51 So. 3d 764
La. Ct. App.2010Background
- Defendant Kerry J. Curington and co-defendant were indicted for first-degree murder, later amended to second-degree murder (LSA-R.S. 14:30.1).
- Trial before a 12-person jury in 2009 resulted in a guilty verdict and a life sentence without probation, parole, or suspension.
- Evidence at trial included eyewitness identifications connecting Curington to the robbery and shooting of Donell Stipe, and ballistics linking two weapons to the scene.
- Experts testified to two distinct calibers (7.62/.30 and .40 caliber) and to multiple gunshot wounds from at least two weapons.
- The State sought to admit other-crimes evidence (Orleans Parish shooting and a claimed bribery of a witness) under Art. 404(B); defense challenged notice under Prieur and requested limiting instructions.
- Multiple preliminary and post-indictment motions occurred over five years, with delays influenced by continuances and Hurricane Katrina; trial occurred April 28, 2009, after the State’s timely responses to interruptions and suspensions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of other-crimes evidence under Prieur/404(B) | State must show motive/identity/independent relevance and notice. | Evidence prejudicial; failure to provide Prieur notice and improper use. | Admissible with proper independent relevance; prejudice not to require reversal. |
| Limiting instructions on other-crimes evidence | Not applicable to all admitted evidence. | Jury should have been instructed on limited purpose. | No preservation; no error per appellate review; no mandatory limiting instruction. |
| Admission of alleged bribery statements under 768 notice | Statements explain why Carter changed testimony. | Pretrial notice lacking; surprise prejudicial. | Harmless error given overwhelming guilt evidence; not reversible. |
| Ineffective assistance of counsel | Defense counsel failed to object/limit evidence. | Counsel's strategy ineffective per Strickland. | Record shows strategic choices; no deficient performance proven; no merit. |
| Speedy trial/time limits (Art. 578/580) | State interrupted/suspended time within allowed limits. | Delays prejudicial; insufficient interruptions to toll time. | State satisfied burden; interruptions/suspensions tolled prescription; no merit. |
Key Cases Cited
- State v. Prieur, 277 So.2d 126 (La. 1973) (basis for notice and exclusionary rule exceptions to 404(B))
- State v. Page, 28 So.3d 442 (La. App. 5th Cir. 2009) (art. 404(B) admissibility balancing and notice requirements)
- State v. Schaller, 15 So.3d 1046 (La. App. 5th Cir. 2009) (relevance and prejudice balancing; preservation practices)
- State v. Ridgley, 7 So.3d 689 (La. App. 5th Cir. 2009) (Prieur notice and prejudice evaluation standards)
- State v. Nguyen, 888 So.2d 900 (La. App. 5th Cir. 2004) (limiting jury instruction requirement for 404(B) evidence)
- State v. Graves, 301 So.2d 864 (La. 1974) (admissibility of bribery/attempt-to-influence evidence against defendant)
- State v. Johnson, 426 So.2d 95 (La. 1983) (witness intimidation probative value; consciousness of guilt)