202 So. 3d 294
Miss. Ct. App.2016Background
- Jemarcus Curry, an inmate at Central Mississippi Correctional Facility, was charged and convicted of two counts of simple assault on correctional officers Georgia Shelby and Leon Shields after an altercation in a lockdown hallway.
- Officers testified Curry refused orders to face the wall, Shelby touched or grabbed him, and Curry punched and kicked Shelby and struck Shields during the struggle.
- Curry claimed he acted in self-defense, testifying he was afraid of guards because he had witnessed prior assaults on inmates and that officers continued to assault him after he was subdued.
- On cross-examination the State was permitted to question Curry about five prior disciplinary violations (lewd gestures, threats, throwing objects at officers); no detailed history of those incidents was elicited.
- The jury convicted Curry on both counts; the trial court sentenced him as a habitual offender to consecutive five-year terms. Curry appealed, arguing (1) improper admission/use of prior disciplinary violations and failure to give a limiting instruction, and (2) prosecutorial misconduct and ineffective assistance of counsel.
Issues
| Issue | Curry's Argument | State's Argument | Held |
|---|---|---|---|
| Admissibility of Curry's prior disciplinary violations on cross-exam | Cross-exam of prior violations was improper character evidence under M.R.E. 404 and prejudicial under 403 | Curry opened the door by testifying he was in fear of guards and had witnessed prior assaults; prior violations were probative to rebut claim of fear and credibility | Court: Admissible under Rule 404(b) for non-character purpose; probative value outweighed any minimal prejudice; no abuse of discretion |
| Failure to give a limiting instruction under M.R.E. 105 | Absence of contemporaneous limiting instruction prejudiced Curry | Trial judge not required to give instruction absent request; error (if any) harmless because instruction may focus jury on issue and defence waived/requested none | Court: No reversible error; any failure was harmless and defendant arguably waived request |
| Prosecutor's closing remarks (referencing prior violations, describing inmate group) | Remarks were inflammatory, prejudicial, and improperly commented on defendant's credibility and failure to call witnesses | Remarks were responsive to defense argument, within bounds of permissible argument, and not so inflammatory to require sua sponte action by court | Court: Remarks were permissible; not plain error nor so inflammatory to deprive Curry of fair trial |
| Ineffective assistance for failure to object/request limiting instruction | Counsel was deficient for not objecting to closing or requesting limiting instruction, causing prejudice | Strategic decisions; not deficient; no resulting prejudice under Strickland standard | Court: Strickland prongs unmet—presumed trial strategy and no prejudice; claim denied |
Key Cases Cited
- Green v. State, 89 So. 3d 543 (Miss. 2012) (explains Rule 404(b) admissibility when evidence has noncharacter purpose and use of Rule 403 balancing)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- Sheppard v. State, 777 So. 2d 659 (Miss. 2000) (limits on inflammatory prosecutorial argument)
- Dunaway v. State, 551 So. 2d 162 (Miss. 1989) (review standard where no contemporaneous objection to closing remarks)
- Randall v. State, 806 So. 2d 185 (Miss. 2001) (discussion of impermissible comment on failure to call available witnesses)