State v. Marrs, 888 N.W.2d 721

Background

James D. Marrs pleaded guilty to second-degree murder for the 2003 death of Sharron Erickson; DNA matching Marrs’ profile was reported on the victim’s panties and formed part of the plea factual basis.
A 2004 UNMC report concluded Marrs could not be excluded as the source of sperm-cell DNA from the panties, with extremely low random-match probabilities.
In 2009 Marrs (with counsel) moved under Nebraska’s DNA Testing Act for retesting of the panties, an anal swab, and Marrs’ oral swab; the court held a hearing where the State’s experts testified there were no inconsistencies and no newly available techniques likely to produce exculpatory, noncumulative results, and inmate testimony of admissions was introduced.
The district court denied the 2009 motion; Marrs’ appeal was summarily dismissed by the Court of Appeals.
In 2015 Marrs, pro se, filed a successive DNA-testing motion asserting the 2004 report only said he “could not be excluded” and that newer amplification techniques might yield exculpatory results; he sought appointment of counsel.
The district court dismissed the 2015 motion without a hearing on res judicata/claim- and issue-preclusion grounds; Marrs appealed, arguing the court abused its discretion by denying further hearing and counsel.

Issues

Issue	Marrs’ Argument	State’s Argument	Held
Whether the district court erred by dismissing Marrs’ successive DNA-testing motion without a hearing	Marrs argued further testing with newer DNA techniques might produce noncumulative, exculpatory evidence and that he was entitled to a hearing and counsel	The State argued the successive motion was barred by res judicata (claim and issue preclusion) because the 2009 proceedings already resolved the availability of newer testing and potential for exculpatory results	Court held the 2015 motion was barred by claim and issue preclusion; dismissal without a hearing and denial of counsel were proper
Whether successive motions under the DNA Testing Act are categorically barred by res judicata	Marrs implicitly argued successive motions should be permitted when new techniques exist	State argued res judicata bars relitigation of matters already decided in earlier DNA-motion proceedings	Court explained the Act permits successive motions, but res judicata/issue preclusion can bar them when the identical issue was actually litigated and decided previously; applied preclusion here
Whether Marrs showed new technology or changed facts sufficient to overcome preclusion	Marrs asserted general advances in amplification but did not allege specific new techniques unavailable in 2009	State pointed to 2009 findings and expert testimony that no newer techniques would likely produce exculpatory, noncumulative results	Held Marrs failed to allege material change or new facts about technology since 2009, so preclusion applied
Whether Marrs was entitled to appointment of counsel for the 2015 motion	Marrs requested counsel claiming DNA testing may be relevant to wrongful conviction claim	State argued preclusion meant testing could not be relevant and appointment was unnecessary	Held appointment of counsel was not required because Marrs could not show testing might be relevant given prior determinations

Key Cases Cited

State v. Marrs, 272 Neb. 573 (2006) (prior appeal affirming conviction and discussing DNA evidence)
State v. Pratt, 20 Neb. App. 434 (2013) (Court of Appeals noting the DNA Testing Act contemplates successive motions and limiting res judicata to identical issues)
McGill v. Lion Place Condo. Assn., 291 Neb. 70 (2015) (discussion of claim preclusion standards)
Hara v. Reichert, 287 Neb. 577 (2014) (restating claim preclusion elements)