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State v. Bey

Decided: June 30, 1994.

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



On Proportionality Review of a Sentence of Death of the Superior Court, Law Division, Monmouth County.

Pollock, Wilentz, Clifford, O'Hern, Garibaldi, Stein, Handler

Pollock

The opinion of the court was delivered by

POLLOCK, J.

In unrelated incidents, defendant, Marko Bey, sexually assaulted and murdered two women. Separate juries sentenced defendant to death for each of the murders. Initially we vacated both death sentences. In State v. Bey, 112 N.J. 45 (1988) (Bey I), which involved the murder of Cheryl Alston, we reversed the murder conviction and held that defendant was not death eligible because he was under the age of eighteen at the time of the murder. On remand, a jury found defendant guilty of purposeful murder and aggravated sexual assault. The trial court sentenced him to an aggregate sentence of life imprisonment plus twenty years, with no parole eligibility for forty years. In State v. Bey, 112 N.J. 123 (1988) (Bey II), decided the same day as Bey I, we affirmed defendant's conviction for the murder of Carol Peniston. Because of an incorrect jury charge, however, we reversed the death sentence and remanded the matter for re-sentencing. Once again, the jury returned a death sentence for the Peniston murder, which we affirmed in State v. Bey, 129 N.J. 557 (1992) (Bey III). In Bey III, we deferred proportionality review of that sentence pending receipt of a more complete record. We now find no disproportionality in the imposition of the death sentence for defendant's second murder.

TABLE OF CONTENTS

I. Facts

II. Proportionality Review

A. The Universe of Cases

B. Method of Classifying Cases

III. Comparison of Cases

A. The Frequency Approach

1. The Salient-Factors Test

2. The Numerical-Preponderance-of-Aggravating-and-Mitigating-Factors Test

3. The Index-of-Outcomes Test

B. The Precedent-Seeking Approach

1. Relevant Factors

2. Comparison of Marko Bey's Case to Similar Cases

a. The Cases

b. The Comparison

3. Other Cases

IV. Race as an Impermissible Factor

V. Conclusion

-I-

FACTS

The facts surrounding the murder of Carol Peniston are set forth in Bey II, supra, 112 N.J. at 131-33, and Bey III, supra, 129 N.J. at 568-69. We therefore include only a brief summary.

On April 26, 1983, around 9:20 p.m., Carol Peniston left Neptune High School, where she had attended a computer course, and had driven away in her car. Approximately four hours later, the car was involved in a one-car accident in Newark. Defendant's fingerprints were on the rearview mirror. Ms. Peniston, who had been divorced and lived alone, neither returned to her apartment nor reported to work the next day.

On May 3, Asbury Park police discovered Ms. Peniston's body in a shed near an industrial building. An autopsy performed on May 4 disclosed that she 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, the Monmouth County medical examiner concluded that Ms. Peniston's assailant had stomped on her chest. The ultimate cause of her death, however, was ligature strangulation. Subsequent police investigation revealed that the characteristics of spermatozoa found on the victim's coat were consistent with those of defendant's saliva, and that defendant's sneakers bore an imprint that was similar to the impression on the victim's chest.

On May 6, defendant, who had turned eighteen only three weeks earlier, was arrested for receiving stolen property, Ms. Peniston's car. After five hours in police custody, defendant confessed to the murder.

Defendant then gave a written statement, in which he admitted that he had accosted Ms. Peniston in front of her apartment building and demanded money from her. The statement continued that when defendant 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 had an accident and abandoned the car.

A jury convicted defendant of capital murder and sentenced him to death. The sentence followed from the jury's finding of two aggravating factors: the murder had "involved torture, depravity of mind, or an aggravated assault to the victim," N.J.S.A. 2C:11-3c(4)(c) (the c(4)(c) factor), and it had been committed in the course of a felony, N.J.S.A. 2C:11-3c(4)(g) (the c(4)(g) factor). The jury found no mitigating factors. We affirmed the conviction, but reversed the death sentence, primarily because the court had incorrectly charged the jury on the mitigating factors. Bey II, supra, 112 N.J. at 156-64, 166-71.

On the same day that we reversed and remanded Bey's death sentence for the murder of Carol Peniston, we also vacated his conviction and death sentence for the prior murder and sexual assault of Cheryl Alston. Bey I, supra, 112 N.J. at 51. In that decision, we held that defendant was not death eligible because he had committed the Alston murder before reaching the age of eighteen. Ibid. On re-trial for the Alston murder, the jury found defendant guilty of purposeful murder and aggravated sexual assault. He received an aggregate sentence of life imprisonment plus twenty years, with forty years of parole ineligibility. The Appellate Division affirmed the conviction, 258 N.J. Super. 451, and we denied certification, 130 N.J. 19 (1992).

At the re-sentencing trial for the Peniston murder, the State proffered two aggravating factors: defendant previously had been convicted of a murder, that of Cheryl Alston, N.J.S.A. 2C:11-3c(4)(a) (the c(4)(a) factor), and the Peniston murder had occurred during a sexual assault and robbery, the c(4)(g) factor. Defendant did not contest these aggravating factors, but argued that four mitigating factors outweighed them: "defendant was under the influence of extreme mental or emotional disturbance," N.J.S.A. 2C:11-3c(5)(a) (the c(5)(a) factor); defendant's age at the time of the murder, N.J.S.A. 2C:22-3c(5)(c) (the c(5)(c) factor); "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 mental disease or defect or intoxication," N.J.S.A. 2C:11-3c(5)(d) (the c(5)(d) factor); and the catch-all factor -- "any other factor which is relevant to the defendant's character or record or the circumstances of the offense," N.J.S.A. 2C:11-3c(5)(h) (the c(5)(h) factor).

The jury unanimously found both aggravating factors. Two jurors found extreme mental or emotional disturbance, c(5)(a), and six jurors found the catch-all factor, c(5)(h). None of the jurors found that either defendant's age, c(5)(c), or the significant impairment of his moral faculties, c(5)(d), was a mitigating factor. Furthermore, the jury found beyond a reasonable doubt that the two aggravating factors outweighed the two mitigating factors. Consequently, the court sentenced defendant to death. Bey III, supra, 129 N.J. at 576.

-II-

PROPORTIONALITY REVIEW

N.J.S.A. 2C:11-3e, a section of the Capital Punishment Act (the Act), requires a proportionality review on a defendant's request to determine whether the death sentence, considering both the crime and the defendant, is disproportionate to the penalty imposed in similar cases. L. 1985, c. 478. In general, the death penalty must be imposed fairly and with reasonable consistency. The test of disproportionality is that "'[A] death sentence is comparatively excessive if other defendants with similar characteristics generally receive sentences other than death for committing factually similar offenses in the same jurisdiction.'" State v. Marshall, 130 N.J. 109, 131 (1992) (citing Tichnell v. State, 468 A.2d 1, 17 n.18 (Md. 1983)). Thus, a death sentence is valid unless the defendant establishes that similar defendants who commit factually-similar offenses generally receive sentences other than death.

Before reviewing the proportionality of defendant's sentence, we first must answer preliminary questions regarding the universe of cases and the method of classifying those cases.

-A-

THE UNIVERSE OF CASES

In Marshall, we defined the relevant universe of cases. 130 N.J. at 137. Preliminarily, we must decide whether to follow the May 12, 1992, amendment to the Act, which limits proportionality review to a comparison of similar cases in which the sentence of death actually has been imposed, L. 1992, c. 5, or whether we should continue to consider all cases that are death eligible, including those cases in which the State did not seek the death penalty.

Although the amendment was designed to take effect immediately, the Legislature did not indicate whether it should apply to pending appeals. If we were to apply the amendment to pending appeals, we would be obligated to consider whether it is unconstitutional as an ex post facto law. We decided in Marshall that because of the long pendency of that appeal, we would review the sentence under the prior law. 130 N.J. at 119. Because we rejected Marshall's proportionality challenge under the prior law, the amendment would not have affected the outcome in that case. Ibid. We come to the same Conclusions here.

Defendant murdered Ms. Peniston on April 26, 1983, sixteen months before the murder of Robert Marshall's wife. Defendant's appeal has been pending since his initial death sentence on September 28, 1984, more than eight years before the effective date of the amendment. As in Marshall, we reject defendant's proportionality challenge under the old law. For these reasons, we decline to address the constitutionality of the amendment. We shall apply the statute in its pre-amendment form. Thus, as in Marshall, the relevant universe of cases consists of those that are death eligible, even if they were not prosecuted as capital cases.

Marshall summarizes the procedure for identifying the universe of cases. Id. at 137-41. Since the Marshall decision, the Administrative Office of the Courts (AOC) has assumed the responsibility from Special Master David C. Baldus for maintaining the data base of cases. In compiling the statistics, the AOC has followed the Special Master's procedure, as modified by our opinion in Marshall. The universe of cases for Bey consists of 266 death-eligible homicides committed from 1983 to 1992, 117 of which proceeded to the penalty phase. After oral argument, we granted defendant's motion to supplement the record with data that had been compiled since March 25, 1993, the date of the last revision of the appendices and tables for Bey's proportionality review (the Bey Report). This information, which constitutes the universe of cases compiled through June 25, 1993, for the pending proportionality review of John Martini (the Martini Report), increases the relevant universe of cases to 298 death-eligible offenses, 125 of which proceeded to the penalty-trial phase. Our consideration of these data in this case will not affect any argument proffered by Martini in his proportionality review.

-B-

METHOD OF CLASSIFYING CASES

Having determined the universe of cases, we next convert that universe into the data base for comparison purposes. In Marshall, we analyzed the cases in two ways. The first method followed an a priori, or clinical, approach, in which we analyzed the cases according to features that experience has shown probably influenced the life/death decision. Id. at 141-42, 144. The second approach was an empirical one: we analyzed the cases according to characteristics that best explained the sentence actually imposed. Id. at 142-43, 144. Following the Special Master's methods, we "[took] advantage of the available data to sort out the cases on the basis of the characteristics that both prosecutors in the charging process and juries in the deliberative process deem most relevant." Id. at 143.

The coding of variables in the companion cases continues to be a source of contention between the Public Defender and the Attorney General. In Marshall, we recognized their differences and urged them to cooperate in developing a data base. Id. at 216-18. Since then, the AOC has conducted meetings to resolve issues concerning the standards for each coded characteristic. Many issues have been resolved, and the characteristics have been reduced to statistical codes. We recognize, however, that the codes inevitably incorporate subjective determinations. Implicit in the seemingly-objective review of statistics lies an unavoidably-subjective view of deathworthiness.

Remaining are some issues first raised in Marshall and raised again here. One issue questions the reliability of the coding of the thirty-four cases that remain coded as death-sentenced although reversed for various errors, such as improper jury instructions. Specifically, defendant identifies errors in all seven of the cases involving prior murder convictions (State v. Biegenwald, 106 N.J. 13, 53 (1987) (Biegenwald IA); State v. Biegenwald, 126 N.J. 1, 8 (1991) (Biegenwald IB); State v. Coyle, 119 N.J. 194, 218-20, 220-21, 229-32 (1990); State v. Erazo, 126 N.J. 112, 128 (1991); State v. Pennington, 119 N.J. 547, 565 (1990); State v. Purnell, 126 N.J. 518, 523 (1991); and State v. Ramseur, 106 N.J. 123, 312-13 (1987)). On remand, these cases either were not pursued to the penalty-trial phase or resulted in life sentences. Defendant argues that the initial death sentences in these cases, therefore, are not proper indicators of deathworthiness.

If we exclude these seven prior-murder-conviction cases from the pool of death-sentenced cases, Bey would remain as the only prior murderer whose death sentence we affirmed. That fact alone would not compel a finding that Bey's death sentence is disproportionate. In Marshall, we faced a similar situation. We stated that "simply because Marshall may be the first [contract-killer to receive an affirmed death sentence] does not mean that his death will be disproportionate under our statute." 130 N.J. at 166. After reviewing the frequency data in Marshall, we concluded that "'although lesser sentences than death are frequently imposed in domestic murder cases, it does not follow that the death penalty would not be authorized for the murder of one spouse by another under any circumstances.'" Id. at 174 (quoting Tyler v. State, 274 S.E.2d 549, 555 (Ga. 1981)). The circumstances in Marshall were that the defendant hired another to kill his wife so that he could collect life-insurance benefits on her life. "The data showed that among those for whom death is a fitting punishment, contract killers, whether principal or agent, are among the more frequent recipients of the death sentence." Id. at 166-67. Similarly, if Bey were to remain as the only defendant who had been previously convicted of murder and whose death sentence was affirmed, that sentence need not be disproportionate.

Furthermore, we decline to follow defendant's suggestion to re-code as life-sentenced cases those death-sentenced cases in which the sentence was reversed. The AOC continues to code these cases as death-sentenced cases. In Marshall, we stated that "we believe, . . . as does the [Special] Master, that the original penalty trials, although reversed for various reasons, most often for the burden-of-proof and Gerald issues, have reflected juror values of deathworthiness in terms of deterrent effect." Id. at 194 n.10. The phrase "Gerald issues" derives from our holding in State v. Gerald "that a defendant who is convicted of purposely or knowingly causing 'serious bodily injury resulting in death' . . . as opposed to one who is convicted of purposely or knowingly causing death . . . may not be subjected to the death penalty." 113 N.J. 40, 69 (1988). Marshall recognized that such issues pertaining to procedural fairness, as distinguished from those that affect the substance of the crime, do not necessarily bear on the jury's determination of deathworthiness. 130 N.J. at 169 n.5, 194 n.10.

For example, in defendant's first trial for the sexual assault and murder of Cheryl Alston, the jury returned a sentence of death. We reversed because of a statutory mandate, L. 1985, c. 478 (codified at N.J.S.A. 2C:11-3g), that a defendant younger than eighteen-years old could not receive a capital sentence. Bey I, supra, 112 N.J. at 95-105, Consequently, Bey, who was only ten days short of his eighteenth birthday when he sexually assaulted and murdered Cheryl Alston, received a life sentence. Our reversal, however, does not detract from the initial jury's view that defendant deserved the death penalty for the Alston murder. Defendant does not explain why some errors that have caused us to reverse a death sentence necessarily reflect on the jury's ability to assess a defendant's deathworthiness. In the absence of an acceptable explanation, we continue to believe that a death sentence, even when reversed, represents a societal consensus concerning the deathworthiness of a defendant.

Moreover, the reasons for the State's failure to pursue capital sentencing a second time or for the imposition of a life sentence at a second penalty-phase trial are varied and indeterminable. We cannot conclude that in any given case a life sentence resulted from the view that the defendant was not initially deathworthy, rather than, for example, from the strength of the prosecutor's case, including the availability of witnesses, or the adequacy of the State's resources.

We therefore treat as death-sentenced a case that initially resulted in a death sentence but that was reversed. As we stated in Marshall, "we have been candid to acknowledge that there is no scientific infallibility in the frequency data that we cite." 130 N.J. at 169 n.5. Indeed, as stated above, all coding decisions necessarily rely on subjective determinations of deathworthiness that may not be completely accurate representations of death-sentencing decisions of jurors or prosecutors. Supra at (slip op. at 11). We rely, as we did in Marshall, on "what we know," 30 N.J. at 169 n.5; of the 117 death-eligible cases proceeding to the penalty phase, thirty-four cases received the death penalty.

Our Dissenting colleague urges, post at (slip op. at 10), as he did in Marshall, 130 N.J. at 249, 253-57 (Handler, J., Dissenting), that reversed cases are not valid indicators of deathworthiness. We continue to believe, however, as we did in Marshall, that cases in which prosecutors seek and juries impose the death penalty reflect the conscience of the community on the propriety of the imposition of that penalty. A reversal does not necessarily erase "the complex nature of the jury's deliberation in the penalty-phase." Post at (slip op. at 27). We acknowledge that a reversed death penalty is a less persuasive indicator of deathworthiness than one that is affirmed, but we continue to believe that even reversed death sentences are sufficiently valid indicators to remain for statistical purposes in the pool of death-sentenced cases.

We disagree also with our colleague's suggestion, based on a recommendation of the Special Master, that we should adopt "a rebuttable presumption that reversed death sentences are invalid determinations of deathworthiness." Post at (slip op. at 13). The suggestion is reminiscent of his statement in his Marshall Dissent, "I believe that a death sentence is disproportionate unless defendants with similar characteristics generally receive death sentences for committing factually similar offenses." 130 N.J. at 248. Implicit in both statements is the proposition that the State bears the burden of establishing the proportionality of a death sentence. We believe, however, that once this Court has sustained a death sentence on direct appeal, the defendant should bear the burden of proving disproportionality. Indeed, the language of the Act indicates that the Legislature intended that the defendant should bear that burden. N.J.S.A. 2C:11-3e provides that "the Supreme Court shall determine whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." The use of the word "disproportionate," rather than "proportionate," signifies the legislative intention that we should search not for proof that a defendant's death sentence is perfectly symmetrical with other death sentences, but for proof that the sentence is an outlier.

Consistent with the Dissent's underlying premise that no defendant should ever receive the death penalty, the Dissent argues that no defendant should be the first to die. Hence, the Dissent attacks as "hypothetical" our Conclusion that even if we were to exclude reversed death-sentenced cases, leaving Bey as "the only prior murderer finally sentenced to death," his death sentence would not be disproportionate. Post at (slip op. at 14). As we said in Marshall, in which our Dissenting colleague raised the same argument, 130 N.J. at 267-68, simply because a defendant "may be the first does not mean that his death will be disproportionate under our statute," id. at 166. The grim fact is that some defendant must be the first to receive the death penalty.

-III-

COMPARISON OF CASES

After the Court has determined the universe of cases and the criteria for coding those cases, the third step of proportionality review is to group cases according to similarities relevant to the determination of deathworthiness. In Marshall, we selected measures of blameworthiness, or culpability, based on our consideration of both statutory aggravating and mitigating factors and nonstatutory factors based on "objectively-verified measures of blameworthiness." Id. at 145.

We then evaluated these factors in two ways: the frequency analysis and the precedent-seeking analysis. The frequency analysis computes the frequency of death sentences within a pool of similar cases. It depends on a statistical analysis that measures the societal consensus that death is the appropriate penalty in the measured cases. See David C. Baldus, Death Penalty Proportionality Review Project, Final Report to the New Jersey Supreme Court 27 (Sept. 24, 1991) (Final Report). The precedent-seeking analysis is more intuitive, comparing a defendant's deathworthiness with that of defendants in factually-similar cases. Id. at 30-31. Combining these two analyses helps to ensure the reliability of our evaluation of the proportionality of a defendant's death sentence. The pool of cases remains small. As that pool expands, we can rely more heavily on the frequency analysis. For the time being, we are forced to rely more heavily on the precedent-seeking analysis.

-A-

THE FREQUENCY APPROACH

The frequency analysis consists of three different methods of assessing criminal culpability: the salient-factors test, the numerical-preponderance-of-aggravating-and-mitigating-factors test, and the index-of-outcomes test. Marshall, supra, 130 N.J. at 154. These tests are statistical analyses that assess the criminal culpability of a defendant when compared to other defendants. Because the frequency approach is a form of statistical analysis, our Discussion is necessarily steeped in the underlying data.

Generally speaking, statistical results become more reliable as the data sample increases and the correlation grows between two variables. In Marshall we stated that "the higher the frequency of a death sentence among the comparison group of 'similar cases,' the more certain the determination that the sentence is proportionate. The lower the frequency, the more strictly the Court must scrutinize the case for the possible influence of impermissible factors." Id. at 153. As a general rule, "'[a] death sentence is comparatively excessive if other defendants with similar characteristics generally receive sentences other than death for committing factually similar offenses in the same jurisdiction." Id. at 153-54 (quoting Tichnell, supra, 468 A.2d at 17 n.18). "Generally," however, does not require a threshold rate over fifty percent. Id. at 152-54, 167. Even if the frequency were less than fifty percent, it could serve as evidence of reliability of the sentence, particularly if confirmed by the precedent-seeking analysis. Id. at 154, 167.

As in Marshall, 130 N.J. at 265-67, Justice Handler urges, post at (slip op. at 17), that we set a more specific standard in the frequency analysis than that of general comparability with other death sentences. A general standard, although admittedly imprecise, is not necessarily arbitrary. Indeed, a standard that applies generally is the antithesis of one that applies arbitrarily. Hence, as in Marshall, 130 N.J. at 152-54, we decline to define more specifically the standard for defining an acceptable frequency for the imposition of the death penalty.

Proportionality review seeks to determine only whether a particular death sentence is aberrational, not whether it compares perfectly with other sentences. Id. at 131. Not every statistical disparity establishes disproportionality. After conducting all three tests, we conclude that defendant's death sentence is neither random nor aberrational.

At first glance, defendant's death sentence might seem disproportionate. In the Bey Report, forty-four percent (117/266) of the death-eligible cases in the universe proceeded to the penalty-trial phase, but only twenty-nine percent (34/117) of those cases resulted in a death sentence. When the Martini data are added, the ratios remain approximately the same: forty-two percent (125/298) of the death-eligible cases proceeded to the penalty phase and thirty percent (38/125) of those cases resulted in a death sentence.

The more significant basis of comparison is not all death-sentenced cases, but only those with similar characteristics relevant to the sentencing decision between life and death. Marshall, for example, was the only defendant sentenced to death whose death sentence was affirmed among all 227 death-eligible cases and 113 penalty-trial cases as of September 24, 1991. 130 N.J. at 166. Yet, we found his death sentence not to be disproportionate. Id. at 174. Marshall's status as one who hired a contract-killer put him in a category of cases with defendants who more likely than not received a death sentence. Id. at 166-67. So here, the data show that of all deathworthy defendants those, like defendant, with a prior murder conviction, more frequently receive the death penalty.

Preliminarily, defendant urges that we should not include him in the study because to do so would be to compare his case to himself. In Marshall, we recognized good reasons for both including and excluding a defendant's case from review. Thus, we decided to review the statistics under both alternatives. Id. at 167-68. Here, we use the same approach.

1. THE SALIENT-FACTORS TEST

The salient-factors test, which compares sentences in cases that are factually similar, is the most persuasive test. Id. at 168. Its methodology is simple: the test measures the frequency of death sentences in similar cases. Ibid. In Bey's case, the most salient factor is that he had been convicted of a prior murder. We believe that prosecutors and juries would find a previously-convicted murderer to be more blameworthy than a first-time offender.

Among the seventeen cases in the Bey Report in which defendants had been convicted of a prior murder, seventy-five percent (9/12) of these defendants reaching the penalty-trial phase received the death penalty, and fifty-three percent (9/17) of all death-eligible defendants received the death penalty. The figures are:

Penalty Trial Death Eligible

Including Bey .75 (9/12) .53 (9/17)

Excluding Bey .73 (8/11) .50 (8/16)

The Martini Report, which compiles data for John Martini's proportionality review, adds three death-eligible cases, all of which proceeded to the penalty phase. When these additional cases are considered, the ratios remain high: including Bey, sixty percent (9/15) of the defendants with a prior murder conviction who reached the penalty phase received the death penalty, and forty-five percent (9/20) of all such defendants who were death eligible received the death penalty.

The death-sentencing rate for defendants with prior murder convictions in both the Bey Report and the Martini Report exceeds the death-sentencing rate for contract-killer principals such as Marshall. Id. at 168. In Marshall, we found significant a thirty-three-percent death-sentencing rate among penalty-trial cases and a twenty-five-percent death-sentencing rate among death-eligible cases. Id. at 169. By comparison, the death-sentencing rate for cases most similar to defendant's case illustrates a higher correlation between a prior murder conviction and a death sentence.

These figures illustrate an even-higher correlation when the pool is narrowed to include cases more factually comparable to defendant's case. A significant factor in Bey's case is that in addition to being a two-time murderer, Bey committed his second murder during a sexual assault. prosecutors and juries regard as highly blameworthy those defendants who have a prior murder conviction and whose current case involves either one additional aggravating circumstance or particular violence or terror (the violence/terror factor). In thirteen cases in the Bey Report involving defendants who had been convicted of a prior murder, juries found one additional aggravating circumstance or the violence/terror factor. Among those cases, one-hundred percent (8/8) reaching the penalty-trial phase resulted in the death penalty, and sixty-two percent (8/13) of all death-eligible cases resulted in the death penalty. The figures are:

Penalty Trial Death Eligible

Including Bey 1.0 (8/8) .62 (8/13)

Excluding Bey 1.0 (7/7) .58 (7/12)

Again, these ratios remain high when we consider the relevant data from the Martini Report: eighty-nine percent (8/9) of all cases reaching the penalty phase, and fifty-seven percent (8/14) of all death-eligible cases in this category resulted in a death sentence.

Defendant disputes the validity of these results on several grounds. First, he argues that the cases most similar to his are not reliable indicators of deathworthiness because the sentences in those cases are fraught with procedural and other errors. The argument proceeds that if these questionable cases were excluded from the pool of death-sentenced cases and instead were coded as life-sentenced cases, the death-sentencing rate would be much lower. For reasons set forth above, however, supra at (slip op. at 11-16), we shall continue to include them. Consequently, we shall continue to treat as death-sentenced cases those cases in which we have reversed the death sentence. Therefore, the cases that initially resulted in a death sentence should remain in the pool of factually-comparable cases. Marshall, supra, 130 N.J. at 169 n.5, 194 n.10.

Second, defendant argues that his death sentence suffers from several procedural errors that affected the verdict. Generally speaking, the errors concerned jury selection and the admission of evidence. These "distorting factors," defendant alleges, "inflated the frequency leading to" his death sentence. In Bey III, however, this Court held that it was "extremely unlikely [that the errors] had the capacity materially to affect the jury's deliberations or produce an unjust result." 129 N.J. at 616. For this reason, we believe that these "errors" do not impugn defendant's death sentence.

Third, defendant asserts that other categories of factually-comparable cases do not demonstrate a high rate of death sentences In particular, defendant points to the results of the sexual-assault and robbery cases. The sexual-assault pool in the Bey Report consists of thirty-five cases, none of which involved a prior murder conviction. The death-sentencing rate for the eighteen cases reaching the penalty-trial phase is twenty-eight percent (5/18), and fourteen percent (5/35) for all thirty-five death-eligible cases in the pool. If the analysis were limited, as defendant contends, to cases with the violence/terror factor, the death-sentencing rate increases slightly to thirty-six percent (5/14) of the penalty-trial cases and nineteen percent (5/26) of the death-eligible cases resulting in the death penalty. The figures are:

Penalty Trial Death Eligible

Sexual assault including Bey .32 (6/19) .17 (6/36)

Sexual assault excluding Bey .28 (5/18) .14 (5/35)

With violence including Bey .40 (6/15) .22 (6/27)

With violence excluding Bey .36 (5/14) .19 (5/26)

When the Martini data are added, the ratios remain approximately the same: including Bey, sixteen percent (7/44) of all death-eligible sexual-assault cases received a death sentence, and thirty-five percent (7/20) of these cases proceeding to the penalty phase received the death sentence. When we narrow our focus to sexual-assault cases exhibiting the violence/terror factor, twenty-one percent (7/34) of all death-eligible cases and forty-four percent (7/16) of penalty-trial cases, including Bey, received a death sentence.

The robbery pool includes ninety cases. Like the cases in the sexual-assault pool, none of these cases involved a prior murder conviction. Consequently, the robbery pool does not include Bey. Thirty of the robbery-pool cases proceeded to the penalty phase. Among those cases, twenty percent (6/30) resulted in the death penalty; only seven percent (6/90) of all death-eligible cases in this category received the death penalty. As with the sexual-assault pool, the sub-group of cases in this category exhibiting the violence/terror factor does not significantly increase the death-sentencing rates for robberies. Of the thirty-four cases in this smaller pool, thirty-one percent (4/13) of the penalty-trial cases and twelve percent (4/34) of all death-eligible cases resulted in a death sentence. The figures are:

Penalty Trial Death Eligible

Robbery including Bey .23 (7/31) .08 (7/91)

Robbery excluding Bey .20 (6/30) .07 (6/90)

With violence including Bey .36 (5/14) .14 (5/35)

With violence excluding Bey .31 (4/13) .12 (4/34)

The Martini data do not significantly change the death-sentencing rate. Excluding Bey - because of his prior murder conviction - twenty-one percent (7/33) of all robbery cases that proceeded to the penalty-trial phase and seven percent (7/100) of all such cases, including death-eligible defendants, resulted in the death penalty.

Although we agree with defendant that the death-sentencing rates in the sexual-assault pool and the robbery pool are lower than the rate in the prior-murder-conviction pool, the difference is meaningless. Both these categories as defined in the Bey and Martini Reports exclude cases with prior murder convictions. Because Bey was convicted of the prior murder of Cheryl Alston, his case is not even included in the categories of cases in which defendants have committed only a sexual assault or robbery. As demonstrated above, a prior murder conviction is one of the most significant indicia of blameworthiness. In both Bey and Martini, sixty-four percent (9/14) of all death-eligible cases having two aggravating factors, one of which is a prior murder conviction, resulted in a death sentence. Therefore, to compare defendant's case to cases involving a sexual assault or robbery, but not involving a prior murder conviction, is to disregard one of the most influential elements in death sentencing -- the prior murder conviction.

As outlined above, moreover, a smaller pool of cases accounts for defendants with prior murder convictions whose crimes exhibit one additional aggravating factor or the violence/terror factor, such as murder during the course of a sexual assault or robbery. Cases with both characteristics are most like Bey's case. Neither the Bey Report nor the Martini Report indicates in which of these cases the additional aggravating factor was a sexual assault or robbery, or both. Prosecutors, however, frequently seek the death penalty when prosecuting murders involving sexual assaults. Final Report, supra, at 81. We believe, therefore, that a jury would deem as highly blameworthy convicted prior murderers who commit a sexual assault in conjunction with a subsequent murder.

Under the salient-factors measure, the data do not show that defendants similar to Bey generally receive a sentence other than death. To the contrary, the data demonstrate that defendants like Bey, who have killed before and who kill again during a sexual assault, are highly blameworthy. Indeed, defendants having a prior murder conviction and an additional aggravating factor receive the death penalty sixty-two percent of the time. The imposition of the death penalty in sixty-two percent of all comparable death-eligible cases is strong evidence of the reliability of defendant's death sentence.

2. THE NUMERICAL-PREPONDERANCE-OF-AGGRAVATING-AND-MITIGATING-FACTORS TEST

The numerical-preponderance test compares the subject case with cases having the same number of aggravating and mitigating factors. In addition to this purely quantitative analysis, the test also attempts to account for the qualitative value that juries place on certain aggravating and mitigating factors.

In defendant's case, the jury found two aggravating and two mitigating factors. Concerning the aggravating factors, the jury found that defendant had been convicted of a prior murder and that he had murdered Ms. Peniston during a sexual assault and robbery. For mitigating factors, two jurors found that defendant suffered from extreme emotional disturbance, and six found that he was entitled to the catch-all factor. Unlike the application of the numerical-preponderance test in Marshall, which reflected an infrequency of death sentences for cases with two mitigating factors and only one aggravating factor, the application of that test to cases such as this one, with two mitigating factors and two aggravating factors, demonstrates a high frequency of death sentencing. Among the twenty penalty-trial cases in which jurors identified the relevant aggravating and mitigating circumstances, weighed them, and then returned a sentence, fifty-five percent (11/20) resulted in a death sentence. The Martini Report, which adds three cases, shows a slight increase in the death-penalty rate to fifty-seven percent (13/23).

Defendant argues that the frequency of death-sentencing rates for cases having two aggravating and two mitigating factors is low when all death-eligible cases are considered. Among the forty-three death-eligible cases in this category, only twenty-six percent (11/43) received the death penalty. These figures are summarized:

Penalty Trial Death Eligible

Including Bey .55 (11/20) .26 (11/43)

Excluding Bey .53 (10/19) .24 (10/42)

In the Martini Report, which includes five additional death-eligible cases, the rate is twenty-seven percent (13/48).

We agree that the probability of a death sentence, on considering all death-eligible cases with two aggravating and two mitigating factors, is comparatively low. The death-sentencing rate for all such cases, however, is much higher than the rate for cases similar to Marshall. The death-penalty rate for all death-eligible cases with one aggravating and two mitigating factors, as was the case in Marshall, was seven percent (3/44) including Marshall and five percent (2/43) excluding him. Notwithstanding those frequencies, we found that Marshall's death sentence was proportionate because the payment-for-murder aggravating factor, N.J.S.A. 2C:11-3c(4)(e) (the c(4)(e) factor), produced an above-average death-sentencing rate. Id. at 172. Similarly, when one of the aggravating circumstances is the c(4)(a) factor, a prior murder conviction, the death-sentencing rate is much higher for death-eligible cases in the category of cases having two aggravating and two mitigating factors. In both the Bey and the Martini Reports, seventy-one percent (5/7) of such cases resulted in the imposition of the death penalty. The numerical-preponderance analysis, therefore, does not indicate that defendant's death sentence is disproportionate.

Defendant further argues that his case should be compared to cases with three, not two, mitigating factors. The additional mitigating factor that he claims is his age, because he was eighteen years old at the time he murdered Carol Peniston. No member of the jury, however, found age to be a mitigating factor.

According to defendant, the jury's rejection of his age as a mitigating factor indicates that the verdict is irrational. Defendant argues that age is the most significant of the mitigating factors and is the factor most often found by a jury to be relevant in sentencing decisions. See Final Report, supra, at 92 (stating "defendant's age (5c) has the greatest mitigating effect"). His argument is that in only seven percent (6/83) of all death-eligible cases and fifteen percent (6/41) of all cases proceeding to the penalty phase in which age was found to be a mitigating factor did the jury return the death penalty. The Martini data increased the rate slightly with sixteen percent (7/43) of all penalty-trial cases and eight percent (7/91) of all death-eligible cases resulting in the death penalty. Furthermore, because proportionality review includes non-statutory factors, defendant invites us to reconsider factors that the jury rejected or found less persuasive than others. We decline the invitation.

We held in Bey III that the jury had not erred in failing to find age as a mitigating factor. 129 N.J. at 613. The trial court had properly instructed the jury to consider both chronological age and psychological maturity at the time of the crime. Although a jury may not ignore a defendant's youth, it need not find that age is relevant to his or her culpability. Ibid. We do not believe that all twelve members of the jury were acting irrationally when each declined to find defendant's age to be a mitigating factor. Furthermore, although the jury did not find Bey's youth relevant to the age factor, it may have considered his youth in conjunction with the catch-all factor.

Other juries confronting young defendants also have rejected age as a mitigating factor. For example, when first sentencing Phillip Dixon, who was eighteen at the time he beat, sexually contacted, and murdered a thirteen-year-old girl, the jury failed to find age to be a mitigating factor. State v. Dixon, 125 N.J. 223, 231 (1991); Detailed Narrative of Summaries for Death Eligible Cases 44 (Detailed Narrative Summaries). Dixon's death sentence was reversed on appeal. In that case, as in Bey III, however, the jury's failure to find age to be a mitigating factor was not a reason to reverse the death sentence. See Dixon, supra, 125 N.J. at 228; Bey III, supra, 129 N.J. at 613.

In sum, we are unpersuaded by defendant's arguments. Like the sentencing jury in Marshall, the sentencing jury in Bey considered a number of aggravating and mitigating factors, but found only some. The mere fact that defendant was eighteen when he murdered Ms. Peniston does not mean that the jury must find his youth to be a mitigating factor as a matter of law. Our system contemplates that juries will reject some factors, including age. Although juries may find age to be a mitigating factor in many cases, they need not so find it in every case.

Moreover, our consideration of non-statutory factors does not entitle us to overrule the jury findings. We may not reject the jury's findings even if we might disagree with them. Our role, as previously stated, is to search for aberrations that might be the result of impermissible factors. In the frequency analysis, we will consider only those factors that the jury found relevant to the imposition of the death penalty. By comparison, in the precedent-seeking analysis, we will expand our review to include objective factors that are clearly present in the record even if the jury did not find them to be relevant. We will not include these additional factors in the frequency analysis because of the need to maintain the uniformity of the statistics. Otherwise, we would be obliged to reconsider and recalculate the ratios for each case in the universe of cases. As with judicial review generally, we must recognize our limits in proportionality review.

The Dissent argues here, as it did on direct review of Bey's conviction, see 129 N.J. at 632-48, that the trial court's exclusion of the report of one of the State's experts, Dr. Cooke, and its refusal to permit leading questions of Bey's mother, could not have been harmless error. Post at (slip op. at 21-22). Further, the Dissent asserts that harmless-error analysis has no place in death-penalty cases. Post at (slip op. at 25-30). We continue to believe, however, as we did on direct appeal, that the asserted errors were harmless. 129 N.J. at 586-94. Our role in proportionality review is not to second-guess rulings that we made on direct appeal but to determine if the imposition of the death sentence on the defendant, when compared to sentences imposed on other defendants, is irrational or aberrant. At some point, even a death-penalty case must end.

3. THE INDEX-OF-OUTCOMES TEST

The index-of-outcomes approach seeks "to identify the characteristics common to the cases in terms of their degree of blameworthiness as perceived by prosecutors and juries." Marshall, supra, 130 N.J. at 172. It organizes cases according to statistically-relevant measures of culpability, such as the infliction of severe physical pain or mental suffering on the victim, a contemporaneous sexual assault or robbery, and the commission of a prior murder. In the data compiled for Robert Marshall's proportionality review (Marshall Report), the Special Master "estimated for each offender the probability of receiving a death sentence . . .. On the basis of those predictions, he created five level culpability scales which cut the cases at each 20-percentage points of increasing probability of a death sentence, i.e., 0-19, 20-39, etc." Technical Appendix 9 at 5.

Bey scores high in blameworthiness. Using indices that include both statutory and non-statutory factors, we find that the predicted probability of a death sentence in his case is seventy-six percent among all penalty-trial cases, with a lower limit of thirteen percent and an upper limit of ninety-nine percent. Defendant's case falls within culpability level four (60-80% culpability), which contains six other cases, and has an overall death-sentencing rate of forty-three percent (3/7). When we consider the Martini data, Bey's predicted probability of receiving a death sentence increases to eighty-one percent, with a lower limit of thirty-five percent and an upper level of ninety-seven percent. Accordingly, Bey moves to level five (80-100%), the highest culpability level, which has a death-sentencing rate of eighty-eight percent (23/26).

Among all death-eligible cases, the predicted probability of a death sentence in defendant's case is fifty-one percent, with a lower limit of nine percent and an upper limit of ninety-two percent. The seven cases most comparable to defendant's in terms of blameworthiness fall into culpability level three (40-60% culpability), which has an overall death-sentencing rate of fifty-seven percent (4/7). Defendant's predicted probability of receiving a death sentence in Martini is forty-seven percent, with a lower limit of ten percent and an upper limit of eighty-eight percent. At culpability level three, the death-sentencing rate is fifty percent (5/10).

When we consider only statutory factors, the predicted probability of a death sentence for Bey among all penalty-trial cases, within a range extending from fourteen to ninety-six percent, is sixty-seven percent. Eleven cases similar to defendant's case fall within culpability level four (60-80% culpability). The overall death-sentencing rate for these cases is eighty-three percent (10/12). In Martini, Bey's predicted probability of receiving a death sentence is sixty-two percent, with a lower limit of sixteen percent and an upper limit of ninety-four percent. At culpability level four, defendant's level, the death-sentencing rate is sixty-seven percent (10/15).

Among all death-eligible cases, the predicted probability of a death sentence in defendant's case is twenty-five percent, with a lower limit of seven percent and an upper limit of sixty-one percent. The comparison includes eighteen cases similar to defendant's case. In culpability level two, defendant's level, the overall death-sentencing rate is fifty-eight percent (11/19). In Martini, Bey's predicted probability of receiving a death sentence is thirty-three percent, with a lower limit of ten percent and an upper limit of sixty-eight percent. This would place him in culpability level two, which has a death-sentencing rate of fifty-two percent (12/23).

We are constrained, as we were in Marshall, by the small sample of cases with the same level of blameworthiness as defendant's case. As in Marshall, "'we have a much less solid basis for saying that cases like his either will or will not be associated with frequent death sentencing over the long run.'" 130 N.J. at 173 (quoting Marshall Report, supra, at 41).

To compensate for the dearth of cases in his culpability range, defendant, following a suggestion of the Special Master, has modified the culpability ranges. Instead of using five standard ranges of culpability of twenty percent each, defendant has altered the ranges so that more cases fall within the middle-range levels two through four. Defendant's modified culpability ranges for all penalty-trial cases are:

Culpability Level Culpability Range Death Sentencing Rate

1 0-.0019 0% ( 0/33)

2 .0019-.012 ...


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