State v. Amaya

305 Neb. 36

938 N.W.2d 346

STATE of Nebraska, appellee,

v.Jay D. AMAYA, appellant.

No. S-19-189.

Supreme Court of Nebraska.

Filed February 14, 2020

Robert W. Kortus, of Nebraska Commission on Public Advocacy, Lincoln, for appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust, Lincoln, for appellee.

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

Stacy, J.

In 1999, Jay D. Amaya pled no contest and was convicted of first degree murder, use of a deadly weapon to commit a felony, and first degree sexual assault. In 2017, he moved for DNA testing under the DNA Testing Act,¹ and the district court ultimately ordered testing of four items of evidence. After the test results were received, the State moved to dismiss the proceeding. The district court granted the motion to dismiss, and Amaya appeals. We affirm.

I. FACTS

1. BACKGROUND

In 1998, Sheri Fhuere was sexually assaulted and killed in her home in North Platte, Nebraska. Both Amaya and Michael E. Long were arrested and charged with the crimes. The following facts are taken from our 2008 opinion addressing Amaya’s first motion for postconviction relief.²

When police arrived at Fhuere’s home on July 16, 1998, they found Long attempting to resuscitate her. Fhuere had been beaten and sexually assaulted, and her throat had been slashed. There was a severe bite mark on her left thigh. Fhuere was pronounced dead at the scene, and a pathologist later determined that she died as the result of either the slash wound or the beating.

Long was interviewed several times over the next hours and eventually gave a written statement to police dated July 16, 1998. Although there were inconsistencies in his story, he generally told officers that he and Amaya beat Fhuere and that Amaya slashed her throat. Long also told the officers where to find the knife that Amaya used, and he stated that Amaya had bitten Fhuere during the assault. A forensic dentist later matched the bite mark to a dental impression of Amaya’s teeth. DNA testing established the presence of Fhuere’s blood on Amaya’s shoe. Amaya wrote letters confessing to the crimes.

Both Long and Amaya were charged with first degree murder. Amaya was also charged with use of a deadly weapon to commit a felony and first degree sexual assault. Long entered into a plea agreement with the State. In exchange for his testimony against Amaya, the charges against Long were reduced to aiding and abetting second degree murder and aiding and abetting first degree sexual assault. Long was sentenced to 25 years’ to life imprisonment on the murder conviction and 5 to 10 years’ imprisonment on the sexual assault conviction.

Amaya’s appointed trial counsel deposed Long after Long had entered into the plea agreement but before Amaya had entered his no contest pleas. The deposition revealed that Long had significant drug, alcohol, and mental health issues that began in his early teens and continued at the time of the deposition. It also revealed that he had given several statements about Fhuere’s death to the police and that, in general, each succeeding statement tended to mitigate his culpability and exaggerate Amaya’s. Long stated during this deposition that the written statement he had given to police on July 16, 1998, was truthful. He also stated, however, that he was extremely intoxicated the night of the murder and that some of the details in the statement were not correct. He admitted that he had also told officers that evening that he had blacked out and could not remember everything that had happened.

After Long had been deposed, and after being fully advised of his rights, Amaya entered the no contest pleas in exchange for the State’s agreement not to seek the death penalty or introduce evidence of aggravating circumstances. Prior to entering the pleas, Amaya wrote a letter to his attorneys expressing his desire to avoid the death penalty. The pleas were entered on October 19, 1999, and Amaya was sentenced on November 19.³

Amaya was sentenced to life imprisonment on the first degree murder conviction and to consecutive prison sentences of 10 to 20 years on the use of a deadly weapon conviction and 20 to 40 years on the first degree sexual assault conviction. He did not file a direct appeal.

2. MOTION FOR DNA TESTING

In September 2017, Amaya filed a pro se motion asking the court to order DNA testing of numerous items of evidence under the DNA Testing Act and seeking the appointment of counsel. The court appointed counsel, who revised the pro se motion and successfully moved the court to authorize testing on swabs taken from (1) the bite mark on Fhuere’s thigh, (2) the handle of the knife allegedly used to slash Fhuere’s throat, (3) the mouth area of the beer bottle in which the knife was allegedly stored for disposal, and (4) the mouth area of a beer bottle found on the front porch of Fhuere’s home.

All of the DNA test results generated a DNA profile consistent with a mixture of two individuals. Results from the bite mark showed the major DNA profile matched Amaya, and therefore, Amaya was not excluded as the major contributor. The probability of an unrelated individual matching the major DNA profile was 1 in 1.55 octillion. The minor profile from the bite mark was consistent with Fhuere. Results from the knife handle and from the mouth of the beer bottle in which the knife was stored showed the major DNA profile matched Fhuere, and results concerning the minor contributor were inconclusive due to limited information. Results from the mouth of the beer bottle found on the porch showed the major DNA profile matched Long, and results concerning the minor contributor were inconclusive due to limited information.

After receiving the DNA test results, the State moved to dismiss the proceeding,⁴ alleging the results neither exonerated nor exculpated Amaya. At the evidentiary hearing on the motion to dismiss, Amaya claimed the test results entitled him to relief, and he asked the court to either (1) vacate his convictions and release him from custody, (2) allow him to withdraw his no contest pleas and proceed to trial, or (3) resentence him on the same convictions.

The district court granted the State’s motion to dismiss. It found that the DNA test results did not exonerate or exculpate Amaya and that he was not entitled to release or to a new trial. The court did not directly address Amaya’s arguments that he should be resentenced or allowed to withdraw his pleas. Amaya filed this timely appeal.

II. ASSIGNMENT OF ERROR

Amaya assigns, restated, that the district court erred in granting the State’s motion to dismiss.

III. STANDARD OF REVIEW

A motion to dismiss a proceeding under the DNA Testing Act after testing has been completed 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.⁵

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.⁶

Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court’s determination.⁷

IV. ANALYSIS

In arguing it was error for the district court to grant the State’s motion to dismiss, Amaya presents three alternative theories. First, he argues the DNA test results completely exonerated and exculpated him so his convictions should have been vacated and he should have been released. Alternatively, Amaya argues he should have been allowed to withdraw his pleas, because if he had known the DNA test results, he would not have entered his pleas and would have insisted on going to trial. Finally, he argues that even if the DNA test results did not support vacating his convictions or allowing him to withdraw his pleas, the test results entitle him to the relief of resentencing.

Before addressing Amaya’s arguments, we review the legal framework of the DNA Testing Act.

1. DNA TESTING ACT

Section 29-4120(1) of the act provides that a person "in custody pursuant to the judgment of a court may, at any time after conviction," file a motion requesting DNA testing. This court has previously held the DNA Testing Act does not exclude defendants such as Amaya who were convicted based on a plea.⁸

Section 29-4120 sets out what a defendant must do to obtain DNA testing. We have explained:

"The initial step toward obtaining relief under the DNA Testing Act is for a person in custody to file a motion requesting forensic DNA testing of biological material.... Forensic DNA testing is available for any biological material that is related to the investigation or prosecution that resulted in the judgment; is in the actual or constructive possession of the state, or others likely to safeguard the integrity of the biological material; and either was not previously subjected to DNA testing or can be retested with more accurate current techniques."⁹

If these threshold criteria are met, and if the court finds that "testing may produce noncumulative, exculpatory evidence relevant to the claim that the person was wrongfully convicted or sentenced,"¹⁰ then under § 29-4120(5) the court "shall order DNA testing." But a court is not required to order postconviction DNA testing if such testing would not produce exculpatory evidence.¹¹ The act defines "exculpatory evidence" as "evidence which is favorable to the person in custody and material to the issue of the guilt of the person."¹²

In this case, the court ordered DNA testing on four items of evidence and no party contends it was error to order the testing. We therefore move on to the procedure to be followed once the DNA test results are complete.

Under § 29-4123(2), the test results must be disclosed to the county attorney and to the person who requested the testing and his or her attorney. After receiving the test results, either party may request a hearing on whether the results "exonerate or exculpate the person."¹³ Following such a...