Friday, January 20, 2006

Nebraska Supreme Court rules no double jeopardy issue when Prosecutor moved to amend DWI complaint after swearing in first witness to reflect location of offense; Supremes also decline to order DNA testing on firearm defendant used to shoot crime victim in murder case State v. Furrey, S-04-1158, 270 Neb. 965 State v. Dean, S-05-626, 270 Neb. 972 In 2 procedural criminal cases the Nebraska Supreme Court finds no double jeopardy problem in allowing the prosecutor to amend the DWI complaint to reflect the location of the offense (Furrey). In Dean the supreme court found no abuse of discretion in refusing to order DNA testing of firearm used in murder because testing would have been inconclusive. PLus, the defendant at trial had admitted using the weapon
Furrey: Here, the first complaint correctly stated all of the statutory elements of the offense. It was brought before the judge of the county in whichthe offense was allegedly committed, and it described the offense as a Class Wmisdemeanor. In fact, other than the correction that Furrey was simply within the county and not within the city limits; the setting forth that the deputy county attorney, rather than the special city attorney, was bringing forth the complaint; and the citation to § 60-6,196(2)(a) as the offense, rather than the city ordinance, the two complaints are identical. Despite the fact that Furrey never alleged that he had been prejudiced or misled by the errors of the original complaint, the county court granted Furrey a continuance and allowed him to withdraw his prior plea. Under these circumstances, it cannot be said that the amended complaint either changed the offense charged or prejudiced Furrey's substantial rights. Thus, there was no error in allowing the amended complaint, and the amendment was simply a continuation of a single trial.
even assuming a biological sample did exist and that Dean's DNA was absent from that sample, on the record before us, it would be mere speculation to conclude that the absence of Dean's DNA on the firearm and ammunition would exclude him as being the person who fired the fatal shot. This is particularly so in view of the persuasive and undisputed trial evidence to the contrary. See State v. Lotter, 266 Neb. at 770, 669 N.W.2d at 448 (holding that "mere speculation" to conclude that absence of murder victim's blood on defendant's clothing and presence on accomplice's clothing would establish that accomplice and not defendant had fired fatal shots). We conclude that the trial court did not abuse its discretion in refusing DNA testing because even if such tests produced the result that Dean predicts, the result would not be exculpatory.

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