Explosive inmate testimony rocks third day of Curtis murder trial

FRONT ROYAL – After two and a half days of testimony the prosecution case is nearing a close in the First Degree Murder trial of Clay Marshall Curtis.  Curtis, now 63, is charged in the December 9, 2014 shooting death of off-duty Yellow Cab driver Simon Funk.  When court adjourned at 7:10 p.m. Wednesday, the prosecution had called 32 witnesses, several more than once, out of a potential witness list of 38.

And if the majority of prosecution case over the first three days revolved around sometimes tedious and often seemingly repetitive chain of custody of physical evidence testimony, there were interludes of raw emotion, descriptions of perceptive police work and one unexpected hint at a possible motive.  And motive was one thing largely absent from the prosecution’s case for what it asserts was a premeditated murder.

Artist’s rendering of Clay Marshall Curtis and jury behind him listening to testimony. Royal Examiner Court Sketches by Mark Williams/National Media

In fact, as reported in our June 20 story about the first day’s testimony the only hint at motive prior to the Wednesday afternoon appearance of RSW Regional Jail inmate Michael Turner came during defense cross examination of Funk’s then-girlfriend Carla Elliott on Monday afternoon.

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“Did you have sexual relations with Clay Curtis?” defense co-counsel David Hensley asked Elliott.

“He’s gay – absolutely NOT,” Elliott replied.

A variation of that theme came during direct examination of the case’s most controversial witness, convicted felon and currently incarcerated burglary and grand larceny suspect Michael Turner.  Turner’s name figured prominently in the lead up to the trial when he was added as a late prosecution witness due to an alleged June 13 “jailhouse confession” by Curtis.  Both the defense and prosecution made counter motions to exclude Curtis co-counsel John Bell, due to his representation of Turner on his current charges.

Bell survived both motions because he never discussed the alleged confession with Turner and only found out about it from the prosecution on June 14 after Turner reported it to RSW personnel.  However, Bell withdrew from Turner’s representation and was excluded from the defense table during Turner’s testimony and cross examination.

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The first Turner bombshell came early during direct examination by Assistant Commonwealth’s Attorney Bryan Layton – that bombshell led to an immediate request for a mistrial by Hensley – a request initially denied by Judge “Clay” Athey.

Judge Athey addressing a trial issue as defendant Clay Curtis and attorney listen.

Describing the lead up to Curtis’s alleged confession of the Funk murder to him, Turner noted that Curtis “was in federal prison” in the wake of betrayal issues with a former wife.

“OBJECTION!!!” Hensley nearly screamed of the prosecution witness’s introduction of the defendant’s past criminal history into the trial.  But after a discussion at the judicial bench at which Hensley could clearly be heard to say “mistrial”, Layton was allowed to return to his direct examination of his witness, albeit after a brief and perhaps tad late sit-down coaching of his witness as to what can and cannot be said at trial.

Turner continued to describe a conversation with another inmate about the situation that led to his incarceration May 30 from bond that his wife had signed and which he had been on for about a year.  “She decided to run off with another man,” Turner said.

He described Curtis overhearing that conversation and staring at him as if he “wanted conversation” Turner testified.  Turner said he was in his cell, not behind bars but a “regular door with a window on the side and a slot wide enough to slip an envelope through.”  And while there was extensive discussion of introducing jail video of the Curtis-Turner discussion and the passing of a letter in an envelope by Curtis to Turner, that discussion was outside the jury’s hearing and ended up being excluded from the Turner testimony by the court.*

Turner testified that having overheard his earlier discussion about his wife with the other inmate, Curtis told him about problems in an earlier marriage, observing, “You can’t trust women.”  Commenting of Turner’s current predicament of being jailed after a betrayal by his wife, Turner reported Curtis telling him, “I’m sort of in a situation like that now.  I care about him and do things for him but he don’t want to deal with me no more.  But I care about him; so, I shot him and wrapped him in a blanket.”

Forty-two-year-old Simon Funk’s body was found in the early-morning hours of December 10, 2014, in a heavily wooded area at the edge of Clay Curtis‘s sister Faye Curtis’s home at 716 Kildare Drive in Shenandoah Farms at the edge of Blue Mountain.  Funk’s body was buried under leaves, sticks and was covered by a maroon comforter.

As Judge Athey listens, a witness – not Michael Turner – testifies earlier on Wednesday. After 2-1/2 days, 31 witnesses had been called by the prosecution, some several times.

Hensley’s cross examination of Turner quickly turned contentious.  He led Turner through a description of his four previous felony convictions and questioned contradictions about his testimony about his criminal history and documentation of it.  Hensley’s pressing Turner about his truthfulness and possible motive for making up a story about Curtis to curry favor with law enforcement on his own charges led Turner into an extensive debate with Hensley about lying – “He’s a bigger liar than me, he’s charged with murder,” Turner said of Hensley’s client.

Hensley further attempted to discredit Turner by introducing a memo from an RSW Jail staffer, Sgt. Sine, about information given him by Turner.  “You told him you knew where two more bodies in Warren County are,” Hensley pressed.

“That was information Mr. Clay (Curtis) was talking about,” Turner countered.

“But that’s not what it says in the memo,” Hensley told Turner.

“Somebody wrote it wrong,” Turner insisted, concluding that he “disagreed” with the staffer memo.

“You told him many things – that you saw cigarettes and cell phones being smuggled into the jail … that officers were bringing them in and giving them to inmates, but you wouldn’t name the officers that were doing it – or do you disagree with that too,” Hensley asked Turner.

Turner agreed that he, in fact, did disagree with that report – that the sergeant had misunderstood what he told him.

When Hensley told Turner that he also told Sgt. Tine that if he testified in the Curtis trial he would get bond, Turner countered that he meant he expected to be acquitted of the charges against him that occurred two years earlier.

“Were you looking for an offer?” Hensley asked.

“I’m in witness protection, the whole jail wants to kill me – does that sound like an offer?” Turner countered.

Circuit Court is scheduled to re-adjourn at 8:45 a.m. Thursday, with a brief hearing on the Bailey Powell-Leah Evans murder case, prior to the Curtis-Funk trial re-convening.

Whether a mistrial might be re-argued at the trial’s conclusion was unclear at the end of Wednesday testimony.

Day 2

On Tuesday, a tedious 9-hour day “chain of custody” of physical evidence testimony was punctuated by a description of the discovery of, and fatal wounds to, Simon Funk Jr.’s body.  Forensics testimony indicated Funk was shot twice with what is believed to have been a .40-caliber handgun.  No murder weapon has been recovered.

State Medical Examiner Office’s Mary Stanley said she examined the body discovered at the scene with WCSO Sgt. William Smoot.  After seeing a small amount of blood on the head, they began to turn the body over when a bullet fragment fell out of either a sweatshirt hood or the hair of the body of Simon Funk, Jr.  That led to the discovery of an entry wound behind the left ear, with a corresponding exit wound in the right throat.

A second entry wound was found in the lower, right abdomen.

Funk’s body was discovered after Sgt. Jason Poe, then of the Warren County Sheriff’s Office, suggested to WCSO Lt. Gordon Foster that they return to Faye Curtis’s Kildare Drive property, where Funk’s van was found, and where neighbor Jeffrey Sissler had a confrontation at that van that night with a man he identified as Faye’s brother, Clay Curtis.

“If you know the outdoors – there was a spot that didn’t sit right with me,” Poe told the court on Tuesday (June 27).   Poe explained that one patch of leaves on the property appeared too settled for the season.  When he and Foster returned they found the spot about 30 yards down a sloping area behind and to the right of Faye Curtis’s home and driveway, near some pine trees.

“As you got closer you could tell a person or a blower had circled around this pile,” Poe testified.  He said as he got closer with his flashlight on in the rural darkness he could see sticks piled up under the leaves on top – “they were piled longer than wide,” he observed.  Sgt. Poe then noticed a red blanket stretched out under the sticks.  He then noticed a human hand sticking our from under the pile.

“I examined the pile for signs of life,” he said.  Finding none he began treating the site as a crime scene, not disturbing or allowing other officers on the scene to disturb the scene pending the arrival of a forensics team.

* FOOTNOTE: Arguments about the testimony of RSW Jail inmate Michael Turner included the fact the prosecution had been unable to locate the letter Curtis was filmed passing into Turner’s cell, but had located what was believe to be a draft of it in Curtis’s cell.  It was also observed that video inside Turner’s cell in a medical suicide unit, indicated an aggressively negative reaction to reading the letter passed to him by Curtis.  The prosecution indicated the letter was a sexual proposition from Curtis to Turner.  However, nothing regarding the missing letter, its content or Turner’s reaction to it was allowed to be introduced as part of Turner’s testimony.