20 Cal.4th 1083A, Hamilton, In re

• Decision Date: 06 May 1999
• Docket Number: No. S040799,S040799
• Citation: 84 Cal.Rptr.2d 403,20 Cal.4th 273
• Court: California Supreme Court
• Parties: A, 20 Cal.4th 273, 975 P.2d 600, 99 Cal. Daily Op. Serv. 3303, 1999 Daily Journal D.A.R. 4274 In re Michael Allen HAMILTON On Habeas Corpus

Page 403

84 Cal.Rptr.2d 403

20 Cal.4th 1083A, 20 Cal.4th 273, 975 P.2d 600,

99 Cal. Daily Op. Serv. 3303,

1999 Daily Journal D.A.R. 4274

In re Michael Allen HAMILTON On Habeas Corpus.

No. S040799.

Supreme Court of California

May 6, 1999.

Review Denied June 30, 1999.

As Modified June 30, 1999.

Samuel C. Palmer III and Katherine L. Hart, Fresno, under appointments by the Supreme Court, for Petitioner.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, J. Robert Jibson, William G. Prahl and Raymond L. Brosterhous II, Deputy Attorneys General, for Respondent.

BAXTER, J.

Petitioner Michael Allen Hamilton is confined at San Quentin under a 1982 death judgment of the Tulare County Superior Court. Petitioner was convicted of the first On July 5, 1994, petitioner filed this petition for habeas corpus, raising numerous issues, including several claims of juror misconduct. We issued an order to show cause (In re Hochberg (1970) 2 Cal.3d 870, 873-874, fn. 2, 87 Cal.Rptr. 681, 471 P.2d 1) limited to certain issues, including whether Juror Geneva Gholston was actually biased or incompetent, and whether she had concealed bias during the jury selection process.

                degree murders (Pen.Code, §§ 187, 189) 1 of his pregnant wife and their unborn child.  Under the 1978 death penalty law, one financial-gain and two multiple-murder special circumstances were found true.  (§ 190.2, subd.  (a)(1), (3).)   The jury sentenced petitioner to death.  In June 1989, we reversed one of the multiple-murder special circumstances but otherwise affirmed the judgment in full.  (People v. Hamilton, 48 Cal.3d 1142, 259 Cal.Rptr. 701, 774 P.2d 730.)
                

After receiving the return and petitioner's traverse, we dismissed portions of the order to show cause as improvidently issued. The sole questions preserved were whether Juror Gholston committed prejudicial misconduct by failing to disclose, during voir dire, that she had prejudged the case, and whether petitioner's sister attempted to intimidate Gholston during the trial, thus likely impairing Gholston's ability to be fair. We appointed John P. Moran, Judge of the Tulare County Superior Court, as our referee to supervise discovery, hear evidence, and make factual findings on these matters.

The evidentiary hearing was held in November 1997. The referee's report is now on file. The parties have submitted objections to the report and briefs on the merits of the petition. The referee has found in substance that Gholston neither harbored nor concealed bias. We agree that petitioner has failed to demonstrate grounds for relief on habeas corpus. We will therefore discharge the order to show cause.

FACTS

Homicide and trial

On the night of November 2, 1981, petitioner's pregnant wife Gwendolyn was killed by close-range shotgun blasts as she sat in the couple's disabled pickup truck, which was parked on an isolated stretch of highway between Porterville and Bakersfield. Gwendolyn's body was discovered when petitioner's parents drove him back to the disabled vehicle from the telephone booth he had used to call them for assistance with the truck's flat tire.

The homicide was front page news at first, but press coverage sharply diminished after a few weeks. The newspaper stories identified petitioner as the prime suspect and reported, among other things, that Gwendolyn was killed in the couple's truck after petitioner went to seek help for a flat tire, that the person petitioner claimed drove him to the telephone booth had not yet been located, that petitioner had a friend buy him a shotgun a few days before the killing, that petitioner and Gwendolyn maintained substantial insurance policies on their lives despite financial difficulties, that petitioner had a girlfriend, and that two other people--petitioner's sister Carolyn and one Gilbert Garay--were implicated in the case.

Petitioner was charged with the murders of Gwendolyn and her fetus. Jury selection began in October 1982. During voir dire, panelist Gholston, who became a member of the jury, responded to questions from court and counsel about her exposure to pretrial publicity and her ability to be fair.

Among other things, the court asked Gholston whether she had "read in the newspaper, seen on TV, heard on the radio, or had any conversations concerning anything regarding this trial." Gholston responded that she had read about the case in the Porterville newspaper and remembered some details. According to Gholston, "[t]he newspaper said" that petitioner had parked the truck on the highway "and pretended to have a flat tire or something," and that "somebody else came by and killed" Gwendolyn while petitioner was absent in search of help. Gholston also recalled that petitioner's "sister popped into the newspaper" in connection with the case, and that "[s]omeone bought Gholston answered in the negative when asked whether, "from what you read, and what you just briefly recalled, as you told us right now," she had "form[ed] an opinion regarding the guilt or innocence of the defendant." Gholston confirmed her understanding that only the trial evidence was relevant and stated on several occasions that she could think of nothing impairing her ability to be fair.

the gun," which was later "disassembled and disposed of in some way or the other."

Though specifically asked about "conversation[s]" regarding the case, Gholston mentioned none. Nor did she describe any other incident that might bear on her impartiality.

At trial, Carolyn and Garay testified, pursuant to plea bargains, as follows: Petitioner hired them to help him murder Gwendolyn. The plan was for petitioner and Gwendolyn to visit his parents in Porterville. On the way back to Bakersfield, petitioner would stop the couple's pickup on a pretext. Garay would then shoot Gwendolyn with a shotgun from a vehicle driven by Carolyn. On two successive evenings, the scene was set, and the two accomplices drove past the stopped pickup as scheduled, but Garay could not bring himself to fire. On the third night, petitioner punctured the pickup's tire in Porterville, then stopped when it went flat on the return to Bakersfield. He left Gwendolyn in the truck and began walking for help. Carolyn and Garay picked him up and drove him to a telephone booth, where he called his parents with a feigned request for aid. Carolyn and Garay then drove him back to the disabled pickup. He loaded the shotgun, approached the pickup, shot Gwendolyn, demanded another shell from Garay, reloaded, walked back to the pickup, and shot the victim again. After the murder, Carolyn and Garay returned petitioner to the telephone booth, where he met his parents.

A signed K-Mart purchase form indicated that on October 31, 1981, two days before the murder, petitioner's girlfriend Brenda Burns bought a single-shot 12-gauge shotgun. Brenda testified that she procured the gun for petitioner, who accompanied her to the store, and that petitioner also bought and kept shells for the weapon. As a prosecution witness, a K-Mart clerk identified Brenda as the purchaser of the shotgun and petitioner as her sole companion.

Carolyn testified that when petitioner asked her to help find someone to kill Gwendolyn, he said he had a girlfriend and wanted to leave his wife but was afraid he would lose his children in a divorce. There was also evidence that in March 1981, despite their modest means, petitioner and Gwendolyn took out large reciprocal life insurance policies and thereafter maintained the policies despite difficulties in meeting the premiums. In her police confession, admitted at trial, Carolyn stated that petitioner had told her he "wanted the [insurance] money."

The prosecution also introduced statements made by petitioner during police interviews. These included petitioner's initial claim that Gwendolyn had been killed while he was hitchhiking to the telephone booth, and his later assertion that she was killed by a Canadian whom he knew but refused to identify.

Defendant sought to show that Garay might be the actual killer. Recanting her former testimony, the K-Mart clerk testified for the defense that the shotgun was purchased not by Brenda, but by Brenda's sister Sharon, who was accompanied by both petitioner and Garay. On rebuttal, Sharon denied being the person who bought the shotgun. ²

Petitioner was convicted of two counts of first degree murder. Three special circumstances were found true, one of intentional murder for financial gain and two of multiple murder. In the brief penalty trial, the prosecution introduced petitioner's 1974 conviction for grand theft. Through petitioner's mother, the defense presented evidence that he suffered some abuse as a child.

The jury returned a death verdict. We reversed one of the multiple-murder special-circumstance findings as duplicative, but we otherwise affirmed.

Habeas Corpus Pleadings and Reference

In July 1994, over 11 years after the death judgment was rendered and more than 5 years after completion of the direct appeal, petitioner filed the instant proceeding, his second petition for habeas corpus in this court. ³ The petition included many attacks on the guilt and penalty judgments, including several claims of juror bias and misconduct supported by recently obtained juror declarations.

One of the declarations was that of Juror Gholston, then 76 years old. Among other things, Gholston's 1994 declaration stated that (1) before trial, Gholston learned petitioner blamed a "Canadian" for Gwendolyn's murder, (2) Gholston and a neighbor agreed this "ridiculous" story showed petitioner himself was guilty, (3) Gholston "prayed" to sit on petitioner's jury after the spirit of her deceased Uncle Frank, a bank robber and killer, exhorted her to atone for his wrongs by "aveng[ing]" petitioner's crimes, and (4) during trial, Gholston saw the "skinnier" of petitioner's sisters ⁴...