State v. Cross, 297 Neb. 154

Background

In 2010 Shawn L. Cross was convicted by a jury of second-degree assault and use of a weapon; he was later sentenced as a habitual criminal to 20–25 years.
Cross’s trial counsel Richard DeForge initially withdrew for a conflict (representation of a listed witness, Elgie Iron Bear), then was reappointed after that matter closed; Cross raised the conflict repeatedly on appeal and in postconviction proceedings.
Cross filed multiple postconviction/new-trial pleadings. A 2011 postconviction petition alleging ineffective assistance/conflict was denied after an evidentiary hearing and affirmed on appeal.
In December 2015 and March 2016 (both more than five years after the 2010 verdict) Cross filed pro se motions for new trial under Neb. Rev. Stat. § 29-2101(5) claiming newly discovered evidence (including alleged prosecutor tampering of Cross’s aunt, immigration status and false testimony of the victim, and the DeForge conflict).
The district court dismissed the March 2016 motion without an evidentiary hearing under the amended § 29-2102(2) as the motion and supporting documents failed to set forth sufficient facts; Cross appealed.
The Nebraska Supreme Court reviewed statutory changes effective 2015 (L.B. 245) and affirmed, holding Cross’s motion was untimely and insufficient to require a hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper standard of review when a new-trial motion is dismissed without a hearing under § 29-2102(2)	Cross argued the trial court applied incorrect review (implied: should be abuse of discretion)	State argued dismissal under § 29-2102(2) is subject to appellate review (court need not defer)	De novo review applies to appellate review of dismissals under § 29-2102(2); abuse of discretion remains for denials after evidentiary hearings.
Timeliness under § 29-2103(4) for motions filed >5 years after verdict	Cross argued his newly discovered evidence (aunt’s letter, victim deposition, counsel conflict) justified filing after 5 years	State argued the motion failed both timeliness prongs: (1) could not have been discovered with reasonable diligence and (2) evidence so substantial a different result may have occurred	Motion untimely: Cross failed to show with reasonable diligence the evidence could not have been discovered; thus § 29-2103(4) not satisfied.
Sufficiency of supporting evidence to require an evidentiary hearing under § 29-2102(2)	Cross relied on a handwritten letter from his aunt, a 2009 deposition excerpt, and prior record about conflict	State argued the materials were not the statutorily required forms (affidavits/depositions/oral testimony) and, even if considered, did not plead facts that if true would materially affect substantial rights	Dismissal without hearing was proper: supporting documents did not set forth sufficient facts to trigger a hearing.
Re-litigation of counsel conflict claim after prior proceedings	Cross contended prior litigation of the conflict did not bar a new-trial motion; framed it as newly discovered evidence	State pointed out the conflict claim was previously raised at trial, on direct appeal, in postconviction, and in an earlier new-trial motion; no new evidence was presented	The conflict claim is not a basis for a >5-year new-trial motion because no new evidence was shown that could not have been discovered earlier.

Key Cases Cited

State v. Stricklin, 290 Neb. 542 (2015) (general standards on new-trial review)
State v. Draper, 289 Neb. 777 (2015) (new-trial and related procedural principles)
State v. Archie, 273 Neb. 612 (2007) (trial judge’s advantage in assessing post‑trial motions)
State v. Nolan, 292 Neb. 118 (2015) (standards for preliminary review of postconviction motions)
State v. Cook, 290 Neb. 381 (2015) (de novo review where no evidentiary hearing is required)
State v. Hessler, 288 Neb. 670 (2014) (successive motions and procedural context)
State v. Merchant, 285 Neb. 456 (2013) (new-trial jurisprudence on sufficiency of supporting material)