State v. Jacob

309 Neb. 401

960 N.W.2d 327

STATE of Nebraska, appellee,

v.Steven JACOB, appellant.

No. S-20-584.

Supreme Court of Nebraska.

Filed June 4, 2021

Steven Jacob, pro se.

Douglas J. Peterson, Attorney General, and Austin N. Relph, Lincoln, for appellee.

Miller-Lerman, Cassel, Funke, and Papik, JJ.

Funke, J. Steven Jacob appeals the district court's denial of his motion for testing under Nebraska's DNA Testing Act¹ and his motion for the appointment of counsel. Jacob argues the district court erred in denying his motion by determining the requested testing would not exonerate Jacob nor would it prove that he was not the shooter. We affirm.

BACKGROUND

Jacob was convicted of murder in both the first and second degrees and of using a firearm to commit those crimes in connection with the 1989 shooting deaths of Melody Hopper and James Etherton.² In 1988, Jacob was dating Hopper. However, after the relationship deteriorated, Hopper began dating Etherton and moved into Etherton's house. On August 1, 1989, Hopper advised her work supervisor that before leaving her house that morning, Hopper heard the door handle rattle and the doorbell ring. When Hopper opened the door, Jacob entered the house uninvited and stated that he wanted to talk about getting back together. When Hopper told Jacob that she was not interested, Jacob told her that he at least wanted to talk and that if she would not do that, he might do something drastic. Hopper had to physically shove Jacob out of the house to get him to leave.

John Ingram was a coworker of Etherton and rented a basement bedroom from him. On August 2, 1989, at approximately 3:45 a.m., Ingram woke up to use the bathroom. As he walked out of his bedroom, he saw glass on the floor by the back door and heard the floor above him creak. He realized someone was in the house, so he retrieved his .22-caliber pistol. When he returned to the basement stairway, he heard three gunshots, a woman scream twice, then three or four more gunshots. After the last gunshot, Ingram heard a shell casing roll around upstairs and a thump on the floor above him. Fearing someone had been shot, Ingram ran out the back door and down the block. He went to a house he believed was owned by a fire marshal. When the door was answered, Ingram stated that someone had been shot and "they had emptied a clip on them."

At approximately 4 a.m., two officers arrived at Etherton's house. They discovered that the back, basement screen door had been propped open with a rock and that the glass on the inner door was broken. One of the officers also observed a storm window on the ground that had been removed, which was later found to contain Jacob's fingerprints. In a hallway near the upstairs bedroom, the officers found Etherton's body with three gunshot wounds in it. The officers then heard a faint cry from the bedroom, where they found Hopper suffering from two gunshot wounds. Hopper died several days later.

Upon further investigation, the officers found six shell casings and one live round in the house. All casings were from fired 9-mm bullets and fired from the same weapon. The live round was also a 9-mm cartridge. Jacob's father testified that Jacob owned a 9-mm pistol. Additionally, Jacob testified that he had owned a 9-mm Llama pistol. However, the pistol was never recovered. A four-page letter written by Jacob to Etherton was also found in the bedroom. Jacob testified that the letter, dated July 9, 1989, was written to explain a comment he made about Etherton's being responsible for Hopper. Jacob ended the letter by stating that he hoped Etherton would "be happy and more successful [with Hopper] than [he had] been."

At trial, Ingram testified that while waiting for police, he saw a light-colored car drive by. He described the driver as having a receding hairline, glasses, a mustache, and dark hair. When he saw a picture of Jacob on the news the next day, he recognized Jacob as the driver of the car and identified him to the police the following day.

Jacob claimed that he left for a vacation on August 1, 1989, and drove to Minnesota, South Dakota, North Dakota, and then to Canada. Evidence showed that on August 9, Jacob bought a plane ticket from Canada to England. However, due to various unforeseen events, Jacob ended up in Maine and bought a plane ticket to Boston. Jacob was arrested on August 10 in Maine, when he attempted to sell his van at a used-car dealership.

Jake Faulkerson, who shared a cellblock with Jacob for a brief time in September 1989, testified that Jacob told him that he "was not going to end up doing a minute on his time ... because he didn't leave any witnesses." Jacob also allegedly told Faulkerson, "I shot him first so the bitch could see what she had coming."

Jacob was convicted for the double homicide. However, on appeal, this court determined that the district court erroneously admitted into evidence statements Hopper made in the hospital declaring Jacob to be her assailant, and it reversed, and remanded for a new trial.³ Upon retrial, Jacob was convicted for the double homicide and sentenced to two terms of life imprisonment and two terms of not less than 6 years 8 months nor more than 20 years’ imprisonment, all to be served consecutively. On appeal, Jacob's convictions and sentences were affirmed by this court.

MOTION FOR DNA TESTING

In 2019, Jacob filed a motion for DNA testing on two types of evidence found at the crime scene: (1) the six shell casings and one unfired cartridge and (2) potential biological evidence recovered from the living room. In 1989, four "slugs" were sent for DNA testing. There was no blood detected on the slug found in the hallway next to Etherton's body. Additionally, although there was blood present on three other slugs found on the bed, under the bed, and behind the headboard, there were insufficient amounts of blood on each slug for DNA testing. Jacob argued that with current methods of retrieving DNA from shell casings, the DNA on the slugs could "identify who took and loaded the firearm from [his] office" and is exculpatory because it "shows the Llama 9mm handgun used in the shooting was NOT in [his possession] at the time of and preceeding [sic] the shooting."

According to Jacob, it was Hopper alone, or Hopper and Etherton together, who took Jacob's gun and car that night. Jacob argues that although his gun could hold up to eight cartridges, he only kept four cartridges in the clip while it was "being stored for a long time." Therefore, Jacob contended, because the police found six spent cartridges and one unfired cartridge at the crime scene, whoever took the handgun would have had to load more cartridges into it. Thus, according to Jacob, that person's DNA could be present on the slugs found by the police.

A gauze sample from a " ‘spot in [the] living room’ " was also sent for DNA testing in 1989. However, no blood was found on the gauze. Referencing the testimony of Etherton's son, the testimony of Ingram, and the " ‘Nurse's Notes’ " from Hopper's stay in the hospital, Jacob developed a theory that the stain found on the living room carpet was present prior to the shooting. Jacob claimed Hopper and Etherton were having sexual intercourse while Hopper was menstruating, which would explain why Hopper's and Etherton's DNA would be on the floor. Jacob also argued Etherton was a "violently jealous man" who forced himself upon Hopper, giving Hopper a motive to shoot Etherton.

The district court entered an order requiring the State to take such steps as necessary to ensure the items were secure and to prepare an inventory confirming the items were in the State's possession. The State subsequently filed the inventory of evidence confirming the items Jacob wished to have tested were in the State's possession.

On October 17, 2019, Jacob filed a motion to be appointed counsel and to proceed in forma pauperis. The court deferred ruling on the motion for counsel, deciding that the motion was premature. Then, on October 24, the State filed a motion to deny DNA testing. In its motion, the State alleged that Jacob failed to meet his burden under § 29-4120(5)(c), because the requested DNA testing would only produce cumulative evidence that is irrelevant to the claim that Jacob was wrongfully convicted or sentenced. This was followed by an objection filed by Jacob on November 4.

In his objection, Jacob clarified his theory regarding what happened by asserting that after Hopper shot Etherton, Ingram took the gun from Hopper, shot Hopper, and then removed the gun from the house. Jacob further asserted it was Ingram who threw a rock through the window to make it look like a home invasion. On November 7, a hearing was held on the State's motion to deny DNA testing. At the hearing, counsel for the State referenced the bill of exceptions from Jacob's second murder trial:

Judge, I did have the original Bill of Exceptions from the second trial brought in. I just reference those and those are not part of the record, I realize that. But in particular, I also had brought in the portion of the Bill of Exceptions from the first trial dealing with the exhibits that ... Jacob wanted to have DNA tests run on; in particular, that would be the shell casings and the cartridge that was found. And the reason I brought that volume in, judge, and if I may, that is Volume VIII of the original trial of the first trial involving ... Jacob in this double homicide. And in that trial, they offered those items for the jury.

On March 11, 2020, the district court entered an order denying Jacob's motion for DNA testing and granting the State's motion to deny DNA testing. The court defined exculpatory evidence as "evidence favorable to the person in custody and material to the issue of the person's guilt" and cited our decision in State v. Buckman ,⁴ where we explained that "this requirement is relatively undemanding ... and will generally preclude testing only where the evidence at issue would have no bearing on the...