Appeal from the District Court for Douglas County: PETER C. BATAILLON, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
Karen A. Newirth and Barry C. Scheck for amicus curiae The Innocence Project.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.
Syllabus by the Court
1. Identification Procedures: Due Process: Appeal and Error. A trial 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.
2. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error. When a motion to suppress is denied pretrial
and again during trial on renewed objection, an appellate court considers all the evidence, both from trial and from the hearings on the motion to suppress.
3. Motions to Suppress: Courts: Records. District courts shall articulate in writing or from the bench their general findings when denying or granting a motion to suppress. The degree of specificity required will vary from case to case.
4. Constitutional Law: Identification Procedures: Due Process. An identification procedure is constitutionally invalid only when it is so unnecessarily suggestive and conducive to an irreparably mistaken identification that a defendant is denied due process of law.
5. Trial: Identification Procedures: Police Officers and Sheriffs: Evidence. In determining the admissibility of an out-of-court identification, the trial court must first decide whether the police used an unnecessarily suggestive identification procedure. If they did, the court must next consider whether that procedure so tainted the resulting identification as to render it unreliable and thus inadmissible.
6. Criminal Law: Identification Procedures: Witnesses: Words and Phrases. A showup is usually defined as a one-on-one confrontation where the witness views only the suspect, and it is commonly conducted at the scene of the crime, shortly after the arrest or detention of a suspect and while the incident is still fresh in the witness' mind.
[286 Neb. 933] 7. Identification Procedures. Reliability is the linchpin in determining the admissibility of identification testimony.
8. Identification Procedures. Factors to be considered in determining the reliability of a witness' identification include (1) the opportunity of the witness to view the alleged criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of his or her prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation. Against these factors is to be weighed the corrupting influence of the suggestive identification itself.
Following a jury trial, the district court convicted Antwan L. Jones of first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person. Jones appeals, arguing the district court erred in overruling Jones' motions to suppress eyewitness identifications. Jones also argues the district court failed to articulate its findings in overruling the motions to suppress. We affirm.
Dejuan Johnson was shot and killed on the afternoon of September 24, 2011. That afternoon, Dejuan and his cousin, Herbert Johnson, were walking along Ames Avenue in Omaha, Nebraska, when
Herbert observed a black male wearing a black Carhartt jacket, a baseball cap, and jeans exit from a vehicle and walk behind them. Herbert glanced back at the man three [286 Neb. 934] times. The third time Herbert looked back, the man asked, " What's up now ...," aimed a gun at Dejuan, and fired.
Herbert was a few feet from the shooter when the shooter spoke. Herbert estimated that he observed the shooter's face for 20 to 30 seconds. Herbert noticed the shooter had gold teeth and a scar on his face. Police quickly arrived at the scene. The shooter fled on foot.
Herbert gave police a description of the shooter, stating he was a black male approximately 5 feet 11 inches to 6 feet 1 inch, 160 to 170 pounds, wearing a black " fitted hat," a black Carhartt jacket, a black undershirt, and blue or black jeans. A few minutes after giving his initial description, Herbert also told officers the shooter had gold upper teeth. Approximately 15 to 20 minutes later, officers told Herbert they believed they had found the shooter but were not sure and asked if Herbert would identify him. Officers brought Jones, in handcuffs, to the scene. Herbert told officers Jones was similar in height and weight, but was not wearing the same clothes as the shooter. Herbert asked an officer to have Jones smile, and seeing Jones' gold teeth, Herbert made a positive identification.
At the motion to suppress hearing and again at trial, Herbert identified Jones as the shooter. Herbert testified he was " a hundred percent sure" of his identification ...