People v. Hamilton

• Decision Date: 26 June 1989
• Docket Number: No. S004485,No. 22911,S004485,22911
• Citation: 774 P.2d 730,48 Cal.3d 1142,259 Cal.Rptr. 701
• Parties: , 774 P.2d 730 The PEOPLE, Plaintiff and Respondent, v. Michael Allen HAMILTON, Defendant and Appellant. Crim.
• Court: California Supreme Court

Page 701

259 Cal.Rptr. 701

48 Cal.3d 1142, 774 P.2d 730

The PEOPLE, Plaintiff and Respondent, v. Michael Allen HAMILTON, Defendant and Appellant.

No. S004485.

Crim. No. 22911.

Supreme Court of California In Bank.

June 26, 1989.

As Modified on Denial of Rehearing Aug. 17, 1989.

Betty L. Dawson, Merced, under appointment by the Supreme Court, for defendant and appellant.

Frank O. Bell, Jr., State Public Defender, George L. Schraer, Deputy State Public Defender, and Michael G. Millman as amici curiae, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Eddie T. Keller, J. Robert Jibson and Raymond L. Brosterhous II, Deputy Attys. Gen., for plaintiff and respondent.

EAGLESON, Justice.

Defendant Michael Hamilton was convicted of the first degree murder of his wife, Gwendolyn Hamilton, and of their unborn child. The jury found that defendant personally used a firearm in both murders. With respect to the murder of Gwendolyn Hamilton, the jury found two special circumstances: intentional murder for financial gain (Pen.Code, § 190.2, subd. (a)(1)) ¹ and multiple murder ( § 190.2, subd. (a)(3)). With respect to the murder of the fetus, it found the special circumstance of multiple murder. This automatic appeal arises under the 1978 death penalty law. We will set aside one of the multiple-murder special circumstance findings, but will otherwise affirm the judgment in full.

1. SUMMARY OF EVIDENCE AND PROCEEDINGS

Since the evidence at trial was largely undisputed, we present the account of events in narrative form, without reviewing separately the testimony of each witness.

In 1981, defendant lived in Bakersfield with his wife Gwendolyn and their four young children. Gwendolyn was pregnant, and expecting a fifth child about the end of the year.

In March of 1981 the Hamiltons purchased life insurance policies, with a coverage of $175,000 on defendant and $100,000 on his wife. They experienced some difficulty paying premiums, and in June the agent went personally to collect the quarterly premium extending the policy through September. Receiving no further payment, the agent visited the Hamilton residence again on October 17, and collected two months' premiums from Gwendolyn, extending the policies into November.

In September, defendant began an extramarital relationship with Brenda Burns. In early October he called his sister Carolyn Hamilton to ask if she knew anyone who would do something illegal for money. Later he told her he wanted someone to kill his wife; that "he had a girlfriend and ... wanted to leave his wife" but "if he just divorced her he couldn't get the kids." He offered Carolyn $20,000 from the insurance on Gwendolyn's life if she would help find someone to do the killing.

Carolyn first asked another sister, Victoria Hamilton, who agreed to kill Gwendolyn for $10,000 of the insurance money, but Victoria moved to Texas a few days later. Carolyn then approached Gilbert Garay, whom she had met when both worked as security guards with the Porterville Private Patrol. Gilbert agreed to help for $10,000.

On October 31, defendant and Brenda Burns went to the K-Mart store in Bakersfield to purchase a single-shot 12-gauge shotgun. Defendant said he left his identification in the car, so Brenda purchased the gun with money furnished by defendant. Defendant kept the gun, and purchased shells.

That evening defendant, his wife, and their children drove to Porterville to visit defendant's parents, Sam and Jacqueline Piper. Carolyn and Gilbert joined them. While accompanying the children on trick-or-treat rounds, defendant, Carolyn and Gilbert discussed plans for the murder.

As arranged, defendant started to drive his family home, but stopped the car by the highway, claiming that one tire was flat. Carolyn left a few minutes later in her truck, accompanied by Gilbert with the shotgun. According to the plan, defendant would crouch by the tire, with Gwendolyn standing beside him holding a flashlight. As Carolyn drove by, Gilbert was to shoot Gwendolyn. But although the truck made four or five passes, Gilbert never pulled the trigger, and he and Carolyn eventually returned to Porterville.

Defendant phoned Carolyn an hour later to ask why she and Gilbert had failed to kill Gwendolyn. The next day he phoned again to say that he and Gwendolyn would stop at the same point on the highway on the pretext that defendant lost his wallet while changing the tire. Carolyn and Gilbert should drive by and shoot Gwendolyn as previously planned.

That evening defendant and his family again visited the Pipers in Porterville. During dinner defendant mentioned losing his wallet. After dinner defendant drove back to the agreed place, and he and Gwendolyn got out to look for the "lost" wallet. Carolyn and Gilbert drove by several times, but again Gilbert did not shoot.

The following day defendant called Carolyn with a new plan. As part of this plan, Carolyn called Gwendolyn and said that defendant's wallet had been found. Defendant and his wife left their children with Gwendolyn's sister in Bakersfield, and drove in a white pickup truck to Porterville. When they arrived defendant surreptitiously gave Carolyn the wallet, which she then returned to him in front of the family.

This time everything went according to plan. Carolyn gave defendant an icepick, which he used to jab a hole in one of the pickup's tires. Defendant stopped the pickup along the highway because one tire was going flat. Since the pickup had no jack, he left Gwendolyn in the truck and walked along the highway, ostensibly to find a place where he could phone for help. Carolyn and Gilbert picked him up in Carolyn's truck and drove him to a phone booth, where defendant called his mother and asked her to bring a jack. Mrs. Piper said she could not come until Carolyn returned with the truck. Carolyn and Gilbert then drove defendant back to the place where Gwendolyn was waiting in the pickup. Defendant took the shotgun, walked over to the pickup, and shot Gwendolyn in the throat. He returned to the truck and demanded another shell from Carolyn. After reloading he went back to the pickup and shot Gwendolyn again.

Gilbert drove back to the phone booth where defendant got out. Defendant phoned his mother again to ask her to bring a soft drink. Carolyn returned home with the truck. Defendant's parents then drove the truck to the phone booth, picked up defendant, and drove to the pickup where defendant "discovered" that his wife had been killed.

An autopsy revealed the cause of death was shotgun wounds to the throat and chest, fired at close range. The fetus died from anoxia caused by the mother's death.

Defendant first told the police that Gwendolyn had been killed while he was hitchhiking to the phone booth. The next day, however, he said that she was killed by a Canadian whom he refused to identify. The police questioned other members of the Hamilton family, and eventually Victoria told them of the plan to kill Gwendolyn. With Victoria's consent the police taped a phone call between her and Carolyn. Confronted with the taped conversation, Carolyn and Gilbert confessed. (Carolyn's confession included a statement that "Michael said he wanted the money," a crucial item of evidence supporting the special circumstance of murder for financial gain.) Both Carolyn and Gilbert agreed to a bargained plea of guilty to second degree murder with a dangerous-weapon enhancement, and will serve sentences of 16 years to life. As part of the bargain, both testified against defendant at trial.

The defense at trial attempted to show that Gilbert might have been the actual killer. The clerk who sold the shotgun, recalled by the defense, testified that she did not sell it to Brenda and defendant as she had testified earlier, but to Brenda's sister Sharon, who was accompanied by both defendant and Gilbert. ² And Victoria testified that when she first talked to Carolyn after the murder, she assumed that Gilbert was the gunman. ³ Defendant did not testify.

The jury found defendant guilty as charged, and found the charged special circumstances--the intentional murder of Gwendolyn for financial gain, and two counts of multiple murder--to be true. The penalty trial was brief. The prosecutor presented documentary evidence that 10 years previously defendant was convicted of grand theft. Defense counsel called Jacqueline Piper, defendant's mother, who testified that as a child defendant had been removed from the family home because of abusive conduct by his father, and placed in a series of foster homes. ⁴ The jury, after brief deliberation, returned a verdict imposing the death penalty.

2. ISSUES ARISING FROM PRETRIAL MOTIONS

(a) Motion to recuse the district attorney's office.

Shortly before the preliminary hearing, defendant phoned the district attorney's office and asked to speak to the district attorney. Defendant said he did not want his counsel to know of the request. The district attorney sent an investigator to talk to defendant. (The conversation itself was not offered into evidence.) The district attorney later informed defense counsel of the conversation.

Defense counsel sought and obtained an order forbidding the prosecution from further contact with his client without counsel's consent. He also moved in municipal court for recusal of the district attorney and filed a complaint against the district attorney with the State Bar. ⁵ When the case was transferred to the superior court following preliminary hearing, counsel renewed his recusal motion there.

Section 1424 provides that a motion to recuse the district attorney "shall not be granted unless it is shown by the evidence that a conflict of interest exists such as would render it unlikely that the defendant would receive a fair trial." In arguing the motion, defense counsel stressed not the conversation between defendant and the investigator, but counsel's filing of...