from the United States District Court for the District of
Kansas (D.C. No. 2:16-CR-20089-JAR-1)
A. Nichols, Assistant Federal Public Defender (Melody
Brannon, Federal Public Defender with her on the briefs),
Topeka, Kansas, for Defendant - Appellant.
N. Capwell, Assistant United States Attorney (Stephen R.
McAllister with her on the brief), Kansas City, Kansas, for
Plaintiff - Appellee.
TYMKOVICH, Chief Judge, LUCERO, and MATHESON, Circuit Judges.
MATHESON, CIRCUIT JUDGE.
found Clifford Currie guilty of assault with intent to commit
murder. The facts are undisputed. Mr. Currie splashed
gasoline on his supervisor, lit her on fire, attempted to
stand on her neck, and attacked her with a straight razor and
scissors. On appeal, he argues prosecutorial misconduct
during closing arguments denied him a fair trial. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
Mr. Currie's Working Relationship with Lt.
Currie worked as a social services assistant at the Munson
Army Health Center ("Munson") at Fort Leavenworth,
Kansas. Lieutenant Katie Ann Blanchard, a registered nurse
with the army, supervised him.
Currie and Lt. Blanchard had a difficult working
relationship. Mr. Currie managed a program that received a
failing grade in August 2015 after an accreditation
inspection. When Lt. Blanchard criticized Mr. Currie's
organizational skills and filing practices in early January
2016, he "became very aggressive," told her to
"get the f---away," and "came after" her.
ROA, Vol. I at 526-27. When Lt. Blanchard threatened to call
a "Code Green"-used when a hostile person in the
hospital needs to be "taken down"-Mr. Currie
stopped approaching her and slammed his door shut.
Id. at 527.
Blanchard proposed that Mr. Currie receive a seven-day
suspension for his outburst. She documented Mr. Currie's
professional shortcomings and frequently complained about him
to Munson's HR department.
27, 2016, Mr. Currie sent a letter to Major Sashi Zickefoose,
his second-line supervisor, formally responding to the
proposed seven-day suspension. The letter recounted Mr.
Currie's views about Lt. Blanchard: "Each and every
day that she addresses me in her condescending tone, and her
up in my personal space/face attitude, I feel intimidated,
emotionally distraught, nervous and anxious. Because of her
continued mistreatment of me, I have had to seek professional
counseling and have had to get on medication." Supp.
ROA, Vol. II, Exh. 801 at 2. He noted that he had
"never been in trouble before" and "this 7 day
suspension would affect [his] family's financial
August 3, 2016 email to Major Zickefoose, Mr. Currie
requested a new supervisor and referenced previous
conversations with the major about Lt. Blanchard
"regarding continual berating, scolding, being spoken to
in a condescending manner, disrespected, intimidated, treated
like a subhuman, and generally threatened."
Id., Exh. 802 at 1.
August, based on Lt. Blanchard's safety concerns, Army
command decided that she should have another employee present
whenever she met with Mr. Currie, including during their
daily meetings. On August 15, 2016, Lt. Blanchard referred
Mr. Currie to the Employee Assistance Program for his
"unsatisfactory work performance," unresponsiveness
to "mentorship/guidance," and "aggressive
behavior." Supp. ROA, Vol. II, Exh. 827 at 1.
September 6, 2016, the day before the assault, Mr. Currie
sent himself an email stating, "I don't think [Lt.
Blanchard] has your best interests in mind . . . . [S]he is
vindictive enough to try to sabotage you because she is
trying to lay in wait and get the position herself."
Supp. ROA, Vol. II, Exh. 836. He warned himself that Lt.
Blanchard "will do anything necessary to prevent you
from [keeping your job]." Id. He concluded,
"Edit this before you send it out. Make sure to stay
respectful and only indicate what is true and valid."
September 7, 2016 Assault
a September 7 meeting with Mr. Currie, Lt. Blanchard
explained the mistakes she found in one of his reports. When
Lt. Blanchard asked Mr. Currie if he understood the problem,
he responded, "You, you are the problem." ROA, Vol.
I at 540. As he left her office, Mr. Currie told Lt.
Blanchard, "You need to come to my office, I need to
show you something." Id. Lt. Blanchard
testified that she believed the invitation was "very
suspicious" because Mr. Currie "usually didn't
like [her] in his space at all." Id. She
declined his invitation and warned Mr. Currie that she would
call a "Code Green" if he did not leave her office.
p.m., Lt. Blanchard and a colleague went to Mr. Currie's
office and dismissed him for the day, reminding him he could
not receive overtime pay for staying late. Lt. Blanchard
then returned to her office.
10 minutes later, Mr. Currie stepped inside Lt.
Blanchard's office. He threw gasoline at her from a water
bottle and lit her on fire. Lt. Blanchard ran to the hallway,
where her screams summoned Nurse Deanne Killian, who
attempted to pat out the flames. Mr. Currie pushed Ms.
Killian aside, tried to stab Lt. Blanchard with a straight
razor and scissors, and attempted to put his foot on her
neck. A sergeant in the hospital heard the commotion and
eventually subdued Mr. Currie.
arrived and asked witnesses about the accelerant Mr. Currie
used. A sergeant who was sitting with Mr. Currie in the other
room overheard Mr. Currie say, "It's gasoline, you
idiots." ROA, Vol. I at 619.
responded and searched Mr. Currie, finding he possessed a
book of matches. There was no evidence that Mr. Currie
smoked. A later investigation revealed a pair of scissors and
a straight razor that Ms. Killian had kicked into her office
during the incident; two burned match sticks and burnt
plastic residue in Lt. Blanchard's office; and a uniform,
blankets, and a lab coat in the hallway. A search of Mr.
Currie's office produced a double-edged razor blade, a
bottle cap that smelled like gasoline, and Mr. Currie's
cell phone. A search of Mr. Currie's home yielded a tin
containing several books of matches-the same brand as those
found in his possession.
examination of Mr. Currie's phone revealed the following
May 8, 2016 searches on Yahoo Answers or Quora:
(1) "How long would it take to die if one of your
external jugular vein[s] was slit?"
(2) "How long does it take to die after a jugular vein
has been cut?"
(3) If you cut someone in the neck with a knife . . . how
long will it take until they die?"
(4) "How long would it take to die from a major artery
or vein cut?" ROA, Vol. I at 996-1000.
jury indicted Mr. Currie for (Count 1) knowingly and
intentionally assaulting Lt. Blanchard with intent to commit
murder, in violation of 18 U.S.C. § 113(a)(1), and
(Count 2) knowingly and intentionally assaulting Ms. Killian
with a dangerous weapon, in violation of 18 U.S.C. §
trial, Mr. Currie requested a jury instruction on the lesser
included offense of attempted voluntary manslaughter.
Relatedly, he requested instructions consistent with a
heat-of-passion defense and specifically asked the court to
include the absence of heat of passion as an element of
assault with intent to commit murder. The district court
denied Mr. Currie's specific request but agreed there was
"more than sufficient evidence of heat of passion"
to send the heat-of-passion question to the jury. ROA, Vol. I
on Count 1, the district court gave Instruction No.
12, which listed the elements of assault with intent to
commit murder, and Instruction No. 13, which read:
The intent to commit murder is more than the intent to kill.
Murder is the unlawful killing of a human being with malice.
To establish malice the prosecution must prove beyond a
reasonable doubt the absence of a heat of passion.
Even if you find beyond a reasonable doubt that the defendant
acted with the intent to kill [Lt. Blanchard], you must find
him not guilty of Count 1 unless you also believe that the
prosecution proved the absence of heat of passion beyond a
ROA, Vol. I at 413. Instruction No. 14 defined
"malice." Instruction No. 15 listed the
elements of attempted voluntary manslaughter. Instruction
No. 16 explained the meaning of an attempt to kill
intentionally. Instruction No. 17 stated: "Heat
of passion means a passion, fear, or rage in which the
defendant loses his normal self-control, as a result of
circumstances that provoke such a passion in an ordinary
person, but which did not justify the use of deadly
force." ROA, Vol. I at 417. Finally, Instruction No.
The difference between assault with intent to commit murder
and attempted voluntary manslaughter is that, to convict the
defendant of attempted voluntary manslaughter, the government
does not have to prove that the defendant acted with malice.
Malice is an element of assault with intent to murder, but
not of attempted voluntary manslaughter.
ROA, Vol. I at 418.
closing argument, defense counsel relied exclusively on the
heat-of-passion defense, arguing Mr. Currie was guilty of
attempted manslaughter but not assault with intent to commit
murder. He argued there was a dividing line between
"head crimes" and "heart crimes" and
highlighted the evidence of Mr. Currie's stressful
relationship with Lt. Blanchard. Supp. ROA, Vol. I at 14-15,
18-20. The jury convicted Mr. Currie of assault with intent
to commit murder. It acquitted him of assault with a deadly
weapon against Ms. Killian.
his guilty verdict, Mr. Currie filed a motion for acquittal
and a new trial, arguing that prosecutorial misconduct
deprived him of a fair trial. His motion challenged nine of
the prosecutor's statements during closing argument and
rebuttal. On appeal, Mr. Currie groups the statements into
three categories, arguing the prosecutor (a) misstated the
burden of proof for assault with intent to commit murder, (b)
misstated the heat of passion defense, and (c) improperly
warned the jury about legitimizing violence. Aplt. Br. at 2.
We quote each of the comments in the analysis section below.
district court denied Mr. Currie's motion for a new trial
at the sentencing hearing. It found one of the
prosecutor's comments was "essentially a
misstatement of the law." ROA Vol. II at 19. But it did
not find any of the other comments to be improper and did not
find that Mr. Currie's substantial rights were affected
by the comments. Id. at 24. The court sentenced Mr.
Currie to the statutory maximum of 20 years of imprisonment.
sole question on appeal is whether the prosecutor's
comments rose to the level of prosecutorial misconduct and