State v. Duncan, 309 Neb. 455

Background

Daryle Duncan was convicted in 2001 of first-degree murder and use of a deadly weapon for the 1999 stabbing death of Lucille Bennett; several billfolds were found near the body but yielded no usable fingerprints.
At trial a witness, Jaahlay Liwaru, testified that Duncan made telephone calls admitting knowledge of the murder and saying he "killed Ms. Bennett;" other circumstantial evidence tied Duncan to the scene (neighborhood sightings, cashing of Bennett’s money orders, hairs consistent with Duncan’s dogs).
Trial DNA/stipulations were largely inconclusive: Duncan could not be excluded as a donor of some blood on bedding but was excluded from DNA on the knife; jury was told DNA did not clearly tie Duncan to the crime.
After postconviction proceedings (2008 denial of relief), Duncan obtained DNA testing under the DNA Testing Act of three billfolds found at the scene; the white billfold yielded no profile; red and black billfolds produced low-level mixed profiles analyzed with STRmix.
STRmix results made it more likely the profiles were from two unknown contributors (ratios favored unknowns over Duncan or Bennett); Helligso testified Duncan could not be excluded as a contributor to at least one billfold but the results did not support a conclusion that Duncan was a contributor.
The district court denied a motion for a new trial under §29-2101(6), concluding the low-grade DNA would not probably have produced a substantially different result at trial (given Duncan’s incriminating calls and the jury’s awareness that no DNA tied him to the crime); Duncan appealed.

Issues

Issue	Duncan's Argument	State's Argument	Held
Whether the district court should have considered evidence developed in 2008 postconviction proceedings when evaluating a §29-2101(6) motion for new trial based on DNA	The court should consider the postconviction evidence (e.g., alleged coercion of Liwaru, alternative suspect evidence) because it bears on credibility and would have been admissible at trial	§29-2101(6) permits consideration only of newly discovered DNA (or similar forensic evidence) and the evidence actually presented at the original trial; earlier postconviction evidence is not newly discovered	Court: The district court correctly excluded postconviction-only evidence; §29-2101(6) limits consideration to newly discovered DNA and trial evidence.
Whether the newly obtained DNA from billfolds probably would have produced a substantially different verdict if admitted at trial (entitling Duncan to a new trial)	The STRmix results tended to show Duncan did not touch the billfolds, contradicting the State’s robbery theory and Liwaru’s testimony, and thus could have created reasonable doubt	The DNA was low-grade, partial, and did not exclude Duncan (and did not exculpate Bennett); DNA absence is not dispositive because perpetrator might not have touched the billfolds (gloves, flight, not noticing them); trial already presented inconclusive DNA	Court: No abuse of discretion. The low-probability, partial results would not probably have produced a substantially different result given strong circumstantial evidence (Duncan’s incriminating calls, other testimony).

Key Cases Cited

State v. Buckman, 267 Neb. 505 (2004) (newly discovered DNA must probably have produced a substantially different result if admitted at trial)
State v. Parmar, 283 Neb. 247 (2012) (new DNA that directly conflicts with key eyewitness testimony can warrant a new trial)
State v. El-Tabech, 269 Neb. 810 (2005) (denial of new trial upheld where new DNA evidence would not materially alter circumstantial picture of guilt)
State v. Myers, 304 Neb. 789 (2020) (absence of a defendant’s DNA on an item does not preclude presence or possession)
State v. Amaya, 305 Neb. 36 (2020) (non-detection of a defendant’s DNA is at best inconclusive when other credible evidence ties defendant to the crime)
State v. Oldson, 293 Neb. 718 (2016) (abuse of discretion standard explained)