State v. Jacob , 309 Neb. 401 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/20/2021 12:11 AM CDT
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. JACOB
Cite as 309 Neb. 401State of Nebraska, appellee, v.
Steven Jacob, appellant.
___ N.W.2d ___
Filed June 4, 2021. No. S-20-584.
1. DNA Testing: Appeal and Error. A motion for DNA testing is addressed
to the discretion of the trial court, and unless an abuse of discretion is
shown, the trial court’s determination will not be disturbed.
2. ____: ____. An appellate court will uphold a trial court’s findings of
fact related to a motion for DNA testing unless such findings are clearly
erroneous.
3. ____: ____. Decisions regarding appointment of counsel under the DNA
Testing Act are reviewed for an abuse of discretion.
4. Judgments: Appeal and Error. An appellate court reviews a denial of
a motion to alter or amend the judgment for an abuse of discretion.
5. DNA Testing. Nebraska’s DNA Testing Act is a limited remedy provid-
ing inmates an opportunity to obtain DNA testing in order to establish
innocence after a conviction.
6. ____. If the criteria set forth in Neb. Rev. Stat. § 29-4120(1) (Reissue
2016) are met and if the court further determines that the requirements
of § 29-4120(5) have been met, then the court must order testing.
7. DNA Testing: Evidence. The requirement that the requested DNA
testing produce noncumulative exculpatory evidence is relatively unde-
manding for a movant seeking DNA testing and will generally preclude
testing only where the evidence at issue would have no bearing on the
guilt or culpability of the movant.
8. DNA Testing. The nonpresence of an individual’s DNA profile in a
biological sample does not preclude that individual from having been
present or in possession of the item tested.
9. ____. The nonpresence of an individual’s DNA profile in a biological
sample merely shows the individual’s DNA was not present in the spe-
cific biological sample tested.
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STATE v. JACOB
Cite as 309 Neb. 40110. DNA Testing: Evidence. DNA evidence is not a videotape of a crime,
and testing only shows whether the biological sample in question
belonged to the person tested against.
Appeal from the District Court for Lancaster County: Darla
S. Ideus, Judge. Affirmed.
Steven Jacob, pro se.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Miller-Lerman, Cassel, Funke, and Papik, JJ.
Funke, J.
Steven Jacob appeals the district court’s denial of his motion
for testing under Nebraska’s DNA Testing Act 1 and his motion
for the appointment of counsel. Jacob argues the district court
erred in denying his motion by determining the requested test-
ing would not exonerate Jacob nor would it prove that he was
not the shooter. We affirm.
BACKGROUND
Jacob was convicted of murder in both the first and sec-
ond degrees and of using a firearm to commit those crimes in
connection with the 1989 shooting deaths of Melody Hopper
and James Etherton. 2 In 1988, Jacob was dating Hopper.
However, after the relationship deteriorated, Hopper began dat-
ing Etherton and moved into Etherton’s house. On August 1,
1989, Hopper advised her work supervisor that before leaving
her house that morning, Hopper heard the door handle rattle
and the doorbell ring. When Hopper opened the door, Jacob
entered the house uninvited and stated that he wanted to talk
about getting back together. When Hopper told Jacob that she
1
Neb. Rev. Stat. § 29-4116 et seq. (Reissue 2016).
2
See State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998), abrogated on
other grounds, State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).
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STATE v. JACOB
Cite as 309 Neb. 401was not interested, Jacob told her that he at least wanted to
talk and that if she would not do that, he might do something
drastic. Hopper had to physically shove Jacob out of the house
to get him to leave.
John Ingram was a coworker of Etherton and rented a
basement bedroom from him. On August 2, 1989, at approxi-
mately 3:45 a.m., Ingram woke up to use the bathroom. As
he walked out of his bedroom, he saw glass on the floor by
the back door and heard the floor above him creak. He real-
ized someone was in the house, so he retrieved his .22-caliber
pistol. When he returned to the basement stairway, he heard
three gunshots, a woman scream twice, then three or four
more gunshots. After the last gunshot, Ingram heard a shell
casing roll around upstairs and a thump on the floor above
him. Fearing someone had been shot, Ingram ran out the back
door and down the block. He went to a house he believed
was owned by a fire marshal. When the door was answered,
Ingram stated that someone had been shot and “they had emp-
tied a clip on them.”
At approximately 4 a.m., two officers arrived at Etherton’s
house. They discovered that the back, basement screen door
had been propped open with a rock and that the glass on the
inner door was broken. One of the officers also observed a
storm window on the ground that had been removed, which
was later found to contain Jacob’s fingerprints. In a hallway
near the upstairs bedroom, the officers found Etherton’s body
with three gunshot wounds in it. The officers then heard a faint
cry from the bedroom, where they found Hopper suffering
from two gunshot wounds. Hopper died several days later.
Upon further investigation, the officers found six shell cas-
ings and one live round in the house. All casings were from
fired 9-mm bullets and fired from the same weapon. The live
round was also a 9-mm cartridge. Jacob’s father testified that
Jacob owned a 9-mm pistol. Additionally, Jacob testified that
he had owned a 9-mm Llama pistol. However, the pistol was
never recovered. A four-page letter written by Jacob to Etherton
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309 Nebraska Reports
STATE v. JACOB
Cite as 309 Neb. 401was also found in the bedroom. Jacob testified that the letter,
dated July 9, 1989, was written to explain a comment he made
about Etherton’s being responsible for Hopper. Jacob ended the
letter by stating that he hoped Etherton would “be happy and
more successful [with Hopper] than [he had] been.”
At trial, Ingram testified that while waiting for police, he
saw a light-colored car drive by. He described the driver as
having a receding hairline, glasses, a mustache, and dark hair.
When he saw a picture of Jacob on the news the next day, he
recognized Jacob as the driver of the car and identified him to
the police the following day.
Jacob claimed that he left for a vacation on August 1, 1989,
and drove to Minnesota, South Dakota, North Dakota, and then
to Canada. Evidence showed that on August 9, Jacob bought a
plane ticket from Canada to England. However, due to various
unforeseen events, Jacob ended up in Maine and bought a plane
ticket to Boston. Jacob was arrested on August 10 in Maine,
when he attempted to sell his van at a used-car dealership.
Jake Faulkerson, who shared a cellblock with Jacob for a
brief time in September 1989, testified that Jacob told him that
he “was not going to end up doing a minute on his time . . .
because he didn’t leave any witnesses.” Jacob also allegedly
told Faulkerson, “I shot him first so the bitch could see what
she had coming.”
Jacob was convicted for the double homicide. However, on
appeal, this court determined that the district court erroneously
admitted into evidence statements Hopper made in the hos-
pital declaring Jacob to be her assailant, and it reversed, and
remanded for a new trial. 3 Upon retrial, Jacob was convicted
for the double homicide and sentenced to two terms of life
imprisonment and two terms of not less than 6 years 8 months
nor more than 20 years’ imprisonment, all to be served con-
secutively. On appeal, Jacob’s convictions and sentences were
affirmed by this court.
3
See State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993).
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STATE v. JACOB
Cite as 309 Neb. 401Motion for DNA Testing
In 2019, Jacob filed a motion for DNA testing on two types
of evidence found at the crime scene: (1) the six shell casings
and one unfired cartridge and (2) potential biological evidence
recovered from the living room. In 1989, four “slugs” were
sent for DNA testing. There was no blood detected on the slug
found in the hallway next to Etherton’s body. Additionally,
although there was blood present on three other slugs found on
the bed, under the bed, and behind the headboard, there were
insufficient amounts of blood on each slug for DNA testing.
Jacob argued that with current methods of retrieving DNA
from shell casings, the DNA on the slugs could “identify who
took and loaded the firearm from [his] office” and is exculpa-
tory because it “shows the Llama 9mm handgun used in the
shooting was NOT in [his possession] at the time of and pre-
ceeding [sic] the shooting.”
According to Jacob, it was Hopper alone, or Hopper and
Etherton together, who took Jacob’s gun and car that night.
Jacob argues that although his gun could hold up to eight car-
tridges, he only kept four cartridges in the clip while it was
“being stored for a long time.” Therefore, Jacob contended,
because the police found six spent cartridges and one unfired
cartridge at the crime scene, whoever took the handgun would
have had to load more cartridges into it. Thus, according to
Jacob, that person’s DNA could be present on the slugs found
by the police.
A gauze sample from a “‘spot in [the] living room’” was
also sent for DNA testing in 1989. However, no blood was
found on the gauze. Referencing the testimony of Etherton’s
son, the testimony of Ingram, and the “‘Nurse’s Notes’” from
Hopper’s stay in the hospital, Jacob developed a theory that the
stain found on the living room carpet was present prior to the
shooting. Jacob claimed Hopper and Etherton were having sex-
ual intercourse while Hopper was menstruating, which would
explain why Hopper’s and Etherton’s DNA would be on the
floor. Jacob also argued Etherton was a “violently jealous man”
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STATE v. JACOB
Cite as 309 Neb. 401who forced himself upon Hopper, giving Hopper a motive to
shoot Etherton.
The district court entered an order requiring the State to take
such steps as necessary to ensure the items were secure and to
prepare an inventory confirming the items were in the State’s
possession. The State subsequently filed the inventory of evi-
dence confirming the items Jacob wished to have tested were
in the State’s possession.
On October 17, 2019, Jacob filed a motion to be appointed
counsel and to proceed in forma pauperis. The court deferred
ruling on the motion for counsel, deciding that the motion was
premature. Then, on October 24, the State filed a motion to
deny DNA testing. In its motion, the State alleged that Jacob
failed to meet his burden under § 29-4120(5)(c), because the
requested DNA testing would only produce cumulative evi-
dence that is irrelevant to the claim that Jacob was wrongfully
convicted or sentenced. This was followed by an objection
filed by Jacob on November 4. In his objection, Jacob clari-
fied his theory regarding what happened by asserting that after
Hopper shot Etherton, Ingram took the gun from Hopper, shot
Hopper, and then removed the gun from the house. Jacob
further asserted it was Ingram who threw a rock through the
window to make it look like a home invasion. On November
7, a hearing was held on the State’s motion to deny DNA test-
ing. At the hearing, counsel for the State referenced the bill of
exceptions from Jacob’s second murder trial:
Judge, I did have the original Bill of Exceptions from the
second trial brought in. I just reference those and those
are not part of the record, I realize that. But in particular,
I also had brought in the portion of the Bill of Exceptions
from the first trial dealing with the exhibits that . . . Jacob
wanted to have DNA tests run on; in particular, that would
be the shell casings and the cartridge that was found. And
the reason I brought that volume in, judge, and if I may,
that is Volume VIII of the original trial of the first trial
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STATE v. JACOB
Cite as 309 Neb. 401involving . . . Jacob in this double homicide. And in that
trial, they offered those items for the jury.
On March 11, 2020, the district court entered an order deny-
ing Jacob’s motion for DNA testing and granting the State’s
motion to deny DNA testing. The court defined exculpatory
evidence as “evidence favorable to the person in custody
and material to the issue of the person’s guilt” and cited our
decision in State v. Buckman, 4 where we explained that “this
requirement is relatively undemanding . . . and will generally
preclude testing only where the evidence at issue would have
no bearing on the guilt or culpability of the movant.” The court
further explained that despite this low threshold, DNA testing
is not required if such testing would not produce exculpa-
tory evidence.
The district court compared the facts of Jacob’s case to
similar fact patterns in State v. Myers, 5 State v. Dean, 6 and
State v. Lotter, 7 and held that like those cases, the absence of
Jacob’s DNA from the shell casings or live round would be, at
best, inconclusive and not exculpatory. The court determined
that such DNA testing would not prove that Jacob was not in
possession of the gun at the time of the shooting. The court
found that the presence of DNA from Hopper, Etherton, or
Ingram would not be exculpatory, because all three individ­
uals lived at the home where the crime was committed. The
court concluded that even if it were to assume that Jacob’s
DNA was absent from the items Jacob requested to be tested,
or that the DNA of Hopper, Etherton, or Ingram were present
on those items, it would be mere speculation to conclude that
this would exonerate Jacob from being the person who fired
the shots. The district court ultimately denied Jacob’s motion
4
State v. Buckman, 267 Neb. 505, 515, 675 N.W.2d 372, 381 (2004).
5
State v. Myers, 304 Neb. 789, 937 N.W.2d 181 (2020).
6
State v. Dean, 270 Neb. 972, 708 N.W.2d 640 (2006).
7
State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003).
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STATE v. JACOB
Cite as 309 Neb. 401for DNA testing and granted the State’s motion to deny DNA
testing. As a result, the court also denied Jacob’s motion to
proceed in forma pauperis and his motion for appointment
of counsel.
Motion to Alter
or Amend
On March 18, 2020, Jacob filed a motion to alter or amend
the court’s March 11 order. Jacob argued that the court (1)
misrepresented the claims contained in his motion for DNA
testing and (2) applied an improper standard of law. Jacob
reiterated his theories about the night of the murders. In
regard to DNA testing on the slugs, Jacob reasserted his argu-
ment that because he only kept four cartridges loaded in the
gun, and because the police found six shell casings and one
unfired cartridge, the person who fired the gun would have
had to insert more cartridges, meaning that the DNA of the
shooter could be on the slugs found at the crime scene. In
regard to DNA testing on the gauze, Jacob stated that the court
ignored the fact that the stain could also contain “the DNA of
gut bacteria (like E. Coli) found in human feces.” Jacob con-
tended such DNA testing could be evidence of nonconsensual
sexual intercourse, providing Hopper with a motive to shoot
Etherton.
Jacob further argued that the proper legal standard is “the
Court must GRANT DNA testing that MAY produce noncumu-
lative exculpatory evidence relevant to the claim that [Jacob]
was wrongfully convicted” and argued that the court erred by
turning the standard into “the Court must DENY DNA testing
that MAY NOT produce noncumulative exculpatory evidence
relevant to the claim of wrongful conviction.”
Before the court could rule on his motion to alter or amend,
Jacob filed a notice of appeal, intending to appeal the March
11, 2020, order and the court’s ruling on his pending motion to
alter or amend. We dismissed the appeal pursuant to Neb. Ct.
R. App. P. § 2-107(B)(1) (rev. 2017). On July 31, Jacob filed
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STATE v. JACOB
Cite as 309 Neb. 401a “Request for Hearing or Ruling” seeking a hearing or ruling
on his motion to alter or amend the court’s March 11 judg-
ment. On August 3, the district court entered an order deeming
Jacob’s motion to alter or amend as abandoned for failure to
file a notice of hearing and certificate of service and, for pur-
poses of appeal, denied the motion.
Appeal
On August 13, 2020, Jacob filed another notice of appeal,
intending to appeal the March 11 order denying his motion for
DNA testing and the August 3 order finding his motion to alter
or amend abandoned and therefore denied. On the same day,
Jacob filed a praecipe for a bill of exceptions. The praecipe
stated the following:
Please prepare a Bill of Exceptions for the second
appeal of this matter to include (some of which you have
previously prepared for the first appeal):
1. The hearing held on November 7, 2019; please
include all of the exhibits offered into evidence at that
hearing (including the entire record of the two trials in
this case; see, p.3., lines 9-18 from the first appeal’s Bill
of Exceptions);
2. The hearing held on December 6, 2019; please
include all of the exhibits offered into evidence at that
hearing.
Please note that other than the request for the reference
to the “entire record” in ¶1, above, as meaning the Bill
of Exceptions the County Attorney refered [sic] to, this
request is the same as you have previously prepared for
the appeal of this matter.
On December 1, 2020, Jacob filed a “Motion for Order for
Bill of Exceptions,” asking this court to order the district court
and the court reporter to provide this court with the bill of
exceptions to include a complete record of Jacob’s second trial.
We overruled this motion on December 9, as the bill of excep-
tions was filed on December 8.
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STATE v. JACOB
Cite as 309 Neb. 401On March 25, 2021, Jacob filed another motion for the bill
of exceptions requesting the correct record. Jacob stated that
the copy of the bill of exceptions he received listed exhibits
735 to 753, even though the docket sheet showed the current
bill of exceptions contained exhibits 735 to 752. Jacob argued
the bill of exceptions was altered and requested a copy of the
“new or altered Bill of Exceptions.” Though the cover page of
the bill of exceptions lists exhibits 735 to 752, the actual con-
tent of the bill of exceptions includes exhibits 735 to 753. We
overruled this motion on April 13.
ASSIGNMENTS OF ERROR
Jacob assigns, reordered and restated, that the district court
(1) abused its discretion by denying his motion for DNA test-
ing, (2) abused its discretion by refusing to appoint him coun-
sel, (3) abused its discretion by denying his motion to alter or
amend, and (4) failed to produce the correct bill of exceptions
he requested for his appeal.
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. 8 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. 9
[3] Decisions regarding appointment of counsel under the
DNA Testing Act are reviewed for an abuse of discretion. 10
[4] An appellate court reviews a denial of a motion to alter
or amend the judgment for an abuse of discretion. 11
8
Myers, supra note 5.
9
Id.
10Id.
11State v. Amaya, 298 Neb. 70, 902 N.W.2d 675 (2017).
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Cite as 309 Neb. 401ANALYSIS
Denial of Jacob’s Motion
for DNA Testing
[5,6] Nebraska’s DNA Testing Act is a limited remedy pro-
viding inmates an opportunity to obtain DNA testing in order
to establish innocence after a conviction. 12 Pursuant to the act,
a person in custody takes the first step toward obtaining pos-
sible relief by filing a motion in the court that entered the judg-
ment requesting forensic DNA testing of biological material. 13
Section 29-4120(1) provides the parameters for such motion
and states:
Notwithstanding any other provision of law, a person
in custody pursuant to the judgment of a court may, at
any time after conviction, file a motion, with or without
supporting affidavits, in the court that entered the judg-
ment requesting forensic DNA testing of any biological
material that:
(a) Is related to the investigation or prosecution that
resulted in such judgment;
(b) Is in the actual or constructive possession or con-
trol of the state or is in the possession or control of others
under circumstances likely to safeguard the integrity of
the biological material’s original physical composition;
and
(c) Was not previously subjected to DNA testing or
can be subjected to retesting with more current DNA
techniques that provide a reasonable likelihood of more
accurate and probative results.
We pause at this point to observe there is no dispute that
Jacob met these required criteria for filing a § 29-4120(1)
motion. If the above criteria are met and if the court further
determines that the requirements of § 29-4120(5) have been
12
Myers, supra note 5; State v. Betancourt-Garcia, 299 Neb. 775, 910
N.W.2d 164 (2018). See § 29-4117.
13
Id.
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Cite as 309 Neb. 401met, then the court must order testing. 14 Section 29-4120(5)
provides:
Upon consideration of affidavits or after a hearing, the
court shall order DNA testing pursuant to a motion filed
under subsection (1) of this section upon a determina-
tion that (a)(i) the biological material was not previously
subjected to DNA testing or (ii) the biological material
was tested previously, but current technology could pro-
vide a reasonable likelihood of more accurate and proba-
tive results, (b) the biological material has been retained
under circumstances likely to safeguard the integrity of its
original physical composition, and (c) such testing may
produce noncumulative, exculpatory evidence relevant
to the claim that the person was wrongfully convicted
or sentenced.
In the instant case, there is also no dispute that Jacob met the
first two criteria for DNA testing under § 29-4120(5). However,
the State argued, and the district court agreed, the third require-
ment, that such DNA testing “may produce noncumulative,
exculpatory evidence relevant to the claim that the person was
wrongfully convicted or sentenced,” had not been met.
[7] The Nebraska Legislature has defined the term “exculpa-
tory evidence” as evidence which is favorable to the person in
custody and material to the issue of the guilt of the person in
custody. 15 This court has explained that “[t]his requirement is
relatively undemanding . . . and will generally preclude testing
only where the evidence at issue would have no bearing on the
guilt or culpability of the movant.” 16 In other words, despite
this low threshold, a court is not required to order postconvic-
tion DNA testing if such testing would not produce exculpa-
tory evidence. 17
14
Myers, supra note 5.
15
§ 29-4119.
16
Myers, supra note 5, 304 Neb. at 797, 937 N.W.2d at 187. Accord
Buckman, supra note 4.
17
See State v. Ildefonso, 304 Neb. 711, 936 N.W.2d 348 (2019).
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Cite as 309 Neb. 401Jacob claims the requested testing on the slugs would show
other individuals’ DNA on the slugs, which would prove that
he was not the shooter. Jacob also claims the requested testing
on the gauze would show the presence of someone else’s DNA,
ultimately giving Hopper a motive to perpetrate a murder-
suicide. We agree with the district court’s conclusion that even
if we were to assume that Jacob’s DNA was absent from the
items, or that the DNA of Hopper, Etherton, or Ingram were
present on those items, such results would not exonerate Jacob
from being the person who fired the shots.
[8,9] In Myers, we addressed the denial of a request for
DNA testing by a defendant convicted of murder. 18 In that
case, the defendant requested DNA testing on several items
of evidence, including bullet casings, taken from the crime
scene and argued that if testing showed the presence of other
male DNA, but failed to show the presence of his DNA, he
would be proved innocent. We noted that even if the defend­
ant’s DNA was not on the tested items, such a result would
not prove that the defendant was not at the crime scene, nor
would it prove that he did not commit the crimes. 19 Thus, the
nonpresence of an individual’s DNA profile in a biological
sample does not preclude that individual from having been
present or in possession of the item tested. 20 Instead, such
results would merely show the individual’s DNA was not pres-
ent in the specific biological sample tested. 21 In affirming the
district court’s denial, we explained that it would be specula-
tion to prove the defendant did not commit the crime merely
because the DNA testing would show the defendant’s DNA
was not present on the items in the victim’s apartment, or on
the gun and ammunition used in the crime. 22 We concluded
18
Myers, supra note 5.
19
See id.
20
Id.
21
Id.
22
See id.
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Cite as 309 Neb. 401this was so, particularly in view of the persuasive evidence of
the defendant’s presence at the apartment and possession of
the gun the night of the murder. 23
Likewise, in Dean, the defendant argued that the testing of
a firearm and ammunition used in the commission of a murder
would not produce any biological material associated with
him. 24 The defendant then extrapolated that someone else’s
DNA on the items would prove he was not the shooter. 25 We
held that “even if [the defendant] is correct and DNA testing
would not detect the presence of his DNA on the objects in
question, the result would be at best inconclusive, and certainly
not exculpatory.” 26 We concluded that in light of the other evi-
dence offered at trial, the district court’s denial of DNA testing
was not an abuse of discretion. 27
[10] Additionally, in Lotter, we affirmed the denial of the
defendant’s request for DNA testing following his murder con-
victions. 28 In Lotter, the defendant claimed that blood spatter
from the victims on an accomplice’s gloves, shoes, or clothing
would establish that the accomplice was very close to the vic-
tims when they were shot and that the accomplice was not at
the locations he described in his trial testimony. The defendant
contended that such DNA test results would aid in establish-
ing that the accomplice lied at trial and would prove that the
accomplice shot all three victims. 29 We concluded that the
accomplice’s testimony would not have been contradicted even
if the defendant’s claims that testing would show the victims’
blood on the accomplice’s clothes were correct. 30 In Lotter, we
23
Id.
24Dean, supra note 6.
25
See id.
26Id. at 976, 708 N.W.2d at 644.
27
See Dean, supra note 6.
28
Lotter, supra note 7.
29
See id.
30See id.- 415 -
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Cite as 309 Neb. 401explained that DNA evidence is not a videotape of a crime and
that testing only shows whether the blood in question belonged
to the person tested against. Because other evidence received
was consistent with the alleged presence of the victims’ blood
on the accomplice’s clothes and because testing would have
only established whether the blood belonged to one or more of
the victims, not how it was deposited on each item, we found
it would be mere speculation to conclude that blood was on the
accomplice’s clothing because he was the shooter. 31 We held
in Lotter that such testing could not establish noncumulative,
exculpatory evidence relevant to the defendant’s claim that he
was wrongfully convicted or sentenced.
Similar to the situations in Myers and Dean, the other evi-
dence received during Jacob’s trial contradicts his underlying
theory that he was not at the house and did not possess the gun
used in the murders of Hopper and Etherton. 32 Hopper’s work
supervisor testified that the day before the murders, Hopper
told him that Jacob wanted to talk to her and that if she would
not do that, he might do something drastic. When officers
arrived at the crime scene, they discovered that the basement
screen door had been propped open with a rock and that the
glass on the inner door was broken out. They also observed
that someone had removed a storm window from a window
next to the basement door, which window was later found to
contain Jacob’s fingerprints. Additionally, a firearms examiner
testified that all the casings found at the crime scene were
from 9-mm bullets fired from the same weapon. Both Jacob
and Jacob’s father testified that Jacob owned a 9-mm pistol.
Ingram testified that on the night of the murders, while he
waited for police to arrive, he saw a car slowly drive by and
described the driver as having a receding hairline, glasses, a
mustache, and dark hair. He testified that he later recognized
the driver as Jacob after seeing Jacob’s picture on the news the
31
See id.
32See, Myers, supra note 5; Dean, supra note 6.
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Cite as 309 Neb. 401next day. At trial, Ingram identified Jacob as the driver of the
vehicle. Faulkerson testified that while sharing a cellblock with
Jacob, Jacob stated that he “was not going to end up doing a
minute on his time . . . because he didn’t leave any witnesses.”
Faulkerson also testified that Jacob told him, “I shot him first
so the bitch could see what she had coming.” This other evi-
dence of Jacob’s guilt is overwhelming.
Jacob’s argument that testing will produce results which
contradict the evidence presented at trial and show he was not
present at Etherton’s house is not persuasive. As we have said,
DNA evidence is not a videotape of a crime, and the nonpres-
ence of an individual’s DNA profile in a biological sample
does not preclude that individual from having been present or
in possession of the item tested. Instead, such results would
merely show that Jacob’s DNA was not present in the specific
biological sample tested. 33 It would be mere speculation to
conclude that the presence of Etherton’s, Hopper’s, or Ingram’s
DNA on the slugs or the stain found in the living room would
exclude Jacob from having been at Etherton’s house the night
of the shooting or from having been the shooter.
Because the requested testing would fail to lead to noncu-
mulative exculpatory evidence as determined above, the dis-
trict court did not err in finding his request for DNA testing did
not meet the requirements of § 29-4120(5)(c) and in denying
Jacob’s motion. This assignment of error is without merit.
Declining to Appoint Counsel
Under the DNA Testing Act, a court shall appoint counsel
for an indigent person upon a showing that DNA testing may
be relevant to the person’s claim of wrongful conviction. 34 In
similar cases where we affirmed findings that the requested
testing would not produce noncumulative exculpatory evi-
dence, we applied that finding to determine the applicants
33
See Myers, supra note 5.
34
§ 29-4122.
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ful conviction claims. 35 Therefore, for the reasons discussed
above, Jacob did not make the requisite showing that DNA
testing may be relevant to his claim of wrongful conviction,
and thus, the district court did not abuse its discretion in deny-
ing his request for appointment of counsel. This assignment of
error is without merit.
Motion to Alter or Amend
Jacob argues the district court erred in denying his motion
to alter or amend and in failing to consider the issues he raised
in his motion. The court rule in the district court for Lancaster
County, Nebraska, states:
When any motion requiring a hearing is filed, it shall be
filed with a notice of hearing with a date, time, manner
of hearing, and certificate of service with the Clerk of the
District Court (Clerk) not less than 5 days prior to hear-
ing, except by permission of the court. 36
In the instant matter, Jacob’s motion to alter or amend was
filed without a notice of hearing with a date, time, and man-
ner of hearing. Further, the district court’s order denying the
motion clearly indicates the motion was deemed abandoned for
failure to comply with the court’s rules and was denied.
Jacob argues that the court rule does not apply because
his motion to alter or amend did not require a hearing. We
have previously recognized that the description of a motion
to alter or amend in Neb. Rev. Stat. § 25-1329 (Reissue 2016)
does not include any requirement that the motion be accom-
panied simultaneously by a notice of hearing before the dis-
trict court. 37 We have also cautioned that any applicable rules
concerning motions should be followed. 38 In arguing that his
35
See, Myers, supra note 5; Dean, supra note 6.
36
Rules of Dist. Ct. of Third Jud. Dist. 3-2(A) (rev. 2019).
37
See Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018).
38
See Bryson L. v. Izabella L., 302 Neb. 145, 921 N.W.2d 829 (2019).
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Cite as 309 Neb. 401motion does not require a hearing, Jacob points out that the
motion made legal arguments and that he did not offer new
evidence. His motion asked the court to amend its order to
require DNA testing.
Assuming, without deciding, that the district court erred
in deeming the motion to be abandoned, Jacob has not been
deprived of a substantial right. Contrary to the assertion in
Jacob’s brief, he has not been deprived of his right to appeal.
The district court’s ruling, though not on the merits, had the
effect of denying Jacob’s motion to alter or amend—a motion
that challenged the correctness of the denial of his motion for
DNA testing. And as set forth above, we have concluded that
the district court did not err in denying Jacob’s motion for
DNA testing.
Bill of Exceptions
Jacob alleges the district court failed to produce and file the
bill of exceptions he requested. Specifically, Jacob argues that
had the bill of exceptions been filed, it would have shown that
upon the State’s request, the district court took judicial notice
of the entire record of the second trial without receiving it as
an exhibit.
Our record, however, indicates that the bill of exceptions
was filed on December 8, 2020. The filed bill of exceptions
contained the transcript of the two hearings on Jacob’s motion
for DNA testing and the exhibits offered at those hearings.
Additionally, the record indicates that the State did not ask the
court to take judicial notice of the records of Jacob’s previous
trials, nor did the district court take judicial notice of those
previous trials.
Despite Jacob’s erroneous arguments, we note that a bill
of exceptions was prepared for both Jacob’s first and second
­trials and that both bills of exceptions were relied upon by this
court on Jacob’s earlier appeals. As such, those records remain
part of this case and remain available for future review. 39 As
39
See State v. Myers, 301 Neb. 756, 919 N.W.2d 893 (2018).
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Cite as 309 Neb. 401a result, Jacob’s praecipe for a bill of exceptions requesting
preparation of the entire record of the second trial was unnec-
essary as were his motions for orders of bills of exceptions.
This assignment of error is without merit.
CONCLUSION
The DNA testing requested by Jacob would not result in
noncumulative exculpatory evidence relevant to his wrongful
conviction claim. We therefore affirm the district court’s denial
of Jacob’s motion for DNA testing, motion for appointment of
counsel, and motion to alter or amend.
Affirmed.
Heavican, C.J., and Stacy and Freudenberg, JJ., not
participating.