State v. McCurry , 296 Neb. 40 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/17/2017 08:09 AM CDT
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. McCURRY
Cite as 296 Neb. 40
State of Nebraska, appellee, v.
Corleone M. McCurry, appellant.
___ N.W.2d ___
Filed March 17, 2017. No. S-15-1114.
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 rul-
ing 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 pro-
cedures 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
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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 ele-
ments 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 pos-
sibility 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 appel-
lant 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
defend­ ants a meaningful opportunity to present a complete defense.
However, the accused does not have an unfettered right to offer testi-
mony that is incompetent, privileged, or otherwise inadmissible under
standard rules of evidence.
13. Sentences: Weapons. Neb. Rev. Stat. § 28-1205(3) (Reissue 2016) man-
dates 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
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STATE v. McCURRY
Cite as 296 Neb. 40
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,
K elch, and Funke, JJ.
Miller-Lerman, J.
NATURE OF CASE
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 fire-
arm by a prohibited person. On appeal, McCurry claims, inter
alia, that the court erred when it refused his proposed instruc-
tion 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 con-
currently with his sentence for the possession conviction; we
vacate those sentences and remand the cause to the district
court for resentencing on those convictions.
STATEMENT OF FACTS
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 identi-
fied McCurry as a suspect in the shooting, and McCurry was
arrested on June 29. The State charged McCurry with first
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degree murder and use of a firearm to commit a felony; the
State later added a charge of possession of a firearm by a pro-
hibited person.
At McCurry’s trial, the State presented evidence, including
testimony by police officers and forensic analysts who par-
ticipated 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 testi-
fied that late that night, she was on an enclosed porch smok-
ing 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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STATE v. McCURRY
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On the night of June 25, 2014, Riley was at the house with
Marzettie. Also in the house were Marzettie’s infant daugh-
ter 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 bed-
room, 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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dispatch service and to calm Marzettie’s daughter, who had
begun crying. While Riley was on her cell phone with the dis-
patcher, she heard a gunshot. She then heard Simpson pound-
ing 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 origi-
nally told police that the first time she met McCurry was at
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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 imme-
diately 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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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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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 permissi-
ble 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 famil-
iar. 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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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 devel-
oped 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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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 conversa-
tion 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 morn-
ing 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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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 min-
utes. 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 noth-
ing 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 stay-
ing. 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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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” pro-
vided that the jury must “separately consider in the following
order” the crimes of first degree murder, second degree mur-
der, 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 fire-
arm 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 identifi-
cation, (3) overruled his objection to the step instruction and
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refused his requested instruction stating that the jury need not
be unanimous in rejecting a greater offense before consider-
ing 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 pro-
posed 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 cor-
rect 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 proce-
dural 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, circum-
stantial, 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 mis-
trial. 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 actu-
ally prejudiced him or her, rather than creating only the pos-
sibility 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 ques-
tion; 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 con-
tention, we believe that the court’s admonishment was suf-
ficient 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 identifica-
tion. 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 identifica-
tion 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 wit-
ness 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 con-
ditions 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 cir-
cumstances 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 identifica-
tion 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 wit-
ness credibility:
You are the sole judges of the credibility of the wit-
nesses and the weight to be given to their testimony. In
determining the weight which the testimony of the wit-
nesses 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 incon-
sistent 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 eyewit-
ness 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 iden-
tification 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 iden-
tification 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 eyewit-
nesses, there was circumstantial evidence to corroborate
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her identification; such circumstantial corroborating evi-
dence 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 con-
clude 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 eyewit-
ness 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 revers-
ible error.
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McCurry objected to the “Effect of Findings” portion of the
district court’s instruction regarding the elements of the mur-
der 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 ver-
dict 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 defend­
ant 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 simulta-
neously 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 evi-
dence of provocation has been adduced by a defendant, courts
should clarify the definition of “deliberate” by explicitly stat-
ing 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 per-
son 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 rep-
resent 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 provoca-
tion. 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 sus-
tained 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 dis-
trict 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 wit-
ness’ 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 state-
ment. None of the other Nebraska Rules of Evidence or
other Nebraska statutes authorize admissibility of a wit-
ness’ 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 admis-
sibility 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 try-
ing 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 mean-
ingful 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 testi-
mony that is incompetent, privileged, or otherwise inadmis-
sible 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 appli-
cation 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 autho-
rize 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 com-
plete 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 there-
fore 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 suf-
ficient 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 evi-
dence. 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 tes-
timony 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 shoot-
ing 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; sev-
eral 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 get-
ting 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 sud-
den quarrel provocation. Reminiscent of our earlier discus-
sion, McCurry again contends that the evidence shows a sud-
den 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 run-
ning from the other man and begging not to be shot. We deter-
mined 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 deliber-
ate 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 sen-
tencing 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 com-
mit 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 fire-
arm 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 convic-
tion 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 posses-
sion 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 convic-
tion to run concurrently with the sentence for the use convic-
tion, the court does have discretion to determine whether the
sentence for the possession conviction shall be served concur-
rently with the life sentence for murder or whether it shall be
served consecutively to both the sentence for the use convic-
tion and the sentence for the murder conviction.
CONCLUSION
Having rejected McCurry’s assignments of error, we affirm
his convictions for first degree murder, use of a firearm to
commit a felony, and possession of a firearm by a prohibited
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person. We also affirm McCurry’s life sentence for first
degree murder. However, we note error in the court’s sentenc-
ing order in which it ordered the sentence for use of a firearm
to commit a felony to be served concurrently with another
sentence, i.e., possession of a firearm by a prohibited person.
We therefore vacate those sentences and remand the cause
for resentencing on those convictions in accordance with
this opinion.
Convictions affirmed, sentences affirmed
in part and in part vacated, and cause
remanded for resentencing.