State v. Hightower
| Citation | 661 A.2d 948 |
| Parties | STATE v. Christopher J. HIGHTOWER. 93-673-C.A. |
| Decision Date | 01 August 1995 |
| Court | United States State Supreme Court of Rhode Island |
This case came before the court on an appeal by the defendant, Christopher J Hightower (defendant or Hightower), from a judgment of conviction entered in the Superior Court for count 1, the murder of Ernest Brendel by torture and aggravated battery; count 2, the murder of Alice Brendel; count 3, the kidnapping of Emily Brendel, a child under sixteen; count 4, the murder of Emily Brendel; count 5, the breaking into and entry of the Brendel garage; count 6, the entry of the Brendel dwelling with intent to commit larceny; count 7 and 8, forging and counterfeiting a negotiable instrument with intent to defraud; and counts 9, 10, and 11, unlawful burial in violation of G.L.1956 (1989 Reenactment) § 23-4-7(b) and (f), as amended by P.L.1991, ch. 184, § 1. On count 1 Hightower was sentenced to life imprisonment without the possibility of parole pursuant to G.L.1956 (1981 Reenactment) § 12-19.2-4, as amended by P.L.1984, ch. 362, § 2. For count 2 he was sentenced to life imprisonment to be served consecutively to the sentence in count 1. In count 3 he was sentenced to life imprisonment to be served consecutively to the sentences in counts 1 and 2. In count 4 he was sentenced to life imprisonment without parole, to be served consecutively to the sentences in counts 1 and 2 and concurrently with the sentence in count 3. On counts 5, 6, 7, and 8 he was sentenced to ten years' imprisonment on each count. On counts 9, 10, and 11 (the burial of the bodies) he was sentenced to five years imprisonment on each count and fined $10,000 on each count. In respect to counts 9, 10, and 11, the sentences were to be served consecutively to the sentences in counts 1, 2, 3, and 4. We affirm the judgment of conviction. The facts of the case insofar as pertinent to this appeal are as follows.
On September 22, 1991, Hightower came to the home of Christine Scriabine, who was entertaining some guests. He told Alexander Scriabine (Christine's husband) that he was a friend of Ernest Brendel, the brother of Christine Scriabine. After the guests had left, Hightower returned and informed the Scriabines that Ernest, Alice, and Emily Brendel had been kidnapped, most likely by members of the Mafia. He stated that his own wife and two sons had also been kidnapped. To corroborate his story, he produced the driver's license, some business cards, a bank card, and certain personal papers all relating to Ernest Brendel. He also presented some rings that he claimed were the property of Alice Brendel.
He further stated that he had received a call from the kidnappers in which they demanded a $300,000 ransom. Hightower stated that he could raise $175,000 himself and another $50,000 could be secured from Ernest Brendel's brokerage accounts, but the Scriabines would have to provide an additional $75,000 to make the exchange. He further related that Ernest Brendel had resisted the kidnapping and received a broken jaw in the ensuing struggle. He then showed the Scriabines a red Toyota that was the property of the Brendels. When he opened the trunk, Mrs. Scriabine was shocked at the amount of blood and the overwhelming odor of blood emanating from it. Alexander Scriabine, who was a physician and pharmacologist, remarked that the quantity of blood was too great for just a jaw injury. The Scriabines wanted to call the police, but Hightower admonished them that their phone had been tapped. Hightower left the Scriabine home at about 1 a.m. on September 23. Shortly thereafter, one of the Scriabines telephoned the Federal Bureau of Investigation (FBI) from the home of a neighbor.
Meanwhile, Hightower's wife, Susan Hightower, had told him she wanted a divorce. In the course of an argument, Hightower told her that he had placed a contract on her life for $5,000, with an extra $1,000 to make it appear accidental. The couple had made their home in Barrington with Susan's parents. This argument and the threat motivated Susan to seek a restraining order from the Rhode Island Family Court to mandate that defendant be ejected from her parents' home at One Jones Circle in Barrington.
An investigation that ensued following the call to the FBI disclosed that Ernest Brendel had filed a complaint against Hightower with the National Futures Association and the Commodities Futures Trading Commission. In his complaint Ernest Brendel had sought revocation of Hightower's license as a trading advisor. He claimed that Hightower had mismanaged his account and had made material misrepresentations concerning moneys invested by Hightower for the benefit of Brendel. The investigation further disclosed that on September 19, 1991, Hightower had purchased a Bear Devastator cross bow together with six arrows and six special bullet-point tips.
Alice Brendel was last seen alive on Friday, September 20, 1991, when she rode the bus home from Providence. Her husband did not meet her as was his custom, so she walked toward her home alone. The child, Emily, who was ordinarily picked up by her father after the "School's out" program at the YMCA, on September 20, 1991, was met at the YMCA by Hightower, who presented Ernest Brendel's driver's license as proof of his authorization to take the child. Emily was not seen alive again.
At about 1:30 p.m. on Monday, September 23, Hightower was arrested. A search of his person disclosed $1,500 in currency, and his wallet contained three credit cards belonging to Ernest Brendel. Prior to his arrest, he had telephoned Christine Scriabine at her home and Dr. Scriabine at his office. He told them they need not worry further about raising money because he had arranged for return of the hostages. He further admonished them not to contact the authorities. That same day Hightower forged a check in the name of Alice Brendel in the sum of $l,500 payable to himself from the joint account of Ernest and Alice Brendel. He also mailed to the National Futures Association and the Commodities Futures Trading Commission a letter purportedly signed by Ernest Brendel and written on stationery bearing Ernest Brendel's letterhead, and containing a statement withdrawing the complaint against Christopher Hightower. This letter was later found to have been printed on the Brendel computer on September 22, 1991.
After Hightower was admonished concerning his Miranda rights, he agreed to talk to the police and told them a story similar to that which he had given to Dr. and Mrs. Scriabine. He stated to the Barrington police that he had inflated the amount of the ransom in order that he might keep $100,000 himself to help with his financial problems. A typed statement was prepared by the Barrington police, which Hightower signed after making certain corrections. He was then further questioned by the Rhode Island State Police, after which he was taken to a cell. Sergeant John Lazzaro of the Barrington police had been assigned to watch Hightower. Shortly after 4 a.m. Lazzaro told Hightower that he would be leaving to check out certain tire tracks near Hightower's residence. At this point Hightower stated to Lazzaro,
Efforts to find the whereabouts of the Brendel family were unavailing until November 7, 1991, when a Katherine McCloy was walking with her dogs in an area near St. Andrew's School off Middle Highway in Barrington. One of the dogs ran into the bushes adjacent to the trail that McCloy was following and would not return when called. McCloy followed the dog and found her sniffing in an area where there were two depressions in the ground along with a small amount of white powder. McCloy, who had gardening experience, formed an opinion that the white powder was lime. She went home and called the police. The bodies of Ernest, Alice, and Emily Brendel were found buried in that location later that same day.
The bodies were transported to the office of the State Medical Examiner, where it was determined that all three deaths were the result of homicide. Ernest Brendel had died as a result of two arrow wounds to the chest. In addition, there were apparently nonfatal fractures of the skull, lacerations of the scalp, and arrow wounds in the buttocks. Alice Brendel had died as a result of strangulation by a ligature compression of the neck. The cause of Emily Brendel's death could not be determined to a reasonable degree of medical certainty.
Following the discovery of the bodies, Hightower was indicted in an eleven-count indictment for the offenses for which he was later convicted and sentenced. He moved for a new trial but later withdrew the motion.
In support of his defense Hightower testified (against his lawyer's advice) that he had witnessed the murders by four unknown men, two of whom were Latinos and two of whom were Orientals. He further testified that he had been forced by the unknown assailants to dig two graves. He also presented a defense of insanity. Both his factual defense and his defense of insanity were rejected by the jury.
In support of his appeal defendant raises nine issues. These issues will be considered in the order in which they are set forth in defendant's brief. Further facts will be supplied as may be necessary to deal with these issues.
The defendant argues that the trial justice committed reversible error in declining to grant defendant's request for a bifurcated trial. The gist of defendant's argument is that a single trial deprived him of the opportunity to present two inconsistent theories of defense to two different triers of fact. In short, defendant claims that his testimony that the crime of murder of the Brendel family was committed by four unknown...
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