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.
Decisions regarding appointment of counsel under the DNA
Testing Act are reviewed for an abuse of discretion.
from the District Court for Douglas County: J. Michael
Coffey, Judge. Reversed and remanded for further proceedings.
E. Myers, pro se.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
20 years after a jury convicted James E. Myers of murder, he
filed a motion for testing under the DNA Testing
Neb. 757] Act. The district court denied that motion as
well as Myers:motion for the appointment of
counsel. We would review these denials for an abuse of
discretion. But to do so, the court below must have applied
only the part of the legal framework governing whether to
grant testing. Because the district court may have relied
instead upon principles governing relief available after
testing, we must reverse the order and remand the cause for
reconsideration of the motions under only the correct portion
of the governing framework.
of Crimes The State charged Myers with first degree murder,
use of a deadly weapon in the commission of a felony, and
possession of a deadly weapon by a felon in connection with
the 1995 shooting death of Lynette Mainelli. A jury convicted
Myers of the charges, and we affirmed his convictions on
factual background relating to Myers' convictions is set
forth in more detail in our opinion involving Myers'
direct appeal. Our opinion stated in part:
Edward Wilson testified that he was in the van driven by
Myers the night Mainelli was killed. Myers drove to the Blue
Lake Manor Apartments, where Mainelli lived. Myers got out of
the van, and Edward Wilson saw that he had on gloves. Myers
went to the back of the van, and Edward Wilson heard a
"clacking" noise, which he recognized as the sound
of a bullet moving into a chamber. Myers then left the van
and walked toward the apartment complex. He was gone for
about 1 hour, and upon his return, he got in the van and took
the passengers home.
Neb. 758] Sam Edwards testified that as Myers dropped him
off. Myers gave him a handgun and told him to "put it
up" because the police were out and Myers had in-transit
stickers on the van. Earlier, Edwards had seen the pistol on
Myers' lap. Edwards subsequently retrieved the pistol and
gave it to Edward Wilson, who stated the pistol had once
belonged to his sister, Edwina Wilson. Edward Wilson
testified that he recognized the gun because it had a unique
color and a name written on it and that he thought the black
handle was unusual. Edward Wilson sold the pistol because he
suspected that it had been used in the murder of Mainelli.
The pistol was the same caliber as two .22-caliber casings
found beside Mainelli's body. Daniel Bredow, a firearm
toolmarks examiner with the city of Omaha, testified that he
compared the bullets found at the crime scene with bullets
fired from the gun Myers gave Edwards. Bredow concluded that
the bullets taken from the crime scene had been fired by the
gun which could be traced to Myers.
Sanders testified that in the summer and early fall of 1995,
Myers had said that Mainelli was going to testify against
Charles Duncan, so she needed to have "her cap pulled
back and to be shot." Sanders saw Myers with a small
.22-caliber handgun in the summer of 1995. Edwina Wilson
testified that in December 1996, after Mainelli's death,
Myers had told her to tell the police he was with her at the
time of the killing.
information relevant to the instant appeal is derived from
the trial record. The State presented evidence about
Myers' plan to be intimate with Mainelli. Timothy
Sanders, who was in the same gang as Myers, testified that
Myers said Mainelli needed to be shot and that Myers said he
was going to have sex with Mainelli. Sanders testified that
after Mainelli's death, Myers told him that Mainelli
walked into [301 Neb. 759] her bedroom, took off her clothes,
laid on the bed, and Myers shot her once the lights were out.
In closing arguments, the prosecutor summarized: "She
took off her clothes; she laid on the bed. He put the gun
towards her temple and he shot her."
for DNA Testing
2016, Myers filed a motion pursuant to the DNA Testing Act
seeking "DNA testing of items of evidence that may
contain biological material." He listed 26 items of
evidence taken from the crime scene, and he wished to have
those items tested in order to exclude himself as a donor of
any biological material. The items included Mainelli's
bedding, bullets and spent, 22-caliber casings, beverage
containers, clothing, spiral notebooks, cigarette butts and
contents of ashtrays, gunshot residue test kit from
Mainelli's hands, vials of Mainelli's blood, a rape
kit, and hair samples.
sought a variety of different DNA tests. He wanted testing of
any hairs, blood, semen, saliva, or skin cells on various
items, asserting that if such DNA evidence excluded Myers and
was found to be of another male, "this would prove that
the story from the informant was false, and Myers is in fact
[i]nnocent." Myers alleged there was "good cause to
believe biological evidence still exists and can be
identified and profiled with today's DNA
technology." Myers asserted that if a suspect touched
his face or head while wearing gloves, the skin cells could
be transferred to other objects. Myers wanted the spent
.22-caliber casings tested, because "it has become
possible to obtain DNA profiles from few skin cells left by
the person who loaded a shell into a gun." Myers also
moved for the appointment of counsel. In connection with a
motion to preserve evidence, Myers included a laboratory
report showing that a sexual assault examination of Mainelli
was performed and that a vaginal swab and vaginal smear slide
from a sexual assault kit revealed "[v]ery few
filed an affidavit in support of his motion for DNA testing.
He stated that DNA evidence was not available at the [301
Neb. 760] time of his trial, that law enforcement withheld
any findings of biological evidence from him, and that
testing all of the items would exonerate him. Myers also
stated that he was with his girlfriend on the night of the
murder and that testing all of the items would prove that the
State's informant lied. He subsequently filed a
supplemental amendment to his motion, seeking DNA testing of
the sexual assault kit.
State filed an inventory of evidence that had been gathered
in connection with the case. It showed that the items Myers
wished to have tested were in the State's possession.
district court held a hearing. Myers asked the court to
consider his motion along with the supplemental amendment and
to take judicial notice of § 29-4120(5). He presented no
evidence. The State likewise presented no evidence, but it
requested that the court review the bill of exceptions from
the trial, along with Myers' motion to determine whether
DNA testing was appropriate.
district court denied Myers' motion. It found that DNA
testing was not warranted under § 29-4120(5)(c), because
the results would not provide exculpatory evidence. The court
quoted extensively from a portion of State v.
Buckman(including portions of the Buckman
opinion which relied on State v.
Bronson where we discussed when a court may vacate
and set aside a judgment based on test results that
"exonerate or exculpate" an ...