State of Nebraska v. Corleone M. McCurry

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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.

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Nebraska Supreme Court Advanc e Sheets

296 Nebraska Reports

STATE v. McCURRY

Cite as 296 Neb. 40

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

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296 Nebraska Reports

STATE v. McCURRY

Cite as 296 Neb. 40

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

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STATE v. McCURRY

Cite as 296 Neb. 40

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

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STATE v. McCURRY

Cite as 296 Neb. 40

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

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Cite as 296 Neb. 40

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

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296 Nebraska Reports

STATE v. McCURRY

Cite as 296 Neb. 40

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 objected based on hearsay and

relevance, and the court again determined that the evidence

was inadmissible.

Cherita Wright’s Testimony.

Wright testified that she met McCurry at a strip club where

she worked. She developed an arrangement with McCurry

wherein he provided transportation and use of a cell phone to

assist her in pursuing work as a prostitute. Wright testified that

the arrangement had started “maybe a month or two” before

June 25, 2014, and that in that time, she and McCurry developed

a friendship and a casual sexual relationship. She testified

that one of the vehicles he used to transport her was a “maroon

four-door car.”

During Wright’s testimony regarding her relationship with

McCurry, the State asked, “[I]n the times you’re spending

with . . . McCurry, did you ever have the occasion to see

him with a firearm?” McCurry objected before Wright could

answer. In a sidebar, McCurry moved for a mistrial. He argued

that because McCurry was a felon, his possession of a firearm

was a crime, and that therefore, evidence he had a firearm was

evidence of other crimes under Neb. Evid. R. 404, Neb. Rev.

Stat. § 27-404 (Reissue 2016). McCurry argued that because

the State had not requested a hearing as required under rule

404, the evidence was not admissible and the State’s attempt

to elicit such evidence required declaration of a mistrial. The

State argued in response that the evidence was relevant to

the present crime, because Wright would testify that a couple

weeks prior to June 25, 2014, she had seen McCurry with a gun

and that he had put it under the hood of the maroon car. After

considering the arguments, the court sustained McCurry’s

objection to the question but overruled his motion for mistrial.

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296 Nebraska Reports

STATE v. McCURRY

Cite as 296 Neb. 40

The court instructed the jury to disregard the State’s previous

question and to not speculate as to the answer.

Wright further testified that she had met Marzettie in 2009

or 2010 and that she had worked for him as a prostitute

“off and on through the years.” Wright’s arrangement with

Marzettie was that he “ran the show,” meaning she gave

him the money she earned while he “controlled” and “set up

everything.” Wright testified that during the time she knew

Marzettie, the two occasionally had an “intimate relationship”

and that she would sometimes stay at his house. She testified

that she would be at Marzettie’s house “[s]ometimes . . . once a

week or twice” and “[s]ometimes I didn’t go over for months at

a time.” Wright came to know and become friends with Riley

through Marzettie, and at one time, she had lived in the house

with Marzettie and Riley.

Wright testified that 2 or 3 weeks before June 25, 2014,

she and McCurry went drinking at a strip club in Council

Bluffs, Iowa. While at the strip club, she saw and spoke with

Marzettie. Wright testified that Marzettie and McCurry “got

into an altercation” and that she “was in the middle of it.” After

the altercation, Wright left the strip club with Marzettie and he

took her to a hotel, where they spent the night together.

Wright testified that sometime after the altercation at the

strip club, but before June 25, 2014, McCurry drove her to

a hotel where she was to engage in prostitution. While at the

hotel, she ran into Riley and the two of them had a conversation

which lasted “probably five minutes.” Wright testified that

McCurry was present during at least part of her conversation

with Riley.

Wright testified that on the morning of June 25, 2014, she

had McCurry drive her to see Riley; she had planned to see

Riley the night before, but decided to put it off until the morning

because she was “too drunk.” Wright asked McCurry to

drop her off at a corner near the house in which Riley lived

with Marzettie. She testified that she had McCurry drop her off

down the street from Marzettie’s house, because she wanted

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STATE v. McCURRY

Cite as 296 Neb. 40

to avoid any contact between McCurry and Marzettie. After

McCurry drove away, Wright knocked on the door of the

house but no one was home. Wright left and got a ride with a

“random white man” to her aunt’s house. Wright stayed at her

aunt’s house until that evening when her cousin got off work

and took Wright to her house. Wright called McCurry, and he

told her that “an altercation had went down again” between

McCurry and Marzettie. McCurry said that Marzettie “had

gotten got” but that McCurry did not want to talk about it

over the telephone and he ended the call after a couple of minutes.

Wright spoke with McCurry again in the early morning

hours of the next day and he told her that “he got into it with

[Marzettie] and that they got him” but that “it really had nothing

to do with” Wright. McCurry asked Wright whether Riley

knew McCurry’s name, and he told Wright to tell Riley “to be

quiet.” During cross-examination, Wright testified that during

the call, she “asked [McCurry] who did it, and he just said one

of his homies.”

Other Evidence.

The State presented further evidence, including evidence

that after McCurry was arrested, police officers executed a

search warrant at the residence where McCurry had been staying.

Among the items found during the search was a plastic

bag that contained, inter alia, a black shirt, dark jean shorts,

and McCurry’s driver’s license. A black hat was found in

the search.

The State’s evidence also included recordings of telephone

calls McCurry made while he was in jail. In the recordings,

McCurry stated, inter alia, that he had gone to a house looking

for “the girl, Cherita,” that he had earlier dropped “Cherita”

off near that house, and that the house was the house of a “guy

[he] already had fought . . . like 3 or 4 weeks ago at the club.”

Jury Instructions.

At the jury instruction conference, McCurry offered an

instruction regarding eyewitness identification testimony. The

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STATE v. McCURRY

Cite as 296 Neb. 40

full text of McCurry’s proposed instruction is set forth in the

analysis section below. The court refused McCurry’s proposed

instruction regarding eyewitness identification testimony.

McCurry objected to a portion of the court’s instruction

regarding the elements of the murder charge. The court’s

instruction was a “step instruction” based on NJI2d Crim. 3.1,

and a section of the instruction titled “Effect of Findings” provided

that the jury must “separately consider in the following

order” the crimes of first degree murder, second degree murder,

and manslaughter. McCurry proposed an alternate “Effect

of Findings” section which provided, inter alia, that the jury

need not be unanimous in rejecting a greater offense before

it considered whether the defendant was guilty of a lesser

offense. The district court overruled McCurry’s objection to

its instruction and refused to substitute McCurry’s proposed

“Effect of Findings” section.

Conclusion of Trial.

The jury found McCurry guilty of first degree murder, use

of a firearm to commit a felony, and possession of a firearm

by a prohibited person. The court sentenced McCurry

to life imprisonment for first degree murder, 30 to 50 years’

imprisonment for use of a firearm to commit a felony, and

20 to 30 years’ imprisonment for possession of a firearm by

a prohibited person. The court ordered the sentence for the

use conviction to be served consecutively to the life sentence

for murder, and it ordered the sentence for the possession

conviction to be served concurrently with the sentence for the

use conviction.

McCurry appeals his convictions.

ASSIGNMENTS OF ERROR

McCurry claims that the district court erred when it (1)

overruled his motion for mistrial after the State asked Wright

if she had ever seen McCurry in possession of a firearm, (2)

refused his proposed jury instruction on eyewitness identification,

(3) overruled his objection to the step instruction and

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STATE v. McCURRY

Cite as 296 Neb. 40

refused his requested instruction stating that the jury need not

be unanimous in rejecting a greater offense before considering

lesser offenses, (4) sustained the State’s objection to his

proposed evidence to the effect that when Simpson was shown

a photographic lineup she was unable to identify McCurry as

one of the intruders, and (5) violated his constitutional right to

present a complete defense when it refused to admit his proposed

evidence regarding Simpson’s inability to identify him

from a photographic lineup. McCurry also claims that there

was not sufficient evidence to support his conviction for first

degree murder.

STANDARDS OF REVIEW

[1] The decision whether to grant a motion for mistrial

will not be disturbed on appeal in the absence of an abuse

of discretion. State v. Chauncey, 295 Neb. 453, ___ N.W.2d

___ (2017).

[2] 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. State v. Martinez, 295 Neb. 1, 886 N.W.2d

256 (2016).

[3,4] 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. State v. Hinrichsen,

292 Neb. 611, 877 N.W.2d 211 (2016). 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. Id.

[5] 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

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hearsay grounds. State v. Trice, 292 Neb. 482, 874 N.W.2d

286 (2016).

[6] The determination of whether procedures afforded an

individual comport with constitutional requirements for procedural

due process presents a question of law. State v. Ballew,

291 Neb. 577, 867 N.W.2d 571 (2015).

[7] 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. State v. Pester, 294 Neb. 995, 885

N.W.2d 713 (2016).

ANALYSIS

District Court Did Not Abuse Its Discretion

When It Overruled McCurry’s

Motion for Mistrial.

McCurry first claims that the district court erred when it

overruled his motion for mistrial after the State asked Wright

if she had ever seen McCurry in possession of a firearm. We

conclude that the court did not abuse its discretion when it

overruled McCurry’s motion for mistrial.

As discussed above, McCurry objected when the State asked

Wright whether she had ever seen McCurry in possession of

a gun. During a sidebar conference, he also moved for a mistrial.

The court sustained McCurry’s objection to the question

but overruled the motion for mistrial. The court instructed the

jury to disregard the State’s question and to not speculate as to

the answer.

[8,9] 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

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admonition or instruction to the jury and thus prevents a

fair trial. State v. Chauncey, 295 Neb. 453, ___ N.W.2d ___

(2017). The defendant must prove that the alleged error actually

prejudiced him or her, rather than creating only the possibility

of prejudice. Id. However, 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. Id.

In the present case, Wright did not answer the State’s question;

the district court sustained McCurry’s objection to the

question, and the court instructed the jury to disregard the

question and to not speculate as to the answer. McCurry’s

appellate arguments are essentially a contention that there

was a possibility of prejudice. Contrary to McCurry’s contention,

we believe that the court’s admonishment was sufficient

to overcome any potential prejudice resulting from the

State’s question, and we therefore conclude that the court did

not abuse its discretion when it overruled McCurry’s motion

for mistrial.

District Court’s Refusal of McCurry’s Proposed

Eyewitness Identification Instruction

Was Not Reversible Error.

McCurry next claims that the district court erred when it

refused his proposed jury instruction on eyewitness identification.

We conclude that the court’s refusal of the instruction

was not reversible error.

At the jury instruction conference, McCurry offered an

instruction regarding eyewitness identification testimony. The

proposed instruction provided as follows:

The value of identification testimony depends on the

opportunity the witness had to observe the offender at

the time of the offense and to make a reliable identification

later.

In evaluating such testimony you should consider all

of the factors mentioned in these instructions concerning

your assessment of the credibility of any witness, and

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you should also consider, in particular, whether the witness

had an adequate opportunity to observe the person in

question at the time of the offense. You may consider, in

that regard, such matters as the length of time the witness

had to observe the person in question, the prevailing conditions

at that time in terms of visibility or distance and

the like, and whether the witness had known or observed

the person in earlier times.

You should also consider whether the identification

made by the witness after the offense was the product

of the witness’s own recollection. You may consider, in

that regard, the strength of the identification, and the circumstances

under which the identification was made, and

the length of time that elapsed between the occurrence

of the crime and the next opportunity the witness had to

see [McCurry].

You may also take into account that an identification

made by picking [McCurry] out of a group of

similar individuals is generally more reliable than one

which results from the presentation of [McCurry] alone

to the witness.

If the identification by the witness may have been

influenced by the circumstances under which [McCurry]

was presented to the witness for identification, you should

scrutinize the identification with great care.

You may take into account any occasions in which the

witness failed to make an identification of [McCurry],

or made an identification that was inconsistent with her

identification at trial.

The court refused McCurry’s proposed instruction.

The court gave the following instruction with regard to witness

credibility:

You are the sole judges of the credibility of the witnesses

and the weight to be given to their testimony. In

determining the weight which the testimony of the witnesses

is entitled to receive, you should consider:

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1. Their interest in the result of the suit, if any;

2. Their conduct and demeanor while testifying;

3. Their apparent fairness or bias or relationship to the

parties, if any such appears;

4. Their opportunity for seeing or knowing the things

about which they have testified;

5. Their ability to remember and relate accurately the

occurrences referred to in their evidence;

6. The extent to which they are corroborated, if at all,

by circumstances or the testimony of credible witnesses;

7. The reasonableness or unreasonableness of their

statements;

8. Evidence of previous statements or conduct inconsistent

with their testimony at this trial; and

9. All other evidence, facts, and circumstances proved

tending to corroborate or contradict such witnesses.

McCurry argues on appeal that the court’s refusal to give his

proposed instruction regarding eyewitness identification was

reversible error, because the identity of the person who shot

Marzettie was a crucial issue in this case.

[10] 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. State v. Rothenberger,

294 Neb. 810, 885 N.W.2d 23 (2016). In this case, we need

not determine whether McCurry’s tendered instruction is a

correct statement of the law, because we determine that based

on the evidence in this case, the instructions given by the

court were adequate and McCurry was not prejudiced by the

court’s refusal to give his proposed instruction on eyewitness

identification.

The only eyewitness in this case who identified McCurry

was Riley. Simpson was also an eyewitness and was able to

describe the person who shot Marzettie; however, she did

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not identify McCurry as that person and she admitted that

she had been unable to identify the persons who came into

Marzettie’s house. Therefore, Riley is the only witness to

whom McCurry’s proposed instruction regarding eyewitness

identification might apply.

In State v. Freemont, 284 Neb. 179, 817 N.W.2d 277

(2012), we recognized precedent of other courts to the effect

that it is reversible error to refuse to give an eyewitness

identification instruction where the government’s case rests

solely on questionable eyewitness identification. However, in

Freemont, we determined that a proposed eyewitness identification

instruction was not warranted by the evidence,

because identifying witnesses knew the defendant, there was

no indication of racial bias in their identifications, and the

identifications were corroborated by other witnesses and by

circumstantial evidence. We further determined in Freemont

that the defendant could not establish prejudice as a result

of the court’s refusal of the proposed instruction, because

the court gave a general witness credibility instruction which

“was sufficient to protect against any prejudice related to the

reliability of the eyewitness identifications.” 284 Neb. at 201,

817 N.W.2d at 296.

The present case differs from Freemont in that there were

no other eyewitness identifications to corroborate Riley’s identification

of McCurry and Riley’s identification of McCurry

was based on having met him once for a short time rather

than from having known him well. However, McCurry does

not assert that Riley had difficulty identifying McCurry due to

racial differences or that the evidence indicates that Riley was

identifying a person she had never seen before; cross-racial

identification and identification of a stranger are concerns

typically addressed by eyewitness identification instructions

like the one proposed by McCurry.

We also note that although Riley’s identification of

McCurry was not explicitly corroborated by other eyewitnesses,

there was circumstantial evidence to corroborate

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her identification; such circumstantial corroborating evidence

includes Simpson’s description of the person who shot

Marzettie and the clothes the person was wearing and the

recording of McCurry’s telephone calls from jail in which

McCurry indicated that he had gone to Marzettie’s house

looking for Wright. This case does not require us to adopt

an eyewitness identification instruction, and instead, we conclude

that the general credibility instruction given by the court

adequately addressed the issues. For example, the jury was

instructed to determine witness credibility by considering,

inter alia, the witnesses’ “opportunity for seeing or knowing

the things about which they have testified” and the “extent to

which they are corroborated, if at all, by circumstances or the

testimony of credible witnesses.” McCurry’s concerns were

adequately met, because as illustrated, the jury was instructed

to consider Riley’s basis for identifying McCurry as well as

the corroboration or lack of corroboration by other eyewitness

identifications when determining whether her identification

testimony was credible.

Based on the evidence and the general witness credibility

instruction given in this case, McCurry has not shown that he

was prejudiced by the court’s refusal of his proposed eyewitness

identification instruction. We therefore conclude that the

court’s refusal of the instruction was not reversible error, and

we reject this assignment of error.

District Court’s Use of Step Instruction and Refusal

of McCurry’s Proposed Alternate Instruction

Was Not Reversible Error.

McCurry next claims that the district court erred when

it overruled his objection to the court’s step instruction and

refused his proposed instruction stating that the jury need not

acquit McCurry of the greater offense before considering lesser

offenses. We conclude that the court’s use of its instruction and

refusal of McCurry’s requested instruction were not reversible

error.

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McCurry objected to the “Effect of Findings” portion of the

district court’s instruction regarding the elements of the murder

charge. The court’s instruction was based on NJI2d Crim.

3.1, and the “Effect of Findings” portion of the instruction

given by the court provided as follows:

You must separately consider in the following order

the crimes of Murder in the First Degree, Murder in the

Second Degree, and Manslaughter. For Murder in the

First Degree, you must decide whether the State proved

each element beyond a reasonable doubt. If the State did

so prove each element, then you must find [McCurry]

guilty of Murder in the First Degree and stop. If you find

that the State did not so prove, then you must proceed to

consider the next crime in the list, Murder in the Second

Degree. You must proceed in this fashion to consider

each of the crimes in sequence until you find [McCurry]

guilty of one of the crimes or find him not guilty of all

of them.

McCurry proposed an alternate “Effect of Findings” section

which concluded with the following: “Although your final verdict

must be unanimous, during your preliminary deliberations

and discussions, you are not required to be unanimous before

considering whether [McCurry] is guilty of a lesser offense

(i.e. murder in the second degree, intentional manslaughter or

unintentional manslaughter).” The court overruled McCurry’s

objection to its instruction and refused to substitute McCurry’s

proposed “Effect of Findings” section.

McCurry asserts that one of his defenses in this case was

that even if the jury found that he killed Marzettie, the act was

manslaughter rather than murder because it was the result of

a sudden quarrel provocation. He argues that it was therefore

crucial to his defense that the jury consider whether the killing

was manslaughter, that is, whether it occurred upon a sudden

quarrel, rather than first or second degree murder. He argues

that because the instruction required the jury to find that he

was not guilty of first degree murder before it could consider

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whether he was guilty of a lesser offense, such as intentional

manslaughter, the jury could find him guilty of first degree

murder without having considered whether the killing occurred

upon a sudden quarrel.

We considered and rejected a similar argument in State

v. Hinrichsen, 292 Neb. 611, 877 N.W.2d 211 (2016). In

Hinrichsen, the court determined that when finding the defendant

guilty of first degree murder, the jury found beyond a

reasonable doubt that the defendant acted with deliberate and

premeditated malice and that “the jury necessarily simultaneously

found beyond a reasonable doubt that there was no

sudden quarrel provocation, i.e., that [the defendant] did not

act without due deliberation and reflection.” 292 Neb. at 633,

877 N.W.2d at 227. The court concluded that the “crucial

question of whether [the defendant] acted with deliberate and

premeditated malice, or instead acted without due deliberation

and reflection, was very much presented to the jury even if the

jury was not directly instructed that sudden quarrel provocation

negates malice.” Id. at 633-34, 877 N.W.2d at 227. Although

the court rejected the defendant’s contentions in Hinrichsen,

we stated that in future first degree murder cases in which evidence

of provocation has been adduced by a defendant, courts

should clarify the definition of “deliberate” by explicitly stating

that “‘[a]n act is not deliberate if it is the result of sudden

quarrel provocation.’” 292 Neb. at 636, 877 N.W.2d at 228.

We note that the present case was tried before the decision in

Hinrichsen was filed.

Although the decision in Hinrichsen forecloses McCurry’s

argument, we add the further observation that there was no

evidence which would warrant an instruction on provocation.

The testimony of witnesses regarding how the shooting of

Marzettie occurred indicated that the shooter and another person

came into the house and fought with Marzettie for some

time before the shooting, that the altercation started outside the

house, and that the shooter was carrying a gun when he entered

the house. McCurry notes evidence that Marzettie knocked

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the gun out of the shooter’s hand and that the shooter shot

Marzettie after retrieving the gun. McCurry suggests that the

facts after the gun was knocked out of the shooter’s hand represent

a new incident. We reject this suggestion. The evidence

does not show that a sudden quarrel began when Marzettie

knocked the gun out of the shooter’s hand, but, instead, that

occurrence was part of an ongoing altercation. We determine

that there was no evidence that would have established sudden

quarrel provocation in this case.

We conclude that the court did not err when it refused

McCurry’s alternate “Effect of Findings” instruction, which

was designed to advise the jury to consider lesser offenses,

one of which includes the concept of sudden quarrel provocation.

Based on the reasoning in Hinrichsen, McCurry was not

prejudiced by the refusal, because the jury necessarily rejected

sudden quarrel provocation when it found him guilty of first

degree murder. McCurry was not prejudiced by refusal of the

instruction, because there was no evidence in this case that

McCurry was provoked into killing in the manner he did and

the evidence in this case did not warrant McCurry’s proposed

instruction designed to focus the jury on provocation. We reject

this assignment of error.

District Court Did Not Err When It Sustained

Hearsay Objection to Evidence Regarding

Simpson’s Failure to Identify McCurry

in a Photographic Lineup.

McCurry next claims that the district court erred when it

sustained the State’s objection to McCurry’s proposed evidence

to the effect that when Simpson was shown a photographic

lineup, she was unable to identify McCurry as one of the

intruders. We conclude that the court did not err when it sustained

the State’s objection based on hearsay.

Simpson testified on cross-examination that detectives had

shown her photographs of individuals. The State objected when

McCurry asked Simpson, “[D]id you identify anyone?” The

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court sustained the State’s objection but allowed McCurry to

make an offer of proof outside the jury’s presence. McCurry

made an offer of proof to the effect that, if permitted, Simpson

would testify that she was shown a photographic lineup and

that she was not able to identify anyone from the lineup, but

that she said one of the men, who was not McCurry, looked

familiar. The court again sustained the State’s objection, and

the court noted that the evidence may have been permissible

to impeach Simpson’s credibility if Simpson had identified

McCurry. In later 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 officer who had questioned Simpson

at the police station testified. During cross-examination of the

officer, the State objected and 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 others

looked familiar. The State again objected based on hearsay and

relevance, and the court again determined that the proposed

cross-examination evidence was inadmissible.

[11] In ruling that the evidence was inadmissible, the district

court cited State v. Scott, 284 Neb. 703, 824 N.W.2d 668

(2012), and State v. Salamon, 241 Neb. 878, 491 N.W.2d 690

(1992). In Scott, we cited Salamon for the proposition that

“testimony regarding an out-of-court identification is hearsay.”

284 Neb. at 718, 824 N.W.2d at 684. In Salamon, we compared

Nebraska hearsay rules to federal rules of evidence and stated

as follows:

[W]hile federal Rule 801(d)(1)(C) classifies a witness’

pretrial identification as a nonhearsay statement,

Nebraska Rule 801(4)(a)[, Neb. Rev. Stat. § 27-801(4)(a)

(Reissue 2016),] does not contain such classification and

provision and, in fact, makes no mention whatsoever

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concerning witness identification as a nonhearsay statement.

None of the other Nebraska Rules of Evidence or

other Nebraska statutes authorize admissibility of a witness’

pretrial identification of a defendant as a nonhearsay

statement or statement otherwise exempted or excluded

from the operation and purview of the “hearsay rule,”

Rule 802, [see Neb. Rev. Stat. § 27-802 (Reissue 2016),]

prohibiting admission of hearsay. Consequently, in the

absence of admissibility authorized under the Nebraska

Evidence Rules or by other statute, a witness’ pretrial

statement identifying a defendant as the perpetrator of a

crime is hearsay pursuant to Rule 801(3) and, therefore, is

inadmissible as the result of Rule 802. This is not to say

that a witness’ pretrial identification of a defendant may

never be admissible. Never say never. A witness’ pretrial

identification may be admissible in certain circumstances

encompassed within the Nebraska Evidence Rules, for

example, for the purpose of impeachment. See Neb. Evid.

R. 613[, Neb. Rev. Stat. § 27-613 (Reissue 2016)]. . . .

Whether Rule 801(4)(a) is amended to authorize admissibility

of a witness’ pretrial identification of a defendant

remains to be seen and is a legislative matter involving

the Nebraska Evidence Rules.

241 Neb. at 890-91, 491 N.W.2d at 698. We note that since

Salamon was decided in 1992, the Legislature has not amended

Neb. Evid. R. 801(4)(a), Neb. Rev. Stat. § 27-801(4)(a) (Reissue

2016), in order to classify a witness’ pretrial identification as a

nonhearsay statement.

McCurry argues that the present case is distinguishable from

Salamon and Scott, because in those cases, the out-of-court

statement was offered to prove the truth of the matter asserted;

that is, the person who was identified was the perpetrator of

the offense. He argues that in the present case, he was not trying

to prove the truth of an assertion, but, instead, was trying

to show that Simpson “made no identification of him as being

at the scene” and that, instead, she “tentatively identified a

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different person in the photo spread.” Brief for appellant at 33.

McCurry’s argument is unconvincing.

In his offer of proof, the record shows that McCurry sought

to put before the jury evidence that when Simpson was shown

the photographic lineup, she made the statements that she was

not able to identify any of the men as the shooter and that she

thought one of the other men looked familiar. Thus, inherent in

McCurry’s own argument, he was attempting to prove the truth

of these statements; that is, Simpson was not able to identify

McCurry and she thought another man looked familiar.

It follows that the evidence McCurry sought to offer was

hearsay and that characterization of the evidence as a witness’

pretrial identification, or nonidentification, did not remove

the evidence from being treated as hearsay under Nebraska

law. Further, as the district court noted, the evidence was not

admissible for purposes of impeachment, because during her

testimony, Simpson did not make an in-court identification

of McCurry and, therefore, there was no need to impeach an

identification. We conclude that the district court did not err

when it determined that the evidence McCurry sought to put

before the jury was inadmissible under Nebraska hearsay law.

We reject this assignment of error.

District Court Did Not Violate McCurry’s Constitutional

Rights When It Sustained Objection to Evidence

Regarding Simpson’s Failure to Identify

McCurry in a Photographic Lineup.

McCurry claims that even if the evidence regarding

Simpson’s failure to identify him from a photographic lineup

was inadmissible under Nebraska hearsay law, the district court

violated his due process and compulsory process rights and his

right to present a complete defense when it refused to admit

such evidence. We reject this claim.

[12] We have stated that 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

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federal Constitution guarantees criminal defendants a meaningful

opportunity to present a complete defense. State v.

Ballew, 291 Neb. 577, 867 N.W.2d 571 (2015). However,

the accused does not have an unfettered right to offer testimony

that is incompetent, privileged, or otherwise inadmissible

under standard rules of evidence. Id. As we concluded

above, the district court did not err when it concluded that

the evidence regarding Simpson’s failure to identify him from

a photographic lineup was inadmissible as hearsay under

Nebraska’s standard rules of evidence.

McCurry notes that in Holmes v. South Carolina, 547 U.S.

319, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006), the U.S.

Supreme Court stated that while state and federal rulemakers

have broad latitude under the Constitution to establish rules

excluding evidence from criminal trials, the defendant’s right

to present a complete defense is abridged by evidence rules

that infringe upon a weighty interest of the accused and are

arbitrary or disproportionate to the purposes they are designed

to serve. McCurry asserts that Nebraska is one of only two

states that does not follow the federal rules by classifying

a witness’ pretrial identification as a nonhearsay statement.

He argues that “in light of the . . . overwhelming number of

jurisdictions that allow evidence of pretrial identification, the

absence of this exception to the hearsay rule is an arbitrary

evidentiary rule” and that therefore, under Holmes, the application

of Nebraska’s evidentiary rule in this case abridged his

constitutional right to present a complete defense. Brief for

appellant at 36.

We disagree. The fact that Nebraska’s rule on this subject is

not in accordance with the majority of other jurisdictions does

not in and of itself make the rule arbitrary or disproportionate

to the purposes such rules are designed to serve. Furthermore,

as we noted in State v. Salamon, 241 Neb. 878, 491 N.W.2d

690 (1992), “[w]hether Rule 801(4)(a) is amended to authorize

admissibility of a witness’ pretrial identification of a

defendant

. . . is a legislative matter”; since Salamon was

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decided in 1992, the Legislature has chosen not to change the

rule to conform to other jurisdictions.

We further note that the application of this rule of evidence

in this case did not abridge McCurry’s right to present a complete

defense, because he was not prevented from arguing

to the jury that Simpson had witnessed the shooting but was

unable to identify McCurry as the shooter. As noted above,

Simpson never identified McCurry and, on cross-examination,

McCurry was able to elicit testimony from her to the effect

that she had not been able to identify the persons who came

into Marzettie’s house that night. Simpson’s nonidentification

was in evidence. Therefore, to the extent the fact that Simpson

was unable to identify McCurry as being the perpetrator was

important to his defense, he was not prevented from arguing it

to the jury.

McCurry’s right to a meaningful opportunity to present a

complete defense did not entitle him to present evidence that

was otherwise inadmissible under standard rules of evidence,

including hearsay rules. Furthermore, exclusion of the specific

evidence at issue did not prevent McCurry from presenting a

defense based on Simpson’s failure to identify him. We therefore

conclude that the district court did not violate McCurry’s

constitutional rights when it ruled the evidence inadmissible.

We reject this assignment of error.

There Was Sufficient Evidence to

Support McCurry’s Conviction

for First Degree Murder.

In his final assignment of error, McCurry claims that there

was not sufficient evidence to support his conviction for first

degree murder. McCurry does not argue that there was not sufficient

evidence for the jury to find that he killed Marzettie;

instead, he argues that manslaughter is the highest degree of

homicide the evidence in this case supports. We conclude

that, viewing the evidence in the light most favorable to the

prosecution as we must, see State v. Pester, 294 Neb. 995,

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885 N.W.2d 713 (2016), there was sufficient evidence from

which the jury could have found McCurry guilty of first

degree murder.

McCurry argues that testimony given by the eyewitnesses,

Riley and Simpson, described “a sudden quarrel that erupted

between the intruders and the deceased.” Brief for appellant at

38. He claims that an argument ensued between the intruders

and Marzettie after the intruders entered the house and “one

of the intruders introduced a gun into the altercation.” Id. at

39. He also states the evidence shows that neither Riley nor

Simpson saw the actual shooting and that Simpson testified

that the shooter and Marzettie “scrambled to gain possession”

of the gun after it landed on the floor. Id. at 38.

We disagree with McCurry’s characterization of the evidence.

We first note that there was sufficient evidence to

identify McCurry as the person who shot Marzettie. In the

telephone calls McCurry made while he was in jail, he stated

that he had gone to a house looking for “Cherita,” that he

had earlier dropped her off near the house, and that the house

was the house of a “guy [he] already had fought . . . like 3

or 4 weeks ago at the club.” This was consistent with the testimony

of Wright and others to the effect that McCurry had

been in a fight with Marzettie at a club, that McCurry had

dropped Wright off near Marzettie’s house earlier on the day

of the shooting, and that one of the people who intruded into

Marzettie’s house said he was looking for “Cherita.” Although

neither Riley nor Simpson said they actually saw the shooting

as it happened, Simpson testified that she saw one of the

intruders pointing the gun at Marzettie immediately before

the shot was fired. Simpson’s description of the shooter and

the clothes he wore matched the description given by Riley of

the intruder she identified as McCurry. The description of the

clothing also matched the description of clothing found in a

search of the residence where McCurry had been staying; several

items of the clothing were found in a plastic bag that also

contained McCurry’s driver’s license.

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Given the foregoing, there was sufficient evidence for the

jury to find that McCurry killed Marzettie purposely and with

deliberate and premeditated malice. Contrary to McCurry’s

claim that the evidence showed that the altercation did not

start until the men were inside the house, Riley testified that

Marzettie and another man were “kind of arguing back and

forth” when they were still outside and that after Marzettie

came into the house, the other man “pulled the gun out and

came in the house after him” and pointed the gun at Marzettie.

Simpson also testified that the man was carrying a gun in his

hand when he entered the house. Simpson testified as follows:

She heard the man and Marzettie arguing; she saw Marzettie

run from him; she heard Marzettie “begging not to get shot”;

she heard the other man ask Marzettie “if he remembered getting

into it with him at the club”; after Marzettie knocked the

gun out of the man’s hand, she saw the man retrieve the gun

before Marzettie could reach it; and she saw the man point the

gun at Marzettie right before she heard a gunshot.

As we noted above in connection with McCurry’s claim

regarding the “Effect of Findings” section of the elements

instruction, the evidence did not support a finding of a sudden

quarrel provocation. Reminiscent of our earlier discussion,

McCurry again contends that the evidence shows a sudden

quarrel that erupted inside the house and that involved a

struggle over a gun. To the contrary, testimony by Riley and

Simpson indicated that the altercation had been going on for

some time before the shooting, that the shooter had the gun in

hand when he entered the house, and that Marzettie was running

from the other man and begging not to be shot. We determined

above that, although there was evidence that Marzettie

knocked the gun out of the man’s hand, the context of such

evidence does not indicate that this act provoked a sudden

quarrel, but, instead, that it was part of an ongoing altercation.

In addition, Simpson’s testimony that the other man asked

Marzettie “if he remembered getting into it with him at the

club” would indicate that the present altercation and shooting

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was a continuation of or the result of that earlier confrontation

and did not come up suddenly.

In sum, the evidence noted above supported a finding that

McCurry shot and killed Marzettie purposely and with deliberate

and premeditated malice. Viewing the evidence in the light

most favorable to the prosecution, the evidence supported the

jury’s finding that McCurry was guilty of first degree murder.

We reject this assignment of error.

District Court Erred When It Ordered McCurry’s

Sentence for the Use Conviction and His Sentence

for the Possession Conviction to Be Served

Concurrent With One Another.

As a final matter, we note error in the district court’s sentencing

which requires us to vacate the sentences and remand

the cause to the court for resentencing. As noted above, the

court ordered McCurry’s sentence for use of a firearm to commit

a felony to be served consecutively to his life sentence

for murder, and it ordered McCurry’s sentence for possession

of a firearm by a prohibited person to be served concurrently

with his sentence for the use conviction. We conclude that the

court erred when it ordered the sentence for the possession

conviction to be served concurrently with the sentence for the

use conviction.

[13] McCurry was convicted of use of a firearm to commit

a felony pursuant to Neb. Rev. Stat. § 28-1205(1) (Reissue

2016). Section 28-1205(3) provides, “The crimes defined in

this section shall be treated as separate and distinct offenses

from the felony being committed, and sentences imposed

under this section shall be consecutive to any other sentence

imposed.” We have held that § 28-1205(3) 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 concurrently with no other sentence. Under the

plain language of § 28-1205, the court must order a sentence

for use of a firearm to run consecutively to a sentence for the

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underlying felony offense and the sentence for use may not run

concurrently to any other sentence. See State v. Ramirez, 287

Neb. 356, 842 N.W.2d 694 (2014). In this case, the court did

not have the authority to order McCurry’s sentence for use of

a firearm conviction to be served concurrently with any other

sentence, including his sentence for the possession of a firearm

conviction.

[14] 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. State v. Ramirez, supra.

Therefore, we vacate the sentences imposed for the use conviction

and the possession conviction on the basis that they were

ordered to be served concurrently with one another. We note

that we do not vacate the life sentence for first degree murder.

We remand the cause with directions to the district court to

resentence McCurry such that the sentence for the conviction

for use of a firearm to commit a felony runs consecutively to

any other sentences imposed and not concurrently with any

other sentence.

For completeness, we note that McCurry was convicted of

possession of a firearm by a prohibited person pursuant to

Neb. Rev. Stat. 28-1206 (Reissue 2016) rather than possession

of a firearm in the commission of a felony pursuant to

§ 28-1205(2). Therefore, on remand, while the court does not

have discretion to order the sentence for the possession conviction

to run concurrently with the sentence for the use conviction,

the court does have discretion to determine whether the

sentence for the possession conviction shall be served concurrently

with the life sentence for murder or whether it shall be

served consecutively to both the sentence for the use conviction

and the sentence for the murder conviction.