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Thor Frey's fate in hands of jury

By Len Righi, WFMZ.com Reporter
Published On: Jan 30 2013 02:47:11 PM CST
Updated On: Jan 11 2013 04:34:47 PM CST

A jury of six men and six women is now deciding whether to convict Thor Frey of felony murder for a second time.

BELVIDERE, N.J. -

A jury of six men and six women is now deciding whether to convict Thor Frey of felony murder for a second time.

Judge Ann R. Bartlett told the jurors to begin their deliberations just before noon Friday, after spending more than two hours explaining the charges and the law to them.

Frey was convicted in 2009 in connection with the beating and suffocation death of 75-year Mary Bostian of Phillipsburg, Warren Co., in the early morning hours of Aug. 18, 2006, and was given a 40-year sentence. In 2011, a state appellate court granted Frey a retrial.

Frey's new trial began on Jan. 2, and over the last eight days, 23 witnesses testified for the prosecution, led by Kelly Shelton, and two for the defense, led by Michael Priarone.

Shelton tried to show that Frey and an accomplice, Donald O'Grady, killed Bostian trying to get from her the combination of a safe that contained $25,000 in money and coins put there by her son.

Priarone's defense claimed that Frey was passed out drunk on Bostian's lawn and never was in Bostian's home, even though Frey helped O'Grady put the safe in the trunk of a car and received money from it.

The biggest question facing the jurors is whether Frey committed the crime of robbery, which, Judge Bartlett explained to the jurors, means Frey had to share the same state of mind as O'Grady and inflict bodily injury on purpose.

If the jury finds Frey not guilty of robbery, he must be also acquitted on the felony murder charge, although he could still be found guilty of a lesser crime, such as receiving stolen property, according to the judge.

Bartlett pointed out that just being intoxicated does not excuse criminal behavior, unless a person is so intoxicated that he is incapable of knowing what he is doing. "That distinction is important ... and that determination must be made by you," she told the jurors.

The jury is also deciding Frey's guilt or innocence on two other charges, burglary and criminal mischief.

Bartlett advised the jurors to "weigh the evidence calmly," adding, "speculation and conjecture" should play no role in their deliberations.

She said the burden of proof beyond a reasonable doubt is on the state, "and never shifts to the defendant."

She reminded the jurors that, even though Frey chose not to testify at the retrial, that was his constitutional right, and "he is to be presumed innocent."