State v. Pope, 305 Neb. 912

Background

Three related shootings in Omaha (Aug. 5, 6, and 8, 2015): an attempted shooting of Garion Johnson (Aug. 5), arson and the murder of Deprecia Neelon (Aug. 6), and the murder of Johnson (Aug. 8).
Physical evidence linked Pope: his partial palmprint on a .357 revolver found in Marcus Short’s bedroom (ballistics tied that revolver to Johnson’s wounds); two .45 casings from Neelon’s scene matched a .45 recovered from Short’s bedroom; DNA from a buccal swab of Pope was a major contributor to a black hooded sweatshirt and pants seized at Short’s home; a minivan registered to Pope’s mother matched a vehicle seen leaving Neelon’s scene; cell records placed Pope nearby during the incidents.
Eyewitness Marcella observed the Aug. 5 shooter briefly (about 3 seconds), later saw Pope at the courthouse after a TV news segment that used the same photo included in the later police photo lineup; she identified Pope in the lineup and at trial.
Pretrial rulings: the district court found the affidavit for a DNA warrant lacked probable cause but admitted the DNA under the good-faith exception; the court denied suppression of Marcella’s identification (no evidence of suggestive police conduct).
Pope was convicted of two counts of first-degree murder, two counts of use of a deadly weapon during a felony, and one count possession of a deadly weapon by a prohibited person; he appealed and the Nebraska Supreme Court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Felony-murder instruction (Neelon)	State: jury instruction on felony murder and arson elements was proper.	Pope: court should have instructed proximate-cause/efficient-intervening-cause (fire must be proximate cause of death).	Court: No proximate-cause instruction required—death undisputedly from gunshots and closely connected to arson; given instructions sufficient.
Aiding-and-abetting instruction	State: standard NJI instruction correctly stated law.	Pope: requested language clarifying mere presence/acquiescence insufficient and requiring some participation should be included.	Court: NJI instructions plus language on mere presence were functionally equivalent; refusal to give Pope’s wording not prejudicial.
DNA warrant / suppression	State: DNA admissible under good-faith exception despite affidavit defects.	Pope: affidavit lacked probable cause; DNA should be suppressed.	Court: District court found lack of probable cause but applied good-faith exception; on appeal Pope waived error by failing to object to DNA expert testimony at trial—claim not preserved.
Photographic lineup / eyewitness ID (Marcella)	State: lineup not unduly suggestive; no police misconduct; reliability for jury to assess.	Pope: photo shown on TV made the lineup suggestive and the ID unreliable (short observation, time lapse).	Court: No evidence of police-arranged suggestiveness; preliminary reliability inquiry not required; jury could evaluate reliability—admission upheld.

Key Cases Cited

State v. Harris, 194 Neb. 74, 230 N.W.2d 203 (1975) (proximate-cause instruction appropriate when evidence raises disputed intervening-cause issue)
State v. Quintana, 261 Neb. 38, 621 N.W.2d 121 (2001) (no proximate-cause instruction required where cause of death not disputed; focus is whether death occurred in course of felony)
State v. Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019) (statement of aiding-and-abetting elements and participation requirement)
State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012) (Due Process does not require preliminary reliability hearing absent suggestive law-enforcement conduct)
Perry v. New Hampshire, 565 U.S. 228 (2012) (Supreme Court: no judicial reliability inquiry required where identification not procured by police suggestion)
State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006) (preservation rule for repetitive objections to testimony)
State v. Buckman, 237 Neb. 936, 468 N.W.2d 589 (1991) (jury unanimity required only as to guilt of first-degree murder, not theory)
State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013) (factors relevant to eyewitness identification reliability)