On certification to the Superior Court, Law Division, Monmouth County.
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. Opposed -- None.
This appeal raises two issues. The first involves essentially the same issue considered today in State v. Biegenwald, 96 N.J. 630 (1984), namely, whether, during the penalty phase of a capital proceeding, the State may use as an aggravating factor, pursuant to N.J.S.A. 2C:11-3c(4)(a), a defendant's prior conviction for murder, when the appeal of that conviction is still pending. The second presents the question of whether a defendant in a capital case is entitled to a change of venue. For the reasons set forth in our opinion in Biegenwald, we reverse the ruling of the court below that would allow a prior conviction for murder still pending on direct appeal to be used as an aggravating factor in the penalty phase of this case. Further, we reverse the trial court's ruling denying defendant's motion for a change of venue and remand the matter for proceedings consistent with our holding.
On July 5, 1983 defendant, Marko Bey, was indicted for the April 1 or 2, 1983 murder of Cheryl Alston. That same day, defendant was indicted for the April 26, 1983 murder of Carol Peniston. On December 13, 1983, defendant was found guilty of the Alston murder, and by its special verdict the jury directed that the death penalty be imposed.
Defendant's trial on the Peniston murder is now pending before the Superior Court, Law Division, Monmouth County. On July 11, 1983 the State filed its notice of aggravating factors pursuant to N.J.S.A. 2C:11-3c(2), in which it indicated that, should defendant be found guilty, it intended to rely on the Alston conviction as an aggravating factor under N.J.S.A. 2C:11-3c(4)(a) -- that "the defendant has previously been convicted of murder."
On February 17, 1984 the State filed a notice of motion for pretrial determination of the admissibility of the Alston conviction for such purposes. Defendant filed a cross-motion to dismiss the asserted aggravating factor and also filed a motion for change of venue.
These motions were heard on March 9, 1984. The trial judge ruled that the State may introduce proof of defendant's earlier but not final conviction for murder as an aggravating factor at the penalty phase of the Peniston murder trial. In addition, the court denied defendant's motion for a change of venue. On April 5, 1984, defendant filed a motion before the Superior Court, Appellate Division, requesting leave to appeal from the trial court's interlocutory orders. On the same date, the State filed a motion for leave to appeal from an interlocutory order of the trial court in State v. Biegenwald, supra, 96 N.J. 630. On April 6, 1984, this Court directly certified State v. Bey and State v. Biegenwald, granting the motions for leave to appeal "to the end that it shall be considered as an appeal pending to the Supreme Court." 96 N.J. 630 (1984).
Consistent with our determination in State v. Biegenwald, supra, 96 N.J. 630, we reverse that portion of the lower court's ruling that would permit the State to use defendant's prior conviction as an aggravating factor in the penalty phase of this capital proceeding when all avenues of direct appellate review of that conviction have not yet been exhausted.
In this case defendant raises the additional argument that for purposes of N.J.S.A. 2C:11-3c(4)(a), his earlier conviction must have been entered prior to the commission of the instant offense. Hence, it is argued, Marko Bey's conviction for the murder of Alston, entered on December 13, 1983, did not exist at the time that the murder in the present case was alleged to have taken place, namely, April 26, 1983, and cannot therefore be introduced ...