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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 ruling and reviews de novo the court’s ultimate determination whether the 

court admitted evidence over a hearsay objection or excluded evidence 

on hearsay grounds.

6. Constitutional Law: Due Process. The determination of whether procedures afforded an individual comport with constitutional requirements 

for procedural due process presents a question of law.

7. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for a sufficiency of the evidence claim, whether the evidence 

is direct, circumstantial, or a combination thereof, the standard is the 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/17/2017 08:09 AM CDT
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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 elements of the crime beyond a reasonable doubt.

8. Criminal Law: Motions for Mistrial: Proof: Appeal and Error. A 

mistrial is properly granted in a criminal case where an event occurs 

during the course of a trial that is of such a nature that its damaging 

effect cannot be removed by proper admonition or instruction to the jury 

and thus prevents a fair trial. The defendant must prove that the alleged 

error actually prejudiced him or her, rather than creating only the possibility of prejudice.

9. Motions for Mistrial: Motions to Strike: Appeal and Error. Error 

cannot ordinarily be predicated on the failure to grant a mistrial if an 

objection or motion to strike the improper material is sustained and the 

jury is admonished to disregard such material.

10. Jury Instructions: Proof: Appeal and Error. To establish reversible 

error from a court’s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct 

statement of the law, (2) the tendered instruction is warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s refusal to 

give the tendered instruction.

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

12. Criminal Law: Constitutional Law: Due Process: Rules of Evidence. 

Whether rooted directly in the Due Process Clause of the 14th 

Amendment or in the Compulsory Process or Confrontation Clauses 

of the 6th Amendment, the federal Constitution guarantees criminal 

defendants a meaningful opportunity to present a complete defense.

However, the accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under 

standard rules of evidence.

13. Sentences: Weapons. Neb. Rev. Stat. § 28-1205(3) (Reissue 2016) mandates that a sentence for the use of a deadly weapon in the commission 

of a felony be served consecutively to any other sentence imposed and 

concurrent with no other sentence.

14. Sentences: Appeal and Error. An appellate court has the power on 

direct appeal to remand a cause for the imposition of a lawful sentence 

where an erroneous one has been pronounced.

Appeal from the District Court for Douglas County: 

Thomas A. Otepka, Judge. Convictions affirmed, sentences 
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affirmed in part and in part vacated, and cause remanded for 

resentencing.

Thomas C. Riley, Douglas County Public Defender, for 

appellant.

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

for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, 

Kelch, and Funke, JJ.

Miller-Lerman, J.

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 firearm by a prohibited person. On appeal, McCurry claims, inter 

alia, that the court erred when it refused his proposed instruction regarding eyewitness identification and when it refused his 

requested instruction stating that the jury need not unanimously 

reject a greater offense before considering lesser offenses. 

He also claims there was not sufficient evidence to support 

his conviction for first degree murder. We affirm McCurry’s 

three convictions and his life sentence for first degree murder. 

However, we note that the district court erred when it ordered 

McCurry’s sentence for the use conviction to be served concurrently with his sentence for the possession conviction; we 

vacate those sentences and remand the cause to the district 

court for resentencing on those convictions.

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 identified 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 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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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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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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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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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 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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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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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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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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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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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.

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 sentencing 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.