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State v. McCurry

Supreme Court of Nebraska

March 17, 2017

State of Nebraska, appellee,

         1. 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.

         2. 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.

         3. 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.

         4. __: __ . 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 necessitating reversal.

         5. 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.

         6. 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.

         7. 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.

         8. 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.

         9. 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.

         10. 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.

         11. Hearsay. Testimony regarding an out-of-court identification is hearsay.

         12. 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.

         13. 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.

         14. 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.

         Appeal 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.

          Thomas C. Riley, Douglas County Public Defender, for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Miller-Lerman, J.


         Corleone 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.


         On June 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 prohibited person.

         At 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.

         The 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.

         Patricia Riley's Testimony.

         Riley 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.

         On the 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 clothing."

         After 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.

         Riley 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 soon thereafter.

         Regarding 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 the person."

         The 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.

         On 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 time.

         On 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 her response.

         On 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."

         Jessica Simpson s Testimony.

         Simpson 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 out."

         When 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.

         Simpson 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.

         During 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 jury's presence.

         In 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, correct."

         Later 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 ...

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