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State v. Ildefonso

Supreme Court of Nebraska

December 20, 2019

State of Nebraska, appellee,
v.
Arlyn P. Ildefonso, 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.__:__. Decisions regarding appointment of counsel under the DNA Testing Act are reviewed for an abuse of discretion.

          Appeal from the District Court for Douglas County: W. Russell Bowie III, Judge.

          Arlyn P. Ildefonso, pro se.

          Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.

          CASSEL, J.

         INTRODUCTION

         Arlyn P. Ildefonso appeals from the denial of his motions for DNA testing and appointment of counsel. Because Ildefonso failed to demonstrate that DNA testing may produce noncumulative, exculpatory evidence, the district court did not abuse its discretion by denying his motions. We affirm.

         [304 Neb. 712] BACKGROUND

         Circumstances of Crimes

         On September 13, 1999, Carr Hume's body was found lying partially on a sidewalk and partially on a curb in front of a house in the area of 42d and Bancroft Streets in Omaha, Nebraska. Blood spatter evidence indicated that he had been shot at that location. Hume died from a single gunshot wound to the head. No shell casings were found at the scene. Items located at the scene included a baseball hat, assumed to belong to Hume; a piece of possible human tissue near a curb across from Hume's body; and a syringe in the street.

         Christina Devore-Alexander testified that she was with Ildefonso and Kristine Reh late in the evening on September 12, 1999, and into the early morning hours of September 13. They left an apartment around 3 a.m., with Devore-Alexander driving and Ildefonso giving directions. According to Devore-Alexander, while she was driving, Ildefonso was "very upset" and said the only thing that would make him feel better was "if he shot somebody." Near 42d and Bancroft Streets, Devore-Alexander stopped the car and Ildefonso got out. As Devore-Alexander was talking to Reh, she heard a gunshot and looked up. She saw Ildefonso's extended arm holding a gun and Hume lying on his back on the ground. Reh testified that once the car stopped on 42d Street, Ildefonso got out, Reh heard a gunshot, and then Ildefonso got back in the car. As the vehicle drove away, Reh saw a man lying on the sidewalk.

         On approximately September 24, 1999, Mark Anderson told police that he had been with the individuals responsible for the shooting. At that time, Anderson was in police custody due to his suspected involvement in an automobile theft. Based on information from Anderson, police identified Randall Fields and Shannon Smith as possible suspects. Anderson told officers that Fields shoved Hume, produced a handgun, and fired two times, striking Hume with the second [304 Neb. 713] shot. Police arrested Fields and Smith and brought them into custody.

         As an officer was preparing to interview Fields, the officer received a call from Amy Taylor, who said that she knew who the shooter was and that the wrong people had been arrested. The officer testified that Taylor told him Ildefonso used a, 357-caliber revolver during the shooting and that he was with Devore-Alexander and Reh. The officer asked Taylor to obtain some of the bullets for the gun.

         Taylor testified that she called the police after seeing on television that the wrong people had been arrested for Hume's murder. Taylor had been staying with Ildefonso in a motel. She testified that Ildefonso told her that he shot Hume "[b]ecause he was mad and he wanted the world to feel his pain." She had seen Ildefonso with several firearms, including a .357-caliber revolver. At the request of the police, Taylor obtained shells from the .357-caliber revolver from Ildefonso's backpack and gave them to the motel clerk for the police to retrieve. Taylor testified that it was "possible" Fields-whom she last saw 4 years earlier-was the father of one of her children.

         After speaking with Devore-Alexander, Reh, and Taylor, officers reinterviewed Anderson. Anderson said that he used news accounts of the murder to concoct the story against Fields and Smith for revenge. An officer testified that in retrospect, parts of Anderson's original stories to the police were not consistent with what the officers learned. After Anderson recanted, he was charged with a crime for delaying the actual suspect from being apprehended.

         On October 1, 1999, police took steps to obtain a warrant to search Ildefonso, a vehicle, and a motel room. While surveil-ling the motel, an officer saw Ildefonso and Taylor leave the motel in a vehicle. Officers subsequently stopped the vehicle. Taylor testified that when pulled over by the police, Ildefonso removed the .357-caliber revolver from his waistband and put it under the front passenger's seat of the vehicle. Police collected the revolver as evidence.

         [304 Neb. 714] During an autopsy of Hume, a doctor recovered a bullet and bullet fragments from the right side of the base of the skull. An expert testified that the bullet taken from Hume's head was fired from the .357-caliber revolver recovered from ...


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