the hospital to speak to their mother, and Seifrit did not
even recognize his voice on the phone. After her mother's death,
Seifrit learned that Nathan was in Arizona but she had no direct
contact with him at all. As of the second trial, she did not
know his whereabouts.
Although Allman had interviewed Nathan in Arizona some time
prior to the second trial, and although the defense had succeeded
in getting the court to order Nathan's appearance at trial as a
necessary and material witness, Nathan was never produced at
trial by either the State or the defense. The State advised the
court that it did not know his current whereabouts. The court
refused the defense request to instruct the jury that Nathan was
"unavailable" to testify.See footnote 13
Defendant presented the testimony of Dr. Robert White, the
urologist who performed a vasectomy on defendant on July 1, 1974.
White explained that such a procedure prevents the ejaculation of
sperm. He also testified that on August 20, 1974, he tested
defendant's semen and found no sperm present. Four months later,
on December 21, 1974, a similar analysis again revealed the
absence of any sperm in defendant's semen. White concluded that
the surgery had been successful and that defendant's future
ejaculations would not contain any sperm.
On cross-examination, White admitted that spontaneous
recantilization sometimes occurs, whereby a connection is
reestablished between the lower and upper parts of the tube that
carries sperm from the testicle to the prostate. White claimed
that this is rare and that when it does happen, it usually occurs
a short time after the vasectomy itself. White also admitted
that the vasectomy procedure may be surgically reversed and that
he had not examined defendant since 1974.
On redirect, White explained that a successful reversal
becomes less and less likely as the years pass, that he had never
seen a spontaneous reversal occur later than six months after the
vasectomy, that sperm have a fairly short life span and will die
within a few months and become absorbed by the bloodstream, and
that an analysis of defendant's semen done in 1993 again revealed
the absence of any sperm.
Defendant called as his second witness, his neighbor, Mary
Kein, who testified that, on the morning of the murder, from the
vantage point of her kitchen window, she saw defendant's car
leave at about 7:30 a.m. It returned ten to fifteen minutes
later. She did not see who was in the car. She saw defendant's
car again later that morning at about 8:15 a.m., waiting for a
traffic light at an intersection not far from Huron Drive. She
admitted that her times were approximations.
Through cross-examination of other witnesses, the defense
suggested that the murder may have occurred later in the morning
than the State contended at a time when defendant was at his
office. For example, it was suggested that the frying pan found
on the stove indicated that Gail had had time to cook something
after everyone had left the house that morning. David claimed
that a laundry basket with clean laundry in it, found by the
police on his bed in the afternoon, had not been there when he
left for school that morning, indicating that his mother had had
time to fold laundry before she was murdered.
Additionally, although Seifrit claimed that she left for her
job at about 10:00 a.m., phone records showed that a call was
made from her place of employment to the business located on the
ground floor of her apartment at 10:40 a.m., suggesting that her
employer may have been looking for her at that time. The medical
examiner was cross-examined at length regarding the exact time of
the murder, with the defense suggesting that it occurred closer
to ten or eleven o'clock rather than 7:30 as maintained by the
The State had taken the position that defendant got to work
that morning at his regular time but then left after his 8:49
a.m. phone call with Seifrit had concluded at 8:59 a.m. This
would have given him enough time to go home, get his wife's
earrings, bring the barking dogs inside, and make sure that his
wife was dead before returning to Newark, where he was seen at
10:09 a.m. at the bank on Broad Street. The only witness who saw
defendant's car at home during this time frame was Austin Lett.
After deliberating for two full days, the jury returned a
verdict finding defendant guilty of the knowing and purposeful
murder of his wife.
Defendant contends that the court erred in restricting his
cross-examination of Nance Seifrit "about matters of vital
importance to her credibility and her motive to commit the
murder." We disagree.
Defendant first contends that the judge erred by precluding
him from cross-examining Seifrit about her recent credit card
fraud, which had occurred while she lived in Baltimore in 1990
and 1991. This fraud complaint resulted in a disposition prior
to judgment in the Maryland courts. Defendant contends that
because the State had gone to great lengths to portray Seifrit as
a reformed sinner who had cleaned up her act by the time of the
second trial, the jury should have been informed of this most
recent escapade in order to assess properly the accuracy of the
It was represented to the judge that Seifrit had forged a
credit card application in order to get a credit card in someone
else's name. It was further represented that Seifrit used the
card to get cash advances. No judgment of conviction was ever
entered against her in Maryland for this offense. Seifrit was
indicted, admitted her wrongdoing, and requested probation and
community service. The disposition, known in Maryland as a
"probation before judgment," was apparently similar to the
pretrial intervention program in New Jersey.
The defense argued that the evidence was admissible as a
prior bad act, stealing, which was similar to the bad act in the
present case, burglary, to show Seifrit's motive and her
willingness to engage in criminal conduct to obtain things of
value. The defense also urged that the evidence was admissible
to impeach Seifrit's credibility.
The judge ruled that, without a judgment of conviction or
nolocontendere plea, the evidence was inadmissible to impeach
credibility because pretrial diversion, even accompanied by an
admission, is not the same as a conviction. Further, because
Seifrit's fraudulent conduct did not bear a sufficient nexus to
the matters being tried, it could not be used as evidence of a
prior bad act. Defendant was allowed, however, to tell the jury
that in 1990, while she was living in Baltimore, Seifrit had used
a social security number, different from her own, to obtain a
Defendant claims that this limited use of the matter was
insufficient and that the true nature of the fraud could only
have been revealed by introducing the criminal disposition. We
Defendant contends that when one party puts in issue the
character or state of mind of a witness, the opposing party is
entitled to present evidence on the same subject even though it
might otherwise be barred by the rules of evidence. Here,
according to defendant, the State opened the door by seeking to
show that Seifrit had reformed her ways.
Defendant contends that the evidence was admissible under
N.J.R.E. 404(b), which allows evidence of "other crimes, wrongs,
or acts" to prove "motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of mistake or accident when
such matters are relevant to a material issue in dispute." Such
evidence, however, is not admissible to prove the disposition of
a person in order to show that he or she acted in conformity
therewith. Seeibid. According to N.J.R.E. 404(a)(3), evidence
of a witness' character is not admissible for the purpose of
proving that the person acted in conformity therewith on a
particular occasion except as provided in N.J.R.E. 608.
According to N.J.R.E. 608:
The credibility of a witness may be
attacked or supported by evidence in the form
of opinion or reputation, provided, however,
that the evidence relates only to the
witness' character for truthfulness or
untruthfulness, and provided further that
evidence of truthful character is admissible
only after the character of the witness for
truthfulness has been attacked by opinion or
reputation evidence or otherwise. Except as
otherwise provided by Rule 609, a trait of
character cannot be proved by specific
instances of conduct.
[Ibid. (emphasis added).] N.J.R.E. 609, in turn, allows a witness's credibility to be
impeached by the conviction of a crime. Defendant makes no
argument on appeal that the Maryland disposition was a criminal
Specific instances of a witness's conduct, then, relevant
only as they may tend to prove a trait of character, may not be
used to affect the credibility of a witness. SeeState v.
241 N.J. Super. 353, 361 (App. Div. 1990); State v.
197 N.J. Super. 548, 551-52 (Law Div. 1984). If
specific instances of conduct are offered for another articulable
reason, they may be admitted unless excluded under another rule.
SeeState v. Coruzzi,
189 N.J. Super. 273, 305-06 (App. Div.),
94 N.J. 531 (1983). Here, defendant offered the
evidence of the criminal disposition to refute the State's claim
that Seifrit was a reformed woman.
Refuting the State's claim that Seifrit was a reformed woman
is just another way of showing that Seifrit had not reformed or
that her character was bad. Proving a trait of character, by any
other name, is still not permissible under our rules of evidence.
Additionally, after reviewing the record, we conclude that
defendant has greatly overstated the State's position with regard
to Seifrit's "reformation."
While it is true that the State introduced general
background information about Seifrit that showed that for several
years prior to the second trial, she had been living and working
in Baltimore and that she was currently an administrator for a
bank's loan department. It is also true that in summation, the
State referred to those facts and that it rhetorically asked
whether Seifrit, at age thirty-seven, was finally "growing up."
The State, however, also admitted that Seifrit had lied in the
past to advance her own interests, and it referred to her as a
Evidence of Seifrit's prior lies and deception, such as the
use of aliases, false social security numbers, false dates of
birth, false job references, inflated years of completed
education, evasion of bankruptcy laws, and evasion of bad debts,
was the centerpiece of the defense. Rather than try to show that
Seifrit had not lied or deceived others in the past, the State
made the argument that the jury should consider her for what she
was--a bad liar who told lies that often made no sense but that
hurt no one. The State asked for no sympathy for Seifrit and
urged the jury not to let defendant go free just because the
prosecution had let Seifrit go free for her part in the murder.
The prosecutor also pointed out that the State had not "picked"
Seifrit. It was defendant, according to the State, who "picked"
Seifrit when he chose to cultivate a relationship with her.
Defendant correctly points out that "other crimes" evidence
about a State's witness is often admitted when offered by
criminal defendants for exculpatory reasons. See, e.g., State v.
135 N.J. 42, 47 (1994) ("other crimes" evidence used to
suggest that the State's witness had an opportunity to tamper
with evidence or that the evidence was not the result of mistake
or accident); State v. Garfole,
76 N.J. 445, 453 (1978) ("other
crimes" evidence used to show that it is more likely than not
that someone other than the defendant committed the crime in
question). When a criminal defendant seeks to offer such
exculpatory "other crimes" evidence, prejudice to the defendant
is no longer a factor, and simple relevance to guilt or innocence
should suffice. This is because an accused is entitled to
advance in his own defense any evidence that may rationally tend
to refute his guilt or buttress his innocence. Seeid. at 453-57; State v. Bull,
268 N.J. Super. 504, 511 (App. Div. 1993),
135 N.J. 304 (1994); State v. Williams,
Super. 12, 20-21 (App. Div. 1986).
Clearly, defendant did not want to introduce the "other
crimes" evidence about Seifrit for this reason. Instead,
defendant wanted the jury to know about Seifrit's 1990
entanglement with the law to suggest that Seifrit was the type of
person who would do anything for money, not to exculpate
defendant. This is precisely the type of proof of disposition
that N.J.R.E. 404(b) expressly prohibits. Proving that Seifrit
was greedy and predisposed to criminal conduct would not have
made it any less likely that defendant murdered his wife. Cf.State v. Sease,
138 N.J. Super. 80, 83-84 (App. Div. 1975)
(noting that the fact that someone else admitted committing a
crime that was perpetrated by more than one person in no way
exculpates the defendant since he or she could have also
The exclusion of this evidence was not error. Such evidence
would have been collateral and irrelevant. SeeState v.
Schlanger, supra, 197 N.J. Super. at 554 (refusing to allow the
impeachment of a State's witness with misconduct related to the
filing of his tax returns where such impeachment was calculated
to degrade the testimony of the witness over matters not in
Defendant also contends that the judge erred in precluding
the defense from reading into evidence a statement about Seifrit
contained in a brief, written by the State, that was submitted in
connection with a pretrial motion in 1993. Defendant sought to
compel Seifrit to submit to a psychiatric evaluation. The
State's brief in opposition stated:
Trial courts and juries, without aid of
expert testimony, evaluate witnesses like
Nance Seifrit every day. Nance Seifrit is a
petty thief and liar who has admitted that
she has lied whenever it has been to her
advantage to do so. The defendant has not
shown her to be so feebleminded or mentally
deranged that the credibility of her
testimony cannot be adequately determined by
The judge denied defendant's request to take judicial notice of
this statement, ruling that it was a statement contained within a
party's brief as opposed to one contained within a certification
On appeal, defendant urges that this statement constituted
an admission of a party opponent.See footnote 14 He claims that the
statement was significant because it constitutes an admission, in
1993, that Seifrit "is" not "was" a liar, suggesting that she had
not yet reformed.
We cannot conceive that the judge's refusal to take judicial
notice of this pleading was error. Although counsel's brief was
phrased in the present tense, in context, that was 1993. A
statement in 1993 does not permit an inference that Seifrit would
lie, or did lie, on the witness stand in 1995. We find that, in
the context of this protracted trial, the statement was properly
excluded under N.J.R.E. 403, as its probative value was
substantially outweighed by the risk of misleading the jury or
the risk of needless presentation of cumulative evidence.
Defendant next contends that the judge erroneously barred
him from showing that Seifrit owed more than $6,000 to American
Express in the months prior to the murder and that when she filed
for bankruptcy in 1987 her debts totalled more than $31,000.
According to defendant, such a large debt provided Seifrit with
the motive to murder defendant's wife so that she could marry
defendant and share in his wealth. Given the evidence that the
jury heard regarding Seifrit's personal and financial background,
any error in the exclusion of this one piece of testimony was
The State sought to preclude cross-examination of Seifrit on
the issue of unpaid charges that she owed to American Express in
1985. The State argued that this was another instance of a prior
bad act being used to impeach credibility. The judge granted the
State's request and barred any questions regarding Seifrit's
outstanding debts or balances but noted that any fraudulent
misrepresentations that Seifrit may have made, either in
obtaining the card or in escaping liability, would be admissible.
The judge ruled, for example, that because Seifrit had
submitted an incorrect social security number on her bankruptcy
petition in federal court, that misrepresentation would be
admissible. The petition itself, the list of unpaid creditors,
and the amounts discharged in bankruptcy were not admitted. The
judge refused to allow evidence of the witness's poverty to be
used as proof of her motive to commit a crime for financial gain.
The bankruptcy petition had listed approximately twenty different
creditors with a total debt of more than $31,000.
On cross-examination, defense counsel elicited from Seifrit
that, when she and defendant were taking plane trips to various
places to meet each other in 1985, she would charge her travel
expenses to American Express and then pocket the money that
defendant gave her for reimbursement. That is, she admitted that
she left American Express holding the bill. She also admitted
that she had used a false social security number to obtain that
Seifrit further admitted that when she moved to Chatham in
the fall of 1985, she worked two jobs in order to make ends meet
and that she still had outstanding loans in the amount of
approximately $3,000 from when she had lived in Pennsylvania.
She admitted that she had used false social security numbers so
that she could avoid paying back those loans.
The defense further elicited from Seifrit that she had been
discharged from her job at Eastern Airlines; that she had bounced
a $2,800 check while she was the part owner of a bagel franchise;
and that she had bounced another check while purchasing a dress.
She claimed that despite her "difficult financial circumstances,"
she was not dating defendant because of his money.
The defense then broached the subject of Seifrit's
bankruptcy. She admitted that she had used a false social
security number to file the petition, that she had filed it
because of her financial circumstances, that she had signed the
petition under penalty of perjury, and that she had thus
committed perjury in federal court. The defense then renewed its
request to have the amount of Seifrit's American Express debt
presented to the jury, arguing that her financial condition was
relevant to her motive. The State objected on the ground that
the precise amount of the debt was irrelevant since she had
already admitted to owing money and not paying it back. Also,
the State objected to the inference that because Seifrit did not
have a lot of money, she had the motive to have a relationship
The judge ruled that Seifrit's inability or unwillingness to
pay her American Express debt, together with her Pennsylvania
loans, was already before the jury and that nothing would be
served by presenting the specific amounts that she owed. Such
specific instances of conduct did not necessarily go to her
motive. Whether Seifrit owed "$4,000 or $3,000 or $8,000 or
$9,000" was a matter over which there could be disagreement and
which would only serve to muddle the issues.
We agree. While it is true that Seifrit's financial
circumstances could have provided her with a motive for dating
defendant and even a motive for helping him to kill his wife, it
does not necessarily follow that proof of her impecuniosity made
it more likely than not that she committed the murder without
defendant. SeeState v. Martini,
131 N.J. 176, 266 (1993), cert.
116 S. Ct. 203,
133 L. Ed.2d 137 (1995);
State v. Mathis,
47 N.J. 455, 471-72 (1966). Cf.State v.
257 N.J. Super. 296, 307 (App. Div. 1992) (holding
that evidence of defendant's gambling debts was relevant to prove
animosity between him and victim and to show his need for money).
Moreover, Seifrit's financial circumstances were before the
jury in excruciating detail. There is no possibility that any
juror could have harbored the belief that Seifrit was a woman of
independent means who liked to pay her own way. On the contrary,
the proofs were overwhelming that she enjoyed having things of
monetary value even though she could not afford them and that she
lived above her means, usually by defrauding her creditors or by
using someone else's money. The precise amount of Seifrit's
American Express debt would have added nothing to the case and
would have only caused "undue delay, waste of time, or needless
presentation of cumulative evidence." N.J.R.E. 403.
In his second point, defendant contends that the judge erred
by allowing the medical examiner to testify regarding the
estimated time of death based on the decedent's vitreous
potassium level because the witness's methodology was not
generally accepted in the scientific community. We disagree.
As noted, supra, in Part I-D, the victim's vitreous
potassium level had been read at 5:40 p.m. Based in part on that
level, Tucker estimated that the victim had died ten hours
earlier, plus or minus four hours. Tucker arrived at this
estimate by using a graph prepared by a scientist named John I.
Coe, M.D. The graph was widely accepted and distributed to all
medical examiners in the United States by the Department of
Justice Law Enforcement Assistance Administration. On this
graph, the vertical coordinates represented the known potassium
levels for more than 100 people who had died, and the horizontal
coordinates represented the number of hours since their death.
According to Tucker, although the underlying assumption of
the graph was that the distribution was a linear regression, the
plotting of coordinates did not actually result in a straight
line. That is, Tucker believed that the graph could be
interpreted as having two lines or as being a curve. Hence,
Tucker viewed the graph as representing a "range" of acceptable
figures. Accordingly, he drew a line from 7.3, the victim's
potassium level at 5:40 p.m., to find the earliest and the latest
hours from death that were depicted on the graph for that level.
Since the earliest was six hours and the latest was fourteen
hours, Tucker chose the midpoint, ten hours, plus or minus four
Tucker admitted that he did not take a weighted average and
that he did not know how many coordinates were plotted between
six and fourteen hours. Although he thought there were some
scientists who had probably used his method, he could not name
any offhand. He also admitted that, using Coe's linear
regression method, the estimated time of death would have been
later in the morning than Tucker's estimate. Tucker stated,
however, that he and Coe disagreed in this area. In any event,
both his method and Coe's resulted in a range of hours. That is,
even Coe's estimate of seven hours had to be plus or minus
Defendant had moved to bar this anticipated testimony prior
to trial. In support of his motion, he presented a certification
from Coe. Coe stated that to use his graph properly, a person
must establish a horizontal line from the point on the vertical
axis that reflects the decedent's known potassium level and
establish a vertical line from the point of intersection between
the horizontal line and the line of least squares. The
intersection between the vertical line and the horizontal axis
would represent the midpoint of the established postmortem
It was Coe's further opinion that the method that Tucker
used was not sound, reliable, or accurate and that it lacked the
necessary scientific basis to produce uniform and reasonably
reliable results.See footnote 15 Coe also opined that Tucker's method did
not contribute materially to the ascertainment of the truth, was
not generally accepted by experts in forensic pathology or in the
authoritative literature, was likely to result in statistically
aberrational findings, and was a distortion of scientific and
The State opposed the motion to bar Tucker's testimony,
arguing that Coe was not the owner or developer of the method
used to determine the time of death from potassium levels;
rather, Coe had merely plotted data on a graph. The method for
using the data was subject to legitimate debate, especially where
Tucker had decided to modify Coe's methodology by incorporating
other considerations based on his knowledge of the murder scene.
Defendant responded that the State had not produced anyone who
could refute Coe's certification or support Tucker's approach.
The judge denied the motion, ruling that whether Tucker had
properly conducted the vitreous potassium test, in conjunction
with other tests, to determine the time of death was a fact
question for the jury because there was room for legitimate
disagreement. We agree.
The results of scientific tests are admissible at trial when
they are shown to have a "sufficient scientific basis to produce
uniform and reasonably reliable results and will contribute
materially to the ascertainment of the truth." State v. Hurd,
86 N.J. 525, 536 (1981); see alsoWindmere, Inc. v. International
105 N.J. 373, 378 (1987); State v. Kelly,
97 N.J. 178,
210 (1984); Romano v. Kimmelman,
96 N.J. 66, 80 (1984); State v.
294 N.J. Super. 267, 274 (App. Div. 1996). General
acceptance in the field, not universal agreement, is the critical
factor for finding that there is a sufficient scientific basis to
produce uniform and reliable results. SeeState v. Spann,
130 N.J. 484, 509-10 (1993). There are three ways to prove general
acceptance: (1) through expert testimony; (2) authoritative
scientific literature; or (3) persuasive judicial opinions. SeeState v. Kelly, supra, 97 N.J. at 210; State v. Marcus, supra,
294 N.J. Super. at 275.
"The court's function is to distinguish scientifically sound
reasoning from that of the self-validating expert, who uses
scientific terminology to present unsubstantiated personal
beliefs." Landrigan v. Celotex Corp.,
127 N.J. 404, 414 (1992).
Even when expert testimony is admitted, however, the opposing
party may still challenge the reliability of the particular
procedures followed in the individual case. The trier of fact
then decides what weight to accord the testimony. SeeState v.
Hurd, supra, 86 N.J. at 543. Expert testimony should not be
excluded merely because it fails to account for some condition or
fact that the opposing party considers relevant. That party may,
on cross-examination, supply the omitted conditions or facts and
ask the expert if his or her opinion would be changed by them.
SeeState v. Freeman,
223 N.J. Super. 92, 116 (App. Div. 1988).
Applying these principles here, we find that no error
occurred in allowing Tucker to testify regarding his modified use
of the Coe graph and in allowing defendant to vigorously cross-examine him on this point. In front of the jury, Tucker conceded
that Coe's method would have produced a later estimated time of
death, presumably late enough to cover defendant's partial alibi,
and that Tucker had never published anything in this particular
field. Tucker, however, also explained why he believed that his
own method was sound.
In State v. Zola,
112 N.J. 384, 412 (1988), cert. denied,
489 U.S. 1022,
109 S. Ct. 1146,
103 L. Ed.2d 205 (1989), the
Supreme Court found a sufficiently reliable basis for admitting
the testimony of the State's serologist regarding the amylase
level in the victim's vagina even though the expert's
measurements had been derived by modifying the standard chemical
test used for determining the presence of amylase. The Court
noted that the defense had not disputed the expert's
qualifications, the efficacy of the test modification, or the
validity of the test results. Seeibid. While the defense did
dispute the certainty of the modified test, it did not dispute
the principles on which it was based. Seeibid.; cf.Bahrle v.
279 N.J. Super. 5, 34 (App. Div. 1995) (finding that
the trial court properly excluded testimony by an expert who
conceded that the methodology that he used had never been used by
experts in any field, that he was not familiar with any approved
methods, and that he departed from the accepted procedures not to
improve on them but because he was not aware of them), aff'd,
145 N.J. 144 (1996).
The instant situation is more similar to Zola than it is to
Bahrle. Tucker provided an explanation for why he had rejected
and modified Coe's linear method, his scientific expertise was
never challenged, and his reliance on the vitreous potassium test
to estimate time of death was generally accepted within the
scientific community. Only his interpretation of one particular
set of data was in dispute. While Coe had plotted the data and
had an opinion on how to interpret it, there was no basis for
saying that Coe's opinion was the only acceptable one. Moreover,
unlike Coe, Tucker was the medical examiner who had examined the
victim as well as the murder scene. Hence, we conclude that the
question was a legitimate factual one for the jury to resolve.
The judge did not err in permitting this testimony.
Even if the judge did err in admitting this testimony,
however, the error would be harmless because Tucker arrived at
his estimated time of death by looking at four separate factors,
only one of which was the vitreous potassium level. He also
considered the victim's body temperature, degree of rigor mortis,
and lividity. Moreover, Tucker made it clear that the time of
death was only an estimate and that it was stated within a given
range of several hours. Coe's methodology affected only one of
the four factors and would have similarly produced only an
estimated time range.
Defendant's third point of error is that the judge's
supplemental instruction on reasonable doubt, which diverged from
the model jury charge, diluted the State's burden of proof.
Defendant contends that this was reversible error. We disagree.
The judge's initial charge on reasonable doubt mirrored the
model jury charge as it appeared then. Defendant concedes that
the original charge was free of error. The model jury charge at
that time read as follows:
Reasonable doubt is not a mere possible
or imaginary doubt, because everything
relating to human affairs is open to some
possible or imaginary doubt.
A reasonable doubt is an honest and
reasonable uncertainty as to the guilt of the
defendant existing in your minds after you
have given a full and impartial consideration
to all of the evidence. It may arise from
the evidence itself or from a lack of
[Model Jury Charge (Criminal), Reasonable
The day after the judge gave the charge to the jury, the
jury requested a readback of some of the testimony. The jury
also asked the court to redefine reasonable doubt. The judge
redefined reasonable doubt for the jury as follows: Webster defines reasonable as governed
by or in accordance with sound thinking
within the bounds of common sense, not
extreme or excessive. When we use the term
reasonable doubt, we're not talking about a
possible doubt or an imaginary doubt, because
everything that we deal with in life is open
to some possible doubt or some imaginary
doubt, and truly you can conjure up doubt
about any proposition that you care to think
about. You can find some doubt about that.
That's not what we're talking about.
We're talking about an honest
uncertainty regarding the guilt of the
defendant that exists in your minds after you
have fairly and impartially considered all of
the evidence in the case. And that
reasonable doubt may arise from the evidence
itself or from the lack of evidence.
The jury reached a verdict the following afternoon.
Defendant argues that the supplemental charge was unbalanced
in the State's favor, improperly relied on a dictionary
definition, and impermissibly suggested that a substantial doubt
was required in order to find defendant not guilty. Defendant
suggests that the imbalance arose because there was only one
sentence explaining what reasonable doubt is but three or four
sentences explaining what it is not. The dictionary definition
of "reasonable" was improper, according to defendant, because it
is the legal definition that must control. Since the word
"reasonable" was isolated from the term "reasonable doubt" and
the judge stated that "reasonable" is something other than
"extreme" or "excessive," this suggested that substantial doubt
was required to acquit. These errors, according to defendant,
were compounded because they were set forth in response to a jury
question and in a supplemental charge, which, according to
defendant, are given greater attention by a jury.
A reasonable doubt instruction must be analyzed in its
entirety. SeeState v. Medina,
147 N.J. 43, 51-52 (1996), cert.
117 S. Ct. 1976, L. Ed.2d (1997);
State v. Marshall,
123 N.J. 1, 135 (1991), cert. denied,
507 U.S. 929,
113 S. Ct. 1306,
122 L. Ed.2d 694 (1993). Taken as a whole,
the instructions must correctly convey the concept of reasonable
doubt to the jury. SeeVictor v. Nebraska,
511 U.S. 1, 6,
Ct. 1239, 1243,
127 L. Ed.2d 583, 591 (1994); State v. Medina,
supra, 147 N.J. at 51-52. "Only those instructions that overall
lessen the State's burden of proof violate due process." State
v. Medina, supra, 147 N.J. at 52.
A jury instruction that fails to communicate the State's
burden to prove guilt beyond a reasonable doubt requires
reversal. SeeSullivan v. Louisiana,
508 U.S. 275, 278-81,
113 S. Ct. 2078, 2081-83,
124 L. Ed.2d 182, 189-90 (1993); State v.
Medina, supra, 147 N.J. at 50.
Our courts have repeatedly cautioned against using jury
charges that have a tendency to "understate or trivialize" the
duty to find guilt beyond a reasonable doubt. SeeState v.
Medina, supra, 147 N.J. at 50-51; State v. Purnell,
126 N.J. 518,
545 (1992); State v. Biegenwald,
106 N.J. 13, 41 (1987). In
order to "avoid problems in the future," our Supreme Court in
State v. Medina, supra, adopted a reasonable doubt charge from
which trial courts may not deviate:
The [State] has the burden of proving
the defendant guilty beyond a reasonable
doubt. Some of you may have served as jurors
in civil cases, where you were told that it
is necessary to prove only that a fact is
more likely true than not true. In criminal
cases, the government's proof must be more
powerful than that. It must be beyond a
A reasonable doubt is an honest and
reasonable uncertainty in your minds about
the guilt of the defendant after you have
given full and impartial consideration to all
of the evidence. A reasonable doubt may
arise from the evidence itself or from a lack
of evidence. It is a doubt that a reasonable
person hearing the same evidence would have.
Proof beyond a reasonable doubt is
proof, for example, that leaves you firmly
convinced of the defendant's guilt. In this
world, we know very few things with absolute
certainty. In criminal cases the law does
not require proof that overcomes every
possible doubt. If, based on your
consideration of the evidence, you are firmly
convinced that the defendant is guilty of the
crime charged, you must find him guilty. If,
on the other hand, you are not firmly
convinced of defendant's guilt, you must give
defendant the benefit of the doubt and find
him not guilty.
[147 N.J. at 60-61.]
"The failure to adhere to the definition, over an objection, runs
the risk of reversible error." Ibid. Despite finding error in the judge's charge, the Court in
Medina, supra, did not reverse. The Court stated that:
Although some parts of the charge were
incorrect, when read in its entirety, the
charge does not violate due process. The
court adequately explained that Medina was
innocent until proven guilty and that the
State must prove his guilt beyond a
reasonable doubt. It told the jury that a
reasonable doubt was "that which arises from
a fair and rational consideration of the
evidence or perhaps from the lack of
evidence." Despite the regrettable errors,
the charge did not so infect the instruction
as to lower the State's burden of proof.
[147 N.J. at 55-56.]
While the necessity of using the charge adopted by the Court
in State v. Medina, supra, is prospective, the analysis used by
the Court to determine whether a particular charge meets
constitutional muster is applicable to the present case. It is
under this analytic framework that we examine the judge's charge
and supplemental charge to the jury.
The judge's original jury charge was correct in all
respects. The supplemental charge also contained some of the
model language but added to it in two minor respects. We find
that as a whole the judge's charge did nothing to lessen the
State's burden of proving defendant guilty beyond a reasonable
We agree with defendant that a court should not ordinarily
give the jury a dictionary definition of "reasonable." And we
note that, under State v. Medina, supra, no dictionary definition
will ever again be used. Defendant argues, however, that the
judge's definition of "reasonable" reduced the State's burden of
proof. We disagree. Using the dictionary definition that
reasonable means "in accordance with sound thinking within the
bounds of common sense, not extreme or excessive," does not
lessen the State's burden of proving defendant guilty beyond a
Defendant's reliance on Alvarez v. People,
653 P.2d 1127
(Colo. 1982), is misplaced. In that case, one juror consulted a
dictionary for definitions of the terms "reasonable," "doubt,"
"imaginary," and "vague." The following day, she discussed those
definitions with another juror. The Colorado Supreme Court found
this to be improper because the words may not have significance
as legal concepts when used in everyday parlance and because the
jurors were bound to accept the judge's definition of reasonable
doubt and to obtain clarifications of any ambiguities in
terminology from the court, not from extraneous sources. Seeid.
Here, the jurors did not look to extraneous sources for
clarification but to the judge. When a trial judge resorts to a
dictionary for clarification, he or she has control over what
information is then imparted to the jury. In Alvarez, there was
no way of knowing what the jurors learned from consulting the
dictionary or, more importantly, how they used that information.
In defendant's fourth point, he contends that his conviction
must be reversed because the State repeatedly made improper
references to his pre-arrest silence as substantive proof of
guilt. The issue of whether it is proper to admit evidence of
pre-arrest silence as substantive evidence of guilt requires
extensive analysis. It is a subject that has not been considered
by our Supreme Court or the Supreme Court of the United States.
Another panel of this court has previously held that evidence of
pre-arrest silence is not admissible as substantive evidence of
guilt. SeeState v. (Shelton) Marshall,
260 N.J. Super. 591, 597
(App. Div. 1992). We respectfully disagree. We conclude that
the admission of evidence about defendant's pre-arrest silence as
substantive evidence of guilt did not violate any constitutional
right and was not error. Further, even if the inclusion of this
evidence was error, it was harmless beyond a reasonable doubt.
The evidence in question was elicited, over defense
objections, on direct examination of the investigating officers.
The testimony was that, during the early stages of the
investigation, defendant never asked about the status of the
investigation, the cause of his wife's death, or whether the
police had any suspects.
Defense counsel, in his summation, argued that if defendant
had asked more about the investigation and the cause of his
wife's death, the State would have found that to be suspicious.
"It's sort of a damn if you do, damn if you don't situation. If
you don't ask, then they try to draw an innuendo because you
haven't asked." Counsel also suggested that defendant had
remained stoic for his sons' sake when he found his wife dead and
that the family had retired early on the night of the murder
because they were so drained. Defendant wanted to get back into
his house as soon as possible because his sons were anxious to
return to their home.
During its summation, the State commented:
One of the first things, and we touched
on that briefly, that someone wants to know
in that position, that position of an
innocent victim, the innocent spouse, of
someone who's been killed, are the questions
we talked earlier, the condition of his wife.
First thing has to be, did she suffer? I
mean that is has [sic] the first thing that
comes to mind? He had the opportunity to
talk to the police at numerous times, number
one. Number two, what's going on? What are
you guys doing? Was [sic] the status of the
investigation? Two of the most logical
things that should have come up which never
When he is in the presence of the police
at his parents' house at 5:25 on January 2.
He sees Tom Ramsey in front of his house at
7:30. He sees Condus at 9:15 when he brings
the dogs. He's at the Chatham police
headquarters at midnight for a number of
hours. He's at the Chatham Police
Headquarters the following day prior to seven
o'clock as they're making arrangements to get
the house turned over. He's in the company
of the police at his house after seven
o'clock on the third. Police visit him on
January fifth, there is nothing, never asked.
No follow up calls. Did she suffer? What
are you guys doing to find out who killed my
Immediately prior to concluding his summation, the
prosecutor again noted:
No time during the investigation did
John Dreher ever ask what happened to his
wife of 15 years. Never asked if did she
suffered [sic], never ask if she was raped.
Never asked if she was tortured. He didn't
have to, he knew, he had inside information.
He was the ultimate insider, he knew what
happened to his wife, he knew she had
suffered, he knew she had been strangled, he
knew she had been stabbed. He didn't ask any
questions about his wife because he didn't
have to. He already had all the answers.
Recall that defendant made the following comment to
Detective Ramsey: "I thought she was hit in the head with the
shoe thing but the papers said she was strangled."See footnote 16 Also
recall that Ramsey found that this comment was suspicious because
he had given orders not to release information regarding the
metal cobbler's shoe last to anyone outside of the investigation,
and the victim's head injuries would not have been visible upon
first entering the basement.
In Griffin v. California,
380 U.S. 609, 615,
85 S. Ct. 1229,
14 L. Ed.2d 106, 110 (1965), the United States Supreme
Court held that, under the Fifth Amendment, a prosecutor cannot
comment on a defendant's decision not to testify at trial and
cannot use that silence as evidence of guilt. The Court did not
address the admissibility of non-coercive, pre-arrest silence.
The admissibility of evidence about a defendant's pre-arrest
silence can be fairly split into two different realms: use of
the evidence for impeachment purposes; and use of the evidence as
substantive evidence of guilt. The use of pre-arrest silence for
impeachment purposes has a well-developed jurisprudence, while
the use of pre-arrest silence as substantive evidence of guilt
has led to fragmented, inconsistent decisions.
Using pre-arrest silence to impeach a defendant does not
violate either the Fifth Amendment prohibition against self-incrimination or the Fourteenth Amendment guarantee of due
process. SeeJenkins v. Anderson,
447 U.S. 231, 238, 240,
Ct. 2124, 2129, 2130,
65 L. Ed.2d 86, 94-95, 96 (1980). In
Jenkins, the defense theory was that the victim had been killed
in self-defense. Both on cross-examination of the defendant and
in closing argument, the prosecutor referred to the defendant's
two-week delay in reporting the incident. Without deciding
whether there were circumstances under which pre-arrest silence
may be protected by the Fifth Amendment, the Court concluded that
once a defendant chooses to "cast aside his cloak of silence" by
testifying, the truth-finding function of a criminal trial
prevails in the balance of considerations determining the scope
and limits of the privilege against self-incrimination. Seeid.
at 238, 100 S. Ct. at 2129, 65 L. Ed.
2d at 94-95.
Similarly, because no governmental action can be found that
induces a defendant to remain silent prior to his arrest, using
his silence to impeach him cannot violate due process. Seeid.
at 240, 100 S. Ct. at 2130, 65 L. Ed.
2d at 96. The Court noted
that "[c]ommon law traditionally has allowed witnesses to be
impeached by their previous failure to state a fact in
circumstances in which that fact naturally would have been
asserted." Id. at 239, 100 S. Ct. at 2129, 65 L. Ed.
2d at 95.
The Court further noted that is was up to each jurisdiction to
formulate its own rules of evidence for determining under which
circumstances such evidence will be admissible. Seeibid.
In a concurring opinion, Justice Stevens noted that the
privilege against compelled self-incrimination is simply
irrelevant to a citizen's decision to remain silent when he is
under no official compulsion to speak. Seeid. at 241, 100 S.
Ct. at 2131, 65 L. Ed.
2d at 96 (Stevens, J., concurring).
According to Justice Stevens:
When a citizen is under no official
compulsion whatever, either to speak or to
remain silent, I see no reason why his
voluntary decision to do one or the other
should raise any issue under the Fifth
Amendment. . . . I would simply hold that
the admissibility of petitioner's failure to
come forward with the excuse of self-defense
shortly after the stabbing raised a routine
evidentiary question that turns on the
probative significance of that evidence and
presented no issue under the Federal
[Id. at 243-44, 100 S. Ct. at 2132, 65 L.
2d at 98 (Stevens, J., concurring).]
Justice Stevens recognized that, under his approach,
assuming that the evidence was relevant, such evidence can also
be used, "not only for impeachment but also in rebuttal even had
[a defendant] not taken the stand." Id. at 244 n.7, 100 S. Ct.
at 2132 n.7, 65 L. Ed.
2d at 98 n.7 (Stevens, J., concurring)
In New Jersey, the privilege against self incrimination is
not part of our Constitution. Rather, it is codified as part of
our evidence rules. SeeN.J.R.E. 503. New Jersey's privilege
against self incrimination is generally regarded as offering
broader protections than its federal constitutional counterpart.
SeegenerallyState v. Strong,
110 N.J. 583, 595 (1988); Dunn v.
Borough of Mountainside, N.J. Super. (App. Div. 1997).
In State v. Deatore,
70 N.J. 100, 108-09, 113 and n.8
(1976), our Supreme Court held that a defendant who remains
silent, or who fails to volunteer exculpatory information at or
near the time of his arrest, may not be cross-examined regarding
such silence in order to permit an inference that his exculpatory
testimony at trial is untrue. Subsequently, in State v. Brown,
118 N.J. 595 (1990), the Supreme Court addressed the
admissibility for impeachment purposes of evidence of pre-arrest
silence that significantly preceded an arrest.
The Brown Court concluded that, under New Jersey law,
[A] defendant has no right not to speak prior
to arrest. We are also of the view, however,
that a defendant has no duty to speak prior
to arrest. Simply, there is no legal
constraint one way or the other--either to
speak or not to speak--prior to an arrest.
Consequently, evidence of pre-arrest silence,
particularly in the absence of official
interrogation, does not violate any right of
the defendant involving self-incrimination. .
. . Thus, in effect, the probative worth of
such pre-arrest silence should be considered
objectively and neutrally, without added
coloration attributable to any legal right in
[Id. at 613 (citations omitted).]
Accordingly, "pre-arrest silence may be admitted for impeachment
purposes provided that "no governmental compulsion is involved."
If it can be inferred that "a reasonable person situated as
the defendant, prior to arrest, would naturally have come
forward," especially when this is viewed in light of the
defendant's exculpatory testimony, "then the failure to have done
so has sufficient probative worth bearing on defendant's
credibility for purposes of impeachment." Id. at 613-14. Stated
another way, the evidence is admissible if "it generates an
inference of consciousness of guilt that bears on the credibility
of the defendant when measured against the defendant's apparent
exculpatory testimony." Id. at 615.
As noted, the use of pre-arrest silence as substantive
evidence of guilt has not been addressed by either the United
States Supreme Court or the New Jersey Supreme Court. In State
v. Marshall, supra, 260 N.J. Super. at 597, one panel of this
court found that evidence of pre-arrest silence could not be used
as substantive evidence of guilt. That panel noted that the
Brown Court did not expressly state whether a defendant's pre-arrest silence is admissible as substantive evidence of guilt
where the defendant does not testify. Seeibid. In Marshall,
supra, our colleagues concluded that "[i]f evidence of a
defendant's pre-arrest silence is not admissible to prove
consciousness of guilt when he testifies, a fortiori such
evidence is not admissible for that purpose if he does not
testify and therefore is not available to explain his silence."
Id. at 597. Our colleagues concluded that because the defendant
did not testify at trial, the State should not have asked the
jury to consider his pre-arrest silence for any purpose. Seeibid.
We respectfully disagree with our colleagues' reasoning in
Marshall, supra. Our Supreme Court in Brown, supra, delineated
the circumstances under which pre-arrest silence can be used for
impeachment purposes. Our colleagues in Marshall, supra,
reasoned that because the Brown Court proscribed the use of pre-arrest silence as substantive evidence of guilt in the
impeachment context, there could never be an instance under which
one could use such evidence as substantive evidence of guilt. We
By way of example, we note that under N.J.R.E. 609, a
witness's credibility can be impeached by evidence of a prior
conviction of a crime. A jury must be instructed that they
cannot consider a defendant-witness's conviction as substantive
evidence of defendant's guilt. SeeState v. Manley,
54 N.J. 259,
271 (1969). Under N.J.R.E. 404(b), however, this same evidence
can be introduced "for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident when such matters are relevant to
a material issue in dispute." Ibid. Thus, although in one
context, evidence must be limited to impeachment, under other
circumstances it can be used as substantive evidence.
We read the proscription in the Brown decision against the
use of pre-arrest silence as substantive evidence of guilt as an
articulation of the principle that impeachment evidence in
general should never be used as substantive evidence of guilt.
Furthermore, we note that the Brown Court explicitly found that
evidence of pre-arrest silence that significantly precedes arrest
does not implicate the constitutional or codified right against
self incrimination. In sum, we find that Brown, supra, does not
mandate the result reached in Marshall, supra.
The federal circuits are split on the issue of whether pre-arrest silence can be used as substantive evidence of guilt.
Some circuits have held that the use of such silence comes within
the proscription of commenting on the privilege against self-incrimination. See, e.g., United States v. Burson,
952 F.2d 1196, 1200-01 (10th Cir. 1991), cert. denied,
503 U.S. 997,
112 S. Ct. 1702,
118 L. Ed.2d 411 (1992); Coppola v. Powell,
878 F.2d 1562, 1567-68 (1st Cir.), cert. denied,
493 U.S. 969,
110 S. Ct. 418,
107 L. Ed.2d 383 (1989); United States ex rel. Savory v.
832 F.2d 1011, 1018 (7th Cir. 1987). Other circuits have
held that, where the silence is neither induced by nor in
response to governmental action, the Fifth Amendment is not
applicable. SeeUnited States v. Thompson,
82 F.3d 849, 855 (9th
Cir. 1996).See footnote 17 But seeUnited States v. Caro,
637 F.2d 869, 876
(2d Cir. 1981) (holding, without discussion, that Jenkins, supra,
could not be extended to allow use of pre-arrest silence as part
of the government's direct case but that the error was harmless).
Still other circuits have held only that, once a defendant
volunteers to be interviewed, he cannot keep from the jury the
fact that he selectively disclosed certain information and then
chose to "clam up." SeeUnited States v. Davenport,
929 F.2d 1169, 1174-75 (7th Cir. 1991), cert. denied,
502 U.S. 1031,
112 S. Ct. 871,
116 L. Ed.2d 776 (1992); see alsoState v. Carroll,
256 N.J. Super. 575, 601 (App. Div.) (finding it permissible to
introduce evidence that, after a certain point in a post-arrest
interrogation, the defendant invoked his right to remain silent
because it showed a logical end to the interrogation), certif.
130 N.J. 18 (1992).
In United States v. Zanabria,
74 F.3d 590 (5th Cir. 1996),
the defendant did not testify at trial but presented a defense of
duress through the testimony of other witnesses. The arresting
officer testified that, prior to his arrest, the defendant said
nothing about threats against his daughter or that he was in
trouble. The prosecutor used this testimony to rebut the duress
defense. Seeid. at 593. The Fifth Circuit held, without
deciding whether pre-arrest silence fell within the reach of
testimonial communications protected by the Fifth Amendment, that
the silence at issue in Zanabria was neither induced by nor in
response to any governmental action. Seeibid. While the Fifth
Amendment protects against compelled self-incrimination, it does
not preclude the proper evidentiary use of every communication,
or lack thereof, by a defendant that may give rise to an
incriminating inference. Seeibid. We find that this logic is
compelling and echoes the correct sentiments expressed by Justice
Stevens in his concurring opinion in Jenkins, supra.
We begin our substantive analysis by echoing Justice
Stevens' concurrence in Jenkins v. Anderson, supra, that where
there is no governmental compulsion associated with a defendant's
silence, evidence of that silence should be allowed in for any
relevant purpose regardless of whether the defendant takes the
stand. We also note that in State v. Brown, supra, our Supreme
Court found that "evidence of pre-arrest silence, particularly in
the absence of official interrogation, does not violate any right
of the defendant involving self-incrimination." 118 N.J. at 613.
In the case at bar, the silence about which the State
commented was not compelled, and thus, its admissibility does not
rise or fall on self-incrimination grounds. The admissibility of
defendant's pre-arrest silence must be adjudged on the basis of
its relevance. N.J.R.E. 401 defines "relevant evidence" as "evidence having
a tendency in reason to prove or disprove any fact of consequence
to the determination of the action." Ibid. In ascertaining the
relevance of evidence, the focus should be on "the logical
connection between the proffered evidence and a fact in issue."
State v. Hutchins,
241 N.J. Super. 353, 358 (App. Div. 1990).
Under N.J.R.E. 403, otherwise relevant evidence "may be excluded
if its probative value is substantially outweighed by the risk of
(a) undue prejudice, confusion of issues, or misleading the jury
or (b) undue delay, waste of time, or needless presentation of
cumulative evidence." Ibid.
The State's position is that defendant's silence was conduct
that was indicative of guilt and that conduct that indicates
consciousness of guilt, or is inconsistent with innocence, is
admissible. SeeState v. Mills,
51 N.J. 277, 286 (holding that
it was not error to include evidence about the defendant's visit
to the grave side of one of his victims), cert. denied,
393 U.S. 832,
89 S. Ct. 105,
21 L. Ed.2d 104 (1968); State v. Millett,
272 N.J. Super. 68, 88 (App. Div. 1994);see alsoState v. Pindale,
249 N.J. Super. 266, 283 (App. Div. 1991) ("[t]he rule applies
only to such conduct as is intrinsically indicative of a
consciousness of guilt, such as unexplained flight, or an unusual
exhibition of remorse for the victim of the crime, or the
switching of clothes with a cell mate before a lineup").
In Pindale, supra, we found that the absence of remorse is
not necessarily probative of guilt. That is, the absence of
remorse may be "more probative of a clear conscience, albeit
callous, uncaring and unsympathetic." Ibid. The determination
of whether this type of evidence is admissible must depend on the
specific facts of a case. The question will always be one of
relevance. For example, in State v. Cerce,
22 N.J. 236, 245-46
(1956), the State was allowed to show that, when informed of his
wife's murder, the defendant reacted without any noticeable
emotional disturbance. The Court held that such apathy and
indifference permitted an inference that defendant had knowledge
of the crime and was hurt by his wife's betrayal of their
marriage. Seeibid. Also, the State was allowed to introduce
evidence that, when the officers came to arrest him, the
defendant asked to finish shaving and asked no questions about
the reasons for his arrest. "That knowledge was already his."
Ibid.See footnote 18
Here, it was defendant's silence, not just his emotional
demeanor, that the State used against him. Arguably, there is
very little difference between telling a jury that defendant
reacted with no emotion to his wife's death and telling them that
he asked no questions about her death. Moreover, the difference
between conduct and silence is irrelevant when it occurs at a
time substantially prior to arrest when our courts have held that
the privilege against self-incrimination does not attach.
With the exception of one statement that defendant made to
the police in his house on the day following the murder--that he
thought that his wife had been killed with the cobbler's last,
but the newspapers reported it as a strangulation--defendant said
nothing about the murder itself. This is important because the
police never told defendant anything about the cobbler's last,
and the press, as noted, reported that the cause of death was
strangulation. Also, there is evidence that defendant could not
have known about the cobbler's last without doing extensive
investigating in the basement upon discovering his wife's body,
which he did not have time to do and which he specifically
indicated that he had not done.
Because defendant suggested to the police that he thought
that his wife had been killed in a certain manner, without having
a basis for making the suggestion, the fact that defendant never
asked any further questions about the manner of her death became
probative of his guilt. A jury could clearly infer from this
evidence that defendant had knowledge of the method of his wife's
Defendant claims, without offering reasons, that if the
evidence was relevant and admissible, it should have still been
excluded because its probative value is outweighed by its undue
prejudicial effect. We find that the probative value of this
evidence outweighs any possible prejudicial effect. It appears
that the prejudicial effect upon which defendant raises his
objection is that the inference between his pre-arrest silence
and his guilt is too attenuated. We reject this argument. If
defendant had not made his statement to the police that he
thought that his wife had been killed by the cobbler's last, the
inference necessary to sustain the evidence would be different.
That hypothetical is not before us. Consequently, the evidence
While we find no error in the inclusion of the evidence
about defendant's pre-arrest silence, we also find, in light of
all the evidence, that if the inclusion was error, it was
harmless beyond a reasonable doubt. SeeState v. Macon,
57 N.J. 325, 338 (1971).
In his fifth point, defendant contends that the Morris
County Prosecutor's Office (MCPO) impermissibly ordered the
Chatham Township Police Department (CTPO) to destroy handwritten
notes of police officers, despite a written policy in the CTPO's
policy manual, that written notes were to be maintained.
Defendant argues that the judge erred when he denied defendant's
motion to dismiss his indictment due to the destruction of the
police officers' written notes. We reject that argument. "Once
the grand jury has acted, an 'indictment should be disturbed only
on the 'clearest and plainest ground,' and only when the
indictment is manifestly deficient or palpably defective." State
144 N.J. 216, 228-29 (1996) (citations omitted).
Defendant has failed to demonstrate that the indictment here was
itself manifestly deficient or palpably defective.
The question thus becomes whether the destruction of police
notes precludes the investigators' testimony that used final
reports that incorporated information contained in the field
notes that were destroyed. We conclude that it does not.
Prior to trial, the judge conducted an eleven-day hearing
(Lett I hearing) concerning the policies and practices of
individual members of the CTPD and the MCPO with respect to note
taking, report preparation, and filekeeping systems. Although
that hearing was designed to flush-out alleged improprieties
pertinent to Austin Lett's proffered testimony, the evidence
presented in that pre-trial hearing also applied to defendant's
motion to preclude testimony about defendant's interviews during
the first three days following Gail Dreher's murder.
At the conclusion of the Lett I hearing, the judge concluded
that the note destruction was designed to reduce paperwork, avoid
confusion, and enhance legibility. The judge found that there
was no need to preserve rough shorthand or handwritten notes
taken at the scene of an interview as long as the information
contained in those notes was accurately reflected in a more
legible, formal document. Applying that decision to the motion
brought to suppress defendant's statements, the judge ruled that
any failure on the part of the CTPD to preserve its original
notes could be used by the defense in its cross-examination of
the officers in question but that testimony of the investigating
officers who had destroyed their notes after preparing formal
reports would not be precluded. We agree with that decision.
In California v. Trombetta,
467 U.S. 479,
104 S. Ct. 2528,
81 L. Ed.2d 413 (1984), the Supreme Court held that whenever
potentially exculpatory evidence is permanently lost, courts face
the difficult task of determining the importance of materials
whose contents are unknown and often disputed. Seeid. at 486,
104 S. Ct. at 2533, 81 L. Ed.
2d at 421. The Court cited with
approval the approach taken in Killian v. United States,
368 U.S. 231,
82 S. Ct. 302,
7 L. Ed.2d 256 (1961), reh'g denied,
368 U.S. 979,
82 S. Ct. 476,
7 L. Ed.2d 441 (1962), where the issue was
the destruction of the preliminary notes of an FBI agent. The
Killian Court stated that there was no constitutional violation
implicated by such a destruction as long as the notes were made
only for the purpose of transferring data and if, after having
served that purpose, they were destroyed by agents "in good faith
and in accord with their normal practice." 368 U.S. at 242, 82
S. Ct. at 308, 7 L. Ed.
2d at 264. The Trombetta Court adopted
this standard and further held that, "[w]hatever duty the
Constitution imposes on the States to preserve evidence, that
duty must be limited to evidence that might be expected to play a
significant role in the suspect's defense." 467 U.S. at 488, 104
S. Ct. at 2534, 81 L. Ed.
2d at 422.
The Supreme Court revisited the issue in Arizona v.
488 U.S. 51,
109 S. Ct. 353,
102 L. Ed 2d 281 (1988),
488 U.S. 1051,
109 S. Ct. 885,
102 L. Ed.2d 1007
(1989). The Court concluded that it was unwilling to read the
fundamental fairness requirement of the due process clause as
imposing on the police an undifferentiated and absolute duty to
retain and preserve all material that might be of conceivable
evidentiary significance. SeeArizona v. Youngblood, supra, 488
U.S. at 58, 109 S. Ct. at 337, 102 L. Ed.
2d at 289. Instead, a
showing of bad faith was required because this would limit the
extent of the State's obligation to preserve evidence to
"reasonable bounds" and would confine it to cases where the
interests of justice clearly require it. Seeibid.
Our own courts have identified three factors on which to
focus in determining whether a due process violation has occurred
when there has been suppression, loss, or destruction of physical
evidence: (1) the bad faith or connivance by the government; (2)
whether the evidence was sufficiently material to the defense;
and (3) whether the defendant was prejudiced. SeeState v.
201 N.J. Super. 453, 479 (App. Div.), certif. denied,
101 N.J. 335 (1985). To be material, the "evidence must both
possess an exculpatory value that was apparent before [it] was
destroyed, and be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably
available means." California v. Trombetta, supra, 467 U.S. at
489, 104 S. Ct. at 2534, 81 L. Ed.
2d at 422; State v. Hollander,
supra, 201 N.J. Super. at 479-80.
In State v. Hunt,
25 N.J. 514, 525 (1958), our Supreme Court
held that a defendant had the right to examine a police officer's
notes where the officer refreshed his recollection with those
notes prior to trial. The Court held that, "where it appears
that a State's witness has made prior notes or statements
relating to the subject matter of the direct testimony which he
has given, the defense is entitled to inspect and use on cross-examination the prior notes or statements if they are or can be
made available." Id. at 531. The Court did not conclude,
however, that the State had a duty to preserve such notes.
Moreover, in the instant case, the officers did not rely on their
notes during their direct testimony. Rather, they relied only on
their formal typewritten reports, which were provided to the
defense during discovery.
More analogous is the case of State v. Bohuk,
Super. 581 (App. Div.), certif. denied,
136 N.J. 29, cert.
513 U.S. 865,
115 S. Ct. 183,
130 L. Ed.2d 117 (1994).
There, we held that the State's intentional destruction of the
notes relating to fingerprint evidence did not deny defendant due
process because the destruction had no impact on the defendant's
opportunity to attack the State's evidence. Seeid. at 597. We
noted that the defense had been provided with all 107 photographs
of potential fingerprints as well as the investigator's written
report and that there was no evidence that the notes had any
exculpatory value or were otherwise material. Seeibid.
Additionally, there was no suggestion in the record that the
notes had been destroyed in bad faith. Seeibid.
In State v. Zenquis,
251 N.J. Super. 358, 370 (App. Div.
131 N.J. 84 (1993), while reversing the conviction
on other grounds, we noted that the trial court should have made
findings concerning whether the failure to preserve a police
officer's notes was done in bad faith. Nevertheless, we found no
undue prejudice to the defendant's rights where the trial court
had instructed the jury that if it found that the officer had
"destroyed his notes at a time when he knew the case was
proceeding to trial, it could infer that the notes contained
information inconsistent with the witness's trial testimony."
Id. at 370.
Although the judge here did not conduct a separate inquiry
into the destruction of notes regarding interviews with
defendant, the judge did conduct an extensive hearing regarding
Austin Lett. Based on the Lett I testimony, the judge concluded
that the destruction of those notes had not been done in bad
faith and that the officers had a legitimate recordkeeping reason
for destroying redundant paperwork that took up space and was
often illegible. Particularly significant was Ramsey's
testimony. According to Ramsey, his officers were told to review
their previously-retained notes and to make sure that their typed
versions were totally accurate before disposing of the notes.
Ramsey personally checked any handwritten notes against the final
report when a report was given to him for review.
Defendant nevertheless suggests that bad faith can be
inferred from the fact that the MCPO issued an internal
memorandum in May 1987, apparently right before defendant was
indicted, which indicated that handwritten notes may be destroyed
once a final report is prepared and which cautioned the
investigators that all such notes that are retained were
discoverable and would be furnished to defense attorneys.
Defendant argues that this memo proves that the MCPO's suggestion
to the CTPD that they destroy their notes was done in bad faith
because it was done solely to avoid discovery obligations. We
The memo does not permit an inference of bad faith. As
noted, the State is under no obligation to preserve handwritten
reports prepared by officers in the field. Our discovery rules
require only that the State provide to the defense any "police
reports that are within the possession, custody, or control of
the prosecutor." R. 3:13-3(c)(8). Internal reports, memos, or
documents that are deemed work product are not discoverable. SeeR. 3:13-3(e). While the Constitution requires that exculpatory
evidence known to the prosecution be disclosed to the defense,
defendant cannot presume from the State's practice of destroying
handwritten notes after formal reports have been prepared that
exculpatory evidence is deliberately and in bad faith being
At trial, defendant vigorously cross-examined the officers
on this issue. It was brought to the jury's attention that, at
some time prior to May or June 1986, Ramsey had agreed to go
along with the idea suggested by the MCPO that all handwritten
notes of his officers be destroyed. Ramsey gave the official
order to destroy the notes. He testified that any notes that had
not been typed up were not destroyed.
Ramsey admitted that the CTPD operating manual then in
existence provided that crime scene notes "should be retained
until final disposition and/or appeal of the case." Ramsey also
indicated that he issued his directive after consultation with
the police chief who had promulgated the original policy manual.
The jury was fully aware of the written policy and the
decision circumventing that policy. It was free to draw any
inference from that testimony favorable to defendant. We find no
In defendant's sixth point, he argues that the judge erred
in allowing Austin Lett to testify at trial because the State
destroyed crucial evidence of an interview with Lett prior to his
undergoing hypnosis. According to defendant, even if evidence of
Lett's pre-hypnotic recollection was admissible despite the
improprieties of the hypnotic procedure, the evidence should have
been excluded because the prosecution misrepresented the
substance of that pre-hypnotic recollection. We disagree.
The issue first arose prior to trial when the defense
alleged that the written summary provided by the State to the
hypnotist contained references to interviews with Lett that had
occurred on January 3 and 7, 1986. The defense was aware only of
the January 4 interview. Also, the information recorded in the
police report of the January 4 interview differed from that
contained in the summary given to the hypnotist. Finally, the
defense had evidence to suggest that the police officer who had
interviewed Lett on January 4 had discarded her rough notes after
the draft of her report was prepared but before the final version
The State represented to the judge that it was aware of only
one interview with Lett and that this interview occurred on
January 4, 1986. References to any other dates in the summary
given to the hypnotist were erroneous. There were differences
between what was contained in the police report and what was
contained in the summary because the summary had been
deliberately left vague so that the hypnotic process would not be
The judge found no bad faith in the State's destruction or
withholding of evidence that would cause material prejudice to
defendant and ruled that the issue was one to be dealt with
during cross-examination. On an interlocutory appeal, on August
10, 1993, we reversed and remanded the matter to the trial court
for an evidentiary hearing.
As noted, the judge conducted an eleven-day hearing, the
Lett I hearing, on various dates between November 29 and December
15, 1993. At the end of this hearing, the judge concluded that
the allegedly missing reports never existed and that Lett had not
been interviewed on the days alleged by the defense.
The judge ruled that the defendant had the burden of
persuasion to prove that the State had not turned over every
piece of discoverable evidence that it had in its possession.
Applying the preponderance of evidence standard, the judge ruled
that defendant had failed to meet its burden.
The judge specifically considered the credibility of every
witness who testified at the hearing, including their ability to
recall, their ability to communicate, their body language, facial
expressions, and their expressions of nervousness or hesitation.
The judge found Officer Goeckel to be a credible witness.
Although her memory was incomplete, it was aided by documents
that she had prepared contemporaneously with the events.
Additionally, the judge found that Goeckel had taken handwritten
notes of her interview with Lett on January 4, 1986, and that she
deliberately destroyed them once her typewritten rough draft had
been prepared. Consistent with his prior ruling that there was
no need to preserve preparatory notes once those notes have been
incorporated into a formal report, the judge concluded that
Goeckel's field notes were entirely and accurately subsumed in
her typewritten draft, which she contemporaneously prepared.
Turning to the two-page summary given to the hypnotist, the
judge noted that although no one had admitted writing it, Allman
and another officer had admitted giving input to its substance.
Allman claimed that he had intended the information contained
therein to be accurate, but no one ever said that it was in fact
accurate. The judge concluded that the information contained in
this summary was in fact inaccurate. There was nothing else
whatsoever before the judge that suggested that Lett had been
interviewed on either January 3 or 7, 1986, or that any of the
inaccurate information was correct. Moreover, the judge found
that the document was intended to be vague so as not to taint the
hypnotic session. In addition, it was never intended to be an
official report. The fact that it was so carelessly prepared was
probably the reason that no one would take credit for writing it.
In any event, the judge ruled that carelessness in its
preparation could be used by the defense during its cross-examination to affect the credibility of witnesses at trial.
Hence, the judge concluded that because there was no
interview with Lett on January 3 or 7, 1986, there was never any
report of such an interview that could have been lost or
destroyed. The "arcane interpretation" suggested by the defense
was simply not borne out by the facts. Accordingly, defendant's
motion to exclude Lett's testimony was denied.
We agree entirely with the judge's assessment. The judge
had the firsthand opportunity to assess the credibility of the
twenty-three witnesses that appeared before him over the course
of eleven days. His conclusion that no police reports had been
lost or destroyed was supported by the overwhelming weight of the
evidence presented at the hearing. While defendant tried to get
someone to admit that Lett had been interviewed on a date other
than January 4, 1986, he failed in that endeavor. He similarly
failed in his endeavor to substantiate any of the other
We also agree with the judge that the information contained
in the two-page summary given to the hypnotist was never intended
to be a full recitation of the details that Lett gave to the
police. While it should not have contained inaccurate
information, the fact remains that it did. The document was
never intended to be an official report and which had been
hastily prepared, apparently by officials in the MCPO who did not
fully understand the legal ramifications of attempting to elicit
hypnotically refreshed testimony from a witness.
Moreover, as will be more fully explained in our discussion
of defendant's seventh point of error, the hypnotist spoke to
Lett at length before placing him under hypnosis. His pre-hypnotic recollection, then, had been well-documented before he
ever underwent the procedure. There was simply nothing before
the judge, not even an inference or suggestion, much less any
concrete proof, that Lett ever made inconsistent statements at
some other time. Hence, there was no basis on which the judge
could have ruled that Lett's testimony was inadmissible. Here,
there was no proof that anything had been lost or destroyed, much
less anything of material value to the defense.
All that the law requires is that the police act in good
faith and that nothing of material value be withheld so as to
deny a defendant due process under the law. SeeArizona v.
Youngblood, supra, 488 U.S. at 58, 109 S. Ct. at 337, 102 L.
2d at 289. In the absence of bad faith, relief should be
granted to a defendant only where there is a "showing of manifest
prejudice or harm" arising from the failure to preserve evidence.
De Vitis v. New Jersey Racing Comm'n,
202 N.J. Super. 484, 494
(App. Div.), certif. denied,
102 N.J. 337 (1985).
We therefore reject defendant's arguments concerning the
loss or destruction of notes regarding Lett's pre-hypnotic
In defendant's seventh point, he argues that Lett's trial
testimony should have been excluded because it was tainted by an
improper hypnotic procedure. Alternatively, he argues that he is
entitled to a new hearing on this issue because the judge
erroneously excluded the testimony of defendant's document
This issue was raised in defendant's first appeal and
decided against him. SeeDreher I, supra, 251 N.J. Super. at
308-15. At the hearing held prior to the first trial, the judge
determined that the hypnosis had been conducted in violation of
many of the guidelines enunciated in State v. Hurd,
86 N.J. 525
(1981), and that the statements made by Lett while under
hypnosis--that he saw defendant's car at 9:35 a.m. and that he
could recognize defendant as the driver of the car--would be
excluded. In Dreher I, supra, the State did not dispute that
ruling. Instead, it argued that the portion of Lett's testimony
that recited events recalled prior to the hypnotic session--that
he saw defendant's car, but not the driver, at 9:35 a.m.--was
admissible. 251 N.J. Super. at 308-09.
We agreed with the State that Lett's testimony about his
pre-hypnotic recall was properly admitted and that the great
majority of decisions elsewhere have concluded that, even where
hypnotically enhanced testimony is otherwise inadmissible, a
witness may testify as to matters "demonstrably recalled and
related" prior to hypnosis. Id. at 310-11. We noted that at the
Hurd hearing held prior to trial, defendant had offered no
scientific basis for why Lett could not reliably testify as to
his pre-hypnotic recollection. Although defendant, on appeal,
argued that Lett's testimony had been tainted, he had not offered
any expert testimony to back up that argument. Seeid. at 310.
We noted that defendant's view that a hypnotized witness is
contaminated and incompetent to testify even as to pre-hypnotic
events was an extreme one and was followed at that time only in
California. Seeid. at 311-12.
Instead, we followed the approach taken by the New York
courts. According to that approach:
[I]t is recognized that a major difficulty
arises because a hypnotized witness acquires
increased confidence in his recollections
which could then inhibit a defendant's right
of cross-examination. This difficulty
warrants a pretrial inquiry and a resolution
of two particular issues: (1) the extent of
the witness's pre-hypnotic recall; and (2)
the degree to which the hypnosis itself was
so "impermissibly suggestive as to require
exclusion of in-court testimony with respect
to prehypnotic recollection."
[Dreher I, supra, 251 N.J. Super. at 312
(quoting People v. Hughes,
453 N.E 2d
484, 496 (1983)).] At such a pretrial hearing, any evidence that is material to the
determination under the first prong should be received. Seeibid. With regard to the second prong, those guidelines that are
used by experts in the field of hypnosis should be used as a
basis for assessing suggestibility. Seeibid. The Dreher I
court noted that the New York approach had been adopted, with
minor variations, in numerous states, even those that do not
allow post-hypnotic testimony. Seeid. at 313-15 (citations
Prior to the second trial, defendant moved for a "Hughes"
hearing, a two-prong hearing adopted by New York in People v.
Hughes, supra. The State argued that the hearing should be
limited instead to scientific evidence regarding taint because
Lett's pre-hypnotic recollection had already been preserved on
videotape. After reviewing the videotape, the judge ruled that
the only issue to be determined was whether scientific evidence
showed that the suggestiveness of a hypnotic procedure could
taint someone's pre-hypnotic testimony.
We summarily reversed on an interlocutory appeal, in which
we stated that the judge, on remand, "shall allow the
presentation of evidence on both prongs of the Hughes standard
and shall not limit the hearing to the presentation of expert
testimony." This hearing (Lett II hearing) was conducted on
twelve days between May 31 and June 28, 1994. At the conclusion
of the hearing, the judge ruled that Lett's testimony was
The judge noted that the State had again conceded that Hurd
had been violated and that Lett's hypnotically induced statements
were inadmissible. The judge concurred with the earlier rulings
made by the first trial judge that neither Lett's pre- nor post-hypnotic testimony was tainted by the hypnotic procedure and that
hypnosis had not impaired defendant's ability to cross-examine
Lett. The judge found Lett to be an extremely credible witness;
he did not try to embellish or guess while he testified, and he
had been consistent from the time that he first spoke to the
police, through his pre-hypnotic session, through the first
trial, and now before the second trial. He answered questions
directly and precisely, and judging from his voice tone, body
language, and tempo, he was not deceptive. While the certainty
of the events had been reinforced by Lett's repeated testifying,
that was part of the human condition and the trial process.
Additionally, the judge found that Lett's alcoholism could
be used to cross-examine him at trial, but that it did not
substantially affect his ability to perceive, recall, and recount
the events about which he had testified.See footnote 19 There was no
evidence that Lett had been drinking or under the influence on
the morning on which he had made his observations.
Both experts that appeared at the hearing agreed that: the
recounting of events is likely to lead to new facts being
remembered, some accurate and some not; the repeating of one's
recollection will reinforce details; there is a real issue of
confabulation under hypnosis; and the hypnotist had violated the
Hurd guidelines. The judge further found that, during the pre-hypnotic session, Lett would not allow himself to be swayed by
the hypnotist and that he often disagreed with him.
Furthermore, Lett's modification of the time frame, based on
his reconstruction of what he did that morning, was consistent
with the opinion of both experts that there would be an increase
in information whenever a topic is repeatedly recounted. While
the State had mishandled the manner in which the hypnosis was
conducted, including the presentation to the hypnotist of a two-page summary that contained inaccurate details and for which no
one now wanted to take credit, the violations had not been
intentional. There had been no deliberate attempt to circumvent
Hurd. Defendant's motion to exclude Lett's testimony was
In State v. Fertig,
143 N.J. 115 (1996), our Supreme Court
restated and reaffirmed Hurd's six basic prerequisites to the
admissibility of hypnotically refreshed testimony. These
requirements include: (1) that a psychiatrist or psychologist
experienced in hypnosis conduct the session; (2) that the
professional be independent of either the State or the defense;
(3) that all information recalled prior to hypnosis be recorded;
(4) that the hypnotist obtain a detailed description from the
subject of what he remembers prior to hypnosis, and that the
expert avoid asking structured questions or adding new details;
(5) that all contacts between the hypnotist and the subject be
recorded, including before, during, and after hypnosis; and (6)
that no one else be present before, during, and after hypnosis.
Seeid. at 120-21 (citing State v. Hurd, supra, 86 N.J. at 545-46).
Despite the number of years that had elapsed since the Hurd
guidelines had been developed, and the number of states that had
considered hypnotically enhanced testimony to be inadmissible
per se, the Court declined to abandon the guidelines and instead
held that they should continue to be used on a case-by-case basis
to determine whether such testimony is admissible. SeeState v.
Fertig, supra, 143 N.J. at 124-26.
Here, as in Dreher I, the issue is not the admissibility of
hypnotically enhanced testimony. Rather, it is the extent to
which a suggestive hypnosis procedure has so tainted a witness's
pre-hypnotic recollection as to render his testimony inadmissible
at trial. In this regard, the issue has been analogized to that
presented by a tainted witness "who has been exposed to an
impermissibly suggestive out-of-court identification procedure."
Dreher I, supra, 251 N.J. Super. at 312-13:
In the case of identification testimony, an
in-court identification of the accused is
allowed where the State can show a sufficient
independent source for such testimony and
that the witness's recollection springs, not
from the suggestive procedure, but from his
or her own opportunity to view the accused at
the time of the crime.
[Id. at 313 (citations omitted).]
In admitting testimony about matters recalled and related
before a witness was hypnotized, a court may consider the
following factors: the extent to which the pre-hypnotic
recollections have been recorded; the degree to which the witness
had confidence in his pre-hypnotic recollection; the extent of
the witness's belief that hypnosis will yield the truth; the type
of questioning employed; and "any other factor relevant to
determining whether hypnosis so enhanced the witness's confidence
in his original recollection as to substantially impair the
opposing party's right to cross-examination." Id. at 311.
The Lett II hearing comported in all respects with the type
of inquiry envisioned by this court in Dreher I. Defendant was
able to explore Lett's pre-hypnotic recall, Lett's present
recall, Lett's alcoholism, the hypnotist's incompetence and
suggestive behavior, the State's incompetence in setting up the
session, and the State's incompetence in allowing ten minutes of
the session to go unrecorded. More importantly, defendant was
able to explore the debate among scientists regarding the effects
that hypnosis has upon one's ability to distinguish between
actual recall and confabulation.
From the moment that Lett was first interviewed by the
police until the time that he testified at the Lett II hearing,
he never wavered from his belief that he had seen defendant's car
somewhere around 9:15 or 9:30 a.m. He had testified so many
times that it would have been impossible to identify what he
"remembered that he remembered" before he was hypnotized. His
current recall had become so "scrambled," as defendant's expert
put it, not because of the hypnosis, but because he had been
asked to recount and recall the event on so many occasions. The
problems with Lett's recall in 1994 was not that he had been
hypnotized in 1986 but that he had been asked to restate his
story so many times in those intervening years.
As the State's expert credibly and cogently testified, as
the judge found, and as even the Hurd Court recognized, problems
with confabulation and increased confidence in the validity of
one's "new recall" occur regardless of hypnosis. That is, these
problems are part and parcel of the process of reconstructing a
past event. SeeState v. Hurd, supra, 86 N.J. at 540-41. Memory
is an active process that often introduces inaccuracies not
present in the initial recollection or even in the event itself.
Hence, the mind will confabulate or fill in gaps in memory "so
that the total picture will make sense or conform to the
subject's subconscious expectation of what must have occurred."
Id. at 541. "Rather than require historical accuracy as a
condition for admitting eyewitness testimony, we depend on the
adversary system to inform the jury of the inherent weaknesses of
the evidence." Id. at 542-43.
These comments are particularly apt here. As the State's
expert commented, it is unlikely that Lett ever had the memory of
the precise time that he saw defendant's car. That he could
place the time within a fifteen-minute range seems accurate
enough. His pre-hypnotic recall was recorded not only in the
police reports but on videotape as well. When he changed his
estimate from 9:15 a.m. to 9:25 a.m. or 9:35 a.m., he did so by
reconsidering what other events had transpired that morning
before he left for work. While the hypnotist suggested that Lett
should think about some of these events, that suggestion took
place before the hypnotic session ever began.
Defendant's argument that the judge erred by excluding his
document examiner's testimony is clearly without merit. R. 2:11-3(e)(2). This issue had already been extensively explored at the
Lett I hearing, and the judge took notice of all that prior
testimony. We find no error in the judge's decision to exclude
this testimony from the Lett II hearing.
In defendant's eighth point, he contends that the judge
erred in excluding bench notes contemporaneously-written by the
State's forensic chemist regarding the single sperm cell that she
found on the slide from the victim's nasal smear. Defendant
contends that this was "powerful documentary evidence" that
provided "compelling evidence" that the victim had been sexually
assaulted as well as murdered and that the murder had thus been
committed not by defendant, who had had a vasectomy, but by
another man. The State responds that the jury heard lengthy
testimony from the chemist regarding her observation, that her
observation was confirmed by two supervisors, and that the judge
did not abuse his discretion in excluding this single piece of
cumulative evidence. After an exhaustive review of the record,
we find that defendant's contention on this point is without
merit. R. 2:11-3(e)(2). We add the following comments.
All laboratory reports were admitted into evidence. The
judge, however, refused defendant's request to admit the notes.
According to defendant, these notes were admissible as statements
of a party opponent, as business records taken in the ordinary
course of business, or as official State records. The judge
ruled that while some of the notes may constitute business
records, this was a situation where the chemist had been in court
to testify. The mere fact that the evidence was a business
record did not mean that it had to be admitted, especially where
the jury had the benefit of hearing the testimony.
The judge described the bench notes as consisting of
thirteen pages that were replete with scientific terms, terms of
art, and abbreviations. The judge found that they would be of no
particular use to the jury and that they would only tend to
confuse the issue, rather than shed light on it.
A trial court has broad discretion under N.J.R.E. 403 to
exclude otherwise admissible evidence where its probative value
is substantially outweighed by the risk of undue prejudice,
confusion of issues, misleading the jury, undue delay, waste of
time, or needless presentation of cumulative evidence. SeeState
120 N.J. 523, 577-78 (1990). Those were the
precise concerns identified by the judge in making his decision
to exclude this evidence. We find no abuse of discretion here.
In defendant's ninth point, he contends that the judge erred
when it allowed a police officer to testify that he had not heard
any "street information" regarding the murder of defendant's
wife, thereby suggesting that it was an inside job. According to
defendant, this testimony was not only "rank hearsay" but,
depending on who the sources were for this street information,
also "double, triple, or quadruple hearsay." After a thorough
review of the record, and in light of applicable law, we are
satisfied that Defendant's contention is without merit. R. 2:11-3(e)(2). We add the following comments.
This was not a situation where the logical implication to be
drawn from the testimony was that a non-testifying witness had
given the police evidence that defendant committed the crime.
Rather, the only implication to be drawn from this evidence was
that a non-testifying witness had given police evidence that a
professional burglar, or someone else connected to the criminal
milieu, did not commit the crime. It was never seriously
contended, not even by defendant, that this was a "professional"
crime, and the evidence introduced at trial certainly did not
support such a theory.
Moreover, this was a fleeting reference made by one out of
forty witnesses who testified for the State in a trial that
lasted for more than thirty days. Defendant objected only to the
question that asked Ramsey whether any information had been
obtained from the street. Without objection, Ramsey defined
street information and stated that he had attempted to get such
information here. In the context of this protracted trial, then,
we find that any error that did occur here was incapable of
producing a verdict that the jury would not have otherwise
reached. SeeR. 2:10-2.
In his tenth point, defendant contends that the judge erred
in failing to conduct an adequate inquiry into allegations that
the jury had been improperly influenced by extraneous
information. In light of our exhaustive review of the record, we
find defendant's contention on this point to be without merit.
R. 2:11-3(e)(2). We add the following comments.
On May 3, 1995, the day after defendant had rested and the
evidentiary portion of the case had concluded, the judge received
an anonymous typewritten letter that stated:
I have been in the presence of and overheard
the blonde woman juror who sits in the back
row on the end of the jury box. She has
referred to information about the Dreyer
[sic] case that has not been introduced in
The judge notified the attorneys of the letter and thought
it best, in light of the letter's anonymity and lack of
specifics, that no further action be taken. Defense counsel
asked the judge to interview the juror in question on the record
and out of the presence of counsel. The judge agreed to do so.
The juror told the judge that the letter might have been written
by someone from her workplace because people there had tried to
talk to her about the case and she had had to stop some people in
mid-sentence. The juror had gotten angry at some of her
colleagues at work for blurting out things to her when she had
told them not to. She said some of her colleagues had said nasty
things, such as "hang him," but that she had explained to them
that her decision had to be based on what she heard in the
The juror also told the judge that she had not said anything
to anyone about the case other than when it would probably be
over; she had said nothing about the contents of the case. She
assured the judge that her decision would be based only on what
she heard in the courtroom. It saddened her to think that she
would be dismissed as a juror, but she felt that such an outcome
would be better than declaring a mistrial after everybody's hard
work. She felt that she had tried to stop any kind of comments
to her from people who were reading about this case, "but when
you work in a company with 2,000 people, it's very difficult to
The judge then asked the juror if she had ever shared the
information that she heard with any of the other jurors. The
juror replied that she had not. When the judge asked the juror
about the substance of the information that she had heard at
work, she stated that she had been told, "I don't know why it's
taking you so long, he was found guilty once, what's the
problem?" The juror told the judge that "people are very cruel"
to say things like that, and "I didn't know if it was true, I
didn't know if it wasn't true." She stated that she was
"[d]isregarding it because it's really neither here nor there."
The juror stated that someone in her office might have overheard
the comment that her co-worker made to her and might have written
the letter to the judge, especially because work was particularly
stressful with the juror being out so much during the trial.
The judge then discussed the matter with the attorneys. The
judge summarized what the juror had said about her co-workers'
jealousies and frictions and that they sometimes blurted out
things to her about the case. One of those things was to the
effect that defendant had already been convicted once before.
Nevertheless, the juror claimed that she would decide the case
based only on what she had heard in the courtroom, and the judge
absolutely believed her.
"Out of an abundance of caution," and consistent with his
position that knowledge of the outcome of the prior trial would
disqualify a juror, defense counsel felt constrained to ask the
judge to disqualify the juror. The judge "very reluctantly"
agreed to do so. It noted that she had been an enthusiastic
juror and would have been valuable to either side. The juror was
then called in and dismissed from further duty. As she was
leaving, she reminded the judge that she did not feel she had
been guilty of any misconduct.
The juror assured the judge that she would not discuss
anything with the remaining jurors on her way out. She also said
that she would comply with the judge's request not to discuss
anything about the case with anyone until the verdict was in.
She once again assured the judge that she had a great deal of
respect for the process and that she took her job as a juror
After the verdict, defendant moved for a new trial on the
ground of juror misconduct, or alternatively asked to be allowed
to examine all the jurors. The defense had obtained the
previously sealed transcript of the judge's full conversation
with the juror. Based on that transcript, the defense contended
that the juror had made references to the jury being "sloppy
about things" and remembering certain things, and that these
could have been references to defendant's prior conviction. In
addition, the juror had mentioned learning from a court aide,
Bob, that defendant had been talking to one of the jurors. The
defense was fearful that the court aide had created the false
impression that defendant was trying to influence the jury.
The judge denied defendant's motion. It noted that it had
instructed the jury at length not to discuss the case among
themselves or with others. In addition, the court's personnel
reminded jurors where to go and with whom not to interact. The
judge also observed that defendant took every opportunity at
trial to speak to everyone involved, including the attorneys,
witnesses, court aides, and judge, in a pleasant way, just to
pass the time of day. That was his "mannerism." It would not
have surprised the judge if defendant had greeted the jurors as
well. There was no basis, however, for defendant's suggestion
that the court aide had done anything wrong.
The judge also noted that the dismissed juror had been quite
talkative. She viewed herself as a potential leader and a
conscientious juror. She referred to the "self-policing" that
all jurors must abide by in order to follow the judge's
instructions. The juror may have reminded others of this
obligation, or she may have perceived herself as someone who
should remind others. Either way, the judge was convinced that
there was no hint of misconduct or any reference to the prior
verdict. We agree.
The issue is not whether the extraneous matters actually
influenced the result but whether they had the capacity to do so.
SeeState v. Hightower,
146 N.J. 239, 266-67 (1996); Panko v.
7 N.J. 55, 61 (1951); State v. Grant,
Super. 571, 583 (App. Div. 1992); State v. Weiler,
Super. 602, 610 (App. Div.), certif. denied,
107 N.J. 37 (1986).
A motion for a new trial on this ground, as any other new trial
motion, is addressed to the sound discretion of the judge. SeePanko, supra, 7 N.J. at 62.
A criminal defendant's right to a fair trial requires that
he be tried by a jury untainted by prejudice. SeeState v.
106 N.J. 13, 32 (1987). "[D]ue process does not
require a new trial every time a juror has been placed in a
potentially compromising situation. . . . [I]t is virtually
impossible to shield jurors from every contact or influence that
might theoretically affect their vote." SeeSmith v. Phillips,
455 U.S. 209, 217,
102 S. Ct. 940, 946,
71 L. Ed.2d 78, 86
(1982); SeealsoState v. Bey,
112 N.J. 45, 81 (1988). "Due
process means a jury capable and willing to decide the case
solely on the evidence before it, and a trial judge be ever
watchful to prevent prejudicial occurrences and to determine the
effect of such occurrences when they happen." Smith v. Phillips,
supra, 455 U.S. at 217, 102 S. Ct. at 946, 71 L. Ed.
2d at 86.
There is no evidence whatsoever that the jury was subjected
to any irregular influences. The sole juror who might have
learned of the prior verdict was removed, and there was no hint
that any other juror had similar knowledge.
We also reject defendant's argument that the court aide's
apparent statement that defendant had spoken to a juror meant
that the aide was trying to turn the jury against him. As the
judge noted, defendant had apparently spoken to many of the
participants at trial but only in passing and only in the most
courteous manner. The aide might simply have cautioned jurors
against talking to defendant, which was the aide's function. If
defendant was trying to demonstrate to the jury that he was a
decent human being, without taking the stand to testify, then, as
the State points out, defendant has no one but himself to blame
for this "irregular intrusion" into the jury's deliberations.
In defendant's eleventh point, he contends that the judge
erred by refusing his request to instruct the jury that Nance
Seifrit's brother, Nathan, was unavailable to testify. In light
of our exhaustive review of the record, we find defendant's
contention on this point to be without merit. R. 2:11-3(e)(2).
We add the following comments.
While "a defendant is entitled to prove his innocence by
showing that someone else committed the crime," State v.
112 N.J. 225, 297 (1988), cert. denied,
488 U.S. 1017,
109 S. Ct. 813,
102 L. Ed 2d 803 (1989); State v. Millett,
272 N.J. Super. 68, 98 (App. Div. 1994), the proof offered must have
the rational tendency to engender a reasonable doubt with respect
to an essential feature of the State's case. It is not enough if
the evidence simply raises a possible ground of suspicion without
providing any direct connection with the crime, or if it does
nothing more than cast suspicions on a third party.
The judge found that there had been no evidence that Nathan
Seifrit played any role in this murder. Nothing was produced
that tied him to the murder scene or to the underlying
circumstances in any way. Aside from counsel's comments, there
was no connection between Nathan and the murder. Nance Seifrit
could have had a lot of friends and relatives who might have
worked in New Jersey on the date of the murder, but that fact did
not prove anything more. In sum, other than "the rankest kind of
speculation," there had been no connection between Nathan Seifrit
and this case. We agree with the judge.
We note that even if there was error, it was error that
inured to defendant's benefit. That is, defendant was able to
plant the seed of doubt that perhaps Nathan Seifrit, rather than
defendant, was Nance's male accomplice. This suggestion was made
to the jury despite the total absence of any proof. Such an
instruction would have given this witness more significance than
was warranted by the evidence. Also, nothing precluded the
defense from having one of its own investigators testify
regarding the efforts that were made to procure this witness for
In defendant's twelfth point, he contends that the judge
erred by precluding the defense from cross-examining Investigator
Allman regarding "an important exculpatory statement" contained
in an affidavit that he had executed in support of an application
for a search warrant. We hold that the judge's preclusion of
this cross-examination was error. We also find, however, that it
was harmless beyond a reasonable doubt.
This issue arose when the police made an application for a
search warrant to get billing records for the Dreher's home
telephone line. In their application, the police included an
affidavit from Allman, who had interviewed Lois Wolkowitz, a
friend of Gail Dreher.
Allman's five-page affidavit detailed the facts surrounding
the murder and the status of the investigation to that point.
Included among these facts was the following statement by Allman:
During this ongoing investigation, Lois
Wolkowicz [sic] . . . was interviewed and
stated that on 1/2/86, she made approximately
five telephone calls to the Dreher residence
. . . . These calls were placed between the
hours of 10:00 a.m. and 4:00 p.m. Two of
these calls, Mrs. Wolkowicz [sic] stated that
the telephone was picked up and an
unidentified male answered the telephone.
Also, according to this affidavit, defendant did not have call
forwarding on his phone, precluding the possibility that
Wolkowitz's call had been answered at a different location.
There was evidence at trial that, on the day of the murder,
shortly after the police arrived at the crime scene, Wolkowitz
called the Dreher house asking to speak with Gail, and defendant
had told her that his wife could not come to the phone. This
evidence was potentially significant because defendant had an
alibi for the time of day that Wolkowitz had allegedly heard the
unidentified man's voice answer the phone.
During defendant's cross-examination of Allman, the
investigator stated that, in submitting his affidavit in support
of the warrant, he had tried to present accurate and reliable
information to the court. Defendant then argued that he should
be allowed to introduce that portion of Allman's affidavit that
incorporated Wolkowitz's statement regarding the phone calls
because such evidence constituted an admission of a party
opponent. The State responded that Wolkowitz was available to
testify and that her statement was not an adoptive admission by
Allman. Moreover, although Allman had testified that his
affidavit was reliable and accurate at the time that it was made,
that testimony had to be viewed in the larger context of this
investigation. At the time that the police reached out to get
defendant's telephone billing records, the murder was only eight
days old. The investigation continued for another one-and-one-half years until defendant was indicted.
The State also argued that Allman's statement had none of
the indicia of reliability normally required to introduce hearsay
testimony. The State represented to the court that, if Wolkowitz
were called to testify, her testimony would be different from
that contained within Allman's affidavit. Defense counsel
replied that he was not aware that Wolkowitz had made any
contradictory statement and that, in any event, the availability
of the witness was irrelevant under the exception to the hearsay
rule on which he was relying.
The State claimed that there was a discrepancy between
Wolkowitz's own statement, in which only three phone calls are
noted, and Allman's affidavit, in which five such calls are
noted. In addition, the State claimed that when Wolkowitz had
been interviewed by Detective Carlson, she gave him two or three
contradictory statements about the calls. Finally, another
neighbor, Ann Noser, claimed that Wolkowitz told her something
still different about these phone calls. Defense counsel argued
that these contradictions went to the weight to be given Allman's
testimony, not its admissibility. Defense counsel also noted
that Carlson had interviewed Wolkowitz on January 2, yet that did
not stop Allman from relying on her original statement when he
prepared his affidavit eight days later.
The judge noted that, during the course of a criminal
investigation, police discover many pieces of information, many
of which may be used to find out who committed the crime. This
does not mean, however, that the police vouch for the reliability
of all this information. The information may be reliable only to
the extent that it helps the police get to the next step in their
investigation. Defense counsel responded that the difference
here was that Allman had put this particular piece of information
into a sworn affidavit.
The judge denied defendant's application to cross-examine
Allman regarding his affidavit, noting that adoptive admissions
are to be admitted with caution. In this case, the judge
considered the following factors: that Wolkowitz was available
to testify; that when Allman prepared his affidavit the law was
not well settled that information contained therein could be used
as adoptive admissions by the State; that Wolkowitz had given
other statements in conflict with Allman's affidavit; and that
Allman had not vouched for the truth or accuracy of the
information contained within his affidavit. The judge noted:
In the scheme of investigations, it
seems to me it is the duty of the police
officer to accept information that's provided
to him and certainly to evaluate it and sift
through it and then take it to the next step,
see where the information goes. That's the
nature of investigations and to put
everything that is collected in that matter
which may lead to another second
investigation to be adoptive admission seems
to me to go far beyond what the rule
contemplates. N.J.R.E. 803(b)(2) provides that the following statements
are not excluded by the hearsay rule: "[a] statement offered
against a party which is . . . a statement whose content the
party has adopted by word or conduct or in whose truth the party
has manifested belief." This exception to the hearsay rule must
be used with caution and only where the court is satisfied that
all of the conditions for its application have been established
by the proponent. SeeGreenberg v. Stanley,
30 N.J. 485, 498
(1959); State v. Briggs,
279 N.J. Super. 555, 562 (App. Div.),
141 N.J. 99 (1995); Burbridge v. Paschal,
239 N.J. Super. 139, 154-55 (App. Div.), certif. denied,
122 N.J. 360
The issue of whether the State should be deemed a party-opponent in a criminal prosecution has not been addressed in this
state. The federal circuits have considered the issue and are
split on its resolution.
In United States v. Morgan,
581 F.2d 933 (D.C. Cir. 1978),
the court noted that the federal rules contemplate that the
federal government is a party-opponent of the defendant in
criminal cases. Seeid. at 937 n.10. Furthermore:
[W]hen the government authorizes its agent to
present his sworn assurances to a judicial
officer that certain matters are true and
justify issuance of a warrant, the statements
of fact or belief in the officer's affidavit
represent the position of the government
itself, not merely the views of its agent.
The Morgan Court cautioned that it was not deciding that any
statement the agent might have made is admissible against the
government. Ibid. Rather, its holding applied only to
"statements in which the government had manifested its 'adoption
or belief' because those statements stand on more solid ground
than mere out-of-court assertions by a government agent." Id. at
938. Hence, where the government indicates "in a sworn affidavit
to a judicial officer that it believes particular statements are
trustworthy, it may not sustain an objection to the subsequent
introduction of those statements on grounds that they are
hearsay." Ibid.; see alsoUnited States v. Warren,
42 F.3d 647,
655 (D.C. Cir. 1994); United States v. Kattar,
840 F.2d 118,
130-31 (1st Cir. 1988).
In United States v. Santos,
372 F.2d 177, 180 (2d Cir.
1967), however, the Second Circuit held that persons who testify
for the prosecution in criminal cases, whether law enforcement
agents, investigators, or complaining witnesses, stand in
relation to the government and the defendant no differently from
persons who are unconnected with the development or success of
the prosecution. Government agents are "supposedly uninterested
personally in the outcome of the trial," and when the government
prosecutes it does so on behalf of all the people of the United
States. Ibid. Hence, "inconsistent out-of-court statements of a
government agent made in the course of the exercise of his
authority and within the scope of that authority" are not
"admissions" as they would be upon an agent's principal in civil
More recently, in United States v. Ramirez,
894 F.2d 565,
570-71 (2d Cir. 1990), the Second Circuit avoided revisiting the
issue by holding that any error in the court's failure to admit
into evidence affidavits prepared by a government agent in
support of an application for a search warrant was harmless. The
court noted that the information in the affidavits had been
gathered at a preliminary stage in the investigation, was subject
to change as the investigation progressed, and consisted of
compilations of observations made by other officers. Id. at 571.
Hence, they were not "overwhelmingly powerful evidence" in any
event. Ibid. Moreover, the defendant had opted not to call the
agent to testify. The affidavits might have been admissible had
the agent been confronted with them. Seeibid.
In United States v. Kampiles,
609 F.2d 1233, 1246 (7th Cir.
1979), cert. denied,
446 U.S. 954,
100 S. Ct. 2923,
64 L. Ed.2d 812 (1980), the Seventh Circuit held that nothing in the Federal
Rules of Evidence suggested an intention to alter the traditional
rule that, because government agents are disinterested in the
outcome of the trial and unable to bind the sovereign, their
statements are not the product of the adversarial process and not
appropriately described as admissions. Seeibid. The court
distinguished Morgan, supra, because it dealt with a situation
where "the Government had expressed its belief in the statement
of the declarant." United States v. Kampiles, supra, 609 F.
We find that during the early stages of a prosecution, it is
inappropriate to bind the prosecution with any and all statements
made by its agents in the course of their employment. The
statements, however, take on a different status when the
government, by submitting the statements to a judicial officer
for the issuance of a search warrant, manifests its belief in the
truth of such statements. If the statements are reliable and
accurate enough for one stage of the prosecution, the State
should not be allowed to hide behind their arguable inaccuracy
and unreliability at another stage of the prosecution. We note
that, unlike Ramirez, supra, defendant offered the evidence while
Allman was on the stand testifying. Thus, any inaccuracy in the
statement could have been demonstrated to the jury and, as
defense counsel below suggested, the weight to be given the
statement could have been decided by the jury.
Nevertheless, for similar reasons to those noted by the
court in Ramirez, supra, we find that the failure to admit
Allman's affidavit here was harmless error. The information in
the affidavit had been gathered at a very early stage in the
investigation, was later shown to be inaccurate, and may not have
even represented Allman's own personal interview with Wolkowitz.
Hence, as in Ramirez, it would not have constituted
overwhelmingly powerful evidence. If the evidence had been
admitted, Allman could easily have provided adequate explanations
for it. We find that the judge's ruling did not prejudice
defendant to the extent that it caused the jury to reach a result
it would not have otherwise reached. SeeR. 2:10-2.
In defendant's thirteenth point, he contends that the
indictment should be dismissed because the State failed to
apprise the grand jury of the existence and significance of
exculpatory evidence and because it failed to insure that no
grand juror had knowledge of defendant's prior conviction. We
find defendant's contention on this point to be without merit.
Defendant does not accuse the prosecutor of withholding any
knowledge about grand juror bias or interest, and he essentially
contends that a grand jury must be voir dired in the same manner
as a petit jury to assure that extraneous influences about the
case have not infiltrated their deliberations. No such
obligation on the part of either the prosecution or the
Assignment Judge exists.
Footnote: 1 A cobbler's last is a wooden or metal form that is shaped
like a human foot and over which a shoe is shaped or repaired.Footnote: 2 A lally column is a concrete-filled cylindrical steel
column used for structural support.Footnote: 3 Tucker would testify that defecation was not an uncommon
experience for people in extreme fear.Footnote: 4 Two of Gail's friends, Dianne Wells and Jane Peltier
Hunt, both testified that defendant was an intense person and
that he had a habit, when he spoke to someone, of grabbing their
arm and pulling them in close to him.Footnote: 5 Tucker's additional explanation of the methodology that
he used, as well as defendant's cross-examination of the expert
on this point, is further addressed infra in Section V.Footnote: 6 Ramsey claimed that defendant used the words shoe "last,"
not shoe "thing," as reported by Katsakos.Footnote: 7 The neighbor to whom Carlson was referring, who had seen
defendant leave and return, was Mary Jeanine Kein. She told
police on January 2 that she had seen defendant's car leave his
house at about 7:30 a.m. and return ten to fifteen minutes later.
She saw defendant's car again at 8:15 a.m., at a traffic light
heading out of the neighborhood. Although another neighbor,
Austin Lett, also saw defendant leaving his house later that
morning, Lett's information did not surface to the police until
January 4. Footnote: 8 Lett was subsequently hypnotized in an effort to enhance
his recollection of the details of that morning. Because the
hypnosis did not follow the correct procedural guidelines, Lett's
enhanced recollection was barred at both the first trial and
again at this trial. Both trial courts, however, ruled that Lett
could testify regarding his prehypnotic recollection. The ruling
of the first trial court was affirmed in Dreher I, supra, 251
N.J. Super. at 308-15. The ruling of the second trial court is
the subject of this appeal. See Points IX and X, infra. Footnote: 9 Lett explained, in somewhat excruciating detail, the
circumstances and patterns of his alcoholism, which began in 1957
when he was sixteen years old and which continued until just two
months after the murder, in March 1986, when his wife staged an
intervention resulting in in-patient rehabilitation treatment in
Minnesota. As of the time of the second trial, Lett had not had
a drink in nine years. He claimed that, as of January 1986, he
was a "maintenance drinker," who drank about one-half to three-quarters of a quart per day but only in the afternoons or
evenings and only when his wife was not around to see him. He
was extensively cross-examined on this issue at trial.Footnote: 10 Allman admitted that Seifrit's admission came as a
surprise to the prosecutor's office, because they had not
believed her to be a participant, and that, to a certain extent,
she had misled his office.Footnote: 11 While he was at the car dealership that day, defendant
asked Reilly if he could use his phone. The State obtained by
phone records that showed that defendant called Seifrit for one
minute at 4:21 p.m. and again for twenty-one minutes at 4:28 p.m.
Both calls were placed from Reilly's office.Footnote: 12 Apparently, the suggestion here was that Seifrit weighed
considerably more than the victim at the time of the murder but
was trying to minimize this difference.Footnote: 13 Defendant alleges in this appeal that this was error.
This issue is discussed infra in Part XIV.Footnote: 14 There is authority for the proposition that pleadings
may be used as evidentiary admissions against a party and that a
client is bound by the pleadings filed by counsel. SeeState v.
114 N.J. 427, 437 (1989); seegenerally, 2 McCormick on
Evidence §257 at 147-151 (4th ed. 1992).Footnote: 15 Coe was anticipating Tucker's testimony based on the
forensic evidence used in the first trial.Footnote: 16 We note that defendant did not challenge the inclusion
of his statement into evidence.Footnote: 17 In Thompson, supra, the lack of clarity in the law was
used as a basis for holding that the lower court's failure to
exclude the evidence could not be deemed "plain error." Id. at
856. The Thompson Court quoted language from a Second Circuit
case in which the court concluded: "we do not see how an error
can be plain error when the Supreme Court and this court have not
spoken on the subject, and the authority in other circuits is
split." Id. at 855 (quoting United States v. Alli-Balogun,
72 F.3d 9, 12 (2d Cir. 1995)).
Footnote: 18 Defendant is not challenging the State's use of the lack
of remorse shown by him following his wife's murder. That is,
the State was allowed to show that defendant reacted with almost
no show of emotion when he found his wife's body, when he called
in the murder to the police, when he told his son about the
murder, when he visited the funeral home to make burial
arrangements, when he encountered his wife's friends in the weeks
following the murder, and when he showed more concern for the
condition of his property than for the condition of his wife.
All of that evidence was properly admitted.Footnote: 19 The court had also reviewed, in camera, the records from
Lett's rehabilitation treatment center, which had been compelled
by the defense.