U.S. v. Curry, 80-2290

• Decision Date: 11 December 1981
• Docket Number: No. 80-2290,80-2290
• Citation: 663 F.2d 572
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Claude CURRY, Jr., Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 572

663 F.2d 572

UNITED STATES of America, Plaintiff-Appellee, v. Richard Claude CURRY, Jr., Defendant-Appellant.

No. 80-2290

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Dec. 11, 1981.

Nile Stanton, Indianapolis, Ind., for defendant-appellant.

Anna E. Stool, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, POLITZ and WILLIAMS, Circuit Judges.

PER CURIAM:

Appellant, Richard Claude Curry, Jr., was found guilty on four counts of crimes and conspiracy to commit crimes related to the transportation of marihuana from Colombia to Texas. An earlier trial on the same counts had resulted in a hung jury. At both trials, Curry was represented by his chosen counsel, Mr. Leonard Fleet. The only issue raised on this appeal is the claim that his lawyer failed to render effective assistance at trial; U.S.Const., Sixth and Fourteenth Amendments.

Although the government does not object to appellant's appeal asserting failure of his counsel adequately to represent him, we must deal with the fact that no objection based upon inadequate assistance of counsel was made to the trial court. This Court does not take note of errors raised for the first time on appeal unless refusal to do so would result in manifest injustice. We have, however, at times in our discretion considered ineffectiveness of counsel on direct appeal when the contentions made involve only matters of record. United States v. Fuentes-Lozano, 600 F.2d 552, 553 n.1 (5th Cir. 1979). Normally this Court will decline to review such a claim where an evidentiary hearing is necessary. United States v. Coronado, 554 F.2d 166, 170 (5th Cir. 1977), cert. denied, 434 U.S. 870, 98 S.Ct. 214, 54 L.Ed.2d 149 (1977).

All of Curry's claims based upon inadequate representation of counsel with one exception are dealt with fully in the record. The one exception is the claim that his attorney failed to avail himself of the "full investigation and legal underpinnings" of a prior case in which Curry had been acquitted of similar offenses, a case in which he used a similar defense to that he used in this case. We find that this one assertion is clearly nothing but a general conclusion and borders on the frivolous since it involves the same theme which the record clearly shows was adequately developed at the trial. We conclude, therefore, that we can properly review the plaintiff's claims of inadequate representation of counsel even though no complaint as to such representation was made in the trial court. The relevant matters are spread fully on the record.

Curry complains that representation by his counsel was inadequate in four basic respects which combined to render him ineffective. He asserts that Fleet: (1) failed to make an opening argument; (2) never developed or pursued a coherent theory of defense even though the defense of duress or coercion had been successfully used in his earlier trial; (3) did not effectively cross-examine witnesses; and (4) made an inadequate closing argument. Each contention will be dealt with in turn.

The complaint that Fleet did not make an opening argument clearly falls "within the amorphous zone known as 'trial strategy' or 'judgment calls'." Jones v. Estelle, 632 F.2d 490, 492 (5th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 1992, 68 L.Ed.2d 307 (1981). In view of the thorough and effective participation of Curry's counsel throughout the trial, as briefly described below, the decision may well have been not only a reasonable choice but a wise decision in view of the later full development of his defense.

Curry's second claim is that Fleet never developed a theory of defense. A study of the record shows that this objection is without merit. Fleet followed two lines of defense. The first was continually to probe all government evidence for weaknesses. The second was that Curry, because of duress or coercion, lacked the specific intent to commit the crimes. The prosecutor's and the court's comments showed they were fully aware of this latter theory. Curry himself testified. He admitted that he had flown the DC-4 aircraft from Colombia to Cotulla, Texas, carrying 4,000 pounds of marihuana....