1. Collateral Estoppel: Res Judicata: Appeal and
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.
from the District Court for Saunders County: Mary C.
Gilbride, Judge. Affirmed.
D. Marrs, pro se.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
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.
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.
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
2009, Marrs, represented by counsel, filed a motion under the
DNA Testing Act (the Act) 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.
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.
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.
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.
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
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.
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