[Copyrighted Material Omitted]
Petition for further
review from the Court of Appeals, INBODY, Chief Judge, and MOORE and RIEDMANN,
Judges, on appeal thereto from the District Court for Douglas County, W.
RUSSELL BOWIE III, Judge.
Judgment of Court of Appeals affirmed.
Tracy L. Hightower-Henne,
of Hightower Reff Law, L.L.C., for appellant.
Jon Bruning, Attorney General, and James D. Smith for appellee.
Amy A. Miller for amicus curiae American Civil Liberties Union Foundation of Nebraska.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, and Miller-Lerman, JJ.
Syllabus by the Court
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. DNA Testing: Appeal and Error. In an appeal from a proceeding under the DNA Testing Act, the trial court's finding of fact will be upheld unless such findings are clearly erroneous.
[287 Neb. 456] 3. Judgments: Appeal and Error. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.
4. DNA Testing: Evidence. After a proper motion seeking forensic DNA testing has been filed, the State is required by Neb.Rev.Stat. § 29-4120(4) (Reissue 2008) to file an inventory of all evidence that was secured by the State or a political subdivision in connection with the case.
5. Evidence: Proof. The burden to produce evidence will rest upon the party who does not have the general burden of proof if that party possesses positive and complete knowledge concerning the existence of facts which the party having that burden is called upon to negative, or if the evidence to prove a fact is chiefly within the party's control.
NATURE OF CASE
Under the DNA Testing Act, an inmate seeks retesting of DNA evidence relating to his 1975 convictions of robbery, rape, and sodomy. Previous DNA testing in 2005 revealed that at least one stain of biological material was from a male who was not the defendant. However, the testing conducted in 2005 could not distinguish between semen and epithelial cells in older materials. Furthermore, there was evidence that the materials had been handled by numerous parties and that the amount of DNA found on the materials could have come from such handling. Therefore, the DNA test results were neither [287 Neb. 457] exonerating nor exculpatory and the district court denied the inmate's motion to vacate his convictions or grant a new trial, based on the 2005 test results. The inmate's current motion for DNA testing alleges that new, more accurate testing techniques may lead to exonerating or exculpatory evidence. In particular, an expert affidavit establishes that current testing technology can distinguish between semen and epithelial cells on the materials in question. The district court denied the
motion for retesting. The Nebraska Court of Appeals reversed. For reasons different from those stated by the Court of Appeals, we affirm its determination that the district court erred in denying Pratt's motion for retesting under the Act.
TRIAL AND CONVICTIONS
In 1975, Juneal Dale Pratt was convicted of sodomy, forcible rape, and two counts of robbery. The evidence at trial showed that two sisters had been forced into their hotel room, where they were robbed and sexually assaulted by a single male perpetrator. The perpetrator ripped the sisters' shirts down the front, apparently in an attempt to find hidden money. He forced them to remove the rest of their clothes. The perpetrator proceeded to make one sister perform oral sex on him, while the other sister's face was covered with an article of clothing. The perpetrator did not ejaculate during oral sex. The perpetrator then raped the other sister, while the first sister's face was covered with an article of clothing. Sperm cells were found on that sister's vaginal walls. She testified at trial that she was wearing her torn shirt at the time of the rape. Both sisters testified that the perpetrator repeatedly rummaged through their belongings looking for more money and other items of value. He then left them tied up and alone in the hotel room.
The State presented evidence that Pratt had robbed another victim at the same hotel approximately a week after the robberies and assaults of the sisters. Pratt was apprehended after a chase that followed this second robbery. The sisters had independently identified Pratt as the perpetrator in both a three-man lineup and a voice lineup. In addition, the sisters recognized [287 Neb. 458] the shoes worn by Pratt as the shoes worn by the perpetrator and they identified a ring worn by Pratt as a ring stolen during the robberies and assaults.
Pratt testified in his own defense at trial. He presented an alibi, which was confirmed by his live-in girlfriend. Pratt's sister testified that the ring in question belonged to her. A shoe-store owner testified that the type of shoes Pratt was wearing was not uncommon.
The jury found Pratt guilty of all crimes charged. He was sentenced to consecutive prison terms of 5 to 10 years on the sodomy count, 7 to 20 years on the rape count, and 10 to 30 years on each robbery count. His convictions and sentences were affirmed on direct appeal.
2004 MOTION FOR DNA TESTING
In 2004, Pratt moved for testing under the DNA Testing Act (hereinafter the Act). Pursuant to the requirements of the Act, the State filed an inventory of all evidence that was secured in connection with Pratt's case.  The inventory revealed that the State had retained the two ripped shirts, a bra, and the clothing worn by Pratt the day he was apprehended. The State had not retained the semen samples obtained from the rape victim. The sisters' underwear had likewise been either lost or destroyed.
All the retained clothing was stored together in a small cardboard box. Each item had an exhibit sticker on it.
The district court granted Pratt's 2004 request to conduct DNA testing. The State did not appeal from the 2004 order granting testing under the Act.
No apparent stains were found on the bra. Several stained areas containing potential biological materials were identified on the torn shirts, however, and were tested in 2005 at the University of Nebraska Medical Center (UNMC). Pratt provided a buccal swab for comparison to any DNA found. Pratt's clothes were not tested.
[287 Neb. 459] The presumptive testing conducted in 2005 to identify whether any DNA found was from semen cells or epithelial cells targeted an enzyme that was not stable. Thus, given the age of the biological material on the shirts, the DNA testing conducted could not distinguish whether any DNA identified on the shirts came from semen cells or epithelial cells.
Most of the 2005 DNA test results were inconclusive as to Pratt. But one stain on the rape victim's shirt showed that while it may or may not have been a mixture of one or more individuals, if it was not a mixture, then Pratt would be excluded. Another area of that same shirt showed a mixture of more than one individual's DNA. At least one of the contributors to that mixture was male. The DNA testing excluded Pratt as that male.
Given the amplification methods available in 2005, and without the DNA profiles of the victims to help sort out mixtures, UNMC was unable to isolate and identify any full DNA profile.
2007 MOTION TO VACATE/NEW TRIAL AFTER 2005 TEST RESULTS
Based on the presence of an unidentified male's DNA on the rape victim's shirt, in 2007, Pratt filed a motion under § 29-4123 to vacate and set aside his conviction or, in the alternative, for new trial.
The technologist who conducted the DNA testing testified at the hearing on Pratt's 2007 motion. The technologist testified that it was her practice to try to cut out as small a sample as possible in order to leave some of the biological stain for subsequent testing that she or anyone else would need to do. She testified that the remaining stained pieces of fabric from the victims' shirts should have been returned to the State's custody with the rest of the evidence.
The technologist testified that storing several items together in a cardboard box was not an appropriate way to store items to avoid cross-contamination. She did not, however, connect this possibility of cross-contamination to her interpretation of the results of the DNA testing.
[287 Neb. 460] The technologist testified that by merely touching clothing, a person could deposit sufficient DNA in epithelial cells to result in a partial profile, given the amplification techniques available in 2005. The technologist conceded that if the shirts were handled by male police officers, clerks, and jurors, then any of those persons could have deposited the male DNA she detected. She testified that it was impossible to know how or when the DNA she detected was deposited on the victims' shirts.
On February 28, 2008, the district court denied Pratt's motion to vacate or for new trial. Apparently based on the technologist's testimony, the court concluded that " [n]either of the shirts [was] handled or stored in a way likely to safeguard the integrity of any biological matter which may have been deposited on them at the time of the attacks...." The court explained that the shirts must have been touched when the exhibit stickers were placed ...