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In Re Curtis F. Price On Habeas Corpus.

February 14, 2011

IN RE CURTIS F. PRICE ON HABEAS CORPUS.


Court: Superior County: Humboldt Judge: W. Bruce Watson

The opinion of the court was delivered by: Kennard, Acting C. J.

A jury convicted petitioner Curtis F. Price of the first degree murders (Pen. Code, § 187)*fn1 of Elizabeth Ann Hickey and Richard Barnes. As to the murder of Hickey, the jury made special circumstance findings of multiple murder (§ 190.2, subd. (a)(3)) and burglary murder (§ 190.2, subd. (a)(17)(G)), and it fixed the penalty at death. The trial court denied the automatic motion to modify penalty (§ 190.4, subd. (e)) and sentenced petitioner to death. On petitioner's automatic appeal, this court unanimously affirmed the judgment. (People v. Price (1991) 1 Cal.4th 324.)

In a petition for a writ of habeas corpus, petitioner seeks relief from the judgment. He has alleged, among other things, that during the capital trial "the prosecutor in this case improperly tampered with a sitting juror by sending her alcoholic drinks and money, telling her to return a guilty verdict." We issued an order to show cause on this claim only. By limiting the order to show cause to this single claim, we made an implicit determination that petitioner failed to state a prima facie case as to the other claims alleged in the petition. (See In re Sassounian (1995) 9 Cal.4th 535, 547.)

After the filing of respondent's return and petitioner's traverse, we determined that there were disputed questions of fact requiring an evidentiary hearing. We appointed as referee the Honorable W. Bruce Watson, a superior court judge in Humboldt County, and directed him to supervise discovery, take evidence, and make findings of fact on these questions:

"1. During [petitioner's] trial, did then Deputy Attorney General Ronald Bass and Geri Anne Johnson together patronize the Waterfront Cafe in Eureka on an evening when [Juror Z.S.] was cooking at the restaurant and Robert McConkey was tending bar? If so, on approximately what date did this occur?

"2. While at the Waterfront Cafe, did Bass see or directly speak to [Juror Z.S.]? What, if anything, did he say to her?

"3. While at the Waterfront Cafe, did Bass ask McConkey to take any alcoholic drinks to [Juror Z.S.]? If so, did McConkey do so? If Bass did send drinks to [Juror Z.S.], did he know she was an alcoholic or had an alcohol problem?

"4. Did Bass give McConkey any money with the direction or request that it be conveyed to [Juror Z.S.]? If so, what amount of money?

"5. If Bass gave McConkey money for [Juror Z.S.], did McConkey give [Juror Z.S.] the money? Did [Juror Z.S.] accept it?

"6. If Bass gave McConkey money for [Juror Z.S.], did he ask McConkey to convey any message with the money? If so, what message?

"7. Did Bass direct, request or suggest that McConkey convey money to [Juror Z.S.] and tell her to vote guilty in [petitioner's] trial? If so, in what tone of voice did he do so? Did his tone, gestures and other surrounding circumstances suggest that he was serious or joking?

"8. If Bass directed, requested or suggested that McConkey convey money to [Juror Z.S.] and tell her to vote guilty, did he intend that McConkey follow that direction, request or suggestion?

"9. If Bass directed, requested or suggested that McConkey convey money to [Juror Z.S.] and tell her to vote guilty, did McConkey think that Bass actually wanted him to do so?

"10. If Bass directed, requested or suggested that McConkey convey money to [Juror Z.S.] and tell her to vote guilty, did McConkey do so?

"11. Did Johnson tell her husband, Worth Dikeman, about encountering [Juror Z.S.] while at the Waterfront Cafe with Bass? If so, what did she tell Dikeman?"

The referee held an evidentiary hearing over a one-week period during which he heard testimony from 11 witnesses, including Robert McConkey, Geraldine (Geri) Anne Johnson, and Ronald Bass. (Juror Z.S. had died in 1989.) The referee then prepared and submitted to this court an eight-page report stating his findings and conclusions. In brief, the referee found that during the guilt phase of petitioner's trial, Johnson and prosecutor Bass did patronize Cafe Waterfront in Eureka on an evening when McConkey and Juror Z.S. were working there. Bass and Johnson sat at the bar, where McConkey served them. Z.S. was cooking in the kitchen, but she came to the bar to give menus to Bass and Johnson. On seeing Z.S., Bass recognized her as a juror, held up his hands, and said he could not have any contact with her. Z.S. then returned to the kitchen. Bass and Johnson remained in the bar, where they had drinks and appetizers. When they finished, Bass paid the bill, which was around $60 to $70, in cash, including a tip in the range of $10 to $20. As he was doing this, Bass told McConkey, in a joking tone of voice, to "give this" or "split this" with Z.S. and "tell her to vote guilty." Bass, Johnson, and bartender McConkey all laughed at this remark, and McConkey understood it as a joke. Bass did not send any alcoholic drink to Z.S. Although McConkey split the tip with Z.S., this was normal practice at the restaurant, and McConkey did not convey any message from Bass to Z.S.

After considering the record of the evidentiary hearing and the referee's report, we conclude that petitioner's claim lacks merit and that the order to show cause should therefore be discharged and, by separate order, his petition for a writ of habeas corpus should be denied.

I. The Trial Evidence

The evidence supporting petitioner's conviction and sentence has been set forth in People v. Price, supra, 1 Cal.4th 324, and is summarized here.

Petitioner belonged to the Aryan Brotherhood, a prison gang. During the summer of 1982, the Aryan Brotherhood's leaders decided to retaliate against Steven Barnes, a prison inmate, for his testimony against Aryan Brotherhood members. Because prison authorities had placed Barnes in protective custody, the Aryan Brotherhood leaders decided to kill his father, Richard Barnes, and they selected petitioner to commit the murder. Petitioner agreed.

Petitioner was released from prison in September 1982. On January 23, 1983, while petitioner was staying in Eureka, in Humboldt County, Richard Moore's gun collection disappeared from his Eureka residence, apparently having been stolen in a burglary. One of the missing weapons was a .22-caliber handgun.

On February 13, 1983, the body of Richard Barnes was found in the bedroom of his house in Temple City, Los Angeles County. He had been killed by three bullets from a .22-caliber handgun that had been held against the back of Barnes's head. The prosecution presented evidence that petitioner was driven to Barnes's house shortly before the murder and that afterwards he sent a note to an Aryan Brotherhood leader saying: "That's took care of. Everything went well."

Back in Eureka, on the morning of February 19, 1983, Berlie Petrie found the body of Elizabeth Ann Hickey, the stepdaughter of burglary victim Moore, in the residence Petrie and Hickey shared. Hickey had been beaten to death with a blunt instrument. Guns and other property belonging to Petrie and Hickey were missing. Some of these items were later found in petitioner's car, and many of the guns stolen from Moore, Petrie, and Hickey were found in a storage locker that petitioner had rented in Reno, Nevada.

At the penalty phase, the prosecution presented evidence that in May 1978, while incarcerated at San Quentin prison, petitioner had stabbed to death Leroy Banks, an African-American inmate, because Banks allegedly had acted disrespectfully to an Aryan Brotherhood gang member. The prosecution also presented evidence of other crimes petitioner had committed, including robbery, escape, and kidnapping.

II. The Reference Hearing: Evidence and Findings

The evidence at the reference hearing amply supports the referee's findings that during the Cafe Waterfront incident prosecutor Ronald Bass did not speak to Juror Z.S. about petitioner's case, that he did not send alcoholic beverages or money to her, and that although he told bartender McConkey to give Z.S. money and "tell ...


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