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State v. Bey

August 11, 1999

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



The opinion of the court was delivered by: Pollock, J.

Argued October 27, 1998

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

Defendant, Marko Bey, appeals as of right under Rule 2:2-1(a)(3) from the denial of his petition for post-conviction relief from his death sentence. He contends that he received ineffective assistance of counsel at his second penalty-phase trial for the murder of Carol Peniston. Specifically, he maintains that his attorney insufficiently investigated and presented evidence to support the mitigating factors. Bey also argues that the ineffective assistance of counsel led to the denial of his right to testify and his right of allocution. Defendant raises several other claims. Among them is the assertion that under State v. Gerald, 113 N.J. 40 (1988), he is entitled to a new guilt-phase trial on the issue whether he acted with an intent to cause serious bodily harm as opposed to with an intent to kill. We reject all of defendant's claims and affirm his death sentence.

I.

Facts

In 1984, a jury convicted defendant of knowingly or purposely murdering Peniston. The jury also convicted defendant of felony murder, first-degree kidnaping, second-degree aggravated assault, first-degree aggravated sexual assault, first-degree robbery, and third-degree theft. After the penalty-phase hearing, defendant was sentenced to death. This Court upheld the convictions, but reversed the death sentence. State v. Bey, 112 N.J. 123 (1988) (Bey II).

Following a second penalty-phase hearing in 1990, a jury again sentenced defendant to death. This Court affirmed the death sentence. State v. Bey, 129 N.J. 557 (1992) (Bey III), cert. denied, 513 U.S. 1164, 115 S. Ct. 1131, 130 L. Ed. 2d 1093 (1995). Thereafter, we found that defendant's death sentence was not disproportionate. State v. Bey, 137 N.J. 334 (1994) (Bey IV), cert. denied, 513 U.S. 1164, 115 S. Ct. 1131, 130 L. Ed. 2d 1093 (1995).

Defendant filed a petition for post-conviction relief ("PCR"). On March 28, 1996, the PCR court, without conducting an evidentiary hearing, denied the petition. This Court remanded for an evidentiary hearing on two ineffective-assistance-of-counsel claims. After the PCR court conducted a month-long hearing, the court again denied the petition for post-conviction relief.

The facts relating to defendant's murder of Peniston are described in Bey II, supra, 112 N.J. at 131-33 (1988) and Bey III, supra, 129 N.J. at 569-76:

"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.

Subsequent investigation revealed that [Ms. Peniston's] car had been involved in a one-car collision in Newark . . . 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, defendant was arrested for receiving stolen property, Ms. Peniston's Ford Granada. After five hours in police custody, defendant confessed to the murder.]

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."

To avoid repetition, the facts relating to the 1990 penalty-phase retrial and the PCR hearing are set forth in the relevant sections of this opinion.

II. Counsel's Failure to Discover and Present Certain Mitigating Evidence

At the 1990 penalty-phase retrial, defendant attempted to prove four mitigating factors: (1) "defendant was under the influence of extreme mental or emotional disturbance," N.J.S.A. 2C:11-3c(5)(a)("extreme emotional disturbance"); (2) "defendant's age at the time of the murder," N.J.S.A. 2C:11-3c(5)(c) ("age"); (3) "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) ("diminished capacity"); and (4) "[a]ny 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) ("catch-all").

Four witnesses, including Patricia Bey (Ms. Bey), defendant's mother; Clarence Horton, defendant's uncle; Wendolyn El, defendant's aunt; and Juliet El, a family friend; testified in support of the catch-all mitigating factor. These witnesses described defendant's addiction to drugs and alcohol as well as Patricia Bey's neglect and physical abuse of defendant.

The defense also presented three expert witnesses: Dr. Gary Kay, a clinical neuropsychologist; Dr. John Young, a forensic psychiatrist; and Dr. Jonathan Pincus, a neurologist. These witnesses testified that defendant suffers from a psychiatric condition caused by organic brain damage. To support the mitigating factors pertaining to extreme emotional disturbance and diminished capacity, the experts also related defendant's account of the murder, his relationship with his mother, his abuse of alcohol and drugs, and other aspects of his life. Defendant's statements to the experts were introduced to support the catch-all factor.

Two jurors found the extreme emotional disturbance factor, and six jurors found the catch-all factor. No juror found the age and diminished capacity factors. The jury unanimously concluded beyond a reasonable doubt that the aggravating factors, prior murder, N.J.S.A. 2C:11-3c(4)(a), and contemporaneous felony, N.J.S.A. 2C:11-3c(4)(g), outweighed the mitigating factors.

At the penalty-phase hearing, two counsel represented defendant: R. Diane Aifer, lead counsel, and Donald McCauley, co-counsel. Defendant now claims that he received ineffective assistance of counsel concerning the presentation of the mitigation evidence. First, defendant questions Aifer's overall lack of preparation for the penalty-phase trial. Second, defendant alleges that both counsel were ineffective because they failed to support the catch-all factor with sufficient evidence of Patricia Bey's abuse and neglect of defendant, defendant's untreated sexual deviance, and his substance abuse. According to defendant, counsel failed to interview several potential witnesses, unreasonably decided not to call other witnesses, and failed to elicit certain evidence from witnesses who did testify. Third, defendant maintains that counsel should have presented evidence to support four "non-statutory mitigating factors": defendant's intoxication at the time of the crime, the failure to treat defendant's substance abuse, defendant's remorse, and defendant's life sentence and parole ineligibility.

At the PCR evidentiary hearing, defendant introduced testimony from fifteen witnesses to support the ineffective-assistance-of-counsel claim. The witnesses included eight people whom Aifer had not interviewed in preparation for the 1990 penalty-phase retrial: Cora Patterson, defendant's father's girlfriend; Kim Alston, Patterson's daughter; James Sullivan Evans, Patterson's son; Kenneth McGloun, defendant's half-brother; Mack El, defendant's cousin; Theopolis Stewart, defendant's childhood friend; Armand Veltre, defendant's sixth-grade teacher; and John Kuttin, defendant's Little League baseball coach. Four witnesses whom counsel had interviewed but not presented at the penalty-phase trial appeared on defendant's behalf: Benjamin Bey and Karrel McGloun, defendant's younger brothers; Ri El, defendant's cousin; and Bernadine Phillips Jackson, defendant's girlfriend at the time of the murder. Additionally, Ms. Bey, Wendolyn El and Clarence Horton, who had testified at the 1990 penalty-phase trial, again testified.

Defendant also argues that Aifer should have offered as witnesses Macko McGloun, defendant's father; and Henry Bey, defendant's brother, both of whom Aifer interviewed before the 1990 penalty-phase trial. The defense, however, did not call either as a witness in the PCR evidentiary hearing.

Several of defendant's attorneys appeared at the PCR evidentiary hearing. Aifer described her preparation for the case and explained her trial strategy. McCauley; James Kinarney, co-counsel for defendant in his trial for the murder of Cheryl Alston, see State v. Bey, 112 N.J. 45 (1988) (Bey I); James Smith and Judith Borman, defendant's appellate attorneys; Timothy Hughes, Deputy Public Defender and Aifer's boss; Matthew Astore, co-counsel on direct appeal of the second death sentence; and Edward Washburn, co-counsel at the guilt-phase trial, also testified.

Lastly, the PCR court admitted into evidence welfare department records, notes from a probation officer, and a report by Lois Nardone, a social worker, concerning defendant's social history. Nardone interviewed thirty-five witnesses and reviewed many documents to construct a detailed compilation of defendant's life history. The court, however, did not permit Nardone to testify.

A. Ineffective-Assistance-of-Counsel Standard

Fundamental to criminal Justice is a defendant's constitutional right to the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The test for measuring the effectiveness of counsel in the penalty-phase of a capital trial is set forth in the opinions of the Supreme Court of the United States in Strickland, supra, and of this Court in State v. Fritz, 105 N.J. 42, 58 (1987). That test, known as the "Strickland/Fritz" test, provides:

"To prove ineffective assistance of counsel in his penalty-phase trial, defendant must pass a two-pronged test. First, defendant must demonstrate that counsel's performance was truly deficient, with such grievous errors that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, defendant must prove that there is a reasonable probability that, but for counsel's unprofessional errors, the jury's penalty-phase deliberations would have been affected substantially." [State v. Morton, 155 N.J. 383, 431 (1998) (internal quotations and citations omitted).]

To satisfy the first prong of the Strickland/Fritz test, "the defendant must show that `counsel's representation fell below an objective standard of reasonableness. . . . Judicial scrutiny of counsel's performance must be highly deferential' . . . [and] must avoid second-guessing defense counsel's tactical decisions `under the distorting effects of hindsight.'" State v. Marshall, 148 N.J. 89, 156-57 (1997) (Marshall III) (quoting Strickland, supra, 466 U.S. at 687-89, 104 S. Ct. at 2064-65, 80 L. Ed. 2d at 693-94). Merely because a trial strategy fails does not mean that counsel was ineffective. State v. Davis, 116 N.J. 341, 357 (1989). An inadequate investigation of the law or fact, however, dispels the presumption of competence that might otherwise arise from a strategic choice. Ibid.

A defendant can satisfy the requirement of prejudice by showing that counsel's ineffective assistance substantially affected the jury's penalty-phase deliberation to a degree "sufficient to undermine confidence in the outcome." Marshall III, supra, 148 N.J. at 250 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). The defendant has the burden of establishing a reasonable probability that the omitted information would have substantially affected the jury's deliberations during the penalty phase. See id. at 250-51. Although the second prong of the Strickland/Fritz standard is relaxed in the context of a penalty-phase proceeding, that prong, contrary to the Dissent, requires more than a showing that "a reasonable juror would have considered the material in his or her deliberative process." Post at (slip op. at 4). Unsurprisingly, because the Dissent applies the wrong standard, it reaches the wrong result.

B. Analysis of Ineffective-Assistance-of-Counsel Claim

1. Aifer's Investigation

Defendant first argues that Aifer's overall representation was ineffective. He contends that Aifer did nothing for months after she was assigned the case and that her efforts were both cursory and untimely. In particular, defendant questions Aifer's failure to retain a social worker or investigator to construct defendant's social history. He also calls attention to her refusal to delegate any responsibility to her co-counsel, McCauley.

The State counters that Aifer sufficiently familiarized herself with the facts and the law and that she implemented a sound trial strategy. According to the State, Aifer reasonably declined to introduce cumulative evidence of defendant's life history; instead, she focused on the most important facts. Her strategy of connecting mitigation evidence through the testimony of expert witnesses presented a unified theory that explained defendant's acts. Therefore, the introduction of a social history prepared by a mitigation specialist was unnecessary. Lastly, the State argues that further investigation and preparation would not have produced any testimony that reasonably would have affected the jury's deliberations.

In August 1988, this Court rendered decisions in defendant's trials for the murders of Cheryl Alston and Carol Peniston. Bey I, supra; Bey II, supra. In addition to remanding this case for a new penalty-phase trial, Bey II, supra, we vacated defendant's conviction and death sentence for murdering Alston, Bey I, supra. The Public Defender assigned Aifer to the retrial of the Alston case and the retrial of the penalty-phase of the Peniston case.

Aifer met with defendant's appellate attorneys, Smith and Borman, to discuss strategy in both cases. Smith and Borman emphasized the importance of working with defendant's mother and recommended a social worker who could assist Aifer. Over the next year, Aifer did not work on either case, except for reviewing the case files. She did not contact a social worker or any other investigator. As a result, in August 1989, the Public Defender's Office held a meeting to discuss Aifer's lack of investigation. In particular, Smith criticized Aifer's inaction. Despite the meeting, Aifer continued her representation of defendant in both cases.

Shortly thereafter, Aifer began preparing for the Alston retrial. After defendant was again convicted for murdering Alston, Aifer concentrated on the Peniston case. In particular, Aifer unsuccessfully moved to preclude the use of the Alston murder conviction as an aggravating factor in the Peniston case. Because she needed additional time to prepare the case, Aifer moved to stay the Peniston trial. On June 4, 1990, the trial court denied the motion and set August 20, 1990 as the date to commence the penalty-phase hearing.

Aifer immediately began focusing on the presentation of the mitigation evidence. On June 21, 1990, Aifer, according to her PCR testimony, began a "compressed, hard-working effort" to prepare the case. Aifer conducted in-person interviews of seven potential witnesses and telephone interviews with three other potential witnesses. Ms. Bey, defendant's most important witness, testified at the PCR hearing that Aifer met with her only once, in a meeting that lasted approximately one hour. Aifer also arranged for three medical experts, Kay, Young, and Pincus, to evaluate defendant. She hired a jury consultant to assist her on the voir dire. Instead of retaining an investigator or social worker, Aifer interviewed witnesses herself. She also felt that a mitigation specialist would "not necessarily" garner any additional evidence. Aifer conceded that she did not involve her co-counsel in the investigation or witness preparation.

In 1994, just before the start of another capital trial, Aifer resigned from the Public Defender's Office. Aifer believed that her superior, Assistant Public Defender Dale Jones, was unduly interfering with her case. The following morning, she submitted her letter of resignation:

"Please accept my letter of resignation, effective immediately, from all of my duties as an employee of the Office of Public Defender. After much reflection, and after discussing the matter with Dale Jones, I have come to the Conclusion that I am not competent to handle the responsibilities of being an attorney within the Office. In particular, I am convinced of my inability, as corroborated by Mr. Jones, to properly represent our clients in capital cases. As you may already know, my inadequate performance resulted in a death sentence being imposed upon Mr. Marko Bey. It is intolerable to me that I may yet jeopardize the life of another young man, Mr. David Cooper, currently on trial in Monmouth County. I regret that I cannot give more notice, however, the situation is urgent. I simply cannot continue in any capacity as a member of the staff."

At the PCR hearing, Aifer explained that this letter was intended as a "sarcastic" and "facetious" response to internal criticism.

Our review of these facts leads us to conclude that Aifer's preparation was incomplete. The preparation of mitigation evidence is a substantial undertaking. To postpone preparation until two months before a penalty-phase hearing is not commensurate with the dreadful consequences of such a hearing. See Davis, supra, 116 N.J. at 353. As Aifer's motion for a stay reflects, she should have started earlier.

Despite the incompleteness of Aifer's investigation, we decline to find that her conduct constitutes ineffective assistance of counsel. Absent specific prejudicial errors, a general insufficiency in counsel's performance does not justify vacating a death sentence on post-conviction relief. "The case law makes clear that such purely speculative deficiencies in representation are insufficient to justify reversal." Fritz, supra, 105 N.J. at 44. Only after evaluating the specific claims asserted at the PCR hearing may we determine whether counsel's failure to introduce mitigating evidence prejudiced defendant.

Although the lack of sufficient time to prepare for trial can support an ineffective-assistance-of-counsel claim, a defendant generally may support that claim with proof of specific evidence adduced at a post-conviction hearing, but not at the original trial. See Glenn v. Tate, 71 F.3d 1204, 1207 (6th Cir. 1995) (finding prejudice in sentencing proceedings where counsel failed to present pertinent evidence of mental history and mental capacity discovered at post-sentencing hearing); Blanco v. Singletary, 943 F.2d 1477, 1501-02 (11th Cir. 1991) (holding that defendant was prejudiced at sentencing phase by counsel's failure to discover and present any available mitigating evidence concerning defendant's impoverished childhood, epileptic seizures, and organic brain damage); State v. Tokman, 564 So.2d 1339, 1345 (Miss. 1990) (affirming lower court's Conclusion that evidence of defendant's psychological traits presented at post-conviction hearing could have affected judgment at trial).

The presumption of prejudice is reserved for cases involving the complete denial of the right to counsel. Fritz, supra, 105 N.J. at 53. Here, Aifer's performance does not sink to the level of the constructive denial of the right to counsel. From her prior representation of defendant in the retrial of the Alston murder, Aifer was familiar with defendant and his history. She had the benefit of the records in the original Peniston trial and the Alston trial. Additionally, Aifer interviewed many witnesses and arranged for three mental health experts to testify.

In sum, we decline to find that Aifer's preparation and investigation support the Conclusion that her assistance of counsel was presumptively ineffective. The deficiencies in her preparation, however, point to the need for the Public Defender's Office to supervise more closely attorneys engaged in capital murder trials. We now turn to the question whether there were any specific deficiencies by counsel that prejudiced defendant at the penalty-phase proceeding.

2. Mitigating Factors

Defendant asserts that Aifer was ineffective in her presentation of evidence to support the catch-all mitigating factor. Specifically, he asserts that Aifer failed to present adequate evidence of his mother's abuse and neglect, his untreated sexual deviance, and his addiction to alcohol and drugs. Defendant maintains that Aifer also should have informed the jury more clearly of the components of the catch-all factor.

a. Abuse and Neglect

To support the catch-all factor, defense counsel presented extensive evidence at the 1990 penalty-phase retrial of Patricia Bey's abuse and neglect of defendant. Ms. Bey told the jury that she was an alcoholic and that she had abused alcohol during her pregnancy with defendant. She admitted to neglecting and abusing her children generally and to beating defendant on many occasions. As we related in affirming defendant's death sentence:

"Ms. Bey testified that on one occasion she knocked defendant down, causing defendant to hit his head on a coffee table and lose consciousness. Although defendant's head was gashed, she did not take him to a doctor. Ms. Bey also recalled another time when her neighbors had threatened to call the police if she did not stop beating defendant." [Bey III, supra, 129 N.J. at 573.]

Ms. Bey acknowledged that she always blamed defendant when things went wrong and that she scolded and hit him more than the other children. Her apartment was dirty, dark, and cold. Out of fear, she covered the windows and mirrors and did not turn on the lights.

Six other witnesses confirmed Ms. Bey's testimony. Wendolyn El, Juliet El, and Clarence Horton described Patricia Bey's alcoholism and her physical abuse of defendant. Defendant's three mental health experts communicated to the jury defendant's own account of his childhood. They confirmed that Ms. Bey abused all her children, but that she meted out the harshest treatment to defendant:

"She kept the lights off in the apartment, and covered the windows and mirrors out of an alcohol-induced paranoia that the devil would get her. Several witnesses described the cold, dark, slovenly state of the Beys' apartments and the unkempt condition of the children. . . . Growing up, defendant frequently received severe, unpredictable beatings with broom handles, belts, belt buckles, straps and other items." [Id. at 572.]

Wendolyn El explained that a neighbor of the Bey family told her that Ms. Bey "beat Marko all the time." Once, when El visited the Bey apartment, Ms. Bey had beaten defendant so badly that he fled from the apartment and ran down the street.

El surmised that Ms. Bey had singled out defendant for these brutal beatings because his father had spurned her. She also ascribed defendant's crimes to defendant's anger against his mother: "mentally Marko did not kill those two women, it was his mother that he was killing." [Id. at 573.]

El also stated that Ms. Bey's alcoholism was so severe that she experienced blackouts and was hospitalized on several occasions.

Horton revealed that defendant once told him: "I need to get out of here" and asked to live with him in Vermont. According to Horton, defendant and his brothers did not have food, water, or clothing. Defendant was forced to care for his brothers, and would find food for them to eat.

Juliet El saw Ms. Bey hit defendant. On one occasion, El saw Ms. Bey beat defendant so severely that defendant was left shaking and crying.

Despite this testimony, defendant claims that counsel was deficient in demonstrating his mother's abuse and neglect. Defendant argues that Aifer should have introduced the testimony that was elicited at the PCR evidentiary hearing.

At the PCR evidentiary hearing, fifteen witnesses testified concerning Ms. Bey's abuse and neglect of defendant. Three penalty-phase witnesses - Ms. Bey, Wendolyn El and Clarence Horton - testified again at the PCR evidentiary hearing. El's and Horton's accounts generally repeated their penalty-phase testimony. The PCR court did not allow Horton to testify about Ms. Bey's childhood in Alabama. Bey's mother, however, described her physical abuse and neglect of defendant in greater detail than she had previously.

Ms. Bey explained that she physically abused her children and frequently beat defendant so severely that he bore bruises and welts. She recalled several of the specific incidents of her physical abuse of defendant that other witnesses had described during the 1990 penalty-phase trial.

Ms. Bey stated that, when defendant was a child, she drank up to a quart of gin per day. She did not provide the children with food and rarely knew their whereabouts. Defendant was forced to take responsibility for his neglected siblings. In sum, she described her children's living conditions as "hell."For the first time, Ms. Bey testified that during defendant's childhood she had been hospitalized many times for conditions related to her alcoholism. She had been treated for pneumonia, a heart problem, blackouts, and seizures that required her to wear a straightjacket.

In addition to Ms. Bey's testimony, the defense presented four witnesses whom Aifer had interviewed but chose not to present at the penalty-phase trial. These four witnesses, Benjamin Bey, Ri El, Karrel McGloun, and Bernadine Phillips Jackson, corroborated Ms. Bey's account of her alcoholism and frequent physical abuse of defendant. They emphasized that Ms. Bey often blamed defendant for things he had not done and beat him more than her other children. According to these witnesses, Ms. Bey was an unfit parent who did not keep her home clean or feed her children. Defendant acted as a substitute parent; he made sure that his younger brothers stayed in school and had food and clean clothes.

Lastly, several witnesses whom Aifer did not interview before the penalty-phase trial testified at the PCR hearing. These witnesses included Cora Patterson, Kim Alston, James Sullivan Evans, Kenneth McGloun, Mack El, Theopolis Stewart, Armand Veltre, and John Kuttin. Patterson, Alston, and Evans focused on defendant's relationship with his father. They stated that defendant's father did not provide him with any emotional or financial support. Defendant's father openly disputed his paternity of defendant. Patterson recalled that defendant's father told her to let defendant "live on the street." According to the witnesses, defendant was an angry and frustrated teenager whom Ms. Bey often beat. Stewart and Veltre described defendant's inappropriate dress and body odor. Kuttin testified that he provided the only means of transportation to defendant's Little League baseball games. Because defendant had to go home and take care of his brothers, he could not socialize with the rest of the team.

At the PCR hearing, Aifer explained why she did not offer several of these witnesses at the penalty-phase trial. She did not call Benjamin Bey or Karell McGloun because they downplayed the extent of their mother's alcoholism and abusive behavior. Likewise, Henry Bey insisted that defendant's mother did not abuse alcohol while defendant was living with her. Aifer did not present Ri El as a witness because El was emotionally fragile and would not withstand cross-examination. Similarly, Aifer did not call Jackson as a witness because the prosecution would have cross-examined Jackson about defendant's violent sexual attack of her. Jackson previously had given the Prosecutor's Office a statement concerning defendant's attempt to rape her. Lastly, Macko McGloun did not testify because Aifer could not locate him immediately prior to the trial. Aifer stated that, even if he had been available, she would not have had him testify because he denied paternity of defendant and denied having failed to support him.

The PCR court concluded that Aifer effectively presented evidence of Ms. Bey's abuse and neglect of defendant. The court endorsed Aifer's strategic decisions and determined that the testimony elicited at PCR was cumulative. Our evaluation of the PCR testimony likewise leads us to the Conclusion that Aifer was not ineffective in the presentation of evidence of abuse and neglect that supported the catch-all factor.

Aifer was not deficient in eliciting testimony from Wendolyn El, Juliet El, and Clarence Horton. Juliet El did not present any additional testimony at the PCR evidentiary hearing, and Wendolyn El's and Horton's PCR testimony repeated their penalty-phase testimony. The PCR court properly ruled that Horton's proffered testimony concerning Ms. Bey's upbringing was irrelevant.

We question, however, the sufficiency of a solitary interview with Ms. Bey. Based on that interview, Aifer concluded that Ms. Bey would not be forthcoming in her testimony. Thus, Aifer decided to call other witnesses to corroborate Ms. Bey's account of her abuse and neglect of defendant.

Additional meetings between Aifer and Ms. Bey may have induced Ms. Bey to be more forthcoming about the details of her behavior. Ms. Bey testified at the PCR hearing that she was reluctant to provide the full details of her relationship with defendant at the penalty-phase trial because "I was frightened. I didn't want anybody to know Marko's mother was a drunk and an abusive mother." Other meetings may have helped Ms. Bey overcome her fear. Indeed, Lois Nardone, a social worker, met with Ms. Bey more than ten times over the course of one year. Ms. Bey testified that she was not willing to tell Nardone everything at first. After talking with her on several occasions, however, "it all came out."

The possible results of additional conversations with Ms. Bey are uncertain. She indicated at the PCR hearing that she had testified truthfully at the penalty-phase trial and that she was doing her best to cooperate with the defense. In fact, she articulated her testimony at the PCR hearing more fully than at the penalty-phase trial because, as she explained, "I have more ability now to open myself. I can speak more clearly now than I have spoken in five, six years." Ms. Bey's reluctance to detail her behavior may have had more to with her physical and mental condition at the time of the penalty-phase proceeding than with her lack of familiarity with defendant's attorneys.

Even if Ms. Bey had testified more fully at the penalty-phase trial, her testimony would not have affected the jury's deliberations. The additional testimony was largely cumulative of evidence revealed by other penalty-phase witnesses. Although the jury might have weighed more heavily Ms. Bey's own account of her conduct, much of the other witnesses' testimony included descriptions of her conduct that they had witnessed personally. The only new testimony Ms. Bey provided at the PCR hearing concerned her hospitalizations for treatment resulting from her use of alcohol. Through the testimony of other witnesses, however, the jury was painfully aware of Ms. Bey's alcoholism.

We also find that Aifer was deficient for failing to call Benjamin Bey, Ri El, Karrel McGloun and, Bernadine Jackson to testify. Aifer's lack of investigation and preparation leads us to disregard the presumption of reasonableness that generally attaches to a defense counsel's decisions concerning the calling of. See supra at 11. For example, Karrell McGloun testified that Aifer met with him for only fifteen minutes. Similarly, Aifer never met with Ri El and based her evaluation of the witness on mere reputation. Accepting their testimony at the PCR hearing, Aifer was deficient for not presenting these four witnesses at the penalty-phase trial.

We agree with the PCR court, however, that this evidence was cumulative. The penalty-phase jury heard overwhelming evidence of Ms. Bey's alcoholism and her abuse of defendant. Ms. Bey, in testimony that El confirmed, admitted that she singled out defendant for the most frequent beatings. From Horton, the jury knew that defendant and his brothers regularly did not have food or clean clothing and that defendant took care of his brothers. Therefore, the four witnesses' testimony merely would have reinforced the penalty-phase testimony.

Similarly, Aifer should have interviewed the eight witnesses whom she did not interview before the trial, but whom defendant has identified as providing material testimony. The testimony of those witnesses, however, merely would have been cumulative of the testimony of the other witnesses. For example, the explanation of Macko McGloun's emotional and financial neglect of defendant pales in comparison to that of the physical abuse and neglect defendant suffered from his mother. We conclude that the testimony of the witnesses whom Aifer did not interview could not have altered the penalty-phase jury's deliberations.

Lastly, defendant has not met his burden of proving that testimony from Macko McGloun or Henry Bey, who did not testify at the PCR hearing, could have affected the jury's deliberations. Defendant's claim is mere speculation.

Thus, we conclude that defendant did not receive ineffective assistance of counsel with regard to the presentation of the evidence of abuse and neglect.

b. Untreated Sexual Deviance

At the 1990 penalty-phase trial, defense counsel did not present any evidence that defendant suffered from an untreated sexual deviance. Defendant contends that counsel should have informed the jury of defendant's prior inappropriate sexual behavior, together with the absence of treatment for that behavior. Such information, according to defendant, could have helped explain defendant's later criminal conduct and thereby supported a finding of the catch-all mitigating factor.

At the PCR hearing, Jackson and Wendolyn El testified about defendant's sexual conduct. Jackson described defendant's attempt to sexually assault her two days before he was arrested for the Peniston murder. Defendant tied her to her bed with her stockings and lay on top of her. After she screamed, defendant freed her. When defendant later apologized, Jackson forgave him. She thought that defendant appeared to have been in an alcohol-induced trance at the time of the incident.

El discussed three incidents in which defendant engaged in inappropriate sexual conduct. When defendant was ten years old, he fondled his four-year-old cousin's vagina. At sixteen, he attempted to molest El's neighbor, a senior citizen. Defendant once tried to touch his older cousin's genitals. Defendant never received treatment for any sexual disorder. No evidence of a disorder or failure to obtain treatment, however, was introduced.

Aifer testified at the PCR hearing that she did not introduce evidence relating to defendant's sexual deviance. She explained that the information would have alienated the jury and provided it with an additional reason to give defendant a death sentence.

The PCR court concluded that Aifer made a reasonable tactical decision by refusing to introduce evidence of prior sexual misconduct. It found that Jackson's and El's testimony would have inflamed the jury rather than persuaded it to spare Bey's life. We agree.

Aifer was fully aware of Jackson's and El's potential testimony concerning defendant's sexual conduct. Both Aifer's investigation and trial strategy were sufficient.

Although the evidence of prior sexual crimes does not directly support a statutory aggravating factor, it had the propensity to demonize defendant in the eyes of the jury. Acts of sexual deviance, moreover, do not constitute strong evidence to support the catch-all mitigating factor. No evidence at the penalty-phase trial or during the PCR hearing demonstrated that defendant's sexual misconduct was caused by a psychological disorder. For example, after Jackson shouted at defendant, he stopped, suggesting that he was able to control his aggression. His subsequent apology also indicates that, despite any disorder, he understood that his behavior was wrong.

Defendant argues that Aifer's overall trial strategy was to introduce ample evidence to explain defendant's antisocial behavior. Thus, defendant claims that offering evidence of his sexual offenses have supplemented that strategy. The jury was told of defendant's entire juvenile record and of his attempts to rob or sexually assault three other women. Finally, the jury was informed of his conviction for the Alston murder. According to defendant, the jury could not have been further inflamed by evidence of the sexual assault on Jackson.

The jury, however, might have been offended by hearing from Jackson of defendant's sexual assault on her, as opposed to hearing of the assault as filtered through the testimony of the expert witnesses. Moreover, Jackson's testimony of defendant's attack, which occurred close in time to the murders, could have undermined defendant's contention that he acted out of control as a result of a mental condition. We conclude that Aifer was not ineffective for failing to introduce evidence of untreated sexual misconduct.

c. Evidence of Defendant's Drug and Alcohol Abuse

In support of the catch-all mitigating factor, six witnesses testified at the 1990 penalty phase retrial about defendant's abuse of alcohol and drugs. Ms. Bey, Wendolyn El and Horton explained that defendant had abused alcohol since the age of ten years old. Ms. Bey and Ms. El recalled defendant's hospitalization after being found on the side of the road unconscious as a result of a drug and alcohol overdose.

Additionally, defendant's experts told the jury that defendant had abused alcohol and drugs throughout his life. According to Dr. Young, defendant began drinking alcohol at age nine, and later used both marijuana and cocaine. Dr. Young stated that defendant told him that he had been heavily under the influence of drugs or alcohol during both the Alston and Peniston murders. Dr. Pincus testified that defendant was constantly under the influence of alcohol and drugs. As a result, defendant experienced substance-induced blackouts. Defendant's alcohol and drug use also exacerbated his inability to control his aggression. Dr. Kay testified that defendant's left frontal lobe damage could have been caused by, among other factors, defendant's "pre-adolescent drug use." Thus, alcohol and drug use could have contributed to defendant's extreme violence.

Defendant argues that Aifer was ineffective because she failed to introduce testimony from several other witnesses who would have documented his alcohol and drug abuse. At the PCR evidentiary hearing, six more witnesses supported the evidence of defendant's drug and alcohol addiction. Jackson testified that in the weeks preceding defendant's murders, she and defendant often got drunk together. Stewart observed defendant use alcohol, marijuana, and cocaine. According to Mack El, defendant consistently was intoxicated a few months before the crimes. About three years earlier, Evans and Kim Alston saw defendant intoxicated on a daily basis. Kenneth McGloun stated that he suspected that defendant abused alcohol.

The PCR court concluded that because Jackson would have described defendant's attempted rape, Aifer reasonably decided not to call Jackson. The court nonetheless determined that Aifer was deficient for failing to call the other five witnesses who would have testified about defendant's substance abuse. The testimony of those witnesses, however, would have been cumulative of the penalty-phase evidence. Furthermore, Evans and Alston would have provided harmful evidence that defendant had been affiliated with a gang when he was a teenager. We agree.

Aifer's failure to interview Jackson and the other five witnesses cannot be attributed to a reasonable strategic decision or tactical allocation of resources. Those witnesses could have offered useful testimony concerning defendant's lifelong alcohol and drug addiction, which the jury could have found was a mitigating factor. In failing to interview the witnesses, Aifer's assistance was deficient.

Their additional testimony, however, would not have affected substantially the penalty-phase deliberations. The jury heard sufficient documentation of defendant's substance abuse, including the incident in which defendant was unconscious on the side of the road. Although the PCR witnesses would have supported defendant's use of alcohol and drugs shortly before the Peniston murder, evidence of defendant's addictions was essentially uncontroverted. Defendant's penalty-phase witnesses testified that substance abuse plagued him throughout his life. One expert witness even stated that defendant told him that he had been intoxicated at the time of the Peniston murder. The State did not present any evidence suggesting that defendant had overcome his addictions during his teenage years. Evidence that Aifer might have developed would have been cumulative. Therefore, Aifer's presentation on this issue was not ineffective.

d. Failure to Enumerate Catch-All Mitigating Factors

Defendant argues that Aifer also was ineffective because she did not enumerate in her penalty-phase summation each potential catch-all mitigating factor. In Bey III, we determined that the trial court's instructions on the catch-all mitigating factor were inadequate because they could not relate them to the evidence. 129 N.J. at 615. This error, however, was partially remedied by counsel's own explanation of the mitigating factors in her summation. Ibid. We stated that "defense counsel made it clear to the jury that all the evidence presented at trial about defendant's background could be viewed as part of the catch-all mitigating factor c(5)(h)." Id. at 615-16. By informing the jury of the evidence it could use to find the catch-all mitigating factor, Aifer insured that the jury would consider each potential catch-all factor. Thus, defendant did not receive ineffective assistance of counsel concerning the catch-all factor.

3. Failure to Present Evidence to Support "Non-statutory"Mitigating Factors

Defendant additionally argues that Aifer should have presented evidence to support the four "non-statutory" mitigating factors that she believed the jury should find: defendant's intoxication during the commission of the murder; the lack of treatment defendant received for his various problems; defendant's remorse; and the availability of a life sentence as an alternative to a death sentence. Two of these factors, defendant's intoxication at the time of the offense and his untreated substance abuse, overlap his argument that his history of alcohol and drug addiction supports the catch-all factor, see supra at (slip op. at 26-31). Defendant's proposed "non-statutory" factors are better articulated as additional factors from which the jury could have found the catch-all factor. Following the structure of defendant's brief, however, we shall address these four factors separately.

a. Intoxication During Crime

Defendant claims that Aifer was ineffective because she did not provide evidentiary support for the contention that defendant's intoxication on the night of the murder was a mitigating factor. In her opening and closing statements, Aifer referred to defendant's intoxication that night as a mitigating factor. She introduced supporting evidence through the three mental health experts, who testified that defendant told them that he was intoxicated during the commission of the crime.

Aifer chose not to introduce defendant's 1984 guilt-phase testimony that he had consumed large amounts of alcohol and marijuana on the night of the murder. She also did not use relevant interview notes taken by defense investigator George Newman in 1984. These notes indicated that defendant had told Newman that he had been under the influence of drugs and alcohol when he murdered Peniston.

At the PCR hearing, Aifer testified that she had not introduced defendant's 1984 testimony because it was not persuasive and had been undermined by an effective cross-examination. During the cross-examination at the 1984 trial, the State had demonstrated that defendant recalled several details of the events despite his alleged intoxication. Because no one could corroborate defendant's testimony, defendant's own credibility was crucial to substantiating this argument.

Aifer's strategic decision to introduce through experts the evidence of defendant's intoxication was at least reasonable. After hearing defendant's testimony, the 1984 jury rejected intoxication as a defense to guilt and as a mitigating factor. Defendant had been cross-examined effectively on this issue during that trial. The experts, who lent credibility to defendant's story by integrating it into their testimony, conveyed the same information without permitting the State to discredit defendant's claim.

b. Failure to Treat Defendant's Substance Abuse

Aifer argued in summation that the jury should consider the failure to treat defendant's alcohol and drug abuse as a mitigating factor. Defendant now contends that Aifer was ineffective because she did not introduce any specific evidence to support this mitigating factor. Specifically, defendant claims that Aifer should have introduced various documents indicating that defendant had told authorities about his alcohol and drug problem. The documents, however, would have been cumulative. At the penalty-phase retrial, Ms. Bey testified that the she knew about defendant's addiction to alcohol and drugs, but did not seek help for him. As explained previously, substantial testimony supported defendant's claim of alcohol and drug abuse. Neither the State nor any witness suggested that defendant had received any type of treatment for his addiction. The record does not establish that Aifer's representation of defendant on this issue was ineffective.

c. Evidence of Remorse

Defendant also argues that Aifer was ineffective because she did not introduce any evidence of his remorse. This issue overlaps defendant's contention that the trial court and his counsel deprived him of his right of allocution. Because this issue is best analyzed within the framework of the common-law ...


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