State v. Jacob, 309 Neb. 401

Background

Steven Jacob was convicted of two counts of murder (first and second degree) and related firearm enhancements for 1989 shootings of Melody Hopper and James Etherton; convictions were upheld after retrial.
Physical evidence from the scene included six spent 9mm shell casings and one live cartridge, a removed storm window with Jacob’s fingerprints, and a gauze/carpet stain in the living room; the murder weapon was never recovered.
In 2019 Jacob moved for postconviction DNA testing of the shell casings/cartridge and a living-room stain, asserting modern techniques could recover others’ DNA (supporting his theory that someone else fired or supplied the gun) and thus be exculpatory.
The State produced an inventory showing custody of the items; the district court held a hearing and denied testing under Neb. Rev. Stat. § 29-4120(5)(c), finding any DNA results would be inconclusive and not noncumulative exculpatory evidence.
The court relied on trial evidence (fingerprints on a window, eyewitness ID of Jacob’s vehicle/driver, Jacob’s flight and jailhouse statements) to conclude DNA absence/presence on the items would not exonerate Jacob.
The district court also denied Jacob’s motions for appointment of counsel (under the DNA Testing Act), to alter or amend (deemed abandoned for procedural noncompliance), and his challenges to the bill of exceptions; the Nebraska Supreme Court affirmed.

Issues

Issue	Jacob’s Argument	State’s Argument	Held
Whether the district court erred in denying DNA testing under § 29-4120(5)(c)	Testing of casings/stain may show another person’s DNA or absence of Jacob’s DNA and thus would be noncumulative, exculpatory	Any DNA results would be at best inconclusive and would not be material to guilt given other strong evidence of Jacob’s presence and possession of the gun	Denial affirmed — testing would not produce noncumulative, exculpatory evidence relevant to wrongful conviction claim
Whether counsel should be appointed under the DNA Testing Act	Jacob asserted testing may be relevant to his wrongful-conviction claim and therefore counsel should be appointed	Because testing is not likely relevant, appointment is not warranted	Denial affirmed — Jacob failed to show testing may be relevant; no abuse of discretion
Whether the district court erred in denying (or abandoning) Jacob’s motion to alter or amend	Court misapplied the legal standard and mischaracterized his claims; motion raised legal issues only and thus did not require a hearing	Motion was filed without required notice of hearing and was properly deemed abandoned under local rules	Affirmed — even assuming error, no substantial right was affected because underlying denial of DNA testing was correct
Whether the district court failed to produce the requested bill of exceptions	Jacob claimed the bill would show the court took judicial notice of prior trial records at State’s request	State and record showed the bill of exceptions was filed and no judicial notice of prior trials was taken	Denial of this assignment affirmed — bill of exceptions was filed and Jacob’s praecipe for the entire trial record was unnecessary

Key Cases Cited

State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004) (defines exculpatory evidence standard under Nebraska DNA Testing Act)
State v. Myers, 304 Neb. 789, 937 N.W.2d 181 (2020) (absence of a defendant’s DNA on tested items may be inconclusive and not exculpatory)
State v. Dean, 270 Neb. 972, 708 N.W.2d 640 (2006) (DNA testing of firearm/ammunition that would not detect defendant’s DNA is at best inconclusive)
State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003) (DNA evidence is not a videotape of the crime; presence of victim blood on an accomplice’s clothing does not necessarily prove how it was deposited)