STATE OF NEW JERSEY v. DAVID HENRY

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3879-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DAVID HENRY,

     Defendant-Appellant.
________________________

                   Submitted September 29, 2020 – Decided November 13, 2020

                   Before Judges Messano and Suter.

                   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).

                   Jill S. Mayer, Acting Camden County Prosecutor,
                   attorney for respondent (Kevin J. Hein, Special Deputy
                   Attorney General/Acting Assistant Prosecutor, of
                   counsel and on the brief).

                   Appellant filed a pro se supplemental brief.
PER CURIAM

      A jury convicted defendant David Henry of the lesser-included offense of

aggravated manslaughter in the death of his wife, Jacqueline, and the court

sentenced him to a twenty-two-year term of imprisonment with an eighty-five-

percent period of parole ineligibility. At trial, the State's medical examiner, Dr.

Paul J. Hoyer, concluded that Jacqueline died as the result of ligature

strangulation. State v. Henry, No. A-5663-07 (App. Div. Apr. 15, 2011) (Henry

I) (slip op. at 17).1 Defendant told investigators that he and his wife were alone

in their home when he "heard a 'loud crash[]'" and discovered his wife lying on

the floor gasping for air. Id. at 2–3. The defense expert, Dr. Karl O. Schwarz,

opined that even though Jacqueline was still alive when emergency medical

responders arrived and no ligature was found by authorities at the scene,

Jacqueline died as the result of a "self-inflicted hanging," part of an "autoerotic"

episode in which a person "enhance[s] sexual feeling by depriving themselves




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).
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of oxygen."    Id. at 17 (alteration in original).    We affirmed defendant's

conviction and sentence on direct appeal. Id. at 2.

      Defendant filed a timely petition for post-conviction relief (PCR) alleging

various claims of ineffective assistance of counsel (IAC). State v. Henry, No.

A-0212-14 (App. Div. June 14, 2016) (Henry II) (slip op. at 4). The PCR judge,

Edward J. McBride, Jr., rejected the arguments made by appointed PCR counsel

and defendant in a pro se supplemental brief, and he denied the petition. Id. at

5–6. Defendant appealed, and, as part of a pro se supplemental appellate brief

and appendix, he supplied an affidavit from Dr. Schwarz, dated March 17, 2015,

more than seven years after trial. Id. at 6–7. Dr. Schwarz stated that he had

many disagreements with defense counsel and suffered from various medical

ailments and depression at the time of trial. Id. at 7.   Most importantly, Dr.

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

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             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."

             [Id. at 7–8 (alterations in original).]

      Noting the affidavit was never presented to Judge McBride, we remanded

the matter

             so that the . . . judge may consider [Dr.] 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 [Dr.]
             Schwarz's trial testimony and 2) defendant's request for
             a new trial based upon "newly-discovered evidence."

             [Id. at 14.]

In all other respects, we affirmed the denial of defendant's PCR petition. Ibid.

      On remand, Judge McBride consider oral argument and concluded in a

thorough written opinion that defendant failed meet the standards for a new trial

based on newly discovered evidence. Citing the tripartite test enunciated by the

Court in State v. Carter,  85 N.J. 300, 314 (1981), Judge McBride concluded that

Dr. Schwarz's new theory of the cause of Jacqueline's death was merely a

"newly[-]formed, self-contradictory opinion[,]" and there was no support for Dr.

Schwarz's claim that peer review was unavailable at an earlier time. The judge


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found that unlike the "detailed, exhaustive affidavit" supplied on PCR by the

defendant in State v. Behn,  375 N.J. Super. 409 (App. Div. 2005), Dr. Schwarz's

affidavit failed to demonstrate that "the peer review that prompted [him] to

second-guess his [trial] opinion was 'not discoverable by reasonable diligence'

before trial." The judge also concluded that the new theory as to the cause of

Jacqueline's death, even if presented to the jury, would not have altered the

outcome of the trial. Judge McBride also addressed and rejected the remaining

IAC claims relating to trial counsel's interactions with Dr. Schwarz and the

doctor's medical condition during trial. However, the judge determined that Dr.

Schwarz's claim that the "unusual forensic opinion he presented at trial had

never been subjected to peer review beforehand[,]" and whether defense counsel

was aware of this, required an evidentiary hearing.

      At the hearing, the State called trial counsel as its sole witness; defendant

did not testify, nor did he call any witnesses or supplement Dr. Schwarz's

affidavit. Trial counsel, a certified criminal trial attorney, testified at length

about his experience, the amount of time he spent preparing a defense , and his

retention of Dr. Schwarz as an expert. Counsel explained that he initially

developed a working relationship with another expert who indicated a

familiarity with similar cases where people had fallen, suffered bruising, and


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died. However, after working on the case for several months, that expert advised

counsel that he could no longer offer such an opinion at trial because the bruising

on Jacqueline's neck indicated strangulation.

      Counsel discovered Dr. Schwarz's name while researching cases involving

ligature strangulation and contacted an attorney who had used the doctor as an

expert. She recommended Dr. Schwarz to trial counsel, and he retained the

doctor. After the doctor concluded Jacqueline's death may have resulted from

autoerotic activity, counsel attended a seminar in Las Vegas where noted

forensic scientists discussed the topic. Trial counsel discussed Dr. Schwarz's

theory with other lawyers and recalled that none criticized the strategy. While

he admitted never asking Dr. Schwarz if his theory had been "peer reviewed,"

counsel had thoroughly reviewed the doctor's resume and knew he had qualified

as an expert at other trials. In the end, counsel concluded calling the doctor as

a witness could create reasonable doubt at trial, and, he noted that the jury

acquitted defendant of murder and found him guilty of the lesser-included crime

of aggravated manslaughter.

      In a comprehensive written opinion, Judge McBride explained that he

found trial counsel's testimony "credible in all respects." Recounting some of

the testimony, the judge concluded counsel's decision to call Dr. Schwarz as a


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witness at trial "reflected the reasoned exercise of professional judgement[.]"

The judge rejected the argument that counsel's failure to have Dr. Schwarz's

opinion reviewed by peers demonstrated ineffective assistance, concluding that

counsel had "adequately investigated the issues and made a strategic decision to

proceed with full awareness of the relative risks and benefits." The judge further

concluded that "there [was] not a reasonable probability that the outcome would

have been different had the defense not presented to the jury Dr. Schwarz's

autoerotic hanging theory."       Judge McBride entered an order denying

defendant's PCR petition, and this appeal followed.

      Before us, assigned counsel raises a single issue, i.e., that trial counsel

rendered ineffective assistance because he produced an expert witness at trial

who testified "to an unprecedented theory . . . which had not been peer-

reviewed[.]" In his pro se supplemental brief, defendant raises several points

for our consideration, which we discuss seriatim.

      Having considered these arguments in light of the record and applicable

legal standards, we affirm.

                                        I.

      To establish an IAC claim, a defendant must satisfy the two-prong test

formulated in Strickland v. Washington,  466 U.S. 668, 687 (1984), and adopted


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by our Supreme Court in State v. Fritz,  105 N.J. 42, 58 (1987). First, he must

show "that counsel made errors so serious that counsel was not functioning as

the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting

Strickland,  466 U.S. at 687). Second, a defendant must show by a "reasonable

probability" that the deficient performance affected the outcome. Fritz,  105 N.J.

at 58.   "A reasonable probability is a probability sufficient to undermine

confidence in the outcome." State v. Pierre,  223 N.J. 560, 583 (2015) (quoting

Strickland,  466 U.S.  at 694; Fritz,  105 N.J. at 52).

      Importantly, "[o]ur standard of review is necessarily deferential to a PCR

court's factual findings . . . that are supported by sufficient credible evi dence in

the record." State v. Nash,  212 N.J. 518, 540 (2013) (citing State v. Harris,  181 N.J. 391, 415 (2004)). We review de novo, however, the trial court's application

of those facts to the legal principles involved. Harris,  181 N.J. at 416.

      In assessing defendant's claim, we "give great deference to counsel's

performance and must strongly presume that the attorney's conduct constituted

reasonable professional assistance[,]" State v. Petrozelli,  351 N.J. Super. 14, 21–

22 (App. Div. 2002) (citing Strickland,  466 U.S. at 689), remaining wary to

"avoid viewing the performance under the 'distorting effects of hindsight.'"

State v. Norman,  151 N.J. 5, 37 (1997) (quoting Strickland,  466 U.S. at 689).


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"As a general rule, strategic miscalculations or trial mistakes are insufficient to

warrant reversal 'except in those rare instances where they are of such magnitude

as to thwart the fundamental guarantee of [a] fair trial.'" State v. Castagna,  187 N.J. 293, 314–15 (2006) (alteration in original) (quoting State v. Buonadonna,

 122 N.J. 22, 42 (1991)). Counsel's "strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable[.]" Strickland,  466 U.S.  at 690.

      Defendant contends that despite Judge McBride's factual findings, trial

counsel's decision to produce Dr. Schwarz as a witness, knowing his theory

would be attacked on cross-examination and had not been subjected to peer

review, was presumptively per se ineffective assistance. See United States v.

Cronic,  466 U.S. 648, 658 (1984). "[W]hen the level of counsel's participation

makes the idea of a fair trial a nullity, no prejudice need be shown. It is

presumed." State v. Davis,  116 N.J. 341, 352 (1989) (citing Cronic,  466 U.S.
 648). "An example of the Cronic presumption would be a failure by counsel for

the defendant to cross-examine a key prosecution witness." Ibid. (citing Cronic,

 466 U.S. at 659).

      As Judge McBride found, trial counsel spent countless hours working with

Dr. Schwarz, provided him with the necessary information to formulate a


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defense, and independently researched the autoerotic strangulation theory. The

forensic evidence adduced by the State was that Jaqueline died from ligature

strangulation, and only she and defendant were home at the time. Defendant

gave authorities conflicting versions of the evening's events, and, at one point,

suggested a known intruder entered the home and mistook Jacqueline for

defendant's mother, against whom the intruder bore a grudge. Henry I, slip op.

at 2–12. Defendant's explanation for how his wife died — that she must have

fallen, bruised her neck, and stopped breathing as a result — was unsupported

by any objective fact or medical opinion.

      "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. We reject the claim that trial counsel's decision to call Dr. Schwarz

as a witness and offer his expert opinion at trial was per se ineffective assistance.




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                                        II.

      In his pro se supplemental brief, defendant contends he was entitled to a

new trial based on newly-discovered evidence, i.e., Dr. Schwarz's affidavit and

"scientific information and studies" he provided to Judge McBride in his

submissions.2 He also argues that Dr. Schwarz's affidavit alone was sufficient

to justify a new trial. We disagree.

      A party is entitled to a new trial based on newly discovered evidence if

the evidence is "(1) material to the issue and not merely cumulative or

impeaching or contradictory; (2) discovered since the trial and not discoverable

by reasonable diligence beforehand; and (3) of the sort that would probably

change the jury's verdict if a new trial were granted." Carter,  85 N.J. at 314.

Prongs one and three are "inextricably intertwined." Nash,  212 N.J. at 549.

"'[E]vidence [that] would shake the very foundation of the State's case and

almost certainly alter the earlier jury verdict' could not be categorized as 'merely

cumulative.'" Ibid. (quoting State v. Ways,  180 N.J. 171, 189 (2004) (second

alteration in original). "The power of the newly discovered evidence to alter


2
  The referenced "scientific information and studies" are not part of the appellate
record. However, defendant's pro se brief supplies his summary of the
information, which he claimed supported a finding that Jacqueline's death was
caused by "the accidental activation of the carotid sinuses and the vagus nerve
resulting in a traumatic carotid sinus reflex death."
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the verdict is the central issue, not the label to be placed on that evidence." Id.

at 549–50 (quoting Ways,  180 N.J. at 191–92).

      Here, we agree with Judge McBride that Dr. Schwarz's affidavit was little

more than a contradiction of his original opinion about the cause of Jacqueline's

death. The affidavit provided no support for the doctor's new opinion that

Jacqueline died "of accidental blow to the neck," other than discussions he had

with unnamed forensic pathologists in Israel. This lack of specificity also

undermined Dr. Schwarz's assertion that this new opinion was dependent on "the

continuing evolution of forensic science," implying, without any support, that

the facts and data that were the bases for the new opinion could not have been

discovered by the exercise of reasonable diligence beforehand.          Moreover,

defense counsel testified that he, defendant and Dr. Schwarz discussed the very

theory the doctor now espoused — Jacqueline died after falling and striking the

sharp end of a bookcase — before trial, and Dr. Schwarz rejected it.

      Judge McBride did not specifically address the medical articles defendant

supplied prior to the PCR remand. Nevertheless, Dr. Schwarz's affidavit makes

no reference at all to the articles defendant now asserts support the opinion. In

other words, none of the scholarly medical literature that defendant produced




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was necessarily endorsed by the doctor as being applicable to this case. And,

defendant offered no other expert medical opinion to provide this connection.

      We also reject defendant's corollary argument, specifically that the

affidavit alone was sufficiently detailed to meet the three prongs of the new trial

standard. In Behn, which Judge McBride relied upon, the State’s ballistics

expert, an FBI agent, testified at trial that the lead fragments inside the victim's

body came from the same lead bullets the defendant possessed.  375 N.J. Super.

at 419.   On PCR, the defendant supplied specific citation to scientific research

conducted post-trial, as well as a detailed affidavit from the FBI's retired chief

forensic metallurgist that demonstrated the FBI's testing was "flawed and

scientifically invalid." Id. at 425. We concluded that this new evidence was of

such a caliber that it "would have effectively neutralized the testimony" of the

trial expert and ordered a new trial. Id. at 433. The paucity of information in

Dr. Schwarz's affidavit, compared with that supplied by the experts in Behn,

demonstrates why this argument requires no further discussion in a written

opinion. R.2:11-3(e)(2).

      In the remaining points of his pro se submission, defendant argues that the

opinions offered by both Dr. Hoyer and Dr. Schwarz at trial as to the cause of

death — ligature strangulation versus autoerotic ligature strangulation — were


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                                        13
not based upon generally accepted principles in the forensic science community.

See In re Accutane Litig.,  234 N.J. 340, 349 (2018) (discussing standards for

admissibility of expert scientific evidence under Frye v. United States,  293 F. 1013 (D.C. Cir. 1923), and Daubert v. Merrell Dow Pharms., Inc.,  509 U.S. 579

(1993)). Defendant's pro se supplemental brief goes to great length to point out

the shortcomings of both opinions based on the trial evidence and citations to

various medical literature.

      However, certainly as it relates to Dr. Hoyer, a challenge to the

admissibility of his trial testimony could have been raised on direct appeal but

was not. It is therefore barred from PCR review. R. 3:22-4. And, as already

noted, any challenge to the competency of Dr. Schwarz's trial testimony has

already been addressed in the context of defendant's IAC claims. See DiFrisco,

 174 N.J. at 244.

      Defendant also contends he met the Strickland/Fritz standard and

demonstrated ineffective assistance of trial counsel requiring reversal of his

conviction and a new trial. We have already addressed that argument and it

requires no further discussion. R. 2:11-3(e)(2).

      Lastly, defendant argues Judge McBride erred by not conducting an

evidentiary hearing that included Dr. Schwarz's testimony. He notes that prior


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                                      14
to rendering his written decision on the new trial application, the judge mused

that any evidentiary hearing might necessarily include both trial counsel and Dr.

Schwarz. However, defendant acknowledges in his brief that this issue was

never raised below. Indeed, our review of the transcripts of the proceedings

fails to reveal any indication that PCR counsel intended to produce Dr. Schwarz

as a witness or that she required the court's assistance to compel his attendance.

Nothing in the record indicates that PCR counsel sought to supplement the

doctor's affidavit, already nearly four years old at the time of the remand. On

the record provided, we cannot conclude Judge McBride erred in not sua sponte

requiring Dr. Schwarz's appearance at the remand hearing.

      Affirmed.




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