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State of New Jersey v. Thor T. Frey


August 15, 2011


On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 08-01-0024.

Per curiam.


Argued May 4, 2011

Before Judges Ashrafi, Nugent and Kestin.

Defendant, Thor T. Frey, was convicted of felony-murder, N.J.S.A. 2C:11-3a(3), a crime of the first degree; of second-degree robbery, N.J.S.A. 2C:15-1a(1); of third-degree burglary, N.J.S.A. 2C:18-2; and of fourth-degree criminal mischief, N.J.S.A. 2C:17-3a(1). For the murder, he was sentenced to serve a forty-year term of imprisonment, eighty-five percent without parole eligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judgment of conviction recognized a 1,086-day jail-time credit. The burglary and criminal mischief convictions were merged into the robbery conviction, and a ten-year concurrent sentence was imposed. The court ordered restitution along with the customary fees, assessments and fines.

On his appeal from the convictions, defendant raises the following issues:




We affirm in part, reverse in part, and remand for a new trial.


Some of the factual background of the case was elicited initially in a hearing on a motion to suppress a recorded oral statement defendant had given during the course of the police investigation of the matter. The rest of the facts were developed at the trial, which followed the court's denial of the motion to suppress.

A friend of the seventy-five-year-old victim, Mary Bostian, discovered her body at the foot of her bed in her home in Phillipsburg, and summoned the police. The hands and legs of the body were bound. The medical examiner determined the cause of death to have been suffocation, and he concluded that a homicide had occurred. Investigation revealed that a safe had been taken from another bedroom in the home. The safe had been kept hidden by the victim's son, John Counterman, and some wood framing surrounding it had been ripped out. Counterman testified that the safe had been "buried in the closet on the floor. . . . [He] had some kind of wood framing around it and [he] had clothes draped over it so you really couldn't see it." He testified further that he kept "approximately 25, $26,000" in the safe in "bills and also coins" along with "a nine[-] millimeter handgun."

A prosecutor's detective on the scene showed Counterman a drawing of a medallion he had found on the living room floor. Counterman identified it as "a Thor's hammer[,]" and said he had one hanging in his car. He showed his medallion to the detective, reporting that he had received it from his live-in girlfriend, Naomi Frey, defendant's estranged wife. Frey testified that she had purchased four of those medallions at one time. She had given one to Counterman and another to defendant's sister to give to defendant.

Based on their preliminary investigation, the detectives considered defendant a suspect in the crime. Further investigation resulted in their belief that defendant, at the time, was residing in Pennsylvania. With the aid of the Pennsylvania State Police, they identified a motel in Plainfield Township as a likely location, isolating a particular room as defendant's probable residence. The door was ajar, indicating to the police that someone had just left the room. A Palmer Township police officer, with a canine partner, Khan, assisted the ensuing inspection. Khan picked up a scent from the room and tracked it into the woods behind the motel, coming upon an area of heavy thicket and underbrush. Khan pulled defendant out by his leg from beneath a tree. The police officer commanded defendant to stop "kicking at [the] dog and thrashing;" Khan had been "trained to bite and hold in such a situation." Defendant was placed in restraints and taken from the wooded area. Near the location where defendant had been hiding, the police found a tube sock containing $2,400 in cash.

An ambulance was summoned so that defendant's dog bites could be examined and treated. The ambulance personnel cleaned the wound and bandaged it, advising the police that although defendant was stable, he would need sutures to close the puncture wound. According to one of the local police officers, defendant was "cleared by [the] EMS personnel," and he was transported to the State Police barracks serving the area.

In the meantime, a police officer who had remained on the scene at the motel observed a vehicle pull into the parking lot. He "ran the registration" on the vehicle and it "didn't match the vehicle [he] was looking at." He and some Phillipsburg police officers who were with him stopped the vehicle and identified both the driver and Donald O'Grady, the passenger. O'Grady was also a suspect in the Bostian murder. Both men were taken into custody and transported to the State Police barracks.

The driver of the vehicle testified at trial. He had acceded to O'Grady's request for a ride "to get some clothes," and was directed "to a dirt road in Bangor . . . . [where] there was a safe . . . with some change and some paperwork and everything and he wanted to pick up change, to load it in a [duffle] bag [in the car]. Then he was [sic] started to look for a handgun and that's when I wanted us to leave." After O'Grady filled the bag with coins, he placed it in the trunk of the car, and the men returned to the motel where they were arrested. The driver took the police to the area off the dirt road from where he and O'Grady had just come.

Another police witness testified that, at that location, he found "[a] safe that had been broken open, coin wrappers, miscellaneous papers, a firearm, ammunition." Also at trial, Counterman identified the items as belonging to him.

Defendant was interrogated at the State Police barracks by a detective from the Warren County Prosecutor's office.*fn1 The detective testified that defendant "seemed a bit agitated" during the session. "He was complaining that the dog bit him. And that it hurt. He was experiencing some discomfort."

Nevertheless, the detective responded "no" when asked whether "at any time" defendant had "complain[ed] . . . about any . . . mental disorientation or confusion." And, he answered "yes" to the question whether defendant "seem[ed] oriented as to time and place."

The detective asked defendant if he wanted to talk about the robbery and murder. Initially, defendant "didn't really respond to [the] question[, but] just started talking." The detective then advised defendant of his Miranda*fn2 rights but defendant refused, at that point, to sign the Miranda card or provide a recorded statement. According to the detective, defendant nevertheless disclosed that he was present at Ms. Bostian's residence on the night in question, but insisted that he had not gone inside the house and that he had not killed her.

The questioning ceased for the moment because defendant refused to provide a recorded statement. Shortly thereafter, however, the detective learned that defendant wanted to speak to him again. At that point, defendant signed the Miranda card and agreed to provide a taped statement.

Early in that session, the detective asked defendant whether, in view of the dog-bite injury to his right leg and his bandage, he was "still ok to talk to [the detective]?" Defendant responded in the affirmative. He went on to describe his involvement in the crime.

Thursday, August 17, was his birthday, and he was working at a construction job until almost 7:00 p.m. He did not have his own car, and depended on O'Grady for transportation.

When his work day was over, he went to O'Grady's house, where they "smoked some pot" and "[d]rank some beer, got really really drunk." Later, they went to an establishment called the Snack Bar, where they continued to drink. Defendant said he "g[o]t so drunk that [he] start[ed] throwing up" and was "stumbling". Defendant and O'Grady remained at the Snack Bar until closing time at 2:00 a.m.

After they left the bar, they went back to O'Grady's son's house. Defendant wanted to go home, but O'Grady "just kept saying lets go do this, lets do a burglary[.]" Defendant admitted that Frey and "a lot of her friends" had told him about the safe at the Bostian house, and he had told O'Grady about it.

Defendant stated that he "walked over" to the house with O'Grady and "layed [sic] down on the grass in the back of the yard." He said, also: "I didn't see [O'Grady] do it, he told me he went the front window [sic] he did what he had to do[.]" According to defendant, he was "passed out," asleep in the yard, and did not know how much time had passed. O'Grady woke him and said "come on, I got it," referring to the safe. O'Grady had managed to move the safe "all the way to the back door, all the way out, and on the stairs. . . . [I]t was too heavy [to lift,]" and O'Grady wanted defendant "to help carry it[,]" but defendant couldn't because he had one bad arm and was "so drunk." When defendant tried to pick up the safe, he "fell right over and layed down." They "left the safe there. And I guess we walked I was still so drunk, anyway he went and stole the car." When they returned, defendant helped O'Grady put the safe in the car, "which was really really hard" to accomplish. Defendant fell asleep in the car, and when he woke up, they were in the woods. They then threw the safe out of the car.

The next day, defendant saw on the news that Ms. Bostian had been killed. His sister informed him that the police had found his Thor's hammer, but he told her that it couldn't be his because he had the one that belonged to him. Defendant maintained in his statement that his Thor's hammer medallion was still in his jewelry box.

Defendant further disclosed that the following Monday, he and O'Grady went back to the safe to pry it open. "It looked like it was half way open already" and they "popped it open in five minutes." O'Grady then gave defendant "a couple thousand [dollars]." Defendant believed that O'Grady gave him the money because he had made a comment that he would "tell on" O'Grady if he was implicated in the crime.

After defendant's statement concluded, the police transported him to the Northampton prison. However, according to one of the Pennsylvania State troopers, the prison would not accept him until he received further medical treatment at a hospital for his dog bites.

In a pretrial ruling, the trial judge denied defendant's motion to suppress. Defendant did not testify at trial; and he presented no other witnesses.

To address defendant's contention in his statement that he had been too drunk to participate in the robbery and murder, the State, at trial, proffered the testimony of three witnesses who had seen defendant and O'Grady in the hours preceding the crime.

One of those witnesses testified that "around 11:00 or 12:00" on the evening of August 17, she saw defendant and O'Grady walking across the street and called them over to her house. When asked to describe their condition, she replied: "They were normal. They . . . didn't act intoxicated. They didn't act high or anything. They just sat there and had a normal conversation."

A bartender at the Snack Bar tavern, who was not working that night but was socializing with friends there, testified that defendant and O'Grady left the bar around closing time on August 18. She acknowledged that they appeared to be walking normally, and did not appear to be having any difficulty maneuvering themselves. She didn't "recall them staggering or anything."

Another individual who was also at the bar testified that he observed defendant and O'Grady leave the bar at closing time. He indicated that they appeared to be walking normally down the street.


We address the issues raised on appeal in the order they arose before the trial court.


The first to occur was the court's pre-trial ruling denying defendant's motion to suppress the recorded oral statement he had made to the police on August 28, 2006. The written ruling on several issues raised by defendant and his co-defendant followed testimonial proceedings on three separate days and arguments from counsel on two other days. In respect of defendant' motion to suppress his statement, the judge found that defendant had been properly attended to by emergency medical personnel subsequent to his arrest, and there is no evidence that Defendant Frey was either incoherent or in such a degree of pain as to render his statement involuntary. Moreover, the police asked [him] several times during his tape recorded statement if he was comfortable or in any pain; he indicated that he was fine.

Defendant Frey ultimately signed a Miranda card, and indicated on an audio recording that he had not been threatened or coerced into making a statement, and he did so knowing all of the rights he was waiving.

The judge found: "Considering the totality of the circumstances, the State has shown beyond a reasonable doubt that defendant Frey knowingly, intelligently, and voluntarily waived his Fifth Amendment rights. His statement[ is] therefore admissible before the jury."

In his argument challenging this ruling, defendant posits the principle that, where the voluntariness of a statement is in issue, the burden is on the State to prove voluntariness beyond a reasonable doubt, considering the totality of the circumstances, including the declarant's characteristics and the nature of the interrogation. See State v. Timmendequas, 161 N.J. 515, 613-14 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The State concedes that a statement is involuntary when it is produced by physical violence, the threat of physical violence, or deprivation of food and sleep.

Defendant argues that "[w]hile the police in [defendant's] case did not beat or physically injure him," allowing "him to suffer from serious [dog] bites for several hours without allowing him to be treated or for his pain to be medicated . . . was the functional equivalent of causing physical injury and should result in a finding of involuntariness." The State responds that defendant was not "subjected to the equivalent of physical violence by depriving him of proper medical care[,] as his dog bites were thoroughly examined and cared for at the scene of the arrest." The State contends, as well, that even though defendant, during the course of the recorded interrogation, "made occasional reference to being in discomfort from the bites, he never exhibited any signs of physical distress and he never requested additional medical treatment."

Having evaluated the record in the light of the arguments advanced by the parties and pertinent principles of law, we discern the trial court's findings to be supported by substantial credible evidence in the record, and we regard its conclusion to follow logically and reasonably from the findings. Those findings and conclusion warrant our deference, therefore. See State v. Johnson, 42 N.J. 146, 162 (1964); State v. Watson, 261 N.J. Super. 169, 176, 177 (App. Div. 1992), certif. denied, 133 N.J. 441 (1993); State v. Boone, 114 N.J. Super. 521, 525 (App. Div.), certif. denied sub nom., State v. Terry, 58 N.J. 595 (1971). Moreover, we are in substantial agreement with the trial court's analysis. Suppression of defendant's statement was not warranted in the circumstances.


The remaining issue on appeal embodies the question whether the trial court was required, sua sponte, to give the jury a lesser-included-crime charge. Defendant contends, for the first time on appeal, that the trial court should have charged the jury regarding the category of theft known as receiving stolen property, see N.J.S.A. 2C:20-7, which is a lesser-included offense of robbery, defined, in turn, inter alia, as theft with bodily injury, use of force, or threat of bodily injury. See N.J.S.A. 2C:15-1a; State v. Ingram, 196 N.J. 23, 39-40 (2008). Defendant argues that the absence of such a charge left the jury "with an improper all-or-nothing convict/acquit choice regarding robbery," thereby denying "defendant's rights to due process and a fair trial[.]" He contends that the "robbery and felony-murder convictions should be reversed and a retrial ordered." Robbery and attempted robbery are the only theft offenses specified as predicates for a felony-murder conviction. See N.J.S.A. 2C:11-3a(3).

When the trial judge and counsel were discussing jury instructions, the trial court raised the question whether lesser-included offenses should be charged; but defendant, in the following colloquy, declined to request such a charge.

THE COURT: And robbery is a standard robbery charge. There are no lesser included offenses in these cases. [DEFENSE COUNSEL]: Yes, Judge. [THE PROSECUTOR]: We agree on that.

THE COURT: You agree on that? [DEFENSE COUNSEL]: Yes, Judge.

The same thought was expressed by both the prosecutor and defense counsel once again as the "charge conference" aspect of the trial was nearing conclusion just before summations.*fn3

In these circumstances, i.e., that the issue of charging lesser-included crime(s) was not advanced by defendant at trial, plain error review is required on appeal. See State v. Jenkins, 178 N.J. 347, 360 (2004). Plain error is that which is "clearly capable of producing an unjust result" that should "in the interests of justice" be noticed even if "not brought to the attention of the trial . . . court". R. 2:10-2; see also Jenkins, supra, 178 N.J. at 360-61. "[T]he possibility of injustice [must be] 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).

"[A] trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Jenkins, supra, 178 N.J. at 361. On the other hand, the court has no duty to give a lesser-included offense instruction sua sponte if the evidence does not clearly indicate or warrant such a charge. State v. Thomas, 187 N.J. 119, 132 (2006). See also N.J.S.A. 2C:1-8(e) ("The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.").

The rationale for imposing an independent obligation on the court in this context is that "[n]o 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). The danger of prejudice to a defendant that may result from a trial court's failure to charge a lesser-included offense to the jury is that "[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction". State v. Sloane, 111 N.J. 293, 299 (1988) (quoting Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993, 1997-98, 36 L.Ed. 2d 844, 850 (1973)).

In Jenkins, supra, the Supreme Court noted, in the context of lesser-included offenses, that "because correct jury charges are especially critical in guiding deliberations in criminal matters, improper instructions on material issues are presumed to constitute reversible error." 178 N.J. at 361.

State v. Rivera, 205 N.J. 472 (2011), also addressing the duty to give jury instructions sua sponte, clarified the trial court's responsibilities in this regard. In Rivera, the context of the discussion was a trial court's obligation to charge a jury sua sponte on the defense of diminished capacity. The Supreme Court saw parallels to a trial court's duty to charge lesser-included offenses. Id. at 488-90. The court ultimately held:

[A] trial court's duty to charge the jury on its own motion is one that is not self-executing, and that duty arises only when the record evidence clearly indicates the need for or clearly warrants the unrequested jury instruction. . . . In determining whether an unrequested jury charge should be given, the notion that the facts must "'clearly indicate' the appropriateness" of the jury instruction is paramount: "'The trial court does not have the obligation on its own meticulously to sift through the entire record in every trial to see if some combination of facts and inferences might rationally sustain a[n unrequested] charge.'" [State v.] Thomas, [] 187 N.J. [119,] 134 [(2006)] (quoting [State v.] Choice, [] 98 N.J. [295,]299 [(1985)]. . . .

[A] trial court's sua sponte obligation to instruct the jury in respect of any defense . . . is triggered only when the evidence clearly indicates or clearly warrants such a charge, and . . . the trial court is not called on to scour the record in detail to find such support. [Id. at 489-90 (citation and footnote omitted).]

The State argues that the jury "could have reasonably acquitted [defendant] of robbery and, therefore, felony murder" if it had believed defendant's version of the facts as set out in his statement to the police, i.e., that he was too drunk to participate in the robbery and related events and was "passed out" on the lawn when O'Grady went inside the home, awakening only after O'Grady had already taken the safe and killed the victim. "However," the State goes on to argue, "if [the jury] believed [defendant] . . . [it] could not have reasonably found him guilty of theft or receiving stolen property, both of which require knowing and purposeful conduct." Thus, the State contends, "the trial judge properly did not charge the jury with the lesser-included offenses of theft or receiving stolen property."

The State's argument takes too narrow a view of the evidence at trial and defendant's contentions on appeal. Defendant's statement to police after he was apprehended in Pennsylvania was a significant element of the State's case at trial. In that statement, he admitted telling O'Grady about the safe in Ms. Bostian's house and accompanying O'Grady to the location. Defendant also admitted helping O'Grady put the safe in a car and later accepting money from O'Grady that came from the safe. However, he denied going into the house or playing any role in the robbery and murder.

If the jury believed defendant's version of events and discounted the State's circumstantial evidence, it could have rationally found him guilty of participating in a theft because he admitted having knowledge of a safe in the victim's home, helping O'Grady put the safe in a car outside of the victim's residence and hiding it in the woods; and guilty of theft/receiving by his conduct with the safe and by accepting money from O'Grady several days later after helping him break open the safe. Moreover, the jury's acceptance of this version of events could have rationally given rise to an acquittal on the charge of robbery (and therefore felony-murder) on the basis that defendant simply did not actively participate in O'Grady's efforts inside the home and in using force against the victim in the course of stealing the safe.

A theft/receiving charge was "clearly indicated" by the evidence at trial, specifically, defendant's statement. See Jenkins, supra, 178 N.J. at 361. This does not appear to be a case where the trial court would have had to "scour the record in detail to find . . . support" in the alleged facts, see Rivera, supra, 205 N.J. at 490, in order to determine that the jury could potentially find defendant guilty of the lesser-included offense of theft if it believed his statement.

We note a significant irony in this regard. If defendant had prevailed on his motion to suppress the statement, there would have been little or no basis in the record for the lesser-included charge. If the State had succeeded, without the statement, to prove defendant's complicity in the crimes charged, the questions that were submitted to the jury by the court would have been essentially unflawed.

The court's omission to instruct the jury on the lesser-included offense worked significantly to defendant's prejudice. In the extant circumstances, i.e., without the benefit of such an instruction, if the jury believed defendant that he was intoxicated and never entered Ms. Bostian's house, it may have opted to resolve any doubts it had -- because of defendant's admissions that he had told O'Grady about the safe, helped him remove it from the premises, and shared in the proceeds of the crime -- by compromising in favor of finding guilt on the robbery, burglary and criminal mischief charges because it had been given no option of finding him guilty of theft/receiving as a lesser-included element of the robbery charge. In terms used by the Supreme Court, the prejudice to defendant was that the jury may have opted to "resolve its doubt in favor of conviction" on the greater robbery charge (and the burglary and criminal mischief charges) because the uncharged lesser offense of theft was not an option. See Sloane, supra, 111 N.J. 293, 299 (1988).

For these reasons, we hold the omission to instruct the jury on the lesser-included offense of theft/receiving to have been plain error.


Accordingly, we reverse the convictions for felony murder and robbery and remand for retrial. Because the burglary and criminal mischief charges were inextricably bound, in the factual sense and in respect of the jury's consideration and possible compromises, with the felony-murder and robbery charges, those convictions are vacated, as well, and included within the scope of the remand we order.

Affirmed in part, with respect to the trial court's ruling on the admissibility of defendant's statement; reversed in part regarding the convictions; and remanded for a new trial.

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