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05/31/2019 08:06 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          303 Nebraska R eports
                                                      STATE v. COSEY
                                                     Cite as 303 Neb. 257




                          State         of   Nebraska,   appellee, v.Eugene T. Cosey,
                                    also known as         John Lnu, also known
                                                   as   “G,” appellant.
                                                        ___ N.W.2d ___

                                              Filed May 31, 2019.     No. S-18-747.

                 1. Identification Procedures: Due Process: Appeal and Error. A district
                    court’s conclusion whether an identification is consistent with due proc­
                    ess 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 circum-
                    stances, 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 dem-
                    onstrated at the confrontation, and (5) the time between the crime and
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                            STATE v. COSEY
                           Cite as 303 Neb. 257

   the confrontation. Against these factors is to be weighed the corrupting
   influence of the suggestive identification itself.

  Appeal from the District Court for Clay County: Vicky L.
Johnson, Judge. Affirmed.
  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.
                       INTRODUCTION
   Eugene T. Cosey was charged with delivery of a con-
trolled substance, a Class II felony, pursuant to Neb. Rev.
Stat. § 28-416 (Reissue 2016). During the course of the pro-
ceedings, 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.
                       BACKGROUND
   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 meth-
amphetamine. The informant, who has served as a confiden-
tial informant for law enforcement since 1999, met with the
purported narcotics dealer, identified as G, for approximately
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                         STATE v. COSEY
                        Cite as 303 Neb. 257

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 sher-
iff’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 addi-
tional methamphetamine.
   In the weeks that followed, Hayes attempted to deter-
mine 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 moni-
ker “G,” but that Cosey had not recently been arrested. The
Hastings Police Department provided Hayes with a photograph
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              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                              STATE v. COSEY
                             Cite as 303 Neb. 257

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 iden-
tification 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 con-
trolled 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.
                 ASSIGNMENT OF ERROR
   Cosey’s sole assignment of error is that the district court
erred in denying his motion to suppress.
                  STANDARD OF REVIEW
   [1] 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

1
    See § 28-416(1)(a) and (2)(a).
2
    State v. Taylor, 287 Neb. 386, 842 N.W.2d 771 (2014).
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              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                               STATE v. COSEY
                              Cite as 303 Neb. 257

                            ANALYSIS
   Cosey argues that the district court erred in denying his
motion to suppress. Cosey notes that the district court was cor-
rect in finding that the photographic identification of Cosey
made by the witness was unduly suggestive, a finding that
the State neither contests nor concedes. Cosey argues that the
district court erred in its conclusion regarding the reliability
of the witness’ identification as analyzed with the five factors
set forth in U.S. Supreme Court precedent.3 Therefore, Cosey
contends, the identification made by the informant should not
have been admitted.
   [2] The U.S. Supreme Court has noted:
         An identification infected by improper police influ-
      ence . . . is not automatically excluded. Instead, the trial
      judge must screen the evidence for reliability pretrial. If
      there is “a very substantial likelihood of irreparable mis-
      identification” . . . 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 identifica-
      tion evidence ordinarily will be admitted, and the jury
      will ultimately determine its worth.4
   [3] The U.S. Supreme Court has set forth a two-prong test
for determining the admissibility of out-of-court identifica-
tions. The Court stated that when considering the admissibility
of an out-of-court identification, a trial court must first “decide
whether the police used an unnecessarily suggestive identifica-
tion 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

3
    See Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
    See, also, Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed.
    2d 140 (1977).
4
    Perry v. New Hampshire, 565 U.S. 228, 232, 132 S. Ct. 716, 181 L. Ed. 2d
    694 (2012).
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              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                             STATE v. COSEY
                            Cite as 303 Neb. 257

inadmissible.”5 As is the case here, a claimed violation of due
process of law in the conduct of a confrontation depends on the
totality of the circumstances surrounding it.6
   [4,5] Reliability is the linchpin in determining the admissi-
bility of identification testimony.7 In State v. Faust,8 we adopted
the U.S. Supreme Court’s test for determining the admissibil-
ity of identification testimony such as the identification in this
case. To determine the reliability of an out-of-court identifi-
cation, 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 descrip-
tion 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 cor-
rupting influence of the suggestive identification itself.9
   Applying the two-prong test to this case, we accept for the
purpose of this appeal the district court’s conclusion that law
enforcement’s use of a single photograph sent to the witness
with the potentially leading question, “‘Is this “G”?’” resulted
in the identification’s being infected by improper police influ-
ence. But our analysis does not end there.
   We turn to the second prong of the two-prong test and weigh
the reliability of the identification against the unduly sugges-
tive acts of law enforcement. We begin by weighing the reli-
ability of the identification, and in doing so, we turn to the five
factors discussed above.

5
    Id., 565 U.S. at 235.
6
    Manson v. Brathwaite, supra note 3.
7
    State v. Faust, 269 Neb. 749, 696 N.W.2d 420 (2005) (citing Manson
    v. Brathwaite, supra note 3). See, also, Perry v. New Hampshire, supra
    note 4.
8
    State v. Faust, supra note 7.
9
    Id. (citing Manson v. Brathwaite, supra note 3; Neil v. Biggers, supra
    note 3).
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                         STATE v. COSEY
                        Cite as 303 Neb. 257

Opportunity of Witness to
View Alleged Criminal
at Time of Crime.
   Cosey concedes that the informant had a significant opportu-
nity to view G during the course of two meetings that lasted for
a combined total of approximately 18 minutes. The evidence
presented at the hearing on Cosey’s motion to suppress was
that the informant was introduced to G through an acquaint­
ance. The informant testified that their introduction and initial
meeting lasted for approximately 10 to 15 minutes and that the
two were in close proximity to one another.
   Later the same day, October 17, 2016, the informant and G
met again. Although their second meeting lasted only approxi-
mately 3 minutes, the two were again within mere feet of one
another. During the course of this meeting, the two exchanged
money for narcotics and engaged in a brief discussion. We
further note that the second meeting, like the first, occurred
during daylight hours when the informant had an uninhib-
ited view.

Witness’ Degree of Attention.
    During the course of the informant’s testimony, he indicated
that he had worked as an informant since 1999. The informant
testified that throughout the course of his 19-year career, he
learned to make concentrated observations of specific details
of his surroundings and interactions. Specifically, the informant
noted that he was sure to take note of license plates; speech
patterns; and physical, as well as clothing, descriptions when
interacting with others.
    The informant indicated that on October 17, 2016, he was
engaging in such concentrated observations. The informant tes-
tified that he observed G pull into the area of an ethanol fuels
plant in Hastings in a white, four-door Buick. The inform­ant
recalled G’s being seated in the rear passenger seat of the
vehicle and further provided an accurate description of G under
the circumstances.
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                Nebraska Supreme Court A dvance Sheets
                        303 Nebraska R eports
                                   STATE v. COSEY
                                  Cite as 303 Neb. 257

   Cosey argues that the informant’s attentiveness is “virtually
meaningless” considering the delay between the informant’s
observations on October 17, 2016, and Hayes’ presentation of
Cosey’s photograph on November 9.10 Cosey argues that the
informant’s testimony, in which he indicated that he had been
provided Cosey’s photograph “four days later or so, five days
later,” calls into question the informant’s level of attention,
given the fact that he was not presented with Cosey’s photo-
graph until 23 days after October 17. Cosey further argues that
the informant’s inaccuracies with regard to when the informant
provided the identification should be viewed in light of the
“significant financial incentive” to identify Cosey and “remain
in the good graces of . . . Hayes.”11
   While the informant’s attention and recollection as to the
specific dates and overall timeline of the investigation may
be flawed, that lapse does not necessarily translate to a lack
of attention with regard to the specific event recalled and
described. Additionally, Cosey’s claim regarding the inform­
ant’s recollection of the timetable and his financial incen-
tive calls into question the informant’s overall credibility,
which was a determination more appropriately considered by
the jury.
   Based on the record, the informant was not a casual
observer. The record demonstrates that through the inform­
ant’s 19 years of experience, which formed his expertise in
information gathering, the informant developed a strategy to
coordinate a surveilled narcotics purchase with G. The inform­
ant was in close proximity to G during the narcotics transac-
tion; thus, his observation of G was not based on passing
glances, but on studied observation. The record further dem-
onstrates that the informant testified he was able to describe,
by paying close attention, the environment, background,
and physical description of the parties involved in the two

10
     Brief for appellant at 13.
11
     Id. at 14.
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                         STATE v. COSEY
                        Cite as 303 Neb. 257

transactions; thus, the informant had a high degree of cer-
tainty in this case.
Accuracy of His or Her Prior
Description of Criminal.
   The informant first described to Hayes that G was an
African-American male, bald, and 5 feet 8 or 9 inches tall.
During the course of the suppression hearing, the informant
identified Cosey as G, but noted that G had “gained some
weight” since the informant had last seen him on October 17.
   Cosey makes two arguments in an attempt to call into ques-
tion the accuracy of the informant’s identification. First, Cosey
alleges that the informant had no way of knowing whether
G was in fact bald, because the photographs taken by Hayes
during the narcotics transaction show G wearing a baseball
cap. Second, Cosey argues that the informant misidentified the
name of the suspected drug trafficker to Hayes as being “John”
and not “G.”
   Cosey’s argument that the informant could not have observed
G’s hair length and style does not carry much weight. The
presence of a baseball cap does not necessarily defeat the abil-
ity of the informant to observe G’s hair length at some point
during the course of their two interactions. The State contends
that the photographs depicting G wearing a baseball cap were
taken at the second meeting, during the afternoon of October
17, 2016.
   As to Cosey’s second argument that the informant origi-
nally misidentified or misrepresented to Hayes the name of
the suspected trafficker, we find this argument disingenuous.
In his brief, Cosey argues that the informant “stated that the
seller went by the name ‘John’” and further contends that
Hayes testified almost exclusively that the seller’s name was
“‘John’” rather than “‘G.’”12 However, the record reflects that
while Hayes used the name “John” when referring to the seller,
Hayes, in fact, noted that he was provided with two names that

12
     Id.
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              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                              STATE v. COSEY
                             Cite as 303 Neb. 257

the seller was known to use. We find that the informant’s prior
description was sufficiently accurate.
Level of Certainty Demonstrated
at Confrontation.
   At the suppression hearing, the informant testified that he
had no doubt that the person from whom he purchased drugs
was Cosey. The district court, in its order, took note of the
level of certainty that the informant had with regard to Cosey’s
being the person that allegedly sold the contraband. The record
reflects that the informant had a high level of certainty in his
identification and that the level of certainty did not waiver at
the confrontation stage.
Time Between Crime
and Confrontation.
   The first instance of the informant’s meeting G and purchas-
ing narcotics occurred on October 17, 2016. Hayes testified
that he received the photograph of Cosey on November 9. At
that point, the photograph was provided to the informant, who
identified it as a photograph of Cosey, or G, the man who sold
him the drugs. This initial identification occurred 23 days after
the informant observed G.
   The suppression hearing where the informant identified
Cosey as “G” occurred on February 22, 2018, more than 16
months after the events giving rise to Cosey’s arrest. Although
this is a significant lapse in time that weighs against allowing
the identification, based on the totality of the circumstances,
we cannot say that there is a substantial likelihood of irrepa-
rable misidentification in this case.13
Balancing Test.
   Although identifications arising from single-photograph dis-
plays may be viewed in general with suspicion, in this case,

13
     See Manson v. Brathwaite, supra note 3 (acknowledging Court’s concern
     regarding lapse of 7 months in Neil v. Biggers, supra note 3).
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               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                                STATE v. COSEY
                               Cite as 303 Neb. 257

we find little pressure on the witness to acquiesce in the sug-
gestion that such a display entails.14 Cosey raises a legitimate
concern regarding the potential coercive nature of the quid pro
quo relationship that often exists between confidential inform­
ants and law enforcement; here, that fear is largely alleviated
by the fact that the informant has provided reliable informa-
tion to law enforcement for 19 years and has significant inter-
est in providing accurate information.
   Although it plays no part in our Faust analysis, the assur-
ance as to the reliability of the identification is hardly under-
mined by the fact that Cosey was also identified by his
acquaintance as the person the acquaintance introduced to the
informant.15 Further, on the voice recording of the narcotics
transaction, Cosey’s voice was identified by an officer familiar
with Cosey’s voice and speech patterns.
   We cannot say that under all the circumstances of this
case there is “‘a very substantial likelihood of irreparable
misidentification.’”16 Short of that, such evidence is for the jury
to weigh.17 Juries are not so susceptible that they cannot meas­
ure intelligently the weight of identification testimony that has
some questionable feature.18 Under the totality of the circum-
stances, the identification of Cosey was reliable, even though
the confrontation procedure may have been suggestive.
                         CONCLUSION
     The judgment of the district court is affirmed.
                                                                  A ffirmed.

14
     Id. See, also, Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L.
     Ed. 2d 1247 (1968).
15
     See State v. Faust, supra note 7.
16
     See Manson v. Brathwaite, supra note 3, 432 U.S. at 116 (quoting
     Simmons v. United States, supra note 14).
17
     Id.
18
     Id.
