State v. McCurry (20)

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State v. McCurry (20)

Case Number
Call Date
December 6, 2016
Court Number
Case Summary

S-15-1114 State v. Caroline McCurry (Appellant)

District Court of Douglas County, Honorable Thomas A. Otepka

Attorneys: Austin N. Relph (Attorney General's Office) --- Thomas C. Riley (Public Defender) (Appellant)

Criminal: 1st degree murder; use of firearm to commit felony; possession of firearm by prohibited person

Proceedings below: Following a jury trial, Appellant was convicted of 1st degree murder, use of firearm to commit felony, and possession of firearm by prohibited person. He was sentenced to life imprisonment; 30 to 50 years on the use charge, to be served consecutively; and 20 to 30 years on the possession charge, to be served concurrently.

Issues: 1) The trial court committed reversible error when it denied Appellant's motion for mistrial after the prosecutor improperly asked a State's witness if she had ever seen Appellant in possession of a firearm, 2) the trial court committed reversible error when it refused to give Appellant's proposed jury instruction on eyewitness identification, 3) the trial court committed reversible error when it overruled Appellant's objection to the effect of findings section of the step instruction and failed to give Appellant's requested instruction which clearly states that during its deliberations the jury need not acquit of the greater offense before considering the lesser offenses, 4) the trial court committed reversible error when it sustained the State's hearsay objection and prevented Appellant from presenting evidence that an eyewitness to the crime was shown a photo spread which included Appellant's photo and was unable to identify him as one of the intruders because the testimony does not included an assertion offered to prove the truth of the matter and is not hearsay, 5) even assuming arguendo that the proffered testimony of the eyewitness who failed to identify Appellant is hearsay, the trial court's refusal to admit such evidence constitutes reversible error in that the preclusion of said evidence violates Appellant's due process rights, compulsory process rights and his right to present a complete defense as set forth by the U.S. Supreme Court in Holmes v. South Carolina, and 6) Appellant's conviction on the charge of first degree murder should be set aside because there is insufficient evidence to sustain a verdict of guilty of murder in the first degree.