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State v. Biegenwald

Decided: March 5, 1987.


On appeal from the Superior Court, Law Division, Monmouth County.

For affirmance -- Chief Justice Wilentz, and Justices Clifford, Pollock, O'Hern, Garibaldi and Stein. For reversal -- Justice Handler. The opinion of the Court was delivered by Wilentz, C.J. Handler, J., dissenting.


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

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.

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.

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

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 police arrested the residents of the Asbury Park house -- Richard and Diane Biegenwald, Dherran Fitzgerald, his girl-friend, 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.

The defendant was indicted by a Monmouth County Grand Jury on May 4, 1983, on ten counts: (1) the murder of Anna

Olesiewicz (N.J.S.A. 2C:11-3a(1), (2));*fn1 (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 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.

Fitzgerald was initially also charged with the murder of Anna Olesiewicz but this charge was dismissed in exchange for Fitzgerald's testimony against Biegenwald.

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.*fn2

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 to determine whether potential jurors' general views about capital punishment made them unqualified to sit in a capital case. The court initially asked general questions concerning the potential jurors' exposure to pretrial publicity and refused a defense request to inquire into specific details recalled from the public accounts. Defense counsel objected that the narrow scope of voir dire permitted the seating of jurors who would consider defendant's other crimes. In response, the trial court began to question those jurors whose answers indicated knowledge of defendant's background as to the extent of such knowledge. Of the eighty-eight venirepersons questioned about pretrial publicity, the court dismissed thirty-five of the forty-seven who indicated that they recalled specific details of other murders connected to defendant. The court excused only those prospective jurors who specifically indicated that they could not be impartial. Of the twelve remaining jurors who had been exposed to substantial publicity, four were seated over defense

challenges for cause. Defense counsel used peremptory challenges to remove these jurors. Every challenge for cause by the defendant was denied, and the court refused to hear challenges for cause at side bar. Defendant's counsel exhausted all twenty peremptory challenges before the final jury was seated.

Several jurors reported to the trial court that while waiting to be questioned, they had discussed defendant's case as well as the news reports of his previous conviction and alleged prior murders. The court then instructed the first two jury panels not to discuss the case. When the final jury was selected, at least one member had been identified as a juror who had discussed the case while awaiting voir dire.

At trial the State's main witnesses were Theresa Smith and Dherran Fitzgerald. Smith testified to what she had told the police in January. Fitzgerald testified about his friendship with Biegenwald, statements made by defendant to him about the murder, and the disposal of the body behind the fast food restaurant.

Biegenwald's defense was that Fitzgerald, an admitted contract killer, had murdered Anna Olesiewicz. Defendant presented the testimony of three inmates at Trenton State Prison who told essentially the same story. They claimed that Fitzgerald, in prison prior to negotiating his plea arrangement, on seeing news headlines about the murder had bragged that he had killed Olesiewicz. Each of Biegenwald's witnesses had initiated contact with defense counsel through the mail, having learned of the case in prison. All three said that although defendant did not initiate contact with the witness, the defendant had given them the name and address of his lawyer.

Defendant was found guilty of five counts: murder, possession of a weapon for an unlawful purpose, two counts of possession of a weapon without a permit, and possession of a controlled substance.

Defendant signed a written waiver relinquishing his right to a jury in the penalty phase. However, the prosecutor refused to consent to the waiver, and as his consent is required by

Section c(1), sentencing was conducted by the same jury that had determined guilt.

At the sentencing trial, the prosecutor introduced as an aggravating factor evidence of defendant's 1959 murder conviction, for which he had served seventeen or eighteen years in prison. Sec. c(4)(a). The prosecution also asked that the jury consider as an aggravating factor that the murder of Anna Olesiewicz was "outrageously or wantonly vile, horrible or inhuman in that it involved . . . an aggravated battery to the victim." Sec. c(4)(c).

Defendant sought to establish three mitigating factors: c(5)(a), that defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution; c(5)(d), that his ability to appreciate the wrongfulness of his conduct or to conform it to the requirements of the law was significantly impaired as a result of mental disease or defect but not to a degree sufficient to constitute a defense to prosecution; and c(5)(h), any other unspecified factor that was relevant to his character or record or to the circumstances of the offense. Defendant introduced testimony from a forensic psychiatrist that Biegenwald suffered from a severe personality disorder known as anti-social personality with paranoid traits. The psychiatrist explained that Biegenwald was abused as a child and was institutionalized at the age of eight, diagnosed as schizophrenic and given twenty electro-convulsive shock treatments. Biegenwald subsequently entered a state hospital. On returning home he was beaten again by his father, stole from his mother, and routinely escaped from his house for days at a time. At age eighteen he was convicted of a murder committed while robbing a store, for which he served the seventeen or eighteen year prison term. A psychiatrist who had initially been called by the defense in preparation of an insanity defense but had advised counsel that the defendant was not legally insane testified that Biegenwald lacked the emotional capacity to appreciate the wrongfulness of his act or to conform his behavior to the law.

The court instructed the jury that aggravating factors must be found beyond a reasonable doubt but that the jury had to be "satisfied" only that a mitigating factor existed. It instructed that all of the mitigating factors together had to be weighed against each of the aggravating factors alone. It did not instruct that the jury had to be convinced beyond a reasonable doubt that the aggravating factors outweighed the mitigating factors, but charged that if each aggravating factor was not outweighed by the combined mitigating factors, death would be imposed. After a request for clarification, the court explained that the conditions listed in Section c(4)(c) were to be read in the disjunctive. It explained that to find that aggravating factor c(4)(c) existed, the jury had to find that the attack "involved either torture or conduct indicating a depraved mind or that the attack was so savagely outrageously cruel or violent that the adjectives wantonly, vile or horrible or inhuman are justified." It did not explain what constitutes an aggravated battery.

The jury found both aggravating factors offered by the State to exist beyond a reasonable doubt. The jury found two mitigating factors -- that the defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as a result of mental disease or defect, and that another unspecified factor existed that was relevant to the defendant's character or record or to the circumstances of the offense. The jury did not find that the defendant was under the influence of extreme mental or emotional disturbance. Finally, the jury found that neither aggravating factor was outweighed by the combined mitigating factors and, accordingly, the court sentenced defendant to death.


Constitutionality of Death Penalty Per Se and of N.J.S.A. 2C:11-3

Defendant argues that any death penalty law, and hence the Act, inflicts cruel and unusual punishment forbidden by the

eighth amendment of the federal Constitution and Article I, paragraph 12 of the New Jersey Constitution. For the reasons given in State v. Ramseur, 106 N.J. 123 (1987), also decided today, we reject this contention.


Pretrial Issues

A. Voir Dire

1. Challenges for Cause at Side Bar

Defendant challenges as reversible error the trial court's ruling that required challenges for cause to be asserted and explained in open court, in the presence of the challenged juror, rather than at side bar. Defendant contends that the practical effect of the trial court's ruling was to compel defense counsel to use some of his peremptory challenges to remove jurors who otherwise could have harbored prejudice against defendant.

Defendant cites three instances in which this ruling was applied by the trial court. However, in the case of the first such ruling, the request to assert the challenge at side bar occurred after the challenge was denied. The second instance involved a challenge for cause asserted in open court immediately after a side bar conference. Here, grounds for the challenge were described as being "based upon the statement we just had at side bar," so that the challenged juror did not hear the grounds for the challenge. Only the third example clearly involved a challenge for cause that the trial court required counsel to assert in the juror's presence, rather than at side bar.*fn3

In State v. Smith, 55 N.J. 476, 483, cert. den., 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970), we held that the decision to hear challenges for cause at side bar or in open court is one

within the discretion of the trial court. There, counsel initially challenged a juror for cause at the bench. Counsel then asserted his next challenge in open court, claiming later that this was at the court's direction. After counsel made subsequent challenges for cause without requesting permission to approach the bench, he informed the court that he felt compelled to challenge peremptorily because of the court's refusal to hear challenges for cause at side bar. The trial court denied having made such a ruling, and permitted later challenges for cause to be made at side bar. We found no improper exercise of the court's discretion. Id.

Similarly, we are unable to conclude here that the isolated instance during voir dire in which counsel was requested to challenge for cause in open court was so mistaken an exercise of discretion as to warrant reversal. We are not persuaded that every juror unsuccessfully challenged for cause is inevitably biased against the party asserting the challenge. Nor are we convinced that the peremptory challenge subsequently expended against the challenged juror would not have been asserted had the challenge for cause been advanced at side bar rather than in open court.

We are of the view that challenges for cause based on bias or partiality should be asserted at side bar particularly in capital cases. The minimal inconvenience and delay entailed by this procedure are clearly offset by the undesirability of a prospective juror knowing that his presence on the jury is objectionable to one party. In this case, however, the ruling to which defendant objects had a minimal impact on the jury selection process and appears to be confined to one juror, later challenged peremptorily by defendant. Under the circumstances, we do not find that the trial court's ruling had the capacity to deprive defendant of a fair trial.

2. Counsel Voir Dire Participation

Defendant contends that the trial court's refusal to permit defense counsel to interrogate the jury during voir dire was

prejudicial error. He argues that neither our decision in State v. Manley, 54 N.J. 259 (1969), nor Rule 1:8-3(a)*fn4 should be construed to prohibit attorney-conducted voir dire in capital cases.

In State v. Manley, supra, 54 N.J. 259, defendant was indicted for first-degree murder. On appeal from his conviction for second-degree murder, defense counsel claimed trial error because of the trial court's refusal to permit him to propound questions during jury voir dire concerning defendant's prior criminal conviction. In sustaining the conviction, this Court announced its adoption of the predecessor of Rule 1:8-3(a), which was intended to return control of jury voir dire to the trial court and vest in the trial court discretion to permit or restrict supplemental questioning by counsel. Id. at 281-83. Justice Francis, writing for a unanimous Court, expressed in no uncertain terms the reason for the new rule:

In many instances it has taken as long or longer to empanel a jury as to try the case. The impression is inescapable that the aim of counsel is no longer exclusion of unfit or partial or biased jurors. It has become the selection of a jury as favorable to the party's point of view as indoctrination through the medium of questions on assumed facts and rules of law can accomplish.

[ Id. at 281 (emphasis in original).]

In Manley, supra, 54 N.J. at 283, we modified our holding in State v. Sullivan, 43 N.J. 209, 239-40 (1964), cert. den., 382 U.S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966), a death penalty case that had permitted more voir dire examination by counsel. The compelling policy reasons for court-controlled voir dire, the Manley opinion's "call[ ] for a much more guarded discretion than previously announced in State v. Sullivan, supra, 43 N.J. [at] 239-40," 54 N.J. at 283, a capital case, and the text of Rule

1:8-3(a) persuade us that the holding in Manley was intended to apply, and should apply, in death penalty cases. We note also that the Appellate Division has expressly considered and rejected the contention that State v. Manley, supra, 54 N.J. 259, is inapplicable to capital cases. State v. Howard, 192 N.J. Super. 571 (1983).

Our present Court rule is intended to see that voir dire is conducted to the extent reasonably possible by the court. The trial court is given discretion to permit counsel to supplement the court's interrogation of jurors by submitting questions to the court and, where the court approves, by additional personal questioning by counsel. See R. 1:8-3(a); Manley, supra, 54 N.J. at 282-83. In this case, following the customary practice, the trial court required counsel to submit to it proposed questions for the juror then being interrogated. The court then determined whether or not the question submitted would be propounded to the juror. No instances have been cited to demonstrate that the trial court abused its discretion in refusing to allow questions to jurors.

We reiterate our comments in State v. Williams, 93 N.J. 39 (1983), as to the desirability of searching voir dire interrogation where juror bias is an issue. There we noted that

[a]n important, indeed critical, means for dealing with potential and latent bias is the voir dire. The court should consider the efficacy of more exhaustive and searching voir dire examinations. The court in conducting the voir dire should be particularly responsive to the requests of counsel regarding the examination of prospective jurors as to potential bias.

[ Id. at 68 (footnotes omitted).]

Although in some instances the trial court's interrogation was more general and less searching than that requested by counsel, our independent review of the record reveals that the overall scope and quality of the voir dire was sufficiently thorough and probing to assure the selection of an impartial jury. We hold that the trial court's refusal to permit the voir dire interrogation to be conducted by counsel was within the limits of our decision in State v. Manley, supra, 54 N.J. 259,

and of Rule 1:8-3(a), because both the Manley decision and the Rule are applicable to capital cases. However, we note that in capital cases trial courts should be especially sensitive to permitting attorneys to conduct some voir dire.

3. Excuse of Jurors for Hardship

We also note and reject defendant's contention that the trial court overestimated the length of the trial, causing "many well-educated and working-class people" to ask to be excused from jury service. The trial court on November 14 announced to the jury pool was that the trial "will probably go . . . up until Christmas." Accordingly, the trial court excused those jurors whose jobs might be jeopardized or whose personal circumstances were such that jury service for an extended period would be a financial hardship. In fact, jury voir dire occupied the week of November 14, the trial commenced on November 28, after a recess during Thanksgiving week, and lasted nine days, ending on December 8.

There is no suggestion that the trial court deliberately or unreasonably excluded from jury service a cognizable class of jurors in violation of defendant's sixth amendment rights, see Thiel v. Southern Pac. Co., 328 U.S. 217, 221-25, 66 S. Ct. 984, 986-88, 90 L. Ed. 1181, 1185-87 (1946), or that the jury selection procedure resulted in a substantial underrepresentation of a constitutionally cognizable group, see Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 1280, 51 L. Ed. 2d 498, 510 (1977). Although the trial court's estimate of the length of trial proved to be incorrect, it was hardly unreasonable or inappropriate in view of the State's extended witness list and the anticipated length of the jury voir dire. We find no error either in the trial court's attempt to estimate the length of trial or in its determination to exclude jurors unable to serve in a protracted trial.

B. Publicity and Venue

It is undisputed that there was extensive pretrial publicity concerning the defendant in newspapers distributed in Monmouth

County, particularly during April and May of 1983. A number of articles linked the defendant to other homicides and disclosed his prior murder conviction. Front page articles in the Asbury Park Press included photographs of the police digging to locate bodies, maps to gravesites, interviews with families of victims, and photographs of the defendant in handcuffs. Although articles concerning defendant appeared with greatest frequency in the Asbury Park Press, a newspaper widely read in Monmouth County, there was also significant publicity in the Star Ledger, The New York Times, the Daily News, the New York Post, the Record (Bergen County), the Atlantic City Press, the Trentonian, the Daily Register (Monmouth County), the Home News (Middlesex County), and the Philadelphia Inquirer, as well as substantial radio and television publicity.

The prosecutor was quoted and seen regularly in the news reports of the case. He established a hotline to receive information about the defendant and the murders and held press conferences. He was accompanied by 200 reporters during the search for bodies of defendant's alleged victims on Staten Island, New York. When speaking with the press the prosecutor repeatedly assumed defendant's guilt and also stated that defendant killed only for pleasure. One article attributed to the prosecutor the observation that defendant had murdered Olesiewicz and the others because "he wanted to see someone die" on those nights.

After May 1983, publicity about the case generally subsided. In July defendant moved for a change of venue on the ground that the extensive pretrial publicity made it unlikely he could receive a fair trial in Monmouth County. The assignment judge denied the change of venue motion without prejudice to its renewal at the time of trial. At the same time, he adjourned the September trial date for two months and barred any further public comment by counsel concerning the case or other related matters pending indictment.

The day before the trial began, the Asbury Park Press carried a front page article on the upcoming trial, featuring a picture of the defendant, discussing his prior conviction in 1959 for murder, repeating the prosecutor's statements about lack of motive, and linking the defendant to five area murders. Thereafter, press coverage of the jury voir dire and the trial continued daily. A few jurors were observed reading newspaper accounts of the trial in the jury assembly room before they were called for voir dire. We note that the trial court instructed all jurors not to read anything about the case.

It is axiomatic that a criminal defendant's right to a fair trial requires that he be tried before a jury panel not tainted by prejudice. Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751, 755 (1961). We have emphasized the importance, particularly in capital cases, of the trial court's responsibility "to preserve the integrity of the jury and minimize the danger that prejudice will infiltrate the adjudicatory process. . . ." State v. Williams, supra, 93 N.J. at 63.

In criminal cases attended by widespread and inflammatory publicity, various trial management techniques can be employed to assure that the defendant's right to an impartial jury is not compromised. One available option is a change in venue. Other means of protecting the defendant's constitutional rights include the use of searching voir dire examinations, the impaneling of "foreign jurors" to augment the pool of eligible jurors in the vicinage, adjournment of the trial date, and restraints on public comments by participants in the trial. R. 3:14-2, -3; State v. Williams, supra, 93 N.J. at 67-68; State v. Van Duyne, 43 N.J. 369, 388-89 (1964), cert. den., 380 U.S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965).

Defendant contends that the pretrial publicity was so prejudicial that no relief short of a change of venue was adequate to assure a fair trial. He therefore maintains that denial of the motion to change venue was an abuse of discretion and deprived

him of his constitutional right to trial by an impartial jury.

We previously required a defendant seeking a change of venue to establish by "clear and convincing proof that a fair and impartial trial cannot be had before a jury of the county where the indictment was found." State v. Wise, 19 N.J. 59, 73-74 (1955). The cases that followed Wise made clear that few defendants succeeded in their efforts to establish a need to change venue. See State v. Belton, 60 N.J. 103, 107-08 (1972); State v. Mayberry, 52 N.J. 413, 420 (1968), cert. den., 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969); State v. Gallicchio, 51 N.J. 313, 318, cert. den., 393 U.S. 912, 89 S. Ct. 233, 21 L. Ed. 2d 198 (1968); State v. Ravenell, 43 N.J. 171, 180-81 (1964), cert. den., 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965). Accordingly, in 1983 in a capital case we modified the defendant's burden, conferring on trial courts the discretion to change venue where it is "necessary to overcome the realistic likelihood of prejudice from pretrial publicity." State v. Williams, supra, 93 N.J. at 67-68 n. 13; see State v. Bey, 96 N.J. 625, 630, clarified, 97 N.J. 666 (1984).

In determining whether a realistic likelihood of prejudice exists in a particular case, we agree with the distinction recognized by the federal courts between cases in which the trial atmosphere is so corrupted by publicity that prejudice may be presumed, Sheppard v. Maxwell, 384 U.S. 333, 352, 86 S. Ct. 1507, 1516, 16 L. Ed. 2d 600, 614 (1966); Estes v. Texas, 381 U.S. 532, 542-44, 85 S. Ct. 1628, 1632-34, 14 L. Ed. 2d 543, 550-51 (1965); Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S. Ct. 546, 549-50, 13 L. Ed. 2d 424, 429 (1965); Rideau v. Louisiana, 373 U.S. 723, 727, 83 S. Ct. 1417, 1419, 10 L. Ed. 2d 663, 665-66 (1963); Marshall v. United States, 360 U.S. 310, 312-13, 79 S. Ct. 1171, 1172-73, 3 L. Ed. 2d 1250, 1252 (1959) (per curiam), and cases in which pretrial publicity, while extensive, is less intrusive, making the determinative issue the actual effect of the publicity on the impartiality of the jury panel. Patton v.

Yount, 467 U.S. 1025, 1032-35, 104 S. Ct. 2885, 2889-91, 81 L. Ed. 2d 847, 854-56 (1984); Dobbert v. Florida, 432 U.S. 282, 301-03, 97 S. Ct. 2290, 2302-03, 53 L. Ed. 2d 344, 361-62 (1977); Murphy v. Florida, 421 U.S. 794, 800-03, 95 S. Ct. 2031, 2036-38, 44 L. Ed. 2d 589, 595-97 (1975); Irvin v. Dowd, supra, 366 U.S. at 723-28, 81 S. Ct. at 1642-46, 6 L. Ed. 2d at 756-59; Stroble v. California, 343 U.S. 181, 193-95, 72 S. Ct. 599, 605-06, 96 L. Ed. 872, 882-83 (1952); see Coleman v. Kemp, 778 F.2d 1487, 1489 (11th Cir.1985) ("There are two standards which guide analysis of this question, the 'actual prejudice' standard and the 'presumed prejudice' standard."), cert. den., U.S. , 106 S. Ct. 2289, 90 L. Ed. 2d 730 (1986).

Illustrative of the cases in which prejudice is presumed is Rideau v. Louisiana, supra, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663, where the defendant's confession of bank robbery, kidnapping, and murder was televised on three occasions two months before the jury was selected and seen by a substantial number of residents in the parish where defendant was to be tried. The Court reversed the denial of defendant's motion to change venue, observing that "[a]ny subsequent court proceeding in a community so pervasively exposed to such a spectacle could be but a hollow formality." Id. at 726, 83 S. Ct. at 1419, 10 L. Ed. 2d at 665.

In contrast, in Murphy v. Florida, supra, 421 U.S. 794, 95 S. Ct. 2031, 44 L. Ed. 2d 589, defendant, referred to by the national media as "Murph the Surf," had attained notoriety for his complicity in the theft of the Star of India sapphire from a New York museum. His 1970 robbery prosecution in Dade County, Florida, was preceded by widespread publicity during 1968 and 1969, but the publicity largely ceased seven months before jury selection. In rejecting defendant's contention that the pretrial publicity required a change of the venue for trial, the Court distinguished the intrusiveness of the publicity from that found in Rideau, supra, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663; Sheppard v. Maxwell, supra, 384 U.S. 333, 86

S. Ct. 1507, 16 L. Ed. 2d 600; and Estes v. Texas, supra, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543. The Court observed:

The proceedings in [those] cases were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob. They cannot be made to stand for the proposition that juror exposure to information about a state defendant's prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process. To resolve this case, we must turn, therefore, to any indications in the totality of circumstances that petitioner's trial was not fundamentally fair.

[421 U.S. at 799, 95 S. Ct. at 2036, 44 L. Ed. 2d at 594.]

It is abundantly clear to us that this is not a case in which the trial court was required to presume the existence of prejudice prior to the jury voir dire. The extensive pretrial publicity was concentrated in April and May, 1983. In addition to prohibiting further public comment by counsel, the trial court adjourned the trial date until mid-November, allowing nearly six months to permit the impact of the publicity to subside. As the Court stated in Patton v. Yount, supra, 467 U.S. 1025, 104 S. Ct. 2885, 81 L. Ed. 2d 847, rejecting defendant's argument that his retrial, four years after his first highly publicized trial, was tainted by the earlier publicity, "the passage of time . . . can be a highly relevant fact . . . [that] rebuts any presumption of partiality or prejudice. . . ." Id. at 1035, 104 S. Ct. at 2891, 81 L. Ed. 2d at 856.

It has frequently been noted that pervasive pretrial publicity does not necessarily preclude the likelihood of an impartial jury. We observed in State v. Williams, supra, that

there is also some reason to believe that even in highly publicized cases the venire will contain many individuals who have not been exposed to the publicity or who, if exposed, are only faintly aware of the nature of the case. See, e.g., United States v. Ehrlichman, 546 F.2d 910, 916-17 n. 8 (D.C.Cir.1976) [ cert. den., 429 U.S. 1120, 97 S. Ct. 1155, 51 L. Ed. 2d 570 (1977)]; United States v. Haldeman, 559 F.2d 31, 61-63 (D.C.Cir.1976) [ cert. den. sub nom. Mitchell v. United States, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Ed. 2d 250 (1977)]; State v. Joyce, 160 N.J. Super. 419, 430 (Law Div.1978).

[93 N.J. at 66 n. 10.]

We therefore conclude that under the circumstances of this case, the appropriate inquiry is whether the jury selection

process actually resulted in a fair and impartial jury. As we stated in State v. Van Duyne, supra, this inquiry requires us to examine the results of the jury voir dire.

[A]n appellate tribunal is likewise under a duty to make an independent evaluation of the facts and circumstances and of the juror's voir dire examination. It should determine for itself whether the pretrial newspaper stories are so pervasive and so prejudicial, or the juror's protestation of unaffected impartiality after reading them so unconvincing or doubtful that a new trial should be ordered.

[43 N.J. at 386.]

Jury selection in this case commenced on November 14, 1983, and continued for five consecutive days. A total of ninety-five jurors were questioned, of whom seven were excused by the court for personal reasons. Of forty-six jurors excused for cause, thirty-five indicated that their familiarity with the case would affect their ability to serve impartially. Six of the forty-six were excused because of their views concerning capital punishment, four because of personal experiences or relationships and one because of discussions she overheard in the jury room. All of defendant's challenges for cause were denied. The prosecution used six peremptory challenges, while the defense used all twenty of its peremptory challenges. Only one juror, an alternate, was seated after the defendant's peremptory challenges were exhausted.

The sixteen impaneled jurors, responding to the court's interrogation, indicated that they had encountered little or no publicity regarding the case. Several of the trial jurors stated that they had never heard of the defendant before coming to court. We find that a substantial segment of the jury panel subjected to voir dire unequivocally and credibly demonstrated that the pretrial publicity had passed them by, and we are satisfied that the jury that was impaneled was as a whole impartial.

As noted above, the standard governing the trial court's discretion on a venue change motion is whether the change is necessary to overcome the realistic likelihood of prejudice resulting from pretrial publicity. The dissent appears to agree that there are various options available to the trial court to

dispel that likelihood (e.g., change of venue, postponement of trial, voir dire, foreign jurors, gag order), and that the ultimate test of whether it was dispelled is the voir dire and its results. Although the dissent contends it was not dispelled, the fact is that defendant on this appeal makes no complaint about the voir dire (except for the trial court's initial refusal to hear challenges at side bar and to allow individual attorney questioning of jurors) or about the trial court's rulings on his challenges for cause. Those rulings are highly discretionary. Assuming, nevertheless, that any was erroneous, application of the plain error rule, sua sponte, would be totally inappropriate given the satisfactory jury that ultimately was impanelled. Furthermore, the trial court told defense counsel, who had previously moved for change of venue, that it would not entertain the motion until after the voir dire; significantly no such motion was thereafter made. The reason must be that the impanelled jury in fact was satisfactory. That jury did not include anyone who recalled having previously read anything about other murders or a prior murder conviction. The only impanelled juror who had such knowledge (of alleged prior murders, but not the prior conviction) heard it from others on the panel. Her voir dire convinced the trial court -- and apparently the defense, for she was not challenged for cause and no objection is now made to her serving -- that she could disregard what she heard and serve impartially. Except for her, none of the jurors whose voir dire is excerpted in the dissent's Appendix actually served on the jury.

We do not dispute defendant's contention that this case was the subject of widespread and inflammatory publicity throughout the region during the spring of 1983. However, our independent review of the record of the jury voir dire impels us to conclude that a significant portion of the jury array was relatively unexposed to pretrial publicity and that the jurors impaneled constituted a fair and impartial trial jury.

C. Prosecutorial Misconduct

Defendant claims that he was denied an impartial jury as a result of the massive pretrial publicity which included and was encouraged by inflammatory statements made by the Monmouth County Prosecutor. The prosecutor arranged several press briefings in April, May and June 1983, during which he discussed the murders for which he was seeking to indict Biegenwald. The prosecutor gave the names, ages and addresses of the victims. He assumed defendant's guilt, and commented on his motive, events surrounding the crimes, and portions of the State's evidence. Among the prosecutor's statements were that defendant committed the murders "because he wanted to see someone die" on those nights; that defendant shot Ms. Olesiewicz "for the sheer pleasure of seeing her die"; and that Biegenwald was a "perverted, sick individual." On July 29, 1983, the trial court denied defendant's motion to dismiss the indictment on the basis of prosecutorial misconduct.

Disciplinary Rule 7-107(A), (B) of the Code of Professional Responsibility states, in pertinent part:

(A) A lawyer participating in or associated with the investigation of a criminal matter shall not make or participate in making an extrajudicial statement that he expects to be disseminated by means of public communication and that does more than state without elaboration:

(1) Information contained in a public record relating to the matter.

(2) That the investigation is in progress.

(3) The general scope of the investigation including a description of the offense and, if permitted by law, the identity of the victim.

(4) A request for assistance in apprehending a suspect or assistance in other matters and the information necessary thereto.

(5) A warning to the public of any dangers.

(B) A lawyer or law firm associated with the prosecution or defense of a criminal matter shall not . . . make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to:

(1) The character, reputation, or prior criminal record (including arrests, indictments, or other charges of crime) of the accused. . . .

(6) Any opinion as to the guilt or innocence of the accused, the evidence, or the merits of the case.

This Court has held that Disciplinary Rule 7-107(B)(6) "prohibits an attorney involved in an ongoing criminal trial from making extrajudicial comments concerning the guilt or innocence of a criminal defendant or the quality of the evidence or the merits of the case when such remarks are . . . reasonably likely to interfere with a fair trial." In re Rachmiel, 90 N.J. 646, 657 (1982) (emphasis added). The disciplinary rule creates a "rebuttable presumption that statements on these topics are reasonably likely to affect the proceedings." Id. (citing Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 251 (7th Cir.1975), cert. den. sub nom. Cunningham v. Chicago Council of Lawyers, 427 U.S. 912, 96 S. Ct. 3201, 49 L. Ed. 2d 1204 (1976)).

The State argues that the prosecutor's comments were permissible because they disclosed only the results of an ongoing investigation. For support, it relies on Disciplinary Rule 7-107(A)(3), which authorizes unelaborated statements by a prosecutor as to "[t]he general scope of the investigation including a description of the offense and, if permitted by law, the identity of the victim." We find this argument to be specious in the context of the inflammatory pretrial comments by the prosecutor in this case. The prosecutor's public statements that defendant murdered Olesiewicz "for the sheer pleasure of seeing her die" or "because he wanted to see someone die that night" can hardly be justified as disclosures warranted by the "general scope of the investigation including a description of the offense. . . ." DR 7-107(A)(3). Rather, such statements are clearly expressions of opinion on "the evidence, or the merits of the case," unquestionably proscribed by Disciplinary Rule 7-107(B)(6). Particularly in a case like this one, characterized by feverish media interest and broad publicity throughout the state, such comments by the prosecutor are highly inappropriate and inconsistent with his duty to insure that justice is done. See State v. Johnson, 65 N.J. 388, 392 (1974); State v. Farrell, 61 N.J. 99, 104 (1972).

We here reiterate our firm position as stated in State v. Ramseur, supra, 106 N.J. 123, that prosecutors in capital cases have a special obligation to seek justice and to not simply convict, and that we will scrupulously review conduct that falls short of this high standard:

Prosecutors in capital cases are hereby on notice that in the future, this Court will not hesitate to refer on its own motion possible violations of the special ethical rules governing prosecutors to the appropriate district ethics committee for disciplinary action. We are well aware that within the legal profession the prosecutor's double calling -- to represent vigorously the state's interest in law enforcement and at the same time help assure that the accused is treated fairly and that justice is done -- is uniquely challenging. That challenge is what makes the prosecutor's mission such a difficult one and such an honorable one. A prosecutor willing to engage in proscribed conduct to obtain a conviction in a capital case betrays his oath in both its respects. Not only does he scoff at rather than seek justice, he also represents the state poorly. Because death is a uniquely harsh sanction, this Court of necessity will more readily find prejudice resulting from prosecutorial misconduct in a capital case than in other criminal matters; prosecutors who fail to take seriously their particularly stringent ethical obligations in capital cases thus strongly risk postponing, and even jeopardizing, the enforcement of the law. We are confident that our prosecutors will be equal to this ethical challenge, but we also stand ready to take whatever action is required to remedy any abuses.

[ Id. at 323-324.]

However, "[p]rosecutorial misconduct is not ground for reversal of a criminal conviction unless the conduct was so egregious that it deprived defendant of a fair trial." Id. at 322. Despite our strong disapproval of the prosecutor's statements, we are persuaded that these statements, occurring as they did in April and May of 1983, did not "substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his defense."*fn5 State v. Bucanis, 26 N.J. 45, 56, cert. den., 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958). As we noted in connection with the change of venue motion, the pretrial publicity subsided in June, and the trial court's July 1983 order

barring statements by counsel and adjourning the trial date until November further served to mitigate the adverse impact of the prosecutor's comments on the jury panel. We conclude, based on our careful review of the jury voir dire, that the interval between the prosecutor's offending statements and the actual trial was sufficient to dilute their prejudicial effect and preserve defendant's right to trial by an impartial jury.


Reasonable Doubt Charge in Guilt Phase

Defendant next contends that the trial court's charge regarding the prosecution's obligation to establish guilt beyond a reasonable doubt was improper and constitutes reversible error. He focuses on the following from the charge:

What do we mean by reasonable doubt?

The expression is very basic and really very simple.

A reasonable doubt is a doubt based on reason, reasoning processes.

Defendant does not construct any argument based on the quoted language, apparently content to rest on the implication that it is somehow wrong. Not confronted with any specific claim of error, we will not reach out to manufacture one.

We would be remiss, however, were we not to caution our trial courts against using any charge that has a tendency to "understate[ ]" or "trivialize the awesome duty of the jury to determine whether the defendant's guilt was proved beyond a reasonable doubt." Commonwealth v. Ferreira, 373 Mass. 116, 364 N.E. 2d 1264, 1272 (1977). Any instruction that suggests that the concept of reasonable doubt is "simple" may run the risk of detracting from both the seriousness of the decision and the State's burden of proof. Because "[t]he degree of certainty required to convict is unique to the criminal law," 364 N.E. 2d at 1273, we would discourage the resort to any language that tends to minimize the indispensable nature of the "reasonable doubt" standard. See In re Winship, 397 U.S. 358, 364,

90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368, 375 (1970); United States v. Pine, 609 F.2d 106, 108 (3d Cir.1979).

Turning to Biegenwald's specific claims of error, they are that the charge (1) "did not ask whether the jurors had any doubt existing in their minds," (2) "did not ask whether or not [the jurors] had given full and impartial consideration to all the evidence," and (3) "did not comment upon the evidence or lack of evidence given by the prosecution nor did it call the jury's attention to the same." None of the contentions has merit.

In pertinent part the trial court's charge on reasonable doubt was as follows:

What do we mean by a reasonable doubt?

The expression is very basic and really very simple.

A reasonable doubt is a doubt based on reason, reasoning processes.

A reasonable doubt then is not a doubt which is based on guesswork.

It is not a doubt based on a hunch.

It is not a doubt based on some sort of idle speculation.

It is not a mere possible doubt.

The test is not proof beyond any possible doubt.

That is not the test.

It's not any imaginary doubt, because you may well know, everything in life, I suppose everything in human affairs is subject to some possible or imaginary doubt.

That is not the test.

The test is not proof beyond a possible doubt.

The test is proof beyond a reasonable doubt.

The law does not require absolute certainty, because as Benjamin Franklin said, other than death and taxes, there are very few things in life that are absolutely certain, so that is not the test, reasonable doubt.

Proof beyond a reasonable doubt is the test.

What is a reasonable doubt?

By way of other words to express the same concept, a reasonable doubt is an honest and reasonable uncertainty as to the guilt of the defendant which exists in your minds after you have given full and impartial consideration to all of the evidence in the case. . . .

In essence, it's a doubt which a reasonable thinking person has after carefully weighing all of the evidence in the case.(Emphasis added.)

Whereas standing alone the definition of reasonable doubt as "a doubt based on reason, reasoning processes," might well be deemed inadequate, when read in conjunction with the entire

charge it had no capacity to mislead the jury. Challenged portions of a jury charge must not be read in isolation; rather, "the charge should be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). Included in the portion of the charge quoted above is the court's definition of reasonable doubt as an "honest and reasonable uncertainty as to the guilt of the defendant which exists in your minds after you have given full and impartial consideration to all of the evidence in the case." This definition, coupled with the additional comments of the court, fully and accurately apprised the jury of the State's burden of proof beyond a reasonable doubt. Read in context the challenged portion does not constitute error.

Proceeding to defendant's next point, we note that had the trial court charged the jurors, as defendant contends was required, that a finding of guilt had to be based on the absence of "any doubt existing in their minds," the instruction would have been manifestly incorrect. We need not tarry on the point longer than to repeat a basic principle of criminal law: the prosecution must establish all elements of the crime beyond reasonable doubt, e.g., In re Winship, supra, 397 U.S. at 363, 90 S. Ct. at 1072, 25 L. Ed. 2d at 375; State v. Bess, 53 N.J. 10, 18 (1968), rather than beyond any possible or conceivable doubt.

Defendant's next argument, that the court failed to instruct the jury on its obligation to give "full and impartial consideration to all the evidence," is simply not supported by the record. One need look no further for refutation than the underscored portion of the charge above; and if one does look further, one will find that the charge is replete with admonitions to the effect that the jurors are to decide the case on the basis of all the evidence.

Finally, defendant complains of the trial court's failure to have commented on the evidence -- an objection not made at trial and hence one not eligible for appellate review "unless it is of such a nature as to have been clearly capable of producing

an unjust result," R. 2:10-2, that is, "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. den., 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970) (quoted in State v. Latimore, 197 N.J. Super. 197, 213 (App.Div.1984), certif. den., 101 N.J. 328 (1985)). In any event we know of no authority -- nor does defendant point to any -- standing for the principle, constitutional or otherwise, that a court is compelled to make such comment. See Stevens v. Roettger, 22 N.J. Super. 64, 66 (App.Div.1952) ("It is elementary that a trial judge is not obliged to charge matters or comment with regard to the facts of the case . . .").

The issue of the trial court's comment on the evidence usually arises in a different context, one in which a defendant argues that the court should not have recited the facts of the case. In those situations our decisions have uniformly recognized the right of a trial court to comment on the evidence, e.g., State v. Mayberry, supra, 52 N.J. at 439-40; State v. Laws, 50 N.J. 159, 176-77 (1967), reargued, 51 N.J. 494, cert. den., 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968), and "oftentimes" even the duty to do so, Mayberry, supra, 52 N.J. at 439-40; Laws, supra, 50 N.J. 176-77. Ordinarily, however, trial courts comment on evidence only sparingly, if at all, the better to assure that the ultimate determination of facts is made by the jury. See L. Arnold, 32 New Jersey Practice, Criminal Practice and Procedure ยง 981 (2d ed. 1980). The rare situation in which a trial court exercises its discretion to delve into the facts is usually one in which the evidence is complex or the potential for confusion is great; and when that situation occurs, any comment must be designed to avoid unduly influencing or otherwise invading the province of the jury. In this case, the evidence was not overly complex or confusing, and the trial

court was well within its discretion in choosing not to comment on the evidence. We find no error.


Sentencing Issues

A. Jury Waiver

Biegenwald claims reversible error in the trial court's denial of "defendant's fundamental constitutional right to trial by jury" during the sentencing proceeding under the Act. He moved before the trial court to waive the jury in the sentencing phase of his trial, claiming that "the massive publicity generated by his trial" precluded his receiving a fair and just sentence. (We note that under this point heading defendant does not make a "pretrial publicity" argument, which is made in another context. See supra at 30-37.)

Although defendant signed a written waiver relinquishing his right to a jury trial for the separate sentencing phase, the prosecutor refused to consent to a non-jury trial. Under the Act, such consent is required in order for defendant to waive sentencing by jury. Section c(1) of the Act states:

The court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or pursuant to the provisions of subsection b. of this section. Where the defendant has been tried by a jury, the proceeding shall be conducted by the judge who presided at the trial and before the jury which determined the defendant's guilt except that, for good cause, the court may discharge that jury and conduct the proceeding before a jury empaneled for the purpose of the proceeding. Where the defendant has entered a plea of guilty or has been tried without a jury, the proceeding shall be conducted by the judge who accepted the defendant's plea or who determined the defendant's guilt and before a jury empaneled for the purpose of the proceeding. On motion of the defendant and with consent of the prosecuting attorney the court may conduct a proceeding without a jury. (Emphasis added.)

In addition, Rule 1:8-1(a) specifically requires the consent of the prosecutor as a condition to a defendant's waiver of a jury in the sentencing phase of death penalty proceedings.

The prosecutor's stated reason was that a jury that had witnessed defendant's trial, had determined his guilt, and was intimately familiar with the facts of the case, would be in the best position to determine, on the basis of the evidence, whether the factual prerequisites for imposition of the death penalty had been established.

In denying defendant's motion for a non-jury sentencing proceeding, the trial court observed that even if the prosecutor had consented, the court would not have acceded to the waiver. The court's "basic reason" for this position was a belief that in capital sentencing the collective wisdom of the jury is preferable to a determination by a single judge.*fn6

On this appeal defendant argues that because the sentencing phase is a "separate and distinct criminal proceeding[ ], a defendant must be afforded a constitutional right to waive a jury trial, which right is not subject to the unilateral rejection of a prosecuting attorney." The opportunity for prosecutorial veto of the waiver of jury trial, claims defendant, violates his "constitutional right to trial by jury, which of necessity embodies the consequential right to waive this protection" -- a protection "long established for [defendant's] benefit." He does so without providing any authority for the proposition that he has a right to waive a jury.

We disagree with defendant's sixth amendment claims. The case law is clear on this matter. In Singer v. United States, 380 U.S. 24, 85 S. Ct. 783, 13 L. Ed. 2d 630 (1965), involving a prosecution for violation of a mail fraud statute, petitioner, arguing in favor of his unrestricted right to waive a jury and submit to a non-jury trial, made contentions similar to those

urged by this defendant: that the constitutional provisions relating to jury trial are "for the protection of the accused," and that his "unconditional right . . . to a trial by jury" gives rise to "a correlative right to have his case decided by a judge alone if he considers such a trial to be to his advantage." Id. at 25-26, 85 S. Ct. at 785, 13 L. Ed. 2d at 632-33. Specifically, petitioner challenged Rule 23(a) of the Federal Rules of Civil Procedure, which, like our Rule 1:8-1(a), called for the consent of the government and the approval of the court before defendant's waiver of jury trial could be recognized. Id. at 24, 85 S. Ct. at 783, 13 L. Ed. 2d at 632. The Supreme Court concluded that "the Constitution neither confers nor recognizes a right of criminal defendants to have their cases tried before a judge alone," id. at 26, 85 S. Ct. at 785, 13 L. Ed. 2d at 633, and hence the Federal Rule calling for the government's consent and the court's approval "sets forth a reasonable procedure governing attempted waivers of jury trials." Id.

In the course of his opinion for the Court in Singer, Chief Justice Warren reviewed the English common law of trial by jury, the colonial experience, and the Constitution and its judicial interpretations. Id. at 27-34, 85 S. Ct. at 786-90, 13 L. Ed. 2d at 633-37. From all of these he drew the conclusion that "[t]he ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right." Id. at 34-35, 85 S. Ct. at 790, 13 L. Ed. 2d at 638. The Court concluded:

In light of the Constitution's emphasis on jury trial, we find it difficult to understand how the petitioner can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant's only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury -- the very thing that the Constitution guarantees him.

[ Id. at 36, 85 S. Ct. at 790, 13 L. Ed. 2d at 638.]

This Court has adopted the same position in State v. Belton, supra, 60 N.J. 103: "The restriction against a unilateral waiver

of jury trial by the accused presents no constitutional infirmity." Id. at 110 (citing Singer v. United States, supra, 380 U.S. 24, 85 S. Ct. 783, 13 L. Ed. 2d 633).

The United States Supreme Court has recently held that in capital sentencing whether a judge or jury shall make the ultimate decision may be determined by state statute. In Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984), the Supreme Court reviewed Florida's capital sentencing statute, which permits the trial court to override a jury's recommendation for life imprisonment. The Court addressed the issue of whether the "capital sentencing decision is one that, in all cases, should be made by a jury," id. at 458, 104 S. Ct. at 3161, 82 L. Ed. 2d at 351, and the Court recognized the fact that "despite its unique aspects, a capital sentencing proceeding involves the same fundamental issue involved in any other sentencing proceeding -- a determination of the appropriate punishment to be imposed on an individual." Id. at 459, 104 S. Ct. at 3161, 82 L. Ed. 2d at 352.

As the Court indicated, the primary question should not be who makes the sentencing decision, but how that decision is made: "[t]he sentencer, whether judge or jury, has a constitutional obligation to evaluate the unique circumstances of the individual defendant. . . ." Id. at 459, 104 S. Ct. at 3161, 82 L. Ed. 2d at 351 (emphasis added). The Act meets that obligation. See Sec. c(5)(h). We can find no constitutional infirmity in its decision not to give a defendant an automatic right to insist on a non-jury determination of the sentencing issues.

B. Aggravating Factor c(4)(c) as Applied to Defendant

While defendant does not claim any error in the court's charge on aggravating factor c(4)(c) ("[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"), we treat the issue on our own motion because of its potential importance in other cases.

The trial court first quoted the factor. Based on our construction, the trial court should not quote the statute since the initial part of it serves no function under our definition. See State v. Ramseur, supra, 106 N.J. at 211. It will serve only to confuse the jury to tell it that it must find that the murder was "outrageously or wantonly vile, horrible or inhuman," and then later instruct the jury to disregard that portion of the factor. There is no purpose in explaining to the jury why this first portion of the statute is irrelevant for its purposes. Mentioning it can only cause confusion.

After quoting the statute, the court continued by noting that

although in a certain sense every murder may be viewed as vile, horrible or inhuman, that doesn't mean that there is an automatic aggravating factor in every case of murder. The Legislature had something more in mind by making that an aggravating factor. What is necessary to exist is that the attack by the defendant on Anna Olesiewicz, the victim, involved either torture or conduct indicating a depraved mind or that the attack was so savagely outrageously cruel or violent, that the adjectives wantonly, vile or horrible or inhuman are justified.

That was the entirety of the court's instructions on this aggravating factor in its main charge. The jury, quite predictably, after deliberating a very short time, returned to the courtroom with the request that the court "re-explain Part Two of the aggravating factors, clearer interpretation, because commas are confusing." The jury was obviously referring to aggravating factor c(4)(c). What follows is the colloquy between the court and the jury:

THE COURT: The question you sent out is this: Re-explain part two of the aggravating factors, clearer interpretation, because commas are confusing.

I gather that you're looking at number two on that verdict sheet?

The commas were put in there by the Legislature.

I just want you to know that.

That's the way the Legislature defined it and gave it to you in the legislative language.

In what sense are the commas, it's all in the disjunctive.

The word "or" is in there, that murder was outrageously wanton or vile or horrible or inhuman, in that it involved torture, or depravity of mind or an aggravated battery to the victim.

That's I think what you can interpolate under English Grammar for the commas, is that what was the heart of the problem may be you can give me --

THE FORELADY: The question also was, does the torture, the depravity of mind and aggravated battery, do any one of those three things have to apply?

That's the point.

THE COURT: Any one of the three?


THE COURT: If it involved either torture or depravity of mind or aggravated battery is that -- I think that's a correct English reading of what the legislature wrote.

It's in the disjunctive.

As I say, any one of those.


THE COURT: If it's still confusing, try to extract what is the heart of the confusion, and to put it to me in a definite question.


It is obvious that this jury knew only that which a reasonably intelligent person would gather from reading this part of the statute, and that, decidedly, is not enough to guide anyone's discretion in this decision. See Godfrey v. Georgia, 446 U.S. 420, 429, 100 S. Ct. 1759, 1765, 64 L. Ed. 2d 398, 406-07 (1980). The total impact of the trial court's charge in this regard was to leave the jury with this portion of the statute unexplained. As we stated in State v. Ramseur, supra, 106 N.J. at 198-199, Section c(4)(c) standing alone completely fails to channel the jury's discretion and is impermissibly vague.

What was needed was a relatively simple charge that directed the jury to consider only Section c(4)(c) of the statute as we construe that section in State v. Ramseur, supra, 106 N.J. at 198-211. Under our interpretation of Section c(4)(c) there was insufficient evidence for the jury to consider that the murder of Anna Olesiewicz was accompanied by either an aggravated battery or torture. Assuming the State claimed the defendant's acts fell within this Court's definition of "depravity of mind," the trial court could have instructed the jury as follows:

The State claims that the killing of Ms. Olesiewicz involved depravity of mind. If you unanimously find beyond a reasonable doubt that it did, then your answer shall be yes to that question on the jury sheet "That this murder involved depravity of mind." In order to find that the killing involved depravity of mind, you must find that defendant killed his victim without any purpose or

meaning because he had no reason for killing Ms. Olesiewicz other than wanting to kill.

These instructions should also direct the jury to consider all the circumstances of the murder in determining the defendant's intent, because a defendant may not state his or her motive for killing.

The charge here failed to conform this section of the statute with constitutional requirements, and this failure would be reversible error had it been raised either at trial or on appeal. Since the sentencing proceedings are to be retried in any event, we need not decide whether, despite such failure, the matter would be reversed on our own motion because of this error.

What we do decide, however, is that, contrary to our dissenting colleague's assertion, on retrial of the sentencing proceedings the State should not be foreclosed by considerations of double jeopardy from arguing the existence of aggravating factor c(4)(c). The jury should be permitted to consider that aggravating factor to the extent that it includes as one of its elements "depravity of mind" as we have defined it today. And only to that extent: we agree that the State will not be permitted to argue that the evidence warrants a finding that either an "aggravated battery" or "torture" of the victim satisfied the requirement of c(4)(c), for we have already determined that under a correct view of these factors the evidence was insufficient to go to the jury. To allow the State another opportunity to produce evidence of an "aggravated battery" or "torture" that it failed to muster at the original proceedings would run counter to fundamental double jeopardy principles. See State v. Tropea, 78 N.J. 309, 316 (1978) (citing Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S. Ct. 2151, 57 L. Ed. 2d 15 (1978)).

That is not to say, however, that on retrial the jury should not be entitled to consider whether there is sufficient evidence of "depravity of mind" to justify imposition of the death sentence based on that element of c(4)(c). Although the State's

argument may have focused on Biegenwald's commission of an "aggravated battery," the trial court charged -- and at the jury's request recharged -- that in order to satisfy c(4)(c), only one of these conditions, namely, torture, depravity of mind, or an aggravated battery, had to exist. The jury concluded that aggravating factor c(4)(c), as well as c(4)(a), had been established beyond a reasonable doubt; but the verdict does not reveal which feature or combination of features of c(4)(c) the jury accepted. It may well have concluded that "depravity of mind" had been demonstrated, but if so, it reached that conclusion on the basis of an improper charge. As we have demonstrated, the trial court's instructions on c(4)(c) did not meet our formulation of that aggravating factor.

The evidence of "depravity of mind" at defendant's trial was such as to permit a jury finding, under a correct instruction, that the State had demonstrated that discrete element of the aggravating factor. We suspect that the evidence of "depravity" at the new sentencing hearing will be the same, but of course it need not be. The point is that the jury should be permitted to assess, under a correct instruction, whether "depravity" has been shown. The United States Supreme Court has recently held that

the Double Jeopardy Clause does not require the reviewing court, if it sustains [the] claim [that the evidence was as a matter of law insufficient to support the aggravating circumstances on which defendant's death sentence was based], to ignore evidence in the record supporting another aggravating circumstance which the sentencer has erroneously rejected.

[ Poland v. Arizona, 476 U.S. , , 106 S. Ct. 1749, 1756, 90 L. Ed. 2d 123, 133 (1986).]

This case does not involve rejection of an aggravating factor by a jury followed by a retrial of that factor; here, retrial will be on a factor that the jury found to exist. The defendant cannot complain that the fact-finder will be given the opportunity to make its determination under correct instructions. We conclude that double jeopardy considerations will not bar defendant's exposure to a death sentence at the retrial of the sentencing phase of the case.

C. Weighing Aggravating and Mitigating Factors

While defendant did not raise the issue either at trial or on appeal, we find that the trial court's instructions in the sentencing proceeding constituted plain error of a nature to warrant our consideration sua sponte. See State v. Grunow, 102 N.J. 133, 148-49 (1986) (even in absence of objection, court must instruct jury on fundamental principles that control case); State v. Federico, 103 N.J. 169, 176 (1986) (obligation extends to proper charge on State's burden of proof). The error concerns the jury's function in balancing aggravating factors against mitigating factors, a function that leads directly to its ultimate life or death decision. Its effect was to allow a death sentence without a finding that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt. We hold that such a finding was required by the Act at the time of defendant's trial as a matter of fundamental fairness and that its absence mandates reversal and retrial of the penalty decision. Legislative policy also mandates this result, as indicated by the 1985 amendments to the Act; those amendments, furthermore, provide an independent basis for this result.

At the penalty phase, the prosecutor sought to establish two aggravating factors: that "[t]he defendant has previously been convicted of murder," Sec. c(4)(a), and that "[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim," Sec. c(4)(c). In support of those factors, the prosecutor submitted a certified copy of the 1959 murder conviction of defendant*fn7 and asked the jury, based on the testimony

at the guilt phase, to consider the murder outrageously or wantonly vile, horrible, or inhuman in that it involved an aggravated battery to the victim.

Defendant sought to establish three mitigating factors: (1) that defendant was under the influence of extreme mental or emotional disturbance, Sec. c(5)(a); (2) that defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect or intoxication, Sec. c(5)(d); and (3) that other mitigating factors existed relative to the defendant's character or record, or to the circumstances of the offense, Sec. c(5)(h). To substantiate those factors, the defense presented a forensic psychiatrist who testified that although Beigenwald was not legally insane, he suffered from a severe personality disorder known as anti-social personality with paranoid traits.

In its instructions, the court charged with respect to balancing aggravating and mitigating factors:

If you find at least one aggravating factor exists, and it has been proven beyond a reasonable doubt, and also you're satisfied that a mitigating factor exists, so you will check yes, on at least one aggravating factor, yes, on at least one mitigating factor, and then you must weigh the value that is represented by the mitigating factor or factors, one, two, three, whatever it is, against the value represented by each aggravating factor that you checked, and check on the verdict sheet whether in your judgment each aggravating factor is or is

not outweighed by the combination of whatever mitigating factors you have found to exist.

Unless each aggravating factor which you find is outweighed by the mitigating factor, or aggravating factors,*fn8 or a combination of them, whichever you find, unless it is outweighed by the mitigating factors and you bring that back on your verdict sheet, the sentence will be death.

If each aggravating factor is outweighed by the mitigating factor or factors, or combination of them, the sentence then will be life imprisonment, with ineligibility for parole up to thirty years, so there is a weighing process and it occurs only if you found that both an aggravating factor, at least one, and at least one mitigating factor do exist, then you have to weigh the values that are represented by those factors, and come to your judgment as to whether the mitigating factor outweighs or does not outweigh the aggravating factor, which you found.(Emphasis added.)

The special verdict form submitted to the jury asked it to find the existence of aggravating and mitigating factors and to determine if each aggravating factor was outweighed by the mitigating factors. The form completed by the jury is reproduced below:




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