Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/28/2020 08:06 AM CST




                                                         - 711 -
                               Nebraska Supreme Court Advance Sheets
                                        304 Nebraska Reports
                                                 STATE v. ILDEFONSO
                                                  Cite as 304 Neb. 711




                                        State of Nebraska, appellee, v.
                                        Arlyn P. Ildefonso, appellant.
                                                     ___ N.W.2d ___

                                         Filed December 20, 2019.   No. S-19-060.

                 1. DNA Testing: Appeal and Error. 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.
                 2. ____: ____. 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.
                 3. ____: ____. Decisions regarding appointment of counsel under the DNA
                    Testing Act are reviewed for an abuse of discretion.

                 Appeal from the District Court for Douglas County: W.
               Russell Bowie III, Judge. Affirmed.
                    Arlyn P. Ildefonso, pro se.
                  Douglas J. Peterson, Attorney General, and Nathan A. Liss
               for appellee.
                 Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
               and Papik, JJ.
                    Cassel, J.
                                      INTRODUCTION
                  Arlyn P. Ildefonso appeals from the denial of his motions for
               DNA testing and appointment of counsel. Because Ildefonso
               failed to demonstrate that DNA testing may produce noncumu-
               lative, exculpatory evidence, the district court did not abuse its
               discretion by denying his motions. We affirm.
                             - 712 -
         Nebraska Supreme Court Advance Sheets
                  304 Nebraska Reports
                      STATE v. ILDEFONSO
                       Cite as 304 Neb. 711

                        BACKGROUND
                   Circumstances of Crimes
   On September 13, 1999, Carr Hume’s body was found
lying partially on a sidewalk and partially on a curb in front
of a house in the area of 42d and Bancroft Streets in Omaha,
Nebraska. Blood spatter evidence indicated that he had been
shot at that location. Hume died from a single gunshot wound
to the head. No shell casings were found at the scene. Items
located at the scene included a baseball hat, assumed to belong
to Hume; a piece of possible human tissue near a curb across
from Hume’s body; and a syringe in the street.
   Christina Devore-Alexander testified that she was with
Ildefonso and Kristine Reh late in the evening on September
12, 1999, and into the early morning hours of September 13.
They left an apartment around 3 a.m., with Devore-Alexander
driving and Ildefonso giving directions. According to Devore-
Alexander, while she was driving, Ildefonso was “very upset”
and said the only thing that would make him feel better
was “if he shot somebody.” Near 42d and Bancroft Streets,
Devore-Alexander stopped the car and Ildefonso got out. As
Devore-Alexander was talking to Reh, she heard a gunshot
and looked up. She saw Ildefonso’s extended arm holding a
gun and Hume lying on his back on the ground. Reh testi-
fied that once the car stopped on 42d Street, Ildefonso got
out, Reh heard a gunshot, and then Ildefonso got back in
the car. As the vehicle drove away, Reh saw a man lying on
the sidewalk.
   On approximately September 24, 1999, Mark Anderson
told police that he had been with the individuals respon-
sible for the shooting. At that time, Anderson was in police
custody due to his suspected involvement in an automobile
theft. Based on information from Anderson, police identi-
fied Randall Fields and Shannon Smith as possible suspects.
Anderson told officers that Fields shoved Hume, produced a
handgun, and fired two times, striking Hume with the second
                             - 713 -
         Nebraska Supreme Court Advance Sheets
                  304 Nebraska Reports
                      STATE v. ILDEFONSO
                       Cite as 304 Neb. 711

shot. Police arrested Fields and Smith and brought them
into custody.
   As an officer was preparing to interview Fields, the officer
received a call from Amy Taylor, who said that she knew who
the shooter was and that the wrong people had been arrested.
The officer testified that Taylor told him Ildefonso used a
.357-caliber revolver during the shooting and that he was with
Devore-Alexander and Reh. The officer asked Taylor to obtain
some of the bullets for the gun.
   Taylor testified that she called the police after seeing on
television that the wrong people had been arrested for Hume’s
murder. Taylor had been staying with Ildefonso in a motel. She
testified that Ildefonso told her that he shot Hume “[b]ecause
he was mad and he wanted the world to feel his pain.” She had
seen Ildefonso with several firearms, including a .357-caliber
revolver. At the request of the police, Taylor obtained shells
from the .357-caliber revolver from Ildefonso’s backpack and
gave them to the motel clerk for the police to retrieve. Taylor
testified that it was “possible” Fields—whom she last saw 4
years earlier—was the father of one of her children.
   After speaking with Devore-Alexander, Reh, and Taylor,
officers reinterviewed Anderson. Anderson said that he used
news accounts of the murder to concoct the story against Fields
and Smith for revenge. An officer testified that in retrospect,
parts of Anderson’s original stories to the police were not con-
sistent with what the officers learned. After Anderson recanted,
he was charged with a crime for delaying the actual suspect
from being apprehended.
   On October 1, 1999, police took steps to obtain a warrant to
search Ildefonso, a vehicle, and a motel room. While surveil-
ling the motel, an officer saw Ildefonso and Taylor leave the
motel in a vehicle. Officers subsequently stopped the vehicle.
Taylor testified that when pulled over by the police, Ildefonso
removed the .357-caliber revolver from his waistband and put
it under the front passenger’s seat of the vehicle. Police col-
lected the revolver as evidence.
                                   - 714 -
            Nebraska Supreme Court Advance Sheets
                     304 Nebraska Reports
                           STATE v. ILDEFONSO
                            Cite as 304 Neb. 711

   During an autopsy of Hume, a doctor recovered a bullet and
bullet fragments from the right side of the base of the skull.
An expert testified that the bullet taken from Hume’s head
was fired from the .357-caliber revolver recovered from under
the front passenger’s seat of the vehicle in which Ildefonso
was seated.
   A jury convicted Ildefonso of murder in the first degree and
use of a deadly weapon to commit a felony. We affirmed his
convictions on direct appeal.1

                  Motion for DNA Testing
   In 2018, Ildefonso filed a motion for DNA testing. He
identified 12 items/groups of items, including clothing col-
lected from Hume, the hat, the possible piece of human
tissue, the syringe, blood swabs, forensic evidence from a
Mitsubishi automobile, personal clothing from other indi-
viduals (Anderson, Fields, and Smith), bullets or shell cas-
ings, firearms, other live or spent ammunition collected from
Ildefonso, and Ildefonso’s backpack. Ildefonso then set forth
claims of actual innocence, wrongful conviction, and viola-
tions of his constitutional rights. He theorizes that Taylor set
him up to “free her child[’]s father,” and his motion points
to alleged inconsistencies in the testimonies of various trial
witnesses. As relevant to DNA testing, Ildefonso lists a series
of questions:
      Was the hat found near . . . Hume ever tested for DNA?
      Does the hat belong to Fields, Smith, Anderson or some
      other perp[e]trator who was with Anderson that night?
      Was the syringe and “tissue like substance” tested for
      DNA? Who do they belong to? Anderson said that Fields
      shoved . . . Hume prior to shooting him. Were . . .
      Hume’s clothes tested for DNA to see if there is anyone
      else’s DNA on them? Was the stolen Mitsubishi car that
      Anderson said was used during this crime, ever processed

1
    See State v. Ildefonso, 262 Neb. 672, 634 N.W.2d 252 (2001).
                             - 715 -
         Nebraska Supreme Court Advance Sheets
                  304 Nebraska Reports
                      STATE v. ILDEFONSO
                       Cite as 304 Neb. 711

      for forensic evidence? Was . . . Hume’s, Field’s, Smith’s,
      Anderson’s, or anyone else’s DNA located in there?
      Fingerprints, hair, blood, or anything? Was any search
      warrants done on Fields, Smith, or Anderson to look for
      the clothing that Anderson said that they were wearing
      that night? Was it found? Was . . . Hume[’]s DNA or
      blood on any of them?
In the motion, Ildefonso requested that counsel be appointed
to represent him. He subsequently filed a separate motion for
appointment of counsel.
   After the State filed an index of property, the court entered
an order concerning Ildefonso’s motion. The court recognized
that most of the motion and affidavit reasserted claims raised
in Ildefonso’s motion for postconviction relief and were irrel-
evant to issues of DNA testing. Because Ildefonso did not
indicate why testing of the various items may present exculpa-
tory evidence, the court allowed him time to file a supplemen-
tal affidavit.
   Ildefonso then filed a supplemental affidavit. He alleged
that Anderson was an eyewitness to and participant in Hume’s
death and that Anderson said a man shoved Hume before
shooting him. Thus, Ildefonso claimed that there might have
been a DNA transfer from the killer’s hands onto Hume’s
clothes. And because the hat located near Hume’s body was
not found conclusively to be Hume’s hat, Ildefonso posited
that the hat may belong to a person involved in the crime.
He believed DNA evidence left by the actual killer would be
located on the items.

                  District Court’s Decision
   The district court determined that Ildefonso failed to show
such testing may produce noncumulative, exculpatory evidence
relevant to the claim that he was wrongfully convicted. The
court noted that Ildefonso’s supplemental affidavit relied on
Anderson’s statements, even though Anderson admitted fab-
ricating his story. The court stated that Ildefonso “does not
                                   - 716 -
            Nebraska Supreme Court Advance Sheets
                     304 Nebraska Reports
                           STATE v. ILDEFONSO
                            Cite as 304 Neb. 711

indicate with any particularity, or truthful corroborating evi-
dence, why testing of those items may present any exculpatory
evidence relative to the claim that the defendant was wrong-
fully convicted—only hopeful conclusions.” The court denied
Ildefonso’s motion for appointment of counsel and motion for
DNA testing.
   Ildefonso filed a timely appeal.
                  ASSIGNMENT OF ERROR
   Ildefonso assigns that the district court erred when it failed
to follow the DNA Testing Act2 and order DNA testing on spe-
cific items and, thereafter, to follow the act’s protocol, includ-
ing the appointment of counsel, the conducting of a full fact-
finding hearing, and the making of a judicial decision based on
all information germane to the case.
                    STANDARD OF REVIEW
   [1,2] 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.3 An appel-
late court will uphold a trial court’s findings of fact related
to a motion for DNA testing unless such findings are clearly
erroneous.4
   [3] Decisions regarding appointment of counsel under the
DNA Testing Act are reviewed for an abuse of discretion.5
                         ANALYSIS
                      DNA Testing Act
   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

2
    Neb. Rev. Stat. §§ 29-4116 to 29-4125 (Reissue 2016).
3
    State v. Myers, 301 Neb. 756, 919 N.W.2d 893 (2018).
4
    Id.
5
    Id.
                                   - 717 -
             Nebraska Supreme Court Advance Sheets
                      304 Nebraska Reports
                            STATE v. ILDEFONSO
                             Cite as 304 Neb. 711

testing of biological material.6 The court has discretion to
either consider the motion on affidavits or hold a hearing.7
Under § 29-4120(5), the court shall order DNA testing upon a
determination that
      (a)(i) the biological material was not previously sub-
      jected to DNA testing or (ii) the biological material was
      tested previously, but current technology could provide
      a reasonable likelihood of more accurate and probative
      results, (b) the biological material has been retained under
      circumstances likely to safeguard the integrity of its
      original physical composition, and (c) such testing may
      produce noncumulative, exculpatory evidence relevant
      to the claim that the person was wrongfully convicted
      or sentenced.
Under the act, “exculpatory evidence means evidence which is
favorable to the person in custody and material to the issue of
the guilt of the person in custody.”8

                      Denial of Motion
                       for DNA Testing
   Part of the defendant’s burden of proof is to provide the
court with affidavits or evidence at a hearing establishing the
three required factual determinations under § 29-4120(5).9 We
have recognized that the showing needed to satisfy the require-
ment that DNA testing may produce noncumulative, exculpa-
tory evidence is “relatively undemanding . . . and will gener-
ally preclude testing only where the evidence at issue would
have no bearing on the guilt or culpability of the movant.”10
Although the threshold to obtain DNA testing is rather low, we

 6
     State v. Betancourt-Garcia, 299 Neb. 775, 910 N.W.2d 164 (2018).
 7
     Id.
 8
     § 29-4119.
 9
     See State v. Young, 287 Neb. 749, 844 N.W.2d 304 (2014).
10
     State v. Buckman, 267 Neb. 505, 515, 675 N.W.2d 372, 381 (2004).
                                   - 718 -
             Nebraska Supreme Court Advance Sheets
                      304 Nebraska Reports
                            STATE v. ILDEFONSO
                             Cite as 304 Neb. 711

agree with the district court that Ildefonso did not meet this
minimal threshold.
   A court is not required to order DNA testing if such testing
would not produce exculpatory evidence. In State v. Dean,11 we
reasoned that “even if [the prisoner] is correct and DNA test-
ing would not detect the presence of his DNA on the objects in
question, the result would be at best inconclusive, and certainly
not exculpatory.” The same is true here. Ildefonso asserts that
his DNA will not appear on any of the items. But the absence
of his DNA on some of the items would be consistent with the
evidence and would not be exculpatory, particularly in light
of the testimonies of Devore-Alexander, Reh, and Taylor and
Ildefonso’s possession of the murder weapon at the time of
his apprehension.
   Ildefonso essentially seeks DNA testing to corroborate
Anderson’s original story. Ildefonso maintains that he was
framed for the murder, and he argues that testing showing
the DNA of Anderson, Fields, or Smith would raise serious
doubts regarding the credibility of Devore-Alexander, Reh,
and Taylor. One problem for Ildefonso is that the State’s index
of property does not show that the State has actual or con-
structive possession of a DNA sample of Anderson, Fields,
or Smith with which to compare any testing results. Another
problem is that Anderson recanted his story—parts of which
police determined were not credible or were not consistent
with the evidence—and was charged with a crime for his false
report. An admittedly fabricated story does not provide a basis
for DNA testing.
   We find no error in the district court’s factual findings
that the evidence Ildefonso desired to have tested would
not produce exculpatory evidence. Thus, we find no abuse
of discretion by the court in denying Ildefonso’s motion for
DNA testing.

11
     State v. Dean, 270 Neb. 972, 976, 708 N.W.2d 640, 644 (2006).
                              - 719 -
             Nebraska Supreme Court Advance Sheets
                      304 Nebraska Reports
                       STATE v. ILDEFONSO
                        Cite as 304 Neb. 711

                   Appointment of Counsel
   A court shall appoint counsel for an indigent person upon
a showing that DNA testing may be relevant to the person’s
claim of wrongful conviction.12 Here, Ildefonso did not make
the requisite showing that DNA testing may be relevant to his
claim of wrongful conviction. Accordingly, the court did not
abuse its discretion in refusing Ildefonso’s request for appoint-
ment of counsel.

                        CONCLUSION
   Because Ildefonso did not meet his burden of showing that
DNA testing may produce noncumulative, exculpatory evi-
dence relevant to his claim that he was wrongfully convicted,
we conclude that the district court did not abuse its discretion
in denying Ildefonso’s motions for DNA testing and appoint-
ment of counsel.
                                                   Affirmed.
   Freudenberg, J., not participating.

12
     § 29-4122.
