Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/01/2019 08:11 AM CST




                                                        - 756 -
                                  Nebraska Supreme Court A dvance Sheets
                                          301 Nebraska R eports
                                                   STATE v. MYERS
                                                  Cite as 301 Neb. 756




                                        State of Nebraska, appellee, v.
                                          James E. Myers, appellant.
                                                    ___ N.W.2d ___

                                        Filed November 30, 2018.   No. S-18-239.

                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: J.
               Michael Coffey, Judge. Reversed and remanded for further
               proceedings.

                    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.

                    Cassel, J.
                                    INTRODUCTION
                 Nearly 20 years after a jury convicted James E. Myers of
               murder, he filed a motion for testing under the DNA Testing
                                     - 757 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                                STATE v. MYERS
                               Cite as 301 Neb. 756

Act.1 The district court denied that motion as well as Myers’
motion for the appointment of counsel. We would review these
denials for an abuse of discretion. But to do so, the court
below must have applied only the part of the legal framework
governing whether to grant testing. Because the district court
may have relied instead upon principles governing relief avail-
able after testing, we must reverse the order and remand the
cause for reconsideration of the motions under only the correct
portion of the governing framework.
                       BACKGROUND
                   Circumstances of Crimes
   The State charged Myers with first degree murder, use of
a deadly weapon in the commission of a felony, and posses-
sion of a deadly weapon by a felon in connection with the
1995 shooting death of Lynette Mainelli. A jury convicted
Myers of the charges, and we affirmed his convictions on
direct appeal.2
   The factual background relating to Myers’ convictions is
set forth in more detail in our opinion involving Myers’ direct
appeal.3 Our opinion stated in 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 Edward Wilson saw that
      he had on gloves. Myers went to the back of the van,
      and Edward 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 passen-
      gers home.

 1	
      See Neb. Rev. Stat. §§ 29-4116 to 29-4125 (Reissue 2016).
 2	
      See State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999).
 3	
      Id.
                                     - 758 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                                STATE v. MYERS
                               Cite as 301 Neb. 756

        Sam 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 pis-
     tol and gave it to Edward Wilson, who stated the pistol
     had once belonged to his sister, Edwina Wilson. Edward
     Wilson 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. Edward 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 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.
     Edwina Wilson 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.4
   Other information relevant to the instant appeal is derived
from the trial record. The State presented evidence about
Myers’ plan to be intimate with Mainelli. Timothy Sanders,
who was in the same gang as Myers, testified that Myers
said Mainelli needed to be shot and that Myers said he was
going to have sex with Mainelli. Sanders testified that after
Mainelli’s death, Myers told him that Mainelli walked into

 4	
      Id. at 312-13, 603 N.W.2d at 388-89.
                              - 759 -
           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                         STATE v. MYERS
                        Cite as 301 Neb. 756

her bedroom, took off her clothes, laid on the bed, and Myers
shot her once the lights were out. 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.”

                    Motion for DNA Testing
   In 2016, Myers filed a motion pursuant to the DNA Testing
Act seeking “DNA testing of items of evidence that may con-
tain biological material.” He listed 26 items of evidence taken
from the crime scene, and he wished to have those items tested
in order to exclude himself as a donor of any biological mate-
rial. The items included Mainelli’s bedding, bullets and spent
.22-caliber casings, beverage containers, clothing, spiral note-
books, cigarette butts and contents of ashtrays, gunshot residue
test kit from Mainelli’s hands, vials of Mainelli’s blood, a rape
kit, and hair samples.
   Myers sought a variety of different DNA tests. He wanted
testing of any hairs, blood, semen, saliva, or skin cells on vari-
ous items, asserting that if such DNA evidence excluded Myers
and was found to be of another male, “this would prove that
the story from the informant was false, and Myers is in fact
[i]nnocent.” Myers alleged there was “good cause to believe
biological evidence still exists and can be identified and pro-
filed with today’s DNA technology.” Myers asserted that if a
suspect touched his face or head while wearing gloves, the
skin cells could be transferred to other objects. Myers wanted
the spent .22-caliber casings tested, because “it has become
possible to obtain DNA profiles from few skin cells left by the
person who loaded a shell into a gun.” Myers also moved for
the appointment of counsel. In connection with a motion to
preserve evidence, Myers included a laboratory report showing
that a sexual assault examination of Mainelli was performed
and that a vaginal swab and vaginal smear slide from a sexual
assault kit revealed “[v]ery few spermatozoa.”
   Myers filed an affidavit in support of his motion for DNA
testing. He stated that DNA evidence was not available at the
                                    - 760 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                               STATE v. MYERS
                              Cite as 301 Neb. 756

time of his trial, that law enforcement withheld any findings of
biological evidence from him, and that testing all of the items
would exonerate him. Myers also stated that he was with his
girlfriend on the night of the murder and that testing all of the
items would prove that the State’s informant lied. He subse-
quently filed a supplemental amendment to his motion, seeking
DNA testing of the sexual assault kit.
   The State filed an inventory of evidence that had been
gathered in connection with the case. It showed that the items
Myers wished to have tested were in the State’s possession.
   The district court held a hearing. Myers asked the court to
consider his motion along with the supplemental amendment
and to take judicial notice of § 29-4120(5). He presented no
evidence. The State likewise presented no evidence, but it
requested that the court review the bill of exceptions from the
trial, along with Myers’ motion to determine whether DNA
testing was appropriate.
                   District Court’s Decision
   The district court denied Myers’ motion. It found that DNA
testing was not warranted under § 29-4120(5)(c), because the
results would not provide exculpatory evidence. The court
quoted extensively from a portion of State v. Buckman 5
(including portions of the Buckman opinion which relied on
State v. Bronson 6) where we discussed when a court may
vacate and set aside a judgment based on test results that
“exonerate or exculpate” an accused and “show a complete
lack of evidence to establish an essential element of the
crime charged.”
   The court explained that testing of the evidence would
not exonerate or exculpate Myers in light of the evidence at
trial, because “the absence of [Myers’] DNA from these items
would not establish [Myers’] innocence considering witnesses

 5	
      State v. Buckman, 267 Neb. 505, 517, 675 N.W.2d 372, 382 (2004).
 6	
      State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003).
                                    - 761 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                               STATE v. MYERS
                              Cite as 301 Neb. 756

testified he intentionally wore gloves that would prevent his
DNA from being left at the scene.” The court reasoned that
“the absence of [Myers’] DNA or the presence of another
person’s DNA at the scene on those items would not alone
be enough to exonerate [Myers] considering his motive for
the crime, inculpatory statements made and witness testimony
regarding his actions directly before and after the murder.”
Further, the court stated that testing of a sexual assault kit
would not exonerate or exculpate Myers, because the State
did not argue that Myers had sex with Mainelli on the night of
the murder. The court concluded that “regardless of whether
[Myers’] DNA was excluded or someone else’s DNA could
be found on this evidence, such DNA results would not ‘show
a complete lack of evidence to establish an essential element
of the crime charged’ when you consider the totality of the
evidence.”
   Myers timely appealed.

               ASSIGNMENTS OF ERROR
   Myers assigns that the district court erred in (1) refusing
to order DNA testing, (2) making findings of fact and con-
clusions of law without actual DNA results, (3) failing to
determine whether the State refused to allow him access to
DNA evidence, and (4) failing to appoint counsel to repre-
sent him.

                  STANDARD OF REVIEW
   [1,2] A motion for DNA testing is addressed to the discre-
tion of the trial court, and unless an abuse of discretion is
shown, the trial court’s determination will not be disturbed.7
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.8

 7	
      State v. Betancourt-Garcia, 299 Neb. 775, 910 N.W.2d 164 (2018).
 8	
      Id.
                                   - 762 -
               Nebraska Supreme Court A dvance Sheets
                       301 Nebraska R eports
                              STATE v. MYERS
                             Cite as 301 Neb. 756

 [3] Decisions regarding appointment of counsel under the
DNA Testing Act are reviewed for an abuse of discretion.9
                             ANALYSIS
                     Motion for DNA Testing
   In denying Myers’ motion for DNA testing, the district court
relied in large part on our decision in Buckman.10 We agree
that Buckman is instructive regarding the showing that must
be made at various stages. But it is also important to remem-
ber that both Buckman and the Bronson11 decision cited in
Buckman were appeals where DNA testing had been ordered
and focused on the relief sought and denied based upon the
test results.
   In Buckman, we first summarized the legal framework appli-
cable in determining whether to order testing. We said:
          The initial step toward obtaining relief under the DNA
      Testing Act is for a person in custody to file a motion
      requesting forensic DNA testing of biological material.
      . . . Forensic DNA testing is available for any biological
      material that is related to the investigation or prosecution
      that resulted in the judgment; is in the actual or construc-
      tive possession of the state, or others likely to safeguard
      the integrity of the biological material; and either was not
      previously subjected to DNA testing or can be retested
      with more accurate current techniques.12
We pause at this point to observe there is no dispute that Myers
met these criteria.
   If the above criteria are met and if the court further deter-
mines that the requirements of § 29-4120(5) have been met,
the court must order testing. Although our Buckman opinion

 9	
      State v. Phelps, 273 Neb. 36, 727 N.W.2d 224 (2007).
10	
      State v. Buckman, supra note 5.
11	
      State v. Bronson, supra note 6.
12	
      State v. Buckman, supra note 5, 267 Neb. at 514, 675 N.W.2d at 380
      (citation omitted).
                                     - 763 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                                STATE v. MYERS
                               Cite as 301 Neb. 756

used permissive “may order testing”13 language, we have sub-
sequently made clear—consistent with the statute’s use of the
phrase “shall order DNA testing”14—that the court is required
to order testing if the requirements of § 29-4120(5) are met.15
We recognize the Legislature has amended § 29-4120(5) since
the time of the Buckman decision, but the amendment is
not significant to the issue before us. For convenience, we
quote the current version, which was in effect at the time of
Myers’ motion:
      Upon consideration of affidavits or after a hearing, the
      court shall order DNA testing pursuant to a motion filed
      under subsection (1) of this section 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 rel-
      evant to the claim that the person was wrongfully con-
      victed or sentenced.16
   In Buckman, we elaborated on the last prong of § 29-4120(5)
and clarified that the threshold to satisfy it was rather low.
We stated:
      Exculpatory evidence is defined as evidence favorable
      to the person in custody and material to the issue of the
      guilt of the person in custody. . . . [T]his requirement is

13	
      Id. at 514, 675 N.W.2d at 380.
14	
      § 29-4120(5).
15	
      See, e.g., State v. Betancourt-Garcia, supra note 7; State v. Marrs, 295
      Neb. 399, 888 N.W.2d 721 (2016); State v. Young, 287 Neb. 749, 844
      N.W.2d 304 (2014); State v. McDonald, 269 Neb. 604, 694 N.W.2d 204
      (2005).
16	
      § 29-4120(5).
                                   - 764 -
               Nebraska Supreme Court A dvance Sheets
                       301 Nebraska R eports
                              STATE v. MYERS
                             Cite as 301 Neb. 756

     relatively undemanding for a movant seeking DNA test-
     ing and will generally preclude testing only where the
     evidence at issue would have no bearing on the guilt or
     culpability of the movant.17
  But a more rigorous standard applies after testing has been
ordered. In Buckman,18 we also set forth the procedure appli-
cable after a court orders DNA testing. We stated:
        Once DNA testing is conducted, and results are
     obtained, the question is whether the evidence obtained
     exonerates or exculpates the movant. Based on the test
     results, the movant may obtain relief in one of two
     ways, each of which requires a different quantum of
     proof. As previously noted, when the test results exon-
     erate or exculpate the movant, the court may “vacate
     and set aside the judgment and release the person from
     custody.” . . . However, if the court does not vacate and
     set aside the judgment, the movant may file a motion
     for new trial based upon “newly discovered exculpatory
     DNA or similar forensic testing obtained under the DNA
     Testing Act.”19
We summarized the proof necessary for each potential remedy:
     [T]he court may vacate and set aside the judgment in
     circumstances where the DNA testing results are either
     completely exonerative or highly exculpatory—when the
     results, when considered with the evidence of the case
     which resulted in the underlying judgment, show a com-
     plete lack of evidence to establish an essential element
     of the crime charged. . . . This requires a finding that
     guilt cannot be sustained because the evidence is doubt-
     ful in character and completely lacking in probative
     value. . . . [I]n other circumstances where the evidence

17	
      State v. Buckman, supra note 5, 267 Neb. at 515, 675 N.W.2d at 381
      (citation omitted).
18	
      State v. Buckman, supra note 5.
19	
      Id. at 515, 675 N.W.2d at 381 (citation omitted).
                                      - 765 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                                 STATE v. MYERS
                                Cite as 301 Neb. 756

      is merely exculpatory, the court may order a new trial if
      the newly discovered exculpatory DNA evidence is of
      such a nature that if it had been offered and admitted at
      the former trial, it probably would have produced a sub-
      stantially different result.20
   As Buckman demonstrates, the showing that must be made
to obtain DNA testing presents a relatively low threshold.
After testing, however, a much higher showing is required to
either set aside a judgment or require a new trial.
   Here, the district court was presented with the first step in
the framework—whether to require testing. It denied testing on
the basis that Myers failed to meet the “may produce noncumu-
lative, exculpatory evidence” requirement of § 29-4120(5)(c).
But in making its determination, the court discussed a more
onerous standard governing relief which might be available
after testing has been performed.
   The court’s order shows that it imported the legal standard
for determining whether to vacate or set aside a conviction.
It quoted, with emphasis, when a motion to vacate and set
aside the judgment under § 29-4123(2) may be granted. It also
quoted language from Buckman, highlighting that vacating
or setting aside a judgment was intended “to apply to those
cases in which DNA test results ‘conclusively establish the
guilt or innocence of a criminal defendant’”21 and would be
proper “only where the results of DNA testing either com-
pletely exonerated the movant or were highly exculpatory.”22
Finally, the court found that “regardless of whether [Myers’]
DNA was excluded or someone else’s DNA could be found
on this evidence, such DNA results would not ‘show a
complete lack of evidence to establish an essential element
of the crime charged’ when you consider the totality of
the evidence.”

20	
      Id. at 518, 675 N.W.2d at 383 (citations omitted).
21	
      Id. at 516, 675 N.W.2d at 382.
22	
      Id. at 516-17, 675 N.W.2d at 382.
                                - 766 -
               Nebraska Supreme Court A dvance Sheets
                       301 Nebraska R eports
                           STATE v. MYERS
                          Cite as 301 Neb. 756

   On appeal, we are tasked with determining whether the dis-
trict court abused its discretion in denying Myers’ motion for
DNA testing. But we cannot do so, because the court mingled
standards applicable to § 29-4123(2) and (3) into its analysis
under § 29-4120(5). Where it should have addressed only the
first part of the statutory framework, its decision can be read
to instead delve into the questions that apply in the latter part
of the framework. Here, the question before the court was
whether to allow testing.
   Because the court’s order fails to make clear that its
denial of DNA testing was based solely on § 29-4120(5), we
must remand the cause to the district court for a determina-
tion under that section, based upon the existing record. On
remand, the court shall determine whether the requirements of
§ 29-4120(5) have been met, including whether DNA testing
of the items requested may produce noncumulative evidence
which is favorable to Myers and material to the issue of
his guilt.

                   A ppointment of Counsel
   Myers also assigns error to the district court’s denial of his
motion for the appointment of counsel. A court shall appoint
counsel for an indigent person upon a showing that DNA test-
ing may be relevant to the person’s claim of wrongful con-
viction.23 Because we are remanding the cause to the district
court to consider whether Myers’ motion for DNA testing
should be granted under the proper standard, we also remand
the cause for a determination as to whether he made the requi-
site showing to require the appointment of counsel.

                Access to Biological M aterial
   Myers also contends that the Omaha Police Department
did not disclose to the defense that it secured a sexual assault
examination kit and collected a vaginal vault sample from the

23	
      § 29-4122.
                                      - 767 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                                 STATE v. MYERS
                                Cite as 301 Neb. 756

victim. He argues that such action violated his right to due
proc­ess and equal protection of law. This is not part of the
DNA Testing Act framework.
   The DNA Testing Act is a limited remedy providing inmates
an opportunity to obtain DNA testing in order to establish inno-
cence after a conviction.24 We have previously stated, although
in dicta, that a constitutional challenge to the destruction of
evidence is outside the purview of the DNA Testing Act.25
We conclude that whether the prosecution improperly with-
held evidence is not properly presented in a motion for DNA
testing. Upon remand, the district court need not consider this
argument further.
                         CONCLUSION
   Because the district court applied principles governing relief
which might be available after testing when it should have
limited its consideration to whether it was required to order
testing, we must reverse the order and remand the cause for
reconsideration of the motions under the correct portion of
the governing framework. We likewise reverse the denial of
counsel and remand the cause for a determination as to whether
Myers made the requisite showing to be entitled to the appoint-
ment of counsel.
	R eversed and remanded for
	                                 further proceedings.
   Freudenberg, J., not participating.

24	
      State v. Betancourt-Garcia, supra note 7.
25	
      See id.
