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State v. Bey

Decided: August 2, 1988.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARKO BEY (II), DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Monmouth County.

For affirmance of conviction, reverse, sentence and remand -- Chief Justice Wilentz, and Justices Pollock, O'Hern, Garibaldi and Stein. For reversal -- Justices Clifford and Handler. The opinion of the Court was delivered by Pollock, J. Clifford, J., dissenting. Handler, J., dissenting.

Pollock

[112 NJ Page 130] Defendant was convicted of capital murder and sentenced to death. He appealed of right, R. 2:2-1(a)(3), challenging both the guilt and sentencing proceedings. We find no reversible error in the proceedings leading to the verdict that defendant committed capital murder and related offenses. In light of the recent decision of the United States Supreme Court in Mills v. Maryland, U.S. , 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988), however, we find that the trial court erred in its charge at the penalty phase by requiring that the jury be unanimous in

finding mitigating factors. For this and other reasons, we reverse the imposition of the death penalty and remand the matter to the Law Division for a new sentencing proceeding.

I

On April 26, 1983, around 9:20 p.m., Carol Peniston left Neptune High School, where she had attended a computer course, and drove away in her Ford Granada. Ms. Peniston, who was divorced and living alone, neither returned to her apartment nor reported to work the next day.

A week later, on May 3, her former husband, a lieutenant in the Neptune Police Department, received a letter from the Newark Police Department addressed to "Mr. Carol Peniston." The letter advised that Ms. Peniston's car had been involved in an accident the preceding week and that the car had been impounded. Lieutenant Peniston informed the Neptune Police Department, which, in turn, notified the Asbury Park Police Department. Subsequent investigation revealed that the car had been involved in a one-car collision in Newark at 1:46 a.m. on April 26, 1983, approximately four hours after Ms. Peniston left Neptune High School. The defendant's fingerprints were on the rear view mirror.

At approximately 3:30 p.m. on May 3, Asbury Park police interviewed Attilio Robot, who had found Ms. Peniston's pocketbook near an old industrial building in Asbury Park. Shortly thereafter, the police discovered her body in a shed near the building. An autopsy performed the following day, May 4, disclosed that Ms. Peniston had been dead for several days. The autopsy further disclosed that she had been beaten, sexually assaulted, and strangled. From a sneaker imprint on her chest and from evidence of fractured ribs and hemorrhaging of the right lung, vertebral column, and right atrium of the heart, Dr. Stanley Becker, the Monmouth County medical examiner, concluded that Ms. Peniston's assailant had stomped on her chest. Dr. Becker determined that the ultimate cause of death,

however, was ligature strangulation. Subsequent police investigation revealed that characteristics of spermatozoa found on the victim's coat were consistent with those of defendant's saliva, and that defendant's sneakers made an imprint that was similar to the impression on the victim's chest.

On May 6, Detective Musiello of the Asbury Park Police Department signed a complaint against defendant charging him with receiving stolen property, Ms. Peniston's Ford Granada. Later that day, at approximately 5:15 p.m., five law enforcement officials from Neptune, Asbury Park, and the Monmouth County Prosecutor's Office arrested defendant at his home in Neptune. They handcuffed defendant and took him to the Asbury Park police headquarters, and at approximately 5:35 p.m. placed him in the custody of Detective Musiello and Investigator George of the Monmouth County Prosecutor's Office.

Defendant was placed in an office at police headquarters and given a copy of the complaint. Detective Musiello read to defendant a Miranda warning card, and defendant signed an acknowledgment on the reverse side indicating that he had been advised of those rights. When asked if he wished to see anyone, defendant declined. He was then interrogated concerning his possession of the victim's automobile, during which interrogation he gave conflicting accounts of his activities. The State asserts, but defendant denies, that he was asked at 6:00 p.m. whether he wanted something to drink or to go to the bathroom. About 6:30 p.m., at his request, defendant was given a soda. While he was drinking the soda, defendant stated: "No matter what I say I'm going to be charged with this offense," a statement that referred, according to the State, to the automobile theft charge. The interrogation continued until 7:15 p.m., when defendant was given time to eat dinner. The questioning resumed twenty minutes later at 7:35 p.m., and lasted until 8:20 p.m., when defendant went to the bathroom and was given cigarettes and a soda. On defendant's return to the interrogation room, defendant and Investigator George, the

interrogating officer, sat in silence for five minutes. Defendant asserts that during this time he may have been crying.

The trial court found that five minutes later, at 8:30 p.m., defendant said he wanted to lie down so that he could think about what happened. Defendant did not expressly state that the questioning should end. Although the brief in support of defendant's motion to suppress stated that his request to lie down constituted an invocation of his right to remain silent, defendant did not urge that point at the Miranda hearing. In fact at that hearing defendant testified that it was the police who asked whether defendant wanted to lie down.

In any event, defendant was placed in the Asbury Park municipal jail for about one hour. When he returned to the detective bureau at approximately 9:30 p.m., he was not given a new set of Miranda warnings, but was asked if he wished to communicate with anyone. He declined. Questioning resumed and continued until about 10:05 p.m., when defendant confessed to the crime. Approximately fifty minutes later, defendant was again read his Miranda rights, which he waived. He then gave a written statement, in which he admitted that he accosted Ms. Peniston in front of her apartment building and demanded money from her. The statement continued that when he heard someone coming, he grabbed her and led her to the shed. In the ensuing events, he repeatedly struck Ms. Peniston, sexually assaulted her, and took eight dollars as well as the car keys from her pocketbook. While on his way to Newark in her car, he collided with an iron fence alongside a graveyard, and abandoned the car.

II

GUILT PHASE

On July 6, defendant was indicted for murder, contrary to N.J.S.A. 2C:11-3a(1) and (2); felony murder, contrary to N.J.S.A. 2C:11-3a(3); kidnapping, contrary to N.J.S.A. 2C:13-1b(1) and (2); aggravated assault, contrary to N.J.S.A. 2C:12-1b(1);

aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(3) and (6); robbery, contrary to N.J.S.A. 2C:15-1a(1), (2) and (3); and theft, contrary to N.J.S.A. 2C:20-3a.

In response, defendant made numerous pre-trial motions, including an unsuccessful one to suppress his oral and written statements obtained during the custodial interrogation on the night of the arrest. He contends that the confessions are inadmissible because he did not knowingly and intelligently waive his Miranda rights, that the confessions were not voluntary, and that the police failed scrupulously to honor his right to end the interrogation. We disagree.

A. Defendant's Confession

As a result of the suppression hearing, the trial court found that defendant was properly advised and understood his " Miranda rights," that defendant voluntarily waived those rights, and that he signed the waiver card. The court, however, did not expressly find whether defendant's request to lie down constituted a request to terminate questioning. At the conclusion of the hearing, the court ruled that the oral and written confessions were admissible. We agree.

To be valid, a waiver must be made "voluntarily, knowingly, and intelligently." Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 707 (1966). The state bears the burden of proof. Id. at 475, 86 S. Ct. at 1628, 16 L. Ed. 2d at 724. Although the United States Supreme Court has held that the state must prove admissibility of a confession by only a preponderance of the evidence, Colorado v. Connelly, 479 U.S. 157, 168, 107 S. Ct. 515, 523, 93 L. Ed. 2d 473, 485 (1986), this Court has held that the State must prove admissibility beyond a reasonable doubt, State v. Miller, 76 N.J. 392, 404-05 (1978). Here, we are persuaded beyond a reasonable doubt that the State has met its burden.

In determining the voluntariness of a confession, courts consider the characteristics of the accused, as well as the

details of the interrogation. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 862 (1973). Relevant factors include the defendant's age, education, intelligence, advice concerning his constitutional rights, length of detention, and the nature of the questioning -- specifically, whether the questioning was repeated and prolonged and whether it involved physical punishment or mental exhaustion. Id.; State v. Miller, supra, 76 N.J. at 402.

In the present case, defendant attained the age of eighteen two weeks before the interrogation. Although young, he had an extensive record of delinquency, which included convictions for robbery, assault, and sexual contact. On the night of his arrest, he was in custody at the police station for approximately nine hours. Altogether he was interrogated for three hours and five minutes before he confessed. During that time, he was offered food, beverages, cigarettes, and the opportunity to rest. The record reveals no evidence of any physical or mental coercion. Defendant was advised of his rights twice during the course of the interrogation, and declined to avail himself of the offer to communicate with an attorney or anyone else. Under these circumstances, we conclude that the trial court correctly found that defendant voluntarily gave his oral and written statements.

Defendant also argues that the police failed to "scrupulously honor" his invocation of the right to terminate questioning, in violation of Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313, 321 (1975), and State v. Hartley, 103 N.J. 252 (1986). He claims that his request to lie down and "think about what happened" was an invocation of his right to cut off questioning, and that the police failed to "scrupulously honor" his right by resuming interrogation without reissuing the Miranda warning after his one hour of rest. Although defendant alluded to this issue in the brief in support of his motion to suppress, his counsel did not press the point at the Miranda hearing. Instead, defendant claimed at that hearing

that the confession, because of his youth and fatigue, was extracted involuntarily. He testified that he did not ask for anything during the interrogation at police headquarters and that "the question [whether he wanted to lie down] was asked me." We find that the request did not constitute an invocation of the right to remain silent and, therefore, that the police did not violate that right.

In Miranda, the United States Supreme Court held that interrogation must cease if the defendant indicates that he wishes to remain silent. 384 U.S. at 473-74, 86 S. Ct. at 1627, 16 L. Ed. 2d at 723. The Court left open the issue "under what circumstances, if any, the authorities may resume interrogation" after the defendant asserts the right to remain silent. State v. Hartley, supra, 103 N.J. at 263. Subsequently, in Michigan v. Mosley, supra, 423 U.S. at 104, 96 S. Ct. at 326, 46 L. Ed. 2d at 321, the Court held that "the admissibility of statements obtained after the person in custody has decided to remain silent depends * * * on whether his 'right to cut off questioning' was 'scrupulously honored.'" In this regard, the Miranda Court held that "[o]nce warnings have been given * * * [i]f the individual indicates in any manner * * * that he wishes to remain silent, the interrogation must cease." 384 U.S. at 473-74, 86 S. Ct. at 1627, 16 L. Ed. 2d at 723. Similarly, we have stated:

[W]here a suspect makes a statement which arguably amounts to an assertion of his Miranda rights and the interrogating agent recognizes that the statement is susceptible of that construction, his questioning with regard to the crime he is investigating should immediately cease and he should then inquire of the suspect as to the correct interpretation of the statement. [ State v. Wright, 97 N.J. 113, 120 n. 4 (1984) (quoting United States v. Riggs, 537 F.2d 1219, 1222 (4th Cir.1976)).]

Any words or conduct that reasonably appear to be inconsistent with defendant's willingness to discuss his case with the police are tantamount to an invocation of the privilege against self-incrimination. Law enforcement officials, however, are not obliged to accept any words or conduct, no matter how ambiguous, as a conclusive indication that a suspect desires to terminate [112 NJ Page 137] questioning. State v. LaChappell, 222 Neb. 112, 382 N.W. 2d 343, 348 (1986) (statement that "[the polygraph] test was over" was at best "ambiguous," and trial court resolved ambiguity against defendant); see also Nashoalook v. State, 663 P. 2d 975, 978 (Alaska App.1983) ("ambiguous or equivocal responses following Miranda warnings do not suffice to constitute an assertion by the accused of his constitutional right to silence"); State v. Hicks, 133 Ariz. 64, 649 P. 2d 267, 277 (1982) (defendant's rambling statement in response to detective's statement that he was willing to end interrogation showed that defendant had not exercised his right to terminate questioning); Watson v. State, 715 S.W. 2d 864, 873 (Tex.App.1986) (when defendant made oral statement after remaining silent when Miranda warnings were administered four times, his prior silence did not sufficiently indicate an invocation of his rights). When the defendant's statement or conduct do not indicate that he is invoking his right to silence, that statement or conduct does not constitute an invocation of the right. See, e.g., Taylor v. Riddle, 563 F.2d 133, 137 (4th Cir.1977) (sustaining trial court finding that defendant's statement, "[y]ou've done asked me a question I can't answer," was not an invocation of the right to remain silent), cert. denied, 434 U.S. 1020, 98 S. Ct. 744, 54 L. Ed. 2d 768 (1978); State v. LaChappell, supra, 382 N.W. 2d at 348 (trial court properly found that the defendant's statement, "the test was over," was not an invocation of the right to cut off questioning); State v. Robbins, 319 N.C. 465, 356 S.E. 2d 279, 298 (1987) (defendant's statement, "I told you everything I know," was not an indication of his desire that all questioning cease); State v. Fincher, 309 N.C. 1, 305 S.E. 2d 685, 694 (1983) (defendant held not to have invoked right to remain silent when he refused to give a second written statement until after his co-defendant told the truth, but agreed to answer after an officer asked if he could ask "another question."). But see United States v. Hernandez, 574 F.2d 1362, 1368 & n. 9 (5th Cir.1978) (defendant who was arrested, placed in a police van, and interrogated three or four times by two officers in the

presence of each other, invoked his right to remain silent when he repeatedly refused to cooperate with attempts to elicit incriminating statements); People v. Nicholas, 112 Cal.App. 3d 249, 268, 169 Cal.Rptr. 497, 507 (1980) (when defendant said he did not want to discuss matter but three officers repeatedly questioned him to "wear down his will," defendant's request to turn off tape recorder for assurances of privacy constituted an invocation of rights); People v. Williams, 93 Cal.App. 3d 40, 62, 155 Cal.Rptr. 414, 426 (1979) (defendant's statement that he was confused and did not know what to do or say was an invocation of the right to remain silent); Law v. State, 21 Md.App. 13, 318 A.2d 859, 873 (1974) (wounded defendant's statement while handcuffed to a bed and being treated at hospital that he did not want to talk any more until he was further treated constituted an invocation of the right to cut off questioning); Phillips v. State, 701 S.W. 2d 875 (Tex.Crim.App.1985), cert. denied, 477 U.S. 909, 106 S. Ct. 3285, 91 L. Ed. 2d 574 (1986) (in affirming conviction for murder, court found defendant's statement that he "wanted a little time to think about the matter" to be an invocation of the right to remain silent, but that the State had scrupulously honored that right); State v. Rissler, 165 W.Va. 640, 270 S.E. 2d 778 (1980) (statement that "if I give you a statement now, I won't have no shot," which interrogating officer understood to be a statement that defendant probably did not want to make a statement, was an invocation of rights). In the present case, the question thus becomes whether defendant's request to lie down and think about what happened constituted an invocation of his right to terminate questioning.

Defendant merely communicated his desire to spend some time thinking about the events that were the subject of the interrogation. He did not ask for an attorney or refuse to sign a waiver of his rights. Similarly, he did not refuse to continue the questioning, and did not indicate in any manner that he wanted to end the interrogation. Not every break in questioning compels renewed administration of the Miranda warnings.

Otherwise, police would be obliged to administer those warnings each time a defendant requested or was offered something to eat or drink, the use of toilet facilities, the opportunity to stand and stretch, or, as here, time to lie down.

Consistent with his position at the suppression hearing, defendant testified:

Q. About 8:30 did you request to go lay down and think about what had happened?

A. Right. I wasn't saying nothing, and the question was asked me, and I said yeah. I was taken to a cell, but the question was asked me. I did go lay down. But the question was asked me. The only thing I asked for when I was in there was the phone call and cigarettes. I didn't ask for nothing else, nothing to eat or no soda or nothing.

Defendant's factual and legal posture at the suppression hearing affects both the testimony of Detective Musiello and the finding of the trial court, on which defendant now relies. Detective Musiello testified:

Q. Directing your attention to about 8:30 or so that evening, can you describe the circumstances of what happened?

A. Yes. At the request of Mr. Bey, he asked if he would be able to think about it and lay down. We told him that we would put him in the cell and come back say in an hour to pick him up and bring him back in an hour, which we did.

Q. That was Mr. Bey's request, to lay down and think about it?

A. Yes.

The court found that "[a]t 8:30 p.m. the defendant requested permission to lay down and to think about what happened. He was placed in a cell. At about 9:30 p.m. the police returned to the cell and the defendant was again asked if he wanted to contact anyone, and he replied in the negative." Perhaps because defendant did not assert at the suppression hearing that his request constituted an invocation of his right to remain silent, the trial court did not specifically address that issue. Arguably, the trial court's decision could be construed as finding that defendant had not invoked the right to remain silent. The court found both that defendant had requested to lie down and that defendant's statement was voluntary. Implicit in those findings is the conclusion that defendant had not sought the cessation of questioning. Our reading of the record, however,

leads us to believe we come closer to the truth by recognizing that the trial court did not decide the issue because the defendant did not raise it at the hearing.

Although the State bears the burden of establishing beyond a reasonable doubt the voluntariness of the confession, State v. Yough, 49 N.J. 587 (1967), defendant must at least claim that he invoked the right of silence for the trial court to adjudicate that claim. See State v. Johnson, 218 N.J. Super. 290, 303-06 (App.Div.), cert. granted and remanded summarily, 108 N.J. 674 (1987); Wharton's Criminal Procedure § 361 (1975). Here, defendant did not assert at the hearing on the motion to suppress his confession to the murder of Carol Peniston, which was held in conjunction with a motion to suppress his confession to the murder of Cheryl Alston at the outset of the trial of State v. Bey (I), 112 N.J. 45 (1988), the right that now forms the basis for the attack on his confession. Defendant's silence explains why the trial court did not explicitly address the issue. If we believed that defendant had invoked, no matter how ambiguously his right to remain silent, we would not hesitate to grant his request or to remand the matter to the trial court. Defendant's failure to assert his claim at the hearing has not, as the dissenting opinion suggests, prevented us from reviewing that claim on appeal. His failure, however, explains the absence of an express finding by the trial court. Notwithstanding the failure to address the issue at the trial level, defendant has raised the claim before us. After reviewing that claim, we find it wanting.

We are confronted with a record that has grown cold with the passage of years. Little purpose would be served by a remand at this late date, and we are obliged to decide the matter in the exercise of our original jurisdiction. R. 2:10-5. Looking at all the circumstances, the record, cold as it is, supports beyond peradventure the conclusion that this defendant did not intend to cut off questioning and remain silent. At the police station, defendant did not refuse to answer questions

about the Peniston murder. His posture in that regard stands in sharp contrast to his later refusal to discuss the murder of Cheryl Alston. As Investigator George testified at the suppression hearing on defendant's confession to the Alston murder, at the outset, defendant "indicated he did not want to talk to us about it." Bey I, supra, 112 N.J. at 53 (1988). Defendant's subsequent assertion of his constitutional right to terminate questioning about another murder does not invalidate his earlier voluntary confession to the murder of Carol Peniston.

With respect to the Peniston murder, a remand at this late date would not illuminate the record or serve any other useful purpose. We are remitted to scrutinizing the record and reviewing defendant's statement in light of the surrounding circumstances. That scrutiny leads us to conclude that only in some abstract sense apart from the facts of the case, see W. LeFave & J. Israel, Criminal Procedure § 6.9, at 531 (1984), could defendant's statement be construed as an assertion of the right to remain silent. The police did not construe defendant's request to lie down as an assertion of his right to remain silent, and we do not perceive how any reasonable police officer could have so construed that request. Defendant's Miranda hearing took place several years after the United States Supreme Court ruled that interrogating police officers should scrupulously honor a defendant's assertion of his right to silence. See Michigan v. Mosley, supra, 423 U.S. at 103-04, 96 S. Ct. at 326, 45 L. Ed. 2d at 321. As previously indicated, however, defendant did not contend at his hearing that the challenged statement was a violation of his right to remain silent. Instead, defendant denied seeking permission to lie down, and asserted instead that it was the police who asked him if he wished to "lie down and think about it." Ironically, defendant's own testimony repudiates the argument he now asserts before us. In this context, the trial court's finding that the defendant asked "to lay down and think about it" was not so much the resolution of a materially disputed issue as it was a comment leading to the

conclusion that the confession was voluntary. Only by misreading the record can our dissenting colleagues conclude that the defendant was asserting his right to remain silent.

In finding that defendant's statement cannot reasonably be construed as an invocation of his constitutional rights, we do not retreat from our prior pronouncement that "a request, 'however ambiguous,' to terminate questioning or to have counsel present must be diligently honored." State v. Hartley, supra, 103 N.J. at 263 (quoting State v. Kennedy, 97 N.J. 278 (1984)). Our conclusion reaches no further than finding that under the circumstances of this case defendant's statement did not constitute an invocation of his right to remain silent. That is how defendant and his counsel viewed the issue at the Miranda hearing, and it is how we view the issue now.

Focusing on the issues that were raised at the hearing, the trial court found: "This defendant was advised of his Miranda warnings prior to giving the statement. That he understood his Miranda warnings. That he signed the Miranda card voluntarily and that he voluntarily waived * * * his rights under Miranda." Substantial evidence in the record supports the findings of the trial court, and we decline to disturb them. R. 2:10-1; State v. Johnson, 42 N.J. 146, 162 (1964). Consequently, we hold that the trial court properly found admissible evidence of defendant's oral and written confessions.

Our dissenting colleague Justice Handler concludes that defendant's request to lie down was tantamount to the invocation of his constitutional right against self-incrimination under Miranda. Post at 205-214. Justice Handler reaches that result without reference to the enhanced standard of review he would apply to capital cases. Post at 190, 214. We find, however, even after conducting a meticulous review of the record, which Justice Handler incorporates into his enhanced standard, Bey I, supra, 112 N.J. at 92-93, that defendant did not invoke his right to remain silent.

In reaching that result, we distinguish defendant's confession in the present case, which we find to be admissible, from his confession to the Alston murder, which we have found to be inadmissible. The different results are not attributable, as the dissent in Bey I contends, to a heightened standard of review. Instead, the inadmissibility of defendant's confession to the Alston murder follows from his unambiguous assertion to the law enforcement officials that "he did not want to talk to us about it * * *." That assertion of his right not to answer questions is a far cry from defendant's posture when he confessed to the Peniston murder. In this case, he received two sets of Miranda warnings, and did not contend at the Miranda hearing that he had invoked his right to remain silent.

B. The Trial

At trial, the State produced twelve witnesses, who established generally the above-described facts. The defendant testified in the guilt phase of the trial that beginning approximately four and one-half hours before the incident and continuing until shortly before he first saw Carol Peniston, he consumed one hundred and twenty ounces of malt liquor, some straight rum, and smoked a considerable quantity of marijuana. Referring to the incident itself, he admitted to killing Ms. Peniston, but stated he did not know why he did it, and acknowledged that it never should have happened. Defendant's in-court admission was amply corroborated by his fingerprints in the victim's car, the print of his sneakers on the victim's chest, his sperm on her coat, and other evidence. He explained that he became scared when he saw Ms. Peniston looking at him as he went through her pocketbook. He struck and sexually assaulted her, but did not recall stepping on her chest. The only thing he remembered was that once Ms. Peniston saw his face, "that's when I started hitting her, it just went too far, something that shouldn't have went on." The jury returned a verdict convicting defendant of all offenses, including purposeful or knowing murder and felony murder.

C. Intoxication

Defendant contends that the trial court committed reversible error in charging the jury on the defense of intoxication. In this regard, the trial court charged:

There has been testimony in this case that indicates that [sic] the use of a drug and the consumption of alcoholic beverages by the defendant prior to the time he is alleged to have committed the murder charged. This testimony was received in evidence as bearing on the question of whether the use of drugs and the consumption of alcoholic beverages by the defendant, Marko Bey, can reduce purposeful or knowing murder to aggravated manslaughter or reckless manslaughter * * *.

If you find * * * that as a result of [alcohol and drug] consumption he was incapable of performing the mental operations that are required for murder, then the defendant could not be found guilty of murder. But the influence of liquor and/or drugs no matter how persuasive * * * is not a defense to the crime of aggravated manslaughter and, therefore, has no bearing on the guilt or innocence of the defendant for that crime.

Defendant did not object to the charge at trial, but now urges that the court failed to make clear that the jury could have found defendant guilty of manslaughter or aggravated manslaughter. His argument is that intoxication is not a defense to a crime such as manslaughter, which requires proof that defendant consciously disregarded "a substantial and justifiable risk," N.J.S.A. 2C:2-2b(3), or to aggravated manslaughter, which requires proof that the defendant caused the victim's death "under circumstances manifesting extreme indifference to human life," N.J.S.A. 2C:11-4a. In support of that argument, defendant points to State v. Warren, 104 N.J. 571 (1986), in which we ruled that "[d]efendant's conduct is to be measured by an objective standard without regard to his intoxication, and defendant is judged not in his claimed state of intoxication, but as if he were sober." Id. at 577. Warren drew upon N.J.S.A. 2C:2-8b, which states that when recklessness is an element of a crime, if intoxication renders defendant "unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial." Intoxication, however, is a defense to a crime such as capital murder, N.J.S.A. 2C:11-3a(1) and (2), which requires knowing or purposeful conduct. To

constitute a defense, the intoxication must be sufficient to render defendant incapable of such conduct. State v. Cameron, 104 N.J. 42 (1986); N.J.S.A. 2C:2-8.

As we stated in Warren,

[a] voluntary drunk may be found guilty of manslaughter, notwithstanding his unawareness 'of a risk of which he would have been aware had he been sober * * *.' N.J.S.A. 2C:2-8. Thus, the defendant who is so drunk that he cannot be found guilty of murder may still be found guilty of aggravated manslaughter or manslaughter. [104 N.J. at 577.]

The net result is that intoxication is not a defense to a crime predicated on recklessness, and a defendant who was so intoxicated that he cannot be found guilty of capital murder can still be found guilty of manslaughter or aggravated manslaughter. Accordingly, defendant argues that the charge deprived the jury of the option of finding him guilty of manslaughter or aggravated manslaughter. As indicated, defendant did not object to the charge, and State v. Warren had not been decided at the time of the trial. Consequently, the issue is raised as a matter of plain error. Although the charge might have been more explicit, the trial court stated with reference to intoxication, "[b]ut the influence of liquor and/or drugs no matter how persuasive * * * is not a defense to the crime of aggravated manslaughter and, therefore, has no bearing on the guilt or innocence of the defendant for that crime." Thus the trial court made clear that even if defendant's claimed intoxication negated knowing or purposeful murder, it had "no bearing" on defendant's culpability for aggravated manslaughter. Although the trial court did not specifically mention manslaughter, we cannot say that the charge constituted plain error. State v. Macon, 57 N.J. 325 (1971); R. 2:10-2. We do not believe that the charge "is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.

III

SENTENCING

On September 28, 1984, the trial court conducted a sentencing proceeding in which the State sought to prove two aggravating

factors. First, that the murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim, N.J.S.A. 2C:11-3c(4)(c); and second, that the murder was committed during the commission of, or an attempt to commit, or flight after committing, sexual assault or robbery, N.J.S.A. 2C:11-3c(4)(g). The State relied substantially on evidence adduced at the guilt phase of the trial, and also introduced photographs and slides to establish that the murder involved torture or an aggravated battery on Ms. Peniston.

Defendant sought to prove four mitigating factors: first, that he was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution, N.J.S.A. 2C:11-3c(5)(a); second, that he was eighteen years old at the time of the murder, N.J.S.A. 2C:11-3c(5)(c); third, that his capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law was significantly impaired as a result of intoxication, but not to a degree sufficient to constitute a defense to prosecution, N.J.S.A. 2C:11-3c(5)(d); and fourth, any other factors, including his childhood and upbringing, that would be relevant to his character or record or to the circumstances of the offense, N.J.S.A. 2C:11-3c(5)(h).

In support of those contentions, defendant presented four witnesses, the first of whom was a sociologist who testified without objection as an expert that the death penalty did not act as a deterrent to other potential murderers. In State v. Davis, 96 N.J. 611 (1984), we ruled that defendant should be given wide latitude on the introduction of testimony in support of mitigating factors. Notwithstanding that pronouncement, we fail to see the relevance of testimony directed to the deterrent effect of the death penalty. For example, the testimony does not relate "to the defendant's character or record or to the circumstances of the offense." N.J.S.A. 2C:11-3c(5). Whether or not the death penalty acts as a deterrent is both controversial and problematic. Gregg v. Georgia, 428 U.S. 153,

96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); compare T. Sellin, The Penalty of Death 132, 171-72 (1980) (comparison of homicide death rates in different states "yield[ed] no support for the belief in the deterrent power of the death penalty") with Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 American Economic Rev. 397 (1975) (concluding that there was a significant negative correlation between the probability of execution and the murder rate, thus suggesting a deterrent effect). The National Academy of Science has concluded

that there is currently no evidence for determining whether or not it does have a deterrent effect. Furthermore, we are skeptical that the death penalty, so long as it is used relatively rarely, can ever be subjected to the kind of statistical analysis that would validly establish the presence or absence of a deterrent effect. [ Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on the Crime Rate (A. Blumstein, J. Cohen, and D. Nagin 1978).]

Balancing deterrence against countervailing considerations remains, however, primarily a legislative decision. Here, the sociologist was allowed to testify without objection about the deterrent effect of the death penalty. Such testimony ordinarily is inadmissible because it diverts "the jurors' attention from the facts of the case before them." State v. Ramseur, 106 N.J. 123, 322 (1987).

Defendant's aunt testified about defendant's parents and childhood, stating that defendant was an illegitimate child whose father rejected him and whose mother, the sister of the witness, became an alcoholic and abused defendant. According to his aunt, when defendant was fourteen years old, he began to drink alcoholic beverages and use drugs. He overdosed on alcohol and marijuana, and was hospitalized twice. Defendant's mother confirmed her sister's testimony and placed the blame for her son's conduct on herself. Defendant testified on his own behalf, apologized to Ms. Peniston's family, and stated that "maybe if I never would have taken drugs it would never have happened."

At the conclusion of the sentencing phase, the court charged, in relevant part:

If you find that at least one aggravating factor has been proved and at least one mitigating factor exists, then you must weigh the value represented by the mitigating factor or factors against the value represented by each aggravating factor proved. And check on the verdict form whether in your judgment each aggravating factor is or is not outweighed by the mitigating factor or factors found to exist.

Unless each aggravating factor proved is outweighed by the mitigating factor or factors, the sentence will be death. If each aggravating factor is outweighed by the mitigating factor or factors, the sentence will be life imprisonment with a parole ineligibility term of 30 years.

The weighing process is not mechanical or numerical. If, for example, you find one aggravating factor and three mitigating factors, that does not justify an automatic answer to the weighing process required by you. The answer does depend on your careful and considered judgment as to whether the mitigating factors as you evaluate them favor the defendant to the extent that they outweigh the gravity of the aggravating factor.

Unless each aggravating factor proved is outweighed by the mitigating factor or factors, the sentence will be death. If each aggravating factor is outweighed by the mitigating factor or factors, then you must consider whether all of the aggravating factors collectively are outweighed by the mitigating factors.

You must check yes or no. Check no only if you find that the mitigating factors do not outweigh the aggravating factors. If the mitigating factors do not outweigh the aggravating factors, the sentence will be death.

Since this is a criminal case your verdict must be unanimous, all 12 jurors deliberating must agree as to the existence or non-existence of particular aggravating or mitigating factors. And you must all agree as to whether the mitigating factors outweigh the aggravating factors.

Defense counsel objected to that part of the charge that required the jury to be unanimous in finding the existence of a mitigating factor. After noting this objection, the court read the special verdict form that the jury was to use in its deliberations:

AGGRAVATING FACTORS

Do you unanimously find beyond a reasonable doubt that any of the following aggravating factors exist? (Check appropriate answer.)

1. That this murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim? Yes No

2. That this murder was committed while the defendant was engaged in the commission of or an attempt to commit sexual assault and/or robbery? Yes No

If all of the above are checked "no," proceed no further but return this verdict sheet to the Court as your verdict in the case signed by your foreperson.

MITIGATING FACTORS

Do you unanimously find that any of the following mitigating factors exist? (Check appropriate answer.)

1. That the defendant, Marko Bey, was at the time of the offense, under the influence of extreme emotional disturbance, although that disturbance was insufficient to constitute a defense to the prosecution? Yes No

2. That the defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of intoxication but not to a degree sufficient to constitute a defense to the prosecution? Yes No

3. The defendant's age at the time of the murder? He was eighteen years old. Yes No

4. Any other factor which you find relevant to the defendant's character or record or to the circumstances of the offense? Yes No

If you have checked at least one aggravating factor "yes" and have checked all of the above mitigating factors "no" proceed no further but return this verdict sheet to the Court as your verdict in the case.

If you have checked one or more aggravating factors "yes" and one or more mitigating factors "yes," then state as to each aggravating factor checked "yes" whether it is or is not outweighed by any one or more of the mitigating factors checked "yes." This decision also must be unanimous. If an aggravating factor is found and not outweighed by a mitigating factor or factors, the penalty will be death.

The jury retired at 4:22 p.m. and returned at 5:15 p.m. It found that both aggravating factors, but none of the four mitigating factors, existed. Pursuant to the trial court's instructions, the jury made no further findings. The court stated that the verdict would be that the defendant would be sentenced to death, and polled each juror to confirm the verdict.

A. Jury Selection Issues

1. Death Qualification

Preliminarily, we address several jury selection issues. Defendant contends that the death qualification process, which

required each potential juror to express his or her ability to return a death sentence prior to the guilt phase of defendant's trial, violated his right to an impartial jury as such a process results in a jury that is more "conviction-prone" than non-death qualified juries. His point is that jurors should be asked their views on capital punishment only after a murder conviction and prior to the sentencing phase. We rejected this contention in Ramseur, supra, 106 N.J. at 248-54. The Death Penalty Act (the Act) presupposes that the same jury that heard the guilt phase of the trial will hear the sentencing phase. Accordingly, "the State is entitled to insist on a properly conducted interrogation of jurors prior to the guilt phase of a capital trial to determine whether their views on capital punishment will substantially interfere with the performance of their duties as jurors [in either the guilt or penalty phase]." Id. at 254.

In his dissent, Justice Handler, post at 191-98, continues to disagree with this Court's ruling in State v. Ramseur that a death qualified jury does not intrude impermissibly on defendant's right to an impartial jury under the state and federal constitutions. We ruled in Ramseur, however, that death qualification of a jury does not violate either the federal or state constitutions. 106 N.J. at 248-54. Contrary to the dissent, we believe that the results of "ongoing social science research," post at 191, do not compel a change in constitutional interpretation on that issue.

2. "Struck Jury" System

Defendant contends that the trial court's refusal to implement a "struck jury" system for exercising peremptory challenges violated his right to a fair and impartial jury. This argument was rejected in Ramseur, supra, 106 N.J. at 239-43.

Under a struck jury system, peremptory challenges are used only when an adequate number of potential jurors have been

questioned and qualified. An "adequate" number of jurors generally means the twelve that must be empanelled, plus at least twenty to account for the defendant's peremptory challenges, and at least twelve more to account for the State's peremptories. R. 1:8-3(d). As discussed in Ramseur, supra, 106 N.J. at 241, a struck jury system enables the parties to exercise their peremptory challenges with a better perception of the total composition of the jury. Qualifying additional jurors for cause, however, raises questions about the efficiency of the struck jury system.

In Ramseur, we did not disapprove of the use of a struck jury system, but left use of such a procedure to the sound discretion of the trial courts, which are to balance the "exigencies of the judicial system with the interest of the parties in exercising informed peremptory challenges." Id. at 242. Accordingly, we find that the trial court acted within its discretion in refusing defendant's request for a struck jury system.

3. Exclusion for Cause

Defendant contends that he should have been permitted to exclude juror Kurlowicz for cause because of the juror's bias in favor of imposing the death penalty. Last year, in Ramseur, supra, 106 N.J. at 248-56, we traced the evolution of the standard for the exclusion for cause of jurors from Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), to Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980), and Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). Witherspoon held that jurors who would automatically vote against the death penalty may be excused for cause. Adams and Witt modified Witherspoon by stating "a prospective juror may be excluded for cause because of his or her views on capital punishment. That standard is whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Witt, supra, 469 U.S. at 424, 105 S. Ct. at 852, 83 L. Ed. 2d at 851-52 (quoting Adams, supra,

448 U.S. at 45, 100 S. Ct. at 2526, 65 L. Ed. 2d at 589). In adopting the Adams-Witt modification of Witherspoon as applied to the opponents of capital punishment, we observed in Ramseur that the protection accorded a defendant under the New Jersey Constitution was generally co-extensive with that under the federal Constitution. 106 N.J. at 251.

Although Witherspoon, Adams, and Witt dealt with the exclusion of opponents of the death penalty, we believe that the same standard should apply to jurors who are proponents of the death penalty. All jurors are obliged to give "a true verdict * * * according to the evidence." N.J.S.A. 2A:74-6. Jurors are equally bound to render a just and impartial verdict whether they are for or against the death penalty. Our duty to assure that a defendant is tried by an impartial jury leads us to conclude that a single test should apply to all jurors irrespective of their predilection concerning the death penalty. Accord Pope v. State, 256 Ga. 195, 345 S.E. 2d 831, 838 (1986). Recently the United States Supreme Court similarly concluded that it would be reversible error to permit jurors to sit on the penalty phase if their bias in favor of the death penalty substantially impaired their impartiality, provided the defense properly preserved the right to challenge the court's failure to remove the jurors for cause. Ross v. Oklahoma, U.S. , 108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988). In the present case, because defense counsel peremptorily excused Kurlowicz, we need not decide whether it is reversible error to permit a juror who favors the death penalty to sit on the guilt phase.

The voir dire of juror Kurlowicz reflects his inability to consider all mitigating factors and to decide impartially either defendant's guilt or punishment. Under initial questioning from the court, Kurlowicz denied both that he opposed capital punishment in all situations and that he favored it for every person convicted of murder. He acknowledged his belief that capital punishment is "justified in certain cases," but denied that his feelings about the death penalty would influence his deliberation on guilt:

Q. Even if you are in favor of the death penalty, could you still fairly and impartially consider the evidence in determining whether the defendant is guilty or not guilty of the charges.

A. Yes. Your Honor.

In response to questions from defense counsel, the juror indicated "[l]ike I say, if it's a violent crime I think a man should be put to death." Pursuing the juror's response to an earlier question, counsel asked what the juror meant by "cold-blooded murder:"

A. Like in a robbery, a hold-up.

Q. Rape?

A. Rape, yes.

Q. Is that what you mean by cold-blooded murder?

A. Could be, yes.

Q. * * * I want you to assume something. I want you to assume that you have heard all of the evidence and I want you to assume that you and the other ladies and gentlemen with you * * * have found unanimously and beyond a reasonable doubt that a defendant committed a murder during the course of robbery, rape and kidnapping, no defense to it, no defense at all * * *. In that situation when you were so convinced would you automatically then vote for the death penalty.

A. I believe I would.

Q. You would. Would you find it extremely difficult in a circumstance like that then to vote for a jail term * * *? * * * Would you say it would be very difficult?

A. It would be.

Q. Would you say it would be almost ...


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