State v. Hightower

• Decision Date: 08 August 1996
• Citation: 146 N.J. 239,680 A.2d 649
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Jacinto K. HIGHTOWER, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 239

146 N.J. 239

680 A.2d 649

The STATE of New Jersey, Plaintiff-Respondent, v. Jacinto K. HIGHTOWER, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Nov. 6, 1995.

Decided Aug. 8, 1996.

Robert L. Sloan and James K. Smith, Jr., Assistant Deputies Public Defender, for appellant (Susan L. Reisner, Public Defender, attorney).

Linda A. Rinaldi, Deputy Attorney General, for respondent (Deborah T. Poritz, Attorney General of New Jersey, attorney).

The opinion of the Court was delivered by

COLEMAN, J.

In State v. Hightower, 120 N.J. 378, 577 A.2d 99 (1990), this Court affirmed the 1986 capital murder conviction of defendant, Jacinto K. Hightower, but reversed his death sentence and remanded the matter for a new penalty-phase proceeding. At the second penalty trial, defendant was again sentenced to death. Defendant presently appeals that sentence pursuant to Rule 2:2-1(a)(3). Because of juror misconduct during jury deliberations that exposed the jury to extraneous influences, we reverse and remand for a new penalty trial.

I

The facts and procedural history of this case are fully set forth in Hightower. See Hightower I, supra, 120 N.J. at 386-99, 577 A.2d 99. Thus, we limit our recitation to only the facts and history relevant to this appeal.

Shortly after 12 p.m. on July 7, 1985, during the course of a robbery in a Cumberland Farms convenience store, defendant shot the clerk, Cynthia Barlieb, in her chest after she refused to comply with his demands to open the cash register. After falling to the floor as a result of the gun shot wound, Barlieb stood up, cried out and again refused to comply with defendant's repeated demands to open the cash register. Defendant shot Barlieb again, this time in the neck. While Barlieb laid on the floor, she touched defendant's leg. Defendant then shot her in the head. At 12:40 p.m. a customer discovered Barlieb's body in the store's dairy freezer.

Defendant was indicted for purposeful murder by his own conduct, contrary to N.J.S.A. 2C:11-3a(1); knowing murder by his own conduct, contrary to N.J.S.A. 2C:11-3a(2); felony murder, contrary to N.J.S.A. 2C:11-3a(3); first-degree robbery, contrary to N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b.

In October 1986, the jury found defendant guilty on all counts of the indictment. During the penalty trial, the State asked the jury to consider three aggravating factors: (1) "[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim," N.J.S.A. 2C:11-3c(4)(c); (2) "[t]he murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense committed by the defendant," N.J.S.A. 2C:11-3c(4)(f); and (3) "[t]he offense was committed while the defendant was engaged in the commission of or an attempt to commit, or flight after committing or attempting to commit ... robbery," N.J.S.A. 2C:11-3c(4)(g).

The defense, on the other hand, produced six expert witnesses, and submitted five mitigating factors to the jury: (1) "[t]he defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution," N.J.S.A. 2C:11-3c(5)(a); (2) "[t]he age of the defendant at the time of the murder," N.J.S.A. 2C:11-3c(5)(c); (3) "[t]he defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect or intoxication, but not to a degree sufficient to constitute a defense to prosecution," N.J.S.A. 2C:11-3c(5)(d); (4) "[t]he defendant has no significant history of prior criminal activity," N.J.S.A. 2C:11-3c(5)(f); and (5) "[a]ny other factor which is relevant to the defendant's character or record or to the circumstances of the offense." N.J.S.A. 2C:11-3c(5)(h).

On November 10, 1986, defendant was sentenced to death after the jury found that the State had proven each of the aggravating factors beyond a reasonable doubt. Although the jury determined that defendant had established two mitigating factors, N.J.S.A. 2C:11-3c(5)(f) and (h), it found that each of the aggravating factors outweighed all of the mitigating factors beyond a reasonable doubt, and that all of the aggravating factors outweighed all of the mitigating factors beyond a reasonable doubt.

On appeal, this Court reversed the death sentence because the Attorney General conceded that the trial court erroneously charged the jury to consider only those mitigating factors found to have been unanimously established. State v. Hightower, supra, 120 N.J. at 386, 577 A.2d 99.

II

Jury selection for the new penalty trial was conducted between September 12 and October 24, 1994. Thereafter, a seven-day trial ensued. The State relied on two aggravating factors: murder to avoid apprehension, N.J.S.A. 2C:11-3c(4)(f); and murder during a robbery, N.J.S.A. 2C:11-3c(4)(g). Defendant relied on fourteen mitigating factors: (1) defendant's age at the time of the murder, N.J.S.A. 2C:11-3c(5)(c); (2) defendant had no prior record of criminal convictions, N.J.S.A. 2C:11-3c(5)(f); (3) defendant was never adjudicated a juvenile delinquent, N.J.S.A. 2C:11-3c(5)(h); (4) defendant was sodomized as a young child, ibid.; (5) defendant's mother was diagnosed as suffering from a severe emotional disorder during his childhood, ibid.; (6) defendant during his formative years frequently assumed responsibility for the care of his younger twin siblings, ibid.; (7) defendant was placed in foster care during his formative years, ibid.; (8) during his formative years, defendant's mother deserted the family for periods of time, on one occasion during the holiday season, ibid.; (9) defendant was raised in an abusive and dysfunctional environment, ibid.; (10) the imposition of the death penalty would entail excessive hardship on members of defendant's family, ibid.; (11) defendant was engaged in productive employment while in state prison, ibid.; (12) defendant did not know the identity of his natural father, ibid.; (13) defendant witnessed the abuse of his siblings during his formative years, ibid.; and (14) any other mitigating factor that the jury found to exist. Ibid.

The only testimony presented by the State was that of Christopher Forston who had also testified at the guilt trial. Forston testified about a conversation that he had with defendant after the Cumberland Farms murder in which defendant voluntarily told Forston how he had committed the crime. Forston testified that defendant told him "he had killed a woman in a store because she wouldn't cooperate with him." According to Forston, defendant had recounted the crime as follows. Defendant entered the Cumberland Farms carrying a tote bag and waited for the customers to leave. He then picked up a box of Pampers, set it on the counter, walked to the door, turned the "open" sign to "closed," returned to the counter and asked the clerk for a pack of cigarettes. As the clerk turned her back and reached for the cigarettes, defendant pulled a gun out of his tote bag and demanded the clerk to open the cash register. Forston further testified that defendant stated that "the 'old bitch' would not cooperate [so he] shot her one time in the chest."

Additionally, Forston testified that defendant told him that after the first shot, the clerk fell to the floor but got back up hollering and refused defendant's second request to open the register. Defendant then shot her in the neck. The woman fell to the floor again. Defendant jumped over the counter and began to bang on the cash register because he did not know how to open it. When he felt the clerk grab his leg, he shot her in the head and left the store.

At the conclusion of Forston's testimony, defense counsel moved to dismiss the aggravating factor, murder to avoid apprehension, N.J.S.A. 2C:11-3c(4)(f). The defense argued that the State had not produced evidence, either direct or circumstantial, from which the jury could rationally conclude beyond a reasonable doubt that defendant killed Barlieb to avoid apprehension. Rather, the defense insisted that Forston's testimony was direct evidence that defendant killed Barlieb solely because she refused to cooperate. The trial court denied the motion, reasoning that a factual issue was presented and required a determination by the jury. The case was submitted to the jury with a special verdict sheet.

The jury commenced its deliberations on October 31, 1994, at 3:15 p.m. After deliberating for approximately one hour, the jury recessed for the day. The trial court collected from the foreperson the verdict sheet on which the jury had made some notations, as well as other notes, and sealed them in an envelope. The following morning, the jury reconvened at 9:15 a.m. to continue its deliberations. After approximately six and one-half hours of deliberating, over a two-day period, the jury submitted the following note to the court:

[I]t has come to our attention that one of the jurors has information and knowledge about this case beyond the scope of the evidence given in Court. We ask your direction in regard to this matter.

The court responded by instructing the jurors to temporarily suspend deliberations and not to discuss the case or the subject of the note. The trial court then interviewed each juror individually in chambers and in the presence of counsel. During those interviews, the judge asked each juror not to reveal his or her position to the court, or to any other juror, with respect to the point at which each juror was in the deliberations or any position taken.

Notwithstanding the judge's instructions, the jury foreperson disclosed during the interview that Juror Number 7 had informed the jury...