Petition — Zarinsky v. New Jersey
Supreme Court brief1979
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Supreme Court, U. ‘
FILED |
MAR 12 1979 :
IN THE hanna RODAK, JR., CLERK
Supreme Court of the United States
Ocroser TERM, 1978
No. FR a 1395
ROBERT ZARINSKY,
Petitioner,
os.
STATE OF NEW JERSEY and
ROBERT S. HATRAK, Principal Keeper,
Rahway State Prison,
Respondents.
On Petrrion ror Warrir or CERTIORARI TO THE
Unrrep States Courr or APPEALS FOR THE
Tamp Circuit
PETITION FOR WRIT OF CERTIORARI
BROWN & BROWN,
RAYMOND A. BROWN,
Attorneys for Petitioner,
26 Journal Square,
Jersey City, New Jersey 07306
RaymMonp M. Brown
On the Brief
N.J. Appellate Printing Co., Inc. South Plainfield, New Jersey (201) 753-0200
2 2 meee ee - -
—
TABLE OF CONTENTS
a ESE A, ee 1
ES SS A 2
SEES ee OCS et ra 2
Constitutional Provisions Involved ................. 3
Giatemnene ae Gee Ga 2. oe ee ees. 3
REASONS FOR GRANTING THE WRIT:
POINT I: The Courts below erred in determining the
time at which the petitioner became an accused
for purposes of the speedy trial guarantee ...... 6
POINT II: A conviction based on a record lacking
relevant evidence on a crucial element of the of-
fense charged violates due process ............ 14
CS Sess Be saa iuin x0 99 0 + 18
Cases CITED:
Commonwealth v. Sutton,
406 Pa. 121, 176 A.2d 679 (Pa. 1962) .......... 15
Crosby v. Delaware,
346 F. Supp. 213 (D. Del. 1972) .............. 17
Dickey v. Florida,
RS a 10
Dillingham v. United States,
ES ee 6
Hoskins v. Wainwright,
485 F.2d 1186 (5th Cir. 1973) ................ 13
People v. Merkouris,
46 Cal. 2d 540, 297 P.2d 999 (Sup. Ct. 1956) .... 15
TABLE OF CONTENTS
Cases CIrep:
Pollard vy. United States,
MN EMEC LE: ick & «srk dacc aes ie cane ll
State v. Brooks,
103 Ariz. 472, 445 P.2d 831 (1968) ............ 15
State v. Moore,
147 N.J. Super. 490, 371 A.2d 742
CRM POET Stic is ie bese ken kee abens Pes 8
State v. Tansimore,
3 N.J. 516, 71 A.2d 160 (1950) ................ 15
Tate v. People,
125 Colo. 527, 247 P.2d 665 (Sup. Ct. 1952) .... 16
United States v. Avalos,
541 F.2d 1100 (5th Cir. 1976) ............ 8,11, 13
United States v. DiGilio,
538 F.2d 972 (3rd Cir. 1976) ................ 17
United States v. Holt,
460 F.26 JIGS (DC. Cir. 1071)... 6. oo 10
United States v. MacDonald,
531 F.2d 196 (4th Cir. 1976) .................. 12
United States v. Marion,
Oe OR MI) oe a See 6
United States v. Small,
345 F. Supp. 1246 (E.D. Pa. 1972) ........... 7
Vachon v. New Hampshire,
OU Bh, MR BOND oo boa ira c bo wie Clawec's4 cade 17
Wingo v. Barker,
407 U.S. 514 (1972)
iii
TABLE OF CONTENTS
Cases CITED:
Winship, In re,
BT Ws BOO CIRTO) onc cece ec enn ees 17
AuTuorities CITED:
NES Week Me MRA MIO® © 20,550. cece ees 16
U.S. Constitution .
PES. ale as he dae sos ns Ge dsdhn ens passim
SS a ee ere ere passim
Cope CriTep:
OE TMC) ov care we cc eSee ee cce vn eatecaces 2.
APPENDIX
Appendix A (Opinion of the Appellate Division of the
Superior Court of New Jersey, July 20, 1976) .. la
Appendix B (Order of the Supreme Court of
New Jersey, November 9, 1976) .............. 29a
Appendix C (Order of the Supreme Court of
New Jersey, March 1, 1977) ..............+5. 30a
Appendix D (Report and Recommendation of the
United States Magistrate, May 30, 1978) ...... 3la
Appendix E (Opinion and Order of the United States
District Court of New Jersey, September 22, 1978) 46a
Appendix F (Order of the United States Court of
Appeals for the Third Circuit, December 11, 1978) 54a
Ament G (REGNUM) on ere ee 55a
iN THE
SUPREME COURT OF THE UNITED STATES
Ocroser TERM, 1978 |
No.
ROBERT ZARINSKY,
Petitioner,
vs.
STATE OF NEW JERSEY
and
ROBERT S. HATRAK,
Principal Keeper, Rahway State Prison,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
The petitioner, Robert Zarinsky, respectfully prays that
a writ of certiorari issue to review the judgment of the
United States Court of Appeals for the Third Circuit in this
case.
OPINIONS BELOW
The following Opinions and Orders are appended for
the convenience of the court:
2 Opinions Below
A. The Opinion of the Appellate Division of the
Superior Court of New Jersey, dated July 20, 1976, affirm-
ing petitioner's conviction is reported at 143 N.J. Super.
35, 362 A.2d 611, and is attached as Appendix A to this
petition.
B. The unpublished Report and Recommendation
of the United States Magistrate, dated May 30, 1978, recom-
mending that petitioner's application be denied is attached
as Appendix D to this petition.
C. The unpublished Opinion and Order of the
United States District Court for the District of New Jersey,
dated September 22, 1978, dismissing petitioner's appli-
cation is attached as Appendix E to this petition.
D. The unpublished Order of the United States
Court of Appeals for the Third Circuit, dated December
11, 1978, denying petitioner’s motion for a certificate of
probable cause is attached as Appendix F to this petition.
_ JURISDICTION
The judgment of the Court of Appeals was entered
on December 11, 1978. The jurisdiction of this Court is
invoked under 28 U.S.C. 1254 (1).
QUESTIONS PRESENTED
; Whether the Courts below erred in determining the
time at which the petitioner became an accused for pur-
poses of the speedy trial guarantee.
Whether a conviction based on a record lacking rele-
vant evidence on a crucial element of the offense charged
violates due process.
3
CONSTITUTIONAL PROVISIONS
INVOLVED
The Sixth Amendment to the United States Consti-
tution provides:
“In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an im-
partial jury of the State and district wherein the
crime shall have been committed which district
shall have been previously ascertained by law,
and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining Wit-
nesses in his favor, and to have the Assistance of
Counsel for his defense.”
The Fourteenth Amendment to the United States
Constitution provides, in pertinent part as follows:
“Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State
wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or im-
munities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or prop-
erty, without due process of law; nor deny to any
person within its jurisdiction the equal protection of
the laws.”
STATEMENT OF THE CASE
On August 27, 1969, petitioner was arrested in con-
nection with the disappearance of Rosemary Calandriello.
Miss Calandriello, last seen in the company of the peti-
tioner, has neither been seen nor heard from since August
25, 1969. On August 28, 1969, petitioner was charged with
having abducted Miss Calandriello for an immoral pur-
pose. No action having been taken on this charge, the
4 Statement of the Case
complaint was dismissed in June 1970 for unnecessary
delay in presenting the charge to a grand jury. On Feb-
ruary 20, 1975, approximately five years and six months
after the original arrest, the petitioner was indicted for the
murder of Rosemary Calandriello. Petitioner’s pretrial mo-
tions to dismiss the indictment due to a violation of the
speedy trial guarantee were denied, and the trial com-
menced on April 7, 1975. A verdict of guilty was re-
turned on April 23, 1975.
Petitioner appealed. The Appellate Division of the
Superior Court of New Jersey rejected all of the petitioner's
contentions and affirmed the conviction (Appendix A). A
petition for certification was made to the New Jersey Su-
preme Court, which limited its review to the question of
whether there is a statute of limitations for murder in New
Jersey (Appendix B). The New Jersey Supreme Court
denied the petitioner's motion for a reconsideration of the
limitation of the grant of certification (Appendix C). Ad-
dressing only the question of a statute of limitations, the
New Jersey Supreme Court affirmed the petitioner’s con-
viction. 75 N.J. 101, 380 A.2d 685 (1977).
The petitioner filed a petition for a writ of habeas
corpus in the United States District Court of the District
of New Jersey, raising a number of issues, including the
denial of a speedy trial and the lack of evidence on a
crucial element of the offense charged. A United States
Magistrate filed a Report and Recommendation (Appendix
D), recommending that petitioner’s application be denied
without evidentiary hearing or certificate of probable cause.
The Magistrate concluded that the period of delay in
bringing petitioner to trial was not to be measured from
August 27, 1969 the date of petitioner’s first arrest in
connection with the disappearance of Rosemany Calan-
driello, to April 7, 1975, the date on which petitioner’s
Statement of the Case 5
trial for the murder of Rosemary Calandriello began.
Rather, the Magistrate argued that the “trial was delayed
at most from August 28, 1969, when [the petitioner] was
arrested on the abduction complaint, to May 29, 1970,
when that charge was dismissed and from February 20,
1975, the date of the indictment, to April 7, 1975, when
trial began, or less than 11 months. . .” (Appendix D, page
3). This delay, the Magistrate concluded, was not “Pre-
sumptively prejudicial” in light of the circumstantial nature
of the prosecution's case, Rosemary Calandriello’s body
having never been found. The Magistrate urged that the
delay was for the legitimate purpose of strengthening the
inference of Rosemary's death “in anticipation of a de-
fense argument that Rosemary Calandriello had not been
missing so long that the jury could find beyond a reason-
able doubt that she was dead” (Appendix D, page 4).
The Magistrate summarily disposed of the petitioner's
claim based on the lack of evidence of an element of the
offense charged. On September 22, 1978, the United
States District Court for the District of New Jersey issued
an opinion responding to the petitioner's Objections to the
Report and Recommendation of the Magistrate and an
Order adopting the Report and Recommendation of the
Magistrate as the opinion of the District Court (Appendix
E). On December 11, 1978, the United States Court
of Appeals for the Third Circuit denied petitioner's mo-
tion for a certificate of probable cause (Appendix F).
REASONS FOR GRANTING THE WRIT
Point I
The Courts below erred in determining the time at
which the petitioner became an accused for purposes
of the speedy trial guarantee.
The right to a speedy trial extends only to those
persons who have been “accused” in the course of a
criminal prosecution. This Court has established that ar-
rest constitutes the initiation of prosecution, and thus deems
one an accused for purposes of securing the protections of
_ the Sixth Amendment. Dillingham v. United States, 423
U.S. 64 (1975). The application of the speedy trial provi-
sion need not await formal indictment; arrest is sufficient to
subject an individual to the prejudice and disruption which
the Sixth Amendment seeks to minimize. United States
v. Marion, 404 U.S. 307 (1971).
This case raises the question of when the protection of
the Sixth Amendment attaches in the case of multiple
charges arising from a single incident or event. The ques-
tion is thus whether the initial arrest deems one an accused
for all charges arising out of the same incident.
On August 27, 1969, the petitioner was arrested in
connection with the disappearance of Rosemary Calan-
driello. In June 1970, a charge of abduction arising out of
this incident was dismissed for an unnecessary delay in
presenting the charge to a grand jury. On April 7, 1975,
the petitioner was tried on a charge of murder arising
from the same incident for which he was arrested in 1969.
Reasons for Granting the Writ 7
The prosecution argues that petitioner was not ac-
cused of murder until his indictment on that specific charge
“on February 20, 1975. This approach to the speedy trial
guarantee is inconsistent with the Marion use of arrest
as the point at which right to a speedy trial attaches. De-
lay of a trial is properly measured from the initial prose-
cutorial response to the alleged criminal activity, rather
than from the filing of a specific charge arising out of the
activity. Formal charges often follow an arrest. In addi-
tion, the formal charge frequently is different from the
charge made at the time of the arrest. The time for mea-
suring the speedy trial claim is thus the time of arrest for
the activity giving rise to the trial, and not from the time
of the subsequent filing of charges. To hold otherwise
would invite the government to circumvent the speedy
trial provision by alleging and prosecuting seriatim the
offenses inherent in a single incident:
At arrest there are no formal charges usually out-
standing. However, the right to speedy trial attaches.
It must by implication attach therefore to all charges
accruing to the sovereign springing from the incident
giving rise to arrest. The prosecution can’t hold out
a ‘kicker’ from the effect of the Sixth Amendment
by not putting it in the formal indictment once a per-
son is an accused. This interpretation of Marion is
clearly in line with our traditional dislike of serial
and piecemeal prosecutions. [United States v. Small,
345 F. Supp. 1246, 1249 (E.D. Pa. 1972)].
Thus, the inquiry must be whether the activities for
which the petitioner was convicted were the same ac-
tivities for which he was arrested in 1969:
Because the activities forming the basis of conviction
under review are those for which the appellants were
originally arrested, we hold that the right to a speedy
8 Reasons for Granting the Writ
trial attached on the date of the initial arrests. [United
States v. Avalos, 541 F.2d 1100, 1108-09 (5th Cir.
1976) ].
Both the 1975 murder conviction and the 1969 ab-
duction charges were based primarily on evidence that
Rosemary Calandriello was last seen with petitioner. All
evidence presented by the prosecution at the murder trial,
except proof of Rosemary Calandriello’s continued ab-
sence, was originally obtained in 1969 and 1970 in antic-
ipation of a trial on the abduction charge. The only differ-
ence between the abduction and murder charges was the
passage of time, the very interest that the Sixth Amend-
ment is designed to protect. In the murder prosecution,
the state merely suggested that the passage of over five
years, considered along with the old evidence of abduction,
established the death of Rosemary Calandriello. It is thus
clear that petitioner was indeed tried in 1975 for the same
activities for which he was originally arrested in 1969.
This analysis reveals the highly anomolous posture
of petitioner's case. An abduction charge based upon the
August 25, 1969 incident has been dismissed for unneces-
sary delay, while a second charge, based upon the same
incident yet filed over five years later, has been upheld.
A similar irony was observed by the court in State v. Moore,
147 N.J. Super. 490, 371 A.2d 742 (App. Div. 1977). In
Moore, delendant was charged on February 6, 1967, with
the rape of a 18 year old female, allegedly committed on
January 11, 1967. On September 25, 1970, the charge was
dismissed due to a speedy trial violation. On July 20, 1971,
a grand jury returned indictments for different offenses,
all based upon the incident of January 11, 1967. The court
held that the delay in the trial of the second group of in-
Reasons for Granting the Writ 9
dictments was not to be measured from the time of the
indictments, but from the time of the arrest for the activi-
ties given rise both the 1967 and 1971 indictments. The
court expressed amazement at the attempt to circumvent
the speedy trial provision by dividing a simple incident
into a series of separately prosecuted charges:
We express . . . an inability to comprehend the rea-
soning which produced a dismissal of the carnal
abuse charge because of a lack of a speedy trial, and
yet permitted subsequent charges for alleged offenses
arising out of the same incident to stand. [147 N_].
Super. at 498, 371 A.2d at 746].
The District Court argues that Moore is disinguishable
from the present case in that in the former the defendant
was under indictment for the first charge for three years,
while petitioner in the present case was never indicted for
the first charge. This distinction does not rise to consti-
tutional significance. Dillingham and Marion clearly es-
tablish that delay in trial is to be measured from the time
of the arrest to the time of the trial. The fact of indictment
is not determinative.
Thus, in this case the delay in bringing petitioner to
trial on the murder charge is to be measured from the time
of his arrest for the activity upon which the conviction was
based until the start of the trial, a period of five years and
eight months. The mistaken calculation below in de-
termining the length of delay in trial will require a full
evidentiary hearing to determine if the delay constituted
a denial of a speedy trial.
In Wingo v. Barker, 407 U.S. 514 (1972), this Court
determined that the evaluation of a claim of a speedy
trial violation requires a balancing of the facts of each case,
10 Reasons for Granting the Writ
considering (1) the length of the delay, (2) the reason
for the delay, (3) the defendant's assertion of the right,
and (4) the prejudice flowing to the defendant. The
length of the delay serves in part, as a “triggering mech-
anism.” Id. at 330. While some delay in the prosecutorial
process is unavoidable, at a certain point of the court is ob-
liged to balance the four Barker factors to determine if the
delay constituted a denial of a speedy trial. As the length
of the delay increases, the calculus of the four factors
shifts, the denial of a speedy trial becoming increasingly
certain:
Time is the most iimportant factor; the longer the
delay between arrest and trial the heavier the burden
on the Government will be in arguing that the right
to a speedy trial has not been abridged. The defense
claim has prima facie merit if the lapse between arrest
and trial is longer than one year. [United States v.
Holt, 448 F.2d 1108, 1109 (D.C. Cir. 1971)]
A proper calculation of the delay in this case thus places
on the prosecution a heavy burden of demonstrating that
the delay did not deprive the petitioner of his right to
a speedy and public trial. The petitioner has made a prima
facie showing on all Barker factors and thus a full eviden-
tiary hearing is required.
The state has argued that the unique facts of this
case justified a considerable delay in trial, that time was
needed for the prosecution's circumstantial evidence to
“ripen.” While time is often needed to develop and
gather evidence, a permissible delay easily blurs into
and might even be used to justify an impermissible delay
for the purposes of gaining a tactical advantage. The
inquiry at this point is whether the facts of this case
justify the delay of almost six years, “whether [the delay]
might reasonably have been avoided—whether it was
necessary.” Dickey v. Florida, 398 U.S. 30 (1970). The
Reasons for Granting the Writ 11
state argues that a jury could not have concluded beyond
a reasonable doubt that Rosemary Calandriello had been
killed until Rosemary had been missing for a considerable
period of time. The state suggests that the civil law’s
seven year rule on the presumption of death indicates the
difficulty of proving death by inference. But, could not
a jury reasonably have reached the conclusion after a
delay of two years? Certainly, a jury could have reached
this conclusion after a delay of four years. In attempt-
ing to justify a delay of almost six years the prosecution
bears a heavy burden. Evidence has been submitted to
suggest that the prosecution sought to delay the trial
not to allow the evidence to “ripen,” but to await a more
favorable time for prosecuting the offense. Affidavits
have been submitted testifying that the counsel for the
state admitted in oral argument before the Appellate
Division of the New Jersey Superior Court that the trial
was delayed in order to await a climate more favorable to
trying the petitioner. The state’s counsel suggested that
the trial was delayed because a climate of “flower power,
hippies, and runaways” would have made it difficult to
find a 1969-70 jury which would have believed that
Rosemary Calandriello had been murdered and had not
voluntarily run away from home (Appendix G). Thus,
the delay was the result of a deliberate action which was
intended to secure for the state a tactical advantage over
the petitioner. This purposeful delay is clearly not neces-
sary and cannot be accepted as reasonable. Pollard v.
United States, 352 U.S. 354, 361-62 (1957). The state
has an affirmative duty to expeditiously bring cases to
trial, and “where the government's lengthy delay is un-
excused or purposeful, in the sense of a deliberate delay
to gain tactical advantage, the government's delay is
prima facie prejudicial.” United States v. Avalos, 541
F.2d 1100, 1116 (5th Cir. 1976).
12 Reasons for Granting the Writ
The third Barker factor is the defendant's assertion
of the right to a speedy trial. The petitioner has fully
asserted this right. The assertion of the right to a speedy
trial must, like the reasons for the delay, be evaluated in
the context of the unique facts of the particular case. In
1970 the petitioner successfully moved for dismissal of
the abduction charge. Thereafter the petitioner was
under no obligation to demand a trial on charges of
murder in order to preserve his right to a speedy trial.
“A person... who has been arrested but not indicted is
under no compulsion to demand prosecution in order to
preserve his right to a speedy trial, for the primary
responsibility cases to trial rests on the government.’
United States v. MacDonald, 531 F.2d 196, 207 (4th Cir.
1976). Thus, upon the dismissal of the abduction
charge, the petitioner had fully met his obligations in
preserving his right to a speedy trial. Until the govern-
ment took further action, the petitioner had no addi-
tional obligation.
Finally, the petitioner has made a prima facie show-
ing of prejudice, the fourth consideration under Barker.
The showing of prejudice is often difficult. The right to a
speedy trial is designed to minimize a variety of
prejudices and disruptions that flow from being accused
in a criminal prosecution. The personal anxiety, public
suspicion, and family disruption are very real, yet are
also very elusive. Even specific allegations of prejudice
to the defense are often difficult to prove, but may be
fairly presumed by excessive delay:
. [T]here is no way of proving the prejudice to the
accused which occurs outside the courtroom.’. . .
the public suspicion, the severing of family and social
ties, and the personal anxiety . . . prejudice may
fairly be presumed simply because everyone knows
Reasons for Granting the Writ 13
that memories fade, evidence is lost, and the burden
of anxiety upon any criminal defendant increases with
the passing months and years. [Hoskins v. Wainwright,
485 F.2d 1186, 1193 (5th Cir. 1973)]
In addition, a deliberate delay by the government to
gain a tactical advantage is prima facie prejudicial.
United States v. Avalos, supra, 541 F.2d at 1116. The
petitioner has, however, alleged more than presumed and
prima facie prejudice, and has identified a number of
instances of actual prejudice to his defense. Perhaps the
most important of these are the deaths and illnesses that
occurred during the delay, depriving the petitioner of
potential witnesses. A witness who would have cor-
roborated the petitioner's alibi defense was unable to
testify because of hospitalization for brain surgery. The
death of the detective who participated in the investi-
gation of the August 25, 1969 incident deprived the
petitioner of a witness who was familar with the
circumstances of an allegedly improper lineup identifi-
cation. Most importantly, Morris Spritzer, petitioner's
attorney at the time of the 1969 arrest, died in 1972. The
death of Mr. Spritzer deprived petitioner of counsel with
intimate familiarity with the facts and circumstances of
the case. Mr. Spritzer’s knowledge of the legal significance
of certain occurrances at the lineups and preliminary
hearing held on August 28, 1969, was thus lost to petitioner.
It was not until after incarceration that petitioner, hav-
ing begun an intensive study of law, began to recognize
the importance of a number of events that occurred in
1969. For example, there was no objection in state court
to the in-court identification of petitioner by four persons
to whom petitioner had been exhibited in an unconsti-
tutionally suggestive manner at a preliminary hearing. Had
Mr. Spritzer, who was present at this preliminary hear-
14 Reasons for Granting the Writ
ing, been alive at the time of petitioner's trial in 1975,
objection to this tainted identification would most probably
have been made.
The petitioner has thus submitted evidence of a
prosecutorially generated delay of almost six years. A
deliberate delay for the purpose of gaining a tactical
advantage has been suggested. The petitioner’s assertion
of his right has been shown. Prejudice, presumed, prima
facie and actual has been demonstrated. Petitioner has
thus established an entitlement to a full evidentiary hear-
ing on his claim of a denial of a speedy trial.
Point II
A conviction based on a record lacking relevant evi-
dence on a crucial element of the offense charged
violates due process.
At the conclusion of petitioner’s trial the court
instructed the jury on the offense of murder by lying in
wait. In part, the court instructed:
In order to commit a murder by means of lying in wait
the lying in wait must be the means, method or proxi-
mate cause by which the attacker is enabled to kill his
victim before the victim’s escape. The killing must be
accompanied by surprise and concealment and must
not be disconnected from them. The evidence must
show an attack from ambush upon a victim unaware of
his danger and without chance to escape. The dis-
covery of the physical presence of the aggressor is not
the vital element, but the danger and lack of chance
to escape are controlling (T1533-4 to 16).
There must, however, be substantial evidence of long
periods of waiting and watching in concealment to
show a state of mind equivalent to premeditation and
so cS OO
Reasons for Granting the Writ 15
deliberation in order to constitute a lying in wait
(T1533-23 to T1534-2).
Thereafter the jury returned a verdict of guilty of murder
in the first degree. The petitioner argues that the con-
viction violates due process in that the record is devoid
of relevant evidence of concealment, a crucial element of
the offense charged.
Lying in wait requires an intent to ambush by wait-
ing, watching, and concealment or secrecy. See People v.
Merkouris, 46 Cal. 2d 540, 297 P.2d 999 (Sup. Ct. 1956),
Commonwealth v. Sutton, 406 Pa. 121, 176 A.2d 679
(Pa. 1962), State v. Brooks, 103 Ariz. 472, 445 P.2d 831
(1968). In addition, the trial judge correctly noted that
there must be a causal connection between the killing
and the lying in wait; the latter must be the “means,
method, or proximate cause” by which the killing is made
possible or carried out.
In this case, the prosecution not only failed to produce
evidence linking the alleged killing and the petitioner's
concealment, the prosecution also failed to show that the
petitioner did indeed conceal himself. The Appellate
Division of The New Jersey Superior Court offers two
arguments in rejecting petitioner’s claim on this issue.
First, the court proposes that “concealment of defendant's
purpose to entrap the victim” satisfies the requirements of
concealment. 143 N.J. Super. at 59, 362 A.2d at 623.
The court is attempting to tailor the offense to fit the
record, rather than determine if the record supports
conviction on the offense as it is properly defined. In the
single case cited by the court in support of its novel theory
there was an attempt to conceal both physical presence
and criminal purpose. State v. Tansimore, 3 N.J. 516,
537, 71 A2d 169, 180 (1950). The prosecution has
16 Reasons for Granting the Writ
shown no cases in which the concealment of purpose was
alone sufficient to satisfy the element of secrecy required
by lying in wait. In the present case there was 10 show-
ing that the petitioner attempted to conceal himself or
surprise the victim. A fortiori, there was no showing of
a connection between the alleged killing and a conceal-
ment.
The Appellate Division’s second argument is premised
upon the definition of murder by lying in wait, under
N.J. Stat. Ann, §2A:113-2, as a form of premeditated,
deliberate and willful murder. The court argues that
despite the lack of evidence of concealment, the jury must
still have found evidence of a premeditated, deliberate and
willful murder. 143 N.J. Super. at 59, 362 A.2d at 624.
The jury instruction, however, was on murder by lying in
wait and not on premeditated, deliberate and willful
murder. The Appellate Division improperly assumed that
the jury correctly found in the record evidence to support
@ conviction on grounds other than that urged by the
prosecution and instructed by the trial judge. The court
thus appears to suggest that a jury can compensate for
the failures of the prosecution and correct the mistakes
of the trial court. The assumption that the jury properly
found evidence of an uninstructed offense is highly
speculative. It is more likely that the jury was misled by
the instruction. The potentially prejudicial influence of
a factually unsupported instruction has been long rec-
ognized:
The fact that the trial court gave an instruction on
first degre murder when the essential elements are
missing in the proof, it must be said that the jury
could easily infer by the giving of such an instruction
that these elements were present in the case. [Tate
v. People, 125 Colo. 527, 541, 247 P.2d 665, 672
(Sup. Ct. 1952) ]
a = eben beter
Reasons for Granting the Writ 17
Even though murder by lying in wait is a form of
premeditated, deliberate and willful murder, an instruc-
tion on the former is not equivalent to an instruction on
the latter, more general offense. This Court has held
that due process requires that the prosecution prove
beyond a reasonable doubt, “every fact necessary to
constitute the crime” with which the defendant is charged.
In re Winship, 897 U.S. 358, 364 (1970). See also United
States v. DiGilio, 538 F.2d 972 (3rd. Cir. 1976), Crosby
v. Delaware, 346 F. Supp. 213 (D. Del. 1972). This
obligation cannot be avoided by delegating to the jury
the responsibility of selecting, without instruction, a charge
that seems to be best supported by the record.
The jury received instruction on murder by lying in
wait. A crucial element of this offense was not supported
by the record. “It is beyond question, of course, that a
conviction based upon a record lacking any relevant
evidence as to a crucial element of the offense charged . . .
violate[s] due process.” Vachon v. New Hampshire, 414
U.S. 478 (1974). A state thus has an affirmative obligation
to prove all elements of an offense charged; a conviction
despite a failure to meet this obligation deprives a
defendant of due process of law. The state cannot cir-
cumvent this obligation by redefining an offense to match
the evidence. Neither can the state avoid this responsi-
bility by merely assuming that the jury properly found,
without guidance, an offense which is supported by the
record.
18
CONCLUSION
For the foregoing reasons, it is respectfully submitted
that the petition for a writ of certiorari should be granted.
Respectfully submitted,
é
BROWN & BROWN
RAYMOND A. BROWN,
Attorneys for Petitioner,
26 Journal Square,
Jersey City, New Jersey 07306
RAYMOND M. BROWN
On the Brief
en
ee ee ee ne ee ee ee
APPENDIX A
STATE OF NEW JERSEY,
Plaintiff-Respondent,
vs.
ROBERT ZARINSKY,
Defendant-Appellant.
SUPERIOR Court OF NEW JERSEY
APPELLATE DIVISION
OPINION OF THE APPELLATE DIVISION OF
THE SUPERIOR COURT OF NEW JERSEY,
JULY 20, 1976
Argued March 16, 1976—Decided July 20, 1976.
SYNOPSIS
Defendant was convicted before the Monmouth County
Court of first-degree murder, and he appealed. The Su-
perior Court, Appellate Division, Botter, J. A. D., held
that prosecution, which was not instituted within five years
from time of offense, was not barred by statute providing
that no person shall be prosecuted, tried or punished for
any offense not punishable with death unless indictment
therefor is found within five years from time of offense;
that defendant's right to speedy trial was not violated;
that trial judge did not commit prejudicial error in admit-
ting certain evidence; and that any error in charging jury
on “lying in wait” was harmless.
Affirmed.
la
2a Appendix A
1. Criminal law §28
Capital offenses are those for which death penalty may
be imposed.
2. Criminal law §145%
Statute of limitations strikes balance between right of
accused to repose and right of public to prosecution of
crimes, and affords protection against charges brought
after events have become clouded by time so as to mini-
mize danger of official punishment because of acts in far-
distant past.
3. Criminal law §145%
While statute of limitations should be liberally inter-
preted in favor of repose, its application must be consonant
with intent and purpose of lawgiver; it is legislative pur-
pose which controls.
4. Criminal law $147
Legislature intended to insure that crimes of most
serious class, including first-degree murder, would not
escape prosecution by mere passage of time, and phrase
“offense ° ° ° punishable with death” was convenient
means of identifying several offenses to be included in
exception for which death penalty was or would be pro-
vided in other sections of criminal code, and thus elimina-
tion of death penalty did not affect reason for prosecuting
such crimes without time restriction. N.J.S.A. 2A:159-2.
5. Statutes §171
Unenforceability of death penalty did not wipe statute,
which provides that, except as otherwise expressly pro-
vided, no person shall be prosecuted, tried or punished
for any offense not punishable with death unless indict-
ment therefor is filed within five years from time of com-
mitting offense, off the books. N.J.S.A. 2A:159-2.
Appendix A 3a
6. Homicide §354
Imposition of death penalty for murder is not prohib-
ited per se, but criteria for its application may render
penalty unenforceable.
7. Criminal law $147
Suspending imposition of death penalty for constitu-
tional reasons afforded no reason for frustrating legislative
will by staying additional sanction against murder, namely,
relentless prosecution of that crime without limitation in
time, and thus statute providing that no person shall be
prosecuted, tried or punished for any offense not punish-
able with death unless indictment therefor is filed within
five years from time of committing offense did not bar
prosecution in which defendant was charged with first-
degree murder and which was instituted after five years
from time of alleged offense. N.J.S.A. 2A:159-2.
8. Courts §91(1)
Defendant's contention that case was wrongly decided
by Supreme Court had to be addressed to Supreme Court
and not to Superior Court, Appellate Division, which was
bound by Supreme Court's decision.
9. Criminal law §573
Where, since 17-year-old victim’s body was never
found, it was necessary for State to allow time to pass so
that jury could reasonably infer she had not merely run
away, defendant did not demonstrate that prior to his
indictment for murder his employment was interrupted,
finances drained, associations curtailed, reputation im-
paired or that he was subjected to anxiety by reason of
threat of prosecution for murder, and defendant's claim
of possible prejudice from delay was insubstantial and
speculative, defendant's right to speedy trial was not
violated by 5-year delay between his arrest for contrib-
or Appendix A
uting to delinquency of victim and his indictment for his
murder. U.S.C.A. Const. Amend. 6; Const. 1947, Art. I,
par. 10.
10. Criminal law §534(1)
For confession to serve as evidential basis for convic-
tion, State must introduce independent proof of facts and
circumstances which strengthen or bolster confession and
tend to generate belief in its trustworthiness, plus inde-
pendent proof of loss or injury.
11. Homicide §228(3)
Failure to produce victim’s body did not preclude
finding that she was dead.
12. Criminal! law §563
Homicide §228(2)
Proof of corpus delicti, the fact of injury or, in a
homicide case, of death by criminal agency, may be sup-
plied by direct or circumstantial evidence.
13. Homicide §228(3)
Successful concealment or destruction of victim’s
body should not preclude prosecution of his or her killer
where proof of guilt can be established beyond a reason-
able doubt.
14. Criminal law §532(1)
Voir dire to determine existence of corroboration is
not condition precedent to admission of a confession; if
sufficient independent corroboration is not shown by all
the proofs, judgment of acquittal at close of State's case
is appropriate remedy. R. 3:18-1.
15. Criminal law §369.2(1)
In determining whether evidence that defendant pre-
viously committed crime or civil wrong on specified occa-
sion is admissible, fundamental distinction is between evi-
Appendix A 5a
dence which is relevant only to defendant's criminal
disposition and that which is relevant to particular fact in
issue before the jury. Rules of Evidence, rule 55, N.J.S.A.
16. Criminal law §371(1), 372(1)
Evidence of defendant's prior conduct could be ad-
mitted if relevant to establish intent, plan or motive even
though defendant had been acquitted previously of crim-
inal charges based on such conduct. Rules of Evidence,
rule 55, N.J.S.A.
17. Criminal law §371(1)
In determining whether evidence that defendant pre-
viously committed crime or civil wrong on specified occa-
sion is admissible, conduct which is insufficient to estab-
lish criminal intent toward one victim may tend to prove
criminal intent toward another victim in light of other evi-
dence. Rules of Evidence, rule 55, N.J.S.A.
18. Criminal law §369.2(4)
Witnesses §414(1)
In prosecution for first-degree murder, evidence that
defendant, a 28-year-old married man, had on two previ-
ous occasions persistently tried to lure teen-age girls into
his car, which evidence tended to explain how victim
came to be in car of stranger, which tended to negate other
hypotheses advanced for victim’s disappearance, which
was relevant to show defendant's presence in victim’s
neighborhood and which tended to corroborate identifica-
tion of defendant as driver of automobile in question, was
admissible even though State had previously failed to
prove that such prior conduct constituted crime or civil
wrong. Rules of Evidence, rules 4, 7(f), N.J.S.A.
19. Criminal law §641.2
There is no absolute right to counsel at preindictment
lineup.
6a Appendix A
20. Criminal law §1169.1(5)
In prosecution for first-degree murder, any error in
introducing evidence of out-of-court identifications of de-
fendant at lineup held out of presence of defense counsel,
who was allegedly notified that lineup would be held but
did not appear in time and who was dead at time of trial,
was not capable of producing an unjust result where both
witnesses made positive in-court identifications of defend-
ant that were not challenged by defendant.
21. Criminal law §339, 1169.1(5)
In prosecution for first-degree murder, permitting
in-court identifications of defendant by four witnesses who
allegedly saw victim in defendant’s automobile was not
reversible error where there was nothing to suggest that
photographic identification procedure was impermissibly
suggestive but rather uncontradicted testimony was that
each witness was independently shown seven photographs
and asked if he could identify driver of automobile; even
assuming suggestiveness, witnesses had ample opportunity
to observe defendant so that their in-court identifications
were based upon their independent recollections.
22. Criminal law §404(4)
In prosecution for first-degree murder, admitting vari-
ous items seized from defendant’s automobile that offered
circumstantial ‘evidence of commission of crime was not
error although probative weight of many items was debat-
able, nor was there any error in admitting victim’s hair-
clips which were found in her pocketbook so that they
could be compared with those found in automobile, al-
though pocketbook might have been excluded.
23. Homicide §340(1)
In prosecution for first-degree murder, any error in
charging jury on “lying in wait” was harmless since jury
could find “lying in wait,” which is merely form of pre-
Appendix A Ta
meditated, deliberate and willful murder although tradi-
tionally essence of term has consisted of intent to ambush
by watchful waiting, concealment and secrecy, despite
fact that defendant revealed his physical presence to vic-
tim before killing. N.J.S.A. 2A:113-2.
24. Homicide §253(1)
Evidence was sufficient to support defendant's con-
viction of first-degree murder.
Before Judges Kotovsky, Biscuorr and Borrer.
Mr. Richard F. Plechner argued the case for appellant.
Mr. John T. Mullaney, Jr., Assistant Prosecutor, argued
the cause for respondent (Mr. James M. Coleman, Jr.,
Monmouth County Prosecutor, attorney ).
The opinion of the Court was delivered by
Borter, J. A. D. 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. N.J.S.A. 2A:113-4; State v.
Funicello, 60 N.J. 60 (1972), cert. den. 408 U.S. 942, 92
S. Ct. 2849, 33 L.Ed.2d 766 (1972). Defendant's motion
for a new trial was denied. On this appeal defendant
asserts a number of grounds for reversal of his conviction.
He contends that the trial court erred in denying his pre-
trial motions to suppress evidence seized at his home and
to dismiss the indictment on two grounds—that the statute
of limitations had run and defendant was denied a speedy
trial. Defendant also contends that errors were committed
by the trial judge in the admission of evidence and in
charging the jury on first degree murder. He contends
that his conviction was against the weight of the evidence
8a Appendix A
and that the verdict cannot stand in the face of the State’s
failure to produce the victim’s body. Finding no grounds
warranting reversal, we affirm.
On August 25, 1969, at about 6 p.m., Rosemary Calan-
driello, 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 neigh-
bor 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.
Defendant's identity was determined in the followin
manner. On August 26 Sergeant Guzzi of the Atlantic
Highlands Police Department interviewed the four boys
who had seen Rosemary with defendant the night before
and they furnished a description of defendant and the
vehicle he was driving. Both bore distinctive features,
The police learned that two days before Rosemary's dis-
appearance a man fitting defendant's description had at-
tempted to lure two 12-year-old girls, Lydia Hardie and
Robin Spangenberg, into his car in Leonardo, a town
adjacent to Atlantic Highlands. While the girls were
walking down the street at about 7 p.m. a man drove up
Appendix A 9a
in a white car with a black convertible roof. He of-
fered them a ride and they refused. Lydia Hardie noted
the license plate number, CTI 109. She testified that
the man was heavy-set and had long, bushy sideburns
and a goatee. She had never seen him before. The girls
began to return home when the man approached again.
At home Lydia told her mother of the incident and her
mother reported it to the police and gave them the license
plate number. The girls left home a short time later and |
the man approached them again and offered them a ride.
They refused, but a short time later he returned once more
and asked, “Are you sure?” The girls replied, “We're posi-
tive,” and started to run away. The man said, “What bad
little girls you are for not accepting my ride,” and he ut-
tered what was described as a “weird laugh.”
The police discovered that a man fitting defendant's de-
scription 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. Darlene 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 to defendant’s father, with whom defendant and
his wife lived, in Linden, New Jersey. Sergeant Guzzi
signed a “John Doe” complaint on August 27, 1969 charg-
ing defendant with contributing to the delinquency of
Rosemary, a minor. It described defendant as “a white
male, age early twenties, heavy set with a round chubby
10a Appendix A
face having long bushy sideburns and well trimmed goatee
operating a white Ford Galaxy Convertible.” (Defend-
ant’s correct age was 28 at the time.) In the late evening
of August 27 defendant was arrested at his home in Linden
and the automobile was impounded. Defendant was
brought to the Monmouth County Jail around midnight.
The next morning the four boys identified the vehicle and
it was photographed. That same day, August 28, a lineup
was held in which the four girls, Donna, Darlene, Lydia
and Robin, viewed defendant. Despite the fact that de-
fendant had shaved off his goatee and sideburns after
being jailed, he was identified in the lineup as the man
involved in the two incidents with these girls.
The automobile was examined pursuant to a search war-
rant obtained on August 29. The body of the car was in
poor condition, the left rear was dented and the rear win-
dow was down. There was mud underneath the car and
pieces of straw, a twig and grass were found on the lower
front portion 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 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 front seat. The door and window worked properly
Appendix A lla
when the handles were attached, but the holding locks on-
these handles had been removed. Without a handle the
door on the passenger's side could not be opened from
the inside, but the door and window handles on the driv-
ers side were intact.
The initial complaint against defendant was amended
on August 28 to charge defendant with abduction of Rose-
mary for an immoral purpose. N.J.S.A. 2A:86-3. De-
fendant was released on bail on August 28, 1969. There-
after, in November 1969, defendant was indicted and
arrested for attempted kidnapping or enticing a child away
from parents (N.J.S.A. 2A:118-2) in connection with the
incident involving the two 12-year-old girls, Lydia and
Robin. He was held at the Monmouth County Jail from
November 22, 1969 until December 19, 1969, when he
was released on bail. During this time his jailmates in-
cluded Herbert L. Williams, John Gosch and Al Glover.
In December 1969 defendant was also indicted in con-
nection 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 N.J.S.A.
2A:118-2, and an attempt to impair the morals of a minor
by offering the minor alcoholic beverages, allegedly in
violation of N.J.S.A. 2A:96-3.
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, de-
fendant 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,
12a Appendix A
the complaint chargi~g abduction of Rosemary was dis-
missed 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 consent order was also entered return-
ing the impounded vehicle to defendant's father.
Although no charges were pending after June 1970, in-
vestigations involving defendant continued. Warrants
were issued in February 1975 for the search of defend-
ant’s residence and vehicles, supported by affidavits as-
serting 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 had 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 ad-
vised 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 not 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 27 in Manalapan Township.
Both girls had been strangled, and knotted electrical wire
was found on Joanne Delardo’s neck. The Balabanow and
Delardo bodies were nude from the waist down, and €ar-
lucci’s body was almost entirely nude. Their missing
Appendix A 13a
clothing was never found. The preserved state of De-~
lardo’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 Feb-
ruary 21, 1975 for evidence of these crimes were not pro-
ductive so far as the record before us shows.
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 Feb-
ruary 1975 searches were 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 Rose-
mary’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 iden-
tifications of defendant. Theirs was not merely casual
observations of Rosemary and defendant. They were ap-
proaching 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 esti-
mated he had a front view of defendant's face for 10 to 12
seconds. They were surprised to see Rosemary in defend-
14a Appendix A
ant’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 25, 1969: the Social Security
Administration, Internal Revenue Service, United States
Post Office, Atlantic Highlands Board of Health, New Jer-
sey Division of Motor Vehicles and New Jersey Unemploy-
ment Bureau.
Finally, three of defendant's jailmates, John Gosch, Her-
bert 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 stink-
ing 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 was
also evidence that shortly before his arrest defendant was
observed leaning over the open trunk of the Ford auto-
mobile with a scrub brush in his hand and a plastic pail
beside him. Despite this suggestion that defendant was
Appendix A 15a
cleaning a portion of the vehicle, it was found generally
in an unclean and untidy condition.
Defendant did not iestify. Various witnesses, including
his wife, mother and father and several aunts and uncles,
testified that defendant was at home in Linden, New Jer-
sey throughout the evening of August 25, 1969. How-
ever, 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 eve-
ning and defendant's wife claimed she was at home. How-
ever, 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 de-
fendant’s wife had accompanied her to her weekly bingo
game on the night of Rosemary's disappearance.
The defense also attempted to counter the State’s evi-
dence in other respects. Defendant's wife explained that
the handles in the car had been removed in an effort to
repair a jammed window, that defendant was never able
to install them securely and, therefore, they were kept
under the seat. She also testified that the blue panties
found in the car were hers, as were the hair clips. An ex-
planation was also offered for the blood on the rear
of the car: the brother of defendant's wife attempted to
repair the taillight three weeks earlier and had cut his hand.
Despite this testimony the jury found defendant guilty.
I
We consider, first, whether defendant's prosecution is
barred by N.J.S.A. 2A:159-2. that provision states:
Except as other wise expressly provided by law no per-
son shall be prosecuted, tried or punished for any of-
16a Appendix A
fense not punishable with death, unless the indicment
therefor shall be found within five years from the time
of committing the offense or incurring the fine of for-
feiture. 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 “punish-
able with death.” Therefore, he reasons, this prosecution
must be barred because it was not instituted within five
years from the time of the offense.
[1] Defendant places primary reliance on State v. John-
son, 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. N.J. Const. (1947), Art. I,
par. 11, provides that all persons are entitled to bail before
conviction “except for capital offenses when the proof is
evident or presumption great.” Capital offenses are those
for which the death penalty may be imposed. State v.
Johnson, supra, 61 N.J. at 355; State v. Williams, 30 N.J.
105, 125 (1959).
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 suretie’s property, the
framers ° ° ° felt that an accused would probably
Appendix A 17a
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.
[2] 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.” Touissie 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 excep-
tion 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. 287, §152 at 919; L. 1953, c. 204 §1
(N.J.S.A. 2A: 159-2). (The unlimited time in which to
prosecute murder was extended in 1898 to all crimes
“punishable by death,” except for treason. L. 1898, c. 237,
§152.) Thus, throughout our history the legislature has
pursued two sanctions for first degree murder: (1) that
its perpetrator may suffer the death penalty and (2) that
18a Appendix A
the crime would not go unpunished because of the lapse
of time between the murder and the indictment.
[3, 4] While a statute of limitations should be liberally
interpreted in favor of repose, its application must be con-
sonant with the intent and purpose of the lawgiver. It iis
the legislative purpose which controls. State v. Brown,
22 N.J. 405, 415-416 (1956). Clearly, the Legislature in-
tended to ensure that crimes of the most serious class, in-
cluding first degree murder, would not escape prosecution
by the mere passage of time. The phrase “offense ° ° °
punishable with death” was a convenient means of identi-
fying 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 N.J.S.A. 2A:113-2
and N.J.S.A. 2A:113-4 (first degree murder); N.J.S.A.
2A:118-1 (kidnapping for ransom); N.J.S.A. 2A:148-6 (as-
sault with intent to kill the President, a state governor or
other high executive officers ) and N.J.S.A. 2A:148-1 (Trea-
son; but note the three-year statute of limitations for
treason in N.J.S.A. 2A:159-1). The fact that the death
penalty cannot be carried out, for constitutional reasons,
does not change this identification and purpose. Unlike
Johnson, the elimination of the death penalty has not af-
fected the reason for prosecuting these crimes without time
restriction. Their heinous nature remains.
[5-8] 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). Im-
position of the death penalty for murder is not prohibited
pér 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 application of
the death penalty—to avoid an excessive, inappropriate or
cruel and inhuman punishment or its arbitrary and ca-
Appendix A 19a
pricious application (see id.)—are unrelated to the pur-
poses of our statute of limitations. It is one thing to
suspend the imposition of the death penalty for constitu-
tional reasons, but this affords no reason for frustrating the
legislative will by staying its additional sanction against
murder, namely, the relentless prosecution of that crime
without limitation in time. Thus, we conclude that N.J.S.A.
2A:159-2 does not bar this prosecution.’
II
[9] Defendant next contends that his right to a speedy
trial, protected by the Sixth Amendment to the United
States Constitution,” was violated. A 5%-year period sep-
arated defendant’s arrest for contributing to the delin-
quency 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 preudice to defendant.
The State offers a reasonable explanation for the delay
in this case. Because Rosemary's body was never found
the State was forced to prove her death by circumstantial
1. We note defendant’s further argument that State v. Brown, supra,
was wrongly decided by our — Court. There a conviction for
second degree murder was upheld where the indictment charging first
degree murder was returned more than five years after commission of the crime.
Defendant’s contention may be addressed to the Supreme Court, not this
court, since we are bound by that decision. State v. Steffanelli, 133
N.J. Super. 512, 514 (Ape. Div. 1975). In any event, it is irrelevant where
the accused is found guility of first regree murder.
2. The Sixth Amendment right to speedy trial is applicable to the states.
Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1
(1967). The right is also protected by N.J. Const. (1947), Art. 1, par. 10.
20a Appendix A
evidence. In order to do this convincingly it was necessary
to allow time to pass so that a jury could reasonably infer
that she had not merely run away. Moreover, it was not
unreasonable for the State to hope that more positive evi-
dence would be found before trying defendant for this
ultimate crime.
Defendant was first arrested in connection with Rose-
mary’s disappearance in August 1969, but charges of ab-
duction 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 asso-
ciations 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 pros-
ecution 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.2d at 118. The
original, early charge of abduction had served to stimulate
defendant's preparation of a defense against criminal in-
volvement with Rosemary. Thus, defendant’s claim of
possible prejudice is “insubstantial” and “speculative.”
United States v. Ewell, 383 U.S. 116, 122, 86 S. Ct. 773,
Appendix A 21a
777, 15 L.Ed.2d 627, 632 (1966); cf. United States v.
Mann, 291 F. Supp. 268 (S.D.N.Y. 1968) (cited with ap-
proval in Barker v. Wingo, supra).
Defendant contends that he was prejudiced by reason
of the death 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 at-
torney 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 con-
tends that he was deprived of his right to Spritzer’s counsel
at the August 28, 1969 lineup identification. However, for
reasons indicated below, we conclude that the loss of Sprit-
zer's testimony was immaterial, since the denial of defend-
ant’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 tanta-
mount to a request for speedy trial. Cf. State v. Smith,
3. There is no merit to defendant’s collateral estoppel claim that dismissal
of the abduction charges bars the State from asserting that defendant was not
prejudiced by the delay. See State v. Redinger, 64 N.J. 41, 45-46 (1973).
22a \ Appendix A
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.
Ill
We reject, also, defendants contentions that the trial
judge commited prejudicial error in admitting certain evi-
dence.
[10] W 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 bol-
ster 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.
[11-13] 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 evi-
dence. 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 posi-
tion); People v. Corrales, 34 Cal.2d 426, 210 P.2d 843
(Sup. Ct. 1949); cf. United States v. DiOrio, 150 F.2d
938, 941 (3 Cir.), cert. den. 326 U.S. 771, 66 S. Ct. 175,
Appendix A 23a
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 §500.05 (McKinney 1967),
repealed the 1909 statute. New York law now bars a con-
viction based solely on a confession unless there is “addi-
tional proof that the offense charged has been committed.”
N.Y. Crim. Proc. L. §60.50 (L. 1970, c. 996, §1, effective
Sept. 1, 1971). See People v. Jennings, 40 A.D.2d 357,
340 N.Y.S.2d 25 (App. Div. ), aff'd o.b. 33 N.Y.2d 880, 352
N.Y.S. 444, 307 N.E.2d 561 (Ct. App. 1973); ef. People v.
Daniels, 37 N.Y.2d 624, 376 N.Y.S.2d 436, 339 N.E.2d 139
(Ct. App. 1975). Surely, the successful concealment or
destruction of the victim’s body should not preclude prose-
cution of his or her killer where proof of guilt can be estab-
lished beyond a reasonable doubt. Campbell v. People,
supra, 159 Ill. at 22, 42 N.E. at 127.
[14] 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.
[15-17] Defendant next contends the trial judge erred in
admitting the testimony of Lydia Hardie and Darlene Cur-
ren 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 com-
mitted 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 speci-
24a Appendix A
fied 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 vic-
tim may tend to prove a criminal intent toward another
victim in the light of other evidence.
[18] Defendant contends that the State’s failure to prove
that his prior conduct was a crime or civil wrong prevents
admisison 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 case evidence that defendant, a 28-year-old mar-
ried 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 ad-
vanced by defendant for Rosemary's disappearance,
namely, voluntary flight, suicide or accident.
Appendix A 25a
We also agree with the trial judge's observation that the
evidence was relvant 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.’
[19] Similarly, we reject defendant's argument that ad-
mission into evidence of the out-of-court identifications of
defendant by Lydia Hardie and Darlene Curren was re-
versible error. The identification of defendant as the man
who tried to lure the girls into his automobile was made
at a lineup on August 28, 1969, one day after defendant
was arrested in connection with Rosemary Calandriello’s
disappearance. There is no absolute right to counsel at a
pre-indictment lineup. Kirby v. Illinois, 406 U.S. 682, 92
S. Ct. 1877, 32 L.Ed.2d 411 (1972); State v. Earle, 60 N.J.
550, 552 (1972). Defendant argues, however, that be-
cause the police knew he had retained counsel and held
the lineup out of counsel's presence, the identifications
were inadmissible. See State v. Wilbely, 112 N.J. Super.
216, 219 (App. Div. 1970).
[20] 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.’ In any case, both witnesses made posi-
4. Defendant's assertion that the trial judge did not caution the jury as
to the proper consideration of this evidence (Evid. R. 6) is directly con-
tradicted by the transcript of the judge’s charge to the jury. Morevor the
judge did not abuse his discretion in refusing to give a limiting instruction
after the prosecutor's summation but before the jury was excused for the
day. Finally, there is no merit to the complaint that the prosecutor com-
mitted prejudicial error in referring to this evidence in his summation. See
State v. Slobodian, 120 N.J. Super. 68, 75 (App. Div.), certif. den 62 N.J. 77
(1972). °
5. The trial judge made no finding as to who was responsible for
counsel's absence, reasoning that defendant had no right to cousel under
Kirby v., Illinois and State v. Earle, supra.
26a Appendix A
tive 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).
[21] 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 defend-
ant’s photograph should not be presented to the jury be-
cause the State had failed to properly preserve evidence
of the photographic identification. See State v. Brown, 99
N.J. Super. 22, 27-28 (App. Div.), certif. den. 51 N.J. 468
(1968). However, there is nothing in the record to sup-
port defendant's contention that the procedure was imper-
missibly suggestive. On the contrary, the uncontradicted
testimony was that each witness was independently shown
seven photographs and asked if he could identify the
driver of the automobile.
Assuming, arguendo, there was suggestiveness in the
procedure, it was clear that the boys had ample oppor-
tunity to observe defendant. Thus, we have no doubt that
the trial court correctly concluded that these in-court iden-
tifications 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.2 401
(1972).
[22] We find no error in admitting into evidence various
items seized from defendant's automobile which offered
Appendix A 27a
circumstantial evidence of the commission of the crime, al-
though 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 com-
pared 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.
[23] N.j.S.A. 2A:113-2 defines murder “perpetrated by
means of poison, or by lying in wait, or by any other kind
of willful, deliberate and premeditated killing” [emphasis
supplied] as murder in the first degree. That the trial judge
charged “lying in wait” was not reversible error in the
circumstances of this case.
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 purppse 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 immedi-
ately 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,
28a Appendix A
46 Cal.2d 540, 297 P.2d 999 (Sup. Ct. 1956). However,
a killing by “lying in wait” is merely a form of premedi-
tated, deliberate and willful murder. See N.J.S.A. 2A:113-
2. Here, the jury must have found defendant guilty of a
deliberate, premeditated and willful murder. Thus we are
satisfied that in the circumstances of this case the jury
could not have been misled by the charge and, if there was
error, it was harmless beyond a reasonable doubt. See
Commonwealth v. Mondollo, 247 Pa. 526, 93 A. 612 (Sup.
Ct. 1915); cf. Turner v. United States, 396 U.S. 398, 420,
n. 41, 90 S. Ct. 642, 654, n. 41, 24 L.Ed.2d 610, 625, n. 41
(1970).
Defendant also contends that the search warrants issued
in 1975 were not supported by affidavits establishing prob-
able cause to believe that defendant 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 have been concealed in defendant’s home or
vehicles. Moreover, not only has defendant failed to dem-
onstrate any prejudice resulting from the searches, he has
not even asserted that any of the seized items were admit-
ted in evidence.
[24] 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 in-
cluding the legitimate inferences therefrom [was] sufficient
to enable a jury to find that the State’s charge [was] estab-
lished 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.
29a
APPENDIX B
ORDER OF THE SUPREME COURT OF
NEW JERSEY, NOVEMBER 9, 1976
To Appellate Division, Superior Court:
A petition for certification having been submitted to this
Court, and the Court having considered the same,
It is hereupon ORDERED that the petition for certifica-
tion is granted solely as to the issue of whether prosecution
of defendant is barred by the statute of limitations (N.J.
S.A. 2A:159-2. )
WITNESS, the Honorable Richard J. Hughes, Chief
Justice, at Trenton, this 9th day of November, 1976.
/s/ Florence R. Peskoe
Clerk
FILED—Nov. 9, 1976
/s/ Florence R. Peskoe
Clerk
A TRUE COPY
/s/ Florence R. Peskoe
Clerk
30a
APPENDIX C
ORDER OF THE SUPREME COURT OF
NEW JERSEY, MARCH 1, 1977
This matter having been duly presented to the Court,
it is ORDERED that the motion for a reconsideration of
the limitation of the grant of certification is denied.
WITNESS, the Honorable Richard J. Hughes, Chief
Justice, at Trenton, this Ist day of March, 1977.
/s/ Florence R. Peskoe
Clerk
FILED—Mar. 1, 1977
/s/ Florence R. Peskoe
Clerk
A TRUE COPY
/s/ Florence R. Peskoe
Clerk
3la
APPENDIX D
REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE, MAY 30, 1978
Robert Zarinsky, presently serving a life term at the
Rahway State Prison for murder,’ seeks habeas corpus re-
lief under 28 U.S.C. §2241 et seq. Petitioner raises a num-
ber of issues as to all of which State remedies have been
exhausted. 28 U.S.C. §2254(b). Picard v. Connor, 404
U.S. 270 (1971).
On August 27, 1969 petitioner was arrested in connection
with the disappearance of Rosemary Galandriello who had
been last seen on August 25, 1969 in his company.’? On
August 28: 1969 petitioner was charged with having ab-
ducted Miss Galandriello for an immoral purpose.’ No
action having been taken on that complaint, petitioner suc-
cessfully moved to dismiss it on May 29, 1970. Approxi-
mately four years and nine months later, February 20, 1975,
petitioner was indicted for the murder of Miss Galan-
driello.*| He was arrested the following day, trial began
on April 7, 1975 and on April 23, 1975, the jury returned
a verdict of guilty. Direct appeal was unavailing.
Petitioner first contends that he has been denied a speedy
trial’ and must therefore be released. Strunk v. United
States, 412 U.S. 434, 440 (1973); Barker v. Wingo, 407
U.S. 514, 522 (1972). To resolve this contention we look
to Barker at 530 which requires us to balance these four
factors: Length of delay, the reason therefor, the defend-
1. N.J.S. 2A:113-2.
2. This complaint charged John Doe with contributing to the delinquency
of a minor. JS. 2A:96-4.
3. N.J.S. 2A:86-3
4. Monmouth County Indictment No. 586-74.
5. The Sixth Amendment right to a speedy trial is applicable to the states.
Klopfer v. North Carolina, 386 U.S. 213 (1967).
32a Appendix D
ant's assertion of his right and preiudice to him. Consider-
ing the first of these factors the Barker Court said:
“The length of the delay is to some extent a triggering
mechanism. Until there is some delay which is pre-
sumptively prejudicial, there is no necessity for inquiry
into the other factors that go into the balance.” Id at
530.
Petitioner contends that his trial for murder was delayed
from August 28, 1969 when he was charged by complaint
with abduction, until April 7, 1975 when trial was begun.
Recognizing that abduction and murder are different of-
fenses, petitioner argues that in the instant context they
are identical because at trial the State relied solely on
evidence obtained in its investigation of the abduction
complaint.
In United States v. Marion, 404 U.S. 307 (1971), relied
upon by the petitioner, the Court said that,
“it is either a formal indictment or information or else
the actual restraint imposed by arrest and holding to
answer a criminal charge that engage the speedy trial
provisions of the Sixth Amendment.
“Invocation of the speedy trial provisions thus need
not await indictment, information or other formal
charge.” Id. at 320-321.
In Marion the defendants, indicted for fraudulent busi-
ness practices, were arrested approximately three years
after the government had concluded its investigation.® In
6. To support his contention that the delay here is 5% years, petitioner
points to United States v. Booz, 451 F.2d 719, 726( 3 Cir. 1971). In that
case the Court found that trial had not commenced “until January of 1971,
29 months after indictment and 45 months after the robbery [a timeable it
characterized as] a serious delay.” Booz was decided on November 17, 1971.
On December 20, 1971, United States v. Marion, 404 U.S. 307 (1971), was
decided. Under Marion the time to be calculated on a speedy trial issue
runs not from the commission of the crime but fron: either the charge,
whether by indictment or information, or the arrest.
Appendix D 33a
rejecting speedy trial claims, the Court refused “to extend
the reach of [that entitlement] to the period prior to
arrest,’ 404 U.S. at 321, because not until then did defend-
ants become susceptible to the evils which the right is
designed to prevent.’
For Marion to serve petitioner requires acceptance of
petitioner's contention that the murder prosecution began
with his arrest for abduction and continued until trial. It
is nevertheless apparent that petitioner was not susceptible
to the evils described in Marion from May 29, 1970 when
the abduction complaint was dismissed until February 21,
1975 when he was arrested on the murder indictment*
which had been returned the previous day.
The Sixth Amendment right to a speedy trial protects
an accused from undue delay in the prosecution of a pend-
ing charge. It does not protect from undue delay in the
filing of that charge.’ That function is served by statutes
of limitations and the Due Process Clause of the Fifth
Amendment. The Supreme Court of New Jersey has here-
tofore held petitioner's prosecution not barred by the rele-
7. These include undue and oppressive incarceration prior to trial, anxiety
and concern accompanying public accusation, disruption of employment and
family life, drain on finances, and public obloquy. 404 U.S. at 320.
8. In Hoffa v. United States, 385 U.S. 293 (1966), the Court stated,
“There is no Constitutional right to be arrested. The police are not
required to guess at their peril the precise moment at which they
have probable cause to arrest a suspect, risking a violation of the
Fourth Amendment if they act too soon, and a violation of the
Sixth Amendment if they wait too long. Law enforcement officers
are under no duty to call a halt to a criminal investigation the
moment they have the minimum evidence to establish probable cause,
a quantum of evidence which may fall far short of the amount
necessary to support a criminal conviction.” Id. at 310.
9. Cf. Dillingham v. United States, 423 U.S. 64 (1975), in which a 22
month pre-indictment delay was included in the length of delay of petitioner's
trial. Tn that case petitioner had been arrested 22 months prior to the
indictment. Following United States v. Marion, supra, the Court found
petitioner to be an “accused” upon arrest. In the instant case petitioner was
neither arrested nor indicted between May 29, 1970 and February 20, 1975
and therefore was not then an “accused.”
34a Appendix D
vant statute of limitations.’° Given the nature of the State’s
case and its desire for the passage of time to permit the
jury to decide whether Miss Calandriello had run away or
had died,” we see no denial of due process here’* and
conclude that the time between the dismissal of the abduc-
tion charges, May 29, 1970, and petitioner's arrest for mur-
der, February 21, 1975, is not to be included in computing
the length of delay suffered by him. United States v.
Marion, supra. See also United States v. Martin, 543 F.2d
577 (6 Cir. 1976), c.d. 429 U.S. 1050 (1977), in which the
Court held that in the absence betwtween January 1973
and December 1974, of an indictment on which the de-
fendant could have been tried, there had been no delay of
a speedy trial. In that case the defendant was indicted in
December 1974 on charges which had been dismissed in
January 1973.
By the Barker standard and putting aside that abduction
and murder are different in kind, petitioner’s trial was de-
layed at most from August 28, 1969 when he was arrested
on the abduction complaint, to May 29, 1970 when that
charge was dismissed and from February 20, 1975 the
date of the indictment, to April 7. 1975 when trial began,
10. State v. Zarinsky, 75 N.J. 10] (1977).
11. At trial petitioner's attorney contended that Calandriello had
run away and did not wish to be found. It was to meet that contention
and “to allow all the inferences that the State could demonstrate from
the victim's character to ripen and to prove beyond a reasonable doubt that
Rosemary Calandriello was dead” that petitioner was not indicted until
February 20, 1975.
12. In United States v. Lovasco, 431 U.S. 783 (1977), the Court was
required
“to determine . . . whether .. . compelling respondent to stand
trial after the Government delayed indictnent A investigate further—
violates those ‘fundamental conceptions of justice which lie at the
base of our civil and political institutions,” ooney v. Holohan, 294
U.S. 103, 112 (1935), and which define ‘the community's sense
ry sn lay and decency.’ Rochin v. California, [432 U.S. 165, 173
In Pore such a delay = unconstitutional the Court held,
to prosecute a defendant pong investigative delay d
not deprive him of due process even if his de might sos
been somewhat prejudiced by the lapse of time.”
~
Appendix D 35a
or less than 11 months—a delay on its face not “presump-
tively prejudicial” given the circumstancial nature of the
prosecution’s case. Some cases take more time to ripen
than others. See Barker in which the Court found no
speedy trial denial although the delay was five years. Id.
at 530-531.
The absence of a presumptively prejudicial delay makes
unnecessary inquiry into the remaining three factors de-
scribed in Barker at 530. We note nevertheless that the
reason for the delay was to strengthen the circumstancial
nature of the prosecution’s case in anticipation of a defense
argument that Rosemary Calandriello had not been missing
so long that the jury could find beyond a reasonable doubt
that she was dead. On this record petitioner asked for
dismissal of the abduction complaint, not for prosecution
of an unsought murder indictment. Finally, given the
length of time which may be held to have elapsed in
petitioner's case, any prejudice which resulted was an un-
avoidable byproduct of the criminal prosecution.'* In our
view petitioner was not denied a speedy trial."
13. Petitioner claims to have suffered prejudice because his fiirst attorney
died before the instant trial was held pa could not testify about the lineup
identifications. But petitioner was not entitled to counsel when he was
identified by Lydia Hardie and Darlene Hanvey. Alibi witnesses not lost
to petitioner testified that he was home on the night Rosemary Calandriello
disappeared and that their memories of that —— were clear. Futhermore,
while petitioner's automobile was destroyed in April 1973 photographs taken
of it in August 1969 were received in evidence at his trial. us, that
automobile had been avaialble to him when he was arrested on August 27,
1969 and remained so until its destruction in April 1973. Finally, petitioner
does not allege how he has been damaged by the unavailability of this vehicle.
14. Petitioner’s reliance on Moore v. DeYoung, 391 F. Supp. 111 (D.N.J.
1974) rev'd o.g. 515 F.2d 437 (3 Cir. 1975), is unavailing. Moore was
indicated for atrocious assault and battery and threatening to kill after a
previous indictment for carnal abuse based on the same incident, had been
dismissed because of the State’s failure to have provided a speedy trial. In
addition, Moore had undeniably requested that he be tried on the first
indictment. Finally, no justifiable basis for the State’s delay of 4 years, 1
month and 12 days’ was ee)
Moore was later afforded relief by the Appellate Division of the Superior
Court of New Jersey. See State v. Zarinky, Docket No. A-2648-74, decided
July 20, 1976, unpublished.
36a Appendix D
Petitioner's second contention, that he was denied due
process by the admission of allegedly tainted in-court iden-
tifications, proceeds from the selection of his photograph
by Thomas Gowers, Michael Hazeltine, David Lowe and
Darren Lowe, each of whom had been shown pictorial
displays in 1969 and in 1975. In 1969 these four witnesses
had selected petitioner’s photograph from a group of seven.
In 1975 their selection was made from 13 pictures. The
photograph of petitioner shown in 1969 bore his name, that
shown in 1975 did not. No photograph from the 1969 or
the 1975 display was admitted in evidence. Indeed the
trial court refused to admit any identification photographs
because it found that the prosecution had not established
an appropriate chain of evidence. The trial court also
ruled however that the identification of petitioner by the
four named witnesses proceeded from their having seen
him on August 25, 1969 at which time they said he had a
goatee and mutton chop side whiskers, all of which appear
on Exhibit S-37, a photograph of petitioner taken after
his arrest on August 27, 1969. Between the time of peti-
tioner’s arrest and the following morning the goatee and
the mutton chops were shaved off.
In finding that the in-court identifications by these wit-
nesses were admissible, the trial court spoke as follows:
“first of all, I am satisfied that the credibility of the
identification with respect to the picture of the de-
fendant is such by the four witnesses involved that I
was impressed by their testimony and T think that they
are credible witnesses. I have ruled out the photo-
graphs [displayed at the photographic lineups in 1969
and 1975] on the basis of the failure to prove a chain of
evidence. I am satisfied personally that the in-court
identification which was made by each of the four
witnesses was independent of anything to do with the
Appendix D 37a
photograph identification originally. There was ample
opportunity to observe. These witnesses appear to be
intelligent people. They made an observation. I think
there is every good reason to understand why they
would make a particular observation in this particular
case because of the fact that they saw Rosemary
Calandriello in the front seat and were curious, ap-
parently, from the tenor of their testimony as to why
she was there and they did have the opportunity. [The
four eye witnesses, schoolmates of Rosemary Calan-
driello, had testified that their attention was drawn to
Rosemary because her reputation caused them to be
surprised at finding her in an automobile with a man].
There was no rear window in the back of that conver-
tible. They were riding behind it for some three
blocks. They were approximately 30 feet behind.
There is no reason why they couldn't have made the
observation which they said they did [these witnesses
had correctly described petitioner as wearing a goatee
and mutton chops and having a stocky build] and now
be able to identify the defendant.
“I also take note of the fact that defense counsel has
made comment heretofore of the fact that these wit-
nesses were very forthright, honest, with respect to
saying that, “No, we didn’t look at this many pictures.
We only looked at seven. We didn't look at 13.’ If
they are credible in that respect there is no reason to
say that they shouldn't be credible with respect to
the identification and I think they are.
“I think that the State has established and, of course,
this will be subject to any cross-examination that you
make of the witnesses at the time during the trial as
to this particular testimony, but for these purposes at
the moment, I think that the State has established by
38a Appendix D
clear and independent and convincing evidence that
their in-court identification is independent of the
photographs and accordingly, I will permit that tes-
timony.”
28 U.S.C. §2254(d) requires acceptance of findings of
fact reached by a trial judge and not subject to any of the
several disabilities listed therein. The trial court's finding
that the in-court identifications of petitioner by Messrs.
Gowers, Hazeltine and Lowe proceeded from their observa-
tion of him and Miss Calandriello on August 25, 1969, is
a factual determination and as such to be accepted by this
court. Whether those in-court identifications deprived
petitioner of due proce.s is a matter of law and hence
the responsibility of this court. Townsend v. Sain, 372
U.S. 293 (1963). On this record those identifications are
free of taint and hence did not deprive petitioner of due
process.
The trial court permitted Lydia Hardie to testify that
on August 23, 1969 at approximately 7:00 p.m. in Leonardo,
New Jersey, petitioner stopped his automobile between
intersections and asked her, then age 12, to go for a ride
and also permitted Darlene Hanvey to testify that he had
accosted her on August 9, 1969, at approximately 7:00 p.m.
outside a bowling alley in Atlantic Highlands” and invited
her, then age 14, to go for an automobile ride. Miss Han-
vey also testified that petitioner said, “I have stuff in the car
if you want to come.” Petitioner claims here that the
testimony of the Misses Hardie and Hanvey denied him
due process.
In due course petitioner was prosecuted for attempting
to impair the morals of a minor and for attempted kid-
15. Atlantic Highlands, in which Rosemary Calandriello lived, and Leonardo
are neighboring communities.
Appendix D 39a
napping in the case of Darlene Hanvey and for the at-
tempted kidnapping of Lydia Hardie. At the end of the
prosecution's presentation in the case growing out of the
Hardie incident, the indictment was dismissed. In the proe-
cution of the Hanvey indictment, the jury’s verdict of guilty
was reversed by the Appellate Division’® on the basis of
insufficient evidence.
In this court petitioner contends that in view of the out-
come of those two prosecutions, permitting Lydia Hardie
and Darlene Hanvey to testify to the mentioned incidents
denied him due process. Petitioner’s argument here is that
the testimony of the two girls was irrelevant and highly
prejudicial. He rests his contention on interpretation of
New Jersey Rule of Evidence 55, a matter better left to
the courts of that State, and on Federal Rule of Evidence
404 which has no application in a State prosecution.” In
any event the outcome of the State’s cases against peti-
tioner based on the Hardie and Hanvey incidents, did not
preclude the introduction of their testimony in the trial
petitioner now challenges.
Petitioner contends further that he was denied due pro-
cess by the admission of testimony from Herbert Williams,
John Gosch and Albert Glover with whom he was confined
to the Monmouth County Jail during November and De-
cember 1969.
According to Glover,'* when petitioner returned from a
proceeding at which his bail on the abduction complaint
16, State v. Zarinsky, Docket No. A 1875-69, decided February 23, 1971,
unpublished,
17. United States ex rel. Mertz v. State of New doraey, 423 F.2d 537, 540
(3 Cir, 1970); United States ex rel. Johnson v, Hatrack, 417 F, Supp. 316,
324 (D.N.J. 1976).
18. According’ to his testimony a ay are for an unspecified indictable
offense had been filed against Glover at the time of petitioner's trial. Glover
did not come forward with the information about which he testified until
1975,
40a Appendix D
had been raised, he said “they could never get [Rosemary
Calandriello’s] body and that underwear in the car he
could say .. . belonged to his wife’... .”. Asked, accord-
ing to the transcript, if petitioner had said “why they would
find the body” (sic) the witness answered: “He [petitioner]
said it was weighted down and . . . was in a lot of water.”
In context it is apparent that the witness was asked not
why petitioner maintained “they would find the body” but
rather “why they would not find the body.”
Gosch * testified that while he was in the Monmouth
County Jail petitioner discussed the abduction complaint
and said “they'll never find that stinking broad,” having
referred to her as “the Calandriello girl from the High-
lands.”
According to Williams *' petitioner returned from the
bail hearing and said “they wasn’t going to find . . . the
body [which] he had threw from a bridge with weights
on, bricks on, or something(sic).” This witness also testi-
fied that petitioner had told him “that he had, on the right
side of the car . . . removed the handle, the handle from
the car ° ° ° because he had some girls, he had picked
up some girls and they couldn't get out once they were in
the car.” It should be noted that a handle fitting that men-
19. At trial, Free coagl wife testified that bikini pants found in his auto-
mobile belonged to her.
20. At the time of petitioner's trial Gosch was serving a sentence for
forgery. In exchange toe his testimony the prosecution agreed to write a
letter favorable to him to the parole board. He had come foward in late
1969 or early 1970,
21. In anticipation of his testimony at petitioner's trial and on the State’s
request that a be given “special consideration” Williams received a
suspended sentence following his convictions in November 1974 for “obtainin
money under false pretenses, uttering forged instruments, credit card the
and possession of stolen property.” Like Gosch, Williams had come forward
in late 1969 or early 1970.
22. Althought referred to as petitioner's this vehicle was actually registered
to his father.
Appendix D 4la
tioned here was found under the front seat of petitioner's
car on August 28, 1969.
Petitioner's objection to the testimony of these three
witnesses is that it was inadmissible because no corpus
delecti had been established. But a corpus delecti may be
demonstrated by circumstantial evidence. United States
v. DiOrio, 150 F.2d 938, 941 (3 Cir. 1945), c.d. 326 U.S.
771 (1945). On the proofs presented this contention has
no merit.
Arguing that absent his confession the evidence was
insufficient to show the commission of a crime, petitioner
contends that the trial court should have held a hearing
outside the presence of the jury in order “to determine
whether the corroborating evidence was sufficient . . . to
allow the confessions to be admitted into evidence.” At
trial petitioner did not ask for such a hearing and in this
court points no authority for this contention. Although
petitioner relies here on Bruton v, United States, 391 U.S.
123 (1968) and Jackson v. Denno, 378 U.S. 368 (1964),
both are inapposite.
Petitioner's fifth contention is that he was denied due
process by “admission of testimony as to the lineup at
which Lydia Hardie aad Darlene Hanvey identified . . .”
him in that he did not have the benefit of counsel at that
proceeding. That lineup was held on August 28, 1969
after petitioner had been arrested on a John Doe complaint
which as superceded, charged him with abduction of Rose-
inary Calandriello. Because petitioner was not under in-
dictment when the lineup was held, there was no require-
ment that he then be represented by counsel. United
States v. Wade, 388 U.S. 218 (1967).
23. Petitioner refers here to the inculpating comments testified to by Messrs.
Glover, Gosch and Williams.
42a Appendix D
Petitioner's argument that the Appellate Division’s re-
versal of the jury’s verdict in State v. Zarinsky, Docket No.
A 1875-69, decided February 23, 1971, unreported, barred
introduction of testimony about that lineup is without
merit. The reason is that the reversal was based on a
lack of evidence that petitioner had attempted to kidnap
Darlene Hanvey, not on any shortcoming in her identifica-
tion of him.
Petitioner's reliance on Gideon v. Wainwright, 372 U.S.
335 (1963), and Kirby v. Illinois, 406 U.S. 682 ( 1972), is
simply misplaced.
Petitioner's contention that the admission of certain ex-
hibits denied him due process because the State failed to
demonstrate the chain of custody does not present a meri-
torious constitutional issue.”*
Petitioner contends further that he was denied due pro-
cess by the admission of evidence which he alleges was
irrelevant and inflammatory. That evidence included a
white straw pocketbook, which contained hair clips, pro-
duced by Rosemary’s mother, and two hair clips,” of the
same sort, blue bikini underpants, two bottles of beer, a
bottle of brandy, a live bullet, a blank casing, a ball peen
hammer, a chrome plated hatchet and a folded piece of
pink paper taken from petitioner’s vehicle.
Petitioner's wife said that she used hair clips like those
found in her husband’s car and that the blue bikini under-
pants belonged to her. Mrs. Calandriello testified that her
daughter had used the same kind of hair clips and had
owned a number of pairs of colored bikini underpants like
24. Mercado v. Massey, 536 F.2d 107 (5 Cir. 1976); Conimonwealth of
Pennsylvania ex rel. Craig v. Moroney, c48 F.2d 22, 24 (3 Cir. 1965).
25. Although the respondents’ brief describes these hair clips as unique,
the record gives no basis for the characterization.
Appendix D 43a
those which had been found in the back of petitioner's
car. Although petitioner says that his wife “is several
inches shorter and 30 pounds lighter than . . . Rosemary,
the record gives no indication of any effort by him or the
prosecution to determine whether the underpants fit her.
In context, the matter of determining the source of those
articles was clearly for the jury.
Lydia Hardie «nd Darlene Hanvey each testified that
when petitioner attempted to induce them to enter his
automobile he invited them to go drinking and said that
he had “some stuff,” implying perhaps the beer or brandy.
The live bullet, blank casing, ball peen hammer and
hatchet were all introduced as items taken from petition-
er’s automobile as evidence of the means of murder. The
folded pink paper had been used to take blood scrapings
from the bumper and tail light of petitioner's automobile.
While those scrapings were never identified as human or
animal, a police officer testified that when he arrived at
petitioner's home on August 27, 1969, two days after Rose-
mary Calandriello’s disappearance, he found petitioner
standing over the open trunk of his automobile with a
scrub brush in his hand and a pail at his feet. Petitioners
brother-in-law testified that he had cut himself while work-
ing on a broken tail light on this automobile.
In view of the circumstantial nature of the prosecution's
case we do not find that the introduction in evidence of
these items amounted to a constitutional intrusion. A
chrome plated hatchet is after all not to be found in the
trunk of every automobile. And while the evidence did
not necessarily establish that the hair clips and the blue
bikini underpants had belonged to the victim, the testi-
mony was sufficient to warrant their admission from the
standpoint of the Constitution which is the standard by
44a Appendix D
which a habeas court-measures propriety. Burgett v.
Texas, 389 U.S. 109, 113-114 (1967); Woods v. Estelle,
547 F.2d 269 (5 Cir. 1977); Commonwealth of Pennsyl-
vania ex rel. Craig v. Maroney, supra at 24, fn. 3. See also
Cupp v. Murphy, 412 U.S. 291 (1973).
Petitioner also claims that constitutional error is to be
found in the trial court's instruction on murder. Specific-
ally, he contends that “no evidence of premeditation: delib-
eration or willfulness was introduced by the State” with
the result that the giving of a first degree murder instruc-
tion affronted petitioner's due process right. Only gross
instructional error rises to the level of constitutional wrong
required to support a habeas application.” On the cir-
cumstantial proofs presented, we see no error in the chal-
lenged instruction,” much less one of constitutional scope.
Petitioner’s ninth contention is that he “was not afforded
a full and fair litigation of this allegation that the search
warrant under which his home was entered was patently
defective.” That search was performed on February 21,
1975 in connection with the murders of Joanne DeLardo
and Doreen Carlucci. Petitioner has never been charged,
indicted or otherwise prosecuted for those deaths and
nothing obtained as a result of that search was introduced at
his trial for the murder of Rosemary Calandriello. Clearly,
there is no merit to that contention on this application.
Petitioner's tenth contention is that he was denied due
process by presentation to the Appellate Division of affi-
davits concerning occurrences involving Linda Balabanow,
Joanne DeLardo and Darlene Carlucci. But it was peti-
26. Cupp v. Naughten, 414 U.S. 141, 146 (1973); United States ex rel.
Dorey v. State of New Jersey, 560 F.2d 584 (3 Cir. 1977). a ae
27. As petitioner has noted in his supporting brief the trial court charg
the jury Pat if it found him guility 7 eager that finding could be in
either the first or second degree. The latter requires no evidence that
it was done wilfully, deliberately or with premeditation. N.J.S. 2A:113-2.
Commonwealth of Pennsylvania ex rel. Craig v. Maroney, supra at 24, fn. 3.
Appendix D 45a
tioner who submitted those affidavits* to the Appellate
Division.” On its face this contention involves no consti-
tutional principle and thus has no merit.
Petitioner's last contention is that his “conviction . . .
was so totally devoid of evidentiary basis as to deprive him
of due process of law.” The test here is whether the
verdict was supported by any evidence." Treatment of
petitioner's first ten contentions and the statement of facts
in his own brief on direct appeal, demonstrate that that
standard was more than met in this case.
We recommend that this application be denied without
evidentiary hearing,’ Townsend v. Sain, supra, or certificate
of probable cause.
Respectfully submitted,
/s/ John W. Devine
JOHN W. DEVINE
United States Magistrate
May 30, 1978
28. According to the affidavit of Thomas Mion, “an Investigator with the
Monmouth County Prosecutor's Office and a member of the Homicide Squad,”
Neutron Activation Analysis of hair found on the hammer taken from
titioner’s automobile matched it to that of Linda Balabanow who like
lena DeLardo and Doreen Carlucci had been murdered. These three
affidavits all contain information which, if true, is most damaging to petitioner.
29. See Exhibit R-4 _, petitioner's appendix on direct appeal, pp. 9a - 25a.
30. Thompson v. Louisville, 362 U.S. 199 (1960).
31. The following exhibits, all in State v. Zarinksy, have been received:
Brief in support of instant petition
Petitioner's pro se supplemental brief
Trial courts’ letter opinion dated March 21, 1975 on pretrial motions
by petitioner
Trial transcript in 20 volumes with separate master exhibit list
Petitioner's Appellate Division brief
Petitioner's appendix in support of R-3
State’s brief to the Appellate Division
Appendix in support of R-5
Unpublished Appellate Division decision A-2648-74
Respondents’ brief in support of motion to dismiss instant petition
Respondents’ brief and appendix in opposition to petition
p's
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46a
APPENDIX E
OPINION AND ORDER OF THE
UNITED STATES DISTRICT COURT OF
NEW JERSEY, SEPTEMBER 22, 1978
(Filed September 22; 1978 at 4:10 P.M.)
/s/ Angelo W. Locascio
ANGELO W. LOCASCIO
Clerk
Raymond M. Brown, Esquire
Browyn, Vogelman & Brown, Esquires
26 Journal Square
Jersey City, New Jersey 07306
(Attorneys for Petitioner)
James M Coleman, Jr., Esquire
Prosecutor of Monmouth County
Monmouth County Courthouse
Freehold, New Jersey 07728
(Attorney for Respondent )
RE: ROBERT ZARINSKY v. STATE OF NEW JERSEY
and ROBERT S. HATRAK, the Principal Keeper
of the State Prison at Rahway, New Jersey; Civil
Action No. 77-1337.
OPINION
Gentlemen:
On May 30th, 1978, the Honorable John W. Devine,
United States Magistrate, filed his report and recommenda-
tion in this case. On July 7th. 1978, the petitioner filed
obections to the report and recommendation. The peti-
tioner raises two primary objections to the report and rec-
ommendation. First, the petitioner contends that Magis-
trate Devine incorrectly determined the speedy trial issue.
Appendix E 47a
See Petitioner's Objections to the Report and Recommenda-
tion of Judge Devine, at 3-14 (hereinafter cited as Peti-
tioner's Objections). Second the petitioner contends that
Magistrate Devine “compounded” a “harmful constitutional
error’ by “failing to recognize that the doctrine of collateral
estoppel directly affected the admissibility of the testimony
of Lydia Hardie and Darlene Hanvey”. Petitioner's Objec-
tions, at 15.
Magistrate Devine discussed the petitioner's speedy trial
argument on pages 1-4 of his report and recommendation.
Magistrate Devine found that the delay in this case was
not long enough to be considered presumptively preju-
dicial. Report and Recommendation, at 3 (hereinafter
cited as R & R). In addition, Magistrate Devine noted
that, even if the delay was presumptively prejudicial, the
State's reasons for the delay, when coupled with the peti-
tioner'’s prejudice, was insufficient to establish a violation
of petitioner's right to a speedy trial. See R & R, at 4.
As we understand it, the petitioner appears to be arguing
that Magistrate Devine erred in concluding that the delay
was not presumptively prejudicial, Petitioner's Objections,
at 3-7: that the State’s reasons for the delay were adequate,
id. at 7-9, and that the prejudice suffered by the petitioner
was not substantial. Id at 10-14.
The petitioner's primary support for the argument that
Magistrate Devine erred in calculating the length of the
delay is State v. Moore, 147 N.J. Super. 490 (App. Div.),
pet. for certif. denied, 74 N.J. 272 (1977).' See Petitioner’s
Objections, at 4-7. Moore, howevcr, is clearly distinguish-
able. In Moore, the defendant was actually under an in-
1. In Moore, the Appellate Division reversed the defendant's conviction on
speedy trial graunds. Prior to Moore's state trial, this Court granted Moore’s
petition for a writ of habeas corpus. Moore v. DeYoung, 391 F. Supp. 111
(D.N.J.. 1974). The Court of Appeals reversed that decision on the ground
that Moore had failed to exhaust fis state remedies. Moore v. DeYoung, 515
F.2d 437 (3d Cir. 1975).
48a Appendix E
dictment, stemming from the same incident on which his
subsequent indictment and conviction were based, for over
three years. See Moore, supra, 147 N.J. Super. at 492-93.
In this case, as Magistrate Devine pointed out, R & R, at 3,
the petitioner was not under any indictment stemming
from the incident involving Rosemary Calandriello from
May 29th, 1970, to February 21st, 1975. In these circum-
stances, we agree with Magistrate Devine that the above
period should not be included in calculating the petitioner's
speedy trial. For additional distinctions between Moore
and this case, see R & R, at 4 n.14.
Furthermore, we reject the petitioner's apparent con-
tention that the reason for the state’s delay in returning
the murder indictment was to gain a tactical advantage at
trial. See Petitioner's Objections, at 8-9. Rather, as Magis-
trate Devine indicated, R & R, at 4, the delay was necessary
in order to permit the jury to infer that Rosemary Calan-
driello was in fact dead.
As for the prejudice element, the petitioner appears to
point to two factors: First, that the delay somehow re-
sulted in a violation of the petitioner's right to counsel
under Massiah v. United States, 377 U.S. 201 (1964), see
Petitioner's Objections, at 11-12; and, second, that the delay
resulted in the admission of tainted in-court identifications
because of the death of petitioner's first attorney. See
Petitioner's Objections, at 12-14.
As for the allegation of prejudice based on Massiah, we
do not see any relationship between a violation of the
petitioner's right to counsel, if any such violation occurred,”
and the petitioner’s right to a speedy trial. If the peti-
2. We should point out that we do not feel that any violation of
Massiah occurred in this case. While it is true that the petitioner was under
indictment when he made incriminating statements to John Gosch, petitioner
was not under indictment for any actions ivolving Rosemary Caladriello.
See Petitioner's Objections, at 11-12.
Appendix E 49a
tioner had gone to trial on the day following the alleged
Massiah violation, there clearly would not have been any
speedy trial violation, yet the Massiah violation would have
been the same. Petitioner has not pointed out how the
delay in his trial in any way exacerbated the alleged Mas-
siah violation. In fact, it seems that the petitioner has
attempted to link the alleged Massiah violation with the
speedy trial claim in an effort to avoid the fact that no
Massiah violation was ever raised in the state courts.
We have similar difficulty with the prejudice alleged to
flow from the death of petitioner’s first attorney. Through-
out this proceeding, and in the state courts, petitioner
claimed that the death of his first attorney resulted in pre-
judice because his first attorney possessed unique knowl-
edge of the circumstances surrounding a line-up, conducted
on August 28th, 1969, at which petitioner was identified
by Lydia Hardie and Darlene Hanvey. See Exhibit P-1,
Brief in Support of Petition of Writ of Habeas Corpus, at
13-14; Exhibit R-3, Brief for Defendant-Appellant, at 27
(hereinafter cited as Petitioner's Appellate Court Brief);
Exhibit R-7, State v. Zarinsky, A-2648-74, Unpublished
Opinion, at 19-20, 25-26 (Sup. Ct., App. Div., filed July 20,
1976). Both Magistrate Devine and the state courts found
that the loss of this information did not constitute prejudice
because petitioner had no right to counsel at the time the
line-up was conducted. See R & R, at 5 n.18; Zarinsky,
supra, at 19-20, 25-26.
In his objections to the Report and Recommendation,
petitioner does not challenge this conclusion. Rather,
petitioner now argues that the death of his first attorney
resulted in prejudice from another source. Specifically,
petitioner alleges, by way of an affidavit, that during a
preliminary hearing held on August 28th, 1969, he was
exhibited to Michael Hazeltine, Thomas Gowers, David
50a Appendix E
Low, and Darren Low in an unconstitutionally suggestive
manner. See Affidavit of Robert Zarinsky, filed July 7th,
1978, at { 2-11. Petitioners counsel, relying on this af-
fidavit, concludes that this alleged constitutional violation
went undiscovered because: “The person with the most
intimate legal knowledge of the preliminary proceeding
was [petitioner's first attorney], but he died in July, 1972.”
Petitioner's Objections, at 14.
We should emphasize that the petitioner is attempting
to establish prejudice, an element of a speedy trial claim,
through the death of his first attorney. Petitioner is not
arguing that he is entitled to the issuance of a writ be-
cause the in-court identifications of Hazeltine, Gowers,
Low, and Low were rendered unconstitutional by their
alleged presence at the preliminary hearing. Such a
claim was not made in the state courts and is not properly
before this Court.’ Thus, petitioner appears to be arguing
that the death of his first attorney somehow resulted in
the failure to raise this issue in the state court. Based
on petitioners affidavit, however, we simply can not reach
that conclusion. In fact, petitioner's affidavit suggests
that his first attorney was totally unaware of the alleged
presence of the four witnesses in the court room during
the preliminary hearing. See Affidavit of Robert Zarin-
sky, supra, at J4. For us to conclude that this issue would
have been raised if the petitioner's first attorney had been
alive at the time of trial would be pure speculation. Ac-
cordingly, we can not find that the death of petitioner’s
first attorney resulted in any significant prejudice.
The petitioner's second objection to the report and
recommendation concerns the testimony of Lydia Hardie
and Darlene Hanvey. See Petitioner's Objections, at
3. Petitioner argued in the state courts that the in-court identifications were
unconstitutional because they were not free from the taint of an illegal
ea display. See R & KR, at 4-6; ePtitioner’s Appellate Brief, at
40-49; inksy, supra, at 26-27.
Appendix E 5la
15-18. Petitioner argues that the state court, by admitting
the testimony of these two witnesses, violated petitioner's
rights under the double jeopardy clause of the United
States Constitution. See id. at 18. Throughout the state
court proceedings, the petitioner argued that the testi-
mony of these two witnesses was barred under New
Jersey’s law of evidence. See, e.g., Petitioner's Appellate
Court Brief, at 49-58; Zarinsky, supra, at 23-24; R & R,
at 6-7. Petitioner’s appellate division brief mentions the
double jeopardy clause only once and in the context of
his state law arguments. See Petitioner's Appellate Brief,
at 56. In his objections to the report and recommenda-
petitioner relies on the case of Ashe v. Swenson, 397 U.S.
436 (1971), and Wingate v. Wainright; 464 F.2d 209 (5th
Cir. 1972). Ashe is not cited in Petitioner's appellate
division brief. See Petitioner's Appellate Brief, at iii, 49-
58. Wingate is cited once, Petitioner's Appellate Brief,
at 57, but not in support of the proposition being asserted
in petitioner’s objections to the report and recommenda-
tion.
In these circumstances, we can not say that the peti-
tioner’s double jeopardy claim has been fairly presented
to the state courts. Picard v. Connor, 404 U.S. 270, 275
(1971); United States ex rel. Trantino v. Hatrack, 563
F.2d 86, 93-98 (3d Cir. 1977); Zicarelli v. Gray, 543 F.2d
466, 470-75 (3d Cir. 1976 (en banc). Furthermore, peti-
tioner may be able to obtain state court review on an
application for post-conviction relief pursuant to N.J.R.
3:22. See United States ex rel. Winrow v. Hatrak, Civ.
No. 75-0749, slip op., at 4-8 (D.N.J. filed Mar. 31, 1978).
Therefore, we decline to address the merits of petitioner's
second objection to the report and recommendation.
Accordingly, in light of the foregoing, we find the peti-
tioner’s objections to Magistrate Devine’s report and rec-
52a Appendix E
ommendation to be without merit. The Court will enter
an order dismissing the petition based on the report and
recommendation, as supplemented by this opinion.
Very truly yours,
/s/ George H. Barlow
GEORGE H. BARLOW
Chief Judge
United States District Court
GHB/ebj
Appendix E 58a
ORDER
BARLOW, Chief Judge
Petitioner, Robert Zarinsky, seeks issuance of a writ of
habeas corpus pursuant to the provisions of 28 U.S.C.
§2241, et seq., attacking the legality of his confinement in
the New Jersey State Prison.
Upon the filing of respondents’ answer, the cause was
referred to the Honorable John W. Devine, United States
Magistrate, pursuant to General Rule 40 E(3), for his
preliminary review and report and recommendation to
this Court as to whether a hearing is warranted.
This Court has conducted an independent review, in
compliance with Townsend v. Sain, 372 U.S. 293 (1963),
and 28 U.S.C. §636(b)(1)(B), of the petition for the
writ, the pleadings, the briefs and appendices, the trial
transcript, and the report and recommendation and sun-
plemental report and recommendation of the Federal
Magistrate, both filed on May 30th, 1978. The Court has,
further, reviewed the petitioner's objections to the Mag-
istrate’s reports and recommendations and finds them to
be without merit for the reasons expressed in the opinion
of this Court filed on September 22nd, 1978; and upon
consideration of the foregoing,
IT IS, on this Twenty-second day of September, 1978,
ORDERED that the report and recommendation and
the supplemental report and recommendation of the Fed-
eral Magistrate be, and hereby is, adopted as the opinion
of this Court, and that the petition for writ of habeas
corpus of Robert Zarinsky filed in this Court on July 6th,
1977, is hereby dismissed without an evidentiary hearing,
and this Court certifies there is no probable cause for ap-
peal from this order. No costs.
/s/ George H. Barlow
Chief Judge
United States District Court
54a
APPENDIX F
ORDER OF THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT,
DECEMBER I11, 1978
Present: ALDISERT, ADAMS and HUNTER, Circuit
Judges.
Submitted is appellant’s motion for certificate of probable
cause.
Submitted: December 11, 1978 or as the court decides.
Sincerely,
/s/
Senior Staff Attorney
LDJ/MDB/cb
The foregoing Motion is denied.
By the Court:
/s/ Aldisert
Judge
Dated: December 11, 1978
55a
APPENDIX G
AFFIDAVITS
AFFIDAVIT OF SEYMOUR MARGULIES
STATE OF NEW JERSEY ) __
COUNTY OF HUDSON _ ) **
SEYMOUR MARGULIES, being duly sworn according
to law, upon his oath, deposes and says:
1. On March 16, 1976 I was in attendance before the
Superior Court of New Jersey, Appellate Division, at the
court room in Newark in anticipation of the presentation of
an oral argument to the court.
2. While in the court room I had the opportunity of
observing other matters being presented to the court, one
of which was the case of State v. Zarinsky.
3. There was a young man arguing for the State and
Mr. Richard F. Plechner presented the matter for the de-
fendant.
4. After the presentation of that oral argument I had
the occasion to meet Mr. Plechner in the corridor and
expressed my surprise at one of the arguments that had
been presented by the State because in colloquy with the
court the attorney had informed the court that the matter
had not been tried as early as the circumstances might have
permitted because of something akin to the tenor or climate
or spirit of the time; that there was a certain spirit of “flower
power’ present. My best recollection is that that term was
used or one like it was used to express the social Zeitgeist
which had dampened the state’s ardor to move the case.
5. The comment to Mr. Plechner was presented offi-
ciously on my part but it is that comment which stirs to
refresh my recollection of that oral argument.
56a Affidavits
6. I was requested several months thereafter to confirm
to Mr. Plechner my impressions. I have this date been
requested by his office to put them in affidavit form and is
the reason for the within affidavit.
/s/ Seymour Margulies
SEYMOUR MARGULIES
NOTARIZED
57a
AFFIDAVIT OF ALAN A. DAVIDSON
STATE OF NEW JERSEY )
COUNTY OF MIDDLESEX ) **
The undersigned, being duly sworn according to law,
upon his oath, deposes and says:
1. I was present at the oral argument before the Appel-
late Division in the above matter on March 16, 1976.
2. John Mullaney, Assistant Monmouth County Prose-
cutor, said on behalf of the State that the indictment in the
within cause was not brought until February 1976 as his
office wanted the delay in order to find a jury that would
convict appellant. More specifically, he said that in 1969-
1970 a jury could not be found, in his opinion, who would
convict appellant due to the climate or tenor of the times
and the existence of “flower power, hippies and runaways.”
3. Mr. Mullaney intimated that the exitence of “flower
power, hippies and runaways’ increased the likelihood that
a jury would believe that Rosemary Calandriello would
have run away from home and not have been murdered as
contended in the charge against appellant.
4. Of the 3 member Appellate Division panel, Judge
Kolovsky appeared the most concerned with such an excuse
for delay on behalf of the State. Persons sitting within the
room could not help but notice the change in the climate
of the arguments of the prosecutor, upon realizing his ap-
parent faux-pas. I, for one, was relieved that he was so
candid in his presentation and left the oral argument with
the feeling that this point alone had made a large impact
upon the Appellate Division. The case law supports the
idea that intended delay is to be frowned upon. When
coupled with the length of the delay herein, the defendant's
58a Affidavits
assertion of his right and the prejudice which flowed there-
from, any holding that Robert Zarinsky was not denied a
right to speedy trial would be fundamentally unfair and
in contravention of his rights as an accussed.
/s/ Alan A. Davidson
ALAN A. DAVIDSON
NOTARIZED
59a
AFFIDAVIT OF RICHARD F. PLECHNER
STATE OF NEW JERSEY ) __
COUNTY OF MIDDLESEX ) **’
The undersigned, being duly sworn according to law,
upon his oath, deposes and says:
1. I was present at the oral argument before the Appel-
late Division, in the above matter, on March 16, 1976.
2. John Mullaney, Assistant Monmouth County Prose-
cutor, said on behalf of the State that the indictment in the
within cause was not brought until February 1976 as his
office wanted the delay in order to find a jury that would
convict appellant. More specifically, he said that in 1969-
1970 a jury could not be found, in his opinion, who would
convict appellant due to the climate or tenor of the times
and the existence of “flower power, hippies and runaways.”
3. Mr. Mullaney intimated that the existence of “flower
power, hippies and runaways’ increased the likelihood that
a jury would believe that Rosemary Calandriello would
have run away from home and not have been murdered as
contended in the charge against appellant.
/s/ Richard F. Plechner
RICHARD F. PLECHNER
NOTARIZED
60a
AFFIDAVIT OF LYNN ZARINSKY
STATE OF NEW JERSEY )
COUNTY OF MIDDLESEX) **"
The undersigned, being duly sworn according to law,
upon her oath, deposes and says:
1. I was present at the oral argument before the Appel-
late Division in the above matter on March 16, 1976.
2. John Mullaney, Assistant Monmouth County Prose-
cutor, said on behalf of the State that the indictment in the
within cause was not brought until February 1976 as his
office wanted the delay in order to find a jury that would
convict Appellant. More specifically, he said that in 1969-
1970 a jury could not be found, in his opinion, who would
convict Appellant due to the climate or tenor of the times
and the existence of “flower power, hippies and runaways.
3. Mr. Mullaney intimated that the existence of “flower
power, hippies and runaways” increased the likelihood that
a jury would believe that Rosemary Calandriello, would
have run away from home and not have been murdered
as contended in the charge against Appellant.
/s/ Lynn Zarinsky
LYNN ZARINSKY
NOTARIZED
6la
AFFIDAVIT OF VERONICA ZARINSKY
STATE OF NEW JERSEY ) __
COUNTY OF MIDDLESEX ) °°
The undersigned, being duly sworn according to law,
upon her oath, deposes and says:
1. I was present at the oral argument before the Appel-
late Division in the above matter on March 16, 1976.
2. John Mullaney, Assistant Monmouth County Prose-
cutor, said on behalf of the State that the indictment in the
within cause was not brought until February 1976 as his
office wanted the delay in order to find a jury that would
convict Appellant. More specifically, he said that in 1969-
1970 a jury could not be found, in his opinion, who would
convict Appellant due to the climate or tenor of the times
and the existence of “flower power, hippies and runaways.”
3. Mr. Mullaney intimated that the existence of “flower
power, hippies and runaways’ increased the likelihood that
a jury would believe that Rosemary Calandriello, would
have run away from home and not have been murdered as
contended in the charge against Appellant.
/s/ Veronica Zarinsky
VERONICA ZARINSKY
NOTARIZED
62a
AFFIDAVIT OF PETER SAPSA
STATE OF NEW JERSEY ) _ |
COUNTY OF MIDDLESEX) **”
The undersigned, being duly sworn according to law,
upon his oath, deposes and says:
1. I was present at the oral argument before the Appel-
late Division in the above matter on March 16, 1976.
2. John Mullaney, Assistant Monmouth County Prose-
cutor, said on behalf of the State that the indictment in the
within cause was not brought until February 1976 as his
office wanted the delay in order to find a jury that would
convict Appellant. More specifically, he said that in 1969-
1970 a jury could not be found, in his opinion, who would
convict Appellant due to the climate or tenor of the times
and the existence of “flower power, hippies and runaways.
3. Mr. Mullaney intimated that the existence of “flower
power, hippies and runaways’ increased the likelihood that
a jury would believe that, Rosemary Calandriello, would
have run away from home and not have been murdered as
contended in the charge against Appellant.
/s/ Peter Sapsa
PETER SAPSA
NOTARIZED
63a
AFFIDAVIT OF MILDRED PARTESI
STATE OF NEW JERSEY)
COUNTY OF MIDDLESEX ) 5°
The undersigned, being duly sworn according to law,
upon her oath, deposes and says:
1. I was present at the oral argument before the Ap-
pellate Division, in the above matter, on March 16, 1976.
2. John Mullaney, Assistant Monmouth County Prose-
cutor, said on behalf of the state that the indictment in the
within cause was not brought until February 1976 as his
office wanted the delay in order to find a jury that would
convict appellant. More specifically, he said that in 1969-
1970 a jury could not be found, in his opinion, who would
convict appellant due to the climate or tenor of the times
and the existence of “flower power, hippies and runaways.”
3. Mr. Mullaney intimated that the existence of “flower
power, hippies and runaways” increased the likelihood that
a jury would believe that Rosemary Calandriello would
have run away from home and not have been murdered as
contended in the charge against appellant.
/s/ Mildred Partesi
MILDRED PARTESI
NOTARIZED
64a
AFFIDAVIT OF PATRICIA A. PLECHNER
STATE OF NEW JERSEY ) ___
COUNTY OF MIDDLESEX ) °**
The undersigned, being duly sworn according to law,
upon her oath, deposes and says:
1. I was present at the oral argument before the Ap-
pellate Division, in the above matter, on March 16, 1976.
2. John Mullaney, Assistant Monmouth County Prose-
cutor, said on behalf of the State that the indictment in the
within cause not brought until February 1976 as his office
wanted the delay in order to find a jury that would con-
vict appellant. More specifically, he said that in 1969-
1970 a jury could not be found, in his opinion, who would
convict appellant due to the climate or tenor of the times
and the existence of “flower power, hippies and runaways.”
3. Mr. Mullaney intimated that the existence of “flower
power, hippies and runaways” increased the likelihood that
a jury would believe that Rosemary Calandriello would
have run away from home and not have been murdered
as contended in the charge against appellant.
/s/ Patricia A. Plechner
PATRICIA A. PLECHNER
NOTARIZED
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