People v. Hedgecock

Decision Date25 April 1988
Docket NumberNos. D004000,D005661,s. D004000
Citation247 Cal.Rptr. 404,214 Cal.App.3d 1082
CourtCalifornia Court of Appeals Court of Appeals
PartiesPreviously published at 214 Cal.App.3d 1082 214 Cal.App.3d 1082 The PEOPLE, Plaintiff and Respondent, v. Roger HEDGECOCK, Defendant and Appellant. In re Roger HEDGECOCK, on Habeas Corpus.

Charles M. Sevilla and Cleary & Sevilla, San Diego, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Frederick R. Millar, Jr., Supervising Deputy Atty. Gen. and Robert M. Foster, Deputy Atty. Gen., for plaintiff and respondent.

WIENER, Acting Presiding Justice.

On October 9, 1985, a jury found Roger Hedgecock, then the mayor of San Diego, guilty on a single count of conspiracy and 12 counts of perjury. The offenses involved violations of local election ordinances and the state Political Reform Act of 1974 (Gov.Code, § 81000 et seq.) restricting campaign contributions and requiring complete and accurate personal and campaign accounting.

Money--"the mother's milk of politics" 1--is the root of this case. Hedgecock's source was the "financial empire" known as J. David and Company presided over by J. David "Jerry" Dominelli and Nancy Hoover, later pejoratively referred to as Captain Money and the Golden Girl. 2 Although it is tempting to pursue this intriguing background, the lengthy opinion which follows avoids chronicling the San Diego political and social scene in which Dominelli and Hoover succeeded in capturing the hearts and pocketbooks of many well-known and influential San Diegans. We defer to others to fully describe the events of that period and explain how and why they occurred. There is obviously ample source material in the voluminous court records containing the details of J. David's still-pending bankruptcy, the criminal prosecutions both state and federal against several of the principals, and the various civil cases against lawyers, accountants, directors and others seeking damages to recoup lost investments. We mention these events only briefly as a backdrop to the political world of 1982 in which Hedgecock was seeking to become Mayor of San Diego.

To a great extent, the legal proceedings in this case mirror the turbulent events which preceded the September 19, 1984, indictment charging Hedgecock, Dominelli, Hoover and Hedgecock's long-time political confidant Tom Shepard with conspiracy to violate numerous election laws and multiple counts of perjury. Hedgecock's trial was severed from that of his codefendants. His first trial, interspersed with occasional requests for appellate intervention, resulted in a hung jury. The second trial, resulting in the convictions under review here, concluded on what can only be described as a bizarre note when two jurors came forward with allegations of misconduct by the bailiff.

For the sake of convenience and clarity, we depart from the traditional form of an appellate court opinion and begin by discussing the allegations of juror and bailiff misconduct, an understanding of which is not dependent on the facts underlying the criminal charges against Hedgecock. We explain why we conclude the judgment must be reversed for the sole purpose of allowing the trial court to conduct an evidentiary hearing to determine whether Hedgecock is entitled to a new trial. The formal statement of facts follows in Section II of the opinion, describing the evidence presented at trial. We then address Hedgecock's remaining contentions of legal error, explaining why we do not find them persuasive or, if meritorious, why they nonetheless do not require reversal of his convictions. Thus, Hedgecock's convictions shall be reinstated if following the evidentiary hearing on remand the trial court concludes that Hedgecock's motion for new trial should be denied.

I. JUROR/BAILIFF MISCONDUCT ISSUES

Given the extensive publicity surrounding this case, the jury was sequestered from Wednesday, October 2, 1985--the day before deliberations began--until the verdict was taken on the afternoon of October 9. Bailiffs Allen Burroughs and Holly Murlin were charged with supervising the jurors during this period. Several of Hedgecock's contentions on this appeal involve allegations which surfaced following the verdict that at least one of the bailiffs committed misconduct during the sequestration period. Hedgecock argues that bailiff Burroughs engaged in improper communications with one or more of the jurors regarding the status of jury deliberations, the conduct of the hold-outs, the cost of the sequestration and concomitant need for a speedy verdict. He also alleges Burroughs misrepresented to another juror that there could be no hung jury and told jurors a story about a green hat which involved the concept of reasonable doubt and implied that hold-out jurors were being unreasonable. These same allegations formed the basis for Hedgecock's motion for a new trial. Additionally, in a consolidated petition for writ of habeas corpus, Hedgecock contends he is entitled to an evidentiary hearing on the question of whether the consumption of alcoholic beverages provided members of the jury by one of the bailiffs the night before the final day of deliberations incapacitated one or more of the jurors.

We begin by describing the facts and procedural background which underlie Hedgecock's arguments. While we reject his suggestion that the declarations submitted in support of the motion for new trial establish prejudicial bailiff misconduct as a matter of law, we nonetheless conclude that the lack of an evidentiary hearing as well as several other procedural errors in the resolution of the new trial motion denied Hedgecock a fair and complete opportunity to have his serious allegations of misconduct properly considered. We also conclude that an alternative writ must issue so that the questions regarding juror consumption of alcohol may be explored. Accordingly, we will remand for an evidentiary hearing on Hedgecock's motion for new trial and order that the issue on the alternative writ be heard concurrently by the superior court.

Factual Record at the Motion for New Trial 3

In support of his new trial motion, Hedgecock submitted declarations from jurors Stanley Bohensky and Kathleen Saxton-Calderwood. 4 According to Bohensky, Burroughs had struck up a relationship with him by the second day of deliberations. Burroughs asked Bohensky to mention to the other jurors that the sequestration process was costing a lot of money, they did not have to be treated this nicely and they should reach a speedy verdict. He also indicated that Judge Todd wanted to know if the jury was getting along and making progress. Bohensky replied that one of the jurors, Delores "Di" Pickering, was causing problems by expressing concern that the prosecution was a "paper case." Burroughs told Bohensky he should take notes on what any unreasonable jurors were saying. 5

According to Bohensky, Burroughs' inquiries regarding hold-outs and the status of deliberations continued over the next several days. Bohensky described one conversation in his room which included Burroughs and the second bailiff, Holly Murlin. Burroughs and Murlin explained how they could predict which prospective jurors the attorneys would excuse and how the jurors actually selected would ultimately vote. The bailiffs told Bohensky, "Don't worry about Di Pickering, she'll come around, it's Kathy that you guys are going to have trouble with." Bohensky also described a conversation he had with Burroughs and foreman Richard Stark in which Burroughs told the two jurors, "Listen, I trust you guys. Me and the Judge have sat through this case twice now. We've heard all the testimony and have seen the evidence. We don't care how it comes out as long as it's all one way or the other."

On Sunday evening following deliberations, Bohensky recalled that the bailiffs arranged for pizza to be delivered along with beer and wine. Burroughs told a story to several of the jurors about a jury's deliberations in another case in which one of the witnesses disagreed with others in testifying that the defendant wore a green hat. One of the jurors expressed his opinion that the disagreement in the testimony caused him to entertain a reasonable doubt regarding the defendant's guilt. A fist fight broke out between this hold-out juror and the foreman which required summoning the bailiff. According to Bohensky, Burroughs editorialized, "That shouldn't have been a hung jury; that was not reasonable doubt." Several of the jurors later mentioned the "green hat story" during deliberations in discussions about reasonable doubt.

Saxton-Calderwood's declaration also described the telling of the "green hat story" in a manner consistent with Bohensky's declaration. She confirmed that the jurors referred to the story in deliberations relating to reasonable doubt and asked Burroughs to repeat it on other occasions.

Saxton-Calderwood also commented on other conduct by Burroughs. She explained how in one conversation, Burroughs told her and the other jurors that there were only two possible verdicts, guilty and not guilty. "He stated that all of the evidence was before us, and emphasized that we use our common sense." Concerned about the accuracy and appropriateness of these comments, Saxton-Calderwood approached Murlin. Murlin told her to remember they were there to reach a verdict. Later, Murlin told her "there were other choices regarding the verdict." Bohensky corroborated Saxton-Calderwood's story, explaining that Burroughs related to him that " 'Kathy complained to Holly that last night I told her there couldn't be a third alternative, or split vote. Watch out what you say to Kathy.' "

On another occasion, Saxton-Calderwood overheard portions of a conversation between Burroughs and Bohensky in which the two men referred to her and fellow juror Renee...

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