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State v. Hightower

August 8, 1996

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



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

The opinion of the Court was delivered by Coleman, J. Justices Pollock, Garibaldi and Stein join in Justice Coleman's opinion. Justice Handler has filed a separate opinion Concurring in part and Dissenting in part, Point I of which Justice O'hern joins. Handler, J., Concurring in part and Dissenting in part.

The opinion of the court was delivered by: Coleman

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State of New Jersey v. Jacinto K. Hightower (A-22-95)

Argued November 6, 1995 -- Decided August 8, 1996

COLEMAN, J., writing for the Court.

Shortly after noon on July 7, 1985, in the course of a robbery in a Cumberland Farms convenience store, defendant shot the store clerk, Cynthia Barlieb, in the chest after she refused to comply with his demands to open the cash register. Ms. Barlieb fell to the floor but then stood up, cried out, and again refused to comply with defendant's demands to open the cash register. Defendant shot Ms. Barlieb again, this time in the neck. While defendant tried to open the cash register himself, he felt Ms. Barlieb touch his leg. Defendant shot Ms. Barlieb a third time, in the head. A customer discovered Ms. Barlieb's body in the store's dairy freezer a short time later.

Defendant was convicted of capital murder and sentenced to death in 1986. The Supreme Court affirmed his conviction but reversed his death sentence and remanded for a new penalty-phase trial in 1990. The reversal was based on the State's concession that the trial court erroneously charged the jury to consider only those mitigating factors that the jury unanimously agreed had been established.

At the new penalty trial, the State relied on two aggravating factors, murder to avoid apprehension and murder during a robbery. The State called one witness, who testified that he had a conversation with defendant and that defendant related the facts of the crime as described above.

After the jury had been deliberating for approximately six and one-half hours, the foreperson submitted a note to the trial court indicating that one of the jurors had information and knowledge of the case beyond the scope of the evidence. The trial court suspended deliberations and interviewed each juror individually. One of the jurors had apparently advised the others that while shopping he had overheard someone state that Ms. Barlieb, the victim, had three children. Interviews with other jurors indicated that the juror made the comment while defending his view, not shared by any other juror, that defendant should not be sentenced to death.

The trial court ordered that the juror who made the statement be replaced by an alternate. The trial Judge instructed the new jury to disregard the outside information and to begin its deliberations anew. Four and one-half hours later, the jury returned a death verdict.

HELD: Because of juror misconduct that exposed the jury to extraneous influences, defendant's death sentence is reversed, and the matter is remanded for a new penalty trial.

1. The trial court improperly expanded the scope of R. 1:8-2(d)'s inability-to-continue standard when it removed the offending juror. The juror's misconduct did not relate to exclusively personal circumstances, as is required by the standard. The only option available to the trial court here was to declare a mistrial. (pp. 13-17)

2. Defendant was not deprived of a non-unanimous verdict. The jury had not reached a final verdict and was not deadlocked before the juror misconduct occurred. There is nothing in the record to suggest that the jury would have been unable to reach a unanimous verdict concerning defendant's sentence. (pp. 18-23)

3. Under cases that have discussed whether the jury had deliberated too far to permit substitution of a juror, the Conclusion to be drawn is that the only other viable option to substitution is a mistrial. (pp. 23-26)

4. The jury's exposure to the victim impact evidence in the present case, without special instructions limiting its use, could have, in all likelihood, affected the result. The trial court's denial of defendant's application for a mistrial therefore was an abuse of discretion. (pp. 26-32)

5. There was sufficient evidence on which the jury could conclude that one of defendant's motives for killing Ms. Barlieb was to avoid apprehension. However, when essentially the same evidence is used to support both of the aggravating factors of murder to avoid apprehension and murder during a robbery, the guidelines set forth in Bey II must be followed and the jury must be warned not to double count the evidence. (pp. 32-34)

The imposition of the death sentence is REVERSED and the matter is REMANDED to the Law Division for a new penalty trial.

JUSTICE HANDLER, Concurring in part and Dissenting in part, Point I of which JUSTICE O'HERN joins, agrees in Point I with the majority that the trial court abused its discretion by removing the offending juror. He Dissents, however, from the majority's holding that the trial court should have declared a mistrial. Under the circumstances here, a mistrial deprives defendant of the opportunity for a final, non-unanimous verdict. The jury should have been permitted to continue deliberations with the offending juror's participation after a curative instruction. In Point II, Justice Handler expresses the view that the majority's interpretation and application of the murder to avoid apprehension aggravating factor is so expansive that it can be applied arbitrarily to virtually any felony murder.

JUSTICES POLLOCK, GARIBALDI and STEIN join in JUSTICE COLEMAN'S opinion. JUSTICE HANDLER has filed a separate opinion Concurring in part and Dissenting in part, Point I of which JUSTICE O'HERN joins.

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. 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) "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 defense, on the other hand, produced six expert witnesses, and submitted five mitigating factors to the jury: (1) "the 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) "the age of the defendant at the time of the murder," N.J.S.A. 2C:11-3c(5)(c); (3) "the 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) "the defendant has no significant history of prior criminal activity," N.J.S.A. 2C:11-3c(5)(f); and (5) "any 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.

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:

It 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 that he had heard, outside of the courtroom, that the victim had three children. Describing the context in which Juror Number 7 made the statement, the foreperson explained:

There was a fairly intense debate going on at that point in time where [Juror Number 7] was taking a different position than some of the other people, and there was a fair amount of frustration from some other people about the position he was taking, and essentially he was . . . getting backed into a corner . . . and he was almost lashing out.

The foreperson's account of Juror Number 7's statement and the circumstances surrounding it were confirmed by several other jurors. Indeed, Juror Number 7 admitted in his interview making that statement about the victim having children. He stated that he had overheard that statement while he was shopping in a store earlier in the week. He pointed out, however, that he did not partake in the Discussion.

At the Conclusion of the interviews, despite the trial court's efforts to avoid learning the jurors' positions on the merits of the case, the position of Juror Number 7 had been disclosed by both Juror Number 7, and the foreperson. For example, at one point during the his interview, the foreperson stated that Juror Number 7 "was taking a different position than others in the room." Additionally, in responding to a question from the trial court, Juror Number 7 explained:

I told them I thought that he should get 30 years imprisonment instead of the death sentence because it seems by his time in prison he could be a productive citizen when he come out. Now, majority of them jumped me for that. . . . Well, they said, you must have heard something we didn't hear, and I says, all I overheard -- I didn't discuss this with no one -- was that the lady had three children. . . .

Interviews with other jurors also revealed that Juror Number 7 may have engaged in other misconduct, namely, dishonesty in responding to questionnaires completed during the jury selection process. The specific act of dishonesty alleged was that the juror failed to disclose that he opposed the death penalty and that he had visited prisons in the past.

Finally, during the interviews several jurors told the trial court that at the time Juror Number 7 informed the jury that the victim had children, the jury had reached a rather advanced stage of deliberations. One juror indicated that he had already made up his mind when he learned of the information; another revealed that the jury had already taken a straw vote; and the foreperson stated that the jury was at a "fairly late point" in its deliberations. In addition, the verdict sheet indicated that the jury had made tentative determinations with respect to the existence of both aggravating factors and all mitigating factors. The only section of the verdict sheet left unmarked was that reserved for the jury's ultimate Conclusion with respect to the sentence.

Having all this information, the trial court then heard arguments from the State and defense counsel, outside the presence of the jury, regarding how to resolve the jury crisis. The State recommended that the court remove Juror Number 7 from the jury, insert an alternate, and instruct the jury to begin deliberations anew. Defense counsel, on the other hand, insisted that the appropriate remedy was a mistrial, or in the alternative, that deliberations should continue with Juror Number 7 on the jury because Rule 1:8-2(d) did not authorize removal for the type of misconduct involved.

Agreeing with the State, the trial court rejected defense counsel's request and ordered that Juror Number 7 be removed from the jury and replaced with an alternate. In denying the application for a mistrial, the court reasoned that it had no conclusive information concerning the positions of any of the jurors, except Juror Number 7, on the merits of the case. The court further explained that six hours of deliberations in the penalty phase of a capital case was not a very long time. The court then declared that its main reason for removing Juror Number 7 from the jury was that the juror had revealed information learned outside of the courtroom to the jury instead of to the court as instructed. The trial court expressed concern that the juror had the potential to repeat the misconduct. The court further considered the necessity to protect the integrity of the process that had been threatened by the conduct of Juror Number 7.

After the Judge's ruling, an alternate juror was selected and the entire jury was instructed to continue its deliberations. The Judge cautioned the newly-constituted jury that it was to "totally disregard" the outside information revealed by removed-Juror Number 7, and begin its deliberations anew. The court provided the new jury with a blank verdict sheet, retaining the former verdict sheet and notes in a sealed envelope. The reconstituted jury recommenced deliberations on November 2, 1994, at 11:03 a.m. Four and one-half hours later, the jury returned a verdict of death.

A poll of the jury confirmed that it had unanimously concluded, beyond a reasonable doubt, that both aggravating factors existed, namely, murder to avoid apprehension, N.J.S.A. 2C:11-3c(4)(f), and murder committed during the commission of another crime, N.J.S.A. 2C:11-3c(4)(g). The poll further confirmed that the jury was unanimously satisfied that any and all of the aggravating factors outweighed the ten mitigating factors found to exist. The accepted mitigating factors were: (1) defendant's age at the time of the murder; (2) defendant had no prior record of criminal convictions; (3) defendant was never adjudicated a juvenile delinquent; (4) defendant was sodomized as a young child; (5) defendant's mother was diagnosed as suffering from a severe emotional disorder during his childhood; (6) during his formative years, defendant had frequently assumed responsibility for the care of his younger twin siblings; (7) during his formative years, defendant was placed in foster care; (8) during his formative years, defendant's mother would desert the family for periods of time, on one occasion during the holiday season; (9) defendant was raised in an abusive and dysfunctional environment; and (10) the imposition of the death penalty would entail excessive hardship on members of defendant's family. Accordingly, defendant was sentenced to death.

After the verdict was received, defense counsel requested that the court question the foreperson to determine the stage that the jury had reached in its deliberations when the new juror was substituted. Defense counsel also requested that the court seal and preserve the original jury's verdict sheet and notes for use on appeal. The trial court denied the first, but granted the second motion. We unsealed the verdict sheet pursuant to an order dated June 7, 1995. The sheet revealed that the first jury had tentatively found both aggravating factors and had made tentative findings on all of the fourteen mitigating factors. The sheet did not indicate, however, whether the jury's vote was final, whether the aggravating factors outweighed the mitigating or whether the jury would impose the death penalty or life imprisonment.

III

Preliminarily, we reject defendant's claim that the New Jersey Death Penalty Act (Act) violates the Eighth Amendment to the United States Constitution. In State v. Biegenwald, 126 N.J. 1 (1991), this Court upheld the constitutionality of the Act in the face of equivalent challenges. Id. at 16; accord State v. Harris, 141 N.J. 525, 574, 662 A.2d 333 (1995); State v. Moore, 122 N.J. 420, 486, 585 A.2d 864 (1991); State v. Hunt, 115 N.J. 330, 373, 558 A.2d 1259 (1989); State v. Koedatich, 112 N.J. 225, 249, 548 A.2d 939 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989); and State v. Ramseur, 106 N.J. 123, 185-90, 524 A.2d 188 (1987). In addition, the constitutionality of the aggravating factor, N.J.S.A. 2C:11-3c(4)(c), has been upheld. State v. Ramseur, (supra) , 106 N.J. at 188-89 n.21.

IV

Defendant argues that Rule 1:8-2(d) did not permit the trial court to remove Juror Number 7. He contends that even if that juror's disclosure of the out-of-court information rendered him "unable to function," his inability to function was not due to him personally; rather it was due to his interaction with other jurors or at least a combination thereof.

Rule 1:8-2(d) governs the removal and substitution of deliberating jurors. The Act complements the court rule by providing that "nothing in [the] statute shall be construed to prevent the participation of an alternate juror in the sentencing proceeding if one of the jurors who rendered the guilty verdict becomes ill or is otherwise unable to proceed before or during the sentencing proceeding." N.J.S.A. 2C:11-3c(1). The court rule for removal provides in pertinent part:

If the alternate jurors are not discharged and if at any time after submission of the case to the jury, a juror dies or is discharged by the court because of illness or other inability to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged.

[R. 1:8-2(d).]

Despite the rule's broad language, trial courts do not have unbridled discretion to reconstitute deliberating juries in the face of a jury crisis. On the contrary, the removal rule may be used only in limited circumstances. Clearly, frequent reconstitution of deliberating juries could destroy the integrity and the mutuality of deliberations, thereby depriving defendants of the right to a fair trial by an impartial jury. The "mutuality of deliberations" is at the core of jury deliberations. It entails the joint or collective exchange of ideas among individual jurors that remains intact until a final determination is reached. State v. Corsaro, 107 N.J. 339, 349, 526 A.2d 1046 (1987). Mutuality may be destroyed if juror substitution is not made in accordance with the limited scope of the rule for removal. Ibid. ; R. 1:8-2(d). Therefore, any conduct that could upset the process of jury deliberations, even judicial conduct such as juror substitution, must be carefully scrutinized.

Because juror substitution poses a clear potential for prejudicing the integrity of the jury's deliberative process, it should be invoked only as a last resort to avoid the deplorable waste of time, effort, money, and judicial resources inherent in a mistrial. State v. Lipsky, 164 N.J. Super. 39, 43, 395 A.2d 555 (App. Div. 1978).

The rule permits substitution of an alternate when the deliberating juror dies, becomes ill "or is otherwise unable to continue." These are, of course, precisely the circumstances mandating substitution of a juror during the trial itself. Because they relate exclusively to the personal situation of the juror him [or her] self and not to his [or her] interaction with the other jurors or with the case itself, they are ordinarily not circumstances having the capacity to affect the substance or the course of the deliberations. Hence the continuation of the trial with a substituted alternate is in these circumstances no way violative of defendant's right to trial by a fair and impartial jury. In this respect the "unable to continue" standard is much narrower than the concept of good cause requiring the discharge of prospective jurors before trial commences. "Good cause" in that context includes potential juror bias which would irremediably taint the entire jury, particularly in its deliberative process. Removal of such a juror after trial has commenced and even more particularly after deliberations have commenced cannot ordinarily repair the harm already done or presumed to have been done. Juror bias discovered during deliberations is clearly, therefore, not a circumstance susceptible to the discharge and substitution technique of the rule. Declaration of a mistrial would be the only available alternative.

[ State v. Trent, 157 N.J. Super. 231, 239, 384 A.2d 888 (App. Div. 1978), rev'd on other grounds, 79 N.J. ...


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