CONNOLLY, J.
The appellant, LeRoy J. Parmar, appeals from the district court's order that overruled his motion to vacate his conviction or receive a new trial. Parmar brought his motion under the DNA Testing Act.
We reverse. We agree that the DNA evidence did not exonerate Parmar of guilt. But the DNA evidence excluded Parmar's DNA from a crucial piece of evidence and contradicted eyewitness testimony crucial to the State's conviction. Thus, we conclude that the DNA evidence probably would have produced a substantially different result if it had been available at trial. We remand the cause with directions for the court to grant Parmar a new trial.
We note that the Legislature amended the DNA Testing Act since Parmar filed his motion for testing. But because none of the amendments are relevant, we refer only to the current statutes for convenience.
Under § 29-4120, a convicted person in custody may request DNA testing of biological material that was related to the investigation or prosecution that resulted in the judgment. If the court authorizes testing, then under § 29-4123(2), any party may request a hearing when the DNA testing exonerates or exculpates the person in custody. If the court finds that the testing exonerates or exculpates the person, § 29-4123(2) authorizes the court to vacate the judgment and release the person. If the court does not vacate the judgment and release the person, then § 29-4123(3) permits any party to file a motion for a new trial under Neb.Rev.Stat. §§ 29-2101 to 29-2103 (Reissue 2008).
Section 29-2101 permits a defendant to apply for a new trial for specified reasons that materially affect the defendant's substantial rights. Under § 29-2101(6), a defendant may seek a new trial for "newly discovered exculpatory DNA or similar forensic testing evidence obtained under the DNA Testing Act."
A jury convicted Parmar of first degree murder for the 1987 killing of Frederick Cox, and the court sentenced him to a term of life imprisonment. In 1989, we affirmed his conviction in State v. Parmar (Parmar I).
Parmar lived with Lanetta Harrington in the same apartment complex as Cox. Lanetta's sister, Joyce Harrington, also lived in the complex, in an apartment that she shared with Truman Stevenson and Michelle Carrigan.
Cox told several people that he had received a $1,000 property settlement from his ex-wife. The day before he was found dead, Cox was out drinking with friends and returned home around 4:10 p.m. He continued to celebrate his good fortune with people in his apartment. Carrigan and Lanetta were in his apartment between 5 and 6 p.m. After Lanetta left, Carrigan performed a sexual act with Cox. Cox paid her with cash from underneath his mattress, and Carrigan saw that he had a large sum of cash.
Carrigan reported this information to Stevenson, Joyce, and Lanetta. Later that evening, Parmar also learned about the cash. Parmar, Lanetta, and Carrigan devised a plan to rob Cox. Carrigan was to knock on Cox's door, and after he answered, Parmar and Lanetta would push Carrigan into Cox, tie Cox up, and take his money. When Carrigan later went to Parmar and Lanetta's apartment, Carrigan saw them with some extension cord, rope, and pieces of cutoff panty hose. Parmar, Lanetta, and Carrigan carried out their plan at 2 a.m. As Parmar and Lanetta
Cox's friend came the next morning to pick him up for work, but there was no answer when he knocked on Cox's door. Later that day, he and another friend entered Cox's apartment because Cox still had not responded to knocks. They discovered his body by the bed. There was evidence of a struggle, and Cox was face down on the carpet, wedged between the bed and the wall. His arms and ankles were bound. An autopsy revealed that he died of positional asphyxiation; i.e., because he was intoxicated and bound face down in a confined area, he was unable to move so that he could breathe.
At trial, both Carrigan and Washington testified that Parmar had physically assaulted Cox and was the only male present when Cox was robbed and killed. The State also charged Carrigan with first degree murder for Cox's death; Washington was an independent witness.
In 2005, Parmar moved to have DNA testing performed on evidence used at trial. At the same time, he petitioned for an inventory of the trial evidence. Shortly afterward, a deputy county attorney for Douglas County submitted the Omaha Police Department's property reports as an inventory. One listed item was a sheet from the middle of Cox's bed. The police also found two other sheets inside the bedroom door and a sheet and pillow in the front room. All of these items had probable bloodstains.
In 2008, the court ordered the clerk of the Douglas County District Court to inventory the evidence in its possession and release all the trial exhibits to the University of Nebraska Medical Center for DNA testing. At the hearing on the motion, the court admitted an affidavit from the court reporter stating that although she had diligently searched for the trial evidence, she had found only one of two boxes containing the evidence. The box that the court reporter found contained two sheets.
In 2009, the medical center's Human DNA Identification Laboratory issued a report on its DNA testing. The laboratory tested the two sheets that the court reporter had found. Its report referenced the evidence numbers used for these items in the police property reports. Those numbers indicate that the laboratory tested the sheet found in the front room and the sheet found on Cox's bed. Stains on those sheets tested positive for the presence of blood, and the laboratory analyzed them for DNA profiles of any contributors to the samples.
In sum, the laboratory's analysis of the DNA samples from the sheet found in the front room produced a partial DNA profile but was inconclusive about the profile of any contributors to the samples. But its analysis of six bloodstains found on Cox's bedsheet excluded Parmar as a contributor
In his motion requesting the court to vacate his conviction or grant him a new trial, Parmar relied on the testing results of the DNA samples found on the sheet from Cox's bed. At the hearing, Parmar also submitted an affidavit from an investigator for the Nebraska Commission on Public Advocacy. The investigator stated that in 2006, a detective from the Omaha Police Department called him with the results of the department's search for evidence from Parmar's case. The detective informed him that a county attorney had checked out some of the evidence and did not return it. The investigator did not state the date that the county attorney had checked out the evidence.
In overruling Parmar's motion, the court concluded that Parmar was not entitled to have his conviction vacated because the DNA testing did not conclusively establish his innocence. The court stated that the test results showed only that one sample contained Cox's DNA mixed with the DNA from an unidentified male. Because it was unknown when the unidentified male's DNA was deposited in the sample, the court concluded that it was purely speculative whether the unidentified male was present during the crime and responsible for the murder.
The court also denied Parmar's motion for a new trial. The court noted that two eyewitnesses at the crime scene testified to Parmar's involvement and presence, and that circumstantial evidence connected him to the crime. It concluded that because of the eyewitness testimony and circumstantial evidence, the DNA evidence was not of such a nature that if Parmar had offered it at trial, it probably would not have produced a substantially different result.
Finally, the court noted that Parmar had argued that he was entitled to a new trial because of the missing evidence. The court concluded that Parmar's due process rights had not been violated by the court's loss of the evidence absent a showing of the State's bad faith.
Parmar assigns that the district court erred as follows:
(1) failing to conclude that the DNA testing exonerated him within the meaning of the DNA Testing Act;
(2) failing to conclude that he was entitled to a new trial under the DNA Testing Act;
(3) concluding that the DNA evidence would not have produced a different result if it had been admitted at trial;
(4) failing to grant a new trial because the court had failed to preserve and make available evidence committed to its custody; and
(5) applying a "bad faith" standard to the court's failure to preserve evidence entrusted to it.
Under the DNA Testing Act, an appellate court will not reverse a trial court's order determining a motion to vacate a judgment of conviction or grant a new trial absent an abuse of the trial
Parmar contends that the DNA evidence discredits and contradicts the eyewitnesses' testimony at his trial. He claims that the State's theory and presentation of the trial evidence cannot be reconciled with DNA evidence that an unidentified male participated in the crime. The State contends that the DNA testing results do not warrant vacation of Parmar's conviction or a new trial because overwhelming non-DNA evidence supported his conviction. It argues that there was not a complete failure of evidence to support his conviction. And the State argues that a jury would have convicted Parmar even if it had known at his trial that an unknown male had donated a DNA specimen at an unknown time.
In enacting the DNA Testing Act, the Legislature intended to provide (1) an extraordinary remedy—vacation of the judgment—for the compelling circumstance in which actual innocence is conclusively established by DNA testing and (2) an ordinary remedy—a new trial—for circumstances in which newly discovered DNA evidence would have, if available at the former trial, probably produced a substantially different result.
Thus, to warrant an order vacating a judgment of conviction under the DNA Testing Act, the movant must present DNA testing results that, when considered with the evidence presented at the trial leading to conviction, show a complete lack of evidence to establish an essential element of the crime charged.
As noted, the court ruled that Parmar was not entitled to have his judgment vacated because the DNA testing did not conclusively establish his innocence. DNA evidence is usually relevant to a defendant's identity as the perpetrator. For some crimes, DNA testing that was not available at trial could potentially exonerate a person of the crime.
For example, in State v. Buckman,
Similarly, another trial expert in Buckman had tested two cigarette butts found in the victim's car. He testified that Buckman could not be excluded as a contributor of the genetic material found in either of the cigarettes. The brands were known, and one cigarette was a brand that Buckman was known to smoke. The expert testified that if only one person smoked Buckman's preferred cigarette, other suspects were excluded as contributors to the genetic material. But the trial evidence was not properly stored. The cigarettes from the victim's car were commingled in the same bag with the control-group cigarettes, and the brand for the cigarettes was no longer recognizable when postconviction testing was performed.
The postconviction DNA testing showed only inconclusive, partial DNA profiles for the material from two cigarette butts and no DNA profiles for the others. One of the profiles contained genetic material from more than one individual. The expert's final determination was that the results were inconclusive whether Buckman had been a contributor to the DNA sample in one of the tested cigarettes. In short, the inconclusive postconviction results did not exonerate Buckman of guilt or require a new trial.
Similarly, in State v. Pratt,
Because the testing did not conclusively exclude Pratt as a contributor to the DNA samples, we held that the results were neither exonerating nor exculpating. We further held that the court was not clearly wrong in finding that the DNA material from another male could have been deposited on the clothing articles because of improper handling or improper storage of the evidence. In contrast, the victims' trial testimony had strongly identified Pratt as the perpetrator.
These cases illustrate that postconviction DNA testing results that are not incompatible with trial evidence of the movant's guilt fail to exonerate the movant of guilt. In overruling Parmar's motion to vacate the judgment, the court reasoned that because it was unknown when the unidentified male's DNA was deposited in the sample, concluding that another male was present during the crime was too speculative. But we believe that this reasoning is properly directed to whether the evidence was sufficiently exculpatory to warrant a new trial. So we do not address it here. We agree with the court, however,
It is true that the presence of an unidentified male's DNA commingled with the victim's DNA calls into question the State's evidence that Parmar was the sole assailant. But it does not prove that Parmar did not participate in the crime. Parmar could have participated without leaving DNA evidence at the scene. So we conclude that the trial court did not abuse its discretion in denying Parmar's motion to vacate the judgment and release him.
As explained earlier, to warrant an order for a new trial under the DNA Testing Act, the movant must present DNA testing results that probably would have produced a substantially different result if the evidence had been offered and admitted at the movant's trial. Relying on our decision in State v. El-Tabech,
The State convicted Mohamed El-Tabech of murdering his wife by strangling her with a cloth bathrobe belt. A tuft of hair was found in a knot tied in the belt. A state expert testified at trial that seven hairs found in the tuft were consistent with the victim's hair. But she testified that another hair that had fallen from the belt did not belong to the victim or El-Tabech. In contrast, the postconviction DNA testing showed that the hair that had fallen from the belt belonged to El-Tabech but that one of the hairs in the knot belonged to neither El-Tabech nor the victim. The district court concluded that because the unidentified hair was bound in the knot, it had been present before the murder and was insignificant evidence of guilt.
On appeal, we stated that although the unidentified hair was a different hair than the one the state expert had testified about at trial, the jury had nonetheless been presented with evidence that a hair belonging to neither the victim nor El-Tabech was found at the scene. Because of other trial evidence of El-Tabech's guilt, we concluded that it could not be said that the testing results probably would have produced a substantially different result.
But the postconviction DNA testing in Parmar's case produced results that are distinguishable from the results in El-Tabech and our other cases in two crucial respects. First, the testing results here completely excluded Parmar as a contributor to the DNA samples found on Cox's sheet and established the presence of an unidentified male's DNA. Second, the results were contrary to the testimonies of two key eyewitnesses against Parmar. We have previously addressed the significance of similar DNA evidence in a case deciding whether a district court should have ordered DNA testing. Our reasoning in that case is applicable here.
In State v. White,
In 2006, the district court denied White's motion for DNA testing, concluding that even if the testing showed that the biological samples did not belong to White, it would not compel the conclusion that White was not present. The court reasoned that White could have been convicted as a participant in the felony robbery even if he had not sexually assaulted the victim. The court determined that evidence showing that the semen samples did not belong to White would not have precluded the jury from finding him guilty of murder based on other evidence.
We reversed the court's denial of White's request for DNA testing.
In White, we also rejected the district court's reasoning that even if the testing results would exclude White as a contributor to the DNA samples, the evidence would be cumulative because the trial evidence failed to show that the semen samples belonged to White. We stated that a difference exists "between forensic evidence that fails to identify a person and DNA evidence that excludes the person."
Other courts have similarly reasoned that DNA evidence warrants a new trial when it compromises key evidence that the prosecutor used against the defendant at trial.
Like the conviction in White, the State's conviction of Parmar depended heavily upon the testimony of two eyewitnesses, one of whom was an accomplice. And the State's theory of the crime, as presented through these eyewitnesses, was that only Parmar assaulted Cox and that the only other participants in the crime were two women. Carrigan testified to seeing Parmar "`down by the top of Mr. Cox.'"
To recap, the testing showed that Cox's bedsheet had blood samples with DNA that matched Cox's DNA profile, indicating that he was on the bed at some point before his death. But the testing conclusively excluded Parmar as one of the male contributors to the mixed DNA found in two of those bloodstains. One of those mixed DNA bloodstains produced major and minor contributor profiles—and Parmar was neither contributor. These results are distinguishable from the test results in Pratt, which were inconclusive about the individual contributors' profiles.
So while the results did not exonerate Parmar, unlike our earlier cases, his DNA testing results tend to create a reasonable doubt that he was a participant. It is true that we cannot know with absolute certainty that the unidentified male's DNA was deposited on Cox's bedsheet when Cox was murdered. But the district court erred in reasoning that the presence of another male at the murder was too speculative to warrant a new trial.
Obviously, if the other male was not present at the murder, then his DNA was deposited on Cox's bedsheet before or after the murder. But the evidence at the hearing on Parmar's motion for vacation of judgment or a new trial did not support a finding that the other male's DNA was deposited on the sheet after the murder.
Unlike the facts presented in Pratt, the court reporter's affidavit stated that the trial evidence she found in a box was stored in separate bags. And no expert testified that improper handling of the evidence could have accounted for the laboratory's finding enough DNA from an unidentified male contributor to produce a separate minor contributor profile. "As a rule, a minor contributor to a mixture must provide at least 5% of the DNA for the mixture to be recognized."
Conversely, concluding that the other male could have deposited DNA on Cox's bedsheet before the murder in exactly the same spots where Cox's blood would later be found after he was murdered is more speculative than concluding that another male was present during the crime. Such a finding depends upon improbable coincidences. This is particularly true when the police found evidence of a struggle and items with probable bloodstains in both the front room and the bedroom.
Moreover, even if evidence excluding Parmar as a contributor to the bloodstains cannot prove that the witnesses' testimonies were false, it certainly makes their version of the facts less probable.
We conclude that because the testimonies of the State's eyewitnesses were the key evidence against Parmar at trial, DNA testing results that were probative of a factual situation contrary to the eyewitnesses' version of the facts and tended to create a reasonable doubt about Parmar's guilt probably would have produced a substantially different result if the results had been available at trial. We therefore reverse the district court's order and remand the cause with directions to the district court to grant Parmar a new trial. Because we have instructed the court to grant Parmar a new trial, we do not address his argument that the State's loss of evidence warrants a new trial.
REVERSED AND REMANDED FOR A NEW TRIAL.
GERRARD, J., not participating in the decision.
WRIGHT, J., not participating.
