*1 Shirley Marie CURRY
STATE of Arkansas
CR
Supreme Court of Arkansas 16, Opinion February delivered E. Schay, Defender, Alvin State Appellate by: Ray Harten- stein, Defender, Deputy Chief Appellate appellant. for Clark, Gen., Fewell, Atty. by:
Steve L. Atty. Asst. Victra Gen., appellee. George night On Smith, Rose Justice. June Curry, appellant, Shirley Marie four successive persons five and wounded a sixth.
incidents shot and killed *2 felony in the second inci- murder charged capital She was husband, Jimmy her former Lee dent, in which killed she Sabrina, and their Curry, daughter aged case was in- 17. Curry years active for about four because Mrs. was com- ill mentally to and found to to Hospital mitted the State legal irresponsibility. degree 1978, July, reported Curry that Mrs. had In the doctors illness, psychotic from her had remission recovered been year, proceedings a able to understand for over They effectively assist in her own defense. were still of and to Curry that at the time of the Mrs. offenses or defect probably suffering been from mental disease degree appreciate such a as to make unable to criminality of her conduct or to conform her conduct to the They Curry Mrs. requirements expected of the law. to re- iüness as she long main remission from her continued medication.
Upon resumption the proceedings Curry Mrs. plead- guilty by ed not trial resulted in first At hung jury. trial the jury Curry second found Mrs. guil- ty and sentenced her life imprisonment without parole. The principal issue on appeal whether there is .substantial evidence to support Curry conclusion Mrs. insane at was not she time committed the two murders question.
There is actually little very dispute testimony, lying difficulties the inferences to drawn.
Mrs. Curry was custody awarded the couple’s three children when she a divorce in obtained but her hus- upon band insisted provision allowed, the children be as each one reached they to choose the parent wanted to In Sabrina, live with. child, oldest chose to live with Cook, her father. frequent Curry’s visitor Mrs. June that, home after at surprised the extent of Curry’s Mrs. toward hostility her former years husband as much as six after the divorce. The witness was impressed by also Mrs. Curry’s bitterness toward her daughter, whom she didn’t want to talk see or to. The bitterness arose from Sabrina’s decision to live with her father. Curry thought Mrs” also Sabrina was influencing boys the two to live with their father when enough were old to choose.
According witnesses, lay Mrs. Curry, with the possi- exception ble a few having instances bearing direct on case, appeared be a normal person. unusually She was During self-sufficient. early occupied she built and 1970’s house, own going to the lumberyard to select materials and learn how to use them. Even testimony the doctors whose supported the defense of Mrs. Curry found to be of *3 average above intelligence and testified that she would have seemed to abe normal in person ordinary matters. The homicides occurred on night 1974. June
That morning there was a in hearing chancery court about custody son, Richard, of the older who was and chose to live with his Among father. the witnesses persons were four who were to father, Sabrina, be killed that night: Richard, Jessie, and son, younger aged 11. Curry Mrs. testified, among other things, that objected she had children’s being allowed parents. to make a choice of She ad- having mitted threatened to shoot former She husband. Richard, had told in with possibility connection his leaving at that if father his came to the house and tried to take the child’s clothing things away, guts “I’ll his blow out.” She said she made that statement because felt like she it. The court father, awarded custody Richard’s to the effec- tive the next day.
The bare facts about the stipulated, homicides were with some testimony. Apparently additional kill- Curry Mrs. first ed her two at her in Shortly midnight sons home Lowell. after she drove her pickup truck to her former husband’s home Springdale and committed the two charged murders information. Jimmy Curry She shot Lee came to the when he door. She then went into Sabrina’s room. When ask- Sabrina was, voice, ed Curry who Mrs. in a calm “It’s answered your mother.” She then turned the light on and shot Sabrina. half-sister, went Jimmy She next Curry’s home Lee in Springdale, her. killed Her last visit was to the home Dodson, who lived husband, former her own sister’s James twice, fatally. not but Dodson She shot Farmington.
west of had been proceeding divorce his own testified Dodson get.” nasty you as could as just about head- police and taken was arrested Curry Mrs. that the first One officer testified Fayetteville. quarters one, was, “I the sixth him missed thing Curry Mrs. said she questions as answering calm didn’t I?” She seemed was that she to an officer booked, say did but she was fingers. A him two kill him and could not afraid while Mrs. morning one jail at the testified matron than she happier she custody there she said Curry was in heaven. been, kids were had ever because Dr. expert testimony physicians: There was four Bowers, Jenkins, They all Oglesby, Taylor. Dr. Dr. and Dr. criminally responsible for thought Curry Mrs. diagnosed homicides. Three of them her illness fourth, Taylor, paranoid thought Dr. she schizophrenia. he only, signed from had the staff paranoia suffered but report finding paranoid schizophrenia reports such opinions doctors were essen- unanimous. Bowers, tially example, testified that Mrs. similar. Dr. *4 Curry acting messenger had believed herself to be as a God devil, way ap- She or of the whichever she chose. could not find it preciate criminality highly the conduct. He did Curry’s paranoid that Mrs. first incident of unusual 36; the schiizophrenia age occurred at first incidents about Curry in the 20’s. Dr. that Mrs. usually occur said Jenkins did. He instructing that God was her to do what she believed was time the probably said she under a delusion at the in- though psychosis go with lucid killings, can come and she was tervals between. She could have known that (cid:127) gun, a that she was loading pulling trigger, that she things that dead. All were killing people, they would those be consistent with her delusion. instructed, jury language of AMCI
that they accept opinion as con- expert were not bound clusive, weight they thought they give should it whatever have, any might disregard should and that
917 testimony found to be In a unreasonable. recent case in- volving plea of insanity pointed we though out even competent experts several agree and there is no ex- opposing pert testimony, jury still must decide upon the issue its State, own fair judgment. Gruzen v. Ark. S.W. 2d (1979). We find substantial to support evidence ver- dict. The two homicides on trial were those of the defendant’s 17-year-old former husband daughter. hostility Her toward her husband had years; existed for some seven she threatened, apparently once, than more to kill him. Her against daughter bitterness had existed for years three and was such that girl she did not want to speak see the or to her. Curry by Mrs. incapable means of rational thought; contrary, to the for all her life usually she had gone ordinary about the affairs life Upon normal manner. the proof as a say whole we cannot that reasonable minds could not by reach the conclusion reflected the jury’s verdict. Indeed, contrary holding all face of sup- evidence porting the verdict would be in say effect to that when the ex- pert agree witnesses with one jurors another can reach no other conclusion. That not the law.
A second argument is that the court should given have instruction, requested taken from language of Ark. Stat. 1977), Ann. 41-612 (Repl. explaining to jury § even after a by verdict of guilty reason the court alternatives, would still have three first which would be to commit the defendant to an appropriate institution if the defendant was found to so affected mental disease or present defect as to danger a risk of person herself or to the or property of others. The other ex- alternatives were also plained, general effect to tell the that Mrs. Curry automatically would not if released found not *5 by reason of insanity.
Instructions such as this one in have been considered Annotation, many (1967). cases. 11 argu- A.L.R. 3d 737 ment in favor of the is that jurors instruction know the effect of of guilty, verdicts not do not know the but finding may effect of a of return a verdict guil- of
918 prematurely will not person that insane be certain an
ty to be hand, questions instruction raises the other On released. or in- duty determining guilty primary foreign give jury Moreover, hardly possible would be nocence. the possible all accurate information about complete and guil- not found to be respect person with future decisions it is not real- way, much the same insanity. In by reason of ty system, even parole jury tell all about ly practical to to confine- any sentence practical upon it has a effect though no rule is that ef- Our Correction. Department ment jury, system to the parole explain made to be fort should State, v. Andrews explanation. jurors request if the even (1971). 2d 86 Ark. 472 S.W.
Upon presented the issue now in the decisions other jurisdictions divided, are sharply with present trend in favor of giving directly of the instruction. In a in case however, point, we have held that such an should instruction given, not the jury officially is not with concerned procedure to be followed guilty by after verdict not insanity. Campbell State, v. Ark. 228 S.W. 2d (1950). We have re-examined the in question light the more recent position. decisions and adhere to our the trial remaining argument is appellant’s questions their counsel unduly defense judge restricted the defense jurors’ views about prospective about rul- an adverse pinpointed ever made that objection No no error is shown. question; so specific to a regard ing really restricted Indeed, that counsel we do see manner. any
Affirmed.
Holt, J., concurs. Hays, JJ., dissent.
Hickman affirm- concurring. I concur Justice, Holt, Frank 878, 228 State, 216 Ark. Campbell ance. It true concern official we (1950), “[i]t said S.W. 2d 470 followed, appellant, to might procedure what
919 However, insanity.” found guilty should he be of by years definitely gives approval, statute the trend recent 11 law, here. A.L.R. to the instruction offered case 3d 737 (1967 1980). in Com- and The rationale is summarized Supp. Mutina, (1975): 2d monwealthv. Mass. N.E. 323 then, jurors we is entrust On balance believe best to consequences of a verdict of not knowledge with a of by jurors entrusted reason of If can be guilty liberty life for defendant’s and responsibility this, they protec- as are entitled to know what such cases they and will have if con- tion their fellow citizens at a scientiously law to the evidence and arrive apply the — by a verdict guilty verdict not necessarily requires chilling determination which legally respon- that the is an insane killer not defendant sible for his acts. the in- example represents a classic case
The instant information such may occur when which justice jury could have jury. withheld from killed Miss Achorn. that the defendant doubt that the evidence persuasive overwhelming heard also that, and killing the time of at was insane defendant menace future, he will remain time into long for a minds must in their Foremost society. and himself community. safety for concern have been judge the trial as from of an instruction In the absence insanity, not reason a verdict of the effect of the defendant justice both to sought to render jurors .... society and in- proper example of the need for
Here is a classic previous jury A could jury. for guideline struction clearly indicate here proceedings trial a verdict. The reach Two of appellant. and the society this concern pertinent were which questions to ask permitted jurors dangerousness continuing appellant’s searching as illness, of continued the effect society, because in that circumstances mitigating The jury found treatment. alleged at the time impaired capacity mental *7 that verdict means knowledge guilty It is offense. common punishment, and that a not subject is that the defendant It is not goes verdict means the defendant free. com- guilty verdict reason of a not knowledge mon empowers mean 41-612 necessarily freedom. Section does not insanity, court, guilty by finding on a of not reason of the trial in placed Hospital the to the State be to commit defendant discharg- or the defendant institution to order appropriate an ap- as the court deems ed released on such conditions or words, necessarily acquittal an does not In other propriate. mean freedom.
On subject this it appears it is legislature for our determine instruction, whether an properly law, the stating should given upon request. Justice, dissenting. join I Justice Darrell Hickman,
Hays’ dissent but would add that I disagree with this court’s State, decision Andrews Ark. S.W. 2d 86 (1971) and with the statement in the majority jury should not be instructed regarding the alternatives provides law people who are found guilty by
I have consistently opposed the juries idea that should set sentences. There are several for my reasons disagreement. First, a jury is the least advantageous position to know what would be a fair sentence. A judge trial who hears cases day in day out and is familiar with the entire criminal justice system in a is far position better to determine what a fair Having sentence is. the judge set the sentence would al- so lead uniformity. to more
We are required many cases to reverse a trial court’s judgment error has been made in the sentencing stage of a trial. This only error can if corrected is case remanded for new trial or the sentence is reduced. Neither alternative is desirable. The accused has guilty by been found a jury and that finding has appellate withstood review. The only error involves the But jury sentence. the same cannot be brought and, back together again therefore, a new trial is re- quired. hand, On the other reduced sentence is not satisfac- repeat offender usually involves State because tory lenient treatment. receive who should not jury impose so, requires the law Even of infor- deny jury the benefit and we should not sentence judgment fair make a have order to that it mation should should know about jury punishment. regarding imposes it when he knows about system. judge A parole Trials system complicated? parole if the So what sentence. We trust complicated. and the law is complicated are die; surely we can live people whether should decide in an evenhanded needed information trust them to use this *8 I allow Therefore, and would I would Andrews way. overrule as that this case. proposed such instruction the evidence of Justice, dissenting. I view Steele Hays, psy- Three overwhelming. insanity appellant this as of their testified to psychologist and a clinical chiatrists to the extent Curry was of Shirley psychotic Marie criminality of her conduct or the incapable appreciating of the law. requirements to the of conforming her behavior lay testimony contrary. the to expert There was no insubstantial, exception, limited with one testimony was once, offer briefly, and could appellant saw the witnesses who normal.” one “appeared than that she little other with her any continuing contact who had witness for the state episodes and delusional the mental aberrations corroborated significant by experts. so considered else, legal the crime itself attests to Above all mother, with When a cool irresponsibility perpetrator. of bed, deliberation, in their whom she her two sons murders “devoted,” daughter, her teenage murders is said sister-in-law, husband, attempts yet and her former former murder, either God inner-family all directed another current, devil, on which delusion is depending inescapable. mind is badly deranged product of conviction includes to affirm this The evidence relied on after the during demeanor calm appellant’s reference to who One contrary. reality, In is evidence this crimes. family of assassination calculated can conduct derangement calm remain so afterwards demonstrates a distraught. than who The ex- far better someone becomes cognizant abnormality, layman this whereas the perts it. misread
I recognize may that under the law the ignore com- petent, expert testimony even in op- the absence of posing expert testimony, lay testimony if but consists little more than superficial observations defendant “appeared normal” then it fails to requirement meet the substantiality when weighed against combined, uncon- tradicted testimony specialists of four in the field psy- chiatry, opinions whose are based on testing, extensive obser- vation and While, interview with the appellant. here, totality evidence is convincing so that reasonable minds can come to no other conclusion then it becomes duty our reverse. joins Hickman this dissent.
Justice *9 Leona LANOY L. DANIELS, Charles Director of for the
Labor
State of
et
Arkansas
al
80-205
Supreme Court of Arkansas Opinion February 16, delivered