State v. Wabashaw, A-16-251

In 2006 Elroy L. Wabashaw was convicted of robbery and use of a firearm; convictions and habitual-sentence affirmed on direct appeal.
Central contested evidence: coins recovered from the robbery scene that a state officer testified had been sent to the crime lab for fingerprint/DNA testing but which later appeared not to have been received or tested.
Wabashaw repeatedly raised the coins and alleged officer perjury in multiple postconviction filings, a coram nobis petition, and prior motions for new trial; earlier challenges were denied and previously affirmed on appeal.
On August 24, 2015 Wabashaw filed another motion for new trial claiming newly discovered evidence (officer perjury and concealment of coins) and surprise/accident prevented earlier discovery.
The district court denied the motion as repetitious and concluded the asserted evidence would not likely have produced a different outcome; Wabashaw appealed.

Issue	Plaintiff's Argument (Wabashaw)	Defendant's Argument (State)	Held
Timeliness / newly discovered evidence under § 29-2103(4)	Coins were concealed and officer perjured; could not have been discovered with reasonable diligence and are substantial enough that result may have differed	Motion filed beyond original 3-year limit; even under amended statute Wabashaw cannot meet both requirements (could not have discovered with diligence; evidence so substantial result may differ)	Motion barred by statute because Wabashaw failed to show evidence could not with reasonable diligence have been discovered and that it was so substantial a different result may have occurred; denial affirmed
New trial for accident or surprise under § 29-2101(3)	Concealment and inaccurate testimony were unforeseen and could not have been guarded against by ordinary prudence; filing was unavoidably prevented	Issues about coins and claimed testing were known or discoverable before trial; Wabashaw failed to show unavoidable prevention or required affidavits	Denied — same reasoning: the circumstances were known or discoverable and would not likely have changed the outcome

State v. Wabashaw, 274 Neb. 394, 740 N.W.2d 583 (affirming convictions and sentences)
State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (standard for alleged factual error on collateral attack)
State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (abuse-of-discretion standard for new-trial motions)
State v. Davis, 23 Neb. App. 536, 875 N.W.2d 450 (requirements for newly discovered evidence)
State v. Smith, 202 Neb. 501, 276 N.W.2d 104 (newly discovered evidence must be more than witness credibility)