State v. Pope, 943 N.W.2d 294

Background

August 2015: three related shootings in Omaha (Aug 5, 6, 8) — victims Deprecia Neelon and Garion Johnson were fatally shot; another shooting earlier that month.
Physical evidence: Pope’s partial palm print on a .357 revolver; ballistics tied that revolver to Johnson’s killing; two casings from Neelon’s scene matched a .45 found in Marcus Short’s bedroom; other casings were from an unknown .45 semiautomatic.
Investigative links: a minivan registered to Pope’s mother was linked to one scene; cell‑site data placed Pope near the scenes; DNA from a buccal swab of Pope matched DNA on clothing seized from Short’s bedroom.
Identification evidence: eyewitness Marcella saw the shooter briefly on Aug 5, later saw Pope in a courthouse and identified him; she subsequently identified Pope in a photo lineup (one photo matched an image shown on TV).
Motions and trial rulings: district court found the DNA‑warrant affidavit insufficient but admitted the DNA under the good‑faith exception; denied suppression of Marcella’s ID (no police‑suggestion shown); court gave felony‑murder and aiding‑and‑abetting instructions but refused Pope’s proposed proximate‑cause and modified aiding‑and‑abetting language.
Procedural posture: jury convicted Pope of two counts of first‑degree murder, related weapon counts, and possession by a prohibited person; Nebraska Supreme Court affirmed (filed May 29, 2020).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Felony‑murder jury instruction / proximate cause	State: instructions adequately required killing to occur "during the course of" arson.	Pope: jury should have been told arson must be the proximate cause of Neelon’s death (no efficient intervening cause like the shooting).	Court: no proximate cause instruction required — no dispute Neelon died from gunshot wounds and shooting was closely connected to the arson; instruction adequate.
2) Refusal to give Pope’s aiding‑and‑abetting instruction	State: NJI instruction fairly presented law; language functionally covered Pope’s concerns.	Pope: tendered language (from Stubbendieck) was correct and necessary to avoid conviction based on mere presence.	Court: tendered language was correct but not prejudicially omitted because jury instructions, read together, covered the substance (including that mere presence/acquiescence is insufficient).
3) Admissibility of DNA obtained under warrant	State: even if affidavit lacked probable cause, officers reasonably relied on the warrant (good‑faith exception).	Pope: affidavit insufficient; DNA should have been suppressed.	Court: district court found affidavit insufficient but admitted DNA under good‑faith exception; on appeal Pope waived the claim by failing to object to the DNA expert’s testimony at trial.
4) Suppression of Marcella’s photographic ID	State: lineup was not unduly suggestive and there was no improper police conduct; reliability for jury to assess.	Pope: photo used in lineup had been broadcast on TV earlier; identification was unreliable given brief observation and time delay.	Court: no evidence police arranged suggestiveness; preliminary reliability hearing not required; admissibility for jury — district court did not err.

Key Cases Cited

State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (jury‑instruction standard)
State v. Quintana, 261 Neb. 38, 621 N.W.2d 121 (felony‑murder/proximate‑cause instruction guidance)
State v. Harris, 194 Neb. 74, 230 N.W.2d 203 (proximate‑cause instruction warranted where intervening cause is in dispute)
State v. Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (aiding‑and‑abetting instruction language)
State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (Due Process / eyewitness ID — no preliminary reliability inquiry absent police suggestiveness)
Perry v. New Hampshire, 565 U.S. 228 (2012) (Due Process does not require pretrial reliability inquiry where ID not caused by police suggestion)
State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (preservation of objection rules)
State v. Weathers, 304 Neb. 402, 935 N.W.2d 185 (standards on review for suppression and instructions)