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 original trial counsel, Richard DeForge, withdrew for conflict (representation of a listed witness, Elgie Iron Bear), then was reappointed after that separate matter closed; DeForge 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 denied, and the Court of Appeals affirmed.
In December 2015 and March 2016 (both more than 5 years after the verdict), Cross filed pro se motions for new trial asserting newly discovered evidence: (1) a letter from his aunt alleging prosecutor intimidation, (2) pretrial deposition excerpts of the victim (Pacheco) showing immigration status, and (3) renewed claims about DeForge’s conflict.
The district court, relying on the 2015 amendments to Neb. Rev. Stat. §§ 29-2102 and 29-2103, dismissed the March 2016 motion without an evidentiary hearing under § 29-2102(2). Cross appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper standard of review when a trial court dismisses a new-trial motion without a hearing under § 29‑2102(2)	Cross argued the court used an incorrect standard and should have treated denial as abuse of discretion	State argued trial-court dismissal under § 29‑2102(2) is appropriately reviewed for correctness in light of the court’s threshold factual screening role	Court held de novo review applies to dismissals without an evidentiary hearing; abuse-of-discretion remains for denials after a hearing
Timeliness of a new-trial motion filed >5 years after verdict under § 29‑2103(4)	Cross contended his supporting materials showed newly discovered evidence that could not have been discovered with reasonable diligence and were substantial enough to possibly change the verdict	State argued Cross’s materials failed both timeliness prongs (discoverability with reasonable diligence; substantially likely to change result)	Court held both prongs must be satisfied; Cross failed to show newness and reasonable diligence for each ground, so motions were time-barred
Whether the district court erred in dismissing without an evidentiary hearing under § 29‑2102(2)	Cross argued his supporting documents warranted a hearing (e.g., aunt’s letter, deposition excerpts)	State argued the documents did not set forth sufficient facts in permitted forms (affidavits/depositions/oral testimony) or show timeliness under § 29‑2103(4)	Court held dismissal without a hearing was proper because the motion and supporting documents failed to set forth sufficient facts to meet § 29‑2103(4)
Merits of specific new-evidence claims (aunt tampering; victim’s immigration status; DeForge conflict)	Cross asserted (a) aunt was coerced by prosecutor and testified falsely; (b) victim lacked lawful status so should not have testified; (c) DeForge had an ongoing conflict	State showed (a) the aunt’s handwriting letter was not in authorized form and at most showed reluctance; (b) deposition evidence was pretrial, not newly discovered; (c) conflict claim was previously raised and not newly discovered	Court held all three claims failed: aunt’s letter insufficient and discoverable earlier; deposition was not new; no new evidence on conflict—thus none meet § 29‑2103(4)

Key Cases Cited

State v. Stricklin, 290 Neb. 542 (2015) (discussing historical abuse-of-discretion review for new-trial denials)
State v. Draper, 289 Neb. 777 (2015) (new-trial and related procedural standards)
State v. Archie, 273 Neb. 612 (2007) (deference to trial judge who saw witnesses and evidence)
State v. Nolan, 292 Neb. 118 (2015) (postconviction prehearing screening standard and de novo appellate review)
State v. Merchant, 285 Neb. 456 (2013) (procedural discussion relevant to motions for new trial)
State v. Hessler, 288 Neb. 670 (2014) (context on successive filings and relief limitations)