On appeal from Superior Court, Law Division, Morris County.
Antell, O'Brien and Keefe. The opinion of the court was delivered by Antell, P.J.A.D.
After a trial by jury, defendant was convicted of the purposeful and knowing murder of his wife, Gail B. Dreher, contrary to N.J.S.A. 2C:11-3a(1) and (2). He was also convicted of possession
of a knife under circumstances not manifestly appropriate for such lawful uses as it may have, contrary to N.J.S.A. 2C:39-5d, possession of a knife with the purpose to use it unlawfully against another, contrary to N.J.S.A. 2C:39-4d, and conspiracy to commit murder, contrary to N.J.S.A. 2C:11-3a and 2C:5-2. The latter convictions were merged into the murder conviction and the court sentenced defendant to life imprisonment with a 30-year period of parole ineligibility. Defendant was also ordered to pay a $1000 penalty to the Violent Crimes Compensation Board. He now appeals from that judgment of conviction, dated April 17, 1989. He also appeals from orders dated August 2 and August 8, 1990, denying his motions for a new trial and for a jury recall. Defendant's motions were based upon claims of irregularities during the jury's deliberations. We now consolidate on our own initiative both appeals for purposes of review.
At 3:32 p.m. on the afternoon of January 2, 1986, the Chatham Township police department received a telephone call from defendant, who had just returned home from work, reporting that his house had been burglarized. Five minutes later, in a second telephone call, he requested that the police hurry, stating that "I think my wife is dead." When the police arrived at defendant's home he led them to the basement where they found decedent's lifeless body. The lower part of her form was in a prone position, and her head was suspended by a ligature which passed about her neck and around a "Lally" column at a height of 15 or 16 inches above the floor. The ligature also circled decedent's right arm at three places and around her left wrist so that her hands were tied behind her. The body had sustained a number of bruises and twelve stab wounds, some of which penetrated the pleural spaces and the jugular vein. The face was battered and decedent's lips were deeply cyanotic, as were her ears and nail beds. Death was found to have been caused by strangulation. The deep furrows around her neck above the larynx suggested that the ligature was the instrumentality of death.
A detective observed that defendant's knuckles were red and swollen, that he had nicks on his hand and a cut on the small finger of his right hand. Defendant said that he might have hurt himself playing squash early that morning. His playing partner, however, testified that defendant did not fall, run into a wall or injure himself in any way.
Signs of intrusion were evident in the second floor master bedroom. Jewelry and jewelry boxes were on the floor, night stand drawers and an armoire drawer had been pulled out and their contents scattered. The bed was in disarray. No other rooms upstairs had been disturbed. No signs of a forced entry were noted.
The State's case against defendant was crucially dependent upon the testimony of Nancy Seifrit, which was given under a grant of use immunity pursuant to N.J.S.A. 2A:81-17.3. Seifrit, who was named but not indicted as a co-conspirator to the killing, and defendant first met in late 1984 or early 1985 in a bar in El Paso, Texas. Defendant occasionally visited El Paso on business and the two developed an intimate relationship which continued through April 1987.
In March 1985, Seifrit was transferred by her company to Chicago. She stayed in telephone contact with defendant on a daily basis and they met whenever defendant was in Chicago. In October 1985 -- approximately three months before the homicide -- Seifrit moved to the east coast, first staying in Pennsylvania with her mother and then moving to Chatham, New Jersey, where defendant resided with his family. She stated that she made the move at defendant's behest, that she was in love with defendant and that she wanted to be near him. They then began seeing each other on a regular basis, with defendant visiting Seifrit's apartment on weekday mornings at about 5:00 or 5:30 a.m.
Seifrit testified that early in the relationship defendant asked her what she would think if he were to kill his wife. She stated that she dismissed the suggestion by calling defendant an
"asshole," without any further response. At another time defendant asked about a gun that he knew Seifrit kept and asked her to bring it to him in New Jersey. Although Seifrit flew from Chicago to New Jersey with the gun, their plan was aborted. Defendant had given her a map showing where she should meet him with the weapon at the bottom of his street in Chatham, but at the time designated for the delivery defendant drove by, not even acknowledging her as he passed. Seifrit testified that defendant later explained he had been unable to stop because his father was in the car with him. Defendant and his father lived on the same street and it was their regular practice to drive together to work at the leather company which the two operated in Newark. No further attempt was made to transfer the gun to defendant.
According to Seifrit, defendant told her that he was "unhappy" in his marriage, that "things . . . were happening at the house that he didn't like when he was out of town" and that the "problems in the marriage" worsened during holiday times.
At approximately 4:30 a.m. on January 2, 1986, defendant came to Seifrit's apartment. He appeared to be "upset." He had had a New Year's "that was not what he had planned. Christmas -- he talked about Christmas was not happy, there was fighting." She testified that defendant "wanted to settle things that day, he was just tired of what was going on. He asked me if I would come over to the house and let him introduce me as the other woman. He felt -- he told me that it would help him out."
Seifrit reluctantly agreed to defendant's request. He told her to be at his house at 7:30 a.m. and to dress to "look good."
At the prearranged time, Seifrit drove to defendant's house which she entered through the door in the garage. Stepping in, she saw defendant in the doorway leading downstairs to the basement. He was saying "move, just move" while another voice (the decedent's) was "just saying, 'please,' begging, 'do what you want, I don't care, please.'"
After composing herself in the bathroom Seifrit heard defendant summon her downstairs, and as she started down she saw the soles of Gail's bare feet. She "saw what was going on" and went back upstairs. As she did, defendant again called her, saying "I need help. I need something sharp, a knife, scissors, something." Seifrit then returned to the basement and threw defendant a knife she had taken from the kitchen. She saw that Gail, whose face was then blue, seemed to be kneeling before a pole in the cellar and that defendant "was behind the pole pulling on the string." Letting go of the string with one hand he picked up the knife which Seifrit had thrown to him, "brought his arm around and stabbed his wife in the throat."
At that point, Seifrit stated that she "choked, I was just upset." Again, she visited the bathroom and then entered the kitchen where she waited for about five minutes for defendant to come back upstairs. When he returned he went to the hall closet and handed Seifrit a fur coat, and at his instructions she put it in her car. Thereafter, the two went up to the master bedroom where they emptied the contents of a jewelry box into a pillow case, and then busied themselves to give the bedroom and the den downstairs the appearance of having been ransacked by a burglar. Defendant told Seifrit that he had to leave because he could not be late picking up his father for work. Before leaving, he said that she should take certain jewelry from the pool table in the basement and to make sure "everything was done."
After defendant left, Seifrit returned to the basement and struck Gail over the head with a metal cobbler's last which she found on the pool table. The blows left three crescent-shaped wounds which penetrated the skin to expose the underlying skull bone. She also stabbed Gail's body several times with the kitchen knife which she then put in the pillow case with the jewelry and left the basement.
Seifrit drove back to her apartment and after discarding the pillow case and its contents she telephoned defendant at his
office. When defendant asked if "everything was done" she told him that she had gotten rid of the jewelry, and that she had hit and stabbed Gail's body. Defendant then asked her if she had taken the earrings off the pool table. When Seifrit said that she never saw any earrings, defendant replied: "Don't worry about it, I'll take care of it."
Seifrit's phone bill showed that the call to defendant's office was made at 8:49 a.m. and that it lasted for 10 minutes. At 9:30 a.m. that morning defendant called Seifrit back to reassure her that "everything will be alright," and to be sure that she had gotten rid of all the jewelry. The record is silent as to the location from which that call was made. No toll records were offered by either party as to this question which proves to be of some significance for reasons which we will now relate.
To corroborate Seifrit's testimony that in her first conversation with defendant he stated, with regard to the earrings left on the pool table, "Don't worry about it, I'll take care of it," the State undertook to prove that immediately after that telephone call defendant returned from his office in Newark to his home in Chatham to do three things: (1) remove the earrings from the pool table in the belief that their presence would belie the theory of a burglary, (2) to let the family's two dogs in from the back yard and, finally, (3) to kick Gail's body to insure that it was dead. In this connection, certain time sequences became highly relevant.
The proofs appear to be undisputed that it normally takes 35-40 minutes to travel between defendant's office and his home, but that it can be done in 25-30 minutes when traffic is light. Defendant's vehement challenge to the theory of his return to the house after finishing that telephone conversation at 8:59 a.m. is based upon uncontradicted testimony by two employees that shortly after 10:00 a.m. he left his office to go to a nearby bank where he made a deposit which was recorded by the bank at 10:09 a.m. Two other employees testified to seeing him in the office at 9:15 and 9:30 a.m. respectively.
In support of its contention that defendant made the round trip from office to home between 9:00 and 10:00 a.m., the State relied upon the testimony of Austin Lett. Lett testified to seeing defendant's car leaving defendant's driveway at approximately 9:35 a.m. It also relied upon the opinion evidence of the County Medical Examiner that Gail's body had in fact been moved approximately one hour after death, and that death probably occurred around 7:40 a.m. Defendant challenges the testimony of Austin Lett on the ground that it was hypnotically developed in violation of the guidelines prescribed in State v. Hurd, 86 N.J. 525, 543-546, 432 A.2d 86 (1981). He also asserts that the medical examiner's opinion should not have been received in evidence because it had been willfully withheld by the State in violation of its duty to provide continuing discovery to the defendant prior to and during the trial.
Admission of Pre-Hypnotic Recollection
According to Lett, who lived across the street from defendant, his report to the police was that he had seen defendant's car leaving the driveway on the morning of January 2 at 9:15 a.m., give or take 20 minutes, but that he could not discern who was actually driving it. The police report states that the sighting was made at 9:15 a.m. In an effort to reconcile Lett's information with information furnished by another neighbor to the effect that she had seen defendant's car leave his house at 7:30 a.m. and return at about 7:45 a.m., and then again saw the car at a nearby intersection at 8:15 a.m., the police requested Lett to submit to hypnosis by a psychiatrist in an effort to sharpen his recollection as to the time he saw the car and who was driving it. The session was conducted on January 23, 1986.
It is important to note that in the pre-hypnotic interview with the psychiatrist Lett firmly stated as his best recollection that the correct time was 9:35 a.m. Both the pre-hypnotic, the hypnotic and the post-hypnotic sessions were recorded on video tape. While under hypnosis Lett remembered that the time he
saw defendant's car was 9:35 and that he could recognize the driver of the car as the defendant. The trial court, after a Hurd hearing, excluded any testimony by Lett identifying defendant as the driver of the car. In addition to the Hurd violations the court also heard the testimony of an ophthalmologist that under the physical circumstances described it would have been impossible for Lett to discern the details of the driver's features to which he had testified. However, the court permitted Lett to testify that the sighting of the car occurred at approximately 9:35 a.m., and defendant challenges the admission of this evidence. In our view, the court's ruling was correct.
Pointing to numerous violations of the Hurd guidelines in Lett's hypnotic session, defendant argues that once a witness has been hypnotized, violation of those requirements requires that all of that witness's testimony be deemed tainted, and hence inadmissible. He argues that the exclusion must apply even to that portion of the testimony which recites events recalled prior to the hypnotic session. The State replies that such testimony is not excluded as a matter of law, but that its weight and credibility must be resolved in the sound discretion of the jury. Although Lett testified on direct examination that the sighting of defendant's car occurred at "approximately 9:30 in the morning," he conceded on cross-examination that his previous estimates placed the sighting at sometime between 9:15 a.m. and 9:35 a.m. and that the police report records him as saying 9:15.*fn1 Thus, the jury was fully able to make the credibility determination necessitated by the possible inconsistency. In our view, admissibility is controlled by the fact that his trial testimony was consistent with his recollection as stated in the recorded pre-hypnotic interview with the hypnotist.
Defendant's argument that, because of the hypnotic session, Lett's trial testimony was delivered with an aura of confidence which it would not otherwise have had is not persuasive. The memory-hardening process is an intrinsic part of a witness's preparation for trial. While ordinarily it takes the form of numerous pretrial interviews and interrogations by counsel, the result is the same as that which defendant claims occurred here: a witness who testifies with conviction and believability. The fact that a witness has been prepped to testify effectively does not disqualify his evidence so long as it has not been falsified.
Although Dr. Martin Orne, a research scientist, expert on the subject of hypnosis, was available to testify on defendant's behalf, no scientific basis was entered upon the record as to why Lett could not reliably testify to his pre-hypnotic recollection. Rather than impeach Lett's credibility by telling the jury that he had been hypnotized and by having Dr. Orne explain why his testimony was tainted, the defendant's strategy was to assail Lett as a biased witness who had a personal grievance against defendant and because he was an alcoholic.*fn2
At the time of the hypnotic session on January 23, 1986, the police were not even aware of the telephone call between Seifrit and the defendant which ended at 8:59, had not seen any toll records and were unaware of any need to harmonize the time of Lett's observation with the narrow time frame within which defendant would have to be limited in driving home and then back to the office. The reason for the interview, as we explained earlier, was to explore Lett's time estimate under hypnosis in order to make a reliable comparison of ...