State v. Cross, 297 Neb. 154

Background

Shawn L. Cross was convicted by a jury in March 2010 of second-degree assault and use of a weapon; sentenced as a habitual criminal to 20–25 years. His convictions were affirmed on direct appeal.
Trial counsel Richard DeForge initially withdrew due to representing a potential witness (Elgie Iron Bear), was later reappointed after that case closed, and represented Cross at trial and on appeal.
Cross pursued postconviction relief in 2011 (including the DeForge conflict claim); an evidentiary hearing was held and relief was denied and affirmed on appeal.
In December 2015 and again in March 2016 (both more than 5 years after verdict), Cross filed pro se motions for new trial under Neb. Rev. Stat. § 29-2101(5) alleging newly discovered evidence (a letter from his aunt alleging prosecutorial coercion, deposition excerpts of the victim re: immigration status, and renewed conflict-of-interest claims).
The district court dismissed the March 2016 motion without an evidentiary hearing under § 29-2102(2) for failing to set forth sufficient supporting facts; Cross appealed.
The Nebraska Supreme Court reviewed statutory amendments effective 2015 imposing a five-year cutoff for newly discovered evidence motions (with narrow exceptions) and addressed the proper standard of review when a § 29-2102(2) dismissal occurs without a hearing.

Issues

Issue	Plaintiff's Argument (Cross)	Defendant's Argument (State)	Held
Proper standard of review for dismissal under § 29-2102(2) without hearing	Court should apply abuse of discretion as for ordinary new-trial denials	De novo review is appropriate because court must independently decide whether the motion and documents set forth sufficient facts	De novo review applies to § 29-2102(2) dismissals without hearing; abuse of discretion remains for denials after hearing
Timeliness under § 29-2103(4) for motions filed >5 years after verdict	Cross: his attachments (aunt’s letter, deposition excerpts, conflict materials) constitute newly discovered evidence excusing the 5-year limit	State: attachments are not new evidence or are not in permitted forms and do not show they could not have been discovered with reasonable diligence	Motion untimely: Cross failed to show evidence could not with reasonable diligence have been discovered and produced at trial; dismissal proper
Sufficiency of supporting evidence under § 29-2102(1)/(2)	Cross argued his aunt’s letter and other documents substantiate claims and warrant a hearing	State argued the materials do not meet statutory forms (affidavit/deposition/oral testimony) or substantively establish falsity/newness	Materials insufficient: aunt’s handwritten letter is not in required form and at best shows reluctance, not false testimony; deposition was pretrial and not new; conflict claim was previously litigated
Whether district court had to hold an evidentiary hearing	Cross contended a hearing was required to resolve credibility and conflict issues	State maintained statutory screening permits dismissal when motion/supporting documents fail to set forth sufficient facts	Court affirmed dismissal without hearing because statutory prehearing review showed insufficient facts to require a hearing

Key Cases Cited

State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (discussing abuse of discretion review for motions for new trial)
State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (new-trial and evidentiary-hearing principles)
State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (trial judge’s advantage in assessing witnesses and verdict)
State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (procedural discussion distinguishing postconviction successive motions)
State v. Nolan, 292 Neb. 118, 870 N.W.2d 806 (postconviction screening and de novo appellate review)
State v. Cook, 290 Neb. 381, 860 N.W.2d 408 (postconviction review standards)
State v. Merchant, 285 Neb. 456, 827 N.W.2d 473 (new-trial jurisprudence referenced for timeliness/substance)