Summary
The Nebraska Supreme Court affirmed Preston Pope’s convictions for two counts of first degree murder, two counts of use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person. The court rejected challenges to the felony-murder and aiding-and-abetting jury instructions, the seizure of Pope’s DNA, and an eyewitness identification.
Topics
Practice areas
Questions Presented
- Whether the felony-murder jury instructions were erroneous because they did not require the jury to find that the arson proximately caused Neelon's death or that no efficient intervening cause existed.
- Whether the aiding-and-abetting instructions were inadequate because they omitted or insufficiently stated that mere presence, acquiescence, or silence is insufficient for criminal liability.
- Whether the admission of DNA evidence was properly preserved for appellate review despite a continuing objection to DNA collection testimony.
- Whether Marcella Mitchell's photographic-lineup and in-court identifications were obtained through unnecessarily suggestive law-enforcement procedures requiring suppression.
Holdings
- A defendant in a felony-murder case is not entitled to a proximate-cause or efficient-intervening-cause instruction when the evidence presents no factual dispute about the victim's cause of death or the temporal and geographic connection between the underlying felony and the killing.
- The aiding-and-abetting instructions, read as a whole, adequately stated the law and were not prejudicially erroneous where they required intentional encouragement or assistance and expressly stated that mere presence, acquiescence, or silence was insufficient.
- A continuing objection to testimony by the witness who collected a defendant's DNA does not preserve an objection to DNA-test-result testimony by a different witness when the defendant did not object to that testimony at trial.
- Due process does not require a preliminary judicial reliability inquiry or suppression of an eyewitness identification absent unnecessarily suggestive circumstances arranged by law enforcement.
Key quotations
“A trial court is not obligated to instruct the jury on matters which are not supported by evidence in the record.” (926)
“However, absent evidence of affirmative police conduct tainting the identification procedure, a preliminary judicial inquiry into the reliability of the witness’ identification is not required.” (930)
Factual background
Three shootings occurred in Omaha on August 5, 6, and 8, 2015, resulting in the deaths of Deprecia Neelon and Garion Johnson. Evidence linked Pope to firearms, clothing, vehicles, cell-phone locations, and DNA recovered from clothing seized from a codefendant's residence. An eyewitness, Marcella Mitchell, observed the August 5 shooter, later recognized Pope at a courthouse, and subsequently identified him in a photographic lineup after having seen Pope's photograph in a television news report. Pope was convicted of two first degree murders and related weapon offenses.
Procedural history
A Douglas County District Court jury convicted Pope on all five counts and the court imposed consecutive sentences, including two terms of life imprisonment. Before trial, the district court denied Pope's motions to suppress DNA evidence and an eyewitness identification. The Nebraska Supreme Court affirmed the convictions, concluding that the jury instructions were not prejudicially erroneous, the DNA-evidence claim was waived by inadequate trial objection, and the identification was not obtained through improperly suggestive law-enforcement conduct.