State v. Duncan

309 Neb. 455

960 N.W.2d 576

STATE of Nebraska, appellee,

v.Daryle M. DUNCAN, appellant.

No. S-20-565.

Supreme Court of Nebraska.

Filed June 11, 2021

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

Douglas J. Peterson, Attorney General, and Melissa R. Vincent, Lincoln, for appellee.

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

Papik, J.

In 2001, Daryle M. Duncan was convicted of first degree murder and use of a deadly weapon to commit a felony. He now appeals a district court order that denied his motion for new trial based on evidence obtained through the DNA Testing Act. Duncan challenges the district court's determination that new DNA evidence acquired from two billfolds found near the victim's body, when considered with the evidence previously presented at his trial, did not warrant a new trial. He also contends that the district court erred in not considering evidence that was not received at trial, but was received during earlier postconviction proceedings. Finding no merit to Duncan's arguments, we affirm.

BACKGROUND

Convictions, Sentences, and Direct Appeal.

Following a jury trial in 2001, Duncan was convicted of first degree murder and use of a deadly weapon to commit a felony, in connection with the death of Lucille Bennett. Bennett was discovered in her home at 10:30 a.m. on December 5, 1999, dead from a knife wound to the right side of her neck. There were no signs of forced entry. Some billfolds were found near Bennett's body. The billfolds did not contain valuables and did not yield fingerprint evidence. Money orders obtained by Bennett were cashed after her death.

At Duncan's trial, his ex-wife Jaahlay Liwaru testified on behalf of the State. Duncan and Liwaru had previously lived across the street from Bennett. Liwaru testified that Bennett generally did not let anyone into her house, but she had allowed Liwaru and Duncan inside to use her telephone on different occasions.

In December 1999, Liwaru was residing at a drug treatment center. She testified that she was expecting Duncan to deliver money from her government assistance check to her at the treatment center, but that Duncan did not deliver the money. Liwaru testified that between 1 and 3 a.m. on December 5, 1999, Duncan called her and said that he had "messed up" her money and that he was trying to get it back. He also said that the "lady across the street" had been murdered. Liwaru testified that Duncan told her the woman had "gotten sliced from ... neck to neck ... and she got stabbed up." Duncan said that he was going to go to hell, and Liwaru, believing Duncan meant he would go to hell for spending the money that he had agreed to deliver to her, said he would not be going to hell because of that. According to Liwaru, Duncan replied, "[W]hat if I told you I killed Ms. Bennett." Liwaru immediately told another patient about Duncan's call, and the other patient later corroborated this version of Liwaru's account at trial.

Liwaru testified that Duncan called her again shortly after 10 a.m. on the same day. Duncan told Liwaru that he had seen Bennett's body being removed from her home; however, other testimony established that Bennett was not removed from her home until later that evening. Immediately after Duncan's second call, Liwaru told an employee of the drug treatment center that her neighbor had been murdered and robbed. The employee later testified and confirmed Liwaru's testimony.

On cross-examination, Liwaru admitted that she told police that Duncan's telephone calls may have occurred on December 6, 1999, or on the evening of December 5, and that she had shared "a couple" versions of the calls with police. She also denied that Duncan had told her he was involved in Bennett's murder.

One of Bennett's neighbors, who was acquainted with Duncan, testified that he saw Duncan in Bennett's neighborhood on December 4, 1999.

A criminologist from the Nebraska State Patrol laboratory testified that his examination of hairs found at Bennett's home showed several of them to be consistent with hair samples from Duncan's dogs. Another hair found at Bennett's house was similar in some respects to a sample collected from Duncan, but it was also dissimilar to Duncan's hair in some ways, mainly the manner in which it was cut.

The parties offered into evidence two stipulations concerning the results of DNA testing performed on several items of evidence. The stipulations showed that most of the results were inconclusive, but Duncan could not be excluded as a donor of blood found on Bennett's bedding and was excluded as a contributor to DNA found on the knife used to kill Bennett.

During closing arguments, the State asserted that the billfolds near Bennett appeared to have been emptied, suggesting that Bennett had been murdered during a robbery. The State also emphasized that the absence of fingerprints other than Bennett's at the scene did not exclude Duncan or show that he did not commit the crimes. Closing remarks by Duncan's counsel framed the parties’ stipulations as demonstrating that "the DNA didn't show anything."

Duncan received consecutive sentences of life imprisonment on the murder conviction and 19 to 20 years’ imprisonment for use of a deadly weapon to commit a felony. In 2003, this Court affirmed Duncan's convictions and sentences on direct appeal. See State v. Duncan , 265 Neb. 406, 657 N.W.2d 620 (2003).

2008 Postconviction Proceedings.

Duncan filed a series of motions for postconviction relief, alleging, among other things, that he received ineffective assistance of counsel at trial and on appeal. At an evidentiary hearing in 2008, Duncan attempted to demonstrate that trial counsel was ineffective in failing to show that Liwaru's narrative was fabricated due to coercion by the police and that counsel failed to properly investigate evidence of a particular alternative suspect.

The district court entered an order denying Duncan's motion for postconviction relief. In relevant part, the district court found that (1) the police did not use coercive tactics to obtain Liwaru's statements, and Liwaru's affidavit to the contrary was belied by the transcripts from her interviews with police, and (2) Duncan's suggested alternative suspect was not a viable suspect in Bennett's murder because, other than living in the area, there was no evidence linking that individual to the crime and Bennett's murder did not fit the modus operandi of his other crimes.

Duncan appealed the district court's order, and we affirmed. See State v. Duncan , 278 Neb. 1006, 775 N.W.2d 922 (2009). We did not reach the merits of Duncan's allegations of ineffective assistance of trial and appellate counsel involving police coercion of Liwaru and his alternative suspect theory because the claims were either procedurally barred or not assigned on appeal.

Motion for DNA Testing.

Years after Duncan's motion for postconviction relief was denied, he moved for DNA testing pursuant to the DNA Testing Act, Neb. Rev. Stat. § 29-4116 et seq. (Reissue 2016 & Cum. Supp. 2018). Duncan sought DNA testing on three billfolds—a red billfold and a black billfold, both found near Bennett's body on the bed, and a white billfold found on a dresser next to the bed. At a hearing on Duncan's motion, Duncan offered into evidence a partial transcript from his trial and photographs depicting the location of the billfolds at the crime scene. The excerpts from trial showed that the State's case was based on the theory that Duncan killed Bennett during a robbery. The district court granted Duncan's motion for DNA testing.

Motion for New Trial.

After obtaining the results of the DNA testing, Duncan filed a motion pursuant to Neb. Rev. Stat. § 29-4123(2), requesting a hearing and order finding that the results exonerated him. In the alternative, he moved for a new trial pursuant to Neb. Rev. Stat. § 29-2101(6) (Reissue 2016), and submitted a supporting affidavit. It is the motion for new trial that is at issue in this appeal.

At a hearing on the motions, Duncan offered into evidence the deposition and report of Mellissa Helligso, the forensic DNA analyst who performed the ordered testing, and a volume of the bill of exceptions from his 2008 postconviction proceedings, with exhibits that included trial proceedings. Upon the State's request, the district court took judicial notice of the entire bill of exceptions and court files.

Helligso's deposition and report reflected that only the red and black billfolds produced partial DNA profiles capable of comparison analysis; the white billfold did not yield enough DNA to make any scientific findings. Helligso analyzed DNA samples from the red and black billfolds using "STRmix," a probabilistic genotyping program that generates "likelihood ratios." The parties stipulated that STRmix was a valid scientific test. Helligso determined that each billfold contained a mixture of two individuals and calculated the likelihood that the profile matched (1) Duncan and one unknown individual versus two unknown individuals and (2) Bennett and one unknown individual versus two unknown individuals.

For the red billfold, Helligso testified that the amount of DNA found was "very low," which typically would result in less informative statistics associated with that profile. Helligso concluded that it was at least 16 times more likely the profile from the red billfold originated from two unknown individuals than from Duncan and one unknown individual and that it was at least 1,400 times more likely the profile originated from two unknown individuals than from Bennett and one unknown individual. Helligso explained that neither ratio supported a conclusion that Duncan or Bennett was a contributor. However, she testified that STRmix could exclude a person as a contributor and confirmed that neither Bennett nor Duncan could be excluded as a contributor to the DNA on the red billfold.

As to the black billfold, Helligso's results showed that it was...