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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 obligated 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 historical 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 independently of the trial court’s determination.

3. Identification Procedures: Due Process: Appeal and Error. 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. 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 necessitating reversal.

6. Jury Instructions: Proof: Appeal and Error. To establish reversible 

error from a court’s refusal to give a requested instruction, an appellant 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/31/2020 12:10 AM CDT
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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 question 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 objection 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 identification 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 testimony 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 conflicts 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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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 enforcement 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, including 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 chasing 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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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 siding 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 stepfather 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 testing 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, officers were able to follow the Impala’s tire tracks to Johnson’s 
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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 AfricanAmerican 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 handgun 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 prohibited 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 partial palmprint was found on the barrel of the .357 Magnum. 

Ballistic test results demonstrated that spent projectiles recovered 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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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 semiautomatic handgun.

On August 14, 2015, officers located a dark-colored minivan 

that matched the description of the minivan used by the suspects 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 courthouse 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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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 recognizing 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 testified that upon seeing the news story, she thought she recognized 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 seizure of two firearms, one of which had Pope’s partial palmprint on it.

The district court noted that the affidavit failed to articulate a connection between the firearm and the homicide and 

failed to articulate a connection between the fact that Pope had 
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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 reliance 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 identification 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 outweigh 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 currently serving.
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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 refusing 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 suppress 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 trigger 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 refusing to give his tendered instructions.

[4,5] 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 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 additional 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 continuous 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 continuous sequence, and without which the result would not 

have occurred.

“Efficient Intervening Cause”

An efficient intervening cause is a new and independent 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 commit the crime of arson; and

2. That on or about August 6, 2015 the Defendant, 

Preston Pope, was in the course of committing or attempting 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 building or property contained within a building by starting a 

fire or causing an explosion when another person is present 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 instruction 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 victim 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 demonstrating 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 question 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 proximate 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 robbery or attempted robbery may be considered one continuous event.

“If the intent to rob is formed prior to or contemporaneously 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 connection 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 proximate cause is appropriate where the evidence presents a jury 

question as to whether the death of the victim was proximately 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 question 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 proximate 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 causation 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 responsible 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 element of the offense, that “Pope, either alone or by aiding and 

abetting another, killed . . . Neelon during the course of committing 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 following 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 intentionally helped another person to commit the crime; and

2. The Defendant intended that the crime be committed; 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 definition of “aider.”

Addressing the district court’s refusal to give Pope’s tendered 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 person to commit the crime.” Further, the district court’s instruction 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 abetting 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 conclude 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 admission of testimony and overruled by the court it shall be 

unnecessary to repeat the same objection to further testimony 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 “regarding 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 testimony 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 district 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 suggestive because the photograph depicting Pope in the lineup was 

the same photograph that Marcella had seen on television during 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’ ability 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 factors weighing against the reliability of her identification of 

Pope as the shooter. 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. 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 crossexamination by Pope’s counsel regarding each of the factors 

Pope uses to challenge the identification’s reliability, including 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 determine 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 presented; 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.