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State v. Dreher

June 20, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN W. DREHER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County.

Approved for Publication June 24, 1997. As Corrected July 14, 1997.

Before Judges Michels, Muir, Jr., and Kleiner. The opinion of the court was delivered by Kleiner, J.A.D.

The opinion of the court was delivered by: Kleiner

The opinion of the court was delivered by

KLEINER, J.A.D.

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 of error:

I.

THE TRIAL COURT IMPOSED ERRONEOUS RESTRICTIONS ON THE CROSS-EXAMINATION OF NANCE SEIFRIT.

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 GUILT.

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 NOTES.

VI.

IT WAS ERROR TO ADMIT AUSTIN LETT'S TESTIMONY DESPITE THE DESTRUCTION OF CRUCIAL EVIDENCE OF HIS PREHYPNOTIC RECOLLECTION.

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 THE JURY.

XI.

IT WAS ERROR NOT TO INSTRUCT THE JURY THAT NATHAN SEIFRIT WAS UNAVAILABLE.

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 GRAND JURY.

After a thorough review of the extensive record, we are satisfied that defendant's conviction should stand. We therefore affirm.

I.

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 ineligibility.

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. See State 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 harmless. See ibid.

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 assessed.

On July 28, 1995, defendant filed a timely notice of appeal with this court. He has been denied bail pending appeal.

II.

A.

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.

B.

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 last *fn1 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 defendant's house.

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.

C.

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.

D.

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, *fn2 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. *fn3 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 death.

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 of death.

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. *fn4 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 following death.

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 preserved.

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. *fn5 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.

E.

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 all negative.

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 sperm.

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 sperm cell.

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 her nose.

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 victim.

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.

F.

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) *fn6 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.

H.

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 any suspects.

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 investigation.

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 a.m.

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. *fn7

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 questions either.

I.

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. *fn8

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 thirty minutes.

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. *fn9 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 ...


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