Curry v. State

939 So. 2d 785, 2006 WL 2372986
CourtMississippi Supreme Court
DecidedAugust 17, 2006
Docket2004-KA-01868-SCT
StatusPublished
Cited by15 cases

This text of 939 So. 2d 785 (Curry v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Curry v. State, 939 So. 2d 785, 2006 WL 2372986 (Mich. 2006).

Opinion

939 So.2d 785 (2006)

Anderson CURRY a/k/a Anderson Curry, II
v.
STATE of Mississippi.

No. 2004-KA-01868-SCT.

Supreme Court of Mississippi.

August 17, 2006.
Rehearing Denied October 26, 2006.

*786 Johnnie E. Walls, Jr., Greenville, attorney for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before COBB, P.J., EASLEY and DICKINSON, JJ.

COBB, Presiding Justice, for the Court.

¶ 1. Anderson Curry was indicted by a Bolivar County grand jury for burglary of a dwelling, kidnaping, and aggravated assault. A total of four jury trials were conducted because the jury was unable to come to a unanimous verdict in the first three. At the fourth trial, Curry was acquitted on the burglary and kidnaping counts, but found guilty on the charge of aggravated assault. He was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections.

FACTS

¶ 2. Around 11:30 p.m. on a rainy December evening in 2001, Stephanie Cummins returned to her home after visiting with her fiancé at his residence. As she entered her apartment, a man grabbed her from behind and placed a knife to her neck, using a towel to keep her from screaming, and duct tape in an effort to restrain her. The assailant, later identified as Anderson Curry, stabbed her an estimated 30 times in the back and flank area of her body. Cummins was severely injured from this attack, and there were blood stains on the couch, table, floors, and walls.

*787 ¶ 3. After the attack, Cummins told Curry she was thirsty and Curry took a bottled fruit drink and poured some of it into her mouth. When he left the room, she managed to get up and run out of the apartment to a friend's home. She was then transported to the hospital in very serious condition.

¶ 4. A few days after the attack, while she was still medicated, Cummins talked with Investigator Charles Bingham and gave a vague description of the assailant as between five-ten and six feet tall and slim. At trial, Cummins testified that she believed the attacker was a tall black male who wore some kind of military camouflage jacket with a hood, wore dark baggy pants with shiny tennis shoes, and had two diamond stud earrings pinned on his white ribbed t-shirt near his belly button. She further testified that she had never seen Curry before.

¶ 5. When presented with a voice tape, Cummins was able to pick out Curry based on his voice. She also pointed to Curry's image in a photo lineup, but was less than certain as to whether he was her assailant. Subsequently a warrant was issued to search Curry's house, where the police found clothing, a knife, shoes and other things that the perpetrator had allegedly worn or used during the attack on Cummins. Subsequent to the search, Curry was arrested.

¶ 6. At trial six witnesses testified in support of Curry's alibi. Ade Barfield testified that on the day of the attack, around 10:30 p.m. or 11:00 p.m., she and Curry went to the residence of Ketrick and Keir Haywood, where they stayed until 3:00 a.m. Barfield further testified that Curry was there the whole time. Keir Haywood, Devonna Hutton, Tervarius Montgomery, Ketrick Haywood, and Anwar Fletcher also testified they were present at the Haywood's residence and confirmed Curry's story that he was there around the same time Cummins was attacked.

¶ 7. After three jury trials that each resulted in a hung jury, a fourth jury convicted Curry for aggravated assault, but not for burglary of a dwelling or kidnaping. The trial court denied Curry's motion for a judgment notwithstanding the verdict and/or a new trial. On appeal, Curry raises three issues: denial of his motions related to the DNA report; prosecutorial misconduct during closing argument; and denial of J.N.O.V. Finding no reversible error, we affirm.

ANALYSIS

I. MOTIONS REGARDING DNA REPORT

¶ 8. The standard of review for a trial court's ruling on a discovery violation is abuse of discretion. Montgomery v. State, 891 So.2d 179, 182 (Miss.2004). Further, this Court has stated not all failures to disclose exculpatory evidence constitute reversible error. Carr v. State, 873 So.2d 991, 999-1000 (Miss.2004). The question to be asked regarding a discovery violation is whether there is a reasonable probability that the verdict would have been different but for the governmental evidentiary suppression which undermines confidence in the outcome of the trial. Stephens v. State, 911 So.2d 424, 440 (Miss. 2005) (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).

¶ 9. Curry argues the State's failure to disclose the September 18, 2003,[1] DNA report until the first day of the *788 fourth trial on June 7, 2004, was prejudicial. He asserts that the trial judge's denial of his motions for a continuance and/or a mistrial, was an abuse of discretion. Specifically, Curry contends the State violated Rule 9.04[2] of the Uniform Circuit and County Court Rules, and this violation deprived him of a valuable defense. The rule states in relevant part:

A. . . . the prosecution must disclose to each defendant or to defendant's attorney . . . the following [evidence] which is in possession, custody, or control of the State . . . the existence of which is known or by exercise of due diligence may become known to the prosecution:
. . .
4. Any reports, statements, or opinions of experts, written, recorded or otherwise preserved, made in connection with the particular case.
. . .
6. Any exculpatory material concerning the defendant.
. . .
E. Both the state and the defendant have a duty to timely supplement discovery. If, subsequent to compliance with these rules or orders pursuant thereto, a party discovers additional material or information which is subject to disclosure, that party shall promptly notify the other party or the other party's attorney of the existence of such additional material, and if the additional material or information is discovered during trial, the court shall also be notified.
. . .
I. If at anytime prior to trial it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such a party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such order as it deems just under the circumstances.

U.C.C.C.R. 9.04. Curry argues the DNA report was exculpatory because it indicated the blood found on the knife recovered from Curry's residence was his, not Cummins's.

¶ 10. The trial judge, in accordance with the discretion granted him in U.C.C.C.R. 9.04, denied Curry's motions because the Reliagene report contained no new information, because Curry already possessed the exact same information from the Mississippi Crime Lab. The evidence was reanalyzed by Reliagene because the prosecution hoped for a more detailed analysis. However, that did not happen. According to Curry, had he possessed the Reliagene report he would have called the Reliagene analyst to the stand. He was not interested in calling the Mississippi Crime Lab analyst, preferring to call Reliagene because it is an private entity, separate from the State of Mississippi.

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Cite This Page — Counsel Stack

Bluebook (online)
939 So. 2d 785, 2006 WL 2372986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curry-v-state-miss-2006.