On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 08-01-0024.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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:
THE TRIAL JUDGE ERRED IN FAILING TO CHARGE RECEIVING STOLEN PROPERTY/THEFT AS A LESSER INCLUDED OFFENSE OF ROBBERY, AS THE EVIDENCE CLEARLY INDICATED THE STRONG POSSIBILITY THAT THE DEFENDANT, IF GUILTY, WAS GUILTY OF THEFT AND NOT ROBBERY. (Not raised below) POINT II
THE TRIAL JUDGE ERRED IN DENYING THE MOTION TO SUPPRESS THE DEFENDANT'S STATEMENT, AS THERE WAS EVIDENCE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT, WHILE BEING QUESTIONED BY THE POLICE, WAS IN PAIN AND SUFFERING FROM THE EFFECTS OF SERIOUS DOG BITES.
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 ...