State v. ZarinskyState v. Zarinsky
Defendant was convicted in a jury trial of the first degree murder of Rosemary Calandriello (hereafter Rosemary), and the mandatory sentence of life imprisonment was imposed.
On August 25, 1969, at about 6 P.M., Rosemary Calandriello, a 17-year-old high school student, left her home on Center Avenue in Atlantic Highlands, New Jersey, to buy milk and ice pops at two neighborhood stores. She took $2 with her and when she left she said, “I‘ll be right back.” She was wearing a sleeveless blouse and shorts, was barefooted and carried no purse or wallet. A neighbor saw her walking down Center Avenue toward the center of town. About the same time another neighbor, Mrs. Vaughn, saw a stocky man slouched in an old, black and white Ford automobile parked near a bowling alley on Center Avenue. Shortly thereafter four boys, who were schoolmates of Rosemary, saw her riding with a stocky man, later identified as defendant, in a white Ford Galaxie with a black convertible top. She has not been seen or heard from since, and her body has never been recovered. She was promptly reported to the police as missing and they started an investigation.
The police discovered that a man fitting defendant‘s description had also attempted to lure two 14-year-old girls into his car two weeks earlier at the bowling alley on Center Avenue. The girls were Darlene Curren and Donna Johnson. Darlеne testified that the man had a chubby face, long sideburns and a goatee, and she had never seen him before. At about 7 P.M. he approached them, offered them some drinks in his car and asked Donna if she wanted to drive his car. They refused and went into the bowling alley.
Sergeant Guzzi obtained the license plate number of the car the man was driving and learned that the car was registered
The automobile was examined pursuant to a search warrant obtained on August 29. The body of the car was in pоor condition, the left rear was dented and the rear window was down. There was mud underneath the car and pieces of straw, a twig and grass were found on the lower front portions of the car. In the glove compartment were bottles of beer and blackberry brandy. The police found a .22-calibre rifle shell and a blank casing under the back seat. Hairclips were found under the right front seat and a pair of blue bikini-type panties were on the left rear floor. (There was testimony that Rosemary had worn hairclips and panties of this type, but these items were not identified as actually belonging to her.) In the trunk were found a chrome-plated hatchet and a ball peen hammer with a hair fiber on its flat face. Scrapings taken from the right rear bumper and right rear taillight rim proved upon analysis to be blood.
The door and window handles on the passenger side of the vehicle had been removed and were found under the right
The initial complaint against defendant was amended on August 28 to charge defendant with abduction of Rosemary for an immoral purpose.
In December 1969 defendant was also indicted in connection with the August 9, 1969 incident involving the 14-year-old girls, Darlene and Donna. The crimes charged were an attempt to entice a child “within the age of 14 years” to leave her father or mother, contrary to
In March 1970 defendant was tried on the indictment involving the 12-year-old girls, but the case was dismissed by the trial judge at the close of the State‘s proofs. In the subsequent trial involving the 14-year-old girls, defendant was convicted of attempting to commit the alleged crimes. However, on appeal, this court in February 1971 set aside the convictions on the ground that the proofs did not support the charges. In the meantime, in June 1970, the complaint charging abduction of Rosemary was dismissed by the trial court on defendant‘s motion pursuant to R. 3:25-3 for unnecessary delay in presenting the charge to a grand jury. A
Although no charges were pending after June 1970, investigations involving defendant continued. Warrants were issued in February 1975 for the search of defendant‘s residence and vehicles, supported by affidavits asserting that defendant was a suspect in the deaths of Rosemary and of 17-year-old Linda Balabanow in 1969, and teenagers Joanne Delardo and Doreen Carlucci in December 1974. Linda Balabanow had worked at a drug store two blocks from defendant‘s home. She was last seen when she left the store on March 26, 1969, and her body, to which an eight-foot truck tire chain was attached, was recovered from the Raritan River in Woodbridge Township on April 27, 1969. She hаd been brutally beaten and was killed before her body entered the water. A piece of electrical wire was found knotted around her broken neck. In January 1972 Sergeant Guzzi was advised that federal authorities had matched a hair sample from the Balabanow girl with the hair fiber found on the ball peen hammer taken from the trunk of defendant‘s car in the investigation of Rosemary‘s death.
Similarities were noted between the death of the Balabanow girl and the deaths of the Delardo and Carlucci girls of Woodbridge Township, who were together when last seen alive on December 13, 1974. Their bodies were found on December 27 in Manalapan Township. Both girls had been strangled, and knotted еlectrical wire was found on Joanne Delardo‘s neck. The Balabanow and Delardo bodies were nude from the waist down, and Carlucci‘s body was almost entirely nude. Their missing clothing was never found. The preserved state of Delardo‘s and Carlucci‘s bodies led police to suspect that they had been stored in cool temperature for more than a week before being deposited in Manalapan. Defendant had an insulated truck which he and his father used in their produce business which could have been used for this purpose. However, the searches conducted on February
On February 20, 1975 defendant was indicted for the murder of Rosemary Calandriello. His pretrial motions to dismiss the indictment for untimeliness were denied, and his motion to suppress evidence seized in the February 1975 searches was also denied. Trial commenced on April 7, 1975.
As indicated above, the evidence offered by the State probative of defendant‘s guilt was largely circumstantial. There was extensive evidence linking defendant to Rosemary‘s disappearance. Two of the girls testified to the August 9 and August 23 incidents in which defendant tried to entice them into his automobile and they made positive in-court identifications of defendant. The four boys who observed Rosemary in defendant‘s car when she was last seen also testified and made positive in-court identifications of defendant. Theirs was not merely casual observations of Rosemary and defendant. They were approaching the intersection of Center Avenue and Avenue A in Atlantic Highlands when they observed defendant‘s automobile coming toward them. The vehicle turned left in front of them and they followed it at a slow pace for about five minutes. Each testified that he was able to get a good view of Rosemary and defendant, and one estimated he had a front view of defendant‘s face for 10 to 12 seconds. They were surprised to see Rosemary in defendant‘s automobile, for Rosemary had no boyfriends to their knowledge.
There was much evidence to show that it was out of character for Rosemary to be in a stranger‘s car. She was a shy, quiet and obedient girl who got along well at home and was never known to have hitchhiked. Rosemary had gone out with one boy several times, beginning in July 1969, but only on a double date. There was no evidence offered to suggest that Rosemary had voluntarily run away from home, yet she was never seen or heard from after riding in defendant‘s car. By stipulation it was proved that the following government agencies had no contact with Rosemary since August
Finally, three of defendant‘s jailmates, John Gosch, Herbert L. Williams and Al Glover, testified to statements made by defendant while in the Monmouth County Jail. Defendant implicated himself in Rosemary‘s murder in talking with Gosch (saying, “They‘ll never find that stinking broad“) and, in an angry outburst, defendant admitted to Williams and Glover that he had thrown Rosemary‘s body, loaded with weights, into a river. Williams also testified that defendant alluded to various details of the case. Defendant explained that the inside door handles of his car were removed so that girls could not get out, and he said that he could claim that a pair of panties, found by the police in his car, were his wife‘s. There wаs also evidence that shortly before his arrest defendant was observed leaning over the open trunk of the Ford automobile with a scrub brush in his hand and a plastic pail beside him. Despite this suggestion that defendant was cleaning a portion of the vehicle, it was found generally in an unclean and untidy condition.
Defendant did not testify. Various witnesses, including his wife, mother and father and several aunts and uncles, testified that defendant was at home in Linden, New Jersey throughout the evening of August 25, 1969. However, the State was able to contradict the testimony of defendant‘s wife, mother and father. Defendant‘s father claimed he had been watching television during the evening and defendant‘s wife claimed she was at homе. However, when questioned the day after defendant‘s arrest his father had said nothing about watching television; rather, he told the police he went to sleep at 5:30 P.M. At the same time defendant‘s mother had stated that defendant‘s wife had accompanied her to her weekly bingo game on the night of Rosemary‘s disappearance.
Despite this testimony the jury found defendant guilty.
I
We consider, first, whether defendant‘s prosecution is barred by
Except as otherwise expressly provided by law no person shall be prosecuted, tried or punished for any offense not punishable with death, unless the indictment therefor shall be found within five years from the time of committing the offense or incurring the fine of forfeiture. This section shall not apply to any person fleeing from justice. [Emphasis supplied]
Defendant argues that because the death penalty can no longer be imposed under our existing statutes (State v. Funicello, supra) he was not accused of a crime “punishable with death.” Therefore, he reasons, this prosecution must be barred because it was not instituted within five years from the time of the offense.
Defendant places primary reliance on State v. Johnson, 61 N.J. 351 (1972), which held that subsequent to Funicello an individual charged with first degree murder was bailable before conviction because murder was no longer a capital offense. However, we do not find Johnson persuasive on the issue before us. In Johnson the court was concerned with the right to bail.
The court in Johnson examined the policies underlying the right to bail. Noting that the concept of pretrial release reflects “the everpresent presumption of innocence,” the court said that the inclusion of the words “except for capital offenses” struck a balance:
The underlying motive for denying bail in capital cases was to secure the accused‘s presence at the trial. In a choice between hazarding his life before a jury and forfeiting his or his sureties’ property, the framers * * * felt that an accused would probably prefer the latter. But when life was not at stake and consequently the strong flight-urge was not present, the framers obviously regarded the right to bail as imperatively present. [61 N.J. at 360]
Once the threat of death and its strong inducement for flight were removed the court found that there was no longer any justification for denying bail to persons accused of crimes which had been designated by the Legislature as capital offenses.
A statute of limitations strikes a balance between the right of the accused to repose and the right of the public to the prosecution of crimes. It affords protection against charges brought after events have become clouded by time, “to minimize the danger of official punishment because of acts in the far-distant past.” Toussie v. United States, 397 U.S. 112, 114-115, 90 S.Ct. 858, 860, 25 L.Ed.2d 156, 161 (1970). For most crimes there is an absolute bar to prosecution after a specified period. In re Pillo, 11 N.J. 8, 18 (1952); Moore v. State, 43 N.J.L. 203, 209 (E. & A. 1881). However, the Legislature made an exception for crimes “punishable with death.” These extremely serious crimes were never to be insulated by time.
Since it was enacted in 1796 our statute of limitations has excepted the crime of murder for which the legislature prescribed the death penalty. Pat. L. 1796, p. 208, § 73 (An Act for the punishment of crimes); L. 1879, c. CI, § 1 at 183; L. 1898 c. 237, § 152 at 919; L. 1953, c. 204, § 1 (
While a statute of limitations should be liberally interpreted in favor of repose, its applicatiоn must be consonant with the intent and purpose of the lawgiver. It is the legislative purpose which controls. State v. Brown, 22 N.J. 405, 415-416 (1956). Clearly, the Legislature intended to ensure that crimes of the most serious class, including first degree murder, would not escape prosecution by the mere passage of time. The phrase “offense * * * punishable with death” was a convenient means of identifying the several offenses to be included in the exception for which the death penalty was or would be provided in other sections of the criminal code. See
The unenforceability of the death penalty has not wiped the statute off the books. See Dwyer v. Volmar Trucking Corp., 105 N.J.L. 518, 520 (Sup. Ct. 1929). Imposition of the death penalty for murder is not prohibited per se, but the criteria for its application may render the penalty unenforceable. See Gregg v. Georgia, ___ U.S. ___, 96 S.Ct. 2909, 48 L.Ed. 2d ___, 44 U.S.L.W. 5230 (1976). The constitutional basis for suspending the
II
Defendant next contends that his right to a speedy trial, protected by the Sixth Amendment to the United States Constitution,2 was violated. A 5 1/2-year period separated defendant‘s arrest for contributing to the delinquency of Rosemary Calandriello and his indictment for her murder. Nevertheless, in the circumstances of this case, we hold that defendant‘s right to a speedy trial was not violated.
In reaching this decision we have considered the various factors referred to in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and State v. Szima, 70 N.J. 196, 358 A.2d 773 (1976). These are the length of delay, the reason for delay, whether defendant asserted the right and the degree of prejudice to defendant.
Defendant was first arrested in connection with Rosemary‘s disappearance in August 1969, but charges of abduction were dropped in June 1970. He was released on bail promptly after his arrest in August 1969. He has not demonstrated that prior to his indictment for murder his employment was interrupted, his finances drained, his associations curtailed, his reputation impaired, or that he, his family and friends were subjected to anxiety by reason of the threat of prosecution for murder. These considerations were identified in United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468, 478 (1971), as the “substantial underpinnings” of the right to speedy trial. Cf. State v. Smith, 131 N.J. Super. 354, 369 (App. Div. 1974), aff‘d o.b. 70 N.J. 213 (May 17, 1976); United States v. MacDonald, 531 F.2d 196 (4 Cir.1976).
Prejudice to a defense due to inordinate delay in prosecution is, of course, a serious consideration. However, we find no reason on this account to invalidate defendant‘s conviction. There is nothing in the record to indicate that his defense was unduly impaired. See Barker v. Wingo, supra, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. Defendant‘s alibi witnesses testified they had a clear memory that defendant was home on the night in question. See id. at 532, 92 S.Ct. at 2193, 33 L.Ed. at 118. The original, early charge of abduction had served to stimulate defendant‘s preparation of a defense against criminal involvement with Rosemary. Thus, defendant‘s claim of possible prejudice is “insubstantial” and “speculative.”
Defendant contends that he was prejudiced by reason of the deаth of his first attorney, Morris Spritzer, whose testimony would have been helpful on the voir dire as to the admissibility of the lineup evidence. The record shows that Spritzer represented defendant in an application for reduction of bail on November 24, 1969 in connection with the indictment pertaining to the 12-year-old girls. Shortly thereafter, on December 11, 1969, defendant‘s present attorney appeared for defendant in that cause and he has continued to represent defendant on all charges involving Rosemary and the four other young girls. Defendant contends that he was deprived of his right to Spritzer‘s counsel at the August 28, 1969 lineup identification. However, for reasons indicated below, we conсlude that the loss of Spritzer‘s testimony was immaterial, since the denial of defendant‘s right to counsel, even if it occurred, was harmless error.
We also find no prejudice in the loss of other potential evidence claimed by defendant. For example, the Ford Galaxie, which was ordered returned to defendant‘s father in May, 1970, was destroyed in April 1973 as valueless. However, photographs of the vehicle were taken in August 1969 and were marked in evidence at the trial. The car was available to defendant before the charge of abducting Rosemary had been dismissed, and defendant has not shown what proof he lost by its unavailability at the time of trial.
Defendant contends that his motion for dismissal of the charges against him for Rosemary‘s abduction was tantamount to a request for speedy trial.3 Cf. State v. Smith, supra, 131 N.J. Super, at 363-367. Nevertheless, viewing the record as a whole, we have no doubt that defendant suffered no constitutional wrong by the passage of time before he was indicted for murder.
III
We reject, also, defendant‘s contentions that the trial judge committed prejudicial error in admitting certain evidence.
We find no error in the judge‘s refusal to exclude defendant‘s admissions of culpability to Gosch, Williams and Glover. For a confession to serve as an evidential basis for conviction “the State must introduce independent proof of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness, plus independent proof of loss or injury * * *.” State v. Lucas, 30 N.J. 37, 56 (1959). We find that the State has met this burden.
There was ample independent circumstantial proof to give credence to defendant‘s admissions. The failure to produce the victim‘s body does not preclude a finding that she is dead. Commonwealth v. Burns, 409 Pa. 619, 629-33, 187 A.2d 552, 558-559 (Sup. Ct. 1963); State v. Dudley, 19 Ohio App.2d 14, 20, 249 N.E.2d 536, 541 (Ct. App. 1969). Proof of the corpus delicti — the fact of injury or, in a homicide case, of death, by a criminal agency — may be supplied by direct or circumstantial evidence. Commonwealth v. Burns, supra; State v. Dudley, supra; Campbell v. People, 159 Ill. 9, 42 N.E. 123 (Sup. Ct. 1895) (miscited by defendant as support for his position); People v. Corrales, 34 Cal.2d 426, 210 P.2d 843 (Sup. Ct. 1949); cf. United States v. Di Orio, 150 F.2d 938, 941 (3 Cir.), cert. den. 326 U.S. 771, 66 S.Ct. 175, 90 L.Ed. 465 (1945). Contra, Ruloff v. People, 18 N.Y. 179 (Ct. App. 1858), cited by defendant, and N.Y. Penal Law of 1909, § 1041. But L. 1965, c. 1046, § 2, effective Sept. 1, 1967 (N.Y. Penal Code
Contrary to defendant‘s contention, a voir dire to determine the existence of corroboration is not a condition precedent to the admission of a confession. If sufficient independent corroboration is not shown by all the proofs, a judgment of acquittal at the close of the State‘s case is the appropriate remedy. R. 3:18-1.
Defendant next contends the trial judge erred in admitting the testimony of Lydia Hardie and Darlene Curren as to defendant‘s attempts to entice them into his car. We disagree.
Evid. R. 55 provides:
Subject to Rule 47, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed a crime or civil wrong on another specified occasion but, subject to Rule 48, such evidence is admissible to prove some other fact in issue including motive, intent, plan, knowledge, identity, or absence of mistake or accident.
The fundamental distinction is between evidence which is relevant only to a defendant‘s “criminal disposition” and that which is relevant to a particular fact in issue before the jury. State v. Wright, 66 N.J. 466 (1975), adopting dissenting opinion, 132 N.J. Super. 130, 148 (App. Div. 1974). Evidence of defendant‘s prior conduct may be admitted if relevant to establish intent, plan or motive (see State v. Sinnott, 24 N.J. 408, 413-414 (1957)) even though defendant had been acquitted previously of criminal charges based upon such conduct. State v. Slocum, 130 N.J. Super. 358, 363 (App. Div. 1974). Conduct which is insufficient to establish a criminal intent toward one victim may tend to prove a criminal intent toward another victim in the light of other evidence.
Defendant contends that the State‘s failure to prove that his prior conduct was a crime or civil wrong prevents admission of this evidence. This contention misses the point. If the prior conduct is not a crime or civil wrong, but is relevant it is admissible. Evid. R. 7(f) provides that “all relevant evidence is admissible” unless excluded under some other rule of evidence. Here we find no abuse of discretion in the failure to exclude this evidence under Evid. R. 4 because of its potential for prejudice.
In this сase evidence that defendant, a 28-year-old married man, had on two previous occasions persistently tried to lure teenage girls into his car would tend to explain how Rosemary came to be in the car of this stranger. See State v. Wright, supra. It tends to negate other hypotheses advanced by defendant for Rosemary‘s disappearance, namely, voluntary flight, suicide or accident.
We also agree with the trial judge‘s observation that the evidence was relevant to show defendant‘s presence in the victim‘s neighborhood, despite his residence in another county, and it tended to corroborate the identification of defendant as the driver of the automobile.4
At the voir dire held to determine the admissibility of this evidence there was testimony that the police did notify counsel that the lineup would be held, but that he did not appear in time. Counsel was dead at the time of this trial and no explanation was given for his absence from the lineup.5 In any case, both witnesses made positive in-court identifications of defendant, which are not challenged by defendant. Thus, even if there was error, we are satisfied beyond a reasonable doubt that introduction of this evidence was not “clearly capable of producing an unjust result.” R. 2:10-2; Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-828, 17 L.Ed.2d 705, 710 (1967); State v. Macon, 57 N.J. 325, 336-341 (1971).
Further, the trial judge did not err in permitting in-court identifications of defendant by the four witnesses who saw Rosemary in defendant‘s automobile. The judge had previously ruled that their identifications of defendant‘s
Assuming, arguendo, there was suggestiveness in the procedure, it was clear that the boys had ample opportunity to observe defendant. Thus, we have no doubt that the trial court correctly concluded that these in-court identifications were based upon their independent recollections. See Simmons v. United States, 390 U.S. 377, 384-386, 88 S.Ct. 967, 971-72, 19 L.Ed.2d 1247, 1253-1254 (1968); State v. Thompson, 59 N.J. 396, 418-419 (1971); cf. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
We find no error in admitting into evidence various items seized from defendant‘s automobile which offered circumstantial evidence of the commission of the crime, although the probative weight of many items was debatable. State v. Wade, 89 N.J. Super. 139, 145 (App. Div. 1965); cf. State v. Mayberry, 52 N.J. 413, 435-436 (1968), cert. den. 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed.2d 593 (1969). The trial judge did not err in concluding that the State had met its burden in establishing the chain of possession of the items. See State v. DiCarlo, 67 N.J. 321, 329 (1975); State v. Brown, supra, 99 N.J. at 27. Nor was there error in the admission of hairclips used by Rosemary which had been found in her pocketbook, so that they could be compared with those found in the car. While the pocketbook might have been excluded, this claimed error could not justify setting aside the verdict.
We find defendant‘s remaining contentions lacking in merit.
The State contends that defendant‘s course of conduct, reasonably inferable from the evidence, was tantamount to concealment within the meaning of the law. The removal of the door and window handles, for example, evidences concealment of defendant‘s purpose to entrap the victim. See State v. Tansimore, 3 N.J. 516, 537 (1950). A jury could find “lying in wait” despite the fact that an accused has revealed his physical presence to the victim immediately before the killing. Id. Traditionally, however, an intent to ambush by watchful waiting, concealment and secrecy is the essence of the term. People v. Merkouris, 46 Cal.2d 540, 297 P.2d 999 (Sup. Ct. 1956). However, a killing by “lying in wait” is merely a form of premeditated, deliberate and willful murder. See
Defendant also contends that the search warrants issued in 1975 were not supported by affidavits establishing probable cause to believe that defendаnt was guilty of any of the murders for which evidence was sought. We disagree. Nor was it unreasonable to believe that evidence of such crimes may
Finally, we find no merit to defendant‘s assertion that his conviction was against the weight of the evidence. A motion for a new trial on this ground was denied. We are satisfied that “the evidence, viewed in its entirety including the legitimate inferences therefrom [was] sufficient to enable a jury to find that the State‘s charge [was] established beyond a reasonable doubt.” State v. Mayberry, supra, 52 N.J. at 436-437. Thus, we have no doubt that defendant‘s conviction was not a “manifest denial of justice under the law.” State v. Sims, 65 N.J. 359, 374 (1974).
Affirmed.