State v. Cross, 297 Neb. 154

Background

In 2010 Shawn L. Cross was convicted after a jury trial of second-degree assault and use of a weapon; he was later adjudicated a habitual criminal and sentenced to 20–25 years.
Cross’ trial counsel, Richard DeForge, originally withdrew due to a conflict but was reappointed after the other matter closed; Cross raised the alleged conflict repeatedly (pretrial, on direct appeal, in postconviction, and in a prior new-trial motion).
Cross filed a pro se motion for new trial in December 2015 and again in March 2016, asserting newly discovered evidence (including a handwritten letter from his aunt alleging prosecutorial coercion, deposition excerpts of the victim admitting undocumented status, and renewed claims about DeForge’s conflict).
The 2015 legislative amendments to Neb. Rev. Stat. §§ 29-2102 and 29-2103 changed the timing and prehearing review rules for new-trial motions based on newly discovered evidence (now: within a reasonable time after discovery, but not more than 5 years after verdict unless two strict exceptions are shown).
The district court dismissed Cross’ 2016 motion without an evidentiary hearing under § 29-2102(2), finding his motion and supporting documents failed to set forth sufficient facts; Cross appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper standard of review when a trial court dismisses a new-trial motion without a hearing under § 29-2102(2)	Cross argued the court applied an incorrect standard and should have required a hearing	State argued the court properly dismissed under the statutory prehearing review	De novo review applies to dismissals under § 29-2102(2); abuse of discretion remains for denials after a hearing
Timeliness under § 29-2103(4) for motions filed >5 years after verdict	Cross claimed newly discovered evidence (aunt's letter, victim deposition, counsel conflict) justified tolling beyond 5 years	State argued the claimed evidence was not new or sufficiently substantial and could have been discovered earlier	Motion is untimely; Cross failed to meet both § 29-2103(4) requirements (could not show evidence couldn’t with reasonable diligence have been discovered, nor that evidence was so substantial a different result might occur)
Sufficiency of supporting evidence form under § 29-2102(1)	Cross relied on a handwritten letter and prior deposition excerpts as support for coercion and false testimony	State argued the letter is not one of the statutorily permitted forms (affidavit, deposition, or oral testimony) and deposition was pretrial, not "new" evidence	The aunt’s handwritten letter was insufficient form and substance; the deposition was not new evidence; dismissal without hearing appropriate
Reasserted conflict-of-interest claim	Cross argued the DeForge conflict was a continuing/new basis for new trial despite prior litigation	State noted the conflict issue had been raised and litigated previously, so there was no new evidence preventing earlier discovery	Reasserted conflict claim failed — no new evidence; time bar applies to claims that could have been discovered earlier

Key Cases Cited

State v. Stricklin, 290 Neb. 542 (2015) (discusses appellate review of new-trial rulings)
State v. Draper, 289 Neb. 777 (2015) (new-trial/postconviction standards and timeliness considerations)
State v. Archie, 273 Neb. 612 (2007) (trial judge’s advantage in assessing evidence and verdict relations)
State v. Nolan, 292 Neb. 118 (2015) (prehearing review standards in postconviction context)
State v. Cook, 290 Neb. 381 (2015) (de novo review for dismissal of postconviction motions without hearing)
State v. Hessler, 288 Neb. 670 (2014) (discussion of successive motions postconviction/new-trial context)
State v. Merchant, 285 Neb. 456 (2013) (precedent on newly discovered evidence and new-trial motions)