State v. Jacob, 309 Neb. 401

Background

Steven Jacob was convicted after a retrial of the 1989 double homicide of Melody Hopper and James Etherton and sentenced to consecutive terms; convictions were previously affirmed on appeal.
Crime-scene evidence included a forced entry, a removed storm window containing Jacob’s fingerprints, six spent 9-mm shell casings and one live 9-mm round; Jacob (and his father) had owned a 9-mm pistol (the firearm was never recovered).
In 1989 four fired projectiles ("slugs") and a gauze sample from a living-room stain were submitted for testing; blood was absent or insufficient for DNA testing under 1989 methods.
In 2019 Jacob moved under Nebraska’s DNA Testing Act to retest the shell casings and the living-room stain, arguing modern methods could reveal DNA of another person (supporting a theory that someone else loaded/fired the gun or that nonconsensual intercourse provided a motive for Hopper to kill Etherton).
The district court ordered an inventory, received the State’s opposition, and denied DNA testing and appointment of counsel, concluding any DNA results would be inconclusive and not produce noncumulative exculpatory evidence in light of the other evidence; Jacob’s motion to alter or amend and procedural objections were also denied.

Issues

Issue	Jacob's Argument	State's Argument	Held
Whether the court erred in denying postconviction DNA testing under Neb. Rev. Stat. § 29-4120(5)(c)	Modern DNA testing of casings and gauze may identify another person’s DNA and thereby exonerate Jacob (show he did not possess/fire the gun)	Testing would at best be inconclusive or cumulative and would not produce noncumulative exculpatory evidence relevant to wrongful conviction	Denial affirmed: testing would not likely produce noncumulative exculpatory evidence; absence of Jacob’s DNA would not prove he wasn’t present or the shooter
Whether the court abused its discretion by refusing to appoint counsel under the DNA Testing Act	Counsel needed because DNA testing may be relevant to wrongful-conviction claim	Jacob failed to show testing may be relevant because testing would not be exculpatory	Denial affirmed: because testing was not shown to be relevant, counsel not required
Whether the court erred in denying Jacob’s motion to alter or amend the denial of testing	Motion argued the court misapplied the legal standard and ignored his factual theories; requested amendment to order testing	Court said motion was untimely/abandoned under local rules and even on merits testing would not be exculpatory	Denial (as abandoned) affirmed; assuming error, Jacob suffered no substantial right because underlying denial of testing was correct
Whether the district court failed to produce the requested bill of exceptions	Jacob claimed the bill would show judicial notice of trial records and support his arguments	Record shows a bill of exceptions was filed including hearing transcripts and exhibits; trial bills remain of record	Assignment without merit; the requested full trial record was unnecessary and records were available

Key Cases Cited

State v. Myers, 304 Neb. 789, 937 N.W.2d 181 (2020) (nonpresence of a defendant’s DNA on tested items does not prove absence from scene or that defendant did not commit the crime)
State v. Dean, 270 Neb. 972, 708 N.W.2d 640 (2006) (DNA absence on weapon/ammunition would be inconclusive and not exculpatory given other evidence)
State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003) (DNA testing only identifies source of biological material; it is not a videotape and cannot alone establish how or when material was deposited)
State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004) (defines statutory "exculpatory evidence" threshold under the DNA Testing Act as relatively undemanding but not encompassing evidence with no bearing on guilt)
Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018) (procedural note that §25‑1329 does not itself require a hearing on a motion to alter or amend)