Defense attorneys for accused bush-ax killer Michael Curry will not be allowed to raise the possibility a neighbor killed Currys pregnant wife and two children on Aug. 29, 1985, Superior Court Chief Judge John Allen ruled Monday.
That was one of several issues Allen considered in a hearing on motions related to Currys murder trial, set to begin Monday.
Accused of using a bush ax to kill his 24-year-old wife Ann, 4-year-old daughter Erika and 20-month-old son Ryan in the familys Rockhurst Drive home, Curry is represented by public defender Bob Wadkins, who wanted to introduce evidence that a neighbor who later forced his way into homes to assault teenagers might have committed the slayings.
Allen had to decide whether that was relevant to the case against Curry or just a defense diversionary tactic.
Allen decided the proposition that Paul Edward Grable could have killed Currys family would serve only to distract jurors. The judge agreed with District Attorney Julia Slater that Grables cases were not comparable to the familys slaying.
According to what Slater and Wadkins told Allen Monday, Grable on Jan. 23, 1989, assaulted a 15-year-old girl then living in the Currys former Rockhurst Drive home, after having tried unsuccessfully to court her -- attempting to get her to sneak away from home with him, to entice her into his car and to kiss her.
His entreaties rejected, Grable disguised himself and knocked on the girls front door when no one else was home, pushed his way in when she opened it, and with a pistol forced her to disrobe in a rear bedroom and sodomized her.
In 1990, he pleaded guilty to burglary, aggravated assault and aggravated sodomy and served three years and six months in prison before his parole.
Then on Dec. 31, 1999, he committed a similar offense in Harris County, pushing his way into a home at the time occupied only by a woman in her teens, punching her and attempting to sexually assault her, but stopping when she began to cry. He had known that victim for about three years, Slater said.
For that Grable in 2000 pleaded guilty to burglary, simple battery and attempted rape, attorneys said. When Allen asked where Grable is now, Wadkins said he still is incarcerated but in 2013 will be up for parole.
Wadkins cited general similarities in Grables crimes and the Curry killings -- such as Grables having had some previous contact with the victims before the offenses occurred. Slater countered that Grable hardly knew the Currys, having only waved at them outside the Rockhurst Drive home where he then lived with his parents. Also the Curry case involved no sexual contact: The very nature of these cases is so different, she said.
Allen agreed: I find that its not even a close call in this case, the judge said.
Other motions argued before Allen included:
Whether a jury should hear evidence of witnesses having taken polygraph tests. At the time of the slayings, Curry was having an affair with Pam Burt, who like Curry worked at The Bradley Center. Her husband, Fred Burt, found out about it and confronted Curry. Police later said both Pam and Fred Burt were forthcoming and cooperative in the homicide investigation, and both passed polygraph tests, which typically are not admitted in trials. Investigators decided the Burts were not viable suspects. The defense did not want the polygraphs brought up. Allen said the tests could come up during questioning of witnesses, not opening arguments.
Prosecutor Crawford Seals wanted to ensure no hearsay evidence was admitted at trial, as police over the years were diverted by numerous false leads and rumors, including a mental patient who at one point claimed he killed the Currys, though he later recanted and lacked detailed knowledge of the crimes. Wadkins said the defense had no plans to use such evidence. His concern was that Ann Currys time of death as estimated by the coroner and medical examiner be admitted. Both are dead now, so Wadkins wanted to ensure testimony as to what they told police would not be ruled hearsay.
Seals wanted to introduce evidence Curry was considering divorcing his wife, but feared he would be taken to the cleaners paying alimony and child support. Because of three life insurance policies that paid after his family was killed, he had a financial interest in the homicides, Seals said. Allen said he expected that would be introduced during testimony.
Prosecutor Mariel Williams wanted to summon a former girlfriend who after the homicides lived with Curry in Florida and North Carolina. She would testify that Curry was abusive and quick to violence, with a tendency to go from a lunatic to a puppy dog, with no in-between. Wadkins objected that the alleged domestic violence was not documented well enough to be double-checked. Allen said the ex-girlfriend could testify to a particular incident in which she claims Curry held an industrial-strength staple gun to her head, and she leapt from a window to escape him. The defense then may cross-examine her, the judge said.
Still to be decided is how the court will handle evidence gained from a search of Currys home on Oct. 14, 2008, when he was living in Dalton, Ga. The impetus for that search was an estranged wifes telling police she saw a letter from Currys mother, Joyce Curry, in which the mother wrote that when she died, only one other person would know what happened to Currys wife and children.
Police initially were interested in Susan Curry, now Currys ex-wife, when they learned she was arrested for assaulting Curry in May 2008. They got a recording of Currys 911 call, and could hear Susan Curry in the background suggesting that authorities would like to hear what happened to his family, too.
Allen previously has said he doubted the police had sufficient grounds for searching Currys home. On Monday he said he would further consider the matter.
Curry remains in the Muscogee County Jail, held on $300,000 bond. He has been jailed since May 20, 2009, when he was arrested in Dalton after a Muscogee County grand jury indicted him, relying on evidence compiled by cold-case investigators.