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State v. Bey

Decided: August 2, 1988.


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

For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Stein, J. Handler, J., concurring.


This case, and State v. Bey, 112 N.J. 123 (1988) (Bey II), also decided today, are both pre- Ramseur/Biegenwald capital prosecutions. We address certain trial errors in this case and hold that defendant must be retried. Additionally, since the Legislature has amended the capital punishment statute to preclude imposing the death sentence on juveniles, we conclude that capital resentencing is barred in this case. In Bey II defendant's convictions are affirmed, but principles established in Ramseur [State v. Ramseur, 106 N.J. 123] and Biegenwald [ State v. Biegenwald, 106 N.J. 13] require a new sentencing proceeding.

Defendant Marko Bey was convicted of murder, felony murder, aggravated assault, and aggravated sexual assault, and sentenced to death by a Monmouth County jury. Defendant's appeal as of right to this Court, R. 2:2-1(a)(3), challenges on both constitutional and statutory grounds the application of the death penalty statute due to his status as a minor at the time of the offense. Defendant also contests his four convictions, asserting primarily that the introduction of his confession at trial violated his fifth amendment rights, and that his state and federal constitutional rights to a fair and impartial jury were violated by the jury's potential exposure to prejudicial mid-trial publicity. We reverse defendant's convictions on both these grounds. We also conclude that the Legislature did not intend for the Code's death penalty provisions to apply to defendants who were juveniles when the crime was committed; the Attorney General agrees, although for different reasons, that defendant on retrial cannot be exposed to the death penalty. If retried and again convicted of murder, defendant can be sentenced to a term ranging from thirty years to life imprisonment

with a mandatory minimum term of thirty years. N.J.S.A. 2C:11-3b.


Early in the morning of April 2, 1983, Patrolman Kenneth Whritenour of the Neptune Police Department responded to a radio call directing him to a vacant lot adjacent to the boardwalk in Ocean Grove. Whritenour discovered the nude and battered body of a young, black female subsequently identified as Cheryl Alston. A bra was knotted loosely around the victim's neck.

Investigators from the Monmouth County Prosecutor's Office called to the scene found the victim's clothes balled up in the doorway of one of four nearby, abandoned bathhouses, along with various cosmetic items strewn about. A single trail of footprints ran from the bathhouse to the victim's body, and from the body towards Spray Avenue. A dented "two-by-four" piece of wood with blood on the end was recovered as well.

Alston had last been seen the night before when she and her mother returned to their Asbury Park home at approximately 12:45 a.m., after visiting local friends. Alston's mother had gone inside while the victim remained outside, sitting in front of the house on a concrete embankment. Shortly thereafter she disappeared.

Slightly more than a month later, on May 6, 1983, at approximately 5:15 p.m., officers from the Asbury Park and Neptune Police Departments arrested the defendant at his mother's home in Neptune for suspected involvement in another incident, the murder of Carol Peniston.*fn1 He was briefly held in the house while the police executed a search warrant, and then

transported to the Asbury Park Police Department where he was turned over to Detective John Musiello and Investigator Phillip George of the Monmouth County Prosecutor's Office. Defendant was read his Miranda rights by Musiello, and signed a "Miranda card" acknowledging that he had been so advised.

The police began questioning Bey about the Peniston matter at 5:38 p.m., and after breaks for dinner, use of the bathroom, and an hour of rest in his cell, he confessed and gave a written statement commencing at 10:55 p.m. and concluding shortly before midnight. After a second break for food, Detectives Edward Green and Robert Adams of the Neptune Police Department joined Musiello and George. Defendant was readvised of his Miranda rights and signed another "Miranda card" at 12:07 a.m. According to Green and George, defendant indicated that he understood his rights. He was informed that the officers now wished to question him about the murder of Cheryl Alston. At the pretrial Miranda hearing, and at trial, Investigator George testified that the defendant initially "indicated he did not want to talk to us about it [Alston]," and said "he didn't know anything about it." George continued to discuss the matter with defendant, and sometime after the other detectives left the room, Bey conceded he had known the victim and had seen her the night of her death. By 1:00 a.m. defendant had orally confessed to the Alston murder. After he and George were rejoined by Detectives Adams and Green, defendant gave and signed a written statement, commencing at approximately 1:15 a.m. and concluding at 2:48 a.m. Prior to taking this statement the police again read defendant his rights, and defendant signed the cover page of the statement acknowledging that he understood his rights and that he wished to waive them and give a voluntary statement.

The confession, read into the record in its entirety at trial, disclosed that defendant had met Alston three years earlier. They met again by chance, near the beach, on the night in question. Bey said he had already smoked six or seven marijuana

cigarettes that night, and had drunk at least one forty-ounce bottle of beer. After smoking another "joint" with Alston, the two agreed to have sex and walked over to the nearby row of bathhouses. The statement reads in part:

We went inside of one (1) and we both took our clothes off. She layed her jacket down and laid on top of it. Then I got my nut and I wanted to start again and she didn't. She [ sic ] we just started kissing again and I started again and she wanted to stop and she started hitting me. Then I got dressed and I had got down to the sand and I dropped her in the sand. I know I beat her but I don't remember how I did it. Then I remember running. I was going home. I ran down the street behind the Palace and then I went home. I ran down Lake Avenue in Asbury Park and I turned down Fisher and I turned on Stratford and then to Drummond Avenue. I stayed home all night.

I woke up the next morning and I heard that someone got killed. I didn't know who it was at that time. I didn't know that it was her until I saw it in the paper.

The statement also reveals Bey claimed to be "high" during the encounter and that his recollection of some details was flawed. He said he had become angry when Alston declined to have sex a second time and began to hit him, and that he did not know "the reason why [he] did it * * *."

A waiver hearing was held, as defendant was seventeen when the crime was committed,*fn2 and the Juvenile Court waived jurisdiction pursuant to N.J.S.A. 2A:4-48 (current version at N.J.S.A. 2A:4A-26) and R. 5:9-5(b) (current version at R. 5:22-2) on May 19, 1983. Bey was indicted for "knowing" or "purposeful" murder (N.J.S.A. 2C:11-3a(1), (2)), felony murder (N.J.S.A. 2C:11-3a(3)),*fn3 aggravated assault (N.J.S.A. 2C:12-1b(1)), and aggravated sexual assault (N.J.S.A. 2C:14-2a(3). The prosecutor served a "Notice of Aggravating Factors" pursuant to section c(2), notifying the defendant that if he were convicted, the State would seek the death penalty and attempt

to prove that "[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim," sec. c(4)(c), and that "[t]he offense was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing * * * sexual assault." Sec. c(4)(g). The defendant entered a plea of not guilty to all counts.

Defendant made several pretrial motions, two of which are pertinent for purposes of this appeal. One sought to bar the "death qualification" of the jury on the ground that application of the death penalty to a defendant who was a minor at the time of the crime would constitute cruel and unusual punishment, proscribed by both the New Jersey and United States Constitutions. The trial court rejected this motion, reasoning that the then-recently-enacted death penalty statute "reflected the [Legislature's] perception of the present state of public opinion, as well as society's current standard of decency." Because the statute did not expressly prohibit imposition of the death sentence for minors, but instead made the defendant's age a factor to be considered in mitigation, the court concluded that the statute's operation in the case of a minor "would be in harmony with society's evolving standard of decency" and hence not cruel and unusual.

Defendant also sought to suppress his confession based on various assertions regarding the conduct of the interrogation. He did not argue, at this point in the proceedings, that he had invoked his right to remain silent when Investigator George first began interrogating him about the Alston case. After a lengthy Miranda hearing, at which the testimony of the State's witnesses countered defendant's assertions, the court denied the motion. The court resolved the disputed factual issues adversely to Bey, and ruled that he "was advised of his Miranda warnings, that he understood those Miranda warnings and that he intelligently waived those rights, and the statement that he gave was [voluntary] with regard to the alleged murder of Cheryl Alston * * *."

The court's ruling on the admissibility of defendant's confession narrowed the range of issues for trial, as the defense was forced to concede Bey's involvement in the crime. The State sought to establish that the victim did not consent to sexual relations with the defendant at any time, and that the defendant committed purposeful and knowing murder in response to her rejection. The defense claimed there had been no sexual assault, and that the defendant's state of mind fell short of "knowingly" or "purposely" because the crime had been committed in the "heat of passion," and because the marijuana and alcohol had reduced his capacity to form such an intent. The court instructed the jury on the lesser offenses of aggravated manslaughter and "heat of passion" manslaughter, N.J.S.A. 2C:11-4, and on the defense of intoxication, but a verdict of guilty was returned on all four charged offenses, including murder and felony murder.

During the course of the trial potentially prejudicial news articles were published in the Asbury Park Press and Red Bank Register, local Monmouth County papers, and gave rise to several defense motions. Before jury selection began defendant moved for sequestration of the jury, once impaneled, in anticipation of unfavorable publicity during the trial. The court denied the motion. Jury selection began on November 29, 1983, and the trial commenced nine days later on December 8. On the afternoon of December 12, near the close of trial testimony, defense counsel produced six articles that had appeared in the local papers since the first day of jury selection. Four of these were articles covering the trial proceedings, each of which mentioned defendant's pending trial for the murder of Carol Peniston, and one of which also mentioned his prior convictions for robbery and aggravated assault. Offering these articles in support, defense counsel moved for a mistrial, or in the alternative for a voir dire of the jury to inquire into any potential exposure to the news coverage. The trial court denied both motions, based on its assumption that the jurors had complied with the cautionary instructions regarding publicity issued to

them repeatedly since they had been impaneled. The court was also concerned that the proposed voir dire threatened to excite the jurors' curiosity and might prompt them to read the articles. Subsequent sequestration motions later that day, and following the guilty verdict the next day, were also denied.

In the penalty phase, the State sought to prove the two aggravating factors cited before trial, see supra at 54-55, and the defense attempted to establish four statutory mitigating factors: "The defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution," sec. c(5)(a); "The age of the defendant at the time of the murder," sec. c(5)(c); "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," sec. c(5)(d); "Any other factor which is relevant to the defendant's character or record or to the circumstances of the offense," sec. c(5)(h). At the close of penalty-phase testimony, the court ordered sequestration of the jury "to preclude any direct or indirect communication * * * that might prejudice either the defendant or the State." The Court also denied a second mistrial motion based on prejudicial publicity appearing since the first such motion. The following day the jury returned a verdict finding both aggravating factors and three of the four mitigating factors,*fn4 and finding further that neither aggravating factor was outweighed by the mitigating factors. Accordingly, the court sentenced defendant to death.*fn5


Defendant contended in his pretrial suppression motion that (1) his waiver of Miranda rights was neither knowing nor voluntary, (2) the police had violated his right to cut off questioning when they denied his requests to speak with Edward Johnson, a friend of the family left in charge of defendant and his brother while their mother was out of town, and (3) the statements themselves were involuntary. The trial court rejected each of these arguments. The court refused to credit defendant's testimony concerning alleged requests to contact Johnson, and ruled that his waiver of Miranda rights was knowing and voluntary and that the confession itself was voluntary as well. On appeal defendant challenges the latter two rulings, and in addition contends the evidence establishes that he invoked his right to remain silent twice during the course of the Peniston and Alston interrogations -- once at 8:30 p.m., when he asked to go lie down and think about what happened, and a second time at 12:08 a.m., when he refused to discuss the Alston murder -- but that the police failed to "scrupulously honor" such right, as required by Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975). See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); State v. Hartley, 103 N.J. 252 (1986).

Defendant's arguments concerning the conduct of the police during the Peniston phase of the interrogation (roughly 5:40 p.m. until midnight) are dealt with in State v. Bey, 112 N.J. 123, 133-43 (1988) (Bey II). The trial court's findings and the record demonstrate that the police complied with the prophylactic dictates of Miranda. Defendant twice waived his right to remain silent and to have an attorney present, and defendant's

rights under Michigan v. Mosley, supra, were not violated. State v. Bey II, supra, 112 N.J. at 143.

Defendant's claims regarding the Alston phase of the interrogation, however, are another matter. After giving a written statement in the Peniston case, defendant was fed and readvised of his rights. Present were Detectives Musiello, Adams, and Green, and Investigator George. At the Miranda hearing, Investigator George described the situation and ensuing events on direct examination:

Q. Who read the [Miranda] card to Mr. Bey?

A. I did.

Q. Did Mr. Bey indicate that he understood his constitutional rights?

A. Yes, he did.

Q. Did he sign that card?

A. Yes, he did.

Q. Did you tell him at that time, what it was that you wanted to advise him about?

A. Yes.

Q. What was that?

A. The murder of Cheryl Alston in Neptune Township.

Q. Mr. Bey indicated he [would talk] to you about that crime?

A. Yes, he did.

Q. Did he indicate at that time any involvement in that offense?

A. Yes, he did.

Q. Initially when you spoke to him, this is 12:07, 12:08?

A. Yes.

Q. You spoke to him at this time, indicated he would speak to you about it. Who was in the room?

A. Initially at 12:08, 12:07, when we advised him of his rights, Detective Green and Detective Adams from Neptune and myself were in the room. We advised him that we wanted to speak to him about the murder of Cheryl Alston. At that time, he indicated he did not want to talk to us about it at 12:08

Q. He indicated he didn't know anything about it?

A. That is correct.

Q. What was he doing? Was he just there? Was he eating or doing anything at that time?

A. He was smoking continually throughout our whole conversation. He might have been having a soda and finishing his sandwich. I don't recall.

Q. Was there a time when everybody left the room other than you and Mr. Bey?

A. Yes.

Q. What time was that?

A. About 10 or 12 minutes after our initial advising of the rights.

Q. Did there come a time when he indicated to you his involvement in the murder of Cheryl Alston?

A. Yes.

Q. When was that?

A. Approximately 12:55 he indicated to me his involvement of the homicide of Cheryl Alston.

Q. Had you been talking to him in the preceding moments, or what brought this about?

A. He indicated he had known Cheryl and talking about his involvement with Cheryl previously, and he told me how he walked up to the boardwalk and saw her there. At that point, we started talking about her death.

Q. Prior to this, he had admitted that he knew Miss Alston and he had seen her that night?

A. Yes.

Also testifying at the Miranda hearing were Detective Green and the defendant, who more or less corroborated George's version of the significant events. Green testified he was present when defendant was read his rights and signed the acknowledgment. Continuing, he testified:

Q. Was Mr. Bey at that time questioned about the death of Cheryl Alston?

A. Yes, sir.

Q. Did he indicate at that time any involvement in that crime?

A. No, sir, he did not.

Q. Did there come a time when you left that office?

A. Yes.

Q. Who remained in the office with Mr. Bey?

A. Investigator George.

The defendant testified as follows:

Q. Any other conversation with the police about giving the statement?

A. I don't know if you would call it a conversation, but you mean before it was given?

Q. Before it was given.

A. The Prosecutor, Philip George, said we already know the answers to the questions before we ask them. So why don't you come on and tell us what we want to know.

Q. What did you say to that?

A. I didn't say nothing. That is when Green started talking about Mr. Johnson.

Q. At a time when Green is back.

A. Yes.

Q. Okay.

A. I wasn't saying nothing. I was just sitting there crying or whatever I was doing. They was asking me questions. I wasn't saying nothing. I was just saying my phone call, and Green, you know, after I said Mr. Johnson's name, he said that he had talked to him when he was at the house and when he had talked to him on the phone. That I would be able to talk to him after everything was over.

Q. Did you have any conversation before that with Detective George just before you gave the statement?

A. No.

Q. What about Detective Adams?

A. Which one was Detective Adams?

Q. The third one that was present when the statement was taken.

A. Neptune Police? No.

Investigator George confirmed his pretrial narrative of events on direct examination at trial:

Q. Did you initially begin to question Mr. Bey at that time about the death of Cheryl Alston?

A. Yes, I did.

Q. And what, if anything, did he say?

A. When we initially -- myself and Detective Green -- asked him if he knew anything about Cheryl Alston's death, he did not want to discuss it.

Q. Did there come a time when the other officers left the room?

A. Yes.

Q. And who were the officers who left the room?

A. Detective Green and Detective Adams of the Asbury -- excuse me -- the Neptune Township Police Department.

Q. And approximately what time would you say that it was that he ...

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