State v. Pope , 305 Neb. 912 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/17/2020 01:07 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. POPE
Cite as 305 Neb. 912
State of Nebraska, appellee, v.
Preston Pope, appellant.
___ N.W.2d ___
Filed May 29, 2020. No. S-18-1151.
1. Jury Instructions: Appeal and Error. Whether a jury instruction is
correct is a question of law, regarding which an appellate court is obli-
gated to reach a conclusion independent of the determination reached by
the trial court.
2. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. When reviewing a trial court’s ruling on a motion
to suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
3. Identification Procedures: Due Process: Appeal and Error. A dis-
trict court’s conclusion whether an identification is consistent with due
proc­ess is reviewed de novo, but the court’s findings of historical fact
are reviewed for clear error.
4. Jury Instructions: Proof: Appeal and Error. In reviewing a claim of
prejudice from jury instructions given or refused, the appellant has the
burden to show that the allegedly improper instruction or the refusal to
give the requested instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.
5. Jury Instructions: Appeal and Error. 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 necessitat-
ing reversal.
6. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appellant
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STATE v. POPE
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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.
7. Homicide: Juries: Verdicts. The jury need only be unanimous as to its
verdict that defendant committed first degree murder, and not as to the
theory which brought it to that verdict.
8. Homicide: Jury Instructions: Proximate Cause. A defendant in a
felony murder case is not entitled to a proximate cause instruction when
there is no dispute as to the victim’s cause of death.
9. ____: ____: ____. In the context of felony murder, an instruction on
proximate cause is appropriate where the evidence presents a jury ques-
tion as to whether the death of the victim was proximately caused by an
act of the defendant or the defendant’s accomplice.
10. Jury Instructions. A trial court is not obligated to instruct the jury on
matters which are not supported by evidence in the record.
11. Trial: Witnesses: Testimony. Neb. Rev. Stat. § 25-1141 (Reissue 2016)
does not apply to testimony given by a different witness when no objec-
tion is made to that witness’ testimony.
12. Constitutional Law: Identification Procedures: Due Process. The
Due Process Clause does not require a preliminary judicial inquiry
into the reliability of an eyewitness identification when the identifica-
tion was not procured under unnecessarily suggestive circumstances
arranged by law enforcement.
13. Identification Procedures: Police Officers and Sheriffs: Motions
to Suppress. Suppression of identification evidence on the basis of
undue suggestion is appropriate only where the witness’ ability to make
an accurate identification is outweighed by the corrupting effect of
improper police conduct.
14. Trial: Identification Procedures. When no improper law enforcement
activity is involved, it suffices to test the reliability of identification tes-
timony at trial, through the rights and opportunities generally designed
for that purpose, such as the rights to counsel, compulsory process, and
confrontation and cross-examination of witnesses.
15. Evidence: Appeal and Error. An appellate court does not resolve con-
flicts in the evidence, pass on the credibility of witnesses, or reweigh the
evidence presented; such matters are for the finder of fact.
Appeal from the District Court for Douglas County: Horacio
J. Wheelock, Judge. Affirmed.
Robert W. Kortus, of Nebraska Commission on Public
Advocacy, for appellant.
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305 Nebraska Reports
STATE v. POPE
Cite as 305 Neb. 912
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
A jury convicted Preston Pope of two counts of first degree
murder for the killing of Deprecia Neelon and Garion Johnson,
two counts of use of a deadly weapon to commit a felony, and
one count of possession of a deadly weapon by a prohibited
person. On appeal, Pope challenges two of the district court’s
jury instructions, the affidavit relied upon by law enforce-
ment to obtain a warrant to collect a sample of Pope’s DNA,
and the identification of Pope by one of the State’s witnesses.
We affirm.
BACKGROUND
This case involves three shootings which occurred in Omaha,
Nebraska, on August 5, 6, and 8, 2015. Neelon lived in a
house on Pinkney Street with other family members, includ-
ing her mother, stepfather, and stepsister, Marcella Mitchell
(Marcella). On August 5, 2015, Johnson’s vehicle was parked
in the street outside Neelon’s home. While Johnson was sitting
in the driver’s seat with the door open, an individual walked
up and fired a gun at him. Johnson pushed the shooter and ran
away as the shooter chased him.
Marcella and her sister had been standing by the street and
were able to see the shooter. Marcella reported that a man
dressed in black had walked past her toward Johnson. After
hearing the gunshot, Marcella heard a clip drop. She then
saw the shooter bend down and pick up the clip before chas-
ing after Johnson. Marcella described the individual as being
a light-skinned African-American male, approximately 5 feet
5 inches tall, and wearing a black jacket with a hood, black
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STATE v. POPE
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pants, and frizzy braids in his hair. She estimated that she had
been approximately three to four steps away from the shooter
and was able to see his face for at least 3 seconds.
The next day, someone splashed an accelerant onto the sid-
ing of Neelon’s house on Pinkney Street and lit the house on
fire. Upon discovering that the house was on fire, Neelon had
gone outside to investigate and was shot seven times. Neelon’s
stepfather was home at the time and attempted to pull Neelon
back into the house after she had been shot. As Neelon’s step-
father was attempting to pull her inside, someone fired three
to five additional shots. When Neelon’s stepfather saw the
shooter point the gun in his direction, he was forced to let go
of Neelon and close the door. Neelon died as a result of her
gunshot wounds.
After Neelon was shot, several suspects had been observed
leaving the area of her house on Pinkney Street in two separate
vehicles: a blue/green minivan with a distinctive rust pattern
and a white four-door sedan. Evidence recovered at the scene
included a watch, a black knit glove, and three .45-caliber
spent shell casings. A manufacturer’s tag from a pair of knit
gloves was located in an alley approximately one block away
where the minivan had been parked. A fingerprint on the tag
was found to match the left thumb of Marcus Short. DNA test-
ing on the watch indicated that Short and another man could
not be excluded as partial DNA contributors to a DNA mixture
found on the inside of the device.
Johnson lived in a house on Fontenelle Boulevard. On
August 8, 2015, law enforcement was dispatched to Johnson’s
address for a report of a shooting and a vehicle that crashed
into a garage. Upon their arrival, officers found Johnson in a
white Chevy Impala that had crashed into a garage located at
a nearby address on Fontenelle Boulevard. Johnson had been
shot seven times and died as a result of his gunshot wounds.
Because the area was muddy from a city sewer project, offi-
cers were able to follow the Impala’s tire tracks to Johnson’s
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STATE v. POPE
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home. The tracks indicated that Johnson backed from his
garage, drove in circles in two yards located along Fontenelle
Boulevard, and then crashed into the nearby garage.
Johnson had been pulling his vehicle into his garage when
two individuals standing by the driver’s side of the vehicle
began firing into the driver’s-side window. Johnson backed the
vehicle into the street. As he circled through the yards, one of
the shooters followed the vehicle, firing into the window.
Witnesses reported that the shooters were two African-
American males wearing black hooded sweatshirts, one of
which had a red Nebraska logo on it. After the Impala
crashed, the two shooters were seen running through yards
and fleeing in a white Chevy Monte Carlo that had been
parked toward the west. The Monte Carlo had white and blue
in-transit plates.
Officers located a white Monte Carlo matching the vehicle’s
description at an address on Binney Street in Omaha, where
Short resided with his grandmother. Law enforcement obtained
and executed a search warrant at Short’s residence. During
execution of the warrant, officers seized multiple items from
Short’s bedroom, including two firearms—a .45-caliber hand-
gun and a .357-caliber Magnum revolver, one black knit glove,
a pair of “Mechanix” gloves, a black hooded sweatshirt, a
black hooded sweatshirt with a red Nebraska logo, and black
pants with dried mud on them.
As a result of the search, Short was arrested and charged
with two counts of possession of a deadly weapon by a pro-
hibited person. The State later dismissed the charges and filed
an information charging Short with first degree murder for the
killing of Johnson and use of a firearm to commit a felony.
When the firearms were dusted for fingerprints, Pope’s par-
tial palmprint was found on the barrel of the .357 Magnum.
Ballistic test results demonstrated that spent projectiles recov-
ered from Johnson’s body had been fired from the .357 Magnum
with Pope’s palmprint on it. Two of the casings found at the
scene of Neelon’s murder were found to have been fired from
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STATE v. POPE
Cite as 305 Neb. 912
the .45-caliber handgun found in Short’s bedroom. Officers
located additional shell casings at each of the three shootings,
but the shell casings were unable to be matched to either of the
two firearms. However, ballistic tests demonstrated that these
casings had all been fired from the same .45-caliber semiauto-
matic handgun.
On August 14, 2015, officers located a dark-colored minivan
that matched the description of the minivan used by the sus-
pects leaving Neelon’s house on Pinkney Street after she was
shot. The minivan was registered to Pope’s mother, and Pope
had been seen driving it. Cell phone records placed Pope in
the area of Neelon’s house near the time she was killed, and in
the area of Johnson’s house near the time he was killed. These
records also indicated Pope was in the area of Short’s home
soon after Neelon was killed.
Law enforcement obtained a search warrant to get a sample
of Pope’s DNA under Neb. Rev. Stat. §§ 29-3301 to 29-3307
(Reissue 2016), Nebraska’s identifying physical characteristics
statutes. The warrant permitted the use of detention to obtain
the sample. Pope was restrained after he refused to comply
with the warrant. A buccal swab was used to collect DNA
evidence at the Douglas County correctional facility where
Pope was incarcerated on unrelated charges. DNA test results
showed Pope as a major contributor to the DNA found on the
black hooded sweatshirt and black pants that had been seized
from Short’s bedroom.
In April 2016, Marcella was at the Douglas County court-
house with a friend for reasons unrelated to this case. While
there, Marcella saw Pope and recognized him as the August
5, 2015, shooter. Marcella later testified that after seeing Pope
at the courthouse, she contacted the Omaha police officer who
had initially interviewed her regarding the August 5 incident.
Marcella reported that she had seen Pope at the courthouse and
that she recognized him as the shooter.
In May 2016, the State filed an information charging Pope
with first degree murder for the killing of Johnson, use of a
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STATE v. POPE
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deadly weapon to commit a felony, and possession of a deadly
weapon by a prohibited person.
In October 2016, Marcella was shown a photographic lineup
by law enforcement, at which time she identified Pope as the
August 5, 2015, shooter. Prior to both the lineup and her recog-
nizing Pope at the courthouse, Marcella had seen a television
news story about the investigation into Johnson’s homicide.
The news story aired a photograph of Pope wearing a bright
yellow shirt. The photograph depicting Pope in the lineup was
identical to the one used in the news story. Marcella later testi-
fied that upon seeing the news story, she thought she recog-
nized Pope as the shooter, but did not contact law enforcement
at the time because she was not sure. Marcella stated that when
she later saw Pope at the courthouse, from the angle of his face
when he walked and when he turned his face toward her, she
was able to recognize him as the individual that ran past her
on August 5, 2015.
In June 2017, the State filed amended informations against
Short and Pope, charging each with a second count of first
degree murder for the killing of Neelon and a second count of
use of a deadly weapon. The district court ordered Short’s and
Pope’s cases to be tried separately.
Prior to trial, Pope filed motions to suppress evidence of
his DNA and of Marcella’s identification. After a hearing
on the motion to suppress evidence related to Pope’s DNA,
the district court determined the affidavit used to obtain the
warrant lacked sufficient probable cause for issuance of the
search warrant. The affidavit requested a sample of Pope’s
DNA for “comparison purposes.” The affidavit stated that
during the course of the investigation into Johnson’s death, a
search warrant executed at Short’s home resulted in the sei-
zure of two firearms, one of which had Pope’s partial palm-
print on it.
The district court noted that the affidavit failed to articu-
late a connection between the firearm and the homicide and
failed to articulate a connection between the fact that Pope had
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STATE v. POPE
Cite as 305 Neb. 912
possessed the firearm and the fact that Pope was prohibited
from possessing a firearm. Still, the court overruled Pope’s
motion to suppress after concluding the good faith exception
applied. The court concluded that law enforcement’s reli-
ance on the warrant was reasonable because Pope had twice
been convicted of felonies and his palmprint was found on
a firearm.
Regarding Marcella’s identification of Pope, Pope sought to
suppress both the photographic lineup and any in-court iden-
tification on the grounds that Marcella’s prior identification
of Pope was unnecessarily and impermissibly suggestive. The
motion was overruled. The district court found that the prior
identification of Pope was not improperly suggestive and that
Marcella’s identification of Pope from the August 5, 2015,
incident contained sufficient indicators of reliability to out-
weigh any alleged suggestiveness in the photographic lineup.
At trial, both Marcella and her sister identified Pope as the
August 5, 2015, shooter.
James Henderson testified that he had been driving in the
area of Neelon’s house on Pinkney Street and heard gunshots
at the time she was killed. As he looked toward her house,
Henderson saw the fire. He observed two males wearing all
dark clothing standing near the front and the side of the house,
and one of the males was holding a gun. Henderson stated that
the two males, along with a third, ran across the street in front
of his vehicle. Henderson recognized one of them. Henderson
testified that he was later incarcerated with Pope and Short and
that he recognized them as the other two males.
Pope was convicted on all five counts and sentenced to two
terms of life imprisonment for the first degree murder counts,
two terms of 49 to 50 years’ imprisonment for the counts of
use of a deadly weapon, and 49 to 50 years’ imprisonment for
possession of a deadly weapon by a prohibited person. The
district court ordered Pope to serve his sentences consecutively
to each other and to a federal sentence, which he was cur-
rently serving.
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305 Nebraska Reports
STATE v. POPE
Cite as 305 Neb. 912
ASSIGNMENTS OF ERROR
Pope’s assignments of error, restated, are that the district
court erred in (1) providing incorrect jury instructions on the
felony murder and corresponding use counts and refusing to
give Pope’s tendered instruction, (2) providing incorrect jury
instructions on the aiding and abetting a crime count and refus-
ing to give Pope’s tendered instruction, (3) failing to grant
Pope’s motion to suppress DNA evidence, and (4) permitting
Marcella’s identification of Pope.
STANDARD OF REVIEW
[1] Whether a jury instruction is correct is a question of
law, regarding which an appellate court is obligated to reach
a conclusion independent of the determination reached by the
trial court. 1
[2] When reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. 2
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. 3
[3] A district court’s conclusion whether an identification
is consistent with due process is reviewed de novo, but the
court’s findings of historical fact are reviewed for clear error. 4
ANALYSIS
Jury Instructions.
In his first and second assignments of error, Pope argues
that the district court improperly instructed the jury on the
elements of felony murder and aiding and abetting a crime.
1
State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).
2
State v. Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019).
3
Id.
4
State v. Cosey, 303 Neb. 257, 927 N.W.2d 822 (2019).
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Alternatively, Pope asserts that the district court erred in refus-
ing to give his tendered instructions.
[4,5] In reviewing a claim of prejudice from jury instruc-
tions given or refused, the appellant has the burden to show
that the allegedly improper instruction or the refusal to give
the requested instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. 5 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. 6
[6] 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. 7
Felony Murder Instruction.
[7] On the count of first degree murder for the killing of
Neelon, the district court instructed on the alternate theories
of either felony murder or premeditated murder. And, as this
court has made clear, “the jury need only be unanimous as to
its verdict that defendant committed first degree murder, and
not as to the theory which brought it to that verdict.” 8
Pope makes two arguments with respect to the felony
murder jury instruction. First, Pope argues that the district
court erred by failing to instruct that for felony murder, the
jury must find that Neelon’s death was caused by the fire.
Second, Pope argues that the district court erred by refusing
to give his tendered instruction, which included these addi-
tional elements: (1) that the arson or attempted arson was the
5
State v. Gonzales, 294 Neb. 627, 884 N.W.2d 102 (2016).
6
State v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018).
7
Id.
8
State v. Buckman, 237 Neb. 936, 940, 468 N.W.2d 589, 592 (1991).
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proximate cause of Neelon’s death and (2) that there was no
efficient intervening cause. Pope also sought to include the
following definitions:
“Proximate Cause”
The defendant’s aiding and abetting of another to kill
Deprecia Neelon during the course [of] committing or
attempting to commit arson, caused the death of Deprecia
Neelon, if her death occurred in a natural and continu-
ous sequence, and without the defendant’s acts Deprecia
Neelon’s death would not have occurred. Proximate cause
is a cause that produces a result in a natural and con-
tinuous sequence, and without which the result would not
have occurred.
“Efficient Intervening Cause”
An efficient intervening cause is a new and indepen-
dent act, itself a proximate cause of death, which breaks
the causal connection between the original illegal act and
the death.
The district court overruled Pope’s objections and declined
to give his tendered instruction. As to the material elements of
felony murder, the jurors were instructed as follows:
1. That the Defendant, Preston Pope, intended to com-
mit the crime of arson; and
2. That on or about August 6, 2015 the Defendant,
Preston Pope, was in the course of committing or attempt-
ing to commit that arson; and
3. That the Defendant, Preston Pope, did so in Douglas
County, Nebraska; and
4. That the Defendant, Preston Pope, either alone or
by aiding and abetting another, killed Deprecia Neelon
during the course of committing or attempting to commit
that arson; and
5. That the arson, or attempted arson, consisted of each
of the following elements:
. . . That the Defendant, Preston Pope, either alone or
by aiding and abetting another intentionally perpetrated
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an arson, to wit: A person intentionally damages a build-
ing or property contained within a building by starting a
fire or causing an explosion when another person is pres-
ent in the building at the time and either;
(a) the actor knows the fact; or
(b) the circumstances are such as to render the presence
of a person therein a reasonable probability.
At trial, Pope argued that the shooting itself was an efficient
intervening cause, which broke the causal chain of events
between the arson and Neelon’s death. On appeal, Pope claims
that because the jury was not required to find that Neelon’s
death was caused by the fire, he is entitled to a reversal of both
the felony murder conviction and the corresponding use of a
deadly weapon conviction. Pope asserts that the jury should
have been instructed that felony murder requires proof that
Neelon’s death came as a continuous sequence from the arson
and that the arson and the death were closely connected in time
and place. Alternatively, Pope argues that the district court
erred in failing to give his tendered instruction.
In State v. Harris, 9 this court held that a causation instruc-
tion was appropriate under the facts presented. The defendant
had been found guilty of first degree murder for the killing of
an 81-year-old woman during an attempted robbery. The vic-
tim had fallen to the ground and was kicked after she resisted
the attempt of the defendant and his accomplice to snatch her
purse. The victim suffered a broken hip either from the fall
or from being kicked by her assailants and was hospitalized.
Surgery was performed to treat the hip fracture, and although
the hip eventually healed, the patient died approximately 6
weeks after the attempted robbery.
At trial, the defendant in Harris presented evidence dem-
onstrating that the victim had suffered a myocardial infarction
and a systemic infection after the surgery and argued these
were independent intervening causes of her death. The jury
9
State v. Harris, 194 Neb. 74, 230 N.W.2d 203 (1975).
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was given a causation instruction along with the definitions of
“proximate cause” and “efficient intervening cause.” In that
case, we held that the defendant was entitled to an instruction
on causation because the evidence had raised a factual ques-
tion for the jury regarding whether the victim’s death had been
caused by the defendant or by independent intervening acts
or causes. 10
[8] However, in State v. Quintana, 11 we concluded that the
defendant, David Lee Quintana, was not entitled to a proxi-
mate cause instruction because there was no dispute as to the
victim’s cause of death. Quintana had been convicted of first
degree murder for aiding and abetting Jaime Rodriguez to
commit the crime of robbery, during which Rodriguez shot
and killed the victim. Quintana’s defense was that the robbery
was an afterthought and that the actual proximate cause of the
victim’s death was a derogatory comment made by the victim
to Rodriguez, which caused Rodriguez to become angered and
shoot the victim.
The jury instructions given at trial in Quintana required the
jury to find, as an element of the offense, that the victim was
killed during the course of Rodriguez’ robbery of, or attempt
to rob, the victim. The relevant part of the instruction stated:
“A death occurs while in the course of committing or
attempting to commit a robbery if the act that killed is
closely connected in time and place with the robbery or
attempted robbery so that the act that killed and the rob-
bery or attempted robbery may be considered one con-
tinuous event.
“If the intent to rob is formed prior to or contempora-
neously with the act that results in death, then the death
occurs in the course of the commission of the robbery or
attempted robbery.
10
Id.
11
State v. Quintana, 261 Neb. 38, 621 N.W.2d 121 (2001), modified on
denial of rehearing 261 Neb. 623, 633 N.W.2d 890.
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“If the taking of the property was an after thought then
the killing is not in the commission of a robbery or an
attempted robbery and you should find the defendant not
guilty of aiding and abetting first degree murder.” 12
On appeal, Quintana argued that the victim’s remark was
an efficient intervening cause, which severed the causal con-
nection between the plan to rob the victim and the shooting,
and that the trial court erred in refusing to give his proposed
instruction on proximate cause.
[9] Noting that there was no dispute as to why Rodriguez
shot the victim, we held that Quintana was not entitled to
his proffered instruction on proximate cause. We explained
that in the context of felony murder, an instruction on proxi-
mate cause is appropriate where the evidence presents a jury
question as to whether the death of the victim was proxi-
mately caused by an act of the defendant or the defendant’s
accomplice. 13
In Quintana, there was no dispute as to the cause of death;
the question for the jury was whether the shooting occurred
during the course of the robbery. We concluded that Rodriguez’
motivation for shooting the victim did not affect the fact that
the victim’s death was caused by the shooting. And the ques-
tion of whether an alternative motive for the shooting existed
was related to whether the shooting took place in the course of
the robbery. 14 We therefore held that an instruction on proxi-
mate cause was not required. 15
In the present case, we find that the jury was properly
instructed. Pope was not entitled to an instruction on causa-
tion because there was no dispute as to the proximate cause
of Neelon’s death; she died from her gunshot wounds. Nor
was there a dispute as to whether the shooting was closely
12
Id. at 59, 621 N.W.2d at 138 (emphasis omitted).
13
State v. Quintana, supra note 11. See, also, State v. Harris, supra note 9.
14
Id.
15
Id.
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connected in time and place with the arson. 16 Someone lit
Neelon’s house on fire, and when Neelon went outside to
investigate, she was met with gunfire.
The question for the jury was whether Pope was respon-
sible for the killing of Neelon, either by shooting her himself,
by committing the underlying felony of arson, or by aiding
and abetting the shooter and/or the individual committing the
arson. The jury instructions required the jury to find, as an ele-
ment of the offense, that “Pope, either alone or by aiding and
abetting another, killed . . . Neelon during the course of com-
mitting or attempting to commit that arson.” The jury was then
instructed as to the elements of the crime of arson.
[10] Pope’s tendered instruction is a correct statement of
law. 17 However, in this case, the instruction was not warranted
by the evidence. 18 A trial court is not obligated to instruct the
jury on matters which are not supported by evidence in the
record. 19 We find that the instruction given regarding felony
murder was a correct statement of the law and that Pope has
not met his burden of establishing reversible error.
Aiding and Abetting Instruction.
In regard to aiding and abetting, the jury was given the fol-
lowing instruction from NJI2d Crim. 3.8:
A person who aids, abets, procures or causes another to
commit any offense may be prosecuted as if he were the
principal offender.
The Defendant can be guilty of a crime even though
he personally did not commit every act involved in the
crime so long as he aided someone else to commit it. The
Defendant aided someone else if:
16
See State v. Perkins, 219 Neb. 491, 364 N.W.2d 20 (1985).
17
See State v. Quintana, supra note 11.
18
See id.
19
Id.
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1. The Defendant intentionally encouraged or inten-
tionally helped another person to commit the crime; and
2. The Defendant intended that the crime be commit-
ted; or the Defendant knew that the other person intended
to commit the crime; or the Defendant expected the other
person to commit the crime; and
3. The crime, in fact, was committed by that other
person.
The Defendant can be guilty of felony murder if he is
guilty of arson or attempted arson as an aider and a death
resulted during the course of committing the arson.
Pope objected to the inclusion of the instruction and to the
instruction’s definition of “aider.” Pope tendered an instruction
with the additional language:
Aiding and abetting requires some participation in the
criminal act which must be evidenced by word, act, deed,
and mere encouragement or assistance is sufficient to
make one an aider or abettor.
Evidence of mere presence, acquiescence, or silence is
not enough to sustain the State’s burden of proving guilt
under an aiding and abetting theory.
The district court overruled the objections and declined to
use Pope’s proposed instructions. However, the district court
included the second sentence proposed by Pope within its defi-
nition of “aider.”
Addressing the district court’s refusal to give Pope’s ten-
dered instruction on aiding and abetting, we recognize that
Pope’s proposed language, taken from this court’s opinion in
State v. Stubbendieck, 20 is a correct statement of the law and
was warranted by the evidence. However, we find that Pope
failed to establish that he was prejudiced by the district court’s
refusal to give the tendered instruction.
The State argues that the language set forth in the instructions
is functionally equivalent to Pope’s first proposed sentence. We
20
State v. Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019).
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agree. Two of the instructions stated that an “aider” must have
“intentionally encouraged or intentionally helped another per-
son to commit the crime.” Further, the district court’s instruc-
tion on the definition of “aider” included the second sentence
proposed by Pope. The instruction stated: “Evidence of mere
presence, acquiescence, or silence is not enough to sustain
the State’s burden of proving guilt under an aiding and abet-
ting theory.”
We conclude that Pope was not prejudiced by the district
court’s refusal to give his tendered instruction on aiding and
abetting. Jury instructions must be read as a whole, and if they
fairly present the law so that the jury could not be misled,
there is not prejudicial error. 21 Here, the district court adhered
to the Nebraska Jury Instructions, 22 and the instructions fairly
presented the law and covered the issues presented. We con-
clude that Pope has not established prejudicial error.
Evidence of Pope’s DNA.
In his third assignment of error, Pope argues that the district
court erred in admitting evidence of his DNA. Pope asserts that
the district court correctly found the affidavit used to obtain
the warrant to collect his DNA was insufficient to support
probable cause and that the district court erred in concluding
that the good faith exception applied.
The State submits that Pope waived any objection to the
admission of the evidence by failing to properly object at trial.
We agree.
Neb. Rev. Stat. § 25-1141 (Reissue 2016) provides:
Where an objection has once been made to the admis-
sion of testimony and overruled by the court it shall be
unnecessary to repeat the same objection to further testi-
mony of the same nature by the same witness in order to
save the error, if any, in the ruling of the court whereby
such testimony was received.
21
State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
22
See NJI2d Crim. 3.8.
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[11] During the testimony of the detective who had collected
Pope’s DNA, Pope was granted a continuing objection “regard-
ing any DNA collection of . . . Pope.” However, Pope failed to
object to testimony by the State’s DNA expert regarding the
DNA results, which connected Pope to items of clothing seized
from Short’s home. Section 25-1141 does not apply to testi-
mony given by a different witness when no objection is made
to that witness’ testimony. 23
In order to properly preserve this alleged error on appeal, it
was necessary for Pope to object to the admission of testimony
by the State’s DNA expert regarding the DNA results. Even
assuming the district court erred in concluding that the good
faith exception applied, Pope waived his right to assert this
alleged error on appeal because he failed to properly object to
the DNA results introduced at trial.
Marcella’s Identification of Pope.
In his fourth assignment of error, Pope argues that the dis-
trict court erred in denying his pretrial motion to suppress
Marcella’s identification of him as the August 5, 2015, shooter.
Pope asserts that the photographic lineup was unduly sugges-
tive because the photograph depicting Pope in the lineup was
the same photograph that Marcella had seen on television dur-
ing a news report about the case. Pope further asserts that the
district court erred in its determination regarding the reliability
of Marcella’s identification.
[12-14] In State v. Nolan, 24 we articulated that “‘the Due
Process Clause does not require a preliminary judicial inquiry
into the reliability of an eyewitness identification when the
identification was not procured under unnecessarily suggestive
circumstances arranged by law enforcement.’” We explained
23
State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013), disapproved on
other grounds, State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).
24
State v. Nolan, 283 Neb. 50, 63, 807 N.W.2d 520, 535 (2012) (quoting
Perry v. New Hampshire, 565 U.S. 228, 132 S. Ct. 716, 181 L. Ed. 2d 694
(2012)).
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that the suppression of identification evidence on the basis of
undue suggestion is appropriate only where the witness’ abil-
ity to make an accurate identification is outweighed by the
corrupting effect of improper police conduct. 25 Finally, we
determined that when no improper law enforcement activity
is involved, it suffices to test the reliability of identification
testimony at trial, through the rights and opportunities gener­
ally designed for that purpose, such as the rights to counsel,
compulsory process, and confrontation and cross-examination
of witnesses. 26
In this case, Marcella had seen a photograph of Pope during
a television news story about Johnson’s murder. However, there
was no evidence of improper law enforcement activity so as to
render the lineup unduly suggestive. The parties stipulated that
the detective who presented the photographs to Marcella was
unaware of which photograph depicted Pope. And no evidence
was presented to show that law enforcement was aware that the
photograph had been used in the news story or that Marcella
had seen the news story.
Pope argues that the brief length of time during which
Marcella had to observe the shooter, Marcella’s degree of
attention at the time, her prior description of the shooter, her
level of certainty, and the fact that 14 months had elapsed
between the shooting and the photographic lineup are all fac-
tors weighing against the reliability of her identification of
Pope as the shooter. However, absent evidence of affirmative
police conduct tainting the identification procedure, a prelimi-
nary judicial inquiry into the reliability of the witness’ identifi-
cation is not required. 27 As discussed above, Pope presented no
such evidence. Therefore, it was the jury’s duty to assess the
identification’s reliability. 28
25
State v. Nolan, supra note 24.
26
Id.
27
See State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
28
State v. Nolan, supra note 24.
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[15] The jury heard Marcella’s testimony and her cross-
examination by Pope’s counsel regarding each of the factors
Pope uses to challenge the identification’s reliability, includ-
ing inconsistent statements Marcella made regarding her level
of certainty and a discrepancy between Marcella’s estimation
of the shooter’s height and Pope’s actual height. It was the
duty of the jury to assess Marcella’s credibility and deter-
mine whether she had a sufficient opportunity to see Pope on
August 5, 2015, and make a reliable identification of him as
the shooter. 29 We do not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence pre-
sented; such matters are for the finder of fact. 30 We find that
the district court did not err in permitting Marcella to identify
Pope at trial.
CONCLUSION
For the reasons outlined above, we conclude that Pope’s
assignments of error either are without merit or were not
adequately preserved for appellate review. Pope’s convictions
are affirmed.
Affirmed.
29
See State v. Dixon, supra note 27.
30
Id.