State v. Ildefonso , 304 Neb. 711 ( 2019 )


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    01/24/2020 09:07 AM CST
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. ILDEFONSO
    Cite as 
    304 Neb. 711
    State of Nebraska, appellee, v.
    Arlyn P. Ildefonso, appellant.
    ___ N.W.2d ___
    Filed December 20, 2019.   No. S-19-060.
    1. DNA Testing: Appeal and Error. A motion for DNA testing is addressed
    to the discretion of the trial court, and unless an abuse of discretion is
    shown, the trial court’s determination will not be disturbed.
    2. ____: ____. An appellate court will uphold a trial court’s findings of
    fact related to a motion for DNA testing unless such findings are clearly
    erroneous.
    3. ____: ____. Decisions regarding appointment of counsel under the DNA
    Testing Act are reviewed for an abuse of discretion.
    Appeal from the District Court for Douglas County: W.
    Russell Bowie III, Judge. Affirmed.
    Arlyn P. Ildefonso, pro se.
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    and Papik, JJ.
    Cassel, J.
    INTRODUCTION
    Arlyn P. Ildefonso appeals from the denial of his motions for
    DNA testing and appointment of counsel. Because Ildefonso
    failed to demonstrate that DNA testing may produce noncumu-
    lative, exculpatory evidence, the district court did not abuse its
    discretion by denying his motions. We affirm.
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. ILDEFONSO
    Cite as 
    304 Neb. 711
    BACKGROUND
    Circumstances of Crimes
    On September 13, 1999, Carr Hume’s body was found
    lying partially on a sidewalk and partially on a curb in front
    of a house in the area of 42d and Bancroft Streets in Omaha,
    Nebraska. Blood spatter evidence indicated that he had been
    shot at that location. Hume died from a single gunshot wound
    to the head. No shell casings were found at the scene. Items
    located at the scene included a baseball hat, assumed to belong
    to Hume; a piece of possible human tissue near a curb across
    from Hume’s body; and a syringe in the street.
    Christina Devore-Alexander testified that she was with
    Ildefonso and Kristine Reh late in the evening on September
    12, 1999, and into the early morning hours of September 13.
    They left an apartment around 3 a.m., with Devore-Alexander
    driving and Ildefonso giving directions. According to Devore-
    Alexander, while she was driving, Ildefonso was “very upset”
    and said the only thing that would make him feel better
    was “if he shot somebody.” Near 42d and Bancroft Streets,
    Devore-Alexander stopped the car and Ildefonso got out. As
    Devore-Alexander was talking to Reh, she heard a gunshot
    and looked up. She saw Ildefonso’s extended arm holding a
    gun and Hume lying on his back on the ground. Reh testi-
    fied that once the car stopped on 42d Street, Ildefonso got
    out, Reh heard a gunshot, and then Ildefonso got back in
    the car. As the vehicle drove away, Reh saw a man lying on
    the sidewalk.
    On approximately September 24, 1999, Mark Anderson
    told police that he had been with the individuals respon-
    sible for the shooting. At that time, Anderson was in police
    custody due to his suspected involvement in an automobile
    theft. Based on information from Anderson, police identi-
    fied Randall Fields and Shannon Smith as possible suspects.
    Anderson told officers that Fields shoved Hume, produced a
    handgun, and fired two times, striking Hume with the second
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. ILDEFONSO
    Cite as 
    304 Neb. 711
    shot. Police arrested Fields and Smith and brought them
    into custody.
    As an officer was preparing to interview Fields, the officer
    received a call from Amy Taylor, who said that she knew who
    the shooter was and that the wrong people had been arrested.
    The officer testified that Taylor told him Ildefonso used a
    .357-caliber revolver during the shooting and that he was with
    Devore-Alexander and Reh. The officer asked Taylor to obtain
    some of the bullets for the gun.
    Taylor testified that she called the police after seeing on
    television that the wrong people had been arrested for Hume’s
    murder. Taylor had been staying with Ildefonso in a motel. She
    testified that Ildefonso told her that he shot Hume “[b]ecause
    he was mad and he wanted the world to feel his pain.” She had
    seen Ildefonso with several firearms, including a .357-caliber
    revolver. At the request of the police, Taylor obtained shells
    from the .357-caliber revolver from Ildefonso’s backpack and
    gave them to the motel clerk for the police to retrieve. Taylor
    testified that it was “possible” Fields—whom she last saw 4
    years earlier—was the father of one of her children.
    After speaking with Devore-Alexander, Reh, and Taylor,
    officers reinterviewed Anderson. Anderson said that he used
    news accounts of the murder to concoct the story against Fields
    and Smith for revenge. An officer testified that in retrospect,
    parts of Anderson’s original stories to the police were not con-
    sistent with what the officers learned. After Anderson recanted,
    he was charged with a crime for delaying the actual suspect
    from being apprehended.
    On October 1, 1999, police took steps to obtain a warrant to
    search Ildefonso, a vehicle, and a motel room. While surveil-
    ling the motel, an officer saw Ildefonso and Taylor leave the
    motel in a vehicle. Officers subsequently stopped the vehicle.
    Taylor testified that when pulled over by the police, Ildefonso
    removed the .357-caliber revolver from his waistband and put
    it under the front passenger’s seat of the vehicle. Police col-
    lected the revolver as evidence.
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. ILDEFONSO
    Cite as 
    304 Neb. 711
    During an autopsy of Hume, a doctor recovered a bullet and
    bullet fragments from the right side of the base of the skull.
    An expert testified that the bullet taken from Hume’s head
    was fired from the .357-caliber revolver recovered from under
    the front passenger’s seat of the vehicle in which Ildefonso
    was seated.
    A jury convicted Ildefonso of murder in the first degree and
    use of a deadly weapon to commit a felony. We affirmed his
    convictions on direct appeal.1
    Motion for DNA Testing
    In 2018, Ildefonso filed a motion for DNA testing. He
    identified 12 items/groups of items, including clothing col-
    lected from Hume, the hat, the possible piece of human
    tissue, the syringe, blood swabs, forensic evidence from a
    Mitsubishi automobile, personal clothing from other indi-
    viduals (Anderson, Fields, and Smith), bullets or shell cas-
    ings, firearms, other live or spent ammunition collected from
    Ildefonso, and Ildefonso’s backpack. Ildefonso then set forth
    claims of actual innocence, wrongful conviction, and viola-
    tions of his constitutional rights. He theorizes that Taylor set
    him up to “free her child[’]s father,” and his motion points
    to alleged inconsistencies in the testimonies of various trial
    witnesses. As relevant to DNA testing, Ildefonso lists a series
    of questions:
    Was the hat found near . . . Hume ever tested for DNA?
    Does the hat belong to Fields, Smith, Anderson or some
    other perp[e]trator who was with Anderson that night?
    Was the syringe and “tissue like substance” tested for
    DNA? Who do they belong to? Anderson said that Fields
    shoved . . . Hume prior to shooting him. Were . . .
    Hume’s clothes tested for DNA to see if there is anyone
    else’s DNA on them? Was the stolen Mitsubishi car that
    Anderson said was used during this crime, ever processed
    1
    See State v. Ildefonso, 
    262 Neb. 672
    , 
    634 N.W.2d 252
    (2001).
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. ILDEFONSO
    Cite as 
    304 Neb. 711
    for forensic evidence? Was . . . Hume’s, Field’s, Smith’s,
    Anderson’s, or anyone else’s DNA located in there?
    Fingerprints, hair, blood, or anything? Was any search
    warrants done on Fields, Smith, or Anderson to look for
    the clothing that Anderson said that they were wearing
    that night? Was it found? Was . . . Hume[’]s DNA or
    blood on any of them?
    In the motion, Ildefonso requested that counsel be appointed
    to represent him. He subsequently filed a separate motion for
    appointment of counsel.
    After the State filed an index of property, the court entered
    an order concerning Ildefonso’s motion. The court recognized
    that most of the motion and affidavit reasserted claims raised
    in Ildefonso’s motion for postconviction relief and were irrel-
    evant to issues of DNA testing. Because Ildefonso did not
    indicate why testing of the various items may present exculpa-
    tory evidence, the court allowed him time to file a supplemen-
    tal affidavit.
    Ildefonso then filed a supplemental affidavit. He alleged
    that Anderson was an eyewitness to and participant in Hume’s
    death and that Anderson said a man shoved Hume before
    shooting him. Thus, Ildefonso claimed that there might have
    been a DNA transfer from the killer’s hands onto Hume’s
    clothes. And because the hat located near Hume’s body was
    not found conclusively to be Hume’s hat, Ildefonso posited
    that the hat may belong to a person involved in the crime.
    He believed DNA evidence left by the actual killer would be
    located on the items.
    District Court’s Decision
    The district court determined that Ildefonso failed to show
    such testing may produce noncumulative, exculpatory evidence
    relevant to the claim that he was wrongfully convicted. The
    court noted that Ildefonso’s supplemental affidavit relied on
    Anderson’s statements, even though Anderson admitted fab-
    ricating his story. The court stated that Ildefonso “does not
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. ILDEFONSO
    Cite as 
    304 Neb. 711
    indicate with any particularity, or truthful corroborating evi-
    dence, why testing of those items may present any exculpatory
    evidence relative to the claim that the defendant was wrong-
    fully convicted—only hopeful conclusions.” The court denied
    Ildefonso’s motion for appointment of counsel and motion for
    DNA testing.
    Ildefonso filed a timely appeal.
    ASSIGNMENT OF ERROR
    Ildefonso assigns that the district court erred when it failed
    to follow the DNA Testing Act2 and order DNA testing on spe-
    cific items and, thereafter, to follow the act’s protocol, includ-
    ing the appointment of counsel, the conducting of a full fact-
    finding hearing, and the making of a judicial decision based on
    all information germane to the case.
    STANDARD OF REVIEW
    [1,2] A motion for DNA testing is addressed to the discretion
    of the trial court, and unless an abuse of discretion is shown,
    the trial court’s determination will not be disturbed.3 An appel-
    late court will uphold a trial court’s findings of fact related
    to a motion for DNA testing unless such findings are clearly
    erroneous.4
    [3] Decisions regarding appointment of counsel under the
    DNA Testing Act are reviewed for an abuse of discretion.5
    ANALYSIS
    DNA Testing Act
    Pursuant to the act, a person in custody takes the first
    step toward obtaining possible relief by filing a motion in
    the court that entered the judgment requesting forensic DNA
    2
    Neb. Rev. Stat. §§ 29-4116 to 29-4125 (Reissue 2016).
    3
    State v. Myers, 
    301 Neb. 756
    , 
    919 N.W.2d 893
    (2018).
    4
    
    Id. 5 Id.
                                       - 717 -
    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. ILDEFONSO
    Cite as 
    304 Neb. 711
    testing of biological material.6 The court has discretion to
    either consider the motion on affidavits or hold a hearing.7
    Under § 29-4120(5), the court shall order DNA testing upon a
    determination that
    (a)(i) the biological material was not previously sub-
    jected to DNA testing or (ii) the biological material was
    tested previously, but current technology could provide
    a reasonable likelihood of more accurate and probative
    results, (b) the biological material has been retained under
    circumstances likely to safeguard the integrity of its
    original physical composition, and (c) such testing may
    produce noncumulative, exculpatory evidence relevant
    to the claim that the person was wrongfully convicted
    or sentenced.
    Under the act, “exculpatory evidence means evidence which is
    favorable to the person in custody and material to the issue of
    the guilt of the person in custody.”8
    Denial of Motion
    for DNA Testing
    Part of the defendant’s burden of proof is to provide the
    court with affidavits or evidence at a hearing establishing the
    three required factual determinations under § 29-4120(5).9 We
    have recognized that the showing needed to satisfy the require-
    ment that DNA testing may produce noncumulative, exculpa-
    tory evidence is “relatively undemanding . . . and will gener-
    ally preclude testing only where the evidence at issue would
    have no bearing on the guilt or culpability of the movant.”10
    Although the threshold to obtain DNA testing is rather low, we
    6
    State v. Betancourt-Garcia, 
    299 Neb. 775
    , 
    910 N.W.2d 164
    (2018).
    7
    
    Id. 8 §
    29-4119.
    9
    See State v. Young, 
    287 Neb. 749
    , 
    844 N.W.2d 304
    (2014).
    10
    State v. Buckman, 
    267 Neb. 505
    , 515, 
    675 N.W.2d 372
    , 381 (2004).
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. ILDEFONSO
    Cite as 
    304 Neb. 711
    agree with the district court that Ildefonso did not meet this
    minimal threshold.
    A court is not required to order DNA testing if such testing
    would not produce exculpatory evidence. In State v. Dean,11 we
    reasoned that “even if [the prisoner] is correct and DNA test-
    ing would not detect the presence of his DNA on the objects in
    question, the result would be at best inconclusive, and certainly
    not exculpatory.” The same is true here. Ildefonso asserts that
    his DNA will not appear on any of the items. But the absence
    of his DNA on some of the items would be consistent with the
    evidence and would not be exculpatory, particularly in light
    of the testimonies of Devore-Alexander, Reh, and Taylor and
    Ildefonso’s possession of the murder weapon at the time of
    his apprehension.
    Ildefonso essentially seeks DNA testing to corroborate
    Anderson’s original story. Ildefonso maintains that he was
    framed for the murder, and he argues that testing showing
    the DNA of Anderson, Fields, or Smith would raise serious
    doubts regarding the credibility of Devore-Alexander, Reh,
    and Taylor. One problem for Ildefonso is that the State’s index
    of property does not show that the State has actual or con-
    structive possession of a DNA sample of Anderson, Fields,
    or Smith with which to compare any testing results. Another
    problem is that Anderson recanted his story—parts of which
    police determined were not credible or were not consistent
    with the evidence—and was charged with a crime for his false
    report. An admittedly fabricated story does not provide a basis
    for DNA testing.
    We find no error in the district court’s factual findings
    that the evidence Ildefonso desired to have tested would
    not produce exculpatory evidence. Thus, we find no abuse
    of discretion by the court in denying Ildefonso’s motion for
    DNA testing.
    11
    State v. Dean, 
    270 Neb. 972
    , 976, 
    708 N.W.2d 640
    , 644 (2006).
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. ILDEFONSO
    Cite as 
    304 Neb. 711
    Appointment of Counsel
    A court shall appoint counsel for an indigent person upon
    a showing that DNA testing may be relevant to the person’s
    claim of wrongful conviction.12 Here, Ildefonso did not make
    the requisite showing that DNA testing may be relevant to his
    claim of wrongful conviction. Accordingly, the court did not
    abuse its discretion in refusing Ildefonso’s request for appoint-
    ment of counsel.
    CONCLUSION
    Because Ildefonso did not meet his burden of showing that
    DNA testing may produce noncumulative, exculpatory evi-
    dence relevant to his claim that he was wrongfully convicted,
    we conclude that the district court did not abuse its discretion
    in denying Ildefonso’s motions for DNA testing and appoint-
    ment of counsel.
    Affirmed.
    Freudenberg, J., not participating.
    12
    § 29-4122.