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                                  Nebraska Supreme Court A dvance Sheets
                                          295 Nebraska R eports
                                                   STATE v. MARRS
                                                  Cite as 295 Neb. 399




                                        State of Nebraska, appellee, v.
                                          James D. M arrs, appellant.
                                                    ___ N.W.2d ___

                                        Filed December 23, 2016.   No. S-16-192.

                1.	 Collateral Estoppel: Res Judicata: Appeal and Error. The availabil-
                    ity of issue preclusion or claim preclusion is a matter of law, although
                    any factual determinations in applying these doctrines are reviewed for
                    clear error.

                  Appeal from the District Court for Saunders County: M ary
               C. Gilbride, Judge. Affirmed.
                    James D. Marrs, pro se.
                 Douglas J. Peterson, Attorney General, and Kimberly A.
               Klein for appellee.
                  Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
               K elch, and Funke, JJ.
                    Wright, J.
                                     NATURE OF CASE
                  James D. Marrs was convicted of second degree murder, and
               his conviction and sentence were affirmed on direct appeal.
               This is an appeal from Marrs’ second motion for testing of
               biological materials. The State asserts that his motion is barred
               by principles of res judicata.
                                     BACKGROUND
                 Marrs was convicted, pursuant to a plea of guilty, to second
               degree murder in relation to the death of Sharron Erickson in
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                                STATE v. MARRS
                               Cite as 295 Neb. 399

June 2003. The State submitted as part of the factual basis
supporting Marrs’ guilty plea evidence that DNA matching
Marrs’ profile was found in the panties worn by Erickson the
night of her murder.
   A report from June 2004 by the University of Nebraska
Medical Center concluded that Marrs could not be excluded as
the source of DNA in the sperm cell fraction obtained from the
panties. The report set forth that the probability of an unrelated
individual matching the DNA profile obtained from the panties
was “1 in 433 × 1015 (quadrillion) for Caucasians, 1 in 10.9 ×
1018 (quintillion) for African Americans, and 1 in 11.4 × 1018
(quintillion) for American Hispanics.” We affirmed Marrs’ con-
viction on direct appeal.1
   In 2009, Marrs, represented by counsel, filed a motion under
the DNA Testing Act (the Act)2 for retesting of biological
material related to Marrs’ prosecution. These materials were
the victim’s panties worn the night she was killed, an anal
swab from the victim that DNA testing had shown was a single
source contributor matching Erickson’s profile, and Marrs’ oral
swab. Marrs alleged there were discrepancies between reports
by the University of Nebraska Medical Center and testing done
at the State Patrol crime laboratory.
   At the hearing on the 2009 motion, the only evidence sub-
mitted by Marrs’ counsel were the DNA reports from 2003 and
2004, prepared by the two laboratories. Marrs’ counsel did not
call any witnesses.
   At the hearing, the State adduced expert testimony explain-
ing that there were no inconsistencies between the various
laboratory testing reports submitted by Marrs in support of his
motion. The expert witnesses testified that there was no reason
to “cast any doubt” or question the accuracy of the prior DNA
testing results.

 1	
      State v. Marrs, 272 Neb. 573, 723 N.W.2d 499 (2006).
 2	
      Neb. Rev. Stat. §§ 29-4116 to 29-4125 (Reissue 2016).
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                         STATE v. MARRS
                        Cite as 295 Neb. 399

   In particular, the State’s expert witnesses testified there was
no reason to question the conclusion that biological material
found on Erickson’s panties matched Marrs’ DNA profile. The
expert witnesses also testified that there were no other untested
items likely to yield DNA profiles. The witnesses were not spe-
cifically asked to what extent, if any, DNA testing techniques
had advanced since the time of Marrs’ plea.
   In addition to adducing expert testimony relating to the
DNA reports, the State submitted the deposition testimony of
eight inmates who were incarcerated with Marrs. Each of the
inmates described that Marrs had admitted to killing Erickson.
   The district court overruled the 2009 motion for DNA test-
ing. The court found that Marrs had failed to demonstrate that
further DNA testing of the items collected would produce
noncumulative, exculpatory evidence relevant to the claims at
issue. The court further found that the record failed to reflect
that there was any newly available technology that would
produce noncumulative, exculpatory evidence relevant to the
claims at issue. Marrs’ appeal from that order was summarily
dismissed by the Nebraska Court of Appeals.
   In 2015, Marrs, acting pro se, filed another motion for DNA
testing under the Act, which motion is the subject of the cur-
rent appeal. Marrs asserted that further testing of the biological
material found in Erickson’s panties could lead to exculpa-
tory evidence, because the 2004 report stated only that Marrs
“could not be excluded” as the contributor. Marrs alleged
that the 2004 DNA report was the primary reason he chose
to plead guilty. Marrs also sought testing or retesting of the
other evidence in the State’s possession. Marrs alleged that the
items could be retested with more accurate current techniques,
and he generally described the new amplification techniques
that have become available since 2004. Marrs did not allege
that the biological material could be retested with techniques
that are more accurate than those available at the time of his
2009 motion. Marrs sought appointment of counsel to defend
his motion.
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                                STATE v. MARRS
                               Cite as 295 Neb. 399

   The State objected to the motion on the ground of res judi-
cata. At the preliminary hearing, Marrs added no additional
argument and stood on his motion. The court subsequently
entered an order stating, “Upon review of the court file and the
motions on file, the court overrules all pending motions [with-
out] further hearing.” Marrs appeals from the dismissal of his
DNA motion without an evidentiary hearing.
                ASSIGNMENT OF ERROR
   Marrs assigns that the district court erred and abused its
discretion by overruling all pending motions without fur-
ther hearing.
                  STANDARD OF REVIEW
   [1] The availability of issue preclusion or claim preclu-
sion is a matter of law, although any factual determinations in
applying these doctrines are reviewed for clear error.3
                           ANALYSIS
   The Act provides that 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 (1) is related to the investigation or prosecu-
tion that resulted in the judgment, (2) is in the actual or con-
structive possession or control under circumstances likely to
safeguard the integrity of the biological material’s original
physical composition, and (3) was not previously subjected to
DNA testing or can be subjected to retesting with more current
DNA techniques that provide a reasonable likelihood of more

 3	
      See, Griswold v. County of Hillsborough, 598 F.3d 1289 (11th Cir. 2010);
      Dias v. Elique, 436 F.3d 1125 (9th Cir. 2006); Dubuc v. Green Oak Tp.,
      312 F.3d 736 (6th Cir. 2002); Lundquist v. Rice Memorial Hosp., 238 F.3d
      975 (8th Cir. 2001); Campbell v. State, 906 So. 2d 293 (Fla. App. 2004);
      Feightner v. Bank of Oklahoma, N.A., 65 P.3d 624 (Okla. 2003); 18 Charles
      Alan Wright et al., Federal Practice and Procedure § 4405 (2d ed. 2002).
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                                STATE v. MARRS
                               Cite as 295 Neb. 399

accurate and probative results.4 The first step under the Act is
to file a motion requesting forensic DNA testing of biological
material that satisfies these three criteria.5
   Once a proper motion has been filed, the county attorney
shall prepare an inventory of the biological evidence.6 Then,
upon consideration of affidavits or after a hearing, the court
shall order DNA testing upon a determination that (1) the test-
ing may produce noncumulative, exculpatory evidence; (2) that
such testing was effectively not available at the time of trial;
and (3) the material was retained under circumstances likely
to safeguard the integrity of its original physical composition.7
The court shall appoint counsel for an indigent person “[u]pon
a showing by the person that DNA testing may be relevant to
the person’s claim of wrongful conviction . . . .”8
   Marrs’ motion for DNA testing was dismissed upon the
State’s objection that the motion was procedurally barred by
virtue of the court’s factual determinations under the 2009
motion. The Act does not specifically address under what cir-
cumstances a successive motion under the Act is procedurally
barred, and thus, such issues are governed by common law and
any other generally applicable statutes.
   The State’s objection reasonably raised the common-law
defenses of claim preclusion and issue preclusion.9 Claim
preclusion, which we have referred to in the past as “res judi-
cata,” bars the relitigation of a claim that has been directly
addressed or necessarily included in a former adjudication.10

 4	
      See § 29-4120(1).
 5	
      See State v. Pratt, 287 Neb. 455, 842 N.W.2d 800 (2014).
 6	
      See § 29-4120(4).
 7	
      See § 29-4120(5).
 8	
      § 29-4122.
 9	
      See Taylor v. Sturgell, 553 U.S. 880, 128 S. Ct. 2161, 171 L. Ed. 2d 155
      (2008).
10	
      See McGill v. Lion Place Condo. Assn., 291 Neb. 70, 864 N.W.2d 642
      (2015).
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               Nebraska Supreme Court A dvance Sheets
                       295 Nebraska R eports
                               STATE v. MARRS
                              Cite as 295 Neb. 399

Issue preclusion, which we referred to in the past as collateral
estoppel, bars relitigation of a finally determined issue that a
party had a prior opportunity to fully and fairly litigate.11
   Claim preclusion bars litigation of any claim that has been
directly addressed or necessarily included in a former adjudi-
cation, as long as (1) the former judgment was rendered by a
court of competent jurisdiction, (2) the former judgment was
a final judgment, (3) the former judgment was on the merits,
and (4) the same parties or their privies were involved in both
actions.12 Claim preclusion bars litigation not only of those
matters actually litigated, but also of matters which could have
been litigated in the former proceeding.13 It is founded on a
public policy and necessity that litigation be terminated and a
belief that a person should not be vexed more than once for the
same cause.14
   Issue preclusion applies where (1) an identical issue was
decided in a prior action, (2) the prior action resulted in a final
judgment on the merits, (3) the party against whom the doc-
trine is to be applied was a party or was in privity with a party
to the prior action, and (4) there was an opportunity to fully
and fairly litigate the issue in the prior action.15 Issue preclu-
sion applies only to issues actually litigated.16
   In State v. Pratt,17 the Court of Appeals noted that the plain
language of the Act contemplates, and thus permits, succes-
sive motions. Claim preclusion, insofar as it is founded on
the principle that a party should not be vexed more than once,

11	
      Id.
12	
      See Hara v. Reichert, 287 Neb. 577, 843 N.W.2d 812 (2014).
13	
      See id. See, also, Millennium Laboratories v. Ward, 289 Neb. 718, 857
      N.W.2d 304 (2014).
14	
      See Security State Bank v. Gugelman, 230 Neb. 842, 434 N.W.2d 290
      (1989).
15	
      Hara v. Reichert, supra note 12.
16	
      Id. See, also, e.g., Restatement (Second) of Judgments § 27 (1982).
17	
      State v. Pratt, 20 Neb. App. 434, 824 N.W.2d 393 (2013).
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                                 STATE v. MARRS
                                Cite as 295 Neb. 399

does not strictly apply to successive motions under the Act.18
The Court of Appeals concluded that “res judicata principles”
would bar a successive motion for DNA testing only “if the
exact same issue was raised in both motions.”19
   The court’s reasoning effectively limits claim preclusion
in DNA motions to matters that were actually litigated in the
former proceeding, making claim preclusion effectively indis-
tinguishable from issue preclusion in this context. This is in
line with other jurisdictions and our case law holding that res
judicata does not strictly apply to postconviction actions.20 As
one court explained, successive motions are permitted to raise
issues that could have been, but were not, previously litigated,
because “[i]f DNA testing has the proven ability to ‘exoner-
ate[] wrongly convicted people,’ we can perceive no viable
argument that matters of judicial economy should supersede
the law’s never-ending quest to ensure that no innocent person
be convicted.”21
   Applying these principles here, both claim preclusion and
issue preclusion bar Marrs’ claim for relief. In the proceedings
under the 2009 motion, the court found that there was no newly
available technology that would produce noncumulative, excul-
patory evidence. The court found no evidence that there were
more current DNA techniques that would provide a reasonable
likelihood of more accurate and probative results of a noncu-
mulative and exculpatory nature.
   Though neither party submitted specific evidence on
advancements in DNA testing technology at the hearing on
the 2009 motion, the burden of proof usually is upon the party
seeking affirmative relief, and we find no reason why the

18	
      See id.
19	
      Id. at 442, 824 N.W.2d at 400.
20	
      See, Ochala v. State, 93 So. 3d 1167 (Fla. App. 2012); State v. Ayers, 185
      Ohio App. 3d 168, 923 N.E.2d 654 (2009). See, also, e.g., State v. York,
      273 Neb. 660, 731 N.W.2d 597 (2007).
21	
      State v. Ayers, supra note 20, 185 Ohio App. 3d at 174, 923 N.E.2d at 659.
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                                 STATE v. MARRS
                                Cite as 295 Neb. 399

burden would not lie with Marrs on that issue.22 Moreover, the
State’s expert witnesses testified in relation to the 2009 motion
that there was no reason to “cast any doubt” or question the
accuracy of the prior DNA testing results, which found that the
biological material on Erickson’s panties matched Marrs’ DNA
profile to such a degree that the probability of an unrelated
individual matching the DNA profile obtained from the panties
was “1 in 433 × 1015 (quadrillion) for Caucasians, 1 in 10.9 ×
1018 (quintillion) for African Americans, and 1 in 11.4 × 1018
(quintillion) for American Hispanics.”
   Claim preclusion and issue preclusion may not apply when
the facts have materially changed or new facts have occurred,23
but Marrs did not allege new technology has developed since
the proceedings on his 2009 motion, which could produce
noncumulative, exculpatory evidence. Thus, the court did not
err in dismissing Marrs’ successive motion for DNA testing on
the ground that it was governed by the determinations made
under the 2009 motion. And, because there can be no showing
that DNA testing may be relevant to Marrs’ current claim of
wrongful conviction, the court did not err in refusing Marrs’
request for appointment of counsel.
                       CONCLUSION
   For the foregoing reasons, we affirm the judgment of the
district court.
                                                A ffirmed.

22	
      See State v. Pratt, supra note 5.
23	
      See, In re Interest of D.H., 281 Neb. 554, 797 N.W.2d 263 (2011); Wulff v.
      Wulff, 243 Neb. 616, 500 N.W.2d 845 (1993).
