A jury considering the fate of Thor Frey will wait until at least Monday to decide whether to convict him of felony murder a second time.
The jurors began their deliberations just before noon Friday, and Judge Ann R. Bartlett sent the six men and six women home for the weekend at 4:15 p.m. They will resume their work at 9 a.m. Monday.
The jurors returned to the courtroom just after 3 p.m. Friday to re-listen to a statement Frey made to police on Aug. 24, 2006 -- the day he was arrested in connection with the beating and suffocation death of 75-year Mary Bostian of Phillipsburg, Warren Co., on Aug. 18, 2006.
They first heard the 43-minute tape recording on Tuesday. On it, Frey talks about how he had been drinking and smoking pot on his birthday, Aug. 17, and that he was passed out on the grass outside Bostian's home while his friend, Donald O'Grady Jr., broke into Bostian's home in the early morning hours of Aug. 18 and stole a safe owned by Bostian's son with $25,000 in cash and coins in it.
Although Frey admits to helping load the safe into O'Grady's car and driving it to a wooded area near Bangor, Northampton Co., he steadfastly maintains he didn't go into Bostian's home or that he knew O'Grady had killed her. He also says on the tape that he hid out at the Motor Inn Hotel near Wind Gap, Northampton Co., because he believed he was being set up to take the fall for the crime
Frey was convicted of felony murder, robbery, burglary and criminal mischief in 2009 and given a 40-year sentence. In 2011, a state appellate court granted Frey a retrial. His new trial started on Jan. 2.
The biggest question facing the jurors is whether Frey committed the crime of robbery, which, Judge Bartlett explained, 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 can avoid the felony murder charge, although he could still be found guilty of a lesser charge, 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 charges of 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, it was his constitutional right, and "he is to be presumed innocent."