Trial of man accused of murdering Simon Funk Jr. delayed until June

After hearing telephoned-in testimony from a Winchester orthopedic surgeon scheduled to operate on a key prosecution witness on May 4, the prosecution, defense and court came to an agreement Monday (May 1) on the commonwealth’s motion to have the first-degree murder trial of Clay Marshall Curtis delayed.  The trial of the man accused of killing Front Royal Yellow Cab driver Simon Funk Jr. had been scheduled to begin May 8; it will now begin on June 26.

A week has been blocked off the Warren County Circuit Court docket for Marshall’s trial on three charges related to Funk’s December 9, 2014 murder.

Above, victim Simon Funk, Jr.; at right the man accused of murdering him on December 9, 2014, Clay Marshall Curtis.

When Judge Clifford L. “Clay” Athey Jr. declared a brief recess at 4:10 p.m. after nearly 40 minutes of testimony and discussion, it appeared the court was ready to proceed to trial on May 8 to see exactly what the physical condition of Sgt. Philip Henry was four days after surgery for a herniated lumbar disc in his back.  Henry is considered a key prosecution witness who both handled evidence collected as the case against Curtis was developed and interviewed witnesses.

Doctor Joseph Zoloer testified by phone that it was impossible to predict Henry’s post-operative condition four days after surgery.  The surgeon said a patient’s condition after what he described as 30 to 45-minute outpatient surgery could vary widely.  That potential range includes having already “thrown away” post-operative pain medication to remaining heavily medicated and fuzzy headed from it.  A patient’s ability to sit or remain in one position for an extended period of time can also vary greatly, Doctor Zoloer testified.

But when court re-convened 10 minutes later, at 4:20 p.m. Monday afternoon, defense co-counsel David Hensley told the court the defense would withdraw its objection to the delay and waive their client’s speedy trial rights, adding however, “We would like the soonest trial date.

Judge Athey clarified the speedy trial waiver with both Hensley and co-counsel John Bell, then asked the defendant if he agreed to that waiver.  The 63-year-old Curtis replied, “Yes.”  Curtis has been incarcerated since December 10, 2014, one day after Funk’s murder.  However, Curtis was not picked up on the murder charge, but rather on a federal fugitive warrant.  During an April 10 hearing, Curtis’s attorneys told the court he had about seven months left to serve on his federal charges, probation violation related to an earlier conviction of a felon in possession of a firearm.

Athey then told attorneys that the 30 to 40 witnesses scheduled to report for trial on Monday, May 8, would still report to be recognized and told they will still be obligated by their subpoenas to appear on the new trial date of June 26.

This is the trial’s second postponement.  It was originally scheduled to begin on April 10.  However, due to an evidence-filing error by the prosecution the defendant took advantage of a statute technicality to delay his trial at least two weeks at that time.  The filing “glitch” involved a requirement the prosecution notify the defense 21 days in advance of trial about the use of DNA evidence.  The defense got that notification on April 3, seven days prior to the original trial date.  Noting the defense had been aware of the evidence in question for five months, Athey denied their motion to bar that DNA evidence.  However, the judge gave the defense the option of proceeding with trial on schedule or seeking a delay to facilitate the 21-day evidence notice requirement.

After a 10-minute recess, Bell informed the court his client had decided to exercise his option to delay the trial.  Athey noted at the time that due to his pending schedule if the May 8 date was not met, he would not be able to hear the case until late November or early December.

By Monday that no longer appeared to be the case.

Witness issues

A day prior to the April 24 hearing about Sgt. Henry’s ability to testify at the May 8 trial, a second prosecution witness, Faye Curtis died according to an obituary posted April 26.

According to her obituary, 76-year-old Faye Curtis died on Sunday, April 23.  The body of local Yellow Cab driver Simon Funk Jr. was found in a wooded area near Kildare Road in Shenandoah Farms on December 10, 2014.  Faye Curtis’s address was 716 Kildare Road.  Area residents reported Clay Curtis as a visitor to the neighborhood after his photograph was published in relation to the Funk murder case.  At the time, Faye Curtis declined to respond to a phone call about her relationship to the then 61-year-old Clay Curtis.

On Monday Commonwealth’s Attorney Brian Madden declined comment on any impact Faye Curtis’s death might have on the prosecution’s case.  She was not mentioned during the May 1 hearing.

Whenever it eventually occurs, Curtis will be tried on three charges – the First Degree Murder of off-duty Yellow Cab driver Simon Funk Jr.; the use of a firearm in the commission of attempted murder; and the Attempted Murder of a second person, Jeffrey Sissler.

Asked about the latter charge on April 10, Madden said it stemmed from a second incident the same day as Funk’s murder on December 9, 2014.

Monday’s decision will not impact a second trial on a related charge that has been separated from the primary set of charges.  That trial remains scheduled to begin August 16.