This is a murder case. Walter Ochmanski, defendant, moves to dismiss the indictment on the ground that its prosecution is barred by the statute of limitations. This opinion concludes that his motion must be dismissed.
The murder charge resulted from the beating death of William Gary Spaven, whose body was found in a wooded area some distance from the trailer park in which the beating occurred. Complaint warrants, naming defendant and a companion, Terry Glass, were issued on September 15, 1980. Three days later, Ochmanski's attorney called the Burlington County Prosecutor's office, said he was aware of the murder charge against his client and would surrender him on September 22,
1980. Ochmanski did not appear as promised. He was indicted on October 24, 1980, failed to appear for his initial plea and a bench warrant was issued for his arrest.
The prosecutor's fugitive unit commenced its pursuit of Ochmanski on October 29, 1980, entering his name in the national crime information center system as a fugitive and, on December 31, 1980, placing his name on the New Jersey most wanted list. He was arrested in Texas on the murder charge on July 22, 1986 and immediately transported to the Burlington County jail where he now awaits trial.
Terry Glass, who was associated with Ochmanski in the beating death of Spaven, was also indicted on October 24, 1980, failed to appear for his initial plea and, like Ochmanski, was pursued as a fugitive. Glass was arrested in Texas on July 18, 1986, and brought to New Jersey on July 30, 1986, where he has been jailed and is awaiting trial. Glass, in a sworn statement, said that he spoke to Ochmanski a few days after the beating and was told that Spaven had died and that Ochmanski "convinced me that the best thing to do was to leave." They did so, traveling together from place to place across the country, using aliases, until they separated approximately two years before their arrest.
On November 19, 1986 the Burlington County Grand Jury returned a superseding indictment charging Ochmanski and Glass in four counts with: (1) conspiracy, a violation of N.J.S.A. 2C:5-2a(1), (2) murder, a violation of N.J.S.A. 2C:11-3a(1) or -3a(2), (3) murder, a violation of N.J.S.A. 2C:11-3a(3), and (4) kidnapping, a violation of N.J.S.A. 2C:13-1b(1). This indictment, in response to which Ochmanski entered a plea of not-guilty, is the subject of the motion to dismiss.
The motion must be denied with respect to counts two and three charging murder. Under N.J.S.A. 2C:1-6(a) a prosecution for murder may be commenced at any time. Counts one and four of the indictment charge conspiracy and kidnapping, crimes which must be prosecuted within five years. N.J.S.A. 2C:1-6b(1). As to these charges, therefore, the statute has run
unless it is tolled. It is tolled if Ochmanski was "fleeing from justice," i.e., a fugitive, N.J.S.A. 2C:1-6f, and/or if the second indictment against him charges the "same conduct" as the first. N.J.S.A. 2C:1-6e.
Ochmanski claims that he has not been a fugitive and demands a pretrial testimonial hearing to determine the issue. Under past practice neither a pretrial motion nor a pretrial hearing was allowed. The defense of the statute of limitations could be raised as a question of law only during trial by motion for a judgment of acquittal at the end of the State's case. It could be granted only when the State failed to prove that defendant fled the jurisdiction. When the State produced evidence of flight, the question was for the jury. State v. Rosen, 52 N.J. Super. 210, 214 (Law Div.1958). See also State v. Greenberg, 16 N.J. 568, 578 (1954) (Approving instruction that fugitive status is "a question of fact for the jury to determine."); State v. Estrada, 35 N.J. Super. 459 (Cty.Ct.1955). 32 N.J.Practice (Arnold, Criminal Practice and Procedure) 572, says:
It is unlikely that a pretrial motion may properly be brought to dismiss the indictment on the ground that the statute of limitations has run. Possibly such a pretrial motion could be brought if the indictment on its face states that the crime occurred more than 5 years . . . prior to the finding and return of the indictment, but then only if the state were to concede that there was no proof that the defendant had been a fugitive from justice. Generally, however, the indictment on its face states that the crime occurred within the statutory period. At trial the state must affirmatively prove the commission of the crime within the statutory period. If at the end of the ...