On certification to the Superior Court, Law Division, Monmouth County.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For reversal -- None.
[96 NJ Page 632] This appeal arises under the provisions of the New Jersey Code of Criminal Justice (Code) authorizing a separate proceeding for purposes of determining the sentence to be imposed upon a defendant found by a jury to be guilty of the crime of murder. N.J.S.A. 2C:11-3c. The case requires that we determine whether, during the penalty phase of a capital proceeding, the State may use as an aggravating factor, pursuant to N.J.S.A. 2C:11-3c(4)(a), a defendant's prior conviction for
murder when the appeal of that conviction has not yet been resolved. We now hold that a defendant having been found guilty of murder, cannot, pending the conclusion of direct appeal proceedings challenging the guilty verdict, be considered as "having been convicted" for sentencing purposes under the capital punishment provisions of the Code.
Defendant, Richard Biegenwald, was charged in separate indictments with a series of murders: Anna Olesiewicz, on August 27, 1982; William Ward, on September 21, 1982; Maria Ciallella, on October 31, 1981 and Deborah Osborne on April 7, 1982; and Betsy Bacon on November 20, 1982.
On December 7, 1983, defendant was convicted of the murder of Anna Olesiewicz. By its special verdict the jury directed that the death penalty be imposed. Defendant's appeal of this disposition is presently pending before the Court.
Defendant next was tried for the murder of William Ward. During jury selection, the State indicated that should defendant be found guilty, it intended to rely on the Olesiewicz conviction and on defendant's 1959 conviction for the murder of Stephen Sladowski as aggravating factors, pursuant to N.J.S.A. 2C:11-3c(4)(a), during the penalty phase of the trial. The trial court ruled that while the 1959 conviction would be admissible, the Olesiewicz conviction, awaiting appellate review, could not be considered a "prior conviction" for purposes of constituting an aggravating factor.
Defendant was found guilty of the murder of William Ward on February 16, 1984. The State subsequently sought leave to appeal the trial court's earlier ruling that denied the use of the Olesiewicz conviction as an aggravating factor. The Appellate Division summarily denied the motion. We also denied the motion for leave to appeal. As a result, the only prior conviction constituting an aggravating factor -- and the only aggravating factor -- considered by the jury in the penalty phase of the
Ward murder trial was defendant's 1959 murder conviction. The jurors were unable to agree whether this aggravating factor outweighed the mitigating factors recognized. Accordingly, defendant was sentenced to life imprisonment with thirty years parole ineligibility, pursuant to N.J.S.A. 2C:11-3c(3)(c).
The State thereafter moved for trial the indictment charging the Bacon homicide. It sought to use the Olesiewicz and Ward convictions as aggravating factors in the prosecution of the Bacon case. The trial court permitted the State to amend its notice of aggravating factors to include the Olesiewicz and Ward murders but then ruled that these convictions could not be used "for any purpose unless affirmed by our Supreme Court."
On April 6, 1984, this Court directly certified the State's interlocutory appeal from that portion of the trial court's decision that disallowed the State use of the Olesiewicz and Ward convictions. N.J. (1984). For the same reasons that prompted our consideration of the interlocutory issues in the cases of State v. Bey, 96 N.J. 625 (1984), and State v. Davis, 96 N.J. 611 (1984), we undertake to decide this appeal. We disclaim consideration or intimation of any ...