State v. Hightower
| Decision Date | 12 July 1990 |
| Citation | 120 N.J. 378,577 A.2d 99 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Jacinto K. HIGHTOWER, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Philip A. Ross, East Orange and Paul H. Feinberg, South Orange, Designated Counsel, for defendant-appellant (Alfred A. Slocum, Public Defender, attorney).
Meredith A. Cote, Deputy Atty. Gen., for plaintiff-respondent (Peter N. Perretti, Jr., Atty. Gen. attorney).
The opinion of the Court was delivered by
A jury convicted defendant, Jacinto K. Hightower, for the murder of Cynthia Barlieb and for several offenses related to the murder. Following the penalty phase, the trial court sentenced defendant to death. He appeals directly to this Court as of right, R. 2:2-1(a)(3), from the murder conviction and death sentence. We affirm his conviction for murder. The Attorney General concedes that defendant's death sentence must be vacated because the trial court's charge requiring juror unanimity on a mitigating factor violated the principles subsequently enunciated in State v. Bey, 112 N.J. 123, 159-60, 548 A.2d 887 (1988) (Bey II). We therefore set aside the death sentence and remand the matter for a new sentencing proceeding.
-A-
At 5:30 a.m. on Sunday, July 7, 1985, Cynthia Barlieb drove her gray 1982 Dodge Omni to the Cumberland Farms on Pennypacker Drive in Willingboro, where she worked as a clerk. She received a call around noon from her husband, who noticed nothing unusual about her voice.
At 12:15 p.m. Donald Morris, an off-duty police officer, stopped at the convenience store to buy chewing tobacco. Morris observed a black male standing at the cash register talking to the clerk behind the counter. The man was about five feet ten inches tall, thin, and light-complexioned. He wore blue jeans and a white shirt with the sleeves "pushed up." As Morris left the store, the man seemed to be "checking [him] out," apparently because he had noticed the revolver that Morris was carrying under his tee-shirt.
A few minutes later Regina Deasey and her sister, Dolores, pulled up to the store. As Dolores was alighting from the car, a short-haired, thin, light-complexioned black male came from the back of the store, opened the door, and told the sisters that the store was closed. When they asked the man to repeat himself, he answered that the store was closed because of an emergency. As they left the parking lot, Regina noticed a maroon car in the lot.
At 12:30 Clayton Leihy and his wife, Yvonne, stopped at the Cumberland Farms to buy eggs. They noticed two automobiles in the lot, one a silver-gray compact, the other a red "sporty looking" car with a spoiler. As Mr. Leihy entered the store, a short-haired man with a "military type bearing" approached him and said he was closing the store. The man was slender and about five feet nine inches tall. He wore a light-colored short-sleeve shirt or jacket and tinted sunglasses. As she waited in the car, Mrs. Leihy also saw the man, whom she later described as a "[t]all, slender, young," light-skinned black or Hispanic male with "[v]ery close-cut hair." He was wearing blue jeans and a white top with short sleeves, which may have been rolled up.
When Mr. Leihy returned to the car, he and his wife saw the man walk behind the cash register, which was on the counter at the back of the store. The man picked up a plastic bread wrapper and wiped the counter with it. According to Mr. Leihy, "it was rather dark in the store."
On their way home, Mrs. Leihy, who had once worked for Cumberland Farms, told her husband that it was strange that the store was closing in the middle of the day. Normally the company did not close stores for any reason during business hours. The couple also commented that it was odd that two cars were in the parking lot, yet only one person was in the store. When they arrived home, Mrs. Leihy telephoned the Willingboro police to report her suspicions.
At about 12:40 Mark Thomas entered the Cumberland Farms. A number of other customers were inside. Thomas hollered for a clerk but received no answer. When he opened the door to the dairy case, Thomas saw a foot on the floor. He and Ronald Davis, another customer, opened the main door to the freezer and saw a woman lying on the floor. Her left eye was "messed up," and her skin was "off-colored." Blood was on the floor near her head. Davis touched her neck but could not discern a pulse.
Walking behind the counter to call the police, Thomas saw blood "everywhere." As Thomas started to dial the telephone, Officer Payton drove into the parking lot. After seeing the body, Payton called for further assistance. Officer DePew responded to the call. Making his way to the counter, DePew saw dried, smeared blood on the counter, on the computer cash register, and on the floor. A plastic bread bag that had been torn open lay on the floor, and a few slices of bread were strewn about.
Meanwhile, Davis, Thomas, and Payton, detecting a faint pulse, attempted to resuscitate the victim. Paramedics arrived and took the victim to Rancocas Valley Hospital. Despite emergency surgery, doctors could not save Cynthia Barlieb's life.
During the subsequent investigation the police found a spent .32-caliber shell casing on the counter near the register. There were pry marks to the left of the register drawer and a bullet hole to the right. A dusting of the plastic bread bag uncovered a latent fingerprint.
Dr. Joseph DeLorenzo, the Chief Medical Examiner for Burlington County, performed an autopsy on Barlieb that same evening. The external examination of the body revealed three bullet wounds, one on the left side of her chest, another on the left portion of her neck, and the third on the left side of her skull. In Dr. DeLorenzo's opinion, the first shot had hit the victim's chest. Entering the body about two inches to the right of the nipple, the bullet had travelled downward, abraded the pericardial sac, penetrated the right dome of the diaphragm, and entered the liver. The next bullet had struck the victim three and one-quarter inches behind the left ear, lacerated her spinal cord, and lodged in the second cervical vertebra. The final shot had entered the victim's skull four inches to the left of the midline, travelled directly vertically, and stopped in the victim's brain. The path indicated that the victim had been in a "much lower position" than her assailant and had possibly been lying on the floor when the third shot hit her. Dr. DeLorenzo removed lead fragments and three bullets from the body. According to Dr. DeLorenzo, Barlieb had died from massive cerebral and abdominal hemorrhaging due to gunshot wounds.
-B-
On leave from his army post at Fort Bliss, Texas, twenty-one-year-old Jacinto K. Hightower spent the July 4th weekend at his parents' house in Willingboro. He went out on the morning of July 7th to run some errands. After returning to pick up his wife, Michelle, and his daughter, Asia, he drove to Michelle's apartment at 668 Brooklyn Street in Philadelphia. Although Hightower had told his parents that he planned to leave for Fort Bliss that night, he and his wife returned to Willingboro. Upset that Hightower had not yet departed, his stepfather dropped him off at the airport and then took Michelle to her apartment. When Michelle arrived home she showed her roommate, Irene Williams, a small gun and a box with some bullets that she had with her. Michelle and Irene put the gun in their bathroom to hide it from Hightower. Later that evening Hightower showed up at the apartment, having decided to go AWOL.
At some point over the next few days, Hightower had a conversation with Williams' boyfriend, Christopher Forston. According to Forston, Hightower asked about a man named Carlton who was apparently having an affair with Michelle. Hightower wanted to meet Carlton in order to see "what his wife was sleeping with." If Carlton "didn't cooperate with him and talk right," he would kill him. Forston replied that Hightower could not "go around here killing people."
Hightower responded, He then told Forston of having once killed somebody, a woman in a "Pepperidge Farm Store." He said that he had gone to the store to buy Pampers; that he put the diapers on the counter and asked the clerk for a carton of cigarettes; that while the clerk retrieved the cigarettes, he walked to the door and changed the "open" sign to "closed"; that after returning to the counter, he put a tote bag on the counter and pulled out a gun; and that he asked the clerk to open the register, but The woman fell to the floor but got back on her feet. When she refused Hightower's second request to open the register, he shot her in the neck. The clerk fell to the floor again. Hightower jumped across the counter and started banging on the computer cash register because he did not know how to open it. When he felt the clerk touch him, Hightower shot her in the head. He then turned off the lights and left the store.
Hightower also told Forston about a pair of his sunglasses. Although his "girl" wanted to wear them, he "broke them up" and threw them away because
Forston told Williams about his conversation with Hightower. At Michelle's request Forston later took the gun from the bathroom and hid it under Williams' bed.
Soon after his conversation with Forston, Hightower left for Texas. He again visited the east coast on medical leave on August 18th. When he arrived at Michelle's apartment, she was entertaining another man. Although Forston and Williams were also there, everyone was too afraid to let Hightower enter the apartment. One of them called the police, who removed Hightower from the premises.
The next day Sergeant Michael...
To continue reading
Request your trial
-
State v. Bey
...... In another two cases, we found that the manner of killing alone indicated that the defendant could have intended only to cause death. See State v. Hightower, 120 N.J. 378, 412-14, 577 A.2d 99 (1990) (defendant shot the victim at close range in the chest, neck, and head, and then dragged the victim into a freezer); State v. Rose, 120 N.J. 61, 63-64, 576 A.2d 235 (1990) (Rose II ) (defendant fired shotgun point-blank at victim's abdomen). . ......
-
State v. Erazo
...... [Id. at 453-54, 550 A.2d 1172 (citing Booth v. Maryland, supra, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440. . Such comments or evidence serve to impassion the jury without adding evidence relevant to the defendant or the crime charged. Hightower, supra, 120 N.J. at 411, 577 A.2d 99; Williams II, supra, 113 N.J. at 474, 550 A.2d 1172 (Handler, J., concurring). . Page 163 . In Williams II, we recognized the holding of Booth and Gathers. Our victim-impact cases subsequent to Williams II have relied heavily on Williams ......
-
State v. Dangcil
...... See State v. Hightower , 120 N.J. 378, 401, 577 A.2d 99 (1990) (finding that a county's "facially neutral" practice of compiling petit-jury lists from motor-vehicle and voting records rebutted the defendant's representative-cross-section and equal-protection claims). As in Gerald , we find that, here, "the methods used ......
-
State v. Muhammad
...... And even more paradoxically, the Court itself may have to take steps to ensure that the c(5)(h) evidence is introduced on the trial court's own initiative, not the defendant's. See State v. Hightower, 120 N.J. 378, 415, 577 A.2d 99 (1990) (mandating that mitigating factors be presented in every capital case, even over defendant's objection, to ensure reliability of sentencing process). In short, following the statute may result in less victim impact evidence, not more. . I ......