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State v. Engel

Decided: July 2, 1991.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIAM ENGEL AND HERBERT ENGEL, DEFENDANTS-APPELLANTS



On appeal from Superior Court of New Jersey, Law Division, Bergen County.

Judges Deighan, Baime and A.m. Stein. The opinion of the court was delivered by Baime, J.A.D.

Baime

Following a protracted jury trial, defendants William and Herbert Engel were convicted of conspiracy (N.J.S.A. 2C:5-2) and murder (N.J.S.A. 2C:11-3a(1) and (2)). The jury determined that defendants procured the commission of the killing by the payment of money and were thus eligible for the death penalty (N.J.S.A. 2C:11-3c). At the penalty phase, the jury decided that the aggravating factors did not outweigh the mitigating factors (N.J.S.A. 2C:11-3c(3)). Defendants were thus sentenced to life imprisonment and ordered to serve 30 years without parole eligibility (N.J.S.A. 2C:11-3b). The Law Division denied three separate motions for a new trial. This appeal followed.

Pursuant to leave granted, defense counsel have filed overlength joint briefs and supplemental briefs. In addition, each defendant has filed a pro se brief. Many of the points raised are duplicative. Defendants contend that (1) the indictment was the product of prosecutorial misconduct before the grand jury, (2) the proceedings should not have been conducted as a

death penalty case because the aggravating factor relied upon by the State was double counted, (3) their motion to suppress automobile telephone toll records should have been granted, (4) defendant Herbert's motion for a severance was improperly denied, (5) pretrial publicity deprived defendants of a fair trial, (6) the trial judge's evidentiary decisions constituted reversible error, (7) the prosecutor exceeded the bounds of fair comment in his summation, (8) the verdict was the result of impermissible compromise, (9) the first motion for a new trial should have been granted because the verdict was against the weight of the evidence, (10) the second motion for a new trial should have been granted based on the recantation testimony of the State's chief witness, (11) the Law Division abused its discretion in refusing to conduct an evidentiary hearing on the issues raised by the third motion for a new trial, (12) the prosecutor deliberately concealed exculpatory and material evidence, and (13) a new trial is warranted based on newly discovered evidence. We find no error warranting a reversal of defendants' convictions.

I.

On December 14, 1984, Xiomara Engel's body was discovered by South Carolina law enforcement officers in a tire well of a burned-out station wagon. The heat from the fire had been so intense as to cause the windows to explode. Glass fragments were discovered some 20 feet from the automobile. The license plates had been removed and the automobile was totally destroyed by fire. Xiomara's body was burned beyond recognition. It is undisputed that James McFadden had murdered the victim in New Jersey and along with Lewis "Pee Wee" Wright had transported her body to South Carolina where her automobile was set afire. The sole question presented at trial was whether William Engel, Xiomara's former husband, and his brother Herbert procured the killing. In that respect, we disagree with defendants' characterization of the State's evidence as "weak" and "inconclusive." Instead, the voluminous trial record fairly reeks of defendants' guilt.

We recount the evidence in detail. From the inception of their stormy relationship, William was distrustful of Xiomara. At one point, William hired an investigator to monitor the victim's activities, suspecting that she was seeing other men. Although the investigator's probe revealed nothing untoward, William's concerns remained unalleviated. Substantial evidence was presented that William's jealousy often manifested itself in fits of rage during which he confronted Xiomara with unfounded suspicions, and verbally and physically abused her.

At trial, the victim's mother recounted two incidents in September and October 1984 in which William repeatedly struck Xiomara and accused her of being unfaithful. On one occasion, William pushed the victim onto the floor. When Xiomara's mother attempted to intercede, shouting that he might kill her, William replied "that's what she deserves, but not now." On another occasion, she observed William angrily strike Xiomara, apparently cutting her mouth. Similar episodes were observed by the victim's aunt, who threatened to contact the police. William responded that Xiomara "deserve[d]" the beatings, noting that he had "hit her very soft" and that "if [he] beat her hard [he would] kill her."

The marriage of William and Xiomara ended in an annulment. However, William's obsession with the victim continued unabated and resulted in the constant harassment of Xiomara and her family. Both Xiomara's mother and her aunt testified that William would call at all hours of the day and night, often leaving insulting messages containing implications of the victim's alleged promiscuity. William sought to prevent Xiomara from obtaining employment because he was concerned she would meet other men.

After the annulment, Xiomara developed a relationship with Andres Diaz, an attorney for whom she had briefly worked as a secretary. Diaz testified that he suddenly began receiving telephone calls from an individual who identified himself as Raul Valdievia, inquiring whether he "fooled around" with his

secretaries. The individual later left a telephone number corresponding to William's residence. Toll records from Decor, a glass etching factory owned by William located in Englewood, disclosed several telephone calls to Diaz's office.

Despite the continued harassment and strife, Xiomara agreed to meet William at his office at Decor in the evening hours of December 13, 1984, in order to purchase birthday and Christmas gifts for their daughter. At approximately 6:30 p.m., Xiomara and her children left their home in North Arlington and obtained take-out dinners at a local restaurant. The victim ate her dinner while driving, explaining to her grandfather whom she had picked up to babysit for her children, that she was to meet William at 7:15 p.m. and was running late. Upon arriving at her apartment, Xiomara dropped off her children and grandfather in the parking lot and left to meet William. At approximately 8:30 p.m., William called Xiomara's apartment and told her grandfather that she had not yet arrived. Sometime later that evening, after the children had gone to bed, William again called and said that Xiomara had apparently missed their appointment.

On the next morning, Xiomara's mother was told by the victim's oldest daughter that she had not come home the night before. Later that morning, William called and told her that Xiomara had never arrived at his office. When Xiomara's mother expressed her intention to contact the police, William suggested that they wait until the afternoon at which time he would accompany her to the police station. However, William never called back. At approximately 11:00 p.m., the victim's mother, accompanied by Diaz, reported Xiomara's disappearance.

The North Arlington police immediately commenced a search for Xiomara's whereabouts. When the search proved unavailing, a teletype was sent to all eastern states. In addition, the police interviewed William at his home. William, who appeared "very nervous" and "chain smoked," told the police that he and

Xiomara had arranged to meet the night before. William said that Xiomara called him at 6:00 p.m. to confirm their shopping plans. When she did not arrive as scheduled, William allegedly called her apartment and spoke to her daughter. He said that he received another call from Xiomara at 8:30 p.m. from what he believed to be a public telephone based on the noise of automobiles in the background. Xiomara allegedly told him that she "would be right over." William stated that when Xiomara had not arrived by 8:50 p.m., he called her apartment and again spoke to her daughter, who said her mother was not at home. William said he made another call to Xiomara's apartment at about 9:15 p.m., before leaving his office. William recounted that from his residence he called Xiomara's home again at 10:20 p.m. and then at midnight, each time speaking with her daughter who said her mother was not there. At that point, William claimed to have gone to bed and made no further inquiries until the next morning.

Meanwhile, South Carolina law enforcement officers had found Xiomara's body in the burned stationwagon. The body was finally identified as that of Xiomara several days later after the vehicle identification number was traced to her and her dental records were examined.

William was apprised of his former wife's death during an interview at the Bergen County Prosecutor's office. Upon being told of the circumstances, William placed his hands over his face and "appeared to sob." When he lifted his head, however, the police observed that there were "no tears anywhere on his face or in his eyes" and his voice "did not break" during the remainder of the interview.

James McFadden was the State's chief witness. Under his agreement with the prosecutor, McFadden's testimony was given in exchange for the State's waiver of the death penalty and its promise to recommend that any sentences imposed run concurrently. McFadden testified that he was acquainted with Herbert Engel for approximately three years prior to the murder.

In December 1984, McFadden was hired by Herbert as a salesman for Cooper Nationwide, a trucking enterprise. Herbert was the owner of the company. The terms of McFadden's employment were somewhat problematical in that he and Herbert never agreed upon a particular salary or formula for remuneration.

In any event, shortly after he was hired, McFadden was invited to attend a meeting with Herbert at Bennigan's Restaurant in Englewood. Herbert met McFadden at Kassa, a warehouse owned by William, and the two drove to the restaurant. While in the parking lot before entering the restaurant, Herbert asked McFadden, "are you bad?" McFadden asked Herbert what he meant, and Herbert simply repeated the question. Still confused, McFadden responded "if somebody hurts me, make [sic] me mad, I would hurt somebody, . . . that's normal." The two men then proceeded into the restaurant and sat at the bar.

While seated at the bar, another man who was identified to McFadden as Herbert's cousin, joined them. After a brief conversation, the man who McFadden later learned was Herbert's brother William, walked to a nearby booth. While McFadden remained at the bar, Herbert followed William to the table where they engaged in an animated conversation. After William left the restaurant, Herbert returned to the bar and told McFadden that "his cousin had a girlfriend [who] was hassling [him], giving him a hard time, [and] that he wanted this girlfriend taken care of, [taken] off the map." Herbert said that his "cousin" would pay $25,000 for the proposed killing. Taken aback by Herbert's offer, McFadden did not immediately respond.

At Herbert's request, a second meeting occurred several days later, again at Bennigan's. Herbert repeated William's offer to pay him $25,000 to kill his "girlfriend." At this point, McFadden agreed to the proposal. Herbert insisted that the killing take place on the following Friday evening. However, Herbert

later telephoned McFadden at Cooper Nationwide and stated that "the situation had changed" and that he was to meet him at Kassa at 5:00 p.m. on Thursday instead.

In accordance with their agreement, on the designated date, McFadden took a cab from his home in Passaic Park to Kassa, arriving at approximately 5:15 p.m. McFadden brought with him an attache case containing a wire cord he had taken from the back of a refrigerator. The cab driver dropped McFadden off directly in front of the entrance to Kassa. The parking lot was empty, with the exception of Herbert's automobile. McFadden walked up to the door and Herbert "buzzed him in." The two immediately proceeded to Herbert's office where McFadden showed Herbert the cord he intended to use in killing the victim. Herbert then asked whether McFadden had a gun. When McFadden replied that he did not, Herbert opened his briefcase which contained a revolver.

At that point, Herbert described in detail his plan to kill the victim. Herbert explained that his cousin and the intended victim would enter a hallway located on the left side of the building. McFadden was to remain hidden in a nearby bathroom. Herbert told McFadden to "strangle" the victim when his "cousin . . . pretended to turn on the light." Pursuant to Herbert's suggestion, the two went to a storage area and obtained a "film plastic" to cover the body. McFadden was to transport the body to Otlanta, South Carolina, the home of his grandparents. For this purpose, McFadden gave Herbert his grandparents' telephone number. Herbert then showed McFadden which garage door would be unlocked, noting that the burglar alarm had been disengaged. When the two returned to Herbert's office, McFadden was given $1,300 in cash. Herbert suggested that McFadden have the victim's automobile "crushed." He also proposed that the body be placed in a hole and covered with acid. Although McFadden's response was somewhat equivocal, Herbert gave him a pair of "acid gloves" made of thick rubber with sleeves "going up to the elbow." After receiving a telephone call, Herbert told McFadden that

the victim had arrived and "would be coming to Kassa from Decor." Herbert then departed, leaving McFadden hidden in the bathroom with the door slightly ajar.

Approximately ten minutes later, William arrived with Xiomara. The lights in the bay area had been extinguished. As planned, William walked into the bay area, turned left and fumbled around with the light switch. Exclaiming that the light was defective, William obtained a flashlight. Xiomara followed William to the "far corner of the bay." When Xiomara passed the bathroom, McFadden jumped out, slipped the "cord around her neck and started pulling it tight" in cross-wrist fashion. Xiomara fell to the floor and McFadden straddled her, pulling tightly on the cord. McFadden strangled Xiomara for approximately four minutes while William stood over the victim, smoking a cigarette. At one point while McFadden was still strangling Xiomara, William exclaimed, "you bitch."

After McFadden finally released his hold on the victim, he went outside, as planned, through the garage door that Herbert had said would be unlocked and disconnected from the alarm system. Using the key that Herbert had given him previously, McFadden backed Xiomara's stationwagon into the garage. With William's assistance, McFadden threw Xiomara's lifeless body into the stationwagon. While McFadden covered the body, William disappeared. McFadden then suddenly heard a police radio from a distance.

William returned to the bay area in an agitated state and told McFadden that the police were outside. Upon hearing a knock on the door, McFadden instructed William to tell the police that he owned the factory and that nothing was amiss. McFadden then hid in the bathroom while William dealt with the police. William returned shortly thereafter and told McFadden that he would "circle" the area to "make sure everything was okay" and would "blow his horn twice" to signal when it was safe to

leave. Fearing that he "was being set up," McFadden did not wait for the signal but instead left in Xiomara's stationwagon.

McFadden then drove to Cooper Nationwide where he met Pee Wee Wright, one of the Engel's employees. Wright had previously agreed with McFadden to accompany him on the ride to South Carolina.

The two then drove off in Xiomara's automobile. While Wright was not part of the original plan and allegedly was unaware of the presence of the victim's body in the automobile, McFadden had agreed to pay him $2,000 to share the driving. Although the ride was otherwise uneventful, the two repaired a flat tire immediately past the Lewisburg exit in North Carolina. At that point, Wright noticed a gray pocketbook under the front seat of the stationwagon. McFadden emptied the contents of the pocketbook and gave $100 to Wright. The only mention of the presence of the body in the car came from Wright who said "what man would pay me $2,000 to help him drive a car down south unless there was a body in it or something." McFadden did not respond.

Upon arriving in South Carolina on Friday, December 14, McFadden gave Wright an additional $100 to buy clothes, took a shower and went to sleep. Sometime later, McFadden was awakened by his brother, Clyde, who told him that he had received a telephone call. Picking up the receiver, McFadden heard Herbert's voice. Herbert asked McFadden whether "the package [was] delivered [and whether] everything [was] okay." McFadden responded that the killing had gone undetected.

When Wright returned from his shopping excursion, he told McFadden that he had noticed "blond hair in the back of the car." Angered by the fact that he had been kept ignorant of the presence of the body, Wright told McFadden that he "could have instruct[ed] [him] how to handle it better." Wright then asked McFadden for the car keys, stating that he was "going to burn" the automobile. McFadden responded that his "nerves [were] shot" and that he "wanted nothing else to do with it."

McFadden added, however, that he had been instructed by his "boss" to remove the license plates.

Approximately two hours later, Wright returned and advised McFadden that the car had been destroyed and that "it was a blaze of glory." The two went to a local bar to celebrate, along with McFadden's uncle and his girlfriend. McFadden and Wright then took a train to New Jersey, arriving at approximately 10:00 a.m. on Saturday.

McFadden met Herbert on Monday afternoon, December 17, at Cooper Nationwide. From there, the two men drove to a local bar where McFadden was given a plain white envelope containing $5,000 in cash. Once inside the bar, Herbert closely questioned McFadden with respect to the killing, asking whether "everything [was] taken care of [as they had] planned." McFadden told him that he had followed the plan, hiding the fact that he had neither used acid in disposing of the body nor had the stationwagon "crushed," as Herbert had proposed. After leaving the bar, McFadden gave Wright the $2,000 he had promised.

McFadden next met Herbert "a few days later" at a bar in Clifton. Herbert told McFadden that "he needed to know everything . . . because they had found the package." Apparently, Herbert had become aware of the fact that Wright had accompanied McFadden to South Carolina and had disposed of the body and the automobile. McFadden thus gave Herbert a truthful account of all that had occurred. Herbert merely inquired whether "everything [had been] burned up."

McFadden's last meeting with Herbert before his arrest took place on January 12, 1985. Herbert had contacted McFadden and had demanded that they meet because "there was a problem." When McFadden arrived, Herbert told him he wanted him to "take care of" Wright because he "was bad news." McFadden did not agree to kill Wright, but he assured Herbert he would "take care" of things. He also accepted $1,000 in cash from Herbert.

McFadden was arrested on January 18, 1985. At that time, McFadden agreed to give a statement, noting that had he not been arrested he would have confessed in any event because the killing "was bothering [his] conscience." McFadden described the killing in lurid detail and fully apprised the police of the Engels' involvement. In addition, McFadden was shown a photograph of Xiomara and William together. He identified Xiomara as the woman he had strangled and William as the man who had been present and had witnessed the killing.

At trial, McFadden's graphic account of the events was strongly corroborated by the testimony of other witnesses and tangible evidence. We need not recount at length all of the corroborative aspects of the State's proofs. Instead, we provide a brief summary of this evidence.

Officers Scott Jenkins and Tim Torell of the Englewood Police Department testified that they responded to a burglar alarm call at Kassa at 8:00 p.m. on Thursday, December 13, 1984. Upon their arrival, they observed a dark colored Cadillac (Herbert's automobile) parked in the adjacent lot. After knocking at the door, the officers observed a "dark-haired man" in a "dark-colored business suit" whom they later identified as William Engel, appear at the window. The officers identified themselves and stated that the burglar alarm had been activated. William gestured from inside the building that "everything was okay," and then very quickly went out of the officers' sight. Their suspicions aroused, the officers remained at the entrance until William reappeared. Officer Jenkins ordered William to open the door. William complied, but immediately stepped outside, closing the door behind him. Although William answered the officers' questions in an evasive fashion, Officer Jenkins recognized him as the owner of the building and, therefore, terminated any further inquiry. However, both officers observed that William was "very nervous" and "wide-eyed" and that he was perspiring profusely.

Wright testified and confirmed McFadden's account of their ride to South Carolina. During the trip, Wright noticed a purse under the front seat containing driver's credentials, credit cards and cash. McFadden told Wright that he could keep the money. Wright noticed that the name on the driver's license was Xiomara Engel. McFadden told Wright that he had heroin and cocaine in the automobile. Wright noticed that McFadden had a large "roll of bills" which he repeatedly exhibited. Wright verified that he first became aware of Xiomara's body in the stationwagon after they arrived in South Carolina. Wright testified that he noticed blond hair protruding from a plastic canvas in the rear compartment of the automobile. When he pulled off the canvas, Wright discovered Xiomara's body. Wright also described how he removed the license plates, poured gasoline on the body and the car and set both afire.

Telephone toll records were introduced, contradicting much of William's version of the events immediately preceding the murder. For example, the records disclosed that William had called Xiomara's apartment at 8:37 p.m. on December 13, 1984. Had Xiomara telephoned William to tell him that she was on her way to meet him at Decor, as William told the police, he would have had no reason to call her home at 8:37 p.m., a mere seven minutes later to find out where she was. William had also told the police that he called Xiomara's apartment sometime between 9:10 p.m. and 9:15 p.m., when he left his office. However, no call appeared on Decor's toll records to Xiomara's apartment after the 8:37 p.m. call. Moreover, the records disclosed a telephone call from William's automobile at 8:56 p.m. This contradicted William's account that he remained in his office until 9:15 p.m. William also claimed that he continued telephoning Xiomara's apartment from his home throughout the night of December 13 and the early morning hours of December 14. However, the toll records for William's home revealed no calls to Xiomara's apartment on those dates. Toll records also indicated that Herbert telephoned McFadden's

grandparents' house on December 14, as both Wright and McFadden testified. Herbert denied making those calls when questioned by the police.

For reasons that will become apparent later in our opinion, we describe the evidence pertaining to cause of death in some detail. The trial record discloses that an autopsy was performed on Xiomara's body on December 15, 1984, by Dr. Damien DiCostanzo, a member of the South Carolina Medical Examiner's Office. At trial, Dr. DiCostanzo testified that the body was "extensively charred and burned." He stated that the victim was "definitely dead" before the fire. The witness estimated that Xiomara had been killed between 18 and 24 hours prior to the fire and that she had died within two hours after eating.

Due to extensive damage to the body caused by the fire, Dr. DiCostanzo was unable to arrive at a conclusion with respect to the cause of death. He noted that the back and sides of the skull were largely missing and the brain was extremely distorted. Dr. DiCostanzo surmised that the heat of the fire had elevated the pressure within the victim's body to such an extent that the skull exploded. What remained of the brain was "herniated outward." The doctor noted that his examination of the remaining portion of the skull revealed no hemorrhage or fracture which might support a finding that death was caused by "blunt" or "penetrating" trauma. Because much of the skull was missing, however, Dr. DiCostanzo was unable to exclude head trauma as a cause of death.

In the course of his examination, the doctor removed the larynx or breathing tube. Apparently, Dr. DiCostanzo found it necessary to break the larynx in order to remove it. Because he had not observed any breaks in the larynx and hyoid bone, he assumed that they had not been broken before the victim died. However, he found nothing in his examination that would be inconsistent with either manual or ligature strangulation.

A second autopsy was performed by Dr. Rudolf Platt, an assistant Essex County Medical Examiner. Dr. Platt's involvement in the case was at the behest of the victim's mother. Although Dr. Platt had sought and obtained the approval of the State Medical Examiner, his examination of the victim's body apparently was not part of his official duties.

Dr. Platt found that the superior horns of the thyroid cartilage had been fractured and contained a small area of hemorrhage. This indicated to the doctor that the hemorrhage had occurred prior to death. He also examined the hyoid bone and found that it was fractured and contained traces of hemorrhage. Based on these facts, Dr. Platt concluded that the victim had died by strangulation. He noted further that even in the absence of the fractured hyoid bone and thyroid cartilage, he would have found that the victim had been strangled. The doctor's examination of the victim's neck tissues indicated strangulation as the cause of death.

Defendants elected not to testify. Based on the foregoing evidence, the jury found defendants guilty of conspiracy to commit murder and murder. We now address the arguments advanced in the copious briefs submitted.

II.

We first consider defendants' argument that the indictment was tainted by prosecutorial misconduct before the grand jury. At the outset, we stress that the grand jury is not the prosecutor's playtoy. We are disturbed by some of the practices employed by the prosecutor in this case. Nevertheless, we are convinced that such prosecutorial excesses as did occur did not render the proceedings fundamentally unfair or deprive defendants of their right to due process.

We begin with the well settled principle that an indictment returned by a properly constituted grand jury is presumed valid, and should not be vitiated except on the "clearest and plainest ground." State v. New Jersey Trade Waste Ass'n, 96 N.J. 8, 18-19

(1984); State v. Weleck, 10 N.J. 355, 364 (1952); State v. Clarke, 198 N.J. Super. 219, 228 (App. Div. 1985); State v. Porro, 158 N.J. Super. 269, 281 (App. Div. 1978), cert. den. 439 U.S. 1047, 99 S. Ct. 724, 58 L. Ed. 2d 706 (1978). Unless the prosecutor's misconduct "is extreme and clearly infringes upon the [grand] jury's decision-making function," an otherwise valid indictment should not be dismissed. State v. Buonadonna, 122 N.J. 22, 48-49 (1991); State v. Schamberg, 146 N.J. Super. 559, 564 (App. Div. 1977), certif. den. 75 N.J. 10 (1977). See also State v. Hart, 139 N.J. Super. 565, 569 (App. Div. 1976). In that respect, it has been said that dismissal of an indictment "is appropriate only 'if it is established that the violation substantially influenced the grand jury's decision to indict,'" or if there is "grave doubt" that the determination ultimately reached was arrived at fairly and impartially. Bank of Nova Scotia v. United States, 487 U.S. 250, 256, 108 S. Ct. 2369, 2374, 101 L. Ed. 2d 228, 238 (1988), quoting United States v. Mechanik, 475 U.S. 66, 78, 106 S. Ct. 938, 945, 89 L. Ed. 2d 50, 61 (1986). When a person's fate is before a grand jury, he is "constitutionally entitled to have his case considered by an impartial and unbiased" body capable of deciding the issue of probable cause on the evidence fairly submitted to it. United States v. Burke, 700 F.2d 70, 82 (2nd Cir. 1983), cert. den. 464 U.S. 816, 104 S. Ct. 72, 78 L. Ed. 2d 85 (1983), citing Lawn v. United States, 355 U.S. 339, 349-350, 78 S. Ct. 311, 317-318, 2 L. Ed. 2d 321, 329-330 (1958); and Costello v. United States, 350 U.S. 359, 363, 76 S. Ct. 406, 408-409, 100 L. Ed. 397, 402 (1956). However, an indictment may be dismissed only upon a "palpable" showing of fundamental unfairness, State v. Wein, 80 N.J. 491, 501 (1979), or where the conduct of the prosecutor amounted to an "intentional subversion" of the grand jury process. State v. Murphy, 110 N.J. 20, 35 (1988).

Applying these principles, we find no prosecutorial dereliction warranting vitiation of the indictment. In their voluminous briefs, defendants have alleged a plethora of prosecutorial errors. We do not comment on all of them. Instead, we note that (1) it was not unreasonable for the prosecutor to present evidence concerning William's stormy relationship with Xiomara, (2) Investigator Love's comment that his investigation corroborated McFadden's account of the events which occurred in South Carolina was not improper, (3) defendants' post-arrest statements to persons other than law enforcement officials, if any such statements were in fact made, did not violate the Engels' privilege against self-incrimination, (4) the prosecutor's comments concerning what charges could be instituted against Wright, although perhaps incomplete and somewhat misleading, did not have the capacity to impair defendants' rights, and (5) the prosecutor's instructions, while not a model of clarity, were not of such a nature as to have tainted the grand jury's determination. Even if one or more of these instances constituted error, however, we are convinced that defendants were not prejudiced.

We agree with defendants that the prosecutor should not have presented evidence concerning William's alleged mistreatment of his first wife. The prosecutor also erred by attempting to show that the Engels had contemplated concocting a story concerning Xiomara being involved in prostitution or having a romantic relationship with McFadden, where the record does not in any way support a conclusion that the State had evidence of such a fabrication. So too, the prosecutor should not have referred to defendants' incarceration or the fact that they were denied bail.

Despite these errors, we are satisfied that the grand jury proceedings were fair and the indictment was properly returned. While we do not endorse all of the prosecutor's tactics or methods, we discern no course of conduct impairing the grand jury's capacity to fairly decide the issues before it.

III.

We next address defendants' argument that the Law Division judge erroneously denied their pretrial motion to strike the aggravating factor set forth in N.J.S.A. 2C:11-3(4)(e), i.e., the offender "procured the commission of the offense by payment or promise of payment of anything of pecuniary value." Defendants did not contend below, nor do they urge here, that this aggravating factor was without evidential support. See State v. McCrary, 97 N.J. 132, 140 (1984). Rather, they mount a constitutional challenge to the death penalty statute, contending that it is improper to utilize a death eligibility standard as an aggravating factor. They assert that because procuring a killing by the payment of money constitutes an element of capital murder, it may not be double-counted as an aggravating factor. Aggravating factors must genuinely narrow the class of persons eligible for the death penalty and must be such as to justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. Defendants claim that an aggravating circumstance which merely repeats an element of the underlying crime cannot perform this narrowing function.

Preliminarily, we entertain serious doubt that defendants have standing to challenge the constitutionality of N.J.S.A. 2C:11-3(4)(e). The simple and overriding fact is that the jury did not return the death penalty in this case. Although the trial proceeded as a capital murder case with all of the corresponding special procedures, defendants are no longer subject to the potential of a death sentence. Their present situation is no different than that of others convicted of capital murder but sentenced to life imprisonment.

Under these circumstances, we question whether defendants have sustained or are in immediate danger of sustaining some direct injury as a result of the death penalty law. It is a tenet of our judicial system that courts will not render ...


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