Lead Opinion
The opinion of the Court was delivered by
A jury сonvicted 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,
I
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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
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
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 countеr, 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
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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 High-tower 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 High-tower 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
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,
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. f
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
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, High-tower 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 High-tower 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.
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 Eitz-Patrick and Bucs brought Hightower back to their office. After informing High-tower 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 fоr a briefing. He then returned to the jail and took Hightower to the Willingboro Police Station. Hightower signed another Miranda-waiver card.
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,” High-tower 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.
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A Burlington County Grand Jury indicted Hightower for the purposeful murder of Cynthia Barlieb by his own conduct,
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) thе 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 stores 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 High-tower’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.
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 dеscription 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
The defense produced four other witnesses who had gone to the Cumberland Farms around 12:15 p.ifl: 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 givеn 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.
The final witness called by the defense, Detective Eucker, testified about the “Sonny story” that Hightower had given him on September 4, 1985. See supra at 394,
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 emotionаl 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:ll-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 wan
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,
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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,
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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,
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
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.
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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.
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 problems with defendant’s decision not to testify, but whose background suggested that he might be inclined to accept defendant’s theory of the case, was a strategic decision demonstrating
Defendant also challenges counsel’s failure to seek excusal of juror Iashburn. Iashburn said he had formed an opinion concerning defendant’s guilt after having read about the case in newspapers. The juror also mentioned that his brother was in a Virginia prison for having shot someone. Neither side objected to the court’s finding that Iashburn was death-qualified.
Defendant’s claim of ineffective assistance here also fails both prongs of the Strickland/Fritz test. First, defendant suffered no prejudice. Iashburn never became a member of the jury, nor did defendant expend a peremptory challenge on him. Second, counsel may have thought that because Iashburn’s brother was in prison, he would sympathize with defendant.
Finally, defendant argues that the trial court erroneously excused juror Montesjardi, who, after initially being accepted as a member of the jury, returned to the court and expressed doubts about her ability to impose a death sentence. Defendant contends that Montesjardi’s excusal violated the standard enunciated in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), and adopted by this Court in State v. Ramseur, supra, 106 N.J. at 255-56, 524 A.2d 188. Under Adams, “a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” 448 U.S. at 45, 100 S.Ct. at 2526, 65 L.Ed.2d at 589. A violation of that standard mandates reversing the death sentence, not the conviction. Id. at 51, 100 S.Ct. at 2529, 65 L.Ed.2d at 593; see Gray v. Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, 2057,
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The excusal of juror Montesjardi left a panel of fifteen jurors. The State indicated that it had no objection to proceeding with only fifteen. However, defense counsel, who had exercised all twenty-five of his peremptory challenges, preferred to have sixteen. At his suggestion the trial court randomly selected a sixteenth juror from the remaining members in the pool. The selected juror, Ders, eventually deliberated at the guilt phase and penalty proceeding.
Defendant contends that his attorney should have moved for a mistrial, asked for additional peremptories, or accepted the panel of fifteen jurors who had survived peremptories. Defendant, however, alleges no prejudice. He does not suggest that juror Ders was biased in any way. During voir dire neither party had sоught to excuse her for cause. The selection of juror Ders did not violate defendant’s right to trial by a fair and impartial jury.
Ill
Defendant claims that this Court should reverse his conviction because of his counsel’s incompetence during the guilt phase of the trial. He contends that from the beginning of the trial his counsel essentially conceded guilt and “gave up.” We note at the outset that in light of the strength of the State’s case, defendant will have a difficult time meeting the prejudice prong of the Strickland/Fritz test.
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According to defendant, counsel’s opening and closing statements signalled belief in defendant’s guilt and distanced counsel from his client. During his opening, counsel told the jury that its duty was
*405 [n]ot only to perhaps decide simply the issue of guilt or innocence, but also to deal with potentially what penalty would be appropriate. Your only options: essentially life imprisonment in a cage or the ultimate sanction of death.
During his closing, counsel explained his role:
And what is the obligation of every defense attorney who has sat or ever will sit in that chair across the courtroom? The men who sit there are not free to quit in the face of overwhelming adversity. They’re not free to lay down and play dead before the jury at any time. Each one of the men who has ever or will ever sit there like I has sworn allegiance to a system which, although not perfect, is the cornerstone of our free society and that is a free adversarial system where both sides come into a public courtroom and present the evidence to you and ask you for your fair and honest evaluation under the law.
The men who sit and will sit in that chair over there come forward continuously to defend unpopular causes and unpopular people. They fight for the innocent and the guilty, for the good and the bad. And you as American citizens need only to worry about your life and liberty when there are no longer any men available who are willing to shoulder what is so many times very unpopular burdens.
My obligation at this time is to come forward and review the evidence with you in the light most favorable to my client, Joey Hightower. To do otherwise would be to pervert our system of justice and simply deprive both Cynthia Barlieb and Joey Hightower of justice under our law.
In support of his argument that those remarks mandate reversal of his conviction, defendant cites several cases in which defense counsel expressly conceded guilt to the jury. In Magill v. Dugger, 824 F.2d 879 (11th Cir.1987), the defendant, having confessed killing the victim, asserted that he did not have the mens rea for first-degree murder. The court found that the defense attorney had been ineffective in failing to explain that argument during his opening and closing statements. “[Cjounsel’s rebuttal closing argument gave no reasons upon which the jury could reduce the charge of capital murder to second degree murder.”
In Francis v. Spraggins,
Defendant also cites Young v. Zant,
All four cases are distinguishable from this one. First, counsel here never conceded guilt. Second, during the bulk of his summation, counsel attempted to introduce reasonable doubt concerning eye-witness testimony to highlight possible witness bias or self-interest and to make defendant’s alibi stand up in the face of contradictory evidence. Third, defendant does not allege that his lawyer failed either to investigate possible defenses or to present exculpatory evidence. Finally, Francis, Young, and Wiley were all pre-Strickland cases. None of
Defendant also alleges that counsel’s opening and closing distanced the attorney from his client. Defendant cites two precedents for reversal. In the pre-Strickland, case of Goodwin v. Balkcom,
Defendant also refers to the post-Strickland case of King v. Strickland, 714 F.2d 1481 (11th Cir.1983), vacated and remanded, 467 U.S. 1211, 104 S.Ct. 2651, 81 L.Ed.2d 358, on remand,
The situation here is much different from those in Goodwin and King. Although the jury might have inferred that defense
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As further evidence of inadequate representation, defendant points to his counsel’s cross-examination. Defendant argues that counsel could have asked more questions of FitzPatrick, Bucs, and Rucker “to attempt to establish reasonable doubt.” He does not indicate, however, what questions counsel should have asked and how the answers would have affected the verdict.
Defendant also cites counsel’s failure to object when Barbara J. Britt, the manager of the apartment building in Texas in which defendant had lived, testified that defendant had painted his apartment orange. Counsel did not object when another witness, Tina Booker, said that she had processed defendant for going AWOL and that he had later left a note for her at her home.
Britt’s remark about defendant’s orange apartment'was in response to a question about whether there was “any particular reason” she remembered defendant. Although defense counsel did not object at that point, he did object to the State’s next question: “Did you have any other problems with Mr. Hightower?” The trial court overruled the objection. Britt then told of rent-collection problems with defendant.
Assuming that portions of Britt’s and Booker’s testimony were objectionable, we do not believe that objections by counsel followed by curative instructions would have materially affected the verdict. Thus even if defendant could meet the first
Defendant also contends that counsel was remiss in not questioning Irene Williams and Christopher Forston about their strained relationships with defendant and about their possible bias. On cross-examination, however, Forston said that he had a cordial, but riot close, relationship with Hightower. Counsel may have avoided questioning Williams along those lines for fear that she might contradict defendant’s later testimony. Moreover, during the defense case counsel did elicit testimony about defendant’s coolness toward Williams and Forston. In his summation counsel told the jury to consider the relationship among the witnesses because “it’s really quite clear that it was Michelle [Hightower], Christopher Forston and Irene Williams against” Hightower. The strategic decisions regarding the latter two witnesses did not constitute ineffective assistance.
Defendant argues further that counsel’s failure to cross-examine Dr. Joseph DeLorenzo, the coroner who had performed the autopsy, and Clyde Ottinger, a fingerprint expert, constituted ineffective representation. Nowhere does defendant suggest what questions counsel should have asked Ottinger. He asserts that counsel should have cross-examined DeLorenzo about his “speculative” conclusion that Barlieb was lying on the floor when the third shot hit her, and claims that that issue may have been crucial in the jury’s finding of aggravating factor c(4)(c). Because the State concedes that the penalty phase must be retried, the point is moot.
As another example of inadequate representation defendant refers to his lawyer’s failure to have objected to the admissibility of three photographs taken of the victim during the autopsy. Defendant argues that those pictures were inflammatory and cumulative. The record, however, does not show that admission of the photographs amounted to a “palpable abuse” of the trial court’s discretion. See State v. Thompson, 59 N.J. 396, 420,
Defendant contends that Sergeant Fitz-Patrick made an inadmissible hearsay statement. When asked about his activities during the early morning of August 20, 1985, FitzPatrick replied:
Well, on August 19th, the week of August 19th, we had received information from several people in the Philadelphia arеa as to who was responsible for the murder of Cynthia Barlieb and based on that information we drove over to Philadelphia to retrieve the handgun that had been used in the murder and it was located at 668 Brooklyn Street in Philadelphia.
At that time we were aware that Jacinto Hightower was the person responsible for the murder and when we were going over to that area to retrieve the gun, we weren’t aware that he was going to be present at the—in the vicinity of the residence.
Defense counsel did not object to that statement, nor did the trial court comment on it. According to defendant, counsel’s failure to object and the trial court’s failure to grant a mistrial sua sponte are both reversible errors.
Defendant claims that Fitz-Patrick’s statement violated his sixth-amendment right to confront witnesses. See State v. Bankston, 63 N.J. 263,
-D-
Defendant’s last claim regarding ineffective assistance during the guilt phase is the most serious. The State’s first witness was David Barlieb, the victim’s husband. In response
Today is October 30th, 1986. Had it not been for Joey Hightower, ladies and gentlemen, Cynthia Barlieb would be twenty-seven years old today. Today is her birthday.
Defense counsel did not object to that statement.
Before considering whether counsel’s failure to object constituted inadequate representation, we address the issue of whether the statement itself warrants reversal of defendant’s conviction. “To justify reversal the prosecutor’s conduct must have been ‘clear[ly] and unmistakably]’ improper, and the improper conduct must have resulted in substantial prejudice to the defendant’s fundamental right to have a jury fairly assess the persuasiveness of his case.” State v. Williams, 113 N.J. 393, 452, 550 A.2d 1172 (1988) (quoting State v. Bucanis, 26 N.J. 45, 56,
The prosecutor’s statement was clearly and unmistakably improper. His tactic, plainly designed to impassion the jury, stands out as a glaring departure from the high level of professionalism that otherwise characterized the conduct of both the prosecution and the defense during this trial. The statement about the victim’s age and birthday “contain[ed] nothing that would aid the jury in determining the defendant’s guilt or innocence.” State v. Williams, supra, 113 N.J. at 452, 550 A 2d 1172. The prosecutor’s conduct was particularly egregious because the statement came at the end of his summation. “Conceding that any capital case will be prone to emotional displays by those giving testimony, surely it is not too much to expect and require that officers of the court conduct themselves without resorting to improper appeals to the jury’s emotions.” Id. at 453,
The question then becomes whether the prosecutor’s conduct prevented the jury from fairly assessing defendant’s case. We conclude that although it calls for our strong disapproval, the
Our finding that the prosecutor’s statement did not substantially prejudice the jury’s ability fairly to assess defendant’s case compels the conclusion that defense counsel’s failure to have objected does not meet the prejudice prong of the Strickland/Fritz test.
-E-
Having dismissed each of defendant’s specific allegations of attorney incompetence, we now also reject his contention that those perceived errors taken together demonstrate ineffective assistance of counsel during the guilt phasе. Defendant argues that “[t]he cumulative effect of counsel’s actions left defendant without the undivided allegiance of a zealous advocate.” We disagree. Faced with a difficult case, defense counsel attempted to highlight what few weaknesses there were in the State’s case. Although he did not cross-examine the State’s experts, he attempted to mitigate the effect of eyewitness testimony by drawing out discrepancies and casting doubt on eyewitness accuracy. Moreover, counsel elicited information demonstrating the bias of Williams and Forston by cross-examination and by the direct testimony of defendant. Defendant makes no allegation that counsel did not thoroughly investigate his case.
-F-
Finally, we address briefly one issue not raised by defendant. In State v. Gerald, 113 N.J. 40, 69,
In sharp contrast to Gerald the record in this case contains absolutely nothing that would support a serious-bodily-injury murder charge—which is doubtless why defendant does not make the Gerald argument. Defendant denied complicity in the murder, so there is not a word in his own testimony about how he intended only to wound or “stop” his victim, see State v. Coyle, supra, 119 N.J. at 210-11,
Defendant shot the victim with a .32-caliber handgun from close range in the chest, the neck, and the head. The first bullet narrowly missed the victim’s heart before lodging in her liver, the second severed her spinal cord, and the third shot penetrated the victim’s skull and lodged in her brain. After shooting her, defendant dragged the victim into the freezer. The record fully supports the prosecutor’s argument in summation that anyone who commits such acts is “intending to kill that person,” that defendant “had formed his intent to kill her when he walked into that store,” and that the evidence “could lead you to only one conclusion: He went into that store with the fully formed intent to rob it and execute the clerk so she couldn’t identify him * * Here, as in State v. Pitts, 116 N.J. 580, 562 A.2d 1320 (1989), “it would be virtually ‘inconceivable’ that a jury could have concluded that defendant intended to cause serious bodily injury * * * but not death.” Id. at 620,
We affirm defendant’s murder conviction.
IV
Because the State concedes that the death sentence must be vacated, we need discuss only those issues that might arise again during resentencing. We will not address defendant’s claims of ineffective assistance of counsel. In regard to most of the jury-instruction issues, we assume that on retrial the court will take heed of the capital cases decided since the original penalty phase, in which we have resolved the same questions as defendant raises here.
-A-
Defendant asks us to rule that the trial court should not have allowed him to ask the jury to sentence him to death. He argues that in upholding a capital defendant’s right to allocution in State v. Zola, 112 N.J. 384, 428-32, 548 A.2d 1022 (1988), this Court limited that right to pleas for mercy only. Moreover, according to defendant, allowing a capital defendant to ask the jury for a death sentence would contravene the purposes of requiring his counsel to present mitigating evidence.
In Zola we tailored a narrow right for a capital defendant to make “an unsworn personal statement to the jury” during the penalty phase. 112 N.J. at 429, 548 A.2d 1022. Our decision rested not on constitutional grounds but on “what our civilization commends.” Ibid. We declared that “it bespeaks our common humanity that a defendant not be sentenced to death by a jury ‘which never heard the sound of his voice.’ ” Id. at 429-30,
Our decision to allow a capital defendant to ask for a death sentence does not contravene our requirement that his counsel must provide evidence of mitigating circumstances even over the defendant’s objection. In State v. Koedatich, 112 N.J. 225,
Allowing a defendant to request a death sentence does not contravene any of the foregoing policies. The jury will still have all the evidence in determining the proper sentence, and we will have a full record in reviewing the appropriateness of that sentence.
-B-
During the penalty phase the trial court quashed defendant’s subpoena directed to a member of the State Parole Board. Defendant intended to tie parole-criteria testimony to statistical evidence concerning prospects for rehabilitation, future release, and recidivism. The trial court held that the proposed testimony would be too speculative given the possibility of changes in parole criteria and that it would have no bearing on th'e issue of defendant’s character. The court told the jury that if it found the death penalty inappropriate for this defendant, the sentence would be life imprisonment with thirty-years parole ineligibility.
Evidence proffered by a defendant at the penalty phase must be “relevant to * * * [the] defendant’s character or record, or to the circumstances of the offense.” State v. Gerald, supra, 113 N.J. at 103,
The California Supreme Court has observed that twenty-five other jurisdictions have determined that the jury should not consider the possibility of pardon, parole, or commutation. Only three jurisdictions have ruled otherwise. People v. Ramos,
The foregoing considerations also lead us to conclude that the trial court appropriately excluded proffered evidence concerning racial imbalance in the imposition of the death’ penalty. Specific evidence of racial discrimination against defendant might be relevant during the penalty phase. Allegations of a pattern of discriminatory application of the death penalty, however, have no bearing on defendant’s character or record or on the circumstances of his offense.
The trial court also correctly ruled that proffered testimony concerning the deterrent effect of the death penalty was inadmissible. See State v. Rose, 120 N.J. 61,
-ci-
pe] During the penalty phase Dr. Mona Margarita, a criminologist, offered statistical evidence concerning the rate of recidivism among paroled murderers. An expert in the area of statistics and criminology, Dr. Margarita testified that all of the studies on the subject concluded that the recidivism rate for murderers indicated that compared to other felons, they pose
On cross-examination the prosecutor asked Dr. Margarita about the findings of a study by a Dr. Marvin Wolfgang entitled Patterns of Criminal Homicide. After making sure that Dr. Margarita was “aware that Mr. Hightower is a Negro male age 23,” the prosecutor directed the witness to a table reflecting “the rate of homicides for Negro males age 50 to 54.” Following an exchange about the data for discrete demographic groups, the prosecutor asked Dr. Margarita:
Q. I would be correct, wouldn’t I, Doctor, in interpreting this study as saying that Black males age 50 to 54, which is how old Mr. Hightower will be if he’s paroled at the expiration of his 30 years, commit more crimes than * * * males [in the general population] age 20 to 24, according to this study?
A. Yes.
Q. Does it not say that people in that age group that I’ve described Mr. Hightower belonging to commit 29.4 homicides per 100,000? It says that; doesn’t it?
A. Yes.
Q. And it says as far as the general population is concerned, that males age 20 to 24 who you identified as the group most prone to commit murders, according to this study, commit 12.6 homicides per 100,000? It says that; doesn’t it?
A. Yes, sir.
At that point defendant moved for a mistrial. Although it denied the motion, the trial court struck from the record any “testimony having to do with the percentage of recidivistic homicides or percentage of homicides in anything other than the general population.” The court rеasoned that the information did not have “any place in the courtroom, because of the danger of it being misapplied, because of the danger of an emotional flare-up based on race.” Therefore, the court instructed the jury to disregard the testimony.
The prosecutor’s line of questioning was improper. Only one chain of inferences is possible from the cross-examination:
The trial court was correct in striking the entire line of questioning. A defendant’s race should never be a factor in the determination of a sentence, whether in a trial for a murder or for a traffic offense. Because the penalty phase must be retried anyway, we need not rule on whether the cross-examination was ground for a mistrial. However, we caution that if in the future a party in a capital case seeks to elicit statistical testimony on direct or cross-examination that might have racial implications, it must alert the trial court, out of the jury’s presence, about its intentions. As we noted in State v. Davis, 96 N.J. 611, 623 n. 2,
-D-
Defendant alleges several errors concerning the trial court’s treatment of aggravating and mitigating circumstances. We do not address those errors in the jury charge arising from the fact that this trial occurred before our decisions in State v. Ramseur, supra, 106 N.J. 123,
Defendant contends that the evidence does not support a finding of aggravating circumstance c(4)(c). In Ramseur we narrowed the wantonly-vile aggravating circumstance to cover оnly two types of murder. The first class applies to a murder in which the perpetrator “intended to cause, and did in fact cause, severe physical or psychological pain or suffering to the victim prior to the victim’s death.” 106 N.J. at 211, 524 A.2d
The State acknowledges that the evidence does not support a finding of a depravity murder. It argues, however, that the murder falls within the first category. According to the State, defendant’s first shot was “a deliberate effort to terrorize the victim.” The State contends that the victim was in severe physical agony following the first shot and that she was aware of “her impending and certain death at defendant’s hands.”
Because the trial occurred before our opinion in Ramseur, the trial court did not analyze the evidence under our narrow construction of c(4)(c). In light of the factual nature of that issue, it would be inappropriate for us to determine whether c(4)(c) is applicable here until the trial court has had a chance to evaluate the evidence. We do observe, however, that the State must provide evidence from which the jury could rationally conclude beyond a reasonable doubt that in missing the victim’s heart by inches on his first shot, defendant intended not to kill her but only to wound her.
Defendant also argues that the trial court should not have charged on aggravating circumstance c(4)(f), which applies to murder “committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense committed by the defendant or another * * Defendant asks us to interpret that factor to cover only “prior offenses and not contemporaneous ones.” Otherwise, defendant contends, that circumstance would duplicate c(4)(g) in every murder involving a robbery, sexual assault, arson, burglary, or kidnapping.
We disagree. The wording of c(4)(f) does not imply that it is limited to prior offenses. If the legislature had intended that result, it could easily have made it clear. The aggravating nature of this circumstance does not depend on the timing of the underlying offense. “The gravamen of this aggravating
In support of his argument, defendant quotes State v. Mon-turi, 195 N.J.Super. 317, 327,
Defendant also cites People v. Brownell, 79 Ill.2d 508, 38 Ill.Dec. 757, 404 N.E.2d 181, cert. dismissed, 449 U.S. 811, 101 S.Ct. 59,
Although analogous to c(4)(f) of the New Jersey Code, Illinois Revised Statutes, chapter 38, paragraph 9—l(b)7 (repealed) emphasized a witness’s assistance in an ongoing investigation:
*422 the murdered individual was a witness in a prosecution against the defendant, gave material assistance to the state in any investigation or prosecution of the defendant, or was an eye witness or possessed other material evidence against the defendant.
That emphasis suggests that the Illinois Legislature intended to exclude offenses occurring in the course of murder. The court in Brownell also noted that the legislative history supported that interpretation. Our legislature, however, has not expressed a similar intent.
Furthermore, our refusal to construe c(4)(f) narrowly as requested by defendant does not mean that in all felony murders that circumstance will duplicate c(4)(g). The requisite intent of c(4)(f) of avoiding detection is not involved in c(4)(g). Thus “the mere fact of a death is not enough to invoke this factor.” Riley v. State,
We have previously held that the same evidence can support more than one aggravating circumstance. State v. Rose, supra, 112 N.J. at 526-27,
We agree with defendant that evidence of actions taken to conceal the murder cannot be used for the purpose of proving aggravating factor c(4)(f). State v. Monturi, supra, 195 N.J.Super. at 316,
V
We affirm defendant’s murder conviction, vacate the death sentence, and remand to the Law Division for a new penalty-phase trial.
Chief Justice WILENTZ joins in all except Part IV A.
Justice HANDLER has filed a separate opinion, concurring in part and dissenting in part.
Concurrence Opinion
concurring in part and dissenting in part.
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 trial, defendant was sentenced to death. The Court now affirms his conviction for murder and sets aside the death sentence.
I would reverse defendant’s conviction as well as death sentence. I would do so because of my continuing belief that the Capital Murder Act, N.J.S.A. 2C:11-3, is unconstitutional as enacted, construed, and applied. I do not in this case see the necessity of repeating or expanding on the reasons that serve to explain that position. See, e.g., State v. Di Frisco, 118 N.J. 253, 284,
I would note as plain error an issue pertaining to the sufficiency of the instructions of the homicide offenses. It is impossible to discern from this record whether defendant was convicted of purposely or knowingly causing death or of purposely or knowingly causing serious bodily injury resulting in death. In State v. Gerald, 113 N.J. 40, 91-92, 549 A.2d 792 (1988), this Court ruled that an identical dilemma required retrial of the guilt phase.
The indictment in this case contained, along with separate counts on felony-murder, robbery, and gun charges, two separate counts that differentiated between the culpability states of purpose and knowledge. Neither the indictment nor the final jury charge, however, required the jury to consider separately whether the homicide entailed the intent to cause death or the intent to cause serious bodily injury resulting in death. Nevertheless, the Court, relying on its decision in State v. Pitts, 116 N.J. 580, 562 A.2d 1320 (1989), rules that no retrial of guilt is required. Ante at 412-413, 577 A.2d at 116. It reasons that the failure to have given a proper charge conforming to Gerald did not constitute reversible error because there was no evidence from which a jury could possibly conclude that defendant’s intention was limited to causing serious bodily injury to his victim. Ibid.
The State’s theory was that the murder was purposeful or knowing rather than a felony murder in which death was an unintended result. Confronted with the State’s rendition of the homicide, the defense was predicated on outright denial that defendant had committed the murder. Accordingly, defendant offered no evidence or argument to counter the State’s assertion that the murder was purposeful or knowing. Further, consistent with the position that someone else committed the murder, defendant did not attempt to show that the murderer had intended to inflict serious bodily injury rather than death. The absence of such evidence is understandable. Prior to the
The jury ultimately determined that the murder had been intentional, rejecting the death-ineligible option of finding defendant guilty of felony murder. I do not think, however, that the sufficiency of evidence supporting the conviction on the greater charge should determine the necessity of a Gerald charge. Ordinarily, the determinative consideration should be, as the Court held in Gerald, the quantum of evidence supporting the lesser, serious-bodily-injury charge. Cf. State v. Hunt, 115 N.J. 330, 374-77, 558 A.2d 1259 (1989) (conviction of death-eligible charge amply supported by the evidence, combined with the rejection of a death-ineligible alternative, indicated absence of prejudice where court did not instruct on other lesser charges that could have been supported by the evidence).
I believe a defendant in a capital-murder prosecution should have the benefit of the complete range of homicide offenses to be able to formulate and present defenses that can focus on the important distinctions that separate death-eligible homicides from those that are not. Consideration of due process and fundamental fairness impels no less than this. I would thus reverse the guilt conviction to allow defendant the opportunity to prepare and proffer all possible defenses and to adduce evidence, if available, that would require a full-range of homicide offenses to be presented to the jury.
II.
During the guilt phase, Sergeant Fitz-Patrick offered testimony that constituted inadmissible hearsay. The statement, elicited by the State during direct examination, is as follows:
Q Specifically sir, I want to direct your attention to the early morning hours of August the 20th, 1985. Did you have occasion to recall those early morning hours?
A Yes, yes, I do.
*426 Q Would you explain to the jury why that is significant to you?
A Well on August 19th, the week of August 19th, we had received information from several people in the Philadelphia area as to who was responsible for the murder of Cynthia Barlieb and based on that information we drove over to Philadelphia to retrieve the handgun that had been used in the murder and it was located at 668 Brooklyn Street in Philadelphia.
At that time we were aware that Jacinto Hightower was the person responsible for the murder and when we were going over to that area to retrieve the gun, we weren’t aware that he was going to be present at the—in the vicinity of the residence____ (emphasis added)
There can be no doubt that that statement constituted inadmissible hearsay. See State v. Bankston, 63 N.J. 263,
In Bankston, this Court determined to be hearsay an officer’s testimony that inescapably implied that a non-testifying informant had told the officer that the defendant would have narcotics in his possession, even though the officer never specifically repeated what the informer had said. The Court was “satisfied” that such hearsay testimony “may well have been the decisive factor which resulted in the guilty verdict” and found that the error was neither harmless nor cured by a cautionary jury instruction. 63 N.J. at 273,
The hearsay here was infinitely worse than that in Bankston, which only inferentially implicated defendant’s guilt. Fitz-Patrick’s testimony consisted not only of inferred hearsay—relating the testimony of others—it expressed the opinion of the State that defendant was guilty of capital murder. See State v. Odom, supra, 116 N.J. 65,
The standard of review in a capital case does not predicate reversal on whether any error was decisive or pivotal. See State v. Bankston, supra, 63 N.J. 263,
Moreover, this kind of error pointedly implicates the right to a jury trial. In a capital-murder prosecution, an error of this caliber transcends the barrier created by the conventional standard of review. In no case would we ever countenance a prosecutor or a State law-enforcement witness with direct knowledge of the facts expressing a personal opinion that the defendant is guilty. We go to extraordinary lengths in ordinary criminal cases to preserve the integrity and neutrality of jury deliberations, see, e.g., State v. Ingénito, 87 N.J. 204,
The Court dismisses the significance of this error, presumably, because the State’s case was a “juggernaut.” Ante at 395,
III.
This ease also involves prosecutorial misconduct. The first witness to appear for the State was David Barlieb, the husband of the victim. During the testimony, the following exchange occurred between Mr. Barlieb and the prosecutor:
Q What was [Mrs. Barlieb’s] birth date, do you know?
A October 30th, 1959.
Q Which would have made her at the time of her death 25, 26?
A Yeah.
This seemingly innocuous exchange took on a new dimension when the prosecutor concluded his closing argument during the guilt phase of the trial with the following remark:
Today is October 30th, 1986. Had it not been for Joey Hightower, ladies and gentlemen, Cynthia Barlieb would be twenty-seven years old today. Today is her birthday.
The Court determines that the prosecutor’s remarks during summation concerning the victim’s birthday do not rise to the level of reversible error. Ante at 411-412,
If the prejudicial effect of that misconduct alone, in the face of strong countervailing evidence of guilt, does not appear to require reversal, it must not be overlooked that the error
IV.
Defendant claims ineffective assistance of counsel during the guilt phase of the trial. He argues that the State’s case was not subjected to the “adversarial testing” expected from reasonable attorney performance in that defense counsel maintained a “defeatist” attitude evidenced by the failure to cross-examine zealously certain adverse witnesses; the failure to object to improper questioning, irrelevant or prejudicial evidence, and prejudicial material in the State’s closing argument; and inadequate opening and closing statements. The Court notes and rejects this claim. Ante at 404-412, 577 A.2d at 111-115.
There was no outright concession of guilt by counsel in this case. Compare Magill v. Dugger,
. That kind of conduct can be relevant in a determination of whether counsel is ineffective. In Goodwin v. Balkcom,
The concerns in this case generated by counsel’s indirect concession of defendant’s guilt and his implied unwillingness to represent defendant must be considered in conjunction with other instances of ineffectiveness. In King v. Strickland, 714 F.2d 1481, 1491 (11th Cir.1983), vacated and remanded, 467 US. 1211, 104 S.Ct. 2651,
Defendant alleges here that expert witnesses should have been cross-examined, particularly the fingerprint expert from the FBI and the medical examiner regarding his opinion concerning the infliction of the victim’s wounds and her position relative to her assailant. Defendant also alleges that counsel had failed to develop testimony illustrating the possible bias and self-interest arising from the animosity between defendant and adverse witnesses Irene Williams and Christopher Forston. The Court, considering these contentions in isolation, is unpersuaded by them, characterizing them as discretionary trial tactics. Ante at 408-409,
In addition, defendant points to the testimony for the State presented by Barbara Britt, defendant’s landlord in Texas, and by Tina Booker, a secretary at Fort Dix who processed defendant’s return from AWOL status. At trial, Ms. Britt testified that she remembered defendant particularly because he had painted his apartment orange. The trial court overruled defense counsel’s objection to the question whether she had had
Concededly, Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065,
The effect of defense counsel’s performance was that he indirectly conceded that defendant was guilty of murder, suggested that the jury could find defendant guilty of murder, indicated that he was not representing defendant out of choice, and created the impression that defendant had no defenses or was not entitled to a defense and was unworthy of a lawyer’s professional loyalty and services. In this setting, tactical defense decisions lose their independent significance. Defense counsel cannot comport himself or herself in this fashion in representing a client who is fighting for his or her life: Those circumstances demonstrate ineffective assistance of counsel, which combined with and augmented the prejudice arising from other errors occurring throughout the trial and materially contributed to defendant’s conviction.
The difficult task of gauging a defendant’s constitutional entitlement to effective assistance of counsel in a capital-murder prosecution, exemplified in this case, forcefully underscores the need for a more exacting and protective standard for determining the sufficiency of counsel’s performance. I reiterate what I put forward in State v. Davis, supra, 116 N.J. at 413,
In sum, I believe the profound difference between capital and noncapital criminal prosecutions compels, as a matter of state constitutional law, the adoption of an enhanced standard by which to measure the competence of counsel and the degree of prejudice sufficient to find a violation of the right to such assistance. We must recognize that counsel representing a defendant in a capital-murder prosecution must demonstrate the competence of a specialist and expert, not simply the skills of an average practitioner. Most particularly, counsel should exhibit this level of competence in the sentencing phase of a capital murder prosecution. Further, prejudice attributable to ineffective as- . sistance of counsel as a basis for reversal should be viewed realistically, fairly, and tolerantly. This is particularly so in the sentencing phase of the trial. Such prejudice should be presumed when counsel’s inadequacy relates to the factors that a jury must consider not only in determining the existence of facts but also in weighing their comparative worth in terms of whether the defendant should live or die.
V.
Defendant argues that the form of the jury instructions was deficient for failure properly or fully to define the aggravating factors charged and, further, that aggravating factors N.J.S.A. 2C:ll-3c(4)(c) and c(4)(f) should not have been charged.
At trial, the jury found the existence of aggravating factor c(4)(c), that “[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torturе, depravity of mind, or an aggravated assault to the victim.” The trial court rejected defendant’s motion for a new trial on the basis that the jury verdict and the penalty-phase determination were against the weight of the evidence.
Both defendant and the State agree that this case does not implicate the depravity element of c(4)(c). The dispute centers on whether there is sufficient evidence of defendant’s intention to inflict the sort of extreme physical or mental suffering that indicates torture or aggravated assault.
This Court’s interpretation of c(4)(c) in Ramseur emphasized the question of defendant’s intent: “[Ejxtreme physical or mental suffering must be precisely what defendant wanted to occur in addition to death.” 106 N.J. at 208-09, 524 A 2d 188 (citations omitted). The continued emphasis on intent is evident in this Court’s most recent comments concerning c(4)(c). See, e.g., State v. Pitts, supra, 116 N.J. at 635-37, 562 A.2d 1320; State v. Hunt, supra, 115 N.J. at 387-88,
The State contends that sufficient evidence of such intent exists to place c(4)(c) before the jury. It argues that the testimony of Forston and the medical examiner supports the conclusion that the first two shots fired by defendant exemplify intentional torture or aggravated assault. The State argues that the failure to have killed the victim with the first shot
Defendant argues that the fact that the first shot barely missed the victim’s heart belies the State’s contention that defendant’s first two shots were intended to inflict suffering rather than to kill. Defendant goes on to argue that all three shots were intended to kill, and that defendant thought the victim was dead when he dragged her into the dairy case. Defendant further points out that there is no evidence of how long or how much the victim suffered or that defendant intended that she suffer. See State v. Hunt, supra, 115 N.J at 413-14,
It cannot be overemphasized that the State’s argument during trial concerning defendant’s intent in the shooting conflicts directly with its argument on appeal regarding defendant’s intent. During guilt-phase summation, the prosecutor argued that defendant had intended to kill from the moment he entered the store; he stated explicitly that defendant’s first shots were intended to kill or cause serious bodily injury resulting in death rather than to scare. At penalty-phase summation, the prosecutor described the third bullet to the head as the act raising this murder to the level of “vile and inhuman.” On appeal, the State now vigorously contends that the first two shots were the manifestation of vile and inhuman aggravated assault or torture, while only the third shot was intended to kill.
The State’s Janus-faced position illustrates the deficiency inherent in the aggravating factor c(4)(c), both as refined by the Court in Ramseur and as applied. I stressed then and renew
Defendant and the State also differ over the applicability of aggravating factor c(4)(f), whether “[t]he murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense committed by the defendant or another.” In State v. Rose, supra, the Court held that sufficient evidence existed to support a finding of c(4)(f), that defendant shot a police officer to escape detection of possession of a gun. 112 N.J. at 531-32,
In State v. Monturi, 195 NJ.Super. 317,
I strongly believe that the Monturi approach, that “prior” offenses do not include contemporaneous ones, is correct. Without this differentiation, any felony murder becomes a c(4)(f) situation because there will rarely be a case in which it cannot be readily inferred that the murder accompanying the underlying felony was accomplished for the purpose of escaping detection for the underlying felony. See, e.g., People v. Brownell, 79 Ill.2d 508, 38 Ill.Dec. 757,
Moreover, as the majority acknowledges, evidence of actions taken to conceal a murder cannot be used for the purpose of proving aggravating factor c(4)(f), escaping detection. State v. Monturi, supra, 195 N.J.Super. at 326,
If a killer’s attempts to conceal a murder were evidence of c(4)(f), that factor would apply to almost all murders. That type of conduct does not indicate that the murderer intended to dispose of a potential witness. Thus in this case, such facts as the defendant’s dragging the victim into the freezer and his wiping the blood off the counter tend to prove that he attempted to conceal the murder, not the felony, and thus cannot be used to prove the existence of c(4)(f).
[Ante at 422-423,577 A.2d at 120-121 .]
It must follow that in any felony murder case in which the killer attempts to conceal the murder, it will not be possible to separate or distinguish his intent to conceal the murder from his intent to conceal the felony. If in the former context such an attempt at concealment is overly broad because it would apply c(4)(f) to “almost all murders,” it is surely overinclusive in its potential application to murders committed in the course of felonies.
Unless the standard governing the admissibility and use of evidence to prove c(4)(f) is clarified and limited to mean only a prior offense unrelated to the murder itself, it fails to restrict properly the number of defendants who will be exposed to the
VI.
This case also raises significant issues concerning evidence that a defendant may offer in the penalty-phase trial. At the beginning of the penalty phase, defendant sought to have his attorney barred from presenting evidence in mitigation. The Appellate Division found that defendant could not do so, State v. Hightower, 214 N.J.Super. 43,
Defendant now argues that allowing him to request death in this manner constituted reversible error. I agree. This Court has embraced the policy concerns of accuracy, reliability, and proportionality in sentencing that enjoin defendant from preventing the presentation of mitigating evidence. State v. Zola, 112 N.J. 384, 428-32,
In defining the boundaries of permissible statements in allocution, this Court carefully distinguished between defendant’s right to express the wish that his life be spared and an effort by defendant to confuse the situation by making assertions of fact that properly should be subject to cross-examination. In Zola, this Court expressed its belief that “[i]n the face of the State’s forceful pleas in favor of the death penalty, it is difficult to accept the argument that the briefest statement by the defendant would inject a fatal emotionalism into the jury’s deliberations.” 112 N.J. at 431,
We are committed to allowing only the jury, exercising the conscience of the community, to determine whether defendant deserves to die. That commitment underlay our decisions in State v. Koedatich (I), 98 N.J. 553,
In my view, the Court in Zola correctly extended to capital-murder defendants the right of allocution only to enter a personal plea for mercy. The notion of “mercy” is based on a perception that does not encompass logical relevance to the jury’s penalty decision. Mercy is engrained in a civilized system of criminal justice. It does not follow that because a plea for “mercy” is allowed in capital sentencing determination, a death wish should also be allowed.
Moreover, it is simply not possible to place credence and reliability in such a death wish. The psychological reasons behind such a feeling are often unfathomable, and, more convincing, the unreliability of such a death-wish is exemplified by the fact that defendants often change their minds, e.g., State v. Koedatich, supra. In fact, in this case defendant has changed his mind. Any other dignitary interest that encompasses the right to choose an alternative definition of “mercy” that is at the heart of allocution does not overcome the constitutional mandate that the death penalty be meted out with consistency and uniformity as the ultimate reflection of the judgment of society expressed through the jury verdict.
During the penalty phase, defendant also sought to subpoena a member of the State Parole Board to testify about parole criteria. Defendant intended to tie that testimony to statistical evidence concerning prospects for rehabilitation, future release, and recidivism. The trial court disallowed that testimony as too speculative given the possible changes in parole criteria and also as too distant from the issue of defendant’s character. The trial court also disallowed statistical evidence concerning the non-deterrent effect of the death penalty and arbitrary imposition of the death penalty on minorities. Defendant claims those rulings were error. The Court rejects thоse contentions. Ante at 416-417, 577 A.2d at 117-118.
Sentencing in non-capital cases is informed by a plethora of information that can include considerations governing parole. See, e.g., State v. Lark, 117 N.J. 331,
Some jurisdictions deem testimony concerning parole or commutation as inappropriate. Although introduction of such information may not compromise a defendant’s constitutional rights, California v. Ramos, 463 U.S. 992, 1014, 103 S.Ct. 3446, 3460,
VII.
For these several reasons, I would reverse defendant’s conviction of guilt of capital murder and his death sentence. I accordingly concur in part with and dissent in part from the Court’s judgment.
Chief Justice WILENTZ joins in that portion of Point VI which would bar a defendant from seeking a death penalty.
For affirmance; vacated and reversal—Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O’HEARN, GARIBALDI and STEIN—7.
Opposed—None.