In the Missouri Court of Appeals Eastern District DIVISION ONE
STATE OF MISSOURI, ) No. ED112798 ) Respondent, ) Appeal from the Circuit Court ) of the City of St. Louis vs. ) 2322-CR01717 ) DEVIN GRIFFIN-CURRY, ) Honorable Timothy J. Boyer ) Appellant. ) Filed: July 22, 2025
Before James M. Dowd, P.J., Angela T. Quigless, J., and Thomas C. Albus, Sp. J.
OPINION
This criminal case arose on July 12, 2022, in the City of St. Louis on Semple Avenue.
Appellant Devin Griffin-Curry shot and killed his neighbor Rickey Lathan, Sr. (Victim) while
Griffin-Curry’s grandfather was complaining to Victim about the fireworks Victim and his ten-
year-old son were shooting off at 11:00 p.m. that evening. The jury found Griffin-Curry guilty
of second-degree murder and armed criminal action and the court sentenced him to consecutive
prison terms of nineteen years for the murder and three years for the ACA.
Griffin-Curry now appeals asserting (1) the trial court violated his right to a speedy trial,
(2) the trial court erred in excluding child psychologist Dr. Paula Fite’s diminished capacity
testimony that Griffin-Curry had Attention-Deficit/Hyperactivity Disorder (ADHD) which
negated his culpable mental state, and (3) the trial court erred by overruling his objection to the
State’s acquittal-first closing argument and then erroneously failed to issue a curative instruction. We affirm. First, we find the trial court did not err in denying Griffin-Curry’s motion to
dismiss for a speedy trial violation because he has failed to show that the length of the delay
prejudiced him. Second, the trial court did not abuse its discretion in excluding Dr. Fite’s
diminished capacity testimony because the testimony was inadequate to negate the culpable
mental state required for second-degree murder. Lastly, although the State’s acquittal-first
argument was indeed improper, we find the trial court did not abuse its discretion because
Griffin-Curry did not show that he was prejudiced since juries are presumed to follow the court’s
jury instructions, not the prosecutor’s closing argument, and the court’s instructions were proper.
Background
Viewed in the light most favorable to the verdict, the relevant evidence follows: On the
night of July 12, 2022, officers received a ShotSpotter 1 notification of shots fired near Victim’s
and Griffin-Curry’s residences. Upon responding to the area, they found Victim’s lifeless body
lying in his front yard bearing several bullet wounds. Victim’s ten-year-old son told officers that
he and Victim had been shooting off bottle rockets in their front yard when two men confronted
them – one in a white t-shirt, and one in a dark-colored shirt. Son said the man in the white t-
shirt pulled a gun from his pocket and shot his father multiple times and both suspects then fled
toward the house across the street.
Officers noticed that the house across the street had a security camera so they knocked on
the door seeking to obtain the footage. The house belongs to Griffin-Curry’s grandparents.
Grandmother let the officers in where they asked Grandfather if he heard or saw anything.
Grandfather told police he was in his backyard when he heard gunshots. Grandfather allowed
police to review the camera monitor which contradicted his initial statement. The camera
1 According to the record, “ShotSpotter is a gunshot detection system that uses microphones and acoustic sensors to detect gunshots and alert law enforcement to the approximate location of the gunfire.”
2 captured the moments before the shooting as Grandfather angrily shouted at Victim from his
porch before heading down the steps of his porch in the direction of Victim’s property.
Next, the camera captured Griffin-Curry in a white t-shirt running up the porch
displaying a gun protruding from his pocket. Griffin-Curry shouted at Grandfather to quickly
give him the security code to enter the house. Then, the video shows Grandfather and Griffin-
Curry’s brother, who also displayed a gun, slowly walking up the stairs as they smiled and
laughed. As Grandfather approached the door, the camera caught him saying “He said he don’t
care about dying. Well, he dead now.” Grandfather then typed the code which allowed Griffin-
Curry and his brother to enter the house.
After searching the house, officers took Grandfather to police headquarters where
Grandfather changed his story. This time he told officers that after he approached Victim about
the fireworks, he heard gunshots coming from behind him and he froze and claimed he then
closed his eyes. When the shots ceased, Grandfather claimed he opened his eyes and saw Victim
downed in his front yard as his grandsons ran toward his home. After Grandfather let them in
the house, they ran through and exited the back door. Griffin-Curry and his brother remained on
the lam for months until police arrested them on December 8, 2022.
At trial, the State called several witnesses including police officers, Victim’s son,
Grandfather, and a medical examiner. Griffin-Curry presented one witness, a detective.
Pre-trial, the trial court thwarted Griffin-Curry’s effort to have child psychologist Dr.
Laura Fite testify that Griffin-Curry had diminished capacity due to ADHD. So, Griffin-Curry
made an offer of proof at trial regarding Dr. Fite’s testimony. Dr. Fite diagnosed Griffin-Curry
with ADHD based on court, school, police, social service, and medical records. She testified that
ADHD causes a person to have hasty reactions without taking in all the information, making an
informed decision, or considering the consequences. Dr. Fite also stated that ADHD may affect
3 Griffin-Curry’s ability to deliberate or plan his actions “in the moment” but she agreed that
ADHD does not impair the ability to know that firing a gun can hurt someone.
As for the acquittal-first issue, during closing argument the State addressed the fact that
the jury had been given three different verdict directors addressing the death of Victim – murder
second, involuntary manslaughter first, and involuntary manslaughter second. The State argued
that the set of instructions was not like a restaurant menu from which the jury could freely pick
and choose. Rather, the State asserted the jury must first find the defendant not guilty of the
second-degree murder charge before it moved on to consider the two involuntary manslaughter
charges. Griffin-Curry’s counsel objected that this was a misstatement of the law. The court
overruled the objection finding the State’s declaration to be mere argument and that the jury
would be guided by the law per the instructions. In its rebuttal, the State repeated its claim,
“You only move on to involuntary manslaughter one and two if for some reason you find that the
defendant is not guilty. That’s the instructions. That’s the law.” (Emphasis added). Defense
counsel did not object this time.
As stated, the jury found Griffin-Curry guilty of second-degree murder and armed
criminal action and this appeal follows.
Discussion
Speedy Trial
Griffin-Curry first claims the trial court erred in denying his motion to dismiss for
violation of his right to a speedy trial. Although the length of the delay here is presumptively
prejudicial, the other three factors from Barker v. Wingo, 407 U.S. 514, 520 (1972) do not
support that a violation occurred, particularly since the causes of the delay were the normal
functioning of the court and Griffin-Curry has not shown specific prejudice.
4 We review de novo claims of a violation of a defendant’s Sixth Amendment speedy trial
right though we defer to the trial court’s factual findings. State v. Sisco, 458 S.W.3d 304, 313
(Mo. banc 2015). The right to a speedy trial appears in both the United States and Missouri
constitutions. Id., U.S. Const. Amend. VI; Mo. Const., art. I, § 18(a). We employ a four-factor
analysis: (1) the length of the delay; (2) the cause of the delay; (3) whether and when the
defendant asserted his right; and (4) the prejudice to the defendant from the delay. Id. (citing
Barker, 407 U.S. at 520). The existence of any one of these factors is neither necessary nor
sufficient to find a speedy trial deprivation. Id.
First, the length of the delay. Missouri courts find any delay longer than eight months to
be presumptively prejudicial. State ex rel. McKee v. Riley, 240 S.W.3d 720, 731 (Mo. banc
2007). The delay is measured from the time of the formal indictment, or arrest, to the beginning
of the trial. State v. Ausler, 697 S.W3d at 31 (Mo. App. E.D. 2024). Delays caused by the
defendant are subtracted from the total delay when considering this factor. Id. Here, police
arrested Griffin-Curry on December 8, 2022, and trial did not begin until 496 days later on April
17, 2024. Griffin-Curry caused approximately 60 days of those delays, so the delay was 436
days from arrest to trial. Thus, the delay exceeds the presumptive marker and triggers the
remainder of the Barker analysis.
Second, the cause of the delay. “Pretrial delay is often inevitable and wholly justifiable.”
State v. Davis, 903 S.W.2d 930, 936 (Mo. App. W.D. 1995). Delays deliberately caused by the
State to hamper the defense weigh heavily against the State. Ausler, 697 S.W.3d at 31. Delays
caused by the regular functioning of the courts or the State’s negligence, but which are not
shown to be a deliberate attempt to delay trial, are considered neutral and weigh lightly against
the State. Id. Delays caused by defense-requested continuances weigh heavily against the
defendant. Sisco, 458 S.W.3d at 314.
5 Here, Griffin-Curry does not contend the State deliberately sought to hamper his defense
or to delay the trial, nor is there any evidence the State did so. Griffin-Curry’s continuances
make up 60 days of the total delay which weigh heavily against him. Moreover, both parties
consented to at least three continuances for depositions and other scheduling issues. Thus,
overall, the cause of the delay is a neutral factor here because most of the delay seems to be due
to the normal functioning of the court. Ausler, 697 S.W.3d at 31.
Third, the assertion of Griffin-Curry’s right to a speedy trial. “There is no rigid
requirement regarding when a defendant must assert his right ….” Sisco, 458 S.W.3d at 316.
“Instead, courts will weigh the timeliness of the assertion and the frequency and force of a
defendant’s objections.” Id. Griffin-Curry asserted his right three times between October 2023
and April 2024. These multiple assertions weigh in favor of finding a speedy trial violation. Id.
at 317.
Finally, the prejudice to the defendant. In assessing prejudice, we look to three primary
considerations: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and
concern on the part of the accused; 2 and (3) limiting impairment of the defense. Id. Any
claimed prejudice resulting from delay must be actual and apparent on the record or by
reasonable inference; speculative or just possible prejudice is not sufficient. State v. Newman,
256 S.W.3d 210, 217 (Mo. App. W.D. 2008). The prejudice must be more than the real prospect
of prejudice that normally attends any criminal proceeding, i.e., that memories will dim,
witnesses will become inaccessible, and evidence will be lost. State v. Bell, 66 S.W.3d 157, 162,
165 (Mo. App. S.D. 2001). The defendant bears the burden of proving prejudice. State v.
Howell, 628 S.W.3d 750, 759 (Mo. App. E.D. 2021).
2 Griffin-Curry does not make any argument regarding this consideration even though it is his burden to do so. Therefore, we need not address it.
6 As for oppressive pre-trial incarceration, Griffin-Curry does not provide any specific
instances of oppression. In State v. Wright, 551 S.W.3d 608, 620 (Mo. App. E.D. 2018), Wright
claimed his confinement was prejudicial because he had untreated medical conditions and he did
not have access to his children. This Court found, however, that because “Wright does not
detail, nor does the record reveal, any specific instances of the oppressive nature of his pretrial
incarceration,” he did not allege or prove facts establishing that his “confinement was overly
excessive given the serious charges and evidence levied against him.” Id. Here, Griffin-Curry
gave even fewer details than Wright and instead relied generally on research and studies
connecting lengthy pretrial detention with the increased likelihood of conviction. Thus, Griffin-
Curry has shown only minimal prejudice for this factor. See State v. Smith, 491 S.W.3d 286,
308-09 (Mo. App. E.D. 2016).
Lastly, we consider the most important factor under the prejudice analysis – the
impairment to Griffin-Curry’s defense. Griffin-Curry again only refers to general research that
an extended pretrial detention increases the likelihood of conviction and that people detained
have less opportunity to meet with their attorneys and assist in their defense. This is not enough.
State v. Greenlee, 327 S.W.3d 602, 612-13 (Mo. App. S.D. 2010) (“Claims of prejudice must be
actual or apparent on the record, or by reasonable inference, while speculative or possible
prejudice is not sufficient.”). Thus, based on the foregoing, Griffin-Curry has failed to meet his
burden that the trial court erred in denying his motion to dismiss due to a speedy trial violation.
Dr. Fite’s Testimony
In his second point, Griffin-Curry claims that the trial court erred in excluding Dr. Fite’s
testimony that his ADHD rendered him a diminished capacity individual which Griffin-Curry
argues negated the culpable mental state for second-degree murder. We again disagree.
7 We review a trial court’s decision regarding the admission or exclusion of evidence for
abuse of discretion. State v. Wood, 580 S.W.3d 566, 574 (Mo. banc 2019). An abuse of
discretion occurs only if the trial court’s ruling is so unreasonable and arbitrary that it shocks the
senses and indicates a lack of careful, deliberate consideration. State v. Loper, 609 S.W.3d 725,
731 (Mo. banc 2020). “[I]f reasonable persons can differ about the propriety of the action taken
by the trial court, then it cannot be said that the trial court abused its discretion.” State v. Brown,
939 S.W.2d 882, 883 (Mo. banc 1997). “Even if the exclusion of testimony is erroneous, we will
not reverse the judgment absent a finding that the error materially affected the merits of the
action.” State v. Huckleberry, 544 S.W.3d 259, 260 (Mo. App. S.D. 2017) (quoting State v.
Mort, 321 S.W.3d 471, 483 (Mo. App. S.D. 2010)).
To be admissible, evidence must be both logically and legally relevant. State v. Wilson,
692 S.W.3d 54, 65 (Mo. App. E.D. 2024). “Evidence is logically relevant if it tends to make the
existence of a material fact more or less probable.” Id. (internal citation omitted). “Evidence is
legally relevant if its probative value outweighs its costs, such as unfair prejudice, confusion of
the issues, misleading the jury, undue delay, waste of time, or cumulativeness.” Id. (internal
citations omitted).
As a threshold matter, we bear in mind that section 552.015.2(8) 3 allows evidence that
the defendant did or did not suffer from a “mental disease or defect” for several reasons
including “[t]o prove that the defendant did or did not have a state of mind which is an element
of an offense.” See also State v. Jones, 134 S.W.3d 706, 713 (Mo. App. S.D. 2004). Notably, in
State v. Jones, 919 S.W.2d 12, 15 (Mo. App. E.D. 1996), this Court found that ADD 4 did not rise
to the level of a mental disease or defect as defined in section 552.010.
3 All statutory references are to the Revised Statutes of Missouri (2016) unless otherwise stated. 4 In 1987, the Diagnostic and Statistical Manual of Mental Disorders (DSM) changed the definition of this hyperactivity disorder from Attention Deficit Disorder (ADD) to ADHD along
8 But even assuming ADHD is a mental disease or defect, the court here did not abuse its
discretion in excluding the evidence because although Dr. Fite testified that Griffin-Curry’s
ADHD made him overly impulsive and reactive, she conceded that the ADHD did not impair his
ability to know that firing a gun could injure or kill somebody. Dr. Fite’s testimony, therefore,
was not only irrelevant, but also directly contradicts Griffin-Curry’s argument on appeal that her
testimony negated the “knowing” mens rea required for a murder second conviction.
We deny Point II.
Acquittal-First Argument
Finally, Griffin-Curry claims the trial court erred in overruling his objection to the State’s
acquittal-first closing argument and in failing to issue a curative instruction. Although we agree
the State’s argument was improper, Griffin-Curry has failed to show prejudice.
We review alleged errors during closing argument for an abuse of discretion. State v.
Holmsley, 554 S.W.3d 406, 410 (Mo. banc 2018). “When determining whether an improper
closing argument constitutes an abuse of discretion requiring reversal, Missouri courts have
considered ‘whether the trial court gave a cautionary instruction, whether the court gave a
curative type instruction to disregard the improper comment, and the strength of the state’s
case.’” Id. (quoting State v. Ware, 793 S.W.2d 412, 415 (Mo. App. E.D. 1990)). “An abuse of
discretion occurs when a defendant is prejudiced such that there is a reasonable probability that
the outcome at trial would have been different if the error had not been committed.” State v.
Deck, 303 S.W.3d 527, 540 (Mo. banc 2014).
“‘The State has wide latitude in closing arguments, but closing arguments must not go
beyond the evidence presented; courts should exclude statements that misrepresent the evidence
with changes in its diagnostic criteria. ADHD: The Diagnostic Criteria, PBS, (June 30, 2025, 1:24 PM), https://www.pbs.org/wgbh/pages/frontline/shows/medicating/adhd/diagnostic.html.
9 or the law, introduce irrelevant prejudicial matters, or otherwise tend to confuse the jury.’”
Holmsley, 554 S.W.3d at 410 (quoting Deck, 303 S.W.3d at 540). An acquittal-first argument is
a misstatement of the law and may constitute reversible error. Tisius v. State, 183 S.W.3d 207,
217 (Mo. banc 2006).
So, what is an acquittal-first argument? “Missouri’s instructions on lesser-included
offenses do not require that the defendant first be acquitted of the greater offense before the jury
can consider the lesser offense.” State v. Johnson, 599 S.W.3d 222, 228 (Mo. App. W.D. 2020)
(internal quotations omitted). “Rather, the Missouri Approved Instructions – Criminal …
provide that a jury may consider lesser-included offenses if it does not find the defendant guilty
of the greater offense.” Id. Where the jury is properly instructed on lesser-included offenses in
accordance with the proper MAI, the jury is presumed to have followed the trial court’s
instructions. Id. (citing State v. Gilbert, 103 S.W.3d 743, 751 (Mo. banc 2003)).
Simply put, not finding the defendant guilty of the greater offense is a world apart from
acquitting the defendant of the greater offense. In essence, by making its acquittal-first
argument, the State told this jury that before it could consider the lesser-included offense verdict
directors, it had to take a vote on the murder second charge and reach a 12-0 not guilty decision.
That is incorrect and improper. And it would cause all sorts of problems within our trial courts
especially given Missouri’s strong preference to instruct down in criminal cases. State v.
Jackson, 433 S.W.3d 390, 399-400 (Mo. banc 2014). If acquittal-first were the norm, juries
unable to reach unanimity one way or the other on the most serious crime would be unable to
move on to one of the lesser-included offenses about which they may have unanimity. This
would be unworkable and, more importantly, it is not the law.
Yet despite the State’s improper argument of this regard, we find that it did not prejudice
Griffin-Curry. First, the court properly instructed the jury on the lesser-included offenses and the
10 instructions were consistent with the language required by MAI – CR4th 414.00. Additionally,
the court instructed the jury that it must follow the instructions as given, that counsels’
arguments were not evidence, and that it should consider lesser-included offenses if it did not
find Griffin-Curry guilty of the higher offenses. Therefore, we presume that the jury followed
the instructions. Gilbert, 103 S.W.3d at 751.
Finally, Griffin-Curry has not shown that there was a reasonable probability that the
outcome at trial would have been different if the error had not been committed. Victim’s son
testified that he saw a man in a white t-shirt pull a gun from his pocket and shoot his father
multiple times. Griffin-Curry’s own grandfather testified that when he confronted Victim for
shooting off fireworks that night, his grandsons followed him and suddenly, he heard gunshots
coming where they were standing behind him. Security footage from Grandfather’s front door
shows Griffin-Curry, in a white t-shirt, run back to Grandfather’s house with a gun in his pocket.
Thus, based on the evidence, there was no prejudicial error.
Conclusion
For the foregoing reasons, we affirm.
______________________________ James M. Dowd, Presiding Judge
Angela T. Quigless, J., and Thomas C. Albus, Sp. J., concur.