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STATE v. MYERS

Cite as 304 Neb. 789

State of Nebraska, appellee, v. 

James E. Myers, appellant.

___ N.W.2d ___

Filed January 10, 2020. No. S-19-345.

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.

4. DNA Testing. Nebraska’s DNA Testing Act is a limited remedy providing inmates an opportunity to obtain DNA testing in order to establish 

innocence after a conviction.

5. ____. If the criteria set forth in Neb. Rev. Stat. § 29-4120(1) (Reissue 

2016) are met and if the court further determines that the requirements 

of § 29-4120(5) have been met, then the court must order testing.

6. DNA Testing: Evidence. The requirement that requested DNA testing 

produce noncumulative exculpatory evidence is relatively undemanding 

for a movant seeking DNA testing and will generally preclude testing 

only where the evidence at issue would have no bearing on the guilt or 

culpability of the movant.

7. ____: ____. DNA evidence is not a videotape of a crime, and testing 

shows only whether the biological sample in question belonged to the 

person tested against.

8. DNA Testing. 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.

9. ____. The nonpresence of an individual’s DNA profile in a biological 

sample merely shows the individual’s DNA was not present in the specific biological sample tested.

Nebraska Supreme Court Online Library

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

03/20/2020 09:08 AM CDT
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10. DNA Testing: Prosecuting Attorneys: Evidence. Whether the prosecution improperly withheld evidence is not properly presented in a motion 

for DNA testing.

Appeal from the District Court for Douglas County: J. 

Michael Coffey, Judge. Affirmed.

James E. Myers, pro se.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

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

and Papik, JJ.

Funke, J.

James E. Myers appeals the district court’s denial of his 

motion for testing under Nebraska’s DNA Testing Act1 and his 

motion for the appointment of counsel. Myers argues the district court erred in denying his motion by determining that the 

requested testing would not produce noncumulative exculpatory evidence, denying his request for counsel, and determining 

that the State did not withhold evidence. This appeal follows 

our decisions on direct appeal2 and after remand on an initial 

denial of Myers’ motion for DNA testing.3 For the reasons set 

forth herein, we affirm.

BACKGROUND

Myers was convicted of first degree murder, use of a deadly 

weapon in the commission of a felony, and possession of a 

deadly weapon by a felon in connection with the 1995 shooting death of Lynette Mainelli. The State’s factual allegations 

asserted that Myers was worried Mainelli was talking to the 

police about another person, so he killed Mainelli. After a 

1 Neb. Rev. Stat. § 29-4116 et seq. (Reissue 2016).

2 State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999).

3 State v. Myers, 301 Neb. 756, 919 N.W.2d 893 (2018).
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trial and guilty verdicts, Myers’ convictions were affirmed on 

direct appeal.4 In Myers’ direct appeal, we rejected his claim of 

insufficient evidence and summarized the evidence presented 

at trial, in relevant part:

Edward Wilson testified that he was in the van driven 

by Myers the night Mainelli was killed. Myers drove to 

the Blue Lake Manor Apartments, where Mainelli lived. 

Myers got out of the van, and . . . Wilson saw that he had 

on gloves. Myers went to the back of the van, and . . . 

Wilson heard a “clacking” noise, which he recognized as 

the sound of a bullet moving into a chamber. Myers then 

left the van and walked toward the apartment complex. 

He was gone for about 1 hour, and upon his return, he 

got in the van and took the passengers home [including 

Wilson and Sam Edwards].

. . . Edwards testified that as Myers dropped him off, 

Myers gave him a handgun and told him to “put it up” 

because the police were out and Myers had in-transit 

stickers on the van. Earlier, Edwards had seen the pistol 

on Myers’ lap. Edwards subsequently retrieved the pistol and gave it to . . . Wilson, who stated the pistol had 

once belonged to his sister [and] testified that he recognized the gun because it had a unique color and a name 

written on it and that he thought the black handle was 

unusual. . . . Wilson sold the pistol because he suspected 

that it had been used in the murder of Mainelli. The 

pistol was the same caliber as two .22-caliber casings 

found beside Mainelli’s body. Daniel Bredow, a firearm 

toolmarks examiner with the city of Omaha, testified 

that he compared the bullets found at the crime scene 

with bullets fired from the gun Myers gave Edwards. 

Bredow concluded that the bullets taken from the crime 

scene had been fired by the gun which could be traced 

to Myers.

4 Myers, supra note 2.
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[Timothy Sanders, who was in the same gang as Myers,] 

testified that in the summer and early fall of 1995, Myers 

had said that Mainelli was going to testify against Charles 

Duncan, so she needed to have “her cap pulled back and 

to be shot.” Sanders saw Myers with a small .22-caliber 

handgun in the summer of 1995. . . . [Wilson’s sister] 

testified that in December 1996, after Mainelli’s death, 

Myers had told her to tell the police he was with her at 

the time of the killing.5

In review of the trial record, the State also presented evidence about Myers’ plan to be intimate with Mainelli in connection with the shooting.6

 Timothy Sanders testified that 

Myers told him Mainelli needed to be shot and that Myers 

said he was going to have sex with Mainelli.7 After Mainelli’s 

death, Sanders testified that Myers told him that Mainelli 

walked into her bedroom, took off her clothes, and lay on 

the bed and that Myers shot her once the lights were out.8

Specifically, in response to questions by the prosecution, 

Sanders had explained:

A. . . . [H]e told me he was going to have sex with 

her. He was gonna kick with her, something of that 

nature, yeah.

. . . .

Q. After the death of . . . Mainelli —

. . . .

. . . did you have a conversation with . . . Myers concerning the events of that night, the night of her death?

A. Yeah.

Q. What did he tell you?

A. Just that he knocked on the door. She let him in. 

I guess they acted like — he acted like he was about 

5 Id. at 312-13, 603 N.W.2d at 388-89.

6 Myers, supra note 3.

7 Id.

8 Id.
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to have sex with her or something. And once the lights 

[were] out, he shot her.

The State referenced this exchange in its opening statements 

and explained:

Myers told . . . Sanders that he killed . . . Mainelli; and, 

more particularly, he told [him] how. He told him that he 

had shot her; that he talked to her. He convinced her to 

have sex with him; and that when she had laid down in 

the bed, he got next to her and shot her in the temple, and 

she was still moving so he shot her in the temple again.

In closing arguments, the prosecutor summarized: “She took 

off her clothes; she laid on the bed. He put the gun towards her 

temple and he shot her.”

In 2016, Myers filed his motion for “DNA testing of items 

of evidence that may contain biological material” pursuant to 

the DNA Testing Act. Myers listed items of evidence taken 

from the crime scene, including Mainelli’s bedding, bullets, 

spent .22-caliber casings, beverage containers, clothing, spiral 

notebooks, cigarette butts and ashtray contents, a gunshot residue test kit from Mainelli’s hands, vials of Mainelli’s blood, 

a sexual assault kit, and hair samples. Myers sought to have 

these items tested in order to exclude himself as a donor of any 

biological material. Myers asserted that if the testing revealed 

the presence of other males and failed to confirm his presence, 

he would be proved innocent. Myers additionally claimed the 

State withheld findings of biological evidence from him and 

asked for the appointment of counsel.

The State filed an inventory of evidence confirming the items 

Myers wished to have tested were in the State’s possession.

Following a hearing, the district court denied Myers’ 

motion. The court found DNA testing was not warranted under 

§ 29-4120(5) because the results would not provide exculpatory 

evidence. However, the court comingled its analysis of whether 

to require testing under § 29-4120(5) with the more onerous 

standard for vacating and setting aside a judgment based upon 

test results under § 29-4123(2) and (3). Accordingly, on appeal, 
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we remanded the issue to the district court for a determination of Myers’ motion based solely upon the requirements of 

§ 29-4120(5), including whether DNA testing of the items 

requested may produce noncumulative exculpatory evidence 

which is favorable to Myers and material to the issue of his 

guilt.9 Because we remanded the issue of whether Myers’ 

motion for testing should be granted, we also remanded the 

issue of whether Myers made the requisite showing for the 

appointment of counsel.10 We also held that whether the prosecution improperly withheld evidence is not properly presented 

in a motion for DNA testing and that upon remand, the district 

court need not consider this argument further.11

On remand, the court again denied Myers’ motion for DNA 

testing and determined that, applying only those grounds listed 

in § 29-4120(5), the results would not provide noncumulative 

exculpatory evidence. The court first addressed Myers’ allegation that testing of the items would fail to detect his DNA. 

Even if this allegation proved to be true, the court reasoned 

such a result would prove neither that Myers was not there nor 

that he did not commit the crimes of which he was convicted. 

Similarly, the court found Myers’ allegation that the DNA 

results would show other men had been in Mainelli’s apartment would not provide evidence that Myers was not there 

and did not commit the crimes. Regarding the sexual assault 

kit specifically, the court noted that the State’s arguments and 

the witnesses’ testimony did not allege Myers actually had 

sexual intercourse with Mainelli prior to murdering her and 

that thus, the absence of his DNA from the sexual assault kit 

would not exculpate him. Because the court overruled Myers’ 

motion for testing and found the testing would not provide 

noncumulative exculpatory evidence, the court also declined to 

appoint counsel.

9 Id.

10 Id.

11 Id.
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ASSIGNMENTS OF ERROR

Myers assigns the district court erred by (1) overruling his 

motion for DNA testing and finding that testing would not 

produce noncumulative exculpatory evidence, (2) overruling 

his motion to appoint counsel, and (3) failing to determine the 

State withheld evidence.

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.12 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.13

[3] Decisions regarding appointment of counsel under the 

DNA Testing Act are reviewed for an abuse of discretion.14

ANALYSIS

Denial of Myers’ Motion 

for DNA Testing

[4] Nebraska’s DNA Testing Act is a limited remedy providing inmates an opportunity to obtain DNA testing in order to 

establish innocence after a conviction.15 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.16

Section 29-4120(1) provides the parameters for such motion 

and states:

Notwithstanding any other provision of law, a person in 

custody pursuant to the judgment of a court may, at any 

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

13 Id.

14 State v. Phelps, 273 Neb. 36, 727 N.W.2d 224 (2007).

15 See, § 29-4117; Betancourt-Garcia, supra note 12.

16 Id.
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time after conviction, file a motion, with or without supporting affidavits, in the court that entered the judgment 

requesting forensic DNA testing of any 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.

In the instant case, there is no dispute that Myers met these 

required criteria for filing a § 29-4120(1) motion.

[5] Contrary to Myers’ contention, however, meeting the criteria to file a § 29-4120(1) motion does not require the district 

court to order testing. Instead, the reviewing court must also 

determine whether the requirements of § 29-4120(5) have been 

met. Section 29-4120(5) provides:

Upon consideration of affidavits or after a hearing, the 

court shall order DNA testing pursuant to a motion filed 

under subsection (1) of this section 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.
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Thus, if the § 29-4120(1) criteria are met and if the court further determines that the requirements of § 29-4120(5) have 

been met, then the court must order testing.17

[6] 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.18 This requirement is relatively undemanding for a movant seeking DNA testing and will generally 

preclude testing only where the evidence at issue would have 

no bearing on the guilt or culpability of the movant.19

Myers claims the requested testing would show other individuals were present in Mainelli’s apartment and would fail to 

show his DNA on any of the items. He argues that such results 

will call into question the credibility of the State’s witnesses by 

establishing he was not present and did not commit or participate in the crime. We agree with the district court’s determination that even if correct, such results would not rise to the level 

of exculpatory.

In State v. Dean,

20 we addressed the denial of a request for 

DNA testing by a defendant convicted of murder. In that case, 

the defendant requested testing of the firearm used in the commission of the offense and argued the testing would not produce any biological material associated with him, which would 

prove he did not handle the firearm and was not the shooter.21

We noted the contrary evidence concerning his possession of 

the firearm, including testimony from another witness and the 

defendant’s eventual confession to police that he had shot the 

firearm.22 We determined that even if the defendant was correct 

that DNA testing would not detect the presence of his DNA on 

17 Myers, supra note 3.

18 § 29-4119.

19 State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004).

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

21 Id.

22 Id.
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the objects in question, the result would be at best inconclusive, and certainly not exculpatory.23 We explained:

[A]ssuming a biological sample did exist and that [the 

defendant’s] DNA was absent from that sample, on the 

record before us, it would be mere speculation to conclude that the absence of [his] 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. . . . We conclude that the trial court did not abuse its 

discretion in refusing DNA testing because even if such 

tests produced the result that [the defendant] predicts, the 

result would not be exculpatory.24

[7] Likewise, in State v. Lotter,

25 we affirmed the denial of 

the defendant’s request for DNA testing after his murder convictions. In that case, the defendant claimed that blood spatter 

from the victims on an accomplice’s gloves, shoes, or clothing 

would establish that the accomplice was very close to the victims when they were shot and that the accomplice was not at 

the locations the accomplice described in his trial testimony.26

The defendant asserted that such DNA test results would aid 

in establishing that the accomplice lied at trial and would 

prove that the accomplice shot all three victims. We concluded that the accomplice’s testimony would not have been 

contradicted even if the defendant’s claims that testing would 

show the victims’ blood on the accomplice’s clothes were correct.27 We explained that DNA evidence is not a videotape of 

a crime and that testing shows only whether the biological 

sample in question belonged to the person tested against.28

23 Id.

24 Id. at 976-77, 708 N.W.2d at 645.

25 State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003).

26 Id.

27 Id.

28 Id.
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Because other evidence received was consistent with the 

alleged presence of the victims’ blood on the accomplice’s 

clothes and because testing would have established only 

whether the blood belonged to one or more of the victims, not 

how it was deposited on each item, we found it would be mere 

speculation to conclude that blood was on the accomplice’s 

clothing because he was the shooter.29

Similar to the evidence in Dean, the evidence received during Myers’ trial contradicts Myers’ underlying theory that he 

was not at the apartment and did not possess the gun used 

in Mainelli’s killing.30 Sanders testified that Myers told him 

prior to the murder that Mainelli needed to have “her cap 

pulled back and to be shot” because she was going to testify against another individual. Testimony was received from 

Edward Wilson and Sam Edwards, both of whom were passengers of the van that Myers drove to Mainelli’s apartment on 

the night of her death. Wilson testified that Myers drove the 

van to Mainelli’s apartment; got out of the van with gloves on; 

went to the back of the van, from where Wilson heard a noise 

he recognized as the sound of a bullet moving through a gun’s 

chamber; and walked toward the apartment complex, where 

he stayed for about an hour until he returned to the van and 

took the passengers home. Edwards testified that after returning from Mainelli’s apartment, Myers gave him a handgun and 

told him to “put it up” because the police were out and the van 

had “in transit stickers.” Edwards further testified that he had 

seen the handgun on Myers’ lap in the van prior to stopping at 

Mainelli’s apartment. Sanders confirmed that he had also seen 

Myers with a gun matching the handgun’s description around 

the time of the murder. The handgun was identified by witnesses, matched the caliber of the casings found by Mainelli’s 

body, and was examined by a firearm toolmarks examiner who 

determined it fired the bullets recovered at the crime scene. 

29 Id.

30 See Dean, supra note 20.
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Sanders also testified that after Mainelli’s death, Myers told 

him that Myers got Mainelli to walk into her bedroom, take off 

her clothes, and lie on the bed where Myers shot her once the 

lights were out. Wilson’s sister testified that Myers told her to 

tell the police he was with her at the time of the killing. This 

evidence presented at trial showing Myers was at the apartment 

with a handgun matching the one used in Mainelli’s shooting 

is overwhelming.

[8,9] Myers’ argument that testing will produce results 

which contradict this testimony and evidence and show he was 

not present at Mainelli’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.31 Instead, such results would 

merely show the individual’s DNA was not present in the specific biological sample tested.32 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 Mainelli’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.

Additionally, assuming the DNA testing would show other 

individuals’ biological samples were present in Mainelli’s 

apartment, such results are consistent with the State’s evidence 

and arguments presented at trial. It is likely testing evidence 

from Mainelli’s apartment would indicate other individuals 

had been at the apartment. However, evidence received during Myers’ trial already established other individuals had been 

present at Mainelli’s apartment prior to her death. Specifically, 

testimony confirmed that the other individuals who had access 

to Mainelli’s apartment included Mainelli’s roommate, that 

31 See, id.; Lotter, supra note 25.

32 See id.
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other individuals were present in the apartment the night of 

Mainelli’s death, and that Mainelli had numerous boyfriends 

at the time of her death. Additionally, fingerprints of other 

men were found at Mainelli’s apartment. Myers’ trial counsel noted this evidence and placed emphasis on these other 

individuals’ access and the fact that Myers’ fingerprints were 

not found at the scene while other individuals’ fingerprints 

were. Accordingly, the requested DNA testing based upon 

Myers’ claims that it would show other individuals’ biological 

presence in Mainelli’s apartment would not produce exculpatory evidence.

As to the sexual assault kit, Myers argues that DNA testing would contradict the State’s theory that he had sex with 

Mainelli prior to her murder. However, as the district court 

correctly noted, the State did not argue Myers had sex with 

Mainelli prior to killing her and the State’s witnesses did 

not allege he did so. Instead, the testimony received was that 

Myers told others he was willing to be intimate with Mainelli 

in pursuit of his plan to keep her quiet. Sanders testified that 

prior to Mainelli’s death, Myers told him Mainelli needed to be 

shot, and that Myers said he was willing to have sex with her 

in pursuit of that goal. Sanders testified that after Mainelli’s 

death, Myers told him Mainelli walked into her bedroom, took 

off her clothes, and lay on the bed and that Myers “acted like 

he was about to have sex with her or something” and shot her 

once the lights were out.

The State used this testimony in opening statements to 

allege that “[Myers] convinced [Mainelli] to have sex with 

him; and that when she had laid down in the bed, he got next 

to her and shot her in the temple, and she was still moving so 

he shot her in the temple again.” Similarly, in closing arguments, the prosecutor summarized: “She took off her clothes; 

she laid on the bed. He put the gun towards her temple and he 

shot her.” The lack of Myers’ biological presence in Mainelli’s 

sexual assault kit would be consistent with the State’s theory 

of the case and the testimony received at trial. As such, the 
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requested testing of the sexual assault kit would fail to produce 

exculpatory evidence.

Because the requested testing would fail to lead to noncumulative exculpatory evidence as determined above, the 

district court did not err in finding Myers’ request for DNA 

testing did not meet the requirements of § 29-4120(5)(c) and in 

denying Myers’ motion.

Declining to Appoint Counsel

Under the DNA Testing Act, 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.33 In 

similar cases where we affirmed findings that the requested 

testing would not produce noncumulative exculpatory evidence, we applied that finding to determine the applicants 

failed to show the DNA testing was relevant to the wrongful 

conviction claims.34 For the reasons discussed above, Myers 

did not make the requisite showing that DNA testing may be 

relevant to his claim of wrongful conviction and the district 

court, therefore, did not abuse its discretion in denying his 

request for appointment of counsel.

Failing to Determine State 

Withheld Evidence

[10] Myers also assigns the district court erred in failing to 

determine whether the State refused to allow Myers access to 

the sexual assault kit. We addressed this assignment of error 

in our decision after remand on the initial denial of Myers’ 

motion for DNA testing and held the district court need not 

consider this argument further because such a claim is not 

part of the DNA Testing Act framework.35 As a result, whether 

the prosecution improperly withheld evidence is not properly 

33 § 29-4122.

34 See, Phelps, supra note 14; Dean, supra note 20.

35 Myers, supra note 3.
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presented in a motion for DNA testing.36 Therefore, this assignment of error is without merit.

CONCLUSION

The DNA testing requested by Myers would not result in 

noncumulative exculpatory evidence relevant to his wrongful 

conviction claim. We therefore affirm the district court’s denial 

of Myers’ motion for DNA testing and motion for appointment 

of counsel.

Affirmed.

Freudenberg, J., not participating.

36 Id.