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United States v. Currie

United States Court of Appeals, Tenth Circuit

December 21, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
CLIFFORD CURRIE, Defendant-Appellant.

          Appeal from the United States District Court for the District of Kansas (D.C. No. 2:16-CR-20089-JAR-1)

          Paige A. Nichols, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender with her on the briefs), Topeka, Kansas, for Defendant - Appellant.

          Carrie N. Capwell, Assistant United States Attorney (Stephen R. McAllister with her on the brief), Kansas City, Kansas, for Plaintiff - Appellee.

          Before TYMKOVICH, Chief Judge, LUCERO, and MATHESON, Circuit Judges.


         A jury 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.

         I. BACKGROUND

         A. Mr. Currie's Working Relationship with Lt. Blanchard

         Mr. 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.

         Mr. 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.

         Lt. 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.

         On July 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 well-being." Id.

         In an 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.

         Also in 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.

         On 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." Id.

         B. September 7, 2016 Assault

         During 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.

         At 5:00 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.[1] Lt. Blanchard then returned to her office.

         Approximately 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.

         C. The Investigation

         Firefighters 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.

         Police 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.

         An FBI examination of Mr. Currie's phone revealed the following May 8, 2016 searches on Yahoo Answers or Quora:[2]

(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.

         D. Trial Proceedings

         A grand 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. § 113(a)(3).

         At 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 at 1308-11.

         Accordingly, 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 reasonable doubt.

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. 18 explained:

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.

         During 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.

         After 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.

         E. Sentencing Hearing

         The 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.


         The sole question on appeal is whether the prosecutor's comments rose to the level of prosecutorial misconduct and ...

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