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State of Nebraska, appellee, v.

James E. Myers, appella

___ N.W.2d ___

Filed November 30, 2018. No. S-18-239.

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: J. 

Michael Coffey, Judge. Reversed and remanded for furthe

proceedings.

James E. Myers, pro se.

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

Klein for appellee.

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

Papik, JJ

Cassel, J.

INTRODUCTION

Nearly 20 years after a jury convicted James E. Myers of 

murder, he filed a motion for testing under the DNA Testing 

Nebraska Supreme Court Online Library

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

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Act.1 The district court denied that motion as well as Myers’ 

motion for the appointment of counsel. We would review these 

denials for an abuse of discretion. But to do so, the court 

below must have applied only the part of the legal framework 

governing whether to grant testing. Because the district court 

may have relied instead upon principles governing relief available after testing, we must reverse the order and remand the 

cause for reconsideration of the motions under only the correct 

portion of the governing framework.

BACKGROUND

Circumstances of Cri

The State charged Myers with 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. A jury convicted 

Myers of the charges, and we affirmed his convictions on 

direct appeal.2

The factual background relating to Myers’ convictions is 

set forth in more detail in our opinion involving Myers’ direct 

appeal.3 Our opinion stated in 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 Edward Wilson saw that 

he had on gloves. Myers went to the back of the van, 

and Edward 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.

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

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

3 Id.
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Sam 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 Edward Wilson, who stated the pistol 

had once belonged to his sister, Edwina Wilson. Edward 

Wilson 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. Edward 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.

[Timothy] Sanders 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. 

Edwina Wilson 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.4

Other information relevant to the instant appeal is derived 

from the trial record. The State presented evidence about 

Myers’ plan to be intimate with Mainelli. Timothy Sanders, 

who was in the same gang as Myers, testified that Myers 

said Mainelli needed to be shot and that Myers said he was 

going to have sex with Mainelli. Sanders testified that after 

Mainelli’s death, Myers told him that Mainelli walked into 

4 Id. at 312-13, 603 N.W.2d at 388-89.
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her bedroom, took off her clothes, laid on the bed, and Myers 

shot her once the lights were out. 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.”

Motion for DNA T

In 2016, Myers filed a motion pursuant to the DNA Testing 

Act seeking “DNA testing of items of evidence that may contain biological material.” He listed 26 items of evidence taken 

from the crime scene, and he wished to have those items tested 

in order to exclude himself as a donor of any biological material. The items included Mainelli’s bedding, bullets and spent 

.22-caliber casings, beverage containers, clothing, spiral notebooks, cigarette butts and contents of ashtrays, gunshot residue 

test kit from Mainelli’s hands, vials of Mainelli’s blood, a rape 

kit, and hair samples.

Myers sought a variety of different DNA tests. He wanted 

testing of any hairs, blood, semen, saliva, or skin cells on various items, asserting that if such DNA evidence excluded Myers 

and was found to be of another male, “this would prove that 

the story from the informant was false, and Myers is in fact 

[i]nnocent.” Myers alleged there was “good cause to believe 

biological evidence still exists and can be identified and profiled with today’s DNA technology.” Myers asserted that if a 

suspect touched his face or head while wearing gloves, the 

skin cells could be transferred to other objects. Myers wanted 

the spent .22-caliber casings tested, because “it has become 

possible to obtain DNA profiles from few skin cells left by the 

person who loaded a shell into a gun.” Myers also moved for 

the appointment of counsel. In connection with a motion to 

preserve evidence, Myers included a laboratory report showing 

that a sexual assault examination of Mainelli was performed 

and that a vaginal swab and vaginal smear slide from a sexual 

assault kit revealed “[v]ery few spermatozoa.”

Myers filed an affidavit in support of his motion for DNA 

testing. He stated that DNA evidence was not available at the 
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time of his trial, that law enforcement withheld any findings of 

biological evidence from him, and that testing all of the items 

would exonerate him. Myers also stated that he was with his 

girlfriend on the night of the murder and that testing all of the 

items would prove that the State’s informant lied. He subsequently filed a supplemental amendment to his motion, seeking 

DNA testing of the sexual assault kit.

The State filed an inventory of evidence that had been 

gathered in connection with the case. It showed that the items 

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

The district court held a hearing. Myers asked the court to 

consider his motion along with the supplemental amendment 

and to take judicial notice of § 29-4120(5). He presented no 

evidence. The State likewise presented no evidence, but it 

requested that the court review the bill of exceptions from the 

trial, along with Myers’ motion to determine whether DNA 

testing was appropriate.

District Court’s Dec

The district court denied Myers’ motion. It found that DNA 

testing was not warranted under § 29-4120(5)(c), because the 

results would not provide exculpatory evidence. The court 

quoted extensively from a portion of State v. Buckman5

(including portions of the Buckman opinion which relied on 

State v. Bronson6) where we discussed when a court may 

vacate and set aside a judgment based on test results that 

“exonerate or exculpate” an accused and “show a complete 

lack of evidence to establish an essential element of the 

crime charged.”

The court explained that testing of the evidence would 

not exonerate or exculpate Myers in light of the evidence at 

trial, because “the absence of [Myers’] DNA from these items 

would not establish [Myers’] innocence considering witnesses 

5 State v. Buckman, 267 Neb. 505, 517, 675 N.W.2d 372, 382 (2004).

6 State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003).
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testified he intentionally wore gloves that would prevent his 

DNA from being left at the scene.” The court reasoned that 

“the absence of [Myers’] DNA or the presence of another 

person’s DNA at the scene on those items would not alone 

be enough to exonerate [Myers] considering his motive for 

the crime, inculpatory statements made and witness testimony 

regarding his actions directly before and after the murder.” 

Further, the court stated that testing of a sexual assault kit 

would not exonerate or exculpate Myers, because the State 

did not argue that Myers had sex with Mainelli on the night of 

the murder. The court concluded that “regardless of whether 

[Myers’] DNA was excluded or someone else’s DNA could 

be found on this evidence, such DNA results would not ‘show 

a complete lack of evidence to establish an essential element 

of the crime charged’ when you consider the totality of the 

evidence.”

Myers timely appealed.

ASSIGNMENTS OF ERROR

Myers assigns that the district court erred in (1) refusing 

to order DNA testing, (2) making findings of fact and conclusions of law without actual DNA results, (3) failing to 

determine whether the State refused to allow him access to 

DNA evidence, and (4) failing to appoint counsel to represent him.

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.7

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.8

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

8 Id.
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[3] Decisions regarding appointment of counsel under the 

DNA Testing Act are reviewed for an abuse of discretion.9

ANALYSIS

Motion for DNA T

In denying Myers’ motion for DNA testing, the district court 

relied in large part on our decision in Buckman.

10 We agree 

that Buckman is instructive regarding the showing that must 

be made at various stages. But it is also important to remember that both Buckman and the Bronson11 decision cited in 

Buckman were appeals where DNA testing had been ordered 

and focused on the relief sought and denied based upon the 

test results.

In Buckman, we first summarized the legal framework applicable in determining whether to order testing. We said:

The initial step toward obtaining relief under the DNA 

Testing Act is for a person in custody to file a motion 

requesting forensic DNA testing of biological material. 

. . . Forensic DNA testing is available for any biological 

material that is related to the investigation or prosecution 

that resulted in the judgment; is in the actual or constructive possession of the state, or others likely to safeguard 

the integrity of the biological material; and either was not 

previously subjected to DNA testing or can be retested 

with more accurate current techniques.12

We pause at this point to observe there is no dispute that Myers 

met these criteria.

If the above criteria are met and if the court further determines that the requirements of § 29-4120(5) have been met, 

the court must order testing. Although our Buckman opinion 

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

10 State v. Buckman, supra note 5.

11 State v. Bronson, supra note 6.

12 State v. Buckman, supra note 5, 267 Neb. at 514, 675 N.W.2d at 380 

(citation omitted).
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used permissive “may order testing”13 language, we have subsequently made clear—consistent with the statute’s use of the 

phrase “shall order DNA testing”14—that the court is required 

to order testing if the requirements of § 29-4120(5) are met.15

We recognize the Legislature has amended § 29-4120(5) since 

the time of the Buckman decision, but the amendment is 

not significant to the issue before us. For convenience, we 

quote the current version, which was in effect at the time of 

Myers’ motion:

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.16

In Buckman, we elaborated on the last prong of § 29-4120(5) 

and clarified that the threshold to satisfy it was rather low. 

We stated:

Exculpatory evidence is defined as evidence favorable 

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

guilt of the person in custody. . . . [T]his requirement is 

13 Id. at 514, 675 N.W.2d at 380.

14 § 29-4120(5).

15 See, e.g., State v. Betancourt-Garcia, supra note 7; State v. Marrs, 295 

Neb. 399, 888 N.W.2d 721 (2016); State v. Young, 287 Neb. 749, 844 

N.W.2d 304 (2014); State v. McDonald, 269 Neb. 604, 694 N.W.2d 204 

(2005).

16 § 29-4120(5).
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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.17

But a more rigorous standard applies after testing has been 

ordered. In Buckman,

18 we also set forth the procedure applicable after a court orders DNA testing. We stated:

Once DNA testing is conducted, and results are 

obtained, the question is whether the evidence obtained 

exonerates or exculpates the movant. Based on the test 

results, the movant may obtain relief in one of two 

ways, each of which requires a different quantum of 

proof. As previously noted, when the test results exonerate or exculpate the movant, the court may “vacate 

and set aside the judgment and release the person from 

custody.” . . . However, if the court does not vacate and 

set aside the judgment, the movant may file a motion 

for new trial based upon “newly discovered exculpatory 

DNA or similar forensic testing obtained under the DNA 

Testing Act.”19

We summarized the proof necessary for each potential remedy:

[T]he court may vacate and set aside the judgment in 

circumstances where the DNA testing results are either 

completely exonerative or highly exculpatory—when the 

results, when considered with the evidence of the case 

which resulted in the underlying judgment, show a complete lack of evidence to establish an essential element 

of the crime charged. . . . This requires a finding that 

guilt cannot be sustained because the evidence is doubtful in character and completely lacking in probative 

value. . . . [I]n other circumstances where the evidence 

17 State v. Buckman, supra note 5, 267 Neb. at 515, 675 N.W.2d at 381 

(citation omitted).

18 State v. Buckman, supra note 5.

19 Id. at 515, 675 N.W.2d at 381 (citation omitted).
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is merely exculpatory, the 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.20

As Buckman demonstrates, the showing that must be made 

to obtain DNA testing presents a relatively low threshold. 

After testing, however, a much higher showing is required to 

either set aside a judgment or require a new trial.

Here, the district court was presented with the first step in 

the framework—whether to require testing. It denied testing on 

the basis that Myers failed to meet the “may produce noncumulative, exculpatory evidence” requirement of § 29-4120(5)(c). 

But in making its determination, the court discussed a more 

onerous standard governing relief which might be available 

after testing has been performed.

The court’s order shows that it imported the legal standard 

for determining whether to vacate or set aside a conviction. 

It quoted, with emphasis, when a motion to vacate and set 

aside the judgment under § 29-4123(2) may be granted. It also 

quoted language from Buckman, highlighting that vacating 

or setting aside a judgment was intended “to apply to those 

cases in which DNA test results ‘conclusively establish the 

guilt or innocence of a criminal defendant’”21 and would be 

proper “only where the results of DNA testing either completely exonerated the movant or were highly exculpatory.”22

Finally, the court found that “regardless of whether [Myers’] 

DNA was excluded or someone else’s DNA could be found 

on this evidence, such DNA results would not ‘show a 

complete lack of evidence to establish an essential element 

of the crime charged’ when you consider the totality of 

the evidence.”

20 Id. at 518, 675 N.W.2d at 383 (citations omitted).

21 Id. at 516, 675 N.W.2d at 382.

22 Id. at 516-17, 675 N.W.2d at 382.
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On appeal, we are tasked with determining whether the district court abused its discretion in denying Myers’ motion for 

DNA testing. But we cannot do so, because the court mingled 

standards applicable to § 29-4123(2) and (3) into its analysis 

under § 29-4120(5). Where it should have addressed only the 

first part of the statutory framework, its decision can be read 

to instead delve into the questions that apply in the latter part 

of the framework. Here, the question before the court was 

whether to allow testing.

Because the court’s order fails to make clear that its 

denial of DNA testing was based solely on § 29-4120(5), we 

must remand the cause to the district court for a determination under that section, based upon the existing record. On 

remand, the court shall determine whether the requirements of 

§ 29-4120(5) have been met, including whether DNA testing 

of the items requested may produce noncumulative evidence 

which is favorable to Myers and material to the issue of 

his guilt.

Appointment of Cou

Myers also assigns error to the district court’s denial of his 

motion for the 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.23 Because we are remanding the cause to the district 

court to consider whether Myers’ motion for DNA testing 

should be granted under the proper standard, we also remand 

the cause for a determination as to whether he made the requisite showing to require the appointment of counsel.

Access to Biological Ma

Myers also contends that the Omaha Police Department 

did not disclose to the defense that it secured a sexual assault 

examination kit and collected a vaginal vault sample from the 

23 § 29-4122.
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victim. He argues that such action violated his right to due 

process and equal protection of law. This is not part of the 

DNA Testing Act framework.

The DNA Testing Act is a limited remedy providing inmates 

an opportunity to obtain DNA testing in order to establish innocence after a conviction.24 We have previously stated, although 

in dicta, that a constitutional challenge to the destruction of 

evidence is outside the purview of the DNA Testing Act.25

We conclude that whether the prosecution improperly withheld evidence is not properly presented in a motion for DNA 

testing. Upon remand, the district court need not consider this 

argument further.

CONCLUSION

Because the district court applied principles governing relief 

which might be available after testing when it should have 

limited its consideration to whether it was required to order 

testing, we must reverse the order and remand the cause for 

reconsideration of the motions under the correct portion of 

the governing framework. We likewise reverse the denial of 

counsel and remand the cause for a determination as to whether 

Myers made the requisite showing to be entitled to the appointment of counsel.

 Reversed and remanded

further proceeding

Freudenberg, J., not participatin

24 State v. Betancourt-Garcia, supra note 7.

25 See id.