State v. Marrs

Decision Date23 December 2016
Docket NumberNo. S-16-192.,S-16-192.
Citation295 Neb. 399,888 N.W.2d 721 (Mem)
Parties STATE of Nebraska, appellee, v. James D. MARRS, appellant.
CourtNebraska Supreme Court

295 Neb. 399
888 N.W.2d 721 (Mem)

STATE of Nebraska, appellee,
James D. MARRS, appellant.

No. S-16-192.

Supreme Court of Nebraska.

Filed December 23, 2016

James D. Marrs, pro se.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

Heavican, C.J., Wright, Miller–Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Wright, J.


James D. Marrs was convicted of second degree murder, and his conviction and sentence were affirmed on direct appeal. This is an appeal from Marrs' second motion for testing of biological materials. The State asserts that his motion is barred by principles of res judicata.


Marrs was convicted, pursuant to a plea of guilty, to second degree murder in relation to the death of Sharron Erickson in

295 Neb. 400

June 2003. The State submitted as part of the factual basis supporting Marrs' guilty plea evidence that DNA matching Marrs' profile was found in the panties worn by Erickson the night of her murder.

A report from June 2004 by the University of Nebraska Medical Center concluded that Marrs could not be excluded as the source of DNA in the sperm cell fraction obtained from the panties. The report set forth that the probability of an unrelated individual matching the DNA profile obtained from the panties was "1 in 433 x 1015(quadrillion) for Caucasians, 1 in 10.9 x 1018(quintillion) for African Americans, and 1 in 11.4 x 1018(quintillion) for American Hispanics." We affirmed Marrs' conviction on direct appeal.1

In 2009, Marrs, represented by counsel, filed a motion under the DNA Testing Act (the Act)2 for retesting of biological material related to Marrs' prosecution. These materials were the victim's panties worn the night she was killed, an anal swab from the victim that DNA testing had shown was a single source contributor matching Erickson's profile, and Marrs' oral swab. Marrs alleged there were discrepancies

888 N.W.2d 723

between reports by the University of Nebraska Medical Center and testing done at the State Patrol crime laboratory.

At the hearing on the 2009 motion, the only evidence submitted by Marrs' counsel were the DNA reports from 2003 and 2004, prepared by the two laboratories. Marrs' counsel did not call any witnesses.

At the hearing, the State adduced expert testimony explaining that there were no inconsistencies between the various laboratory testing reports submitted by Marrs in support of his motion. The expert witnesses testified that there was no reason to "cast any doubt" or question the accuracy of the prior DNA testing results.

295 Neb. 401

In particular, the State's expert witnesses testified there was no reason to question the conclusion that biological material found on Erickson's panties matched Marrs' DNA profile. The expert witnesses also testified that there were no other untested items likely to yield DNA profiles. The witnesses were not specifically asked to what extent, if any, DNA testing techniques had advanced since the time of Marrs' plea.

In addition to adducing expert testimony relating to the DNA reports, the State submitted the deposition testimony of eight inmates who were incarcerated with Marrs. Each of the inmates described that Marrs had admitted to killing Erickson.

The district court overruled the 2009 motion for DNA testing. The court found that Marrs had failed to demonstrate that further DNA testing of the items collected would produce noncumulative, exculpatory evidence relevant to the claims at issue. The court further found that the record failed to reflect that there was any newly available technology that would produce noncumulative, exculpatory evidence relevant to the claims at issue. Marrs' appeal from that order was summarily dismissed by the Nebraska Court of Appeals.

In 2015, Marrs, acting pro se, filed another motion for DNA testing under the Act, which motion is the subject of the current appeal. Marrs asserted that further testing of the biological material found in Erickson's panties could lead to exculpatory evidence, because the 2004 report stated only that Marrs "could not be excluded" as the contributor. Marrs alleged that the 2004 DNA report was the primary reason he chose to plead guilty. Marrs also sought testing or retesting of the other evidence in the State's possession. Marrs alleged that the items could be retested with more accurate current techniques, and he generally described the new amplification techniques that have become available since 2004. Marrs did not allege that the biological material could be retested with techniques that are more accurate than those available at the time of his 2009 motion. Marrs sought appointment of counsel to defend his motion.

295 Neb. 402

The State objected to the motion on the ground of res judicata. At the preliminary hearing, Marrs added no additional argument and stood on his motion. The court subsequently entered an order stating, "Upon review of the court file and the motions on file, the court overrules all pending motions [without] further hearing." Marrs appeals from the dismissal of his DNA motion without an evidentiary hearing.


Marrs assigns that the district court erred and abused its discretion by overruling all pending motions without further hearing.


The availability of issue preclusion or claim preclusion is a matter of law,

888 N.W.2d 724

although any factual determinations in applying these doctrines are reviewed for clear error.3


The Act provides that 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 (1) is related to the investigation or prosecution that resulted in the judgment, (2) is in the actual or constructive possession or control under circumstances likely to safeguard the integrity of the biological material's original physical composition, and (3) 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

295 Neb. 403

accurate and probative results.4 The first step under the Act is to file a motion requesting forensic DNA testing of biological material that satisfies these three criteria.5

Once a proper motion has been filed, the county attorney shall prepare an inventory of the biological evidence.6 Then, upon consideration of affidavits or after a hearing, the court shall order DNA testing upon a determination that (1) the testing...

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    ...295 Neb. 399STATE OF NEBRASKA, APPELLEE, v. JAMES D. MARRS, APPELLANT.No. S-16-192.SUPREME COURT OF NEBRASKADecember 23, 2016 1. Collateral Estoppel: Res Judicata: Appeal and Error. The availability of issue preclusion or claim preclusion is a matter of law, although any factual determinati......
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