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State v. Hightower

Decided: July 12, 1990.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JACINTO K. HIGHTOWER, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Burlington County.

For affirmance; vacated and reversal -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Clifford, J. Chief Justice Wilentz joins in all except Part IV A. Justice Handler has filed a separate opinion, concurring in part and dissenting in part. Handler, J., concurring in part and dissenting in part. Chief Justice Wilentz joins in that portion of Point VI which would bar a defendant from seeking a death penalty.

Clifford

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.

I

-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, "I play dangerous games. People do not like the games that I play." 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 "[t]hat old bitch won't cooperate. So I shot her one time in her chest." 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 "they could get me in some trouble. They could lead to something that I've done."

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 Scott Fitz-Patrick and Sergeant Edward V. Ryan of the Burlington County Prosecutor's Office went to the home of Irene Williams's mother. Earlier that week an unidentified source had linked Hightower to the murder of Cynthia Barlieb. From the statements of Williams,

her mother, Forston, and Michelle Hightower, the officers learned about the gun hidden in the apartment at 668 Brooklyn Street.

During the early morning hours of August 20th, Fitz-Patrick and Detective Donald Warren of the Willingboro Police Department went to Philadelphia to retrieve the gun. On their arrival they saw a Burgundy-red Plymouth Turismo that fit the description of the car parked at Cumberland Farms on the day of the murder. The officers found Hightower asleep in the car. When they asked him to accompany them to their office for an interview, Hightower replied that he was waiting for his wife. At Sergeant Fitz-Patrick's suggestion, Hightower agreed to leave a note for his wife explaining where he had gone.

The officers took Hightower to the Burlington County Prosecutor's Office in Mount Holly at 2:20 a.m. Hightower received Miranda warnings and signed a waiver card. After obtaining background information from Hightower, Sergeant Fitz-Patrick told him that the interview pertained to a murder committed at the Cumberland Farms on July 7th. Denying any knowledge of the murder, Hightower told Fitz-Patrick that he and his wife had gone to Philadelphia to visit Irene Williams on the afternoon of that day.

When asked if he had gone to a store that day, Hightower responded that he may have gone to an A & P and a gas station in Delran. He then changed his mind and said that he did not think he had gone to any store that day. Asked specifically if he had gone to the Cumberland Farms on Pennypacker Drive, Hightower stated that he never went to that store. The only convenience store he would ever go to, he added, was a Seven-Eleven on Salem Road.

Informed that he had been seen at the Cumberland Farms on July 7, Hightower repeated that he did not frequent that store. When Fitz-Patrick asserted that Hightower had bought diapers there that day, Hightower admitted that he had, but that he had forgotten until now. Continuing, Hightower said that he

had driven his stepfather's car, a Burgundy Plymouth Tourismo with a spoiler on the rear and racing stripes on the door, to the Cumberland Farms that day, probably around 11:00 a.m. He had parked the car in the lot in front of the store. He had been wearing blue jeans, white shoes, and a white jacket with the sleeves pushed up. He remembered having worn half-tinted sunglasses that day but could not recall whether he had worn them to the store. Hightower added that a picture of him had been taken that day in which he was wearing those clothes.

Fitz-Patrick asked Hightower if he had ever owned a gun, bought a gun, or given a gun to anyone. Hightower claimed he never had. When Fitz-Patrick showed him the pistol taken from the Brooklyn Street apartment earlier that morning, Hightower denied having ever seen the gun before.

Asked about the whereabouts of the sunglasses he had worn on July 7th, Hightower replied that his brother might have them. Although he denied having ever spoken to Forston about the murder or the gun, Hightower said he had talked to Forston to find out whom Michelle "had been with." At 3:56 a.m. Hightower gave a taped statement reflecting what he had told Fitz-Patrick. The tape was approximately forty-six minutes long. At 5:00 a.m. Sergeant Fitz-Patrick arrested Hightower for the murder of Cynthia Barlieb.

Fitz-Patrick told Hightower that his wife had given a taped statement. According to Fitz-Patrick, she said that Hightower had told her he had murdered Barlieb. Fitz-Patrick then played a portion of the statement.

Claiming his innocence, Hightower asked to take a lie-detector test. Fitz-Patrick summoned Lieutenant Robert Scara of the Burlington County Prosecutor's Office. After being informed again of his rights, Hightower signed a waiver form. Scara then conducted the polygraph examination. While Scara was interpreting the test results, Fitz-Patrick secured Hightower's consent to a search of the Plymouth Turismo.

Scara explained to Hightower that the polygraph results indicated that Hightower had "a problem" with some of the questions about the crime. Hightower asked to take another test. After the second test, Scara said that the results clearly showed that Hightower had been "directly involved in * * * the shooting of the victim."

Hightower asked to speak to Investigator James Bucs. He told Bucs that he had failed the polygraph but could not understand why because he was innocent. He spoke about his wife and child and said he did not want to go to jail. Bucs told Hightower that "the facts were beginning to weigh" against him.

Around noon on August 20th, the police took Hightower to the county jail. Later that afternoon Fitz-Patrick and Bucs brought Hightower back to their office. After informing Hightower of his rights again, they told him that the ballistic tests comparing the gun seized from his wife's apartment with the bullets recovered from Barlieb's body had been completed. When asked if he "knew" the results, Hightower replied that they "matched." After Hightower expressed a desire to return to his cell, Bucs declared that either he was the trigger man or he knew who was. Bucs told him to think about his family and the family of the victim. According to Bucs, Hightower's "eyes began to water and tears flowed from his eyes." Bucs took him back to the jail.

At the suggestion of his cellmate, Hightower called Willingboro Detective Gregory Rucker on September 4th and asked to meet with him. When Rucker arrived at the jail, Hightower insisted that the police had arrested the wrong person and that he knew who had had the gun. Rucker told Hightower that he would not discuss the homicide with him at that time.

Being unfamiliar with the case, Rucker went to the prosecutor's office for a briefing. He then returned to the jail and took Hightower to the Willingboro Police Station. Hightower signed another Miranda -waiver card.

This time Hightower gave a different version of his activities of July 7th. He said that he had gone to the Cumberland Farms on Pennypacker Drive at about 11:00 a.m. to buy diapers. He took with him a .32-caliber gun that he had bought in Texas. According to Hightower, he had purchased the gun because he had considered shooting his wife and himself. Hightower spent about five minutes in the store. He thought the clerk might have been a female but he was unsure.

Hightower then drove to Burlington City, where he met with a drug dealer known as "Sonny." He described Sonny as a black male, about five feet eight, one-hundred-and-fifty pounds, stocky build, light-complexioned. Sonny was twenty-six or twenty-seven years old and had a thick mustache and thick, wavy hair.

Hightower asked Sonny if he knew anyone who wanted to buy a gun. When Sonny said he would "check it out," Hightower handed him the box containing the gun. Sonny gave Hightower two marijuana cigarettes and walked off towards a bar.

Hightower then drove to his sister's house in Burlington. Although she was not home, Hightower claimed that a "Mrs. Odie" had seen him. Around 11:40 a.m. he returned to the intersection where he had met with Sonny. When Sonny came back, he returned the box containing the gun to Hightower, saying he had been unable to sell it. Hightower put the box under the seat of his car and returned to his home in Willingboro. After he and his wife had loaded the car with pots and pans, they drove to Philadelphia.

When Hightower had finished telling this story, Rucker attempted to question him about it, but Hightower became "very upset" and told Rucker to stop asking questions. At Hightower's request, Rucker took him back to the jail.

-C-

A Burlington County Grand Jury indicted Hightower for the purposeful murder of Cynthia Barlieb by his own conduct,

contrary to N.J.S.A. 2C:11-3a(1); the knowing murder of Barlieb by his own conduct, contrary to N.J.S.A. 2C:11-3a(2); the felony murder of Barlieb, 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:39-4(a); and third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5(b).

Pursuant to N.J.S.A. 2A:11-3c(2) and Rule 3:13-4(a), the State served defendant with written notice of three aggravating factors that it would seek to prove during the penalty phase of defendant's trial: (1) the 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) the 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) the 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 State's case at trial was a juggernaut. The prosecution introduced evidence of a photographic array shown to Regina Deasey, Donald Morris, and Clayton and Yvonne Leihy. Both Deasey and Morris had positively identified defendant as being in the store that day. Although Mrs. Leihy had been unable to make a positive identification from the photographs, she had chosen defendant's photograph as most resembling the man she had seen in the store. Mr. Leihy had been unable to make a positive identification. At trial, Deasey, Morris, and the Leihys identified defendant as the man they had seen at the store on July 7, 1985. Morris indicated that a white jacket taken from Hightower's apartment resembled the one Hightower had worn that day. Deasey and the Leihys identified pictures of Hightower's Turismo as the red car they had seen in the convenience-store parking lot. The Leihys also identified photographs of Barlieb's Omni as the gray car they had seen.

Deasey thought Hightower might have been wearing a red tee-shirt, but she was not sure.

The jury heard convincing evidence that defendant had purchased the gun found in Michelle Hightower's apartment. A ballistics expert testified that that gun had fired the bullets extracted from the victim. The State introduced a photograph allegedly taken on July 7, 1985, that showed defendant wearing blue jeans, a white jacket, and half-tinted sunglasses.

Christopher Forston testified about Hightower's account of the "Pepperidge Farm Store" murder. The details of that story corresponded with much of the evidence that the State introduced: the clerk was a woman; defendant's description of how he had shot his victim three times conformed to the Barlieb-autopsy findings; the marks found on the computer cash register corroborated defendant's explanation of having banged on the computer register because he did not know how to open it; Hightower's recollection of having turned the lights off was consistent with Mr. Leihy's observation that the store had been "rather dark."

An FBI expert testified that the latent fingerprint found on the bloody bread bag belonged to defendant. The Leihys had seen defendant wiping the counter at the store with a bread wrapper at the time of the offense. The jury also heard Hightower's statement taken at the time of his arrest.

During the defense case, two officers testified that twelve people who had been at the Cumberland Farms on July 7th had been unable to identify Hightower's photo from the line-up. On cross-examination the State elicited the fact that those people had been at the store at various times that day, not necessarily while defendant was allegedly there. Moreover, one of those shown the lineup had picked Hightower's photograph as depicting a man that looked very similar to the one she had seen in the store. Another witness who had been at the store on July 7th testified that he had spoken with a short-haired, light-skinned black male in his early twenties but that he had

been unable to make a positive identification when shown a photo lineup. At trial he could not positively identify Hightower as the man he had seen in the store. On cross-examination, however, he stated that he had seen a car resembling defendant's in the parking lot.

The defense produced four other witnesses who had gone to the Cumberland Farms around 12:15 p.m. on the day of the murder. Two of them could not recall having seen defendant there. The third, Bruce Kerr, testified that he had seen a man who, although he looked like Hightower, was only about five foot five. The fourth witness, Cheryl Lyons, could not describe the man she had seen even after the State attempted to refresh her memory with an earlier statement in which she had given a description of a light-complexioned black male, five foot ten, medium build, middle to late twenties, wearing tinted sunglasses.

Testifying in his own behalf, defendant claimed that the picture of him wearing the white jacket, jeans, and sunglasses was taken on July 6th, not July 7th. He testified that on July 7th he had worn white slacks and a white fishnet shirt. He acknowledged ownership of the gun and recounted the "Sonny" story, which he had related to Detective Rucker. Now, however, Sonny's mustache was "faint" rather than "bushy." When asked why he had told Fitz-Patrick that he had never seen the gun before, defendant said that he had lied because he had been in a state of "shock." He explained that he had initially told Fitz-Patrick that he had not been in the Cumberland Farms on July 7th, because "I don't remember when I go to the store each day." When told that he had gone to the store to buy diapers that day, "it clicked." He conceded that his current recollection of the time-frame of his July 7th activities might not be consistent with his initial statement. He said that he did not have good relations with Williams or Forston. Finally, defendant insisted that he had not killed Cynthia Barlieb.

Among the facts brought out on cross-examination was that even under the "Sonny" story, Hightower had possession of the gun at the time Barlieb was murdered.

The final witness called by the defense, Detective Rucker, testified about the "Sonny story" that Hightower had given him on September 4, 1985. See supra at 394, 577 A.2d at 106.

After deliberating for four hours the jury convicted defendant on all five counts.

At the penalty phase the State introduced no additional evidence. The defense presented six expert witnesses: a psychologist, three psychiatrists, a social worker, and a criminologist. Defendant also invoked his right to allocution. He told the jury that sending a man "who professes his innocence" to prison for thirty years would instill "hatred and revenge towards the system" that had put him there. He asked the jury to sentence him to death so that "you and society [will] not * * * create a monster and then turn him loose on the world after thirty years."

The defense submitted five mitigating factors to the jury: (1) 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) his age at the time of the murder, N.J.S.A. 2C:11-3c(5)(c); (3) his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was sufficiently impaired as the result of mental disease or defect, but not to a degree sufficient to constitute a defense to prosecution, N.J.S.A. 2C:11-3c(5)(d); (4) he had no significant history of prior criminal activity, N.J.S.A. 2C:11-3c(5)(f); and (5) any other factor relevant to his character or record or to the circumstances of the offense, N.J.S.A. 2C:11-3c(5)(h).

After three and one-half hours of deliberation, the jury found that the State had proven beyond a reasonable doubt all three aggravating factors alleged, namely, that the murder was wantonly

vile, that it was committed to escape detection for another offense, and that it was committed during a felony. Although the jury determined that defendant had established two mitigating factors, N.J.S.A. 2C:11-3c (5)(f) and (h), it held that each of the aggravating factors outweighed all the mitigating factors beyond a reasonable doubt and that all of the aggravating factors outweighed all the mitigating factors beyond a reasonable doubt. Based on those findings the court sentenced defendant to death.

II

Defendant charges that he received ineffective assistance of counsel during jury selection. We recently applied the standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42, 519 A.2d 336 (1987), to ineffective-assistance claims in capital cases. State v. Davis, 116 N.J. 341, 561 A.2d 1082 (1989). The Strickland/Fritz standard provides that if counsel's performance was so incompetent as to render "the idea of a fair trial a nullity, no prejudice need be shown." State v. Davis, supra, 116 N.J. at 352, 561 A.2d 1082. Otherwise, defendant must meet a two-pronged test: counsel's assistance must have been deficient, and there must be "a reasonable probability that these deficiencies materially contributed to defendant's conviction * * *." State v. Fritz, supra, 105 N.J. at 58, 519 A.2d 336.

-A-

The first alleged error is that counsel permitted a racially-disproportional jury panel. Two of the fifty-two members on the first panel were black; four of an unknown number on the second panel were black; four of the fifty members on the third panel were black; seven of the forty-one on the fourth panel were black; one of the forty-seven on the final panel was black. Defendant concludes that of the 190 people on the jury panels only fourteen, or 7.37%, were black. (In reaching that figure,

defendant apparently omitted the second panel. If the second panel is added using the figure of fifty-two (the highest number on the other panels) for the total number on the panel, of the 242 people on the panels eighteen, or 7.44%, were black. The disparity between that figure and defendant's does not affect our conclusions here.) Defendant claims that counsel was ineffective in failing to challenge the jury-selection process on equal-protection and fair-cross-section grounds.

-1-

In State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987), we considered the standards for resolving such claims. The equal-protection clause requires that petit-juror selection be "free from any taint of discriminatory purpose." Id. at 215, 524 A.2d 188. To succeed on such a claim, a defendant must make out a prima facie case by satisfying three criteria. First, the defendant must identify "a constitutionally cognizable group." State v. Ramseur, supra, 106 N.J. at 215, 524 A.2d 188. Second, the defendant "must prove 'substantial under-representation' over a significant period of time." Ibid. (quoting Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 1280, 51 L. Ed. 2d 498, 510 (1977)). Third, the defendant must show discriminatory purpose by presenting statistics or by "demonstrating the use of racially non-neutral selection procedures * * *." State v. Ramseur, supra, 106 N.J. at 215-16, 524 A.2d 188; see also State v. Coyle, 119 N.J. 194, 212-14, 574 A.2d 951 (1990) (applying Ramseur criteria).

Although defendant has met the first criterion (blacks are a cognizable group), he has not provided support for the second. He presents no evidence of under-representation in the jury pool, nor does he compare the minority percentage in the pool with that in the population of Burlington County. Furthermore, he cites no proof that under-representation has occurred over a significant period of time. Indeed, the only evidence on this issue in the record points the other way. During jury selection the trial court indicated its reluctance to excuse a

black panelist: "There have been not the usual population of Blacks vis-a-vis Whites on any of these three panels. I know it's just pure coincidence, but I'm very reluctant at this early point to excuse him [for a job-related reason]." The court's remark suggests that, in its view at least, panels in Burlington County are normally more racially balanced.

Defendant fails to meet the third criterion as well. He cites no evidence, statistical or otherwise, of discriminatory intent. Defendant acknowledges that Burlington County compiles its petit-jury lists from motor-vehicle and voting records, a procedure that we have deemed "facially neutral." State v. Ramseur, supra, 106 N.J. at 224, 524 A.2d 188. Defendant does not suggest how that selection procedure is "non-neutral" here.

Because we find no evidence that the jury-selection procedure violated defendant's equal-protection rights, his counsel was not remiss in failing to object.

-2-

The sixth amendment requires that petit-juror pools represent a "fair cross-section" of the community. Duren v. Missouri, 439 U.S. 357, 368 n. 26, 99 S. Ct. 664, 670 n. 26, 58 L. Ed. 2d 579, 589 n. 26 (1979). A defendant alleging a violation of that requirement must meet a prima facie test similar to that for an equal-protection claim. The defendant must identify a constitutionally-cognizable group, show that representation of that group over a period of time has not been "fair and reasonable," and show that the under-representation was due to systematic exclusion.

Again, defendant has met the first prong and failed the second and third. He has presented no proof that systematic exclusion of blacks has resulted in unfair and unreasonable under-representation in jury pools over a period of time. Likewise, he has not shown that systematic exclusion caused any under-representation. As with the equal-protection claim, defense counsel's failure to object to the composition of the jury pool did not amount to ineffective assistance.

-B-

Defendant also alleges that counsel's representation during jury selection was deficient because he tried "to keep several individuals who would obviously have been destructive to the defendant's cause." Juror Weiner sought to be excused because she had learned about the case from witness Regina Deasey, a co-worker, and because defendant's sister was a job-training client of hers. Weiner said that although she would feel guilty if she helped convict defendant, she believed she would not be prejudiced. The court denied the State's motion for excusal for cause, in part due to defense counsel's effort to retain the juror.

During voir dire Weiner again stated that she could fairly evaluate both sides of the case. She added, however, that if she voted for a death sentence, she would feel awkward dealing with defendant's sister. She further explained that she knew what the testimony of Deasey would be and that she thought defendant was guilty. Despite defense counsel's arguments, the court excused Weiner for cause.

Defendant's contention that counsel's attempt to retain Weiner constituted ineffective assistance fails both prongs of Strickland/Fritz. Clearly there was no prejudice: despite counsel's position, the court excused the juror for cause. Furthermore, counsel's conduct was strategically defensible. Although Weiner demonstrated bias toward conviction, her relationship with defendant's sister indicated that she might sympathize with him during penalty-phase deliberations. The fact that the State sought Weiner's excusal tends to support that view. Defense counsel's actions fell within the zone of reasonable professional performance. See Wicker v. McCotter, 783 F.2d 487, 494-95 (5th Cir.) (acceptance of juror who expressed possible ...


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