State v. Cross
297 Neb. 154
| Neb. | 2017Background
- Shawn L. Cross was convicted in 2010 of second-degree assault and use of a weapon; sentenced as a habitual criminal to 20–25 years.
- His trial counsel, Richard DeForge, initially withdrew for a conflict (representation of a listed witness, Elgie Iron Bear), then was reappointed after that case closed and represented Cross at trial and on direct appeal.
- Cross pursued postconviction relief (raising ineffective assistance and the DeForge conflict); an evidentiary hearing was held and relief was denied; appellate review affirmed.
- More than 5 years after the verdict Cross filed successive pro se motions for new trial under Neb. Rev. Stat. § 29-2101(5) asserting newly discovered evidence (three categories: aunt’s coerced testimony, victim Pacheco’s testimony/immigration status, and DeForge conflict).
- The district court dismissed the second motion without an evidentiary hearing under amended § 29-2102(2) for failure to set forth sufficient facts; Cross appealed.
Issues
| Issue | Plaintiff's Argument (Cross) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Standard of review for dismissal without hearing under § 29-2102(2) | Trial-court dismissal should be reviewed for abuse of discretion | Dismissal without hearing is appropriate reviewable under a different standard | De novo review applies when appellate court reviews dismissal under § 29-2102(2) without a hearing; abuse of discretion remains for denials after hearings |
| Timeliness of motion filed >5 years after verdict under § 29-2103(4) | Cross claimed newly discovered evidence satisfied exceptions allowing >5 years | State argued Cross failed both statutory requirements (couldn't show evidence was undiscoverable with diligence; evidence not so substantial to change result) | Motion untimely: Cross failed to show evidence could not with reasonable diligence have been discovered and produced at trial; dismissal proper |
| Aunt’s alleged coerced/fabricated testimony | Letter from aunt (2015) showed prosecutor coerced her and she testified falsely | Letter was not in proper evidentiary form (affidavit/deposition/oral testimony required) and at best showed reluctance, not fabrication; no showing it was undiscoverable with diligence | Dismissed: insufficient form and timeliness; first § 29-2103(4) requirement not met |
| Pacheco’s testimony and immigration status | Transcripts show Pacheco admitted lacking papers; his testimony was false or inadmissible | Deposition was pretrial (not "new"); not so substantial to change result | Dismissed: not new evidence and not sufficiently substantial |
| DeForge conflict claim | Cross reasserted prior conflict-of-interest claim as newly discovered | Conflict was previously raised repeatedly; no new evidence shown that was undiscoverable at trial | Dismissed: no new evidence; time bar applies |
Key Cases Cited
- State v. Stricklin, 290 Neb. 542 (discussing deference in new-trial rulings)
- State v. Draper, 289 Neb. 777 (new-trial and postconviction review principles)
- State v. Archie, 273 Neb. 612 (trial judge's perspective and discretion in reviewing evidence vs. verdict)
- State v. Nolan, 292 Neb. 118 (postconviction screening and de novo appellate review when no evidentiary hearing is held)
- State v. Merchant, 285 Neb. 456 (standards for evaluating newly raised claims)
- State v. Hessler, 288 Neb. 670 (discussion of successive motions and procedure)