State v. Cross, 297 Neb. 154

Shawn L. Cross was convicted by a jury in March 2010 of second-degree assault and use of a weapon; the court later imposed habitual offender sentences totaling 20–25 years.
Cross’s original trial counsel, Richard DeForge, was permitted to withdraw pretrial due to a conflict (representing witness Elgie Iron Bear), then was reappointed after that conflict ended and represented Cross at trial and on direct appeal.
Cross pursued postconviction relief alleging ineffective assistance and the DeForge conflict; an evidentiary hearing was held and relief was denied (affirmed on appeal).
More than five years after the verdict, Cross filed two pro se motions for new trial under Neb. Rev. Stat. § 29-2101(5) (newly discovered evidence); the district court dismissed both motions without hearings under § 29-2102(2).
The second motion raised three purportedly newly discovered items: (1) a 2015 handwritten letter from Cross’s aunt alleging prosecutor coercion, (2) portions of a 2009 deposition showing the victim Pacheco was undocumented, and (3) the previously litigated DeForge conflict.
The Nebraska Supreme Court moved the case to its docket to interpret 2015 amendments to the new-trial statutes and reviewed de novo the district court’s dismissal without an evidentiary hearing.

Issue	Plaintiff's Argument (Cross)	Defendant's Argument (State)	Held
Standard of review for dismissal without a hearing under § 29-2102(2)	District court applied incorrect (abuse of discretion) standard	Dismissal under § 29-2102(2) should be reviewed de novo	Court held de novo review applies to dismissals without evidentiary hearings; abuse of discretion remains for denials after hearings
Timeliness when new-trial motion filed >5 years after verdict under § 29-2103(4)	Cross argued his asserted evidence qualified as "new" and met § 29-2103(4) requirements	State argued the evidence was not new or timely and thus barred	Court held both § 29-2103(4) requirements must be satisfied and Cross failed to meet them; motions untimely
Aunt’s 2015 letter alleging prosecutor coercion	Letter shows aunt testified falsely due to coercion; warrants new trial	Letter is not affidavit/deposition/oral testimony as required and, even if, shows reluctance not falsity; evidence could have been discovered earlier	Court held letter insufficient form and not shown to be undiscoverable with diligence; untimely and insufficient
Previously litigated DeForge conflict and Pacheco deposition evidence	Alleged conflict and Pacheco’s immigration status demonstrate trial unfairness; justify new trial	Conflict and 2009 deposition were known/previously litigated; deposition is pretrial material, not "new evidence"	Court held no new evidence for conflict; deposition predates trial and is not new; both grounds time-barred

State v. Draper, 289 Neb. 777 (discussing new-trial review and standards for motions)
State v. Stricklin, 290 Neb. 542 (illustrating traditional abuse-of-discretion review for motions for new trial)
State v. Nolan, 292 Neb. 118 (describing postconviction prehearing review and de novo appellate review)
State v. Cook, 290 Neb. 381 (same; postconviction review framework)
State v. Archie, 273 Neb. 612 (deference to trial judge on credibility and verdict-related matters)
State v. Merchant, 285 Neb. 456 (precedent on relief and standards for new trial/postconviction matters)
State v. Hessler, 288 Neb. 670 (contrasting successive motions doctrines and related procedural points)