WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT,
PARISH OF ORLEANS
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.
AND PROCEDURAL HISTORY
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. At trial, the state presented the
testimony of seven witnesses, and the defense called 13
witnesses, including defendant. 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.
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. 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.
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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
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.
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).
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.
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.
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).
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. This was error in several respects.
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."
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