# State v. Bey > Supreme Court of New Jersey · August 2, 1988 · 112 N.J. 123 URL: https://www.frixlaw.com/law-library/cases/9727589 ## Case - **Full name:** State of New Jersey, Plaintiff-Respondent, v. Marko Bey (Ii), Defendant-Appellant - **Court:** Supreme Court of New Jersey - **Decided:** August 2, 1988 - **Citations:** 112 N.J. 123; 548 A.2d 887; 1988 N.J. LEXIS 82 - **Precedential status:** Published - **Opinion:** Dissent by Clifford - **Judges:** Clifford, Handler, Pollock - **Cited by:** 167 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/9727589 ## How later opinions describe it (automated extraction) - holding that defendant’s intoxication warranted a jury charge where defendant consumed 120 ounces of malt liquor, some straight rum and smoked a considerable quantity of marijuana during the four-and-one-half hour period before the crime and had only partial recall *195 about … - holding that jury instructions serve to make the jury aware “that it is not merely to decide the existence of aggravating and mitigating factors, but to evaluate the evidence supporting those factors in making the ‘unique, individualized judgment’ regarding the appropriateness… - finding reversible error where court’s penalty-phase “charge failed to communicate that the jury, not the mechanics of the statute or the ‘law,’ is ultimately responsible for the imposition of the death penalty” - holding defendant’s request to “lay down and think about what happened” did not constitute invocation of right to silence as “[n]ot every break in questioning compels renewed administration of the Miranda warnings” - finding that failure to instruct jury about death consequences of finding one or more aggravating factors and no mitigating factors constituted reversible error ## Opinion text CLIFFORD, J., dissenting. I record here my agreement with what Justice Handler says on the peremptory-challenge issue, in Part I B of his dissent, see post at 198-205. Because defendant did not exhaust his peremptory challenges, this case differs from State v. Singletary, 80 N.J. 55 (1979). But as most persuasively explained by Justice Handler, post at 200-205, that feature does not render harmless the error created by the forced exercise of a peremptory challenge in the non-struck-jury, death-qualification context. Beyond that, because the record reveals with unmistakable clarity the deprivation of defendant’s right to remain silent under the fifth amendment and state-law privilege against self-incrimination, I dissent from the Court's judgment upholding the conviction of capital murder. In that respect I am in substantial agreement with Part II of Justice Handler’s opinion in which he so persuasively establishes that faithful adherence to Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), and Michigan v. Mosley, 423 U.S. 96 , 96 S.Ct. 321 , 46 L.Ed.2d 313 (1975), at the federal level, and to this Court’s decisions in State v. Kennedy, 97 N.J. 278 (1984), and State v. Hartley, 103 N.J. 252 (1986), leaves no room for any conclusion other than that defendant’s confession was unconstitutionally compelled. I would ask, as the Court asks, ante at 143, “whether the error is harmless beyond a reasonable doubt.” For me the answer is an unequivocal “no.” To Justice Handler’s convincing exegesis I would add only the following. The issue on which I focus is whether defendant invoked his right to remain silent. If, no matter how ambigú *185 ously, he did request that the questioning cease, then that request must be scrupulously honored, Hartley, supra, 103 N.J. at 263 , and police-initiated custodial interrogation cannot resume until the Miranda warnings have been reissued. The Court states its conclusion as “reach[ing] no further than finding under the circumstances that defendant’s statement [that he wanted to lie down and think about what happened] did not constitute an invocation of his right to remain silent.” Ante at 142. That precise finding is at the heart of the Court’s decision on the confession issue. And it is with that precise finding that I precisely disagree. The custodial interrogation started at 5:38 p.m. It was interrupted at 7:15 p.m., resumed at 7:35, and continued until 8:20. Defendant then remained silent. What happened immediately thereafter was sharply disputed below, but the trial court made a specific finding of fact (of which more below) based on the police version of the events: [A]t 8:30 p.m. the defendant requested permission to lay down and to think about what happened. He was placed in a cell. At about 9:30 p.m. the police returned to the cell and the defendant was again asked if he wanted to contact anyone, and he replied in the negative. Pause here for a moment — a long-paragraph moment. The majority suggests that I “misread [ ] the record,” ante at 142, when I characterize this unembellished, unadorned, flat-out statement of the trial court as a finding of fact that leads to but one conclusion: defendant invoked his right to silence. No, says the Court, it is only a “comment,” ante at 141 — one to which we should pay little attention and from which we should not draw the obvious (indeed, in my view, as will be developed below, the only possible) conclusion because the trial court did not realize the significance of that finding, did not fully appreciate the conclusion of law that would follow from it, and did not intend it as the “resolution of a materially disputed issue.” Ante at 141. But a finding is a finding is a finding. And how could a fact issue be more “materially disputed”? The police said one thing, defendant said another. The court made a *186 specific finding that the police version represented the truth. To suggest that that is not a finding of fact is, in the Court's way of expressing it, to “misread” the trial court’s statement and to close one’s eyes to the record. To suggest that it is simply an idle comment, one thoughtlessly dropped into the record, one not worthy of being invested with reliability because the trial court was blind to its potential critical significance, smacks of a cynicism that is out of place in our jurisprudence (would there have been a different finding of fact had the court given just a little more thought to where this one would lead?). And to suggest that we should close our eyes to that specific finding because defendant did not at trial rely on it as support for the proposition he urges on appeal is to ignore the place of the “plain error” Rule in capital-murder cases. See State v. Ramseur, 106 N.J. 123, 260 (1987) (in capital case, Court considered sua sponte whether there was plain error in voir dire of juror); State v. Biegenwald, 106 N.J. 13, 62 (1987) (“In no proceeding is it more imperative to be assured that the outcome is fair than in [capital] cases”); id. at 53 (“While defendant did not raise the issue either at trial or on appeal, we find that the trial court’s instructions in the sentencing proceeding constituted plain error of a nature to warrant our consideration sua sponte”)) State v. Mount, 30 N.J. 195, 213 (1959) (“where a life is at stake, this court does not hesitate in the interests of justice to invoke the plain error rule and to reverse where the trial errors were impregnated with the likelihood of having harmed the substantial rights of the defendant.” (citation omitted)). It is unthinkable that this Court, in any criminal appeal, never mind a capital murder case, would treat a specific finding of fact as anything less than or different from what it is simply because a defendant did not use that finding the right way in arguing legal points to the trial court. But that is what the Court has done. It is unthinkable that this court would say that because a defendant urged a finding of fact different from the one made by the trial court, defendant therefore could not rely on the court's finding to support a legal argument on *187 appeal. But again, that is what the Court has done. And it is, in a word, unthinkable that this Court would let a capital-murder appeal deteriorate into some sort of high-stakes “Gotcha” game. See Ross v. Oklahoma, — U.S.-,-, 108 S. Ct. 2273, 2280 , 101 L.Ed.2d 80 (1988) (Marshall, J., dissenting: “A life is at stake. We should not be playing games.”). And it pains me to observe that that is what the Court will very likely be perceived as having done. But let us return to the detective bureau. The interrogation resumed, after defendant was given the opportunity to lie down and collect his thoughts, at 10:05 p.m. without, as everyone agrees, the readministering of the Miranda warnings. If defendant’s request, quoted above in the trial court’s fact-finding, amounts to a request that the police stop their questioning, then — again as everyone agrees — the circumstances would trigger the Hartley principle requiring new Miranda warnings, in the absence of which defendant’s confession was inadmissible. Here is the way the majority interprets the request “to lay down and to think about what happened”: Defendant merely communicated his desire to spend some time thinking about the events that were the subject of the interrogation. [Ante at 138.] Reasonable enough, as long as you keep in mind, as apparently the Court does not, see ante at 138, the obvious distinction between, on the one hand, “spendpng] some time thinking about the events that were the subject of the interrogation,” and, on the other, a momentary interruption for purposes of relieving oneself, getting a drink or a bite to eat, standing and stretching, or otherwise relaxing before continuing. Here defendant spent an hour in a cell before the police brought him back to the detective bureau for further interrogation. The question is: how, in the midst of a custodial interrogation, does one lie down and think for an hour about the subject of the interrogation without the interrogation stopping? The Court says that “p]mplicit in the [trial court’s] findings is the conclusion that defendant had not sought the cessation of questioning”! Ante at 139 (emphasis added). Only the most profound *188 respect for my colleagues mutes my expression of exasperation with the stated “implicit” conclusion, as well as with the Court’s equally extravagant declaration, ante at 141, that no reasonable police officer could have construed defendant’s request as an assertion of his right to remain silent. In fact, there is no other way to construe it. My reading of this record yields but one conclusion: defendant invoked his right to silence by asking, in mid-interrogation, that he be permitted to lie down and think about what he was being asked. I see nothing ambiguous about the request. It can mean nothing other than that he wanted the questioning to stop. He was entitled to his Miranda warnings before the police resumed their pursuit of a confession. He did not get them. Therefore, his confession was inadmissible. I would reverse the conviction and remand for a new trial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9727589. Public record. Not legal advice.