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Thor Frey says he won't testify in his murder retrial

By Len Righi, WFMZ.com Reporter
Published On: Jan 09 2013 12:49:24 PM CST
BELVIDERE, N.J. -

A convicted murderer who is being retried in connection with suffocation death of a Warren County woman in 2006 said he will not testify in his own defense.

The judge in the case also ruled against a defense motion to acquit Thor Frey on the four charges he is facing in the suffocation death of 75-year-old Mary Bostian in her Phillipsburg home.

Frey answered "no" when Judge Ann R. Bartlett asked him just after noon Wednesday if he would take the witness stand.

Bartlett asked Frey about his intentions after the jury left the courtroom for a lunch break a few minutes before.

First, Bartlett explained to Frey that she could instruct the jury to presume him innocent should he decline to take the witness stand.

After Frey's attorney, Michael Priarone, responded, "Your honor, we want that charge," Bartlett asked Frey about testifying.

Following Frey's reply, Priarone asked that his client be acquitted on all four charges against him -- murder, robbery, burglary and criminal mischief -- because the state had not substantiated the charges with the testimony from witnesses that began last Thursday.

Prosecutor Kelly Shelton summarized the state's case, and Judge Bartlett then ruled that enough evidence had been presented that the jury could find Frey guilty of all the charges beyond a reasonable doubt.

The jury heard from two prosecution witnesses Wednesday morning.

Dr. Isidore Mihalakis, a forensic pathologist who examined Bostian's body at the scene on Aug. 18, 2006, and did an autopsy the next day, testified that Bostian was "beaten and suffocated."

He explained the injuries to Bostian's body using a series of photos that were shown to the jury on a widescreen TV and to Frey on a laptop.

Mihalakis said several of the bruises were on Bostian's scalp, and that were probably caused "by something soft, [like a] fist."

He said he found eight bruises on the right side of her rib cage, and that five ribs were fractured.

He said the cords used to bind her wrists were not knotted, but the telephone cord used on her ankles was.

Elizabeth Cafarella testified that the mail-order company she works for, AzureGreen of Middlefield, Mass., sold two medallions with a Thor's hammer design in the Phillipsburg zip code between March 1, 2005 and Aug. 21, 2006.

Investigators found a Thor's hammer medallion in Bostian's living room, and Frey's ex-wife, Naomi, has testified that she bought two of the medallions from AzureGreen and gave one of them to Frey through his sister.

Under cross-examination, Cafarella said that AzureGreen sold 524 of the medallions between March 2005 and August 2006, and "about 40" of them were sold in Pennsylvania and New Jersey.

She also said other vendors were selling the medallions.

The start of the retrial was delayed Wednesday morning because a juror complained she was intimidated by talk coming from people at the retrial who were smoking outside the Warren County Courthouse.

Judge Bartlett spent about 90 minutes interviewing jury members individually to see if they heard anything prejudicial about the retrial, if they were intimidated by what they heard, or if their ability to be impartial has been compromised.

Before the jury was seated, she told people in the gallery that if they want to congregate or smoke, they should do so in front of the courthouse, not near the entrance-exit door.

She said jurors "feel like they're walking in on a conversation they are not supposed to hear."