State v. Jacob - supplemental opinion

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/05/2021 08:09 AM CDT
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JACOB
Cite as 310 Neb. 157State of Nebraska, appellee, v.
Steven Jacob, appellant.
___ N.W.2d ___
Filed September 17, 2021. No. S-20-584.
supplemental opinion
Appeal from the District Court for Lancaster County: Darla
S. Ideus, Judge. Former opinion modified. Motion for rehear-
ing overruled.
Steven Jacob, pro se.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Miller-Lerman, Cassel, Funke, and Papik, JJ.
Per Curiam.
This case is before us on a motion for rehearing filed by
the appellant, Steven Jacob, concerning our opinion in State
v. Jacob, 309 Neb. 401, 960 N.W.2d 327 (2021). We find no
substantive merit to Jacob’s motion and overrule it, but modify
the opinion as follows:
In the background section, under the subheading “Motion
for DNA Testing,” we withdraw the last sentence of the first
paragraph, id. at 405, 960 N.W.2d at 331, and substitute the
following:
Jacob argued that with current methods of retrieving
DNA from shell casings, the DNA on the shell casings
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JACOB
Cite as 310 Neb. 157could “identify who took and loaded the firearm from
[his] office” and is exculpatory because it “shows the
Llama 9mm handgun used in the shooting was NOT in
[his possession] at the time of and preceeding [sic] the
shooting.”
In the background section, under the subheading “Motion
for DNA Testing,” we withdraw the last sentence of the second
paragraph, id., and substitute the following:
Thus, according to Jacob, that person’s DNA could be
present on the shell casings found by the police.
In the background section, under the subheading “Motion to
Alter or Amend,” we withdraw the fourth sentence of the first
paragraph, id. at 408, 960 N.W.2d at 333, and substitute the
following:
In regard to DNA testing on the shell casings, Jacob
reasserted his argument 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 car-
tridges, meaning that the DNA of the shooter could be on
the shell casings found at the crime scene.
In the analysis section, under the subheading “Denial of
Jacob’s Motion for DNA Testing,” we withdraw the third
paragraph, id. at 413, 960 N.W.2d at 335, and substitute the
following:
Jacob claims the requested testing on the shell casings
would show other individuals’ DNA on the shell casings,
which would prove that he was not the shooter. Jacob
also claims the requested testing on the gauze would
show the presence of Etherton’s DNA, ultimately giv-
ing Hopper a motive to shoot Etherton. 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 was
present on those items, such results would not provide
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. JACOB
Cite as 310 Neb. 157noncumulative exculpatory evidence that Jacob did not
fire the shots.
The remainder of the opinion shall remain unmodified.
Former opinion modified.
Motion for rehearing overruled.
Heavican, C.J., and Stacy and Freudenberg, JJ., not
participating.