State v. Duncan, 309 Neb. 455

Background

Daryle M. Duncan was convicted in 2001 of first‑degree murder and use of a deadly weapon in the killing of Lucille Bennett; billfolds were found near her body and no signs of forced entry existed.
At trial, key evidence included testimony from Jaahlay Liwaru that Duncan called and implicated himself, some hairs consistent with Duncan’s dogs, and stipulations that most DNA tests were inconclusive (Duncan excluded from the murder knife).
Years later Duncan obtained postconviction DNA testing under the DNA Testing Act on three billfolds found at the scene; two (red and black) yielded low‑grade mixed profiles analyzed with STRmix.
STRmix results did not support that Duncan or Bennett were contributors; one billfold’s profile made two unknown contributors more likely, and on at least one billfold Duncan could not be excluded entirely.
Duncan moved for a new trial under Neb. Rev. Stat. § 29‑2101(6), arguing the new DNA evidence would probably have produced a substantially different result; the district court denied the motion, declined to consider nontrial postconviction evidence, and concluded the low‑grade results would not have changed the jury outcome.
The Nebraska Supreme Court affirmed, holding the court did not abuse its discretion in excluding nontrial evidence and denying a new trial because the DNA results were inconclusive and did not undermine the other strong circumstantial evidence (notably Duncan’s incriminating phone calls).

Issues

Issue	Duncan's Argument	State's Argument	Held
Whether the district court erred by not considering evidence from 2008 postconviction proceedings	That postconviction evidence (coercion of Liwaru; alternative suspect) was relevant and should be considered with new DNA	§29‑2101(6) limits consideration to newly discovered DNA/similar forensic evidence and evidence presented at the original trial	Court: No error; nontrial evidence not considered under §29‑2101(6)
Whether the newly obtained DNA from billfolds entitled Duncan to a new trial	DNA tends to show Duncan did not touch billfolds, contradicting robbery theory and Liwaru, so it probably would have produced a different result	DNA was low‑grade, largely uninformative, did not completely exclude Duncan, and many plausible explanations exist for absent DNA; strong circumstantial evidence remains	Court: New trial not warranted; district court did not abuse discretion
Whether Parmar requires a new trial here	Parmar permits relief when DNA is clearly incompatible with key trial testimony—Duncan argues Parmar applies without absolute exclusion	Parmar is distinguishable: here Duncan was not fully excluded and DNA is not directly incompatible with the main evidence	Court: Parmar distinguished; not controlling
Whether low‑grade/partial STRmix results are sufficient to create reasonable doubt	Duncan: Even partial results that favor unknown contributors reduce probability of guilt	State: Partial/inconclusive results are not exculpatory when other credible evidence ties defendant to crime	Court: Partial STRmix results were inconclusive and insufficient to probably produce a substantially different result

Key Cases Cited

State v. Buckman, 267 Neb. 505 (2004) (sets standard that new DNA evidence must probably have produced a substantially different result at the former trial)
State v. El‑Tabech, 269 Neb. 810 (2005) (denial of new trial affirmed where post‑testing DNA did not materially alter circumstantial proof)
State v. Parmar, 283 Neb. 247 (2012) (new DNA that was clearly incompatible with eyewitness testimony warranted a new trial)
State v. Myers, 304 Neb. 789 (2020) (absence of DNA does not preclude presence or contact)
State v. Amaya, 305 Neb. 36 (2020) (non‑detection of defendant’s DNA can be inconclusive where other credible evidence links defendant to the crime)
State v. Oldson, 293 Neb. 718 (2016) (defines abuse‑of‑discretion standard)