State v. Bey

CourtUnited States State Supreme Court (New Jersey)
Citation112 N.J. 123,548 A.2d 887
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Marko BEY (II), Defendant-Appellant.
Decision Date02 August 1988
Judith L. Borman, Asst. Deputy Public Defender, and James K. Smith, Jr., Deputy Public Defender, for defendant-appellant (Alfred A. Slocum, Public Defender, attorney, Judith L. Borman, James K. Smith, Jr., Lois A. DeJulio, First Asst. Deputy Public Defender, Matthew Astore, and Claudia Van Wyk, Asst. Deputy Public Defenders, East Orange, on the brief)

Alton D. Kenney, Asst. Prosecutor, for plaintiff-respondent (John A. Kaye, Monmouth County Prosecutor, attorney, James W. Kennedy, and Mark P. Stalford, Asst. Prosecutors, Freehold, of counsel).

Steven Pasternak, Deputy Atty. Gen., for amicus curiae, Atty. Gen. (W. Cary Edwards, Atty. Gen., attorney, Jay Hindman, Deputy Atty. Gen., of counsel, Steven Pasternak, Jay Hindman, and Boris Moczula, Deputy Atty. Gen., Trenton, on the briefs).

The opinion of the Court was delivered by


Defendant was convicted of capital murder and sentenced to death. He appealed of right, R. 2:2-1(a)(3), challenging both the guilt and sentencing proceedings. We find no reversible error in the proceedings leading to the verdict that defendant committed capital murder and related offenses. In light of the recent decision of the United States Supreme Court in Mills v. Maryland, --- U.S. ----, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), however, we find that the trial court erred in its charge at the penalty phase by requiring that the jury be unanimous in

finding mitigating factors. For this and other reasons, we reverse the imposition of the death penalty and remand the matter to the Law Division for a new sentencing proceeding.


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.

A week later, on May 3, her former husband, a lieutenant in the Neptune Police Department, received a letter from the Newark Police Department addressed to "Mr. Carol Peniston." The letter advised that Ms. Peniston's car had been involved in an accident the preceding week and that the car had been impounded. Lieutenant Peniston informed the Neptune Police Department, which, in turn, notified the Asbury Park Police Department. Subsequent investigation revealed that the car had been involved in a one-car collision in Newark at 1:46 a.m. 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 On May 6, Detective Musiello of the Asbury Park Police Department signed a complaint against defendant charging him with receiving stolen property, Ms. Peniston's Ford Granada. Later that day, at approximately 5:15 p.m., five law enforcement officials from Neptune, Asbury Park, and the Monmouth County Prosecutor's Office arrested defendant at his home in Neptune. They handcuffed defendant and took him to the Asbury Park police headquarters, and at approximately 5:35 p.m. placed him in the custody of Detective Musiello and Investigator George of the Monmouth County Prosecutor's Office.

however, was ligature strangulation. Subsequent police investigation[548 A.2d 891] 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.

Defendant was placed in an office at police headquarters and given a copy of the complaint. Detective Musiello read to defendant a Miranda warning card, and defendant signed an acknowledgment on the reverse side indicating that he had been advised of those rights. When asked if he wished to see anyone, defendant declined. He was then interrogated concerning his possession of the victim's automobile, during which interrogation he gave conflicting accounts of his activities. The State asserts, but defendant denies, that he was asked at 6:00 p.m. whether he wanted something to drink or to go to the bathroom. About 6:30 p.m., at his request, defendant was given a soda. While he was drinking the soda, defendant stated: "No matter what I say I'm going to be charged with this offense," a statement that referred, according to the State, to the automobile theft charge. The interrogation continued until 7:15 p.m., when defendant was given time to eat dinner. The questioning resumed twenty minutes later at 7:35 p.m., and lasted until 8:20 p.m., when defendant went to the bathroom and was given cigarettes and a soda. On defendant's return to the interrogation room, defendant and Investigator George, the The trial court found that five minutes later, at 8:30 p.m., defendant said he wanted to lie down so that he could think about what happened. Defendant did not expressly state that the questioning should end. Although the brief in support of defendant's motion to suppress stated that his request to lie down constituted an invocation of his right to remain silent, defendant did not urge that point at the Miranda hearing. In fact at that hearing defendant testified that it was the police who asked whether defendant wanted to lie down.

interrogating officer, sat in silence for five minutes. Defendant asserts that during this time he may have been crying.

In any event, defendant was placed in the Asbury Park municipal jail for about one hour. When he returned to the detective bureau at approximately 9:30 p.m., he was not given a new set of Miranda warnings, but was asked if he wished to communicate with anyone. He declined. Questioning resumed and continued until about 10:05 p.m., when defendant confessed to the crime. Approximately fifty minutes later, defendant was again read his Miranda rights, which he waived. 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.


On July 6, defendant was indicted for murder, contrary to N.J.S.A. 2C:11-3a(1) and (2); felony murder, contrary to N.J.S.A. 2C:11-3a(3); kidnapping, contrary to N.J.S.A. 2C:13-1b(1) and (2); aggravated assault, contrary to N.J.S.A. 2C:12-1b(1); In response, defendant made numerous pre-trial motions, including an unsuccessful one to suppress his oral and written statements obtained during the custodial interrogation on the night of the arrest. He contends that the confessions are inadmissible because he did not knowingly and intelligently waive his Miranda rights, that the confessions were not voluntary, and that the police failed scrupulously to honor his right to end the interrogation. We disagree.

aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(3) and (6); robbery, contrary [548 A.2d 892] to N.J.S.A. 2C:15-1a(1), (2) and (3); and theft, contrary to N.J.S.A. 2C:20-3a.

A. Defendant's Confession

As a result of the suppression hearing, the trial court found that defendant was properly advised and understood his "Miranda rights," that defendant voluntarily waived those rights, and that he signed the waiver card. The court, however, did not expressly find whether defendant's request to lie down constituted a request to terminate questioning. At the conclusion of the hearing, the court ruled that the oral and written confessions were admissible. We agree.

To be valid, a waiver must be made "voluntarily, knowingly, and intelligently." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 707 (1966). The state bears the burden of proof. Id. at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 724. Although the United States Supreme Court has held that the state must prove admissibility of a confession by only a preponderance of the evidence, Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 523, 93 L.Ed.2d 473, 485 (1986), this Court has held that the State must prove admissibility beyond a reasonable doubt, State v. Miller, 76 N.J. 392, 404-05, 388 A.2d 218 (1978). Here, we are persuaded beyond a reasonable doubt that the State has met its burden.

In determining the voluntariness of a confession, courts consider the characteristics of the accused, as well as the In the present case, defendant attained the age of eighteen two weeks before the interrogation. Although young, he had an extensive record of delinquency, which included convictions for robbery, assault, and sexual contact. On the night of his arrest, he was in custody at the police station for approximately nine hours. Altogether he was interrogated for three hours and five minutes before he confessed. During that time, he was offered food, beverages,...

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