State v. McCurry, S-15-1114.
| Decision Date | 17 March 2017 |
| Docket Number | No. S-15-1114.,S-15-1114. |
| Citation | 891 N.W.2d 663,296 Neb. 40 |
| Parties | STATE of Nebraska, appellee, v. Corleone M. MCCURRY, appellant. |
| Court | Nebraska Supreme Court |
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.
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.
On June 25, 2014, Timothy Marzettie was shot and killed at his residence in Omaha, Nebraska. Witnesses told police officers investigating the shooting that the shooting occurred during a home invasion by two intruders. Investigators identified McCurry as a suspect in the shooting, and McCurry was arrested on June 29. The State charged McCurry with first degree murder and use of a firearm to commit a felony; the State later added a charge of possession of a firearm by a prohibited person.
At McCurry's trial, the State presented evidence, including testimony by police officers and forensic analysts who participated in the investigation of the shooting. Other witnesses included a woman who was babysitting her grandson in the house next door to Marzettie's on June 25, 2014. She testified that late that night, she was on an enclosed porch smoking a cigarette when she saw a car pull up and stop in front of Marzettie's house. Three men got out of the car, and the witness saw them lift the hood of the car. She saw one of the men urinating in the bushes, while the other two men walked up the driveway to Marzettie's house. The witness later heard a woman screaming, a baby crying, and a single gunshot; the car left after the gunshot was fired. The witness testified that the incident happened quickly and that she heard the gunshot approximately 5 minutes after the car pulled up. She did not identify the men beyond describing them as "three black males"; she described the car as a "[f]our-door, smaller car" that was "dark-colored," possibly maroon red.
The main witnesses for the State were three women: Patricia Riley, Jessica Simpson, and Cherita Wright. Riley and Simpson were both in Marzettie's house at the time of the shooting. Wright was not in the house at the time, but she knew both McCurry and Marzettie, and she testified regarding interactions between the two men.
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.
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 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 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."
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 and asked for "Cherita." Simpson did not...
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