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Curry v. State

Supreme Court of Georgia

February 4, 2019

CURRY
v.
THE STATE.

          ELLINGTON, JUSTICE.

         A Spalding County jury found Jarmond Amere Curry guilty of felony murder, voluntary manslaughter, armed robbery, and possession of a firearm during the commission of a crime in connection with the shooting death of Byleem Moore and the armed robbery of Terry Dorsey.[1] On appeal, Curry contends that the trial court erred in denying his objection to the identification testimony of two witnesses and his motion for a mistrial based on the State's failure to disclose that it showed at least one photograph of Curry to the witnesses and they identified Curry as the man they saw fleeing the scene of the crime. Though we conclude that Curry was erroneously sentenced, we otherwise affirm.

         Viewed in the light most favorable to the jury's verdict, the evidence presented at trial showed that on May 4, 2010, Terry Dorsey contacted Byleem Moore seeking to purchase marijuana. Moore in turn contacted Chesry Mathis, who agreed to sell Dorsey a half pound of marijuana. Curry, a longtime acquaintance of Mathis, convinced Mathis to let him rob Dorsey during the transaction. Mathis arranged with Moore for the sale to take place in the apartment of his neighbor, Valerie Parker. After Parker left to pick up her daughter from preschool, Mathis let Curry into her apartment, and Curry hid in a utility closet.

         When Dorsey arrived at Parker's apartment, Moore and Mathis were standing at the door and the three men entered the apartment together. As Mathis was weighing the marijuana, Curry emerged from the closet with a bandana over his face, holding a handgun. He pointed the gun at Dorsey and demanded money. As Curry was taking money from Dorsey's pocket, Moore tried to wrestle the gun away from Curry. During the struggle, Curry fired two shots. One bullet struck Moore in the left shoulder and penetrated his lung, heart, and kidney, and another bullet passed through his right thigh. Curry and Mathis immediately ran out the back door.

         Two sisters, Ashley Berry and Allison Sides, were in Berry's home around 5:30 p.m. on May 4, 2010, when they heard gunfire. Berry testified that, after she heard a gunshot, she looked out her living room window and saw a man running toward her home from the direction of a wooded area that lies between her back yard and Parker's apartment building. The man jumped over a wall and ran across her back yard. She testified that she had a clear view of the man's face for two or three seconds from a distance of about ten feet. Along with her sister, Berry rushed out her front door, and she saw the man continue running across her yard and then down her street. Berry then saw a second man running from the same direction through her neighbor's yard; he turned down her street in the opposite direction from the first man. At trial, Berry identified Curry as the first man she saw. Sides also saw two men run from the direction of the apartment building and then split up. She testified that she had a good view of the first man's face for ten to fifteen seconds from a distance of about ten feet. At trial, Sides also identified Curry as the first man she saw running.

         When Parker returned to her apartment shortly after 6:00 p.m., she found Moore lying dead in a pool of blood. Mathis was identified as a suspect through his association with Parker and was apprehended the day after the shooting. He confessed to his involvement in the robbery scheme and identified Curry as the shooter.[2] Mathis chose Curry's photograph in an array. He pleaded guilty to reduced charges and testified against Curry at trial. Dorsey also testified, although he was unable to identify the shooter.

         1. Curry does not challenge the sufficiency of the evidence. Nevertheless, as is our customary practice in murder cases, we have independently reviewed the record and conclude that the evidence was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Curry was guilty of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Curry contends that the trial court erred in overruling his objection to the identification testimony of Berry and Sides and in denying his motion for a mistrial after the mid-trial revelation of an impermissibly suggestive pretrial identification procedure. The trial court overruled Curry's objection based on its determination that an impermissibly suggestive identification procedure did not result in a substantial likelihood of misidentification. Because such a determination concerns a mixed question of law and fact, we accept the trial court's findings on disputed facts and witness credibility unless they are clearly erroneous, but we independently apply the law to the facts. Jones v. State, 291 Ga. 35, 37 (1) (727 S.E.2d 456) (2012). See Cikora v. Dugger, 840 F.2d 893, 895 (II) (11th Cir. 1988). "The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge's discretion will not be interfered with." Stanley v. State, 250 Ga. 3, 4 (2) (295 S.E.2d 315) (1982) (citations omitted).

         In this case, after Berry identified Curry in court, defense counsel asked during cross examination whether she had seen a line-up or a show-up; she testified that she saw a "picture in the paper" and recognized Curry as the man she had seen jumping over a wall on the evening of the shooting. Although later testimony would clarify that Berry meant that she happened to see Curry's photograph in the newspaper, the prosecutor asked on redirect whether looking at the picture was "something that [she] asked [Berry] to do, to see if [Berry] could identify the defendant[, ]" and Berry responded affirmatively.

         Curry objected and moved for a mistrial on the basis that no pretrial identification procedure had been disclosed to the defense before trial, thereby depriving the defense of the opportunity to retain the services of an expert on eyewitness testimony to present in rebuttal. In responding to that argument, the prosecutor stated that she had interviewed Berry and Sides together a few months before trial and that, while she flipped through the State's case file in front of them, they saw photographs of Curry and Mathis that were in the file, pointed at the photographs, and identified the men depicted as the men they had seen running on the evening of the shooting. The prosecutor also stated without contradiction that the photographs had been produced to the defense in discovery. With the revelation that Sides also viewed photographs before trial, Curry's counsel added her pretrial identification to his pending objection and motion for a mistrial.

         The trial court determined that showing the witnesses the photographs constituted an impermissibly suggestive identification procedure.[3] The court directed the State to recall Berry and Sides for additional cross-examination and reserved ruling on Curry's motion for a mistrial. Berry testified in greater detail regarding her opportunity to observe the first man who ran through her yard. She testified that she did not describe Curry's facial features in detail when she was first interviewed by law enforcement because she was not asked for such information. Berry elaborated on her previous testimony about seeing "a picture in the paper," stating that, a few weeks after the shooting, she saw a photograph in the newspaper, noticed that the man looked familiar, and realized it was the man she saw jumping over the wall on the evening of the shooting. She also testified that the prosecutor showed her a photographic array a few months before trial, and she selected a photograph of each of the men she had seen on the evening of the shooting. She testified that she was absolutely certain that Curry was that man and that her in-court identification of Curry was based on her memory of seeing him on the evening of the shooting.

         Sides also gave additional testimony about her opportunity to observe the two men that evening. Like Berry, Sides testified that she did not describe Curry's facial features in detail when she was first interviewed by law enforcement because she was not asked for such information. She testified that Curry was definitely the person she saw running across Berry's yard and that her in-court identification of Curry was based on her memory of seeing him on the evening of the shooting.

         When, as in this case, a trial court concludes that the State employed an impermissibly suggestive pretrial identification procedure,

the issue becomes whether, considering the totality of the circumstances, there was a substantial likelihood of irreparable misidentification. If not, then both the pre-trial and in-court identifications are admissible. . . . The ultimate question is, whether under ...

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