Nelson v. McCarthy

Decision Date28 November 1980
Docket NumberNo. 79-2605,79-2605
PartiesRaymond NELSON, Petitioner/Appellant, v. Daniel McCARTHY, Respondent/Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Barry J. Portman, San Francisco, Cal., for petitioner/appellant.

Richard G. Tullis, San Francisco, Cal., for respondent/appellee.

Appeal from the United States District Court for the Northern District of California.

Before KILKENNY and POOLE, Circuit Judges, and CALLISTER, * District Judge.

CALLISTER, District Judge:

This appeal arises from the denial of a petition for a writ of habeas corpus filed by the petitioner, Raymond Leroy Nelson. In March of 1974, petitioner was charged by information in Santa Clara County with counts of first degree murder, commission of a felony while armed, and possession of a sawed-off shotgun, in the shooting death of his wife, Sharon Nelson. In May of 1974, a jury found the petitioner guilty of all counts and he was sentenced to a life term in the state penitentiary. The following year his conviction was affirmed by the California Court of Appeals and a subsequent petition for a hearing denied by the California Supreme Court. With his state remedies exhausted, petitioner brought this petition for a writ of habeas corpus in the federal court contending that admissions made to police officers should have been excluded because appellant's waiver of his constitutional rights was neither voluntary nor meaningful due to excessive alcohol consumption. Appellant also maintains that statements made in an interview with a police psychiatrist should have been excluded since it took place after he asserted his right to remain silent. The United States District Court for the Northern District of California, Honorable W.T. Sweigert, District Judge, entered a judgment denying and dismissing the petition. Thereafter, petitioner filed this notice of appeal and the district court granted a certificate of probable cause. The jurisdiction of this Court rests upon § 2253, Title 28, United States Code.

FACTS

On the afternoon of February 7, 1974, at about 4:00 p. m. Raymond Nelson telephoned the Sunnyvale, California, police department and reported that he had shot his wife, Sharon. The record reveals that Nelson had a lengthy history of alcohol addiction and marital instability. Six weeks prior to the shooting, Sharon had moved out and taken up residence with another man. The week prior to Sharon's death, Nelson had been drinking heavily and talked of killing his estranged wife and himself. Apparently in preparation of that course of action, he sawed off a shotgun he had in his possession.

On the day of the shooting, Sharon returned to appellant's home to pick up a sewing machine that she had left behind. Nelson tried in vain to persuade her to return to him. When she refused, he took out the sawed-off shotgun from under the couch and fired a round into the living room wall near where she sat. He then shot and killed her.

The police officers arrived at Nelson's house shortly after his call and found him waiting. He was arrested and given a Miranda warning. In response to the warning Nelson stated, "I don't need no attorney, I killed her. I called you guys. Can I have a cigarette?" No questions were asked by the police officers at that time and Nelson was taken to the local police station. At the station Detective Gong again advised Nelson of his constitutional rights and Nelson indicated that he would talk with him and did not want an attorney. Detective Gong questioned Nelson for about one and one-half hours, during which time Nelson made several references to the fact that he had "pulled the trigger." The interview promptly ended at about 6:00 p. m., when Nelson became upset with Detective Gong's questioning concerning the moment of the shooting. He said, "I told you I shot her. What more do you want? Don't keep throwing it in my face like this." He thereafter told Detective Gong, "I don't want to talk to you any more. I don't want to say anything about it." During the period of the interview with Gong, samples of blood and urine were taken and analyzed to determine Nelson's blood alcohol level. It was determined that his blood alcohol content ranged between .23% to .30% during this time period. 1

About an hour after the interview with Detective Gong, Dr. Peschau, a psychiatrist, spoke with Nelson at the request of the police department. Dr. Peschau had been summoned to the police station at about 5:15 p. m. to conduct a diagnostic interview with Nelson to determine if he was mentally impaired by his drinking, but since Detective Gong was still questioning him, Dr. Peschau left and returned at about 7:20 p. m. Dr. Peschau informed the petitioner that he was there at the behest of the police to see what his condition was and to see if he could help him. He asked the petitioner if he was aware of his rights, and petitioner responded that he was and understood them. Dr. Peschau asked petitioner, "Do you want to talk to me?" and he replied, "Sure." Dr. Peschau's interview, which was summarized in his report, contained a detailed social history of the petitioner, and particularly his problems with alcohol. He talked about the events leading up to the shooting, but he declined to talk about the incident itself. He admitted that while he had been drinking the week before, he had not become "stumbling drunk." He also admitted that he knew it was morally wrong to shoot another. During the course of the interview, the psychiatrist had the petitioner perform specific mental exercises to determine his mental condition. At trial Dr. Peschau testified that during their interview, petitioner was rational and coherent, and that it was his opinion that the petitioner could premeditate and deliberate.

In the state court proceeding, defense counsel requested a pretrial hearing to determine the admissibility of petitioner's statements made to both Detective Gong and Dr. Peschau. Specifically, petitioner challenged their admissibility for want of adequate Miranda warnings and lack of capacity to voluntarily waive those rights. At the hearing, defense counsel called Dr. Closson who had interviewed petitioner several months after the shooting. His testimony was that in his opinion no one could make a truly voluntary waiver of constitutional rights with the blood alcohol level of the petitioner. After hearing all the evidence presented, the court found that with regard to the statements made to Detective Gong "The statement was free and voluntary, and made after proper Miranda rights and there was a waiver of it. Now, I will make this ruling without regard to whether Dr. Peschau's statement is admissible or not, even assuming that were (sic) excluded, so I will base it on the other evidence that I heard today and not on what Dr. Peschau said or what is in Dr. Peschau's report." (RT 139-140)

The court went on to hold that the statements made to the doctor were also admissible because there had not been an assertion of petitioner's Miranda rights, i. e., petitioner plaintiff refused to talk only about the exact moment of the actual shooting, and then only to Detective Gong, and Dr. Peschau did not violate those rights since he did not delve into the shooting incident. 2

The United States District Court, in denying the petition for a writ of habeas corpus, found that the record in the trial court was sufficient to create a presumption of correctness under 28 U.S.C. § 2254(d) that petitioner's intoxication did not bar a voluntary waiver of his constitutional rights. As to the statements made to Dr. Peschau, the district court held that since petitioner did not assert his rights, it was not improper for the doctor to interview and elicit statements.

The issues that are before us on this appeal are whether the petitioner's waiver of his constitutional rights was not knowingly and voluntarily given because of intoxication; and whether statements made to Dr. Peschau were used in violation of petitioner's asserted right to remain silent.

In a federal habeas corpus proceeding initiated by a person in custody pursuant to a judgment of a state court, § 2254(d), Title 28 of the United States Code, creates a presumption of correctness of all determinations made on the merits of a factual issue, Bailleaux v. Cupp, 535 F.2d 543 (9th Cir. 1976), subject to several listed exceptions. In order to overcome this presumption the burden rests on "the applicant to establish by convincing evidence that the factual determination by the State court was erroneous." 28 U.S.C. § 2254(d); LaVallee v. Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973).

With regard to a factual determination by a trial court of the voluntariness of an alleged confession or admission made by a criminal defendant, the Supreme Court in Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967), requires that the court's deducement that the confession was voluntarily given must appear from the record with "unmistakable clarity." See Gladden v. Unsworth, 396 F.2d 373 (9th Cir. 1968). The Ninth Circuit in United States v. Read, 411 F.2d 582 (9th Cir. 1969) also adds that "(a)t a minimum, the trial court's findings on essential factual issues must ... 'be ascertainable from the record.' " Id. at 583. It is with these standards in mind we approach the issues before us.

Waiver of Constitutional Rights :

Petitioner challenges the trial court's finding that he had waived his constitutional rights claiming that his actions were not knowing and voluntary because of his state of intoxication. Petitioner's argument is two pronged. First, he argues that the presumption created under 28 U.S.C § 2254(d) does not arise in this case because the trial court did not make any factual finding regarding the effect petitioner's intoxication had on his ability to understand his rights and to make an intelligent, voluntary waiver. Second, petitioner maintains that the trial court...

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  • People v. Roark
    • United States
    • Colorado Supreme Court
    • April 5, 1982
    ...whether he wishes the questioning terminated. Other courts have adopted or indicated approval of this procedure. See Nelson v. McCarthy, 637 F.2d 1291 (9th Cir. 1980), cert. denied, 451 U.S. 940, 101 S.Ct. 2021, 68 L.Ed.2d 327 (1981); United States v. Riggs, 537 F.2d 1219 (4th Cir. 1976); S......
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    ...itself makes clear, though, that its holding is based solely on Ninth Circuit precedent. Id. (“To the extent Nelson [ v. McCarthy, 637 F.2d 1291, 1296–97 (9th Cir.1980),] requires pre-waiver clarification of a suspect's wishes concerning his Miranda rights, it has not been superseded by Dav......
  • U.S. v. Rodriguez
    • United States
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    • March 10, 2008
    ...interrogating officers were required to clarify the statement before continuing with interrogation. See Nelson v. McCarthy, 637 F.2d 1291, 1296 (9th Cir.1981) ("[W]here there has been an equivocal assertion of a constitutional right [to silence], the attending officer can ask questions to c......
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