State v. Hale

306 Neb. 725

947 N.W.2d 313

STATE of Nebraska, appellee,

v.Terrance J. HALE, appellant.

No. S-19-1109.

Supreme Court of Nebraska.

Filed August 7, 2020

Terrance J. Hale, pro se.

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

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

Heavican, C.J.

INTRODUCTION

Terrance J. Hale appeals the district court's denial of his postconviction motion for DNA testing under Nebraska's DNA Testing Act.¹ Hale asserts that the district court erred in denying his motion by concluding that DNA testing would not result in noncumulative, exculpatory evidence. We affirm.

FACTS

BACKGROUND

Hale was convicted by jury of first degree murder and sentenced to life imprisonment for killing Raymond Vasholz. Raymond died after inhaling smoke from a fire set in his house in Omaha, Nebraska. Raymond's wife, Elizabeth Vasholz, who was 76 years old at the time of the fire, testified that Hale had broken into the couple's house, demanded money, and assaulted both her and Raymond before starting the fire. In 2015, Hale's conviction was affirmed by this court on direct appeal in State v. Hale .² The following facts are taken from that opinion:

Elizabeth testified that on February 7, 2013, in the time " ‘leading up to 9 o'clock a.m.,’ " she was sitting in the living room with Raymond when she heard " ‘[b]reaking glass’ " that " ‘sounded like it was coming from the basement.’ "³ Elizabeth testified that a man wearing a coat, whom Elizabeth identified in court as Hale, came rushing up the basement stairs. Elizabeth testified that she recognized Hale because he had done yardwork for her, but she did not know him by name.

Elizabeth testified that after Hale came up the stairs, he demanded money. After replying that she had no money, Elizabeth said that Hale assaulted her and Raymond. Elizabeth reported striking Hale's back with a lamp as Hale was hitting Raymond. Elizabeth testified that Hale grabbed " ‘a paper’ " and lit it, using the gas stove.⁴ Elizabeth said that Hale threw the lit paper at her and then set a couch cushion on fire and came toward her, pushing the burning cushion against her arms.

Elizabeth testified that she escaped the house, grabbing a recycling bin to cover herself because Hale had torn off the pajama top she had been wearing. Elizabeth recalled knocking on her neighbor's door, but no one answered so she sat on her neighbor's porch and began screaming.

Elizabeth stated that Hale then came outside and " ‘threw his coat down.’ "⁵ Then another man arrived, and Elizabeth asked him for help. Elizabeth testified that she suffered a cracked vertebrae and burns on her back and both arms.

Gary Burns testified that he had been driving in his car at approximately 9 a.m. when he saw an elderly woman sitting outside. Burns said that the woman, who was " ‘real dingy and dirty’ " and looked like " ‘she had been beat up, basically,’ " had no shirt on and was covering herself with a recycling bin.⁶ The woman was yelling, " ‘ "Help, help, help." ’ "⁷

Burns also saw a man, whom he identified in court as Hale, about 15 feet away from the woman. Burns got out of his car and called the 911 emergency dispatch service to report an assault. As he approached the woman, Burns testified that she pointed at Hale and said, " ‘ "You did this, you did it." ’ "⁸ According to Burns, Hale threw up his arms and said, " ‘ "I didn't do this." ’ "⁹

Firefighters responded to an alarm for a house fire at 9:12 a.m. Smoke was escaping from the house when they arrived. Inside, they found " ‘pockets of fire’ " that they quickly extinguished.¹⁰ At that time, Elizabeth was seated on the neighbor's front porch with a coat draped over her shoulders. The firefighters located Raymond lying across a bed in one of the bedrooms. He was not breathing. Raymond was transported to a hospital, where he was pronounced dead later that afternoon.

Police officer Roger Oseka testified that when he and another officer reached the scene, he saw Elizabeth sitting on the front porch of a neighbor's house. Oseka also saw a black man, whom he identified in court as Hale, " ‘walking in circles’ " and saying, " ‘ "I was trying to save them." ’ "¹¹

Oseka exited his cruiser and approached Elizabeth, whom he said was bleeding from her nose and mouth and had " ‘burn sores’ " on both arms.¹² After Oseka made contact with Elizabeth, she pointed at Hale and said, " ‘ "He did it." ’ "¹³ Oseka then directed the other officer to arrest Hale.

A coroner's physician, who performed an autopsy on Raymond's body, opined that Raymond's death was caused by " ‘the complication of breathing smoke, soot, carbon monoxide, and the other hot gasses in the fire, [and] being burned by the fire.’ "¹⁴ The autopsy also showed numerous abrasions, lacerations, and bruises on Raymond's body.

A fire investigator examined the house and identified six different points of origin of the fire, each independent of the other. He also found a couch cushion with " ‘thermal damage.’ "¹⁵ He opined that the fire was set intentionally, based on the multiple points of origin and no indication that they would have naturally spread from one to another. He testified that his conclusions were consistent with Elizabeth's description of events.

Inside, the house showed signs of a violent struggle. Firefighters saw what appeared to be streaks of blood on a refrigerator in the kitchen. Photographs of the house showed apparent blood on the leg of an upturned table, a windowsill in the room where Raymond was found, an exterior door, and the wall leading to the basement. Apparent blood was also documented on the sleeve and lining of the coat and on the recycling bin. Additionally, a pane in a basement window was broken and the latch used to open the window was bent. A handprint was pressed into the dirt outside the window.

Photographs of Hale after his arrest show a small cut on his nose, a scratch on his right arm, a small cut on his right leg, and scrapes or lacerations on his back.

A forensic DNA analysis was performed on several items retrieved from the scene. Blood on the left chest area and left sleeve of the coat generated a genetic profile matching Elizabeth's. Hale's DNA profile was consistent with blood on the right sleeve of the coat. The probability of an unrelated African American individual matching the profile is 1 in 6.35 quintillion.

Hale did not testify, but the State played for the jury several recordings of his statements. In a statement to police, Hale said that he " ‘tried to save this lady.’ "¹⁶ Hale said that he was walking near the Vasholzes’ house when he saw smoke. Because the doors of the house were locked, Hale said that he kicked in a basement window and pulled Elizabeth from the house.

Four days after Raymond's death, Hale sat for an interview with local media. During the interview, Hale said that he was walking to a bus stop when he saw smoke rising from the Vasholzes’ house. Hale said that he opened a door and saw an older woman that he recognized as a neighbor. Hale pulled her out of the house and went back for her husband when somebody attacked him from behind. Hale said that he went to the basement, broke a window, climbed out, called 911, and waited for police to arrive. Hale said that he covered the woman with his coat, but she told him to get away. Hale claimed that the police caused the laceration to his nose when they took him into custody.

Hale was charged with one count of first degree murder under Neb. Rev. Stat. § 28-303(2) (Reissue 2008). The information alleged that Hale killed Raymond while committing, or attempting to commit, a robbery, burglary, or arson.

A jury convicted Hale, and the court sentenced him to life imprisonment.

MOTION FOR DNA TESTING

On March 29, 2019, Hale filed a motion for DNA testing pursuant to the DNA Testing Act. In his motion, Hale requested DNA testing of four swabs of apparent blood taken from the Vasholzes’ house and a buccal swab obtained from Eugene McMiller, an individual that had been observed in the area. The swabs of apparent blood were collected from (1) the east basement stairs wall, (2) a windowsill and window latch in the Vasholzes’ bedroom, and (3) the lowest concrete exterior step of the neighbor's porch where Elizabeth was found. Hale did not submit affidavits in support of his motion.

The State filed a response and an inventory of evidence showing that the requested swabs were located in a freezer at the Omaha Police Department, but the buccal swab obtained from McMiller had been destroyed in 2014.

On October 28, 2019, the district court entered an order denying Hale's motion for DNA testing after finding that the requested testing would not produce noncumulative, exculpatory evidence relevant to the claim that Hale was wrongfully convicted or sentenced. Citing this court's opinion in State v. Dean ,¹⁷ the district court concluded that even if Hale were excluded as being the contributor to the blood swabs on which he sought testing, he would not be exonerated because Elizabeth immediately identified Hale as the attacker, Hale stated that he had been inside the house attempting to assist the Vasholzes during the fire, Hale's DNA was found on a coat located at the scene, and Hale was observed to have scratches on his person.

ASSIGNMENT OF ERROR

Hale assigns that the district court erred in denying his motion for DNA testing.

STANDARD OF REVIEW

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.¹⁸ 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.¹⁹

ANALYSIS

The DNA Testing Act is a limited remedy providing inmates an opportunity to obtain DNA testing in order to establish innocence after a conviction.²⁰ Pursuant to the act, a person in custody takes the first step toward...