State v. Myers , 304 Neb. 789 ( 2020 )


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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. MYERS
    Cite as 
    304 Neb. 789
    State of Nebraska, appellee, v.
    James E. Myers, appellant.
    ___ N.W.2d ___
    Filed January 10, 2020.   No. S-19-345.
    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.
    4. DNA Testing. Nebraska’s DNA Testing Act is a limited remedy provid-
    ing inmates an opportunity to obtain DNA testing in order to establish
    innocence after a conviction.
    5. ____. If the criteria set forth in Neb. Rev. Stat. § 29-4120(1) (Reissue
    2016) are met and if the court further determines that the requirements
    of § 29-4120(5) have been met, then the court must order testing.
    6. DNA Testing: Evidence. The requirement that requested DNA testing
    produce noncumulative exculpatory evidence is relatively undemanding
    for a movant seeking DNA testing and will generally preclude testing
    only where the evidence at issue would have no bearing on the guilt or
    culpability of the movant.
    7. ____: ____. DNA evidence is not a videotape of a crime, and testing
    shows only whether the biological sample in question belonged to the
    person tested against.
    8. DNA Testing. The nonpresence of an individual’s DNA profile in a
    biological sample does not preclude that individual from having been
    present or in possession of the item tested.
    9. ____. The nonpresence of an individual’s DNA profile in a biological
    sample merely shows the individual’s DNA was not present in the spe-
    cific biological sample tested.
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. MYERS
    Cite as 
    304 Neb. 789
    10. DNA Testing: Prosecuting Attorneys: Evidence. Whether the prosecu-
    tion improperly withheld evidence is not properly presented in a motion
    for DNA testing.
    Appeal from the District Court for Douglas County: J.
    Michael Coffey, Judge. Affirmed.
    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.
    Funke, J.
    James E. Myers appeals the district court’s denial of his
    motion for testing under Nebraska’s DNA Testing Act1 and his
    motion for the appointment of counsel. Myers argues the dis-
    trict court erred in denying his motion by determining that the
    requested testing would not produce noncumulative exculpa-
    tory evidence, denying his request for counsel, and determining
    that the State did not withhold evidence. This appeal follows
    our decisions on direct appeal2 and after remand on an initial
    denial of Myers’ motion for DNA testing.3 For the reasons set
    forth herein, we affirm.
    BACKGROUND
    Myers was convicted of first degree murder, use of a deadly
    weapon in the commission of a felony, and possession of a
    deadly weapon by a felon in connection with the 1995 shoot-
    ing death of Lynette Mainelli. The State’s factual allegations
    asserted that Myers was worried Mainelli was talking to the
    police about another person, so he killed Mainelli. After a
    1
    Neb. Rev. Stat. § 29-4116 et seq. (Reissue 2016).
    2
    State v. Myers, 
    258 Neb. 300
    , 
    603 N.W.2d 378
    (1999).
    3
    State v. Myers, 
    301 Neb. 756
    , 
    919 N.W.2d 893
    (2018).
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    STATE v. MYERS
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    304 Neb. 789
    trial and guilty verdicts, Myers’ convictions were affirmed on
    direct appeal.4 In Myers’ direct appeal, we rejected his claim of
    insufficient evidence and summarized the evidence presented
    at trial, in relevant 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 . . . Wilson saw that he had
    on gloves. Myers went to the back of the van, and . . .
    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 passengers home [including
    Wilson and Sam Edwards].
    . . . 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 . . . Wilson, who stated the pistol had
    once belonged to his sister [and] testified that he recog-
    nized the gun because it had a unique color and a name
    written on it and that he thought the black handle was
    unusual. . . . 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.
    4
    Myers, supra note 2.
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    304 Nebraska Reports
    STATE v. MYERS
    Cite as 
    304 Neb. 789
    [Timothy Sanders, who was in the same gang as Myers,]
    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. . . . [Wilson’s sister]
    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.5
    In review of the trial record, the State also presented evi-
    dence about Myers’ plan to be intimate with Mainelli in con-
    nection with the shooting.6 Timothy Sanders testified that
    Myers told him Mainelli needed to be shot and that Myers
    said he was going to have sex with Mainelli.7 After Mainelli’s
    death, Sanders testified that Myers told him that Mainelli
    walked into her bedroom, took off her clothes, and lay on
    the bed and that Myers shot her once the lights were out.8
    Specifically, in response to questions by the prosecution,
    Sanders had explained:
    A. . . . [H]e told me he was going to have sex with
    her. He was gonna kick with her, something of that
    nature, yeah.
    ....
    Q. After the death of . . . Mainelli —
    ....
    . . . did you have a conversation with . . . Myers con-
    cerning the events of that night, the night of her death?
    A. Yeah.
    Q. What did he tell you?
    A. Just that he knocked on the door. She let him in.
    I guess they acted like — he acted like he was about
    5
    Id. at 312-13,
    603 N.W.2d at 388-89.
    6
    Myers, supra note 3.
    7
    Id. 8 Id.
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    STATE v. MYERS
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    to have sex with her or something. And once the lights
    [were] out, he shot her.
    The State referenced this exchange in its opening statements
    and explained:
    Myers told . . . Sanders that he killed . . . Mainelli; and,
    more particularly, he told [him] how. He told him that he
    had shot her; that he talked to her. He convinced her to
    have sex with him; and that when she had laid down in
    the bed, he got next to her and shot her in the temple, and
    she was still moving so he shot her in the temple again.
    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.”
    In 2016, Myers filed his motion for “DNA testing of items
    of evidence that may contain biological material” pursuant to
    the DNA Testing Act. Myers listed items of evidence taken
    from the crime scene, including Mainelli’s bedding, bullets,
    spent .22-caliber casings, beverage containers, clothing, spiral
    notebooks, cigarette butts and ashtray contents, a gunshot resi-
    due test kit from Mainelli’s hands, vials of Mainelli’s blood,
    a sexual assault kit, and hair samples. Myers sought to have
    these items tested in order to exclude himself as a donor of any
    biological material. Myers asserted that if the testing revealed
    the presence of other males and failed to confirm his presence,
    he would be proved innocent. Myers additionally claimed the
    State withheld findings of biological evidence from him and
    asked for the appointment of counsel.
    The State filed an inventory of evidence confirming the items
    Myers wished to have tested were in the State’s possession.
    Following a hearing, the district court denied Myers’
    motion. The court found DNA testing was not warranted under
    § 29-4120(5) because the results would not provide exculpatory
    evidence. However, the court comingled its analysis of whether
    to require testing under § 29-4120(5) with the more onerous
    standard for vacating and setting aside a judgment based upon
    test results under § 29-4123(2) and (3). Accordingly, on appeal,
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    STATE v. MYERS
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    304 Neb. 789
    we remanded the issue to the district court for a determina-
    tion of Myers’ motion based solely upon the requirements of
    § 29-4120(5), including whether DNA testing of the items
    requested may produce noncumulative exculpatory evidence
    which is favorable to Myers and material to the issue of his
    guilt.9 Because we remanded the issue of whether Myers’
    motion for testing should be granted, we also remanded the
    issue of whether Myers made the requisite showing for the
    appointment of counsel.10 We also held that whether the pros-
    ecution improperly withheld evidence is not properly presented
    in a motion for DNA testing and that upon remand, the district
    court need not consider this argument further.11
    On remand, the court again denied Myers’ motion for DNA
    testing and determined that, applying only those grounds listed
    in § 29-4120(5), the results would not provide noncumulative
    exculpatory evidence. The court first addressed Myers’ allega-
    tion that testing of the items would fail to detect his DNA.
    Even if this allegation proved to be true, the court reasoned
    such a result would prove neither that Myers was not there nor
    that he did not commit the crimes of which he was convicted.
    Similarly, the court found Myers’ allegation that the DNA
    results would show other men had been in Mainelli’s apart-
    ment would not provide evidence that Myers was not there
    and did not commit the crimes. Regarding the sexual assault
    kit specifically, the court noted that the State’s arguments and
    the witnesses’ testimony did not allege Myers actually had
    sexual intercourse with Mainelli prior to murdering her and
    that thus, the absence of his DNA from the sexual assault kit
    would not exculpate him. Because the court overruled Myers’
    motion for testing and found the testing would not provide
    noncumulative exculpatory evidence, the court also declined to
    appoint counsel.
    9
    Id. 10 Id.
    11
    Id. - 795
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. MYERS
    Cite as 
    304 Neb. 789
    ASSIGNMENTS OF ERROR
    Myers assigns the district court erred by (1) overruling his
    motion for DNA testing and finding that testing would not
    produce noncumulative exculpatory evidence, (2) overruling
    his motion to appoint counsel, and (3) failing to determine the
    State withheld evidence.
    STANDARD OF REVIEW
    [1,2] 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.12 An appel-
    late court will uphold a trial court’s findings of fact related
    to a motion for DNA testing unless such findings are clearly
    erroneous.13
    [3] Decisions regarding appointment of counsel under the
    DNA Testing Act are reviewed for an abuse of discretion.14
    ANALYSIS
    Denial of Myers’ Motion
    for DNA Testing
    [4] Nebraska’s DNA Testing Act is a limited remedy provid-
    ing inmates an opportunity to obtain DNA testing in order to
    establish innocence after a conviction.15 Pursuant to the act, a
    person in custody takes the first step toward obtaining possible
    relief by filing a motion in the court that entered the judg-
    ment requesting forensic DNA testing of biological material.16
    Section 29-4120(1) provides the parameters for such motion
    and states:
    Notwithstanding any other provision of law, a person in
    custody pursuant to the judgment of a court may, at any
    12
    State v. Betancourt-Garcia, 
    299 Neb. 775
    , 
    910 N.W.2d 164
    (2018).
    13
    Id. 14 State
    v. Phelps, 
    273 Neb. 36
    , 
    727 N.W.2d 224
    (2007).
    15
    See, § 29-4117; Betancourt-Garcia, supra note 12.
    16
    Id. - 796
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    STATE v. MYERS
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    time after conviction, file a motion, with or without sup-
    porting affidavits, in the court that entered the judgment
    requesting forensic DNA testing of any biological mate-
    rial that:
    (a) Is related to the investigation or prosecution that
    resulted in such judgment;
    (b) Is in the actual or constructive possession or con-
    trol of the state or is in the possession or control of oth-
    ers under circumstances likely to safeguard the integrity
    of the biological material’s original physical composi-
    tion; and
    (c) Was not previously subjected to DNA testing or
    can be subjected to retesting with more current DNA
    techniques that provide a reasonable likelihood of more
    accurate and probative results.
    In the instant case, there is no dispute that Myers met these
    required criteria for filing a § 29-4120(1) motion.
    [5] Contrary to Myers’ contention, however, meeting the cri-
    teria to file a § 29-4120(1) motion does not require the district
    court to order testing. Instead, the reviewing court must also
    determine whether the requirements of § 29-4120(5) have been
    met. Section 29-4120(5) provides:
    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 determina-
    tion that (a)(i) the biological material was not previously
    subjected to DNA testing or (ii) the biological material
    was tested previously, but current technology could pro-
    vide a reasonable likelihood of more accurate and proba-
    tive 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 relevant
    to the claim that the person was wrongfully convicted
    or sentenced.
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    STATE v. MYERS
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    Thus, if the § 29-4120(1) criteria are met and if the court fur-
    ther determines that the requirements of § 29-4120(5) have
    been met, then the court must order testing.17
    [6] Exculpatory evidence means evidence which is favorable
    to the person in custody and material to the issue of the guilt
    of the person in custody.18 This requirement is relatively unde-
    manding for a movant seeking DNA testing and will generally
    preclude testing only where the evidence at issue would have
    no bearing on the guilt or culpability of the movant.19
    Myers claims the requested testing would show other indi-
    viduals were present in Mainelli’s apartment and would fail to
    show his DNA on any of the items. He argues that such results
    will call into question the credibility of the State’s witnesses by
    establishing he was not present and did not commit or partici-
    pate in the crime. We agree with the district court’s determina-
    tion that even if correct, such results would not rise to the level
    of exculpatory.
    In State v. Dean,20 we addressed the denial of a request for
    DNA testing by a defendant convicted of murder. In that case,
    the defendant requested testing of the firearm used in the com-
    mission of the offense and argued the testing would not pro-
    duce any biological material associated with him, which would
    prove he did not handle the firearm and was not the shooter.21
    We noted the contrary evidence concerning his possession of
    the firearm, including testimony from another witness and the
    defendant’s eventual confession to police that he had shot the
    firearm.22 We determined that even if the defendant was correct
    that DNA testing would not detect the presence of his DNA on
    17
    Myers, supra note 3.
    18
    § 29-4119.
    19
    State v. Buckman, 
    267 Neb. 505
    , 
    675 N.W.2d 372
    (2004).
    20
    State v. Dean, 
    270 Neb. 972
    , 
    708 N.W.2d 640
    (2006).
    21
    Id. 22 Id.
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    STATE v. MYERS
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    the objects in question, the result would be at best inconclu-
    sive, and certainly not exculpatory.23 We explained:
    [A]ssuming a biological sample did exist and that [the
    defendant’s] DNA was absent from that sample, on the
    record before us, it would be mere speculation to con-
    clude that the absence of [his] DNA on the firearm and
    ammunition would exclude him as being the person who
    fired the fatal shot. This is particularly so in view of
    the persuasive and undisputed trial evidence to the con-
    trary. . . . We conclude that the trial court did not abuse its
    discretion in refusing DNA testing because even if such
    tests produced the result that [the defendant] predicts, the
    result would not be exculpatory.24
    [7] Likewise, in State v. Lotter,25 we affirmed the denial of
    the defendant’s request for DNA testing after his murder con-
    victions. In that case, the defendant claimed that blood spatter
    from the victims on an accomplice’s gloves, shoes, or clothing
    would establish that the accomplice was very close to the vic-
    tims when they were shot and that the accomplice was not at
    the locations the accomplice described in his trial testi­mony.26
    The defendant asserted that such DNA test results would aid
    in establishing that the accomplice lied at trial and would
    prove that the accomplice shot all three victims. We con-
    cluded that the accomplice’s testimony would not have been
    contradicted even if the defendant’s claims that testing would
    show the victims’ blood on the accomplice’s clothes were cor-
    rect.27 We explained that DNA evidence is not a videotape of
    a crime and that testing shows only whether the biological
    sample in question belonged to the person tested against.28
    23
    Id. 24 Id.
    at 
    976-77, 708 N.W.2d at 645
    .
    25
    State v. Lotter, 
    266 Neb. 758
    , 
    669 N.W.2d 438
    (2003).
    26
    Id. 27 Id.
    28
    Id. - 799
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    STATE v. MYERS
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    Because other evidence received was consistent with the
    alleged presence of the victims’ blood on the accomplice’s
    clothes and because testing would have established only
    whether the blood belonged to one or more of the victims, not
    how it was deposited on each item, we found it would be mere
    speculation to conclude that blood was on the accomplice’s
    clothing because he was the shooter.29
    Similar to the evidence in Dean, the evidence received dur-
    ing Myers’ trial contradicts Myers’ underlying theory that he
    was not at the apartment and did not possess the gun used
    in Mainelli’s killing.30 Sanders testified that Myers told him
    prior to the murder that Mainelli needed to have “her cap
    pulled back and to be shot” because she was going to tes-
    tify against another individual. Testimony was received from
    Edward Wilson and Sam Edwards, both of whom were pas-
    sengers of the van that Myers drove to Mainelli’s apartment on
    the night of her death. Wilson testified that Myers drove the
    van to Mainelli’s apartment; got out of the van with gloves on;
    went to the back of the van, from where Wilson heard a noise
    he recognized as the sound of a bullet moving through a gun’s
    chamber; and walked toward the apartment complex, where
    he stayed for about an hour until he returned to the van and
    took the passengers home. Edwards testified that after return-
    ing from Mainelli’s apartment, Myers gave him a handgun and
    told him to “put it up” because the police were out and the van
    had “in transit stickers.” Edwards further testified that he had
    seen the handgun on Myers’ lap in the van prior to stopping at
    Mainelli’s apartment. Sanders confirmed that he had also seen
    Myers with a gun matching the handgun’s description around
    the time of the murder. The handgun was identified by wit-
    nesses, matched the caliber of the casings found by Mainelli’s
    body, and was examined by a firearm toolmarks examiner who
    determined it fired the bullets recovered at the crime scene.
    29
    Id. 30 See
    Dean, supra note 20.
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    Sanders also testified that after Mainelli’s death, Myers told
    him that Myers got Mainelli to walk into her bedroom, take off
    her clothes, and lie on the bed where Myers shot her once the
    lights were out. Wilson’s sister testified that Myers told her to
    tell the police he was with her at the time of the killing. This
    evidence presented at trial showing Myers was at the apartment
    with a handgun matching the one used in Mainelli’s shooting
    is overwhelming.
    [8,9] Myers’ argument that testing will produce results
    which contradict this testimony and evidence and show he was
    not present at Mainelli’s apartment is not persuasive. DNA
    evidence is not a videotape of a crime, and the nonpresence
    of an individual’s DNA profile in a biological sample does
    not preclude that individual from having been present or in
    possession of the item tested.31 Instead, such results would
    merely show the individual’s DNA was not present in the spe-
    cific biological sample tested.32 It would be mere speculation
    to conclude that the absence of Myers’ DNA on the apartment
    items, gun, and ammunition excludes him from having been
    at Mainelli’s apartment the night of the shooting. This is so
    particularly in view of the persuasive evidence of his presence
    at the apartment and possession of the handgun the night of
    the murder.
    Additionally, assuming the DNA testing would show other
    individuals’ biological samples were present in Mainelli’s
    apartment, such results are consistent with the State’s evidence
    and arguments presented at trial. It is likely testing evidence
    from Mainelli’s apartment would indicate other individuals
    had been at the apartment. However, evidence received dur-
    ing Myers’ trial already established other individuals had been
    present at Mainelli’s apartment prior to her death. Specifically,
    testimony confirmed that the other individuals who had access
    to Mainelli’s apartment included Mainelli’s roommate, that
    31
    See, id.; Lotter, supra note 25.
    32
    See
    id. - 801
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    other individuals were present in the apartment the night of
    Mainelli’s death, and that Mainelli had numerous boyfriends
    at the time of her death. Additionally, fingerprints of other
    men were found at Mainelli’s apartment. Myers’ trial coun-
    sel noted this evidence and placed emphasis on these other
    individuals’ access and the fact that Myers’ fingerprints were
    not found at the scene while other individuals’ fingerprints
    were. Accordingly, the requested DNA testing based upon
    Myers’ claims that it would show other individuals’ biological
    presence in Mainelli’s apartment would not produce exculpa-
    tory evidence.
    As to the sexual assault kit, Myers argues that DNA test-
    ing would contradict the State’s theory that he had sex with
    Mainelli prior to her murder. However, as the district court
    correctly noted, the State did not argue Myers had sex with
    Mainelli prior to killing her and the State’s witnesses did
    not allege he did so. Instead, the testimony received was that
    Myers told others he was willing to be intimate with Mainelli
    in pursuit of his plan to keep her quiet. Sanders testified that
    prior to Mainelli’s death, Myers told him Mainelli needed to be
    shot, and that Myers said he was willing to have sex with her
    in pursuit of that goal. Sanders testified that after Mainelli’s
    death, Myers told him Mainelli walked into her bedroom, took
    off her clothes, and lay on the bed and that Myers “acted like
    he was about to have sex with her or something” and shot her
    once the lights were out.
    The State used this testimony in opening statements to
    allege that “[Myers] convinced [Mainelli] to have sex with
    him; and that when she had laid down in the bed, he got next
    to her and shot her in the temple, and she was still moving so
    he shot her in the temple again.” Similarly, in closing argu-
    ments, the prosecutor summarized: “She took off her clothes;
    she laid on the bed. He put the gun towards her temple and he
    shot her.” The lack of Myers’ biological presence in Mainelli’s
    sexual assault kit would be consistent with the State’s theory
    of the case and the testimony received at trial. As such, the
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    requested testing of the sexual assault kit would fail to produce
    exculpatory evidence.
    Because the requested testing would fail to lead to non-
    cumulative exculpatory evidence as determined above, the
    district court did not err in finding Myers’ request for DNA
    testing did not meet the requirements of § 29-4120(5)(c) and in
    denying Myers’ motion.
    Declining to Appoint Counsel
    Under the DNA Testing Act, a court shall appoint counsel
    for an indigent person upon a showing that DNA testing may
    be relevant to the person’s claim of wrongful conviction.33 In
    similar cases where we affirmed findings that the requested
    testing would not produce noncumulative exculpatory evi-
    dence, we applied that finding to determine the applicants
    failed to show the DNA testing was relevant to the wrongful
    conviction claims.34 For the reasons discussed above, Myers
    did not make the requisite showing that DNA testing may be
    relevant to his claim of wrongful conviction and the district
    court, therefore, did not abuse its discretion in denying his
    request for appointment of counsel.
    Failing to Determine State
    Withheld Evidence
    [10] Myers also assigns the district court erred in failing to
    determine whether the State refused to allow Myers access to
    the sexual assault kit. We addressed this assignment of error
    in our decision after remand on the initial denial of Myers’
    motion for DNA testing and held the district court need not
    consider this argument further because such a claim is not
    part of the DNA Testing Act framework.35 As a result, whether
    the prosecution improperly withheld evidence is not properly
    33
    § 29-4122.
    34
    See, Phelps, supra note 14; Dean, supra note 20.
    35
    Myers, supra note 3.
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    presented in a motion for DNA testing.36 Therefore, this assign-
    ment of error is without merit.
    CONCLUSION
    The DNA testing requested by Myers would not result in
    noncumulative exculpatory evidence relevant to his wrongful
    conviction claim. We therefore affirm the district court’s denial
    of Myers’ motion for DNA testing and motion for appointment
    of counsel.
    Affirmed.
    Freudenberg, J., not participating.
    36
    Id.