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.
DNA Testing. Nebraska's DNA Testing Act
is a limited remedy providing inmates an opportunity to
obtain DNA testing in order to establish innocence after a
. If the criteria set forth in Neb. Rev. Stat. §
29-4120(1) (Reissue 2016) are met and if the court further
determines that the requirements of § 29-4120(5) have
been met, then the court must order testing.
DNA Testing: Evidence. The requirement that
requested DNA testing produce noncumulative exculpatory
evidence is relatively undemanding for a movant seeking DNA
testing and will generally preclude testing only where the
evidence at issue would have no bearing on the guilt or
culpability of the movant.
____: ____ . DNA evidence is not a videotape of a crime, and
testing shows only whether the biological sample in question
belonged to the person tested against.
DNA Testing. The nonpresence of an
individual's DNA profile in a biological sample does not
preclude that individual from having been present or in
possession of the item tested.
. The nonpresence of an individual's DNA profile in a
biological sample merely shows the individual's DNA was
not present in the specific biological sample tested.
Neb. 790] 10. DNA Testing: Prosecuting Attorneys:
Evidence. Whether the prosecution improperly
withheld evidence is not properly presented in a motion for
from the District Court for Douglas County: J. Michael
E. Myers, pro se.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
E. Myers appeals the district court's denial of his
motion for testing under Nebraska's DNA Testing
and his motion for the appointment of counsel. Myers argues
the district court erred in denying his motion by determining
that the requested testing would not produce noncumulative
exculpatory evidence, denying his request for counsel, and
determining that the State did not withhold evidence. This
appeal follows our decisions on direct appeal and after remand
on an initial denial of Myers' motion for DNA
testing. For the reasons set forth herein, we
was convicted of 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. The State's factual allegations
asserted that Myers was worried Mainelli was talking to the
police about another person, so he killed Mainelli. After a
[304 Neb. 791] trial and guilty verdicts, Myers'
convictions were affirmed on direct appeal. In Myers'
direct appeal, we rejected his claim of insufficient evidence
and summarized the evidence presented at trial, in relevant
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 . . . Wilson saw that he had on gloves. Myers
went to the back of the van, and . . . 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 [including Wilson and Sam Edwards].
. . . 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 . . . Wilson, who stated the pistol had once
belonged to his sister [and] 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. . . .
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.
[304 Neb. 792] [Timothy Sanders, who was in the same gang as
Myers, ] 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. . . .
[Wilson's sister] 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.
review of the trial record, the State also presented evidence
about Myers' plan to be intimate with Mainelli in
connection with the shooting. Timothy Sanders testified that
Myers told him Mainelli needed to be shot and that Myers said
he was going to have sex with Mainelli. After
Mainelli's death, Sanders testified that Myers told him
that Mainelli walked into her bedroom, took off her clothes,
and lay on the bed and that Myers shot her once the lights
were out. Specifically, in response to questions by
the prosecution, Sanders had explained:
A. . . . [H]e told me he was going to have sex with her. He
was gonna kick with her, something of that nature, yeah.
Q. After the death of . . . Mainelli -
. . . did you have a conversation with . . . Myers concerning
the events of that night, the night of her death?
Q. What did he tell you?
A. Just that he knocked on the door. She let him in. I guess
they acted like - he acted like he was about [304 Neb. 793]
to have sex with her or something. And once the lights [were]
out, he shot her.
State referenced this exchange in its opening statements and
Myers told . . . Sanders that he killed . . . Mainelli; and.
more particularly, he told [him] how. He told him that he had
shot her; that he talked to her. He convinced her to have sex
with him; and that when she had laid down in the bed, he got
next to her and shot her in the temple, and she was still
moving so he shot her in the temple again.
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."
2016, Myers filed his motion for "DNA testing of items
of evidence that may contain biological material"
pursuant to the DNA Testing Act. Myers listed items of
evidence taken from the crime scene, including Mainelli's
bedding, bullets, spent .22-caliber casings, beverage
containers, clothing, spiral notebooks, cigarette butts and
ashtray contents, a gunshot residue test kit from
Mainelli's hands, vials of Mainelli's blood, a sexual
assault kit, and hair samples. Myers sought to have these
items tested in order to exclude himself as a donor of any
biological material. Myers asserted that if the testing
revealed the presence of other males and failed to ...