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State v. Biegenwald3/5/1987
f the evidence admitted initially in the guilt phase nevertheless may be admissible in the retrial of the sentencing proceeding, for often issues relevant to one are relevant to the other. In this
case, the State will presumably be required to prove the circumstances of the murder, as it did in the guilt phase, in order to prove aggravating factor c(4)(c).
Finally, it seems as if the State and the defense are free to present new evidence, testimony or documentation not presented at the original sentencing proceeding, and that the new jury may reach conclusions concerning aggravating factors and mitigating factors different from and inconsistent with the findings at the original sentencing proceeding. In other words, neither side is assured, at the new trial, of the "benefits" gained in the original trial. The only constitutional restriction applicable to retrials in criminal cases is that the defendant may not be subject to punishment beyond that imposed in the first trial, and since death was the verdict in the first trial that issue is immaterial here.
Conclusion
As we stated in State v. Ramseur, supra, 106 N.J. at 331, it is not for this Court to pass on the wisdom or the ultimate morality of the death penalty. That issue is for the Legislature and the Governor, and for them alone. Our function is to determine whether their decision and the law implementing it are constitutional, and thereafter to review cases where the death penalty is applied. We find the act constitutional in all respects but reverse the imposition of the death penalty for the reasons set forth above and remand the matter for a new trial of the sentencing proceedings only, in accordance with this opinion. We affirm the murder conviction.
[EDIT ]
APPENDIX
There follows excerpts of the voir dire of nine jurors who knew about defendant's prior conviction or other murders but were accepted by the trial court based on their expressed belief that they could deliberate impartially. The voir dire examination of these jurors is recounted in detail to illustrate the inadequacy of the voir dire in light of the massive adverse pretrial and trial publicity.
(a) Ms. Herron
Mary Herron originally stated that she had some knowledge of the case and recognized the defendant's name in connection with what she read in the Asbury Park Press.
[THE COURT] Q: Do you recall reading anything in the newspapers that you told us about Mr. Biegenwald's prior background?
[THE JUROR] A: Yes. There was some mention of that.
Q: What you you recall being mentioned?
A: That he had previously been arrested for a crime and also in his childhood he had -- I think I may have read that he had been institutionalized as a child or a young person.
The Court then asked Ms. Herron seven questions to determine whether she would be affected by what she knew; she maintained that she would not and volunteered that she didn't believe everything she read in the newspaper and that there were two sides to every Story. At the end of Ms. Herron's voir dire defense counsel asked for additional questions about what else the veniremember recalled.
[THE COURT] Q: If there is anything more you recall about reading about it in the newspapers, tell us.
[THE JUROR]: About this particular case?
MR. DIAMOND: About Mr. Biegenwald.
A: I did hear on the radio some time after the original arrest, the incident on Staten Isla
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