CALEB M. BEYAH v. NEW JERSEY STATE PAROLE BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4351-04T54351-04T5

CALEB M. BEYAH,

Petitioner-Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent-Respondent.

_______________________________________

 

Submitted June 5, 2006 - Decided July 14, 2006

Before Judges C. S. Fisher and Yannotti.

On appeal from a Final Decision of the State Parole Board.

Caleb M. Beyah, appellant pro se.

Zulima V. Farber, Attorney General of New Jersey, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Caleb Beyah (Beyah) presently is an inmate at Riverfront State Prison in Camden. After serving 30 years and six months, Beyah became eligible for parole. Beyah appeals from a final decision of the State Parole Board denying parole and establishing a fifteen-year future eligibility term (FET). We affirm.

We begin our consideration of this appeal with a brief summary of the relevant facts. In the early morning hours of September 15, 1973, Beyah entered a Howard Johnson Motor Lodge in Maple Shade, Burlington County, and while committing a robbery there, shot and killed the clerk on duty. Five days later, on September 20, 1973, Beyah and two accomplices entered a paint store in Pennsauken, Camden County. They robbed a customer and the store's manager. During the robbery, Beyah and his accomplice shot the customer in the face, and shot and killed the manager.

On May 31, 1974, Beyah was tried in Camden County and convicted of murder, murder while armed, entering with intent to steal, robbery, assault and certain weapons offenses. He was initially sentenced to life imprisonment plus 56 to 63 years. On June 4, 1976, the sentence was reduced to a term of life imprisonment plus 29 to 32 years. On June 8, 1978, Beyah was found guilty of murder and other charges in Burlington County and he was sentenced to a consecutive life sentence. After serving thirty years and six months, Beyah became eligible for parole. On September 23, 2004, the hearing officer referred the matter to a two-member panel of the Parole Board because Beyah was incarcerated for multiple convictions and because he had a history of institutional infractions.

The two-member panel conducted a hearing on Beyah's application for parole. The panel issued a decision on September 29, 2004 in which it determined that there was a substantial likelihood that Beyah would commit another crime if released on parole. In its decision, the panel noted that Beyah had participated in institutional programs and his institutional reports were "average to above average." However, the panel noted as reasons for denying parole: Beyah's prior criminal record; his criminal record was "increasingly more serious;" he was incarcerated for multiple crimes; a prior probationary sentence failed to deter further criminal behavior; Beyah had committed numerous, serious institutional infractions; there had been insufficient problem resolution; and Beyah had a lack of insight into his criminal behavior. The two-member panel also found that Beyah did not have an adequate parole plan to assist in his successful reintegration into the community. The panel determined that a FET in excess of the administrative guidelines may be warranted. The panel therefore referred the matter to a three-member panel to establish a FET.

The three-member panel issued a written decision dated November 3, 2004, in which it noted that in the hearing before the two-member panel, Beyah was asked why he had committed the murders. Beyah replied that, at the time, he was a member of the Nation of Islam and believed that "all white people were the Devil." Beyah said that the murders were not the result of robberies that had "gone wrong." Beyah admitted that he went to the Motor Lodge and the paint store "to shoot someone because they were the Devil." Beyah was asked how he could be "so easily convinced" to seek out victims based solely of their race. Beyah replied that he did "not feel that way anymore." Beyah said that he took the victims' credit cards and money because it helped him pay his bills.

The panel stated that Beyah demonstrated insufficient insight into the reasons for his criminal conduct. The panel noted that despite his long incarceration, Beyah remained unaware of the "underlying motivations" for his "horrific, violent actions." The panel additionally found that Beyah had not "fully addressed or explored" the monetary aspect of his crimes. The panel determined that Beyah was "unsuitable for any type of release" from imprisonment until he could identify the "substantive reasons" for his violent behavior.

In addition, the panel noted that Beyah had two prior convictions as an adult offender. In 1969, he was found guilty of rape in the Pennsylvania courts and sentenced to a probationary term. In 1971, he was found guilty of operating a vehicle without a license. The panel found that Beyah's criminal record had "grown increasingly more serious with the passage of time." He had "demonstrated a complete lack of regard for societal rules . . . ." The past opportunity for community supervision on probation failed to deter future criminal behavior.

Moreover, while incarcerated, Beyah had committed seven serious and two less serious institutional infractions. The serious infractions included setting fires in his prison cell on three separate occasions. When questioned about this at his hearing, Beyah stated that he set the fires so that he could be transferred to another prison or placed into administrative segregation. The panel found that Beyah's institutional record revealed that he was a "rebellious" person who "acted-out" on his discontent. The panel stated, "You have not conformed to acceptable standards of conduct either in or out of the institutional setting." In addition, Beyah had not proposed an adequate parole release plan.

The panel determined that Beyah remained "a substantial threat to public safety." The panel noted that it was concerned that 31 years after he murdered two individuals in a calculated, pre-meditated manner, Beyah was still unaware of the reasons which motivated his criminal conduct. The panel was unconvinced by Beyah's assertion that he committed the crimes because he was under "the impression" that "white people were the Devil." The panel found that this did not provide a valid explanation "as to why [Beyah] chose to kill and rob [his] victims" in such a "sadistic" manner.

The panel also took note of what it called Beyah's "cavalier" attitude regarding the three fires he set in his prison cell. The panel stated that Beyah's lack of insight concerning the reasons why he started the fires is "consistent with the lack of insight" that Beyah had demonstrated when he attempted to state the reasons why he shot "three people at point blank range, killing two of them."

The panel additionally found that Beyah's lack of insight is "nearly the same today as it was at the time of [his] offenses." After 31 years in jail, Beyah had not provided an "acceptable explanation" for his criminal conduct. The panel was unconvinced by Beyah's assertion that he no longer harbored his "hatred of white people." The panel concluded that a FET of less than 15-years "would be inconsistent" with its conclusion that Beyah had "not shown the requisite amount of rehabilitative progress in reducing the likelihood of future criminal activity."

Beyah filed an appeal from the decision of the two-member panel denying parole but it appears that Beyah did not receive the written decision on the FET until December 28, 2004. Beyah also filed an administrative appeal from that decision. By letter dated January 14, 2005, the Board afforded Beyah an additional 45 days to supplement his appeal. On February 2, 2005, Beyah filed a supplemental statement in support of his appeal in which he asserted, among other things, that he had changed and therefore there is no likelihood that he would repeat his criminal conduct. He asked the Board to rescind the 15-year FET and parole him to a psychiatric facility.

The Board issued a final determination on March 30, 2005. The Board found that both the two-member panel had sufficiently documented the reasons for its decision to deny parole, and the three-member panel had done the same in establishing the FET. The Board stated that Beyah had not presented any information which would warrant different conclusions by the full Board. The Board found that there is a substantial likelihood that Beyah would commit a crime if released on parole and affirmed both the denial of parole and the FET.

Beyah appeals and raises the following points for our consideration, which we repeat verbatim from Beyah's pro se brief:

POINT I:

THE NEW JERSEY STATE PAROLE BOARD WERE PROCEDURALLY DEFIENCENT IN FULFILLIING STATUTORY MANDATES OF PROCEDURAL NOTIFICATION OF ITS REASON FOR DENIAL AND NOTIFICATION INFORMING A FOURTEEN DAY TIME PERIOD FOR RESPONSE TO ENLARGE FUTURE ELIGIBILITY DATE DENYING APPELLANT DUE PROCESS OF LAW.

POINT II:

APPELLANT-PETITIONER'S NEWLY IMPOSED FUTURE ELIGIBILITY DATE IN EXCESS OF STATUTORY GUILDLINES ARE PREJUDICIAL, DISCRIMINATORY AND UNSUPPORTIVE OF SUBSTANTIAL RECORD THEREWITH AND BY DEPRIVING APPELLANT-PETITIONER DUE-PROCESS OF THE LAW IN VIOLATION OF THE UNITED STATES CONSTITUTION FOURTEENTH AMENDMENT.

POINT III:

THE NEW JERSEY STATE PAROLE BOARD AND OR ITS REPRESENTATIVES PREJUDICE APPELLANT CREATING VIOLATIONS OF THE FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION AND THE CIVIL RIGHTS ACT DENYING APPELLANT DUE PROCESS OF THE LAW IN FURTHER VIOLATION OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

We have carefully considered these contentions and thoroughly reviewed the record on appeal, including the confidential appendices, which include the Camden County pre-sentence report; a report of Beyah's mental health examination; Beyah's confidential remarks to the two-member panel; and a confidential determination dated December 16, 2004 concerning the mental health report. We are convinced that there is no merit in the appeal and we therefore affirm the Board's final decision denying parole and establishing a 15-year FET. We add the following comments.

The Supreme Court has recognized that the Board's parole determinations are highly "individualized discretionary appraisals." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001)(Trantino VI)(quoting from Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Indeed, a parole decision "depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release." Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979). The Board's discretionary authority in the parole process is broad but not unlimited and the Board's decisions remain subject to judicial review for arbitrariness. Trantino VI, supra, 166 N.J. at 173 (citing Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)).

In reviewing a final decision of the Parole Board, we consider: 1) whether the agency's action is consistent with the applicable law; 2) whether there is substantial credible evidence in the record as a whole to support the agency's findings; and 3) whether in applying the law to the facts, the agency erroneously reached a conclusion that could not have been reasonably made based on the relevant facts. Trantino v. New Jersey State Parole Bd., 154 N.J. 19, 24 (1998)(Trantino IV).

Beyah is presently incarcerated for crimes committed in 1973. The standard that governs Beyah's application for parole is set forth in N.J.S.A. 30:4-123.53, which provides that when an inmate is eligible for parole, he shall be released unless it is established, by a preponderance of the evidence, that "there is a substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole at such time." Ibid. In reaching this determination, the Board must consider the factors enumerated in N.J.A.C. 10A:71-3.11(b), which include, but are not limited to, the facts and circumstances of the offense; aggravating and mitigating factors concerning the offense; commission of serious disciplinary infractions; any pattern of less serious disciplinary infractions, mental and emotional health; statements of the inmate reflecting on whether there is a likelihood the inmate will commit another crime; participation in institutional programs and statements or evidence presented by a prosecutor or other criminal justice agency. Ibid.

Here, the Board properly considered the relevant factors in N.J.A.C. 10A:71-3.11(b) in denying Beyah's application for parole. The Board found that there is a substantial likelihood that Beyah would commit a crime if released on parole. The Board based this finding on Beyah's criminal record, which indicated that Beyah's crimes had become more serious over time; the fact that a probationary term had not been a deterrent to future criminal conduct; serious institutional infractions; and a lack of insight into the criminal conduct. The Board also based its determination on the information contained in the confidential appendix. In our view, the Board's decision to deny parole is fully supported by substantial credible evidence in the record.

There is also substantial credible evidence in the record for the 15-year FET. The Board's schedule of FETs for adult inmates is set forth in N.J.A.C. 10A:71-3.21. An inmate who is "serving a sentence for murder, manslaughter, aggravated sexual assault or kidnapping or serving any minimum-maximum or specific sentence in excess of 14 years for a crime not otherwise assigned pursuant to this section shall serve 27 additional months." N.J.A.C. 10A:71-3.21(a)(1). The FET may be increased or decreased by up to nine months "when, in the opinion of the Board panel, the severity of the crime for which the inmate was denied parole and the prior criminal record or other characteristics of the inmate warrant such adjustment." N.J.A.C. 10A:71-3.21(c). If the panel determines that the FET established in accordance with the schedule is "clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior," it may establish a different FET. N.J.A.C. 10A:71-3.21(d).

It is clear from the record before us that the Board did not act arbitrarily or capriciously in establishing a 15-year FET in this manner. The record fully supports the finding by the three-member panel that, after 31 years of incarceration, Beyah continued to exhibit a lack of insight into his criminal behavior. The panel found that Beyah had not offered a convincing explanation for shooting his victims in such a horrific manner, nor was the panel convinced by Beyah's assertion that he no longer harbored the hatred of white persons which he conceded was the reason he committed the two murders. In our view, the panel and the Board reasonably concluded that a sufficiently long period of additional incarceration was required to eliminate the likelihood of recidivism.

We reject Beyah's contention that the Board erred because it failed to consider certain mitigating factors in denying parole and establishing the FET. The record shows that both the two-member panel and the three-member panel considered the relevant mitigating factors, specifically Beyah's participation in institutional programs; his average-to-above-average institutional reports; and his attempt to participate in other programs. However, the panels and the Board reasonably found that despite these mitigating factors there remained a substantial likelihood that Beyah would commit another crime if released on parole.

Beyah also argues that the Board improperly considered his religious faith in its final determination. We disagree. It is clear that the Board's decision was not based on the fact of Beyah's membership in any particular religious sect. Here, Beyah attributed his crimes to his former affiliation with the Nation of Islam. The Board considered this fact only in respect to Beyah's motivation for the crimes and his continuing lack of insight into his criminal behavior.

Finally, Beyah asserts that he was not provided with copies of the two-member panel's September 29, 2004 decision denying parole and the three-member panel's written determination dated November 3, 2004 establishing his FET. The record shows, however, that Beyah acknowledged receipt of the decision of the three-member panel on December 28, 2004. That decision fully explained the basis for the decision of the two-member panel to deny parole and set forth in great detail the basis for the 15-year FET. Beyah clearly was not prejudiced by the delay in receiving the November 3, 2004 decision. Indeed, as we have stated, after Beyah received the decision of the three-member panel and filed an appeal to the full Board, Beyah was given additional time to supplement his administrative appeal challenging the denial of parole and the FET.

Affirmed.

 

We note that the statute was amended in 1997, by L. 1997, c. 213, 1. Based on the dates of Beyah's crimes, we apply the 1979 version.

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A-4351-04T5

July 14, 2006