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State v. Marrs

Supreme Court of Nebraska

December 23, 2016

State of Nebraska, appellee,
v.
James D. Marrs, appellant.

          1. Collateral Estoppel: Res Judicata: Appeal and Error.

          The availability of issue preclusion or claim preclusion is a matter of law, although any factual determinations in applying these doctrines are reviewed for clear error.

         Appeal from the District Court for Saunders County: Mary C. Gilbride, Judge. Affirmed.

          James D. Marrs, pro se.

          Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Wright, J.

         NATURE OF CASE

         James D. Marrs was convicted of second degree murder, and his conviction and sentence were affirmed on direct appeal. This is an appeal from Marrs' second motion for testing of biological materials. The State asserts that his motion is barred by principles of res judicata.

         BACKGROUND

         Marrs was convicted, pursuant to a plea of guilty, to second degree murder in relation to the death of Sharron Erickson in [295 Neb. 400] June 2003. The State submitted as part of the factual basis supporting Marrs' guilty plea evidence that DNA matching Marrs' profile was found in the panties worn by Erickson the night of her murder.

         A report from June 2004 by the University of Nebraska Medical Center concluded that Marrs could not be excluded as the source of DNA in the sperm cell fraction obtained from the panties. The report set forth that the probability of an unrelated individual matching the DNA profile obtained from the panties was "1 in 433 x 1015 (quadrillion) for Caucasians, 1 in 10.9 x 1018 (quintillion) for African Americans, and 1 in 11.4 x 1018 (quintillion) for American Hispanics." We affirmed Marrs' conviction on direct appeal.[1]

         In 2009, Marrs, represented by counsel, filed a motion under the DNA Testing Act (the Act)[2] for retesting of biological material related to Marrs' prosecution. These materials were the victim's panties worn the night she was killed, an anal swab from the victim that DNA testing had shown was a single source contributor matching Erickson's profile, and Marrs' oral swab. Marrs alleged there were discrepancies between reports by the University of Nebraska Medical Center and testing done at the State Patrol crime laboratory.

         At the hearing on the 2009 motion, the only evidence submitted by Marrs' counsel were the DNA reports from 2003 and 2004, prepared by the two laboratories. Marrs' counsel did not call any witnesses.

         At the hearing, the State adduced expert testimony explaining that there were no inconsistencies between the various laboratory testing reports submitted by Marrs in support of his motion. The expert witnesses testified that there was no reason to "cast any doubt" or question the accuracy of the prior DNA testing results.

          [295 Neb. 401] In particular, the State's expert witnesses testified there was no reason to question the conclusion that biological material found on Erickson's panties matched Marrs' DNA profile. The expert witnesses also testified that there were no other untested items likely to yield DNA profiles. The witnesses were not specifically asked to what extent, if any, DNA testing techniques had advanced since the time of Marrs' plea.

         In addition to adducing expert testimony relating to the DNA reports, the State submitted the deposition testimony of eight inmates who were incarcerated with Marrs. Each of the inmates described that Marrs had admitted to killing Erickson.

         The district court overruled the 2009 motion for DNA testing. The court found that Marrs had failed to demonstrate that further DNA testing of the items collected would produce noncumulative, exculpatory evidence relevant to the claims at issue. The court further found that the record failed to reflect that there was any newly available technology that would produce noncumulative, exculpatory evidence relevant to the claims at issue. Marrs' appeal from that order was summarily dismissed by the Nebraska Court of Appeals.

         In 2015, Marrs, acting pro se, filed another motion for DNA testing under the Act, which motion is the subject of the current appeal. Marrs asserted that further testing of the biological material found in Erickson's panties could lead to exculpatory evidence, because the 2004 report stated only that Marrs "could not be excluded" as the contributor. Marrs alleged that the 2004 DNA report was the primary reason he chose to plead guilty. Marrs also sought testing or retesting of the other evidence in the State's possession. Marrs alleged that the items could be retested with more accurate current techniques, and he generally described the new amplification techniques that have become available since 2004. Marrs did not allege that the ...


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