STATE OF NEW JERSEY v. DAVID HENRY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID HENRY,

Defendant-Appellant.

____________________________________________

June 14, 2016

Submitted May 2, 2016 Decided

Before Judges Messano and Simonelli.

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

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

MaryEva Colalillo,Camden County Prosecutor, attorneyfor respondent(Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a jury trial, defendant David Henry was convicted of aggravated manslaughter for the death of his wife, Jacqueline, and sentenced to a twenty-two-year term of imprisonment with an eighty-five percent period of parole ineligibility. We summarize the salient evidence at trial as described in our prior opinion.1

Defendant and his wife were home alone late in the evening of March 29, 2005. State v. Henry, No. A-5663-07 (App. Div. Apr. 15, 2011) (slip op. at 2). Defendant summoned emergency personnel to the home after allegedly hearing a "loud crash" finding his wife gasping for air. Ibid. Jacqueline had a fresh bruise on her throat, and medical workers had difficulty intubating her. Id. at 4. She died shortly thereafter at the hospital. Id. at 5.

The State's case relied heavily upon defendant's inconsistent statements regarding the night's events, and his improbable explanations for how his wife's throat became bruised. Id. at 6-10. In addition, the State's forensic evidence was critical.

The medical examiner determined that the wound to Jacqueline's throat was "fresh and had occurred within minutes of [her] death." Id. at 15. He determined that the injury was inconsistent with falling into a fixed object, an explanation offered by defendant, and was caused by force applied to her neck. Id. at 16. The medical examiner found defensive bruises on Jacqueline's hand and forearm that were "consistent with a victim trying to pull an assailant's hands off." Ibid. He ruled out other natural causes for Jacqueline's death and concluded she died from "ligature strangulation." Id. at 17.

Defendant testified at trial and denied involvement in his wife's death. Ibid. He also produced Dr. Karl O. Schwarz as an expert.

[Schwarz] 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.

[Ibid.]

The jury acquitted defendant of murder but convicted him of the lesser-included offense of aggravated manslaughter. Id. at 18.

We affirmed defendant's judgment of conviction on direct appeal. Id. at 49. The Supreme Court denied defendant's petition for certification, see 208 N.J. 339 (2011), and the United States Supreme Court denied his petition for certiorari. Henry v. New Jersey, ___ U.S. ___, 132 S. Ct. 1063, 181 L. Ed. 2d 779 (2012).

Defendant filed a timely pro se petition and brief for post-conviction relief (PCR) in which he raised five legal arguments: prosecutorial and police misconduct rendered the trial unfair; judicial misconduct and prejudice rendered the trial unfair; trial counsel provided ineffective assistance; appellate counsel provided ineffective assistance; and the testimony of defendant's "ineffective expert" rendered the trial unfair. PCR counsel was appointed, and she filed a brief in support of the petition.2 Oral argument took place before Judge Edward J. McBride, Jr. on May 30, 2014.

Judge McBride concluded that defendant's claims of misconduct by the State and the judiciary were procedurally-barred pursuant to Rule 3:22-4, which provides, with certain exceptions, that "[a]ny ground for relief not raised . . . in any appeal taken . . . is barred from assertion in a proceeding" for PCR. Nonetheless, the judge concluded that "those claims are . . . also substantively barred because they are not supported by evidence."

Judge McBride then considered defendant's claims of ineffective assistance of counsel (IAC). He rejected defendant's argument that trial counsel failed to conduct an adequate pre-trial investigation, concluding "defendant allege[d] no facts . . . [,] posit[ed] no examples of counsel's failures to investigate . . . [and] there's no evidence of which witnesses were or weren't interviewed." The judge also noted that trial counsel vigorously cross-examined the State's witnesses and presented "substantial defenses, including expert Dr. Schwarz, who testified that the cause of death was self-inflicted hanging." Judge McBride further stated that defendant produced no affidavits or certifications from "uncalled witnesses" demonstrating allegedly exculpatory testimony. The judge also rejected defendant's IAC claims regarding trial counsel's strategic decisions, and failure to file pre-trial motions. Moreover, Judge McBride concluded any claims that counsel failed to adequately prepare defendant for his trial testimony were "bald assertions." The judge also rejected defendant's IAC claims directed toward appellate counsel and considered and rejected the additional claims contained in defendant's pro se submission.

Finally, Judge McBride addressed defendant's "ineffective expert" claim, which the judge found to be "a viable argument" that was "subsumed under the ineffective assistance of counsel claim." However, the judge concluded defendant's contentions that Schwarz and trial counsel "fought . . . throughout the entire pretrial and trial process," and that neither asked for brain or heart tissue samples from the autopsy, lacked corroboration in the record. Judge McBride also rejected defendant's contention that "newly discovered evidence" a realization that Schwarz's work was never peer reviewed warranted a new trial. The judge denied defendant's petition and entered the June 2, 2014 order under review.

In his appellate brief, defendant re-asserted three specific IAC claims: trial counsel failed to adequately consult with him; failed to properly prepare him to testify; and trial counsel's use of Schwarz as a medical expert "eviscerated the defense." In a supplemental pro se appellate brief, defendant re-iterated the five points he raised in his original pro se PCR brief, and further argued that his claims of prosecutorial, police and judicial misconduct and prejudice were not procedurally-barred by Rule 3:22-4. Defendant's pro se supplemental brief included a three-page affidavit from Schwarz dated March 17, 2015. The State moved to strike defendant's supplemental appendix, since the affidavit was not part of the record before Judge McBride. A panel of our colleagues reserved decision on the State's motion for the panel hearing the merits of defendant's appeal.

In his untimely affidavit, Schwarz asserted that he had many disagreements before and during trial with defense counsel. He further stated that he was not provided with brain and heart samples from the autopsy, except for "contaminated slides of lung tissue" that were replaced after a lengthy delay. Schwarz also stated that he was suffering from various medical ailments and "depression" during trial, evidenced by the interruption of his testimony for one day because he was unable to attend.

Finally, Schwarz asserted that he continued to review the case with colleagues at the National Institute of Forensic Medicine in Israel and came to the conclusion that Jacqueline's death was accidental. He opined that Jacqueline "fainted and collapsed into the sharp end of a bookcase, precipitating a fatal vasovagal reflex. This accidental blow to the neck activated the vagal nerve and caused her heart rate and breathing to slow down." Schwarz claimed that "[d]ue to the continuing evolution of forensic science and the complexity of the forensic findings in this case, it was impossible to render proper expert forensic assistance at trial." Finally, Schwarz asserted that "[n]one of this information was available prior to [defendant's] trial[,]" and "[n]either the State's expert nor the defense[] expert alone could adequately address the complexity of the forensic findings in this case without peer review, which did not occur until after the trial."

We now address the points raised in both appellate counsel's and defendant's pro se brief. We initially concur with Judge McBride that defendant's pro se contentions of prosecutorial, police and judicial misconduct were both procedurally-barred by Rule 3:22-4 and lacked any substantive merit. Defendant's citation to inconsistencies between various documents, such as police reports, and witnesses' trial testimony, as well as repeated allegations of legal errors by the pre-trial and trial judges, do not support any assertions of misconduct or prejudice. We turn then to defendant's IAC claims.

To establish an IAC claim, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

To satisfy prong one, [a defendant] ha[s] to "overcome a 'strong presumption' that counsel exercised 'reasonable professional judgment' and 'sound trial strategy' in fulfilling his responsibilities." "[I]f counsel makes a thorough investigation of the law and facts and considers all likely options, counsel's trial strategy is 'virtually unchallengeable.'" Mere dissatisfaction with a "'counsel's exercise of judgment'" is insufficient to warrant overturning a conviction.

[State v. Nash, 212 N.J. 518, 542 (2013) (citations omitted) (first quoting State v. Hess, 207 N.J. 123, 147 (2011); then quoting State v. Chew, 179 N.J. 186, 217 (2004); and then quoting State v. Echols, 199 N.J. 344, 358 (2009)).]

Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. "If [a] defendant establishes one prong of the Strickland-Fritz standard, but not the other, his claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012) (citing Echols, supra, 199 N.J. at 358). We apply the same standard to defendant's claims of ineffective assistance of appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007) (citing State v. Morrison, 215 N.J. Super. 540, 546 (App. Div.), certif. denied, 107 N.J. 642 (1987)), certif. denied, 194 N.J. 444 (2008).

"A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief . . . ." R. 3:22-10(b). A "prima facie case" requires that a defendant "demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits," ibid., and must be supported by "specific facts and evidence supporting his allegations." State v. Porter, 216 N.J. 343, 355 (2013); see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) ("[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel"), certif. denied, 162 N.J. 199 (1999).

We agree in large part with Judge McBride's analysis regarding defendant's IAC claims. Two of appellate counsel's specific points, i.e., trial counsel failed to adequately consult with defendant and failed to properly prepare defendant to testify, are supported only by defendant's uncorroborated assertions and find no other support in the record. Two arguments in defendant's pro se submission regarding IAC claims against trial and appellate counsel lack sufficient merit to warrant any discussion. R. 2:11-3(e)(2). It suffices to say that the contentions are essentially second-guessing of the strategies employed by trial and appellate counsel.

We are, however, convinced that Schwarz's affidavit contains important information regarding defendant's IAC claim as it relates to the decision to call Schwarz as an expert witness, and the soundness of Schwarz's unusual forensic opinion at trial. This information should have been before Judge McBride. We therefore deny the State's motion to strike the affidavit and those portions of defendant's pro se brief that refer to it.

Defendant argues that trial counsel provided ineffective assistance by "fail[ing] to measure the abysmal incompetence of Dr. Schwarz." He points in particular to trial testimony in which Schwarz was cross-examined about his opinion that Jacqueline suffered a delayed death from autoerotic asphyxia and was able to secrete the deadly ligature before her demise. Confronting Schwarz at trial with a 2006 article from the Journal of Forensic Science regarding such deaths, the prosecutor asked

Q. Would it surprise you to learn one of their conclusions is, and I quote, "worth mentioning, the method in all the delayed deaths in autoerotic asphyxia consisted of foreign body insertion." In other words, there were no delayed deaths in . . . the literature as a result of hanging as a method of asphyxia?

. . . .

Q. So what we have is the only case in recorded history where there was a delayed death?

A. I don't know. I didn't review the history, but that is my opinion.

. . . .

Q. Yes, it is, in your opinion.

A. That's correct. This article doesn't deal with delayed deaths due to hanging.

Q. Because they found none?

A. Okay. They found none . . . that doesn't mean none exists.

In his pro se submission to Judge McBride, and now again before us, defendant also asserted a claim that he was entitled to a new trial based upon "newly discovered evidence," specifically peer review that implicitly supported his testimony at trial that Jacqueline suffered the injury to her throat as a result of collapsing and striking a piece of furniture.

As Judge McBride noted, "New Jersey courts . . . continue to evaluate the competence of experts within the framework of a defendant's claim of ineffective assistance of counsel." State v. DiFrisco, 174 N.J. 195, 244 (2002). The cognizable claim is not that the expert may have provided "substandard services," but rather "the deficient performance that implicates a defendant's right . . . is the performance of counsel who obtained the expert's examinations or presented the evidence at trial." Ibid. Additionally,

[t]o meet the standard for a new trial based on newly discovered evidence, defendant must show that the evidence is 1) material, and not 'merely' cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was 'not discoverable by reasonable diligence beforehand'; and 3) that the evidence 'would probably change the jury's verdict if a new trial were granted.'

[State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)).]

As we already noted, Judge McBride rejected the IAC claim as it related to Schwarz's testimony, as well as the unsupported argument made in defendant's pro se submission that he was entitled to a new trial based upon newly-discovered forensic expert opinion. However, the judge did not have the benefit of Schwarz's affidavit, which, to some degree, supports defendant's previously uncorroborated assertions of conflict between the expert and counsel before and during trial.

The affidavit also highlights the seeming lack of scientific support for Schwarz's opinion that Jacqueline died of delayed autoerotic asphyxiation. While not inconsistent with statements defendant gave to law enforcement officers and others, that opinion nonetheless required the jury to credit Schwarz's unusual explanation that Jacqueline had discarded or hid the autoerotic ligature before she collapsed on the floor and was found by defendant.

We are convinced that a remand is required so that the Law Division judge may consider Schwarz's affidavit and whether, in conjunction with the entire record, defendant has established a prima facie case for PCR limited to 1) his IAC claim regarding Schwarz's trial testimony and 2) defendant's request for a new trial based upon "newly-discovered evidence." We eschew the opportunity to express our own independent judgment in this regard, because the State has not had the opportunity to respond in any manner to the affidavit.

If the judge concludes that defendant has presented a prima facie case, he shall conduct an evidentiary hearing and consider the merits of these aspects of defendant's PCR petition. In all other respects, we affirm the order under review, and the judge need not entertain any further argument on the remaining issues on remand.

Affirmed in part; reversed in part and remanded for further proceedings consistent with this opinion.

1 Although citing an unpublished opinion is generally forbidden, we do so here to provide a full understanding of the issues presented and pursuant to the exception in Rule 1:36-3 that permits citation "to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law." See Badiali v. N.J. Mfrs. Ins. Grp., 429 N.J. Super. 121, 126 n.4 (App. Div. 2012), aff'd, 220 N.J. 544 (2015).

2 Pursuant to Rule 2:6-1(a)(2), the brief is not part of the appellate record.