Curry trial Day 3: Michael Curry sobs as prosecutors show crime-scene photos

Opening arguments begin

tchitwood@ledger-enquirer.comApril 20, 2011 

The man accused of hacking his family to death with a bush ax sobbed into his hands as prosecutors Wednesday showed crime-scene photos from the homicides.

The images were shown the jury as Columbus Police Chief Ricky Boren described what police found on the evening of Aug. 29, 1985, at what was then Michael Curry’s 5433 Rockhurst Drive home.

Boren described this:

Detectives found 24-year-old Ann Curry lying on her back in a rear den, nearly decapitated from the swipe of a bush ax that lay nearby. She also had a puncture wound to her left temple.

On the floor in front of a couch in that same room, 20-month-old Ryan Curry lay on his left side, a deep puncture in the right side of his head, one tiny fist in the shag carpet.

In the adjacent kitchen, officers found 4-year-old Erika Curry lying on her back in a pool of blood, one long laceration down the middle of her scalp, another gash across her mouth. The latter’s impact sent part of her palate flying across the kitchen floor with four teeth still attached. Three more dislodged teeth also scattered, as did her glasses.

A white plastic wastebasket by Erika’s body was overturned near a door that led from the kitchen to the driveway on the home’s south side. The wastebasket lay so close that the door could not have been opened after the trash container spilled. The track of the blood spurting from Erika’s body indicated the trash receptacle was overturned before the blood hit it.

A rear door leading from the den to the back patio had a pleated orange curtain on the inside covering its 15 panes of glass. The pane nearest the deadbolt lock was broken from the outside in, pieces falling into the curtain, some falling to the carpet so that they landed upright against the door. The deadbolt was locked, the key still in it.

Police decided the door could not have been opened after the pane was shattered.

On a king-sized bed in the master bedroom on the home’s north side, police found a yellow pamphlet.

Curry later would tell police he saw the circular tucked into the front storm door when he got home from work about 5:30 p.m., so he went in the front door to get it, instead of the side, kitchen door the family usually used.

On a chair in the den, Ann Curry’s black purse was overturned, spilling out a red purse that baby Ryan liked to play with, along with Ann’s day planner, change purse, house keys, calculator and checkbook, the register on which showed she’d written a check to Sears that day for $8.58.

Otherwise the house showed no obvious disorder, Boren testified. No electronics were missing, no closets or drawers had been rifled through.

It was hot, too: A thermostat inside had topped out at 90 degrees, the air-conditioning was not on. The high that day was in the upper 80s and it had rained. “It was a very hot, miserable crime scene,” Boren said.

As Boren under questioning from District Attorney Julia Slater went over the details of the crime scene, Michael Curry wept, shaking.

Boren, who was a sergeant in the homicide unit back in 1985, testified after attorneys made their opening arguments.

OPENING ARGUMENTS

In their opening arguments, prosecutors and defense attorneys agreed on this: The timeline of what happened that day is crucial.

That timeline proves Curry could not have killed his wife and children, defense attorney Bob Wadkins said in his opening statements.

Bernice Johnson, Ann’s mother, repeatedly said after the slayings that her daughter and grandchildren left Johnson’s 4416 Fairview Drive home between 12:30 and 12:45 p.m. that day, Wadkins said.

Curry told police he spent that morning shopping for a fan for The Bradley Center, where he was maintenance supervisor. A receipt from the Macon Road Kmart showed the purchase was made at 12:55 p.m.

Police timed the drive from Johnson’s Fairview Drive residence to the Currys’ Rockhurst Drive home at seven minutes. They timed the drive from Rockhurst Drive to Kmart at 13 minutes. Michael Curry did not have time to kill his family and get to Kmart by 12:55 p.m, Wadkins said.

Beyond that, the county’s then-medical examiner, Dr. Joe Webber, estimated Ann Curry died at 2:30 or 3 p.m., when coworkers at The Bradley Center said they saw Curry at work after he returned from his shopping trip around 1:10 p.m.

Webber is dead now. The prosecution will have a GBI pathologist testify that Webber’s estimate of the time of death was inaccurate, but the district attorney’s office long has relied on Webber’s estimates in other cases, Wadkins said.

In the prosecution’s opening salvo, Assistant District Attorney Crawford Seals answered the question that’s been on many minds since cold-case investigators charged Michael Curry with the homicides in May 2009: What evidence proving Curry did it do police have now that they didn’t have in 1985?

None, Seals acknowledged: The case is circumstantial.

Investigators have no “smoking gun” that proves Curry killed his family, Seals said, but the jury can convict him solely on circumstantial evidence as long as it’s consistent and all other theories are ruled out.

He said Curry’s story of having spent 3½ hours that day shopping for a fan left an hour and 45 minutes for which he could not account.

Curry said he left The Bradley Center at 9:40 a.m., first driving to Sears, which was then off Macon Road at Rigdon Road, near where the Muscogee County School District headquarters is today.

He then drove north to Montgomery Ward at Peachtree Mall, where Macy’s is today. Then he went back to Macon Road to buy the fan at Kmart, where his receipt logged the purchase at 12:55 p.m.

Ann Curry went to Sears that day, too.

She first took Ryan to her mother's house so the grandmother could baby-sit while Ann and Erika went to Sears to buy a gift for Erika to take to a birthday party at 6 p.m.

Crucial to the timeline will be when Ann left her mother’s house at 4416 Fairview Drive to go home. Johnson cannot recall exactly, Seals acknowledged, saying Ann left with her children sometime between noon and 12:45 p.m.

Shortly after the homicides, Johnson would recall that she did look at a clock at 12:10 p.m., and Ann had not returned from Sears yet.

Seals told the jury about an extramarital affair Michael Curry was having with a coworker, Pam Burt, with whom he spent the Saturday night before the homicides at the Manchester Expressway Holiday Inn.

The prosecutor said Curry told Burt he could not afford the divorce and child support, were his wife to learn of their affair.

Wadkins said Curry intended to end the three-week-old affair, and told Burt he had no intention of leaving his wife and kids.

“This was more like a fling,” Wadkins said, so the jury should not let that prejudice them against Curry: “He’s not charged with being a no-good fellow; he’s charged with murder.”

The prosecution can claim circumstantial evidence is enough to convict Curry and jurors can find him guilty if they “believe” he committed the crime, but that’s an oversimplification, Wadkins said, of prosecutors adding, “They have to prove every element of this crime beyond a reasonable doubt.”

SEARCH THROWN OUT

Earlier Wednesday, the prosecution lost some of the evidence it wanted to use to prove its theory of Curry’s guilt when Muscogee Chief Superior Court Judge John Allen ruled that documents authorities seized in a 2008 search of Curry’s home in Dalton, Ga., are not admissible as evidence.

Citing the 2010 case of Brogdon v. State, Allen noted the precedent said police can’t take a suspect’s “private papers” unless they constitute “instrumentalities of the crime in connection with which the search warrant was issued.”

In court Allen concluded: “Everything that is not an actual instrumentality of a crime is out,” and he saw nothing seized in the search that met that standard. The search warrant signed by a Whitfield County judge and served Oct. 14, 2008, specified authorities were looking for “papers, notes, computer records, photos, letters, phone records, which are the fruits of the crime of murder.” Among the papers were documents related to Curry’s collecting life insurance policies on his wife and kids.

The search was prompted by information Curry’s then-estranged wife Susan gave cold-case Detective Randy Long. She told him she had seen a letter from Curry’s mother Joyce saying that when she died, only Curry would know what happened to his family. Defense attorneys argued such a general statement wasn’t of itself incriminating and was insufficient to justify the search. The letter was never found.

Attorneys Wednesday morning also argued over the admissibility of testimony by a former girlfriend who lived with Curry in 1987 and ‘88. The prosecution wants her to testify about an incident in which she says Curry held a staple gun to her head, prompting her to leap through a window to escape.

The defense argues the incident is not documented in any police report or court filing, nor comparable to the brutal homicides Curry is accused of. Prosecutors said the woman, who now lives in Texas, drove 20 hours here to testify.

The defense further argues that her staple-gun story specifies no time or place, and the woman lived with Curry in two different states and three different counties: Pinellas County, Fla., and Stokes County and Yadkin County in North Carolina.

The woman may testify without the jury present.

The 43-person jury pool reported to Allen’s court at 1 p.m. today. The defense and prosecution struck jurors to whittle the number down to 12 plus three alternates. The total of 12 women and three men were seated at 1:15 p.m.

The proceedings ended Wednesday at 5:15 p.m. They are to resume Thursday morning at 9 a.m., when Boren is to testify about statements Curry made to police the night of the homicides.

DAY 2

The first phase of jury selection for the murder trial of accused bush-ax killer Michael Curry wrapped up in a daylong court session Tuesday, when 35 more jury candidates were questioned and 30 chosen for the jury pool. The 13 picked Monday brings the total to 43.

Muscogee Chief Superior Court Judge John Allen told those chosen to return to the Columbus Government Center ninth-floor courtroom at 1 p.m. today. He told attorneys to return at 11 a.m., prepared to make any motions and begin striking jurors to get the final 12 plus 3 alternates to hear the case.

With that schedule, opening arguments likely will begin this afternoon. Allen expects the trial to take two or three weeks.

The proceedings Tuesday began at 9 a.m., and 24 prospective jurors were in the first set brought up from the jury room. Four of those quickly were culled after they told the court they already had formed an opinion that testimony was not going to change. Each of the two men and two women were questioned privately where only the judge, attorneys and court reporter could hear, and each was allowed to leave afterward.

Shortly before 4 p.m., a second set of 25 candidates was brought in, and two were dismissed for possible bias, one because she was adamant that she already had an opinion of Curry’s guilt, and it would not change.

“I don’t want to be involved in it,” she said of the murder trial.

A second woman said she worked for Columbus attorney Frank Martin, who once represented Curry, and she had an opinion of the case, too. Martin is among the witnesses to be called, and in one of the court’s lighter moments, Allen in speaking of Martin asked her, “Would you believe him under oath?”

Jurors Tuesday were questioned just as they were Monday, with the prosecution asking whether they watch TV crime shows such as “CSI” and “Forensic Files” and believe the high-tech, crime-solving techniques depicted: Do they believe every crime scene has forensic evidence that identifies the perpetrator? Do they believe a defendant can be convicted without such evidence?

Those questions may indicate such evidence is not available or of no value in the horrific bush-ax slayings of Curry’s eight-months’ pregnant wife Ann, 4-year-old daughter Erika and 20-month-old son Ryan, found dead in their 5433 Rockhurst Drive home on Aug. 29, 1985.

After one prospective juror, a barber at Ranger Joe’s in Columbus, said she believed every story has two sides, Curry’s lead defense attorney asked whether she understood that the burden of proof lay with the prosecution, not the defense.

The defense needn’t tell another side to the story if the prosecution can’t prove Curry’s guilt beyond a reasonable doubt, noted public defender Bob Wadkins.

The court saved some time Tuesday by reading the names of more than 60 witnesses to the two sets of jury candidates before questioning each individual. On Monday the list was read to each juror individually to see whether the person knew witnesses.

Arrested by cold-case investigators on May 20, 2009, in Dalton, Ga., where he had settled after moving from Columbus after the slayings, Curry faces six counts of murder -- one count of felony murder and one count of malice murder for each of the three victims.

Malice murder means the killer committed the crime with malice aforethought, and felony murder means that regardless of malice, the killer committed the slaying during the commission of another felony, in this case aggravated assault.

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