State v. Leon

postconviction motion were still pending and consideration of
the second postconviction motion was outside the scope of the
mandate on remand from the appeal of the denial of his first
postconviction motion. We vacate that portion of the district
court’s order overruling the second postconviction motion. We
remand the cause to the district court with directions to dismiss
the second postconviction motion without prejudice and to
forthwith conduct an evidentiary hearing on the first postcon-
viction motion in accordance with the mandate of this court in
case No. S-03-1045.
A ffirmed in pArt, And in pArt vAcAted
And remAnded with directions.
stAte of nebrAskA, Appellee ,
v. irA leon, AppellAnt.
781 N.W.2d 608
Filed April 23, 2010. 	No. S-09-636.
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.
Appeal from the District Court for Lincoln County: donAld
e. rowlAnds, Judge. Affirmed.
Tracy L. Hightower-Henne, of Hightower Law, L.L.C., for
appellant.
Ira Leon, pro se.
Jon Bruning, Attorney General, and Erin E. Tangeman for
appellee.
heAvicAn, 	c.J., 	wright, 	connolly, 	gerrArd, 	stephAn,
mccormAck , and miller-lermAn, JJ.
heAvicAn, c.J.
INTRODUCTION
Ira Leon was convicted of first degree murder, robbery, and
use of a weapon to commit a felony in 1992. On May 4, 2009,
734 	279 NEBRASkA REpORTS
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Leon sought DNA testing of biological material collected
as evidence in his case. Leon’s motion was denied, and he
appeals. We affirm.
FACTS
Leon was charged with first degree murder, robbery, and
use of a weapon to commit a felony in the February 19, 1992,
death of Bettie Christensen. Leon had originally been charged
with premeditated murder or, in the alternative, felony murder.
But pursuant to a plea bargain, Leon agreed to plead no con-
test to premeditated first degree murder, robbery, and use of a
weapon to commit a felony. In exchange, the State amended
the information against Leon, striking that portion charging
Leon with felony murder. The State also agreed not to seek the
death penalty or the maximum terms of imprisonment for the
robbery and use charges, and further agreed not to present any
additional evidence at sentencing. per the agreement, the State
was permitted to ask the district court for a minimum period
of incarceration of 17 years in addition to Leon’s life sentence
for the first degree murder conviction and also to request that
Leon’s sentences be served concurrently.
In support of the no contest plea, the State alleged that at
around 10:10 p.m. on February 19, 1992, Leon and another
man, Stacey Fletcher, entered a convenience store located in
North platte, Nebraska. Leon and Fletcher were in posses-
sion of two tire irons at the time they entered the store. Upon
realizing that Leon and Fletcher were going to rob the store,
Christensen, the store clerk, screamed and ran toward the back
room. According to Fletcher, at that point, Leon began beat-
ing Christensen about the head. After Christensen was dead,
Leon and Fletcher stole $400 to $500 in cash from the cash
register and left the store. They were later apprehended at a
North platte residence. The tire irons were recovered. Both tire
irons tested positive for the presence of human blood. One tire
iron also had hair resembling the victim’s on it. In addition, a
customer who entered the store at the time of the murder and
robbery positively identified Leon.
Leon was subsequently sentenced to consecutive terms of
life imprisonment for first degree murder, 12 to 25 years’
STATE v. LEON 	735
Cite as 279 Neb. 734

imprisonment for robbery, and 5 to 10 years’ imprisonment
for use of a weapon to commit a felony. No direct appeal was
filed, but Leon did file a motion for postconviction relief in
January 1993. An evidentiary hearing on that motion was held,
but the motion was overruled. That judgment was affirmed
by the Court of Appeals in case No. A-93-914 on April
21, 1994.
On May 4, 2009, Leon filed a motion for DNA testing under
the DNA Testing Act.1 Leon requested that DNA testing “be
completed on the biological materials that were collected as
evidence in this case to correct the manifest injustice of the
judgement [sic] against [him] based on false statements . . .
and testimony of [Fletcher].” Leon alleged that testing of the
evidence in this case would show that it was Fletcher, and not
Leon, who committed the murder. In an affidavit filed later,
Leon requested the testing of about 100 pieces of evidence
to determine whether biological material was present. Leon
maintained the testing would show that Fletcher had substantial
contact with the victim and that Leon had no contact with the
victim, thus “undermining Fletcher’s statements to the State
that [Leon] killed the victim.”
On June 15, 2009, the district court denied Leon’s motion,
finding that DNA testing would not produce noncumulative,
exculpatory evidence relevant to the claim that Leon was
wrongly convicted or sentenced. The district court noted that
Leon did not deny that he was present at the scene or involved
in the robbery of the store. “Even assuming for the sake of
argument that . . . Fletcher actually inflicted the fatal blows
upon the victim, [Leon] would still be guilty of felony murder
if he was guilty of robbery as an aider and a death resulted dur-
ing the course of committing the robbery.”
Leon appeals.
ASSIGNMENT OF ERROR
On appeal, Leon assigns that the district court erred in deny-
ing his motion for DNA testing.
1 Neb. Rev. Stat. §§ 29-4116 to 29-4125 (Reissue 2008).
736 	279 NEBRASkA REpORTS

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.2
ANALYSIS
The DNA Testing Act provides in relevant part:
(1) Notwithstanding any other provision of law, a per-
son 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 oth-
ers under circumstances likely to safeguard the integrity
of the biological material’s original physical composi-
tion; 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.
. . . .
(5) 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 determi-
nation that such testing was effectively not available at the
time of trial, that the biological material has been retained
under circumstances likely to safeguard the integrity of its
original physical composition, and that such testing may
produce noncumulative, exculpatory evidence relevant
to the claim that the person was wrongfully convicted
or sentenced.3
2 State v. Winslow, 274 Neb. 427, 740 N.W.2d 794 (2007).
3 § 29-4120.
STATE v. LEON 	737
Cite as 279 Neb. 734

Exculpatory evidence is defined as “evidence which is favor-
able to the person in custody and material to the issue of the
guilt of the person in custody.”4
On appeal, Leon contends that DNA testing should be con-
ducted on all of the evidence gathered in connection with the
robbery of the store and subsequent murder of Christensen.
Leon contends that testing would show that only Fletcher had
Christensen’s blood on his person and clothing and would also
show that only Fletcher’s DNA was on Christensen’s person.
Leon argues that this would show that only Fletcher had con-
tact with Christensen and that thus, Fletcher was responsible
for Christensen’s murder.
Leon first contends that blood was found on Fletcher’s
clothing and not on Leon’s clothing and that such fact proves
Fletcher and not Leon killed Christensen. However, it was
known at the time Leon entered his plea that there was blood
all over Fletcher’s clothing but not on Leon’s clothing. In fact,
Leon’s counsel argued these facts at sentencing.
Because of this, the most DNA testing would reveal is whose
blood was on Fletcher’s clothing. Such a finding would not be
exculpatory, as there were a number of ways this blood could
have gotten on Fletcher’s clothing, even without Fletcher’s hav-
ing killed Christensen. The record shows that there was blood
at the scene at the time the police arrived. There was expert
testimony that blood would have splattered during the killing.
And Fletcher’s statement was that he followed Leon to the back
room and watched as Leon killed Christensen by striking her
with the tire iron.
The lack of Christensen’s DNA on Leon’s clothing would
also not be exculpatory. Just as it was known that there was
blood on Fletcher’s clothes, it was also known that there was
no blood on Leon’s clothes. There was evidence that Leon had
been seen washing himself following the murder and prior
to his arrest. In addition, there was evidence that Leon had
changed his clothes after the murder and that blood was pres-
ent on shoes found in the house where Leon was found after
the murder.
4 § 29-4119.
738 	279 NEBRASkA REpORTS

This case is very similar to State v. Lotter.5 In Lotter, the
defendant wished to have DNA testing performed on the cloth-
ing, gloves, and shoes worn by his codefendant. We rejected
Lotter’s claims, holding:
In the case at bar, the victims could be the source of
the blood samples in question. DNA testing could estab-
lish that the blood came from one or more of the victims,
but it could not determine how the blood was deposited
upon the items being tested. Since the results of DNA
testing could not establish how the blood was deposited
on [the codefendant’s] gloves, shoes, or clothing, the
results could not establish that [the codefendant] shot the
victims. Therefore, the results of such testing could not
be exculpatory.6
Leon also contends that DNA testing would show that
only Fletcher’s DNA would be found on Christensen’s person.
But just as the presence of Christensen’s blood on Fletcher’s
clothing would not be exculpatory, nor would the presence of
Fletcher’s DNA on Christensen be exculpatory. As is noted
above, there is evidence that Leon washed and changed his
clothes before being arrested.
We note that in his brief, Leon suggests long brown hairs
resembling Fletcher’s were found in Christensen’s hand. While
we found reference in the record to hairs being found in
Christensen’s hand, we found no description of those hairs or
of Fletcher’s hair. And in any event, the fact that Fletcher’s
hairs could have been found on Christensen does not preclude
the possibility that Leon was involved in the murder and is
therefore not exculpatory as to Leon.
Leon’s argument that his motion for DNA testing should
have been granted is without merit.
CONCLUSION
The decision of the district court denying Leon’s motion for
DNA testing is affirmed.
A ffirmed.
5 State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003).
6 Id. at 770, 669 N.W.2d at 447-48.
STATE v. LEON 	739
Cite as 279 Neb. 734