State v. McCurry, 891 N.W.2d 663

Background

Victim Timothy Marzettie was shot and killed at his home on June 25, 2014; two men forced entry during an apparent search for “Cherita.”
Three eyewitnesses (Riley, Simpson, Wright) testified about the intrusion; Riley identified McCurry at trial as the shooter; Simpson described the shooter but did not identify McCurry; Wright had social/contact evidence linking McCurry to the victim and a maroon car.
Physical and circumstantial evidence tied clothing and a maroon car to McCurry; jail calls from McCurry referenced going to the house looking for “Cherita.”
McCurry was convicted of first degree murder, use of a firearm to commit a felony (§ 28-1205(1)), and possession of a firearm by a prohibited person (§ 28-1206).
Trial disputes: (1) motion for mistrial after State asked whether Wright had seen McCurry with a gun; (2) refusal to give a requested eyewitness-identification instruction; (3) refusal of a requested instruction allowing nonunanimous preliminary rejection of greater offenses before considering lesser offenses (step instruction challenge); (4) exclusion of evidence that Simpson failed to identify McCurry in a photographic lineup (hearsay and confrontation/compulsory-process claim).
Sentencing: life for first degree murder; additional terms for use and possession of a firearm, with the district court ordering the use and possession sentences to run concurrently with each other (court later found error on that point).

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (McCurry)	Held
1. Motion for mistrial after question whether Wright had seen McCurry with a gun	The question was harmless; court sustained objection and instructed jury to disregard.	The question elicited unlawful other‑crimes evidence (404) and prejudiced McCurry such that mistrial was required.	No abuse of discretion; objection sustained, jury admonished, mistrial denial affirmed.
2. Refusal to give defendant’s eyewitness-identification instruction	General credibility instruction sufficed; identification corroborated circumstantially.	Specific ID instruction was necessary because identity was crucial and Riley was the sole witness identifying him.	No reversible error; general credibility instruction adequately covered ID issues.
3. Refusal to give instruction saying jury need not unanimously reject greater offense before considering lesser offenses (step instruction issue)	NJI step instruction properly required sequential consideration; jury finding first-degree murder necessarily rejected sudden‑quarrel provocation.	Needed instruction to ensure jury would consider manslaughter/ provocation even if not unanimous on rejecting greater offense.	No reversible error; Hinrichsen controls and evidence did not support provocation instruction.
4. Exclusion of testimony that Simpson failed to identify McCurry in a photo lineup (hearsay)	Evidence was hearsay under Nebraska law and properly excluded; Simpson’s nonidentification was available via her in-court testimony.	The photo‑lineup nonidentification was not offered for truth but to show she made no ID; exclusion violated compulsory process/due process.	Court properly excluded the out-of-court ID/non‑ID as hearsay under Nebraska law; no constitutional violation because defendant could present Simpson’s in-court testimony of nonidentification.
5. Sufficiency of evidence for first‑degree murder	Evidence (eyewitness ID, matching clothing, jail calls, witness descriptions) permitted a finding of deliberate, premeditated killing.	Evidence at most supports manslaughter / sudden quarrel provocation.	Conviction affirmed: viewing evidence in prosecution’s favor, rational jury could find deliberate and premeditated malice.
6. Sentencing concurrency for use-of-firearm and possession convictions	§ 28-1205(3) mandates that a sentence for use of a firearm run consecutively to any other sentence and concurrently with no other sentence.	Court ordered use and possession sentences to run concurrently (incorrect application).	Sentences for use and possession vacated and remanded for resentencing to ensure the use sentence runs consecutively as required.

Key Cases Cited

Holmes v. South Carolina, 547 U.S. 319 (2006) (exclusionary rules abridge the right to present a defense if arbitrary or disproportionate)
State v. Freemont, 284 Neb. 179 (2012) (refusal of eyewitness instruction not reversible where witnesses knew defendant and general credibility instruction was sufficient)
State v. Salamon, 241 Neb. 878 (1992) (pretrial identification treated as hearsay under Nebraska law absent a rules-based exception)
State v. Scott, 284 Neb. 703 (2012) (reaffirming that out-of-court identification is hearsay under Nebraska law)
State v. Hinrichsen, 292 Neb. 611 (2016) (finding that a first-degree murder finding necessarily rejects sudden‑quarrel provocation and addressing step-instruction issues)
State v. Ramirez, 287 Neb. 356 (2014) (interpreting § 28-1205(3) to require consecutive sentencing for use-of-firearm convictions)
State v. Pester, 294 Neb. 995 (2016) (standard for sufficiency review: view evidence in light most favorable to prosecution)
State v. Chauncey, 295 Neb. 453 (2017) (standard for reviewing mistrial rulings)
State v. Trice, 292 Neb. 482 (2016) (standard for review of hearsay rulings)
State v. Rothenberger, 294 Neb. 810 (2016) (standards for refusing a requested instruction)