        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2015-KA-01288-COA

JEMARCUS CURRY A/K/A JERMARCUS                                         APPELLANT
CURRY

v.

STATE OF MISSISSIPPI                                                     APPELLEE

DATE OF JUDGMENT:                        08/24/2015
TRIAL JUDGE:                             HON. JOHN HUEY EMFINGER
COURT FROM WHICH 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 TWO 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, WITH
                                         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.   Jemarcus Curry, an inmate at the Central Mississippi Correctional Facility (CMCF),

was convicted of assaulting two correctional officers. Curry argues that his convictions
should be reversed because the trial judge erroneously permitted the prosecutor to cross-

examine him about his prior disciplinary violations and failed to give a limiting instruction.

Curry also argues that he is entitled to a new trial because of improper arguments by the

prosecutor and ineffective assistance of counsel. We find no reversible error and affirm.

                         FACTS AND PROCEDURAL HISTORY

¶2.    On June 20, 2014, correctional officer Georgia Shelby1 observed thirty-five to forty

inmates gathered in a hallway at CMCF. The inmates were preventing a CMCF employee

from passing through the hallway. Shelby testified at trial that the inmates were designated

as “lockdown offenders” due to prior disciplinary violations. Protocol required lockdown

offenders to stand against the wall and face the wall, but these offenders were milling about

in the hallway. Shelby asked another correctional officer, Leon Shields, for help clearing the

hallway and restoring order. When Shelby and Shields reached the group, Shelby ordered

them to face the wall, and all of the inmates except for Curry and one other complied. Shelby

then repeated her order, but Curry continued to ignore her.

¶3.    Shelby testified that she then “touched” Curry’s shoulder and said, “You need to step

out of line.” In response, Curry told Shelby not to touch him and to keep her “F-ing hands

to [her]self.” Before Shelby could say anything else, Curry punched her in the face five or

six times and then began kicking her. Shelby testified that Curry broke her glasses and that

she suffered a contusion to her forehead and additional bruising.

¶4.    Shields similarly testified that Curry ignored Shelby’s orders to face the wall. Shields



       1
           Shelby was a captain at the time of the assault but is now deputy warden at CMCF.

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testified that Shelby then told Curry to step out of line, “grabbed” his shirt, and told him to

“step over here.” Curry said, “Don’t touch me.” Curry then swung and punched Shelby in

the face. Shields then struggled with Curry and, with the help of other officers, eventually

subdued him. During the struggle, Curry hit Shields in the eye.

¶5.    Curry agreed that there was “a bunch of screaming” and “a lot of chaos in the hall”

just before the incident. He also admitted that he was not facing the wall, as required by

protocol, when Shelby approached him. Curry claimed that Shelby screamed at him to “turn

around,” that he complied with her order, and that she “grabbed” him simply because he did

not turn around “fast enough.” Curry testified that he “snatched away from [Shelby]” and

that his “exact words” to her were, “Please don’t touch me.” Curry claimed that Shelby then

grabbed him again and began hitting him. He testified that he tried to defend himself, but

Shields and other officers soon began hitting and kicking him too, so he just “folded up and

tried to protect [him]self.” Curry testified that officers continued hitting and kicking him.

He claimed that even after he was taken to the prison medical unit, officers began assaulting

him again as soon as the nurse left the room.

¶6.    Curry was indicted in the Rankin County Circuit Court on two counts of simple

assault on a law enforcement officer (one count each for Shelby and Shields). The jury found

him guilty on both counts, and the trial court sentenced him as a habitual offender to five

years in the custody of the Mississippi Department of Corrections on each count, with the

sentences to run consecutively. Curry filed a timely notice of appeal.

                                       DISCUSSION



                                              3
¶7.    Curry raises two issues on appeal, each of which involves multiple sub-issues. First,

he claims that the trial court erred by allowing the State to question him about his prior

disciplinary violations and by not instructing the jury as to the limited purpose for which it

could consider the violations. Second, he argues that his trial was rendered unfair by parts

of the prosecutor’s closing argument and alleged ineffective assistance of counsel. We find

no reversible error and affirm.

       I.     Curry’s Prior Disciplinary Violations

¶8.    The trial judge permitted the State to cross-examine Curry about the fact that he had

five prior disciplinary violations for making lewd gestures at correctional officers,

threatening officers, or throwing things on officers. No additional detail was brought out

regarding these prior incidents. Curry argued that this cross-examination violated Mississippi

Rules of Evidence 403 and 404(a). We disagree.

¶9.    On direct examination, Curry testified that he acted in self-defense because he “was

scared” because he had “been in a lot of situation[s] where [he had] seen [guards] jump on

inmates.” Curry then testified that he was assaulted again after he was taken to the medical

unit, and he started to testify about “several [other alleged] incidents” involving the same

group of officers who allegedly assaulted him in the medical unit. This alleged incident, of

course, occurred at a different place and time than the subject of the trial—Curry’s altercation

with Shelby and Shields. The State objected to testimony about “prior incidents unless [it

was also] allowed to go into prior incidents.” The trial judge sustained the objection and

instructed Curry to “[o]nly talk about this event.” Nonetheless, Curry went on to assert,



                                               4
while still testifying on direct examination, that he was “in fear” of the guards because he had

“seen it happen plenty of times” and “[i]t never ends.” Once Curry’s direct examination

concluded, the State argued that his testimony had opened the door to cross-examination

about his prior disciplinary violations. The trial judge agreed with the State that Curry had

“raised the issue.”

¶10.   The Mississippi Supreme Court has explained that

       evidence relevant to a noncharacter purpose is admissible under [Rule] 404(b)
       even if it also reflects on a defendant’s character. Evidence is inadmissible
       under this rule only if it is relevant solely to the defendant’s character or
       criminal propensity. Stated another way, the rule is not exclusionary, but is
       inclusionary, because it provides a nonexhaustive list of reasons to properly
       admit evidence that may nonetheless also give rise to an inference about the
       defendant’s character. Any undue prejudice that arises because the evidence
       also unavoidably reflects the defendant’s character is then considered under
       the [Rule] 403 balancing test . . . .

Green v. State, 89 So. 3d 543, 551 (¶18) (Miss. 2012) (brackets omitted) (emphasis in

original) (quoting People v. Mardlin, 790 N.W.2d 607, 612 (Mich. 2010)).

¶11.   In the present case, Curry testified on direct that he was “scared” and “in fear” of the

guards because he claimed that he had seen them assault inmates many times in the past. The

fact that Curry had been cited several times previously for making lewd gestures at the

guards, threatening them, and even throwing things at them tends to rebut his claim that he

was scared and in fear of being assaulted by them. Thus, the prior incidents were relevant

and admissible for a permissible purpose under Rule 404(b).

¶12.   We also reject any suggestion that Curry was a victim of unequal treatment because

the trial judge limited his testimony regarding prior alleged assaults by guards but then



                                               5
permitted cross-examination regarding his prior disciplinary violations. Curry was allowed

to testify on direct that he was in fear of Shelby because he had witnessed prior assaults by

guards. The judge only precluded him from testifying about prior alleged incidents involving

a different group of officers who allegedly assaulted him in the medical unit, which was

sometime after his altercation with Shelby and Shields. Then, the State was allowed to cross-

examine Curry in general terms about his own prior disciplinary violations. As we have just

discussed, there was a permissible purpose for the State’s questions, and there was nothing

unfair or unequal about the trial judge’s rulings.

¶13.   Nor was the trial judge’s ruling an abuse of discretion under Rule 403. Evidence that

is admissible under Rule 404 must be “filtered through Rule 403.” Green, 89 So. 3d at 549

(¶15). However, “‘Rule 403’s scope is narrow,’ as ‘it is an extraordinary measure that

should be used very sparingly.’” Owens v. Kelly, 191 So. 3d 738, 745 (¶23) (Miss. Ct. App.

2015) (quoting United States v. Fields, 483 F.3d 313, 354 (5th Cir. 2007)). Relevant

evidence should not be excluded under Rule 403 unless its “probative value is substantially

outweighed by the danger of unfair prejudice.” M.R.E. 403 (emphasis added). “Even then,

exclusion is permissive . . . , not mandatory. That decision is committed to the broad

discretion of the trial judge, and our standard of review is highly deferential.” Owens, 191

So. 3d at 745 (¶23).

¶14.   Here, Curry’s prior disciplinary violations were relevant and probative with respect

to his claim that he acted in self-defense and out of fear, and any “unfair prejudice” was

minimal. The jury already knew that Curry was a “lockdown offender,” which meant that



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he had prior disciplinary violations. There was no objection to this testimony, which was

necessary background to the altercation for which Curry was on trial. It is unlikely that

Curry suffered any significant marginal prejudice when the jury learned of the general nature

of those violations—certainly not enough “unfair prejudice” to substantially outweigh the

probative value of that evidence. Accordingly, the trial judge did not abuse his discretion

by permitting cross-examination on the subject.

¶15.   Finally, Curry makes a related argument that the trial judge failed to comply with

Mississippi Rule of Evidence 105 because he did not give a limiting instruction concerning

the disciplinary violations. As amended effective July 1, 2015,2 Rule 105 provides that “[i]f

the court admits evidence that is admissible . . . for a purpose—but not . . . for another

purpose—the court, unless expressly waived or rebutted, shall restrict the evidence to its

proper scope, contemporaneously instruct the jury accordingly, and give a written instruction

if requested.”3 However, even assuming that the trial judge erred by not offering a limiting

instruction, the error was harmless.

¶16.   To begin with, even as amended, Rule 105 only requires the judge to offer a limiting

instruction, which the defendant is free to “waive[].” M.R.E. 105. The Supreme Court has

recognized on a number of occasions that the defendant may not want such an instruction

because it may actually “focus the jury’s attention” on the potentially prejudicial testimony.



       2
           Curry was tried on August 17, 2015.
       3
        Prior to July 1, 2015, Rule 105 provided that such an instruction should be given
only “upon request,” so the burden was on the defendant to request a limiting instruction if
he desired one. See Tate v. State, 912 So. 2d 919, 928 (¶28) (Miss. 2005).

                                              7
Tate, 912 So. 2d at 928 (¶28) (quoting Brown v. State, 890 So. 2d 901, 913 (¶35) (Miss.

2004)). Thus, Curry’s claim on appeal that he was prejudiced because such an instruction

was not given is highly speculative. Curry’s attorney presumably knew that such an

instruction was available upon request, but he did not ask for it. Under the circumstances,

we cannot say that the absence of a limiting instruction deprived Curry of a fair trial. See

Robinson v. State, 940 So. 2d 235, 239 (¶11) (Miss. 2006) (holding that the erroneous denial

of a limiting instruction is harmless error unless it deprives the defendant of a fair trial).

       II.     Prosecutorial Misconduct and Ineffective Assistance of Counsel

¶17.   Curry also argues that remarks made by the State during closing arguments were

unfairly prejudicial and so inflammatory as to affect his right to a fair trial. He further claims

that his counsel’s failure to object to these remarks and other alleged failures rose to the level

of ineffective assistance of counsel. Curry claims that the cumulative effect of these errors

resulted in an unfair trial and requires a new trial. For the reasons that follow, we disagree.

               A.     Alleged Prosecutorial Misconduct

¶18.   Though attorneys are generally allowed a wide latitude during closing remarks,

prosecutors cannot “use tactics which are inflammatory, highly prejudicial, or reasonably

calculated to unduly influence the jury.” Sheppard v. State, 777 So. 2d 659, 661 (¶7) (Miss.

2000). However, because there was no contemporaneous objection by Curry, we review the

State’s remarks only to determine if they were “so inflammatory that the trial court should

have objected on [its] own motion.” Dunaway v. State, 551 So. 2d 162, 164 (Miss. 1989).

¶19.   Curry first complains about the manner in which the prosecutor referred to his prior



                                                8
disciplinary violations. In closing, the State argued:

       And, quite frankly, there comes a point in time where what you’ve done in the
       past does matter and it does count. And you don’t get to make lewd gestures
       to officers. You don’t get to throw things on officers. You don’t get to tell
       officers that you’re going to hurt them and then come into court and pitch up
       like a choirboy and have everybody expect to believe you.

       You don’t get to spend your life committing felonies and breaking the rules
       and folding up your arms and saying “You can’t touch me” and then come up
       here and say “I am worthy of credibility.” . . .

       These are the facts and this is the evidence, and the only issue for you to go
       back there and decide is whether you believe this Defendant acted in necessary
       and proper self defense.

       And I submit to you that when you couple the attitude and the rule violations
       and the threats and everything there that it’s not reasonable to believe that a
       man with a torn rotator cuff [(Shields)] and a 50-year-old woman [(Shelby)]
       decided to go take on 40 inmates. That’s just not reasonable.

       He wasn’t acting in necessary self defense . . . . He was just fighting, just
       lashing out, just acting out; frankly, just like he has a history of doing it.

¶20.   We conclude that the prosecutor’s comments were within the bounds of legitimate

argument. As discussed above, the prosecutor’s cross-examination of Curry regarding his

prior disciplinary violations was permissible for the purpose of rebutting Curry’s claim that

he acted out of “fear” of the guards. This evidence certainly went to the “credibility” of

Curry’s claim. In any event, the prosecutor’s comments were not so “inflammatory” that the

trial judge was obligated to cut off the argument sua sponte.

¶21.   Curry also claims that he was unfairly prejudiced by the following argument by the

prosecutor:

       The State of Mississippi is not going to parade in 39 violent, lockdown inmates
       through a civilized courtroom where they can throw things on people, where

                                              9
       they can make lewd gestures, where they can make threats.

       ....

       And you have no evidence [of self-defense] other than the word of a two-time
       convicted felon at age 23 who can’t even conform his behavior to the point
       they have to lock him down.

¶22.   Curry did not make a contemporaneous objection to this argument either, but he now

claims that the prosecutor’s statements amounted to an impermissible comment on his failure

to call witnesses (the other inmates in the hallway) who were “equally available to both

sides.” Randall v. State, 806 So. 2d 185, 210-11 (¶¶56-58) (Miss. 2001). However, Curry

neglects to mention that his own attorney raised the issue first by arguing that the State’s

failure to produce these same witnesses at trial called into question the State’s case and

created reasonable doubt. This was not a proper subject for argument by Curry’s attorney.

See id. Given that Curry’s attorney made the argument first, we cannot say that the State’s

responsive argument was so inflammatory and prejudicial as to amount to plain error, even

assuming that a timely objection might have been well taken. See Blue v. State, 674 So. 2d

1184, 1207 (Miss. 1996) (concluding that defense counsel’s own closing argument opened

the door to State’s responsive argument concerning facts 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.   Curry also claims that he received ineffective assistance of counsel because his

attorney failed to object during the State’s closing argument and failed to request a limiting

instruction. In order to establish a constitutional claim of ineffective assistance of counsel,



                                              10
a defendant must show both (1) that “counsel’s performance was deficient”—i.e., “that

counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed

the defendant by the Sixth Amendment”—and (2) that he suffered prejudice as a result—i.e.,

“that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Curry fails to satisfy

either prong of this test.

¶24.   We presume that counsel’s decision not to request a limiting instruction was within

the ambit of trial strategy. See, e.g., Herrington v. State, 102 So. 3d 1241, 1246 (¶18) (Miss.

Ct. App. 2012). This presumption is appropriate given that, as discussed above, such an

instruction has the potential to do the defendant more harm than good. See id. We also

generally assume that counsel’s failure to object during closing argument reflects trial

strategy, not ineffective assistance. See, e.g., White v. State, 847 So. 2d 886, 891 (¶19) (Miss.

Ct. App. 2002). Moreover, for the reasons already discussed in the preceding section,

nothing in the State’s closing argument was so prejudicial and “serious as to deprive [Curry]

of a fair trial.” Strickland, 466 U.S. at 687. Accordingly, Curry’s ineffective assistance

claim is without merit.

                                       CONCLUSION

¶25.   There was no reversible error in connection with either the State’s cross-examination

of Curry or the State’s closing argument. Accordingly, we affirm.

¶26. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF
CONVICTION OF TWO COUNTS OF SIMPLE ASSAULT ON A LAW
ENFORCEMENT OFFICER AND SENTENCES AS A HABITUAL OFFENDER OF
FIVE YEARS ON EACH COUNT, WITH THE SENTENCES TO RUN

                                               11
CONSECUTIVELY, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO RANKIN COUNTY.

    LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR AND
GREENLEE, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN
PART WITHOUT SEPARATE WRITTEN OPINION.




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