On appeal from the Superior Court, Law Division, Passaic County.
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Pollock, O'Hern, Garibaldi and Stein. Concurring in result -- Justice Handler. The opinion of the Court was delivered by Garibaldi, J. Handler, Justice, concurring.
[113 NJ Page 242] In November 1984, a Passaic County jury convicted Marie Moore of the capital murder of Theresa Feury and sentenced her to death. She appeals directly to this Court as of right. See R. 2:2-1(a)(3). We reverse both defendant's murder conviction and sentence of death. We reverse defendant's capital murder conviction because the trial court failed to charge the jury regarding diminished capacity and the lesser-included offenses of manslaughter and aggravated manslaughter. We reverse the sentence of death because (1) the trial court failed
to instruct the jury properly regarding the weighing of mitigating and aggravating factors in accordance with our decision in State v. Biegenwald, 106 N.J. 13, 62 (1987); and (2) the evidence does not support the jury's finding that defendant committed the homicidal act "by her own conduct" as required by N.J.S.A. 2C:11-3c. We remand the matter to the Law Division for a new trial.
On December 22, 1983, the police searched an apartment that the defendant formerly occupied, and discovered in a crawl space behind the bedroom wall the partially mummified body of Theresa Feury. The investigation into the young girl's death revealed the bizarre pattern of conduct that occurred in defendant's household for a period of time commencing in September 1981 and ending in December 1983. Defendant's conduct during this two-year period formed the basis for the thirty-three count indictment that charged defendant with the murder of Theresa Feury, as well as numerous crimes committed against other victims. To simplify this complex factual scenario, we will subdivide our recitation of the facts into three distinct time periods. Each time period corresponds to the presence in the Moore household of different persons who were victimized at the defendant's direction.
A. First Time Period: September 1981-November 1981
In September 1981, the Moore household was located at 1031 Madison Avenue, Paterson, New Jersey. Living in the household at that time were (1) the defendant, Marie Moore (Marie), age thirty-five; (2) Tammy Moore, defendant's daughter, age twelve; (3) Harriet Bayne, a friend's daughter left in defendant's care, age twelve; and (4) Mary Gardullo, defendant's friend of several years, age fifty. Sometime in July or August 1981, three other children began to visit the Moore household
on a regular basis. These other children were Ricky Flores, age fourteen, Theresa Feury, the murder victim, age twelve, and Luis Mantalvo, age thirteen. The summer of 1981 was a fun-filled one for the children. Defendant Moore took them to beaches, amusement parks, and bowling alleys. The children enjoyed spending time in the Moore household, and developed great affection for defendant during the course of the summer. Such was their affection for defendant that they began to call her "Ma."
On or about September 13, 1981, changes began to occur in the Moore household. At that time, defendant informed the children that her ex-husband was the famous singer and song-writer, Billy Joel. This, of course, was untrue. Moore in fact never had been married. Nevertheless, Moore told the children that Billy Joel had returned to establish some order in the household and for his daughter Tammy's engagement to Ricky Flores, who had been Tammy's boyfriend throughout the summer. Defendant told the children that things had gotten too wild in the house, and that Billy would see to it that matters were straightened out. Naturally, the children were puzzled by defendant's story. Moments later, defendant answered the phone in the living room, and asked the children to gather there. She then informed Tammy, who was convinced that Billy Joel was her father, and Mary Gardullo that Billy wanted them to stay out of the living room.
Once assembled in the living room, Marie began to relate to the children the instructions that she was allegedly receiving from Billy Joel over the phone. She described to them that Billy Joel was a member of the mafia, that he would be assigning household chores to each child, and that he would have a bomb go off in the house if the children were to disobey his orders or tell anyone outside the household what was going on at 1031 Madison Avenue. Marie also told the children that Billy Joel or other members of the mafia would harm the children's family members if they disobeyed. According to Marie, Billy wanted to put Ricky Flores in charge of the
household in order to see if he could be an effective head of household once he married Tammy. Marie then instructed the children to return to the house on a daily basis.
Throughout this first time period, Marie would give the children a list of rules and chores that she said she received from Billy over the phone. Their chores would change on a weekly basis on orders from Billy. After school, the children arrived at the Moore household as requested. Shortly thereafter, the phone rang. It was Billy. While ostensibly speaking to Billy, Marie instructed the children to recite the list of rules she had given them earlier that morning. If one of the children did not recite the rules correctly, Marie informed Ricky that Billy wanted him to discipline that child so that the child would remember the rules in the future. Thus began the cycle of punishments in the Moore household.
After enduring their punishments, the three children then performed their assigned chores. At a pre-arranged time, Marie made a call to Billy. Marie told Ricky that Billy wanted him to inspect the children's work. Ricky conducted his inspection and reported to Marie that the others had done an adequate job. Marie replied that Billy said that the cleaning was not done properly because he knew that there was dirt under the kitchen table. Ricky then found dirt under the table and told Marie that Billy was right. Marie then related Billy's instruction that the children be beaten with the bat again. Ricky would beat the children for these "failures," and Marie would direct Ricky while talking on the phone with Billy.
All of the children and Mary Gardullo believed that Billy existed and that Marie was speaking with him on the phone. Defendant provided proof of his existence in a number of ways. First, she received phone calls, instead of just making them to Billy, thus showing that he was in touch with her. The children did not know that Moore could make these phone calls herself, using techniques that she learned when working for the phone company as a telephone operator. Second, Mary Gardullo had
been exposed to the Billy character in 1978 when she accompanied Moore to California, and because of the experience she had in California, and because she trusted and liked Moore, she believed in Billy's existence and feared him. When she heard about the first phone call, she became very upset, and her reactions helped to further convince the others that Billy existed. Third, the phone inspections showed that Billy knew what was going on in the household. These instances reinforced the children's belief that Billy existed, and thus their fear that as a member of the mafia he could hurt them and their families if they did not keep coming back to the Moore household.
Harriet, who finally escaped the household in late November, bore the brunt of the "punishments" during the first time period because she lived in Moore's apartment. Luis Montalvo, who left at the end of October, endured physical abuse for less than two months. His punishments, however, took a heavy physical toll on him. Mary Gardullo was not beaten at the start, but punishments did start in October because she was butting in and being "nosey." Theresa, who came to the household every morning and afternoon, was beaten regularly during this first time period.
Luis visited the household only during the first time period. The beatings and torture that he had to endure were lessened somewhat because his family lived close by and he had to meet his parents' curfew. At the end of October, Marie, fearful that Luis' family would intrude, summoned Luis into the living room where she and Ricky were sitting. Moore told Luis that Billy had said that he could go home and would not have to return to the Moore household. Moore then told Luis that Ricky would "give him something to remind him not to say anything." Ricky took Luis to Mary Gardullo's room, where he instructed Luis to raise his hands over his head. Ricky then beat him with his fists, bloodying his nose. After this beating, Luis left the Moore household for good.
Shortly before Luis left the household, on or about October 25, 1981, two important events occurred: Ricky Flores became a permanent resident, and Billy began to speak and issue instructions through the body of Marie Moore. Because defendant now "became" Billy, the phone calls ceased. The first time that Moore "became" Billy occurred soon after Flores moved in as a permanent resident. Moore came back to the apartment and told Mary, Harriet, Theresa, Tammy, Luis, and Flores that Billy's men pulled her over and gave her an injection that would allow Billy to come into her body and speak through her. Moore asked them to keep giving her coffee because of the drug that had been injected. They were sitting in the kitchen drinking coffee and then Marie put her hands over her face, removed them and said, "I'm not Marie, I'm Billy".
The children and Mary Gardullo believed that Billy was in Moore's body because she sounded different. Her voice was "really cold", and she began "talking like a man [and] her voice got deeper." In addition, she sounded more demanding, had a "meaner voice" and "she swore a lot," which was something that Moore had not done before. After this initial occasion, Moore began to change into Billy regularly, and would give Flores orders in the masculine voice.
The week immediately preceding his move to the Moore household, Ricky's parents grounded him after discovering that he had not been attending school. Ricky's mother became suspicious when Moore called her on Friday, October 16th, to tell her falsely that her son was working at the shore for the weekend. Mrs. Flores had explicitly told Ricky to be home that night. Ricky's mother then called the school. She discovered that he had not been going to school, and that a woman posing as Ricky's mother had told the school that her son had injured his back and could not attend school. This woman was Marie Moore.
When Flores returned home on Sunday night, October 18th, his mother told him that he would be grounded and that she or
his father would take him to school and bring him home each afternoon. That Monday morning and the other times that she went to and from school that week with her son, Mrs. Flores noticed Marie Moore following her in the Ford Pinto that Moore drove.
On Saturday morning, Flores left his parent's home for good. On leaving his parent's home, Flores ran to Moore's car, which was waiting on the corner. Moore told him that he would have to stay in the house for four weeks so that he could get her off the drugs that Billy said she was taking. Earlier, Moore had told him that Billy wanted him to help her, and Flores had taken Moore's keys and pills home, supposedly so that she could not go out or take drugs. Thus, Moore's statement that "Billy" wanted him to stay with her for four weeks to get her off drugs seemed reasonable to Flores.
Moore and Flores were not sexually intimate during this first time period. However, during this time period, Flores and Tammy discontinued their relationship. The break-up occurred because Billy told them that they could not see each other anymore. Moore and Flores were physical in other ways. Moore hit Flores for failing to keep the other children in line, or for supposedly lying to Billy on one occasion, and she would tell him that Billy had ordered the punishment. Flores would hit Moore approximately twice a day with either the bat, his hands, or a book. At times, Moore seemed to enjoy the punishment, teasing Flores that he did not hit hard enough.
After Flores moved in permanently, he continued to keep in touch with his mother, phoning her two to three times a day. Flores asked Moore if he could go back home but was told that he had to stay permanently. When Flores called home he would tell his mother that he was happy living away from home and that he did not want to move back. He would tell her this in an angry tone because Moore told him to be distant with his mother and not to tell her that he was at her house. Moore told Flores that his mother had filed a complaint against him at the
end of October and that this showed that she did not care about him.
After Mrs. Flores filed the complaint, in which Mrs. Flores charged her son with being wayward and incorrigible, the police conducted an investigation. Mrs. Flores regularly called Moore to ask her where her son was, and Moore denied knowing where Flores was staying. Moore even told Mrs. Flores that she could search her house and that she would not find her son, an offer that Mrs. Flores declined. The police and DYFS workers came to look for Flores during this one-month period before Harriet escaped, but Moore would hide him in a crawl space in the middle bedroom.
Throughout this period, Ricky continued to administer beatings and other punishments to Harriet and Theresa at Moore's direction. Ricky continued to beat Harriet and Theresa with the whiffle ball bat a number of times each day. Ricky also beat Harriet, Theresa, and Mary with medical books, instead of the bat. Flores began to use the books in early October because Moore said that Billy, who was on the phone, had told her that the bat was not hurting them enough.
Ricky did not beat Mary Gardullo initially, but began to do so during the latter part of this time period when she tried to keep Ricky from beating Harriet. Billy, who was still on the phone at this time, supposedly told Moore that Mary should do chores and be punished because she was too nosey and was butting in. Ricky then began to punish Mary as he did the children.
After two failed attempts, Harriet finally escaped from the Moore household on November 27, 1981, ending the punishments and beatings for her. On the day of her escape, Harriet left the Moore household and ran towards her brother's house in Lodi, but because she was unsure of the exact route, she stopped often to ask directions. One person, noting that she was not wearing shoes or a jacket, called the police. When Harriet saw the police car she ran, but the policemen caught up with her and took her to the station.
At the police station, Harriet gave a long statement in which she told the police what happened. She did not, however, mention Flores or Moore by name nor did she give her address, fearing that she would be sent back to Moore's house. She did tell the police that someone named Sir or Boss was beating her at the direction of someone on the phone. Afterwards, the police took her to a hospital for an examination, which revealed the extensive beatings she had received.
Harriet stayed in the hospital for a week and during that time talked to two DYFS caseworkers and gave them Flores' name and Moore's address. DYFS started an investigation based on Harriet's story and the evidence of physical abuse. The DYFS caseworkers went to talk to Moore, who denied that Flores lived there or that any beatings had taken place, and suggested that Harriet might be fantasizing. Moore said this in a very calm and credible manner, presenting the two caseworkers with a dilemma because Harriet's story was quite incredible, yet she had been beaten, and at the same time Moore's denials seemed believable. The DYFS caseworkers recommended that Harriet not return to Moore's household and they sent Harriet to a ninety-day program at a Diagnostic Center.
B. Second Time Period: November 27, 1981 -- May 31, 1982
Harriet's escape and the subsequent DYFS investigation caused some turmoil in the house at the start of the second time period, which begins with Harriet's escape on November 27, 1981, and ends with Mary Gardullo's escape on Memorial Day, May 31, 1982. During the first few weeks after Harriet's escape, investigators went to the apartment in search of Flores and to question Moore. Moore hid Flores, and continued to hide him during this second period, as well as much of the third time period. About two weeks after Harriet's escape, Moore told Flores that Billy ran Harriet over in his car. Flores believed Moore, and this instance further demonstrated to him
the power that Billy wielded and the consequences of disobeying him.
During this second time period, there were only two victims left in the house, Mary Gardullo and Theresa Feury. The punishments during this six month period became increasingly severe. The household relocated from 1031 Madison to the second floor of 989 Madison, a home owned by Ferdinando Ragusa. Ragusa was close to Moore, and she said that he was Tammy's grandfather.
In January 1982, shortly before moving to 989 Madison Avenue, Ricky and Marie became sexually involved. One morning in January 1982, Moore, as Billy, and Flores were talking in the kitchen. Billy told Flores that Marie loved him and wanted to go to bed with him. Billy then asked Flores whether he wanted to be Marie's boyfriend or her son. Flores responded that he perceived Marie as a mother. Billy told Ricky that he should decide which he wanted to be. Billy added, however, that Ricky should not hurt Marie's feelings, and that he had beaten up other guys who mistreated Marie in the past. Ricky then decided to have sexual relations with Marie. When they moved to 989 Madison, the sexual relationship continued.
Moore continued to encourage and direct Flores to punish Mary and Theresa, setting up punishments for the day and showing him different and more sexually deviant forms of torture. Billy encouraged Flores by telling him that he had to compete against other children who were administering punishments in similar households. Flores and Moore, as Billy, would also talk and set up the punishments for the day before Mary and Theresa returned to the house.
The punishments that Flores inflicted on Mary and Theresa were more severe than those he meted out in the first time period, and they increased in severity over time. During the first two weeks after Harriet's escape, Flores and Moore introduced the use of thumbcuffing, which was a very painful procedure in which one thumb would be cuffed to one big toe
while the victim was lying on her stomach. Flores would thumbcuff Mary and Theresa in the nude and force them to remain in that position for close to an hour at a time. Ricky would supplement the thumbcuffing with variety of other punishments, including kicking, blows with a bat or book, and cigarette burns.
Mary left the home on Memorial Day, May 31, 1982. Mary escaped by telling Moore the night before that she wanted to work on Memorial Day so that she could make extra money (time-and-a-half) for the household, and Moore, who wanted the money, told Flores that he should let her go that next morning. Mary went to work that day, but only used the phone to contact her brothers and sisters who took her to the shore, where her family had her talk with a detective from the Toms River Police Department. The Toms River detective, Tom Kerwin, spoke with her for about three hours and she eventually allowed him to look at her body to see the extent of the beatings. Kerwin said that Mary was, "very distraught and emotionally destroyed" and that she was in, "very, very poor physical condition." Detective Kerwin convinced Mary to go to the hospital for medical attention. She later gave a statement to the police, describing the beatings and tortures she endured at Flores' hand. She did not name Billy, but did name Marie Moore as someone who knew what was being done and gave the address, as well as alerting the authorities to the punishments that Theresa was suffering.
C. Third Time Period: May 31, 1982 -- December 28, 1983
The third time period encompasses the events that occurred after Mary Gardullo's escape, leading up to Moore's arrest in December 1983. The allegations that Mary made against Flores and the fact that these events were said to occur at Moore's home in Paterson against Theresa, a juvenile, led the police to refer the matter to Passaic County DYFS and to the Juvenile Division of the Paterson Police Department. DYFS assigned the matter to one of its social workers, Ms. Cathy
Della Pesca, on June 7th. That same day, Della Pesca spoke to Theresa and Tammy at school about the alleged beatings. Both denied the allegations, but told Della Pesca that they had seen Flores recently at the Moore household. Della Pesca then went to see Marie Moore who denied any knowledge of the beatings, stating that "Theresa Feury was her godchild and that she would not allow harm to come to her." Moore also initially denied having seen Flores after January 1982, but changed her story when confronted with Theresa and Tammy's statements that Flores had recently been in the household, and thus admitted that she had last seen him three weeks earlier when he visited briefly.
On the basis of these conversations, Della Pesca spoke to Grace Opresnick, a fellow DYFS worker who had been assigned to the Harriet Bayne investigation. She then contacted the Paterson Police Department to request an escort to Moore's house. On this same day, June 7, Della Pesca returned to 989 Madison with her supervisor, Detective Dolores Most of the Paterson Police Department's Juvenile Division, and Detectives Stell and Dowling. Detectives Stell and Dowling covered the rear of the building, while Most, Della Pesca, and the DYFS supervisor went to the front door and were admitted by Moore.
Theresa tried to escape by the rear door but was stopped by Stell and Dowling who sent her back in. Inside the home, Della Pesca and Most questioned Moore about the alleged beatings and sexual abuse, which she continued to deny. Della Pesca then asked Theresa to undress. When Theresa undressed, Della Pesca saw numerous bruises on her body. Theresa and Moore said they were surprised and that she must have fallen at school.
Della Pesca then made an appointment with a doctor, Mercedes Lecesne, who then examined Theresa two days later, on June 9th. Della Pesca also took photographs of Theresa's body in order to document her injuries. Dr. Lecesne found that the bruising was not consistent with a fall and that it was consistent
with beatings, cigarette burns, and other repeated serious physical abuses.
The day after this examination Della Pesca took Harriet and Theresa to the police to solicit statements from them. Harriet told Detective Most that Flores and Billy, who came through Marie Moore, were responsible for the beatings and abuse that she had suffered. Theresa gave a statement after Harriet, but only after Most assured her that the police were interested in apprehending only Flores, not Moore. Prior to this date, Mary Gardullo visited the station and gave a statement concerning the beatings and abuse to Detectives Stell and Dowling, which Most reviewed prior to calling Moore in for questioning on June 10th.
During her June 10th interview with Detective Most, Moore started to deny the allegations of beatings and abuse. However, when confronted with Mary Gardullo's prior statement to police, Moore admitted that the beatings and abuse had occurred, but claimed that she was also a victim. In the formal statement that followed, Moore claimed that Flores would come to the house on the weekend, that she rejected his sexual advances, and that he would abuse her and Mary Gardullo, who tried to stop Flores from hurting Moore. She claimed that she never saw Flores abuse Theresa and that he never hurt Tammy, but that he did threaten to do so if Moore told on him, which was the reason for her earlier denials.
On June 11, 1982, Della Pesca contacted Moore, who continued to deny that she knew where Flores was at the time. On this same day, Detective Most talked to Luis Montalvo who denied any allegations of abuse. Unknown to Most, Moore had found Luis that morning and had warned him that Billy would get him and his family if he said anything to the police about Flores. Detective Most then contacted Moore and told her that she should call the police if she saw Flores. Moore agreed.
During this third time period, Theresa was the only victim left in the house. The punishments she suffered increased in
severity. During the time between May 31 and September 1, 1982, Theresa visited the house and was abused on a daily basis. Her physical condition on June 9, 1982, when Dr. Lecesne examined her at Della Pesca's request, showed evidence of the severe abuse she was suffering.
Theresa finally became a permanent resident of the household on September 22, 1982. Theresa came to stay permanently because of a phone conversation that same day between her grandmother and Moore. Theresa's grandmother told Moore that DYFS workers and detectives were interested in speaking to Theresa. Marie became fearful that Theresa would disclose what was going on in the household. One week later, Billy told Theresa that she was a permanent resident of the Moore household.
Theresa, Moore, Tammy, and Flores continued to live on the second floor of 989 Madison Avenue until late October. At that time, the four moved to the third floor of 989 Madison Avenue. Although Theresa stopped doing chores once they moved to the third floor, she continued to suffer terrible abuses. During the day, Flores kept Theresa cuffed to a hook on the kitchen wall. At night, Flores would transfer her to the bathroom, where he would cuff her to the bathtub. Flores also sexually abused her, and for some period of time Moore would take Theresa down to the elderly Ragusa, who would pay Moore to have Theresa perform oral sex. Moore and Flores also stopped feeding Theresa once they moved to the third floor and no longer allowed Theresa to use the bathroom. At first, they gave her a pot, and Moore later purchased disposable diapers. The Pampers were the only things that they permitted Theresa to wear.
One morning before her death, this continued treatment caused Theresa to lose consciousness. Moore helped Theresa to come out of this condition, and for this short time Moore released her from the cuffs, even though Flores insisted Theresa was faking. However, after bringing Theresa out of this "seizure," Moore put Theresa back into the thumb cuffs.
On the eve of her death, Theresa slept cuffed to the bathtub, as usual. On the morning of her death, Moore told Flores to get Theresa out of the bathroom so that Tammy could wash up for school. Flores would do this every morning by releasing Theresa from her cuffs, permitting Theresa to walk on her own to the kitchen, where he would then recuff her. Following his customary procedure, Flores uncuffed Theresa, who had been lying facedown. Noting that she was not getting up on her own, Flores lifted her up by her shoulders, bringing Theresa to her knees. He let go of her and instead of getting up, Theresa fell, striking her head on the bathtub and then the floor. Flores then picked Theresa up and took her into the hallway, where he checked Theresa's breathing and noted that she was moaning. When she ceased moaning, he pushed down on her stomach, producing a sound "like the sound of someone going to the bathroom." Marie interpreted that to mean that Theresa was dead.
When Tammy left for school, Moore instructed Ricky to place the body in a bathroom crawl space while she went to the store to purchase some items. Flores put the body in the crawl space at Moore's direction, and Moore went out. Moore returned with a yellow garment bag, helped Flores put Theresa's body into the garment bag, and then told Flores to bring the body out from the crawl space. After Flores brought Theresa's body out of the crawl space, Moore and Flores hid the body in the attic. After leaving the body in the attic on a beam, Flores came down into the hallway again, and Moore told him she had to go out again. Moore returned with eight rolls of duct tape. Moore gave Flores the duct tape and two plastic garbage bags. She told him to put one bag over the head, one over the legs, and then to wrap Theresa's body with the eight rolls of duct tape. Flores went up into the attic and wrapped the body, which was in the garment bag, while Moore stood on the cabinet in the hallway looking into the attic to see how he was doing. While Flores was taping Theresa's body, the bulb in the lamp that had been taken to the attic blew out and Flores put
the blown bulb down on the body, where the medical examiner would find it almost one year later. Flores then placed Theresa's bagged and taped body in the part of the attic where the slanted roof met the third floor ceiling, and covered it with insulation. When Tammy came home later in the day, Moore told her that they sent the body to her father, Billy Joel, in New York City.
In May or June 1983, Moore and Flores moved the body from the attic to the wall space in the bedroom because they were moving from 989 Madison, and Billy said that if they had electrical problems, the "electrical man would go up there and see the body up there." Moore opened the hole in the ceiling to get to the attic, went up to the attic, wrapped the body in a quilt and tied it, and then lowered the body down to Flores in the third floor hallway. Moore then came down to the third floor, put the body through a hole in the bedroom wall and into a crawl space behind the wall. Moore and Flores covered the hole leading to the crawl space with wood, which they nailed into the wall before concealing the hole with wallpaper. The body remained in this location until the police discovered it in December 1983.
During the time period between Theresa's death and the discovery of her body, Moore spoke with Theresa's grandmother on numerous occasions. The last time was in September 1983 when Moore asked Mrs. Gioia if she had heard from Theresa. These efforts to conceal her own involvement in Theresa's kidnapping and subsequent death were complemented by Moore's efforts to hide Flores from the authorities.
Prior to moving from 989 Madison Avenue, Moore told Flores that he had to get a job, and she helped him get one as a maintenance helper at Haband. Moore went into Haband with Flores, told them that she was his mother, a widow, and that she needed him to get a job. Moore also told the personnel manager that she would pick up Flores at lunch and after work,
and asked her to "make sure no one else but her picked him up."
Flores worked at Haband for about six weeks, until the first week of July when he left permanently. During this time, Flores, Moore, and Tammy moved within Paterson from 989 Madison to 101 Martin Street. Flores left Haband permanently because he was spotted at the factory by his brother Philip, who was there on a service call, repairing typewriters. Philip, who was not quite sure if it was his brother, asked a supervisor, who confirmed that it was Richard Flores. Philip then picked up his mother and returned to the factory.
When the two returned, they had Flores paged to the front office. Flores came out from behind a counter, saw his mother and brother standing there and said, "Oh my God, mom," and then ran away. Philip ran after him, but could not catch his brother. Mrs. Flores and he then went back to the house because she knew Flores would call her, which he did. Flores and his mother spoke on the phone. She then asked Philip to deliver certain items to the mailbox at 989 Madison, including a copy of the charges she had filed against Ricky.
The next time that Mrs. Flores saw her son in person was at the police station on July 12, 1983, following his arrest on that same day at Moore's apartment on 101 Martin Street. This arrest came about because Mrs. Flores had contacted the police after she saw Flores at Haband. Detective Most, who handled this part of the investigation, contacted Haband and reviewed their records concerning Flores. On the morning of July 12, Most obtained a juvenile warrant for Flores at the 101 Martin Street address, and gave a copy of that warrant to Officers Washington and DeOld. The two officers entered the premises and found Flores under the sink, whereupon they arrested him and took Flores and Moore to the station for questioning.
Detective Most questioned Flores, who denied everything. He was then placed in a holding room. Mrs. Flores then came to the police station, and asked the court to release her son and
place him in her custody pending his appearance the following day for further investigation. The court agreed and released Flores, whereupon Detectives Most and Stell began to talk to Marie Moore. Moore agreed to talk to them after being advised of her rights. Moore explained to them that she kept Flores in her apartment only because Flores and his mafia boss, Don DeMarco, threatened Moore and her daughter. Detective Most challenged this story, telling Moore she did not believe it. Most also told Moore that she believed Moore and Flores were sexually intimate, contrary to defendant's contention that they had a mother-son relationship.
At 4:30 p.m., after Flores' release, Detectives Stell and Dowling told Moore that she could go, but asked her to return in the morning to take a polygraph exam. Moore agreed and left with Detective Stell. She returned within minutes, however, stating that she wanted to tell them the whole truth. Moore then gave the detectives a formal statement.
Moore repudiated her earlier statements made in June 1982, after Mary's escape, in which she claimed Flores had beaten and assaulted her. She admitted that the DeMarco statements were lies, that she had a sexual relationship with Flores, and that Flores had beaten Mary because she would not "stop interfering in our lives." Moore insisted that Flores had changed since Mary's departure, that he was now a "sweet loving boy," and that he had never hit Theresa or Harriet. Moore also insisted that she did not know where Theresa was, and that she had not seen her since September 1982.
Theresa was still only a missing person at this time, and Flores denied any contact with her. Moore's story again succeeded in deflecting the investigation against her. Charges were filed against Moore in July 1983 for having sex with a minor (Flores), endangering child welfare (Flores), giving a false statement in June 1982, and interfering with Flores' custody. A grand jury returned an indictment in December
1983, but Moore remained free until her arrest on December 28, 1983, six days after she led police to Theresa's body.
Moore made constant efforts to contact Flores after he was arrested, and later to do him in because she was afraid that Flores would talk to the police. In the months following September 1983, Moore tried unsuccessfully to speak with Flores in order to intimidate him so that he would not go to the police. Flores was free at the time, and was living at home. Moore enlisted new people in these efforts, people who moved in with her in September 1983.
Some time after the July 12th statement, Moore and Tammy moved from 101 Martin Street to 356 Park Avenue. In September 1983, a new group came to live with them at the new address. This new group consisted of Jorge Oyola, age twenty, Lydia Santiago, age seventeen, and their two children Jessica, age two, and Jennifer, age one.
Oyola, Santiago, and their two children met Moore through Lydia Santiago's fifteen-year-old sister, Elizabeth, who was a friend of Tammy Moore. They moved into 356 Park Avenue on September 17, 1983, at Moore's suggestion, after a party that Moore hosted for Tammy and Elizabeth. Jorge worked every day, while Lydia and her sister Elizabeth, who visited daily, would stay at the house with Moore. They went out shopping, to movies, got high at the apartment, had men over and "fooled around" with them, having what they considered to be a very good time with Moore. Moore was kind to them and the two children, and in return both Santiagos felt close to her and called her Ma.
This pattern resembles that of the summer of 1981, but none of the abuses that occurred following that summer were to be repeated. Moore told Oyola and the two Santiagos about her relationship with Flores. She would follow him in her car with one or more of them. Moore also introduced Billy Joel to them, telling them how the famous rock star had fathered Tammy.
She also told them that he was in the mafia, and that Billy and Flores had worked together.
Moore then, as she had in September of 1981, began to receive phone calls that she said were from Billy Joel. Although they never talked to this Billy, Lydia and Elizabeth believed he existed as a result of these phone calls, in which Moore would supposedly talk to Billy about Tammy or ask him for money. Also, just as Moore had done in September 1981, she told Lydia that Billy might have microphones or cameras in the apartment. When Lydia started searching for these items, Marie got a phone call. She said Billy wanted Lydia to stop looking for his microphones and cameras. On another occasion, Moore returned to the house and told them that Billy's Mafia boys injected her with a drug that would permit Billy to enter her. Moore then turned into Billy for the first time. Elizabeth and Lydia believed this transformation, while Jorge did not.
Moore was very concerned with Flores, and in addition to looking for Flores and following him, Moore had the Santiagos deliver messages to him personally. These messages varied from Moore's expressions of love for Flores to threats to report him to the police.
Moore tried to establish that Flores had committed the crimes by instructing Lydia to tell the police, if questioned, that Flores had threatened Moore and Tammy by phone. Moore told Lydia that Billy "was going to get" anyone who testified against Moore. Moore prepared Tammy to tell the police that Flores raped her. She also instructed Tammy to tell the police that Flores had beaten Theresa to death. Moore wrote this story down, and had Tammy rehearse it numbers of times. Lydia and Jorge heard Moore preparing Tammy. Moore told Tammy to be "calm" and "cool" when she spoke with the police.
On December 17, Moore began her plan to prove that Flores committed the murder. She contacted the police to tell them that her daughter Tammy had just told her that Flores had sexually abused her. Moore also told the police that based on
what Tammy told her, she believed that Flores had murdered Theresa Feury, whose body might be hidden at 989 Madison. The police spoke with Tammy who gave them a statement concerning Flores. On that same day, Moore accompanied the police to 989 Madison, where they searched for potential burial sites. None was found.
On December 20, Tammy gave Detective Stell two formal statements, in which she alleged that Flores raped her and that she witnessed Flores killing Theresa Feury. After speaking with Tammy, Detectives Stell and Greenwood went to 989 Madison, met Moore and Ragusa, the owner of the property, and looked at a depression in the ground that Moore claimed was a possible burial site. Moore and Ragusa took Detectives Stell and Greenwood to the third floor apartment, where Moore pointed to a spot in the ceiling and to a paneled area in the bedroom as possible burial sites.
Detectives Stell and Greenwood removed a piece of wood that covered a hole in the ceiling. Greenwood went into the attic crawlspace, found a roll of duct tape, white powder that he recognized as lime, and a tray with candle wax on it, but no body. When Detective Greenwood came out of the crawlspace, Stell noted a "strong foul smell." The detectives left after this, and returned on December 21st with a Public Works crew, which dug up the patch of ground in the back but found nothing.
On the following day, December 22, Ragusa called Stell at 9:00 a.m. to ask him if he was coming with a crew to search the attic. Stell told him that he did not think he would, and stated that he might close the investigation. In fifteen minutes, Moore called to ask Stell if he was really going to close the investigation, and Stell, who had no such intention, answered affirmatively just to see what would happen next. Moore responded within an hour by taking a piece of blood-stained insulation to the police station, which the police then took to a lab for examination.
The detectives told Moore they would come to 989 in the early afternoon with a Public Works crew. It was during this search of the apartment that Ragusa and Moore finally uncovered an opening in the wall that led to the crawl space, where the police discovered Theresa's body. After photographing the scene and the wrapped body, the police sent the body to the medical examiner, thus commencing the investigation that would lead to Moore's arrest and indictment.
On December 22, 1983, the medical examiner, Gertha Natarajun, performed an autopsy on Theresa Feury. Her autopsy revealed that the blow to her head and face had killed her, but that she had been alive for a number of hours after it, albeit in a coma. The blow to the head was consistent with falling on a bathtub or hard floor, while the injury to the face could have been caused by falling against a bathtub or by a direct blow, such as a hard kick. The blood that had gathered around the blow to the face and head indicated that Theresa had been alive when wrapped and taped. The extent of the hemorrhaging suggested that she lived as long as four to eight hours after the injuries. There was not enough soft tissue remaining to determine whether Theresa had suffocated as a result of the taping and wrapping. The examiner did testify, however, that this kind of wrapping could suffocate a living person.
On December 23rd, Moore returned to the police station with Detective Stell. After being advised of her rights, Moore agreed to waive them, and expressed her desire to cooperate in the investigation. Moore initially denied having witnessed the homicide, but after Stell confronted her, she admitted to witnessing it. In this statement, Moore claimed that Flores killed Theresa by slamming her head against the bathtub, that he alone disposed of the body, and that she tried to help Theresa.
Moore next spoke to the police on December 28th. Detective Stell and John Laky of the Prosecutor's Office, which had become involved in the case on December 22, spoke with Moore at the Prosecutor's Office on December 28th. They read Moore
her rights and advised her that she was a suspect in the kidnapping and death of Theresa Feury. She agreed to speak with Laky and Detective Stell.
In this interview, Moore admitted that Billy was not a real person, that he was in her head, and that Flores would bring him out. Detective Stell tried unsuccessfully to bring Billy out. Moore then told them that she would not remember what happened when she was Billy and that she wanted to rid herself of that personality. She mentioned, however, that she did not want to go to the crazy house. Moore stated that Billy played no part in Theresa's death. Moore also claimed that she had not become Billy since Flores left. Moore also repeated her December 23rd claim that Flores had killed Theresa, and maintained that Billy had not been present.
After giving this statement, Moore was arrested on the same day, December 28, and charged with Theresa Feury's death. After reviewing statements from the victims and other witnesses, the prosecutor decided not to charge Flores as an adult, and entered a plea agreement instead, whereby he would charge Flores as a juvenile with a maximum custodial term of three years. In return, Flores agreed to testify against Moore, ...