State v. Cross, 297 Neb. 154

Background

Shawn L. Cross was convicted by a jury in March 2010 of second-degree assault and using a weapon to commit a felony; sentenced as a habitual criminal to 20–25 years.
Cross’s trial counsel Richard DeForge initially withdrew (conflict re: witness Elgie Iron Bear), then was reappointed after the Iron Bear matter closed; DeForge represented Cross at trial and on direct appeal.
Cross pursued postconviction relief in 2011 (raising ineffective assistance and conflict claims); an evidentiary hearing was held and relief was denied and affirmed on appeal.
Cross filed two pro se motions for a new trial (Dec. 2015 and Mar. 2016) alleging newly discovered evidence (witness coercion, victim’s immigration status, and counsel conflict). Both motions were filed more than five years after the 2010 verdict.
The district court dismissed the second motion without an evidentiary hearing under amended § 29-2102(2) after concluding the motion and supporting documents failed to set forth sufficient facts to warrant a hearing.
The Nebraska Supreme Court moved the case to its docket to interpret recent 2015 amendments to the new-trial statutes and reviewed de novo whether the dismissal without a hearing was proper.

Issues

Issue	Plaintiff's Argument (Cross)	Defendant's Argument (State)	Held
Proper standard of review for dismissal under § 29-2102(2) without hearing	Trial-court dismissal should be reviewed for abuse of discretion	Dismissal without hearing requires de novo review (court should review sufficiency of pleading)	De novo review applies when a dismissal occurs without an evidentiary 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 (aunt’s recantation letter; victim’s deposition; counsel conflict) made motion timely	Motion is untimely unless (1) evidence could not with reasonable diligence have been discovered and produced at trial, and (2) evidence is so substantial that a different result may have occurred	Motion untimely: Cross failed to satisfy the diligence/newness requirement for all asserted grounds; therefore time-barred
Sufficiency of supporting evidence to require hearing under § 29-2102(2)	Submitted documents (handwritten letter, 2009 deposition excerpts, prior record re conflict) were sufficient to show material rights affected	Supporting materials did not meet § 29-2102(1) form requirements or show new, previously undiscoverable, and materially outcome-altering evidence	Court held supporting materials insufficient; dismissal without hearing proper
Whether conflict-of-counsel claim presented new evidence justifying a late motion	Cross argued the DeForge conflict persisted and warranted new trial despite prior litigation	State noted the conflict claim had been raised repeatedly (pretrial, appeal, postconviction, prior new-trial motion) and no new evidence was offered	Conflict claim not new; cannot be the basis for a >5-year late new-trial motion

Key Cases Cited

State v. Stricklin, 290 Neb. 542 (discussing abuse-of-discretion review for new-trial denials)
State v. Draper, 289 Neb. 777 (precedent on new-trial and evidentiary standards)
State v. Archie, 273 Neb. 612 (explaining trial judge’s special perspective in assessing motions for new trial)
State v. Nolan, 292 Neb. 118 (postconviction pleading sufficiency and de novo review on dismissal without hearing)
State v. Cook, 290 Neb. 381 (postconviction procedural standards cited for comparison)
State v. Hessler, 288 Neb. 670 (addressing successive motions in related contexts)
State v. Merchant, 285 Neb. 456 (illustrative authority on newly discovered evidence and new-trial standards)