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: W. Russell Bowie
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.
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.
Neb. 712] BACKGROUND
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.
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
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
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.
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.
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.
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.
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 ...