State v. Bey

• Decision Date: 02 August 1988
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Marko BEY (I), Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 45

112 N.J. 45

548 A.2d 846

STATE of New Jersey, Plaintiff-Respondent, v. Marko BEY (I), Defendant-Appellant.

Supreme Court of New Jersey.

Argued Sept. 15, 1987.

Decided Aug. 2, 1988.

James K. Smith, Jr., Deputy Public Defender, and Judith L. Borman, Asst. Deputy Public Defender, for defendant-appellant (Alfred A. Slocum, Public Defender, attorney; James K. Smith, Jr., Judith L. Borman and Robert A. Seelenfreund, Asst. Deputy Public Defender, on the briefs).

Alton D. Kenny, Asst. Prosecutor, for plaintiff-respondent (John A. Kaye, Monmouth County Prosecutor, attorney; Alton D. Kenney, James W. Kennedy and Mark P. Stalford, Ass. Prosecutors, of counsel; Joseph W. Oxley and Peter J. Boser, Asst. Prosecutors, on the briefs).

Boris Moczula, Deputy Atty. Gen., for amicus curiae Atty. Gen. (W. Cary Edwards, Atty. Gen., attorney; Dorothy G. Turi, Former Deputy Atty. Gen., and Jeffrey L. Menkin, Deputy Atty. Gen., of counsel, and on the brief).

Herbert I. Waldman, Upper Montclair, submitted a brief on behalf of amicus curiae American Civil Liberties Union (Podvey, Sachs & Catenacci, Newark, attorneys; Herbert I. Waldman, Upper Montclair, H. Richard Chattman, Newark and Deborah Karpatkin, Newark, of counsel; Herbert I. Waldman, Upper Montclair, and H. Richard Chattman, Newark, on the brief).

The opinion of the Court was delivered by

STEIN, J.

This case, and State v. Bey, 112 N.J. 123, 548 A.2d 887 (1988) (Bey II ), also decided today, are both pre-Ramseur/Biegenwald capital prosecutions. We address certain trial errors in this case and hold that defendant must be retried. Additionally, since the Legislature has amended the capital punishment statute to preclude imposing the death sentence on juveniles, we conclude that capital resentencing is barred in this case. In Bey II defendant's convictions are affirmed, but principles established in Ramseur [State v. Ramseur, 106 N.J. 123, 524 A.2d 188] and Biegenwald [State v. Biegenwald, 106 N.J. 13, 524 A.2d 130] require a new sentencing proceeding.

Defendant Marko Bey was convicted of murder, felony murder, aggravated assault, and aggravated sexual assault, and sentenced to death by a Monmouth County jury. Defendant's appeal as of right to this Court, R. 2:2-1(a)(3), challenges on both constitutional and statutory grounds the application of the death penalty statute due to his status as a minor at the time of the offense. Defendant also contests his four convictions, asserting primarily that the introduction of his confession at trial violated his fifth amendment rights, and that his state and federal constitutional rights to a fair and impartial jury were violated by the jury's potential exposure to prejudicial mid-trial publicity. We reverse defendant's convictions on both these grounds. We also conclude that the Legislature did not intend for the Code's death penalty provisions to apply to defendants who were juveniles when the crime was committed; the Attorney General agrees, although for different reasons, that defendant on retrial cannot be exposed to the death penalty. If retried and again convicted of murder, defendant can be sentenced to a term ranging from thirty years to life imprisonment with a mandatory minimum term of thirty years. N.J.S.A. 2C:11-3b.

I

Early in the morning of April 2, 1983, Patrolman Kenneth Whritenour of the Neptune Police Department responded to a radio call directing him to a vacant lot adjacent to the boardwalk in Ocean Grove. Whritenour discovered the nude and battered body of a young, black female subsequently identified as Cheryl Alston. A bra was knotted loosely around the victim's neck.

Investigators from the Monmouth County Prosecutor's Office called to the scene found the victim's clothes balled up in the doorway of one of four nearby, abandoned bathhouses, along with various cosmetic items strewn about. A single trail of footprints ran from the bathhouse to the victim's body, and from the body towards Spray Avenue. A dented "two-by-four" piece of wood with blood on the end was recovered as well.

Alston had last been seen the night before when she and her mother returned to their Asbury Park home at approximately 12:45 a.m., after visiting local friends. Alston's mother had gone inside while the victim remained outside, sitting in front of the house on a concrete embankment. Shortly thereafter she disappeared.

Slightly more than a month later, on May 6, 1983, at approximately 5:15 p.m., officers from the Asbury Park and Neptune Police Departments arrested the defendant at his mother's home in Neptune for suspected involvement in another incident, the murder of Carol Peniston. ¹ He was briefly held in the house while the police executed a search warrant, and then transported to the Asbury Park Police Department where he was turned over to Detective John Musiello and Investigator Phillip George of the Monmouth County Prosecutor's Office. Defendant was read his Miranda rights by Musiello, and signed a "Miranda card" acknowledging that he had been so advised.

The police began questioning Bey about the Peniston matter at 5:38 p.m., and after breaks for dinner, use of the bathroom, and an hour of rest in his cell, he confessed and gave a written statement commencing at 10:55 p.m. and concluding shortly before midnight. After a second break for food, Detectives Edward Green and Robert Adams of the Neptune Police Department joined Musiello and George. Defendant was readvised of his Miranda rights and signed another "Miranda card" at 12:07 a.m. According to Green and George, defendant indicated that he understood his rights. He was informed that the officers now wished to question him about the murder of Cheryl Alston. At the pretrial Miranda hearing, and at trial, Investigator George testified that the defendant initially "indicated he did not want to talk to us about it [Alston]," and said "he didn't know anything about it." George continued to discuss the matter with defendant, and sometime after the other detectives left the room, Bey conceded he had known the victim and had seen her the night of her death. By 1:00 a.m. defendant had orally confessed to the Alston murder. After he and George were rejoined by Detectives Adams and Green, defendant gave and signed a written statement, commencing at approximately 1:15 a.m. and concluding at 2:48 a.m. Prior to taking this statement the police again read defendant his rights, and defendant signed the cover page of the statement acknowledging that he understood his rights and that he wished to waive them and give a voluntary statement.

The confession, read into the record in its entirety at trial, disclosed that defendant had met Alston three years earlier. They met again by chance, near the beach, on the night in question. Bey said he had already smoked six or seven marijuana cigarettes that night, and had drunk at least one forty-ounce bottle of beer. After smoking another "joint" with Alston, the two agreed to have sex and walked over to the nearby row of bathhouses. The statement reads in part:

We went inside of one (1) and we both took our clothes off. She layed her jacket down and laid on top of it. Then I got my nut and I wanted to start again and she didn't. She [sic ] we just started kissing again and I started again and she wanted to stop and she started hitting me. Then I got dressed and I had got down to the sand and I dropped her in the sand. I know I beat her but I don't remember how I did it. Then I remember running. I was going home. I ran down the street behind the Palace and then I went home. I ran down Lake Avenue in Asbury Park and I turned down Fisher and I turned on Stratford and then to Drummond Avenue. I stayed home all night.

I woke up the next morning and I heard that someone got killed. I didn't know who it was at that time. I didn't know that it was her until I saw it in the paper.

The statement also reveals Bey claimed to be "high" during the encounter and that his recollection of some details was flawed. He said he had become angry when Alston declined to have sex a second time and began to hit him, and that he did not know "the reason why [he] did it * * *."

A waiver hearing was held, as defendant was seventeen when the crime was committed, ² and the Juvenile Court waived jurisdiction pursuant to N.J.S.A. 2A:4-48 (current version at N.J.S.A. 2A:4A-26) and R. 5:9-5(b) (current version at R. 5:22-2) on May 19, 1983. Bey was indicted for "knowing" or "purposeful" murder ( N.J.S.A. 2C:11-3a(1), (2)), felony murder ( N.J.S.A. 2C:11-3a(3)), ³ aggravated assault ( N.J.S.A. 2C:12-1b(1)), and aggravated sexual assault ( N.J.S.A. 2C:14-2a(3). The prosecutor served a "Notice of Aggravating Factors" pursuant to section c(2), notifying the defendant that if he were convicted, the State would seek the death penalty and attempt to prove that "[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim," sec. c(4)(c), and that "[t]he offense was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing * * * sexual assault." Sec. c(4)(g). The defendant entered a plea of not guilty to all counts.

Defendant made several pretrial motions, two of which are pertinent for purposes of this appeal. One sought to bar the "death qualification" of the jury on the ground that application of the death penalty to a defendant who was a minor at the time of the crime would constitute cruel and unusual punishment, proscribed by both the New Jersey and United States Constitutions. The trial court rejected this motion, reasoning that the then-recently-enacted death penalty statute "reflected the [Legislature's] perception of the present state of public opinion, as well as society's current standard of decency." Because the statute did not expressly prohibit imposition of the death sentence for minors, but...