State v. Robbins , 297 Neb. 503 ( 2017 )


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    STATE v. ROBBINS
    Cite as 
    297 Neb. 503
    State of Nebraska, appellee, v.
    R andall R. Robbins, appellant.
    ___ N.W.2d ___
    Filed August 18, 2017.   No. S-16-155.
    1.	 DNA Testing: Appeal and Error. A motion for DNA testing is addressed
    to the discretion of the trial court, and unless an abuse of discretion is
    shown, the trial court’s determination will not be disturbed.
    2.	 Motions to Vacate: Motions for New Trial: DNA Testing: Appeal and
    Error. Under the DNA Testing Act, an appellate court will not reverse a
    trial court’s order determining a motion to vacate a judgment of convic-
    tion or grant a new trial absent an abuse of the trial court’s discretion.
    3.	 DNA Testing: Appeal and Error. Under the DNA Testing Act, an
    appellate court will uphold a trial court’s findings of fact unless such
    findings are clearly erroneous.
    4.	 Statutes: Appeal and Error. Statutory interpretation is a question of
    law that an appellate court resolves independently of the trial court.
    5.	 Appeal and Error. Absent plain error, assignments of error not dis-
    cussed in the briefs will not be addressed by an appellate court.
    6.	 Appeal and Error: Words and Phrases. Plain error exists where there
    is an error, plainly evident from the record but not complained of at
    trial, which prejudicially affects a substantial right of a litigant and is of
    such a nature that to leave it uncorrected would cause a miscarriage of
    justice or result in damage to the integrity, reputation, and fairness of the
    judicial process.
    7.	 Statutes: Legislature: Intent: Appeal and Error. In construing a stat-
    ute, an appellate court should consider the statute’s plain meaning in
    pari materia and from its language as a whole to determine the intent of
    the Legislature.
    8.	 ____: ____: ____: ____. In construing a statute, an appellate court’s
    objective is to determine and give effect to the legislative intent of
    the enactment.
    9.	 Appeal and Error. Plain error may be asserted for the first time on
    appeal or be noted by an appellate court on its own motion.
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    10.	 Final Orders: Appeal and Error. A substantial right is affected if an
    order affects the subject matter of the litigation, such as diminishing a
    claim or defense that was available to the appellant before the order
    from which he or she is appealing.
    Appeal from the District Court for Lancaster County:
    Steven D. Burns, Judge. Reversed and remanded with direc-
    tions to dismiss.
    Robert W. Kortus, of Nebraska Commission on Public
    Advocacy, for appellant.
    Douglas J. Peterson, Attorney General, and Erin E. Tangeman
    for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Heavican, C.J.
    I. INTRODUCTION
    In 2003, Randall R. Robbins was sentenced to a period of
    40 to 60 years’ incarceration for second degree murder for the
    strangulation death of his girlfriend, Brittany Eurek.
    On September 4, 2012, Robbins filed a motion in the dis-
    trict court requesting (1) postconviction relief pursuant to 
    Neb. Rev. Stat. § 29-3001
     et seq. (Reissue 2016), (2) a new trial
    based on newly discovered evidence pursuant to 
    Neb. Rev. Stat. § 29-2101
    (5) (Reissue 2016), and (3) a new trial based on
    DNA testing pursuant to § 29-2101(6). The district court denied
    Robbins’ request for postconviction relief as time barred and
    denied Robbins’ request for a new trial under § 29-2101(5),
    because it was filed more than 3 years after Robbins’ convic-
    tion. The district court granted Robbins’ request for DNA test-
    ing. Robbins received pharmacogenetic testing, via a buccal
    swab, which indicated that he was an “intermediate metabo-
    lizer” of prescription drugs.
    Based on these results, Robbins asserted that while the
    dosage of the Zoloft medication he was taking at the time
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    of the murder was the recommended amount for the aver-
    age metabolizer, the dosage was too high for his body to
    properly metabolize. Robbins claims that this resulted in his
    experiencing a side effect, which caused him to be violent
    and homicidal.
    Robbins therefore argued that he was entitled to relief
    under the DNA Testing Act (Act), 
    Neb. Rev. Stat. § 29-4116
    et seq. (Reissue 2008), because new scientific evidence could
    contribute to and establish defenses at trial of an inability to
    formulate intent, intoxication, or insanity. Following an evi-
    dentiary hearing, the district court denied Robbins’ motion
    for new trial or new sentencing hearing based on the phar-
    macogenetic testing results. Robbins appeals. We hold that
    the district court committed plain error in granting Robbins’
    motion for DNA testing. We reverse, and remand with direc-
    tions to dismiss.
    II. BACKGROUND
    1. Factual Background
    (a) Zoloft Prescription
    On March 26, 2002, Dr. Richard Wurtz, a family practi­
    tioner, gave Robbins a standard trial dosage of Zoloft, 50
    mg per day (14 pills), for Robbins’ anxiety and told Robbins
    to follow up with him in 2 weeks. The trial dosage included
    product information. Wurtz testified that he did not give
    Robbins a prescription for Zoloft and that 50 mg is a standard
    starting dosage.
    There is no evidence that Robbins followed up with Wurtz
    or that Robbins ever filled a Zoloft prescription written by
    Wurtz. However, Robbins testified that at the time of the homi-
    cide, he was routinely taking one 50-mg tablet of Zoloft each
    day. The record is not clear as to how Robbins received the
    Zoloft without a prescription. Robbins testified that he did not
    take Zoloft the day of the homicide because he did not take
    Zoloft when he drank alcohol, and he was planning to drink
    alcohol that day.
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    (b) Strangulation of Eurek
    On June 1, 2002, Robbins, a 17-year-old just shy of his 18th
    birthday, was watching a movie at his residence with Eurek,
    with whom he had a 6-month old child. Shortly thereafter,
    they had sexual intercourse in Robbins’ bedroom. During inter-
    course, Eurek told Robbins that she wanted to have another
    child. Robbins said he did not want to have another child with
    her. Eurek became angry with Robbins and said that she did
    not want to have sex with him. They stopped having sex, and
    Eurek began accusing Robbins of cheating on her.
    Robbins “grabbed her by her throat and told her to stop,” and
    Eurek punched Robbins in the face. Robbins came from behind
    Eurek, again grabbed her by the throat, and began to strangle
    her with his hands. Eurek then passed out on the floor. Robbins
    retrieved a belt from his dresser and put it around Eurek’s
    neck, “pulled it up,” and “just sat there.” About 5 minutes later,
    he “pulled [Eurek] over and tied her to the rail that goes down-
    stairs.” Eurek “was like turning purple,” and Robbins stated
    he tied her to the stair rail “to make sure that she was dead.”
    Robbins later stated that the belt he used was the belt he had
    used a couple of weeks earlier to attempt suicide.
    Robbins then drove Eurek’s vehicle to his mother’s resi-
    dence and told his mother that he killed Eurek. Robbins’
    mother arrived at Robbins’ residence, found Eurek’s body, and
    called the 911 emergency dispatch service.
    Robbins admitted to the deputies at the scene that he killed
    Eurek. Following his arrest, Robbins recounted the events in
    a statement to an investigator. During Robbins’ confession
    to the investigator, he stated that the marks on his neck were
    scratches from when Eurek was “reaching back trying to make
    me stop.” Robbins also expressed concern that he did not take
    Zoloft that day. When asked by the investigator whether taking
    his Zoloft made him feel bad, he answered:
    I don’t feel right I can tell you that much since I’ve
    been taking it today I don’t feel like I should. Usually
    I feel like I got . . . I don’t know I don’t know if it’s a
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    problem or what I always have things on my mind caus-
    ing things on my mind.
    (c) Robbins’ Behavior on Zoloft
    Following his arrest, Robbins continued to take Zoloft while
    at the juvenile detention center. There was evidence that while
    at the juvenile detention center, Robbins’ dose was doubled
    without any ill effects. Also while at the juvenile detention
    center, a psychiatrist hired by Robbins’ trial counsel evaluated
    Robbins and concluded that Robbins was competent to stand
    trial and was not insane at the time of the homicide.
    In a deposition taken July 21, 2015, Robbins testified that
    when he started taking Zoloft, he felt like he had to be mov-
    ing all the time, which “progressed into agitation.” Robbins
    also testified that his agitation and aggression increased about
    3 or 4 weeks after starting Zoloft. Robbins indicated that his
    mother called Wurtz about the changes in his behavior prior to
    the homicide. Wurtz testified that there was no record of a call
    from Robbins’ mother.
    Trial counsel was deposed. In the deposition, counsel testi-
    fied contrary to Robbins’ assertions regarding Zoloft’s causing
    agitation. Trial counsel indicated that Robbins described Zoloft
    as calming him down and wondered whether not taking Zoloft
    on the day of the homicide caused Robbins to be more agi-
    tated. In a July 2, 2002, transcribed statement to trial counsel,
    Robbins told him that Zoloft improved his mental state and that
    he “was never upset and never sad or down” but that when he
    did not take Zoloft, he was “more emotional” and would “get
    all upset.”
    Robbins also alleges two suicidal episodes. One episode
    occurred a couple of years before Robbins was placed on
    Zoloft; the other occurred a couple of weeks prior to the
    homicide while Robbins was taking Zoloft. In addition to the
    alleged suicide attempts, there were two other episodes of
    physical aggression by Robbins, which the district court found
    occurred when he was not taking Zoloft.
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    (d) Robbins’ Pharmacogenetic
    Testing Results
    Pharmacogenetic testing to determine the ability of a par-
    ticular person to metabolize a medication was approved by
    the Food and Drug Administration for commercial use in
    December 2004. The test was administered to Robbins via a
    buccal swab, and the swab was sent to an accredited DNA
    parentage testing group. It is unclear from the record who
    administered the test. The district court used the terms “genetic
    testing,” “DNA testing,” and “pharmacogenetic testing” inter-
    changeably in reference to the test given to Robbins pursuant
    to its order.
    According to Dr. Daniel Hilleman, a pharmacist, there are
    four main categories of metabolizing Zoloft: extensive metabo-
    lizer, intermediate metabolizer, poor metabolizer, and “ultra-
    rapid” metabolizer. According to the testing group’s document
    explaining the categories, for an individual who tests as an
    intermediate metabolizer, “[t]his means that you have only one
    of two operating pathways, and will need a lower than normal
    dosage and need to carefully monitor medication.”
    Robbins’ pharmacogenetic test results showed that he was an
    intermediate metabolizer. The test results stated that this had a
    “[m]ajor” clinical impact and that a prescriber should “consider
    less than standard dosage to prevent adverse effects” in an
    intermediate metabolizer.
    Hilleman testified that Zoloft was one of the drugs affected
    by the enzyme measured in the test. Hilleman explained that
    the reduced ability to metabolize in an intermediate metabo-
    lizer meant that “the amount of drug in the body would be
    increased because the amount of drug that’s being detoxified
    would be relatively less than someone that had full metabolic
    capacity.” Hilleman also stated that according to the FDA-
    approved labeling, the side effects of Zoloft in major depres-
    sive disorders that occurred with rates greater than 10 percent
    included “dry mouth, somnolence, dizziness, diarrhea, nausea,
    [and] insomnia.”
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    (e) Zoloft Black Box Warning
    Hilleman testified that a “black box warning” is “an insert
    within the formal prescribing information that the Food and
    Drug Administration mandates be included when a significant
    risk with a particular drug exists” and that such warnings were
    not available to treating physicians, psychiatrists, or pharma-
    cologists prior to 2004.
    The black box warning for Zoloft states in relevant part:
    “Antidepressants increased the risk compared to placebo of
    suicidal thinking and behavior (suicidality) in children, ado-
    lescents, and young adults in short-term studies of major
    depressive disorder (MDD) and other psychiatric disorders. .
    . . Depression and certain other psychiatric disorders are them-
    selves associated with increases in the risk of suicide.”
    The black box warning states that suicidal thoughts and
    behavior were adverse reactions most common in children,
    adolescents, and young adults. Hilleman stated that he agreed
    with the black box warning, and he also connected Zoloft with
    violent behavior, because “there are some additional indepen-
    dent reports in the medical literature that have documented
    an association between the use of antidepressants and violent
    behavior.” Hilleman also testified that “most of the adverse
    reaction reports were suicide attempts” but that there were
    also reports of homicide attempts. Hilleman explained that
    the inability to metabolize Zoloft could result in such adverse
    reactions because
    [t]he abnormality in the functioning of the CYP2C19
    enzyme could have led to higher amounts of drug in a
    patient, and then a greater effect in that patient in terms of
    adverse reactions of which one is suicidal ideation and/or
    behavior, and according to the report that I cited from [a
    research journal article] which associates reports of vio-
    lence towards others, with antidepressants, could have led
    to an increase in violent tendency towards others.
    Walter Duffy, a psychiatrist who evaluated Robbins due to
    truancy and alcohol and cannabis dependence in early 2002,
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    was an expert for the State and testified by deposition that
    pharmacogenetic testing “is a tool. It is not a bull’s eye.” Duffy
    testified that in his practice, he more often evaluates the results
    and side effects experienced by the patient and adjusts the
    medicine or dosage accordingly, rather than resort to pharma-
    cogenetic testing.
    Robbins’ trial counsel testified that knowledge of the DNA
    results “might very well have affected what I did at sen-
    tencing or how I negotiated with the county attorney, what
    information I provided to the county attorney.” The district
    court found that “neither Dr. Hilleman nor Dr. Duffy made a
    causal connection between [Robbins’] being an intermediate
    metabolizer of Zoloft and suicidal or homicidal side effects.”
    In addition, the court found that neither doctor observed any
    side effects experienced by Robbins or made a causal link
    between consumption of Zoloft and the homicide committed
    by Robbins.
    The district court further found that according to Hilleman,
    “[o]ne of the effects of higher amounts of the drug reaching
    the brain is a greater potential for adverse side effects such as
    suicidal ideation . . . .” However, the court found that “no stud-
    ies were identified by the experts that differentiated between
    the four categories of metabolizers regarding whether one
    category is more likely to have suicidal ideation or homicidal
    thoughts compared to the others.”
    2. Procedural Background
    Robbins was initially charged with first degree murder. He
    subsequently entered a plea of guilty to a reduced charge of
    second degree murder. On April 24, 2003, Robbins was sen-
    tenced to a period of 40 to 60 years’ incarceration. Robbins
    appealed from his conviction and sentencing. The Nebraska
    Court of Appeals affirmed Robbins’ conviction and sentence.1
    On May 20, 2011, Robbins, acting pro se, filed a motion to
    compel the Nebraska Department of Correctional Services to
    1
    See State v. Robbins, 
    12 Neb. App. xxxix
     (No. A-03-500, Sept. 15, 2003).
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    allow him to take a DNA drug reaction profile test. On May 23,
    the district court overruled Robbins’ motion to compel because
    there was no pending postconviction proceeding.
    On September 4, 2012, Robbins, still acting pro se, filed a
    motion in the district court requesting (1) postconviction relief
    pursuant to § 29-3001 et seq., (2) a new trial based on newly
    discovered evidence pursuant to § 29-2101(5), and (3) a new
    trial based on DNA testing pursuant to § 29-2101(6).
    On September 24, 2012, the State filed a motion to dis-
    miss Robbins’ motion for postconviction relief. On November
    21, following a hearing, the court filed an order (1) denying
    Robbins’ request for postconviction relief as time barred, (2)
    denying Robbins’ request for a new trial under § 29-2101(5),
    and (3) granting Robbins’ request for DNA testing under
    § 29-4120(5).
    The court found that Robbins’ allegation met the standard
    set forth in § 29-4120(5), that DNA testing may be relevant to
    the claim that a person was wrongfully convicted or sentenced.
    Pursuant to § 29-4122, the court appointed counsel to represent
    Robbins’ claim under the Act. On January 14, 2013, Robbins’
    court-appointed attorney was allowed to withdraw and the
    Nebraska Commission on Public Advocacy was appointed.
    Robbins apparently separately appealed from the denial of
    postconviction relief, and the Court of Appeals affirmed the
    district court’s judgment, finding that Robbins’ motion was
    untimely filed.2
    On January 28, 2016, following a hearing, the district
    court overruled and dismissed Robbins’ motion for DNA test-
    ing. The court held that (1) the DNA evidence did not show
    a complete lack of evidence to establish any element of the
    crime charged, thus Robbins was not entitled to a finding of
    complete exoneration; (2) the absence of DNA evidence did
    not affect a substantial right of Robbins, nor would it probably
    have produced a substantially different result, thus Robbins
    2
    See State v. Robbins, 
    21 Neb. App. xxv
     (No. A-12-1158, Sept. 10, 2013),
    and State v. Robbins, 
    20 Neb. App. lxii
     (No. A-13-261, May 15, 2013).
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    was not entitled to a new trial based on this evidence; and
    (3) it was not unfair to Robbins that he was sentenced without
    the court’s knowing of his less-than-average metabolization of
    Zoloft, thus the DNA evidence was not exculpatory, nor did
    it have any relevance to a claim that Robbins was wrongfully
    sentenced or convicted.
    Shortly after oral arguments, we directed the parties to
    submit supplemental briefs addressing (1) whether the DNA
    test utilized by Robbins met the requirements set forth in
    § 29-4120(1)(b), (2) whether the Act allows testing of this
    type, and (3) whether the evidence regarding Robbins’ status
    as an intermediate metabolizer is “exculpatory evidence” under
    §§ 29-4119, 29-4120, and 29-4123.
    III. ASSIGNMENTS OF ERROR
    Robbins assigns, restated, that the district court erred in
    (1) denying a new sentencing and (2) overruling his motion
    new trial.
    IV. STANDARD OF REVIEW
    [1-3] A motion for DNA testing is addressed to the discre-
    tion of the trial court, and unless an abuse of discretion is
    shown, the trial court’s determination will not be disturbed.3
    Under the Act, an appellate court will not reverse a trial court’s
    order determining a motion to vacate a judgment of convic-
    tion or grant a new trial absent an abuse of the trial court’s
    discretion.4 Under the Act, an appellate court will uphold a
    trial court’s findings of fact unless such findings are clearly
    erroneous.5
    [4] Statutory interpretation is a question of law that an
    appellate court resolves independently of the trial court.6
    3
    State v. Winslow, 
    274 Neb. 427
    , 
    740 N.W.2d 794
     (2007).
    4
    State v. Parmar, 
    283 Neb. 247
    , 
    808 N.W.2d 623
     (2012).
    5
    
    Id.
    6
    State v. Thompson, 
    294 Neb. 197
    , 
    881 N.W.2d 609
     (2016).
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    [5,6] Absent plain error, assignments of error not discussed
    in the briefs will not be addressed by an appellate court.7
    Plain error exists where there is an error, plainly evident from
    the record but not complained of at trial, which prejudicially
    affects a substantial right of a litigant and is of such a nature
    that to leave it uncorrected would cause a miscarriage of jus-
    tice or result in damage to the integrity, reputation, and fairness
    of the judicial process.8
    V. ANALYSIS
    Before addressing Robbins’ argument that he was entitled
    to relief under the Act, we must determine whether the Act is
    applicable and allows the testing sought in this case. Finding
    that it does not, we must reverse, and remand with directions
    to dismiss.
    In his supplemental brief, Robbins contended that the Act
    applies to testing of this type because (1) he was in custody at
    the time the sample for DNA testing was taken from his cheek
    and has remained in custody since that time, (2) his DNA pro-
    file is not subject to change, and (3) the Act does not expressly
    limit how evidence may be used and, in the alternative, if it
    may only be used for purposes of determining identity, “[a]
    person suffering from an involuntary and adverse reaction to
    medication is a different person.”9
    1. Interpretation of Act
    [7] We first turn to whether the DNA testing sought by
    Robbins is the type of DNA testing intended under the Act.
    In construing a statute, an appellate court should consider the
    statute’s plain meaning in pari materia and from its language
    as a whole to determine the intent of the Legislature.10
    7
    State v. Soukharith, 
    260 Neb. 478
    , 
    618 N.W.2d 409
     (2000).
    8
    In re Estate of Morse, 
    248 Neb. 896
    , 
    540 N.W.2d 131
     (1995).
    9
    Supplemental brief for appellant at 10.
    10
    State v. Buckman, 
    267 Neb. 505
    , 
    675 N.W.2d 372
     (2004).
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    Section     29-4120(1)(b)     provides     guidance.     Under
    § 29-4120(1)(b), a person in custody may request DNA testing
    of biological material only if the biological material “[i]s in the
    actual or constructive possession or control of the state or is in
    the possession or control of others under circumstances likely
    to safeguard the integrity of the biological material’s original
    physical composition[.]”
    Section 29-4120(5) provides further explanation as to the
    circumstances under which a court may order DNA testing.
    That section states that the defendant has the burden of provid-
    ing the district court with affidavits or evidence at a hearing
    establishing the three required factual determinations for the
    district court.11 Subsection (5) also includes a requirement
    that “the biological material has been retained under circum-
    stances likely to safeguard the integrity of its original physi-
    cal composition.”
    In State v. Pratt,12 we explained the “integrity” language in
    § 29-4120(1)(b) and (5), and we stated:
    The integrity at issue under § 29-4120(5) is that of the
    “original physical composition” of “the biological mate-
    rial.” Since this is a DNA testing statute, the relevant
    “biological material[s]” are, fundamentally, the DNA.
    The question under the physical integrity prong thus
    is whether the evidence has been retained in a manner
    “likely” to avoid impairment of the original physical
    integrity of any DNA deposited during the crime or oth-
    erwise relevant to the crime.
    We further explained:
    No other state or federal DNA statute utilizes this
    “integrity” language. Most statutes do, however, require
    a finding that the evidence was subjected to a “chain
    of custody” sufficient to establish that it has not been
    “substituted, tampered with, replaced or altered in any
    11
    See State v. Young, 
    287 Neb. 749
    , 
    844 N.W.2d 304
     (2014).
    12
    State v. Pratt, 
    287 Neb. 455
    , 469, 
    842 N.W.2d 800
    , 810 (2014).
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    material aspect.” Some statutes and cases describe this
    absence of substituting, tampering, replacing, or altering,
    as the overall “integrity” of the evidence. We find that to
    be an apt characterization of the meaning of “integrity” in
    the context of DNA evidence.”13
    In addition, § 29-4120(4) states that after a motion seek-
    ing forensic DNA testing has been filed, the State is required
    to file “an inventory of all evidence that was secured by the
    State or a political subdivision in connection with the case.”
    This further implies the nature of the material to be subjected
    to DNA testing under the Act must be something which can
    be “inventor[ied]” and “secured by the state or a political
    subdivision.”14
    [8] To further explain the “integrity” requirement of the
    Act, we look to its legislative history. In construing a statute,
    an appellate court’s objective is to determine and give effect
    to the legislative intent of the enactment.15 According to the
    legislative history of the Act, the Legislature intended for a
    defendant to
    be required to present a claim that establishes . . . that the
    identity of the defendant was a material issue at the trial
    and that resulted in his or her conviction; that the evi-
    dence to be tested must be in a chain of custody sufficient
    to establish that it has not been substituted, tampered
    with, replaced, or altered in any material aspect; and that
    the results of such testing would be material to the issue
    of identity.16
    Here, the DNA was acquired from a buccal swab of
    Robbins’ cheek 11 years after the crime to determine how he
    metabolized pharmaceutical medicines. Unlike the language
    13
    Id. at 469-70, 842 N.W.2d at 810.
    14
    § 29-4120(4).
    15
    State v. Hernandez, 
    283 Neb. 423
    , 
    809 N.W.2d 279
     (2012).
    16
    Judiciary Committee Hearing, L.B. 659, 97th Leg., 1st Sess. 57 (Feb. 23,
    2001) (remarks of Senator Kermit Brashear) (emphasis supplied).
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    suggested in Pratt and set forth in the legislative hearings, a
    defendant’s ability to metabolize pharmaceutical drugs does
    not have an “original physical composition” that can be in a
    “chain of custody” or “in the actual or constructive possession
    or control of the state . . . likely to safeguard [its] integrity.”17
    A logical reading of the Act does not allow for a court to
    grant DNA testing in the form of a buccal swab to determine a
    defendant’s metabolism of pharmaceutical medicines.
    2. Robbins’ DNA Evidence as
    Exculpatory Evidence
    Next, we turn to whether the evidence regarding Robbins’
    status as an intermediate metabolizer of pharmaceutical drugs
    is “exculpatory evidence” under §§ 29-4119, 29-4120, and
    29-4123. We have held that “the only statutory inquiry upon a
    motion to vacate or for new trial under the Act is whether the
    DNA evidence ‘exonerate[s]’ or ‘exculpate[s]’ the inmate.”18
    Robbins argues that a person’s genetic capacity to metabo-
    lize prescription drugs is exculpatory evidence under the Act,
    because it is favorable to Robbins and “material to the issue
    of guilt . . . or relevant to a claim that [Robbins] was wrong-
    fully sentenced,” as he claims was established by Hilleman’s
    testimony.19
    Section 29-4123 states that after the receipt of the results of
    the DNA testing, a party may request a hearing before the court
    “when such results exonerate or exculpate the person.” Section
    29-4119 defines exculpatory evidence as “evidence which is
    favorable to the person in custody and material to the issue of
    the guilt of the person in custody.”
    In State v. Winslow,20 this court reversed the district court’s
    denial of the defendant’s request for DNA testing and found
    that DNA testing of the samples of biological material found
    17
    See § 29-4120(1)(b).
    18
    State v. Pratt, supra note 12, 287 Neb. at 472, 842 N.W.2d at 812.
    19
    Supplemental brief for appellant at 12.
    20
    State v. Winslow, 
    supra note 3
    .
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    at the scene of the crime produced noncumulative, exculpa-
    tory evidence. In Winslow, the defendant was allegedly part
    of a group of individuals that broke into the victim’s house
    and raped and murdered her during the course of a failed bur-
    glary. This court found that DNA testing would “exclude . . .
    contributors to the semen sample” and “raise doubts regard-
    ing the veracity of the testimony” at the codefendant’s trial
    that “served as the factual basis for [the defendant’s] plea and
    would therefore be favorable” to the defendant.21 This court
    reasoned that
    even if [the defendant] were placed at the scene of the
    crime, such evidence excluding [the defendant] as a con-
    tributor would also be relevant to a claim by [the defend­
    ant] that he was less culpable than the sentencing court
    had believed him to be and that therefore, he was wrong-
    fully sentenced.22
    The Act states that the Legislature finds that DNA testing
    is “the most reliable forensic technique for identifying persons
    when biological material is found at a crime scene or trans-
    ferred from the victim to the person responsible and trans-
    ported from the crime scene.”23 Section 29-4117 states that it is
    “the intent of the Legislature that wrongfully convicted persons
    have an opportunity to establish their innocence.” Furthermore,
    in the legislative history of the Act, as stated above, the
    Legislature explained that its purpose in passing the Act was to
    allow defendants the opportunity to receive DNA testing that
    “would be material to the issue of identity.”24
    Robbins concedes that “[t]he purpose of genetic testing
    in this case is not to establish that the results of such testing
    exonerates or exculpates [him].”25 Instead, Robbins argues
    21
    Id. at 436, 
    740 N.W.2d at 801
    .
    22
    
    Id. at 437
    , 
    740 N.W.2d at 801
    .
    23
    § 29-4118(1) (emphasis supplied).
    24
    Judiciary Committee Hearing, supra note 16 at 57 (emphasis supplied).
    25
    Brief for appellant at 4-5.
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    that “[t]he issue is one of culpability viewed through the lense
    [sic] of sentencing mitigation and/or whether new scientific
    evidence would contribute to and establish defenses at trial
    of (a) an inability to formulate intent, (b) intoxication, or
    (c) insanity.”26
    This case is distinguishable from Winslow. Unlike Winslow,
    the DNA testing that Robbins sought does not exclude him
    from being a contributor to DNA found during the investiga-
    tion into the underlying homicide. Rather, Robbins admits that
    he killed Eurek and he does not contend that the DNA testing
    will exculpate or exonerate him as to his identity as the only
    contributor in her death. Because the evidence from the DNA
    testing cannot exclude Robbins as a contributor, the holding in
    Winslow does not control under the current facts.
    We find no merit in Robbins’ argument that this case involves
    an issue of identity because he was a “different person” while
    on Zoloft.27 There is no issue of identity in this case, and as
    we established above, the DNA testing was not material to the
    issue of the guilt of the person in custody or that he was less
    culpable than the sentencing court had believed him to be and
    that therefore, he was wrongfully sentenced. Because the Act
    is intended to assist in proving the innocence of a convicted
    person through establishing the person’s identity, it cannot be
    said that evidence from the DNA testing probably would have
    produced a substantially different result at trial. As such, the
    evidence is not exculpatory under the Act.
    As this is a question of statutory interpretation, we hold that
    the Act does not apply to DNA testing of the defendant’s per-
    son for the purpose of determining the defendant’s metabolism
    of prescription medication. Furthermore, new evidence con-
    cerning a defendant’s metabolism of prescription drugs, when
    such evidence has no bearing on identity, is not exculpatory
    under the Act.
    26
    Id. at 5.
    27
    Supplemental brief for appellant at 10.
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    [9,10] Absent plain error, assignments of error not discussed
    in the briefs will not be addressed by this court.28 Plain error
    exists where there is an error, plainly evident from the record
    but not complained of at trial, which prejudicially affects a
    substantial right of a litigant and is of such a nature that to
    leave it uncorrected would cause a miscarriage of justice or
    result in damage to the integrity, reputation, and fairness of
    the judicial process.29 Plain error may be asserted for the first
    time on appeal or be noted by an appellate court on its own
    motion.30 A substantial right is affected if an order affects the
    subject matter of the litigation, such as diminishing a claim
    or defense that was available to the appellant before the order
    from which he or she is appealing.31
    We find that it was “plainly evident from the record” that
    the DNA testing Robbins sought in his motion for DNA test-
    ing was not within the purview of the Act. We further find
    that to apply the Act to a defendant’s metabolism of prescrip-
    tion drugs would extend the Act beyond its purpose set forth
    by the Legislature and, as such, “damage . . . the integrity,
    reputation, and fairness of the judicial process.”32 We hold that
    the district court committed plain error in granting Robbins’
    motion for DNA testing.
    VI. CONCLUSION
    The district court committed plain error in granting Robbins’
    motion for DNA testing. We reverse, and remand with direc-
    tions to dismiss.
    R eversed and remanded with
    directions to dismiss.
    28
    State v. Soukharith, 
    supra note 7
    .
    29
    In re Estate of Morse, 
    supra note 8
    .
    30
    
    Id.
    31
    Carmicheal v. Rollins, 
    280 Neb. 59
    , 
    783 N.W.2d 763
     (2010).
    32
    In re Estate of Morse, 
    supra note 8
    , 
    248 Neb. at 897
    , 
    540 N.W.2d at 132
    .