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State v. Biegenwald3/5/1987
l. 4); "because he wanted to see someone die that night" (Star Ledger, May 21, 1983 at 1,
9); "I guess she wouldn't die til [ sic ] he shot her twice or more"; that four of his victims died because Biegenwald enjoyed killing people; and that he was a "perverted, sick individual" (Asbury Park Press, May 5, 1983 at 1, col. 4). As a result of such characterizations, defendant was referred to in headlines of the Trenton Times and Daily News as the "Thrill Killer." News coverage relating to defendant's involvement in these crimes was also presented on the radio and television.
In the wake of this adverse publicity, defendant brought a motion for a change of venue. The assignment judge denied this motion on July 29, 1983. However, the court did issue an order enjoining the prosecutor from making further comments to the press regarding non-indicted matters and from making inflammatory remarks of any kind. Nevertheless, the publicity again flared up on Sunday, November 13, 1983, the day before the trial began. On that day, the Asbury Park Press carried a front-page article on the upcoming trial, featuring a picture of the defendant, revealing his prior conviction, repeating the prosecutor's statements on lack of motive, and linking the defendant to five other murders in the area. It is undisputed that some jurors read newspaper accounts of the trial in the jury assembly room before they were empaneled. Thereafter, press coverage remained constant, continuing on a daily basis and relating the details of the jury voir dire examination and the trial itself. The entire trial was televised.
There was a tangible impact from this publicity on the jury-selection process. Defense counsel objected to empaneling the jury and sought a change of venue on the ground that the prejudice from this adverse pretrial publicity could not be overcome and, further, that the voir dire examination of jurors would itself be insufficient to establish a basis for a change of venue. The trial court denied the motion, stating at one point
that if fifty jurors said their deliberations would be affected by the publicity, the defendant would have "an argument" for a change of venue. At another time, the court stated that it would not entertain the motion to change venue until after the voir dire and that it would not grant the motion unless 250 prospective jurors said they could not be impartial.
The voir dire procedure was undertaken by the trial court between November 14 and 18, 1983. The examination purported to address the problems created by the pretrial publicity. The trial court instructed the prospective jurors not to discuss the case among themselves. The jurors were asked about the publicity to which they were exposed and whether such publicity would affect their determination of guilt. However, the trial court initially refused, over defendant's objection, to question jurors about the details they recalled from the pretrial press accounts they had read; the court indicated it would consider asking the jurors only whether they were thinking about all the indictments, since the press reported them together. Defense counsel then moved unsuccessfully for a mistrial on the grounds that jurors were being seated who would give consideration to other crimes and because the court refused to allow
the attorneys to state their cause objections at side bar, outside the juror's hearing.
Before any peremptory challenges were exercised, sixteen jurors, who were not otherwise excused for cause, were seated. Throughout the voir dire, t
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