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State of New Jersey v. David Henry

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 15, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID HENRY, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-04-1567.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

A.

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?

A. Yes.

Q. You want to help with the investigation?

A. Yes.

Q. You're free to go at anytime.

A. Thank you sir.

Q. You understand that, anytime?

A. Okay.

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?

A. Yes.

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.

B.

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 though the officer doesn't -- they sometimes think that they don't have to say you're not in arrest, they're not in custody, somebody's not in custody, I think that the officer at that point does not let the defendant sufficiently know that he can leave if he wants to, that this isn't something he has to do.

I think that the defendant at that point does feel that he has to [stay] and I think anybody would. Therefore, I'm going to suppress whatever statements were made at the time that the defendant was taken to the Camden Prosecutor's Office, however once they take the defendant back home and they're walking out the door and they're leaving him there it's very clear that he's not under arrest, and any statements he's made in his own home as they're leaving I'm not going to suppress.

David was tried before a different judge, and a jury, in September and October. Camden County Medical Examiner Paul J. Hoyer, M.D., testified about the autopsy he performed in March 2005. In his examination of Jacqueline's body, Hoyer found a fresh "superficial red-orange skin scrape" on her neck. Because the scrape was not dry and had no scab, Hoyer determined that the wound was fresh and had occurred within minutes of Jacqueline's death.

After noting the external scrapes on her neck, Hoyer performed a "layer-wise" dissection of the muscles and organs beneath the wounds. Directly below the surface wounds on Jacqueline's neck, Hoyer found areas of fresh bleeding in the muscles of the neck. Hoyer also noted fresh hemorrhages in the vicinity of the voice box. Hoyer opined that the wounds found in the underlying tissue and muscles were the result of "some kind of an impact or compression to the neck strong enough to cause a bruise."

During his examination, Hoyer also noted that there was a "moderate amount of off-white froth in the lower trachea and major bronchi." He testified that the froth indicated that Jacqueline's airway was shut off as "a final part of her dying."

Based upon his examination of Jacqueline's external and internal wounds, Hoyer determined that the injury was made by a "blunt" instrument with a "bit of texture to it." Jacqueline's injury was inconsistent with falling into a fixed object. The wounds Jacqueline suffered were not the cause of her death, rather they "reflect[ed] force that was applied to her that caused her to die."

Jacqueline also had defensive bruises on her left hand and forearm that were consistent with someone pushing their fingernail hard against her skin. Hoyer explained that the marks were consistent with a victim trying to pull an assailant's hands off. Hoyer also explained that during the dying or agonal period, a person can make sounds such as gasping or a "death rattle" and have minor seizures.

Hoyer had examined Jacqueline's cardiovascular system and found that her heart was a little enlarged due to high blood pressure, but that there was no evidence that she died of heart disease. There was no evidence of lung disease or of an allergic reaction. The toxicology screen revealed that Jacqueline had taken some Tylenol. Hoyer testified "to a reasonable degree of medical certainty" that the cause of death was ligature strangulation.

Defense expert Karl O. Schwarz, M.D., testified that the cause of death was self-inflicted hanging, likely with "a woven belt." He opined that Jacqueline had a condition known as "autoerotic death asphyxiophilia," in which a person "enhance[s] sexual feeling by depriving themselves of oxygen." Unlike suicide, the person is not seeking to die, but rather seeking sexual gratification.

Schwarz testified that death can be an undesired result of such sexual activity. He explained that the ligature was not found at the scene because with self-inflicted hanging, the person does not necessarily "die instantaneously," and may die minutes or hours later. He opined that Jacqueline may have secreted the ligature before her death.

David testified at the trial, denying any involvement in Jacqueline's death. He also presented character witnesses.

On October 9, the jury acquitted David of murder, but found him guilty of the lesser-included offense of aggravated manslaughter. The trial judge denied David's motion for a new trial on December 3, 2007.

On December 7, the judge sentenced David to incarceration for twenty-two years, subject to the eighty-five percent parole ineligibility provisions of NERA. In determining the sentence, the judge found one aggravating factor, N.J.S.A. 2C:44-1(a)(9), the need to deter David and others, and one mitigating factor, N.J.S.A. 2C:44-1(b)(7), that David had no prior criminal record. The judge did not give significant weight to the mitigating factor because David was not compassionate as Jacqueline was dying and because his lifestyle was based on "concealment." This appeal followed.

II.

David raises the following issues through counsel:

POINT I: THE COURT ERRED IN ADMITTING THE DEFENDANT'S TAPED STATEMENT BECAUSE IT WAS THE PRODUCT OF CUSTODIAL INTERROGATION AND, THUS, A MIRANDA VIOLATION.

POINT II: THE COURT ERRED BY NOT ANSWERING THE JURY QUESTIONS IN PLAIN LANGUAGE WITH ILLUSTRATIVE EXAMPLES, AND BY GIVING THE JURY WRITTEN SECTIONS OF THE INSTRUCTIONS IN RESPONSE. (Not Raised Below)

A. The court failed in its duty to explain the distinctions between aggravated manslaughter and reckless manslaughter.

B. It was improper to give the jury written sections of the instructions in lieu of plain language explanations and examples.

POINT III: THE DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE TERM OF 22 YEARS WITH A 85% PAROLE BAR UNDER NERA. THE SENTENCE MUST BE REDUCED.

David raises the following additional issues in a pro se supplemental brief:

I. THE COURT ERRED IN ADMITTING THE DEFENDANT'S ALLEGED FIRST STATEMENTS AT THE HOSPITAL AND THE TAPED STATEMENT BECAUSE THEY WERE THE PRODUCT OF CUSTODIAL INTERROGATIONS AND, THUS, MIRANDA VIOLATIONS.

II. THE COURT ERRED BY NOT ANSWERING THE JURY QUESTIONS IN PLAIN LANGUAGE WITH ILLUSTRATIVE EXAMPLES, AND BY GIVING THE JURY WRITTEN SECTIONS OF THE INSTRUCTIONS IN RESPONSE. (Not Raised Below)

A. The court failed in its duty to explain the distinctions between aggravated manslaughter and reckless manslaughter.

B. It was improper to give the jury written sections of the instructions in lieu of plain language explanations and examples.

III. THE DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE TERM OF 22 YEARS WITH A 85% PAROLE BAR UNDER NERA. THE SENTENCE MUST BE REDUCED.

IV. THE COURT ERRED BY ALLOWING THE STATE TO BOLSTER ITS OWN WITNESSES WITH THEIR WRITTEN STATEMENTS.

V. THE COURT ERRED BY NOT DECLARING A MISTRIAL AFTER STATE EXPERT'S DELIBERATE AND REPEATED COMMENTS REGARDING DEFENDANT'S RIGHT TO REMAIN SILENT.

VI. THE COURT ERRED AND THE STATE COMMITTED A BRADY VIOLATION BY NOT NOTIFYING THE DEFENSE OF THE EXISTENCE [SIC] OF HEART SAMPLES OF THE DECEDENT.

VII. THE COURT ERRED BY DENYING DEFENSE'S MOTION FOR ACQUITTAL AT THE COMPLETION OF THE STATE'S CASE.

VIII. THE COURT ERRED AND PREJUDICED THE DEFENDANT BY NOT ALLOWING AND OBTAINING THE APPROPRIATE TECHNOLOGY FOR THE JURY'S DELIBERATIONS.

IX. THE COURT ERRED BY CHARGING THE JURY ON THE LESSER-INCLUDED CHARGES OF AGGRAVATED MANSLAUGHTER AND MANSLAUGHTER WHEN THERE WAS NO LEGAL FOUNDATION FOR THE CHARGES.

X. THE COURT ERRED AND TAINTED THE JURY'S VERDICT BY HARSHLY QUESTIONING AND COMMENTING ON THE DEFENDANT'S WITNESSES.

XI. THE COURT ERRED IN ADMITTING TWO PREJUDICIAL ITEMS INTO EVIDENCE FOR JURY DELIBERATIONS.

A. It was improper for the court to admit the State's schematic drawing of the decedent's wounds into evidence.

B. It was improper for the court to admit the state's copy of the defendant's suicide letter into evidence.

XII. THE COURT ERRED BY NOT GRANTING A NEW TRIAL AND ALLOWING THE VERDICT TO STAND WHEN IT WAS CLEARLY AGAINST THE WEIGHT OF THE EVIDENCE.

XIII. THE COURT ERRED BY NOT ALLOWING THE DEFENDANT SUFFICIENT TIME TO REVIEW THE PRESENTENCE REPORT (PSR) AND PROVIDE COMMENTS TO THE DEFENSE ATTORNEY.

XIV. THE COURT ERRED BY ALLOWING INAPPROPRIATE VICTIM IMPACT STATEMENTS (VIS) TO BE READ DURING SENTENCING.

A.

We turn first to David's contention that the motion judge erred in refusing to suppress all of the statements he made to the police.

The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial court's fact-finding on a motion to suppress as follows:

Our analysis must begin with an understanding of the standard of appellate review that applies to a motion judge's findings in a suppression hearing. As the Appellate Division in this case clearly recognized, an appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the .investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).

An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid. [State v. Elders, 192 N.J. 224, 243-44 (2007).]

However, our review of the motion judge's legal conclusions is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In reviewing a trial judge's ruling on a Miranda motion, we analyze police-obtained statements using a "searching and critical" standard of review to ensure that constitutional rights have not been trampled upon. State v. Patton, 362 N.J. Super. 16, 43 (App. Div.) (citations omitted), certif. denied, 178 N.J. 35 (2003). We will not "engage in an independent assessment of the evidence as if [we] were the court of first instance," State v. Locurto, 157 N.J. 463, 471 (1999), nor will we make conclusions regarding witness credibility, State v. Barone, 147 N.J. 599, 615 (1997), but we instead defer to the trial judge's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

Miranda warnings are required "'when an individual is taken into custody or otherwise deprived of his [or her] freedom by the authorities in any significant way and is subject to questioning.'" State v. Stott, 171 N.J. 343, 364 (2002) (quoting Miranda v. Arizona, 384 U.S. 436, 478, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694, 726 (1966)). "'[T]he critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, and the status of the suspect.'" Id. at 365 (quoting State v. P.Z., 152 N.J. 86, 103 (1997)). Exculpatory or inculpatory statements made while a defendant is in custody are not to be used in the prosecution's case-in-chief if defendant was not advised of his Miranda rights. State v. Nyhammer, 197 N.J. 383, 400-01, cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009); Stott, supra, 171 N.J. at 365 (2002); State v. Brown, 352 N.J. Super. 338, 351 (App. Div.), cert. denied, 174 N.J. 544 (2002).

The test employed to determine whether a custodial interrogation has taken place is an objective one. State v. Barnes, 54 N.J. 1, 6 (1969), certif. denied, 396 U.S. 1029, 90 S. Ct. 580, 24 L. Ed. 2d 525 (1970); State v. Cunningham, 153 N.J. Super. 350, 353 (App. Div. 1977). We consider the totality of the objective circumstances surrounding the police questioning, such as "the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances." State v. Coburn, 221 N.J. Super. 586, 595-96 (App. Div. 1987) (citation omitted) (internal quotation marks omitted), certif. denied, 110 N.J. 300 (1988); see also Stott, supra, 171 N.J. at 367-68. The analysis looks to whether objective evidence of the surrounding circumstances would lead a reasonable person to believe that he or she was free to leave. Stott, supra, 171 N.J. at 367-68; Coburn, supra, 221 N.J. Super. at 595-96.

The fact that an interrogation took place at police headquarters is not determinative, State v. Micheliche, 220 N.J. Super. 532, 536 (App. Div.), certif. denied, 109 N.J. 40 (1987), but neither is the fact that the defendant was told he was free to leave at any time. Id. at 537; Stott, supra, 171 N.J. at 367. The fact that a defendant was a prime suspect at the time of the interrogation is also not definitive, as the Supreme Court held in Nyhammer, supra, 197 N.J. at 406.

In Nyhammer, the Court emphasized the import of the custodial aspect of the interrogation to determination of the Miranda issue.

Significantly, we are not aware of any case in any jurisdiction that commands that a person be informed of his suspect status in addition to his Miranda warnings or that requires automatic suppression of a statement in the absence of a suspect warning. The essential purpose of Miranda is to empower a person--subject to custodial interrogation within a police-dominated atmosphere--with knowledge of his basic constitutional rights so that he can exercise, according to his free will, the right against self-incrimination or waive that right and answer questions. Miranda, supra, 384 U.S. at 456-57, 86 S. Ct. at 1618-19, 16 L. Ed. 2d at 713-14. The defining event triggering the need to give Miranda warnings is custody, not police suspicions concerning an individual's possible role in a crime. See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977) ("[P]olice officers are not required to administer Miranda warnings . . . because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.'"); Beckwith v. United States, 425 U.S. 341, 346-47, 96 S. Ct. 1612, 1616, 48 L. Ed. 2d 1, 7-8 (1976) ("It was the compulsive aspect of custodial interrogation, and not the strength or content of the government's suspicions at the time the questioning was conducted, which led the court to impose the Miranda requirements with regard to custodial questioning." (citation and internal quotation marks omitted)). [Ibid.]

See also Stott, supra, 171 N.J. at 365 ("[T]he critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances . . . . ") (citation omitted) (internal quotation marks omitted).

We find David's arguments concerning his several conversations with law enforcement officials prior to and following his questioning at the police headquarters to be without merit and not requiring discussion in a written opinion.

R. 2:11-3(e)(2). Consequently, we affirm as to those statements for the reasons expressed by the motion judge. We focus, instead, on the taped statement given at police headquarters on March 30.

David argues that, because he was the prime suspect and was interrogated for an extended period of time at police headquarters, the March 31 taped statement was the result of a custodial interrogation and must be suppressed due to Wolf's failure to give him Miranda warnings. We disagree.

The facts before us are somewhat similar to those in State v. Godfrey, 131 N.J. Super. 168 (App. Div. 1974), aff'd o.b., 67 N.J. 267 (1975). There, Wayne Godfrey voluntarily went to the police station and submitted to a polygraph test. Godfrey, supra, 131 N.J. Super. at 172. When he was told that the test results indicated that he had lied and that he must have committed the crime, Godfrey, unlike David, confessed to the murder. Id. at 172-73.

Like David, Godfrey was questioned for an extended period of time in a closed room in "a police-dominated atmosphere." Id. at 177. The trial judge found that Godfrey was "of such limited mentality and understanding that[,] considering the totality of the circumstances[,] the confessions were the result of overbearing of the defendant's will by the police action." Id. at 174.

In our opinion affirming the trial judge's decision in Godfrey, we quoted the Second Circuit's holding in United States v. Hall, 421 F.2d 540, 545 (2d Cir. 1969), cert. denied, 397 U.S. 990, 90 S. Ct. 1123, 25 L. Ed. 2d 398 (1970), that, in the absence of actual arrest, something must be said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so. [Godfrey, supra, 131 N.J. Super. at 176.]

In considering the totality of the circumstances in Godfrey, we upheld the trial judge's determination that there had been a custodial interrogation. Id. at 181.

We specifically found that, under the circumstances of that case, assurances by the police that defendant was free to leave were "incredible and not worthy of belief." Id. at 177. We held that the resulting statements had to be suppressed because defendant was given inadequate Miranda warnings. Id. at 181.

In the case before us, in contrast to Godfrey, the motion judge, having heard the testimony and listened to the audio tape of the recorded statement, determined that David was free to leave at any time.

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.

That finding, based upon the judge's credibility findings, is supported in the record and entitled to deference.*fn5 Cerefice, supra, 335 N.J. Super. at 383. Consequently, we affirm the order denying suppression of the recorded statement.

B.

David raises several issues with respect to the charges given and the judge's response to questions from the jury.

Over David's objection, the judge charged aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), as lesser-included offenses. The issue was discussed at the charge conference on October 2, 2007, at which time David and his attorney had not yet decided what position to take on the giving of those additional charges. The following day, defense counsel informed the judge that David objected to any jury charge other than murder.

The trial judge explained his reasons for giving the additional charges as follows:

[DEFENSE COUNSEL]: [I]n reviewing this with my client, my client would like to have the charge limited to [a] murder charge, no [aggravated] manslaughter or manslaughter.

THE COURT: I mention -- I don't know if I said it on the record yesterday. We have discussed this and I said, No. 1, I think, quite frankly, that would be error on my part not to put it in the case.

Secondarily, because of the facts that gave rise to calling [9-1-1], possible inference, reasonable inference by a jury that it might not have been purposeful or knowing that it was going to cause the death and the attempts to have revived by virtue of calling [9-1-1]. The attempts -- if, in fact, he did cause the stress that she had -- that would at least give rise to, in my view, reckless conduct or reckless indifference to the value of human life where an aggravated manslaughter could be found by a reasonable jury drawing reasonable inferences.

We see no abuse of the judge's discretion in giving the charges on the lesser-included offenses.

When a defendant does not request a charge on a lesser-included offense, the charge "must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). "No defendant should be convicted of a greater crime or acquitted merely because the jury was precluded from considering a lesser offense that is clearly indicated in the record." State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). See also N.J.S.A. 2C:1-8(d) and (e). The charge of a lesser-included offense, where warranted, must be given whether requested or not. Garron, supra, 177 N.J. at 180. See also State v. Thomas, 187 N.J. 119, 132 (2006); State v. Viera, 346 N.J. Super. 198, 211 (App. Div. 2001) (citing Choice, supra, 98 N.J. at 299), certif. denied, 174 N.J. 38 (2002); State v. Powell, 84 N.J. 305, 319 (1980).

There were, as the judge observed, facts in the record from which the jury could conclude that David was responsible for his wife's death, but not with the requisite purpose or knowledge to constitute murder as defined by N.J.S.A. 2C:11-3(a)(1) and (2). For example, David's medical expert suggested that death was caused by a form of sexual conduct involving partial asphyxiation, and the jury could have determined that David participated in that conduct. Consequently, the judge correctly charged the lesser-included manslaughter offenses.

David also argues that the judge erred in failing to respond properly to the jury's request for examples in connection with its request for an explanation of "under circumstances manifesting extreme indifference to human life," arguing that the jury was having trouble distinguishing between aggravated manslaughter and reckless manslaughter.

A homicide is aggravated manslaughter, a first-degree offense, when "[t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a)(1). Reckless manslaughter, a second-degree offense, does not require proof of "extreme indifference," requiring only proof that a defendant "consciously disregard[ed] a substantial and unjustifiable risk that . . . [death] will result from his conduct." N.J.S.A. 2C:2-2(b)(3). See State v. Bakka, 176 N.J. 533, 550 (2003) (citations omitted) ("To establish that heightened degree of recklessness, the State must prove beyond a reasonable doubt that defendant's actions created a probability as opposed to the mere possibility that death would occur.").

The probability/possibility distinction is reflected in the pertinent part of the model jury charge, which the judge read to the jury in his initial charge:

[A]nother element that the State must prove beyond a reasonable doubt is that defendant acted under circumstances manifesting extreme indifference to human life. Now, the phrase under circumstances manifesting extreme indifference to human life does not focus on defendant's state of mind, but rather, on the circumstances under which you find he acted. If in light of all the evidence you find that the defendant's conduct resulted in a probability as opposed to a mere possibility of death, then you may find that he acted under circumstances manifesting extreme indifference to human life. On the other hand, if you find that his conduct resulted in only a possibility of death, then you must acquit him of aggravated manslaughter and consider the offense of reckless manslaughter. And I will explain that to you shortly.

The final element that the State must prove beyond a reasonable doubt is that the defendant caused the death of Jacqueline Henry. Now, again, remember, that there were two different theories of cause and manner of death expressed by the parties that are before you.

You must find that Jacqueline Henry would not have died but for the defendant's conduct. Now, if after considering all the evidence you are convinced beyond a reasonable doubt that the defendant is guilty -- that the defendant, rather, recklessly caused Jacqueline Henry's death under circumstances manifesting extreme indifference to human life, then your verdict must be guilty of aggravated manslaughter. If, however, after consideration of all the evidence you're not convinced beyond a reasonable doubt that defendant recklessly caused Jacqueline Henry's death under circumstances manifesting extreme indifference to human life, you must find defendant not guilty of aggravated manslaughter and go on to consider whether defendant should be convicted of reckless manslaughter. [(Emphasis added).]

See Model Jury Charge (Criminal), "Murder, Passion/Provocation and Aggravated/Reckless Manslaughter"*fn6 (2004).

The jury subsequently asked for a further explanation and examples of "circumstances manifesting extreme indifference to human life." The following colloquy then took place outside the presence of the jury.

I went into the charge. I highlighted from the charge the specific definition of under circumstances manifesting extreme indifference to human life and I'll read to the jury and give them a copy of the definition that will supplement the other definition I've given them.

Say the following: "State must prove beyond a reasonable doubt that the defendant acted under circumstances manifesting extreme indifference to human life. The phrase under circumstances manifesting extreme indifference to human life does not focus on the defendant's state of mind; but rather, the circumstances under which you find he acted.["]

"If in light of all the evidence you find the defendant's conduct resulted in a probability as opposed to a mere possibility of death, then you may find he acted under circumstances manifesting extreme indifference to human life."

Any problem with giving them that definition?

[DEFENSE COUNSEL]: No, your Honor. [PROSECUTOR]: State has no objection. [DEFENSE COUNSEL]: Without any examples?

THE COURT: No. State v. Ambroselli[, 356 N.J. Super. 377 (App. Div. 2003)]. I tried to give them an example of purpose one time. By doing so the Appellate Court came back and said well, you didn't fill in the gap on a bunch of other examples that may or may not be. So I don't want to run afoul of the Appellate Division.

[DEFENSE COUNSEL]: That's fine with us.

THE COURT: I think that's problematic. . . . Anybody have a problem? I'm going to cross out the word "is" with -- when I cut and pasted, I took away other language.

[DEFENSE COUNSEL]: No, your Honor.

Once the jury returned to the courtroom, the judge responded to their question as follows:

THE COURT: Okay. . . . Counsel and I have gotten the question. The question is: "If possible, can you explain 1B(b), . . . that essentially asks for a definition of under circumstances manifesting extreme indifference to human life?"

Correct, Mr. Foreperson?

FOREPERSON: Yes.

THE COURT: "And give us examples." I can't give you examples. I think if I did they'd be fraught with -- we'd be sitting here for days when I explained other case law that dealt with other circumstances manifesting extreme indifference to human life and this was not.

But I believe that the definition --I'm going to give you a definition sheet just like I did before, but I'll read you --this comes right from the charge.

"The State must prove beyond a reasonable doubt that the defendant acted under circumstances manifesting extreme indifference to human life." I'm parenthetically saying that's an element of aggravated manslaughter.

"The phrase 'under circumstances manifesting extreme indifference to human life' does not focus on the defendant's state of mind; but rather, on the circumstances under which you find he acted."

"If in light of all the evidence you find that the defendant's conduct resulted in a probability -- the word is underlined, as opposed to a mere possibility, the word is underlined, of death, then you may find he acted under circumstances manifesting extreme indifference to human life."

So hopefully that language of probability as opposed to mere possibility of death will be something that will help you understand the distinction. Okay? I'm going to hand this to the foreperson to take back.

Anything additional? [DEFENSE COUNSEL]: No, you Honor. [PROSECUTOR]: No, your Honor.

THE COURT: No objection to that charge?

[PROSECUTOR]: No, your Honor. [DEFENSE COUNSEL]: No.

David argues that the distinction between probability and possibility would have been better addressed by examples, as requested by the jury. We disagree.

It is undisputed that proper jury charges are "essential for a fair trial." State v. Bunch, 180 N.J. 534, 541-42 (2004); State v. Green, 86 N.J. 281, 287 (1981). The court must guarantee that jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. See State v. Thompson, 59 N.J. 396, 411-12 (1971). Because of the importance of accurate jury instructions, "erroneous instructions on material issues are presumed to be reversible error." State v. Marshall, 173 N.J. 343, 359 (2002).

When a question is posed by the jury, the trial judge is required to answer the question "clearly and accurately and in a manner designed to clear its confusion, which ordinarily requires explanation beyond rereading the original charge." Pressler, Current N.J. Court Rules, comment 7 on R. 1:8-7 (2006); Patton v. Amblo, 314 N.J. Super. 1, 9-10 (App. Div. 1998). However, minor inaccuracies in the judge's response will be disregarded unless they "have the capacity to mislead the jury" or are "clearly capable of leading the jury to an unjust result." Velazquez v. Jiminez, 336 N.J. Super. 10, 39-40 (App. Div. 2000) (citation omitted) (internal quotation marks omitted), aff'd, 172 N.J. 240 (2002).

Having reviewed the charge as originally given and as supplemented by the trial judge, we are satisfied that he adequately responded to the jury's question by rereading a focused portion of the original charge. We note that David did not object to the judge's approach or offer specific examples for his consideration in responding to the jury. Although the judge could have given examples, we do not fault him for declining to do so under the circumstances. He sought to avoid the danger that such examples might not be inclusive enough. See State v. Concepcion, 111 N.J. 373, 380-81 (1988); Ambroselli, supra, 356 N.J. Super. at 386-87.

Finally, the judge had the discretion to give copies of the charge language to the jury, Rule 1:8-8(a), and we see no abuse of discretion in his doing so.

C.

Before turning to the sentence, we briefly address the remaining issues presented with respect to David's conviction, which we have reviewed in light of the record before us. We find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2). We make the following brief comment with respect to some of those issues raised.

David contends that the trial judge improperly allowed witnesses to refresh their memories by using their reports or notes, when his witnesses were not allowed to do so. We find no merit in this assertion. The witnesses involved had contemporaneous written reports that were used pursuant to N.J.R.E. 612. David does not point to a situation in which one of his witnesses was specifically barred from doing so.

David also argues that Hoyer, the State's expert, made "deliberate and repeated comments" implicating his right to remain silent. Although David does not cite to these comments directly, it appears that he refers to the following statements made by Hoyer on direct examination:

A. Well, after we had done the initial autopsy and we determined that this was a peculiar kind of ligature strangulation death and that there was no ligature found at the scene, it didn't make any sense. We didn't know what exactly it was and we wanted to give Mr. Henry a chance to explain what had happened in case it was something non-criminal. We didn't know. And so we really gave him an extensive opportunity to talk about the death and he chose not to.

Q. He chose not to?

A. Correct.

On cross-examination, Hoyer was asked,

Q. What is the manner of death in this case?

A. The manner of death is in my opinion as to, as to whether this is an accident, a natural death, a suicide, a homicide or what we call underdetermined. Well, I was unable to choose. So that's the manner of death in this case. There was a delayed issuance of the death certificate. It was delayed predominately for investigation because these are not typical injuries. We wanted - if we could get a good story as to what happened, we wanted it. We did not get a good story, the story he had told us, that someone killed her. That makes it homicide.

On re-direct, when asked whether Jacqueline engaged in autoerotic asphyxia, Hoyer stated, in relevant part,

Now that's why we allowed -- that's why we waited because we wanted to see if Mr. Henry would come forward with a story of autoerotic asphyxia. We didn't want to doubt him in advance.

At one point, defense counsel objected. At sidebar defense counsel requested a mistrial.

In denying the request, the judge found that the discussion referred to by Hoyer took place in "an investigator interview as opposed to a custodial interrogation." The judge correctly found that David's right to remain silent was not implicated because he was not in custody and had not been charged at the time Hoyer was testifying about. Stott, supra, 171 N.J. 364-65; P.Z., supra, 152 N.J. at 102.

David's argument that Hoyer gave a direct opinion concerning his guilt, which is prohibited by State v. Odom, 116 N.J. 65, 77 (1989), is factually incorrect. Hoyer simply stated: "The cause of death was a ligature strangulation and the manner of death was homicide." He did not implicate David as the killer.

David also contends that he was deprived of exculpatory evidence because he was not informed until late in the trial that samples from Jacqueline's heart had been retained after the autopsy was completed. According to David, evidence related to the heart samples was integral to his defense because he claimed that Jacqueline died from a heart attack, as did her mother who died of heart disease at fifty-two.*fn7 He relies on Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1197, 10 L. Ed. 2d 215, 218 (1963). His argument is without merit. David did not request the samples, and there is no evidence in the record that the State withheld them. Most importantly, there is nothing in the record to demonstrate that further analysis of the samples would have been exculpatory.

David contends that the trial judge should have granted his motion for judgment of acquittal because the State's case was based upon "speculation and erroneous reports" that were debunked by the State's own witnesses. This argument is without merit.

When a motion for judgment of acquittal is made, Rule 3:18-2, the trial judge should deny the motion if giving the State the benefit of all reasonable inferences "a reasonable jury could find guilt . . . beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967). In giving all reasonableinferences to the State, the judge correctly denied David's motion; a reasonable jury could have found him guilty of murder and did find him guilty of aggravated manslaughter.

David argues that the judge erred in admitting Hoyer's schematic drawing of Jacqueline's wounds into evidence because high resolution photographs were also admitted into evidence. The trial judge found that the probative value outweighed any prejudice, and that decision is "entitled to deference." State v. E.B., 348 N.J. Super. 336, 344 (App. Div.), certif. denied, 174 N.J. 192 (2002).

David also contends that the trial judge erred in denying his motion for a new trial because the verdict was against the weight of the evidence. We disagree. There was sufficient credible evidence in the record to support the jury's verdict.

D.

Finally, David argues that his twenty-two year sentence, subject to the eighty-five percent parole ineligibility provisions of NERA, was "manifestly excessive." He also argues that the judge failed to apply mitigating factors N.J.S.A. 2C:44-1(b)(8) and (9), and considered factors outside of the sentencing guidelines.

Our review of sentencing decisions is relatively narrow and is generally governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 363-65. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364.

"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)).

The trial judge explained his findings and balancing of the mitigating and aggravating factors, N.J.S.A. 2C:44-1(a) and (b), as follows:

Now, frankly, would I like to give you the maximum allowable by law? No. I would love to give you well beyond the maximum allowable by law because you deserve it. You took a life.

The fact of the matter is that I'm bound by the dictates of law. My personal feelings will not impact my professionalism in sentencing you.

The maximum allowable by law is 30 years in state prison. Now, . . . there's no presumptive sentence in New Jersey any longer. There's mid sentences, mid-term sentences, and that's where the Court tells me I have to begin the analysis and then I have to weigh the aggravating and mitigating factors to see where it comes in.

Certainly, you have no criminal past and you get the benefit of mitigating factor seven, but in this instance you took a life. I don't place a lot of weight on mitigating factor seven.

As I said, mitigating factor nine, the character and attitude of the defendant indicate that he's unlikely to commit another crime really is not applicable here. I agree with the prosecutor. Because, again, not to be redundant, but your life is based on concealment and when one in their personal life conceals things, that tells me that that's not an attitude consistent with non-commission of crimes.

Concealment sometimes is criminal. Concealment sometimes is not criminal. On the second floor the Family Court is full with people who lie to their spouses and conceal facts, but they certainly don't cause the death of their spouses. Lifestyle preferences or preferences of opinion, they handle them in a civilized manner. You, likewise, if you were dissatisfied with your lifestyle, had disagreements with Jackie, could have handled it in a more civilized fashion. That's for sure.

And, again, the lack of compassion is an attribute which would be indicative. If you had compassion for other human beings, if you showed the least amount of -- the least small amount of humanity, that might be something that might indicate to the

[c]court that you had some attitude which would indicate you're unlikely to commit another crime, but that doesn't exist here. We know that you lied about a significant portion of your life for a significant period of time. It was 20-something years, a 16-year marriage. You lied for a long time, so that doesn't apply.

So, the only mitigating factor that exists is seven.

Now, on the aggravating side, I disagree with the prosecutor. I don't think aggravating factors one and two can be utilized. I agree they apply, but can they be utilized in my sentencing? Absolutely not. Was it a heinous act? Yes. Was it a painful act? I'm certain it was. We know the mechanism of death because that was explained by Dr. Hoyer. The gravity and seriousness of the harm, you can inflict no more serious harm upon a person other than taking their life, but unfortunately the law says that would be double-counting. I know that if I did that, although you certainly deserve to receive those aggravating factors, it certainly would be an inappropriate application of the law. My personal beliefs have nothing to do with my legal obligation and my oath under the Constitution. I'm not finding aggravating factors one or two. They simply don't apply.

When I go through all the aggravating factors, the only one that does apply is the need for deterrence. That deterrence is not only to deter you, but to deter others from violating the law, and I place extraordinary weight on that.

Certainly, the sanctity of human life is something we all hold onto. We fight as hard as we can to maintain our lives and the lives of our loved ones. I need to send a strong message to the public that that sanctity, in fact, is held in high regard by the Legislature. That's why they gave me this mitigating factor nine -- I mean aggravating factor nine. So, that's the one that applies.

So, when I apply that nine, aggravating factor nine, and I compare it to the limited weight I placed on mitigating factor seven, the aggravating factor substantially outweighs the mitigating factor on the scales because I look at things -- although it's one to one, you don't just look at them quantitatively. You look at them qualitatively. On that scale of justice, aggravating factor nine weighs so heavily that it's probably reached the end of -- on the fulcrum. You can't go any further down.

[I] . . . sentence you to a little bit above the mid term because I think it's appropriate because of the weight of aggravating factor nine.

I'm going to sentence you to 22 years in state prison. That's to be served 85 percent without parole. That's pursuant to the No Early Release Act. [N.J.S.A. 2C:43-7.2].

The judge specifically declined to apply mitigating factor nine, "[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense." N.J.S.A. 2C:44-1(b)(9). He gave two reasons for his decision.

One reason was that David showed no compassion when he failed to assist or even comfort his wife as she was dying.

You also show a lack of compassion, another attribute of your personality. The woman's lying on the floor and, in your own words, she can't breathe, but she seems to be gasping for breath. You step over her four times. You don't pick her up, comfort her.

Even if you did what you did and you realized that it was a mistake, you didn't even attempt to comfort the person. Didn't even touch her. Didn't put a pillow under her head. Nothing. That's just simply cold.

In your own words, you stepped over her to get a medical card, to get your clothes on, took your time putting your clothes on. Anybody with a molecule of humanity -- maybe you're nice to dogs and cats and parrots, but you surely didn't show that compassion to someone you professed love for.

The act that you engaged in, the acts that you engaged in, aside from causing her death, once you put her in distress, not rendering her any assistance, not rendering her any comfort, essentially letting her die alone, shows a lack of compassion, a complete lack of compassion and a complete lack of humanity.

That reason is factually supported in the record and is an appropriate basis for the judge's concern about future criminal conduct to warrant exclusion of mitigating factors eight and nine. N.J.S.A. 2C:44-1(b)(8) and (9).

The second reason related to the fact that David had hidden his sexual orientation from his wife throughout their relationship. While the record does support that assertion factually, we question whether it is an appropriate consideration for sentencing purposes. In itself, such activity is not criminal. In addition, sexual orientation is a protected class under New Jersey law. See N.J.S.A. 10:5-12(a).

Nevertheless, we are satisfied that the judge's decision not to apply mitigating factors eight and nine was sufficiently supported in the record because of the nature of David's criminal activity in this case.

David's argument that the judge erred in allowing victim impact statements to be read during sentencing is also without merit. The Victim's Rights Amendment to the Crime Victim Bill of Rights specifically allows "the nearest relative of the victim," N.J.S.A. 52:4B-37, "[to] make, prior to sentencing, an in-person statement directly to the sentencing court concerning the impact of the crime." N.J.S.A. 52:4B-36(n).

The sentence imposed, although severe, does not shock the judicial conscience. Roth, supra, 95 N.J. at 363-65. We will not interfere with the judge's exercise of his broad discretion in sentencing.

Affirmed.


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