Gabriel Curtis a/k/a Gabriel Benjamin Curtis v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-KA-00258-COA

GABRIEL CURTIS A/K/A GABRIEL BENJAMIN APPELLANT
CURTIS

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 10/08/2018
TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA BYRD
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 06/23/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE J. WILSON, P.J., GREENLEE AND LAWRENCE, JJ.

J. WILSON, P.J., FOR THE COURT:

¶1. Following a jury trial, Gabriel Curtis was convicted of first-degree murder and

unlawful possession of a firearm by a felon. By its verdict, the jury rejected Curtis’s claim

of self-defense. On appeal, Curtis argues that the trial court erred by denying his proposed

jury instructions on two lesser-included offenses. He also argues that his trial counsel

provided ineffective assistance. We find no reversible error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Willis Cassidy was seventy-five years old at the time of his death. Cassidy’s sister
described him as “very feeble” due to chronic heart problems and lung problems caused by

a long history of exposure to asbestos, which made it difficult for him to breathe. Cassidy

walked slumped over with a cane as a result of complications from heart surgery.

¶3. Curtis was Cassidy’s live-in caretaker, although Curtis testified he was more of a

manual laborer. At trial, Curtis claimed that Cassidy suffered from dementia and was

verbally abusive and “strong” for his age. Curtis also claimed that the real reason Cassidy

employed him was that Cassidy was a homosexual and desired a sexual relationship with

Curtis. Curtis insisted that Cassidy did not need a cane and used it only as a “prop” to fool

his sister and so that he could use an electric cart at the grocery store.

¶4. Curtis testified that Cassidy irrationally believed that he could make a large profit by

selling his house and using the money to buy and sell Katrina cottages. According to Curtis,

on the evening of April 19, 2017, he told Cassidy that he would leave if Cassidy sold the

house, which resulted in an argument. Curtis claimed that Cassidy then demanded oral sex

and pulled a gun on him when he refused. Curtis testified that he wrestled the gun away from

Cassidy and hit Cassidy in the face with it at least three times. Curtis claimed that he put the

gun down, but Cassidy tried to take it back. Curtis testified that he grabbed Cassidy by the

neck in order “to stand him up,” although he later admitted that he “choked” Cassidy while

doing so. According to Curtis, he then pushed Cassidy away, which caused Cassidy’s dog

to jump on the bed and begin barking. Curtis claimed he fired the gun into the bed to quiet

the dog, but Cassidy then hit Curtis with a pool cue repeatedly and ordered the dog to attack.

Curtis shot the dog. He claimed that the dog ran away after being shot.

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¶5. Curtis testified that Cassidy continued to hit him with the pool cue. Curtis claimed

he cocked the gun “just for effect” when suddenly it “went off,” and Cassidy fell back on the

couch. Curtis believed that he had shot Cassidy in the head and that Cassidy was dead.

Curtis testified that he was in “shock” and went to another room. Curtis claimed that when

he returned to the bedroom, Cassidy had gotten up and shut himself in the bathroom.

According to Curtis, he beat on the bathroom door. However, Cassidy was leaning against

the door, and it would not open. Curtis insisted that he could still hear Cassidy breathing at

that point. Curtis testified that he left the bedroom and returned about five minutes later, at

which point he was able to open the door and found Cassidy dead and covered in blood.

¶6. The next day, Curtis cleaned up some of the blood in the house, put Cassidy’s body

on a tarp, and loaded the body into the back of Cassidy’s SUV. He also cut Cassidy’s clothes

off him. Curtis then drove to an uninhabited area near the Mississippi-Alabama state line and

dumped Cassidy’s body in the woods at the end of a dead-end road.

¶7. While Curtis was disposing of Cassidy’s body, the Harrison County Sheriff’s Office

received a call reporting a welfare concern and possible injury or homicide at Cassidy’s

house. Deputies responded, eventually entered the home, and found a large amount of blood

in Cassidy’s bedroom and bathroom and Cassidy’s deceased dog lying in a pool of its own

blood and vomit. They also found blood spattered on the dresser in the bedroom, blankets

covered in blood, and a bloody pool cue and bloody revolver. Subsequent DNA analysis

indicated that the blood on the pool cue was Cassidy’s.

¶8. While investigators were still at the crime scene, Curtis returned to the house in

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Cassidy’s SUV. The investigators asked Curtis if he knew why they were there. Curtis

answered, “All I want to know is how y’all found out so fast.” Curtis was advised of his

Miranda rights and questioned about Cassidy’s whereabouts. Curtis admitted that he had

killed Cassidy and “dumped him like a dog in the f’ing woods.” Curtis later showed officers

where he had taken Cassidy’s body.

¶9. The medical examiner testified that Cassidy had suffered numerous blunt force

injuries to his face and the back of his head, back, left arm, and neck and had also been

strangled. The cause of death was determined to be a combination of beating and

strangulation. There were three blunt injuries to Cassidy’s face. There were two circular

wounds to Cassidy’s back, which initially appeared to be gunshot wounds but were later

determined to be “puncture wounds,” i.e., “also blunt injuries.” There was also deep bruising

on Cassidy’s neck, which was consistent with strangulation.

¶10. At trial, the jury was instructed on first-degree (deliberate-design) murder, self-

defense, and imperfect self-defense (manslaughter). The trial court declined to instruct the

jury on second-degree (depraved-heart) murder or heat-of-passion manslaughter. The jury

found Curtis guilty of first-degree murder and unlawful possession of a firearm by a felon.

The trial court sentenced Curtis to serve life imprisonment for murder and a concurrent term

of ten years on the firearm charge.

ANALYSIS

I. The trial court did not err in refusing to instruct jury on depraved-
heart murder and heat-of-passion manslaughter.

¶11. Curtis argues that the trial court erred by not instructing the jury on the lesser-included

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offenses of second-degree (depraved-heart) murder, Miss. Code Ann. § 97-3-19(1)(b) (Supp.

2017), and heat-of-passion manslaughter, Miss. Code Ann. § 97-3-35 (Rev. 2014). We

review de novo the refusal of lesser-included-offense instructions. Downs v. State, 962 So.

2d 1255, 1258 (¶10) (Miss. 2007). A defendant has a right to a lesser-included-offense

instruction if there is some evidence from which a reasonable juror could find him both not

guilty of the indicted offense and guilty of the lesser-included offense. Gilmore v. State, 119

So. 3d 278, 286 (¶13) (Miss. 2013). However, “the jury should not be presented with a

lesser-included-offense instruction unless the record provides an evidentiary basis for the

instruction.” Franklin v. State, 136 So. 3d 1021, 1026 (¶11) (Miss. 2014) (quotation marks

omitted). Therefore, “lesser-included-offense instructions should not be granted on mere

speculation.” Id.

A. Depraved-Heart Murder

¶12. Curtis’s theory of defense was that he killed Cassidy in self-defense after Cassidy

threatened him with a gun. Curtis maintained that the homicide was justifiable because he

acted in true self-defense or, in the alternative, that he was guilty only of imperfect self-

defense manslaughter. Imperfect self-defense is not a defense to the crime but only a

circumstance that may downgrade an intentional killing from murder to manslaughter.

Brown v. State, 222 So. 3d 302, 307 (¶21) (Miss. 2017). “[U]nder the theory of imperfect

self-defense, an intentional killing may be considered manslaughter if done without malice

but under a bona fide (but unfounded) belief that it was necessary to prevent death or great

bodily harm.” Id. (quoting Ronk v. State, 172 So. 3d 1112, 1126 (¶22) (Miss. 2015)).

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Consistent with Curtis’s theory of defense, the trial court gave jury instructions on both self-

defense and imperfect self-defense. As stated above, Curtis also requested an instruction on

second-degree murder, which the trial court refused.

¶13. In this case, the indicted offense of first-degree (deliberate-design) murder is a killing

done without authority of law and with the “deliberate design to effect the death of the person

killed.” Miss. Code Ann. § 97-3-19(1)(a).1 In contrast, second-degree (depraved-heart)

murder is a killing “done in the commission of an act eminently dangerous to others and

evincing a depraved heart, regardless of human life, although without any premeditated

design to effect the death of any particular individual.” Id. § 97-3-19(1)(b).2 Every

deliberate-design murder is also a depraved-heart murder “because, as a matter of common

sense, every murder done with deliberate design to effect the death of another human being

is by definition done in the commission of an act imminently dangerous to others and

evincing a depraved heart, regardless of human life.” Hawkins v. State, 101 So. 3d 638, 642

(¶13) (Miss. 2012) (quotation marks omitted). However, “the inverse is not true,” i.e., not

every depraved-heart murder is committed with the deliberate design to kill. Id.

¶14. On the facts of this case, the trial court did not err by refusing Curtis’s proffered

1
“Deliberate design may be formed very quickly, and perhaps only moments before
the act of consummating the intent.” Bowser v. State, 182 So. 3d 425, 430 (¶12) (Miss.
2015) (quotation marks omitted).
2
The Legislature created the distinct crimes of first-degree murder and second-degree
murder in 2013. See 2013 Miss. Laws ch. 555, § 1 (S.B. 2377). Prior to 2013, deliberate-
design murder and depraved-heart murder carried the same punishment (life imprisonment)
and were simply two variants of the crime of “murder.” Thus, prior to 2013, there rarely was
an incentive for a defendant to request a depraved-heart murder instruction, and as a result
there is little caselaw directly addressing a defendant’s right to such an instruction.

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second-degree murder instruction. Although the jury ultimately rejected it, Curtis’s own

testimony supported instructions on self-defense and imperfect self-defense. At Curtis’s

request, the trial court gave those instructions. In addition, Cassidy’s extensive injuries and

the crime scene evidence reflect a savage and thorough beating/strangulation that clearly

supported instructions on the indicted offense of first-degree murder. However, there is no

evidence in the record to suggest that Curtis committed this brutal murder—inflicting

numerous injuries on Cassidy’s face, head, neck, and arm—with the sort of “recklessness”

that characterizes second-degree (depraved-heart) murder. Id. at 643 (¶17) (emphasis added).

Such a conclusion would require speculation unsupported by any evidence presented by the

State or by the defense. As stated above, “lesser-included-offense instructions should not be

granted on mere speculation.” Franklin, 136 So. 3d at 1026 (¶11) (quotation marks omitted).

Accordingly, the trial court did not err by denying the requested instruction. See Batiste v.

State, 121 So. 3d 808, 846 (¶¶77-78) (Miss. 2013) (holding that the trial court did not err by

refusing a depraved-heart murder instruction where the “overwhelming evidence” showed

that the defendant “acted with premeditation”).

¶15. On appeal, Curtis relies on Windham v. State, 602 So. 2d 798, 799, 802 (Miss. 1992),

in which the Supreme Court held that there was sufficient evidence to support a depraved-

heart murder conviction when the defendant struck the victim with a hammer during a brief

argument over a debt but claimed that he never intended to hurt anyone. Curtis also cites

Hunter v. State, 187 So. 3d 674, 676-77 (¶¶1-11) (Miss. Ct. App. 2016), in which this Court

held that there was sufficient evidence to support a second-degree murder conviction for a

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killing during a domestic dispute when the defendant told his daughter to call 911 after

realizing that the victim, his girlfriend, was unconscious. Curtis asserts that if the beatings

in Windham and Hunter qualified as depraved-heart murders, then it necessarily follows that

the beating in this case also warranted an instruction on that offense.

¶16. We disagree. In both Windham and Hunter, the evidence permitted an inference of

a brief assault or reckless act that produced death without deliberate design. In this case, in

contrast, the evidence established that Curtis beat Cassidy repeatedly with both a pool cue

and a revolver and also strangled him, with the cause of death identified as a combination of

blunt force trauma and strangulation. The jury was instructed on Curtis’s claims of perfect

and imperfect self-defense. Aside from those claims, which the jury rejected, there was no

reasonable inference that the killing resulted from mere “recklessness.” Hawkins, 101 So.

3d at 643 (¶17). Rather, the killing was the end result of a prolonged, brutal, and deliberate

assault by Curtis. No reasonable juror could have found that the killing was neither first-

degree murder nor an act of (perfect or imperfect) self-defense but only a reckless act.

Accordingly, the trial court appropriately refused the requested instruction.3

B. Heat-of-Passion Manslaughter

¶17. Curtis also argues that the trial court erred by refusing to instruct the jury on heat-of-

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Curtis correctly argues that second-degree (depraved-heart) murder “encompasses
a reckless and eminently dangerous act directed toward a single individual.” Windham, 602
So. 2d at 802. The trial court was incorrect to the extent that it suggested otherwise during
the charge conference. However, the trial court also properly refused the instruction on the
ground that the evidence did not support it.

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passion manslaughter.4 Curtis argues that the instruction was warranted based on his own

testimony that Cassidy had threatened him previously, argued with him about selling the

house, and demanded oral sex. However, Curtis testified at trial that he was “not arguing”

with Cassidy prior to the murder but only trying to reason with him. In addition, Curtis

testified that Cassidy’s alleged demand for oral sex “had nothing to do with why [Curtis]

killed him.”

¶18. A “heat of passion” is defined as

[a] state of violent and uncontrollable rage engendered by a blow or certain
other provocation given, which will reduce a homicide from a grade of murder
to that of manslaughter. Passion or anger suddenly aroused at the time by
some immediate and reasonable provocation, by words or acts of one at the
time. The term includes an emotional state of mind characterized by anger,
rage, hatred, furious resentment or terror.

Jones v. State, 39 So. 3d 860, 866 (¶36) (Miss. 2010) (quoting Mullins v. State, 493 So. 2d

971, 974 (Miss. 1986)). To establish a “heat of passion,” there must be such provocation and

“circumstances as would indicate that a normal mind would be roused to the extent that the

reason is overthrown and that passion usurps the mind destroying judgment.” Id. at 867

(¶36) (quoting Windham v. State, 520 So. 2d 123, 127 (Miss. 1987)).

¶19. We concur with the trial court that the evidence presented at trial did not support an

instruction on heat-of-passion manslaughter. Curtis himself testified that he was only trying

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Curtis submitted a proposed jury instruction that defined “heat of passion,” but he
did not offer a corresponding elements instruction or a verdict form with the option of heat-
of-passion manslaughter. However, the State concedes that Curtis did enough to preserve
the issue. See Miss. Valley Silica Co. v. Eastman, 92 So. 3d 666, 671 (¶21) (Miss. 2012)
(“When a party submits a jury instruction on an important issue not covered in the other
instructions, it is the trial court’s ultimate duty to instruct the jury properly.”).

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to reason with Cassidy and that Cassidy’s alleged sexual advances “had nothing to do with

why [Curtis] killed him,” and there was no other evidence that Curtis acted in a “heat of

passion.” Therefore, the trial court did not err by refusing to instruct the jury on heat-of-

passion manslaughter.

II. Curtis fails to show that he received ineffective assistance of
counsel.

¶20. Curtis argues that he received ineffective assistance of counsel at trial because his

attorney (1) failed to request adequate jury instructions on depraved-heart murder and heat-

of-passion manslaughter and (2) failed to object to a jury instruction on the gun possession

charge that disclosed that his prior felony conviction was for burglary.

¶21. “Generally, ineffective-assistance-of-counsel claims are more appropriately brought

during post-conviction proceedings.” Ross v. State, 288 So. 3d 317, 324 (¶29) (Miss. 2020)

(brackets omitted). “This Court will address such claims on direct appeal when [1] the

record affirmatively shows ineffectiveness of constitutional dimensions, or [2] the parties

stipulate that the record is adequate and the Court determines that the findings of fact by a

trial judge able to consider the demeanor of witnesses, etc., are not needed.” Id. (brackets

and quotation marks omitted). In addition, we may address such “claims on direct appeal

when the record affirmatively shows that the claims are without merit.” Id. To prevail on

a claim of ineffective assistance, the 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 was prejudiced as a result—i.e., “that counsel’s errors were so serious as to deprive

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the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466

U.S. 668, 687 (1984). The defendant “bears the burden of proving both prongs of

Strickland.” Ravencraft v. State, 989 So. 2d 437, 443 (¶31) (Miss. 2008). “If either prong

is not met, the claim fails.” Havard v. State, 928 So. 2d 771, 781 (¶8) (Miss. 2006).

¶22. With respect to trial counsel’s alleged failure to propose adequate instructions on

depraved-heart murder and heat-of-passion manslaughter, Curtis’s claim fails for the reasons

already discussed above in Part I. Curtis raises this issue primarily as a fall-back argument

in the event we conclude that his trial counsel failed to preserve his requests for lesser-

included-offense instructions. We conclude above that Curtis’s trial counsel preserved those

issues, see supra note 4, but the trial court did not err by refusing to instruct the jury on these

issues. It necessarily follows that Curtis was not prejudiced by any deficiencies in counsel’s

proposed instruction.

¶23. With regard to the disclosure of Curtis’s prior conviction for burglary, Curtis and the

State stipulated that Curtis had previously been convicted of a felony, and the stipulation was

read to the jury and admitted into evidence during the State’s case-in-chief.5 The stipulation

did not disclose the specific felony of which Curtis had been convicted, nor was that fact

mentioned at any other point during the trial. However, the jury instruction on the elements

of unlawful possession of a firearm by a felon disclosed that Curtis’s prior conviction was

5
Williams v. State, 991 So. 2d 593, 605-06 (¶40) (Miss. 2008) (holding that a trial
court must accept a defendant’s offer to stipulate to the fact of a prior felony conviction in
cases in which “evidence of a prior conviction is a necessary element of the crime for which
the defendant is on trial (i.e., possession of firearm by a convicted felon), but evidence of
the specific nature of the crime for which the defendant was previously convicted . . . is not
an essential element of the crime for which the defendant is on trial”).

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for burglary. The disclosure of the nature of the crime apparently was inadvertent, as there

was no mention of it or objection to it during trial. Curtis now argues that his trial counsel’s

failure to object to the instruction amounts to ineffective assistance of counsel and reversible

error. We disagree.

¶24. This Court has stated that in some cases it may be reasonable trial strategy to disclose

the specifics of a prior felony conviction because a generic stipulation “could give ‘the jury

the impression that the defense had some reason to hide facts of the prior cases from them.’”

Collins v. State, 221 So. 3d 366, 372-73 (¶21) (Miss. Ct. App. 2016) (brackets omitted)

(quoting Williams v. State, 819 So. 2d 532, 538 (¶18) (Miss. Ct. App. 2002)), cert. denied,

220 So. 3d 975 (Miss. 2017). In this case, however, the disclosure appears to have been

unintentional—an oversight—not strategic. Nonetheless, the oversight does not amount to

constitutionally ineffective assistance of counsel.

¶25. “There is no constitutional right . . . to errorless counsel.” Branch v. State, 882 So.

2d 36, 59 (¶26) (Miss. 2004). The defendant has a right to “competent counsel,” not “an

attorney who makes no mistakes at trial.” Id. To satisfy the first prong of Strickland, the

defendant must “show[] that counsel made errors so serious that counsel was not functioning

as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S.

at 687. Similarly, under the second prong, the defendant must “show[] that counsel’s errors

were so serious as to deprive [him] of a fair trial.” Id. Trial counsel’s mistake in this case

does not satisfy either prong of Strickland. Prior to the disclosure in the jury instruction, the

jury already knew that Curtis had been convicted of some felony. As far as the jury knew,

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that felony could have been more serious than a burglary. We cannot say that trial counsel

made an error so serious that he ceased to function as counsel—or deprived Curtis of a fair

trial—when he failed to object to this instruction and thereby allowed the jury to learn that

Curtis had previously committed a burglary. Accordingly, Curtis’s claim that he received

ineffective assistance of counsel at trial is without merit.

CONCLUSION

¶26. Curtis was not entitled to jury instructions on second-degree (depraved-heart) murder

or heat-of-passion manslaughter. Nor has Curtis shown that he received ineffective

assistance of counsel at trial.

¶27. AFFIRMED.

BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, McDONALD,
LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.

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