State v. Biegenwald

• Citation: 126 N.J. 1,594 A.2d 172
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Richard BIEGENWALD, Defendant-Appellant.
• Decision Date: 08 August 1991
• Court: United States State Supreme Court (New Jersey)

Page 1

126 N.J. 1

594 A.2d 172

STATE of New Jersey, Plaintiff-Respondent, v. Richard BIEGENWALD, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Sept. 11, 1990.

Decided Aug. 8, 1991.

James J. Smith, Jr., Deputy Public Defender, and Stephen A. Caruso, Asst. Deputy Public Defender, for defendant-appellant (Wilfredo Caraballo, Public Defender, attorney).

Mark P. Stalford, Assistant Prosecutor, for plaintiff-respondent (John Kaye, Monmouth County Prosecutor, attorney).

Cherrie Madden Black, Deputy Atty. Gen., for amicus curiae, Atty. Gen., of New Jersey (Robert J. Del Tufo, Atty. Gen., attorney).

The judgment of the Court was delivered by

CLIFFORD, J.

In State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987) (Biegenwald II), we affirmed Richard Biegenwald's conviction We believe some preliminary observations appropriate. The fundamental goal in jury selection is to make certain each juror will be willing and able to follow--to obey--the court's instructions. As applied in this case that principle requires that each juror be willing and able to consider and weigh all of the evidence on aggravating and mitigating factors before reaching his or her conclusions. Defendant has killed twice before and has been convicted of other murders twice before. We are not sure, under those circumstances, how many people could fairly sit on a jury in this case. The law, however, requires jurors who would at least listen to the evidence of mitigating factors and who would conscientiously weigh that evidence in deciding the appropriate punishment. A fairly chosen jury might conclude, either unanimously or by split vote, that life imprisonment should be the punishment. In fact, a jury did so once before in another murder prosecution against this defendant.

for the murder of Anna Olesiewicz but reversed his sentence of death and remanded the case for a new sentencing proceeding. A second jury having returned a death-penalty verdict, the trial court sentenced defendant to death. Defendant appeals directly to this Court as of right. R. 2:2-1(a)(3). Because the death-qualification process of the voir dire was inadequate to ensure defendant's constitutional right to trial by a "fair and impartial jury" and therefore in conflict with the principles set forth in this Court's opinion in State v. Williams, 113 N.J. 393, 408-27, 550 A.2d 1172 (1988) (Williams II), we vacate defendant's sentence and remand.

Despite our clear directions in Williams II, and despite the prosecution's agreement with defendant's position, the trial court would not allow Biegenwald's counsel to ask the simple question whether the potential juror, knowing that this defendant had previously committed two murders, would be able to consider any other evidence, or whether those facts would result in an automatic death-penalty vote by that juror. The trial court's complex justification for its refusal masks the simplicity of the question's purpose: to find out if the juror Among the rights that Biegenwald shares with every capital-murder defendant is the right to be executed only after a verdict of a jury that has considered all of the evidence. We do not know if he was accorded that right.

would automatically impose the death penalty, as many would, regardless of the court's instructions on other evidence, once he or she knew of those other murders.

We do not seek a jury that will be one whit less revulsed than the rest of us are by this serial senseless murderer. We insist only that the jury be able, no matter how severe its reaction to the aggravating factors, at least to consider the mitigating factors and weigh them in accordance with the court's instructions. Today's decision rests on a proposition that is at once simple and at the very heart of our criminal-justice system: even this multiple murderer is entitled to a fair trial, one that includes a jury-selection process that ensures that the jury will decide his fate according to law.

I FACTS AND PROCEDURAL HISTORY

The facts and prior procedural history of this case are fully set forth in Biegenwald II, supra, 106 N.J. at 18-25, 524 A.2d 130, and State v. Biegenwald, 110 N.J. 521, 525-27, 542 A.2d 442 (1988) (Biegenwald III). Thus we limit our recitation to the facts and history relevant to this appeal.

On August 27, 1982, eighteen-year-old Anna Olesiewicz and a friend, Denise Hunter, drove from Camden to the Asbury Park area. While at the Asbury Park boardwalk, Hunter left Olesiewicz to use a bathroom. When Hunter returned, she was unable to find Olesiewicz and eventually proceeded alone to her uncle's home in Neptune City. The following morning, not having heard from Olesiewicz, Hunter filed a missing-person report.

On January 14, 1983, a skeleton later identified as that of Anna Olesiewicz was discovered in a vacant lot in Ocean Township. There were four bullet holes in the skull. Testimony at the guilt-phase trial indicated that the bullet wounds had been the cause of death. The tissue that remained was inadequate for purposes of blood-alcohol or chemical tests.

One week after the skeleton was discovered, Theresa Smith disclosed to the police that Biegenwald was involved in the shooting. Smith had lived with Biegenwald and his wife, Diane, from June through October 1982 in a multi-apartment building in Asbury Park. Smith reported that she and defendant had become friendly and that she had become defendant's protege. Defendant had encouraged her to find and kill a victim to prove her toughness. On the night of Olesiewicz's disappearance, Smith had been driving around shore towns with a co-worker, whom she had planned to kill in keeping with a scheme she had formulated with Biegenwald. Fortunately for her co-worker, Smith lost her resolve, informed defendant by telephone that she could not proceed as arranged, and returned to the Biegenwald apartment to sleep.

Smith claimed that Biegenwald had awakened her that night for reasons she could not recall. Before returning to sleep Smith looked out a window and saw a "shadow of a body" sitting in the car that Biegenwald had given to her. As recounted in Biegenwald II,

[a]t the end of the next day Biegenwald took Smith into the garage where he lifted a mattress to show Smith a female body in unzipped jeans, a dark shirt and no shoes. Smith did not see the face because a large green plastic bag covered the head and was secured around the neck. Biegenwald asked Smith to touch the body--to "pick her leg up" and tell him how it felt. The defendant told Smith he had shot the victim in the head after meeting her on the boardwalk, telling her he had marijuana, and taking her back to the house. Biegenwald told Smith that Olesiewicz had been intended to be Smith's first victim, but when he had tried to waken Smith while the victim was still alive, Smith would not get up. [106 N.J. at 19, 524 A.2d 130.]

According to Smith, Biegenwald removed from the victim's finger a black and gold ring and later gave it to Smith. The next day Biegenwald and Dherran Fitzgerald, a tenant in the On the basis of Smith's statement, the police arrested Biegenwald, his wife, Diane, and Fitzgerald. They found the murder weapon in Fitzgerald's apartment. The only ammunition found in the house that fit the murder weapon was located in a bag near the basement room in which Biegenwald slept. The black and gold ring--later identified as having belonged to Olesiewicz--was discovered in Diane's jewelry box.

same building, disposed of the body in the vacant lot in Ocean Township.

A jury found Biegenwald guilty of knowing and purposeful murder and sentenced him to death. This Court affirmed defendant's guilt-phase conviction but reversed the sentence because of an erroneous charge to the jury concerning the weighing of aggravating and mitigating factors. 106 N.J. at 18, 524 A.2d 130. We remanded for a new sentencing proceeding. Ibid.

In advance of the new proceeding, the court denied a motion of one of defendant's attorneys to be relieved as counsel. The court likewise denied the State's motion for an order allowing Biegenwald's conviction for the murder of William Ward to be admitted as additional evidence of an aggravating factor, but this Court ultimately granted that request. (Biegenwald III, supra, 110 N.J. 521, 542 A.2d 442 (distinguishing State v. Biegenwald, 96 N.J. 630, 477 A.2d 318 (Biegenwald I), clarified, 97 N.J. 666, 483 A.2d 184 (1984)), based on an interim amendment of the murder statute and different status of the conviction at the time of its intended use). Finally, defendant moved to charge the jury separately on six proffered bases for establishing the catch-all mitigating factor, see N.J.S.A. 2C:11-3c(5)(h), essentially requesting that the jury be told to consider each basis for applying that factor as an independent mitigating factor. The court denied that motion as well.

Jury selection commenced on January 17, 1989, and lasted three days. On the first day, the trial court delivered a general orientation to prospective jurors. Following hardship excusals Before proceeding to individual voir dire, the court had prospective jurors complete a questionnaire that included questions concerning prior knowledge of or contact with defendant, the anticipated witnesses, the attorneys, and knowledge of a murder case involving defendant. The questionnaire did not inquire about the venireperson's views on the death penalty.

a pool of eighty-eight venirepersons remained. The court told the members of the venire about the Biegenwald resentencing proceeding, informing them that Biegenwald had been convicted of murder and that the Legislature had designed a system under which the sentence for a capital-murder defendant is determined in a separate proceeding from that for the determination of guilt. It explained that the proceeding for which they were being considered as jurors was solely for the purpose of sentencing. The court described in general terms the...