State v. Boppre
| Docket Number | S-21-515 |
| Decision Date | 15 September 2023 |
| Parties | State of Nebraska, appellee, v. Jeff Boppre, appellant. |
| Court | Nebraska Supreme Court |
1
315 Neb. 203
State of Nebraska, appellee,
v.
Jeff Boppre, appellant.
No. S-21-515
Supreme Court of Nebraska
September 15, 2023
1. Motions for New Trial: Evidence: Appeal and Error. An appellate court applies a de novo standard when reviewing a trial court's dismissal of a motion for new trial without conducting an evidentiary hearing, but it applies an abuse of discretion standard of review to appeals from motions for new trial denied after an evidentiary hearing.
2. Postconviction: Motions for New Trial: Evidence. When deciding whether an evidentiary hearing is required on a motion for new trial, trial courts have discretion to adopt reasonable prehearing procedures, just as they do under the Nebraska Postconviction Act.
3. Criminal Law: Motions for New Trial: Evidence: Proof. Neb. Rev. Stat. § 29-2101(5) (Reissue 2016) authorizes a new trial when the defendant satisfies a two-prong burden of proof. First, the defendant must show the evidence at issue has been newly discovered since trial, meaning the evidence existed at the time of trial but could not, with reasonable diligence, have been discovered and produced at trial. Second, the defendant must show the evidence materially affected his or her substantial rights, meaning it is so substantial that with it, a different verdict would probably have been reached at trial.
4. Criminal Law: Motions for New Trial: Evidence. If a motion for new trial under Neb. Rev. Stat. § 29-2101 (Reissue 2016) is not supported by the required evidence in the required form, a district court need not consider it further and may deny the motion without an evidentiary hearing.
5. Criminal Law: Motions for New Trial: Limitations of Actions. To have any effect, a motion for new trial must comply with the statutory time limitations. Neb. Rev. Stat. § 29-2103 (Reissue 2016) imposes different time limits on filing motions for new trial, depending on the statutory ground relied upon.
[315 Neb. 204] 6. Motions for New Trial: Legislature: Limitations of Actions: Evidence: Dismissal and Nonsuit. If a motion for new trial fails to satisfy the statutory timeliness requirements imposed by the Legislature, a court need not consider it further and may dismiss it without an evidentiary hearing.
7. Statutes: Legislature: Intent. Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature so that different provisions are consistent, harmonious, and sensible.
8. Criminal Law: Motions for New Trial. Because the materiality provisions in Neb. Rev. Stat. §§ 29-2101 and 29-2102(2) (Reissue 2016) use nearly identical language, courts construe them consistently.
9. Criminal Law: Motions for New Trial: Evidence: Proof. When a defendant seeks a new trial on the ground of newly discovered evidence, the evidentiary hearing provisions of Neb. Rev. Stat. § 29-2102(2) (Reissue 2016) are satisfied if the motion and supporting affidavits, depositions, or oral testimony set forth sufficient facts which, if true, establish that (1) the new evidence existed at the time of trial but could not, with reasonable diligence, have been discovered and produced at trial and (2) such evidence is so substantial that with it, a different verdict would probably have been reached at trial.
10. Criminal Law: Motions for New Trial: Evidence. To properly analyze whether a defendant is entitled to an evidentiary hearing on claims of newly discovered evidence, a court considers, with respect to each claim, whether the motion and supporting documents (1) comport with the form and content requirements of Neb. Rev. Stat. §§ 29-2102 and 29-2103 (Reissue 2016); (2) comport with the timeliness requirements of § 29-2103; and (3) set forth facts which, if true, satisfy the evidentiary hearing requirements of § 29-2102(2). Because a defendant must satisfy all of these requirements to be entitled to an evidentiary hearing, a court may address the requirements in any order and the defendant's failure to satisfy one requirement makes it unnecessary for the court to address the others.
11. Courts: Records. It is not the court's duty to scour the record in search of facts that might support a claim.
12. Motions for New Trial: Evidence. Defendants filing a motion for new trial must make specific allegations, instead of mere conclusions of fact or law, to receive an evidentiary hearing.
13. __: __. To set forth sufficient facts, a motion for new trial based on newly discovered evidence should clearly and succinctly identify the evidence claimed to be newly discovered and should state with
[315 Neb. 205] particularity (1) the date on which such evidence was discovered; (2) why such evidence could not, with reasonable diligence, have been discovered and produced at trial; and (3) why such evidence is so substantial that with it, a different verdict would probably have been reached at trial.
14. Appeal and Error. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued.
15. __. Conclusory assertions unsupported by coherent analytical argument fail to satisfy the requirement of arguing an assigned error to obtain consideration by an appellate court.
16. Criminal Law: Motions for New Trial: Evidence: Appeal and Error. Even when the allegations in a motion for new trial set forth a narrative to support a new trial based on newly discovered evidence, the failure to accompany the motion with the type of supporting evidence required by Neb. Rev. Stat. § 29-2102(1) (Reissue 2016) provides a basis for dismissal without an evidentiary hearing.
17. Criminal Law: Motions for New Trial: Evidence: Dismissal and Nonsuit. The statutes authorizing motions for new trial in criminal cases do not permit a defendant to supplement the required supporting documents after receiving an order dismissing the motion without an evidentiary hearing.
18. Actions: Appeal and Error. Unlike the doctrines of claim and issue preclusion, which involve successive lawsuits, the law-of-the-case doctrine involves successive stages of one continuing lawsuit.
19. __: __. When it applies, the law-of-the-case doctrine operates to preclude reconsideration of substantially similar, if not identical, issues at successive stages of the same suit or prosecution.
20. __: __. The law-of-the-case doctrine promotes judicial efficiency and protects parties' settled expectations by preventing parties from relitigating settled issues within a single action.
21. __: __. Under the law-of-the-case doctrine, the holdings of an appellate court on questions presented to it in reviewing proceedings of the trial court become the law-of-the-case; those holdings conclusively settle, for purposes of that litigation, all matters ruled upon, either expressly or by necessary implication.
22. __: __. Courts will not apply the law-of-the-case doctrine if con siderations of substantial justice suggest a reexamination of the issue is warranted, if materially and substantially different facts are presented, or if the applicable law has changed.
23. Motions for New Trial: Evidence: Appeal and Error. The law-of-the-case doctrine can apply in motions for new trial based on newly discovered evidence when the files and records in the case show that
[315 Neb. 206] the same or substantially similar evidence has already been considered by an appellate court in the same case and found not to support a new trial. However, just as in other case types, the doctrine should not be applied if the defendant presents materially and substantially different facts, when the applicable law has changed, or when considerations of substantial justice suggest a reexamination of the issue is warranted.
24. Evidence: Words and Phrases. Evidence is not "newly discovered" if its substance was known to the defendant at the time of trial.
Appeal from the District Court for Scotts Bluff County: Andrea D. Miller, Judge. Affirmed.
Bell Island, of Island Law Office, P.C., L.L.O., Thomas P. Frerichs, of Frerichs Law Office, P.C., Vanessa Potkin and Tara Thompson, of Innocence Project, and Andrea Butler and Sara Shaw Tatum, of Kirkland &Ellis, L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.
Stacy, J.
In 1989, Jeff Boppre was convicted of two counts of first degree murder and four related felonies. His convictions were affirmed on direct appeal.[1] In the years since his direct appeal, Boppre has collaterally attacked his convictions through a series of motions for new trial and successive motions for postconviction relief. This appeal involves Boppre's third motion for new trial, which the district court dismissed without an evidentiary hearing. Because our de novo review shows that Boppre's operative motion and supporting documents did not entitle him to an evidentiary hearing, we affirm.
[315 Neb. 207] I. BACKGROUND
In September 1988, Richard Valdez and Sharon Condon were shot and killed in a rural farmhouse north of Scottsbluff, Nebraska. In connection with those deaths, Boppre was charged with two counts of first degree murder, two counts of robbery, and two counts of using a firearm to commit a felony.
The evidence adduced at Boppre's jury trial was summarized in State v Boppre (Boppre I)[2] To provide context for the various claims of newly discovered evidence that Boppre raises in his third motion for new trial, we quote at length from our summary of the evidence in Boppre I:
Beginning in July 1988, Ricky Zogg began to supply Boppre with cocaine and marijuana which Zogg purchased from Richard Valdez, who occupied a house north of the town of Scottsbluff with his girlfriend, Sharon Condon....
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