Curry v. State

• Decision Date: 09 July 2012
• Docket Number: No. S12A0568.,S12A0568.
• Citation: 291 Ga. 446,729 S.E.2d 370,12 FCDR 2176
• Parties: CURRY v. The STATE.
• Court: Georgia Supreme Court

291 Ga. 446

729 S.E.2d 370

12 FCDR 2176

CURRY

v.The STATE.

No. S12A0568.

Supreme Court of Georgia.

July 9, 2012.

Julia Anne Fessenden Slater, Dist. Atty., William Doss Hocutt, IV, Sr. Asst. Dist. Atty., Office of the District Attorney, Paula Khristian Smith, Sr. Asst., Samuel S. Olens, Atty. Gen., David Allan Zisook, Asst. Atty. Gen., Department of Law, for appellee.

Robert L. Wadkins, Stephen Allen Craft, Victoria Lynn Novak, Robin Heath King, Office of the Public Defender, Columbus, for appellant.

HINES, Justice.

Michael Curry (“Curry”) appeals his convictions for the malice murders of Ann Curry, Erika Curry, and Ryan Curry.¹ For the reasons that follow, we affirm.

Construed to support the verdicts, the evidence showed that on August 29, 1985, police officers went to the house where Curry lived with his family, in response to a telephone call originating from a neighboring house. Inside the Curry house, the officers found the bodies of Curry's eight-months-pregnant wife, Ann Curry, and those of their children, 4–year–old Erika and 20–month–old Ryan. The bodies of Ann and Ryan were in the den. Ann had lacerations and puncture wounds to the head, neck, and upper torso; she was nearly decapitated, and she had a deep puncture wound to her left temple. Ryan had several lacerations about his head and bruising on his upper torso. Erika's body was in the kitchen, and also had several lacerations to her head and face. Ryan and Erika died of skull fractures, and Ann died of massive blood loss. Ann's unborn child also died. A few weeks earlier, Curry had purchased an axe that he kept in an outside-entry storage room at the rear of the house; it was in the living room, bloodied.

The house showed no signs of having been ransacked or searched; the only thing of value that appeared out of place was a purse overturned in a chair. Next to it was a second purse, which was known to the family not to contain money as it had become a children's plaything; it was unopened. A checkbook, television, and stereo equipment were all undisturbed. Windows and doors of the home were closed. An overturned trash can blocked the kitchen's exterior door, such that it would have been disturbed if someone had tried to enter or exit through that door. In the den, a multi-pane door that allowed access to the rear exterior of the house had a pane of glass that had been broken from the inside; the door was locked by deadbolt and handle lock, and glass situated against the door indicated it had not been opened since the glass was broken. The thermostat inside the house was turned to the highest setting, and the accompanying thermometer registered 90 degrees, beyond which it could not go; the outside temperature that day was in the high 80's.

Curry worked as a supervisor in the physical plant office of a hospital. On the day of the crimes, he told investigating police officers that he left work that morning at 9:40 a.m. to purchase a fan for the hospital. He went first to a Sears store,² watched some construction nearby, then went to a Montgomery Ward store. He did not purchase a fan at either store. He finally bought a six-inch oscillating fan at a K–Mart store; the receipt showed that the purchase was made at 12:55 p.m. When he bought the fan, Curry was drenched in sweat, which the cashier found odd as the store was usually cold. Curry returned to work around 1:10–1:15 p.m.³ After work, Curry went home and found his family dead.

Curry gave several versions of what happened at the house after he arrived home from work, which he left at 5:15 p.m. He stated that though he ordinarily entered the house through the kitchen door, he came through the front door “this morning” because he saw a flier on the front door; he later said that it was after work that he entered through the front door.⁴ At one point, Curry said that he saw Ann's purse, and dumped it out, but did not explain why; at another point, he stated that he came in and sat down. He also stated that he knelt next to Erika's body in the kitchen, but the blood on the floor next to her was undisturbed and lab tests showed no blood on Curry's clothes. Curry further said that when he went to call the police from a neighbor's residence, he left through the side kitchen door. When asked how, given that the trash can blocked it, he stated that, rather, he left through the front door. When asked if anything troubling had recently occurred, Curry mentioned only that Ann had recently received an obscene phone call. Curry did not answer when asked if there were martial problems, but did admit to financial difficulties; he said he had no problems with anyone at work or otherwise in his life that might have led to these crimes.

At a coroner's inquest held several months after the murders, Curry admitted that he had had an affair with co-worker Pam Burt, who also worked at the hospital, and that this relationship began when Ann was in the hospital with pregnancy complications. He also stated that a week before the murders, Pam's husband, Fred Burt, told Curry that he could hurt him without even touching him. Police investigators determined that Fred Burt had an alibi. Curry also testified at the inquest that he could not remember whether he handled Ann's purse after finding the bodies. Curry wrote a letter to a friend of Ann's and told her that Ann had been killed in a burglary. During the inquest, the coroner stated that a time of death could not be pinpointed, but that it appeared to be “in the p.m.”

The medical examiner who performed the autopsy died before trial; his conclusion as to the time of death was between 2:30 and 3:00 p.m., August 29, 1985. At trial, a medical examiner opined that there could be no accurate estimate as to time of death because of the high temperature in the house and Ann's pregnancy, factors that could skew body temperature upon which an estimate of the time of death could be based. After examining the records of the autopsy, and recognizing that the temperature of the house was known only to be in excess of 90 degrees, this medical examiner estimated that Ann died sometime during the morning or afternoon hours of August 29, 1985.

At trial, Bernice Johnson, Ann's mother, testified that Ann and the children came to her house the morning of the murders, and that Ann and Erika left to go shopping. While they were gone, she fed Ryan during a television show that was on from 11:00 a.m. to 12:00 noon. Ann and Erika returned, and the three left ten minutes later. Johnson was not sure of the time they left, although she initially told police officers it was about 12:30 p.m.; she later told police officers it might have been as early as 12:15 p.m. Travel time from Johnson's house to Curry's was seven minutes.⁵

1. Curry asserts that the evidence was insufficient to support his convictions, contending that the State presented only circumstantial evidence that did not exclude all reasonable hypotheses except that of his guilt. See OCGA § 24–4–6.

[Q]uestions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law. [Cit.]

Robbins v. State, 269 Ga. 500, 501(1), 499 S.E.2d 323 (1998). The evidence authorized the jury to find Curry guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Curry contends that the delay of almost 24 years between the crimes and his indictment violated his due process rights under the State and Federal Constitutions. To prevail on this claim, Curry must “prove (1) that the delay caused actual prejudice to his defense, and (2) that the delay was the result of deliberate prosecutorial action to give the State a tactical advantage.” Hilton v. State, 288 Ga. 201, 206(5), 702 S.E.2d 188 (2010) (Citations and punctuation omitted.).

The offense in this case is murder, for which there is no applicable statute of limitation. Hence, any prejudice which results merely from the passage of time cannot create the requisite prejudice. The possibilities that memories will dim, witnesses become inaccessible, and evidence be lost are inherent in any extended delay, and, these possibilities are not in themselves enough to demonstrate that [the appellant] cannot receive a fair trial.

Id. at 207, 702 S.E.2d 188 (Citation and punctuation omitted.).

Curry contends that, beyond the mere passage of time, the State failed to preserve an alleged confession to the crimes given in 1986 by a mental patient who was confined at the time of his statement. No copy of the purported confession could be located, although references to it, and the patient's recantation of it, were available. As the trial court noted, both the patient and a police officer who was involved in the taking of the alleged confession were available to testify; they were not called to do so, either at a hearing or the trial. Although the medical examiner who performed the autopsies had died since the murders, as had the coroner, and receipts from the purchases Ann Curry made before she went to Johnson's house the day of the crimes could not be located, such events are inherent in the passage of time. See Manley v. State, 281 Ga. 466, 467–468, 640 S.E.2d 9 (2007). The trial court did not err in determining that Curry failed to demonstrate “any prejudice which would not be expected due to the passage of time.” Jackson v. State, 279 Ga. 449, 451(2), 614 S.E.2d 781 (2005) (Citations and punctuation omitted.). Further, although Curry contends that the State's delay in seeking an indictment against him was unjustified, he cites no evidence to establish bad faith on the State's part. See Hilton, supra at 208, 702 S.E.2d 188...