State v. Young, 287 Neb. 749

Background

In 2007 Ray S. Webb was fatally shot in Omaha; Young was convicted of first-degree murder and use of a deadly weapon after trial and sentenced to life plus a consecutive term; convictions were affirmed on direct appeal.
Investigators recovered a black long-sleeved T-shirt near the scene and spent shell casings; neither item was DNA tested at trial.
In 2010–2011 Young filed pro se and then amended motions under Nebraska's DNA Testing Act seeking advanced DNA testing (mini-STR, touch DNA, Y-STR) of the T-shirt and CERA testing of the shell casings to recover fingerprints/DNA.
Young asserted the requested methods were not effectively available at his 2009 trial and could produce noncumulative, exculpatory evidence identifying the shooter.
At a 2012 hearing Young presented no evidentiary support (no affidavits or expert proof) about prior availability or the probative value of the proposed tests; the district court denied testing for failure to meet statutory evidentiary requirements.
The Nebraska Supreme Court affirmed, holding Young failed to meet the burden under Neb. Rev. Stat. § 29-4120(5) to show the tests were unavailable at trial and likely to produce noncumulative, exculpatory DNA evidence.

Issues

Issue	Young's Argument	State's Argument	Held
Whether Young met § 29-4120(5) to obtain court-ordered DNA testing of the T-shirt	Advanced DNA methods (mini-STR, touch DNA, Y-STR) were not effectively available at trial and could yield exculpatory profiles	Young presented no evidence that those tests were unavailable at trial or would produce noncumulative exculpatory DNA	Denied — Young failed to present evidence on prior availability and probative value; testing was not shown to be effectively unavailable at trial
Whether shell casings could be tested (CERA) as "biological material" under the Act	CERA can lift fingerprints/biological material from casings that could be DNA-tested to identify shooter; CERA is newly developed and unavailable at trial	CERA is not shown to be a DNA test or to produce DNA; Young offered no evidence on availability or DNA relevance	Denied — Young did not show CERA is a DNA test or that it was unavailable at trial or would produce noncumulative, exculpatory DNA
Burden of proof and required procedure under the DNA Testing Act	Court should allow testing given evolving techniques and potential to identify actual shooter	Defendant bears burden to provide affidavits/evidence showing the three statutory criteria; bare assertions insufficient	Held — Burden rests on defendant; must provide affidavits/evidence at hearing to meet § 29-4120(5); mere assertions fail
Scope of "unavailable" testing under the Act	Newer methods justify postconviction testing even if related techniques existed before trial	The Act does not permit redoing testing that was effectively available at trial; available-but-unpursued evidence is not "unavailable"	Held — The Act permits newer methods but not second chances where comparable testing was available at trial; availability must be established by evidence

Key Cases Cited

State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010) (prior decision in Young's direct appeal)
State v. Haas, 279 Neb. 812, 782 N.W.2d 584 (2010) (discusses DNA Testing Act standards)
State v. Poe, 271 Neb. 858, 717 N.W.2d 463 (2006) (collateral nature of DNA testing actions)
State v. Malcom, 12 Neb. App. 432, 675 N.W.2d 728 (2004) (burden on defendant in postconviction proceedings)
State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004) (limitations on successive efforts to obtain testing)
State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003) (treatment of available but unpursued evidence)