Marko Bey was
sentenced to death for two murders in 1983. He beat, strangled, sexually
assaulted, and killed 19-year-old Cheryl Alston, whose nude and battered
body was found in a vacant lot near the boardwalk in Ocean City, New
Jersey. Three weeks after the first murder, he assaulted and killed 47-year-old
He was indicted and
received a second death sentence the same year. He was 17- and 18-years
old when he committed the crimes; he confessed after physical evidence
tied him to both crimes.
Man Convicted Again For a Murder in
The New York Times
October 19, 1989
A man whose life was twice
spared by the State Supreme Court after two
separate murder convictions has again been
convicted of the 1983 sexual assault and murder
of an Asbury Park woman. The conviction could be
used against the man, Marko Bey, 24 years old,
when he is resentenced for killing another woman
A Superior Court jury
convicted Mr. Bey on charges that he sexually
assaulted, beat and strangled Cheryl Alston,
whose body was found on April 2, 1983, in Ocean
Mr. Bey, formerly of Neptune,
was found guilty on Dec. 13, 1983, but the
conviction was overturned in 1988 after the high
court ruled that evidence had been improperly
The Supreme Court also ruled
that Mr. Bey could not be sentenced to death if
he were found guilty of killing Ms. Alston
during a new trial because he was a minor when
he killed her.
Mr. Bey was also convicted of
murdering Carol Penniston, 47, in Asbury Park
three weeks after Ms. Alston's murder and was
sentenced to death. But the State Supreme Court
last year overturned the penalty.
The Monmouth County
Prosecutor's office can use Tuesday's conviction
as a factor in seeking the death penalty for Ms.
Penniston's murder, which Mr. Bey committed when
he was 18. (AP)
State v. Loftin - Appendix
On April 26, 1983, Marko Bey
accosted Carol Peniston in front of her apartment building intending to
rob her. When he heard someone else approaching, he pulled Peniston into
a nearby shed, sexually assaulted her, beat her, stomped on her chest,
and strangled her. Bey stole eight dollars and her car keys from
Peniston. He crashed and abandoned Peniston's car in his flight from the
After his arrest, Bey
confessed and was charged with murder, felony murder, kidnapping,
aggravated assault, aggravated sexual assault, robbery and theft. At
trial, he testified that he was drunk and high on marijuana at the time
of the murder. He explained that he had killed Peniston because he had
become scared when he saw her looking at him as he rifled through her
pocketbook. Bey expressed some remorse by acknowledging that the murder
should never have happened.
Bey was convicted and
sentenced to death. The penalty phase jury found two aggravating factors,
c(4)(c) (outrageously and wantonly vile) and c(4)(g) (felony murder),
and no mitigating factors. This Court affirmed the conviction, but
reversed the death sentence because the trial Judge erred in charging
the jury that mitigating factors must be found unanimously. State v. Bey,
112 N.J. 123 (1988) (Bey II).
On retrial of the penalty
phase, the State alleged two aggravating factors: c(4)(a) (prior murder),
and c(4)(g) (felony murder). As to the prior murder factor, defendant
had been sentenced to death for the rape-murder of Cheryl Alston, which
occurred approximately three weeks before the Peniston murder. The Court
reversed his death sentence after concluding that the death-penalty
statute does not permit the execution of minors. State v. Bey, 112 N.J.
45 (1988) (Bey I). Defendant had turned eighteen in the interim between
the Alston and Peniston murders. Bey alleged the existence of four
mitigating factors: c(5)(a) (extreme mental or emotional disturbance),
c(5)(c) (age), c(5)(d) (mental disease or defect or intoxication), and
In support of the mitigating
factors, Bey produced fresh evidence. His mother drank excessively, and
severely abused and neglected Bey and his siblings. His father rejected
him. Bey began drinking at age nine and using drugs, particularly
marijuana, at age eleven. He had been hospitalized twice for overdosing.
Eighteen-years-old at the time of the murder, Bey had dropped out of
school in junior high and was unemployed. Medical experts testified that
Bey suffered from organic brain damage, a frontal lobe impairment caused
by in utero exposure to alcohol, preadolescent consumption of drugs and
alcohol, and head injuries. Bey also suffered from an organic
personality disorder and lacked the ability to control his anger.
The jury found two aggravating
factors, c(4)(a) (prior murder) and c(4)(g) (felony murder), and at
least one juror found two mitigating factors, c(5)(a) (extreme mental or
emotional disturbance) and c(5)(h) (catch-all). The jury unanimously
determined that the aggravating factors outweighed the mitigating
factors and sentenced Bey to death. The Court affirmed the death
sentence, State v. Bey, 129 N.J. 557 (1992), cert. denied, 513 U.S.
1164, 115 S. Ct. 1131, 130 L. Ed. 2d 1093 (1995) (Bey III), and found it
to be proportionate, Bey IV, supra, 137 N.J. at 339.
battered body was found by a jogger on April 2, 1983, in Ocean Grove, a
section of Neptune Township, New Jersey. The nineteen-year-old’s naked
body had been found in a vacant lot across from the beach, along with a
"two-by-four," containing blood and hair later determined to match those
of the victim.
Alston had been
strangled with her own bra, and suffered extensive trauma to her face.
Her skull was fractured in several places causing cerebral hemorrhages.
There were lacerations of her liver, and bleeding in her abdominal
Marko Bey was charged
with, and convicted of her murder. He had previously been incarcerated,
and was paroled only two weeks before Alston’s murder. Bey received the
death sentence, but that sentence was reversed, because it was
discovered he had been a juvenile at the time of the murder, and under
New Jersey law, was not eligible for the death penalty.
Marko Bey wasn’t so
lucky with his second murder.
Three weeks after
Cheryl Alston’s murder, Carol Peniston was accosted by Marko Bey in a
robbery attempt. Interrupted by a passer-by, Bey took Ms. Peniston to an
abandoned shack, where he ordered her to remove her clothes. He took her
money, jewelry, and car keys. Bey then sexually assaulted her, and, when
he thought she was looking at him, Bey decided to eliminate her as a
witness. He beat her about the face, fracturing the dental plate in her
lower gum. He broke four of her ribs, caused internal bleeding, and then,
using her own scarf, strangled her to death. He left the shack, took Ms.
Peniston’s car and abandoned it in Newark.
Marko Bey was
convicted of her murder, given the death penalty by a jury.
Jersey State Penitentiary
Trenton, New Jersey
In December 1983 Marko Bey was sentenced to death for
the rape & murder of 19 year old Cheryl Alston. Her nude &
battered body was found in a vacant lot near the boardwalk in Ocean City,
New Jersey. In 1984 Bey received a second death sentence for sexually
assaulting & strangling 46 year old Carol Peniston. Bey was 17 at
the time of the first murder; he turned 18 just two weeks before the
second. In addition to his confession, abundant physical evidence tied
him to both crimes.
In June 1992 I wrote a letter to Marko Bey, one of 3
men residing on death row in New Jersey.
"I just got off the phone with Jim Stone (Bey's
lawyer) to learn that you are interested in having me come down to
Trenton to meet and possibly photograph you. I thought it might be a
good idea to write and explain what it is that we are involved in...
Basically, the idea is to give you an identity and to tell your story
through a sensitive photographic portrayal. The "magic" of
photography still amazes me after all these years. I have seen people
form immediate bonds with pictures and I am trying to make my
photographs communicate so that happens more and more often. If I am
successful an entire story can be told without words."
In July Bey acknowledged receipt of my letter.
"I'm against the D.P. but because of other
reasons not only the obvious. No one has the right to knowingly take a
persons life. (To plan to end life is wrong no matter what the reason) I
also disagree with Anti-Abortionists. In one sense they say they are
against: The taking of life (unborn child) but life is life unborn or
born so why do Anti-Abortionists support the D.P. I am myself against
Abortion BUT I or any man who can not get pregnant nor a woman who isn't
pregnant has the right to vote on or tell a woman who is pregnant what
to do with her body. Anyway Death Row is a lonely place..."
Two weeks later I wrote back to tell him we were in
the process of gaining permission to see him.
"Your willingness however to communicate with me
and to discuss whatever topic or topics you feel may be helpful to the
development of this project are very important. This is important in
terms of me getting to know you: to learn about what's important to you,
what matters. What you care about..."
On 28 August Lorie Savel, project manager for my
studio, entered death row for the first time. Her role was to interview
Marko Bey on tape. Outside the visiting room she panicked, unsure what
she should say. My advice was to treat Marko like anyone else; he
probably hadn't been treated like a human being for a long time.
Finally Marko Bey, one of only 3 people on death row
in New Jersey at the time, entered the room. He was suspicious, his
speech terse and barely audible, with a slight stutter.
I busied myself setting up lights, loading cameras,
changing perspective. Lorie persisted in trying to draw Bey out. She was
careful not to talk about his case. (This was our first audio recording,
and we feared it might be subject to subpoena.) I listened to the
conversation, chiming in every once in a while to make my presence known.
Six months later Bey wrote to me that politics was
increasing the population on death row.
"This wing now has 7 occupantís as of this
letter. Unfortunately, this is a election year for Governor in January,
so it's likely that more will be sent to this wing."
In April 1994 Bey wrote me a chatty letter about the
book Dead Man Walking, by Sister Helen Prejean. He gave the address of
the prison chaplain, and speculated about his most recent appeal.
"My second appeal was heard 8 months ago, so I'm
looking for a ruling on that appeal any day now. The main force of this
appeal is on racism playing a part in my case... The court at the D.A.'s
seemed to be worried that racism was a factor (cause) of the jury giving
me the D.P..."
The next month Lorie returned his letter.
"The book you mentioned by Sister Helen Prejean (Dead
Man Walking) is great. We've both read it and commend her ability to
deal with the issues and emotions surrounding the death penalty and the
human beings involved. She effectively deals with the issues in a way
that would be nonthreatening to pro-death-penalty believers. Which is
really the point, isn't it? The primary goal should be to change the
minds of those who are pro, not to further confirm the beliefs of the
anti-death-penalty believers. Certainly, it's great to accomplish both
if you can find a way to get the pro thinkers to open their minds to
what you're trying to communicate. If it's nonthreatening they'll see
the facts, the issues and the emotions more clearly and openly and
hopefully consider their position.
Last year we had the opportunity of meeting her. She
spoke at an awards meeting of the Massachusetts Citizens Against the
Death Penalty. She spoke of her book and her ability to change the minds
of many who have read the book: our goal with this project as you know.
She's a great inspiration to the potential successes."
124 F.3d 524
Willis E. Morton, Superintendent; Peter Verniero,* Attorney General
United States Court of Appeals, Third Circuit.
Argued Feb. 4, 1997.
Decided Aug. 28, 1997
BEFORE: STAPLETON AND MANSMANN, Circuit Judges, and POLLAK,
STAPLETON, Circuit Judge:
While incarcerated on death row
in New Jersey, Marko
Bey engaged in numerous "everyday" conversations with
Corrections Officer Alexander Pearson. These discussions covered
many different topics from sports, to women, to the news. In the
course of their discourse, Bey confessed
to the murders of two women. When Bey's
death sentence was subsequently vacated and the convictions for
the murder and sexual assault of one of the victims were reversed,
the state introduced Pearson's testimony at the retrial, and
Bey was again found guilty and this time
received a sentence of life imprisonment. After
Bey's convictions were affirmed on direct appeal, he sought
relief in the district court. Bey now
appeals from the district court's denial of his petition for
habeas corpus relief.
We hold that there was no
violation of Bey's Sixth Amendment right
to counsel because there was no deliberate elicitation of
incriminating information for use in connection with his
prosecution. We also hold that there was sufficient evidence at
Bey's second trial to support the jury's
findings of guilt. Thus, we will affirm the district court's
The bruised and battered body of
Cheryl Alston was found by a jogger on April 2, 1983, in a vacant
lot across the boardwalk from the beach in Ocean Grove, Neptune
Township, New Jersey. A police investigation ensued, and
Bey was arrested on May 6, 1983. On
December 13, 1983, he was convicted for the murder, felony murder,
aggravated assault, and aggravated sexual assault of Alston and
two days later was sentenced to death. The New Jersey Supreme
Court vacated Bey's death sentence on
August 2, 1988, because he had been a juvenile at the time of the
offense and was therefore not eligible for the death penalty. See
State v. Bey I, 112 N.J. 45, 548 A.2d 846
(1988). The Court also reversed the convictions, remanded the
case, and ordered the suppression of Bey's
confession to the police.
In a separate prosecution,
Bey was also convicted of murdering Carol
Peniston in 1983. On the day that the New Jersey Supreme Court
vacated Bey's convictions for the Alston
murder, the Court also vacated the death sentence he received for
the Peniston murder, but affirmed his conviction in that case, see
State v. Bey II, 112 N.J. 123, 548 A.2d
887 (1988). Bey has since been again
sentenced to death for the Peniston murder. See State v.
Bey, 137 N.J. 334, 645 A.2d 685 (1994);
State v. Bey, 129 N.J. 557, 610 A.2d 814
In the course of the state's
preparation for Bey's retrial in 1988, an
investigator from the Monmouth County Prosecutor's Office
interviewed some 12 or 13 corrections officers regarding
Bey. He discovered that, in addition to
the earlier confession to the police, Bey
had made statements to Pearson while incarcerated in late 1983 and
early 1984 at the Capital Sentencing Unit ("CSU") of the New
Jersey State Prison in Trenton. In a statement taken September 19,
1988, Pearson told the investigator that shortly after
Bey's arrival at the CSU he had "talked"
with Bey about "why he was here" and "why
he did it." Bey had disclosed to him that
he killed two women, one of whom he "raped and beat" "on the beach,"
and that he was "high" while committing the murders.
subsequently challenged the admissibility of Pearson's proposed
testimony on Sixth Amendment grounds and a suppression hearing was
At the hearing, Bey denied ever
discussing the murders with Pearson, but Pearson reiterated the
statements he had made to the investigator. Pearson also stated
that he had never initiated a conversation about
Bey's murders and had only discussed them when
Bey brought up the subject. Pearson did,
however, acknowledge asking Bey for
clarification "if it was something I didn't understand." The only
specific example of a question Pearson remembered asking about the
murders was "I asked him why would he do that. What kind of mind
you was in." Pearson also indicated that he was aware that
Bey had an appeal pending and that he was
represented by counsel.
At the close of the suppression
hearing, the court found that the structure of the CSU was such
that the prisoners, as a practical matter, could not converse with
one another. Thus, conversations could be conducted only with the
guards. As a corrections officer on the CSU, Pearson was charged
with the responsibility of keeping Bey in
custody and safe. His responsibilities, according to the court,
included talking to and observing Bey to
detect any suicidal tendencies. The court also observed that the
dialogue between Bey and Pearson "touched
a whole host of topics," including sports, women, and "life in
jail," but that on five to seven occasions "there was a discussion"
about why Bey was incarcerated. The only
question mentioned by the trial court was characterized as
Pearson's having asked, "Why did it happen?" The response,
according to the court, was "drugs or alcohol." The trial judge
found that Pearson "never set out to gain information from Mr.
Bey in the capacity of being a
corrections officer; that they were talking, as he described it,
man to man," and that "[i]t was the inmate who initiated the
conversations." Furthermore, the court noted that Pearson made no
report of his conversations with Bey
prior to being interrogated five years after they occurred.
Pearson's testimony was "found to be extremely credible, although
The trial judge concluded that
the Miranda rule2
was not violated, that there was nothing about the setting that
was coercive, and that Bey's statements
were entirely voluntary. While the isolation in the unit could
fairly be described as involving pressure to converse with a guard,
there was no physical or psychological pressure to converse about
incriminating subject matters. The trial judge observed that the
conversations between the men "had nothing to do ... with whether
or not the Court ultimately was going to overturn the conviction."
The court ultimately ruled that Pearson's testimony would be
allowed into evidence.
second trial, Pearson testified only that Bey
told him that "he had beat [sic] and raped a woman on the beach"
and that she "died." The jury did not hear from Pearson any
information about drugs, alcohol, or any other motivation for the
The prosecution supplemented
Bey's confession by offering the
testimony of investigators from the prosecutor's offices of two
other New Jersey oceanfront counties. The investigators confirmed
that there had been no homicides of females in the vicinity of the
beaches in either county between the defendant's return to New
Jersey in March of 19833
and his arrest in May of that year; the prosecution used this
evidence to link Bey's statement that he
had "beat and raped a woman on the beach" to Cheryl Alston's death,
arguing that Bey's statement could refer
to no other murder. The other evidence included: (1) police
testimony and photographs describing the crime scene in which
Alston's naked body had been found in a vacant lot across the
boardwalk from the beach along with a "two-by-four," which had on
it blood and hair later determined to match those of the victim;
(2) testimony by the medical examiner that Alston died of blunt
blows with a "two-by-four" instrument to the head, chest, and
abdomen; (3) the testimony of a forensic scientist that a semen
stain on the victim's discarded clothing was consistent with
Bey's enzyme markings, but that
spermatozoa removed from the victim's vagina was not; and (4) the
testimony of another forensic scientist that the single set of
footprints in the sand next to the body were the same "size," "pattern,"
and "make" as a pair of sneakers seized at the time of
Bey's arrest at his mother's house 1.7
miles from the location of the crime scene.
The jury convicted
Bey once again of murder, felony murder,
aggravated assault, and aggravated sexual assault. The court
sentenced him to life imprisonment with a 30-year parole
disqualifier for the murder count and a consecutive term of 20
years with a 10-year parole disqualifier for the aggravated sexual
assault count, and imposed a $2,000 Violent Crime Compensation
Board penalty. The felony murder and aggravated assault counts
On appeal, the Appellate
Division of New Jersey's Superior Court disagreed with the trial
court's determination that Pearson was not acting as a "law
enforcement agent" during his conversations with
Bey. State v. Bey, 258 N.J.Super.
451, 610 A.2d 403, 411-12 (1992). The court observed that a
corrections officer is a law enforcement agent by statute in New
Jersey, see N.J.S.A. 2A:154-4, that the guards were all encouraged
to maintain good communication lines with the inmates as a suicide
precaution, that it was hard for prisoners to communicate with one
another, and that the "corrections officer was one of the few
people they could have any daily contact with."
Bey, 610 A.2d at 411. However, the Appellate Division held
that the comments were not "deliberately elicited" by the state in
violation of Bey's right to counsel. The
court observed that the conversations were not knowingly designed
to circumvent the protections of the Sixth Amendment as Pearson
was not instructed to obtain any incriminating information from
Bey, he never prepared any reports about
the information, there was no investigative or motivational nexus
between the prosecutor's office and Pearson, and the state only
discovered the confession to Pearson through the investigation of
the prosecutor's office. Id. at 415. The court also rejected
Bey's claim that the evidence at trial
had been insufficient to support his conviction. The New Jersey
Supreme Court denied certification. State v. Bey,
130 N.J. 19, 611 A.2d 657 (1992).
The district court denied
Bey's petition for habeas relief, holding
that Pearson's casual discussions with Bey
were not "deliberately designed to elicit statements from the
defendant that would settle the outcome of the trial one way or
another," and that the sum of the evidence was sufficient to
support Bey's conviction.
In the briefing before us,
Bey argued that we should conduct plenary
review of the state court's conclusion that his Sixth Amendment
right was not violated. See Miller v. Fenton, 474 U.S. 104,
115-17, 106 S.Ct. 445, 452-53, 88 L.Ed.2d 405 (1985); Parry v.
Rosemeyer, 64 F.3d 110, 113 (3d Cir.1995), cert. denied, --- U.S.
----, 116 S.Ct. 734, 133 L.Ed.2d 684 (1996). The state, on the
other hand, urged us to examine the decision under the more
deferential standard articulated in 28 U.S.C. § 2254, as amended
by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),4
Pub.L. No. 104-132, 110 Stat. 1214.
When this case was briefed, the
federal courts had taken conflicting positions on whether the
AEDPA's amendments were applicable in non-capital habeas corpus
proceedings, like Bey's, that were
pending at the time of the AEDPA's enactment. The Supreme Court
has since resolved the debate, holding that the AEDPA's
modifications to § 2254(d) and (e) do not apply in such
circumstances. Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138
L.Ed.2d 481 (1997). Accordingly, we review Bey's
petition under our prior plenary standard and are not required by
the AEDPA to defer to the state court's conclusion on this legal
The Sixth Amendment, which is
made applicable to the states through the Fourteenth Amendment,
provides that "[i]n all criminal prosecutions, the accused shall
enjoy the right ... to have the assistance of counsel for his
defense." U.S. Const. amend. VI; see Estelle v. Smith, 451 U.S.
454, 469, 101 S.Ct. 1866, 1876, 68 L.Ed.2d 359 (1981). The
Amendment serves to safeguard the adversarial process by ensuring
that once the right to counsel has attached the accused "need not
stand alone against the State" at any "critical stage" of the
aggregate proceedings against him. Id. at 470, 101 S.Ct. at
1876-77; see also United States v. Henry, 447 U.S. 264, 269, 100
S.Ct. 2183, 2186, 65 L.Ed.2d 115 (1980). The purpose of the Sixth
Amendment is to protect the "unaided layman," who "finds himself
faced with the prosecutorial forces of organized society, and
immersed in the intricacies of substantive and procedural criminal
law." United States v. Gouveia, 467 U.S. 180, 189, 104 S.Ct. 2292,
2298, 81 L.Ed.2d 146 (1984) (quoting Kirby v. Illinois, 406 U.S.
682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972)).
In a line of cases involving
incriminating statements made to police informants, the Supreme
Court has held that an individual who stands indicted of a crime
is denied his right to counsel when agents of the state circumvent
that right by "deliberately elicit[ing]" inculpatory statements
from him in the absence of his counsel, absent a voluntary and
knowing waiver. Michigan v. Harvey, 494 U.S. 344, 348-49, 110 S.Ct.
1176, 1179-80, 108 L.Ed.2d 293 (1990); see also Kuhlmann v.
Wilson, 477 U.S. 436, 457, 106 S.Ct. 2616, 2628-29, 91 L.Ed.2d 364
(1986); Maine v. Moulton, 474 U.S. 159, 173, 106 S.Ct. 477,
485-86, 88 L.Ed.2d 481 (1985); Henry, 447 U.S. at 270, 100 S.Ct.
at 2186-87; Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct.
1199, 1203, 12 L.Ed.2d 246 (1964). The deliberate elicitation
doctrine was first recognized in Massiah, where the defendant,
released on bail, made numerous incriminating statements to his
codefendant, who had agreed to act as a government informant and
had permitted the installation of a surveillance device in his
automobile. Id. The Court concluded that the protections of the
Sixth Amendment apply to "indirect and surreptitious
interrogations as well as those conducted in the jailhouse" and
held that the defendant's confession had been "deliberately
elicited" by the police in violation of both the Fifth and Sixth
In Henry, the Court determined
that the defendant's pretrial confession to a government informant
who had been placed in the defendant's cell in order to listen to
his comments should have been suppressed. 447 U.S. at 274, 100
S.Ct. at 2188-89. The Court applied Massiah's deliberate
elicitation formulation, observing three relevant factors: (1) the
paid informant was acting under the state's instructions and had
an incentive to produce useful information; (2) the informant was
ostensibly no more than a fellow inmate; and (3) the defendant was
in custody and under indictment. Id. at 270, 100 S.Ct. at 2186-87.
Despite the government's specific instructions to merely listen to
the defendant, the informant had "stimulated" conversations with
the defendant. Id. at 273, 100 S.Ct. at 2188. The Court held that
"[b]y intentionally creating a situation likely to induce[the
defendant] to make incriminating statements without the assistance
of counsel, the Government violated [the defendant]'s Sixth
Amendment right to counsel." Id. at 274, 100 S.Ct. at 2189. The
case was not one where " 'the constable ... blundered;' rather, it
[was] one where the 'constable' planned an impermissible
interference with the right to the assistance of counsel." Id. at
275, 100 S.Ct. at 2189.
The Court also found a Sixth
Amendment violation where the confession was obtained by an
informant who agreed to wear a recording device in a meeting with
a defendant out on bail. Moulton, 474 U.S. at 180, 106 S.Ct. at
489. The Court invoked Massiah and Henry and articulated the
[K]nowing exploitation by the State of an
opportunity to confront the accused without counsel being present
is as much a breach of the State's obligation not to circumvent
the right to the assistance of counsel as is the intentional
creation of such an opportunity. Accordingly, the Sixth Amendment
is violated when the State obtains incriminating statements by
knowingly circumventing the accused's right to have counsel
present in a confrontation between the accused and a state agent.
Moulton, 474 U.S. at 176, 106
S.Ct. at 487. Where the police suggested that the informant wear
the wire at the meeting with his codefendant and the police were
aware that the meeting was for the "express purpose" of discussing
the pending charges and trial defense, a Sixth Amendment violation
occurred. Id. at 176-77, 106 S.Ct. at 487-88.
In Kuhlmann, on the other hand,
the Court did not find a Sixth Amendment violation where an inmate
had followed police instructions and had merely listened to the
confession of his cellmate. 477 U.S. at 456, 106 S.Ct. at 2628.
After the defendant's arraignment, the police placed him in the
same cell with the informant for the express purpose of
determining who the defendant's accomplices were. The defendant
initially told the informant the same story he had given to the
police, whereupon the informant advised him that his story "didn't
sound too good." Later, the defendant related the actual events,
an account which the informant surreptitiously noted in writing
and rendered to the police. Id. at 440, 106 S.Ct. at 2619-20. The
Court cited the Massiah and Henry decisions and observed that the
"primary concern of the Massiah line of decisions is secret
interrogation by investigatory techniques that are the equivalent
of direct police interrogation." Id. at 459, 106 S.Ct. at 2630.
The Court stated:
Since "the Sixth Amendment is not violated
whenever--by luck or happenstance--the State obtains incriminating
statements from the accused after the right to counsel has
attached," a defendant does not make out a violation of that right
simply by showing that an informant, either through prior
arrangement or voluntarily, reported his incriminating statements
to the police. Rather, the defendant must demonstrate that the
police and their informant took some action, beyond merely
listening, that was designed deliberately to elicit incriminating
Id. at 459, 106 S.Ct. at 2630 (citation
omitted). Because the informant had not asked any questions but "only
listened" to the defendant's "spontaneous" and "unsolicited"
statements, no Sixth Amendment violation occurred. Id. at 460, 106
S.Ct. at 2630.
In each case, those charged with
Sixth Amendment violations were conducting, or working with others
who were conducting, an investigation of crimes the defendant had
been charged with committing. They were thus deliberately seeking
to elicit information to be used in connection with the charges
pending against the accused, the subject matter of the defendant's
attorney-client relationship. In this line of cases, the Court
struggled with the issue of whether there are any circumstances
under which the state can deliberately undertake to secure
incriminating information from a represented defendant in the
absence of counsel and can thereafter use in court the
incriminating information it obtains. The answer that has evolved
is that it can, only if there is not "elicitation"--only if the
government does no more than listen. See Kuhlmann, 477 U.S. at
459, 106 S.Ct. at 2629-30. It cannot if the police or their
informants question or otherwise encourage or facilitate the
defendant's discussion of the crime, and this is true even if the
defendant initiates the discussion of the criminal conduct. See
Henry, 447 U.S. at 271-72, 100 S.Ct. at 2187-88.
These strict rules are necessary
in Massiah-type situations because the state has deliberately set
out to secure information for use in a pending prosecution and
because the accused, thinking he is communicating with a fellow
inmate rather than a state investigator, is exercising no judgment
as to whether counsel's advice should be sought. Under these
circumstances, the risk of "dilut[ing] the protection afforded by
the right to counsel" is great. Moulton, 474 U.S. at 171, 106 S.Ct.
at 484; see Henry, 447 U.S. at 273, 100 S.Ct. at 2188 ("Conversation
stimulated in such circumstances may elicit information that an
accused would not intentionally reveal to persons known to be
also relies on another line of cases, those involving court-ordered
examinations to obtain information relevant to the prosecution of
the defendant's case. See Powell v. Texas, 492 U.S. 680, 109 S.Ct.
3146, 106 L.Ed.2d 551 (1989); Satterwhite v. Texas, 486 U.S. 249,
108 S.Ct. 1792, 100 L.Ed.2d 284 (1988); Buchanan v. Kentucky, 483
U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987); Estelle v. Smith,
451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). In Estelle,
the Court held that a defendant in a capital case has "a Sixth
Amendment right to the assistance of counsel before submitting to
[a] pretrial psychiatric interview" ordered by the court for the
purpose of securing information for use in connection with the
defendant's trial. Id. at 469, 101 S.Ct. at 1876.6
It followed that, if counsel was not notified of the interview and
given the opportunity to advise his client on whether to submit to
it, information secured from the defendant could not be used by
the state at trial. Since the state had used the psychiatrist to
prove future dangerousness at the penalty stage, the death penalty
judgment had to be reversed. Id. at 471, 101 S.Ct. at 1877. Accord
Powell, 492 U.S. at 681-85, 109 S.Ct. at 3147-50 (finding
violation of Sixth Amendment where defense counsel was not
informed that competency and insanity examination would include
issue of future dangerousness); Satterwhite, 486 U.S. at 252-55,
108 S.Ct. at 1795-97 (holding defense counsel does not receive
constructive notice of a mental examination and its scope through
the filing of documents granting an ex parte motion for such an
exam). Compare Buchanan, 483 U.S. at 424-25, 107 S.Ct. at 2918-19
(where defense counsel had raised mental status defense and had
moved for a psychiatric examination, no Sixth Amendment violation
occurred when court-ordered examination was used at trial to rebut
In the Estelle line of cases, as
in Massiah, those acting on behalf of the state, i.e., the
prosecutor, judge, and psychiatrist, were deliberately attempting
to secure information from the defendant for use in connection
with his prosecution. Accordingly, a similar risk of diluting the
protection afforded by the Sixth Amendment existed in this line of
The critical distinction between
this case and the Massiah and Estelle lines is that Pearson, while
a state actor, was not a state actor deliberately engaged in
trying to secure information from the defendant for use in
connection with the prosecution that was the subject matter of
counsel's representation. While it may be debatable whether any of
the information used at trial was given by Bey
in response to a question from Pearson, the state court found,
based on undisputed facts, that no question asked by Pearson was
part of an effort "deliberately designed to elicit incriminating
remarks" for use against Bey. While it
thus may not be clear whether there was an "elicitation" by
Pearson, there certainly was no "deliberate elicitation" within
the teachings of the cases Bey relies
Ordinarily, when a state agent
converses with an indicted defendant under circumstances in which
the agent should expect that incriminating information might be
disclosed and such information is disclosed and is subsequently
used in the prosecution, it can be presumed that there was a
deliberate elicitation of information for use in connection with
the case. The undisputed facts in this case, however, are simply
inconsistent with a deliberate plan on the part of Pearson to
garner information for use against Bey.7
Pearson was known by
Bey to be an employee of the state, not a
fellow inmate or confederate. While the circumstances were such
that Pearson should have anticipated that Bey
would converse freely with him, given Pearson's status as a guard
and the fact that he did little, if anything, to draw
Bey out on the subject of his crimes, we
question whether Pearson should have anticipated the confession
which Bey volunteered. But even if we
assume elicitation on Pearson's part, the undisputed facts do not
support the hypothesis that Pearson intended to elicit information
for use against Bey. First, Pearson had
no responsibility for eliciting or reporting information for use
in the prosecution of Bey's case and was
not working with anyone who had such responsibility. Second, and
most importantly, Pearson did not behave like someone who intended
to secure incriminating statements from Bey.
The record lacks evidence of any questions designed to elicit the
statement that Bey had raped and beaten a
woman to death on the beach, and merely reveals Pearson's asking "why"
Bey had committed the act and seeking
clarification "if it was something [he] didn't understand."
Pearson did not take any notes or compile any reports of his
conversations with Bey. Cf. Kuhlmann, 477
U.S. at 440, 106 S.Ct. at 2619-20 (informant surreptitiously
recorded cellmate's statements in writing). In fact, Pearson
disclosed the confession to no one for five years.8
It was only through the systematic efforts of the investigator
that the prosecutor's office uncovered Bey's
statements. Even Pearson's testimony in Bey's
case was "reluctantly given." Thus, the state's receipt of
Bey's confession was not the result of
any deliberate elicitation by Pearson for use in connection with
Bey's prosecution, and the state's use of
Bey's confession at trial did not violate
the Sixth Amendment.9
We also find no merit in
Bey's sufficiency of the evidence
challenge. Pearson's testimony, if credited, established that
Bey had "beat[en] and raped a woman on
the beach" and that she had "died." Investigators from the
prosecutor's offices in two New Jersey oceanfront counties
confirmed that there were no homicides of females in the vicinity
of the beaches in their jurisdiction during the relevant time
period; this evidence narrowed the possibility that
Bey was confessing to the murder of
someone other than Alston when he admitted that he had beaten and
raped a woman on a beach. Alston's naked and battered body was
found just across the boardwalk from the beach with her bra
wrapped around her neck. She died from severe blunt trauma caused
by a two-by-four inch instrument matching the stick found at the
scene, bearing her blood and hair. Articles of her clothing
located at the scene were stained with sperm which was consistent
with Bey's enzyme markers. The single set
of footprints matched the "size," "pattern," and "make" of a pair
of sneakers seized at the time of Bey's
arrest from his mother's house less than two miles away from the
location of the body.
Taking this evidence in the
light most favorable to the state, as we must, we hold that
Pearson's testimony and the other evidence that corroborates and
supplements it provides a satisfactory basis for the jury's beyond
a reasonable doubt verdict. See Jackson v. Virginia, 443 U.S. 307,
318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Jackson v.
Byrd, 105 F.3d 145, 147-48 (3d Cir.), cert. denied, --- U.S. ----,
117 S.Ct. 2442, 138 L.Ed.2d 201 (1997). In reaching this
conclusion, we are not unmindful of the fact that the sperm found
in the victim's vagina did not match Bey's
enzyme type. The jury was entitled to evaluate this fact in light
of the forensic scientist's uncontested testimony that sperm may
remain in the body for up to 48 hours after sexual intercourse,
although it is rarely discovered later than 16 hours after such
activity. The jury was thus not required to conclude that this
undisputed fact was inconsistent with Bey's
We will affirm the judgment of
the district court.