State v. Duncan , 309 Neb. 455 ( 2021 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. DUNCAN
Cite as 309 Neb. 455State 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 pur-
suant 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 determina-
tion 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 dif-
ferent result if the evidence had been offered and admitted at the mov-
ant’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 unrea-
sonable 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.
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STATE v. DUNCAN
Cite as 309 Neb. 455Heavican, 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 con-
tends that the district court erred in not considering evidence
that was not received at trial, but was received during ear-
lier 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 dif-
ferent 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
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STATE v. DUNCAN
Cite as 309 Neb. 455treatment 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 testi-
fied 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 neighbor-
hood 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
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STATE v. DUNCAN
Cite as 309 Neb. 455Duncan, 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 concern-
ing 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 con-
tributor to DNA found on the knife used to kill Bennett.
During closing arguments, the State asserted that the bill-
folds 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 imprison-
ment on the murder conviction and 19 to 20 years’ imprison-
ment 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 nar-
rative 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
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STATE v. DUNCAN
Cite as 309 Neb. 455was 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 ineffec-
tive 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 support-
ing affidavit. It is the motion for new trial that is at issue in
this appeal.
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STATE v. DUNCAN
Cite as 309 Neb. 455At 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 proceed-
ings, 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 scien-
tific 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 individ­
uals 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 sup-
ported a conclusion that Duncan or Bennett was a contributor.
However, she testified that STRmix could exclude a per-
son 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
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STATE v. DUNCAN
Cite as 309 Neb. 455individual. Helligso testified that this ratio did not support
a conclusion that Duncan was a contributor. Helligso deter-
mined that it was equally likely the profile originated from two
unknown individuals as from Bennett and one unknown indi-
vidual 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 find-
ing 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, point-
ing 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 rob-
bery 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 sup-
pose 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.
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STATE v. DUNCAN
Cite as 309 Neb. 455The district court further reasoned that the new DNA evi-
dence would not call into question the credibility of any wit-
ness, 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 dis-
trict 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 pro-
ceedings 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 consid-
ering 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 excul-
patory 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
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STATE v. DUNCAN
Cite as 309 Neb. 455the evidence available to it and that even based on the limited
evidence the district court did consider, a new trial was war-
ranted. 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 pro-
ceedings 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
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STATE v. DUNCAN
Cite as 309 Neb. 455present DNA testing results that probably would have pro-
duced 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) (empha-
sis supplied).
We have applied the same evidentiary limitation in deter-
mining 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 dis-
covered 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 test-
ing evidence as contemplated by § 29-2101(6). Therefore, we
conclude that the district court was correct not to consider it.
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Cite as 309 Neb. 455Entitlement to New Trial.
Duncan contends that even without the evidence from his
postconviction proceedings, the district court abused its dis-
cretion 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 prob-
ably 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 convinc-
ing 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 test-
ing 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.”
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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 evi-
dence 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 pos-
session 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 mur-
dered. 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 wit-
nesses. A neighbor testified to seeing Duncan in the neighbor-
hood around the time of Bennett’s murder. Crime scene inves-
tigation 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
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Cite as 309 Neb. 455consistent 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 materi-
ally 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 con-
clusion. 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 dis-
trict 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
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STATE v. DUNCAN
Cite as 309 Neb. 455degree 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 distinguish-
able from the case at hand. Unlike in Parmar, Duncan was
not completely excluded as a contributor. Although the likeli-
hood 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 con-
tributor, 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 consider-
ation 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
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Cite as 309 Neb. 455analyzed 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 dis-
cretion 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.