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State v. Myers

Supreme Court of Nebraska

January 10, 2020

State of Nebraska, appellee,
James E. Myers, 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.

         4. 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 conviction.

         5. ___ . 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.

         6. 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.

         7. ____: ____ . 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.

         8. 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.

         9. ___ . 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.

         [304 Neb. 790] 10. DNA Testing: Prosecuting Attorneys: Evidence. Whether the prosecution improperly withheld evidence is not properly presented in a motion for DNA testing.

          Appeal from the District Court for Douglas County: J. Michael Coffey, Judge.

          James E. Myers, pro se.

          Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.

          Funke, J.

         James E. Myers appeals the district court's denial of his motion for testing under Nebraska's DNA Testing Act[1] 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[2] and after remand on an initial denial of Myers' motion for DNA testing.[3] For the reasons set forth herein, we affirm.


         Myers 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.[4] In Myers' direct appeal, we rejected his claim of insufficient evidence and summarized the evidence presented at trial, in relevant 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 . . . 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.[5]

         In review of the trial record, the State also presented evidence about Myers' plan to be intimate with Mainelli in connection with the shooting.[6] Timothy Sanders testified that Myers told him Mainelli needed to be shot and that Myers said he was going to have sex with Mainelli.[7] 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.[8] 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?
A. Yeah.
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.

         The State referenced this exchange in its opening statements and explained:

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.

         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."

         In 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 ...

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