On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
King, Gruccio and Brochin. The opinion of the court was delivered by King, P.J.A.D.
The opinion of the court was delivered by
This appeal involves the admissibility of incriminating statements made to a State prison guard by defendant while under a sentence of death. At a retrial after reversal of his capital conviction, defendant claimed that his statements to the guard while he was on death row and his case was on appeal were inadmissible because the State had violated his right to counsel. We disagree with this contention.
This appeal arises from the conviction of defendant, Marko Bey, for the aggravated sexual assault and murder of Cheryl Alston on April 2, 1983 after a retrial in Monmouth County. The Supreme Court had earlier reversed defendant's conviction and death sentence in the first trial for the same Alston murder, State v. Bey I, 112 N.J. 45, 548 A.2d 846 (1988), in part, because Bey's confession was improperly admitted.
Marko Bey was a juvenile, age 17, ten days shy of his 18th birthday, at the time of the Alston murder. After a R. 5:22-2 hearing, jurisdiction was transferred to the Law Division. Bey was indicted on July 5, 1983. The indictment charged him with the knowing or purposeful murder of Cheryl Alston on April 2, 1983 by his own conduct, contrary to N.J.S.A. 2C:11-3a(1) and (2) (count one); felony murder, contrary to N.J.S.A. 2C:11-3a(3) (count two); aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (count three); and aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(3) (count four).
The first trial had been held from November 29 to December 13, 1983 and defendant was found guilty on all counts. The sentencing phase concluded on December 15, 1983. The jury concluded that the aggravating factors outweighed the mitigating factors and imposed the death sentence. As noted, the
Supreme Court vacated defendant's death sentence on August 2, 1988 because he had been a juvenile at the time of the offense. The matter was remanded for retrial with the order that his confession to the police be suppressed. State v. Bey I, 112 N.J. 45, 548 A.2d 846 (1988). Defendant's death sentence in a separate murder case involving Carol Peniston was also vacated the same day, but the conviction was affirmed. State v. Bey II, 112 N.J. 123, 548 A.2d 887 (1988). He has since again been convicted and sentenced to death in the Peniston case. The appeal from that second Peniston murder conviction was argued in the Supreme Court on October 8, 1991 and is awaiting decision.*fn1 Counsel have advised us that the conviction in this case (Alston) was used by the State as a predicate aggravating factor in securing the capital conviction in the Peniston case.
After the reversal in the Alston case, the State conducted further investigation and discovered that defendant had confessed to two murders in early 1984 to a senior corrections officer while an inmate at the capital sentencing unit ("CSU" or "death row") at the New Jersey State Prison in Trenton. Investigators from the Monmouth County Prosecutor's Office interviewed the corrections officer, Alexander Pearson, and obtained a detailed statement of defendant's admissions allegedly concerning the Alston murder.
A pretrial hearing was held to determine the admissibility of Bey's statement to Pearson. In an order dated February 24, 1989 Judge Coogan ruled that the testimony of Officer Pearson was allowed into evidence. The Judge specifically found that defendant's statement to Pearson was voluntarily and intelligently made and was not in response to interrogation.
The retrial before Judge Ricciardi began on October 10, 1989 and continued until October 17, 1989, when the jury found defendant guilty on all counts. Judge Ricciardi sentenced defendant to life imprisonment, with a 30-year parole disqualifier on count one, murder; and to a consecutive term of 20 years, with a 10-year parole disqualifier on count four, aggravated sexual assault. A $2,000 VCCB penalty was also imposed. Counts two and three were merged. Defendant's motion for a new trial on the ground that the verdicts were against the weight of the evidence was denied.
These are the facts presented at the retrial. Cheryl Alston (Alston), a 19 year-old black woman, lived with her parents and four siblings in Asbury Park. Venderlyn Alston, Alston's mother, was with her daughter on the night of April 1, 1983. She recalled that she had picked Alston up that evening near the Grand Union, and they drove to some friends' houses before returning home at about "11:30, quarter to twelve." Mrs. Alston went into their house, located in the rear of the property, while Alston went to visit her friend "Princess" who lived a few houses away. Alston returned home about 12:30 a.m. and sat out in front of the house on a brick embankment. Mrs. Alston could see her from the window.
At about 1:30 a.m. Alston's sister Angela Alston arrived home from work. When asked about Alston, Angela Alston told her mother that she was not outside but suggested she may have gone back to "Princess'" house. Mrs. Alston looked around the neighborhood and called friends, but was unable to locate Alston. She finally went to bed sometime after 4 a.m., but awoke early. Mrs. Alston assumed Alston had come home and was in her room; however, after hearing the phone in Alston's room ring unanswered she checked and discovered she was not there. Now panicked, the Alstons spent Saturday calling friends and looking for her. On Sunday, Mrs. Alston
went to the police station and was advised that her daughter's body had been found.
Alston's body was found by a jogger early Saturday morning, April 2, 1983, in a vacant lot in Ocean Grove, Neptune Township, just west of the boardwalk. Lt. Bruce Newman of the Monmouth County Prosecutor's Office was called to the scene at 7 a.m. The area had already been secured by the Neptune police to avoid contamination of the scene. Lt. Newman described the area as a large, open flat area with compacted, gravelly soil. Abandoned bathhouses were located nearby.
The victim was lying face up in the center of the area, unclothed except for a bra tied around her neck. Lt. Newman discerned that Alston had suffered many blunt force injuries. He observed injuries to her chest with linear marks 1 to 2 inches wide, and her face was "pretty much destroyed." Her jaw appeared broken and her teeth were protruding. Due to the condition of the body, identification was impossible. Her body was later identified through dental records by her dentist, Dr. McNamara.
An autopsy was conducted by Dr. Sinha on April 2, 1983. Dr. Stanley Becker, the county medical examiner, also reviewed the records of the autopsy. The autopsy "revealed multiple blunt trauma with penetrating wounds of the left eye, nose, left side of the face and oral cavity with numerous fractures of the facial bones" and lower and upper jawbone. There was a threeinch gaping wound of the forehead causing exposure of the frontal bone of the skull, and the left eye was pushed inward. Abrasions were found around the neck, and the victim's chest revealed "horizontal linear contusions," consistent with being caused by a two-by-four piece of wood. Dr. Becker testified that in addition to the injuries to the victim's face and head, there was evidence of a fracture of the hyoid bone in the neck, consistent with a ligature from the victim's bra. He felt that "the strangulation probably produced only a loss of consciousness" and the blunt trauma to the head, chest and abdomen,
causing swelling and hemorrhage, were the main cause of death.
The police investigated the lot and surrounding bathhouses. In the lot, a three-inch depression was found in the compact soil where the victim's head was located. Blood saturated the soil for a depth of about two inches. A single set of footprints was found leading from the bathhouses to the victim's body, a distance of about 70 feet; they continued to the south side of the lot, ending at the pavement at Spray Avenue. Along the path of footprints, a two-by-four piece of wood was found which had a depression with blood and hair on it. The police believed the wood was the murder weapon since the edge dimensions of the two-by-four were comparable to Alston's linear injuries. The two-by-four was preserved and plaster casts were made of two of the most detailed footprints.
The police also examined the four bathhouses located about 70 feet from the body and at the start of the path of footprints. On a walkway between the bathhouses, the police found items of clothing later identified as the clothing Alston was wearing when last seen. Cosmetic items were also found and identified as Alston's. In another room of the bathhouse, tissues and the cover of a Saturday Evening Post magazine, with blood on it, were discovered. Her pocketbook was not found.
The defendant, Marko Bey, was arrested on May 6, 1983, about five weeks after the crime, at his mother's house in Neptune. Bey was arrested that day for his suspected involvement in the murder of Carol Peniston on about May 1, 1983. He was also a suspect in the Alston murder at this time. See State v. Bey II, 112 N.J. 123, 132, 548 A.2d 887 (1988). At the time of the defendant's arrest, the house was searched and two pairs of sneakers were seized from a common closet. Blood, saliva and hair samples were also collected from the defendant. Investigator Philip George of the Monmouth County Prosecutor's office later measured the distance from Bey's house to the crime scene. The most direct route was 1.7 miles. The crime
scene was about 1.1 miles from the victim's home. Linda Jankowski, principal forensic scientist at the New Jersey State Police Lab, did some of the advanced enzyme work on blood samples submitted by the police and oversaw the work of another forensic scientist. The forensic scientists examined blood 0 and saliva samples from Bey and Alston, as well as samples from the scene. Blood samples revealed that both the victim and the defendant had Type A blood and were "secretors."*fn2 Testing for the PGM genetic enzyme marker revealed that the victim was a 1 /1 - while the defendant was classified as a 2 /2 -. The blood stains on the two-by-four wood and the magazine cover were consistent with the victim's blood type and enzyme marker.
Oral, anal and vaginal swabs, taken from the victim, were also tested for enzyme markers. The oral swab could not be tested because of the presence of blood; the anal swab tested positive for spermatozoa but it was impossible to obtain any genetic markers from it because of contamination. The vaginal swab also was positive for spermatozoa which had a 2 /1 PGM marker, not consistent 1 with the defendant, and had come from another man. Jankowski testified that semen can be found in vaginal fluid for up to 48 hours after intercourse, although it is rare to find it more than 16 hours after. Hypothetically, she stated it would be impossible to chemically differentiate the types of two men's semen mixed in the victim's vaginal fluid if two men had left semen during that time period.
The police lab also tested a stain on the victim's jacket. The stain was composed of a combination of blood, semen and saliva. The fluids were from a blood Type A secretor with a mixture of genetic markers consisting of 1 /1 - and 2 /2 -. Jankowski determined that the stain contained four separate
"bands" of genetic markers; since each individual has two bands, she concluded that the fluids of two different persons contributed to the stain. Since semen can only come from a male, she assumed that the blood came from the victim. Assuming that the blood came from the victim, who had a 1 /1 - PGM enzyme marker, the semen would have had a 2 /2 - PGM enzyme marker, consistent with the genetic markings of the defendant. She stated that only 2.3% of the total black population, male and female, have 2 a 2 /2 - PGM marker.
The plaster casts made from the footprints found near the victim's body on the beach were compared with the sneakers taken from the defendant's home. Stephen Andrews, a principal forensic scientist in the State Police toxicology department, examined the plaster casts and the sneakers. Andrews testified that while he had no formal training in footprint comparison, he had gained on-the-job experience doing comparisons over the six years he was in the trace evidence unit. Andrews compared the Pro-Ked sneakers to the plaster imprint and was able to conclude that they were "the same size, pattern and make" sneakers. No unique cuts or wear marks were discernible from either the casts or the sneakers.
Theodore Mozer, a principal forensic chemist in the State Police Lab trace evidence unit, testified that he examined head and pubic hair samples of both the victim and the defendant, as well as the victim's clothing for possible evidence. Mozer concluded that hairs found on the victim's jacket, sweater, bra and panty hose all came from the victim's head. Pubic hair found on the victim's jacket and panties matched the victim's pubic hair samples. No hairs were found which 3 compared with the defendant. Mozer stated that about 20% of the time they find a transfer of hairs in assault and homicide cases.
The State's key witness at trial was Alexander Pearson, a corrections officer who had supervised the defendant in 1983
and 1984 when he was assigned to his wing.*fn3 Pearson initially spoke to Bey when he was assigned to the wing and explained the rules and what was expected of him. Pearson would see the defendant for about eight hours a day. They engaged in daily conversations about various subjects. He testified that they had a "man-to-man relationship," and they often spoke about "everyday life, sports, women, different things."
Early in the defendant's custodial period (late 1983 or early 1984), he and the defendant had "more than one" conversation as to why Bey was in custody. Pearson recalled 4 that defendant told him "that he had beat and raped a woman on the beach." Pearson did not recall whether Bey specified the age of the victim, the county or town in which it occurred, or whether he used his hands or a weapon. He did recall that Bey told him the victim died. Pearson said that he did not ask any questions of the defendant, he stated "I was listening. I wasn't interrogating him."
Pearson's original statement on this matter was taken by Investigator George of the Monmouth County Prosecutor's Office on September 19, 1988. Officer George had interviewed 12 or 13 corrections officers in September 1988 after the August 2, 1988 reversal of Bey's capital conviction because his confession was ruled inadmissible. State v. Bey I, supra, 112 N.J. at 53-54, 548 A.2d 846. Pearson was the last one contacted. Pearson denied that his recollection was vague, even though he was not interviewed regarding the conversation until September 1988 when he was first contacted about any conversations with Bey.
In an attempt to further corroborate defendant's statement to Pearson that he "beat and raped a woman on the beach," the State presented evidence ...