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State v. List

Decided: March 29, 1990.

STATE OF NEW JERSEY, PLAINTIFF,
v.
JOHN EMIL LIST, DEFENDANT



Wertheimer, J.s.c.

Wertheimer

This matter comes before the court on defendant's motion to suppress all evidence seized as a result of a warrantless search that took place at the defendant's house on December 7, 1971. Defendant stands before this court on a five count indictment which alleges that he murdered his wife, his mother and his three children on November 9, 1971. Defendant remained at large for some seventeen and a half years thereafter until he was located and arrested in the spring of 1989 after a tip which followed a television show's account of the alleged crime.

The facts submitted by the State and the defense in their briefs concerning this motion are divergent but not in any significant aspect. Defendant contends that five people witnessed the initial entry into the List home on December 7, 1971. The Westfield Police were called to the house after family friends expressed concern for the Lists, especially defendant's elderly mother who lived on the third floor, because no one had been seen around the house for at least three weeks. One of the family acquaintances, Edwin Illiano, claims he was the first to enter the house, albeit in the presence of the police. During this entry, which was made through a window Illiano claims to have opened, Illiano came across "four (4) human figures laying on the floor" of the house's ballroom. He yelled, "Patti," the name of the Lists' only daughter and his drama club colleague, and as an "eerie feeling" came over him he exited the open window. He says then the police entered the house for the first time.

The State's version differs from the above. At approximately 4:30 p.m. on December 7 the Westfield Police Department received a telephone call at headquarters from Illiano and Barbara

Sheridan expressing concern about Patricia List, who was a member of their drama group, and who had been neither seen nor heard for three to four weeks. At approximately 7:30 p.m., Captain Vardalis of the Westfield Police Department telephoned Dr. William Cunnick, a neighbor of the Lists, who indicated he had not seen the family for a while and who expressed concern for defendant's elderly mother who lived on the third floor. Cunnick noted that the List dog had not been seen and that light bulbs in the house were burning out but were not being replaced.

The Westfield Police Department responded to the home at approximately 9:30 p.m. after Mrs. Cunnick advised that a white Pontiac, which had been seen at the house on various recent occasions, had returned to the List driveway. When the officers arrived they discovered Sheridan and Illiano were the car's occupants and that Cunnick was also on the property. All three people expressed concerns for the family. After speaking to them, Police Officer George Zhelesnik went to the house, found an unlatched window adjoining the porch and entered the dining room. Zhelesnik's partner, Charles Haller, followed him inside and shortly Sheridan and Illiano followed.

Testimony at the motion to suppress has amplified the positions of the parties as the record more fully reveals. Dovetailing the parties' positions in their briefs with this testimony the court makes the following findings of fact.

During the evening of December 7, 1971, after a meeting with Sheridan, Illiano and Cunnick, Westfield Police Officers entered the List home without a search warrant. The court finds Illiano's protestations to the contrary not to be credible. The court finds his testimony substantially divergent from that of so many other credible witnesses that it rejects it in all significant details.

This court is not saying that Illiano purposely fabricated his testimony but rather that his memory has played tricks on him after eighteen and a half years. His account is too frequently contradicted by more than just one other witness and too easily rebuttable to be believable. His testimony as to who entered the

home first is belied by Zhelesnik and Sheridan; there was no vinyl door to the ballroom as he believes, as testified by the police and confirmed by photographs S-89 and S-90; the house was completely dark on the first floor, as confirmed by Zhelesnik, Sheridan and the Cunnicks, as the lights had burned out over the time the house was vacant; therefore, a flashlight was needed for vision as the police and Sheridan testified. Sheridan contradicted her friend in many important respects and even Illiano testified that she has "an unbelievable mind and is a very rational person." More importantly, his sworn statement to the police the very night in question disputes his testimony here. Perhaps Illiano's penchant for drama has innocently intruded on his memory over the years.

When Zhelesnik did enter the house, it was cold, and music could be heard through a central intercom system. There was a faint offensive odor. The officers entered a pantry and observed what appeared to be dried blood on the floor. Subsequently Illiano led the officers into the living room and opened a large drape which led into a ballroom. Zhelesnik shined his flashlight into the darkened room and thereby discovered four bodies with their faces hidden from view. Closer examination revealed the bodies were dead.

Thereafter, more police were summoned to the scene and the house was searched. As a result, a fifth cadaver was located on the third floor and a series of notes, letters and directions were found in the den. Two notes were found on the desk in the den; while one read "Guns and ammo", the other notably read: "To the finder -- 1. Please contact the proper authorities. 2. The key to this desk is in an envelope ...


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