State v. Jacob
309 Neb. 401
| Neb. | 2021Background
- Steven Jacob was convicted after a retrial for the 1989 murders of Melody Hopper and James Etherton; convictions and sentences were affirmed on direct appeal.
- Crime-scene evidence included six spent 9mm shell casings and one live round, a removed storm window with Jacob’s fingerprints, and a living-room carpet stain (gauze sample) with no detectable blood in 1989; the murder weapon was not recovered.
- In 2019 Jacob moved under Nebraska’s DNA Testing Act to test (1) the shell casings/live round and (2) the living-room/gauze stain with modern DNA techniques, arguing results could show others’ DNA and exculpate him or provide a motive for Hopper to shoot Etherton.
- The district court found Jacob met the custodial/retention and retesting criteria but denied testing under §29-4120(5)(c), concluding any DNA results would be at best inconclusive/nonexculpatory given the other trial evidence (fingerprints, eyewitness ID, cellmate statements, ownership of a 9mm).
- The court also denied Jacob’s requests for appointed counsel (under the Act) and to alter or amend; Jacob appealed and the Nebraska Supreme Court affirmed the denials.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court erred in denying DNA testing under §29-4120(5)(c) | Testing of casings/gauze could identify other persons’ DNA and thus exonerate Jacob or show a different actor/motive | Testing would be cumulative or inconclusive; absence/presence of DNA on items would not prove who fired the shots | Denied — testing would not produce noncumulative exculpatory evidence; results would be inconclusive in light of other evidence |
| Whether counsel should be appointed under the DNA Testing Act | Needs counsel to pursue testing and claims | Appointment unwarranted because testing is not relevant to wrongful-conviction claim | Denied — Jacob failed to show testing may be relevant; no appointment required |
| Whether denial of motion to alter or amend (and procedure) was erroneous | Court mischaracterized claims and applied wrong legal standard; motion required consideration on merits | Motion was filed without required notice of hearing and deemed abandoned; even if error, no prejudice because testing denial stands | Denied (abandoned/denied); even assuming procedural error, no substantial right affected because testing denial is correct |
| Whether district court failed to produce requested bill of exceptions | Bill of exceptions was incomplete/altered and district court failed to file the full trial record requested | Bill of exceptions was filed containing hearing transcripts and exhibits; prior trial records exist and were available | Denied — bill of exceptions was filed; praecipe for full trial record was unnecessary; no reversible error |
Key Cases Cited
- State v. Buckman, 267 Neb. 505 (2004) (interpretation of exculpatory evidence requirement under Nebraska’s DNA Testing Act)
- State v. Myers, 304 Neb. 789 (2020) (absence of defendant’s DNA on casings may be inconclusive and not exculpatory)
- State v. Dean, 270 Neb. 972 (2006) (DNA testing of weapon/ammunition that shows no defendant DNA is at best inconclusive)
- State v. Lotter, 266 Neb. 758 (2003) (DNA testing is not a videotape of the crime; it cannot by itself show how biological material was deposited and may not be exculpatory)