- 725 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. HALE

Cite as 306 Neb. 725

State of Nebraska, appellee, v. 

Terrance J. Hale, appellant.

___ N.W.2d ___

Filed August 7, 2020. No. S-19-1109.

1. DNA Testing: Appeal and Error. A motion for DNA testing is addressed 

to the discretion of the trial court, and unless an abuse of discretion is 

shown, the trial court’s determination will not be disturbed.

2. ____: ____. An appellate court will uphold a trial court’s findings 

of fact related to a motion for DNA testing unless such findings are 

clearly erroneous.

3. DNA Testing. The DNA Testing Act is a limited remedy providing 

inmates an opportunity to obtain DNA testing in order to establish innocence after a conviction.

4. ____. Pursuant to the DNA Testing Act, a person in custody takes the 

first step toward obtaining possible relief by filing a motion in the court 

that entered the judgment requesting forensic DNA testing of biological material.

5. ____. The court has discretion to either consider a motion for DNA testing on affidavits or hold a hearing.

6. ____. If the criteria in Neb. Rev. Stat. § 29-4120(1) (Reissue 2016) are 

met, and the reviewing court finds that testing may produce noncumulative, exculpatory evidence relevant to the claim that the person was 

wrongfully convicted or sentenced under § 29-4120(5), the court must 

order DNA testing.

7. ____. A court is not required to order DNA testing if such testing would 

not produce exculpatory evidence.

8. DNA Testing: Proof. Part of the defendant’s burden of proof is to provide the court with affidavits or evidence at a hearing establishing that 

DNA testing may produce noncumulative, exculpatory evidence relevant 

to the claim that he or she was wrongfully convicted or sentenced.

9. DNA Testing. The threshold showing required under Neb. Rev. Stat. 

§ 29-4120(5) (Reissue 2016) is relatively undemanding and will 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/09/2020 12:48 AM CDT
- 726 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. HALE

Cite as 306 Neb. 725

generally preclude testing only where the evidence at issue would have 

no bearing on the guilt or culpability of the movant.

10. ____. The function of testing DNA evidence is to determine whether 

the sample being examined contains genetic characteristics similar to a 

sample from a known individual.

Appeal from the District Court for Douglas County: Leigh 

Ann Retelsdorf, Judge. Affirmed.

Terrance J. Hale, pro se.

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

and Papik, JJ.

Heavican, C.J.

INTRODUCTION

Terrance J. Hale appeals the district court’s denial of his 

postconviction motion for DNA testing under Nebraska’s DNA 

Testing Act. 1 Hale asserts that the district court erred in denying his motion by concluding that DNA testing would not 

result in noncumulative, exculpatory evidence. We affirm.

FACTS

Background

Hale was convicted by jury of first degree murder and 

sentenced to life imprisonment for killing Raymond Vasholz. 

Raymond died after inhaling smoke from a fire set in his house 

in Omaha, Nebraska. Raymond’s wife, Elizabeth Vasholz, who 

was 76 years old at the time of the fire, testified that Hale 

had broken into the couple’s house, demanded money, and 

assaulted both her and Raymond before starting the fire. In 

2015, Hale’s conviction was affirmed by this court on direct 

1 Neb. Rev. Stat. § 29-4116 et seq. (Reissue 2016 & Cum. Supp. 2018).
- 727 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. HALE

Cite as 306 Neb. 725

appeal in State v. Hale.

 2 The following facts are taken from 

that opinion:

Elizabeth testified that on February 7, 2013, in the time 

“‘leading up to 9 o’clock a.m.,’” she was sitting in the living 

room with Raymond when she heard “‘[b]reaking glass’” that 

“‘sounded like it was coming from the basement.’” 3 Elizabeth 

testified that a man wearing a coat, whom Elizabeth identified 

in court as Hale, came rushing up the basement stairs. Elizabeth 

testified that she recognized Hale because he had done yardwork for her, but she did not know him by name.

Elizabeth testified that after Hale came up the stairs, he 

demanded money. After replying that she had no money, 

Elizabeth said that Hale assaulted her and Raymond. Elizabeth 

reported striking Hale’s back with a lamp as Hale was hitting 

Raymond. Elizabeth testified that Hale grabbed “‘a paper’” and 

lit it, using the gas stove. 4 Elizabeth said that Hale threw the 

lit paper at her and then set a couch cushion on fire and came 

toward her, pushing the burning cushion against her arms.

Elizabeth testified that she escaped the house, grabbing a 

recycling bin to cover herself because Hale had torn off the 

pajama top she had been wearing. Elizabeth recalled knocking 

on her neighbor’s door, but no one answered so she sat on her 

neighbor’s porch and began screaming.

Elizabeth stated that Hale then came outside and “‘threw his 

coat down.’” 5 Then another man arrived, and Elizabeth asked 

him for help. Elizabeth testified that she suffered a cracked 

vertebrae and burns on her back and both arms.

Gary Burns testified that he had been driving in his car at 

approximately 9 a.m. when he saw an elderly woman sitting 

outside. Burns said that the woman, who was “‘real dingy and 

dirty’” and looked like “‘she had been beat up, basically,’” 

2 State v. Hale, 290 Neb. 70, 858 N.W.2d 543 (2015).

3 Id. at 72, 858 N.W.2d at 545.

4 Id.

5 Id. at 72, 858 N.W.2d at 546.
- 728 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. HALE

Cite as 306 Neb. 725

had no shirt on and was covering herself with a recycling 

bin. 6 The woman was yelling, “‘“Help, help, help.”’” 7

Burns also saw a man, whom he identified in court as Hale, 

about 15 feet away from the woman. Burns got out of his 

car and called the 911 emergency dispatch service to report 

an assault. As he approached the woman, Burns testified that 

she pointed at Hale and said, “‘“You did this, you did it.”’” 8

According to Burns, Hale threw up his arms and said, “‘“I 

didn’t do this.”’” 9

Firefighters responded to an alarm for a house fire at 9:12 a.m. 

Smoke was escaping from the house when they arrived. Inside, 

they found “‘pockets of fire’” that they quickly extinguished. 10

At that time, Elizabeth was seated on the neighbor’s front 

porch with a coat draped over her shoulders. The firefighters 

located Raymond lying across a bed in one of the bedrooms. 

He was not breathing. Raymond was transported to a hospital, 

where he was pronounced dead later that afternoon.

Police officer Roger Oseka testified that when he and another 

officer reached the scene, he saw Elizabeth sitting on the front 

porch of a neighbor’s house. Oseka also saw a black man, 

whom he identified in court as Hale, “‘walking in circles’” and 

saying, “‘“I was trying to save them.”’” 11

Oseka exited his cruiser and approached Elizabeth, whom 

he said was bleeding from her nose and mouth and had 

“‘burn sores’” on both arms. 12 After Oseka made contact with 

Elizabeth, she pointed at Hale and said, “‘“He did it.”’” 13

Oseka then directed the other officer to arrest Hale.

6 Id.

7 Id.

8 Id. at 73, 858 N.W.2d at 546.

9 Id.

10 Id.

11 Id.

12 Id.

13 Id.
- 729 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. HALE

Cite as 306 Neb. 725

A coroner’s physician, who performed an autopsy on 

Raymond’s body, opined that Raymond’s death was caused by 

“‘the complication of breathing smoke, soot, carbon monoxide, 

and the other hot gasses in the fire, [and] being burned by the 

fire.’” 14 The autopsy also showed numerous abrasions, lacerations, and bruises on Raymond’s body.

A fire investigator examined the house and identified six 

different points of origin of the fire, each independent of 

the other. He also found a couch cushion with “‘thermal 

damage.’” 15 He opined that the fire was set intentionally, based 

on the multiple points of origin and no indication that they 

would have naturally spread from one to another. He testified 

that his conclusions were consistent with Elizabeth’s description of events.

Inside, the house showed signs of a violent struggle. 

Firefighters saw what appeared to be streaks of blood on a 

refrigerator in the kitchen. Photographs of the house showed 

apparent blood on the leg of an upturned table, a windowsill 

in the room where Raymond was found, an exterior door, and 

the wall leading to the basement. Apparent blood was also 

documented on the sleeve and lining of the coat and on the 

recycling bin. Additionally, a pane in a basement window was 

broken and the latch used to open the window was bent. A 

handprint was pressed into the dirt outside the window.

Photographs of Hale after his arrest show a small cut on his 

nose, a scratch on his right arm, a small cut on his right leg, 

and scrapes or lacerations on his back.

A forensic DNA analysis was performed on several items 

retrieved from the scene. Blood on the left chest area and 

left sleeve of the coat generated a genetic profile matching 

Elizabeth’s. Hale’s DNA profile was consistent with blood 

on the right sleeve of the coat. The probability of an unrelated African American individual matching the profile is 1 in 

6.35 quintillion.

14 Id. at 75, 858 N.W.2d at 547.

15 Id.
- 730 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. HALE

Cite as 306 Neb. 725

Hale did not testify, but the State played for the jury several 

recordings of his statements. In a statement to police, Hale 

said that he “‘tried to save this lady.’” 16 Hale said that he 

was walking near the Vasholzes’ house when he saw smoke. 

Because the doors of the house were locked, Hale said that 

he kicked in a basement window and pulled Elizabeth from 

the house.

Four days after Raymond’s death, Hale sat for an interview 

with local media. During the interview, Hale said that he was 

walking to a bus stop when he saw smoke rising from the 

Vasholzes’ house. Hale said that he opened a door and saw an 

older woman that he recognized as a neighbor. Hale pulled her 

out of the house and went back for her husband when somebody attacked him from behind. Hale said that he went to the 

basement, broke a window, climbed out, called 911, and waited 

for police to arrive. Hale said that he covered the woman with 

his coat, but she told him to get away. Hale claimed that the 

police caused the laceration to his nose when they took him 

into custody.

Hale was charged with one count of first degree murder 

under Neb. Rev. Stat. § 28-303(2) (Reissue 2008). The information alleged that Hale killed Raymond while committing, or 

attempting to commit, a robbery, burglary, or arson.

A jury convicted Hale, and the court sentenced him to life 

imprisonment.

Motion for DNA Testing

On March 29, 2019, Hale filed a motion for DNA testing pursuant to the DNA Testing Act. In his motion, Hale 

requested DNA testing of four swabs of apparent blood taken 

from the Vasholzes’ house and a buccal swab obtained from 

Eugene McMiller, an individual that had been observed in the 

area. The swabs of apparent blood were collected from (1) the 

east basement stairs wall, (2) a windowsill and window latch 

16 Id. at 76, 858 N.W.2d at 548.
- 731 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. HALE

Cite as 306 Neb. 725

in the Vasholzes’ bedroom, and (3) the lowest concrete exterior 

step of the neighbor’s porch where Elizabeth was found. Hale 

did not submit affidavits in support of his motion.

The State filed a response and an inventory of evidence 

showing that the requested swabs were located in a freezer at 

the Omaha Police Department, but the buccal swab obtained 

from McMiller had been destroyed in 2014.

On October 28, 2019, the district court entered an order 

denying Hale’s motion for DNA testing after finding that the 

requested testing would not produce noncumulative, exculpatory evidence relevant to the claim that Hale was wrongfully convicted or sentenced. Citing this court’s opinion in 

State v. Dean,

 17 the district court concluded that even if Hale 

were excluded as being the contributor to the blood swabs on 

which he sought testing, he would not be exonerated because 

Elizabeth immediately identified Hale as the attacker, Hale 

stated that he had been inside the house attempting to assist 

the Vasholzes during the fire, Hale’s DNA was found on a coat 

located at the scene, and Hale was observed to have scratches 

on his person.

ASSIGNMENT OF ERROR

Hale assigns that the district court erred in denying his 

motion for DNA testing.

STANDARD OF REVIEW

[1,2] A motion for DNA testing is addressed to the discretion of the trial court, and unless an abuse of discretion is 

shown, the trial court’s determination will not be disturbed. 18

An appellate court will uphold a trial court’s findings of fact 

related to a motion for DNA testing unless such findings are 

clearly erroneous. 19

17 State v. Dean, 270 Neb. 972, 708 N.W.2d 640 (2006).

18 State v. Myers, 304 Neb. 789, 937 N.W.2d 181 (2020).

19 Id.
- 732 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. HALE

Cite as 306 Neb. 725

ANALYSIS

[3-5] The DNA Testing Act is a limited remedy providing inmates an opportunity to obtain DNA testing in order to 

establish innocence after a conviction. 20 Pursuant to the act, a 

person in custody takes the first step toward obtaining possible 

relief by filing a motion in the court that entered the judgment 

requesting forensic DNA testing of biological material. 21 The 

court has discretion to either consider the motion on affidavits 

or hold a hearing. 22 Under § 29-4120(1), an inmate may only 

request DNA testing of biological material that

(a) Is related to the investigation or prosecution that 

resulted in such judgment;

(b) Is in the actual or constructive possession or control of the state or is in the possession or control of others under circumstances likely to safeguard the integrity 

of the biological material’s original physical composition; and

(c) Was not previously subjected to DNA testing or 

can be subjected to retesting with more current DNA 

techniques that provide a reasonable likelihood of more 

accurate and probative results.

[6] If the criteria in § 29-4120(1) are met, and the reviewing 

court finds that “testing may produce noncumulative, exculpatory evidence relevant to the claim that the person was wrongfully convicted or sentenced” under § 29-4120(5), the court 

must order DNA testing. 23

[7,8] A court is not required to order DNA testing if such 

testing would not produce exculpatory evidence. 24 The DNA 

Testing Act defines exculpatory evidence as evidence “which 

20 State v. Betancourt-Garcia, 299 Neb. 775, 910 N.W.2d 164 (2018).

21 Id.

22 Id.

23 See, State v. Amaya, 305 Neb. 36, 938 N.W.2d 346 (2020); State v. Myers, 

supra note 18.

24 See State v. Ildefonso, 304 Neb. 711, 936 N.W.2d 348 (2019).
- 733 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. HALE

Cite as 306 Neb. 725

is favorable to the person in custody and material to the issue 

of the guilt of the person in custody.” 25 Part of the defendant’s 

burden of proof is to provide the court with affidavits or evidence at a hearing establishing that DNA testing may produce 

noncumulative, exculpatory evidence relevant to the claim that 

he or she was wrongfully convicted or sentenced. 26

It is undisputed in this case that the swabs of apparent 

blood Hale sought to be tested satisfy the criteria set forth in 

§ 29-4120(1); nor is it disputed that the buccal swab obtained 

from McMiller does not. Because the buccal swab obtained 

from McMiller was destroyed in 2014, it is no longer in the 

actual or constructive possession or control of the State or others as required by § 29-4120(1)(b). Thus, the sole issue in this 

appeal is whether the district court abused its discretion in concluding that DNA testing on the requested swabs of apparent 

blood would not produce noncumulative, exculpatory evidence 

relevant to Hale’s claim that he was wrongfully convicted.

[9] This court has recognized that the threshold showing 

required under § 29-4120(5) is “‘relatively undemanding . . . 

and will generally preclude testing only where the evidence at 

issue would have no bearing on the guilt or culpability of the 

movant.’” 27 Nevertheless, we conclude that Hale has failed to 

meet the threshold requirement for DNA testing.

On appeal, Hale contends the district court erred in denying his motion because “[i]f DNA testing provides results that 

another individual’s DNA is present on the crime scene(which 

[sic] is likely to have been left by the killer) this is exculpatory evidence as defined by Neb. Rev. Stat. §29-4119.” 28 Hale 

further asserts that even if he were placed at the scene of the 

crime, DNA test results on the swabs of apparent blood may 

produce a match to a possible suspect and thus exculpate 

25 § 29-4119.

26 See State v. Ildefonso, supra note 24.

27 See id. at 717, 936 N.W.2d at 352 (quoting State v. Buckman, 267 Neb. 

505, 675 N.W.2d 372 (2004)).

28 Brief for appellant at 8.
- 734 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. HALE

Cite as 306 Neb. 725

Hale as the actual killer. Hale also argues that DNA testing 

could be favorable to him and relevant to his claim of wrongful conviction by raising doubt regarding the veracity of testimony produced at trial. However, Hale produced no affidavits 

in support of his motion for DNA testing, and he provides only 

conclusory statements in support of his claims on appeal.

In his motion for DNA testing, Hale argued that the blood 

found on the basement stairs wall and on the windowsill and 

window latch in the Vasholzes’ bedroom could only be from 

the attacker and that a finding the blood did not come from 

Hale would prove his innocence. We rejected a similar argument in Dean.

 29

In Dean, the defendant, JaRon Dean, had been convicted of 

murder and had filed a postconviction motion for DNA testing of the firearm and ammunition used in the commission 

of the offense. Dean claimed that if DNA testing were conducted, it would “‘not produce any biological material associated with him’” and thus would prove that he was “‘not the 

shooter and had nothing whatsoever to do with the [crime].’” 30

Recognizing that the evidence presented at trial demonstrated 

Dean had possessed the firearm, we determined that even if 

Dean was correct and DNA testing would not have detected 

the presence of his DNA on the objects in question, the result 

would be at best inconclusive, and certainly not exculpatory. 

We stated:

[E]ven assuming a biological sample did exist and that 

Dean’s DNA was absent from that sample, on the record 

before us, it would be mere speculation to conclude that 

the absence of Dean’s DNA on the firearm and ammunition would exclude him as being the person who fired the 

fatal shot. This is particularly so in view of the persuasive 

and undisputed trial evidence to the contrary. 31

29 State v. Dean, supra note 17.

30 Id. at 973, 708 N.W.2d at 642.

31 Id. at 976, 708 N.W.2d at 645.
- 735 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. HALE

Cite as 306 Neb. 725

Similarly, in State v. Myers,

 32 we affirmed the denial of the 

request by the defendant, James Myers, for postconviction 

DNA testing after his murder conviction. In that case, Myers 

requested testing on items of evidence taken from the scene 

of the crime, the victim’s apartment. Myers claimed that his 

DNA would not be found on any of the items and that the test 

results would show there were other individuals present in the 

victim’s apartment. Myers also argued the test results would 

call into question the credibility of the witnesses who had testified against him. Recognizing the “overwhelming” evidence 

presented at trial showing Myers was present at the victim’s 

apartment with a handgun matching the one used in the killing, 

we determined DNA testing would fail to lead to noncumulative, exculpatory evidence. 33 We concluded:

Myers’ argument that testing will produce results which 

contradict this testimony and evidence and show he was 

not present at [the victim’s] apartment is not persuasive. 

DNA evidence is not a videotape of a crime, and the 

nonpresence of an individual’s DNA profile in a biological sample does not preclude that individual from having 

been present or in possession of the item tested. Instead, 

such results would merely show the individual’s DNA 

was not present in the specific biological sample tested. 

It would be mere speculation to conclude that the absence 

of Myers’ DNA on the apartment items, gun, and ammunition excludes him from having been at [the victim’s] 

apartment the night of the shooting. This is so particularly 

in view of the persuasive evidence of his presence at the 

apartment and possession of the handgun the night of 

the murder. 34

This court has previously held that DNA testing of semen 

samples recovered from the scene of a sexual assault and 

32 State v. Myers, supra note 18.

33 Id. at 800, 937 N.W.2d at 188.

34 Id. at 800, 937 N.W.2d at 188-89.
- 736 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. HALE

Cite as 306 Neb. 725

murder that may exclude two codefendants as contributors 

would result in noncumulative, exculpatory evidence. In State 

v. White,

 35 three of the accomplices of the defendant, Joseph 

White, had testified that they had observed only White and 

codefendant Thomas Winslow sexually assault the victim. 

White’s defense at trial was that he was not present at the scene 

of the crime and that he was convicted despite testimony indicating the biological evidence recovered from the scene could 

not be tied to him.

In denying White’s motion for DNA testing, the district 

court characterized White’s argument as a claim that DNA test 

results excluding him as a contributor could establish that he 

was not present and did not participate in the crime. Reversing 

the district court’s denial, we concluded that if DNA testing 

excluded both of the codefendants as contributors to the semen 

samples, the results would raise serious doubts regarding the 

credibility of the three accomplices that testified only White 

and Winslow had carried out the sexual assault. Recognizing 

this testimony was the “heart of the State’s case” and critical 

to White’s conviction, we concluded that evidence excluding 

both White and Winslow as contributors would be favorable to 

White and material to the issue of White’s guilt and, therefore, 

“‘exculpatory’” under § 29-4119. 36

The case before us does not present similar facts. There was 

persuasive evidence demonstrating that Hale was the assailant. Elizabeth immediately identified Hale as the individual 

that attacked her, he had injuries that were consistent with 

Elizabeth’s account of the attack, and other than Hale’s uncorroborated statement made during the media interview, there 

was no evidence to suggest that anyone other than Hale and the 

Vasholzes were inside the residence.

Hale did not mention his alleged attacker at the scene or 

when he was interviewed by police later that afternoon. The 

first time Hale brought up the possibility of another intruder 

35 State v. White, 274 Neb. 419, 740 N.W.2d 801 (2007).

36 Id. at 425, 740 N.W.2d at 806.
- 737 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. HALE

Cite as 306 Neb. 725

was during the media interview 4 days later. In the interview, 

Hale admitted to being inside the Vasholzes’ residence and 

claimed he had been attacked from behind before going to the 

basement and breaking a window. Thus, assuming Hale could 

be excluded as a contributor to any DNA found on the wall 

leading to the basement, the exclusion would contradict Hale’s 

own statements.

In his brief on appeal, Hale contends that DNA testing of 

the items requested may produce a match to a possible suspect. 

However, Hale provides no factual basis for this claim, nor 

does he indicate a sample of DNA in the State’s possession 

with which to compare any results.

In State v. Ildefonso,

 37 the defendant who had been convicted of first degree murder, Arlyn Ildefonso, sought DNA 

testing of numerous items of evidence collected during the 

investigation, including clothing, a syringe, blood swabs, and 

a possible piece of human tissue. Ildefonso argued that DNA 

test results would exclude him as a contributor and instead 

contain the DNA of the real killer. He also maintained that he 

had been framed for the murder and that testing showing the 

DNA of three individuals that had initially been implicated in 

the murder would raise serious doubts regarding the testimony 

of eyewitnesses that had been with Ildefonso at the time of 

the murder. In denying his motion for DNA testing, the district court stated that Ildefonso “‘does not indicate with any 

particularity, or truthful corroborating evidence, why testing of 

those items may present any exculpatory evidence relative to 

the claim that the defendant was wrongfully convicted—only 

hopeful conclusions.’” 38

Affirming the district court’s ruling, this court concluded 

that the absence of Ildefonso’s DNA on some of the items 

would be consistent with the evidence and would not be 

exculpatory, particularly in light of the eyewitness testimony 

presented against him at trial and Ildefonso’s possession of 

37 State v. Ildefonso, supra note 24.

38 Id. at 715-16, 936 N.W.2d at 351.
- 738 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. HALE

Cite as 306 Neb. 725

the murder weapon at the time he was arrested. Pointedly, we 

also noted that it was a problem for Ildefonso that the State’s 

index of property did not show that the State had actual or constructive possession of a DNA sample of the three individuals 

with which to compare any testing results.

[10] In the present case, without a known sample with 

which to compare the results, the lack of Hale’s DNA in the 

swabs of apparent blood would be inconclusive at best. We 

have explained:

The function of testing DNA evidence is to determine whether the sample being examined contains genetic 

characteristics similar to a sample from a known individual. There are two possible outcomes when comparing the 

samples. If the DNA test results from the samples match, 

i.e., the same DNA types are found at all loci tested from 

both samples, then the conclusion is that the sample from 

the known individual cannot be excluded as a possible 

source of the sample in question. If, on the other hand, the 

genetic information present in the DNA from the known 

individual is not present in the DNA from the sample 

being tested, then the DNA profiles do not match and the 

known individual is excluded as the source of the DNA 

sample in question. 39

In this case, Hale does not provide any evidence or specificity in regard to his claim that DNA testing will identify the 

actual attacker. And even if Hale’s DNA was not detected in 

the swabs of apparent blood, the results would not be exculpatory in light of the evidence presented at trial. Based on such 

results, it would be mere speculation to conclude that Hale was 

not the assailant.

In regard to the apparent blood found on the lowest concrete exterior step of the neighbor’s porch, Hale argued in his 

motion that testing would find the presence of his DNA. He 

asserted that the presence of his DNA would show that he had 

been cut while leaving through the basement window of the 

39 State v. Lotter, 266 Neb. 758, 770, 669 N.W.2d 438, 447 (2003).
- 739 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. HALE

Cite as 306 Neb. 725

Vasholzes’ house after the attack, because blood had leaked 

from the cut when he was standing on the steps speaking to the 

police. However, the uncontroverted evidence presented at trial 

shows that Hale never spoke to law enforcement while on the 

concrete steps.

Oseka testified that he was the first law enforcement officer 

on scene and that Hale was located in the grassy area between 

the sidewalk and the street when he arrived. Oseka stated that 

he and another officer apprehended Hale in this grassy area 

and secured him in the police cruiser after Elizabeth pointed at 

Hale and said, “‘“He did it.”’” 40 Oseka’s testimony was corroborated by Burns, who testified that he observed the officers 

take Hale into custody in the grassy area.

The laceration on Hale’s nose is consistent with Elizabeth’s 

version of the attack. Elizabeth testified that she heard breaking glass coming from the basement just before Hale rushed 

up the stairs and attacked her and Raymond. Moreover, Hale’s 

claim that his nose was injured while exiting the house contradicts his statement made during the media interview, in which 

he stated that the injury to his nose occurred when police took 

him into custody.

We conclude the district court did not err in finding that 

Hale’s request for DNA testing did not satisfy the requirements 

of § 29-4120(5)(c) and in denying Hale’s motion.

CONCLUSION

Hale did not meet his burden of showing that DNA testing 

may produce noncumulative, exculpatory evidence relevant to 

his claim that he was wrongfully convicted. Accordingly, we 

conclude that the district court did not abuse its discretion in 

denying Hale’s motion for DNA testing.

Affirmed.

Freudenberg, J., not participating.

40 State v. Hale, supra note 2, 290 Neb. at 73, 858 N.W.2d at 546.