State v. Jones

932 	286 NEBRASKA REPORTS
VI. CONCLUSION
We conclude that Arlene is liable for breach of contract
but not for misappropriation of trade secrets or unjust enrich-
ment. We modify the judgment against Arlene accordingly. We
also conclude that Mark is not liable for misappropriation of
trade secrets or unjust enrichment. We reverse the judgment
against Mark.
A ffirmed in pArt As modified,
And in pArt reversed.
stephAn, miller-lermAn, and CAssel, JJ., not participating.
stAte of nebrAskA, Appellee, v.
A ntwAn l. Jones, AppellAnt.
840 N.W.2d 57
Filed November 22, 2013. 	No. S-12-1208.
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 hear-
ings 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 iden-
tification 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.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:38 AM CST

STATE v. JONES 	933
Cite as 286 Neb. 932
7. Identification Procedures. Reliability is the linchpin in determining the admis-
sibility of identification testimony.
8. ____. Factors to be considered in determining the reliability of a witness’ iden-
tification 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.
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, C onnolly, stephAn, mCC ormACk,
miller-lermAn, and CAssel, JJ.
heAviCAn, C.J.
I. INTRODUCTION
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 over-
ruling Jones’ motions to suppress eyewitness identifications.
Jones also argues the district court failed to articulate its find-
ings in overruling the motions to suppress. We affirm.
II. BACKGROUND
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

934 	286 NEBRASKA REPORTS
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 based on a scar on
Jones’ face and his gold teeth.
Officer Robert Myers of the Omaha Police Department was
on duty on the afternoon of September 24, 2011, patrolling in
the area of 55th Street and Ames Avenue, when he observed
two people on the northwest corner—one lying on the ground,
and another standing over him. The standing party looked
at Myers for approximately 2 seconds before fleeing, and
Myers observed him to be a black male wearing dark cloth-
ing, approximately 5 feet 10 inches to 6 feet tall. Myers also
observed that the party held a silver automatic handgun. Myers
then noticed a third party across the street who also appeared
to be running from the intersection. The third party, later iden-
tified as Herbert, soon returned to the scene. Myers ordered
Herbert to stay where he was and radioed for assistance, stat-
ing that he had heard shots fired, that a party was down, that a
black male in black clothing was seen running northeast, and

STATE v. JONES 	935
Cite as 286 Neb. 932
that he was holding another party at gunpoint. When backup
arrived, Myers ran to the party on the ground, later identified
as Dejuan. Myers performed CPR until paramedics arrived and
then rode in an ambulance with Dejuan to a hospital. Myers
was called back to the scene roughly an hour later to identify
a possible suspect.
Upon returning to the area, Myers parked his police cruiser
approximately 11⁄2 blocks from the scene and began to walk
toward the intersection of 55th Street and Ames Avenue. While
walking, he observed another cruiser with a party seated in the
back seat. Myers approached, opened the door to the cruiser,
and spoke to the party seated in the back seat. The party identi-
fied himself as Jones. As they spoke, Myers recognized Jones
as the party with the gun who had fled from the scene earlier.
Myers then located the command officer on the scene and told
her that the party in the cruiser was the same party he had
previously seen running from the scene. Myers testified that he
was “[a] hundred percent” certain he recognized Jones as the
party with the gun.
Myers identified Jones in court at the motion to suppress
hearing. Myers stated he had “no doubt” Jones was the party
Myers saw with a gun on the corner of 55th Street and Ames
Avenue. Myers also identified Jones at trial.
A dark T-shirt and pair of jeans were found in a nearby
apartment. A black cap with an “M” on it was found nearby,
and a black Carhartt jacket was found in a Dumpster near the
apartment building. In the sleeve of the jacket, officers found
a silver handgun. Ballistics testing later revealed that this gun
matched shell casings found at the scene, and testing showed
Jones to be the likely source of DNA found on the jeans.
Surveillance video from a nearby store showed Jones wearing
the dark jeans, T-shirt, and cap approximately an hour prior to
the shooting.
A jury found Jones guilty of first degree murder, use of a
deadly weapon to commit a felony, and possession of a deadly
weapon by a prohibited person. Jones was sentenced to life
imprisonment for first degree murder, 40 to 50 years’ impris-
onment to be served consecutively for use of a deadly weapon
to commit a felony, and 40 to 50 years’ imprisonment to be

936 	286 NEBRASKA REPORTS
served concurrently for possession of a deadly weapon by a
prohibited person.
III. ASSIGNMENTS OF ERROR
Jones assigns the following errors of the district court,
restated and reordered: (1) The court erred when it failed to
articulate its findings in overruling Jones’ motions to suppress
the eyewitness identifications of Herbert and Myers, and (2)
the court erred in overruling the motions to suppress and in
subsequently allowing both witnesses to make in-court identi-
fications of Jones.
IV. STANDARD OF REVIEW
[1] 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.1
[2] 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.2
V. ANALYSIS
1. A rtiCulAtion of findings
In his first assignment of error, Jones argues that the court’s
rulings regarding Jones’ motions to suppress lacked specific
factual findings and that thus, this court is precluded from any
meaningful review.
[3] This court has held that “‘district courts shall articu-
late in writing or from the bench their general findings when
denying or granting a motion to suppress.’”3 We have further
noted that the degree of specificity required will vary case
to case.4
1 State v. Dixon, ante p. 334, 837 N.W.2d 496 (2013).
2 State v. Bromm, 285 Neb. 193, 826 N.W.2d 270 (2013); State v. Ball, 271
Neb. 140, 710 N.W.2d 592 (2006).
3 State v. Graham, 259 Neb. 966, 971, 614 N.W.2d 266, 270 (2000) (quoting
State v. Osborn, 250 Neb. 57, 547 N.W.2d 139 (1996)).
4 Id.

STATE v. JONES 	937
Cite as 286 Neb. 932
The district court’s orders in this case tell us little beyond
that the court found the police procedures were not unduly
suggestive and that the identifications were reliable. It would
have been helpful if the court’s articulation of factual find-
ings had been more detailed; however, the facts were not in
dispute in the motions to suppress. Jones offered no witnesses
or other evidence at the motion to suppress hearings. As such,
we can infer that the court found the State’s witnesses cred-
ible and we are able to proceed to consideration of the merits
of the motions to suppress based on the record before us.
Accordingly, we find Jones’ first assignment of error to be
without merit.
2. eyewitness identifiCAtions
In his second assignment of error, Jones argues that the dis-
trict court erred in overruling his motions to suppress the eye-
witness identifications of Herbert and Myers, because police
procedures used in obtaining these identifications were unduly
suggestive, in violation of the Due Process Clauses of the U.S.
and Nebraska Constitutions. Additionally, we note the con-
cerns set forth in the amicus brief submitted by The Innocence
Project. But those arguments were not urged at the time of
trial, and as such, we decline to apply them on appeal.
[4,5] 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 The U.S. Supreme Court provides
a two-part test for determining the admissibility of an out-
of-court identification: “[T]he trial court must [first] decide
whether the police used an unnecessarily suggestive identifica-
tion 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
5 State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005); State v. Faust, 269
Neb. 749, 696 N.W.2d 420 (2005); State v. Tolliver, 268 Neb. 920, 689
N.W.2d 567 (2004).
6 Perry v. New Hampshire, 565 U.S. 228, 132 S. Ct. 716, 722, 181 L. Ed. 2d
694 (2012).

938 	286 NEBRASKA REPORTS
(a) Eyewitness Identification
by Herbert
[6] A showup is usually defined as a one-on-one confronta-
tion where the witness views only the suspect. A showup is
commonly conducted at the scene of the crime, shortly after
the arrest or detention of a suspect, while the incident is still
fresh in the witness’ mind.7 The State concedes Herbert’s
identification of Jones constituted a showup. However, admis-
sion of evidence of a showup does not, by itself, violate
due process.8
[7,8] “Reliability is the linchpin in determining the admis-
sibility of identification testimony.”9 We have stated:
The factors to be considered [in determining the reli-
ability of a witness’ identification] include (1) the oppor-
tunity 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 identifica-
tion itself.10
We consider these factors in turn.
(i) Opportunity to View Shooter
The shooting occurred outdoors in broad daylight. Herbert
testified that he glanced at the shooter three times over a short
span of time prior to the shooting. Herbert also observed the
shooter’s face for 20 to 30 seconds from a distance of roughly
3 feet when the shooter spoke to Dejuan and fired his gun.
Herbert had time to observe the suspect, and his observation
was free from any obstructions. This factor weighs in favor
of reliability.
7 State v. Garcia, 235 Neb. 53, 453 N.W.2d 469 (1990).
8 Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
9 State v. Faust, supra note 5, 269 Neb. at 757, 696 N.W.2d at 427.
10 Id. (citations omitted).

STATE v. JONES 	939
Cite as 286 Neb. 932
(ii) Degree of Attention
Herbert’s testimony indicated that he glanced at the shooter
repeatedly prior to the shooting because he was “on the alert”
while in that area of the city. Once Herbert was confronted,
his attention was focused on the shooter until the police
arrived. One might assume there was some degree of panic
at the sight of the gun, and Herbert testified that both he and
Dejuan attempted to run away when the shooter began firing.
However, Herbert had viewed the shooter more than once
by looking back while walking before the shooter actually
spoke and pulled out the gun. This factor also weighs in favor
of admissibility.
(iii) Prior Description
Herbert provided police with a relatively detailed descrip-
tion of the shooter, including race, approximate age, height,
weight, and clothing. Prior to being shown the suspect, Jones,
Herbert also told officers that the shooter had gold upper teeth.
Although Jones was wearing different clothing when located,
Herbert noted such, and clothing matching the description pro-
vided by Herbert was located in the area.
Jones does not argue that the description provided by
Herbert was inaccurate, but notes that Herbert failed to include
Jones’ facial scar in his description to police. While a descrip-
tion including the scar would also have weighed strongly
in favor of reliability, the description of the shooter’s gold
teeth provided a distinguishing feature which bolstered the
reliability of Herbert’s identification. The description pro-
vided was sufficiently detailed and accurate to weigh in favor
of reliability.
(iv) Level of Certainty
It was undisputed that Herbert was not positive whether
Jones was the shooter until he saw his gold teeth. However,
even prior to inquiring whether Jones had gold teeth, Herbert
told officers that Jones looked similar, and noted Jones was not
wearing the dark jacket, shirt, and jeans he had been wearing
during the shooting.
Herbert testified that he was “a hundred percent sure” of
his identification, but one officer on the scene testified that

940 	286 NEBRASKA REPORTS
at the time of the identification, Herbert stated he was “fairly
confident” Jones was the shooter. The officer was uncertain of
the precise language used by Herbert, but testified that Herbert
seemed confident. This was not a case where the eyewitness
expressed notable doubt. Taking the circumstances as a whole,
we find that this factor weighs in favor of reliability.
(v) Time Before Confrontation
There is some uncertainty in the record regarding timing, but
considering all of the testimony, it seems Herbert’s identifica-
tion of Jones took place 15 minutes to 1 hour after the shoot-
ing. The identification took place at the scene of the crime
while it was still fresh in the witness’ mind. This factor weighs
strongly in favor of reliability.
(vi) Conclusion
Herbert had an unobstructed view of the shooter from a close
distance. He provided police with a detailed description of the
shooter, and his identification of Jones took place shortly after
the shooting occurred. Even assuming that the identification
was procured under unnecessarily suggestive circumstances
arranged by law enforcement, considering the totality of the
circumstances, the identification was reliable and its admission
was not a violation of due process.
(b) Eyewitness Identification
by Myers
As the State notes, although Myers was called back to the
scene for the purpose of identifying a suspect, his identifica-
tion was essentially unprompted. “When no improper law
enforcement activity is involved . . . it suffices to test reliability
through the rights and opportunities generally designed for that
purpose . . . .”11
While Myers was not actually asked to identify Jones, there
may have been some degree of suggestiveness created by
Jones’ being handcuffed and in the back of a police cruiser at
the scene of the crime. As such, we consider the reliability fac-
tors in turn.
11 Perry v. New Hampshire, supra note 6, 565 U.S. at 233.

STATE v. JONES 	941
Cite as 286 Neb. 932
(i) Opportunity to View Suspect
Although the observation took place in daylight, free from
obstruction, Myers had only a moment to view the suspect’s
face. This first factor likely weighs against reliability.
(ii) Degree of Attention
Myers was not a casual observer, but a trained police officer
on duty who knew that his recollection of the suspect’s face
would likely be critical to the suspect’s arrest.12 This factor
weighs in favor of reliability.
(iii) Prior Description
The description provided by Myers over his radio was gen-
eral, but there is no indication that anything Myers stated was
inaccurate. Furthermore, the record does not indicate Myers
had the opportunity to provide a detailed description to anyone
before he observed Jones in the police cruiser and identified
him as the party with the gun. This factor weighs in favor
of reliability.
(iv) Level of Certainty
Myers expressed that he had “no doubt” Jones was the
party he saw with the gun. His certainty weighs in favor of
reliability.
(v) Time Before Confrontation
Although the record is not entirely clear as to the timing,
the testimony as a whole indicates Myers’ identification of
Jones took place somewhere between 1⁄2 to 11⁄2 hours after he
observed the suspect run from the scene of the shooting. This
factor weighs heavily in favor of reliability.
(vi) Conclusion
Myers had an unobstructed view of the suspect. He was
a trained police officer on duty when he viewed the sus-
pect. Upon returning to the scene, Myers recognized Jones
after speaking with him, without prompting from other offi-
cers. Considering the totality of the circumstances, Myers’
12 See Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140
(1977).

942 	286 NEBRASKA REPORTS
identification was reliable and its admission was not a viola-
tion of due process.
(c) Conclusion Regarding
Eyewitness Identifications
In considering the reliability factors set forth above, the
eyewitness identifications of both Herbert and Myers were reli-
able. Moreover, the descriptions separately provided by Herbert
and Myers were not inconsistent with each other, nor were they
inconsistent with the other evidence produced at trial. As such,
both identifications were admissible. Jones’ second assignment
of error is without merit.
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
A ffirmed.
stAte of nebrAskA ex rel. C ounsel for disCipline
of the nebrAskA supreme C ourt, relAtor, v.
donnA J. tonderum, respondent.
840 N.W.2d 487
Filed November 22, 2013. 	No. S-13-083.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. ____. Under Neb. Ct. R. § 3-304, the Nebraska Supreme Court may impose one
or more of the following disciplines: (1) disbarment; (2) suspension; (3) proba-
tion in lieu of or subsequent to suspension, on such terms as the court may des-
ignate; or (4) censure and reprimand.
3. ____. To determine whether and to what extent discipline should be imposed in
an attorney discipline proceeding, the Nebraska Supreme Court considers the fol-
lowing factors: (1) the nature of the offense, (2) the need for deterring others, (3)
the maintenance of the reputation of the bar as a whole, (4) the protection of the
public, (5) the attitude of the offender generally, and (6) the offender’s present or
future fitness to continue in the practice of law.
4. ____. Each attorney discipline case must be evaluated individually in light
of its particular facts and circumstances, and the Nebraska Supreme Court
considers the attorney’s acts underlying the events of the case and throughout
the proceedings.