State v. Robbins ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/20/2017 01:12 AM CDT
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. ROBBINS
Cite as 297 Neb. 503
State of Nebraska, appellee, v.
R andall R. Robbins, appellant.
___ N.W.2d ___
Filed August 18, 2017. No. S-16-155.
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. Motions to Vacate: Motions for New Trial: DNA Testing: Appeal and
Error. Under the DNA Testing Act, an appellate court will not reverse a
trial court’s order determining a motion to vacate a judgment of convic-
tion or grant a new trial absent an abuse of the trial court’s discretion.
3. DNA Testing: Appeal and Error. Under the DNA Testing Act, an
appellate court will uphold a trial court’s findings of fact unless such
findings are clearly erroneous.
4. Statutes: Appeal and Error. Statutory interpretation is a question of
law that an appellate court resolves independently of the trial court.
5. Appeal and Error. Absent plain error, assignments of error not dis-
cussed in the briefs will not be addressed by an appellate court.
6. Appeal and Error: Words and Phrases. Plain error exists where there
is an error, plainly evident from the record but not complained of at
trial, which prejudicially affects a substantial right of a litigant and is of
such a nature that to leave it uncorrected would cause a miscarriage of
justice or result in damage to the integrity, reputation, and fairness of the
judicial process.
7. Statutes: Legislature: Intent: Appeal and Error. In construing a stat-
ute, an appellate court should consider the statute’s plain meaning in
pari materia and from its language as a whole to determine the intent of
the Legislature.
8. ____: ____: ____: ____. In construing a statute, an appellate court’s
objective is to determine and give effect to the legislative intent of
the enactment.
9. Appeal and Error. Plain error may be asserted for the first time on
appeal or be noted by an appellate court on its own motion.
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STATE v. ROBBINS
Cite as 297 Neb. 503
10. Final Orders: Appeal and Error. A substantial right is affected if an
order affects the subject matter of the litigation, such as diminishing a
claim or defense that was available to the appellant before the order
from which he or she is appealing.
Appeal from the District Court for Lancaster County:
Steven D. Burns, Judge. Reversed and remanded with direc-
tions to dismiss.
Robert W. Kortus, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Heavican, C.J.
I. INTRODUCTION
In 2003, Randall R. Robbins was sentenced to a period of
40 to 60 years’ incarceration for second degree murder for the
strangulation death of his girlfriend, Brittany Eurek.
On September 4, 2012, Robbins filed a motion in the dis-
trict court requesting (1) postconviction relief pursuant to Neb.
Rev. Stat. § 29-3001 et seq. (Reissue 2016), (2) a new trial
based on newly discovered evidence pursuant to Neb. Rev.
Stat. § 29-2101(5) (Reissue 2016), and (3) a new trial based on
DNA testing pursuant to § 29-2101(6). The district court denied
Robbins’ request for postconviction relief as time barred and
denied Robbins’ request for a new trial under § 29-2101(5),
because it was filed more than 3 years after Robbins’ convic-
tion. The district court granted Robbins’ request for DNA test-
ing. Robbins received pharmacogenetic testing, via a buccal
swab, which indicated that he was an “intermediate metabo-
lizer” of prescription drugs.
Based on these results, Robbins asserted that while the
dosage of the Zoloft medication he was taking at the time
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STATE v. ROBBINS
Cite as 297 Neb. 503
of the murder was the recommended amount for the aver-
age metabolizer, the dosage was too high for his body to
properly metabolize. Robbins claims that this resulted in his
experiencing a side effect, which caused him to be violent
and homicidal.
Robbins therefore argued that he was entitled to relief
under the DNA Testing Act (Act), Neb. Rev. Stat. § 29-4116
et seq. (Reissue 2008), because new scientific evidence could
contribute to and establish defenses at trial of an inability to
formulate intent, intoxication, or insanity. Following an evi-
dentiary hearing, the district court denied Robbins’ motion
for new trial or new sentencing hearing based on the phar-
macogenetic testing results. Robbins appeals. We hold that
the district court committed plain error in granting Robbins’
motion for DNA testing. We reverse, and remand with direc-
tions to dismiss.
II. BACKGROUND
1. Factual Background
(a) Zoloft Prescription
On March 26, 2002, Dr. Richard Wurtz, a family practi­
tioner, gave Robbins a standard trial dosage of Zoloft, 50
mg per day (14 pills), for Robbins’ anxiety and told Robbins
to follow up with him in 2 weeks. The trial dosage included
product information. Wurtz testified that he did not give
Robbins a prescription for Zoloft and that 50 mg is a standard
starting dosage.
There is no evidence that Robbins followed up with Wurtz
or that Robbins ever filled a Zoloft prescription written by
Wurtz. However, Robbins testified that at the time of the homi-
cide, he was routinely taking one 50-mg tablet of Zoloft each
day. The record is not clear as to how Robbins received the
Zoloft without a prescription. Robbins testified that he did not
take Zoloft the day of the homicide because he did not take
Zoloft when he drank alcohol, and he was planning to drink
alcohol that day.
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(b) Strangulation of Eurek
On June 1, 2002, Robbins, a 17-year-old just shy of his 18th
birthday, was watching a movie at his residence with Eurek,
with whom he had a 6-month old child. Shortly thereafter,
they had sexual intercourse in Robbins’ bedroom. During inter-
course, Eurek told Robbins that she wanted to have another
child. Robbins said he did not want to have another child with
her. Eurek became angry with Robbins and said that she did
not want to have sex with him. They stopped having sex, and
Eurek began accusing Robbins of cheating on her.
Robbins “grabbed her by her throat and told her to stop,” and
Eurek punched Robbins in the face. Robbins came from behind
Eurek, again grabbed her by the throat, and began to strangle
her with his hands. Eurek then passed out on the floor. Robbins
retrieved a belt from his dresser and put it around Eurek’s
neck, “pulled it up,” and “just sat there.” About 5 minutes later,
he “pulled [Eurek] over and tied her to the rail that goes down-
stairs.” Eurek “was like turning purple,” and Robbins stated
he tied her to the stair rail “to make sure that she was dead.”
Robbins later stated that the belt he used was the belt he had
used a couple of weeks earlier to attempt suicide.
Robbins then drove Eurek’s vehicle to his mother’s resi-
dence and told his mother that he killed Eurek. Robbins’
mother arrived at Robbins’ residence, found Eurek’s body, and
called the 911 emergency dispatch service.
Robbins admitted to the deputies at the scene that he killed
Eurek. Following his arrest, Robbins recounted the events in
a statement to an investigator. During Robbins’ confession
to the investigator, he stated that the marks on his neck were
scratches from when Eurek was “reaching back trying to make
me stop.” Robbins also expressed concern that he did not take
Zoloft that day. When asked by the investigator whether taking
his Zoloft made him feel bad, he answered:
I don’t feel right I can tell you that much since I’ve
been taking it today I don’t feel like I should. Usually
I feel like I got . . . I don’t know I don’t know if it’s a
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problem or what I always have things on my mind caus-
ing things on my mind.
(c) Robbins’ Behavior on Zoloft
Following his arrest, Robbins continued to take Zoloft while
at the juvenile detention center. There was evidence that while
at the juvenile detention center, Robbins’ dose was doubled
without any ill effects. Also while at the juvenile detention
center, a psychiatrist hired by Robbins’ trial counsel evaluated
Robbins and concluded that Robbins was competent to stand
trial and was not insane at the time of the homicide.
In a deposition taken July 21, 2015, Robbins testified that
when he started taking Zoloft, he felt like he had to be mov-
ing all the time, which “progressed into agitation.” Robbins
also testified that his agitation and aggression increased about
3 or 4 weeks after starting Zoloft. Robbins indicated that his
mother called Wurtz about the changes in his behavior prior to
the homicide. Wurtz testified that there was no record of a call
from Robbins’ mother.
Trial counsel was deposed. In the deposition, counsel testi-
fied contrary to Robbins’ assertions regarding Zoloft’s causing
agitation. Trial counsel indicated that Robbins described Zoloft
as calming him down and wondered whether not taking Zoloft
on the day of the homicide caused Robbins to be more agi-
tated. In a July 2, 2002, transcribed statement to trial counsel,
Robbins told him that Zoloft improved his mental state and that
he “was never upset and never sad or down” but that when he
did not take Zoloft, he was “more emotional” and would “get
all upset.”
Robbins also alleges two suicidal episodes. One episode
occurred a couple of years before Robbins was placed on
Zoloft; the other occurred a couple of weeks prior to the
homicide while Robbins was taking Zoloft. In addition to the
alleged suicide attempts, there were two other episodes of
physical aggression by Robbins, which the district court found
occurred when he was not taking Zoloft.
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STATE v. ROBBINS
Cite as 297 Neb. 503
(d) Robbins’ Pharmacogenetic
Testing Results
Pharmacogenetic testing to determine the ability of a par-
ticular person to metabolize a medication was approved by
the Food and Drug Administration for commercial use in
December 2004. The test was administered to Robbins via a
buccal swab, and the swab was sent to an accredited DNA
parentage testing group. It is unclear from the record who
administered the test. The district court used the terms “genetic
testing,” “DNA testing,” and “pharmacogenetic testing” inter-
changeably in reference to the test given to Robbins pursuant
to its order.
According to Dr. Daniel Hilleman, a pharmacist, there are
four main categories of metabolizing Zoloft: extensive metabo-
lizer, intermediate metabolizer, poor metabolizer, and “ultra-
rapid” metabolizer. According to the testing group’s document
explaining the categories, for an individual who tests as an
intermediate metabolizer, “[t]his means that you have only one
of two operating pathways, and will need a lower than normal
dosage and need to carefully monitor medication.”
Robbins’ pharmacogenetic test results showed that he was an
intermediate metabolizer. The test results stated that this had a
“[m]ajor” clinical impact and that a prescriber should “consider
less than standard dosage to prevent adverse effects” in an
intermediate metabolizer.
Hilleman testified that Zoloft was one of the drugs affected
by the enzyme measured in the test. Hilleman explained that
the reduced ability to metabolize in an intermediate metabo-
lizer meant that “the amount of drug in the body would be
increased because the amount of drug that’s being detoxified
would be relatively less than someone that had full metabolic
capacity.” Hilleman also stated that according to the FDA-
approved labeling, the side effects of Zoloft in major depres-
sive disorders that occurred with rates greater than 10 percent
included “dry mouth, somnolence, dizziness, diarrhea, nausea,
[and] insomnia.”
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STATE v. ROBBINS
Cite as 297 Neb. 503
(e) Zoloft Black Box Warning
Hilleman testified that a “black box warning” is “an insert
within the formal prescribing information that the Food and
Drug Administration mandates be included when a significant
risk with a particular drug exists” and that such warnings were
not available to treating physicians, psychiatrists, or pharma-
cologists prior to 2004.
The black box warning for Zoloft states in relevant part:
“Antidepressants increased the risk compared to placebo of
suicidal thinking and behavior (suicidality) in children, ado-
lescents, and young adults in short-term studies of major
depressive disorder (MDD) and other psychiatric disorders. .
. . Depression and certain other psychiatric disorders are them-
selves associated with increases in the risk of suicide.”
The black box warning states that suicidal thoughts and
behavior were adverse reactions most common in children,
adolescents, and young adults. Hilleman stated that he agreed
with the black box warning, and he also connected Zoloft with
violent behavior, because “there are some additional indepen-
dent reports in the medical literature that have documented
an association between the use of antidepressants and violent
behavior.” Hilleman also testified that “most of the adverse
reaction reports were suicide attempts” but that there were
also reports of homicide attempts. Hilleman explained that
the inability to metabolize Zoloft could result in such adverse
reactions because
[t]he abnormality in the functioning of the CYP2C19
enzyme could have led to higher amounts of drug in a
patient, and then a greater effect in that patient in terms of
adverse reactions of which one is suicidal ideation and/or
behavior, and according to the report that I cited from [a
research journal article] which associates reports of vio-
lence towards others, with antidepressants, could have led
to an increase in violent tendency towards others.
Walter Duffy, a psychiatrist who evaluated Robbins due to
truancy and alcohol and cannabis dependence in early 2002,
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was an expert for the State and testified by deposition that
pharmacogenetic testing “is a tool. It is not a bull’s eye.” Duffy
testified that in his practice, he more often evaluates the results
and side effects experienced by the patient and adjusts the
medicine or dosage accordingly, rather than resort to pharma-
cogenetic testing.
Robbins’ trial counsel testified that knowledge of the DNA
results “might very well have affected what I did at sen-
tencing or how I negotiated with the county attorney, what
information I provided to the county attorney.” The district
court found that “neither Dr. Hilleman nor Dr. Duffy made a
causal connection between [Robbins’] being an intermediate
metabolizer of Zoloft and suicidal or homicidal side effects.”
In addition, the court found that neither doctor observed any
side effects experienced by Robbins or made a causal link
between consumption of Zoloft and the homicide committed
by Robbins.
The district court further found that according to Hilleman,
“[o]ne of the effects of higher amounts of the drug reaching
the brain is a greater potential for adverse side effects such as
suicidal ideation . . . .” However, the court found that “no stud-
ies were identified by the experts that differentiated between
the four categories of metabolizers regarding whether one
category is more likely to have suicidal ideation or homicidal
thoughts compared to the others.”
2. Procedural Background
Robbins was initially charged with first degree murder. He
subsequently entered a plea of guilty to a reduced charge of
second degree murder. On April 24, 2003, Robbins was sen-
tenced to a period of 40 to 60 years’ incarceration. Robbins
appealed from his conviction and sentencing. The Nebraska
Court of Appeals affirmed Robbins’ conviction and sentence.1
On May 20, 2011, Robbins, acting pro se, filed a motion to
compel the Nebraska Department of Correctional Services to
1
See State v. Robbins, 12 Neb. Ct. App. xxxix (No. A-03-500, Sept. 15, 2003).
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allow him to take a DNA drug reaction profile test. On May 23,
the district court overruled Robbins’ motion to compel because
there was no pending postconviction proceeding.
On September 4, 2012, Robbins, still acting pro se, filed a
motion in the district court requesting (1) postconviction relief
pursuant to § 29-3001 et seq., (2) a new trial based on newly
discovered evidence pursuant to § 29-2101(5), and (3) a new
trial based on DNA testing pursuant to § 29-2101(6).
On September 24, 2012, the State filed a motion to dis-
miss Robbins’ motion for postconviction relief. On November
21, following a hearing, the court filed an order (1) denying
Robbins’ request for postconviction relief as time barred, (2)
denying Robbins’ request for a new trial under § 29-2101(5),
and (3) granting Robbins’ request for DNA testing under
§ 29-4120(5).
The court found that Robbins’ allegation met the standard
set forth in § 29-4120(5), that DNA testing may be relevant to
the claim that a person was wrongfully convicted or sentenced.
Pursuant to § 29-4122, the court appointed counsel to represent
Robbins’ claim under the Act. On January 14, 2013, Robbins’
court-appointed attorney was allowed to withdraw and the
Nebraska Commission on Public Advocacy was appointed.
Robbins apparently separately appealed from the denial of
postconviction relief, and the Court of Appeals affirmed the
district court’s judgment, finding that Robbins’ motion was
untimely filed.2
On January 28, 2016, following a hearing, the district
court overruled and dismissed Robbins’ motion for DNA test-
ing. The court held that (1) the DNA evidence did not show
a complete lack of evidence to establish any element of the
crime charged, thus Robbins was not entitled to a finding of
complete exoneration; (2) the absence of DNA evidence did
not affect a substantial right of Robbins, nor would it probably
have produced a substantially different result, thus Robbins
2
See State v. Robbins, 21 Neb. Ct. App. xxv (No. A-12-1158, Sept. 10, 2013),
and State v. Robbins, 20 Neb. Ct. App. lxii (No. A-13-261, May 15, 2013).
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was not entitled to a new trial based on this evidence; and
(3) it was not unfair to Robbins that he was sentenced without
the court’s knowing of his less-than-average metabolization of
Zoloft, thus the DNA evidence was not exculpatory, nor did
it have any relevance to a claim that Robbins was wrongfully
sentenced or convicted.
Shortly after oral arguments, we directed the parties to
submit supplemental briefs addressing (1) whether the DNA
test utilized by Robbins met the requirements set forth in
§ 29-4120(1)(b), (2) whether the Act allows testing of this
type, and (3) whether the evidence regarding Robbins’ status
as an intermediate metabolizer is “exculpatory evidence” under
§§ 29-4119, 29-4120, and 29-4123.
III. ASSIGNMENTS OF ERROR
Robbins assigns, restated, that the district court erred in
(1) denying a new sentencing and (2) overruling his motion
new trial.
IV. STANDARD OF REVIEW
[1-3] A motion for DNA testing is addressed to the discre-
tion of the trial court, and unless an abuse of discretion is
shown, the trial court’s determination will not be disturbed.3
Under the Act, an appellate court will not reverse a trial court’s
order determining a motion to vacate a judgment of convic-
tion or grant a new trial absent an abuse of the trial court’s
discretion.4 Under the Act, an appellate court will uphold a
trial court’s findings of fact unless such findings are clearly
erroneous.5
[4] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.6
3
State v. Winslow, 274 Neb. 427, 740 N.W.2d 794 (2007).
4
State v. Parmar, 283 Neb. 247, 808 N.W.2d 623 (2012).
5
Id.
6
State v. Thompson, 294 Neb. 197, 881 N.W.2d 609 (2016).
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[5,6] Absent plain error, assignments of error not discussed
in the briefs will not be addressed by an appellate court.7
Plain error exists where there is an error, plainly evident from
the record but not complained of at trial, which prejudicially
affects a substantial right of a litigant and is of such a nature
that to leave it uncorrected would cause a miscarriage of jus-
tice or result in damage to the integrity, reputation, and fairness
of the judicial process.8
V. ANALYSIS
Before addressing Robbins’ argument that he was entitled
to relief under the Act, we must determine whether the Act is
applicable and allows the testing sought in this case. Finding
that it does not, we must reverse, and remand with directions
to dismiss.
In his supplemental brief, Robbins contended that the Act
applies to testing of this type because (1) he was in custody at
the time the sample for DNA testing was taken from his cheek
and has remained in custody since that time, (2) his DNA pro-
file is not subject to change, and (3) the Act does not expressly
limit how evidence may be used and, in the alternative, if it
may only be used for purposes of determining identity, “[a]
person suffering from an involuntary and adverse reaction to
medication is a different person.”9
1. Interpretation of Act
[7] We first turn to whether the DNA testing sought by
Robbins is the type of DNA testing intended under the Act.
In construing a statute, an appellate court should consider the
statute’s plain meaning in pari materia and from its language
as a whole to determine the intent of the Legislature.10
7
State v. Soukharith, 260 Neb. 478, 618 N.W.2d 409 (2000).
8
In re Estate of Morse, 248 Neb. 896, 540 N.W.2d 131 (1995).
9
Supplemental brief for appellant at 10.
10
State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004).
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Section 29-4120(1)(b) provides guidance. Under
§ 29-4120(1)(b), a person in custody may request DNA testing
of biological material only if the biological material “[i]s in the
actual or constructive possession or control of the state or is in
the possession or control of others under circumstances likely
to safeguard the integrity of the biological material’s original
physical composition[.]”
Section 29-4120(5) provides further explanation as to the
circumstances under which a court may order DNA testing.
That section states that the defendant has the burden of provid-
ing the district court with affidavits or evidence at a hearing
establishing the three required factual determinations for the
district court.11 Subsection (5) also includes a requirement
that “the biological material has been retained under circum-
stances likely to safeguard the integrity of its original physi-
cal composition.”
In State v. Pratt,12 we explained the “integrity” language in
§ 29-4120(1)(b) and (5), and we stated:
The integrity at issue under § 29-4120(5) is that of the
“original physical composition” of “the biological mate-
rial.” Since this is a DNA testing statute, the relevant
“biological material[s]” are, fundamentally, the DNA.
The question under the physical integrity prong thus
is whether the evidence has been retained in a manner
“likely” to avoid impairment of the original physical
integrity of any DNA deposited during the crime or oth-
erwise relevant to the crime.
We further explained:
No other state or federal DNA statute utilizes this
“integrity” language. Most statutes do, however, require
a finding that the evidence was subjected to a “chain
of custody” sufficient to establish that it has not been
“substituted, tampered with, replaced or altered in any
11
See State v. Young, 287 Neb. 749, 844 N.W.2d 304 (2014).
12
State v. Pratt, 287 Neb. 455, 469, 842 N.W.2d 800, 810 (2014).
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material aspect.” Some statutes and cases describe this
absence of substituting, tampering, replacing, or altering,
as the overall “integrity” of the evidence. We find that to
be an apt characterization of the meaning of “integrity” in
the context of DNA evidence.”13
In addition, § 29-4120(4) states that after a motion seek-
ing forensic DNA testing has been filed, the State is required
to file “an inventory of all evidence that was secured by the
State or a political subdivision in connection with the case.”
This further implies the nature of the material to be subjected
to DNA testing under the Act must be something which can
be “inventor[ied]” and “secured by the state or a political
subdivision.”14
[8] To further explain the “integrity” requirement of the
Act, we look to its legislative history. In construing a statute,
an appellate court’s objective is to determine and give effect
to the legislative intent of the enactment.15 According to the
legislative history of the Act, the Legislature intended for a
defendant to
be required to present a claim that establishes . . . that the
identity of the defendant was a material issue at the trial
and that resulted in his or her conviction; that the evi-
dence to be tested must be in a chain of custody sufficient
to establish that it has not been substituted, tampered
with, replaced, or altered in any material aspect; and that
the results of such testing would be material to the issue
of identity.16
Here, the DNA was acquired from a buccal swab of
Robbins’ cheek 11 years after the crime to determine how he
metabolized pharmaceutical medicines. Unlike the language
13
Id. at 469-70, 842 N.W.2d at 810.
14
§ 29-4120(4).
15
State v. Hernandez, 283 Neb. 423, 809 N.W.2d 279 (2012).
16
Judiciary Committee Hearing, L.B. 659, 97th Leg., 1st Sess. 57 (Feb. 23,
2001) (remarks of Senator Kermit Brashear) (emphasis supplied).
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suggested in Pratt and set forth in the legislative hearings, a
defendant’s ability to metabolize pharmaceutical drugs does
not have an “original physical composition” that can be in a
“chain of custody” or “in the actual or constructive possession
or control of the state . . . likely to safeguard [its] integrity.”17
A logical reading of the Act does not allow for a court to
grant DNA testing in the form of a buccal swab to determine a
defendant’s metabolism of pharmaceutical medicines.
2. Robbins’ DNA Evidence as
Exculpatory Evidence
Next, we turn to whether the evidence regarding Robbins’
status as an intermediate metabolizer of pharmaceutical drugs
is “exculpatory evidence” under §§ 29-4119, 29-4120, and
29-4123. We have held that “the only statutory inquiry upon a
motion to vacate or for new trial under the Act is whether the
DNA evidence ‘exonerate[s]’ or ‘exculpate[s]’ the inmate.”18
Robbins argues that a person’s genetic capacity to metabo-
lize prescription drugs is exculpatory evidence under the Act,
because it is favorable to Robbins and “material to the issue
of guilt . . . or relevant to a claim that [Robbins] was wrong-
fully sentenced,” as he claims was established by Hilleman’s
testimony.19
Section 29-4123 states that after the receipt of the results of
the DNA testing, a party may request a hearing before the court
“when such results exonerate or exculpate the person.” Section
29-4119 defines exculpatory evidence as “evidence which is
favorable to the person in custody and material to the issue of
the guilt of the person in custody.”
In State v. Winslow,20 this court reversed the district court’s
denial of the defendant’s request for DNA testing and found
that DNA testing of the samples of biological material found
17
See § 29-4120(1)(b).
18
State v. Pratt, supra note 12, 287 Neb. at 472, 842 N.W.2d at 812.
19
Supplemental brief for appellant at 12.
20
State v. Winslow, supra note 3.
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at the scene of the crime produced noncumulative, exculpa-
tory evidence. In Winslow, the defendant was allegedly part
of a group of individuals that broke into the victim’s house
and raped and murdered her during the course of a failed bur-
glary. This court found that DNA testing would “exclude . . .
contributors to the semen sample” and “raise doubts regard-
ing the veracity of the testimony” at the codefendant’s trial
that “served as the factual basis for [the defendant’s] plea and
would therefore be favorable” to the defendant.21 This court
reasoned that
even if [the defendant] were placed at the scene of the
crime, such evidence excluding [the defendant] as a con-
tributor would also be relevant to a claim by [the defend­
ant] that he was less culpable than the sentencing court
had believed him to be and that therefore, he was wrong-
fully sentenced.22
The Act states that the Legislature finds that DNA testing
is “the most reliable forensic technique for identifying persons
when biological material is found at a crime scene or trans-
ferred from the victim to the person responsible and trans-
ported from the crime scene.”23 Section 29-4117 states that it is
“the intent of the Legislature that wrongfully convicted persons
have an opportunity to establish their innocence.” Furthermore,
in the legislative history of the Act, as stated above, the
Legislature explained that its purpose in passing the Act was to
allow defendants the opportunity to receive DNA testing that
“would be material to the issue of identity.”24
Robbins concedes that “[t]he purpose of genetic testing
in this case is not to establish that the results of such testing
exonerates or exculpates [him].”25 Instead, Robbins argues
21
Id. at 436, 740 N.W.2d at 801.
22
Id. at 437, 740 N.W.2d at 801.
23
§ 29-4118(1) (emphasis supplied).
24
Judiciary Committee Hearing, supra note 16 at 57 (emphasis supplied).
25
Brief for appellant at 4-5.
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that “[t]he issue is one of culpability viewed through the lense
[sic] of sentencing mitigation and/or whether new scientific
evidence would contribute to and establish defenses at trial
of (a) an inability to formulate intent, (b) intoxication, or
(c) insanity.”26
This case is distinguishable from Winslow. Unlike Winslow,
the DNA testing that Robbins sought does not exclude him
from being a contributor to DNA found during the investiga-
tion into the underlying homicide. Rather, Robbins admits that
he killed Eurek and he does not contend that the DNA testing
will exculpate or exonerate him as to his identity as the only
contributor in her death. Because the evidence from the DNA
testing cannot exclude Robbins as a contributor, the holding in
Winslow does not control under the current facts.
We find no merit in Robbins’ argument that this case involves
an issue of identity because he was a “different person” while
on Zoloft.27 There is no issue of identity in this case, and as
we established above, the DNA testing was not material to the
issue of the guilt of the person in custody or that he was less
culpable than the sentencing court had believed him to be and
that therefore, he was wrongfully sentenced. Because the Act
is intended to assist in proving the innocence of a convicted
person through establishing the person’s identity, it cannot be
said that evidence from the DNA testing probably would have
produced a substantially different result at trial. As such, the
evidence is not exculpatory under the Act.
As this is a question of statutory interpretation, we hold that
the Act does not apply to DNA testing of the defendant’s per-
son for the purpose of determining the defendant’s metabolism
of prescription medication. Furthermore, new evidence con-
cerning a defendant’s metabolism of prescription drugs, when
such evidence has no bearing on identity, is not exculpatory
under the Act.
26
Id. at 5.
27
Supplemental brief for appellant at 10.
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[9,10] Absent plain error, assignments of error not discussed
in the briefs will not be addressed by this court.28 Plain error
exists where there is an error, plainly evident from the record
but not complained of at trial, which prejudicially affects a
substantial right of a litigant and is of such a nature that to
leave it uncorrected would cause a miscarriage of justice or
result in damage to the integrity, reputation, and fairness of
the judicial process.29 Plain error may be asserted for the first
time on appeal or be noted by an appellate court on its own
motion.30 A substantial right is affected if an order affects the
subject matter of the litigation, such as diminishing a claim
or defense that was available to the appellant before the order
from which he or she is appealing.31
We find that it was “plainly evident from the record” that
the DNA testing Robbins sought in his motion for DNA test-
ing was not within the purview of the Act. We further find
that to apply the Act to a defendant’s metabolism of prescrip-
tion drugs would extend the Act beyond its purpose set forth
by the Legislature and, as such, “damage . . . the integrity,
reputation, and fairness of the judicial process.”32 We hold that
the district court committed plain error in granting Robbins’
motion for DNA testing.
VI. CONCLUSION
The district court committed plain error in granting Robbins’
motion for DNA testing. We reverse, and remand with direc-
tions to dismiss.
R eversed and remanded with
directions to dismiss.
28
State v. Soukharith, supra note 7.
29
In re Estate of Morse, supra note 8.
30
Id.
31
Carmicheal v. Rollins, 280 Neb. 59, 783 N.W.2d 763 (2010).
32
In re Estate of Morse, supra note 8, 248 Neb. at 897, 540 N.W.2d at 132.