# State v. Bey

> Supreme Court of New Jersey · July 28, 1992 · 129 N.J. 557

URL: https://www.frixlaw.com/law-library/cases/9694595

## Case

- **Full name:** State of New Jersey, Plaintiff-Respondent, v. Marko Bey, Defendant-Appellant
- **Court:** Supreme Court of New Jersey
- **Decided:** July 28, 1992
- **Citations:** 129 N.J. 557; 610 A.2d 814; 1992 N.J. LEXIS 435
- **Precedential status:** Published
- **Opinion:** Dissent by O'Hern
- **Judges:** Stein, Handler, O'Hern
- **Cited by:** 72 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9694595

## How later opinions describe it (automated extraction)

- finding failure to give Gerald charge harmless, even when aggravated manslaughter had been charged, because “evidence that defendant [who stomped and strangled victim] intended to cause death or knew that death was practically certain to occur [was] so compelling as to exclude…
- holding that, although court should inform jury about defendant’s prior sentences, “the court should instruct the jury that it should not consider prior sentences in its decision *405 to impose a life or death sentence because they are not statutory aggravating or mitigating f…
- holding that "[i]n determining a defendant's `relative' youth, a jury must look beyond chronological age to considerations of defendant's overall maturity" and citing to cases from other jurisdictions that take the same position
- finding failure to inform the jury that a life sentence would result in the defendant spending the next seventy years in prison "harmless error because the jury already knew the practical effect of a life sentence"
- stating that medical evidence presented in clinical terminology does not eliminate potentially prejudicial effect and instructing that "manner of death" should be described in general terms

## Opinion text

O’HERN, J.,
dissenting.
As the Court explained in State v. Gerald, 113 N.J. 40 , 549 A.2d 792 (1988), when the death penalty was superimposed on the Code of Criminal Justice in 1982, no specific reference was made to which of the two forms of murder embraced by N.J.S.A. 2C:ll-3 would be death eligible. However, the legislative history of the Act and constitutional concerns convinced the Court that only an intentional killing was death eligible. As the sponsor of the bill stated, “using the familiar forms known to common-law lawyers in New Jersey, a defendant faces death-penalty proceedings only after he has been ‘found guilty unanimously and beyond a reasonable doubt of first degree murder, willful, premeditated murder.’ ” State v. Dixon, 125 N.J. 223, *663 252 , 593 A.2d 266 (1991) (quoting Capital Punishment Act: Hearings on S. 112 Before the Senate Judiciary Committee at 1 (1982)). Hence, in Gerald we ruled that in a capital trial the jury must determine whether the defendant had knowingly or purposely caused death (capital/first-degree murder). 113 N.J. at 69-70 , 549 A. 2d 792 . If required by the evidence, the jury must consider, in the alternative, whether the defendant purposely or knowingly caused death or purposely or knowingly caused serious bodily injury resulting in death (SBI/second-degree murder). (To understand the issues more easily, I continue to use the pre-Code references, as explained in the Court’s opinion in Dixon, supra, 125 N.J. at 251-52 , 593 A. 2d 266 .) Only the former type of murder will render the defendant death eligible. Id. 113 N.J. at 69 , 549 A. 2d 792 . The difficulty that has arisen with our application of the Gerald doctrine stems from the confusion between the questions of apparent guilt and how guilt is to be decided.
At the time of this trial in 1984, the judge’s bench manual for capital cases did not distinguish between the two forms of murder in determining death eligibility, as it now does. Hence, the court did not explain to the jury that the indictment embraced two forms of murder, one capital and the other non-capital.
That portions of the charge in this case were framed only in terms of whether defendant had knowingly or purposely killed (capital/first-degree murder) without mention of intent to inflict serious bodily injury (SBI/second-degree murder) is correct. For example, the court told the jury:
The essential determination for you to make in regard to the charge of murder in this case is whether Marko Bey committed the killing purposely or knowingly as I have defined these terms to you. In order for you to find Marko Bey guilty of murder the State must establish beyond a reasonable doubt one: That the killing of Carol Peniston was committed by Marko Bey and, two, that it was done purposely or knowingly as I have defined those terms for you.
*664 In addition, the jury verdict sheet was framed in terms of knowing or purposeful murder, with no mention of serious-bodily-injury murder:
Question 1. How do you find as to the charge that on April 26, 1983 Marko Bey committed murder by knowingly or purposely causing the death of Carol Peniston by his own conduct?
However, at the outset of its charge the court told the jury:
In the First Count of the Indictment the defendant is charged with murder. And the pertinent part of the First Count in the Indictment reads as follows: That Marko Bey, on the 26th day of April, 1983 in the City of Asbury Park did commit the crime of murder in that the said Marko Bey did purposely or knowingly cause the death of or serious bodily injury resulting in the death of Carol Peniston in that the said Marko Bey committed the homicidal act of his own conduct.
Murder is the unlawful killing of one person by another purposely or knowingly. A person who commits a killing does so purposely when it is his conscious object to cause death or serious bodily injury resulting in death. A person who commits a killing does so knowingly when he is aware that what he is doing will cause death or serious bodily injury resulting in death. In either case, that is, whether the killing is committed purposely or knowingly, causing the death or serious bodily injury, it must be within the design or contemplation of the defendant.
[Emphasis added.]
The court proceeded to define “serious bodily injury,” specifically relating the definition to the killing of Carol Peniston:
Serious bodily injury means bodily injury which creates serious risk of death. You will note that I have used the words purposely and knowingly. The nature of the purpose or knowledge with which the defendant Marko Bey acted toward decedent, Carol Peniston, is a question of fact for you, the jury, to decide. Purpose and knowledge are conditions of the mind which cannot be seen and can only be determined from inferences from conduct, words or acts. It is not necessary for the State to produce a witness or witnesses who could testify that the defendant stated, for example, that his purpose was to cause the death or serious bodily injury resulting in death, or that he knew that what he was doing would kill Carol Peniston or was practically certain to cause her death or serious bodily injury resulting in death.
[Emphasis added.]
There is no way to determine if the jury, having heard several times that the definition of murder includes the knowing or purposeful infliction of serious bodily injury that results in death, understood that to be the definition of capital murder or whether its deliberations were limited to the correct portion *665 of the charge. In addition, even if the Court were to conclude that those conflicting instructions adequately conveyed to the jury the requirement that it convict defendant of first-degree/capital murder, he was entitled to have the jury instructed on the lesser-included offense of SBI murder. This Court has consistently held that a defendant is entitled to a lesser-included offense charge if there is any evidence on which the jury could rationally base a conviction of the lesser-included offense. In State v. Ramseur, the Court stated that a trial court should charge the jury regarding “ ‘all of the possible offenses that might reasonably be found from the facts.’ ” 106 N.J. 123 , 271 n. 62, 524 A. 2d 188 (1987) (quoting State v. Choice, 98 N.J. 295, 299 , 486 A.2d 833 (1985)).
The State contends that the arguments of both counsel were framed only in terms of whether defendant had knowingly or purposely killed. The State’s theory was that defendant killed the victim so that she would be unable to identify him. The defense, however, stressed that defendant had consumed large quantities of alcohol and drugs and that the killing occurred without design during the course of a robbery and sexual assault. Although defense counsel argued that the killing was a felony murder or some lesser homicide offense, her theory was consistent with SBI murder. In any event, regardless of how counsel framed the argument, the jury could have followed the court’s instructions that entitled it to convict defendant of murder under the indictment if defendant’s purpose was, as stated by the court, to “cause death or serious bodily injury resulting in death.”
The State emphasizes that there was more than enough evidence to convict defendant of knowing or purposeful murder. It argues that a review of the record undoubtedly shows that defendant intended to kill Carol Peniston. He took her to a secluded shack where he forced her to undress before he sexually assaulted her. Then he stomped on her chest, breaking four of her ribs and damaging her heart. Also, defendant broke the dental plate in his victim’s lower gum. Finally, he *666 used Ms. Peniston’s scarf or belt to strangle her from behind. Thus, the State contends that no jury would have rationally concluded that defendant’s actions were intended only to cause serious bodily injury. The problem with that argument is that it presupposes that we, as appellate judges, should decide the guilt or innocence of capital defendants. However, under our system of law, a jury must decide the difference between the two forms of murder and whether the defendant intended only to cause serious bodily harm.
In this case, that there was more than enough evidence to submit the SBI charge to the jury is regrettably self-evident. According to the testimony of Investigator Phillip George of the Monmouth County Prosecutor’s Office, after his arrest defendant told him:
I robbed the lady, I just bugged out, she saw my face, I saw her, got out of the car on Sewall Avenue, just walked around, found someplace where it was dark, going through her pocketbook. There was a light and I just bugged out. Somewhere across the tracks just past Asbury Avenue, by a building, side of the building, inside the building I just bugged out, going through her purse, went into her coat pocket, I turned around and she was looking at me.
In his written confession, read to the jury during the guilt phase, defendant stated:
I went in and I started going through her pocketbook. Then there was one more wallet that I didn’t look at. I picked it up and checked around and I was turned around and she was looking at me. I got scared and I started hitting her. She fell down. She wasn’t moving or making any sound or anything. I had sex with her and left.
In his confession defendant stated further that he hit the victim “[f]our, five, or six times. I don’t know,” and that he did not use anything but his hands to strike her. Defendant gave a similar account during his direct testimony:
Going through her pocketbook, she was standing by the door, her back was facing the door and I had bent down, I was going through her pocketbook. When I looked up towards the door she was looking at me and I got scared and I started hitting her and I had sex with her and then I struggled with her, I grabbed her pocketbook and left the building * * *.
On cross-examination, defendant denied that he had killed the victim to prevent her from identifying him:
*667 Q. Isn’t it a fact, Mr. Bey, that you killed that woman because she had seen your face and you didn’t want to be identified, isn’t that a fact?
A. No, when she seen my face, that’s when I started hitting her, okay? Now, after I started hitting her, it just went on too far, something that shouldn’t have went on.
Admittedly there is evidence in defendant’s cross-examination testimony that he used the belt to strangle Ms. Peniston: Q. You recall the belt, don’t you?
A. Yes.
Q. The belt you used to strangle Mrs. Peniston?
A. Yes.
In sum, defendant’s statements both admit and deny an intent to kill. Thus, whether defendant committed capital/first-degree murder or SBI/second-degree murder was for the jury to decide. 1
The majority emphasizes that strangulation can be meant only to kill, not to inflict serious bodily injury. Ante at 579-580, 610 A. 2d at 824-825. Yet, in other strangulation cases the Court has held that defendants were entitled to the Gerald analysis. See State v. Perry, 124 N.J. 128 , 590 A. 2d 624 (1991); State v. Davis, 116 N.J. 341 , 561 A.2d 1082 (1989).
That there was a rational basis to submit the SBI murder charge here is almost conclusively established by the fact that *668 the court submitted the offenses of aggravated manslaughter and reckless manslaughter to the jury. By definition, the jury could not be charged with those homicide offenses if there had not been evidence from which the jury could have concluded that the defendant did not intend to kill. Because the evidence presented the jury with at least two plausible bases for a murder conviction, the intentional infliction of serious bodily injury resulting in death (SBI/second-degree), or the intentional killing by strangulation (capital/first-degree), the court did not charge on an essential element of capital murder when it failed to inform the jury that only the latter form of murder was death eligible. When a jury verdict can rest on one of two available bases, no court can presume which basis it is. Bollenbach v. United States, 326 U.S. 607, 613-14 , 66 S.Ct. 402, 405-06 , 90 L.Ed. 350, 354-55 (1946). In this case, the error could not be considered harmless because there was evidence that would have sustained an SBI/second-degree murder verdict. See Vujosevic v. Rafferty, 844 F.2d 1023, 1027 (3d Cir.1988) (failure to instruct jury on aggravated assault when there was evidence to support such an instruction and the instruction was requested was not harmless error).
II
The majority does not disagree that the charge did not adequately relate to the jury the difference between capital/first-degree and SBI/second-degree murder. Rather, it reasons that the error is harmless in the circumstances of this case. Ante at 581, 610 A.2d at 825.
We may not wish to see a second retrial of this case, but there may be no other way if the sentence of death is to be carried out. Despite much recent debate about the harmless-error doctrine, see Rose v. Clark, 478 U.S. 570 , 106 S.Ct. 3101 , 92 L.Ed.2d 460 (1986); Pope v. Illinois, 481 U.S. 497 , 107 S.Ct. 1918 , 95 L.Ed.2d 439 (1987), the Supreme Court has not held that a jury charge that fails to require that the jury find an *669 essential element of an offense is harmless.. In Pope v. Illinois, five members of the Court suggested that cases prior to Rose , which “indicate that a conviction can never stand if the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof,” e.g., Cabana v. Bullock, 474 U.S. 376, 384 , 106 S.Ct. 689, 696 , 88 L.Ed.2d 704, 715 (1986), are no longer good authority after Rose. 481 U.S. at 503 n. 7, 107 S.Ct. at 1922 n. 7, 95 L.Ed.2d at 447 n. 7. Justice Scalia’s concurring opinion in Carella v. California, 491 U.S. 263 , 109 S.Ct. 2419 , 105 L.Ed.2d 218 (1989), reflects at least a partial vitality for Cabana v. Bullock, supra, 474 U.S. 376 , 106 S.Ct. 689 , 88 L.Ed.2d 704 . In Carella , the Court reversed an auto-theft conviction because a mandatory conclusive presumption was incorrectly charged to the jury. Id. 491 U.S. at 265-66 , 109 S.Ct. at 2420 , 105 L.Ed.2d at 222 . The Court would have permitted harmless-error analysis in assessing the effect of a mandatory conclusive presumption. Id. at 266-67 , 109 S.Ct. at 2421 , 105 L.Ed.2d at 222-23 . Justice Scalia expressed his discontent with the majority’s assessment of the harmless-error doctrine in relation to a mandatory conclusive presumption, stating:
The constitutional right to a jury trial embodies “a profound judgment about the way in which law should be enforced and justice administered.” Duncan v. Louisiana, 391 US 145, 155 , 20 LEd2d 491 , 88 SCt 1444 , [1450] 45 Ohio Ops2d 198 (1968). It is a structural guarantee that “reflects] a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.” Id,, at 156, 20 LEd2d 491 , 88 SCt 1444 , 45 Ohio Ops2d 198. A defendant may assuredly insist upon observance of this guarantee even when the evidence against him is so overwhelming as to establish guilt beyond a reasonable doubt. That is why the Court has found it constitutionally impermissible for a judge to direct a verdict for the State. See United States v. Martin Linen Supply Co., 430 US 564, 572-573 , 51 LEd2d 642 , 97 SCt 1349 [1355] (1977). That is also why in Carpenters v. United States, 330 US 395 , 91 LEd 973 , 67 SCt 775 (1947), the Court did not treat as harmless a jury instruction that mistakenly did not require express authorization or ratification to hold a union criminally liable for its officers’ participation in an antitrust conspiracy — regardless of how overwhelming the evidence that authorization or ratification in fact existed. We said:
*670 “No matter how strong the evidence may be of an association’s or organization’s participation through its agents in the conspiracy, there must be a charge to the jury setting out correctly the limited liability under [the NorrisLaGuardia Act, 47 Stat 70,] of such association or organization for acts of its agents. For a judge may not direct a verdict of guilty no matter how conclusive the evidence. There is no way of knowing here whether the jury’s verdict was based on facts within the condemned instructions ... or on actual authorization or ratification of such acts____” Id., at 408-409 , 91 LEd 973 , 67 SCt 775 [782-83] (footnotes omitted).
In other words, “the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials.” Bollenbach v. United States, 326 US 607, 614 , 90 LEd 350 , 66 SCt 402 [406] (1946). “Findings made by a judge cannot cure deficiencies in the jury’s findings as to the guilt or innocence of a defendant resulting from the court’s failure to instruct it to find an element of the crime.” Cabana v. Bullock, 474 US 376, 384-385 , 88 LEd2d 704 , 106 SCt 689 [696] (1986).
[Id. 491 U.S. at 268-69 , 109 S.Ct. at 2421-22 , 105 L.Ed.2d at 223-24 (Scalia, J., concurring).]
In a recent analysis of the Supreme Court’s harmless-error doctrine with respect to jury instructions, Chief Justice Rehnquist wrote:
Our cases, understandably, do not provide a single standard for determining whether various claimed errors in instructing a jury require reversal of a conviction. In some instances, to be sure, we have held that “when a case is submitted to the jury on alternative theories the unconstitutionality of any of the theories requires that the conviction be set aside. See, e.g., Stromberg v. California, 283 US 359 [ 51 S.Ct. 532 , 75 L.Ed. 1117 , 73 A.L.R. 1484 ] (1931).” Leary v. United States, 395 US 6, 31-32 , 23 LEd2d 57 , 89 SCt 1532 [1546] (1969); see also Bachellar v. Maryland, 397 US 564, 571 , 25 LEd2d 570 , 90 SCt 1312 (1970). In those cases, a jury is clearly instructed by the court that it may convict a defendant on an impermissible legal theory, as well as on a proper theory or theories. Although it is possible that the guilty verdict may have had a proper basis, “it is equally likely that the verdict ... rested on an unconstitutional ground,” Bachellar, supra, at 571 , 25 LEd2d 570 , 90 SCt 1312 [1316], and we have declined to choose between two such likely possibilities.
[Boyde v. California, 494 US. 370, 379-80, 110 S.Ct. 1190, 1197-98 , 108 L.Ed.2d 316, 328-29 (1990).]
In Boyde, the Court reviewed an instruction in the death-sentencing phase of a capital trial that was “not concededly erroneous, nor found so by a court, as was the case in Stromberg v. California, 283 U.S. 359 , 51 S.Ct. 532 , 75 L.Ed. 1117 (1931),” and thus reasoned that the proper inquiry was whether there was a “reasonable likelihood” that the jurors would have *671 been misled by the instruction. Id. 494 U.S. at 380 , 110 S. Ct. at 1198 , 108 L.Ed.2d at 329 . The corollary of that conclusion is that if there is a “reasonable likelihood” that jurors may be misled by a charge, harmless-error analysis may not be invoked.
That this “concededly-erroneous” instruction with respect to an essential element of capital murder can be preserved under the Supreme Court’s harmless-error doctrine is unlikely. I therefore dissent from the Court’s disposition of the Gerald issue.
Justice HANDLER concurs in Part I of this opinion.
For affirmance — Chief Justice WILENTZ and Justices CLIFFORD, POLLOCK, GARIBALDI and STEIN — 5.
For reversal — Justices HANDLER and O’HERN — 2.
Examples of cases in which no rational basis exists for second-degree murder are set forth in a footnote to Justice Powell’s dissenting opinion in Connecticut v. Johnson, 460 U.S. 73 , 99 n. 7, 103 S.Ct. 969 , 983 n. 7, 74 L.Ed.2d 823 , 842 n. 7 (1983). There the Court pointed to the following cases: White v. State, 415 So.2d 719, 720 (Fla.) (motorcycle-gang members stabbed woman fourteen times and slit her throat twice), cert. denied, 459 U.S. 1055 , 103 S.Ct. 474 , 74 L.Ed.2d 622 (1982); Arango v. State, 411 So.2d 172, 175 (Fla.) (defendant beat victim with a blunt instrument, wrapped an electric cord around his neck, stuffed a towel into his mouth, and shot him twice in the head), cert. denied, 457 U.S. 1140 , 102 S.Ct. 2973 , 73 L.Ed.2d 1360 (1982); State v. Mercer, 618 S. W.2d 1, 4 (Mo.) (defendant strangled rape victim until his companion could no longer detect a pulse), cert. denied, 454 U.S. 933 , 102 S.Ct. 432 , 70 L.Ed.2d 240 (1981). Justice Powell explained: "There was no concession of intent to kill in any of these cases. Yet intent in each is clear beyond a reasonable doubt.” Connecticut v. Johnson, supra, 460 U.S. at 99 n. 7, 103 S.Ct. at 983 n. 7, 74 L.Ed.2d at 842 n. 7.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9694595. Public record. Not legal advice.