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State v. Betancourt-Garcia

Supreme Court of Nebraska

April 26, 2018

State of Nebraska, appellee,
v.
Rosario Betancourt-Garcia, appellant.

         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 innocence after a conviction.

         4. ___. Under Neb. Rev. Stat. § 29-4120(1)(b) (Reissue 2016), biological material does not fall within the purview of the DNA Testing Act unless it is in the actual or constructive possession or control of the State or others.

         5. Constitutional Law: DNA Testing. A constitutional challenge to the destruction of evidence is outside the purview of the DNA Testing Act.

          Appeal from the District Court for Madison County: Mark A. Johnson, Judge. Affirmed.

          Danielle L. Myers-Noelle, of Jewell & Collins, and Brad J. Montag, of Egley, Fullner, Montag & Hockabout, for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, and Stacy, JJ., and Moore, Chief Judge, and Arterburn, Judge, and Doyle, District Judge.

         [299 Neb. 776] STACY, J.

         Rosario Betancourt-Garcia (Betancourt) was convicted in 2015 of kidnapping, use of a firearm to commit kidnapping, and conspiracy to commit kidnapping. We affirmed all of his convictions and two of his sentences on direct appeal.[1]In 2017, Betancourt filed a motion for forensic DNA testing pursuant to Nebraska's DNA Testing Act.[2] After conducting a hearing, the district court denied the motion, finding the items Betancourt wanted to test were no longer in the possession of the State and had been destroyed before the motion for DNA testing was filed.[3] Betancourt appeals, and we affirm.

         FACTS

         Background

         On November 15, 2003, officers of the Madison Police Department responded to a call and found Pedro Jesus Rayon-Piza (Pedro) bound and gagged. Duct tape was wrapped around Pedro's face, ankles, and wrists.[4] A '"shoestring type cord'" was tied around his ankles and wrists. Pedro appeared "'terrified'" and told officers that Betancourt and another man had kidnapped him and threatened to kill him.[5] The two men left Pedro bound and gagged in a shed, telling him they were going to return with Pedro's brother and then kill them both. Pedro managed to escape and seek help before Betancourt and the other man returned.

         The Madison Police Department conducted an immediate search for Betancourt, but did not find him. Two days later, arrest warrants were issued for Betancourt and the other suspect, and the State filed an information in county court, [299 Neb. 777] charging Betancourt with kidnapping and use of a deadly weapon to commit a felony.

         Approximately 6 months later, in May 2004, Texas authorities arrested Betancourt in Piano, Texas, based on the Nebraska warrant. Betancourt signed a waiver of extradition, and the Madison County sheriff's office dispatched transport personnel to bring Betancourt back to Nebraska. While the transport personnel were en route to Texas, they learned Betancourt had mistakenly been transferred by authorities in Texas to the custody of federal '"immigration services.'"[6] Betancourt was subsequently deported to Mexico.

         Roughly 9 years later, on July 1, 2013, Texas authorities arrested Betancourt again, and he was extradited to Nebraska. The case against Betancourt was bound over to district court, and the State ultimately filed an amended information charging Betancourt with kidnapping, use of a deadly weapon to commit a felony, and conspiracy to commit kidnapping. Betancourt pled not guilty to all three counts, and a jury trial was held.

         At trial, Pedro testified that Betancourt was one of the two men who had kidnapped him, threatened to kill him, and left him bound and gagged in the shed. The other man involved in the kidnapping also testified at trial and admitted that he and Betancourt threatened Pedro with guns, took him to the shed, and left him there while they looked for Pedro's brother.

         At trial, the court received without objection several photographs of the crime scene, including the shed from which Pedro had escaped. Some of the photographs depicted items in the shed, including a pair of black tennis shoes with white laces. There were also photographs of Pedro after the duct tape had been removed, and adhesive residue was visible on his face, wrists, and ankles. The police chief testified that some of the duct tape had been collected at the scene and kept in the evidence room for several years. But sometime prior to [299 Neb. 778] Betancourt's rearrest in 2013, the mayor of Madison, Nebraska, wanted the evidence room cleaned, so officers checked to "verify where this case was" and then "disposed of the physical evidence in Betancourt's case.

         The jury convicted Betancourt on all charges. In December 2016, we affirmed his convictions on direct appeal, but remanded for resentencing on the conspiracy conviction.[7]

         Motion for DNA Testing

         On February 27, 2017, Betancourt filed a motion for forensic DNA testing, seeking to have items of physical evidence, including the duct tape, the black tennis shoes, and the shoe laces, tested for DNA evidence. The motion alleged Pedro had falsely, or mistakenly, identified Betancourt as the perpetrator and further alleged that DNA testing could ...


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