State v. McCurry, 296 Neb. 40

Background

Victim Timothy Marzettie was shot and killed at his home on June 25, 2014; two men forced entry during a confrontation involving requests for a woman named “Cherita.”
Witnesses Patricia Riley and Jessica Simpson described intruders and the shooter’s clothing; Riley identified Corleone McCurry in court; Simpson could not identify McCurry at trial.
Cherita Wright had a relationship with McCurry and testified about prior interactions, including an altercation between McCurry and Marzettie weeks earlier; jail calls by McCurry referenced going to the house looking for Cherita.
Physical evidence included clothing and McCurry’s license found where he had been staying; clothing descriptions matched witness testimony.
McCurry was convicted of first-degree murder, use of a firearm to commit a felony, and possession of a firearm by a prohibited person; he appealed multiple evidentiary and instructional rulings and the sufficiency of the evidence.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (McCurry)	Held
1. Motion for mistrial after State asked whether Wright saw McCurry with a gun	The question was inadvertent; the court’s curative instruction cured any prejudice.	The question suggested prior bad acts (illegal possession) and required a mistrial.	Overruled; court sustained objection, instructed jury to disregard, and did not abuse discretion.
2. Refusal to give proposed eyewitness-identification instruction	General credibility instruction sufficed; corroborating circumstantial evidence existed.	Requested ID charge was necessary given identity dispute and reliability concerns.	Refusal not reversible; credibility instruction adequately covered relevant factors.
3. Use of NJI “step” instruction (order of considering greater then lesser offenses)	Step instruction is proper; finding of first-degree murder negates provocation.	Jury should be told they need not unanimously reject greater offense before considering lesser offenses.	Refusal not reversible; court followed precedent (Hinrichsen) and no provocation evidence warranted alternate instruction.
4. Exclusion of testimony that Simpson failed to identify McCurry in photographic lineup (hearsay)	Out-of-court nonidentification was hearsay and inadmissible under Nebraska Evidence Rules.	Nonidentification sought to show Simpson could not identify McCurry; admission was non-hearsay or required by defendant’s right to present a defense.	Excluded as hearsay; exclusion did not violate defendant’s constitutional right because Simpson’s in-court testimony already established nonidentification.
5. Sufficiency of evidence for first-degree murder	Evidence (witness ID, matching clothing, jail calls) supports premeditation and deliberate malice.	The facts at most support manslaughter arising from a sudden quarrel/struggle for a gun.	Affirmed: viewing evidence in prosecution’s favor, rational jury could find first-degree murder.

Key Cases Cited

State v. Chauncey, 295 Neb. (standard for mistrial review)
State v. Martinez, 295 Neb. 1 (instructional review is a question of law)
State v. Hinrichsen, 292 Neb. 611 (step instruction and provocation analysis)
State v. Freemont, 284 Neb. 179 (eyewitness-ID instruction precedents)
State v. Rothenberger, 294 Neb. 810 (standard for refusing instructions)
State v. Trice, 292 Neb. 482 (hearsay review standards)
State v. Ballew, 291 Neb. 577 (right to present a defense vs. evidentiary rules)
State v. Pester, 294 Neb. 995 (sufficiency-of-evidence standard)
State v. Scott, 284 Neb. 703 (out-of-court identification treated as hearsay)
State v. Salamon, 241 Neb. 878 (Nebraska rule: pretrial identification is hearsay)
State v. Ramirez, 287 Neb. 356 (§ 28-1205 sentence-consecutive requirement)
Holmes v. South Carolina, 547 U.S. 319 (limits on excluding defense evidence under due process)