On appeal from Superior Court of New Jersey, Law Division, Ocean County.
J.h. Coleman, Bilder and Stern. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.
The opinion of the court was delivered by
These appeals raise two significant issues: (1) whether an unsequestered jury voir dire or the use of sequential rotation methodology in the exercise of peremptory challenges precluded a fair trial, and (2) whether an acquittal on a conspiracy to rob and to murder precluded a conviction on those substantive offenses as an accomplice. We hold that under the facts, the jury selection process did not preclude the impanelling of a fair and impartial jury. We also hold that where a jury is instructed properly, an acquittal under a theory of conspiracy does not as a matter of law preclude a conviction as an accomplice.
Defendants were tried jointly under a theory that they conspired and acted as accomplices in one or more schemes (1) to obtain cocaine with the intent to distribute it, (2) to rob the drug dealers of the cocaine rather than pay for it, and (3) to murder the drug dealers to avoid retaliation by drug lords. Each defendant was convicted of the five counts submitted to the jury. The trial Judge granted judgments of acquittal notwithstanding the verdicts (j.n.o.v.) on three counts as to two of the defendants. The State has appealed from the j.n.o.v. and each
defendant has filed a separate appeal. We now consolidate the four appeals and issue a single opinion. We reverse the j.n.o.v., affirm the verdicts of the jury and reinstate those verdicts except that the two conspiracies must be merged into a single conspiracy and the felony murders must merge with the knowing or purposeful murders.
Defendants Paul Kamienski, Anthony Alongi and Joseph Marzeno were tried under five counts of Ocean County Indictment No. 692-10-87. Two additional counts charging only Marzeno with capital murders were dismissed approximately two months before the trial commenced. All three defendants were tried for the knowing or purposeful murders of Henry DeTournay and his wife Barbara DeTournay, contrary to N.J.S.A. 2C:11-3a(1) and (2) (Counts One and Two); felony murders*fn1 of Henry and Barbara DeTournay, contrary to N.J.S.A. 2C:15-1 and N.J.S.A. 2C:11-3a(3) (Count Five); conspiracy among the defendants between August 1, 1983 and April 30, 1984, in Ocean County and the State of Florida, to commit the crimes of possession of cocaine with intent to distribute, in violation of N.J.S.A. 24:21-19a, and/or robbery in the first-degree, in violation of N.J.S.A. 2C:15-1, and/or murder, in violation of N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-2, (Count Six); and conspiracy with each other, Henry and Barbara DeTournay and Sidney Jeffrey, II, who were unindicted co-conspirators, between August 1, 1983, and April 30, 1984, to possess cocaine with intent to distribute, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 24:21-19a(1) (Count Seven). The jury was asked to decide whether there were one or two conspiracies at one time or at different times.
Marzeno was tried as the person who knowingly or purposefully caused the death of Henry DeTournay under Count One and Barbara DeTournay under Count Two. He was also tried for being the person who caused the deaths of the DeTournays during the commission of a robbery of cocaine under Count Five. Alongi and Kamienski were tried as accomplices and/or conspirators to Marzeno in the commission of the murders. The State contended that the victims were robbed of cocaine and then murdered to prevent Columbian drug lords from seeking revenge.
At the Conclusion of an 18 day trial which ended on November 18, 1988, the jury found each defendant guilty under Counts One, Two, Five and Seven. The jury found Marzeno guilty as the principal and Kamienski and Alongi as accomplices of Marzeno under the two counts charging knowing or purposeful murders and the felony murders count. Under Count Six, the jury also found each defendant guilty of conspiracy to possess cocaine with intent to distribute, but not guilty of conspiracy to murder and to rob.
Prior to sentencing, the trial Judge heard a motion for a new trial or in the alternative for the entry of j.n.o.v. The trial Judge entered j.n.o.v. in favor of Kamienski and Alongi for the two murders and the felony murders under Counts One, Two and Five. Kamienski was then sentenced on Count Six to a custodial term of 12 years with four years of parole ineligibility. On Count Seven, he was sentenced to a consecutive custodial term of 12 years with six years of parole ineligibility. A total fine of $50,000 was imposed. His aggregate sentence is 24 years with 10 years of parole ineligibility. Kamienski filed his notice of appeal on December 30, 1988 under A-2350-88T5.
Alongi was sentenced on Counts Six and Seven to consecutive custodial terms of 12 years with six years of parole ineligibility on each count and a total fine of $50,000 was imposed. His aggregate sentence is 24 years with 12 years of parole ineligibility. Alongi filed his notice of appeal on January 26, 1989,
under A-3611-88T5. The State filed its appeal from the j.n.o.v. on April 3, 1989, under A-3689-88T5.
Marzeno was sentenced on Counts One and Two to consecutive life terms with 30 years of parole ineligibility on each count. The felony murders under Count Five were merged with Counts One and Two. He was sentenced on Counts Six and Seven to consecutive 12 year custodial terms with six years of parole ineligibility on each count. His aggregate sentence was double life plus 24 years with 72 years of parole ineligibility. Marzeno filed a notice of appeal on February 1, 1989, under A-3946-88T5.
While the four appeals were pending, defendants filed a second motion for a new trial based on their assertion that subsequent to the sentencing, it came to their attention that one of the trial jurors, Angela Metta Krebs, failed to disclose a social relationship with one of the State's key witnesses, Jean Calabro Yurcisin. We remanded the matter temporarily for a Judge to conduct an in camera interview with the juror. An interview was conducted by a Judge who did not preside over the trial. He denied the motion on December 22, 1989, because he found the two women were not acquainted.
Marzeno's appeal was dismissed by consent on February 5, 1991, because of his death. We entered an order on February 28, 1991, permitting Kamienski and Alongi to adopt Points II through VIII raised in Marzeno's brief.
In its appeal, the State raises the following contentions:
I THERE WAS NO INCONSISTENCY IN THE VERDICTS RETURNED BY THE JURY; ALTERNATIVELY INCONSISTENT VERDICTS DO NOT VITIATE AN OTHERWISE REASONABLE VERDICT, THEREFORE THE TRIAL JUDGE'S FINDING THAT FACTS EXISTED CONSISTENT WITH CRIMINAL LIABILITY SHOULD BE UPHELD.
II THERE EXISTS EVIDENCE BEYOND A SCINTILLA AND VIEWED FAVORABLY TO THE STATE, THAT DEFENDANTS ALONGI AND KAMIENSKI WERE PROPERLY FOUND GUILTY BY THE JURY AS ACCOMPLICES TO MURDER.
III DEFENDANTS WERE PROPERLY FOUND GUILTY BY THE JURY ON FELONY MURDER AS ACCOMPLICES TO A ROBBERY AND THE JUDGMENT OF ACQUITTAL SHOULD BE REVERSED.
Kamienski raises the following issues in his appeal:
I DEFENDANT KAMIENSKI'S FEDERALLY AND STATE GUARANTEED RIGHTS TO A FAIR TRIAL BY AN IMPARTIAL JURY WERE VIOLATED BY THE JURY SELECTION PROCESS.
II THE COURT ERRONEOUSLY DENIED DEFENDANT KAMIENSKI'S SEVERAL APPLICATIONS TO SEVER HIS TRIAL FROM HIS CO-DEFENDANTS' TRIAL.
III DEFENDANT KAMIENSKI'S FEDERALLY AND STATE GUARANTEED RIGHTS TO A FAIR TRIAL WERE VIOLATED BY THE ERRONEOUS ADMISSION OF INFLAMMATORY EVIDENCE, UNDUE RESTRICTIONS PLACED ON THE CROSS-EXAMINATION OF A STATE'S WITNESS, THE OUTBURST OF ANOTHER STATE'S WITNESS DURING HER CROSS-EXAMINATION, AND THE ERRONEOUS ADMISSION OF CO-DEFENDANT MARZENO'S STATEMENT.
IV DEFENDANT KAMIENSKI'S FUNDAMENTAL RIGHTS TO A FAIR TRIAL WERE VIOLATED BY SEVERAL REMARKS MADE BY THE PROSECUTOR DURING HIS SUMMATION. (SOME ISSUES RAISED WERE NOT RAISED BELOW).
V THE COURT ERRONEOUSLY DENIED DEFENDANT KAMIENSKI'S SEVERAL APPLICATIONS TO MERGE COUNTS SIX AND SEVEN OF THE INDICTMENT BOTH OF WHICH CHARGED CONSPIRACY TO POSSESS COCAINE WITH INTENT TO DISTRIBUTE.
VI DEFENDANT KAMIENSKI'S APPLICATION, ON REMAND, FOR A NEW TRIAL SHOULD BE REMANDED AGAIN FOR FURTHER PROCEEDINGS.
VII DEFENDANT KAMIENSKI JOINS AND ADOPTS CO-DEFENDANTS ARGUMENTS.
VIII DEFENDANT KAMIENSKI'S TWO CONSECUTIVE TWELVE YEAR TERMS OF IMPRISONMENT, WITH PERIODS OF PAROLE INELIGIBILITY OF SIX YEARS AND FOUR YEARS, WERE EXCESSIVE AND SHOULD BE REDUCED.
In his pro se brief, Alongi raises the following contentions:
I INEFFECTIVE ASSISTANCE OF COUNSEL THROUGH GOVERNMENT INTERFERENCE.
II DUPLICITY OF THE CONSPIRACIES CAUSE OF DOUBLE JEOPARDY AND DOUBLE COUNTING, TO: VACATE JUDGMENT OF CONVICTION AND OR TO MERGE INTO A SINGLE CONSPIRACY.
III GRAND JURY TAINTED THROUGH GOVERNMENT INTERFERENCE.
IV SUPPLEMENT AND AMENDMENT TO: LIMITED REMAND OF PETIT JUROR ANGELA (METTA) KREBS, AND IMPROPER PETIT JUROR SELECTION.
In a brief filed on behalf of Marzeno, the following issues were raised and have been adopted by Kamienski and Alongi:
II THE JURY SELECTION PROCESS VIOLATED DEFENDANT'S RIGHT OF DUE PROCESS.
III THE DEFENDANT'S MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED; THE TRIAL COURT ERRED IN ITS INSTRUCTION ON PRINCIPAL-ACCOMPLICE LIABILITY.
IV THE DEFENDANT WAS UNDULY RESTRICTED IN EXERCISING HIS RIGHT OF CROSS-EXAMINATION.
V THE TRIAL COURT IMPROPERLY INVOKED A PRIVILEGE ON BEHALF OF A STATE'S WITNESS.
VI THE TRIAL COURT IMPROPERLY ADMITTED UNDULY PREJUDICIAL 0 PHOTOGRAPHS OF THE HOMICIDE VICTIMS.
VII THE PROSECUTOR EXCEEDED THE BOUNDS OF FAIR PLAY. (PARTIALLY RAISED BELOW).
VIII DEFENDANT MARZENO'S APPLICATION, ON REMAND, FOR A NEW TRIAL SHOULD BE REMANDED AGAIN FOR FURTHER PROCEEDINGS.
On September 24, 1983, the body of Henry DeTournay, 33, was recovered from Barnegat Bay in Toms River, New Jersey. The following day the body of his wife, Barbara DeTournay, 39, also was recovered from Barnegat Bay, approximately one mile east from where her husband's body was found. Henry's body was wrapped in a blue sleeping bag, a rust colored blanket and a rose pattern towel. Barbara's body was wrapped in a rust colored blanket. Both bodies were weighted down with 16-inch cement blocks and the same type rope was used to secure both bodies.
Autopsies performed on September 26, 1983, revealed that Henry was shot three times, had a postmortem fracture of the skull and marks on his neck indicating attempted manual strangulation. Barbara was shot seven times. The victims were killed with a 9mm automatic weapon. Investigators discovered the telephone numbers of defendants Kamienski and Alongi
inside Henry's wallet which was found with 1 his body. Also found inside the wallet were directions to Alongi's house, located in Toms River. Although the DeTournays lived in Miami, Florida, they were on a long term visit to New Jersey in September 1983. After an extended investigation, an indictment was filed against the defendants on October 4, 1987.
In September 1983, Marzeno lived in Island Heights, New Jersey. From September 1983 until February 1984, Jean Calabro Yurcisin was his friend and companion. During the summer of 1983, Yurcisin worked as a waitress at the Top O' The Mast restaurant in South Seaside Park, New Jersey. Marzeno, Alongi, Alongi's girlfriend-wife, Kamienski and Kamienski's girlfriend dined at the Top O' The Mast restaurant on several occasions during the summer and fall of 1983.
Alongi, age 61, was a Toms River real estate businessman. He lived on Baron Street which bordered on a lagoon that enters Barnegat Bay. Alongi had extensive use of a boat which he docked in a marina behind his house. He married his girlfriend, the former Jackie Sullivan, shortly before the trial in this matter. During the trial, some witnesses described Alongi as a distinguished looking man who did not use cocaine, but was involved 2 in its distribution for profit. Alongi met Kamienski in the spring of 1983 when he showed him condominiums which were for sale in the Toms River area.
Kamienski, age 43, was president of his family's business, Kamienski's Funeral Home. From 1981 until 1987, Kamienski lived in an apartment above the family's Garfield, New Jersey funeral home with his girlfriend, Donna Duckworth, age 28. From time to time they also lived on Kamienski's boat, the Foreplay III, docked at Ocean Beach Marina in Lavallette, New Jersey, and in Stuart, Florida, where Kamienski owned a car dealership. According to Duckworth, the couple spent about "24 hours a day" together, and they "partied almost every night" by using cocaine and speed. Kamienski supplied the drugs he and Duckworth consumed. Duckworth first met
Alongi and Marzeno on Kamienski's boat during the summer of 1983. Kamienski bought cocaine from Alongi and Marzeno and they socialized with them nearly every day after the first meeting. During the summer of 1982, Kamienski and Duckworth met Barbara and Henry DeTournay at Ocean Beach Marina when their boats were docked in adjoining slips. The couples socialized and used cocaine together.
It was the 3 State's contention during the trial and on appeal that the events which led to the murders began during the Labor Day weekend (September 3-5) of 1983 when Barbara and Henry DeTournay spent the weekend in Newark with Barbara's parents, Barbara's sister, Christine Longo, and her husband Leonard. The DeTournays left Newark to spend time on Kamienski's boat and to negotiate a drug deal. On September 11, the DeTournays arranged to have their drug courier bring three kilos of cocaine to them in Toms River.
Christine Longo testified that when the DeTournays returned to Newark, Barbara told her that they had slept on Kamienski's boat down the shore after a party. Christine said Barbara was happy because the drug deal they were in the process of negotiating would make them "set for life." On September 17, Henry received a telephone call at the home of his in-laws. Henry then left the house and used a public telephone located just outside his in-laws' home. Telephone records show that a phone call was made from that public telephone on September 17, 1983 to Alongi at 2:40 p.m. When Henry returned to the house, he told Barbara to pack their belongings as they had to go to the Jersey Shore. Henry 4 said they were leaving because "I got something big. I got something real big going." The DeTournays left Newark on September 17 shortly after receiving another phone call that evening. Telephone records indicate a second phone call was made from the public phone in Newark to Alongi at 8:01 p.m. When they left Newark, Henry said, "Come on Barb, this is it." That was the last time the family saw the DeTournays alive.
During the days following September 17, Christine received several telephone calls from Sidney Jeffrey, II, looking for the DeTournays. He was the drug courier for the DeTournays and he feared they had ripped him off. Jeffrey testified for the State, and in exchange for his testimony, the State agreed not to charge or prosecute him for his involvement.
Jeffrey testified that before the 1983 Labor Day weekend, he brought 12 ounces of cocaine from Florida to the DeTournays in Toms River, New Jersey. He was the courier because Henry looked like a hippie and would attract too much attention. On September 11, 1983, the DeTournays arranged for Jeffrey to bring three kilos of cocaine to Toms River. On September 17, Jeffrey called Henry in Newark and informed him that he had arrived 5 in Toms River with the cocaine and that he was staying at the Holiday Inn. Henry arranged to meet Jeffrey at the Holiday Inn on September 18. This was to be the first delivery of a plan to deliver three kilos of cocaine per month to Toms River. The arrangement was for the DeTournays to pay him $50,000 per kilo and he would deduct $5,000 per kilo for himself and deliver the balance to his Columbian drug lords.
Late in the day on September 18, Henry informed Jeffrey that the deal could not be finalized that day because the buyers were having trouble getting the money together. The transfer was postponed until 6:00 p.m. on September 19 at which time Henry was to drop Barbara off at the Holiday Inn and return for her after the buyers produced the money.
When Barbara arrived at the Holiday Inn, she told Jeffrey there had been another change in plans. The change was that Henry would not return for her because he would be counting the money. Instead, a "very distinguished looking man," fitting Alongi's description, would be picking her up. Barbara left the hotel at 5:00 p.m. with the three kilos of cocaine after she recognized the expected car pull into the parking lot. Jeffrey's description 6 of the car fits the description of a car owned by Alongi. He saw Barbara enter the car and he
watched it head east (in the direction of Alongi's house). That was the last he ever saw either the ...