State v. Bey
| Decision Date | 11 August 1999 |
| Citation | 736 A.2d 469,161 N.J. 233 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Marko BEY, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Claudia Van Wyk, Deputy Public Defender II, and Sylvia M. Orenstein, Assistant Deputy Public Defender, for defendant-appellant (Ivelisse Torres, Public Defender, attorney).
Alton D. Kenney, First Assistant Prosecutor, for plaintiff-respondent (John A. Kaye, Monmouth County Prosecutor, attorney; Mark P. Stalford, Assistant Prosecutor, of counsel and on the brief).
Catherine A. Foddai, Deputy Attorney General, for amicus curiae, Attorney General of New Jersey (Peter Verniero, Attorney General, attorney). The opinion of the Court was delivered by POLLOCK, J.
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, 549 A.2d 792 (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.
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, 548 A.2d 887 (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, 610 A.2d 814 (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, 645 A.2d 685 (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, 548 A.2d 887 (1988) and Bey III, supra, 129 N.J. at 569-76, 610 A.2d 814:
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.
* * *
* * *
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.
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 "nonstatutory mitigating factors": defendant's intoxication at the time of the crime, the failure to treat defendant's substance abuse, defendant'sremorse, 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...
To continue reading
Request your trial
-
Johnson v. State
...726 A.2d 902, 907-908 (1999)(rejecting request to presume prejudice; applying Strickland: overwhelming evidence); State v. Bey, 161 N.J. 233, 736 A.2d 469 (1999), cert. denied, 530 U.S. 1245, 120 S.Ct. 2693, 147 L.Ed.2d 964 (2000)(rejecting request to presume prejudice or analyze under Chap......
-
Turpin v. Curtis
...293 F.3d 19, 32-33(III)(B) (1st Cir.2002); United States v. Tavares, 100 F.3d 995, 998(II) (D.C.Cir.1996); State v. Bey, 161 N.J. 233, 736 A.2d 469, 489(III)(A) (1999); State v. Robinson, 138 Wash.2d 753, 982 P.2d 590, 599(III)(B) (1999) (En Banc); State v. Arguelles, 921 P.2d 439, 442 (Uta......
-
Scott v. D'Ilio, Civil Action No. 14-7475(SRC)
...191 (App. Div. 1975). The simple fact that a trial strategy fails does not necessarily mean that counsel was ineffective. State v. Bey, 161 N.J. 233, 251 (1999) (citing State v. Davis, 116 N.J. 341, 357 (1989), cert. denied, 530 U.S. 1245, 120 S.Ct. 2693, 147 L. Ed.2d 964 (2000).Measured by......
-
Fitzgerald v. D'Ilio
...at 243. Stated otherwise, in reviewing an attorney's tactics, a court must be wary of the "distorting effects of hindsight." State v. Bey, 161 N.J. 233, 251 (1999) (quoting State v. Marshall, 148 N.J. 89, 156-57 (1997)).The vast majority of defendant's assertions should have been raised on ......