Motions for Mistrial: Appeal and Error. The
decision whether to grant a motion for mistrial will not be
disturbed on appeal in the absence of an abuse of discretion.
Jury Instructions: Judgments: Appeal and
Error. Whether jury instructions given by a trial
court are correct is a question of law. When dispositive
issues on appeal present questions of law, an appellate court
has an obligation to reach an independent conclusion
irrespective of the decision of the court below.
Jury Instructions: Appeal and Error. In an
appeal based on a claim of an erroneous jury instruction, the
appellant has the burden to show that the questioned
instruction was prejudicial or otherwise adversely affected a
substantial right of the appellant.
__ . All the jury instructions must be read together, and if,
taken as a whole, they correctly state the law, are not
misleading, and adequately cover the issues supported by the
pleadings and the evidence, there is no prejudicial error
Rules of Evidence: Hearsay: Appeal and
Error. Apart from rulings under the residual hearsay
exception, an appellate court reviews for clear error the
factual findings underpinning a trial court's hearsay
ruling and reviews de novo the court's ultimate
determination whether the court admitted evidence over a
hearsay objection or excluded evidence on hearsay grounds.
Constitutional Law: Due Process. The
determination of whether procedures afforded an individual
comport with constitutional requirements for procedural due
process presents a question of law.
Convictions: Evidence: Appeal and Error. In
reviewing a criminal conviction for a sufficiency of the
evidence claim, whether the evidence is direct,
circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the
evidence, pass on the credibility of witnesses, or reweigh
the evidence; such matters are for the finder of fact. The
relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
Criminal Law: Motions for Mistrial: Proof: Appeal and
Error. A mistrial is properly granted in a criminal
case where an event occurs during the course of a trial that
is of such a nature that its damaging effect cannot be
removed by proper admonition or instruction to the jury and
thus prevents a fair trial. The defendant must prove that the
alleged error actually prejudiced him or her, rather than
creating only the possibility of prejudice.
Motions for Mistrial: Motions to Strike: Appeal and
Error. Error cannot ordinarily be predicated on the
failure to grant a mistrial if an objection or motion to
strike the improper material is sustained and the jury is
admonished to disregard such material.
Jury Instructions: Proof: Appeal and Error.
To establish reversible error from a court's refusal to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the
court's refusal to give the tendered instruction.
Hearsay. Testimony regarding an out-of-court
identification is hearsay.
Criminal Law: Constitutional Law: Due Process: Rules
of Evidence. Whether rooted directly in the Due
Process Clause of the 14th Amendment or in the Compulsory
Process or Confrontation Clauses of the 6th Amendment, the
federal Constitution guarantees criminal defendants a
meaningful opportunity to present a complete defense.
However, the accused does not have an unfettered right to
offer testimony that is incompetent, privileged, or otherwise
inadmissible under standard rules of evidence.
Sentences: Weapons. Neb. Rev. Stat. §
28-1205(3) (Reissue 2016) mandates that a sentence for the
use of a deadly weapon in the commission of a felony be
served consecutively to any other sentence imposed and
concurrent with no other sentence.
Sentences: Appeal and Error. An appellate
court has the power on direct appeal to remand a cause for
the imposition of a lawful sentence where an erroneous one
has been pronounced.
from the District Court for Douglas County: Thomas A. Otepka,
Judge. Convictions affirmed, sentences affirmed in part and
in part vacated, and cause remanded for resentencing.
C. Riley, Douglas County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
M. McCurry appeals his convictions and sentences in the
district court for Douglas County for first degree murder,
use of a firearm to commit a felony, and possession of a
firearm by a prohibited person. On appeal, McCurry claims,
inter alia, that the court erred when it refused his proposed
instruction regarding eyewitness identification and when it
refused his requested instruction stating that the jury need
not unanimously reject a greater offense before considering
lesser offenses. He also claims there was not sufficient
evidence to support his conviction for first degree murder.
We affirm McCurry's three convictions and his life
sentence for first degree murder. However, we note that the
district court erred when it ordered McCurry's sentence
for the use conviction to be served concurrently with his
sentence for the possession conviction; we vacate those
sentences and remand the cause to the district court for
resentencing on those convictions.
25, 2014, Timothy Marzettie was shot and killed at his
residence in Omaha, Nebraska. Witnesses told police officers
investigating the shooting that the shooting occurred during
a home invasion by two intruders. Investigators identified
McCurry as a suspect in the shooting, and McCurry was
arrested on June 29. The State charged McCurry with first
degree murder and use of a firearm to commit a felony; the
State later added a charge of possession of a firearm by a
McCurry's trial, the State presented evidence, including
testimony by police officers and forensic analysts who
participated in the investigation of the shooting. Other
witnesses included a woman who was babysitting her grandson
in the house next door to Marzettie's on June 25, 2014.
She testified that late that night, she was on an enclosed
porch smoking a cigarette when she saw a car pull up and stop
in front of Marzettie's house. Three men got out of the
car, and the witness saw them lift the hood of the car. She
saw one of the men urinating in the bushes, while the other
two men walked up the driveway to Marzettie's house. The
witness later heard a woman screaming, a baby crying, and a
single gunshot; the car left after the gunshot was fired. The
witness testified that the incident happened quickly and that
she heard the gunshot approximately 5 minutes after the car
pulled up. She did not identify the men beyond describing
them as "three black males"; she described the car
as a "[f]our-door, smaller car" that was
"dark-colored, " possibly maroon red.
main witnesses for the State were three women: Patricia
Riley, Jessica Simpson, and Cherita Wright. Riley and Simpson
were both in Marzettie's house at the time of the
shooting. Wright was not in the house at the time, but she
knew both McCurry and Marzettie, and she testified regarding
interactions between the two men.
testified that she lived with Marzettie and that she was
pregnant with his child at the time that he was killed. In
addition to having an intimate personal relationship with
Marzettie, Riley worked for him as a prostitute. She
described Marzettie as a "pimp, " and she testified
that other women had worked for Marzettie, including Wright,
with whom Riley had become friends.
night of June 25, 2014, Riley was at the house with
Marzettie. Also in the house were Marzettie's infant
daughter from another woman and Simpson; Riley had first met
Simpson a few days earlier. Riley and Marzettie were in the
living room of the house with his daughter, and Simpson was
outside the front of the house smoking a cigarette. Riley
heard a voice from outside the front of the house, and when
Marzettie walked outside to see who was speaking to Simpson,
Riley heard someone asking "where is Cherita?"
Riley could not see the person who was speaking, but she saw
a "dark car" parked in front of the house. Riley
went outside to get Marzettie's daughter, who was with
Marzettie. She testified that Marzettie and another man were
"kind of arguing back and forth" and that Marzettie
was telling the man that "Cherita was not there."
Riley did not immediately get a good look at the other man
because she was focused on getting the child inside, but she
"noticed that it was a black male with dark
Riley put the child down in a portable crib in a bedroom, she
returned to the living room. Marzettie and the other man were
still "going back and forth" about the whereabouts
of "Cherita." The other man stated that he had
dropped "Cherita" off at the house earlier in the
day and that she had called him to come and pick her up.
Riley testified that "Cherita was not there" and
that "[s]he hadn't been there in months."
Marzettie came into the house saying that he was going to get
his cell phone so that he could make a call to prove that
"Cherita" was not there.
testified that before Marzettie could go back outside, the
other man "pulled the gun out and came in the house
after him." The man pointed the gun at Marzettie, and
Marzettie said that he did not know where "Cherita"
was. While Marzettie was telling the man to leave, another
man ran into the house and grabbed Marzettie and pushed him
onto a couch. Riley tried to pull the second man off
Marzettie, but Simpson pulled Riley off the man, because
Riley was 9 months' pregnant. Riley then went to a
bedroom in order to call the 911 emergency dispatch service
and to calm Marzettie's daughter, who had begun crying.
While Riley was on her cell phone with the dispatcher, she
heard a gunshot. She then heard Simpson pounding on the
bedroom door and telling Riley "to open the door because
they shot him." Riley went out to the living room and
saw Marzettie "laying [sic] on the floor face down
holding his chest." The two men who had come into the
house were gone, and police officers arrived at the house
her observation of the intruders, Riley testified that the
man with the gun was wearing a "[b]lack shirt . . . dark
pants and a hat, a black hat." Riley "didn't
really see [the] face" of the second man who came in,
but she saw he was wearing blue jeans and a red shirt with
"some white detail on the shirt." Riley testified
that both men were black. Riley stated that she was
"[m]aybe two arms' lengths" away from the man
with the gun when she observed him in the living room. Riley
also testified that she had seen a third person standing
outside the house by the "dark red maroon" car but
that the third person did not come inside the house and she
"couldn't see that far down to tell anything about
State asked Riley, "[T]he party in all black that came
into the residence that night that you saw with the gun, do
you see him here in the courtroom today?" Riley replied
that she did, and she then identified McCurry. The State
asked Riley whether she had ever seen McCurry before that
night. She replied that "[a] couple of weeks before
that" she had "ran into him and [Wright]
outside" a hotel. Riley spoke with Wright because
"she was a friend." During the conversation with
Wright, Riley had a brief exchange with McCurry who was an
"arm's length or so away" from her. McCurry
told Riley that she "should basically leave [her]
baby's dad alone and just to fuck with him." Riley
"just kind of laughed it off and shrugged it off."
Riley testified that she believed that the time at the hotel
was the first time that she had met McCurry.
cross-examination, Riley admitted that she had originally
told police that the first time she met McCurry was at a
restaurant rather than at a hotel. She testified that she
lied to the police about the location because she was
engaging in prostitution at the hotel and was afraid she
would get herself into trouble if she told the police the
truth of the location. Riley also admitted that her
interaction with McCurry at the hotel lasted only a few
minutes and that she was trying to ignore him most of that
further cross-examination, Riley admitted that during the 911
call, she was asked if she knew who had fired the gunshot and
she said she did not know. She also acknowledged that in a
pretrial deposition, she had testified that on the night of
the shooting, she did not recognize either of the intruders.
Riley further acknowledged that after the shooting but before
she went to be interviewed by investigators, she tried to
contact Wright by telephone and through her Facebook page.
She also looked at Wright's Facebook page to see if she
could determine the identity of the man who had come to the
house looking for Wright. Riley testified that after she had
talked with police, Marzettie's adult son had shown her a
picture of McCurry that he had found on Facebook and
"asked if it was him." Riley did not testify as to
redirect, Riley testified that although she did not
immediately recognize the two men who came into the house,
the man with the gun looked familiar and that she "knew
[she] had seen his face before but just couldn't put a
name with the face."
Simpson s Testimony.
testified that she had become acquainted with Marzettie in
2010 or 2011. In June 2014, she came to Omaha to retrieve a
vehicle and visit family. While in Omaha, she contacted
Marzettie and eventually ended up staying at his house.
Simpson was at the house on the night of June 25. Around
10:30 p.m., she went outside to smoke a cigarette. Simpson
saw a "[d]ark four-door sedan" pull up and park at
the end of the driveway. The driver rolled down his window
and asked for "Cherita." Simpson did not recognize
the name, so she spoke to Marzettie through a window and
asked him "who Cherita was." Marzettie came
outside, and the driver and a back seat passenger got out of
the vehicle. Simpson did not recognize either person, but she
described them as "black males." Simpson saw
another passenger in the front seat, but she did not see him
get out of the vehicle. The back seat passenger stayed by the
vehicle, while the driver walked toward the house,
"asking for Cherita, saying to tell Cherita to come
Riley came outside to get Marzettie's daughter, Simpson
went inside with Riley. Simpson stayed in the front of the
house, while Riley went to the bedroom to put the child down
in the portable crib. Marzettie came inside to get his cell
phone and tried to make a call, but did not appear to get an
answer. Marzettie yelled out the door that
"Cherita" was not there. The driver of the car came
inside, and Simpson saw that he was carrying a gun in his
hand. She also noted that he was wearing "[a]ll black .
. . [b]lack jeans, black T-shirt, black hat." Simpson
testified that he and Marzettie were arguing and that she saw
Marzettie run from him.
testified that the back seat passenger, who was wearing
"[b]lack jeans, red shirt, red hat, " came inside
the house and that he and the driver punched Marzettie.
Simpson saw Marzettie being pushed down on a couch and heard
him "begging not to get shot." During the
confrontation, Simpson heard the driver ask Marzettie
"if he remembered getting into it with him at the
club." At one point, the passenger left the house and
Marzettie stood up and pushed the gun out of the driver's
hand. The gun flew near Simpson, and she moved away. The
driver was able to retrieve the gun before Marzettie could
reach it. Simpson then saw the driver point the gun, and she
heard a gunshot. After the gunshot, Simpson saw the driver
run out of the house, closing the door behind him. Simpson
saw Marzettie fall to the floor, and she ran to the bedroom
to get Riley. The door was closed, so Simpson banged on the
door and told Riley, who was on her cell phone with the
police, to come out. The two women went to tend to Marzettie,
and Simpson saw that he had a gunshot wound to his chest.
cross-examination, Simpson testified that the first statement
she gave regarding the shooting was when she was questioned
by detectives at the police station. In response to
questioning by McCurry, Simpson stated that detectives had
shown her photographs of individuals. The State objected when
McCurry asked Simpson, "[D]id you identify anyone?"
The State argued in a sidebar to the bench that it was not
permissible to ask questions about photographic lineups, and
McCurry argued in response that Simpson's expected
testimony-that she was not able to identify anyone-was not
hearsay. The court sustained the State's objection but
allowed McCurry to make an offer of proof outside the
offer of proof, McCurry offered a photographic lineup spread
of six individuals, one of whom was McCurry, and he alleged
that the photographs were shown to Simpson. McCurry claimed
that Simpson would testify that she was not able to identify
anyone from the photographic lineup but that she said that
one of the men, who was not McCurry, looked familiar. After
the offer of proof and further argument, the court again
sustained the State's objection. The court noted that the
evidence may have been permissible to impeach Simpson's
credibility if Simpson had identified McCurry as the man who
shot Marzettie, but that the State had not asked Simpson to
identify McCurry. After the offer of proof and the
court's ruling, McCurry resumed his cross-examination of
Simpson before the jury. During the cross-examination,
McCurry asked Simpson, "[Y]ou have been unable to
identify anyone who was in that house at that time, other
than . . . Marzettie and the people you already know; is that
true?" Simpson replied, "That's true,
in the trial, the State called as a witness an officer who
had questioned Simpson at the police station. During
cross-examination of the officer, McCurry made another offer
of proof to the effect that the officer would testify that he
had shown Simpson the photographic lineup and that she was
unable to identify McCurry, but thought that one of the other
men looked familiar. The State ...