IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-KA-01288-COA JEMARCUS CURRY A/K/A JERMARCUS CURRY APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 08/24/2015 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF TW O COUNTS OF SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER AND SENTENCED AS HABITUAL OFFENDER TO FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS ON EACH COUNT, W ITH THE SENTENCES TO RUN CONSECUTIVELY DISPOSITION: AFFIRMED - 10/04/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., WILSON AND GREENLEE, JJ. WILSON, J., FOR THE COURT: ¶1. Jem arcus Curry , an inm ate at the Central Mississippi Correctional Facility (CMCF),

w a s convicted of a ssaulting two correctional of f icers. C urry argues that his convictionsshould be reversed because the trial judge erroneously pe r m i t t e d t he prosecutor to crossexam ine him a

bout his prior disciplinary violations and f ailed to give a lim iting instruction. Curry also argues that he is entitl e d t o a new trial because of im proper argum ents by the prosecutor and inef

f ective assistance of

counsel. W e f

ind no reversible error and af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. On June 20, 2014, correctional of f icer Georgia Shelby 1 observed thirty -f ive to f orty inm ates gathered in a hallway at CMCF. The inm ates were preventing a CMCF em ploy ee f rom passing through the hallway

. Shelby testif ied a t trial t hat the inm ates were d esignated

as “lockdown of

f enders” due t o p rior disciplinary violat i o n s . P rotocol required lockdown of f enders to stand against the wall and f ace t he wall, but these of

f enders were m illing about in the hallway

. Shelby asked another correctional of f icer, Leon Shields, f

or help clearing the hallway a nd restoring order. W hen Shelby and S hields reached the group, Shelby ordered them to f a c e the wall, and all of the inm ates except f or C urry and one other com plied. Shelby then repeated her order, but Curry continued to ignore her. ¶3. Shelby testif

ied that she then “ touched” Curry ’s shoulder a n d said, “You need to step out of line.” In response, Curry told Shelby n ot to touch him and to keep her “F-ing hands to [ h er]self

.” Bef o r e Shelby could say any

t hing else, Curry punched her in the f ace f ive or six tim es and then began kicking her. S helby testif i ed that Curry broke her glasses and that she suf f ered a contusion to her f

orehead and additional bruising. ¶4. Shields sim ilarly testif ied that Curry ignored Shelby ’s orders t o f ace t he wall. Shields

1 S h elb y w as a cap tain a t th e tim e o f th e assau l t b u t is n o w d ep u ty w ard e n at C M C F

. 2testif

i ed that Shelby then told Curry to step out of line, “grabbed” his s hirt, and told him to “step over here.” Curry said, “Don’t t ouch m e.” Curry then swung and punched S helby in the f a ce. Shields then struggled with Curry and, with the help of

other of f icers, eventually subdued him . During the struggle, Curry hit Shields in the ey e. ¶5. Curry a greed that there w as “a bunch of scream ing” and “a lot of chaos i n the hall” just bef o re the incident. He a lso a d mi t t e d t h a t he was n ot f acing the w all, as r equired by protocol, w hen Shelby a

pproached him

. C u rry claim e d that Shelby scream ed at him to “turn around,” that he com

plied w ith her order, and that she “grabbed” him sim ply because he did

not turn around “f

ast enough.” Curry t estif ied that he “s n atched away f rom [ Shelby ]” and that his “exact words” to h e r were, “Please don’t touch m e .” Curry claim ed t hat Shelby then grabbed him a gain a nd began hitting him

. H e t e s tif i ed t hat he tried to def

end him self

, but Shields and other of

f icers soon b egan hitting a nd kicking him t oo, s o he just “f olded up and tried to p rotect [ him ]self

.” C urry testif

ied that o f

f i c e r s c ontinued hitting and kicking him

. He c l aim ed t hat even af

ter he was taken to the prison m e dical unit, of f i cers b egan assaulting him again as soon as the nurse lef t the room

. ¶6. C u r r y was indicted in the Rankin County Circuit Court on two c o u n t s o f s i mp l e assault on a law e nf

orcem ent of

f icer (one count each f

or Shelby and S hields). The jury f ound him guilty on b o t h c o u n ts, and the trial court sentenced him as a habitual of f ender to f ive
y ears in t he custody of the Mississip p i Departm ent of C orrections on each count, with the sentences to run consecutively . Curry f iled a tim ely

notice of appeal.
DISCUSSION

3¶7. Curry raises two issues on appeal, each of which involves m ultiple sub-issues. First, he claim s that the t rial cour t e r red by a llowing the State to question him about his prior disciplinary violations and by not instructing the jury as to the lim i ted purpose f or which it could consider the violations. Second, he argues that his trial was rendered unf air by parts of t he prosecutor’s closing argum ent and alleged inef f ective assistance of counsel. W e f ind no reversible error and af f irm

. I. Curry ’ s Prior Disciplinary Violations ¶8. The trial j udge perm itted the State to cross-exam ine Curry about the f act that he had
f ive prior d isciplinary violations f or m aking lewd gestures at correctional of f icers, threatening of

f icers, or throwing things on o f f icers. N o a d d i t ional detail was brought out regarding these prior i ncidents. Curry argued t hat this cros s - e x a m i n a t i o n v i o l a t e d M i s s i s s i p pi Rules of Evidence 403 and 404(a). W e disagree. ¶9. On direct exam ination, Curry testif ied that he a c ted in s elf

-def ense because he “ w a s scared” because he had “been in a lot of situation[ s] where [ he had] seen [ g uards] jum p on inm ates.” Curry then testif ied that he was assaulted a gain af ter he was taken to the m edical unit, and he started to testif y about “ several [ other alleged] incidents” involvi n g t h e s a me
group of of

f icers who a llegedly assaulted him in the m edical unit. This alleged incident, of

course, occurred at a d if

f erent place and tim e than the s ubject of the trial—Curry ’s altercation

w i th Shelby and Shields. The S tate objected to testim ony about “prior i ncidents unle s s [ i t

was also] allowed to go into prior incidents.” The trial judge sust a i n e d the objection and instructed Curry to “[ o]nly tal k a b o u t this event.” Nonetheless, Curry went o n to assert,

4while still testif y ing on direct e xam ination, t hat he was “in f ear” of the guards b ecause he had
“seen it h a

ppen plenty of tim e s” and “[ i]t never ends.” Once C u r ry ’s direct e xam ination concluded, the S tate argued that h is testim ony h ad opened the d oor to cross - e x a mi n ation about his prior disciplinary v iolations. The trial judge agreed with the S tate that Curry had “raised the issue.” ¶10. The Mississippi Suprem e Court has explained that evidence relevant to a n oncharacter purpose is admissible under [ R ule] 404(b) even if it also ref

lects o n a def

endant’s character. Evidence is i na dmissible under t h i s rule only if it is relevant solely to t he def endant’s character or crim inal prop e n s i t y . Stated another way , the rule is not exclusionary , but is inclusionary , because it provide s a nonexhaustive list of reasons to properly adm it evidence that m ay nonetheless also give rise to a n i n f e r e n ce about the def enda n t ’ s character. Any undue prejudice that arises because the evidence also un avoidably ref

lects the def

endant’s character i s then c onsidered under the [ R ule] 403 balancing test . . . .
Green v. State , 89 So. 3d 543, 5 51 (¶18 ) ( M i s s . 2012) (brackets om itted) ( em phasis in original) (quoting People v. Mardlin , 790 N.W .2d 607, 612 (Mich. 2010)). ¶11. In t he present c ase, Curry testif ied on direct that he was “scared” a n d “in f ear” of the guards because he claim ed that he had seen them assault inm ates m any t im es in the p ast. The
f act that C u r r y h ad been cited several tim e s previously f or m aking lewd gestures at the guards, threatening them , and even throwing things a t them tends to rebut his claim that he was scared and in f

ear of being assaulted by them

. Thus, the prior incidents were relevant and adm issible f

or a perm i ssible purpose under Rule 404(b). ¶12. W e also reject any suggestion that Curry was a victim of unequal treatm ent because the trial judge l i m ited his t estim o ny regarding prior alleged assaults by guards but then

5perm itted cross-exam ination regarding his prior disciplinary violations. Curry w as allowed

to testif y on direct that he w as in f ear of Shelby because he had witnessed prior assaults by guards. The judge only precluded him f rom testif y i ng about prior alleged i ncidents involving

a dif f erent g roup of o f

f icers who allegedly a ss aulted him in t he m e dical unit, which was

som etim e af

ter h is altercation with Shelby and Shields. Then, the State was a llowed to crossexam ine Curry in general t erm s about his own prior disciplinary violations. A s we have just discussed, there was a perm issible purpose f or the State’s questions, a n d there was nothing unf air or unequal about the trial judge’s rulings. ¶13. Nor was t he trial judge’s r uling a n abuse o f discretion under Rule 403. E v id en ce th at is a d m issib le u n d e r R u le 4 0 4 m u st b e “f iltered th ro u g h R u le 4 0 3 .” G reen , 8 9 S o . 3 d at 5 4 9 (¶1 5 )

. H o w ev er, “‘R u le 4 0 3 ’s sco p e i s n arro w ,’ as ‘it is a n ex trao r d in ary m easu re t h at sh o u ld b e u sed v ery sp arin g ly

. ’” O w en s v. K elly , 1 9 1 S o . 3 d 7 3 8 , 7 4 5 (¶2 3 ) (M iss. C t. A p p . 2 0 1 5 ) ( q u o tin g U

n ited S t a tes v. F ield s , 4 8 3 F .3 d 3 1 3 , 3 5 4 ( 5 th C i r. 2 0 0 7 )). R elev an t

ev id e n c e sh o u l d n o t b e ex c lu d ed u n d er R u le 4 0 3 u n less its “p ro b ativ e v alu e is s u b sta n tia lly

o u tw eig h e d b y th e d an g er o f u n f air p rej u d ice.” M .R .E

. 4 0 3 (em p h a sis ad d ed ). “ E v en t h en ,

ex clu sio n is p erm issiv e . . . , n o t m an d ato ry . T h a t d ecisio n i s co m m itted t o th e b ro ad d iscretio n o f th e trial j u d g e, an d o u r stan d ard o f rev iew is h i g h l y d ef eren tial.” O w en s , 1 9 1
S o . 3 d at 7 4 5 (¶2 3 ). ¶14. H e re, C u r

ry ’s p r io r d i scip lin ary v io latio n s w ere relev an t an d p r o b a tiv e w ith resp ect
to h is claim th at h e a cted in self -d ef en se an d o u t o f f

ear, a n d an y “u n f

air p rej u d ice” w as

m in im al. T h e j u ry a lread y k n ew th at C u rry w as a “lo ck d o w n o f

f en d er,” w h i ch m ean t t h at

6h e h ad p r io r d iscip lin ary v io latio n s. T h e re w as n o o b j ectio n to th is testim o n y , w h ich w as

n ecessary b ack g ro u n d to t h e a l t e r c a t i o n f o r w h ich C u r

ry w a s o n t rial. It is u n lik ely t h at C u rry su f f ered an y sig n if

ican t m arg in al p rej u d ic e w h e n th e j u ry learn ed o f th e g en eral n atu re

o f th o se v io latio n s— certain l y n o t en o u g h “u n f air p rej u d ice” to su b stan tially o u tw eig h th e
p ro b ativ e v alu e o f th at ev id en ce. A cco rd in g ly , th e trial j u d g e d i d n o t ab u se h is d iscretio n b y p e rm ittin g cro s s-ex am in atio n o n th e su b j ect. ¶15. Finally , C urry m akes a related argum ent that t he tr i a l j u d g e f ailed to com

ply with Mississippi Rule o f Evidence 105 because he did not give a lim iting instruction concerning the disciplinary violations. As am ended e f f ective July 1, 2015, 2 Rule 105 provides that “[ i]f the court adm its evidence that is adm issible

. . . f or a purpose—but not

. . . f or another
p u rpose—the court, unless expressly waived or rebutted, shall restrict the evidence t o i t s
proper scope, contem

poraneously instruct the jury accordingly , and give a written i nstruction if requested.” 3 However, even assum i ng that t he trial judge erred by not of f e ring a lim iting instruction, the error was harm less. ¶16. To begin with, even as am e nded, Rule 1 05 only r equires the judge to of f e r a lim iting instruction, which the d ef endant is f

ree to “ w aive[ ].” M.R.E. 105. The Suprem e Court has
recog n i z e d o n a num

ber of occasions t hat the def endant m ay not want s uch an i nstruction because it m ay actually “f ocus the jury ’s attention” on the potentially prejudicial testim ony .

2 C u rry w as tried o n A u g u st 1 7 , 2 0 1 5

. 3 P r i o r to Ju ly 1 , 2 0 1 5 , R u le 1 0 5 p ro v id e d th at su ch a n in stru ctio n sh o u ld b e g iv en o n ly “u p o n req u est,” so th e b u rd en w a s o n th e d ef en d an t to req u est a l im itin g in stru ctio n if h e d esired o n e. S

e e T a te v. S ta t e , 9 1 2 S o . 2 d 9 1 9 , 9 2 8 (¶2 8 ) (M iss. 2 0 0 5 ).

7T

a te , 912 So. 2d at 928 (¶28) ( quoting Brown v. State , 890 S o. 2 d 901, 913 ( ¶35) (Mis s . 2004)). Thus, Curry ’s claim o n appeal that he was p rejudiced because such an i nstruction

was not given is highly s peculative. Curry ’s attorney p resum ably knew t h a t s u c h a n instruction w as available upon request, but h e did not ask f or it. Under the circum stances,

we c a n n ot say that the absence of a l im iting i nstruction d eprived Curry o f a f air trial. See Robinson v. State , 940 So. 2d 2 35, 239 (¶11) (Miss. 2006) (holding that the e rroneous denial of a lim iting instruction is harm less error unless it deprives the def endant of a f air trial).
II. Prosecutorial Misconduct and Ineffective Assistance of Counsel ¶17. C u r r y a l so argues that rem arks m ade by the State during closing argum ents w e r e unf airly prejudicial a nd s o inf lam m atory as to af

f ect his right t o a f

air trial. He f

urther claim s that his c ounsel’s f

a ilure to object to these rem arks and other alleged f a i lures rose to the level of inef f ective assistance of c ounsel. Curry claim s that the cum ulative ef f ect of these errors resulted i n an u n f

air trial and r equires a new trial. For the r easons that f ollow, we disagree.
A. Alleged Prosecutorial Misconduct ¶18. Though attorney s are generally allowed a w ide l a t i t u d e d u r i n g c l o s i n g r em arks, prosecutors cannot “use tactics which are inf lam m atory , highly pre

j udicial, or reasonably calculated to unduly inf

luence the jury .” S

heppard v. S

tate , 777 So. 2d 659, 661 (¶7) (Miss. 2000). However, b e cause t here w as no contem poraneous objection by Curry , we review the
State’s rem arks only to determ ine if t hey were “so inf lam m a tory

that the trial court should have objected on [ its] own m o tion.” Dunaway v. State , 551 So. 2d 162, 164 (Miss. 1989). ¶19. Curry f

irst com plains about the m anner in which the prosecutor ref e rred t o his prior

8disciplinary violations. In closing, the State argued: And, quite f

rankly , there com es a point in tim e where w hat y ou’ve done in the past does m a tter and it does count. And y ou don’t get t o m ake lewd gestures to o f f icers. You don’t get to throw things on of f icers. You d o n ’ t g e t to tell of f icers that y ou’re going to hurt them and then com e into court and pitch up like a choirboy

and have every

body expect to believe y ou. Yo u don’t get to s pend y our lif e com m i tting f

elonies and breaking the rules and f olding up y our arm s and say ing “You can’t touch m e ” and then com e up here and say

“I am worthy of credibility .” . . . These are the f

acts and this is t h e e v i d e nce, and the only issue f or y ou to go back there and decide is whether y ou believe this Def endant acted i n necessary and proper self

def ense. And I subm i t to y ou that when y ou couple the attitude and the rule violations and the threats and every thing there t hat it’s not r easonable to b e l i e v e t h at a m an wit h a torn rotator cuf f [ (Shields)] and a 50-y ear-old wom an [ (Shelby )] decided to go take on 40 inm ates. That’s just not reasonable.
He wasn’t act i n g in n e cessary self def ense . . . . He was just f i ghting, just lashing out, just acting out; f rankly , just like he has a history of doing it. ¶20. W e conclude that the prosecuto r ’ s c o mme n t s were within the bounds of legitim ate
argum ent. A s discussed above, the prosecutor’s cross-e x a m ination of Curry regarding his prior disciplinary v i olations was perm issible f or the purpose of rebutting Curry ’s claim that he acted out of “f

ear” of the g u ards. This evi d e n c e certainly went to the “credibility ” of Curry ’s claim

. In any event, the prosecutor’s com m e nts were n ot so “inf lam m atory ” that the trial judge was obligated to cut of f the argum ent sua sponte. ¶21. Curry a l s o claim s that he was unf airly prejudiced by the f

ollowing argum ent by

the prosecutor: The State of M ississippi is not going to parade in 39 violent, lockdown inm ates through a civilized courtroom where they

can throw things on people, where

9they can m ake lewd gestures, where they can m ake threats.

. . . . And y o u have n o evidence [ of self -def ense] other than the word o f a two-tim e convicted f

elon at a ge 2 3 who c an’t even conf o rm his behavior to the point they have to lock him

down. ¶22. Curry d id not m ake a contem poraneous objection to this argum ent either, but he now claim s t hat the prosecutor’s statem ents am ounted to an im perm issible com m ent on his f ailure

to c all witnesses (the other inm ates in the hallway ) who were “ equally available to both sides.” R andall v. State , 806 So. 2 d 185, 210-11 (¶¶56-58) (Miss. 2001). However, Curry neglects to m ention that his own attorney raised t he issue f i rst by arguing that t he State’s f ailure t o p r o d u c e these sam e witnesses at t rial called into question the State’s case and created r easonable doubt. This was not a proper subject f or argum e n t by Curry ’ s attorney

. See i d. G iven that Curry ’s attorney m ade the a rgum ent f irst, w e cannot say that the State’s responsive argum ent was so inf lam m atory a n d prejudicial as t o am ount to p lain error, even

assum ing that a tim ely objection m ight h ave been well taken. See Blue v. State , 674 So. 2d 1184, 1207 (Miss. 1 996) (concluding that def ense counsel’s own closing a r gum ent opened the door to State’s responsive argum ent c oncerning f acts not in evidence), (overruled on other grounds by

King v. State, 784 So. 2d 884, 890 (¶23) (Miss. 2001).
B. Ineffective Assistance of Counsel ¶23. C u r r y a l s o c l aim s that h e received i nef f ective assistance of counsel b e c a u s e h i s attorney f ailed to object during t he State’s closing argum ent and f ailed t o request a lim iting instruction. In o rder to establish a constitutional claim of inef f ective assistance o f counsel,

1 0a def

endant m ust show both ( 1 ) t hat “counsel’s perf orm ance was def

icient”—i.e., “that counsel m ade errors so serious t hat counsel w as not f unctioning as the ‘ counsel’ guaranteed the def endant by the Sixth A m endm ent”— a nd (2) that he suf f ered prejudice as a result—i.e., “that counsel’s errors were so serious as to deprive the def endant o f a f

air trial, a t rial whose result is reliable.” Strickland v. W ashington , 466 U.S. 668, 687 (1984). C urry f ails to satisf

y either prong of

this test. ¶24. W e presum e that counsel’s decision not to request a lim iting instruction was within the am bit of trial strategy

. S

ee, e.g. , Herrington v. State , 1 02 So. 3d 1241, 1246 ( ¶18) (Miss.
Ct. App

. 2 012). This presum ption is appropriate given that, as discussed above, such an instruction h as the p o tential t o do the def endant m ore harm than good. S ee id. W e also generally assum e that counsel’s f ailure to object during closing argum ent ref l e c t s trial strategy , not inef

f e ctive assistance. See, e.g. , W hite v
. State , 847 So. 2d 886, 891 ( ¶19) (Miss.
Ct. A pp. 2002). Moreover, f or the reasons already d iscussed in the precedi n g s e ction, nothing in the State’s closing a rgum ent was so prejudicial and “serious as to deprive [ Curry ] of a f air t r i a l

. ” S

trickland , 466 U.S. at 6 87. Accordingly , Curry ’s inef f ective assistance claim is without m erit.
CONCLUSION ¶25. There was no reversible e rror in connection w ith either the State’s cross-exam ination of Curry or the State’s closing argum ent. Accordingly , we af f irm

. ¶26. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT C O URT OF CONVICTION OF T WO COUNTS O F S I M PLE ASSAULT ON A LAW ENFORCEMENT OFFICER AND SENTENCES A S A HABITUAL O FFENDER OF FIVE YEARS ON EACH COUNT, WITH THE SENTENCES TO RUN

1 1CONSECUTIVELY, IS A FFIRMED. ALL COSTS OF T HIS APPEAL ARE

ASSESSED TO RANKIN COUNTY. LEE, C.J . , G R I FFIS, P.J., BARNES, ISHEE, CARLTON, F AIR AND GREENLEE, JJ., CONCUR. I R V I N G , P . J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., C O NCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

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