State v. Engel

• Decision Date: 02 July 1991
• Citation: 249 N.J.Super. 336,592 A.2d 572
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. William ENGEL and Herbert Engel, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 336

249 N.J.Super. 336

592 A.2d 572

STATE of New Jersey, Plaintiff-Respondent, v. William ENGEL and Herbert Engel, Defendants-Appellants.

Superior Court of New Jersey,

Appellate Division.

Argued Nov. 27, 1990.

Remanded Nov. 29, 1990.

Reargued June 11, 1991.

Decided July 2, 1991.

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Louis N. Rainone and Jack Arseneault, for defendant-appellant Herbert Engel (Karcher, McDonnell, Rainone & Aftanski, and Jack Arseneault, attorneys; Louis N. Rainone and Jack Arseneault on the brief).

Richard E. Mischel and Linda George, for defendant-appellant William Engel (Greenberg, Margolis, Ziegler, Schwartz, Dratch, Franzblau & Falkin, and Tesoroni, LeRoy & George, attorneys; Richard E. Mischel and Linda George on the brief).

Defendants-appellants each filed a supplemental pro se brief.

Linda A. Rinaldi, Deputy Atty. Gen., for plaintiff-respondent (Robert J. Del Tufo, Atty. Gen., attorney; Linda A. Rinaldi, of counsel and on the brief).

Before Judges DEIGHAN, BAIME and ARNOLD M. STEIN.

The opinion of the court was delivered by

BAIME, J.A.D.

Following a protracted jury trial, defendants William and Herbert Engel were convicted of conspiracy ( N.J.S.A. 2C:5-2) and murder ( N.J.S.A. 2C:11-3a(1) and (2)). The jury determined that defendants procured the commission of the killing by the payment of money and were thus eligible for the death penalty ( N.J.S.A. 2C:11-3c). At the penalty phase, the jury decided that the aggravating factors did not outweigh the mitigating factors ( N.J.S.A. 2C:11-3c(3)). Defendants were thus sentenced to life imprisonment and ordered to serve 30 years without parole eligibility ( N.J.S.A. 2C:11-3b). The Law Division denied three separate motions for a new trial. This appeal followed.

Pursuant to leave granted, defense counsel have filed overlength joint briefs and supplemental briefs. In addition, each defendant has filed a pro se brief. Many of the points raised are duplicative. Defendants contend that (1) the indictment was the product of prosecutorial misconduct before the grand jury, (2) the proceedings should not have been conducted as a

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death penalty case because the aggravating factor relied upon by the State was double counted, (3) their motion to suppress automobile telephone toll records should have been granted, (4) defendant Herbert's motion for a severance was improperly denied, (5) pretrial publicity deprived defendants of a fair trial, (6) the trial judge's evidentiary decisions constituted reversible error, (7) the prosecutor exceeded the bounds of fair comment in his summation, (8) the verdict was the result of impermissible compromise, (9) the first motion for a new trial should have been granted because the verdict was against the weight of the evidence, (10) the second motion for a new trial should have been granted based on the recantation testimony of the State's chief witness, (11) the Law Division abused its discretion in refusing to conduct an evidentiary hearing on the issues raised by the third motion for a new trial, (12) the prosecutor deliberately concealed exculpatory and material evidence, and (13) a new trial is warranted based on newly discovered evidence. We find no error warranting a reversal of defendants' convictions.

I.

On December 14, 1984, Xiomara Engel's body was discovered by South Carolina law enforcement officers in a tire well of a burned-out station wagon. The heat from the fire had been so intense as to cause the windows to explode. Glass fragments were discovered some 20 feet from the automobile. The license plates had been removed and the automobile was totally destroyed by fire. Xiomara's body was burned beyond recognition. It is undisputed that James McFadden had murdered the victim in New Jersey and along with Lewis "Pee Wee" Wright had transported her body to South Carolina where her automobile was set afire. The sole question presented at trial was whether William Engel, Xiomara's former husband, and his brother Herbert procured the killing. In that respect, we disagree with defendants' characterization of the State's evidence as "weak" and "inconclusive." Instead, the voluminous trial record fairly reeks of defendants' guilt.

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We recount the evidence in detail. From the inception of their stormy relationship, William was distrustful of Xiomara. At one point, William hired an investigator to monitor the victim's activities, suspecting that she was seeing other men. Although the investigator's probe revealed nothing untoward, William's concerns remained unalleviated. Substantial evidence was presented that William's jealousy often manifested itself in fits of rage during which he confronted Xiomara with unfounded suspicions, and verbally and physically abused her.

At trial, the victim's mother recounted two incidents in September and October 1984 in which William repeatedly struck Xiomara and accused her of being unfaithful. On one occasion, William pushed the victim onto the floor. When Xiomara's mother attempted to intercede, shouting that he might kill her, William replied "that's what she deserves, but not now." On another occasion, she observed William angrily strike Xiomara, apparently cutting her mouth. Similar episodes were observed by the victim's aunt, who threatened to contact the police. William responded that Xiomara "deserve[d]" the beatings, noting that he had "hit her very soft" and that "if [he] beat her hard [he would] kill her."

The marriage of William and Xiomara ended in an annulment. However, William's obsession with the victim continued unabated and resulted in the constant harassment of Xiomara and her family. Both Xiomara's mother and her aunt testified that William would call at all hours of the day and night, often leaving insulting messages containing implications of the victim's alleged promiscuity. William sought to prevent Xiomara from obtaining employment because he was concerned she would meet other men.

After the annulment, Xiomara developed a relationship with Andres Diaz, an attorney for whom she had briefly worked as a secretary. Diaz testified that he suddenly began receiving telephone calls from an individual who identified himself as Raul Valdievia, inquiring whether he "fooled around" with his

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secretaries. The individual later left a telephone number corresponding to William's residence. Toll records from Decor, a glass etching factory owned by William located in Englewood, disclosed several telephone calls to Diaz's office.

Despite the continued harassment and strife, Xiomara agreed to meet William at his office at Decor in the evening hours of December 13, 1984, in order to purchase birthday and Christmas gifts for their daughter. At approximately 6:30 p.m., Xiomara and her children left their home in North Arlington and obtained take-out dinners at a local restaurant. The victim ate her dinner while driving, explaining to her grandfather whom she had picked up to babysit for her children, that she was to meet William at 7:15 p.m. and was running late. Upon arriving at her apartment, Xiomara dropped off her children and grandfather in the parking lot and left to meet William. At approximately 8:30 p.m., William called Xiomara's apartment and told her grandfather that she had not yet arrived. Sometime later that evening, after the children had gone to bed, William again called and said that Xiomara had apparently missed their appointment.

On the next morning, Xiomara's mother was told by the victim's oldest daughter that she had not come home the night before. Later that morning, William called and told her that Xiomara had never arrived at his office. When Xiomara's mother expressed her intention to contact the police, William suggested that they wait until the afternoon at which time he would accompany her to the police station. However, William never called back. At approximately 11:00 p.m., the victim's mother, accompanied by Diaz, reported Xiomara's disappearance.

The North Arlington police immediately commenced a search for Xiomara's whereabouts. When the search proved unavailing, a teletype was sent to all eastern states. In addition, the police interviewed William at his home. William, who appeared "very nervous" and "chain smoked," told the police that he and

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Xiomara had arranged to meet the night before. William said that Xiomara called him at 6:00 p.m. to confirm their shopping plans. When she did not arrive as scheduled, William allegedly called her apartment and spoke to her daughter. He said that he received another call from Xiomara at 8:30 p.m. from what he believed to be a public telephone based on the noise of automobiles in the background. Xiomara allegedly told him that she "would be right over." William stated that when Xiomara had not arrived by 8:50 p.m., he called her apartment and again spoke to her daughter, who said her mother was not at home. William said he made another call to Xiomara's apartment at about 9:15 p.m., before leaving his office. William recounted that from his residence he called Xiomara's home again at 10:20 p.m. and then at midnight, each time speaking with her daughter who said her mother was not there. At that point, William claimed to have gone to bed and made no further inquiries until the next morning.

Meanwhile, South Carolina law enforcement officers had found Xiomara's body in the burned stationwagon. The body was finally identified as that of Xiomara several days later after the vehicle identification number was traced to her and her dental records were examined.

William was apprised of his former wife's death during an interview at the Bergen County Prosecutor's office. Upon being told of the circumstances, William placed his hands over his face and "appeared to sob." When he lifted his head, however, the police observed that there were "no tears anywhere on his face or in his eyes" and his voice "did not break" during the remainder of the interview.

James McFadden was the State...