State v. Pratt

did not sustain that burden. And the Klines, in response to
Farmers’ allegations in its motion for summary judgment, pro-
vided ample evidence to show that Blade was the owner of the
Suburban. An agent with American Family testified by affidavit
that American Family “issued a policy of insurance to Blade
. . . insuring a 1985 GMC Suburban.” Further, the Suburban was
titled in the name of Blade. Although Farmers argues that the
issue of who owns the Suburban has not been conceded, view-
ing the evidence presented, we can only conclude that Blade
is the owner of the Suburban. By not presenting any evidence
that would put the ownership of the vehicle into controversy,
Farmers took the risk that the not-owned-but-insured exclusion
would be held void and that the ownership question would be
decided against it in its motion for summary judgment.
Thus, reviewing the evidence in the light most favorable
to the nonmoving party, we agree with the Court of Appeals
that Farmers did not meet its burden for summary judgment
to show the Suburban was owned by David, rather than Blade.
As such, the Court of Appeals was correct in holding that there
was no material issue of fact that the owned-but-not-insured
exclusion does not apply.
VI. CONCLUSION
We conclude that the not-owned-but-insured exclusion vio-
lates the UUMICA. Therefore, we affirm the decision of the
Court of Appeals, which reversed the district court’s entry
of summary judgment in favor of Farmers and remanded the
cause for further proceedings.
A ffirmed.
STATe v. prATT 	887
Cite as 277 Neb. 887
StAte of NebrASkA, Appellee , v.
JuNeAl dAle prAtt, AppellANt.
766 N.W.2d 111
Filed June 5, 2009. 	No. S-08-279.
1. Judgments: Statutes: Appeal and Error. Statutory interpretation is a matter of
law in connection with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determination made by the
trial court.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

2. DNA Testing: Appeal and Error. In an appeal from a proceeding under the
DNA Testing Act, Neb. rev. Stat. §§ 29-4116 to 29-4125 (reissue 2008), the trial
court’s findings of fact will be upheld unless such findings are clearly erroneous.
3. Motions for New Trial: DNA Testing: Appeal and Error. A motion for new
trial based on newly discovered exculpatory evidence obtained pursuant to the
DNA Testing Act is addressed to the discretion of the trial court. Absent an abuse
of discretion, the court’s determination will not be disturbed.
4. Motions to Vacate: DNA Testing: Appeal and Error. A court may vacate and
set aside the judgment in circumstances where, under the DNA Testing Act, the
DNA testing results, when considered with the rest of the evidence of the case
in the underlying judgment, show a complete lack of evidence to establish an
essential element of the crime charged.
5. Motions for New Trial: DNA Testing. To warrant a new trial, the court must
determine that newly discovered exculpatory evidence obtained pursuant to the
DNA Testing Act must be of such a nature that if it had been offered and admit-
ted at the former trial, it probably would have produced a substantially differ-
ent result.
6. Actions: Appeal and Error. The law-of-the-case doctrine reflects the principle
that an issue that has been litigated and decided in one stage of the case should
not be relitigated at a later stage.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
W. ruSSell boWie iii, Judge. Affirmed.
James 	r. 	Mowbray 	and 	Jerry 	L. 	Soucie, 	of 	Nebraska
Commission on public Advocacy, for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
H eAvicAN, 	c.J., 	WrigHt, 	coNNolly, 	gerrArd, 	StepHAN,
mccormAck, and miller-lermAN, JJ.
H eAvicAN, C.J.
INTrODUCTION
Juneal Dale pratt appeals from the Douglas County District
Court’s denial of his motion for relief under Nebraska’s DNA
Testing Act (the Act), Neb. rev. Stat. §§ 29-4116 to 29-4125
(reissue 2008). In 1975, pratt was convicted of sodomy, rape,
and two counts of robbery. His convictions were affirmed on
direct appeal,1 and we later denied him postconviction relief.2
1 State v. Pratt, 197 Neb. 382, 249 N.W.2d 495 (1977).
2 State v. Pratt, 224 Neb. 507, 398 N.W.2d 721 (1987).
888 	277 NeBrASKA repOrTS

In June 2004, pratt filed a motion under the Act to have
items still in evidence tested for the presence of DNA. After
those items were tested, pratt sought a certification from the
district court authorizing an out-of-state deposition with a sub-
poena duces tecum of one of the victims in order to obtain a
known sample of her DNA.
After the district court granted pratt’s motion, the State
appealed. We found that we did not have jurisdiction because
the certification was not a final, appealable order, and we dis-
missed the appeal.3 The district court then vacated its order,
found that pratt could not collect a known DNA sample from
his victim, and denied pratt’s motion to vacate his sentence
or, in the alternative, motion for new trial. pratt appeals the
decision of the district court, arguing that it had no author-
ity to vacate its prior certification. pratt also argues that the
DNA evidence was enough to exonerate him or, alternatively,
that the evidence was exculpatory and warranted a new trial.
We affirm.
BACKGrOUND
The facts of the case can be found in our prior decisions,4
but because pratt is now arguing that the DNA evidence is at
least exculpatory, we revisit the pertinent facts here. The vic-
tims in this case both testified at trial that they had separately
picked pratt out of a three-man lineup. each victim also identi-
fied pratt in a voice lineup, without any visual contact with the
persons participating in the voice lineup. Both victims testi-
fied that they recognized pratt’s shoes during the lineup as the
shoes of the man who had assaulted them. One victim testified
that the shoes were distinctive because they were black patent
leather with “suede in the middle.” In addition, pratt was wear-
ing a ring at the lineup that both victims testified belonged to
one of them.
Another 	robbery 	victim 	testified 	that 	approximately 	1
week after the first attack, pratt had robbed her in the same
hotel where the first attack took place. Several police officers
3 State v. Pratt, 273 Neb. 817, 733 N.W.2d 868 (2007).
4 Pratt, supra note 3; Pratt, supra note 2; Pratt, supra note 1.
STATe v. prATT 	889
Cite as 277 Neb. 887

testified regarding the chase and apprehension of pratt after the
second robbery.
pratt testified in his own defense and gave an alibi for the
sexual assault. pratt claimed to have had an injured leg at the
time and therefore had been physically incapable of the attack.
pratt also testified that he was at home on the evening of the
attack. This testimony contradicted statements pratt gave to
police at the time of his arrest. Both pratt’s mother and his
live-in girlfriend testified in his defense, confirming his alibi.
pratt’s sister testified that the ring he had been wearing was
her ring and not the victim’s ring. She further testified that
pratt often wore her clothing and jewelry. pratt claimed that
he was at the hotel at the time of the second robbery, because
he was renting a room in order to have sex with a differ-
ent girlfriend.
On June 9, 2004, pratt filed an amended motion under the
Act to have items still in evidence from the sexual assault
tested for DNA. The motion was granted, and the clothing that
had been worn by the victims at the time of the attack was
tested for biological material. After the testing was conducted,
pratt sought a certification from the Douglas County District
Court for a subpoena duces tecum to compel a DNA sample
from one of the victims. pratt claimed that with the victim’s
DNA, the DNA testing laboratory would be able to construct a
complete profile that would result in his exoneration.
The district court granted the certification, and the State
appealed, claiming that pratt did not have the right to compel
the victim to give a DNA sample under the Act. We determined
that we did not have jurisdiction because the certification from
the district court was not a final, appealable order and dis-
missed the case.5 Two concurring opinions suggested that pratt
did not have the right to obtain the victim’s DNA through a
subpoena duces tecum under the Act.6
After the case was sent back to the district court, the certi-
fication was vacated and a hearing was held on pratt’s motion
5 Pratt, supra note 3.
6 Id. (Heavican, C.J., concurring) (Miller-Lerman, J., concurring; Stephan,
J., joins).
890 	277 NeBrASKA repOrTS

to vacate his convictions under the Act or, in the alternative,
motion for new trial. pratt claimed that the DNA evidence,
considered along with his alibi defense from trial, was suf-
ficient to warrant vacating his convictions or, alternatively,
to award him a new trial. pratt claimed that the lineup in
which he participated was highly suggestive and that the vic-
tims’ identification, both in court and in the lineup, could not
be trusted.
Kelly Duffy, a medical technologist, testified regarding the
DNA results. Duffy stated that the results were inconclusive,
that it was impossible to know when or how the DNA was
deposited on the shirts, and that there was no evidence that
any of the DNA was contributed from sperm, although it could
have been. Duffy also testified that seven items of clothing,
including both victims’ clothing as well as pratt’s clothing,
were stored in the same box. The clothing was not separately
packaged or bagged in the box. Duffy testified that the DNA
detected could be from epithelial cells and that handling the
clothing could be enough to deposit the DNA.
After preliminary testing, the two shirts worn by the victims
at the time of the attack were found to have “stains” that might
contain DNA. None of the stains were found to be presump-
tively from semen. The stains, although invisible to the naked
eye, fluoresced under a particular kind of light used during the
testing of the clothing. A red, white, and blue shirt worn by
one victim at the time of the attack had eight different stained
areas, labeled B1 through B8. A yellow flowered shirt worn by
the other victim had five stained areas, C1 through C5a.
Two of the areas on the red, white, and blue shirt, B4 and
B7, showed the presence of male DNA, and one area, B1, was
inconclusive as to whether male DNA was present. Area B4
may or may not have been a mixture of one or more individ-
uals, and if it was not a mixture, then pratt would be excluded.
Area B7 was a mixture of more than one individual’s DNA,
and at least one of those individuals was male. The results were
inconclusive as to how many males contributed to the mixture,
but at least one of those males was not pratt.
partial DNA profiles were obtained from all five stained areas
on the yellow flowered shirt. Area C4 showed the presence of
STATe v. prATT 	891
Cite as 277 Neb. 887

male DNA, while area C5 showed the possible presence of
male DNA. Area C4 was a mixture of at least two people, one
of them male, and pratt could not be excluded as a contributor.
Area C5 was also a mixture of at least two people, possibly
more than one female and/or more than one male. pratt could
not be excluded as a contributor at area C5.
After the hearing, the district court denied pratt’s motion
to vacate his conviction as well as his motion for new trial. In
its order, the district court cited the fact that the evidence was
stored in such a way that it was impossible to tell how or when
the DNA was deposited on the clothing. The district court
found that the results of the DNA testing were largely incon-
clusive and that while the testing did not conclusively show
that pratt was a contributor, neither did it eliminate him as a
contributor. pratt appeals the denial of his motions.
ASSIGNMeNTS OF errOr
pratt assigns, restated and consolidated, that the district court
erred by (1) vacating the subpoena duces tecum, (2) refusing to
vacate pratt’s convictions based on the DNA evidence, and (3)
failing to order a new trial based on the DNA evidence.
STANDArD OF reVIeW
[1] Statutory interpretation is a matter of law in connection
with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determina-
tion made by the trial court.7
[2,3] In an appeal from a proceeding under the Act, the
trial court’s findings of fact will be upheld unless such find-
ings are clearly erroneous.8 A motion for new trial based on
newly discovered exculpatory evidence obtained pursuant to
the Act is addressed to the discretion of the trial court. Unless
an abuse of discretion is shown, the court’s determination will
not be disturbed.9
7 Japp v. Papio-Missouri River NRD, 271 Neb. 968, 716 N.W.2d 707
(2006).
8 State v. Poe, 271 Neb. 858, 717 N.W.2d 463 (2006).
9 See id.
892 	277 NeBrASKA repOrTS

[4] A court may vacate and set aside the judgment in cir-
cumstances where, under the Act, the DNA testing results,
when considered with the rest of the evidence of the case in
the underlying judgment, show a complete lack of evidence to
establish an essential element of the crime charged.10
[5] To warrant a new trial, the court must determine that
newly discovered exculpatory evidence obtained pursuant to
the Act must be of such a nature that if it had been offered and
admitted at the former trial, it probably would have produced a
substantially different result.11
ANALYSIS
diStrict court HAd AutHority to
vAcAte itS previouS order
pratt first contends that the district court did not have the
right to vacate its certification for a subpoena duces tecum for
the out-of-state victim’s DNA. pratt claims that because of the
law-of-the-case doctrine, the issue of whether he had a right to
the victim’s DNA had already been litigated and that the dis-
trict court did not have the authority to change its order. pratt’s
argument fails for two reasons.
[6] First, the law-of-the-case doctrine reflects the principle
that an issue that has been litigated and decided in one stage of
the case should not be relitigated at a later stage.12 The doctrine
applies with greatest force when an appellate court remands a
case to an inferior tribunal. Upon remand, a district court may
not render a judgment or take action apart from that which the
appellate court’s mandate directs or permits.13 A decision that
could have been challenged at a previous stage of litigation,
which was not challenged, is deemed to become the law of
the case.14
10 See State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004).
11 Buckman, supra note 10.
12 County of Sarpy v. City of Gretna, 276 Neb. 520, 755 N.W.2d 376
(2008).
13 Id.
14 Id.
STATe v. prATT 	893
Cite as 277 Neb. 887

In this case, the State had earlier appealed the district court’s
certification of a subpoena duces tecum and we determined that
we did not have jurisdiction because it was not a final, appeal-
able order.15 The law-of-the-case doctrine does not apply under
these circumstances, where we did not decide the substance of
the matter but instead dismissed the appeal, sending the cause
back to the district court. Therefore, the district court retained
the authority to vacate or modify its decision granting a certifi-
cation for a subpoena of the out-of-state victim.
We have since decided the issue of whether a person may
obtain a DNA sample from a third party under the Act. In State
v. McKinney,16 we stated that Nebraska has no rule or statute
that would authorize a defendant to collect DNA from a third
party. even if having the victim’s DNA would help interpret
the testing results, pratt has not established a right to such.
pratt’s first assignment of error is without merit.
dNA evideNce doeS Not exoNerAte
or exculpAte prAtt
pratt also argues that the DNA evidence was enough to
exonerate him or, in the alternative, that the evidence was
sufficiently exculpatory to warrant a new trial. Associated
with this claim is pratt’s assertion that the district court erred
when it determined there was a high probability the evi-
dence had been compromised. We find no error in the district
court’s decision.
Section 29-4119 of the Act 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.”
Under § 29-4123, the court may, on its own motion or after a
hearing, vacate a judgment or order a new trial when the results
exculpate or exonerate the defendant.
In an appeal from a proceeding under the Act, the trial
court’s findings of fact will be upheld unless such findings
are clearly erroneous. A motion for new trial based on newly
discovered exculpatory evidence obtained pursuant to the Act
15 See Pratt, supra note 3.
16 State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007).
894 	277 NeBrASKA repOrTS

is addressed to the discretion of the trial court. Unless an
abuse of discretion is shown, the court’s determination will not
be disturbed.17
We have previously addressed what it means to have excul-
patory or exonerating evidence.18 In Buckman,19 we stated
that exonerating evidence was evidence that, when considered
with the circumstances of the original trial and judgment,
showed a complete lack of evidence to establish an essential
element of the crime charged. We also stated that exculpa-
tory evidence is evidence that, if it had been presented at the
original trial, would probably have produced a substantially
different result.
The DNA evidence in this case neither exonerates nor excul-
pates pratt. First, as the district court noted, the evidence was
not stored in such a way as to preserve the integrity of any
DNA evidence. Although male DNA that might not be from
pratt was found on the clothing, as Duffy testified, it was
impossible to tell when or how the DNA was deposited on the
clothing. The articles of clothing were stored in a box without
being separately packaged. evidence stickers were present on
the clothing. Duffy testified that DNA may have come from
epithelial cells deposited after handling the clothing. We review
factual findings of the district court for clear error, and we
find none.
Second, as the district court noted in its order, the DNA
testing results are, at best, inconclusive. At no point did Duffy
testify that any of the male DNA on the clothing conclusively
excluded pratt from being a donor. The most Duffy could
say was that one of the stains might be a mixture of male
and female DNA and that if it was a mixture, pratt would be
excluded as the male donor. For two other stains determined
to be a mixture of male and female DNA, pratt could not be
excluded as a donor. Therefore, the DNA evidence does not
meet our standards for exculpatory or exonerating evidence.
17 Poe, supra note 8.
18 Id.; Buckman, supra note 10; State v. Bronson, 267 Neb. 103, 672 N.W.2d
244 (2003).
19 Buckman, supra note 10.
STATe v. prATT 	895
Cite as 277 Neb. 887

This is particularly so given the strength of the eyewitness
testimony presented against pratt. Although pratt suggests such
testimony is unreliable, we disagree. each victim separately
identified pratt by sight and by the sound of his voice, and both
victims testified that they recognized the shoes pratt had worn
during the robbery and the lineup. Both victims testified that
the ring worn by pratt at the lineup was the ring that he had
stolen from one of the victims. And because pratt testified in
his own defense, the jury had the opportunity to weigh the vic-
tims’ testimony against pratt’s testimony, and it clearly found
the victims’ testimony to be more persuasive.
Given the inconclusive nature of the DNA evidence and the
strength of the eyewitness testimony at trial, the results of the
DNA testing would be unlikely to produce a substantially dif-
ferent result if pratt were granted a new trial.20 pratt’s second
assignment of error is also without merit.
CONCLUSION
The law-of-the-case doctrine clearly does not apply to pratt’s
case, and the district court had the power to vacate its certifi-
cation for a subpoena duces tecum. Furthermore, having since
decided McKinney,21 our law is settled that the Act does not
give pratt the right to compel DNA testing of a third party.
Finally, the DNA evidence as presented by Duffy was incon-
clusive, because pratt could not be excluded or included as a
donor. pratt is not entitled to have his convictions vacated or to
receive a new trial.
A ffirmed.
20 Buckman, supra note 10.
21 McKinney, supra note 16.
896 	277 NeBrASKA repOrTS