George Albert CURRY, Appellant, v. Lawrence E. WILSON, Warden, et al., Appellee, 405 F.2d 110

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 affirm. Curry was charged in the Superior Court of Orange County, California, with murder in the first degree. At his trial in 1960, which lasted 14 days, he was represented by retained counsel. The result was a conviction of murder in the second degree. He appealed to the California District Court of Appeal, which affirmed. People v. Curry, 1961, 192 Cal.App.2d 664, 13 Cal.Rptr. 596.

That court’s opinion sets out the basic facts at length, and this opinion assumes familiarity with it. Curry has twice sought habeas corpus, unsuccessfully, in the California Supreme Court. Between those two attempts, he also sought habeas corpus in the United States District Court for the Northern District of California, which was denied. He did not appeal from that denial. This appeal is from denial of a second petition to that court.

In his petition, Curry raises the following issues: (1) that use at his trial of certain statements made by him after his arrest violated his constitutional right to counsel; (2) that the statements were involuntary because coerced; (3) that they were involuntary because of his intoxication; (4) that certain instructions to the jury violated his constitutional rights; and (5) that he was inadequately represented by his counsel. The first three grounds were raised in his first petition to the District Court. In passing upon the present petition, the judge refused to consider them again, citing 28 U.S.C. § 2244.

It is usually within the judge’s discretion to do so. Sanders v. United States, 1963, 373 U.S. 1, 15-17, 83 S.Ct. 1068, 10 L.Ed. 2d 148. The prior decision was “on the merits,” the court having then held that the issues raised were precluded because there had been a deliberate by-passing of the state’s contemporaneous objection rule, citing Nelson v. California, 9 Cir., 1965, 346 F.2d 73, cert. denied, 1966, 382 U.S. 964, 86 S.Ct. 452, 15 L.Ed.2d 367. Such a deliberate by-passing is a proper ground for denial of the writ. Fay v. Noia, 1963, 372 U.S. 391, 438-39, 83 S.Ct. 822, 9 L.Ed.2d 837.

Here, however, the deliberate by-pass rule is not applicable. The California District Court of Appeal disposed of the portions of Curry’s contentions on appeal which were substantially the same as the first three grounds raised in this and the prior federal habeas corpus proceeding (see Sanders v. United States, supra, 373 U.S. at 16, 83 S.Ct. 1068), on two grounds. The first was: “Defendant next contends there was error in the introduction and use of tape recordings of interrogation of defendant. This objection is likewise without merit.

Not only was there no objection to the introduction of these recordings, they were both actually introduced on stipulation of both counsel. Adequate foundation was properly laid by the prosecution for their introduction, and there was no valid reason why they should not be heard by the jury. People v. Albert, 182 Cal.App.2d 729, 736[1], 741[14], 742[15b], 6 Cal.Rptr. 473.” (People v. Curry, supra, 192 Cal.App.2d at 670, 13 Cal.Rptr. at 599.) If the court had refused to consider the merits of those contentions for the reasons just stated, the deliberate by-pass rule would be applicable.

But the District Court of Appeal went further. It proceeded to consider Curry’s contentions on the merits and rejected them. People v. Curry, supra, 192 Cal.App.2d at 671, 13 Cal.Rptr. at 600. Under these circumstances, the deliberate by-pass rule is not available. Warden, Md. Penitentiary v. Hayden, 1967, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. There the Court held that where the state court actually passes on the merits of the claims, the deliberate by-pass rule does not apply. 387 U.S. at 297, n. 3, 87 S.Ct. 1642. To that extent, Nelson is no longer good law.

Consequently, we consider Curry’s first three grounds on the merits. In our opinion the record of Curry’s trial conclusively shows that his counsel deliberately, as a matter of trial strategy, which proved to be successful, waived those grounds. What counsel did was not a mere by-passing of a contemporaneous objection rule. It was an affirmative decision to waive the objections that he might have raised. That waiver is binding on Curry. There were two types of statements received. The first were made immediately after the shooting, and were apparently spontaneous.

The others were the result of questioning by police officers. All of them came in without objection. Taped recordings and transcripts of the latter statements were received under express stipulation by Curry’s counsel. When the first tape recording was received, Curry’s counsel, in addition to stipulating, said “Well, I want them [the jury] to hear it.” [Emphasis added.] The trial record also makes counsel’s reasons clear. There was no doubt that Curry had shot and killed a policeman. The only real question in the case was the degree of guilt.

The statements and the tape recording played to the jury contained much evidence of remorse, many denials of intent to injure anyone, much less to kill, and much evidence that Curry was befuddled by drink. Counsel obviously believed that they would help him to persuade the jury not to bring in a verdict of murder in the first degree. His argument to the jury covers 91 pages of the trial transcript. At no time did he argue that Curry did not fire the fatal shot; to have done so would have been stupid.

The first 70 pages of his argument are almost entirely devoted to an endeavor to persuade the jury that, because of his being exceedingly drunk, Curry could not have had the intent necessary to sustain a conviction of first degree or second degree murder or of voluntary manslaughter — that the most that the jury could find was involuntary manslaughter. This argument he strongly buttressed, in the next 13 pages of his argument, by an analysis of one of the tapes ^of Curry’s questioning by the police.

The opening sentences of his portion of the argument are as follows: “Now, there is something that should be covered and that is the question of these tapes, these recordings. Now, take the one — take the one that you heard.

Listen to it very carefully, and if this isn’t the discussion of a man whose mind is befuddled, confused and, mind you, he has had a lot of stimuli working on him, he has been handcuffed, he has been brought in, he has been told here that he shot someone, all these things are the same as a policeman stopping to arrest you for a 502 or something, you are bound to be coming to a little bit about this time to some degree. But he doesn’t— Mr.

Curry doesn’t recall any of these things.” Counsel’s strategy, while not wholly successful in that he did not get a verdict of involuntary manslaughter, was sufficiently successful that it defeated the first degree murder charge. Counsel did very well by his client. The Supreme Court, in Warden, Md. Penitentiary v. Hayden, supra, did not overrule our decision in Nelson v.

California, supra, insofar as it holds that it is for counsel, not the defendant, to make the kind of decision that was here made, that such a decision is, in substance, a waiver of the constitutional objection that might otherwise have been raised, and that such a decision binds the client, even though he expressly disagreed with it. In all of these respects, the rationale of Nelson is in point here. Indeed, this is a stronger case for affirmance than Nelson.

Here, counsel wanted the evidence to be before the jury because he believed that it would be valuable to Curry in support of the only defense that offered even a remote chance of success. This was not the situation in Nelson. The Nelson principles are equally applicable to the claim that counsel could not have waived the third contention— that intoxication made Curry’s statements involuntary and that there should be a hearing on the question, because our decision in Gladden v. Unsworth, 9 Cir., 1968, 396 F.2d 373, had not then come down. Cf. Kuhl v. United States, 9 Cir., 1966, 370 F.2d 20, 23, 25-27.

Curry’s counsel argued to the jury that the statements were the product of Curry’s drunkenness and of repeated suggestive questions by his interrogators. But he did not want the jury to disregard the statements on that ground. On the contrary, he asked the jury to give careful consideration to them on just that ground, as further proof in support of his basic thesis — that Curry was so befuddled that he could not have had the requisite criminal intent. Cf. Delaney v. Gladden, 9 Cir., 1968, 397 F.2d 17, 22 n. 6.

Under the facts of this case we regard as immaterial Curry’s allegation that his counsel told him that the time to raise the question of voluntariness of his statements was on appeal rather than at trial. Assuming that counsel said it, it is nonetheless abundantly clear from the record of the trial that counsel wanted the jury to hear the statements, that he relied on them heavily as supporting the only real defense that he had, and that his reliance was successful. It would be a perversion of the judicial process to now give Curry the best of two worlds upon the basis of such an alleged statement by his counsel.

Cf. Nelson v. California, supra, 346 F.2d at 81; Kuhl v. United States, supra, 370 F.2d at 27. A contrary result would enable counsel for a.defendant to try one strategy by deliberately using, for his client’s benefit, evidence that could be claimed to be constitutionally tainted and then, if not satisfied with the result, to get a second trial by claiming that the constitutional taint requires a reversal in spite of his tactical decision. We do not think that the California courts favor such a result; we do not think that this court should favor it either.

The fourth claim, error in instructions as to when a confession can be held involuntary, does not, in this case, rise to a constitutional level. The instruction was offered by the prosecutor, not by Curry’s counsel. It related to an issue that was not in the case because, as we have said, the point that Curry’s statements were involuntary was waived. We can find no error of constitutional dimensions here. The prosecutor handed Curry an extra element in his defense, on which he did not rely. Cf. Sylvia v. United States, 1 Cir., 1963, 312 F.2d 145, cert. denied, 374 U.S. 809, 83 S.Ct. 1694, 10 L.Ed.2d 1032.

The fifth claim, that Curry was inadequately represented by counsel, is belied by the record and the result. Affirmed. . The questions whether the right to suppress a confession unconstitutionally obtained can be waived, and whether counsel can waive it, were reserved in Maldonado v. Byman, 9 Cir., 1967, 377 F.2d 526, 528. We can perceive no such fundamental difference between confessions and unlawfully obtained evidence as to warrant a different rule for the former than the rule that applies to the latter — at least not in a case involving such a waiver as is here involved. .

To us, the trial record makes counsel’s strategy so clear that to hold a hearing on the question of what his strategy was would be an exercise in futility. We are mindful of the Supreme Court’s admonition in Townsend v. Sain, 1963, 372 U.S. 293, at 319, paragraph Fourth, 83 S.Ct. 745, 9 L.Ed.2d 770. . See People v. Barnes, 1947, 30 Cal.2d 524, 183 P.2d 654; People v. Marquez, 1968, 259 Cal.App.2d 629, 66 Cal.Rptr. 615; People v. Bauer, 1966, 241 Cal.App.2d 632, 50 Cal.Rptr. 687; cf. People v. Dugas, 1966, 242 Cal.App.2d 244, 51 Cal.Rptr. 478, 482-83; People v.

Williams, 1963, 220 Cal.App.2d 108, 33 Cal.Rptr. 765, 769; People v. Bonman, 1962, 201 Cal.App.2d 248, 20 Cal.Rptr. 238, 241-42. These cases seem to indicate that the District Court of Appeal was in error when it considered the merits of Curry’s claims in the course of his appeal. We have seen no California case that holds that a defendant is entitled to raise the question on appeal or. to get a new trial, where the evidence came in by stipulation, or where defense counsel wanted it before the jury and relied on it in support of his defense, as was the case here. . See Symons v.

Klinger, 9 Cir., 1967, 372 F.2d 47, 49-50, distinguishing Brookhart v. Janis, 1966, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314.