State v. Boppre

315 Neb. 203

995 N.W.2d 28

STATE of Nebraska, appellee, v. Jeff BOPPRE, appellant.

No. S-21-515.

Supreme Court of Nebraska.

Filed September 15, 2023

Bell Island, Gering, 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, Lincoln, 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.

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 (BoppreI ). 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. ...

About 2 months before the killings, Boppre suggested to Zogg, "Let's just take [Valdez’] money and his drugs, that way we don't have to buy it [any] more." Zogg agreed, and they planned to "[j]ust go in and shoot [Valdez]." Armed with guns, Boppre and Zogg twice went to Valdez’ house but left before accomplishing their purpose.

For 1 to 2 months before the killings, Boppre had been supplying Kenard Wasmer and Alan Niemann with cocaine which he had been purchasing from Valdez. On the evening before the killings, September 18, 1988, Boppre acquired some cocaine from Valdez at Niemann's request. Boppre met Niemann at a mobile home which Niemann and Wasmer shared, and Boppre and Niemann used the cocaine. During the course of the evening, Boppre and Niemann went to Valdez’ house several more times to buy more cocaine. Each time, they acquired about a quarter or half gram of the substance and shared it with Wasmer before returning to Valdez’ for more.

Sometime after midnight on September 19, Boppre suggested to Wasmer and Niemann, "Let's just go blow [Valdez] away." According to Wasmer, Boppre "looked at [Niemann] and asked [Niemann] if he'd go do it with him and [Niemann] said no, that he couldn't do it, he couldn't just shoot somebody. And he kept trying to get [Niemann] to do it and [Niemann] kept saying no and he called him a pussy and asked me, he looked at me and said, ‘Come on, Wasmer, I know you can do it.’ I told him, I said, ‘Dude, the guy has never done nothing to me, I don't even know the man, I'm not going to go do something to him.’ "

Boppre told them, "Well, I'll go do it myself then," and walked out the door. Niemann followed Boppre, telling Wasmer, "I'm going to go talk him out of it." Wasmer remained at the trailer.

Boppre and Niemann went back out to Valdez’, where Boppre bought a quarter gram of cocaine and they left. After Boppre and Niemann used the cocaine, Boppre drove to his father's house, where he was living, went inside, changed clothes, and got a gun. [Boppre and Niemann] then returned to Valdez’ house, and Boppre got out of the vehicle and knocked on the door. According to Niemann, he heard a man's voice yell, "Who is it?" After Boppre identified himself, the door opened and Niemann heard "a loud, ‘Oh,’ something, ‘Oh God, oh, shit.’ " Niemann then heard two shots, saw Boppre "jump up into the house," arms aiming downward, and then heard a series of additional shots.

Niemann went into the house and found Valdez lying on his back on the kitchen floor with his head and shoulders in the middle of the doorway between the kitchen and living room. As Niemann was leaving the house, Valdez rolled onto his right side. Boppre came out of the house and reloaded his gun, saying, "[T]here couldn't be any witnesses." Boppre then went back inside the house, and Niemann heard a woman's high-pitched voice and a series of still more shots. Boppre came out of the house with several items in his hands and then went back into the house and knocked out the kitchen light with a hammer. While traveling back to Niemann's and Wasmer's trailer, Boppre told Niemann, "[Y]ou should have seen it.... You should have seen that bitch plead for her life."

....

At Boppre's suggestion, Wasmer and Niemann agreed to travel to Phoenix, Arizona, with Boppre, where they could use the money they took from Valdez to acquire a considerable amount of cocaine. They put several of the things they had stolen into the trunk of Boppre's vehicle, Boppre placed the gun he had used for the killings under the front seat of the vehicle, and the three left. Over Boppre's relevance objections, Wasmer was allowed to testify that on their way to Phoenix, Boppre discussed stopping somewhere to buy more shells for the gun and "was talking about going into [convenience] stores, robbing them and killing whoever was behind the cash register or in the store." This prompted Wasmer to dismantle the gun and throw pieces of it out the window of the vehicle "so they couldn't be replaced" "[t]o keep anybody else from being killed with that gun." ...

....

Near Gallup, New Mexico, Boppre decided to dispose of the gun. According to Wasmer, they drove out of Gallup for "a ways and [Boppre] spotted ... quite a big washout beside the road. We stopped, pulled over, [Boppre] got the gun out of the car, we all jumped over the fence, I walked over to the edge of it, stopped ... [Boppre] and [Niemann] walked on down farther and stayed there for a few minutes, not very long, and then came back, we got in the car and left." Niemann testified similarly that to dispose of the gun, they crossed over a fence into a ravine by the side of the road and that Boppre threw the gun into one mud puddle and the gun clip into another puddle.

The morning after the killings, Condon's body was found in the bedroom of the Valdez house, and Valdez’ body was found in the kitchen near the doorway into the living room. According to Niemann, who reviewed a picture of Valdez’ body as found, Valdez’ body was discovered in a different position than when he last saw it. Law enforcement personnel found four shell casings and seven bullets in and around Valdez’ body and two shell casings and two bullets around Condon's body. Pieces of glass from a broken light bulb were discovered in the kitchen. ...

The district court received into evidence, over Boppre's hearsay objections, pictures which portray writing on the floor near where Valdez’ body was found and writing on the casement of the door between the kitchen and living room. As depicted in the pictures, the letters "J-F-F B-O-P-E" were written in white grease on the floor by the left side of Valdez’ body, and the letters "J-E-F-F" were written toward the bottom of the side of the casement nearer to Valdez’ body within reach of the body's right hand.

Police Lt. Robert Kinsey testified that there "appear[ed] to be blood" on the side of the casement closest to Valdez and that the letters written on the door casement appeared to be written in blood.... Police Det. Mark Overman corroborated Kinsey's testimony, saying that the letters on the side of the door casement nearer to Valdez were written in what "appear[ed] to be blood." Although Boppre objected, Overman was allowed to further testify that it appeared someone wrote the markings on the door casement with a finger.

When Valdez was found, there was white grease present on the index and middle fingers of his right hand and blood present on both of his hands. Valdez’ brother testified that Valdez was right-handed. A nearly empty tube of white "lubriplate gear grease" was discovered under Valdez’ body. According to a criminalist who testified for the State, the substance in the tube, on the floor, and on Valdez’ fingers was "similar and could have originated from a common source." A documents examiner for the Nebraska State Patrol opined that the writing on the floor in grease "was consistent with having been written with a human finger," but testified that the writing was of insufficient quality and quantity for a positive identification of the writer to be made.

The pathologist who performed the autopsies on the two victims discovered four gunshot entrance wounds on Valdez’ chest, abdomen, and left arm. According to the pathologist, Valdez died from the gunshot wounds to his chest and abdomen, "which resulted in massive internal damage to the organs" in those areas. The pathologist also opined that an individual with injuries such as Valdez’ would live 15 minutes after the wounds were received and could have retained consciousness for 10 to 15 minutes. The pathologist was of the further opinion that it was possible that Valdez could have moved around and written something on the floor and wall for 5 to 15 minutes after receiving the wounds.

....

A pathologist testifying on Boppre's behalf expressed the view that it was "highly unlikely that [Valdez] would have been physically capable of writing the descriptions" which were discovered

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