NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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1 Although citing an unpublished opinion is generally forbidden, we do so here to provide a full understanding of the issues presented and pursuant to the exception in Rule 1:36-3 that permits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). A-3879-18T3 2 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
A-3879-18T3 3 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
A-3879-18T3 4 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
A-3879-18T3 5 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
A-3879-18T3 6 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
A-3879-18T3 7 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).
A-3879-18T3 8 "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
A-3879-18T3 9 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.
A-3879-18T3 10 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." A-3879-18T3 11 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
A-3879-18T3 12 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
A-3879-18T3 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
A-3879-18T3 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.
A-3879-18T3 15