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- 789 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
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 provid-
ing 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 spe-
cific biological sample tested.
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. MYERS
Cite as 304 Neb. 789
10. DNA Testing: Prosecuting Attorneys: Evidence. Whether the prosecu-
tion 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 dis-
trict court erred in denying his motion by determining that the
requested testing would not produce noncumulative exculpa-
tory 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 shoot-
ing 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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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. MYERS
Cite as 304 Neb. 789
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 pis-
tol and gave it to . . . Wilson, who stated the pistol had
once belonged to his sister [and] testified that he recog-
nized 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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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. MYERS
Cite as 304 Neb. 789
[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 evi-
dence about Myers’ plan to be intimate with Mainelli in con-
nection 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 con-
cerning 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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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. MYERS
Cite as 304 Neb. 789
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 resi-
due 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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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. MYERS
Cite as 304 Neb. 789
we remanded the issue to the district court for a determina-
tion 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 pros-
ecution 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’ allega-
tion 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 apart-
ment 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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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. MYERS
Cite as 304 Neb. 789
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 appel-
late 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 provid-
ing 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 judg-
ment 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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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. MYERS
Cite as 304 Neb. 789
time after conviction, file a motion, with or without sup-
porting affidavits, in the court that entered the judgment
requesting forensic DNA testing of any biological mate-
rial that:
(a) Is related to the investigation or prosecution that
resulted in such judgment;
(b) Is in the actual or constructive possession or con-
trol of the state or is in the possession or control of oth-
ers under circumstances likely to safeguard the integrity
of the biological material’s original physical composi-
tion; 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 cri-
teria 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 determina-
tion 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 pro-
vide a reasonable likelihood of more accurate and proba-
tive 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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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. MYERS
Cite as 304 Neb. 789
Thus, if the § 29-4120(1) criteria are met and if the court fur-
ther 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 unde-
manding 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 indi-
viduals 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 partici-
pate in the crime. We agree with the district court’s determina-
tion 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 com-
mission of the offense and argued the testing would not pro-
duce 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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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. MYERS
Cite as 304 Neb. 789
the objects in question, the result would be at best inconclu-
sive, 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 con-
clude 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 con-
trary. . . . 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 con-
victions. 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 vic-
tims 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 con-
cluded 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 cor-
rect.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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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. MYERS
Cite as 304 Neb. 789
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 dur-
ing 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 tes-
tify against another individual. Testimony was received from
Edward Wilson and Sam Edwards, both of whom were pas-
sengers 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 return-
ing 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 wit-
nesses, 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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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. MYERS
Cite as 304 Neb. 789
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 spe-
cific 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 dur-
ing 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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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. MYERS
Cite as 304 Neb. 789
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 coun-
sel 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 exculpa-
tory evidence.
As to the sexual assault kit, Myers argues that DNA test-
ing 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 argu-
ments, 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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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. MYERS
Cite as 304 Neb. 789
requested testing of the sexual assault kit would fail to produce
exculpatory evidence.
Because the requested testing would fail to lead to non-
cumulative 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 evi-
dence, 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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STATE v. MYERS
Cite as 304 Neb. 789
presented in a motion for DNA testing.36 Therefore, this assign-
ment 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.