State v. Hale , 306 Neb. 725 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/18/2020 09:07 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. HALE
Cite as 306 Neb. 725State of Nebraska, appellee, v.
Terrance J. Hale, appellant.
___ N.W.2d ___
Filed August 7, 2020. No. S-19-1109.
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. DNA Testing. 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.
4. ____. Pursuant to the DNA Testing Act, a person in custody takes the
first step toward obtaining possible relief by filing a motion in the court
that entered the judgment requesting forensic DNA testing of biologi-
cal material.
5. ____. The court has discretion to either consider a motion for DNA test-
ing on affidavits or hold a hearing.
6. ____. If the criteria in Neb. Rev. Stat. § 29-4120(1) (Reissue 2016) are
met, and the reviewing court finds that testing may produce noncumu-
lative, exculpatory evidence relevant to the claim that the person was
wrongfully convicted or sentenced under § 29-4120(5), the court must
order DNA testing.
7. ____. A court is not required to order DNA testing if such testing would
not produce exculpatory evidence.
8. DNA Testing: Proof. Part of the defendant’s burden of proof is to pro-
vide the court with affidavits or evidence at a hearing establishing that
DNA testing may produce noncumulative, exculpatory evidence relevant
to the claim that he or she was wrongfully convicted or sentenced.
9. DNA Testing. The threshold showing required under Neb. Rev. Stat.
§ 29-4120(5) (Reissue 2016) is relatively undemanding and will
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STATE v. HALE
Cite as 306 Neb. 725generally preclude testing only where the evidence at issue would have
no bearing on the guilt or culpability of the movant.
10. ____. The function of testing DNA evidence is to determine whether
the sample being examined contains genetic characteristics similar to a
sample from a known individual.
Appeal from the District Court for Douglas County: Leigh
Ann Retelsdorf, Judge. Affirmed.
Terrance J. Hale, pro se.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Heavican, C.J.
INTRODUCTION
Terrance J. Hale appeals the district court’s denial of his
postconviction motion for DNA testing under Nebraska’s DNA
Testing Act. 1 Hale asserts that the district court erred in deny-
ing his motion by concluding that DNA testing would not
result in noncumulative, exculpatory evidence. We affirm.
FACTS
Background
Hale was convicted by jury of first degree murder and
sentenced to life imprisonment for killing Raymond Vasholz.
Raymond died after inhaling smoke from a fire set in his house
in Omaha, Nebraska. Raymond’s wife, Elizabeth Vasholz, who
was 76 years old at the time of the fire, testified that Hale
had broken into the couple’s house, demanded money, and
assaulted both her and Raymond before starting the fire. In
2015, Hale’s conviction was affirmed by this court on direct
1
Neb. Rev. Stat. § 29-4116 et seq. (Reissue 2016 & Cum. Supp. 2018).
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STATE v. HALE
Cite as 306 Neb. 725appeal in State v. Hale. 2 The following facts are taken from
that opinion:
Elizabeth testified that on February 7, 2013, in the time
“‘leading up to 9 o’clock a.m.,’” she was sitting in the living
room with Raymond when she heard “‘[b]reaking glass’” that
“‘sounded like it was coming from the basement.’” 3 Elizabeth
testified that a man wearing a coat, whom Elizabeth identified
in court as Hale, came rushing up the basement stairs. Elizabeth
testified that she recognized Hale because he had done yard-
work for her, but she did not know him by name.
Elizabeth testified that after Hale came up the stairs, he
demanded money. After replying that she had no money,
Elizabeth said that Hale assaulted her and Raymond. Elizabeth
reported striking Hale’s back with a lamp as Hale was hitting
Raymond. Elizabeth testified that Hale grabbed “‘a paper’” and
lit it, using the gas stove. 4 Elizabeth said that Hale threw the
lit paper at her and then set a couch cushion on fire and came
toward her, pushing the burning cushion against her arms.
Elizabeth testified that she escaped the house, grabbing a
recycling bin to cover herself because Hale had torn off the
pajama top she had been wearing. Elizabeth recalled knocking
on her neighbor’s door, but no one answered so she sat on her
neighbor’s porch and began screaming.
Elizabeth stated that Hale then came outside and “‘threw his
coat down.’” 5 Then another man arrived, and Elizabeth asked
him for help. Elizabeth testified that she suffered a cracked
vertebrae and burns on her back and both arms.
Gary Burns testified that he had been driving in his car at
approximately 9 a.m. when he saw an elderly woman sitting
outside. Burns said that the woman, who was “‘real dingy and
dirty’” and looked like “‘she had been beat up, basically,’”
2
State v. Hale, 290 Neb. 70, 858 N.W.2d 543 (2015).
3
Id. at 72, 858 N.W.2d at 545.
4
Id.
5
Id. at 72, 858 N.W.2d at 546.
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STATE v. HALE
Cite as 306 Neb. 725had no shirt on and was covering herself with a recycling
bin. 6 The woman was yelling, “‘“Help, help, help.”’” 7
Burns also saw a man, whom he identified in court as Hale,
about 15 feet away from the woman. Burns got out of his
car and called the 911 emergency dispatch service to report
an assault. As he approached the woman, Burns testified that
she pointed at Hale and said, “‘“You did this, you did it.”’” 8
According to Burns, Hale threw up his arms and said, “‘“I
didn’t do this.”’” 9
Firefighters responded to an alarm for a house fire at 9:12 a.m.
Smoke was escaping from the house when they arrived. Inside,
they found “‘pockets of fire’” that they quickly extinguished. 10
At that time, Elizabeth was seated on the ­neighbor’s front
porch with a coat draped over her shoulders. The firefighters
located Raymond lying across a bed in one of the bedrooms.
He was not breathing. Raymond was transported to a hospital,
where he was pronounced dead later that afternoon.
Police officer Roger Oseka testified that when he and another
officer reached the scene, he saw Elizabeth sitting on the front
porch of a neighbor’s house. Oseka also saw a black man,
whom he identified in court as Hale, “‘walking in circles’” and
saying, “‘“I was trying to save them.”’” 11
Oseka exited his cruiser and approached Elizabeth, whom
he said was bleeding from her nose and mouth and had
“‘burn sores’” on both arms. 12 After Oseka made contact with
Elizabeth, she pointed at Hale and said, “‘“He did it.”’” 13
Oseka then directed the other officer to arrest Hale.
6
Id.7
Id.8
Id. at 73, 858 N.W.2d at 546.
9
Id.
10
Id.
11
Id.
12
Id.
13
Id.
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STATE v. HALE
Cite as 306 Neb. 725A coroner’s physician, who performed an autopsy on
Raymond’s body, opined that Raymond’s death was caused by
“‘the complication of breathing smoke, soot, carbon monoxide,
and the other hot gasses in the fire, [and] being burned by the
fire.’” 14 The autopsy also showed numerous abrasions, lacera-
tions, and bruises on Raymond’s body.
A fire investigator examined the house and identified six
different points of origin of the fire, each independent of
the other. He also found a couch cushion with “‘thermal
damage.’” 15 He opined that the fire was set intentionally, based
on the multiple points of origin and no indication that they
would have naturally spread from one to another. He testified
that his conclusions were consistent with Elizabeth’s descrip-
tion of events.
Inside, the house showed signs of a violent struggle.
Firefighters saw what appeared to be streaks of blood on a
refrigerator in the kitchen. Photographs of the house showed
apparent blood on the leg of an upturned table, a windowsill
in the room where Raymond was found, an exterior door, and
the wall leading to the basement. Apparent blood was also
documented on the sleeve and lining of the coat and on the
recycling bin. Additionally, a pane in a basement window was
broken and the latch used to open the window was bent. A
handprint was pressed into the dirt outside the window.
Photographs of Hale after his arrest show a small cut on his
nose, a scratch on his right arm, a small cut on his right leg,
and scrapes or lacerations on his back.
A forensic DNA analysis was performed on several items
retrieved from the scene. Blood on the left chest area and
left sleeve of the coat generated a genetic profile matching
Elizabeth’s. Hale’s DNA profile was consistent with blood
on the right sleeve of the coat. The probability of an unre-
lated African American individual matching the profile is 1 in
6.35 quintillion.
14
Id. at 75, 858 N.W.2d at 547.
15
Id.
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STATE v. HALE
Cite as 306 Neb. 725Hale did not testify, but the State played for the jury several
recordings of his statements. In a statement to police, Hale
said that he “‘tried to save this lady.’” 16 Hale said that he
was walking near the Vasholzes’ house when he saw smoke.
Because the doors of the house were locked, Hale said that
he kicked in a basement window and pulled Elizabeth from
the house.
Four days after Raymond’s death, Hale sat for an interview
with local media. During the interview, Hale said that he was
walking to a bus stop when he saw smoke rising from the
Vasholzes’ house. Hale said that he opened a door and saw an
older woman that he recognized as a neighbor. Hale pulled her
out of the house and went back for her husband when some-
body attacked him from behind. Hale said that he went to the
basement, broke a window, climbed out, called 911, and waited
for police to arrive. Hale said that he covered the woman with
his coat, but she told him to get away. Hale claimed that the
police caused the laceration to his nose when they took him
into custody.
Hale was charged with one count of first degree murder
under Neb. Rev. Stat. § 28-303(2) (Reissue 2008). The infor-
mation alleged that Hale killed Raymond while committing, or
attempting to commit, a robbery, burglary, or arson.
A jury convicted Hale, and the court sentenced him to life
imprisonment.
Motion for DNA Testing
On March 29, 2019, Hale filed a motion for DNA test-
ing pursuant to the DNA Testing Act. In his motion, Hale
requested DNA testing of four swabs of apparent blood taken
from the Vasholzes’ house and a buccal swab obtained from
Eugene McMiller, an individual that had been observed in the
area. The swabs of apparent blood were collected from (1) the
east basement stairs wall, (2) a windowsill and window latch
16
Id. at 76, 858 N.W.2d at 548.
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STATE v. HALE
Cite as 306 Neb. 725in the Vasholzes’ bedroom, and (3) the lowest concrete exterior
step of the neighbor’s porch where Elizabeth was found. Hale
did not submit affidavits in support of his motion.
The State filed a response and an inventory of evidence
showing that the requested swabs were located in a freezer at
the Omaha Police Department, but the buccal swab obtained
from McMiller had been destroyed in 2014.
On October 28, 2019, the district court entered an order
denying Hale’s motion for DNA testing after finding that the
requested testing would not produce noncumulative, excul-
patory evidence relevant to the claim that Hale was wrong-
fully convicted or sentenced. Citing this court’s opinion in
State v. Dean, 17 the district court concluded that even if Hale
were excluded as being the contributor to the blood swabs on
which he sought testing, he would not be exonerated because
Elizabeth immediately identified Hale as the attacker, Hale
stated that he had been inside the house attempting to assist
the Vasholzes during the fire, Hale’s DNA was found on a coat
located at the scene, and Hale was observed to have scratches
on his person.
ASSIGNMENT OF ERROR
Hale assigns that the district court erred in denying his
motion for DNA testing.
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. 18
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. 19
17
State v. Dean, 270 Neb. 972, 708 N.W.2d 640 (2006).
18
State v. Myers, 304 Neb. 789, 937 N.W.2d 181 (2020).
19
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STATE v. HALE
Cite as 306 Neb. 725ANALYSIS
[3-5] The DNA Testing Act is a limited remedy provid-
ing inmates an opportunity to obtain DNA testing in order to
establish innocence after a conviction. 20 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 judgment
requesting forensic DNA testing of biological material. 21 The
court has discretion to either consider the motion on affidavits
or hold a hearing. 22 Under § 29-4120(1), an inmate may only
request DNA testing of biological material 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.
[6] If the criteria in § 29-4120(1) are met, and the reviewing
court finds that “testing may produce noncumulative, exculpa-
tory evidence relevant to the claim that the person was wrong-
fully convicted or sentenced” under § 29-4120(5), the court
must order DNA testing. 23
[7,8] A court is not required to order DNA testing if such
testing would not produce exculpatory evidence. 24 The DNA
Testing Act defines exculpatory evidence as evidence “which
20
State v. Betancourt-Garcia, 299 Neb. 775, 910 N.W.2d 164 (2018).
21
Id.22
Id.23
See, State v. Amaya, 305 Neb. 36, 938 N.W.2d 346 (2020); State v. Myers,
supra note 18.
24
See State v. Ildefonso, 304 Neb. 711, 936 N.W.2d 348 (2019).
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STATE v. HALE
Cite as 306 Neb. 725is favorable to the person in custody and material to the issue
of the guilt of the person in custody.” 25 Part of the defendant’s
burden of proof is to provide the court with affidavits or evi-
dence at a hearing establishing that DNA testing may produce
noncumulative, exculpatory evidence relevant to the claim that
he or she was wrongfully convicted or sentenced. 26
It is undisputed in this case that the swabs of apparent
blood Hale sought to be tested satisfy the criteria set forth in
§ 29-4120(1); nor is it disputed that the buccal swab obtained
from McMiller does not. Because the buccal swab obtained
from McMiller was destroyed in 2014, it is no longer in the
actual or constructive possession or control of the State or oth-
ers as required by § 29-4120(1)(b). Thus, the sole issue in this
appeal is whether the district court abused its discretion in con-
cluding that DNA testing on the requested swabs of apparent
blood would not produce noncumulative, exculpatory evidence
relevant to Hale’s claim that he was wrongfully convicted.
[9] This court has recognized that the threshold showing
required under § 29-4120(5) is “‘relatively undemanding . . .
and will generally preclude testing only where the evidence at
issue would have no bearing on the guilt or culpability of the
movant.’” 27 Nevertheless, we conclude that Hale has failed to
meet the threshold requirement for DNA testing.
On appeal, Hale contends the district court erred in deny-
ing his motion because “[i]f DNA testing provides results that
another individual’s DNA is present on the crime scene(which
[sic] is likely to have been left by the killer) this is exculpa-
tory evidence as defined by Neb. Rev. Stat. §29-4119.” 28 Hale
further asserts that even if he were placed at the scene of the
crime, DNA test results on the swabs of apparent blood may
produce a match to a possible suspect and thus exculpate
25
§ 29-4119.
26
See State v. Ildefonso, supra note 24.
27
See id. at 717, 936 N.W.2d at 352 (quoting State v. Buckman, 267 Neb.
505, 675 N.W.2d 372 (2004)).
28
Brief for appellant at 8.
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STATE v. HALE
Cite as 306 Neb. 725Hale as the actual killer. Hale also argues that DNA testing
could be favorable to him and relevant to his claim of wrong-
ful conviction by raising doubt regarding the veracity of testi-
mony produced at trial. However, Hale produced no affidavits
in support of his motion for DNA testing, and he provides only
conclusory statements in support of his claims on appeal.
In his motion for DNA testing, Hale argued that the blood
found on the basement stairs wall and on the windowsill and
window latch in the Vasholzes’ bedroom could only be from
the attacker and that a finding the blood did not come from
Hale would prove his innocence. We rejected a similar argu-
ment in Dean. 29
In Dean, the defendant, JaRon Dean, had been convicted of
murder and had filed a postconviction motion for DNA test-
ing of the firearm and ammunition used in the commission
of the offense. Dean claimed that if DNA testing were con-
ducted, it would “‘not produce any biological material associ-
ated with him’” and thus would prove that he was “‘not the
shooter and had nothing whatsoever to do with the [crime].’” 30
Recognizing that the evidence presented at trial demonstrated
Dean had possessed the firearm, we determined that even if
Dean was correct and DNA testing would not have detected
the presence of his DNA on the objects in question, the result
would be at best inconclusive, and certainly not exculpatory.
We stated:
[E]ven assuming a biological sample did exist and that
Dean’s DNA was absent from that sample, on the record
before us, it would be mere speculation to conclude that
the absence of Dean’s DNA on the firearm and ammuni-
tion 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 contrary. 31
29
State v. Dean, supra note 17.
30
Id. at 973, 708 N.W.2d at 642.
31
Id. at 976, 708 N.W.2d at 645.
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STATE v. HALE
Cite as 306 Neb. 725Similarly, in State v. Myers, 32 we affirmed the denial of the
request by the defendant, James Myers, for postconviction
DNA testing after his murder conviction. In that case, Myers
requested testing on items of evidence taken from the scene
of the crime, the victim’s apartment. Myers claimed that his
DNA would not be found on any of the items and that the test
results would show there were other individuals present in the
victim’s apartment. Myers also argued the test results would
call into question the credibility of the witnesses who had tes-
tified against him. Recognizing the “overwhelming” evidence
presented at trial showing Myers was present at the victim’s
apartment with a handgun matching the one used in the killing,
we determined DNA testing would fail to lead to noncumula-
tive, exculpatory evidence. 33 We concluded:
Myers’ argument that testing will produce results which
contradict this testimony and evidence and show he was
not present at [the victim’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 biologi-
cal sample does not preclude that individual from having
been present or in possession of the item tested. Instead,
such results would merely show the individual’s DNA
was not present in the specific biological sample tested.
It would be mere speculation to conclude that the absence
of Myers’ DNA on the apartment items, gun, and ammu-
nition excludes him from having been at [the victim’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. 34
This court has previously held that DNA testing of semen
samples recovered from the scene of a sexual assault and
32
State v. Myers, supra note 18.
33
Id. at 800, 937 N.W.2d at 188.
34
Id. at 800, 937 N.W.2d at 188-89.
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Cite as 306 Neb. 725murder that may exclude two codefendants as contributors
would result in noncumulative, exculpatory evidence. In State
v. White, 35 three of the accomplices of the defendant, Joseph
White, had testified that they had observed only White and
codefendant Thomas Winslow sexually assault the victim.
White’s defense at trial was that he was not present at the scene
of the crime and that he was convicted despite testimony indi-
cating the biological evidence recovered from the scene could
not be tied to him.
In denying White’s motion for DNA testing, the district
court characterized White’s argument as a claim that DNA test
results excluding him as a contributor could establish that he
was not present and did not participate in the crime. Reversing
the district court’s denial, we concluded that if DNA testing
excluded both of the codefendants as contributors to the semen
samples, the results would raise serious doubts regarding the
credibility of the three accomplices that testified only White
and Winslow had carried out the sexual assault. Recognizing
this testimony was the “heart of the State’s case” and critical
to White’s conviction, we concluded that evidence excluding
both White and Winslow as contributors would be favorable to
White and material to the issue of White’s guilt and, therefore,
“‘exculpatory’” under § 29-4119. 36
The case before us does not present similar facts. There was
persuasive evidence demonstrating that Hale was the assail-
ant. Elizabeth immediately identified Hale as the individual
that attacked her, he had injuries that were consistent with
Elizabeth’s account of the attack, and other than Hale’s uncor-
roborated statement made during the media interview, there
was no evidence to suggest that anyone other than Hale and the
Vasholzes were inside the residence.
Hale did not mention his alleged attacker at the scene or
when he was interviewed by police later that afternoon. The
first time Hale brought up the possibility of another intruder
35
State v. White, 274 Neb. 419, 740 N.W.2d 801 (2007).
36
Id. at 425, 740 N.W.2d at 806.
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Cite as 306 Neb. 725was during the media interview 4 days later. In the interview,
Hale admitted to being inside the Vasholzes’ residence and
claimed he had been attacked from behind before going to the
basement and breaking a window. Thus, assuming Hale could
be excluded as a contributor to any DNA found on the wall
leading to the basement, the exclusion would contradict Hale’s
own statements.
In his brief on appeal, Hale contends that DNA testing of
the items requested may produce a match to a possible suspect.
However, Hale provides no factual basis for this claim, nor
does he indicate a sample of DNA in the State’s possession
with which to compare any results.
In State v. Ildefonso, 37 the defendant who had been con-
victed of first degree murder, Arlyn Ildefonso, sought DNA
testing of numerous items of evidence collected during the
investigation, including clothing, a syringe, blood swabs, and
a possible piece of human tissue. Ildefonso argued that DNA
test results would exclude him as a contributor and instead
contain the DNA of the real killer. He also maintained that he
had been framed for the murder and that testing showing the
DNA of three individuals that had initially been implicated in
the murder would raise serious doubts regarding the testimony
of eyewitnesses that had been with Ildefonso at the time of
the murder. In denying his motion for DNA testing, the dis-
trict court stated that Ildefonso “‘does not indicate with any
particularity, or truthful corroborating evidence, why testing of
those items may present any exculpatory evidence relative to
the claim that the defendant was wrongfully convicted—only
hopeful conclusions.’” 38
Affirming the district court’s ruling, this court concluded
that the absence of Ildefonso’s DNA on some of the items
would be consistent with the evidence and would not be
exculpatory, particularly in light of the eyewitness testimony
presented against him at trial and Ildefonso’s possession of
37
State v. Ildefonso, supra note 24.
38
Id. at 715-16, 936 N.W.2d at 351.
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Cite as 306 Neb. 725the murder weapon at the time he was arrested. Pointedly, we
also noted that it was a problem for Ildefonso that the State’s
index of property did not show that the State had actual or con-
structive possession of a DNA sample of the three individuals
with which to compare any testing results.
[10] In the present case, without a known sample with
which to compare the results, the lack of Hale’s DNA in the
swabs of apparent blood would be inconclusive at best. We
have explained:
The function of testing DNA evidence is to deter-
mine whether the sample being examined contains genetic
characteristics similar to a sample from a known individ-
ual. There are two possible outcomes when comparing the
samples. If the DNA test results from the samples match,
i.e., the same DNA types are found at all loci tested from
both samples, then the conclusion is that the sample from
the known individual cannot be excluded as a possible
source of the sample in question. If, on the other hand, the
genetic information present in the DNA from the known
individual is not present in the DNA from the sample
being tested, then the DNA profiles do not match and the
known individual is excluded as the source of the DNA
sample in question. 39
In this case, Hale does not provide any evidence or speci-
ficity in regard to his claim that DNA testing will identify the
actual attacker. And even if Hale’s DNA was not detected in
the swabs of apparent blood, the results would not be exculpa-
tory in light of the evidence presented at trial. Based on such
results, it would be mere speculation to conclude that Hale was
not the assailant.
In regard to the apparent blood found on the lowest con-
crete exterior step of the neighbor’s porch, Hale argued in his
motion that testing would find the presence of his DNA. He
asserted that the presence of his DNA would show that he had
been cut while leaving through the basement window of the
39
State v. Lotter, 266 Neb. 758, 770, 669 N.W.2d 438, 447 (2003).
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Cite as 306 Neb. 725Vasholzes’ house after the attack, because blood had leaked
from the cut when he was standing on the steps speaking to the
police. However, the uncontroverted evidence presented at trial
shows that Hale never spoke to law enforcement while on the
concrete steps.
Oseka testified that he was the first law enforcement officer
on scene and that Hale was located in the grassy area between
the sidewalk and the street when he arrived. Oseka stated that
he and another officer apprehended Hale in this grassy area
and secured him in the police cruiser after Elizabeth pointed at
Hale and said, “‘“He did it.”’” 40 Oseka’s testimony was cor-
roborated by Burns, who testified that he observed the officers
take Hale into custody in the grassy area.
The laceration on Hale’s nose is consistent with Elizabeth’s
version of the attack. Elizabeth testified that she heard break-
ing glass coming from the basement just before Hale rushed
up the stairs and attacked her and Raymond. Moreover, Hale’s
claim that his nose was injured while exiting the house contra-
dicts his statement made during the media interview, in which
he stated that the injury to his nose occurred when police took
him into custody.
We conclude the district court did not err in finding that
Hale’s request for DNA testing did not satisfy the requirements
of § 29-4120(5)(c) and in denying Hale’s motion.
CONCLUSION
Hale did not meet his burden of showing that DNA testing
may produce noncumulative, exculpatory evidence relevant to
his claim that he was wrongfully convicted. Accordingly, we
conclude that the district court did not abuse its discretion in
denying Hale’s motion for DNA testing.
Affirmed.
Freudenberg, J., not participating.
40
State v. Hale, supra note 2, 290 Neb. at 73, 858 N.W.2d at 546.