State v. Biegenwald
| Decision Date | 05 March 1987 |
| Citation | 524 A.2d 130,106 N.J. 13 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Richard BIEGENWALD, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
James Fagen, Asst. Prosecutor, argued the cause for plaintiff-respondent (John A. Kaye, Monmouth County Prosecutor, attorney).
Boris Moczula, Deputy Atty. Gen., argued the cause for amicus curiae, Atty. Gen. (Irwin I. Kimmelman, Former Atty. Gen., attorney).
Defendant, Richard Biegenwald, was convicted of murder and sentenced to death by a Monmouth County jury and judge in December 1983. He appeals directly to this Court as of right. See R. 2:2-1(a)(3). We affirm defendant's murder conviction. Because the trial court failed to instruct the jury properly in the sentencing phase, however, we must reverse the sentence of death and remand for a new sentencing proceeding.
On the night of August 27, 1982, eighteen-year-old Anna Olesiewicz and a friend, Denise Hunter, drove from Camden to Neptune City planning to stay at Denise's uncle's house. They went over to the Asbury Park boardwalk. Olesiewicz and Hunter sat on a boardwalk bench to listen to the music coming out of a nearby club. Hunter left for a short while to use a bathroom, and when she returned, she found that Olesiewicz was no longer on the boardwalk bench where she had left her. After she failed to find Olesiewicz, Hunter returned to her uncle's home and filed a missing persons report the next morning.
On January 14, 1983, the skeleton of a female body was discovered in a vacant lot behind a fast food restaurant on Route 35 in Ocean Township. By matching dental charts, authorities identified the body as that of Anna Olesiewicz. When the body was discovered, it was clothed in the items Olesiewicz was last seen wearing--blue jeans and a dark shirt--except that a black and gold ring was missing from her One week after the body was discovered, twenty-two-year-old Theresa Smith, who had shared an apartment with the defendant, forty-two-year-old Richard Biegenwald, and his wife, Diane, came to the police and recounted a story implicating Biegenwald in the shooting. This story was essentially the same as that to which she testified later at Biegenwald's trial.
finger. In the skull were four bullet holes, and three of the bullets were lodged within the skull. Testimony at trial indicated that the victim died as a result of the bullet wounds. It was estimated that death had occurred several months prior to the autopsy. Inadequate tissue remained to enable blood alcohol or chemical tests to be performed on the body.
Smith had previously worked as a waitress with Diane Biegenwald and lived with the Biegenwalds from June through October 1982 in a multi-apartment house in Asbury Park. Shortly after she moved in with the Biegenwalds, Smith and the defendant became friends.
Smith told how during the course of their relationship she became the defendant's protege and he encouraged her to find and kill a "victim" to prove to him that she was "tough." They discussed that Smith should murder "Betsy," Smith's co-worker. On Friday, August 27, the date of Anna Olesiewicz's disappearance, Smith drove around shore towns with Betsy, having contemplated and discussed with Biegenwald a plan to murder Betsy. Smith, however, called the defendant and told him that she could not go through with the murder plan, and she returned alone to the Asbury Park apartment to sleep. Smith testified that Biegenwald awakened her later that same night, although she did not recall why. Unable to return to sleep, she went to the kitchen, and, looking out the window toward the driveway, saw a "shadow of a body" sitting in the car that Biegenwald had given to her. She returned to sleep.
At the end of the next day Biegenwald took Smith into the garage where he lifted a mattress to show Smith a female body The police arrested the residents of the Asbury Park house--Richard and Diane Biegenwald, Dherran Fitzgerald, his girlfriend, and her daughter--based on Smith's statement. In the basement of Biegenwald's apartment the police discovered three weapons, ammunition, and controlled substances later determined to have been stolen from the hospital where Diane Biegenwald worked. The murder weapon was found in Fitzgerald's apartment as was an extensive cache of weapons. The black and gold ring missing from the victim's finger was discovered in Diane Biegenwald's jewelry box. Smith testified that after wearing the ring for several weeks she gave it to Diane Biegenwald. The only ammunition found that fit the .22 Short, the murder weapon, was discovered in a bag near the basement room where Biegenwald slept. The ammunition sales registry at a sporting goods store in Ocean Township showed that both Diane Biegenwald and Dherran Fitzgerald had purchased .22 Short ammunition.
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. Biegenwald removed from the victim's finger a black and gold ring which one month later he gave to Smith. The next day Biegenwald and Dherran Fitzgerald, a friend of the defendant, who lived in the neighboring apartment, disposed of the body behind the fast food restaurant.
The defendant was indicted by a Monmouth County Grand Jury on May 4, 1983, on ten counts: (1) the murder of Anna Fitzgerald was initially also charged with the murder of Anna Olesiewicz but this charge was dismissed in exchange for Fitzgerald's testimony against Biegenwald.
Olesiewicz ( N.J.S.A. 2C:11-3a(1), (2)) 1; (2) felony murder (Sec. a(3)); (3) armed robbery ( N.J.S.A. 2C:15-1a); (4) possession of a weapon for an unlawful purpose ( N.J.S.A. 2C:39-4a); (5) unlawful possession of a weapon ( N.J.S.A. 2C:39-5b); (6) possession of a weapon by a convicted felon ( N.J.S.A. 2C:39-7); (7) possession of marijuana ( N.J.S.A. 24:21-20a(4)); (8) possession of a [524 A.2d 134] controlled dangerous substance with intent to distribute ( N.J.S.A. 24:21-19a(1)); (9) possession of a controlled dangerous substance ( N.J.S.A. 24:21-20a(1)); and (10) unlawful possession of a number of weapons ( N.J.S.A. 2C:39-5b, 5d). The sixth count was severed before trial. Biegenwald pleaded not guilty to all counts.
The case received extensive pretrial publicity in the local press. The defendant was linked to possibly four or five previous local murders, most of teenaged girls. Local and regional papers covered the Biegenwald arrest, investigation, and trial extensively, nicknaming him the "thrill killer" because, it was reported, he killed only for pleasure.
Defendant's attorneys moved for a change of venue, claiming the extensive publicity would not allow Biegenwald a fair trial in the local area. On July 29 this motion was denied, as was a motion to dismiss the indictment based on defendant's claim that the prosecutor's actions constituted prosecutorial misconduct. The trial court ordered both sides to cease commenting to the press regarding the indicted matters or others pending indictment.
The trial itself, which began on November 14, was extensively covered in local news reports. The day before the trial, news reports discussed Biegenwald's prior conviction for murder, repeated the prosecutor's statements that he killed Olesiewicz because "he wanted to see someone die that night," and linked Biegenwald to five area murders. 2
The venue motion was renewed at the start of the trial. The trial court initially stated that it would refuse to grant the motion unless 250 jurors indicated their inability to be impartial. Counsel did not renew the venue motion after the close of voir dire.
During voir dire the trial court at first sought...
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