State v. Ellis

311 Neb. 862

975 N.W.2d 530

STATE of Nebraska, appellee,

v.Roy L. ELLIS, appellant.

No. S-21-595.

Supreme Court of Nebraska.

Filed June 24, 2022

James J. Regan, Omaha, for appellant.

Douglas J. Peterson, Attorney General, and James D. Smith, Senior Assistant Attorney General, for appellee.

Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Doyle and Dobrovolny, District Judges.

Papik, J. Roy L. Ellis, who has been sentenced to death for first degree murder, appeals the order that denied him postconviction relief following an evidentiary hearing. He claims that his trial attorneys were ineffective in challenging the admissibility and weight of DNA evidence presented at his jury trial. His arguments focus on the probability statistic provided with that evidence. Unpersuaded, we affirm.

BACKGROUND

Trial and Sentence.

In 2005, 12-year-old Amber Harris disappeared after exiting her schoolbus. Harris’ bookbag was later found in a trash bin behind a boarding house where Ellis had lived before Harris’ disappearance. Among other objects linked to Harris, the bookbag contained Harris’ jeans, which had Harris’ blood on them. DNA in a shape resembling a handprint was later detected on the jeans, in a mixture from which Ellis could not be excluded as a contributor. Months after Harris disappeared, her decomposed and partially clothed body was discovered in a secluded area. Harris had died from blunt force trauma to the head. In the months before the DNA evidence and Harris’ body were found, Ellis had made a variety of incriminating statements to several individuals. Ellis was charged with first degree murder on theories of both premeditated murder and felony murder, for which the predicate felony was sexual assault.

Ellis was represented by appointed counsel, William Patrick Dunn and Jerry M. Hug. Prior to trial, Dunn filed a motion in limine in an attempt to exclude the DNA evidence gleaned from Harris’ jeans. The motion generally challenged the theory of PCR-STR DNA testing that was applied in this case, based on the framework in Schafersman v. Agland Coop , 262 Neb. 215, 631 N.W.2d 862 (2001), and Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). At a hearing on the motion, the State, which had the burden of proof, presented the testimony of two DNA experts who were involved in processing and analyzing the DNA sample in Ellis’ case, Kaye Shepard and Dr. James Wisecarver. Defense counsel's cross-examination addressed whether the DNA laboratory was properly accredited and whether accepted procedures were properly followed. Defense counsel did not present any evidence. The district court overruled the motion in limine.

The DNA evidence was presented at Ellis’ jury trial over his general foundational objection. We recounted that evidence in our opinion on direct appeal:

The State's witness, ... Wisecarver, explained generally that the testing process used in this case involved looking at 16 different genetic markers scattered throughout the genome at different loci. One of those is a sex marker that identifies the gender of the contributor; the other 15 are used to compare to known reference samples (in this case, for [Harris] and Ellis) to see if they are the same or different.

The DNA found on [Harris’] jeans was a mixture of DNA from at least two people, one of whom was male. Wisecarver explained that it was not possible to separate the mixture into a major and minor contributor at each locus. Instead, he said, the presence of the mixture was taken into account when calculating the likelihood that any other person would have any combination of the genetic markers that had been identified. Wisecarver explained that the purpose of the statistical calculations was to determine the likelihood that "we're going to find somebody, anybody, that could have any of these markers in any combination." In other words, Wisecarver said, when testing a mixture, "[w]e make no inferences as to who matches up with whom in there. We just want to say in all the populations how many people would we have to screen in order to find somebody, anybody, that would fit in here in any combination of those."

Given that [Harris’] genetic profile was known, Wisecarver testified that only 1 in 2.3 billion people would be expected to "plug in" as the other contributor to the mixture. And despite those odds, Ellis could not be excluded as a contributor to the mixture.

On cross-examination, Wisecarver was asked about what happened when two samples had common alleles—in other words, when the two possible contributors to the mixture were genetically identical at a tested locus. Wisecarver conceded that when such a common genetic marker was found at a locus, in this case, it was not possible to tell who had contributed the allele. But, Wisecarver said, it was still scientifically appropriate to consider such a locus when making statistical calculations.

State v. Ellis , 281 Neb. 571, 585, 799 N.W.2d 267, 284-85 (2011).

On redirect, Wisecarver further explained the "uniqueness or rareness" of the probability statistic linking Ellis to the crime:

[T]he population of the planet Earth is known to be approximately 6.6 billion people. So based on that, the odds that — the likelihood we would find — if we look at the population of the planet Earth, we would maybe find two other people in addition to [Harris] and ... Ellis who could have contributed to this mixture based on our known frequencies.

Ellis’ counsel did not object.

Shepard also testified for the State. She explained on cross-examination by Ellis’ counsel that the statistical analysis garnered from DNA testing was a tool for attorneys and jurors to determine how important the results were. She acknowledged that her laboratory had generated statistics that were "bigger" than the 1 in 2.3 billion generated in this case. When Ellis’ counsel posited to her that it was "not a staggering number ... given the work you do," Shepard replied, "It's a pretty large number to me."

In addition to the DNA evidence, the State presented evidence of the incriminating statements Ellis made while incarcerated on unrelated charges and before the DNA evidence and Harris’ body were discovered. He repeatedly asked former neighbors about any activity at the boarding house, but after Harris’ possessions were found, these inquiries stopped, though Ellis’ communication with the neighbors did not. A corrections officer reported that Ellis asked him for information about Harris’ case and books on forensics and DNA examination and that Ellis asked questions about fingerprint identification, decomposition of buried bodies, and contamination of blood and semen left outside. Ellis asked another corrections officer how long semen would last inside a dead body in a rural forested area and asked the corrections officer to do internet research on the subject. Ellis posed similar questions about semen and decomposition to other inmates. An inmate heard Ellis say that he had previously taken women to the area where Harris’ body was ultimately found and sexually assaulted them, hitting them on the head if they did not comply. Ellis told another inmate that he had sexually molested underage girls, some of them in the same area. The same inmate said that Ellis expressed an unusual interest in Harris’ case and cut out newspaper articles about it. Ellis told yet another inmate that he had sexually assaulted and strangled a young girl. When one inmate remarked that it was "crazy what happened to that Amber Harris girl," Ellis said, "that's why I got to get out and cover my tracks." Two inmates said Ellis admitted to sexually assaulting Harris and striking her in the head; according to one of those inmates, Ellis said he hit Harris in the head with a hammer.

The State also presented other circumstantial evidence and evidence that Ellis had sexually assaulted his former stepdaughters when they were between 12 and 15 years old.

The jury found Ellis guilty of first degree murder, and he was sentenced to death.

Direct Appeal.

Represented by the same counsel, Ellis appealed his conviction and sentence, and we affirmed. See State v. Ellis, supra . Relevant here, we concluded that the district court did not err in admitting the DNA evidence over Ellis’ motion in limine:

Ellis does not contend that the State's witnesses were not qualified to testify, or that their basic reasoning and methodology was not reliable. Rather, Ellis contends that under our Daubert /Schafersman framework, that methodology was not properly applied in this case....

Ellis’ appellate argument is focused on the use of common alleles in the State's statistical analysis. Ellis contends that the "overriding issue" with that method is that "where there is uncertainty as to the contributor, as long as the suspect is ‘fully represented’ ... then that location counts against the suspect in calculating the possibility of exclusion." This, according to Ellis, "is fundamentally unduly prejudicial and should not have been allowed."

Ellis cites no authority that is specifically relevant to the issue he raises, nor is it clear that he raised that issue in the trial court. It was not addressed in his pretrial motion, which was addressed generally at the theory of PCR-STR DNA testing that was applied in this case. Nor did he raise it at trial beyond a general foundational objection, which is insufficient to preserve a Daubert /Schafersman issue.... Ellis’ pretrial motion should have identified what is believed to be lacking with respect to the validity and reliability of the evidence and any challenge to the relevance of the evidence to the issues of the case. But the issue now raised by Ellis was not identified then.

Furthermore, Ellis’ argument rests upon a misunderstanding of the way in which the DNA statistics were calculated. As Wisecarver explained, the purpose of examining each locus is to determine two things: (1) whether the contributor of the

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