State v. Cross

Summary

The Nebraska Supreme Court held that de novo review applies to a trial court’s dismissal of a motion for new trial without an evidentiary hearing under Neb. Rev. Stat. § 29-2102(2), while abuse-of-discretion review applies after an evidentiary hearing. The court concluded that Shawn L. Cross’s motion, filed more than five years after the verdict, failed to satisfy the statutory timeliness requirements for newly discovered evidence and affirmed its dismissal without a hearing.

Holdings

1. An appellate court reviews de novo a trial court's dismissal of a motion for new trial under Neb. Rev. Stat. § 29-2102(2) without an evidentiary hearing; an abuse-of-discretion standard applies when the motion is denied after an evidentiary hearing.
2. When a motion for new trial based on newly discovered evidence is filed more than five years after the verdict, it is timely only if both the motion and supporting documents show that the evidence could not with reasonable diligence have been discovered and produced at trial and that the evidence is so substantial that a different result may have occurred.
3. Cross's motion and supporting documents did not show that any of the asserted evidence was newly discovered in the statutory sense or could not have been discovered and presented at trial with reasonable diligence; dismissal without an evidentiary hearing was therefore proper.

Questions Presented

1. What standard of review applies when an appellate court reviews a trial court's dismissal of a motion for new trial under Neb. Rev. Stat. § 29-2102(2) without an evidentiary hearing?
2. Whether Cross's motion for a new trial based on newly discovered evidence was timely under Neb. Rev. Stat. § 29-2103(4).
3. Whether the motion and supporting documents set forth sufficient facts requiring an evidentiary hearing under Neb. Rev. Stat. § 29-2102(2).
4. Whether Cross's allegations concerning witness testimony, Pacheco's immigration status, and counsel's conflict of interest established grounds for a new trial.

Disposition

affirmed