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State v. Cross

Supreme Court of Nebraska

July 14, 2017

State of Nebraska, appellee,
v.
Shawn L. Cross, appellant.

         1. Criminal Law: Motions for New Trial: Evidence: Appeal and Error. A de novo standard of review applies when an appellate court is reviewing a trial court's dismissal of a motion for a new trial under Neb. Rev. Stat. § 29-2102(2) (Reissue 2016) without conducting an evidentiary hearing. But a trial court's denial of a motion for new trial after an evidentiary hearing is reviewed for an abuse of discretion.

         2. Criminal Law: Motions for New Trial: Evidence: Time. When a motion for new trial is filed more than 5 years after the date of the verdict, there are two requirements that must be satisfied for the motion to be timely under Neb. Rev. Stat. § 29-2103(4) (Reissue 2016): First, the motion and supporting documents must show the new evidence could not with reasonable diligence have been discovered and produced at trial. Second, the evidence must be so substantial that a different result may have occurred.

         3. ___: ___: ___: ___. The timeliness requirements under Neb. Rev. Stat. § 29-2103(4) (Reissue 2016) may be considered in any order, but unless both requirements are satisfied, a motion for new trial based on newly discovered evidence cannot be filed more than 5 years after the date of the verdict.

         Appeal from the District Court for Scotts Bluff County: Randall L. Lippstreu, Judge. Affirmed.

          Shawn L. Cross, pro se.

          Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

          [297 Neb. 155] Heavican, C.J., Wright, Miller-Lerman, Stacy, Kelch, and Funke, JJ.

          Stacy, J.

         More than 5 years after his conviction, Shawn L. Cross filed a motion for new trial, pursuant to Neb. Rev. Stat. § 29-2101(5) (Reissue 2016), claiming newly discovered evidence. The district court dismissed the motion without a hearing, pursuant to Neb. Rev. Stat. § 29-2102(2) (Reissue 2016). Cross appeals, and we affirm.

         I. FACTS

         In 2009, Cross was charged with second degree assault and use of a weapon to commit a felony for allegedly beating Pedro Pacheco with a baseball bat.[1] Before trial, Cross' appointed counsel, Richard DeForge, was allowed to withdraw based on a conflict of interest. The conflict was that DeForge was already representing Elgie Iron Bear, who was listed as a witness in Cross' case. Cross was appointed new counsel. Several months later, new counsel was also permitted to withdraw, after which DeForge was reappointed to represent Cross. The record shows the reappointment of DeForge occurred because, by that point, the case involving Iron Bear was closed and DeForge no longer had a conflict of interest. DeForge thereafter represented Cross at trial and on his direct appeal.

         The case was tried to a jury in March 2010, and Cross was convicted of both charges. The court subsequently found Cross was a habitual criminal[2] and sentenced him to imprisonment for a total of 20 to 25 years. Cross' convictions and sentences were summarily affirmed by the Nebraska Court of Appeals.[3]

         In 2011, Cross filed a pro se motion for postconviction relief. In it, he raised claims of ineffective assistance of counsel, [297 Neb. 156] including a claim that DeForge had a conflict of interest based on the Iron Bear representation. Cross was appointed new postconviction counsel, and an evidentiary hearing was held. The district court denied postconviction relief, and the Court of Appeals summarily affirmed.[4]

         In December 2015, Cross filed a pro se motion for new trial pursuant to § 29-2101(1), (2), (4), and (5). The district court found that to the extent Cross sought a new trial based on the grounds set forth in subsections (1), (2), and (4) of § 29-2101, the motion was filed more than 10 days after the verdict and was untimely under Neb. Rev. Stat. § 29-2103(3) (Reissue 2016). The court also found Cross was not entitled to a new trial based on newly discovered evidence under § 29-2101(5), because his motion and supporting documents failed to set forth sufficient facts. The district court dismissed the motion without conducting an evidentiary hearing.[5] Cross did not appeal.

         In March 2016, Cross filed another motion for new trial, again claiming newly discovered evidence under § 29-2101(5). The allegations of the second motion, which we address in more detail in our analysis, were substantially similar to those found insufficient in his first motion. As it had done previously, the court examined the motion and supporting documents, concluded they failed to set forth sufficient facts, and dismissed the motion without conducting an evidentiary hearing.[6]

         Cross timely appealed from the dismissal of his second motion for new trial. We moved the case to our docket on our own motion[7] to address the impact of recent legislative amendments to the new trial statutes at issue.[8]

          [297 Neb. 157] II. ASSIGNMENTS OF ERROR

         Cross assigns, restated, that the district court erred in (1) failing to apply the correct standard of review to his motion based on newly discovered evidence, (2) failing to hold an evidentiary hearing, and (3) denying his motion for new trial without addressing his conflict of interest allegation.

         III. ANALYSIS

         1. Statutory Framework

         In criminal cases, motions for new trial are governed by §§ 29-2101, 29-2102, and 29-2103. In 2015, the Legislature amended §§ 29-2102 and 29-2103, [9] and this is our first opportunity to interpret and apply those amendments. We begin by providing an overview of the statutory scheme.

         Section 29-2101 sets out the seven grounds on which a motion for new trial may be based; only § 29-2101(5) is relevant to this case. Pursuant to that subsection, a new trial may be granted based on "newly discovered evidence material for the defendant which he or she could not with reasonable diligence have discovered and produced at the trial."[10] A new trial may be granted only if the ground materially affects the defendant's substantial rights.[11]

         Section 29-2103 sets out how and when motions for new trial must be presented. It requires all such motions to be "made by written application" and to "state the grounds under section 29-2101 which are the basis for the motion."[12] Additionally, § 29-2103(2) requires the motion to "be supported by evidence as provided in section 29-2102." The statutory time-frame for filing a motion for new trial varies depending on the ground asserted.[13]

          [297 Neb. 158] Prior to August 30, 2015, a motion based on newly discovered evidence had to be filed within 3 years of the verdict.[14] Effective that date, however, the Legislature amended §§ 29-2102 and 29-2103.[15] Now, a motion for new trial alleging newly discovered evidence must be filed "within a reasonable time after the discovery of the new evidence" and "cannot be filed more than five years after the date of the verdict, unless the motion and supporting documents show the new evidence could not with reasonable diligence have been discovered and produced at trial and such evidence is so substantial that a different result may have occurred."[16] Both of Cross' motions for new trial were filed after the effective date of the amendments and more than 5 years after the date of the verdict.

         Section 29-2102 sets out what evidence must accompany a motion for new trial. The type of necessary evidence varies depending on which ground for new trial is relied upon.[17] As relevant here, a motion for new trial based on newly discovered evidence under ยง 29-2101(5) "shall be supported by evidence of the truth ...


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