State v. Kamienski

• Decision Date: 19 February 1992
• Citation: 603 A.2d 78,254 N.J.Super. 75
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Paul KAMIENSKI, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Anthony ALONGI, Defendant-Appellant. STATE of New Jersey, Plaintiff-Appellant, v. Joseph MARSIENO (Marzeno) a/k/a Michael Testa; Anthony Alongi; and Paul Kamienski, Defendants-Respondents. STATE of New Jersey, Plaintiff-Respondent, v. Joseph MARSIENO (Marzeno) a/k/a Michael Testa; Anthony Alongi; and Paul Kamienski, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 75

254 N.J.Super. 75 603 A.2d 78 STATE of New Jersey, Plaintiff-Respondent,
v.
Paul KAMIENSKI, Defendant-Appellant.
STATE of New Jersey, Plaintiff-Respondent,
v.
Anthony ALONGI, Defendant-Appellant.
STATE of New Jersey, Plaintiff-Appellant,
v.
Joseph MARSIENO (Marzeno) a/k/a Michael Testa; Anthony
Alongi; and Paul Kamienski, Defendants-Respondents.
STATE of New Jersey, Plaintiff-Respondent,
v.
Joseph MARSIENO (Marzeno) a/k/a Michael Testa; Anthony
Alongi; and Paul Kamienski, Defendants-Appellants. Superior Court of New Jersey,
Appellate Division. Argued Sept. 12, 1991.
Decided Feb. 19, 1992.

[603 A.2d 79]

Page 79

Richard E. Mischel, for appellants-respondents, Paul Kamienski and Anthony Alongi (Greenberg, Margolis, attorneys; Richard E. Mischel on the brief for Paul Kamienski; Anthony Alongi filed a pro se brief).

Samuel J. Marzarella, Asst. County Prosecutor, for respondent-appellant, State of New Jersey (James W. Holzapfel, Prosecutor of Ocean County, attorney; Samuel J. Marzarella, of counsel; Samuel J. Marzarella, Francis Rodman Rupp, Asst. County Prosecutor, on the brief).

Wilfredo Caraballo, Public Defender, attorney for appellant-respondent Joseph Marsieno (Marzeno), a/k/a Michael Testa [603 A.2d 80] (Kevin G. Byrnes, Designated Counsel, of counsel and on the brief).

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Before Judges J.H. COLEMAN, BILDER and STERN.

Page 79

The opinion of the court was delivered by

COLEMAN, J.H., P.J.A.D.

These appeals raise two significant issues: (1) whether an unsequestered jury voir dire or the use of sequential rotation methodology in the exercise of peremptory challenges precluded a fair trial, and (2) whether an acquittal on a conspiracy to rob and to murder precluded a conviction on those substantive offenses as an accomplice. We hold that under the facts, the jury selection process did not preclude the impanelling of a fair and impartial jury. We also hold that where a jury is instructed properly, an acquittal under a theory of conspiracy does not as a matter of law preclude a conviction as an accomplice.

Defendants were tried jointly under a theory that they conspired and acted as accomplices in one or more schemes (1) to obtain cocaine with the intent to distribute it, (2) to rob the drug dealers of the cocaine rather than pay for it, and (3) to murder the drug dealers to avoid retaliation by drug lords. Each defendant was convicted of the five counts submitted to the jury. The trial judge granted judgments of acquittal notwithstanding the verdicts (j.n.o.v.) on three counts as to two of the defendants. The State has appealed from the j.n.o.v. and each

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defendant has filed a separate appeal. We now consolidate the four appeals and issue a single opinion. We reverse the j.n.o.v., affirm the verdicts of the jury and reinstate those verdicts except that the two conspiracies must be merged into a single conspiracy and the felony murders must merge with the knowing or purposeful murders.

I. PROCEDURAL HISTORY

Defendants Paul Kamienski, Anthony Alongi and Joseph Marzeno were tried under five counts of Ocean County Indictment No. 692-10-87. Two additional counts charging only Marzeno with capital murders were dismissed approximately two months before the trial commenced. All three defendants were tried for the knowing or purposeful murders of Henry DeTournay and his wife Barbara DeTournay, contrary to N.J.S.A. 2C:11-3a(1) and (2) (Counts One and Two); felony murders ¹ of Henry and Barbara DeTournay, contrary to N.J.S.A. 2C:15-1 and N.J.S.A. 2C:11-3a(3) (Count Five); conspiracy among the defendants between August 1, 1983 and April 30, 1984, in Ocean County and the State of Florida, to commit the crimes of possession of cocaine with intent to distribute, in violation of N.J.S.A. 24:21-19a, and/or robbery in the first-degree, in violation of N.J.S.A. 2C:15-1, and/or murder, in violation of N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-2, (Count Six); and conspiracy with each other, Henry and Barbara DeTournay and Sidney Jeffrey, II, who were unindicted co-conspirators, between August 1, 1983, and April 30, 1984, to possess cocaine with intent to distribute, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 24:21-19a(1) (Count Seven). The jury was asked to decide whether there were one or two conspiracies at one time or at different times.

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Marzeno was tried as the person who knowingly or purposefully caused the death of Henry DeTournay under Count One and Barbara DeTournay under Count Two. He was also tried for being the person who caused the deaths of the DeTournays during the commission of a robbery of cocaine under Count Five. Alongi and Kamienski were tried as accomplices and/or conspirators to Marzeno in the commission of the murders. The State contended that the victims were robbed of cocaine and then murdered to prevent Columbian drug lords from seeking revenge.

At the conclusion of an 18 day trial which ended on November 18, 1988, the jury found each defendant guilty under Counts One, Two, Five and Seven. The [603 A.2d 81] jury found Marzeno guilty as the principal and Kamienski and Alongi as accomplices of Marzeno under the two counts charging knowing or purposeful murders and the felony murders count. Under Count Six, the jury also found each defendant guilty of conspiracy to possess cocaine with intent to distribute, but not guilty of conspiracy to murder and to rob.

Prior to sentencing, the trial judge heard a motion for a new trial or in the alternative for the entry of j.n.o.v. The trial judge entered j.n.o.v. in favor of Kamienski and Alongi for the two murders and the felony murders under Counts One, Two and Five. Kamienski was then sentenced on Count Six to a custodial term of 12 years with four years of parole ineligibility. On Count Seven, he was sentenced to a consecutive custodial term of 12 years with six years of parole ineligibility. A total fine of $50,000 was imposed. His aggregate sentence is 24 years with 10 years of parole ineligibility. Kamienski filed his notice of appeal on December 30, 1988 under A-2350-88T5.

Alongi was sentenced on Counts Six and Seven to consecutive custodial terms of 12 years with six years of parole ineligibility on each count and a total fine of $50,000 was imposed. His aggregate sentence is 24 years with 12 years of parole ineligibility. Alongi filed his notice of appeal on January 26, 1989,

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under A-3611-88T5. The State filed its appeal from the j.n.o.v. on April 3, 1989, under A-3689-88T5.

Marzeno was sentenced on Counts One and Two to consecutive life terms with 30 years of parole ineligibility on each count. The felony murders under Count Five were merged with Counts One and Two. He was sentenced on Counts Six and Seven to consecutive 12 year custodial terms with six years of parole ineligibility on each count. His aggregate sentence was double life plus 24 years with 72 years of parole ineligibility. Marzeno filed a notice of appeal on February 1, 1989, under A-3946-88T5.

While the four appeals were pending, defendants filed a second motion for a new trial based on their assertion that subsequent to the sentencing, it came to their attention that one of the trial jurors, Angela Metta Krebs, failed to disclose a social relationship with one of the State's key witnesses, Jean Calabro Yurcisin. We remanded the matter temporarily for a judge to conduct an in camera interview with the juror. An interview was conducted by a judge who did not preside over the trial. He denied the motion on December 22, 1989, because he found the two women were not acquainted.

Marzeno's appeal was dismissed by consent on February 5, 1991, because of his death. We entered an order on February 28, 1991, permitting Kamienski and Alongi to adopt Points II through VIII raised in Marzeno's brief.

In its appeal, the State raises the following contentions:

I THERE WAS NO INCONSISTENCY IN THE VERDICTS RETURNED BY THE JURY; ALTERNATIVELY INCONSISTENT VERDICTS DO NOT VITIATE AN OTHERWISE REASONABLE VERDICT, THEREFORE THE TRIAL JUDGE'S FINDING THAT FACTS EXISTED CONSISTENT WITH CRIMINAL LIABILITY SHOULD BE UPHELD.

II THERE EXISTS EVIDENCE BEYOND A SCINTILLA AND VIEWED FAVORABLY TO THE STATE, THAT DEFENDANTS ALONGI AND KAMIENSKI WERE PROPERLY FOUND GUILTY BY THE JURY AS ACCOMPLICES TO MURDER.

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III DEFENDANTS WERE PROPERLY FOUND GUILTY BY THE JURY ON FELONY MURDER AS ACCOMPLICES TO A ROBBERY AND THE JUDGMENT OF ACQUITTAL SHOULD BE REVERSED.

Kamienski raises the following issues in his appeal:

I DEFENDANT KAMIENSKI'S FEDERALLY AND STATE GUARANTEED RIGHTS TO A FAIR TRIAL BY AN IMPARTIAL JURY WERE VIOLATED [603 A.2d 82] BY THE JURY SELECTION PROCESS.

II THE COURT ERRONEOUSLY DENIED DEFENDANT KAMIENSKI'S SEVERAL APPLICATIONS TO SEVER HIS TRIAL FROM HIS CO-DEFENDANTS' TRIAL.

III DEFENDANT KAMIENSKI'S FEDERALLY AND STATE GUARANTEED RIGHTS TO A FAIR TRIAL WERE VIOLATED BY THE ERRONEOUS ADMISSION OF INFLAMMATORY EVIDENCE, UNDUE RESTRICTIONS PLACED ON THE CROSS-EXAMINATION OF A STATE'S WITNESS, THE OUTBURST OF ANOTHER STATE'S WITNESS DURING HER CROSS-EXAMINATION, AND THE ERRONEOUS ADMISSION OF CO-DEFENDANT MARZENO'S STATEMENT.

IV DEFENDANT KAMIENSKI'S FUNDAMENTAL RIGHTS TO A FAIR TRIAL WERE VIOLATED BY SEVERAL REMARKS MADE BY THE PROSECUTOR DURING HIS SUMMATION. (SOME ISSUES RAISED WERE NOT RAISED BELOW).

V THE COURT ERRONEOUSLY DENIED DEFENDANT KAMIENSKI'S SEVERAL APPLICATIONS TO MERGE COUNTS SIX AND SEVEN OF THE INDICTMENT BOTH OF WHICH CHARGED CONSPIRACY TO POSSESS COCAINE WITH INTENT TO DISTRIBUTE.

VI DEFENDANT KAMIENSKI'S APPLICATION, ON REMAND, FOR A NEW TRIAL SHOULD BE REMANDED AGAIN FOR FURTHER PROCEEDINGS.

VII DEFENDANT KAMIENSKI JOINS AND ADOPTS CO-DEFENDANTS ARGUMENTS.

VIII DEFENDANT KAMIENSKI'S TWO CONSECUTIVE TWELVE YEAR TERMS OF IMPRISONMENT, WITH PERIODS OF PAROLE INELIGIBILITY OF SIX YEARS AND FOUR YEARS, WERE EXCESSIVE AND SHOULD BE REDUCED.

In his pro se brief, Alongi raises the following contentions:

I INEFFECTIVE ASSISTANCE OF COUNSEL...