State v. Myers , 301 Neb. 756 ( 2018 )


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    301 Nebraska R eports
    STATE v. MYERS
    Cite as 
    301 Neb. 756
    State of Nebraska, appellee, v.
    James E. Myers, appellant.
    ___ N.W.2d ___
    Filed November 30, 2018.   No. S-18-239.
    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.	 ____: ____. An appellate court will uphold a trial court’s findings of
    fact related to a motion for DNA testing unless such findings are clearly
    erroneous.
    3.	 ____: ____. Decisions regarding appointment of counsel under the
    DNA Testing Act are reviewed for an abuse of discretion.
    Appeal from the District Court for Douglas County: J.
    Michael Coffey, Judge. Reversed and remanded for further
    proceedings.
    James E. Myers, pro se.
    Douglas J. Peterson, Attorney General, and Kimberly A.
    Klein for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
    Papik, JJ.
    Cassel, J.
    INTRODUCTION
    Nearly 20 years after a jury convicted James E. Myers of
    murder, he filed a motion for testing under the DNA Testing
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    Act.1 The district court denied that motion as well as Myers’
    motion for the appointment of counsel. We would review these
    denials for an abuse of discretion. But to do so, the court
    below must have applied only the part of the legal framework
    governing whether to grant testing. Because the district court
    may have relied instead upon principles governing relief avail-
    able after testing, we must reverse the order and remand the
    cause for reconsideration of the motions under only the correct
    portion of the governing framework.
    BACKGROUND
    Circumstances of Crimes
    The State charged Myers with first degree murder, use of
    a deadly weapon in the commission of a felony, and posses-
    sion of a deadly weapon by a felon in connection with the
    1995 shooting death of Lynette Mainelli. A jury convicted
    Myers of the charges, and we affirmed his convictions on
    direct appeal.2
    The factual background relating to Myers’ convictions is
    set forth in more detail in our opinion involving Myers’ direct
    appeal.3 Our opinion stated in part:
    Edward Wilson testified that he was in the van driven
    by Myers the night Mainelli was killed. Myers drove to
    the Blue Lake Manor Apartments, where Mainelli lived.
    Myers got out of the van, and Edward Wilson saw that
    he had on gloves. Myers went to the back of the van,
    and Edward Wilson heard a “clacking” noise, which
    he recognized as the sound of a bullet moving into a
    chamber. Myers then left the van and walked toward the
    apartment complex. He was gone for about 1 hour, and
    upon his return, he got in the van and took the passen-
    gers home.
    1
    See 
    Neb. Rev. Stat. §§ 29-4116
     to 29-4125 (Reissue 2016).
    2
    See State v. Myers, 
    258 Neb. 300
    , 
    603 N.W.2d 378
     (1999).
    3
    
    Id.
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    Sam Edwards testified that as Myers dropped him off,
    Myers gave him a handgun and told him to “put it up”
    because the police were out and Myers had in-transit
    stickers on the van. Earlier, Edwards had seen the pistol
    on Myers’ lap. Edwards subsequently retrieved the pis-
    tol and gave it to Edward Wilson, who stated the pistol
    had once belonged to his sister, Edwina Wilson. Edward
    Wilson testified that he recognized the gun because it
    had a unique color and a name written on it and that he
    thought the black handle was unusual. Edward Wilson
    sold the pistol because he suspected that it had been
    used in the murder of Mainelli. The pistol was the same
    caliber as two .22-caliber casings found beside Mainelli’s
    body. Daniel Bredow, a firearm toolmarks examiner with
    the city of Omaha, testified that he compared the bullets
    found at the crime scene with bullets fired from the gun
    Myers gave Edwards. Bredow concluded that the bullets
    taken from the crime scene had been fired by the gun
    which could be traced to Myers.
    [Timothy] Sanders testified that in the summer and
    early fall of 1995, Myers had said that Mainelli was going
    to testify against Charles Duncan, so she needed to have
    “her cap pulled back and to be shot.” Sanders saw Myers
    with a small .22-caliber handgun in the summer of 1995.
    Edwina Wilson testified that in December 1996, after
    Mainelli’s death, Myers had told her to tell the police he
    was with her at the time of the killing.4
    Other information relevant to the instant appeal is derived
    from the trial record. The State presented evidence about
    Myers’ plan to be intimate with Mainelli. Timothy Sanders,
    who was in the same gang as Myers, testified that Myers
    said Mainelli needed to be shot and that Myers said he was
    going to have sex with Mainelli. Sanders testified that after
    Mainelli’s death, Myers told him that Mainelli walked into
    4
    Id. at 312-13, 
    603 N.W.2d at 388-89
    .
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    her bedroom, took off her clothes, laid on the bed, and Myers
    shot her once the lights were out. In closing arguments, the
    prosecutor summarized: “She took off her clothes; she laid on
    the bed. He put the gun towards her temple and he shot her.”
    Motion for DNA Testing
    In 2016, Myers filed a motion pursuant to the DNA Testing
    Act seeking “DNA testing of items of evidence that may con-
    tain biological material.” He listed 26 items of evidence taken
    from the crime scene, and he wished to have those items tested
    in order to exclude himself as a donor of any biological mate-
    rial. The items included Mainelli’s bedding, bullets and spent
    .22-caliber casings, beverage containers, clothing, spiral note-
    books, cigarette butts and contents of ashtrays, gunshot residue
    test kit from Mainelli’s hands, vials of Mainelli’s blood, a rape
    kit, and hair samples.
    Myers sought a variety of different DNA tests. He wanted
    testing of any hairs, blood, semen, saliva, or skin cells on vari-
    ous items, asserting that if such DNA evidence excluded Myers
    and was found to be of another male, “this would prove that
    the story from the informant was false, and Myers is in fact
    [i]nnocent.” Myers alleged there was “good cause to believe
    biological evidence still exists and can be identified and pro-
    filed with today’s DNA technology.” Myers asserted that if a
    suspect touched his face or head while wearing gloves, the
    skin cells could be transferred to other objects. Myers wanted
    the spent .22-caliber casings tested, because “it has become
    possible to obtain DNA profiles from few skin cells left by the
    person who loaded a shell into a gun.” Myers also moved for
    the appointment of counsel. In connection with a motion to
    preserve evidence, Myers included a laboratory report showing
    that a sexual assault examination of Mainelli was performed
    and that a vaginal swab and vaginal smear slide from a sexual
    assault kit revealed “[v]ery few spermatozoa.”
    Myers filed an affidavit in support of his motion for DNA
    testing. He stated that DNA evidence was not available at the
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    time of his trial, that law enforcement withheld any findings of
    biological evidence from him, and that testing all of the items
    would exonerate him. Myers also stated that he was with his
    girlfriend on the night of the murder and that testing all of the
    items would prove that the State’s informant lied. He subse-
    quently filed a supplemental amendment to his motion, seeking
    DNA testing of the sexual assault kit.
    The State filed an inventory of evidence that had been
    gathered in connection with the case. It showed that the items
    Myers wished to have tested were in the State’s possession.
    The district court held a hearing. Myers asked the court to
    consider his motion along with the supplemental amendment
    and to take judicial notice of § 29-4120(5). He presented no
    evidence. The State likewise presented no evidence, but it
    requested that the court review the bill of exceptions from the
    trial, along with Myers’ motion to determine whether DNA
    testing was appropriate.
    District Court’s Decision
    The district court denied Myers’ motion. It found that DNA
    testing was not warranted under § 29-4120(5)(c), because the
    results would not provide exculpatory evidence. The court
    quoted extensively from a portion of State v. Buckman 5
    (including portions of the Buckman opinion which relied on
    State v. Bronson 6) where we discussed when a court may
    vacate and set aside a judgment based on test results that
    “exonerate or exculpate” an accused and “show a complete
    lack of evidence to establish an essential element of the
    crime charged.”
    The court explained that testing of the evidence would
    not exonerate or exculpate Myers in light of the evidence at
    trial, because “the absence of [Myers’] DNA from these items
    would not establish [Myers’] innocence considering witnesses
    5
    State v. Buckman, 
    267 Neb. 505
    , 517, 
    675 N.W.2d 372
    , 382 (2004).
    6
    State v. Bronson, 
    267 Neb. 103
    , 
    672 N.W.2d 244
     (2003).
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    testified he intentionally wore gloves that would prevent his
    DNA from being left at the scene.” The court reasoned that
    “the absence of [Myers’] DNA or the presence of another
    person’s DNA at the scene on those items would not alone
    be enough to exonerate [Myers] considering his motive for
    the crime, inculpatory statements made and witness testimony
    regarding his actions directly before and after the murder.”
    Further, the court stated that testing of a sexual assault kit
    would not exonerate or exculpate Myers, because the State
    did not argue that Myers had sex with Mainelli on the night of
    the murder. The court concluded that “regardless of whether
    [Myers’] DNA was excluded or someone else’s DNA could
    be found on this evidence, such DNA results would not ‘show
    a complete lack of evidence to establish an essential element
    of the crime charged’ when you consider the totality of the
    evidence.”
    Myers timely appealed.
    ASSIGNMENTS OF ERROR
    Myers assigns that the district court erred in (1) refusing
    to order DNA testing, (2) making findings of fact and con-
    clusions of law without actual DNA results, (3) failing to
    determine whether the State refused to allow him access to
    DNA evidence, and (4) failing to appoint counsel to repre-
    sent him.
    STANDARD OF REVIEW
    [1,2] 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.7
    An appellate court will uphold a trial court’s findings of fact
    related to a motion for DNA testing unless such findings are
    clearly erroneous.8
    7
    State v. Betancourt-Garcia, 
    299 Neb. 775
    , 
    910 N.W.2d 164
     (2018).
    8
    
    Id.
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    [3] Decisions regarding appointment of counsel under the
    DNA Testing Act are reviewed for an abuse of discretion.9
    ANALYSIS
    Motion for DNA Testing
    In denying Myers’ motion for DNA testing, the district court
    relied in large part on our decision in Buckman.10 We agree
    that Buckman is instructive regarding the showing that must
    be made at various stages. But it is also important to remem-
    ber that both Buckman and the Bronson11 decision cited in
    Buckman were appeals where DNA testing had been ordered
    and focused on the relief sought and denied based upon the
    test results.
    In Buckman, we first summarized the legal framework appli-
    cable in determining whether to order testing. We said:
    The initial step toward obtaining relief under the DNA
    Testing Act is for a person in custody to file a motion
    requesting forensic DNA testing of biological material.
    . . . Forensic DNA testing is available for any biological
    material that is related to the investigation or prosecution
    that resulted in the judgment; is in the actual or construc-
    tive possession of the state, or others likely to safeguard
    the integrity of the biological material; and either was not
    previously subjected to DNA testing or can be retested
    with more accurate current techniques.12
    We pause at this point to observe there is no dispute that Myers
    met these criteria.
    If the above criteria are met and if the court further deter-
    mines that the requirements of § 29-4120(5) have been met,
    the court must order testing. Although our Buckman opinion
    9
    State v. Phelps, 
    273 Neb. 36
    , 
    727 N.W.2d 224
     (2007).
    10
    State v. Buckman, 
    supra note 5
    .
    11
    State v. Bronson, 
    supra note 6
    .
    12
    State v. Buckman, 
    supra note 5
    , 267 Neb. at 514, 675 N.W.2d at 380
    (citation omitted).
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    used permissive “may order testing”13 language, we have sub-
    sequently made clear—consistent with the statute’s use of the
    phrase “shall order DNA testing”14—that the court is required
    to order testing if the requirements of § 29-4120(5) are met.15
    We recognize the Legislature has amended § 29-4120(5) since
    the time of the Buckman decision, but the amendment is
    not significant to the issue before us. For convenience, we
    quote the current version, which was in effect at the time of
    Myers’ motion:
    Upon consideration of affidavits or after a hearing, the
    court shall order DNA testing pursuant to a motion filed
    under subsection (1) of this section upon a determination
    that (a)(i) the biological material was not previously sub-
    jected to DNA testing or (ii) the biological material was
    tested previously, but current technology could provide
    a reasonable likelihood of more accurate and probative
    results, (b) the biological material has been retained
    under circumstances likely to safeguard the integrity of
    its original physical composition, and (c) such testing
    may produce noncumulative, exculpatory evidence rel-
    evant to the claim that the person was wrongfully con-
    victed or sentenced.16
    In Buckman, we elaborated on the last prong of § 29-4120(5)
    and clarified that the threshold to satisfy it was rather low.
    We stated:
    Exculpatory evidence is defined as evidence favorable
    to the person in custody and material to the issue of the
    guilt of the person in custody. . . . [T]his requirement is
    13
    Id. at 514, 675 N.W.2d at 380.
    14
    § 29-4120(5).
    15
    See, e.g., State v. Betancourt-Garcia, 
    supra note 7
    ; State v. Marrs, 
    295 Neb. 399
    , 
    888 N.W.2d 721
     (2016); State v. Young, 
    287 Neb. 749
    , 
    844 N.W.2d 304
     (2014); State v. McDonald, 
    269 Neb. 604
    , 
    694 N.W.2d 204
    (2005).
    16
    § 29-4120(5).
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    relatively undemanding for a movant seeking DNA test-
    ing and will generally preclude testing only where the
    evidence at issue would have no bearing on the guilt or
    culpability of the movant.17
    But a more rigorous standard applies after testing has been
    ordered. In Buckman,18 we also set forth the procedure appli-
    cable after a court orders DNA testing. We stated:
    Once DNA testing is conducted, and results are
    obtained, the question is whether the evidence obtained
    exonerates or exculpates the movant. Based on the test
    results, the movant may obtain relief in one of two
    ways, each of which requires a different quantum of
    proof. As previously noted, when the test results exon-
    erate or exculpate the movant, the court may “vacate
    and set aside the judgment and release the person from
    custody.” . . . However, if the court does not vacate and
    set aside the judgment, the movant may file a motion
    for new trial based upon “newly discovered exculpatory
    DNA or similar forensic testing obtained under the DNA
    Testing Act.”19
    We summarized the proof necessary for each potential remedy:
    [T]he court may vacate and set aside the judgment in
    circumstances where the DNA testing results are either
    completely exonerative or highly exculpatory—when the
    results, when considered with the evidence of the case
    which resulted in the underlying judgment, show a com-
    plete lack of evidence to establish an essential element
    of the crime charged. . . . This requires a finding that
    guilt cannot be sustained because the evidence is doubt-
    ful in character and completely lacking in probative
    value. . . . [I]n other circumstances where the evidence
    17
    State v. Buckman, 
    supra note 5
    , 267 Neb. at 515, 675 N.W.2d at 381
    (citation omitted).
    18
    State v. Buckman, 
    supra note 5
    .
    19
    
    Id. at 515
    , 675 N.W.2d at 381 (citation omitted).
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    is merely exculpatory, the court may order a new trial if
    the newly discovered exculpatory DNA evidence is of
    such a nature that if it had been offered and admitted at
    the former trial, it probably would have produced a sub-
    stantially different result.20
    As Buckman demonstrates, the showing that must be made
    to obtain DNA testing presents a relatively low threshold.
    After testing, however, a much higher showing is required to
    either set aside a judgment or require a new trial.
    Here, the district court was presented with the first step in
    the framework—whether to require testing. It denied testing on
    the basis that Myers failed to meet the “may produce noncumu-
    lative, exculpatory evidence” requirement of § 29-4120(5)(c).
    But in making its determination, the court discussed a more
    onerous standard governing relief which might be available
    after testing has been performed.
    The court’s order shows that it imported the legal standard
    for determining whether to vacate or set aside a conviction.
    It quoted, with emphasis, when a motion to vacate and set
    aside the judgment under § 29-4123(2) may be granted. It also
    quoted language from Buckman, highlighting that vacating
    or setting aside a judgment was intended “to apply to those
    cases in which DNA test results ‘conclusively establish the
    guilt or innocence of a criminal defendant’”21 and would be
    proper “only where the results of DNA testing either com-
    pletely exonerated the movant or were highly exculpatory.”22
    Finally, the court found that “regardless of whether [Myers’]
    DNA was excluded or someone else’s DNA could be found
    on this evidence, such DNA results would not ‘show a
    complete lack of evidence to establish an essential element
    of the crime charged’ when you consider the totality of
    the evidence.”
    20
    Id. at 518, 675 N.W.2d at 383 (citations omitted).
    21
    Id. at 516, 675 N.W.2d at 382.
    22
    Id. at 516-17, 675 N.W.2d at 382.
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    On appeal, we are tasked with determining whether the dis-
    trict court abused its discretion in denying Myers’ motion for
    DNA testing. But we cannot do so, because the court mingled
    standards applicable to § 29-4123(2) and (3) into its analysis
    under § 29-4120(5). Where it should have addressed only the
    first part of the statutory framework, its decision can be read
    to instead delve into the questions that apply in the latter part
    of the framework. Here, the question before the court was
    whether to allow testing.
    Because the court’s order fails to make clear that its
    denial of DNA testing was based solely on § 29-4120(5), we
    must remand the cause to the district court for a determina-
    tion under that section, based upon the existing record. On
    remand, the court shall determine whether the requirements of
    § 29-4120(5) have been met, including whether DNA testing
    of the items requested may produce noncumulative evidence
    which is favorable to Myers and material to the issue of
    his guilt.
    A ppointment of Counsel
    Myers also assigns error to the district court’s denial of his
    motion for the appointment of counsel. A court shall appoint
    counsel for an indigent person upon a showing that DNA test-
    ing may be relevant to the person’s claim of wrongful con-
    viction.23 Because we are remanding the cause to the district
    court to consider whether Myers’ motion for DNA testing
    should be granted under the proper standard, we also remand
    the cause for a determination as to whether he made the requi-
    site showing to require the appointment of counsel.
    Access to Biological M aterial
    Myers also contends that the Omaha Police Department
    did not disclose to the defense that it secured a sexual assault
    examination kit and collected a vaginal vault sample from the
    23
    § 29-4122.
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    victim. He argues that such action violated his right to due
    proc­ess and equal protection of law. This is not part of the
    DNA Testing Act framework.
    The DNA Testing Act is a limited remedy providing inmates
    an opportunity to obtain DNA testing in order to establish inno-
    cence after a conviction.24 We have previously stated, although
    in dicta, that a constitutional challenge to the destruction of
    evidence is outside the purview of the DNA Testing Act.25
    We conclude that whether the prosecution improperly with-
    held evidence is not properly presented in a motion for DNA
    testing. Upon remand, the district court need not consider this
    argument further.
    CONCLUSION
    Because the district court applied principles governing relief
    which might be available after testing when it should have
    limited its consideration to whether it was required to order
    testing, we must reverse the order and remand the cause for
    reconsideration of the motions under the correct portion of
    the governing framework. We likewise reverse the denial of
    counsel and remand the cause for a determination as to whether
    Myers made the requisite showing to be entitled to the appoint-
    ment of counsel.
    R eversed and remanded for
    further proceedings.
    Freudenberg, J., not participating.
    24
    State v. Betancourt-Garcia, 
    supra note 7
    .
    25
    See 
    id.