State v. Wabashaw

STATE OF NEBRASKA, APPELLEE, v. ELROY L. WABASHAW, APPELLANT.

No. A-16-251.

NEBRASKA COURT OF APPEALS

April 11, 2017

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Knox County: JAMES G. KUBE, Judge. Affirmed.

Luke P. Henderson, of Fitzgerald, Vetter, Temple & Bartell, for appellant.

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

INBODY, BISHOP, and ARTERBURN, Judges.

BISHOP, Judge.

INTRODUCTION

Elroy L. Wabashaw filed a "Motion for New Trial on Newly Discovered Evidence," claiming certain evidence could not with reasonable diligence have been produced at trial because of a witness's "blatant perjury and concealing the disappearance of potential exculpatory evidence for the defense." At issue was physical evidence (coins) not produced at trial because they were falsely claimed to have been sent to a crime lab for testing. Because of that, Wabashaw believed he was entitled to a new trial. The Knox County District Court overruled Wabashaw's motion for new trial; we affirm.

BACKGROUND

In 2006, Wabashaw was convicted of robbery and use of a firearm to commit a felony, and was sentenced as a habitual criminal. He was sentenced to consecutive prison terms of 12 to 14 years for the robbery conviction and 10 to 12 years on the weapons conviction. Wabashaw's convictions and sentences were upheld on direct appeal. See State v. Wabashaw, 274 Neb. 394, 740 N.W.2d 583 (2007). Denial of his first motion for postconviction relief was upheld by this court in case No. A-08-1334, Memorandum Opinion and Judgment on Appeal (mandate entered January 8, 2010). A second motion for postconviction relief was also denied by the district court and upheld on appeal in case No. A-11-0908, Memorandum Opinion and Judgment on Appeal (mandate entered October 17, 2012).

Wabashaw filed an amended third motion for postconviction relief on October 3, 2012, and on October 29 he filed a "Motion to Vacate and Set Aside Sentences and Convictions or Grant New Trial" (motion for new trial). The issue of the coins was raised in both motions. In his postconviction motion, Wabashaw argued that his appointed counsel at all levels were deficient for failing to investigate an officer's claims that he sent the coins to a crime lab, failing to investigate Wabashaw's concerns about the coins, and for failing to ascertain that the officer lied about sending the coins to the crime lab. In his motion for new trial, Wabashaw claimed his "counsel plainly abandoned obtaining test results or lack of results before trial," and failed "to object to trial court's denial of prints." The district court entered an order addressing both motions on February 15, 2013. The court denied relief on the motion for new trial because it was not timely filed and there was no allegation that its timely filing was unavoidably prevented. The court denied postconviction relief because there was nothing to indicate Wabashaw's claims were not available at the time of his first or second postconviction motions. This court affirmed the district court's decision in case No. A-13-232 (summary affirmance sustained, mandate entered January 6, 2014).

We next reviewed Wabashaw's appeal from the denial of his petition for writ of error coram nobis, in which Wabashaw made the same arguments he made in his third postconviction motion and motion for new trial (filed in October 2012) pertaining to the coins. In case No. A-14-162 (mandate entered April 27, 2015), this court sustained the State's motion for summary affirmance, citing to State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014) (an alleged error of fact must be such as would have prevented a conviction; it is not enough to show that it might have caused a different result).

On August 24, 2015, Wabashaw filed another motion for new trial, which is the subject of this appeal. His motion included citations to Neb. Rev. Stat. § 29-2101(3) (Reissue 2016) (accident or surprise which ordinary prudence could not have guarded against), § 29-2101(4) (a verdict not sustained by sufficient evidence or contrary to law), and § 29-2101(5) (newly discovered evidence material for the defendant which could not have been discovered with reasonable diligence and produced at trial). Wabashaw generally asserted that there were material facts which affected his rights and those facts could not with reasonable diligence have been discovered and produced at trial "due to the state witness and representative [sic] blatant perjury and concealing the disappearance of potential exculpatory evidence for the defense." Among other matters alleged, Wabashaw asserted that a witness committed perjury when testifying that "he had sent the evidence to [the] crime lab to test for finger-prints [sic]." Wabashaw further alleged that his trial counsel testified at Wabashaw's first postconviction hearing that "they were told the coins [were] not available," and a letter dated September 21, 2012, from the Nebraska State Patrol crime lab indicated "no such evidence was received." That letter indicated that no coins were received bythe crime lab between April 2005 and February 2006. (The robbery occurred in April 2005; Wabashaw's trial took place in February 2006.)

In its order entered on February 5, 2016, the district court concluded that the evidence and allegations submitted in the current motion for new trial had been addressed twice before. The court referred specifically to the October 29, 2012, motion for new trial and the December 26, 2013, petition for writ of error coram nobis. The court stated that allegations in the pending motion were the same as those addressed in those two previous matters. Consequently, the court concluded that it "need not address for a third time, those allegations and arguments presented by the defendant on at least two prior occasions which, again, address the same allegations and evidence." The court also found that the evidence presented "would not have likely resulted in a different outcome" had Wabashaw raised them at trial. Accordingly, the district court overruled Wabashaw's motion for new trial. Wabashaw timely appealed.

ASSIGNMENT OF ERROR

Wabashaw assigns that the district court erred in denying his motion for a new trial.

STANDARD OF REVIEW

In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed. State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015). An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.

ANALYSIS

Limitations Period for Newly Discovered Evidence.

The State argues that when Wabashaw filed his motion for new trial on August 24, 2015, he was outside the limitation period provided by statute. The version of the relevant statute in effect at that time, Neb. Rev. Stat. § 29-2103(4) (Reissue 2008), stated that a motion for new trial based on newly discovered evidence was to be filed "within a reasonable time after the discovery of the new evidence and cannot be filed more than three years after the date of the verdict." Wabashaw's verdict was reached in February 2006, so under the former version of the statute, his motion was filed out of time.

However, § 29-2103(4) was subsequently amended, and became effective August 30, 2015, which was just six days after Wabashaw filed his motion for new trial. See 2015 Neb. Laws, L.B. 245, § 2. Notably, L.B. 245 extended the time to file a motion for new trial based on newly discovered evidence from 3 years to 5 years. L.B. 245 also extended the limitation period beyond 5 years if "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." See § 29-2103(4) (Reissue 2016). Obviously, even the extension to 5 years would not be helpful to Wabashaw given his verdict was reached in 2006. Wabashaw's motion for new trial would have to fit within the requirement that the new evidence could not have been discovered and produced at trial with reasonable diligence, and, importantly,the evidence must be so substantial that a different result may have occurred. Assuming without deciding that Wabashaw's motion can be considered under the amended § 29-2103(4) even though filed before its effective date, we conclude Wabashaw's claims regarding the absent, untested coins and the alleged witness perjury do not satisfy the requirements of § 29-2103(4), as discussed next.

Motion for New Trial Based on Newly Discovered Evidence.

Wabashaw asserts that "[t]he newly discovered evidence produced by [Wabashaw] consists of false testimony and concealment of potentially exculpatory evidence by [the officer] which directly impacted [Wabashaw's] substantial right of a fundamentally fair hearing." Brief for appellant at 16. However, Wabashaw does not satisfactorily explain why, pursuant to § 29-2103(4), this evidence could not have been discovered and produced at trial with reasonable diligence, nor how evidence related to the coins or the testimony was exculpatory or so substantial that a different result may have occurred.

Section 29-2103(4) states:

A motion for new trial based on the grounds set forth in subdivision (5) of section 29-2101 [newly discovered evidence] shall 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

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