State v. Dreher

• Citation: 695 A.2d 672,302 N.J.Super. 408
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John W. DREHER, Defendant-Appellant.
• Decision Date: 20 June 1997
• Court: New Jersey Superior Court – Appellate Division

Page 408

302 N.J.Super. 408

695 A.2d 672

STATE of New Jersey, Plaintiff-Respondent, v. John W. DREHER, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued March 18, 1997.

Decided June 20, 1997.

Paul Mogin (Williams & Connolly) of the Washington, D.C. bar, admitted pro hac vice, Washington, DC, for appellant (Stern & Greenberg, Roseland, and Mr. Mogin, attorneys; Mr. Mogin, of counsel; Marcie R. Ziegler, Dan S. Sokolov, Washington, DC, Herbert J. Stern, Jeffrey Speiser, Roseland, and Mr. Mogin, on the brief).

Joseph Connor, Jr., Assistant Prosecutor, and Josephine R. Potuto, Special Assistant Prosecutor, for respondent (John B. Dangler, Morris County Prosecutor, attorney; James A. Cannon, Thomas J. Critchley, Jr., and John McNamara, Jr., Assistant Prosecutors, and Mr. Connor and Ms. Potuto, on the brief).

Before Judges MICHELS, MUIR, Jr., and KLEINER.

The opinion of the court was delivered by

KLEINER, J.A.D.

Defendant appeals from his conviction of the purposeful and knowing murder of his wife. Defendant's previous conviction for this same crime resulted in a reversal on appeal and a remand for a new trial.

On this second appeal, defendant raises the following points of error:

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

II. THE TRIAL COURT ERRONEOUSLY PERMITTED THE STATE TO ELICIT A PURPORTED EXPERT OPINION CONCERNING TIME OF DEATH THAT WAS BASED ON AN ARBITRARY AND UNSCIENTIFIC METHODOLOGY.

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III. THE TRIAL COURT'S SUPPLEMENTAL INSTRUCTION IMPROPERLY DILUTED THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT.

IV. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO RELY ON DEFENDANT'S PRE-ARREST SILENCE AS PROOF OF GUILT.

V. THE TRIAL COURT ERRED IN ITS RULINGS CONCERNING THE STATE'S EXTRAORDINARY ACTION IN CAUSING A POLICE CAPTAIN TO ORDER THE DESTRUCTION OF ALL CONTEMPORANEOUS NOTES.

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

VII. LETT'S TESTIMONY SHOULD HAVE BEEN EXCLUDED BECAUSE THE HYPNOSIS WAS CONDUCTED IN DISREGARD OF HURD.

VIII. THE EXCLUSION OF THE CONTEMPORANEOUS BENCH NOTES DOCUMENTING THE OBSERVATION OF A SPERM WAS ERROR.

IX. THE TRIAL COURT ERRONEOUSLY ADMITTED UNRELIABLE HEARSAY.

X. THE TRIAL COURT ERRED IN FAILING TO CONDUCT AN ADEQUATE INQUIRY INTO EVIDENCE OF EXTRANEOUS INFLUENCE ON THE JURY.

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

XII. THE TRIAL COURT ERRONEOUSLY BARRED CROSS-EXAMINATION THAT WOULD HAVE ELICITED EXCULPATORY EVIDENCE.

XIII. THE STATE VIOLATED DEFENDANT'S RIGHT TO AN INFORMED AND UNBIASED GRAND JURY.

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

I.

Defendant John W. Dreher was originally indicted in May 1987 and charged with the purposeful or knowing murder of his wife, N.J.S.A. 2C:11-3a(1) and (2); unlawful possession of a knife, N.J.S.A. 2C:39-5d; possession of a knife with an unlawful purpose, N.J.S.A. 2C:39-4d; and conspiracy to commit murder, N.J.S.A. 2C:11-3a and 2C:5-2. He was found guilty by a jury and sentenced to life in prison with a 30-year period of parole ineligibility.

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This court then reversed defendant's conviction and remanded for a new trial because of error in admitting hearsay statements made by the murder victim prior to her death and because of the prosecutor's improper reference in summation to hearsay statements made by defendant's son. See State v. Dreher, 251 N.J.Super. 300, 316-21, 598 A.2d 216 (1991), certif. denied, 127 N.J. 564, 606 A.2d 374 (1992) (hereinafter Dreher I ). We found that the errors were not harmless. See ibid.

On November 4, 1993, a Morris County grand jury returned a superseding indictment, charging defendant with purposeful murder, N.J.S.A. 2C:11-3a(1), (count one); knowing murder, N.J.S.A. 2C:11-3a(2), (count two); purposeful infliction of serious bodily injury resulting in death, N.J.S.A. 2C:11-3a(1), (count three); knowing infliction of serious bodily injury resulting in death, N.J.S.A. 2C:11-3a(2), (count four); conspiracy to commit murder, N.J.S.A. 2C:11-3a and N.J.S.A. 2C:5-2, (count five); and possession of a knife with an unlawful purpose, N.J.S.A. 2C:39-4d, (count six).

After many months of pre-trial motions, defendant's second trial commenced on March 1, 1995. The trial continued on various dates until its conclusion with a guilty verdict on all charges on May 10, 1995. Defendant's subsequent motions for a new trial or judgment of acquittal were denied as was his motion to examine the jurors. The sentencing judge merged all of defendant's convictions into the first count of purposeful murder and sentenced defendant to life imprisonment with a thirty-year period of parole ineligibility. Appropriate penalties were also assessed.

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

II.

A.

Defendant met Nance Seifrit in a bar in early 1985 while he was in El Paso, Texas for business reasons; the two began to have an

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affair. During 1985, the two kept in touch and met on several occasions. In the fall of 1985, Seifrit moved to Chatham, where defendant lived with his family.

Seifrit, the State's chief witness, who was granted immunity, testified that defendant complained that his wife was a heavy drinker and did not properly care for their two children. Defendant told Seifrit that the two of them would be happy together if he were not married. Beyond this, however, they never discussed marriage, he never asked Seifrit to marry him, and he never discussed divorcing his wife. Other witnesses, who knew defendant's wife, Gail Dreher, confirmed that the marriage had been rocky. Both of defendant's sons, Peter and David, however, testified that their parents were not having any marital problems. The two sons were both in middle school at the time of their mother's murder and were in their early twenties during the second trial. At that time, they both lived at their father's house and worked for the family's leather business.

B.

According to Seifrit, defendant called her at her mother's house on New Year's Day 1986 to make sure that she would be at her apartment in Chatham the following morning. On January 2, 1986, defendant and Seifrit made plans to confront defendant's wife and tell her about their affair. They arranged for Seifrit to come to defendant's house at about 7:30 a.m., after his sons had left for school.

When Seifrit arrived, she pulled into the driveway and parked her car in the garage as defendant had instructed. Defendant's car was in the back of the driveway, and the garage door was open. Seifrit knocked twice on a door that led from the garage into the house, but there was no answer. Instead, the door swung open by itself, and Seifrit saw the laundry room. She then saw Gail Dreher enter the laundry room, wearing a nightgown. Gail

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became upset and asked Seifrit who she was. Seifrit immediately began yelling for defendant.

Defendant came up from behind Gail and hit her with a block of wood. As Gail started to turn, defendant hit her again, on the shoulder. Defendant started to pull Gail by her arm toward the doorway, yelling for her to keep moving. The angrier defendant got, the less Gail argued. They went down the basement steps, with defendant yelling, "just move it, bitch." Gail was saying, "just do what you want, please."

Defendant yelled for Seifrit to come downstairs. She went halfway down the basement stairs, where she was able to see the lower part of Gail's legs. She then went back up and said that she would not come back down. Defendant said that he needed help. He asked Seifrit to bring him something sharp. When Seifrit replied that she did not know what defendant wanted, defendant told her to get something sharp from the kitchen, like a knife or a pair of scissors. Seifrit opened up a kitchen drawer and pulled out a knife. She went back down the stairs and saw Gail tied by her neck to a pole. Gail was in somewhat of a sitting position, but her face was blue. Defendant was kneeling beside his wife, pulling on the rope around her neck. Seifrit tossed the knife to defendant. He picked it up and stabbed Gail in the throat. Seifrit, who was standing at the bottom of the stairs while this happened, then went back upstairs.

Defendant came upstairs, removed the gloves that he had been wearing and put them, as well as the twine that he was holding, on the kitchen table. He then went to a hall closet and handed Seifrit a fur coat. He instructed her to put it in the trunk of her car, which she did. Defendant then told her to take jewelry and other items from the house and make the house look as if it had been robbed. Defendant, in the meantime, was getting dressed for work. Defendant then announced that he had to leave to pick up his father for work. Defendant told Seifrit to go back down to the basement to make sure that "everything was done" and to find everything that was on the pool table.

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When Seifrit went downstairs, she saw a metal cobbler's last ¹ on the pool table, which she picked up and dropped on Gail's head. She then picked up the knife and stabbed Gail a couple of times. Gail made no movement or noise; her head was hanging down, and Seifrit could not see her face. Seifrit went upstairs with the knife without looking for anything further on the pool table. As she started up the steps, she saw a necklace on the floor, which she picked up. She put the necklace and the knife in the pillowcase, left the house, and returned to her apartment. There, she put the pillowcase in a garbage bag, which she put in the trash cans behind her apartment. The garbage was picked up later that morning. Seifrit claimed that she had been wearing her driving gloves the entire time that she was in defendant...