State v. Buckman
| Citation | 311 Neb. 304,971 N.W.2d 791 |
| Decision Date | 01 April 2022 |
| Docket Number | S-21-399. |
| Parties | STATE of Nebraska, appellee, v. Herman D. BUCKMAN, appellant. |
| Court | Supreme Court of Nebraska |
Robert W. Kortus, Lincoln, of Nebraska Commission on Public Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman, Lincoln, for appellee.
Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.
For a second time, Herman D. Buckman obtained testing on evidence under the DNA Testing Act.1 After receiving results of the testing, the State moved to dismiss the proceeding. The court sustained the motion, and Buckman appeals. Because the test results did not exonerate or exculpate Buckman, we affirm the judgment of the district court.
In 1988, law enforcement found Denise Stawkowski lying across the front seat of her car, dead from two gunshot wounds to her head. The State charged Buckman with first degree murder of Stawkowski and use of a weapon to commit that felony.
According to evidence at trial, Stawkowski sold drugs to a number of individuals, including Buckman and his girlfriend, Goldie Fisher. There was evidence that Buckman felt he had been cheated by Stawkowski on either the quantity or the quality of drugs he had been buying from her.
A few hours before Stawkowski's murder, Buckman and Fisher tried to sell or trade a ".38 Special" gun to Stawkowski's husband in return for drugs. The same caliber gun was used to kill Stawkowski. Evidence at trial established that Buckman often wore slippers in public. Investigators located two brown slippers near Stawkowski's car. One slipper was discovered on the shoulder of the road south of the car's location, and the other was found in a nearby field.
Stawkowski's purse contained roughly $2,000 and three "eight-balls" of cocaine when she was with Fisher at approximately 1 a.m. on February 19, 1988. These items were not found with Stawkowski's body. Later on February 19, Buckman and Fisher spent large amounts of cash. A day earlier, they were trying to sell clothing in an effort to get money to pay Fisher's babysitter. When Buckman was arrested, he had $656 in cash in his possession and the clothing items he and Fisher had tried to sell were still in his car.
Hours before discovery of the murder, a witness picked up Fisher on a road near where Stawkowski's body was found. Other evidence placed Fisher with Buckman in the hours before and after the murder. A cellmate of Buckman testified that Buckman bragged of killing Stawkowski in Fisher's presence and using the money he stole from Stawkowski to pay debts.
As part of the original investigation of the murder, Dr. Reena Roy, a forensic serologist with the Nebraska State Patrol, tested bloodstains found on various items. Roy concluded that small amounts of blood on a jacket, a sweater, and jeans that Buckman was wearing at the time of arrest, on the brown slippers located in the area where Stawkowski's car was found, and on the steering wheel cover and floormats of Buckman's car contained blood group A and adenylate kinase enzyme (AK) of 2-1. That blood combination was consistent with Stawkowski's genetic markers, but it excluded approximately 96.5 percent of the Caucasian and 99.5 percent of the African-American populations.
According to evidence at trial, Buckman smoked Kool cigarettes and opened his cigarette packages from the bottom. A Kool cigarette butt and a Camel cigarette butt were found on the rear floorboard in Stawkowski's car. A package of Kool cigarettes, opened from the bottom, was located in a field near the car. Dr. Moses Schanfield tested the cigarette butts and concluded that Buckman could not be excluded as the person who smoked them. Schanfield stated that only 0.7 percent of the Caucasian population and 4.8 percent of the African-American population could have been the donor of the saliva found on the Kool cigarette butt and that Buckman fell within that 4.8 percent.
A jury convicted Buckman of first degree murder and use of a deadly weapon to commit a felony.2 The trial court imposed sentences, including life in prison for the murder conviction.
On direct appeal, Buckman challenged the sufficiency of the evidence, in addition to several other issues.3 We rejected all of the assigned errors and stated that a myriad of detailed evidence supported the convictions.4
In 1998, Buckman moved for postconviction relief. The district court denied the motion without an evidentiary hearing.5 We affirmed, finding no merit to Buckman's claims of ineffective assistance of trial counsel.
Buckman subsequently sought testing of bloodstains and cigarette butts under the DNA Testing Act. The district court ordered testing, which the University of Nebraska Medical Center (UNMC) performed. UNMC tested Buckman's jacket, sweater, and jeans, as well as cuttings from his jacket, for hemoglobin, but did not detect any blood. DNA testing on areas of Buckman's jacket, sweater, and cap did not detect a DNA profile. UNMC tested cuttings from each slipper: one was negative for hemoglobin, and one was a weak positive for hemoglobin, but no DNA profile was found on the cuttings. UNMC attempted to extract DNA from the cigarette butts, and the results were inconclusive.
The district court denied Buckman's motion to vacate and set aside his convictions after concluding that none of the evidence from UNMC's testing exonerated Buckman, exculpated him, or proved Buckman's innocence. The court denied Buckman's motion for new trial after concluding that there was no reasonable possibility UNMC's testing results, if presented at trial, would have produced a different result. We affirmed.6
In 2016, Buckman filed a motion requesting DNA testing on Stawkowski's panties. After the State filed an inventory, which included items that were unavailable at the time of Buckman's previous proceeding for DNA testing, Buckman added a request that blood on the steering wheel cover and floormats of his car be tested. The court sustained Buckman's request for DNA testing on those items and appointed counsel to represent him.
The items tested—panties, steering wheel cover, and floormats—had been held in a semi-trailer truck. The trailer lacked temperature or humidity control. Mellissa Helligso, a forensic DNA analyst, performed DNA testing on the items. When asked if she found any evidence of heat damage with respect to the steering wheel cover or the floormats, Helligso answered that she was unable to tell the difference between degradation and low-level DNA. But extreme heat or cold did not affect her ability to test the panties. If there were concerns of heat, light, or moisture, the concerns would have exhibited themselves on the panties, and they did not.
As to the items, we set forth background information and evidence from trial and then evidence concerning Helligso's testing.
Prior to trial, the steering wheel cover and floormats were submitted to Roy for testing. She scraped the cover by using a scalpel to take blood off of four different areas and tested for blood group and AK. She also tested blood from both front floormats. The results were blood group A and AK 2-1.
Helligso had concerns that the amount of DNA was so low that it was undetected with her quantification assay. She did not detect any blood on the steering wheel cover or the floormats. Helligso testified that the fact she did not detect any blood did not mean that there was not blood at the time of Roy's initial testing.
During opening statements, counsel for both parties made reference to Stawkowski's having engaged in sexual intercourse with someone other than her husband. The prosecutor stated:
You'll also hear evidence during the autopsy Dr. [Daniel J.] Till found that there was semen in ... Stawkowski's vagina. The evidence will be that she and her husband had not had sexual intercourse that day.... There's no indication that she had sexual intercourse with anyone else. There's no indication that she had been sexually assaulted. When her body was found, her clothes were not in disarray. She was fully clothed. Again, there's no indication that this has anything to do with this case, but you will hear that evidence.
Defense counsel stated that Stawkowski "had sex" with somebody other than her husband and that "[t]hat's in dispute ... and that's important."
Daniel J. Till, M.D., a pathologist, testified at trial that he performed a forensic autopsy on Stawkowski on February 19, 1988. He testified that her body was clothed when found. Till opined that her death occurred sometime in the early morning hours of February 19, with a timeframe of 1 to 3:30 a.m., and that sperm found in Stawkowski's vagina could have been there within 8 hours of her death.
Schanfield tested various items for immunoglobulin allotypes, ABO blood group substance, and Lewis blood group substance. Based on his results of the panties extract and the vaginal swab extract, he was not able to draw any conclusions as to the allotypes and other genetic markers of the person responsible for the semen found in the panties and on the vaginal swab. He did not find anything that he would classify as a foreign marker; everything he found was consistent with Stawkowski.
Roy detected semen on the panties, jeans, and vaginal swab. She could not perform "DNA fingerprinting testing," because there was not "enough high-molecular-weight DNA from the semen sample." Roy performed testing in an effort to determine any blood group substances in the semen and found blood group substance A and H. Based on the results, Roy could not exclude Buckman as the semen donor. He fell within the 35 percent of the male population who could be the possible semen donor. Nor could Roy exclude Eric Beckwith, an individual arrested along with Buckman and Fisher. Through the testing, Roy was able to exclude...
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