When is a suspect “arrested” for a crime? Is it as soon as police handcuff and hold him for questioning, or when he formally is charged?
That’s a question Muscogee Superior Court Judge John Allen must ponder in the case of Michael Curry, who faces murder charges in the bush-ax slayings of his wife Ann, 24, daughter Erika, 4, and son Ryan, 20 months. They were hacked to death Aug. 29, 1985, in the family’s Rockhurst Drive home.
To a neighbor Curry reported finding their bodies about 5:30 p.m. when he got home from work. Police were called, and the first two officers there decided Curry was behaving so erratically they needed to wrestle him down and handcuff him.
Then Curry calmed down, they said, and an officer in a marked patrol car took him to police headquarters, where the handcuffs were removed and Curry was left for detectives to interview. Later they took him to the hospital for an exam, and then released him without charge.
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That was an arrest, defense attorney Bob Wadkins said in a hearing today before Judge Allen — and if Curry was arrested back in 1985 and not indicted until May 2009, then that 24-year delay has impaired his Fifth Amendment right to due process under the law and his Sixth Amendment right to a speedy trial.
Arguing that Curry’s indictments should be dismissed, Wadkins said the U.S. Supreme Court in the case of Barker v. Wingo set four criteria to be considered in a speedy trial claim:
— The delay’s length, in that a year or more from the arrest or indictment is “presumptively prejudicial.”
— The reason for the delay, in that the prosecution may not delay the trial to gain an advantage, but a trial may be delayed to find a witness or for other reasons.
— The time in which the defendant asserts his right to trial. If the delay favors him and he agrees to it, he can’t claim it was excessive.
— The extent to which a delay damages the defense.
It is the latter instance that applies to Curry, Wadkins said: Two witnesses, former Coroner Don Kilgore and medical examiner Joe Webber, have died since the 1985 slayings, Wadkins said. They said they thought Ann Curry died about 2:30 or 3 p.m. Aug. 29, 1985, a time when others have said they saw Curry at his workplace.
Allen told Wadkins Kilgore’s testimony would not have mattered, because he was not a medical doctor. “His opinion about the time of death is not admissible,” said the judge, acknowledging that Webber was a doctor and his testimony would have been admitted.
Those opinions on Ann Curry’s time of death are in the report of a detective who witnessed the autopsy.
Such timing is crucial in the Curry case because Ann Curry’s mother, Bernice Johnson, has told police she thought Ann and the children left her Fairview Drive home around 12:30 or 12:45 p.m. Curry told police he spent much of the day shopping for a fan for The Bradley Center, where he was working at the time, and he supplied a receipt showing he bought one at Columbus’ Macon Road Kmart at 12:55 p.m. Other witnesses have said Curry was back at work around 1:10 p.m., and they saw him there again at various times that afternoon.
To make the case Curry was “arrested” the night of the slayings, Wadkins questioned two retired police officers. They were the first to respond to a neighbor’s call that Curry had come across Rockhurst Drive to report finding his family slain.
Said Wiley Spear: “Mr. Curry was screaming and hollering and carrying on.... We got him down on the floor and got him handcuffed.”
Curry calmed down then, and later was put in a patrol car and taken to police headquarters, where his handcuffs were removed and he was left to be questioned by detectives, one of whom was Ricky Boren, who today is Columbus’ police chief but then was a sergeant in the investigative division.
Under prompting by District Attorney Julia Slater, Spear said the officers handcuffed Curry so his wild behavior would harm neither himself nor anyone else.
The other officer, Bobby McLendon, also testified that Curry’s frantic behavior prompted the officers to restrain him. He said Curry was sitting in a chair in the neighbor’s home and had rocked back and forth so violently that the chair had punched a hole in the wall. Then Curry shoved the chair back and began to scream and kick, McLendon said, so they grabbed him.
When Slater asked why Curry was handcuffed, McLendon replied: “The way he was acting, and for his safety and mine, and Officer Spears’.”
Boren testified that police took Curry away from the crime scene because it was becoming congested with gawkers and reporters, and it’s standard for investigators to move a witness “off site” for an interview. Handcuffing someone in the back of a marked car also is standard procedure, he said, for “the safety of the officer, safety of the individual.”
Curry arrived at the police department about 6:30 p.m. and later was questioned about two hours after waiving his right to an attorney, Boren said. Then detectives took him to the hospital for an exam and then released him, Boren said. He told Wadkins Curry was not handcuffed when taken to the hospital in an unmarked car.
“He was relatively calm during the interview,” Boren told Wadkins, adding that at one point Curry lay his head on a table and “apparently had fallen asleep.” He said Curry was not held against his will, and no one would have stopped him had he stood and said, “Charge me or I’m walking out.”
Allen told Wadkins and Slater to file their arguments in briefs for a later ruling. Wadkins was given two weeks to get a transcript of today’s hearing and file his arguments; Slater was given one week more to respond.
Also today, the defense complained that it has not received all the evidence it asked the prosecution to supply. Slater said she doesn’t have the evidence, either.
Wadkins’ co-counsel, Bentley Adams III, recited a list of items yet undiscovered:
— A mental patient’s alleged confession to the slayings given police on Aug. 24, 1986. It is referred to in a follow-up report dated Jan. 28, 1988. No audiotape of the initial confession has been provided, nor has a supplemental report a detective filed afterward, Adams said.
— A profile of the killer compiled by the FBI.
— Two Sears receipts Ann Curry left at her parents’ home the day of the slayings. They could help establish when her parents last saw her alive, Adams said.
— Audio recordings of an interview between police and Fred and Pam Burt. The Burts acknowledged that Curry was having an affair with Pam Burt, and her husband confronted him about it.
— An audio recording of Curry’s statement to police the night of the slayings. The defense has a transcript, but only one of two tapes to compare it to. The first tape is missing, and the second does not exactly match the transcript, Wadkins said.
— A palm print police collected at the crime scene. Investigators reported they initially were told there were “similarities” between that print and the mental patient’s, but later were informed the two did not match.
District Attorney Julia Slater said the prosecution would like to have that evidence, too, but it can’t be found. Prosecutors are reviewing all their records and asking the Columbus Police Department about evidence it should have, and trying to get any profile compiled by the FBI, she said.