Appeal from the Iowa District Court for Pottawattamie County, Timothy O'Grady, Judge.
After a jury trial, Cue was found guilty of murder in the first degree. The district court denied his motion for new trial and he appealed.
Brian S. Munnelly, Omaha, Nebraska, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber and Kevin R. Cmelik, Assistant Attorneys General, Matthew D. Wilber, County Attorney, and Jon S. Jacobmeier and Thomas Nelson, Assistant County Attorneys, for appellee.
Heard by Vogel, P.J., Mullins, J., and Sackett, S.J. [*]
After a jury trial, Cue was found guilty of murder in the first degree. The district court denied his motion for new trial and he appealed. He asserts four grounds on which the district court's order should be reversed: insufficiency of the evidence, prosecutor misconduct, exclusion of character evidence, and denial of his motion to continue trial. We affirm.
At 10 p.m. on March 24, 2008, the appellant Randy Cue (Cue) and his girlfriend Lisa Green entered a house in Council Bluffs where Cue lived with his mother Florence Cue (Florence) and Randy "Coon" Deville. Earlier in the day, Cue and Green had looked at a motorcycle that Cue wished to purchase, and then they went drinking at a few local bars. Cue had just received a Social Security settlement and was in a good mood. At the final bar Green asked the "bartenders to cut Randy off" due to his state of intoxication.
When Cue and Green entered the house, they found Florence and Deville sitting in the living room. Both were about to watch a local news broadcast. The four had a brief conversation, first about the potential motorcycle purchase, then about black magic. Deville became annoyed and went to his room.
After Deville left, Cue asked Green to go to the Hy-Vee Drug Store and pick up his prescription of Viagra. She refused. Cue then convinced Florence to get his prescription. As she moved to leave the house, Cue grabbed her arm and emphasized the name of his prescription. Green told him to let go of his mother, and Florence left.
At this point Cue took off his shoes and Green tried to help. Agitated, Cue threw money at Green and stuffed a few bills in her pants. Green removed the money and tossed it under a chair. Cue grabbed Green's hair and coat collar and walked her to the door. Cue "threw [Green] out the door and slammed the door." Green left the Cue residence and drove home.
Minutes after Green left, at 10:19 Deville called Richard Mangan, former employer and friend of Deville and Cue, and told Mangan, "If you have any control, if you can do anything, give Randy [Cue] a call. You've got to calm him down. He is going crazy . . . . He is turning everything up in the house." Deville hung up. Mangan testified that Deville seemed scared. Mangan called Deville back. During the second call, Deville stated, "you've got to try to do something. I am loading my gun right now, " and he hung up. Mangan called Cue's phone number, but the call went to voicemail.
Meanwhile, Florence was unable to obtain Cue's prescription from the pharmacy. At 10:28 Florence called Cue to tell him the news, but her call also went to voicemail. Florence then called Deville twice, at 10:29 and 10:31, and spoke to him for about thirty seconds each time. At trial, she could not remember what they discussed during ...