People v. Gurley
| Decision Date | 16 February 1972 |
| Docket Number | Cr. 9084 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. James Martin GURLEY, Defendant and Appellant. |
Michael H. Metzger, Daniel H. Weinstein, San Francisco, for appellant.
Evelle J. Younger, Atty.Gen., Robert R. Granucci, Eugene Kaster, Deputy Attys.Gen., San Francisco, for respondent.
Defendant has appealed from a judgment--order suspending execution of a sentence to prison and granting the defendant probation--following his conviction of possession of heroin in violation of section 11500 of the Health and Safety Code, by his plea of guilty. The plea followed the denial of his motion to suppress evidence, and the appeal is entertained pursuant to the provisions of subdivision (m) of section 1538.5 of the Penal Code. Defendant contends the trial court erred in holding that he had validly consented to a search of the vehicle in which the heroin he was convicted of possessing was found. 1 It is concluded that there was sufficient evidence to sustain the finding of the trial court that the defendant voluntarily consented to the search of his car, that, in any event, the officers were entitled to rely upon his objective manifestation of consent, that there was probable cause to search the defendant's vehicle for contraband, and that the officer was entitled to seize the paraphernalia and accompanying containers which were in plain sight.
The seizure of the contraband and the charges of which defendant stands convicted arose out of the following tragic circumstances. On the afternoon of July 6, 1969, defendant James Martin Gurley, his wife Nancy, and their three-year-old son, Hongo, were camping at a location on the Russian River approximately 10 miles from Cloverdale, California. After spending most of the afternoon boating on the river, the family returned to their campsite for dinner. Between the hours of approximately 7 and 10 p.m., the defendant spent his time fishing and eating dinner. During that time he had a number of glasses of wine. At approximately 10 p.m. defendant went to his vehicle (a Toyota jeep, parked on a dirt road near the campsite) and administered, to himself, an injection of heroin. Because he was 'high' on wine, he inadvertently injected himself intramuscularly. At this point Nancy approached the vehicle and requested the defendant's assistance in administering a shot of heroin to herself. Aided by defendant, Nancy Gurley received an intravenous injection of heroin and proceeded back to the campsite. Because of the failure to reach a vein on his first injection, defendant administered another injection to himself and again, because of being under the influence of the wine, he missed his vein. Defendant shortly thereafter, upon arriving at the campsite found his wife unconscious and in a comatose condition. After a frenzied attempt at artificial respiration, he carried his wife and son back to his vehicle and drove into Cloverdale seeking medical assistance. His first stop was at a gas station where he was directed to the offices of Dr. Lombard Sayre. The gas station attendant, having seen the defendant's agitated condition, immediately notified the Cloverdale police.
Defendant arrived at Dr. Sayre's office and was shortly thereafter met by Dr. Sayre who had also been notified by the gas station attendant. Defendant thereafter carried his wife into the office. Dr. Sayre, after a brief examination, advised defendant that his wife was dead. After ascertaining some of the foregoing circumstances from the defendant the doctor telephoned the police. Defendant, although having been advised that his wife was dead, persisted in attempting to bring her back to life by breathing into her mouth.
Moments later, Officers Waller and Green of the Cloverdale Police Department arrived, and after a brief discussion with the doctor, removed defendant from his wife's body. Officer Green gave the defendant a Miranda warning and proceeded to question him regarding the circumstances of his wife's death. During the questioning, the officers learned that heroin was in the glove compartment of defendant's car which was, at that time, parked in the street in the vicinity of the clinic. After asking defendant whether they could get the heroin, and securing his permission, Officer Waller proceeded out to the car and observed, in the glove compartment, the item he had described, a white box wrapped in a red rubber band. Officer Waller retrieved this box along with a spoon and a candle, and brought these items into the clinic. Once in the clinic, an examination of the box was made and it was found to contain a very small quantity (2/10 gram) of a white powder which proved to be heroin.
On the recommendation of Dr. Sayre, Officer Green ordered Gurley to be taken to the Sonoma County Hospital Psychiatric Facility on a 72-hour treatment and evaluation hold. At approximately 12:30 a.m., Bell Ambulance Service transported Gurley and Hongo to the Sonoma County Hospital where the defendant was admitted at approximately 1:35 a.m. The evidence relating to the defendant's condition at the time he was interrogated by the police and consented to the officers' retrieving the heroin is discussed below.
Defendant contends that his rational intellect and free will were so severely impaired by the dual effects of his physical intoxication from alcohol and heroin, and his emotional stress from the psychological shock of his wife's death, that the asserted waiver made by him at the very peak of his emotional upheaval cannot be deemed 'voluntary' under applicable constitutional standards.
The defendant testified that he did not know what transpired from the time he was taken into another room, after futilely attempting to revive his wife with mouth to mouth resuscitation, until he 'work up' to find himself in the hospital. He also testified that he only recalled a dark room 'filled with people.' He did not remember or recognize Officers Waller and Green, Dr. Sayre or the ambulance attendant who accompanied him to the hospital. He relies on the testimony of observers, and of expert witnesses to support his contention that he was unable to understand the nature of the conversation in which he apparently engaged.
Officer Green testified that the defendant was sitting in a chair with his naked son in his lap, rocking back and forth and sobbing 'Nancy, Nancy, Nancy, no, no, no'; that he was concerned that the defendant was going to fall forward off the chair. During his testimony Green described the defendant as 'upset,' 'excited,' 'crying,' 'sobbing,' 'passive' and 'hysterical'; and in his report he wrote, 'During questioning by the officers, suspect went hysterical, crying and talking to himself.'
Dr. Sayre characterized the defendant as 'hysterical' and at times 'unable to communicate or understand what was happening or had happened.' Dr. Sayre indicated that by 'hysterical' he referred to Dr. Sayre recommended that the defendant be committed to a psychiatric ward because he was in no condition to be left by himself. The doctor requested the officer to sign the form for the defendant's detention when he found it was necessary in order to have the defendant admitted.
The ambulance attendant described the defendant as 'hysterical,' 'crying' and 'irrational' through the half-hour trip to the hospital. Defendant sobbed over and over, The attendant stated that the defendant, who was secured to a gurney with restraining belts, kept throwing his head back and forth and flailing his arms against the side of the ambulance.
On defendant's admission to the hospital, the examining physician described him as The doctor found that defendant's pupils were too constricted to give him a routine fundoscopic examination.
At about 1:15 a.m., Deputy Sheriff Henshaw interviewed defendant in the emergency room at the hospital. He testified that defendant was 'crying hysterically' when he first observed him; that the only time defendant appeared coherent was when he asked defendant about his son, his age, and the name and address of his parents; that he lifted the defendant's head so he could be sure that the defendant recognized him as a police officer; and that the defendant continually sobbed and cried and repeated, 'Nancy, Nancy, Nancy.'
The following day in response to a question by another officer defendant indicated that he had not previously been instructed concerning his rights.
Defendant's testimony indicated that he ingested about four glasses of wine. He stated that he had first begun using heroin in December 1968, and used it with varying intensity in the months preceding the tragedy; and that he was attempting to taper off by infrequent usage in July. He stated that the two injections he took intramuscularly, and the one taken by his wife intravenously, each consisted of an eighth of a teaspoon of the narcotic, mixed with water by heating, and drawn up into a syringe. A test indicated that the heroin used was of a high potency (15 percent by weight), twice the strength of most 'street' heroin. The prosecution's witness indicated that a urine test was consistent with the administration of 10 milligrams at 9 p.m. on the evening in question, and that 10 milligrams would be a heavy intravenous does for a sporadic user who had not developed a tolerance to use of the drug. 2
Dr. Rappolt, a physician...
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