On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-04-1567.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2010
Before Judges Carchman,Messano, and Waugh.
Defendant David Henry appeals his conviction for aggravated manslaughter, contrary to N.J.S.A. 2C:11-4(a)(2), and the resulting sentence of incarceration for twenty-two years, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.
We discern the following facts and procedural history from the record, particularly the transcripts of a pre-trial motion to suppress and the trial.
At the time of her death, Jacqueline Henry had been married to David Henry for sixteen years.*fn1 They resided in Gloucester City.
On March 29, 2005, Jacqueline complained about a headache to a co-worker, but did not appear sick and had no bruises or marks on her neck. David arrived home at 4:30 p.m. on March 29. According to David, Jacqueline arrived home at about 7:50 p.m., took a bath, put on her pajamas, ate dinner, and watched a television show starting at 9:00 p.m. David retired to bed shortly thereafter.
According to David, Jacqueline came into the bedroom at 9:58 p.m. David awoke briefly and reminded her to cover the birdcage. Shortly thereafter, David heard a "loud crash," and ran in the direction of the sound. He discovered Jacqueline lying on the floor, between a bookcase and the dining room table, having convulsions. "Her eyes were roll[ing] in her head and she had a problem breathing." He stepped over her body to reach the telephone, and called 9-1-1 at 10:02 p.m.
David testified that he went to the front door to unlock it for the emergency personnel, again stepping over Jacqueline's body. He next went into the bathroom to change out of his pajamas. He searched for Jacqueline's health insurance card, but could not find it. David then went outside to look for the emergency personnel, but could not find them. When he returned to the house, he saw that Jacqueline had stopped breathing. He again stepped over her body to telephone 9-1-1 a second time. Although David stepped over Jacqueline's body a total of four times, he testified that he "never once comforted her."
The Gloucester Fire Department emergency medical technicians (EMTs) arrived at approximately 10:09 p.m. EMT Patrick Hagan started CPR on Jacqueline. David told the EMTs that Jacqueline had acid reflux, and mentioned that she had high blood pressure. Paramedic David Salati arrived shortly thereafter and supervised Jacqueline's emergency care.
Salati observed Jacqueline lying on her back in the dining room with her hands at her sides. Hagan also noticed that her arms and legs were "[p]erfectly straight." Salati testified that Jacqueline's position was unusual because "people usually don't fall so neatly on the floor." He also testified that when he surveyed the dining and the living rooms, he noticed nothing "unusual." After he removed Jacqueline from the floor, he noticed a broken ceramic cat on the floor.
Jacqueline had no pulse and was not breathing. According to Salati, there was a "red" bruise on her outer throat that appeared to be "fresh" because "[t]here was no evidence of scabbing or discoloration." When Hagan asked about the nature of the bruise, David told him that he did not know. When Salati asked the same question, David did not answer.
David told Salati that he had been in bed when he "heard a thump" and "f[ou]nd his wife gasping for air." He informed Salati that Jacqueline had a medical history of heart murmur and high blood pressure, in addition to acid reflux. He said that she was not taking medication and had no allergies.
Jacqueline's heart went into ventricular fibrillation. When Salati attempted to insert a breathing tube into her trachea, Jacqueline vomited. His second attempt, using a smaller tube, was successful. Salati attributed his inability to insert the first tube to damage in Jacqueline's airway, possibly related to trauma underlying the mark on her neck.
Jacqueline was placed in the ambulance. David accompanied her to the hospital. Hagan described David's demeanor as "very calm, not too worried. He didn't ask too many questions."
In the ambulance, Jacqueline was given medication to stabilize her heart rhythm. When they arrived at Underwood Memorial Hospital (Underwood), she again went into ventricular fibrillation. Stephen J. Oxler, M.D., the emergency physician on duty, determined that Jacqueline was "clinically dead" when she arrived. Although emergency personnel continued CPR, she was pronounced dead at 10:44 p.m.
Oxler noticed a red bruise on Jacqueline's neck, which he described as an approximately "two centimeter abrasion on her anterior neck right near her thyroid cartilage." Oxler asked David about the bruise. David told him "that he thought that [Jacqueline] had hit the birdcage" inadvertently when attempting to cover it.
David asked Oxler about the cause of death. When Oxler responded that he "wasn't really sure," David requested an autopsy.
Police Officer Jason S. Flood spoke to David at the hospital. David told him that he had been in the bedroom and had asked Jacqueline to cover the birdcage. He "heard a crash" shortly thereafter. When he went to investigate, he found her lying on her back with her eyes rolled back and gasping for air. He told Flood that he never moved her body.
David then asked to view Jacqueline's body. Flood accompanied him. According to Flood, David "broke down" and cried when he saw the body. After he gained his composure, David told Flood that the marks on Jacqueline's neck were from an allergic reaction from her takeout dinner. He explained that Jacqueline "was allergic to some foods and she would get a reaction and . . . would scratch at it."
Investigator Valerie Hecker of the Camden County Prosecutor's Office Major Crimes Unit arrived at approximately midnight. Hecker and Detective Sergeant Ken Eller of the Gloucester County Police Department spoke with David in the waiting room. Hecker described David's demeanor as "sad and despondent." David repeated his version of events, adding that, when he noticed Jacqueline's body, she was "clutching at her chest." He reiterated that the mark on her neck was caused by an allergic food reaction. He told them that no one, other than Jacqueline and himself, had been in the house at the time of the incident. David gave Hecker and Eller permission to "look around his house."
When Hecker went to the house, she did not notice "any sign of a struggle." She described the house as "pristine." The dolls sitting atop the bookcase in the dining room were placed "perfect[ly], nothing was moved."
Based upon the autopsy, the medical examiner concluded that Jacqueline had died of "soft ligature strangulation." Based upon that finding, Hecker transferred the investigation to the Camden County Prosecutor's Homicide Unit.
On March 30, Prosecutor's Investigator Martin T. Wolf went to David's neighborhood. He observed David and his mother in a car, apparently pulling out of the driveway. Wolf went over, introduced himself, and asked if he could speak with David at the Gloucester City Police Department regarding "the death of his wife." David said "he was glad to go." David and his mother drove separately in his car, while Wolf went to the police station in his own car.
When they arrived at the police station, around 7:00 p.m., David's mother was asked to remain in the lobby. Wolf led David to the Detective Bureau. In the Bureau, Wolf was accompanied by two other officers. He closed the door behind them. Wolf informed David that "he was free to go," and David indicated his desire to "help" with the investigation.
After David told Wolf what had happened, Wolf told David that Jacqueline's cause of death was strangulation by a third person. According to Wolf, David had no reaction.
Wolf asked David questions about the events surrounding Jacqueline's death. He then asked David to submit to a polygraph test. Wolf explained his reason for asking:
Well, after I told him that Jacqueline Henry died of the pressure placed on her neck, and he was the only one that I know
[w]as in the house -- he initially told me that the doors were locked, so I said, well, you know, you had to have done it then. He denied that, and so I asked him to take a lie detector and he agreed.
Wolf administered the first voice-activated polygraph test around 8:50 p.m. Wolf asked nine questions, two of which were relevant to Jacqueline's death. David answered all questions, and the polygraph test showed deception. Wolf relayed the result to David, and David asked to submit to the test again. Wolf asked David three additional questions, one of which was relevant to the death, and the test again showed deception.
Wolf then asked David to sign a consent-to-search form for his residence. David signed the form at 9:39 p.m., approximately two and a half hours after the questioning began. Wolf and an investigator from the Camden County Prosecutor's Office left to conduct the search, which lasted approximately forty minutes. David remained at the police station. According to Wolf, no one was instructed "to watch" David while Wolf conducted the search. David was not handcuffed or placed under arrest at any time that evening.
Around 10:30 p.m., Wolf finished the search and returned to the police station. Wolf told David he would like to take a recorded statement. David replied "okay." At the beginning of the recorded statement, David was told several times that he was free to leave.
Q. Asked you to come to the police station you voluntarily came here?
Q. You want to help with the investigation?
Q. You're free to go at anytime.
Q. You understand that, anytime?
Although David was not specifically told he did not have to give the recorded statement, he indicated his understanding that it was voluntary.
Q. Have any threats or promises been made to you to give this statement?
A. Have any threats or promises . . .
Q. Yes, did we promise you anything or threaten you with anything to give this statement?
A. No, no, I've been, I'm trying to be very cooperative with you gentlemen.
Q. And it's a voluntary statement of your own free will?
In the recorded statement, David repeated his version of the events on the night of Jacqueline's death. He stated that the backdoor had been locked, but later said that it could have been ajar. In addition, he added that the "bookcase was pushed out a few inches and the dolls on the bookcase had been pushed off and landed on the floor." He also said that a ceramic cat had fallen off the bookshelf and broken, and that he had thrown it in the trash.
David took off his shirt and showed Wolf that he did not have any scratches on his arms, chest, or back. According to Wolf, David "was clear" that only he and his wife were present in the house on the night of the incident.
Wolf informed David that he was aware that he had previously reported his wallet stolen at an adult book store, and asked him if he was "homosexual." David responded in the affirmative, and added that he did not think his wife was aware. David maintained that he was not engaged in a homosexual relationship at the time of his wife's death.
The recorded statement began at 11:55 p.m. and ended at or shortly after 12:30 a.m. Following the statement, David left the police station.*fn2 David was not informed of his Miranda*fn3 rights at any time while at the police headquarters that evening.
On the morning of April 1, Wolf received a voicemail message from David informing him that someone named Zora Thomas might have killed Jacqueline, mistaking her for his mother.*fn4
According to David, his mother and Thomas were involved in a legal dispute regarding a mobile home Thomas purchased from David's mother. David stated that Thomas "yelled at [his] mother saying [she hasn't] heard the last of this. And [he] [was] going to get [her]."
In his message, David suggested that this threat was the impetus for Thomas mistakenly killing Jacqueline. He theorized that Jacqueline parked David's mother's car in the driveway and Thomas must have driven past the house on his way to his mother's trailer, noticed the mother's car, and entered the house to kill her. Wolf interviewed Thomas on April 18 about
David's allegations, and noticed that Thomas "had a splint on his right arm" due to a recent surgery, which Wolf verified when he received a copy of Thomas' medical records.
Later that same day, Wolf went to David's home and met with David and members of Jacqueline's family. Wolf explained to the family that the medical examiner had concluded that Jacqueline died of ligature strangulation. David then explained how he found Jacqueline on the floor.
When Wolf left the house, David followed him out to thank him for not saying anything to the family about his sexual orientation. David also admitted to Wolf that the pending foreign trip he had previously mentioned to Wolf was to meet "homosexual partners" and that he had taken other trips for that purpose. That statement contradicted his earlier assertion that he was going on another work-related trip the next month.
On April 26, 2006, David was indicted for murder, N.J.S.A. 2C:11-3(a)(1) or (2). David moved to suppress the statements he had given to the police. A Miranda hearing was conducted on March 15 and 22, 2007. The judge suppressed statements David made late in the day on April 1, 2005, at the Camden County Prosecutor's Office, but denied the motion as to all other statements.
The motion judge explained the reasons for her rulings with respect to the Miranda issue as follows:
THE COURT: The statements made -- I'm going to start with the statement . . . Officer Flood made at the Underwood Hospital, I think that those clearly were made when the defendant was not under arrest, did not even seem to be under custody. At that point there's a preliminary investigation going on, but they really don't know what they're investigating at that point.
There's no question in my mind the defendant was free to leave, that there didn't seem to be that he was under custody. He was spoken to by the officer in a public waiting room. They called [it] a private waiting room, but it's a public area. Somebody -- anybody can go in and out. The defendant could have left there at that time, any time he wanted to. I don't think . . . he seemed to be in custody so any statements he made then or at the time that he made statements viewing the decedent's body on the Gurney there's no indicia that he was under custody at that time, and, therefore, I don't think that he had to be Mirandized at that point.
Any statements that the defendant made to the officer when they went back to the house, he clearly wasn't under custody at that time either. He was . . . at home. He was free to do what he wanted, walk out the door. He didn't have to ask the officer to come in, and there was no need to Mirandize him at that point.
I think we get into a little closer situation when we get to the point where he is questioned the next day at the Gloucester City Police Department, because he is brought there . . . by his mother and his mother is told that she can leave because [he's] gonna be there for a while. However, in that case . . . I don't find that he was under arrest, under custody. He was still free to go. He was told he was free to go, and he was told twice he was free to go. I think that he understood that. He said he understood that he was free to go. And, I think that he understood that he could . . . have walked out. He could have gotten a cab, but he could have left . . . at any time he wished to do so. So, I don't think that those . . . statements made at that time, including the taped statement should be suppressed.
However, when you get to the point where the officers come back on April 1st even though that was initially begun by the defendant, I think that becomes a different question, because now we have the defendant brought to the Camden County Prosecutor's Office by the investigators, he's there for three hours, he's in a room where they're questioning him. While there's no evidence that -- it's a secure room, because everything there is secure. You can't get in. Nobody said that you can't get out, however I think at that point we know --everybody knows at that point that they are investigating now homicide, an alleged homicide, because we don't know that for sure until the jury comes back, but it's an alleged homicide, and they believe that they're investigating a homicide. The defendant is in the City of Camden. He's away from his home. [It]'s not like where he's in Gloucester City Police Department where he's . . . nearby his home and he can leave if he wants. He probably can walk from where he is to his home if he wants to. [He's] in the City of Camden. He's away from his home. He can't readily get there, and I think the presences of the whole circumstances . . . is entirely different. I think that in that case even ...