State v. Duncan, 309 Neb. 455

Background

In 1999 Lucille Bennett was stabbed to death in her home; no forced entry was found and several empty billfolds were located near her body.
Daryle Duncan was convicted in 2001 of first degree murder and use of a deadly weapon; key trial evidence included witness Jaahlay Liwaru’s testimony about phone calls in which Duncan allegedly admitted the killing, a neighbor seeing Duncan in the area, and limited physical evidence (hairs consistent with Duncan’s dogs; inconclusive DNA results at trial).
Duncan’s convictions were affirmed on direct appeal; postconviction proceedings in 2008 challenged witness coercion and proposed an alternative suspect but those matters were not presented to the original jury.
Years later Duncan obtained DNA testing under the DNA Testing Act of three billfolds found at the scene; two billfolds produced very low‑grade mixed DNA profiles analyzed with STRmix that did not support that Duncan or the victim were clear contributors (Duncan could not be excluded on at least one billfold).
Duncan moved for a new trial under Neb. Rev. Stat. § 29‑2101(6), arguing the new DNA evidence (and, alternatively, earlier postconviction evidence) would probably have produced a substantially different result; the district court denied the motion and declined to consider evidence not presented at the original trial.
The Nebraska Supreme Court affirmed, concluding the court properly limited its review to the trial record plus the newly discovered DNA and reasonably found the low‑grade DNA would not likely have produced a substantially different verdict.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred by refusing to consider evidence from Duncan’s 2008 postconviction proceedings when deciding the § 29‑2101(6) new‑trial motion	Duncan: the 2008 evidence (police coercion of Liwaru; alternative suspect evidence) was relevant and should be weighed with new DNA	State: § 29‑2101(6) motions may consider only newly discovered DNA (or similar forensic evidence) and the evidence admitted at the original trial; 2008 evidence was not newly discovered and was untimely under § 29‑2103(4)	Court: No error; § 29‑2101(6) is limited to newly discovered DNA/similar forensic evidence and the original trial record, so the 2008 postconviction evidence was not considered
Whether the newly obtained DNA profiles from the billfolds warranted a new trial because they undercut the robbery theory and witness testimony	Duncan: the DNA tends to show the perpetrator did not touch the billfolds, contradicting the State’s robbery theory and Liwaru’s testimony, and would likely have produced a substantially different result	State: the DNA was low‑grade/mixed, did not exclude Duncan in all respects, and many innocent explanations exist for absence of detectable DNA (gloves, not touching items, loss of touch DNA)	Court: Denied new trial; the DNA was inconclusive, did not directly contradict key evidence (Duncan’s incriminating calls), and would not probably have produced a substantially different result

Key Cases Cited

State v. Buckman, 267 Neb. 505 (sets standard for new trial based on newly discovered DNA: must probably produce a substantially different result if presented at trial)
State v. Parmar, 283 Neb. 247 (held new DNA that excluded movant could warrant a new trial where it directly contradicted eyewitness testimony)
State v. El‑Tabech, 269 Neb. 810 (denial of new trial upheld where post‑testing DNA did not materially alter circumstantial case)
State v. Myers, 304 Neb. 789 (DNA nonpresence is not equivalent to proof of absence; lack of DNA does not preclude presence)
State v. Amaya, 305 Neb. 36 (inconclusive DNA in presence of other credible evidence tying defendant to the crime is not dispositive)
State v. Oldson, 293 Neb. 718 (defines abuse of discretion standard)
Ogden v. The State, 13 Neb. 436 (articulates classic rule for newly discovered evidence: new evidence warrants a new trial if it would likely change the verdict)