State v. Bey

CourtUnited States State Supreme Court (New Jersey)
Citation610 A.2d 814,129 N.J. 557
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Marko BEY, Defendant-Appellant.
Decision Date28 July 1992

James K. Smith, Jr., Deputy Public Defender, and Claudia Van Wyk, Deputy Public Defender II, for defendant-appellant (Wilfredo Caraballo, Public Defender, attorney;

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James K. Smith, Jr., Claudia Van Wyk, and Matthew Astore, Deputy Public Defender II, on the briefs).

Mark P. Stalford, Asst. Prosecutor, for plaintiff-respondent (John Kaye, Monmouth County Prosecutor, attorney).

Catherine A. Foddai, Deputy Atty. Gen., for amicus curiae, Atty. Gen. of New Jersey (Robert J. Del Tufo, Atty. Gen., attorney).

The opinion of the Court was delivered by


In State v. Bey, 112 N.J. 123, 548 A.2d 887 (1988) (Bey II ), we affirmed Marko Bey's conviction for the murder of Carol Peniston but reversed the death sentence and remanded the case for a new sentencing proceeding. A second jury returned a death sentence. Defendant appeals as of right to this Court, N.J.S.A. 2C:11-3e, challenging the original conviction on Gerald grounds, see State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988), and the sentence of death because of claimed error in the resentencing proceeding. We affirm defendant's conviction and sentence of death.


The relevant facts of Ms. Peniston's murder are excerpted from Bey II, supra, 112 N.J. at 131-33, 548 A.2d 887:

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

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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.

In defendant's initial trial, a jury convicted him of capital murder. In the penalty-phase, the same jury sentenced defendant to death, finding both aggravating factors proffered--that the murder had "involved torture, depravity of mind, or an aggravated assault to the victim," N.J.S.A. 2C:11-3c(4)(c) ("c(4)(c)"), and that the murder had been committed in the course of a felony, N.J.S.A. 2C:11-3c(4)(g) ("c(4)(g)")--and finding no mitigating factors. This Court affirmed defendant's conviction but reversed the sentence largely because the court had incorrectly charged the jury on the finding of mitigating factors. Bey II, supra, 112 N.J. at 156-72, 548 A.2d 887. We remanded for resentencing.

On the same day that this Court decided Bey II, it also vacated defendant's conviction and death sentence for the murder of Cheryl Alston. State v. Bey, 112 N.J. 45, 548 A.2d 846 (1988) (Bey I). There, we held that defendant was not death-

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because he had committed the murder before the age of eighteen. Id. at 51-52, 548 A.2d 846. Defendant was subsequently retried for the Alston homicide and found guilty of purposeful murder. The court sentenced defendant on the murder count to life imprisonment with a thirty-year parole disqualifier and on aggravated sexual assault to a consecutive twenty-year term with a ten-year parole disqualifier. Those sentences were made consecutive to all sentences defendant was then serving. The Appellate Division recently affirmed defendant's conviction for the Alston murder. 258 N.J.Super. 451, 610 A.2d 403, certif. denied, 130 N.J. 19, 611 A.2d 657 (1992).

In February 1990, defendant moved in the Law Division for a new guilt-phase trial in the Peniston murder based on our decision in Gerald, supra, 113 N.J. 40, 549 A.2d 792. The court denied the motion, and both the Appellate Division and this Court denied leave to appeal.

In June 1990, the Law Division considered and resolved a number of pretrial motions regarding the Peniston resentencing proceeding. The court denied defendant's motion to dismiss the petit jury panel for unconstitutional under-representation of blacks but it granted defendant's motion to inspect and copy all jury records in the possession of the Monmouth County Clerk and to communicate with jurors to determine their race. The court denied without prejudice defendant's motion for change of venue. The court also granted defendant's motion to strike the c(4)(c) aggravating factor but denied defendant's motion to dismiss the prior-murder aggravating factor.

Voir dire lasted six days. Fourteen jurors were selected to hear the case, two of whom were designated as alternates immediately prior to jury deliberations. During voir dire, the court questioned potential jurors about whether their knowledge that defendant had already been sentenced for a prior murder to life imprisonment with a forty-year parole-ineligibility period would affect their impartiality.

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The resentencing trial lasted seven days. The State sought to prove two aggravating factors, that defendant had committed a prior murder, c(4)(a), and that the murder had occurred during the course of sexual assault and robbery, c(4)(g). The defense did not contest the aggravating factors but argued that they were outweighed by four mitigating factors: (1) "defendant was under the influence of extreme mental or emotional disturbance," N.J.S.A. 2C:11-3c(5)(a) ("c(5)(a)"); (2) defendant's age at the time of the murder, N.J.S.A. 2C:11-3c(5)(c) ("c(5)(c)" or "age mitigating factor"); (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) ("c(5)(d)"); and (4) "[a]ny other factor which is relevant to the defendant's character or record or to the circumstances of the offense," N.J.S.A. 2C:11-3c(5)(h) ("c(5)(h)" or "catch-all factor").

To prove the prior murder, the State called Dr. Stanley Becker, the Monmouth County pathologist, who described the cause of death as asphyxia due to strangulation, and detailed the wounds inflicted on Ms. Alston. Investigator Phillip George described the appearance of the victim when found and the presence of a two-by-four at the crime scene. He also reported that the victim was subsequently identified as Cheryl Alston, and that she was nineteen years old at the time of death. Investigator Michael Dowling had testified that a jury had convicted defendant of murdering Ms. Alston, and the State introduced Ms. Alston's death certificate into evidence.

To establish that the Peniston murder had occurred during the commission of a felony, the State produced evidence indicating that defendant had sexually assaulted and robbed the victim: her semen-stained raincoat, her raincoat belt and scarf (both found tied around her neck), buttons from her dress, other articles of clothing, a crime-scene photograph depicting the victim when found, and the rear-view mirror from the victim's car containing defendant's fingerprints. Investigator

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Dowling testified about the significance of those items and described his investigation of the murder.

In addition, the State's pathologist, Dr. Becker, testified that Ms. Peniston had been strangled from behind and sexually assaulted. He graphically described the brutal injuries inflicted on the victim's face and chest. Investigator George read to the jury defendant's station-house confession of robbery and rape. A New Jersey State Police forensic scientist, Henry Swordsma, testified that the sperm stain found on Ms. Peniston's raincoat was consistent with defendant's whole blood sample. Finally, the State moved Ms. Peniston's death certificate into evidence.

In support of the mitigating factors, the defense presented evidence concerning defendant's upbringing through the testimony of four witnesses: defendant's mother (Patricia Bey), aunt (Gwendolyn El), uncle (Clarence Horton), and a family friend (Juliet El). We summarize the pertinent aspects of defendant's background. Defendant was the second of Patricia Bey's four children. An...

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