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; he was sentenced as a habitual criminal to 20–25 years. His convictions were affirmed on direct appeal.
Cross’s trial counsel, Richard DeForge, had an early conflict (representation of a listed witness, Elgie Iron Bear), withdrew, and was later reappointed after that other case closed; Cross raised the conflict repeatedly (pretrial, direct appeal, postconviction).
Cross filed a pro se postconviction motion (ineffective assistance/conflict) in 2011; an evidentiary hearing was held and relief was denied and affirmed on appeal.
In December 2015 and again in March 2016 Cross filed pro se motions for new trial under § 29-2101(5) (newly discovered evidence), both filed more than 5 years after verdict and after the 2015 amendments to the new-trial statutes.
The district court dismissed the second motion without an evidentiary hearing under amended § 29-2102(2) for failing to set forth sufficient facts; Cross appealed.
The Supreme Court addressed (1) the proper appellate standard for dismissals without a hearing under § 29-2102(2) and (2) whether Cross’s asserted newly discovered evidence met the timeliness and substance requirements of amended § 29-2103(4).

Issues

Issue	Plaintiff's Argument (Cross)	Defendant's Argument (State)	Held
Proper standard of review for dismissal of new-trial motion without hearing under § 29-2102(2)	Trial court abused discretion by dismissing without hearing; wrong standard applied	Dismissal under § 29-2102(2) is proper when filings fail to set forth sufficient facts	Court held de novo review applies to appeals of § 29-2102(2) dismissals; abuse-of-discretion remains for denials after hearings
Timeliness under amended § 29-2103(4) for motions filed >5 years after verdict	Cross claimed newly discovered evidence (aunt’s recantation/claim of prosecutor coercion; Pacheco’s immigration status; DeForge conflict) justified tolling the 5-year bar	State argued Cross’s materials did not show evidence was newly discovered or impossible to discover with reasonable diligence, nor that evidence was so substantial a different result may have occurred	Court held Cross failed both timeliness/substance requirements; motions were time-barred
Sufficiency of supporting evidence under § 29-2102(1) (form of proof)	Offered a handwritten letter by aunt and pretrial deposition excerpts	State argued the letter was not in permitted form (affidavit/deposition/oral testimony) and deposition was not new	Court held the letter was inadequate form and content; deposition was not new evidence; supporting materials insufficient
Whether conflict-of-interest claim constituted new evidence	Cross argued conflict persisted/newly discovered facts justify new trial	State noted conflict was repeatedly raised at trial, on direct appeal, and in postconviction proceedings — no new evidence	Court held no new evidence regarding conflict; claim not timely under § 29-2103(4)

Key Cases Cited

State v. Draper, 289 Neb. 777 (2015) (discussing standards for new-trial review)
State v. Stricklin, 290 Neb. 542 (2015) (abuse-of-discretion review for new-trial denials after hearing)
State v. Archie, 273 Neb. 612 (2007) (trial judge’s special perspective on verdict and witnesses)
State v. Nolan, 292 Neb. 118 (2016) (framework for prehearing review in postconviction proceedings)
State v. Cook, 290 Neb. 381 (2015) (appellate review of postconviction dismissal)
State v. Merchant, 285 Neb. 456 (2013) (new-trial principles)
State v. Hessler, 288 Neb. 670 (2014) (successive motions context)