- 455 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. DUNCAN

Cite as 309 Neb. 455

State of Nebraska, appellee, v. 

Daryle M. Duncan, appellant.

___ N.W.2d ___

Filed June 11, 2021. No. S-20-565.

1. Motions for New Trial: DNA Testing: Appeal and Error. A motion for 

new trial based on newly discovered exculpatory evidence obtained pursuant to the DNA Testing Act, Neb. Rev. Stat. § 29-4116 et seq. (Reissue 

2016 & Cum. Supp. 2018), is addressed to the discretion of the district 

court, and unless an abuse of discretion is shown, the court’s determination will not be disturbed.

2. Motions for New Trial: DNA Testing: Proof. To warrant an order for 

a new trial under the DNA Testing Act, the movant must present DNA 

testing results that probably would have produced a substantially different result if the evidence had been offered and admitted at the movant’s trial.

3. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

4. DNA Testing: Evidence. 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.

Appeal from the District Court for Douglas County: J 

Russell Derr, Judge. Affirmed.

Robert W. Kortus, of Nebraska Commission on Public 

Advocacy, for appellant.

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

Vincent for appellee.

Nebraska Supreme Court Online Library

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

06/18/2021 08:07 AM CDT
- 456 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. DUNCAN

Cite as 309 Neb. 455

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

and Papik, JJ.

Papik, J.

In 2001, Daryle M. Duncan was convicted of first degree 

murder and use of a deadly weapon to commit a felony. He 

now appeals a district court order that denied his motion for 

new trial based on evidence obtained through the DNA Testing 

Act. Duncan challenges the district court’s determination that 

new DNA evidence acquired from two billfolds found near the 

victim’s body, when considered with the evidence previously 

presented at his trial, did not warrant a new trial. He also contends that the district court erred in not considering evidence 

that was not received at trial, but was received during earlier postconviction proceedings. Finding no merit to Duncan’s 

arguments, we affirm.

BACKGROUND

Convictions, Sentences, and Direct Appeal.

Following a jury trial in 2001, Duncan was convicted of first 

degree murder and use of a deadly weapon to commit a felony, 

in connection with the death of Lucille Bennett. Bennett was 

discovered in her home at 10:30 a.m. on December 5, 1999, 

dead from a knife wound to the right side of her neck. There 

were no signs of forced entry. Some billfolds were found near 

Bennett’s body. The billfolds did not contain valuables and 

did not yield fingerprint evidence. Money orders obtained by 

Bennett were cashed after her death.

At Duncan’s trial, his ex-wife Jaahlay Liwaru testified on 

behalf of the State. Duncan and Liwaru had previously lived 

across the street from Bennett. Liwaru testified that Bennett 

generally did not let anyone into her house, but she had 

allowed Liwaru and Duncan inside to use her telephone on different occasions.

In December 1999, Liwaru was residing at a drug treatment 

center. She testified that she was expecting Duncan to deliver 

money from her government assistance check to her at the 
- 457 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. DUNCAN

Cite as 309 Neb. 455

treatment center, but that Duncan did not deliver the money. 

Liwaru testified that between 1 and 3 a.m. on December 5, 

1999, Duncan called her and said that he had “messed up” her 

money and that he was trying to get it back. He also said that 

the “lady across the street” had been murdered. Liwaru testified that Duncan told her the woman had “gotten sliced from 

. . . neck to neck . . . and she got stabbed up.” Duncan said 

that he was going to go to hell, and Liwaru, believing Duncan 

meant he would go to hell for spending the money that he had 

agreed to deliver to her, said he would not be going to hell 

because of that. According to Liwaru, Duncan replied, “[W]hat 

if I told you I killed Ms. Bennett.” Liwaru immediately told 

another patient about Duncan’s call, and the other patient later 

corroborated this version of Liwaru’s account at trial.

Liwaru testified that Duncan called her again shortly after 

10 a.m. on the same day. Duncan told Liwaru that he had seen 

Bennett’s body being removed from her home; however, other 

testimony established that Bennett was not removed from her 

home until later that evening. Immediately after Duncan’s 

second call, Liwaru told an employee of the drug treatment 

center that her neighbor had been murdered and robbed. The 

employee later testified and confirmed Liwaru’s testimony.

On cross-examination, Liwaru admitted that she told police 

that Duncan’s telephone calls may have occurred on December 

6, 1999, or on the evening of December 5, and that she had 

shared “a couple” versions of the calls with police. She also 

denied that Duncan had told her he was involved in Bennett’s 

murder.

One of Bennett’s neighbors, who was acquainted with 

Duncan, testified that he saw Duncan in Bennett’s neighborhood on December 4, 1999.

A criminologist from the Nebraska State Patrol laboratory 

testified that his examination of hairs found at Bennett’s home 

showed several of them to be consistent with hair samples 

from Duncan’s dogs. Another hair found at Bennett’s house 

was similar in some respects to a sample collected from 
- 458 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. DUNCAN

Cite as 309 Neb. 455

Duncan, but it was also dissimilar to Duncan’s hair in some 

ways, mainly the manner in which it was cut.

The parties offered into evidence two stipulations concerning the results of DNA testing performed on several items of 

evidence. The stipulations showed that most of the results were 

inconclusive, but Duncan could not be excluded as a donor of 

blood found on Bennett’s bedding and was excluded as a contributor to DNA found on the knife used to kill Bennett.

During closing arguments, the State asserted that the billfolds near Bennett appeared to have been emptied, suggesting 

that Bennett had been murdered during a robbery. The State 

also emphasized that the absence of fingerprints other than 

Bennett’s at the scene did not exclude Duncan or show that 

he did not commit the crimes. Closing remarks by Duncan’s 

counsel framed the parties’ stipulations as demonstrating that 

“the DNA didn’t show anything.”

Duncan received consecutive sentences of life imprisonment on the murder conviction and 19 to 20 years’ imprisonment for use of a deadly weapon to commit a felony. In 2003, 

this Court affirmed Duncan’s convictions and sentences on 

direct appeal. See State v. Duncan, 265 Neb. 406, 657 N.W.2d 

620 (2003).

2008 Postconviction Proceedings.

Duncan filed a series of motions for postconviction relief, 

alleging, among other things, that he received ineffective 

assistance of counsel at trial and on appeal. At an evidentiary 

hearing in 2008, Duncan attempted to demonstrate that trial 

counsel was ineffective in failing to show that Liwaru’s narrative was fabricated due to coercion by the police and that 

counsel failed to properly investigate evidence of a particular 

alternative suspect.

The district court entered an order denying Duncan’s motion 

for postconviction relief. In relevant part, the district court 

found that (1) the police did not use coercive tactics to obtain 

Liwaru’s statements, and Liwaru’s affidavit to the contrary 
- 459 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. DUNCAN

Cite as 309 Neb. 455

was belied by the transcripts from her interviews with police, 

and (2) Duncan’s suggested alternative suspect was not a 

viable suspect in Bennett’s murder because, other than living 

in the area, there was no evidence linking that individual to the 

crime and Bennett’s murder did not fit the modus operandi of 

his other crimes.

Duncan appealed the district court’s order, and we affirmed. 

See State v. Duncan, 278 Neb. 1006, 775 N.W.2d 922 (2009). 

We did not reach the merits of Duncan’s allegations of ineffective assistance of trial and appellate counsel involving police 

coercion of Liwaru and his alternative suspect theory because 

the claims were either procedurally barred or not assigned 

on appeal.

Motion for DNA Testing.

Years after Duncan’s motion for postconviction relief was 

denied, he moved for DNA testing pursuant to the DNA Testing 

Act, Neb. Rev. Stat. § 29-4116 et seq. (Reissue 2016 & Cum. 

Supp. 2018). Duncan sought DNA testing on three billfolds—

a red billfold and a black billfold, both found near Bennett’s 

body on the bed, and a white billfold found on a dresser next 

to the bed. At a hearing on Duncan’s motion, Duncan offered 

into evidence a partial transcript from his trial and photographs 

depicting the location of the billfolds at the crime scene. The 

excerpts from trial showed that the State’s case was based on 

the theory that Duncan killed Bennett during a robbery. The 

district court granted Duncan’s motion for DNA testing.

Motion for New Trial.

After obtaining the results of the DNA testing, Duncan filed 

a motion pursuant to Neb. Rev. Stat. § 29-4123(2), requesting 

a hearing and order finding that the results exonerated him. In 

the alternative, he moved for a new trial pursuant to Neb. Rev. 

Stat. § 29-2101(6) (Reissue 2016), and submitted a supporting affidavit. It is the motion for new trial that is at issue in 

this appeal.
- 460 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. DUNCAN

Cite as 309 Neb. 455

At a hearing on the motions, Duncan offered into evidence 

the deposition and report of Mellissa Helligso, the forensic 

DNA analyst who performed the ordered testing, and a volume 

of the bill of exceptions from his 2008 postconviction proceedings, with exhibits that included trial proceedings. Upon the 

State’s request, the district court took judicial notice of the 

entire bill of exceptions and court files.

Helligso’s deposition and report reflected that only the red 

and black billfolds produced partial DNA profiles capable of 

comparison analysis; the white billfold did not yield enough 

DNA to make any scientific findings. Helligso analyzed DNA 

samples from the red and black billfolds using “STRmix,” a 

probabilistic genotyping program that generates “likelihood 

ratios.” The parties stipulated that STRmix was a valid scientific test. Helligso determined that each billfold contained a 

mixture of two individuals and calculated the likelihood that 

the profile matched (1) Duncan and one unknown individual 

versus two unknown individuals and (2) Bennett and one 

unknown individual versus two unknown individuals.

For the red billfold, Helligso testified that the amount of 

DNA found was “very low,” which typically would result in 

less informative statistics associated with that profile. Helligso 

concluded that it was at least 16 times more likely the profile 

from the red billfold originated from two unknown individuals than from Duncan and one unknown individual and that 

it was at least 1,400 times more likely the profile originated 

from two unknown individuals than from Bennett and one 

unknown individual. Helligso explained that neither ratio supported a conclusion that Duncan or Bennett was a contributor. 

However, she testified that STRmix could exclude a person as a contributor and confirmed that neither Bennett nor 

Duncan could be excluded as a contributor to the DNA on the 

red billfold.

As to the black billfold, Helligso’s results showed that it was 

at least 40 times more likely that the profile originated from 

two unknown individuals than from Duncan and one unknown 
- 461 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. DUNCAN

Cite as 309 Neb. 455

individual. Helligso testified that this ratio did not support 

a conclusion that Duncan was a contributor. Helligso determined that it was equally likely the profile originated from two 

unknown individuals as from Bennett and one unknown individual and that this ratio was “uninformative,” meaning that no 

conclusions could be drawn from it.

Helligso testified that skin or touch DNA is more likely to 

produce a partial profile than blood or semen and that it can be 

removed by further touching of an item.

District Court’s Order.

The district court denied Duncan’s request for an order finding that the DNA test results exonerated him and denied his 

motion for new trial.

Relevant to the motion for new trial and to this appeal, the 

district court considered whether there was newly discovered 

exculpatory DNA evidence of such a nature that if it had been 

offered and admitted at the former trial, it probably would have 

produced a substantially different result. It concluded that the 

“low grade and low probability DNA results” from the two 

billfolds would not have produced a different result, pointing to the fact that Duncan had told Liwaru details that only 

Bennett’s killer would know and that the jury heard argument 

that Duncan’s DNA was not found at the scene.

The district court rejected Duncan’s argument that if robbery was the motive, as posited by the State at trial, the person 

responsible for Bennett’s death would have left DNA on the 

billfolds. The district court reasoned that one could also suppose that the perpetrator had worn gloves or fled the crime 

scene for any number of reasons after killing Bennett, without 

touching the billfolds. It stated that perhaps “the murderer . . . 

fled the scene . . . for whatever reason without touching the 

billfolds—perhaps the murderer became frightened by what 

had just happened, perhaps heard a noise, perhaps did not see 

the billfolds despite their placement.” It also reiterated that the 

jury was informed that no DNA evidence pointed to Duncan.
- 462 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. DUNCAN

Cite as 309 Neb. 455

The district court further reasoned that the new DNA evidence would not call into question the credibility of any witness, as no witness had testified to seeing Duncan touch the 

billfolds and the new DNA evidence would not have excluded 

Duncan from being in Bennett’s home. In this way, the district court distinguished this case from State v. Parmar, 283 

Neb. 247, 808 N.W.2d 623 (2012), which we discuss in detail 

below.

In reaching its decision, the district court did not consider 

the evidence offered at Duncan’s earlier postconviction proceedings but not offered at trial.

Duncan timely appeals the portion of the order denying his 

motion for new trial.

ASSIGNMENTS OF ERROR

Duncan assigns that the district court erred in (1) not considering evidence from his 2008 postconviction proceedings and 

(2) denying his motion for new trial.

STANDARD OF REVIEW

[1] A motion for new trial based on newly discovered exculpatory evidence obtained pursuant to the DNA Testing Act is 

addressed to the discretion of the district court, and unless an 

abuse of discretion is shown, the court’s determination will not 

be disturbed. State v. El-Tabech, 269 Neb. 810, 696 N.W.2d 

445 (2005).

ANALYSIS

At issue in this appeal is Duncan’s motion for new trial 

pursuant to § 29-2101(6). Under that subsection, a court may 

order a new trial if the newly discovered exculpatory DNA 

evidence is of such a nature that if it had been offered and 

admitted at the former trial, it probably would have produced 

a substantially different result. See State v. Buckman, 267 

Neb. 505, 675 N.W.2d 372 (2004). Applying this standard, 

the district court denied Duncan’s request for a new trial. On 

appeal, Duncan claims the district court did not consider all of 
- 463 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. DUNCAN

Cite as 309 Neb. 455

the evidence available to it and that even based on the limited 

evidence the district court did consider, a new trial was warranted. On both points, we disagree and conclude that the trial 

court did not abuse its discretion in denying Duncan’s motion 

for new trial.

Evidence to Be Considered.

We begin with Duncan’s assertion that the district court 

erred in not considering evidence received at postconviction 

proceedings in 2008, which he claims was relevant to his 

motion for new trial. Duncan claims this evidence showed that 

Liwaru’s narrative of her telephone calls with Duncan was 

coerced by police and therefore probably not reliable. Duncan 

also contends that evidence produced in postconviction proceedings supported his contention that an alternative suspect 

killed Bennett. According to Duncan, this evidence would 

have been admitted as relevant evidence if offered at trial, and 

therefore, the district court should have taken it into account in 

assessing his motion for new trial.

[2] As the State correctly points out, however, we have 

not interpreted § 29-2101(6) to allow evidence that was not 

received at trial, aside from “newly discovered exculpatory 

DNA or similar forensic testing evidence obtained under the 

DNA Testing Act,” to be considered in deciding whether the 

defendant is entitled to a new trial under that subsection. 

As noted, we have consistently held that the question when 

such motions are filed is whether the defendant would have 

obtained a substantially different result if the newly discovered 

evidence had been presented at the former trial. See State v. 

Buckman, 267 Neb. at 517, 675 N.W.2d at 382, quoting Ogden 

v. The State, 13 Neb. 436, 14 N.W. 165 (1882) (“‘general rule 

as to newly discovered evidence may be stated thus: That if, 

with the newly discovered evidence before them, the jury 

should not have come to the same conclusion, a new trial will 

be granted’”). We have also explained, “[T]o warrant an order 

for a new trial under the DNA Testing Act, the movant must 
- 464 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. DUNCAN

Cite as 309 Neb. 455

present DNA testing results that probably would have produced a substantially different result if the evidence had been 

offered and admitted at the movant’s trial.” State v. Parmar, 

283 Neb. 247, 255, 808 N.W.2d 623, 629 (2012) (emphasis supplied).

We have applied the same evidentiary limitation in determining whether a conviction should be vacated or set aside 

in circumstances where the DNA testing results are either 

completely exonerative or highly exculpatory. See State v. 

Buckman, supra. To resolve that question, we consider the DNA 

testing results “with the evidence of the case which resulted in 

the underlying judgment.” See id. at 518, 675 N.W.2d at 383. 

See, also, § 29-4123(2). For purposes of the evidence to be 

considered, we do not see how a motion for new trial under 

§ 29-2101(6) and a motion to vacate or set aside a conviction 

based on newly discovered DNA evidence are meaningfully 

different. Although the respective motions require different 

showings, each requires courts to weigh the effect of newly 

discovered evidence. See State v. Buckman, supra.

Our understanding that a court presented with a motion for 

a new trial under § 29-2101(6) can only consider newly discovered DNA or similar forensic testing evidence and evidence 

offered at the former trial is supported by the rest of § 29-2101. 

Subsection (5) of § 29-2101 permits defendants to seek a new 

trial based on newly discovered evidence that is not DNA or 

similar forensic testing evidence obtained through the DNA 

Testing Act. Duncan did not, however, file a motion under 

§ 29-2101(5), and even if he had, such a motion would not 

have been timely raised. Duncan was aware of the evidence no 

later than 2008, when he moved for postconviction relief. See 

Neb. Rev. Stat. § 29-2103(4) (Reissue 2016).

The evidence that Duncan argues the district court erred by 

not considering was not presented to the jury at his former trial 

and was not newly discovered DNA or similar forensic testing evidence as contemplated by § 29-2101(6). Therefore, we 

conclude that the district court was correct not to consider it.
- 465 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. DUNCAN

Cite as 309 Neb. 455

Entitlement to New Trial.

Duncan contends that even without the evidence from his 

postconviction proceedings, the district court abused its discretion in denying his motion for new trial. He primarily 

asserts that because the DNA test results tend to suggest that 

he did not touch the red and black billfolds, they contradict 

the State’s theory at trial that Duncan killed Bennett during a 

robbery. Under a robbery theory, Duncan rates the probability 

that the billfolds would have been handled by the perpetrator 

as “exceedingly high.” Brief for appellant at 35. Using the 

same reasoning, Duncan also argues that the DNA test results 

are incompatible with Liwaru’s testimony that placed him at 

the scene of the crime because whoever killed Bennett would 

have handled the billfolds during the robbery. Again, we are 

not persuaded.

[3] We do not believe the district court abused its discretion 

by not finding that had the newly discovered DNA evidence 

been offered and admitted at Duncan’s former trial, it probably would have produced a substantially different result. See 

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

abuse of discretion occurs when a trial court’s decision is based 

upon reasons that are untenable or unreasonable or if its action 

is clearly against justice or conscience, reason, and evidence. 

State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016). As we 

explain below, the record and our case law support the district 

court’s decision.

We do not consider the DNA test results to be as convincing as Duncan does. Although the DNA test results did not 

support the conclusion that Duncan was a contributor to 

the samples taken from the red and black billfolds, Helligso 

testified that he could not be excluded as a contributor to at 

least one of the billfolds. In addition, the same round of testing did not support the conclusion that Bennett herself was 

a contributor to the DNA sample taken from her own red 

billfold, and results as to Bennett for her black billfold were 

“uninformative.”
- 466 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. DUNCAN

Cite as 309 Neb. 455

[4] Further, as the district court recognized, there are many 

reasons why the perpetrator of the crimes may not have left 

DNA evidence on the billfolds. As we have said, “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.” State v. Myers, 304 Neb. 789, 800, 

937 N.W.2d 181, 188 (2020). We have also recognized that if 

DNA testing does not detect the presence of a movant’s DNA 

on an item of evidence, such a result is at best inconclusive, 

especially when there is other credible evidence tying the 

defendant to the crime. See State v. Amaya, 305 Neb. 36, 938 

N.W.2d 346 (2020).

Here, the new DNA evidence did nothing to contradict other 

evidence of Duncan’s guilt presented at trial. Before Bennett 

was discovered dead from a knife wound to her neck, Duncan 

told Liwaru over the telephone that Bennett had been murdered. Duncan described a knife injury to Bennett’s neck and 

effectively admitted that he had killed her. Liwaru’s accounts 

of Duncan’s telephone calls were corroborated by other witnesses. A neighbor testified to seeing Duncan in the neighborhood around the time of Bennett’s murder. Crime scene investigation showed no signs of forced entry at Bennett’s house, 

and Duncan was someone who Bennett had previously allowed 

inside to use the telephone. Duncan needed money at the time 

of Bennett’s murder, and money orders that had been obtained 

by Bennett were cashed after her death. Hairs consistent with 

Duncan’s dogs were found at the crime scene.

Like the district court, we see similarities between this case 

and State v. El-Tabech, 269 Neb. 810, 696 N.W.2d 445 (2005), 

where we concluded that the district court did not abuse its 

discretion in denying the movant’s motion for new trial based 

on DNA evidence. In that case, the movant was convicted of 

murdering his wife. A tuft of hair was found in the knot of 

a cloth bathrobe belt used to strangle the victim. There was 

expert testimony at trial that seven hairs found in the tuft were 
- 467 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. DUNCAN

Cite as 309 Neb. 455

consistent with the victim’s hair, but another hair that had 

fallen from the belt did not belong to the victim or the movant. 

Postconviction DNA testing showed that the hair that had fallen 

from the belt belonged to the movant but that one of the hairs in 

the knot belonged to neither the movant nor the victim.

On appeal from the denial of the movant’s motion for new 

trial in El-Tabech, we affirmed. We reasoned that although the 

hair of unknown origin was not the same hair that the expert 

had testified about at trial, the jury was nonetheless presented 

with evidence that a hair belonging to neither the victim nor 

the movant was found at the scene. Citing other circumstantial 

trial evidence of the movant’s guilt, including his presence 

at the scene and recent marital conflict with the victim, we 

concluded that the district court did not abuse its discretion in 

denying the motion for a new trial.

In both this case and El-Tabech, if the new DNA evidence 

had been offered at the former trial, it would not have materially altered the evidentiary picture. At Duncan’s trial, the jury 

heard evidence and arguments that, aside from the hairs found 

in Bennett’s house that were consistent with Duncan’s dogs and 

one hair that shared some characteristics with Duncan’s, DNA 

and other physical evidence did not tie Duncan to the crime, 

and postconviction DNA testing offered the same ultimate conclusion. Specifically, as to the red and black billfolds, the new 

DNA testing did not support the conclusion that Duncan was 

a contributor. Thus, even with the addition of the new DNA 

evidence, there would be a dearth of physical evidence and 

substantial circumstantial evidence of Duncan’s guilt.

Duncan urges that State v. Parmar, 283 Neb. 247, 808 

N.W.2d 623 (2012), supports his argument and that the district court erred in distinguishing it. In that case, we held that 

new DNA evidence merited a new trial. At the initial trial, 

two eyewitnesses testified that the movant had assaulted the 

victim and bound him in a bedroom and that the movant was 

the only male present at the scene of the crime other than 

the victim, who later died. Following his conviction for first 
- 468 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. DUNCAN

Cite as 309 Neb. 455

degree murder, the movant obtained DNA testing of a bedsheet. 

The results showed the presence of male DNA but completely 

excluded the movant as a contributor. After the district court 

denied the movant a new trial based on the new DNA evidence, 

we reversed, and remanded for a new trial. We reasoned that 

even though the DNA test results did not exonerate the movant, 

they tended to create a reasonable doubt that he participated 

in the crime because they were clearly incompatible with the 

eyewitnesses’ testimonies.

We agree with the district court that Parmar is distinguishable from the case at hand. Unlike in Parmar, Duncan was 

not completely excluded as a contributor. Although the likelihood ratios produced here did not support the conclusion that 

Duncan was a contributor, for at least one of the billfolds, 

Helligso testified that Duncan could not be excluded as a contributor, something STRmix has the ability to do. Further, the 

DNA evidence in Parmar directly contradicted the eyewitness 

testimonies identifying the movant as the lone male at the 

scene of the crime, other than the victim. Here, there was no 

direct evidence that Duncan touched the billfolds, and even if 

the new DNA evidence is interpreted to show that he did not, it 

is not incompatible with other evidence of Duncan’s guilt, most 

notably his conversations with Liwaru.

Duncan points out that Parmar does not require DNA test 

results to be absolutely and completely exclusionary to entitle 

a movant to a new trial. He is correct that in Parmar, we stated 

that even if the evidence excluding the movant as a contributor 

did not prove the eyewitness accounts to be false, it certainly 

made their version of the facts less probable, and to obtain a 

new trial, a movant was not required to show DNA testing 

results undoubtedly would have produced an acquittal at trial. 

For this reason, Duncan argues, the district court’s consideration of possibilities that might explain the probable absence of 

Duncan’s DNA on the billfolds was not proper, because those 

issues should have been settled upon retrial. We do not agree. 

In considering these possibilities, the district court cogently 
- 469 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

STATE v. DUNCAN

Cite as 309 Neb. 455

analyzed the likelihood that the result would be substantially 

different on retrial. This was not only permissible; it was 

the very standard the district court was to apply in deciding 

whether Duncan was entitled to a new trial.

We engaged in a similar weighing of possibilities in Parmar. 

There, the sample from which new DNA testing excluded the 

movant was a mixed sample of the victim’s blood and another 

male contributor. We entertained the possibility that a male 

other than the movant had deposited blood on the bedsheet 

before the murder in exactly the same spots where the victim’s 

blood was later found, but we decided the scenario was more 

speculative than concluding that a male other than the movant 

was present during the crime. Therefore, we concluded that 

the addition of the new DNA evidence probably would have 

produced a substantially different result if presented at the 

former trial.

As we have explained, however, the facts of this case 

are different. The alternative explanation explored in Parmar

required an implausible coincidence, but that is not so here. 

For reasons similar to those articulated by the district court, it 

strikes us as plausible that the perpetrator in this case did not 

touch the billfolds with bare hands. We find no abuse of discretion in the district court’s mode of analysis or in its overall 

conclusion that the DNA testing results probably would not 

have produced a substantially different result if they had been 

presented at Duncan’s former trial.

CONCLUSION

For reasons we have explained, we affirm.

Affirmed.

Freudenberg, J., not participating.