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Burke v. Curry

September 10, 2009

JOHN S. BURKE, PETITIONER,
v.
BEN CURRY, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

Petitioner is a California prisoner proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner stands convicted of several offenses, including attempted murder. He challenges his 2003 convictions and the life sentence that followed.

I. Background

On direct appeal, the California Court of Appeal properly identified the "relevant facts" as follow:

After dinner with his wife on June 27, 2001, Steven Beck went to the Miner's Club to play pool. He met defendant there, and the two played pool together. Initially, defendant was "nice," but he became less friendly as he lost more pool matches.

At one point, Beck and defendant became partners in a game of "doubles" pool with two other patrons of the bar. During the course of the game, defendant made a "slop shot," an unplanned shot in which an unintended ball goes into a pocket. When Beck said to the other team that they could "go ahead and play slop, too," defendant told Beck to "shut up and . . . stop talking" and called Beck a "little scrawny punk." Then defendant started "getting in [Beck's] face, becoming abusive, telling him, . . . you're not going to talk to me that way . . . ." For 15 to 20 minutes, defendant yelled at Beck, repeatedly threatening to take him outside to "teach [him] a lesson and beat [his] ass." Defendant continued to get more aggressive and threatening, until he was "nose to nose" with Beck. Thinking that defendant was "about ready to hit [him]," Beck kicked defendant "as hard as [he] could right between the legs." They then began circling each other, and Beck punched defendant twice and kicked him again in the groin. When he thought defendant was raising the pool cue to hit him, Beck grabbed the cue and broke it over defendant's head, opening a cut that bled extensively.

Defendant continued to advance so Beck pushed a stool at him and ran out the front of the bar. Defendant followed and yelled at Beck, "I can't believe you're picking on an old guy." Telling defendant to stay away, Beck returned to the bar to retrieve his sweatshirt.

Feeling he would be safer at the restaurant where he had eaten dinner earlier, Beck went there. But the restaurant was closing, so he decided to go to a nearby hotel. As Beck was crossing the street in front of a fire station, he stopped near the yellow lines in the middle of the roadway. The next thing Beck remembered is that someone was telling him he had been hit by a car.

Joanna Gagliardo, the bartender at the Miner's Club, testified that during the evening, she served defendant two or three shots of Jack Daniels, and Beck had two or three beers. Gagliardo observed defendant and Beck argue and taunt each other, and then get into a "physical" fight. She also heard defendant tell Beck to "watch his back." Although she did not remember it at trial, Gagliardo told Deputy Sheriff Steve Klang on the night of the incident that defendant was the aggressor in the fight.

Throughout defendant's altercation with Beck, the other pool players heard defendant repeatedly say he was "drunk" on whiskey and heard him warn Beck that it was not smart to pick a fight with someone who was drunk. One of the other pool players believed that defendant was more intoxicated than Beck, but noted defendant was able to play pool very well.

John Johnson, who had been at the Miner's Club, testified that he was getting into his vehicle when defendant ran by, said "I'm going to kill that motherfucker," and jumped into defendant's pickup truck. Defendant then sped away and circled back toward Main Street. Johnson heard the engine racing and saw the truck veer into the parking barriers in the middle of the road, continue to accelerate, and hit Beck. The truck proceeded down the road out of town without stopping or slowing. Jacob Robinson and Chase Mason also saw defendant get into his pickup truck. Mason noticed that defendant was bleeding and heard him talking to himself about being hit in the head with a pool cue and "something about being drunk and stuff." To Mason, defendant appeared drunk and confused. Mason and Robinson observed the truck circle back and accelerate toward Beck, who was standing in the middle of the road. The truck hit Beck and sped away.

Virginia Asbury, the owner of the hotel, saw Beck bounce off the driver's side fender of a pickup truck, which continued on without slowing.

Beck lost consciousness and awoke in the emergency room. As a result of being hit by defendant's truck, Beck suffered fractures to his second, third, fourth, and fifth lumbar vertebrae; a laceration to the spleen; a concussion and extensive abrasions along the right side of his abdominal wall and chest; and abrasions of the right arm, elbow, and both knees. He spent the day in the hospital, had trouble walking for a "long time," and was unable to work for three months.

After determining defendant was a suspect in the hit and run, Deputy Sheriffs Klang and Wilkes went to defendant's home later that night. Defendant appeared dejected and his head was bleeding. They took him to the hospital, where it was determined that in addition to his head wound, defendant "had numerous significant bruises all over the body. [He] was impressively beat up." A CAT scan revealed a dent in the top of his skull, but no skull fracture. A blood sample drawn at 1:40 a.m. showed that defendant had a blood alcohol concentration of .076 percent. The treating physician did not observe signs of psychiatric disease in defendant but believed the head trauma had been "a significant contributing factor to his behavior that night."

While at the hospital, defendant told Deputy Klang that when Beck criticized defendant's pool playing, the two began to argue, which escalated into a fight. Defendant claimed that he did not remember much after Beck hit him over the head with a pool cue. However, defendant did recall that after he left the bar, a young man helped him to his truck and was driving it when "the next thing [defendant] knew, . . . they were running over Mr. Beck and . . . he couldn't understand why it happened, other than the fact that the [young man] may have witnessed the beating that Mr. Beck gave [defendant] and maybe that's why he hit him." Defendant said the young man drove to the corner, "jumped out of the truck and took off." Defendant then drove himself home. During this interview, defendant appeared articulate and did not seem confused.

About one month later, Detective Hoagland went to defendant's home to serve a search warrant and to seize defendant's truck. Defendant approached Hoagland and said he had lied to the deputies because he thought he had hit someone named "Martha," and believed he had killed her. Defendant again described the bar fight and stated he had wanted to get medical attention at the fire station but was afraid that Beck or Beck's friends would harm him again. Thus, he accelerated in front of the fire station, intending to skid to a stop on the street and run into the station. Because he turned his head toward the Miner's Club to see if Beck and his friends were there, defendant did not see Beck in the roadway. Defendant believed that the person he had hit would get quick medical attention, so he decided "just to leave." Defendant also said he believed that the front end of his truck was defective, which might have contributed to hitting Beck. When Hoagland test drove the truck, he did not find any defects that would have contributed to the accident.

Psychiatrist Charles Eubanks examined defendant approximately four months after the bar fight. According to Eubanks, defendant sought him out because defendant "could no longer tolerate" the voices in his head. Eubanks saw defendant about 25 times. Based on the therapy sessions and his review of defendant's history of psychiatric diagnoses and treatment at El Dorado County Mental Health [footnote omitted], Eubanks concluded that defendant suffered from schizophrenia, paranoid type. He described the most prominent feature of defendant's dysfunction to be auditory hallucinations, consisting of "several different voices carrying on conversations with each other, inserting thoughts in his head, making comments about him, critiquing his behavior." Defendant reported that he had been having these hallucinations since his late teens.

Dr. Eubanks noted that schizophrenia impairs one's ability to think logically, to plan an event, to know what are facts as opposed to delusions or hallucinations, and to "connect a series of rational thoughts with a purpose in mind." Eubanks believed that defendant's disease had led to his reactions at the bar and contributed to the fight. He bolstered this opinion by referring to various specific events that evening. Eubanks noted that defendant could not "coherently [or] logically" explain why he went to the bar in the first place, that his comments to Beck once the argument started were irrational, and that his reluctance to seek medical attention at the fire station was a reflection of his paranoia. Eubanks also noted that schizophrenics generally are ordered not to consume alcohol or other mind altering drugs.

Dr. Eubanks acknowledged that schizophrenics typically are unable to maintain employment and sustain relationships, but that defendant had worked continuously from his high school graduation until October 2001, and had been married for over 25 years. Eubanks also acknowledged that it was possible defendant's mental disease had nothing to do with his behavior on June 27, 2001.

Two of defendant's long-time friends testified that they had observed him behaving strangely prior to the bar fight, including talking to trees, believing that the television was sending him messages, believing that he was the "prodigal son of God," reporting that he was sent on secret missions in ...


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