State v. Myers, 304 Neb. 789

Background:

Myers was convicted of first-degree murder, use of a deadly weapon, and possession of a deadly weapon by a felon for the 1995 killing of Lynette Mainelli; convictions were affirmed on direct appeal.
Trial evidence placed Myers at Mainelli’s apartment the night of the killing: passengers testified Myers drove, wore gloves, left the van for about an hour, and subsequently gave a gun to a passenger; ballistics matched bullets to that gun; Sanders testified Myers planned and later described the killing.
In 2016 Myers sought postconviction DNA testing under Nebraska’s DNA Testing Act of multiple items (bedding, casings, bullets, sexual-assault kit, clothing, cigarette butts, hair, blood vials, etc.) to exclude himself as a donor and to show other males’ DNA.
The district court denied the motion; this court remanded to apply §29-4120(5)’s standard (whether testing may produce noncumulative exculpatory evidence) and to reconsider appointment of counsel; on remand the district court again denied testing and counsel.
The court concluded that absence of Myers’ DNA or presence of other males’ DNA on tested items would be non-dispositive — DNA only shows whether a tested sample came from a person, not that the person was or was not present or possessed the item — and thus would not produce noncumulative exculpatory evidence given the trial record.
The court also held claims that the prosecution withheld evidence are not properly raised in a motion under the DNA Testing Act and therefore need not be decided in that motion.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court erred by denying DNA testing under §29-4120(5)	Myers: testing would show other males’ DNA and no Myers’ DNA, proving he wasn’t present and is innocent	State: absence of Myers’ DNA or presence of others’ DNA would be inconclusive and consistent with trial evidence; DNA is not dispositive of presence or guilt	Denied — testing would not produce noncumulative exculpatory evidence under §29-4120(5)(c)
Whether court erred by denying appointment of counsel under the Act	Myers: counsel needed because DNA testing may be relevant to wrongful-conviction claim	State: counsel unwarranted if testing is not likely relevant	Denied — testing not shown to be relevant, so no counsel required
Whether court erred by failing to determine that the State withheld evidence	Myers: prosecution withheld biological evidence (sexual-assault kit), blocking testing	State: withholding claims are not proper issues in a DNA-testing motion	Denied — withholding claims are not part of DNA Testing Act motions and need not be resolved there

Key Cases Cited

State v. Dean, 270 Neb. 972, 708 N.W.2d 640 (2006) (absence of DNA on tested items may be inconclusive and not exculpatory)
State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003) (DNA testing shows only whether a sample came from a person, not how or when it was deposited)
State v. Betancourt-Garcia, 299 Neb. 775, 910 N.W.2d 164 (2018) (standards of review and procedures for DNA-testing motions)
State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004) (definition and low threshold for exculpatory evidence in DNA-testing context)
State v. Phelps, 273 Neb. 36, 727 N.W.2d 224 (2007) (standards for appointment of counsel under DNA Testing Act)