State v. Pratt ( 2014 )

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STATE v. PRATT 455
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family law, and civil procedure. O’Siochain was deemed quali-
fied to sit for the New York bar examination, having shown,
inter alia, that the course of study he successfully completed
was the substantial equivalent of the legal education provided
by an ABA-approved law school. He was tested by the New
York bar examination in all fundamental areas of U.S. law,
including trusts and estates, family law, and civil procedure. He
passed the New York bar examination and is a licensed attor-
ney in good standing with the New York bar.
When O’Siochain’s education is combined with his work
experience as an attorney, efforts to become acquainted with
U.S. law, passing of the New York bar examination, and
admission to the New York bar, a waiver is appropriate. Upon
a de novo review of the facts of this case, we conclude that
O’Siochain is a qualified applicant for waiver.
CONCLUSION
Based on a de novo review, we conclude that O’Siochain
has met his burden of proving his law school education
and experience were functionally equivalent to the educa-
tion received at an ABA-approved law school and that as a
result, a waiver of the educational qualifications requirement
of § 3-105(A)(1)(b) is appropriate. We waive this requirement
as it applies to O’Siochain and will allow him to be admitted
to the Nebraska bar.
Application granted.
State of Nebraska, appellee, v.
Juneal Dale P ratt, appellant.
___ N.W.2d ___
Filed February 21, 2014. No. S-11-760.
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. ____: ____. In an appeal from a proceeding under the DNA Testing Act, the
trial court’s finding of fact will be upheld unless such findings are clearly
erroneous.
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3. Judgments: Appeal and Error. When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent conclu-
sion irrespective of the decision of the court below.
4. DNA Testing: Evidence. After a proper motion seeking forensic DNA testing has
been filed, the State is required by Neb. Rev. Stat. § 29-4120(4) (Reissue 2008)
to file an inventory of all evidence that was secured by the State or a political
subdivision in connection with the case.
5. Evidence: Proof. The burden to produce evidence will rest upon the party who
does not have the general burden of proof if that party possesses positive and
complete knowledge concerning the existence of facts which the party having
that burden is called upon to negative, or if the evidence to prove a fact is chiefly
within the party’s control.
Petition for further review from the Court of Appeals,
Inbody, Chief Judge, and Moore and Riedmann, Judges, on
appeal thereto from the District Court for Douglas County,
W. Russell Bowie III, Judge. Judgment of Court of Appeals
affirmed.
Tracy L. Hightower-Henne, of Hightower Reff Law, L.L.C.,
for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
Amy A. Miller for amicus curiae American Civil Liberties
Union Foundation of Nebraska.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Miller-Lerman, JJ.
McCormack, J.
NATURE OF CASE
Under the DNA Testing Act, an inmate seeks retesting of
DNA evidence relating to his 1975 convictions of robbery,
rape, and sodomy. Previous DNA testing in 2005 revealed
that at least one stain of biological material was from a male
who was not the defendant. However, the testing conducted in
2005 could not distinguish between semen and epithelial cells
in older materials. Furthermore, there was evidence that the
materials had been handled by numerous parties and that the
amount of DNA found on the materials could have come from
such handling. Therefore, the DNA test results were neither
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exonerating nor exculpatory and the district court denied the
inmate’s motion to vacate his convictions or grant a new trial,
based on the 2005 test results. The inmate’s current motion for
DNA testing alleges that new, more accurate testing techniques
may lead to exonerating or exculpatory evidence. In particular,
an expert affidavit establishes that current testing technol-
ogy can distinguish between semen and epithelial cells on the
materials in question. The district court denied the motion for
retesting. The Nebraska Court of Appeals reversed. For reasons
different from those stated by the Court of Appeals, we affirm
its determination that the district court erred in denying Pratt’s
motion for retesting under the Act.
BACKGROUND
Trial and Convictions
In 1975, Juneal Dale Pratt was convicted of sodomy, forc-
ible rape, and two counts of robbery. The evidence at trial
showed that two sisters had been forced into their hotel room,
where they were robbed and sexually assaulted by a single
male perpetrator. The perpetrator ripped the sisters’ shirts
down the front, apparently in an attempt to find hidden money.
He forced them to remove the rest of their clothes. The per-
petrator proceeded to make one sister perform oral sex on
him, while the other sister’s face was covered with an article
of clothing. The perpetrator did not ejaculate during oral sex.
The perpetrator then raped the other sister, while the first
sister’s face was covered with an article of clothing. Sperm
cells were found on that sister’s vaginal walls. She testified
at trial that she was wearing her torn shirt at the time of the
rape. Both sisters testified that the perpetrator repeatedly rum-
maged through their belongings looking for more money and
other items of value. He then left them tied up and alone in
the hotel room.
The State presented evidence that Pratt had robbed another
victim at the same hotel approximately a week after the rob-
beries and assaults of the sisters. Pratt was apprehended after a
chase that followed this second robbery. The sisters had inde-
pendently identified Pratt as the perpetrator in both a three-man
lineup and a voice lineup. In addition, the sisters recognized
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the shoes worn by Pratt as the shoes worn by the perpetrator
and they identified a ring worn by Pratt as a ring stolen during
the robberies and assaults.
Pratt testified in his own defense at trial. He presented an
alibi, which was confirmed by his live-in girlfriend. Pratt’s
sister testified that the ring in question belonged to her. A shoe-
store owner testified that the type of shoes Pratt was wearing
was not uncommon.
The jury found Pratt guilty of all crimes charged. He was
sentenced to consecutive prison terms of 5 to 10 years on the
sodomy count, 7 to 20 years on the rape count, and 10 to 30
years on each robbery count. His convictions and sentences
were affirmed on direct appeal.1
2004 Motion for DNA Testing
In 2004, Pratt moved for testing under the DNA Testing Act
(hereinafter the Act).2 Pursuant to the requirements of the Act,
the State filed an inventory of all evidence that was secured
in connection with Pratt’s case.3 The inventory revealed that
the State had retained the two ripped shirts, a bra, and the
clothing worn by Pratt the day he was apprehended. The State
had not retained the semen samples obtained from the rape
victim. The sisters’ underwear had likewise been either lost
or destroyed.
All the retained clothing was stored together in a small card-
board box. Each item had an exhibit sticker on it.
The district court granted Pratt’s 2004 request to conduct
DNA testing. The State did not appeal from the 2004 order
granting testing under the Act.
No apparent stains were found on the bra. Several stained
areas containing potential biological materials were identified
on the torn shirts, however, and were tested in 2005 at the
University of Nebraska Medical Center (UNMC). Pratt pro-
vided a buccal swab for comparison to any DNA found. Pratt’s
clothes were not tested.
1
State v. Pratt, 197 Neb. 382, 249 N.W.2d 495 (1977).
2
See Neb. Rev. Stat. §§ 29-4116 to 29-4125 (Reissue 2008).
3
§ 29-4120(4).
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The presumptive testing conducted in 2005 to identify
whether any DNA found was from semen cells or epithelial
cells targeted an enzyme that was not stable. Thus, given the
age of the biological material on the shirts, the DNA testing
conducted could not distinguish whether any DNA identified
on the shirts came from semen cells or epithelial cells.
Most of the 2005 DNA test results were inconclusive as to
Pratt. But one stain on the rape victim’s shirt showed that while
it may or may not have been a mixture of one or more indi-
viduals, if it was not a mixture, then Pratt would be excluded.
Another area of that same shirt showed a mixture of more
than one individual’s DNA. At least one of the contributors
to that mixture was male. The DNA testing excluded Pratt as
that male.
Given the amplification methods available in 2005, and
without the DNA profiles of the victims to help sort out
mixtures, UNMC was unable to isolate and identify any full
DNA profile.
2007 Motion to Vacate/New Trial
After 2005 Test R esults
Based on the presence of an unidentified male’s DNA on
the rape victim’s shirt, in 2007, Pratt filed a motion under
§ 29-4123 to vacate and set aside his conviction or, in the alter-
native, for new trial.
The technologist who conducted the DNA testing testified at
the hearing on Pratt’s 2007 motion. The technologist testified
that it was her practice to try to cut out as small a sample as
possible in order to leave some of the biological stain for sub-
sequent testing that she or anyone else would need to do. She
testified that the remaining stained pieces of fabric from the
victims’ shirts should have been returned to the State’s custody
with the rest of the evidence.
The technologist testified that storing several items together
in a cardboard box was not an appropriate way to store items to
avoid cross-contamination. She did not, however, connect this
possibility of cross-contamination to her interpretation of the
results of the DNA testing.
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The technologist testified that by merely touching clothing,
a person could deposit sufficient DNA in epithelial cells to
result in a partial profile, given the amplification techniques
available in 2005. The technologist conceded that if the shirts
were handled by male police officers, clerks, and jurors, then
any of those persons could have deposited the male DNA she
detected. She testified that it was impossible to know how
or when the DNA she detected was deposited on the vic-
tims’ shirts.
On February 28, 2008, the district court denied Pratt’s
motion to vacate or for new trial. Apparently based on the
technologist’s testimony, the court concluded that “[n]either
of the shirts [was] handled or stored in a way likely to safe-
guard the integrity of any biological matter which may have
been deposited on them at the time of the attacks . . . .” The
court explained that the shirts must have been touched when
the exhibit stickers were placed on them and that the shirts,
because they bore exhibit stickers, must have been available
for the jurors to inspect. The court noted that several jurors,
the prosecutor, the defense lawyers, and the court reporters
were male. The district court noted that at the time of the
trial, there was no awareness that simply handling the shirts
could “contaminate” them for future scientific testing. The
court concluded that since there was no evidence of semen on
the shirts and simply handling the shirts could have deposited
DNA material sufficient for a partial profile, the results neither
exonerated nor exculpated Pratt.
On appeal from that 2008 order, we affirmed the denial of
the motion to vacate or for new trial.4 We reiterated the reason-
ing of the district court, including that “the evidence was not
stored in such a way as to preserve the integrity of any DNA
evidence.”5 We explained, as the district court did, that the
DNA cells of another male found on the clothing could have
come from extraneous epithelial cells deposited from simply
handling the clothing.
4
State v. Pratt, 277 Neb. 887, 766 N.W.2d 111 (2009).
5
Id. at 895, 766 N.W.2d at 117.
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2011 Motion for
DNA R etesting
In 2011, Pratt filed a second motion for DNA testing
of the biological evidence pertinent to his conviction. Pratt
alleged that testing techniques now available at certain accred-
ited laboratories can distinguish semen cells from epithelial
cells—even when those cells are approximately 30 years old.
Furthermore, new testing procedures could potentially extract
the victims’ DNA from the armpit or collar of the victims’
shirts and remove those profiles from the mixed samples,
leading to the identification of full profiles from the DNA
present. Finally, Pratt alleged generally that more powerful
amplification techniques could render a complete profile of
the male DNA on the shirts. Pratt expected to be excluded as
a contributor of the DNA on the shirts, and he expected to be
able to search DNA databases to find the true perpetrator of
the crimes. He alleged that none of the requested testing was
available in 2005.
Pratt attached to his motion the affidavit of Brian Wraxall,
chief forensic serologist of the Serological Research Institute
in California. That affidavit was entered into evidence at the
hearing on the motion for testing.
Wraxall stated that he had reviewed the 2005 DNA analysis
of the biological materials found on the shirts. Wraxall opined
that “the analysis of the items of evidence submitted to UNMC
is by far incomplete due to the limitations of the testing done
at UNMC and to the improvements in technology that have
occurred since 2005.” Wraxall explained that the testing used
in 2005 targeted a semen-specific enzyme that was not stable
and tended to degrade over time. Wraxall instead proposed that
a “P30” test be utilized, which targets a semen protein that “is
very stable.” Wraxall explained that finding spermatozoa in
30-year-old cases was “very possible.”
Wraxall further averred that “[w]e now have techniques
that were not available in 2005 but can be used to increase
our ability to obtain full profiles in small, old and degraded
samples.” Wraxall stated that although it would be ideal to
obtain DNA samples from the victims, it “was and is possible”
to attempt to extract the victims’ DNA from certain areas of
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the shirts, and thereby isolate the male DNA profile from the
mixed stains. Wraxall explained that “[i]f the clothing is not
washed (e.g. hats) DNA from perspiration and abrasions can
build up on the item where it is in contact with the body.” He
would attempt to extract the victims’ DNA from those areas.
Wraxall opined that any risk due to commingling of the cloth-
ing was “minimal.”
The district court denied the motion for retesting of the
shirts. The court found that the first prong of § 29-4120(5) was
met—that the DNA testing requested was not available at the
time of his trial.
But the court found that the second prong of § 29-4120(5)
was not met. The court reasoned that it had “already deter-
mined that the materials to be tested were not maintained under
circumstances likely to safeguard the integrity of their original
composition, and the Supreme Court affirmed that finding.”
In addition, the court explained, “[i]t is quite possible that the
clothing has further deteriorated or been further handled in a
manner to deposit still more unidentified DNA.”
The court alternatively found that the third prong of
§ 29-4120(5) was not met—that the requested testing would
not provide noncumulative exculpatory evidence. In support
of that finding, the court outlined the evidence against Pratt
at his original trial. The court said that any test results would
create “only another circumstance on which Pratt cou[ld] argue
reasonable doubt.”
Pratt appealed the denial of his motion for DNA testing to
the Court of Appeals. The State did not cross-appeal.
Appeal
Pratt argued on appeal that the lower court was bound by
law of the case, res judicata, or collateral estoppel and could
not redetermine its finding in 2004 that the biological mate-
rial was retained under circumstances likely to safeguard the
integrity of its original physical composition. He apparently
did not make those issue-preclusion arguments to the district
court. Pratt also asserted that the shirts have been retained in
the custody of either the State or UNMC since the first tests
were conducted and that the court erred in finding prong two
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was not met. Finally, Pratt argued that the district court erred
in finding that new DNA tests could not lead to exculpa-
tory evidence.
In its reply brief, the State argued that the district court’s
decision was correct because none of the three prongs of
§ 29-4120(5) had been satisfied.
The State argued that the first prong was not met, because
Wraxall’s affidavit did not explicitly state that the testing
now requested was not available at the time the first request
was granted.
The State argued that the second prong of § 29-4120(5) was
not met, because Pratt presented no evidence on the issue of
whether the evidence had been retained under circumstances
likely to safeguard the integrity of their original composition.
In particular, the State refused to concede that, since 2005, it
had retained the evidence in its custody and in a manner man-
dated by the Act.6
The State argued that the third prong of § 29-4120(5) was
not met, because DNA testing would not necessarily provide
any conclusive result as to the source of the male DNA, as
alleged in Pratt’s motion. Like the district court, the State cited
to the strength of the State’s original case against Pratt.
The Court of Appeals reversed the decision of the dis-
trict court. The Court of Appeals rejected Pratt’s various
arguments for issue preclusion. But it held that the lower
court abused its discretion when it denied Pratt’s second
motion for DNA testing, concluding that the three prongs of
§ 29-4120(5) had been met.7 We granted the State’s petition
for further review.
ASSIGNMENTS OF ERROR
The State assigns that the Court of Appeals erred by (1)
finding that biological material had been retained under cir-
cumstances likely to safeguard the integrity of its original
physical composition based upon a review of the evidence
since the previous motion for DNA testing; (2) concluding that
6
See § 29-4125.
7
State v. Pratt, 20 Neb. Ct. App. 434, 824 N.W.2d 393 (2013).
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DNA testing may produce noncumulative, exculpatory evi-
dence; and (3) ordering successive DNA testing.
STANDARD OF REVIEW
[1] 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.8
[2] In an appeal from a proceeding under the Act, the trial
court’s finding of fact will be upheld unless such findings are
clearly erroneous.9
[3] When dispositive issues on appeal present questions
of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the
court below.10
ANALYSIS
The Act
The Act, passed in 2001, was intended to allow wrongfully
convicted persons the opportunity to establish their innocence
through DNA, or deoxyribonucleic acid, testing, which was
not widely available before 1994.11 In addition, the Legislature
declared that
new forensic DNA testing procedures . . . make it possible
to obtain results from minute samples that previously
could not be tested and to obtain more informative and
accurate results than earlier forms of forensic DNA test-
ing could produce. As a result, in some cases, convicted
inmates have been exonerated by new DNA tests after
earlier tests had failed to produce definitive results.12
The Legislature declared in § 29-4118(4) that “DNA test-
ing is often feasible on relevant biological material that is
decades old.” “DNA evidence produced even decades after a
8
State v. Leon, 279 Neb. 734, 781 N.W.2d 608 (2010).
9
See State v. Haas, 279 Neb. 812, 782 N.W.2d 584 (2010).
10
See State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013).
11
§§ 29-4117 and 29-4118.
12
§ 29-4118(3).
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conviction can provide a more reliable basis for establishing
a correct verdict than any evidence proffered at the original
trial.”13 “DNA testing,” the Legislature explained, “responds
to serious concerns regarding wrongful convictions, espe-
cially those arising out of mistaken eyewitness identifica-
tion testimony.”14
A person in custody takes the first step toward obtaining
possible relief under the Act by filing a motion requesting
forensic DNA testing of biological material. We have described
DNA testing as being “available”15 under § 29-4120(1) for any
biological material that (1) is related to the investigation or
prosecution that resulted in the judgment, (2) is in the actual
or constructive possession of the State or others likely to safe-
guard the integrity of the biological material, and (3) either was
not previously subjected to DNA testing or can be retested with
more accurate current techniques.
[4] After a proper motion seeking forensic DNA testing
has been filed, the State is required by § 29-4120(4) to file
an inventory of all evidence that was secured by the State
or a political subdivision in connection with the case. Then,
upon consideration of affidavits or after a hearing, pursuant
to § 29-4120(5), the court “shall” order testing upon a deter-
mination (1) that such testing was effectively not available
at the time of trial, (2) that the biological material has been
retained under circumstances likely to safeguard the integrity
of its original physical composition, and (3) that such test-
ing may produce noncumulative, exculpatory evidence rel-
evant to the claim that the person was wrongfully convicted
or sentenced.
Once the court orders testing, if the test results “exonerate
or exculpate”16 the person, then either party may request a
hearing before the district court. Following such hearing, the
district court may, on its own motion or upon the motion of
13
§ 29-4118(4).
14
§ 29-4118(6).
15
See, e.g., State v. Phelps, 273 Neb. 36, 40, 727 N.W.2d 224, 227 (2007).
16
§ 29-4123(2).
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any party, vacate and set aside the judgment.17 Alternatively,
any party may file a motion for new trial under Neb. Rev.
Stat. §§ 29-2101 to 29-2103 (Reissue 2008).18 The extraor-
dinary remedy of vacating the judgment is available for the
compelling circumstance in which actual innocence is conclu-
sively established by DNA testing.19 In contrast, an ordinary
remedy of a new trial is provided for circumstances in which
newly discovered DNA evidence would have, if available
at the former trial, probably produced a substantially differ-
ent result.20
The order before us is the district court’s denial of Pratt’s
motion for retesting. A possible motion to vacate or for new
trial based on the results of such testing is not yet at issue.
As will be explained further below, we conclude that the Act
mandates Pratt be given the opportunity to retest the biologi-
cal materials pertinent to his convictions. Pratt was convicted
before the advent of DNA testing, and the evidence against
him consisted of eyewitness testimony and other circumstan-
tial evidence. He presented uncontroverted evidence that the
biological evidence can now be retested with more accurate
current techniques which may exclude Pratt as the contribu-
tor of possible semen on the shirts and identify the true per-
petrator. We conclude that the three prongs of § 29-4120(5)
were met.
Testing Effectively
Not Available
The district court found in favor of Pratt under prong one of
§ 29-4120(5), that the testing he requested was effectively not
available at the time of trial. The Court of Appeals addressed
the merits of this prong, affirming the district court’s find-
ing with additional requirements, which the Court of Appeals
concluded Pratt had met as a matter of law. The State did not
cross-appeal the district court’s finding on prong one. To the
17
Id.
18
§ 29-4123(3).
19
See State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004).
20
Id.
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extent that the State properly assigns as error the Court of
Appeals’ conclusion as to prong one, that issue was waived by
the State’s failure to cross-appeal.
Proceedings under the Act are civil in nature.21 Although the
State has only a limited right to appeal in a criminal case, there
are no such restrictions under the Act. Thus, as in any other
civil proceeding, the State must cross-appeal in order for this
court to consider any argument that a lower court’s decision
should be upheld on grounds specifically rejected below.22
Physical Integrity
The court determined that prong two of § 29-4120(5), that
“the biological material has been retained under circumstances
likely to safeguard the integrity of its original physical compo-
sition,” was not demonstrated. Because the uncontroverted evi-
dence presented at the hearing was to the contrary, the district
court clearly erred in this determination.
The State argues that Pratt failed to sustain his burden to
prove that the biological evidence tested in 2005 still exists and
has been maintained since 2005 in a way likely to safeguard
its “integrity.” While we would agree that total destruction of
the evidence would mean its physical “integrity” was not safe-
guarded, we disagree with the State that Pratt had the burden to
provide evidence over which the State, not Pratt, has particular
knowledge and control.
[5] The general burden of proof is usually upon the party
seeking affirmative relief.23 Nevertheless, it is an equally fun-
damental proposition that the burden to produce evidence will
rest upon the party who does not have the general burden of
proof if that party possesses positive and complete knowledge
concerning the existence of facts which the party having that
burden is called upon to negative, or if the evidence to prove a
fact is chiefly within the party’s control.24
21
See, e.g., State v. Pratt, 273 Neb. 817, 733 N.W.2d 868 (2007).
22
See Weber v. Gas ’N Shop, 278 Neb. 49, 767 N.W.2d 746 (2009).
23
See, e.g., State v. Malcom, 12 Neb. Ct. App. 432, 675 N.W.2d 728 (2004).
24
See State ex rel. Wagner v. Amwest Surety Ins. Co., 274 Neb. 121, 738
N.W.2d 813 (2007).
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Since 2001, § 29-4125 mandates that the State shall “pre-
serve” any biological material secured in connection with a
criminal case for such period of time as any person remains
incarcerated in connection with that case. The biological evi-
dence tested in 2005 was in the State’s custody from the time it
was collected as evidence of the crimes. It was given to UNMC
for testing. UNMC is a State entity and was employed by the
State to conduct testing. Furthermore, the technologist testified
that, after testing, the remaining stained pieces of fabric from
the victims’ shirts should have been returned to the State’s cus-
tody with the rest of the evidence.
Other courts reason that it is only logical that the state,
as the custodian of the evidence, has the burden to establish
whether the requested biological evidence still exists and is
available for testing.25 We agree. It cannot be the inmate’s bur-
den to demonstrate how the evidence was retained by the State
while that evidence was in the State’s custody. Facts pertaining
to the State’s safeguarding of the evidence while in its custody
are chiefly within the State’s knowledge and control.
In addition, the Act specifically requires that upon an
inmate’s motion for testing, the State must file an “inven-
tory of all evidence that was secured by the state.”26 This, in
essence, codifies the burden of proof to be on the State. Here,
§ 29-4120(4) requires that the State demonstrate that the bio-
logical evidence that existed in 2005 was not consumed in test-
ing or otherwise destroyed. An “inventory” of things “secured”
logically indicates a list of the things the State still has, not just
the things once collected but not retained.
The State failed to produce an updated inventory upon
Pratt’s 2011 motion. Upon remand, we direct the State to file
an inventory as required under § 29-4120(4). In the event that
the biological evidence no longer exists, as the State argues
may be the case, obviously it cannot be tested. However, Pratt
is not required by the Act to somehow prove either that the
evidence still exists, that it is still in the State’s possession,
25
See, Blake v. State, 395 Md. 213, 909 A.2d 1020 (2006); People v. Pitts, 4
N.Y.3d 303, 828 N.E.2d 67, 795 N.Y.S.2d 151 (2005).
26
§ 29-4120(4).
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or that it was retained properly while in the State’s custody
and during the time that the State had the statutory duty to
preserve it.
As for the status of those biological materials before the
State’s statutory duty to safeguard them arose in 2001, we must
address the meaning of prong two’s “integrity” language. This
is the first occasion we have had to do so.
It is undisputed that the shirts were stored in a cardboard
box and probably handled by various persons during the
course of the trial. The State believes that the possibility
of extraneous DNA from epithelial cells being deposited
onto the evidence during storage and handling relates to the
“integrity” of the “original physical composition” of the rel-
evant “biological material[s].”27 The Court of Appeals, in its
opinion below, accepted that assumption. We conclude that
the possibility of extraneous DNA being deposited on the
evidence instead relates to whether the requested DNA testing
may lead to exculpatory evidence—whether any DNA found
will have a bearing on the guilt or culpability of Pratt. That
is prong three.
Dictionaries define “integrity” as the state of being unmarred,
unimpaired, complete, undivided, whole, unified, or sound in
construction.28 The integrity at issue under § 29-4120(5) is
that of the “original physical composition” of “the biological
material.” Since this is a DNA testing statute, the relevant “bio-
logical 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 otherwise relevant to the crime.
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
27
§ 29-4120(5).
28
See, Concise Oxford American Dictionary 466 (2006); Merriam
Webster’s Collegiate Dictionary 608 (10th ed. 1996); Webster’s Third
New International Dictionary of the English Language, Unabridged 1174
(1993).
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470 287 NEBRASKA REPORTS
to establish that it has not been “substituted, tampered with,
replaced or altered in any material aspect.”29 Some statutes and
cases describe this absence of substituting, tampering, replac-
ing, or altering, as the overall “integrity” of the evidence.30 We
find that to be an apt characterization of the meaning of “integ-
rity” in the context of DNA evidence.
In determining that prong two was not met, the district
court relied exclusively on the fact that the shirts had been
stored in a cardboard box together with Pratt’s clothing and
that they had apparently been touched by jurors, attorneys,
court employees, and other employees who would have reason
to be in contact with the evidence. But this incautious storage
and handling indicate that extraneous DNA may have been
added to the shirts, not necessarily that the integrity of the
original physical composition of the relevant DNA has been
somehow compromised. In fact, all the evidence before the
court indicated that the “integrity” of the biological evidence
was not materially affected by the storage and handling of
the evidence.
Despite any mixtures with extraneous DNA or with the
victims’ DNA, and with knowledge of the past storage and
handling of the shirts, Wraxall averred that a partial or full
profile of the perpetrator’s DNA could still be obtained. The
State presented no expert testimony to the contrary. Despite
testimony that storing clothing in a cardboard box is no longer
29
Cal. Penal Code § 1405(f)(2) (West 2011). Accord, Ark. Code Ann.
§ 16-112-202(4) (2006); D.C. Code § 22-4133(a)(2) (Supp. 2009);
Idaho Code Ann. § 19-4902(c)(2) (2004); 725 Ill. Comp. Stat. Ann.
§ 5/116-3(b)(2) (LexisNexis Cum. Supp. 2009); Me. Rev. Stat. Ann. tit.
15, § 2138(4)(C) (West 2003); Minn. Stat. § 590.01(1a)(1)(b)(2) (2012);
N.J. Stat. Ann. § 2A:84A-32a(d)(2) (West 2011); Tex. Crim. Proc. Code
Ann. § 64.03(a)(1)(A)(i) and (ii) (West 2013). See, also, Del. Code Ann.
tit. 11, § 4504(a)(4) (2007); Fla. Stat. Ann. § 925.11(2)(f)(2) (West Cum.
Supp. 2014); Ind. Code Ann. § 35-38-7-8(2)(B) (LexisNexis Cum. Supp.
2009); Md. Code Ann., Crim. Proc. § 8-201 (LexisNexis Cum. Supp.
2009); Utah Code Ann. § 78B-9-301(2)(a) and (b) (LexisNexis 2012); Va.
Code Ann. § 19.2-327.1(A)(ii) (2008).
30
See, Miss. Code. Ann. § 99-39-9(1)(d) (Supp. 2013); S.C. Code Ann.
§ 17-28-70(E) (Cum. Supp. 2011); People v. Urioste, 316 Ill. App. 3d 307,
736 N.E.2d 706, 249 Ill. Dec. 512 (2000).
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STATE v. PRATT 471
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considered “appropriate,” there is no evidence in the record
from either this motion or the prior proceedings upon Pratt’s
2007 motion to vacate or for new trial, that the perpetrator’s
DNA, if deposited, has since decomposed or otherwise had
its physical composition marred, substituted, tampered with,
replaced, or altered as a result of the inappropriate storage and
handling. Thus, the district court clearly erred in its determina-
tion that the biological material has not been retained under
circumstances likely to safeguard the integrity of its original
physical composition.
If we were to interpret the physical integrity prong as
demanding that the biological evidence was secured in a way
likely to avoid accidental contamination with extraneous DNA
from epithelial cells, then the express purposes of the Act
would be undermined. We have no reason to believe that
storing items of evidence containing biological materials in
a cardboard box or allowing jurors and attorneys to handle
that evidence was anything other than accepted and common-
place before the advent of DNA testing. As the district court
noted in its 2008 order, there was no awareness at the time of
Pratt’s trial that handling the shirts could “contaminate” them
for future scientific testing. Yet, the legislative findings of the
Act specifically state its purpose is to test evidence originally
retained during this period of ignorance of optimal retention
standards for biological materials. The Act states that DNA
testing is “often feasible on relevant biological material that is
decades old.”31 The physical integrity prong of the Act clearly
was not drafted to prevent discovery of relevant exculpatory
DNA evidence simply because the evidence was not stored or
handled in a manner comporting with current scientific knowl-
edge and standards.
Finally, we note that the district court reasoned that it had
“already determined that the materials to be tested were not
maintained under circumstances likely to safeguard the integ-
rity of their original composition, and the Supreme Court
affirmed that finding.” That is not entirely accurate. The district
court utilized the language of § 29-4120(5) (for determinations
31
§ 29-4118(4).
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472 287 NEBRASKA REPORTS
upon which testing must be ordered) when it considered Pratt’s
2007 motion to vacate or for new trial based upon the 2005 test
results. But 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.32 As Pratt points
out, when the prong of physical integrity was squarely before
the district court, i.e., when considering whether to grant Pratt’s
motion for DNA testing in 2005, the district court necessarily
found that the biological evidence had been retained under
circumstances likely to safeguard the integrity of its original
physical composition.
We admittedly parroted the “integrity” language of the
district court’s 2008 order in our opinion affirming the denial
of Pratt’s motion to vacate or for new trial, which was based
on the 2005 test results.33 Our reasoning, however, was that
the evidence was not exculpatory. This was also essentially
the reasoning of the district court in 2008. The presence of
another male’s DNA on the victims’ shirts did not exoner-
ate or exculpate Pratt because the testing conducted in 2005
could not reveal if the DNA was from semen cells or epi-
thelial cells, and the shirts had apparently been handled by
several people. The technologist testified that such handling
could account for the concentration of male DNA found on
the shirts.
Exculpatory Evidence
The retesting Pratt now requests can distinguish between
semen cells and epithelial cells. We have explained that the
determination under prong three, whether the evidence “may”
produce noncumulative, exculpatory evidence, is a “relatively
undemanding” standard and “will generally preclude testing
only where the evidence at issue would have no bearing on
the guilt or culpability of the movant.”34 The Act defines
“exculpatory” as “evidence which is favorable to the person
32
§ 29-4123(2).
33
See State v. Pratt, supra note 4.
34
State v. Buckman, supra note 19, 267 Neb. at 515, 675 N.W.2d at 381. See,
also, e.g., State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003).
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STATE v. PRATT 473
Cite as 287 Neb. 455
in custody and material to the issue of the guilt of the person
in custody.”35 The district court clearly erred in determining
that test results that could identify another male’s semen on
the victims’ clothing would have no bearing on Pratt’s guilt
or culpability.
In State v. White36 and State v. Winslow,37 we similarly held
that the district court abused its discretion when it denied
the inmates’ request for DNA testing of the semen samples
found at the scene of crimes, which included rape. We said
that a possible DNA test result that excluded the defendants
as contributors to the semen samples “may be exculpatory”
when the State’s theory was that only the defendants raped
the victim.38
The district court’s reasoning setting forth the amount of
evidence against Pratt at his original trial and stating that addi-
tional DNA testing would create “only another circumstance
on which Pratt cou[ld] argue reasonable doubt” reflects an
improper inquiry. If DNA testing may produce evidence upon
which Pratt could argue reasonable doubt about whether he
was the rapist, by definition, such evidence may have a bearing
upon his guilt or culpability.
We already know from the 2005 testing that at least one
other male’s DNA is on the victims’ shirts. If, for example,
that male’s DNA is identified as coming from semen, then
that would bear upon Pratt’s guilt or culpability. Whether such
evidence—if found—ultimately should be deemed exonerat-
ing or exculpatory would be determined upon a motion to
vacate or for new trial and after a hearing on such motion.
At that time, the court could explore the likelihood that the
semen sample could have been the result of contamination
during storage. The presence or absence of a full profile, as
Wraxall believes it is now possible to obtain, may be relevant
to that inquiry.
35
§ 29-4119.
36
State v. White, 274 Neb. 419, 740 N.W.2d 801 (2007).
37
State v. Winslow, 274 Neb. 427, 740 N.W.2d 794 (2007).
38
See, id.; State v. White, supra note 36.
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474 287 NEBRASKA REPORTS
The theory of the prosecution at Pratt’s trial was that a
single perpetrator committed the rape and sodomy of the
two victims. The perpetrator ejaculated, and the rape victim
was wearing the torn shirt during the rape. The perpetrator
repeatedly rummaged through the victims’ clothing. Retesting
can distinguish between semen cells and epithelial cells.
Indisputably, the requested retesting “may” lead to exculpa-
tory evidence.
CONCLUSION
Pratt was convicted through eyewitness identification testi-
mony and circumstantial evidence. The Legislature has declared
that “DNA testing responds to serious concerns regarding
wrongful convictions, especially those arising out of mistaken
eyewitness identification testimony.”39 We affirm the judgment
of the Court of Appeals to the effect that the district court
abused its discretion in denying Pratt’s motion to retest the
biological materials on the victims’ shirts. Upon remand, the
State shall file an inventory indicating the continued existence
and location of the biological materials in question.
Affirmed.
Cassel, J., not participating.
39
§ 29-4118(6).
Heavican, C.J., dissenting.
I respectfully dissent. I cannot find that the district court
clearly erred in determining that the materials to be tested were
not maintained under circumstances likely to safeguard the
integrity of their original composition. Thus, I would affirm the
decision of the district court.
BURDEN OF PROOF
The majority concludes that the State has the burden of
proving whether the material requested for testing still exists
and whether it has been maintained in a way likely to safe-
guard its integrity as required by the second prong of Neb. Rev.
Stat. § 29-4120(5) (Reissue 2008).
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STATE v. PRATT 475
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Other jurisdictions have clearly placed the burden of
pleading and proving all elements of a statutory right to
DNA testing, including chain of custody, on the petitioner.1
Alternatively, some states require the inmate to make a prima
facie showing that the chain of custody has been satisfactory
and then shift the burden to the State to prove otherwise.2 I
find these approaches to be more consistent with our previ-
ous cases placing the burden of proof on the party seeking
postconviction relief.3 Even under the majority’s approach,
however, the evidence in this case was sufficient to prove by
a preponderance of the evidence that the materials to be tested
were not maintained under circumstances likely to safeguard
their integrity. The district court made such a finding, and we
previously agreed.4
PHYSICAL INTEGRITY
As the majority opinion notes, “It is undisputed that the
shirts were stored in a cardboard box and probably handled by
various persons during the course of the trial.” Nevertheless,
the majority concludes that the risk of extraneous DNA relates
not to the physical integrity of the material, but, rather, to
whether the requested DNA testing may lead to exculpatory
evidence. This conclusion is inconsistent with State v. Phelps,5
in which we held that it was not clearly erroneous for the
court to determine clothing had not been safeguarded for the
purposes of DNA testing where the clothing had been exposed
to weather and potentially to wildlife prior to being found,
1
See State ex rel. Richey v. Hill, 216 W. Va. 155, 603 S.E.2d 177 (2004).
See, also, Mo. Rev. Stat. § 547.035(6) (West 2002); N.M. Stat. Ann.
§ 31-1A-2(C) (Cum. Supp. 2008); Utah Code Ann. § 78B-9-301(2)(a) and
(b) (LexisNexis 2012).
2
See, e.g., Del. Code Ann. tit. 11, § 4504 (2007); 725 Ill. Comp. Stat. Ann.
§ 5/116-3 (LexisNexis Cum. Supp. 2009); Mont. Code Ann. § 46-21-110
(2007).
3
See State v. Phillips, 186 Neb. 547, 184 N.W.2d 639 (1971).
4
See State v. Pratt, 277 Neb. 887, 766 N.W.2d 111 (2009).
5
State v. Phelps, 273 Neb. 36, 41, 727 N.W.2d 224, 228 (2007).
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476 287 NEBRASKA REPORTS
and had later been “handled by numerous persons during the
investigation and at trial.”
The majority opinion also notes that while statutes in other
jurisdictions do not utilize the “integrity” language, most
require a finding that the evidence was maintained with a
proper “‘chain of custody.’” The majority describes this as
requiring that the evidence has not been “‘substituted, tampered
with, replaced or altered in any material aspect.’” However,
another word found frequently in the description of proper
chain of custody required by statutes of other jurisdictions is
“contaminated.”6 In this case, while the physical integrity of
the materials to be tested has been maintained in the sense that
the shirts have not decomposed or been replaced, the shirts
have been contaminated by frequent handling and storage with
other evidence.
In his second motion for DNA testing, Pratt alleges that
the testing techniques proposed by Brian Wraxall, the foren-
sic serologist, are more effective at determining whether the
source of the DNA is semen or epithelial cells. Under the facts
of this case, I do not believe this changes the physical integrity
analysis. Presumptive testing for the presence of semen has
already been performed on the clothing, and the results were
negative. Even if new testing revealed the presence of a previ-
ously undetected, minute amount of semen, the frequent han-
dling by numerous individuals means we could only speculate
when or how the semen was deposited on the clothing. The
failure to maintain the evidence under circumstances likely to
safeguard its integrity negates any assumption that extraneous
DNA found on the clothing must be from the perpetrator of
the crime.
For the foregoing reasons, I cannot find that the district
court clearly erred, and I would affirm.
6
See, e.g., 18 U.S.C. § 3600(a)(4) (2012); Del. Code Ann. tit. 11,
§ 4504(a)(4); Mont. Code Ann. § 46-21-110(1)(b).