State v. Duncan, 309 Neb. 455

Background:

Dec. 5, 1999: Lucille Bennett was found stabbed to death in her home; no signs of forced entry; several billfolds were found near the body and money orders were cashed after her death.
Duncan was convicted (2001) of first-degree murder and use of a deadly weapon; key trial evidence included phone calls to his ex-wife Jaahlay Liwaru in which he described the killing, a neighbor placing him nearby, hairs consistent with his dogs, and largely inconclusive DNA evidence at trial.
Postconviction (2008): Duncan alleged ineffective assistance and police coercion of Liwaru; the district court denied relief and this Court affirmed on procedural grounds.
Later DNA Testing Act testing on three billfolds: the red and black billfolds produced low-grade mixed DNA profiles analyzed with STRmix; likelihood ratios favored two unknown contributors over Duncan or Bennett, though Duncan could not be definitively excluded on at least one billfold; the white billfold yielded no usable DNA.
Duncan moved for a new trial under Neb. Rev. Stat. § 29-2101(6) arguing the new DNA was exculpatory; the district court denied relief, concluding the low-grade, inconclusive DNA would not probably have produced a substantially different result when considered with the trial evidence (noting Duncan’s incriminating calls). The court refused to consider non-trial postconviction evidence.
Nebraska Supreme Court affirmed the denial of a new trial.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred by excluding evidence developed in 2008 postconviction proceedings from its § 29-2101(6) new-trial analysis	Evidence from 2008 (coercion of Liwaru; alternative suspect) was relevant and should be considered when assessing whether new DNA would have changed the outcome	§ 29-2101(6) permits consideration only of newly discovered DNA/similar forensic evidence and evidence admitted at the original trial; other postconviction evidence is not part of the § 29-2101(6) inquiry	Court held exclusion was correct: § 29-2101(6) limits the record to the trial evidence plus newly discovered DNA/similar forensic evidence; non-trial postconviction evidence is not considered
Whether the newly obtained DNA results from the billfolds entitled Duncan to a new trial under § 29-2101(6)	Low-grade STRmix results tending to show unknown contributors (and not Duncan) are incompatible with the State’s robbery theory and with Liwaru’s testimony and therefore probably would have produced a substantially different result	DNA was low-grade and inconclusive; Duncan was not definitively excluded on at least one billfold; absence of DNA is not dispositive (many reasons a perpetrator’s DNA may not appear); new results do not undermine strong inculpatory trial evidence (Duncan’s calls, presence, cashed money orders)	Court held DNA was inconclusive and not sufficiently inconsistent with the trial evidence to probably produce a substantially different result; motion for new trial denied

Key Cases Cited

State v. Buckman, 267 Neb. 505 (2004) (standard for new trial based on newly discovered DNA: whether it probably would have produced a substantially different result at trial)
State v. Parmar, 283 Neb. 247 (2012) (new DNA excluding defendant warranted new trial where it directly contradicted eyewitness testimony)
State v. El-Tabech, 269 Neb. 810 (2005) (denial of new trial affirmed where posttesting DNA did not materially alter the circumstantial case presented at trial)
State v. Myers, 304 Neb. 789 (2020) (absence of a defendant’s DNA on tested items does not preclude presence or guilt)
State v. Amaya, 305 Neb. 36 (2020) (inconclusive DNA results are insufficient to overcome other credible evidence tying defendant to the crime)
State v. Oldson, 293 Neb. 718 (2016) (abuse of discretion occurs when a decision rests on untenable or unreasonable grounds)