State v. Lotter, No. S-02-1072

• Decision Date: 26 September 2003
• Docket Number: No. S-02-1072, No. S-02-1074., No. S-02-1073
• Parties: STATE of Nebraska, Appellee and Cross-Appellant, v. John L. LOTTER, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

669 N.W.2d 438

266 Neb. 758

STATE of Nebraska, Appellee and Cross-Appellant, v. John L. LOTTER, Appellant and Cross-Appellee.

Nos. S-02-1072, S-02-1073, S-02-1074.

Supreme Court of Nebraska.

September 26, 2003.

James R. Mowbray and Jerry L. Soucie, of Nebraska Commission on Public Advocacy, for appellant.

Jon Bruning, Attorney General, and Marie Colleen Clarke for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

WRIGHT, J.

I. NATURE OF CASE

John L. Lotter appeals from an order of the district court for Richardson County which overruled his amended motion for DNA testing pursuant to the DNA Testing Act, Neb.Rev.Stat. § 29-4116 et seq. (Cum.Supp.2002).

II. SCOPE OF REVIEW

A motion for DNA testing is similar to a motion for new trial based on newly discovered evidence. Therefore, 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. See State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).

Interpretation of a statute presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Johnson v. Kenney, 265 Neb. 47, 654 N.W.2d 191 (2002).

In an appeal from a proceeding under the DNA Testing Act, the trial court's findings of fact will be upheld unless such findings are clearly erroneous. State v. Poe, 266 Neb. 437, 665 N.W.2d 654 (2003).

III. FACTS

1. BACKGROUND

Lotter was convicted of three counts of first degree murder, three counts of use of a weapon to commit a felony, and one count of burglary. He was sentenced to death for each count of first degree murder and to incarceration on the burglary and use of a weapon convictions. We vacated the sentence on the burglary conviction but affirmed the convictions and sentences on all other charges in State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), modified on denial of rehearing 255 Neb. 889, 587 N.W.2d 673 (1999). A thorough recitation of the facts in the underlying case is set forth in that opinion. In State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003), we affirmed the district court's denial of Lotter's motions for postconviction relief, new trial, and writ of error coram nobis.

2. CASE AT BAR

On December 20, 2001, Lotter filed a pro se motion for DNA testing pursuant to the DNA Testing Act. At the direction of the district court, the State filed an inventory listing several items containing biological evidence. In response to a motion for summary dismissal filed by the State, counsel for Lotter filed an amended motion for DNA testing. The State's motion for summary dismissal was overruled, and Lotter was granted a hearing on his amended motion.

In Lotter's amended motion for DNA testing, he alleged that he intended to utilize the "PowerPlex 16" amplification and multiplex identification system with the "ABI Prism 310 Genetic Analyzer" to test items containing biological evidence, including a pair of yellow work gloves; cuttings taken from the gloves; shoes and clothing of his accomplice, Thomas M. Nissen, also known as Marvin T. Nissen; and known comparison blood samples from the murder victims, Teena Brandon, Lisa Lambert, and Phillip DeVine. Lotter alleged that evidence of high-velocity blood spatter from Brandon or the presence of DNA from Lambert and/or DeVine on Nissen's gloves, shoes, or clothing would establish that Nissen was not in the locations that he described in his trial testimony. Lotter further alleged that DNA tests would establish that Nissen lied during his testimony and that Nissen, not Lotter, was holding the gun at the time all three victims were murdered.

Evidence at Lotter's trial indicated that the yellow work gloves worn by Nissen at the time of the crime contained two areas that tested positive for blood. The serologist did not conduct additional tests because further testing would have consumed the sample and the serologist had been instructed by defense counsel to preserve the evidence for independent analysis.

Prior to the hearing on Lotter's amended motion for DNA testing, he filed an application for writ of habeas corpus ad prosequendum, requesting that he be allowed to attend the hearing. The district court denied the application, and the hearing proceeded in Lotter's absence.

At the hearing on his amended motion for DNA testing, Lotter submitted the affidavit of Ronald Rubocki, Ph.D., and portions of the trial record relevant to his motion. The State submitted the affidavit of Charlotte Word, Ph.D., and the bill of exceptions from Lotter's trial and postconviction proceedings. The district court denied Lotter's amended motion for DNA testing, concluding that such testing would not result in noncumulative, exculpatory evidence relevant to any claim that Lotter was wrongfully convicted or sentenced.

Lotter timely appealed, and the district court granted his motion to proceed in forma pauperis on appeal to this court.

IV. ASSIGNMENTS OF ERROR

Lotter assigns that the district court erred (1) in refusing to allow DNA testing of evidence in the possession of the State, as required by the DNA Testing Act, and (2) in refusing to allow Lotter to attend the hearing on his amended motion for DNA testing, in violation of the Due Process Clause of the 14th Amendment to the U.S. Constitution.

On cross-appeal, the State assigns, restated, that the district court erred in its conclusions of law and fact pertaining to whether DNA testing was "effectively not available at the time of trial." See § 29-4120(5).

V. ANALYSIS

1. DNA TESTING ACT

Section 29-4120, which sets forth the procedure for obtaining postconviction DNA testing, provides in relevant part:

(1) 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 judgment 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 control 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.

. . . .

(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 determination 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.

Section 29-4119 defines exculpatory evidence as "evidence which is favorable to the person in custody and material to the issue of the guilt of the person in custody."

2. DENIAL OF REQUEST FOR DNA TESTING

Lotter assigns as error that the district court should have allowed DNA testing of evidence in possession of the State. In the case at bar, the issue to be determined is whether DNA testing requested by Lotter in his amended motion "may produce noncumulative, exculpatory evidence relevant to [his] claim that [he] was wrongfully convicted or sentenced." See § 29-4120(5).

We will first examine the arguments made by Lotter and the State and the district court's order. We will then analyze whether the DNA testing requested by Lotter would affect his convictions or sentences.

(a) Lotter's Argument

Lotter claims that the requested DNA testing may produce noncumulative, exculpatory evidence in his favor. He argues that the district court was simply wrong in its interpretation of what is required before DNA testing must be ordered. He asserts that under the court's logic, a videotape of Nissen shooting all three victims would likewise fail to change Lotter's guilty verdicts or death sentences.

Lotter also argues that favorable DNA evidence may support the theory that he was innocent of all three murders. He contends that because there was only circumstantial evidence placing him with Nissen hours before the shootings and with Nissen after the murders, the only evidence that Lotter caused harm to anyone came from Nissen's testimony. Lotter claims that blood spatter from the victims on Nissen's gloves, shoes, or clothing would establish that Nissen was very close to the victims when they were shot and that Nissen was not at the locations he described in his trial testimony. Lotter asserts that such DNA test results would aid in establishing that Nissen lied at trial and would prove that Nissen shot all three victims.

Lotter further argues that favorable DNA evidence may support the admissibility of Nissen's admissions to Jeff Haley, which were excluded as evidence at Lotter's postconviction hearing, by providing additional circumstantial guarantees of trustworthiness. Haley testified via deposition that he was Nissen's cellmate at the Lincoln Correctional Center in 1997. Nissen was reading a book at that time about the Brandon murder and was upset because he felt it contained lies. According to Haley, Nissen showed him the autopsy photographs of the victims and explained and demonstrated in detail how he shot and killed all three victims. Nissen told Haley that while Nissen was shooting the victims, Lotter was "freaking out and running around," saying, "What are you doing? What are you doing?" According to Haley, Nissen stated that he should have shot Lotter...