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State v. Biegenwald3/5/1987
ly covered in local news reports. The day before the trial, news reports discussed Biegenwald's prior conviction for murder, repeated the prosecutor's statements that he killed Olesiewicz because "he wanted to see someone die that night," and linked Biegenwald to five area murders.
The venue motion was renewed at the start of the trial. The trial court initially stated that it would refuse to grant the motion unless 250 jurors indicated their inability to be impartial. Counsel did not renew the venue motion after the close of voir dire.
During voir dire the trial court at first sought to determine whether potential jurors' general views about capital punishment made them unqualified to sit in a capital case. The court initially asked general questions concerning the potential jurors' exposure to pretrial publicity and refused a defense request to inquire into specific details recalled from the public accounts. Defense counsel objected that the narrow scope of voir dire permitted the seating of jurors who would consider defendant's other crimes. In response, the trial court began to question those jurors whose answers indicated knowledge of defendant's background as to the extent of such knowledge. Of the eighty-eight venirepersons questioned about pretrial publicity, the court dismissed thirty-five of the forty-seven who indicated that they recalled specific details of other murders connected to defendant. The court excused only those prospective jurors who specifically indicated that they could not be impartial. Of the twelve remaining jurors who had been exposed to substantial publicity, four were seated over defense
challenges for cause. Defense counsel used peremptory challenges to remove these jurors. Every challenge for cause by the defendant was denied, and the court refused to hear challenges for cause at side bar. Defendant's counsel exhausted all twenty peremptory challenges before the final jury was seated.
Several jurors reported to the trial court that while waiting to be questioned, they had discussed defendant's case as well as the news reports of his previous conviction and alleged prior murders. The court then instructed the first two jury panels not to discuss the case. When the final jury was selected, at least one member had been identified as a juror who had discussed the case while awaiting voir dire.
At trial the State's main witnesses were Theresa Smith and Dherran Fitzgerald. Smith testified to what she had told the police in January. Fitzgerald testified about his friendship with Biegenwald, statements made by defendant to him about the murder, and the disposal of the body behind the fast food restaurant.
Biegenwald's defense was that Fitzgerald, an admitted contract killer, had murdered Anna Olesiewicz. Defendant presented the testimony of three inmates at Trenton State Prison who told essentially the same story. They claimed that Fitzgerald, in prison prior to negotiating his plea arrangement, on seeing news headlines about the murder had bragged that he had killed Olesiewicz. Each of Biegenwald's witnesses had initiated contact with defense counsel through the mail, having learned of the case in prison. All three said that although defendant did not initiate contact with the witness, the defendant had given them the name and address of his lawyer.
Defendant was found guilty of five counts: murder, possession of a weapon for an unlawful purpose, two counts of possession of a weapon without a permit, and possession of a controlled substance.
Defendant signed a written waiver relinquishing his right to a jury in the penalty phase. However, t
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