State v. Ildefonso, 304 Neb. 711

In Sept. 1999, Carr Hume was shot once in the head and found on a sidewalk in Omaha; no shell casings at the scene but a hat, a syringe, and a possible tissue fragment were recovered.
Three witnesses (Devore-Alexander, Reh, and Taylor) placed Arlyn Ildefonso at the scene and observed or reported him firing a gun; police later recovered a .357 revolver from a vehicle in which Ildefonso was riding.
Ballistics testing linked a bullet recovered from Hume’s skull to the recovered .357 revolver; Ildefonso was convicted of first-degree murder and use of a deadly weapon and his conviction was affirmed on direct appeal.
In 2018 Ildefonso moved for postconviction DNA testing of multiple items (hat, clothing, a tissue-like substance, syringe, bullets/ammunition, backpack, etc.) and requested appointment of counsel under Nebraska’s DNA Testing Act.
The district court required a supplemental affidavit and then denied testing and counsel, concluding Ildefonso failed to show testing may produce noncumulative, exculpatory evidence; the court found his theory relied on an unreliable, recanted informant story.
The Nebraska Supreme Court affirmed, holding Ildefonso did not meet the minimal statutory threshold showing that DNA testing could yield noncumulative, exculpatory evidence relevant to wrongful conviction.

Issue	Ildefonso's Argument	State's Argument	Held
Whether the court should order DNA testing under § 29-4120(5)	Testing items (hat, tissue, clothing, syringe, car) may identify DNA of other suspects (Anderson, Fields, Smith) and produce exculpatory evidence	Movant failed to show testing would produce noncumulative, exculpatory evidence; many items would be inconclusive or consistent with existing evidence; no comparison samples for some alleged third parties	Denied — Ildefonso did not meet the statutory threshold that testing may produce noncumulative, exculpatory evidence; denial affirmed
Whether counsel must be appointed under § 29-4122 to pursue DNA testing	Counsel necessary because DNA testing may be relevant to claim of wrongful conviction	Appointment of counsel unwarranted because movant did not show testing was likely relevant	Denied — appointment of counsel is discretionary and requires a showing the testing may be relevant; Ildefonso failed to show this

State v. Ildefonso, 262 Neb. 672 (2001) (affirming defendant’s convictions on direct appeal)
State v. Myers, 301 Neb. 756 (2018) (discussing procedures under Nebraska’s DNA Testing Act)
State v. Betancourt-Garcia, 299 Neb. 775 (2018) (addressing standards for DNA testing requests)
State v. Young, 287 Neb. 749 (2014) (movant’s burden to present affidavits or hearing evidence under the Act)
State v. Buckman, 267 Neb. 505 (2004) (noting the relatively undemanding threshold for ordering DNA testing but limiting testing where evidence would have no bearing on guilt)
State v. Dean, 270 Neb. 972 (2006) (absence of a defendant’s DNA on items may be inconclusive and not necessarily exculpatory)