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State v. Cosey

Supreme Court of Nebraska

May 31, 2019

State of Nebraska, appellee,

          Appeal from the District Court for Clay County: Vicky L. Johnson, Judge.

          Mark Porto, of Porto Law Office, for appellant.

          Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          HEAVICAN, C.J.

         1. 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.

         2. Identification Procedures: Police Officers and Sheriffs: Pretrial Procedure. An identification infected by improper police influence is not automatically excluded. Instead, the trial judge must screen the evidence for reliability pretrial. If there is a very substantial likelihood of irreparable misidentification, the judge must disallow presentation of the evidence at trial. But if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth.

         3. ___: ___: ___.When considering the admissibility of an out-of-court identification, a trial court must first decide whether the police used an unnecessarily suggestive identification procedure. If they did, the court must next consider whether the improper identification procedure so tainted the resulting identification as to render it unreliable and therefore inadmissible.

         4. Identification Procedures. Reliability is the linchpin in determining the admissibility of identification testimony.

         5. ___.To determine the reliability of an out-of-court identification, the trial court must consider, based on the totality of the circumstances, (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 [303 Neb. 258] the confrontation. Against these factors is to be weighed the corrupting influence of the suggestive identification itself.


         Eugene T. Cosey was charged with delivery of a controlled substance, a Class II felony, pursuant to Neb. Rev. Stat. § 28-416 (Reissue 2016). During the course of the proceedings, Cosey repeatedly sought to suppress a confidential informant's identification of him as the person who sold the drugs to the informant, arguing that the identification violated his due process rights. Cosey was convicted following a jury trial in which the informant's identification was admitted. We affirm.


         On August 2, 2017, Cosey was charged with delivery of a controlled substance. The charge stemmed from an October 17, 2016, alleged narcotics transaction that had occurred between a confidential informant and a man known to the informant only as "G."

         On October 17, 2016, the informant was working at his regular job when an acquaintance introduced the informant to a man who sought to sell the informant an amount of methamphetamine. The informant, who has served as a confidential informant for law enforcement since 1999, met with the purported narcotics dealer, identified as G, for approximately [303 Neb. 259] 10 to 15 minutes. During the course of the conversation, the informant and G agreed to meet later that day to complete the proposed narcotics sale. The informant then contacted Officer Thomas Hayes, an investigator with the Fillmore County sheriff's office, to arrange to have the drug transaction recorded by law enforcement.

         At approximately 4 p.m. on October 17, 2016, the informant again met with G, this time in Sutton, Nebraska. Hayes was positioned across the street as the informant and G completed the narcotics sale. According to the informant, G was in the informant's vehicle for approximately 3 minutes while the sale of narcotics took place. During that time, the informant was recording audio of the encounter. The informant testified that he made detailed observations of the man that sold him the narcotics, but further indicated that he knew the subject only as "G" or "John."

         Following the drug transaction, the informant met with Hayes at another location. At that point, the informant provided Hayes with the methamphetamine he had purchased, along with the unused money and the recording device. The informant was only able to provide Hayes with the name "G" or "John" as the individual who sold him the methamphetamine.

         At Hayes' behest, the informant subsequently attempted to conduct a second transaction with G. However, the informant was advised by a woman purporting to be G's girlfriend that G was incarcerated and unable to sell the informant any additional methamphetamine.

         In the weeks that followed, Hayes attempted to determine the identity of G. During the course of his efforts, on November 9, 2017, Hayes contacted the police department in Hastings, Nebraska, and inquired whether anyone in the department knew of any person recently arrested going by the moniker "G." The office manager of the Hastings Police Department indicated that Cosey was known to use the moniker "G," but that Cosey had not recently been arrested. The Hastings Police Department provided Hayes with a photograph [303 Neb. 260] of Cosey. Hayes then sent a text message and the photograph to the informant, asking if it was a photograph of G. The informant responded that the photograph provided by Hayes was the man he knew as G.

         On August 2, 2017, Cosey was charged with delivery of a controlled substance, a Class II felony[1] On December 15, Cosey filed an amended motion to suppress seeking, among other things, suppression of the informant's identification of Cosey on the ground that the identification was the result of an unduly suggestive identification procedure utilized by Hayes.

         A suppression hearing was held on February 22 and 23, 2018. The district court entered an order finding that the identification procedure was unduly suggestive; however, the court ultimately concluded that the informant's identification was sufficiently reliable to allow it to be admitted into evidence. The court therefore denied Cosey's motion to suppress.

         On May 2, 2018, the State filed an amended information charging Cosey with the original charge of delivery of a controlled substance, as well as a habitual criminal enhancement. Following a jury trial, Cosey was found guilty of delivery of a controlled substance. On July 11, the State dismissed the habitual criminal enhancement and Cosey was sentenced to 3 to 5 years' imprisonment.


         Cosey's sole assignment of error is that the district court erred in ...

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