The People v. Hightower
| Citation | 92 Cal.Rptr.2d 497,77 Cal.App.4th 1123 |
| Court | California Court of Appeals |
| Decision Date | 28 January 2000 |
| Parties | (Cal.App. 1 Dist. 2000) THE PEOPLE, Plaintiff and Respondent, v. FELIX HIGHTOWER, Defendant and Appellant. A081424 Filed |
Trial Judge: Honorable Joseph W. Jay
Counsel for Appellant: David Y. Stanley, under appointment by the Court of Appeal
Counsel for Respondent, Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney, Ronald A. Bass, Senior Assistant Attorney General, Michael E. Banister, Deputy Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General
CERTIFIED FOR PARTIAL PUBLICATION1
Defendant Felix D. Hightower was convicted of the murder of his mother and of arson in connection with a fire which led to the discovery of her body. On appeal he contends that the trial court erred by excusing a juror who professed during deliberations a categorical disbelief that a son could murder his mother under the circumstances shown by the evidence. The appeal also presents the question whether the trial court properly stayed sentence on the arson charge under Penal Code section 654.
Shortly after 6:00 o'clock on the morning of Monday, September 3, 1990, a fire broke out in the apartment occupied by defendant and his mother, Mary Hightower. A neighbor, seven years old at the time of the fire, testified that he was awakened by sirens and looked out his window to see defendant running from the alley in front of the apartment. Firemen entering the apartment found Ms. Hightower and her dog, both dead, in the bedroom. Ms. Hightower had been stabbed or cut approximately 63 times and had died as a result of the stabbings. Her death occurred one to three days before the fire. The fire had been set deliberately on the bed and at another point near the bed.
Ms. Hightower was last seen alive on Friday evening, August 31, when she agreed to join friends the following morning on a fishing and pea-picking trip. When the friends came by to pick her up on Saturday morning, she did not answer her door. Her car was missing, though she herself did not drive and typically got defendant to drive her.
At about 6:30 on Saturday morning, defendant presented himself at an Oakland hospital emergency room with fresh cuts on his hands. He told the triage nurse that he had cut himself with a knife about an hour earlier. He did not appear to be under the influence of drugs. He received 17 stitches and was released. Blood later found at the murder scene would prove to have genetic characteristics that did not match Mary Hightower's blood and did not match 99.75 percent of the African-American population, but did match defendant's blood.
On Saturday morning a friend of Mary Hightower's went by her apartment and saw defendant and a stranger loading a television set into a truck. When the friend asked appellant where his mother was, he replied that she had gone to pick up a check. Later that day, Ms. Hightower's sister questioned defendant about his mother's whereabouts. Defendant nervously said that she had gone fishing with a friend. Defendant struck the sister as "jumpy" and "nervous." He looked like he had been using drugs.
There was testimony that defendant had a "drug problem"; had previously taken a television from his mother's house; and had been heard arguing with her about drug use, missing items, and money. Witnesses also reported that defendant and his mother seemed to have a close relationship; that they generally got along and cared for one another as son and mother; that they had never been seen engaging in any physical conflict; and that their arguments were a normal parent-child thing.
At the conclusion of a first trial in 1993, a jury found defendant guilty of murder and arson and found the allegation of weapons use true. This court reversed the judgment on grounds not relevant here. (People v. Hightower (1996) 41 Cal.App.4th 1108.)
On remand, the matter was again tried to a jury, which again convicted defendant of second degree murder and arson and found true the allegations that defendant used a deadly weapon and acted with intent to inflict great bodily injury. The court initially sentenced defendant to a term of 19 years to life, consisting of 15 years to life on the murder charge, plus a consecutive 1-year enhancement, plus a consecutive 3-year term on the arson count. During the pendency of this appeal, however, the court modified the sentence to direct that defendant be sentenced to four years on the arson count, "stayed pending completion of service of sentence on the 1st count at which time said stay shall become permanent." The net result was a sentence of 16 years to life, with an additional stayed sentence of 4 years on the arson charge.
Defendant brought this timely appeal.
Defendant's sole challenge to the guilty verdict is that the trial court erred in discharging a juror during deliberations and substituting an alternate juror in his place.2
On the morning of the third day of deliberations, the jury submitted a note to the court which, though subsequently misplaced, was characterized for the record by agreement of court and counsel. The note requested guidance on how to proceed when a juror is "using general feelings and not following instructions . . . based on a fundamental belief that the love between a mother and son is strong." It asked whether such an approach constituted a "bias" which should be "set aside." In response, the court instructed the jury as follows:
After lunch the jury submitted a second note, signed by Juror 1 as foreperson, expressing concern that one or more unidentified jurors were incapable of following the court's instructions in that, instead of discussing evidence, they were discussing "feelings," "suppositions," and "unreasonable interpretations of the evidence." (Underlining in original.) The note reported that the juror had also expressed concerns that the trial was creating severe job and marital difficulties and depriving the juror of sleep. The note concluded that the juror might be unsuited to the particular case in light of "an internal belief system, [whether] personal or cultural, which is precluding that an
individual may be capable of committing the charged crime."3
The prosecuting attorney requested a hearing into juror misconduct. Defense counsel responded that that he could not see how the occurrences described in the note rose to the level of misconduct, and that the court would be "treading on very thin ice by intruding into the jury's deliberative process at this point with the scant information we have." The prosecuting attorney replied that Defense counsel rejoined that "any inquiry at this point should be limited to the question of whether the jurors believe that further deliberations will result in a verdict or whether they think a verdict is possible in this case."
Implicitly granting the prosecution request, the court convened a hearing in chambers in which the court, and then both counsel, questioned the foreperson, Juror 1. Juror 1 disclosed that the subject of the note was Juror 8, whom she described as Vietnamese. Juror 1 said that the other jurors felt Juror 8 Juror 8 did not refuse to follow instructions, and indeed appeared to feel that he was following them-but, said Juror 1, "He doesn't seem to be able to separate feelings, sentiment and bias from simply evaluating the evidence." Juror 8 was vague about why he had doubts, but they seemed to go to the issue of motive. He gave reasons for his doubts, but did not attempt to identify weaknesses in the position of the majority jurors, and did not attempt to "assign facts to his reasons." The other jurors had asked him to give reasons, but "he feels the burden is on us to convince him." The foreperson said that Juror 8 had gone beyond the facts shown by the evidence to "[s]peculat[e] as to who he thinks may have killed Mary." He also
Juror 1 also reported remarks by Juror 8 that as a result of the trial he felt he might have lost his job, and maybe his wife, and was not sleeping at night. Juror 1 felt the lack of sleep might have made it difficult or impossible for him to follow...
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