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State v. Curley

Supreme Court of Louisiana

June 27, 2018




         This case presents the question of whether the defendant was deprived of effective assistance of counsel where trial counsel failed to investigate and present a cogent defense of "battered woman's syndrome" ("BWS"), including failing to investigate the benefits of expert testimony concerning BWS. We hold that the defendant was deprived of effective assistance of counsel in this case, given the documented evidence of repeated abuse the victim perpetrated upon the defendant before his death. We therefore reverse the court of appeal, vacate the defendant's conviction and sentence, and remand to the trial court for further proceedings consistent with this opinion.


         Renaldo and Catina Curley, married for approximately nine and a half years, lived in a New Orleans residence with their children: Renaldo Boykin, Renaldo Curley's son from a prior relationship; Develon and Brittany Espadron, Catina Curley's children from a prior relationship; and April and Devon Curley, the couple's biological children.[1] At trial, the state presented the testimony of seven witnesses, and the defense called 13 witnesses, including defendant.[2] The evidence revealed that, on March 30, 2005, the evening of the shooting, the victim and defendant were living apart in a temporary separation. Defendant had been living with her mother for several days while the victim remained in the family's home with their children. That evening, the victim was at the home with four of the children, defendant's cousin, and a neighbor. Defendant testified that she called her house to check on her children, and spoke on the phone with one of her children, Brittany. After hearing from Brittany about the presence of guests, she returned home, entered, and ordered the cousin and neighbor to leave.

         After the cousin and neighbor left, defendant proceeded upstairs to retrieve clothes from her second floor bedroom. The victim followed her upstairs and subjected her to verbal and physical violence, including arguing and cursing at her, throwing a soda can at her, and threatening additional violence.[3] At some point, the victim left the bedroom and returned to the downstairs living room. Soon after, defendant also went downstairs, but before doing so, she armed herself with a handgun the victim kept under their mattress. She testified that she needed the weapon to protect herself. The exit door was located somewhere near the foot of the stairwell, but defendant had apparently placed her car keys on a table in the living room when she entered the home. There are varying accounts of what happened next, but there is no dispute that the weapon in defendant's hand ultimately discharged, sending a single bullet into the victim's chest and killing him.

         The State indicted Curley for second degree murder on August 4, 2005. La. R.S. 14:30.1(A)(1). At her arraignment, she pleaded not guilty, but subsequently withdrew her former plea and entered a dual plea of not guilty and not guilty by reason of insanity (NGBRI). As a result of Hurricane Katrina, Curley's trial was delayed. In February 2007, two days before trial was to commence, Curley's new post-Katrina counsel, John Fuller, appeared in court with Curley present, withdrew the dual plea, and entered a plea of not guilty. Despite extensive testimonial and documentary evidence regarding abuse the victim perpetrated upon defendant, trial counsel did not educate himself on the method by which BWS evidence should be introduced at trial, nor did he consult with an expert or seek to introduce expert testimony regarding BWS and its effects. Instead, trial counsel presented alternative theories of justification and accidental discharge.

         Though testimony regarding the facts of what transpired on the night of the shooting was disputed, there was no such confusion with respect to the physical abuse the victim perpetrated upon defendant over a period of many years. The defense presented testimonial and documentary evidence of multiple prior instances of physical abuse. Among other testimony, New Orleans Police Department Detective Scott Melia testified to at least six police reports detailing domestic violence dating back to 1995 involving defendant and the victim and, in one instance, one of the children.

         Defense counsel called Brittany Espadron, defendant's biological daughter and the victim's stepdaughter. She testified that she could not count how many times she had seen the victim hit defendant and Renaldo Boykin. Brittany also indicated that the victim had beaten her and her little brother Devon in the past and had also choked her. Devon Curley, the biological son of defendant and the victim, who was "nine or ten years old" when the shooting occurred, testified that he had seen and heard about the victim hitting both defendant and Renaldo Boykin in the past. Further, the victim had hit him and "slammed" him "a lot." Devon also used the phrase "a lot" when he was asked how often the victim beat defendant.

         Herman Benton, defendant's former supervisor at Walmart, where defendant worked from approximately 2002-2005, testified that defendant called in "numerous times" to say she could not come to work. Benton recalled one particular incident when he required defendant to come in to prove why she could not be at work that day. When she showed up, defendant had what Benton described as "trauma" to her entire facial area; her forehead, eyes, and cheeks were all swollen. Defendant described to him that she had been involved in a physical altercation with her husband. Without detailing them specifically, Benton further testified that he had observed defendant with other facial injuries.

         Finally, defendant herself testified and detailed the abuse she suffered at the hands of the victim. She described that the victim had broken her nose in 2002 or 2003 while she was working at Walmart. The broken nose caused bruises to both sides of her face, blackened her eyes, and caused them to swell shut. She also described that the victim once threw her to the ground and kicked her in the shoulder, dislocating it. She stated that the victim would not let her report or seek treatment for this injury, blocking the door and pulling the phone out of the wall, and she still suffered from shoulder problems at the time of trial. Defendant further described a particular incident where the victim allegedly tried to push her from a moving car.[4]

         Defendant testified that she could not always call the police when the victim abused her because the victim would sometimes break the phone or keep her from leaving the house. Therefore, she stated that the police reports did not tell of every time the victim abused her. Defendant indicated that she stayed with the victim because she loved him and had a desire to make their marriage work despite her belief that he had a "sickness." She indicated that she had tried to leave in the past but always ended up returning, though the beatings were beginning to become "overwhelming." While defendant admitted that she sometimes fought back to defend herself from the victim, she estimated that he was the aggressor 95% of the time.

         Only a single witness testified that the victim never abused defendant: Renaldo Boykin, the victim's biological son and defendant's stepson, who was 12 years old at the time of the shooting. Despite the testimony set forth above to the contrary, Boykin stated that he had never witnessed nor known the victim to hit defendant.

         After a multi-day trial, an Orleans Parish jury returned a verdict of guilty as charged, and the trial court sentenced defendant to life imprisonment at hard labor "without benefit." The court of appeal affirmed the conviction and sentence. State v. Curley, 08-1157 (La.App. 4 Cir. 5/12/10), 2010 WL 8966072, writ denied, 10-1674 (La. 1/28/11), 56 So.3d 967.

         Defendant filed a timely pro-se application for post-conviction relief, followed by a counseled supplemental memorandum alleging ineffective assistance of counsel for, inter alia, (i) withdrawing the NGBRI plea without first having defendant psychologically evaluated, and (ii) failing to educate the jury on the effects of domestic violence, particularly BWS. The district court held a hearing where defendant's trial counsel, John Fuller, testified.

         Most of the testimony at the post-conviction hearing related to Fuller's withdrawal of defendant's NGBRI plea. Fuller admitted that he did not consult with defendant before withdrawing the NGBRI plea. He testified that he withdrew the NGBRI plea based on his belief that an insanity defense was suggestive of a "paranoid schizophrenic or whatever." He stated that he did not "take into account relative to a not guilty by reason of insanity [plea] the opportunity to present a battered spouse expert." He further testified that he was unaware of prohibitions of introducing certain types of psychological evidence absent a NGBRI plea, and thought that the NGBRI plea was "inappropriate for a self-defense defense." Related to the self-defense claim he ultimately pursued, Fuller testified that he did not know that he could introduce expert testimony concerning BWS under a "not guilty" plea at all. Putting aside funding issues, he confessed to "ignorance" related to a BWS expert. He also believed a self-defense claim based on a prior history of abuse was "obvious" and that, in retrospect, "I should have talked to or at least conferred with a battered spouse expert." He stated that the "twelve years worth of abuse" that defendant suffered was "probably the worst [he'd] ever seen," so he found no reason at the time to consult an expert.

         The trial judge, who also presided over Curley's original trial, granted relief and ordered a new trial, reasoning that BWS evidence is admissible to refute specific intent only when raised under a NGBRI plea. Citing Strickland v. Washington, 466 U.S. 668 (1984), the court held that defendant was deprived of effective assistance of counsel in violation of her Sixth Amendment right by withdrawing the dual plea and failing to present expert testimony concerning BWS.

         The court of appeal reversed and reinstated defendant's conviction and sentence. It found Fuller's decision to withdraw the NGBRI plea to be a strategic decision. The court also found that defendant failed to demonstrate prejudice under Strickland by making a showing that "even had counsel not withdrawn the plea and had hired an expert in battered wife syndrome, that expert would have found that respondent suffered from that syndrome to the extent that it negated her ability to distinguish right from wrong." State v. Curley, 16-0604, p. 3 (La.App. 4 Cir. 8/12/16) (unpublished). This Court thereafter granted defendant's writ application. State v. Curley, 16-KP-1708 (La. 2/23/18), 236 So.3d 1257.


         "The Sixth Amendment, applicable to the States by the terms of the Fourteenth Amendment, provides that the accused shall have the assistance of counsel in all criminal prosecutions." Missouri v. Frye, 566 U.S. 134, 138 (2012). See also State v. Thomas, 12-1410, p.5 (La. 9/4/13), 124 So.3d 1049, 1053. The United States Supreme Court has long recognized that the right to counsel is the right to the "effective assistance of counsel." Frye, 566 U.S. at 138. Claims of ineffective assistance of counsel are generally governed by the standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), adopted by this Court in State v. Washington, 491 So.2d 1337 (La. 1986).

         To prevail on a claim of ineffective assistance, a defendant must first show that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error has no effect on the judgment." Id. at 691. See also Buck v. Davis, __U.S.__, 137 S.Ct. 759, 775-77 (2017) (explaining two prongs of Strickland). To satisfy the second prong of Strickland, a litigant must also demonstrate prejudice. "The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." Strickland, 466 U.S. at 691-92. Thus, the "defendant must [also] show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The Strickland Court further explained that in making a determination of ineffectiveness of counsel, "[i]n every case the Court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Id. at 696. See also Harrington v. Richter, 562 U.S. 86, 111-12 (2011) ("In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. Instead, Strickland asks whether it is reasonably likely the result would have been different.") (internal citations and quotation marks omitted). "[T]he likelihood of a different result must be substantial, not just conceivable." Harrington, 562 U.S. at 112.

         There is little dispute that the defendant in this case suffered a years-long course of abuse at the victim's hands. Trial counsel elected to argue self-defense predicated upon BWS, but without indicating any understanding of BWS (indeed, with a professed "ignorance" to important aspects of a BWS defense) and without undertaking any investigation at all of what expert resources might be available to him. We find that his representation, in its entirety, deprived defendant of effective assistance of counsel.


         The first Strickland consideration is whether trial counsel's failure to conduct any investigation into the proper presentation of a BWS defense in this case, specifically including both his professed "ignorance" of the defense and the failure to investigate the benefit of expert testimony specifically, constituted deficient performance. In Strickland, the Supreme Court explained:

[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

466 U.S. at 690-91 (emphasis added).

         In the present case, the court of appeal held that defendant did not meet her burden of demonstrating ineffective assistance of counsel under Strickland. The court of appeal specifically noted that defendant "failed to show that even had counsel not withdrawn the plea and had hired an expert in battered wife syndrome, that expert would have found that the respondent suffered from that syndrome to the extent that it negated her ability to distinguish right from wrong." Thus, the court of appeal ruling narrowly focused on defense counsel's withdrawal of the dual plea of not guilty and NGBRI, pointing out that Louisiana has not historically considered psychological evidence absent an insanity defense, and effectively presupposing that BWS is only relevant in the "insanity" context.[5] This was error in several respects.


         The Louisiana Code of Evidence prohibits the introduction of evidence of "a person's character or a trait of his character . . . for the purpose of proving that he acted in conformity therewith on a particular occasion." La. C.E. art. 404(A). The Code likewise prohibits the introduction of evidence of "other crimes, wrongs, or acts" in order to "prove the character of a person in order to show that he acted in conformity therewith." La. C.E. art. 404(B). However, those prohibitions are not absolute. As is relevant here, the Code provides express exceptions for the admission of evidence in circumstances where, as here, there is "a history of assaultive behavior between the victim and the accused and the accused lived in a familial or intimate relationship such as, but not limited to, the husband-wife, parent-child, or concubinage relationship." La. C.E. arts. 404(A)(2)(a), (B)(2). Though the Code does not identify the exceptions with a particular term of art, we will refer to them herein as the "domestic battery exceptions."

         La. C.E. art. 404 provides:

A. Character evidence generally. Evidence of a person's character or a trait of his character, such as a moral quality, is not admissible in a civil or criminal proceeding for the purpose of proving that he acted in conformity ...

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