Curry v. Wilson
| Decision Date | 02 June 1967 |
| Docket Number | No. 45068.,45068. |
| Citation | 269 F. Supp. 9 |
| Court | U.S. District Court — Northern District of California |
| Parties | George Albert CURRY, Petitioner, v. Lawrence E. WILSON, Warden, California State Prison, San Quentin, et al., Respondents. |
J. Thomas Rosch, San Francisco, Cal., for petitioner.
Thomas C. Lynch, Atty. Gen., State of California, John T. Murphy, Deputy Atty. Gen., San Francisco, Cal., for respondents.
Petitioner is a California State prisoner confined at the San Quentin State Prison pursuant to a sentence of from five years to life entered after a jury trial and conviction of second degree murder. Cal.Pen.Code § 187. Subsequent to his conviction petitioner appealed to the District Court of Appeal, which affirmed the conviction. People v. Curry, 192 Cal.App.2d 664, 13 Cal.Rptr. 596 (1961). He then pursued appropriate state post conviction remedies, so that he has fully exhausted his available state remedies as to all issues presented.
In this petition he seeks relief by way of habeas corpus, alleging (1) that his constitutional right to counsel was violated when incriminatory statements were taken from him and introduced in evidence at his trial, (2) that these statements were rendered involuntary by virtue of police coercive tactics used to obtain them, (3) that incriminatory statements made by petitioner were rendered involuntary by virtue of his voluntary intoxication and that it was constitutional error to allow them to be introduced in evidence against him, (4) that it was constitutional error to fail to instruct the jury that it must consider petitioner's degree of intoxication and the failure to warn him of his constitutional rights in assessing the voluntariness of these statements, and (5) that he was inadequately represented by counsel.
Allegations 1 through 3 have been previously considered by this court, Curry v. Wilson, Civil No. 44066, N.D.Cal.S.D., decided January 28, 1966, and a finding adverse to petitioner made. It is clear that the court need not rehear these allegations, and in its discretion and for the reasons stated below, it does not choose to do so. 28 U.S.C. § 2244.
A hearing on the order to show cause issued in this matter was held, at which both petitioner and respondent were represented by very able counsel. Counsel for petitioner argued with admirable vigor that this court ought to review the circumstances surrounding the giving of incriminatory statements shortly after petitioner's arrest for the alleged homicide. He contended, first, that the failure to warn petitioner of his right to remain silent and of his right to counsel should be considered in assessing the voluntariness of the statements, and second, that the record shows that petitioner was so intoxicated that he could not have given the statements voluntarily. For the reasons stated in the opinion of the California District Court of Appeal, People v. Curry, supra, and the reasons stated in the prior opinion of this court, Curry v. Wilson, supra, the court concludes that petitioner waived any objection he may have had on that ground by deliberately by-passing the California contemporaneous objection rule. Petitioner's reliance upon the language in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), and Davis v. State of North Carolina, 384 U. S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966), does not persuade the court to the contrary.
With respect to petitioner's contention that his voluntary intoxication rendered his statements inadmissible, great reliance is placed upon Unsworth v. Gladden, 261 F.Supp. 897 (D.Oregon 1966), appeal docketed No. 21738, 9th Cir., March 1967. The court does not find Unsworth persuasive because of the stipulation on the part of counsel that the statements might be admitted in evidence and because the court is also of the opinion that the fact of voluntary intoxication goes to the weight to be given the statements, not to their admissibility. See People v. Curry, supra, 192 Cal.App. 2d at 670, 13 Cal.Rptr. 596.
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Curry v. Wilson
...District Judge*. DUNIWAY, Circuit Judge: Appeal from denial of a writ of habeas corpus. The opinion of the district court is reported at 269 F.Supp. 9. We Curry was charged in the Superior Court of Orange County, California, with murder in the first degree. At his trial in 1960, which laste......