State v. Myers

304 Neb. 789

937 N.W.2d 181

STATE of Nebraska, appellee,

v.James E. MYERS, appellant.

No. S-19-345.

Supreme Court of Nebraska.

Filed January 10, 2020

James E. Myers, pro se.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein, for appellee.

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

Funke, J. James E. Myers 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. Myers argues the district court erred in denying his motion by determining that the requested testing would not produce noncumulative exculpatory evidence, denying his request for counsel, and determining that the State did not withhold evidence. This appeal follows our decisions on direct appeal² and after remand on an initial denial of Myers’ motion for DNA testing.³ For the reasons set forth herein, we affirm.

BACKGROUND

Myers was convicted of first degree murder, use of a deadly weapon in the commission of a felony, and possession of a deadly weapon by a felon in connection with the 1995 shooting death of Lynette Mainelli. The State’s factual allegations asserted that Myers was worried Mainelli was talking to the police about another person, so he killed Mainelli. After a trial and guilty verdicts, Myers’ convictions were affirmed on direct appeal.⁴ In Myers’ direct appeal, we rejected his claim of insufficient evidence and summarized the evidence presented at trial, in relevant part:

Edward Wilson testified that he was in the van driven by Myers the night Mainelli was killed. Myers drove to the Blue Lake Manor Apartments, where Mainelli lived. Myers got out of the van, and ... Wilson saw that he had on gloves. Myers went to the back of the van, and ... Wilson heard a "clacking" noise, which he recognized as the sound of a bullet moving into a chamber. Myers then left the van and walked toward the apartment complex. He was gone for about 1 hour, and upon his return, he got in the van and took the passengers home [including Wilson and Sam Edwards].

... Edwards testified that as Myers dropped him off, Myers gave him a handgun and told him to "put it up" because the police were out and Myers had in-transit stickers on the van. Earlier, Edwards had seen the pistol on Myers’ lap. Edwards subsequently retrieved the pistol and gave it to ... Wilson, who stated the pistol had once belonged to his sister [and] testified that he recognized the gun because it had a unique color and a name written on it and that he thought the black handle was unusual.... Wilson sold the pistol because he suspected that it had been used in the murder of Mainelli. The pistol was the same caliber as two .22-caliber casings found beside Mainelli’s body. Daniel Bredow, a firearm toolmarks examiner with the city of Omaha, testified that he compared the bullets found at the crime scene with bullets fired from the gun Myers gave Edwards. Bredow concluded that the bullets taken from the crime scene had been fired by the gun which could be traced to Myers.

[Timothy Sanders, who was in the same gang as Myers,] testified that in the summer and early fall of 1995, Myers had said that Mainelli was going to testify against Charles Duncan, so she needed to have "her cap pulled back and to be shot." Sanders saw Myers with a small .22-caliber handgun in the summer of 1995.... [Wilson’s sister] testified that in December 1996, after Mainelli’s death, Myers had told her to tell the police he was with her at the time of the killing.⁵

In review of the trial record, the State also presented evidence about Myers’ plan to be intimate with Mainelli in connection with the shooting.⁶ Timothy Sanders testified that Myers told him Mainelli needed to be shot and that Myers said he was going to have sex with Mainelli.⁷ After Mainelli’s death, Sanders testified that Myers told him that Mainelli walked into her bedroom, took off her clothes, and lay on the bed and that Myers shot her once the lights were out.⁸ Specifically, in response to questions by the prosecution, Sanders had explained:

A. ... [H]e told me he was going to have sex with her. He was gonna kick with her, something of that nature, yeah.

....

Q. After the death of ... Mainelli —

....

... did you have a conversation with ... Myers concerning the events of that night, the night of her death?

A. Yeah.

Q. What did he tell you?

A. Just that he knocked on the door. She let him in. I guess they acted like — he acted like he was about to have sex with her or something. And once the lights [were] out, he shot her.

The State referenced this exchange in its opening statements and explained:

Myers told ... Sanders that he killed ... Mainelli; and, more particularly, he told [him] how. He told him that he had shot her; that he talked to her. He convinced her to have sex with him; and that when she had laid down in the bed, he got next to her and shot her in the temple, and she was still moving so he shot her in the temple again.

In closing arguments, the prosecutor summarized: "She took off her clothes; she laid on the bed. He put the gun towards her temple and he shot her."

In 2016, Myers filed his motion for "DNA testing of items of evidence that may contain biological material" pursuant to the DNA Testing Act. Myers listed items of evidence taken from the crime scene, including Mainelli’s bedding, bullets, spent .22-caliber casings, beverage containers, clothing, spiral notebooks, cigarette butts and ashtray contents, a gunshot residue test kit from Mainelli’s hands, vials of Mainelli’s blood, a sexual assault kit, and hair samples. Myers sought to have these items tested in order to exclude himself as a donor of any biological material. Myers asserted that if the testing revealed the presence of other males and failed to confirm his presence, he would be proved innocent. Myers additionally claimed the State withheld findings of biological evidence from him and asked for the appointment of counsel.

The State filed an inventory of evidence confirming the items Myers wished to have tested were in the State’s possession.

Following a hearing, the district court denied Myers’ motion. The court found DNA testing was not warranted under § 29-4120(5) because the results would not provide exculpatory evidence. However, the court comingled its analysis of whether to require testing under § 29-4120(5) with the more onerous standard for vacating and setting aside a judgment based upon test results under § 29-4123(2) and (3). Accordingly, on appeal, we remanded the issue to the district court for a determination of Myers’ motion based solely upon the requirements of § 29-4120(5), including whether DNA testing of the items requested may produce noncumulative exculpatory evidence which is favorable to Myers and material to the issue of his guilt.⁹ Because we remanded the issue of whether Myers’ motion for testing should be granted, we also remanded the issue of whether Myers made the requisite showing for the appointment of counsel.¹⁰ We also held that whether the prosecution improperly withheld evidence is not properly presented in a motion for DNA testing and that upon remand, the district court need not consider this argument further.¹¹

On remand, the court again denied Myers’ motion for DNA testing and determined that, applying only those grounds listed in § 29-4120(5), the results would not provide noncumulative exculpatory evidence. The court first addressed Myers’ allegation that testing of the items would fail to detect his DNA. Even if this allegation proved to be true, the court reasoned such a result would prove neither that Myers was not there nor that he did not commit the crimes of which he was convicted. Similarly, the court found Myers’ allegation that the DNA results would show other men had been in Mainelli’s apartment would not provide evidence that Myers was not there and did not commit the crimes. Regarding the sexual assault kit specifically, the court noted that the State’s arguments and the witnesses’ testimony did not allege Myers actually had sexual intercourse with Mainelli prior to murdering her and that thus, the absence of his DNA from the sexual assault kit would not exculpate him. Because the court overruled Myers’ motion for testing and found the testing would not provide noncumulative exculpatory evidence, the court also declined to appoint counsel.

ASSIGNMENTS OF ERROR

Myers assigns the district court erred by (1) overruling his motion for DNA testing and finding that testing would not produce noncumulative exculpatory evidence, (2) overruling his motion to appoint counsel, and (3) failing to determine the State withheld evidence.

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.¹² 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.¹³

Decisions regarding appointment of counsel under the DNA Testing Act are reviewed for an abuse of discretion.¹⁴

ANALYSIS

DENIAL OF MYERS’ MOTION FOR DNA TESTING

Nebraska’s DNA Testing Act is a limited remedy providing inmates an opportunity to obtain DNA testing in order to establish innocence after a conviction.¹⁵ Pursuant to the act, a person in custody takes the first step toward obtaining possible relief by filing a motion in the court that entered the judgment requesting forensic DNA testing of biological material.¹⁶ Section 29-4120(1) provides the parameters for such motion and states:

Notwithstanding any other provision of law, a person in custody pursuant to the judgment of a court may, at any time after conviction, file a motion, with or without supporting affidavits, in the court that entered the judgment requesting forensic DNA testing of any biological material that:

(a) Is related to the investigation or prosecution that resulted in such judgment;

(b) Is

...