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.
___. 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.
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.
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.
Constitutional Law: DNA Testing. A
constitutional challenge to the destruction of evidence is
outside the purview of the DNA Testing Act.
from the District Court for Madison County: Mark A. Johnson,
Danielle L. Myers-Noelle, of Jewell & Collins, and Brad
J. Montag, of Egley, Fullner, Montag & Hockabout, for
Douglas J. Peterson, Attorney General, and Austin N. Relph
Heavican, C.J., Miller-Lerman, Cassel, and Stacy, JJ., and
Moore, Chief Judge, and Arterburn, Judge, and Doyle, District
Neb. 776] STACY, J.
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.In 2017, Betancourt filed a motion for
forensic DNA testing pursuant to Nebraska's DNA Testing
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. Betancourt
appeals, and we affirm.
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. 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. 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
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.
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.'" Betancourt was subsequently deported to
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
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.
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
jury convicted Betancourt on all charges. In December 2016,
we affirmed his convictions on direct appeal, but remanded
for resentencing on the conspiracy conviction.
for DNA Testing
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 ...