(dissenting):

It appears to me, as it did to the district court, that this case is governed by our decision in Curry v. Wilson, 405 F.2d 110 (9th Cir. 1968). I would therefore affirm the decision of the district court which denied the petition for habeas corpus.

In Curry a state court conviction had been obtained on evidence which it was claimed was secured in violation of the accused’s constitutional rights. No objection to the introduction of this evidence was made at the trial. In the District Court of Appeal Curry’s contentions were considered on the merits and rejected. The deliberate by-pass rule was therefore not available under Warden v. Hayden, 387 U.S. 294 , 297 n.3, 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967). On an appeal from a denial of writ of habeas corpus, this court then went on to consider whether or not there had been a deliberate waiver. Said the circuit court:

Waiver affecting federal rights is a federal question, Fay v. Noia, 372 U.S. 391, 439 , 83 S.Ct. 822 , 9 L.Ed.2d 837 (1963). The majority here apparently recognizes and follows Curry v. Wilson to this extent. The majority states however, that the record does not “conclusively establish ‘waiver’ in the Curry v. Wilson sense.” Thus the court points to the fact that in Curry , trial counsel affirmatively wanted the objectionable evidence to come in because he thought it would be valuable to his client. In the present case, on the contrary, counsel considered the evidence prejudicial and wanted it excluded. Factually such a distinction exists.

In each case counsel knew what the proposed evidence would be. In each case a considered judgment was made as to whether or not an objection should be interposed. The district judge here determined that there was a deliberate choice made and that such choice constituted a waiver. Said Judge Whelan:

I agree. Nor should the fact that in Curry, supra, counsel “wanted” the objectional evidence to be introduced, believing he could make use of it, constitute a significant distinction. The controlling factor is not the motivation for the strategy decision, but the deliberate choice which is made. In Nelson v. California, 346 F.2d 73 (9th Cir. 1965) it did not appear that trial counsel “wanted” the evidence to be introduced. Yet *827 he there made his choice and having made it, he was held to have waived the right to assert his objections in the habeas proceeding.

It is also suggested by the majority that counsel here was forced to forego his objection because the trial judge indicated the objection would have to be made in open court and that the jury might draw an adverse inference from the objection if sustained.- It is asserted that this requirement of the trial judge to have the objection made in open court was erroneous on the basis of People v. Schader, 62 Cal.2d 716, 727-728 , 44 Cal.Rptr. 193 , 401 P.2d 665 (1965). I disagree. In Schader the trial judge conducted a voir dire hearing in the presence of the jury on the voluntariness of a confession, leaving the consideration or rejection of the confession to the jury on an instruction as to its voluntary or involuntary character. As the Supreme Court of California there pointed out, there was no way to know from such a record just how the jury considered the evidence and whether it did so properly or improperly. The situation here was quite different. There was a discussion of the proposed witness in the chambers of the court before she was permitted to testify. Counsel was given an opportunity to interview her before she was put on. There was no confession involved; indeed, the witness testified that the accused insisted upon her innocence. There was no ruling by the trial court on admissibility in advance. The witness was not recalled until the next morning. No request for an in limine hearing was made at that time. Contrary to Schader there is no way of knowing whether the court would have permitted the testimony or not. No objection to it was made. It is difficult to imagine a more voluntary, considered, conscious and strategic waiver than this.

I agree with the majority that the action of the Supreme Court of the United States in granting certiorari and then dismissing the writ without opinion does not constitute an adjudication.