Bey v. Morton, 95-5608

• Citation: 124 F.3d 524
• Decision Date: 28 August 1997
• Docket Number: No. 95-5608,95-5608
• Parties: Marko BEY Appellant, v. Willis E. MORTON, Superintendent; Peter Verniero, * Attorney General.
• Court: U.S. Court of Appeals — Third Circuit

Page 524

124 F.3d 524

Marko BEY Appellant, v. Willis E. MORTON, Superintendent; Peter Verniero, ^* Attorney General.

No. 95-5608.

United States Court of Appeals, Third Circuit.

Argued Feb. 4, 1997.

Decided Aug. 28, 1997.

Susan L. Reisner, Public Defender, James K. Smith, Jr. (Argued), Assistant Deputy Public Defender, Office of Public Defender Appellate Section, Newark, NJ, for Appellant.

Peter Verniero, Attorney General, Catherine A. Foddai (Argued), Deputy Attorney General, Office of Attorney General of New Jersey Division of Criminal Justice, Richard J. Hughes Justice Complex, Trenton, NJ, for Appellees.

BEFORE: STAPLETON AND MANSMANN, Circuit Judges, and POLLAK, ^** District Judge.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

While incarcerated on death row in New Jersey, Marko Bey engaged in numerous "everyday" conversations with Corrections Officer Alexander Pearson. These discussions covered many different topics from sports, to women, to the news. In the course of their discourse, Bey confessed to the murders of two women. When Bey's death sentence was subsequently vacated and the convictions for the murder and sexual assault of one of the victims were reversed, the state introduced Pearson's testimony at the retrial, and Bey was again found guilty and this time received a sentence of life imprisonment. After Bey's convictions were affirmed on direct appeal, he sought relief in the district court. Bey now appeals from the district court's denial of his petition for habeas corpus relief.

We hold that there was no violation of Bey's Sixth Amendment right to counsel because there was no deliberate elicitation of incriminating information for use in connection with his prosecution. We also hold that there was sufficient evidence at Bey's second trial to support the jury's findings of guilt. Thus, we will affirm the district court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

The bruised and battered body of Cheryl Alston was found by a jogger on April 2, 1983, in a vacant lot across the boardwalk from the beach in Ocean Grove, Neptune Township, New Jersey. A police investigation ensued, and Bey was arrested on May 6, 1983. On December 13, 1983, he was convicted for the murder, felony murder, aggravated assault, and aggravated sexual assault of Alston and two days later was sentenced to death. The New Jersey Supreme Court vacated Bey's death sentence on August 2, 1988, because he had been a juvenile at the time of the offense and was therefore not eligible for the death penalty. See State v. Bey I, 112 N.J. 45, 548 A.2d 846 (1988). The Court also reversed the convictions, remanded the case, and ordered the suppression of Bey's confession to the police.

In a separate prosecution, Bey was also convicted of murdering Carol Peniston in 1983. On the day that the New Jersey Supreme Court vacated Bey's convictions for the Alston murder, the Court also vacated the death sentence he received for the Peniston murder, but affirmed his conviction in that case, see State v. Bey II, 112 N.J. 123, 548 A.2d 887 (1988). Bey has since been again sentenced to death for the Peniston murder. See State v. Bey, 137 N.J. 334, 645 A.2d 685 (1994); State v. Bey, 129 N.J. 557, 610 A.2d 814 (1992).

In the course of the state's preparation for Bey's retrial in 1988, an investigator from the Monmouth County Prosecutor's Office interviewed some 12 or 13 corrections officers regarding Bey. He discovered that, in addition to the earlier confession to the police, Bey had made statements to Pearson while incarcerated in late 1983 and early 1984 at the Capital Sentencing Unit ("CSU") of the New Jersey State Prison in Trenton. In a statement taken September 19, 1988, Pearson told the investigator that shortly after Bey's arrival at the CSU he had "talked" with Bey about "why he was here" and "why he did it." Bey had disclosed to him that he killed two women, one of whom he "raped and beat" "on the beach," and that he was "high" while committing the murders.

Bey subsequently challenged the admissibility of Pearson's proposed testimony on Sixth Amendment grounds and a suppression hearing was held. ¹ At the hearing, Bey denied ever discussing the murders with Pearson, but Pearson reiterated the statements he had made to the investigator. Pearson also stated that he had never initiated a conversation about Bey's murders and had only discussed them when Bey brought up the subject. Pearson did, however, acknowledge asking Bey for clarification "if it was something I didn't understand." The only specific example of a question Pearson remembered asking about the murders was "I asked him why would he do that. What kind of mind you was in." Pearson also indicated that he was aware that Bey had an appeal pending and that he was represented by counsel.

At the close of the suppression hearing, the court found that the structure of the CSU was such that the prisoners, as a practical matter, could not converse with one another. Thus, conversations could be conducted only with the guards. As a corrections officer on the CSU, Pearson was charged with the responsibility of keeping Bey in custody and safe. His responsibilities, according to the court, included talking to and observing Bey to detect any suicidal tendencies. The court also observed that the dialogue between Bey and Pearson "touched a whole host of topics," including sports, women, and "life in jail," but that on five to seven occasions "there was a discussion" about why Bey was incarcerated. The only question mentioned by the trial court was characterized as Pearson's having asked, "Why did it happen?" The response, according to the court, was "drugs or alcohol." The trial judge found that Pearson "never set out to gain information from Mr. Bey in the capacity of being a corrections officer; that they were talking, as he described it, man to man," and that "[i]t was the inmate who initiated the conversations." Furthermore, the court noted that Pearson made no report of his conversations with Bey prior to being interrogated five years after they occurred. Pearson's testimony was "found to be extremely credible, although reluctantly given."

The trial judge concluded that the Miranda rule ² was not violated, that there was nothing about the setting that was coercive, and that Bey's statements were entirely voluntary. While the isolation in the unit could fairly be described as involving pressure to converse with a guard, there was no physical or psychological pressure to converse about incriminating subject matters. The trial judge observed that the conversations between the men "had nothing to do ... with whether or not the Court ultimately was going to overturn the conviction." The court ultimately ruled that Pearson's testimony would be allowed into evidence.

At Bey's second trial, Pearson testified only that Bey told him that "he had beat [sic] and raped a woman on the beach" and that she "died." The jury did not hear from Pearson any information about drugs, alcohol, or any other motivation for the crime.

The prosecution supplemented Bey's confession by offering the testimony of investigators from the prosecutor's offices of two other New Jersey oceanfront counties. The investigators confirmed that there had been no homicides of females in the vicinity of the beaches in either county between the defendant's return to New Jersey in March of 1983 ³ and his arrest in May of that year; the prosecution used this evidence to link Bey's statement that he had "beat and raped a woman on the beach" to Cheryl Alston's death, arguing that Bey's statement could refer to no other murder. The other evidence included: (1) police testimony and photographs describing the crime scene in which Alston's naked body had been found in a vacant lot across the boardwalk from the beach along with a "two-by-four," which had on it blood and hair later determined to match those of the victim; (2) testimony by the medical examiner that Alston died of blunt blows with a "two-by-four" instrument to the head, chest, and abdomen; (3) the testimony of a forensic scientist that a semen stain on the victim's discarded clothing was consistent with Bey's enzyme markings, but that spermatozoa removed from the victim's vagina was not; and (4) the testimony of another forensic scientist that the single set of footprints in the sand next to the body were the same "size," "pattern," and "make" as a pair of sneakers seized at the time of Bey's arrest at his mother's house 1.7 miles from the location of the crime scene.

The jury convicted Bey once again of murder, felony murder, aggravated assault, and aggravated sexual assault. The court sentenced him to life imprisonment with a 30-year parole disqualifier for the murder count and a consecutive term of 20 years with a 10-year parole disqualifier for the aggravated sexual assault count, and imposed a $2,000 Violent Crime Compensation Board penalty. The felony murder and aggravated assault counts were merged.

On appeal, the Appellate Division of New Jersey's Superior Court disagreed with the trial court's determination that Pearson was not acting as a "law enforcement agent" during his conversations with Bey. State v. Bey, 258 N.J.Super. 451, 610 A.2d 403, 411-12 (1992). The court observed that a corrections officer is a law enforcement agent by statute in New Jersey, see N.J.S.A. 2A:154-4, that the guards were all encouraged to maintain good communication lines with the inmates as a suicide precaution, that it was hard for prisoners to communicate with one another, and that the "corrections officer was one of the few people they could have any daily contact with." Bey, 610 A.2d at 411. However, the Appellate Division held that the comments were not "deliberately elicited" by the state in violation of Bey's right to counsel. The court observed that the conversations were not knowingly designed to circumvent the protections of the Sixth Amendment as Pearson was...