Hitchings, In re

• Citation: 6 Cal.4th 97,24 Cal.Rptr.2d 74,860 P.2d 466
• Decision Date: 04 November 1993
• Docket Number: Nos. S015706,CR25064,s. S015706
• Court: United States State Supreme Court (California)
• Parties: , 860 P.2d 466 In re Keith Sanford HITCHINGS on Habeas Corpus.

Page 74

24 Cal.Rptr.2d 74

6 Cal.4th 97, 860 P.2d 466

In re Keith Sanford HITCHINGS on Habeas Corpus.

Nos. S015706, CR25064.

Supreme Court of California,

In Bank.

Nov. 4, 1993.

Rehearing Denied Dec. 30, 1993.

Thomas Lundy and Richard J. Ingram, Santa Rosa, under appointments by the Supreme Court, for petitioner.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart and George Williamson, Chief Asst. Attys. Gen., John H. Sugiyama, Asst. Atty. Gen., Morris Beatus, Dane R. Gillette and Ronald E. Niver, Deputy Attys. Gen., for respondent.

LUCAS, Chief Justice.

Keith Sanford Hitchings was convicted in Humboldt County Superior Court of the first degree murder of Rebecca Jensen and the second degree murder of James Jensen. (Pen.Code, § 187; all further statutory references are to this code unless otherwise indicated.) A multiple-murder special-circumstance allegation was also sustained. (§ 190.2, subd. (a)(3).) The jury set the penalty at death.

Petitioner appealed and also filed a petition for a writ of habeas corpus alleging juror misconduct. This court found he stated a prima facie case for relief in his habeas corpus petition and issued an order to show cause. In addition, we appointed J. Michael Brown, Judge of the Superior Court of Humboldt County, to act as our referee. Judge Brown has now filed his report. After due consideration, we conclude the writ should be granted and petitioner's convictions vacated.

FACTS

In June 1982, petitioner drove to a rodeo at Ruth Lake with his girlfriend, Shannon Pellegrini. He drank several cans of beer along the way and was intoxicated when the two arrived at the lake. Petitioner met some relatives at the rodeo and continued to drink. Later that night, he argued with Pellegrini and left their campground on foot. Early the next morning, he was seen hitchhiking and was picked up by three men. The foursome spent most of that day together, drinking beer in various places around Humboldt County. Some methamphetamine was ingested. When the party broke up, petitioner ended up alone, on foot in the town of Loleta, and apparently intoxicated.

That night, he went door to door in an attempt to secure a place to sleep. Deputy Sheriff Mayton found petitioner walking along a road in the victims' neighborhood. Petitioner appeared intoxicated and his pants were ripped. He had scratches on his arms and a fresh wound on his hand. He also appeared to have blood on his arms and shoes. Mayton took petitioner into custody for being drunk in public and also for his own safety. Although petitioner told Mayton he had a knife in a sheath on his belt, Mayton did not find one. When he was handcuffed, petitioner said, "You [would] think that I have committed murder or armed robbery or something."

The bodies of James and Rebecca Jensen, both in their 80's, were found later. They had been severely beaten, apparently with a baseball bat. Mrs. Jensen's blouse had been pulled up, her pants pulled down, and her underpants torn from her body. Petitioner was tied to the crime scene by his boot prints and the discovery of his knife (and its sheath) at the Jensens' home. Pellegrini identified the knife as belonging to petitioner.

Habeas Corpus

Following petitioner's conviction, defense attorney William Kay visited his former law partner, James McKittrick. McKittrick informed Kay that the previous evening, he had met a woman who worked at a local savings and loan. Their conversation turned to petitioner's trial and the woman, later identified as Kim Robinson, said she had worked with one of the jurors who sat on petitioner's case. Robinson said she was surprised that the juror, Cathy Nordstrom, had remained on the jury because Nordstrom appeared to have made up her mind about the case prior to being chosen. In addition, Robinson said there had been Petitioner then filed a petition for a writ of habeas corpus alleging Juror Cathy Nordstrom committed misconduct by (i) concealing, on voir dire, her knowledge of the case and her bias against him; (ii) prejudging the case; and (iii) improperly discussing the case with nonjurors during the pendency of the trial. Declarations from Nordstrom's coemployees at First Security Savings and Loan (the bank) supported these allegations. The bank was located in Eureka, only a few miles from Loleta, the scene of the crime. We issued an order to show cause (see In re Hochberg (1970) 2 Cal.3d 870, 873-874, fn. 2, 87 Cal.Rptr. 681, 471 P.2d 1), and appointed Judge Brown as our referee to take evidence. Our order directed him to answer three questions: "1. Did juror Cathy Nordstrom have greater knowledge of this case than she revealed on voir dire? 2. Had Nordstrom prejudged petitioner's guilt prior to trial? 3. Did Nordstrom discuss the case with her co-workers or others while sitting as a juror in this case?"

[860 P.2d 468] substantial discussion about the case at the savings and loan where they worked. Following these revelations, Kay contacted petitioner's appellate attorney, Tom Lundy, and commenced an investigation.

Cathy Nordstrom

At the evidentiary hearing before the referee, Nordstrom testified that she and Kim Robinson were tellers at the bank, Robinson occupying the adjoining teller window. Nordstrom testified she first heard about petitioner's case when told she would be a juror in his case. Although Barbara Peterson, another bank employee, had known the victims, Nordstrom said she was unaware of that fact. Another employee, Larry Whitford, allegedly was affiliated with the sheriff's department and had some knowledge of the case, but Nordstrom said she was unaware of that fact as well. She did not remember anyone at the bank discussing the case.

Nordstrom testified she continued working at the bank during the trial. Although petitioner's family had opened a savings account at the bank to provide for his defense, Nordstrom said she did not become aware of the account until after the trial commenced. She said she did not remember any discussions in the bank about the Hitchings family account. She recalled that once, someone transacting business at the bank recognized her as a juror and became verbally abusive toward her. She reported this incident to the trial judge.

Nordstrom admitted that after work, she sometimes went with Kim Robinson to a local bar named Frankie's Champagne Palace. She described the frequency of these events as "[o]nce every couple of weeks or so." When asked whether she went to the bar with Robinson after a day in court, Nordstrom replied, "It's possible. I could have." Later, however, she admitted she told a defense investigator that she found the trial upsetting and that she "often" went for a drink after court. She unequivocally stated, however, "I did not discuss this case with anybody during the trial."

Nordstrom reaffirmed that she had no advance knowledge of the case prior to being chosen as a juror. She stated that during trial, she did not read any newspapers or watch television. When asked whether she read newspapers or watched television during the period before trial, she replied, "I don't believe I did."

In her jury questionnaire, completed in January 1983, and admitted at the evidentiary hearing, Nordstrom stated she was unfamiliar with the names Keith Hitchings, James and Rebecca Jensen, or the "facts surrounding an alleged murder of two elderly people in Loleta." Later, when questioned by the court on voir dire, she replied that her husband told her two people were killed in Loleta, but that was all she knew about the case. She stated she was on vacation at the time of the crime and knew nothing more about the case. She affirmed her ability to be "fair to both sides," and when asked whether she had "formed any opinion about the guilt or innocence of Mr. Hitchings," she answered "I don't know anything about it."

Nordstrom averred that she was "interested" in being on the jury, but was not Nordstrom acknowledged that sometime after the trial, the bank fired her for cashing personal checks directly out of her cash drawer in violation of banking rules. Moreover, the checks she cashed represented benefits from the Social Security Administration to which she knew she was not entitled because she had remarried. She admitted that she had reached an agreement with the federal government to make restitution. Finally, she conceded that when she filed for unemployment compensation, she did not disclose she had been fired by the bank for cashing the Social Security checks. Although she admitted she lied, she stated that, "Basically I'm an honest person. People do things that are wrong, and can still be honest."

"anxious"[860 P.2d 469] to serve. Although she stated in a signed declaration that she was one of the last two jurors to vote for guilt, she equivocated from that position at the evidentiary hearing, saying she "may" have been one of the last.

Nordstrom said Kim Robinson was her closest friend at the bank and that they parted as friends. She did not know why Robinson would lie about her. On cross-examination, she said Larry Whitford never spoke to her about petitioner's case, although he did help her get a loan.

Kim Robinson

Kim Robinson's testimony directly contradicted Nordstrom's account in various particulars. Robinson confirmed that she was a friend of Nordstrom and worked with her at the bank. She first heard of the murders from coworker Barbara Peterson, who knew the victims and whose husband was the arresting officer. Robinson said she also heard about the killings on the television news and from customers. She said there was a lot of publicity about the case. The day after the crime, she heard petitioner had been arrested for the crime. Robinson was acquainted with petitioner from having attended the same middle school with him. She said he was not a personal friend and that she did not socialize with him.

Robinson testified that after the slayings, there were discussions about...