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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. ILDEFONSO

Cite as 304 Neb. 711

State of Nebraska, appellee, v. 

Arlyn P. Ildefonso, appellant.

___ N.W.2d ___

Filed December 20, 2019. No. S-19-060.

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. ____: ____. Decisions regarding appointment of counsel under the DNA 

Testing Act are reviewed for an abuse of discretion.

Appeal from the District Court for Douglas County: W. 

Russell Bowie III, Judge. Affirmed.

Arlyn P. Ildefonso, pro se.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

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

and Papik, JJ.

Cassel, J.

INTRODUCTION

Arlyn P. Ildefonso appeals from the denial of his motions for 

DNA testing and appointment of counsel. Because Ildefonso 

failed to demonstrate that DNA testing may produce noncumulative, exculpatory evidence, the district court did not abuse its 

discretion by denying his motions. We affirm.

Nebraska Supreme Court Online Library

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

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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. ILDEFONSO

Cite as 304 Neb. 711

BACKGROUND

Circumstances of Crimes

On September 13, 1999, Carr Hume’s body was found 

lying partially on a sidewalk and partially on a curb in front 

of a house in the area of 42d and Bancroft Streets in Omaha, 

Nebraska. Blood spatter evidence indicated that he had been 

shot at that location. Hume died from a single gunshot wound 

to the head. No shell casings were found at the scene. Items 

located at the scene included a baseball hat, assumed to belong 

to Hume; a piece of possible human tissue near a curb across 

from Hume’s body; and a syringe in the street.

Christina Devore-Alexander testified that she was with 

Ildefonso and Kristine Reh late in the evening on September 

12, 1999, and into the early morning hours of September 13. 

They left an apartment around 3 a.m., with Devore-Alexander 

driving and Ildefonso giving directions. According to DevoreAlexander, while she was driving, Ildefonso was “very upset” 

and said the only thing that would make him feel better 

was “if he shot somebody.” Near 42d and Bancroft Streets, 

Devore-Alexander stopped the car and Ildefonso got out. As 

Devore-Alexander was talking to Reh, she heard a gunshot 

and looked up. She saw Ildefonso’s extended arm holding a 

gun and Hume lying on his back on the ground. Reh testified that once the car stopped on 42d Street, Ildefonso got 

out, Reh heard a gunshot, and then Ildefonso got back in 

the car. As the vehicle drove away, Reh saw a man lying on 

the sidewalk.

On approximately September 24, 1999, Mark Anderson 

told police that he had been with the individuals responsible for the shooting. At that time, Anderson was in police 

custody due to his suspected involvement in an automobile 

theft. Based on information from Anderson, police identified Randall Fields and Shannon Smith as possible suspects. 

Anderson told officers that Fields shoved Hume, produced a 

handgun, and fired two times, striking Hume with the second 
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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. ILDEFONSO

Cite as 304 Neb. 711

shot. Police arrested Fields and Smith and brought them 

into custody.

As an officer was preparing to interview Fields, the officer 

received a call from Amy Taylor, who said that she knew who 

the shooter was and that the wrong people had been arrested. 

The officer testified that Taylor told him Ildefonso used a 

.357-caliber revolver during the shooting and that he was with 

Devore-Alexander and Reh. The officer asked Taylor to obtain 

some of the bullets for the gun.

Taylor testified that she called the police after seeing on 

television that the wrong people had been arrested for Hume’s 

murder. Taylor had been staying with Ildefonso in a motel. She 

testified that Ildefonso told her that he shot Hume “[b]ecause 

he was mad and he wanted the world to feel his pain.” She had 

seen Ildefonso with several firearms, including a .357-caliber 

revolver. At the request of the police, Taylor obtained shells 

from the .357-caliber revolver from Ildefonso’s backpack and 

gave them to the motel clerk for the police to retrieve. Taylor 

testified that it was “possible” Fields—whom she last saw 4 

years earlier—was the father of one of her children.

After speaking with Devore-Alexander, Reh, and Taylor, 

officers reinterviewed Anderson. Anderson said that he used 

news accounts of the murder to concoct the story against Fields 

and Smith for revenge. An officer testified that in retrospect, 

parts of Anderson’s original stories to the police were not consistent with what the officers learned. After Anderson recanted, 

he was charged with a crime for delaying the actual suspect 

from being apprehended.

On October 1, 1999, police took steps to obtain a warrant to 

search Ildefonso, a vehicle, and a motel room. While surveilling the motel, an officer saw Ildefonso and Taylor leave the 

motel in a vehicle. Officers subsequently stopped the vehicle. 

Taylor testified that when pulled over by the police, Ildefonso 

removed the .357-caliber revolver from his waistband and put 

it under the front passenger’s seat of the vehicle. Police collected the revolver as evidence.
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304 Nebraska Reports

STATE v. ILDEFONSO

Cite as 304 Neb. 711

During an autopsy of Hume, a doctor recovered a bullet and 

bullet fragments from the right side of the base of the skull. 

An expert testified that the bullet taken from Hume’s head 

was fired from the .357-caliber revolver recovered from under 

the front passenger’s seat of the vehicle in which Ildefonso 

was seated.

A jury convicted Ildefonso of murder in the first degree and 

use of a deadly weapon to commit a felony. We affirmed his 

convictions on direct appeal.1

Motion for DNA Testing

In 2018, Ildefonso filed a motion for DNA testing. He 

identified 12 items/groups of items, including clothing collected from Hume, the hat, the possible piece of human 

tissue, the syringe, blood swabs, forensic evidence from a 

Mitsubishi automobile, personal clothing from other individuals (Anderson, Fields, and Smith), bullets or shell casings, firearms, other live or spent ammunition collected from 

Ildefonso, and Ildefonso’s backpack. Ildefonso then set forth 

claims of actual innocence, wrongful conviction, and violations of his constitutional rights. He theorizes that Taylor set 

him up to “free her child[’]s father,” and his motion points 

to alleged inconsistencies in the testimonies of various trial 

witnesses. As relevant to DNA testing, Ildefonso lists a series 

of questions:

Was the hat found near . . . Hume ever tested for DNA? 

Does the hat belong to Fields, Smith, Anderson or some 

other perp[e]trator who was with Anderson that night? 

Was the syringe and “tissue like substance” tested for 

DNA? Who do they belong to? Anderson said that Fields 

shoved . . . Hume prior to shooting him. Were . . . 

Hume’s clothes tested for DNA to see if there is anyone 

else’s DNA on them? Was the stolen Mitsubishi car that 

Anderson said was used during this crime, ever processed 

1 See State v. Ildefonso, 262 Neb. 672, 634 N.W.2d 252 (2001).
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STATE v. ILDEFONSO

Cite as 304 Neb. 711

for forensic evidence? Was . . . Hume’s, Field’s, Smith’s, 

Anderson’s, or anyone else’s DNA located in there? 

Fingerprints, hair, blood, or anything? Was any search 

warrants done on Fields, Smith, or Anderson to look for 

the clothing that Anderson said that they were wearing 

that night? Was it found? Was . . . Hume[’]s DNA or 

blood on any of them?

In the motion, Ildefonso requested that counsel be appointed 

to represent him. He subsequently filed a separate motion for 

appointment of counsel.

After the State filed an index of property, the court entered 

an order concerning Ildefonso’s motion. The court recognized 

that most of the motion and affidavit reasserted claims raised 

in Ildefonso’s motion for postconviction relief and were irrelevant to issues of DNA testing. Because Ildefonso did not 

indicate why testing of the various items may present exculpatory evidence, the court allowed him time to file a supplemental affidavit.

Ildefonso then filed a supplemental affidavit. He alleged 

that Anderson was an eyewitness to and participant in Hume’s 

death and that Anderson said a man shoved Hume before 

shooting him. Thus, Ildefonso claimed that there might have 

been a DNA transfer from the killer’s hands onto Hume’s 

clothes. And because the hat located near Hume’s body was 

not found conclusively to be Hume’s hat, Ildefonso posited 

that the hat may belong to a person involved in the crime. 

He believed DNA evidence left by the actual killer would be 

located on the items.

District Court’s Decision

The district court determined that Ildefonso failed to show 

such testing may produce noncumulative, exculpatory evidence 

relevant to the claim that he was wrongfully convicted. The 

court noted that Ildefonso’s supplemental affidavit relied on 

Anderson’s statements, even though Anderson admitted fabricating his story. The court stated that Ildefonso “does not 
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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. ILDEFONSO

Cite as 304 Neb. 711

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.” The court denied 

Ildefonso’s motion for appointment of counsel and motion for 

DNA testing.

Ildefonso filed a timely appeal.

ASSIGNMENT OF ERROR

Ildefonso assigns that the district court erred when it failed 

to follow the DNA Testing Act2 and order DNA testing on specific items and, thereafter, to follow the act’s protocol, including the appointment of counsel, the conducting of a full factfinding hearing, and the making of a judicial decision based on 

all information germane to the case.

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.3 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.4

[3] Decisions regarding appointment of counsel under the 

DNA Testing Act are reviewed for an abuse of discretion.5

ANALYSIS

DNA Testing Act

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 

2 Neb. Rev. Stat. §§ 29-4116 to 29-4125 (Reissue 2016).

3 State v. Myers, 301 Neb. 756, 919 N.W.2d 893 (2018).

4 Id.

5 Id.
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STATE v. ILDEFONSO

Cite as 304 Neb. 711

testing of biological material.6 The court has discretion to 

either consider the motion on affidavits or hold a hearing.7

Under § 29-4120(5), the court shall order DNA testing upon a 

determination that

(a)(i) the biological material was not previously subjected to DNA testing or (ii) the biological material was 

tested previously, but current technology could provide 

a reasonable likelihood of more accurate and probative 

results, (b) the biological material has been retained under 

circumstances likely to safeguard the integrity of its 

original physical composition, and (c) such testing may 

produce noncumulative, exculpatory evidence relevant 

to the claim that the person was wrongfully convicted 

or sentenced.

Under the act, “exculpatory evidence means evidence which is 

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

the guilt of the person in custody.”8

Denial of Motion 

for DNA Testing

Part of the defendant’s burden of proof is to provide the 

court with affidavits or evidence at a hearing establishing the 

three required factual determinations under § 29-4120(5).9 We 

have recognized that the showing needed to satisfy the requirement that DNA testing may produce noncumulative, exculpatory evidence 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.”10

Although the threshold to obtain DNA testing is rather low, we 

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

7 Id.

8 § 29-4119.

9 See State v. Young, 287 Neb. 749, 844 N.W.2d 304 (2014).

10 State v. Buckman, 267 Neb. 505, 515, 675 N.W.2d 372, 381 (2004).
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STATE v. ILDEFONSO

Cite as 304 Neb. 711

agree with the district court that Ildefonso did not meet this 

minimal threshold.

A court is not required to order DNA testing if such testing 

would not produce exculpatory evidence. In State v. Dean,

11 we 

reasoned that “even if [the prisoner] is correct and DNA testing would not detect the presence of his DNA on the objects in 

question, the result would be at best inconclusive, and certainly 

not exculpatory.” The same is true here. Ildefonso asserts that 

his DNA will not appear on any of the items. But the absence 

of his DNA on some of the items would be consistent with the 

evidence and would not be exculpatory, particularly in light 

of the testimonies of Devore-Alexander, Reh, and Taylor and 

Ildefonso’s possession of the murder weapon at the time of 

his apprehension.

Ildefonso essentially seeks DNA testing to corroborate 

Anderson’s original story. Ildefonso maintains that he was 

framed for the murder, and he argues that testing showing 

the DNA of Anderson, Fields, or Smith would raise serious 

doubts regarding the credibility of Devore-Alexander, Reh, 

and Taylor. One problem for Ildefonso is that the State’s index 

of property does not show that the State has actual or constructive possession of a DNA sample of Anderson, Fields, 

or Smith with which to compare any testing results. Another 

problem is that Anderson recanted his story—parts of which 

police determined were not credible or were not consistent 

with the evidence—and was charged with a crime for his false 

report. An admittedly fabricated story does not provide a basis 

for DNA testing.

We find no error in the district court’s factual findings 

that the evidence Ildefonso desired to have tested would 

not produce exculpatory evidence. Thus, we find no abuse 

of discretion by the court in denying Ildefonso’s motion for 

DNA testing.

11 State v. Dean, 270 Neb. 972, 976, 708 N.W.2d 640, 644 (2006).
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STATE v. ILDEFONSO

Cite as 304 Neb. 711

Appointment of Counsel

A court shall appoint counsel for an indigent person upon 

a showing that DNA testing may be relevant to the person’s 

claim of wrongful conviction.12 Here, Ildefonso did not make 

the requisite showing that DNA testing may be relevant to his 

claim of wrongful conviction. Accordingly, the court did not 

abuse its discretion in refusing Ildefonso’s request for appointment of counsel.

CONCLUSION

Because Ildefonso did not meet his burden of showing that 

DNA testing may produce noncumulative, exculpatory evidence relevant to his claim that he was wrongfully convicted, 

we conclude that the district court did not abuse its discretion 

in denying Ildefonso’s motions for DNA testing and appointment of counsel.

Affirmed.

Freudenberg, J., not participating.

12 § 29-4122.