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State of Nebraska, appellee, v. 

Jeff Boppre, appellant.

___ N.W.2d ___

Filed September 15, 2023. No. S-21-515.

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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/15/2023 08:06 AM CDT
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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 
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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 considerations 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-ofthe-case doctrine can apply in motions for new trial based on newly 

discovered evidence when the files and records in the case show that 
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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.

1 State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).
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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. . . .

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 

2 Id.
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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, 
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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 
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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 
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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 next to his body. He opined 

that a person who sustained the injuries Valdez sustained “would have not remained conscious longer than 
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probably three minutes and probably would have died 

within the next five or six minutes.”

Just after the killings, Boppre’s father told law 

enforcement personnel that Boppre owned a .32-caliber 

handgun. Although the handgun could not be located 

in the father’s house, the father showed the officers an 

area southwest of his residence where Boppre practiced 

shooting at targets with the gun, and allowed them to 

pick up some .32-caliber shell casings which were lying 

on the ground.

With Niemann’s and Wasmer’s help, law enforcement 

personnel discovered the .32-caliber handgun in the canyon near Gallup, New Mexico, where Boppre had thrown 

it. The State’s ballistics expert described the gun as an LA 

Industrial Orbea-Eibar .32-caliber semiautomatic pistol. 

When found, the gun was missing several parts, including 

a thumb latch safety, the disconnector, the hammer pin, 

and the sear spring.

. . . .

The State’s ballistics expert compared the shell casings found in Boppre’s father’s yard and those found at 

Valdez’ house with shell casings which he acquired from 

his own test firing of the gun the police recovered near 

Gallup. He determined that the shell casings which were 

found at the Boppre and Valdez residences were all fired 

from the gun the police recovered near Gallup. He also 

compared the bullets found at the Valdez residence and 

those he test fired from the gun and determined that the 

bullets found at the Valdez residence were fired from 

the gun the police found. . . .

Michael Neu, who was incarcerated in the Scotts Bluff 

County jail at the same time as Boppre, testified, over 

Boppre’s objections, that he “built up a situation of trust 

in regard to [himself] and . . . Boppre,” that Boppre told 

him “Mr. Valdez couldn’t have wr[itten] the name on 

the floor” because Valdez “was shot and he was dead 
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instantly,” and that Boppre said, “You ought to heard the 

bitch beg for mercy, beg for her life.” 3

In March 1989, the jury returned guilty verdicts on all 

counts. Boppre was sentenced to consecutive terms of life 

imprisonment on the murder convictions and to indeterminate terms of imprisonment on the remaining convictions. We 

affirmed Boppre’s convictions and sentences on direct appeal. 4

1. Prior Collateral Attacks 

on Convictions

After Boppre’s judgment and sentences became final, he 

filed a series of motions in his criminal case collaterally 

attacking the judgment. We summarize that procedural history 

now and, where appropriate, provide additional detail later 

in our analysis.

(a) First Motion for New Trial

Boppre filed his first motion for new trial in March 1992, 

asserting several grounds, including newly discovered evidence and prosecutorial misconduct. 5 The prosecutorial misconduct claim was based on the State’s alleged failure to disclose the existence of “M.M.,” a young woman whom Boppre 

claimed was a material witness to the murders. In support 

of this claim, Boppre alleged that at the time of the murders, M.M. was a high school student who told some of her 

classmates that she was hiding inside the Valdez house when 

the murders occurred. M.M. reportedly said that she heard 

three male voices and that she was familiar with Boppre and 

“‘knew it wasn’t his voice.’” 6 When police learned of M.M.’s 

statement, they interviewed her. She admitted telling classmates that she was hiding inside the Valdez house when the 

3 Id. at 925-932, 453 N.W.2d at 414-17.

4 Boppre I, supra note 1.

5 See State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993).

6 Id. at 914, 503 N.W.2d at 531.
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murders occurred, but she told police “‘it was just something 

she made up out of frustration and anger and she apologized 

for making the statement.’” 7 During the evidentiary hearing 

on Boppre’s first motion for new trial, his trial counsel testified that the State did not identify M.M. as a potential witness and that Boppre did not learn of M.M.’s statement until 

after trial.

The district court denied Boppre’s first motion for new 

trial, and this court affirmed in State v. Boppre (Boppre II). 8

In doing so, we concluded in part that Boppre’s prosecutorial misconduct claim failed because M.M.’s statements were 

not material to Boppre’s guilt under the standard discussed in 

United States v. Agurs.

 9 We reasoned that in addition to the 

fact that M.M. had recanted her statement and denied that she 

was at the murder scene, M.M.’s testimony was not material 

because she did not claim to see anything directly relevant to 

the killings and thus “never was in a position to claim that 

[Boppre] was not present at the scene or that he was not the 

one who shot the victims.” 10 We thus concluded that even if 

M.M.’s testimony had been offered at trial, “it would not create a reasonable doubt as to [Boppre’s] guilt which did not 

otherwise exist.” 11

(b) Postconviction Motions 

in 1995 and 2002

In August 1995, Boppre filed his first postconviction 

motion, claiming his trial counsel was ineffective for, among 

other things, failing to develop the theory that Kenard Wasmer 

7 Id. at 915, 503 N.W.2d at 531.

8 Boppre II, supra note 5.

9 United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 

(1976).

10 Boppre II, supra note 5, 243 Neb. at 927-28, 503 N.W.2d at 538.

11 Id. at 928, 503 N.W.2d at 538.
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committed the murders. The district court denied that motion 

without an evidentiary hearing, and we affirmed. 12

In 2002, Boppre filed his second postconviction motion, 

claiming prosecutors withheld exculpatory evidence. The district court denied this postconviction motion, and we summarily affirmed without issuing a written opinion. 13

(c) DNA Testing, Second Motion for 

New Trial, and Third Motion 

for Postconviction Relief

In May 2005, Boppre filed a motion pursuant to the DNA 

Testing Act 14 that prompted DNA testing of various items from 

the crime scene, including a bloodstain found near the kitchen 

door handle in Valdez’ home. Based on the results of those 

DNA tests, Boppre moved to vacate and set aside his convictions. 15 He also filed a second motion for new trial, asserting 

there was newly discovered DNA evidence.

In 2008, Boppre filed a third motion for postconviction 

relief that included a claim that his constitutional due process 

rights were violated when prosecutors withheld exculpatory 

evidence regarding M.M.’s statements about what she heard 

at the murder scene. This postconviction motion referenced a 

“recently obtained sworn statement” from M.M. in which she 

claimed she was hiding in the bedroom at the time of the murders and heard John Yellowboy’s voice, but not Boppre’s.

The district court denied Boppre’s third postconviction 

motion without an evidentiary hearing, but it held evidentiary hearings on the 2005 motions to vacate and for new 

trial based on the DNA test results. It ultimately denied both 

12 State v. Boppre, 252 Neb. 935, 567 N.W.2d 149 (1997), disapproved on 

other grounds, State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998).

13 See State v. Boppre, 267 Neb. xxi (No. S-03-541, Dec. 30, 2003).

14 See Neb. Rev. Stat. §§ 29-4116 to 29-4125 (Reissue 2016).

15 See § 29-4123.
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motions, finding that even though testing of the bloodstain 

showed genetic markers consistent with the DNA profile of 

Yellowboy, such evidence was not exculpatory for Boppre 

because Yellowboy was known to be a frequent visitor to the 

Valdez home.

Boppre appealed the denial of his motion for new trial and 

the denial of his motion for postconviction relief. We affirmed 

both rulings in State v. Boppre (Boppre V). 16 We agreed that 

the DNA test results were not exculpatory for Boppre and did 

not support a new trial. And we found no error in dismissing 

the third postconviction motion based on M.M.’s statements, 

reasoning that they were not “favorable evidence that was 

material to Boppre’s guilt, as required to show a violation of 

due process.” 17 We also noted the allegations regarding M.M. 

had been the subject of previous unsuccessful collateral attacks 

and that our prior “dispositions show these claims, on the 

merits, do not amount to a violation of Boppre’s constitutional 

right to due process.” 18

(d) 2012 Postconviction Motion

In August 2012, Boppre filed a fourth motion for postconviction relief, which the district court denied without conducting 

an evidentiary hearing. We summarily affirmed that denial. 19

2. Current Motion for New Trial

In December 2018, Boppre filed his third motion for 

new trial, which is the subject of this appeal. Boppre’s 

counsel amended the motion in October 2019, but had difficulty electronically filing the amended motion and supporting 

16 State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010).

17 Id. at 785, 790 N.W.2d at 426.

18 Id.

19 State v. Boppre, 286 Neb. xxi (No. S-12-1170, July 10, 2013).
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documents, apparently due to the extraordinary length of 

the filing and the inclusion of multiple embedded images 

and videos. After unsuccessful attempts to address the issue 

with amended and supplemental filings in both paper and 

electronic format, Boppre’s counsel filed what he titled a 

“Motion to Correct Record and for Electronic Filing of Actual 

Submitted Documents.” That motion was taken up during a 

records hearing conducted at the court’s request, which we 

describe next.

(a) Records Hearing

In December 2019, the court conducted a records hearing 

on Boppre’s third motion for new trial and, speaking from the 

bench, explained why it was using the procedure:

I will just state that in correspondence with counsel I’ve 

asked for participation in this hearing because of the large 

volume of this case. It’s been on file for 30-plus years. 

There are several volumes of exhibits and pleadings, and 

the voluminous nature of the file itself along with the 

voluminous nature of your pleadings leaves me in a position of reviewing an astronomical amount of information. 

And so that’s the reason . . . so that I can make an initial 

ruling as to whether or not an evidentiary hearing should 

go forward.

During the records hearing, both parties offered exhibits, 

all of which were received. One exhibit was described by 

Boppre’s counsel as a “complete” version of the amended 

motion for new trial, which was 153 pages long. Another 

exhibit, which was nearly 1,000 pages long and included sealed 

envelopes with additional documents and a flash drive, was 

represented to include all the supporting documents Boppre 

tried unsuccessfully to electronically file with the amended 

motion. During the records hearing, the court also received 

certified copies of pertinent portions of the record in Boppre’s 

criminal case.
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At the conclusion of the records hearing, Boppre asked 

the court to rule on his motion to correct the record. The 

court determined that issue was moot, reasoning that Boppre 

had already offered, and the court had received, the exhibits Boppre described as correct and complete copies of his 

amended motion for new trial and all supporting documents. 

From that point forward, the parties and the court treated 

those exhibits as the operative third motion for new trial and 

the documents Boppre intended to support that motion. We 

do likewise.

(b) Court’s Order of Dismissal and Denial 

of Motion to Alter or Amend

On March 31, 2021, the district court entered an order ruling 

on Boppre’s third motion for new trial. The order identified 10 

categories of newly discovered evidence asserted in the operative motion and analyzed them all, ultimately concluding that 

Boppre was not entitled to an evidentiary hearing on any of his 

claims. The court thus dismissed the third motion for new trial 

without an evidentiary hearing. 20

Boppre filed a timely motion to alter or amend, asserting 

that the dismissal was improper and that he was entitled to an 

evidentiary hearing under § 29-2102(2). In support, Boppre 

offered three new exhibits that the court received over the 

State’s objection. After taking the matter under advisement, 

the court entered an order overruling Boppre’s motion to alter 

or amend and expressly finding that the new exhibits did not 

change its conclusion that an evidentiary hearing was not 

required on Boppre’s third motion for new trial. Boppre filed 

this timely appeal.

II. ASSIGNMENT OF ERROR

Boppre assigns several errors that we consolidate and 

restate as one: The district court erred in dismissing his 

20 See Neb. Rev. Stat. § 29-2102(2) (Reissue 2016).
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operative motion for new trial without conducting an evidentiary hearing. In support of this assignment, Boppre generally argues that the claims of newly discovered evidence 

asserted in his operative motion for new trial, and the supporting documents relating to those claims, satisfied the hearing 

requirements set out in § 29-2102(2).

III. STANDARD OF REVIEW

[1] 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. 21 Which of 

these standards to apply in this appeal depends on how the 

records hearing is characterized. We conclude the de novo standard of review is appropriate because, as we will explain, the 

records hearing was not an evidentiary hearing on the motion 

for new trial, but, rather, was a prehearing procedure designed 

to assist the district court in determining whether an evidentiary hearing was required.

This court has not directly addressed the propriety of 

holding a records hearing when considering whether to 

grant an evidentiary hearing on a motion for new trial under 

§ 29-2102(2). 22 But in the postconviction context, we have 

long recognized that trial courts have discretion to adopt reasonable procedures for identifying which records to review 

when determining whether to grant a full evidentiary hearing. 23 And we have said that reasonable procedures can include 

holding a records hearing during which the court “receiv[es] 

into evidence the relevant files and records that the court 

21 See State v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017). See, also, State v. 

Hill, 308 Neb. 511, 955 N.W.2d 303 (2021).

22 But see Hill, supra note 21 (Stacy, J., concurring).

23 See, e.g., State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018).
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may need to review in considering whether to grant or deny 

an evidentiary hearing.” 24

[2] The statute governing evidentiary hearings under the 

Nebraska Postconviction Act is similar to the statute governing evidentiary hearings on motions for new trial, in that 

both require the court to make a preliminary examination and 

determine whether an evidentiary hearing on the motion is 

required. 25 We now expressly hold that 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. 

However, as we have emphasized in the postconviction context, the scope of what a court may receive at a records hearing 

must comport with the procedure mandated by the governing 

statutory scheme. 26

Here, in response to Boppre’s contention that the amended 

motion and supporting documents accepted for electronic filing were incomplete and inaccurate, the district court used the 

records hearing to receive a complete and accurate copy of 

the operative motion and supporting documents. The records 

hearing was also used to provide the court with portions of 

the existing court record pertinent to considering whether 

Boppre’s third motion for new trial was timely under Neb. 

Rev. Stat. § 29-2103 (Reissue 2016) and satisfied the statutory 

requirements for an evidentiary hearing under § 29-2102(2). 

As utilized by the district court, the records hearing was a 

reasonable prehearing procedure on Boppre’s third motion for 

new trial.

24 State v. Glover, 276 Neb. 622, 628, 756 N.W.2d 157, 162 (2008).

25 See Cross, supra note 21, 297 Neb. at 161, 900 N.W.2d at 6 (comparing 

evidentiary hearing provisions in § 29-2102(2) and Neb. Rev. Stat. 

§ 29-3001(2) (Reissue 2016) and noting “the legislative history of 

§ 29-2102(2) suggests the Legislature intended the new prehearing review 

process applicable to motions for new trial to be similar to the prehearing 

review process applied in postconviction actions”).

26 See Glover, supra note 24.
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IV. ANALYSIS

1. Overview of Motions for 

New Trial Based on Newly 

Discovered Evidence

In criminal cases, motions for new trial are governed by the 

provisions in Neb. Rev. Stat. §§ 29-2101 to 29-2103 (Reissue 

2016). Section 29-2101 sets out seven grounds on which such 

a motion may be based. Boppre’s operative motion for new 

trial relies exclusively on § 29-2101(5). Section 29-2101 provides, in relevant part:

A new trial, after a verdict of conviction, may be 

granted, on the application of the defendant, for any of 

the following grounds affecting materially his or her 

substantial rights: . . . (5) newly discovered evidence 

material for the defendant which he or she could not with 

reasonable diligence have discovered and produced at the 

trial . . . .

[3] We have interpreted § 29-2101(5) to authorize a new 

trial when the defendant satisfies a two-prong burden of 

proof. 27 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. 28 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. 29 Such evidence must be competent, material, and 

27 See State v. Brown, 310 Neb. 318, 965 N.W.2d 388 (2021).

28 See id.

29 See, id.; State v. Krannawitter, 305 Neb. 66, 939 N.W.2d 335 (2020). 

Accord, State v. Kofoed, 283 Neb. 767, 798, 817 N.W.2d 225, 248 (2012) 

(criminal defendants seeking new trial on ground of newly discovered 

evidence “must show that if the evidence had been admitted at the former 

trial, it would probably have produced a substantially different result”); 

State v. Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005) (same); State v. 

Faust, 269 Neb. 749, 696 N.W.2d 420 (2005) (same).
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credible, and not merely cumulative. And it must involve 

something other than the credibility of witnesses who testified 

at the former trial. 30

But the issue raised in this appeal is not whether Boppre is 

entitled to the relief of a new trial; rather, it is whether Boppre’s 

motion for new trial and supporting documents entitled him to 

an evidentiary hearing. We thus begin by reviewing the various 

statutory requirements that must be satisfied to avoid dismissal 

of a motion for new trial without an evidentiary hearing.

(a) Form and Content Requirements

Section 29-2103 requires all motions for new trial to be 

“made by written application” 31 and to “state the grounds 

under section 29-2101 which are the basis for the motion.” 32

Additionally, all new trial motions must “be supported by evidence as provided in section 29-2102.” 33

[4] Section 29-2102(1) sets out the type of evidence that 

will support a motion for new trial based on newly discovered evidence under § 29-2101(5), and it provides that such 

a motion “shall be supported by evidence of the truth of the 

ground in the form of affidavits, depositions, or oral testimony.” If a motion under § 29-2101(5) 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. 34 We elaborate further on this supporting 

document requirement later in our analysis.

30 State v. French, 200 Neb. 137, 262 N.W.2d 711 (1978).

31 § 29-2103(1).

32 § 29-2103(2).

33 Id.

34 See, Hill, supra note 21 (affirming dismissal of motion for new trial based 

on newly discovered evidence because defendant’s motion did not include 

required supporting documents in form of affidavits, depositions, or oral 

testimony); Cross, supra note 21 (holding handwritten letter attached to 

motion for new trial based on newly discovered evidence was not type of 

supporting evidence permitted by § 29-2102(1)).
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(b) Timeliness Requirements

[5] To have any effect, a motion for new trial must comply 

with the statutory time limitations. 35 Section 29-2103 imposes 

different time limits on filing motions for new trial, depending 

on the statutory ground relied upon. We limit our discussion 

here to motions based upon the ground of newly discovered evidence.

Prior to August 30, 2015, a motion based on newly discovered evidence had to be “filed within a reasonable time after 

the discovery of the new evidence and [could not] be filed 

more than three years after the date of the verdict.” 36 But in 

2015, 37 the Legislature amended the new trial statutes, including the timeliness requirements in § 29-2103. Currently, a 

motion for new trial alleging 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 is so substantial that a 

different result may have occurred. 38

The 2015 amendments thus retained the statutory requirement that motions for new trial based on newly discovered 

evidence must be filed “within a reasonable time after the 

discovery of the new evidence,” but repealed the 3-year time 

bar and replaced it with a qualified 5-year time bar. 39 Our prior 

opinions have not discussed how to construe the qualified 

5-year time bar, and we do not discuss it in this opinion either. 

35 See State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).

36 See § 29-2103(4) (Reissue 2008).

37 2015 Neb. Laws, L.B. 245.

38 § 29-2103(4) (Reissue 2016).

39 See 2015 Neb. Laws, L.B. 245.
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Instead, our timeliness inquiry will focus on the statutory 

requirement that the motion “shall be filed within a reasonable 

time after the discovery of the new evidence.” 40

[6] 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. 41

(c) Statutory Standard for 

Evidentiary Hearing

Evidentiary hearings have long been used by trial courts 

when considering motions for new trial, but the Legislature’s 

2015 amendments to the new trial statutes added specific provisions governing evidentiary hearings. 42 Section 29-2102(2) 

currently provides:

If the motion for new trial and supporting documents 

fail to set forth sufficient facts, the court may, on its 

own motion, dismiss the motion without a hearing. If the 

motion for new trial and supporting documents set forth 

facts which, if true, would materially affect the substantial rights of the defendant, the court shall cause notice 

of the motion to be served on the prosecuting attorney, 

grant a hearing on the motion, and determine the issues 

and make findings of fact and conclusions of law with 

respect thereto.

The hearing provisions in § 29-2102(2) apply regardless 

of the statutory ground on which a new trial is sought, but in 

State v. Hill,

 43 we considered how those provisions apply to a 

40 § 29-2103(4).

41 See, Bartel, supra note 35 (refusing to consider motion for new trial to 

extent grounds failed to conform to statutory timeliness requirements);

Cross, supra note 21.

42 See 2015 Neb. Laws, L.B. 245.

43 See Hill, supra note 21.
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motion for new trial asserting the ground of newly discovered 

evidence. Hill explained that when a motion for new trial is 

based on newly discovered evidence, a court may dismiss the 

motion without an evidentiary hearing if the motion and supporting documents “did not set forth sufficient facts to establish 

that there was newly discovered evidence, that such evidence 

was material to [the] defense, and that [the defendant] could 

not with reasonable diligence have discovered and produced 

the evidence at . . . trial.” 44

Hill did not directly address what it means under § 29-2102(2) 

to “set forth facts which, if true, would materially affect the 

substantial rights of the defendant.” We note that nearly identical materiality language appears in § 29-2101, which provides 

that a new trial may be granted for “grounds affecting materially [the defendant’s] substantial rights.” And in the context of 

motions for new trial based on newly discovered evidence, we 

have long construed the materiality provision in § 29-2101 to 

require that a defendant must show the evidence is so substantial that with it, a different verdict would probably have been 

reached at trial. 45

[7,8] When the Legislature amended § 29-2102(2) in 2015 

to add evidentiary hearing requirements, it used materiality 

language that is nearly identical to that used in § 29-2101. It 

is a settled principle of statutory construction that 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. 46 Because the materiality provisions in 

44 Id. at 520, 955 N.W.2d at 309.

45 See, Brown, supra note 27; Krannawitter, supra note 29. Accord, Kofoed, 

supra note 29; Dunster, supra note 29; Faust, supra note 29.

46 State v. Roth, 311 Neb. 1007, 977 N.W.2d 221 (2022).
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§§ 29-2101 and 29-2102(2) use nearly identical language, we 

construe them consistently. 47

[9] As such, building on our proposition from Hill, we now 

hold that when a defendant seeks a new trial on the ground 

of newly discovered evidence, the evidentiary hearing provisions of § 29-2102(2) 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.

(d) Summary of Analytical Framework

[10] In summary, 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 §§ 29-2102 and 

29-2103; (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.

Before analyzing whether Boppre’s motion and supporting 

documents satisfy all these requirements, there are several 

preliminary matters to address. In the sections that follow, we 

47 See, In re Estate of Psota, 297 Neb. 570, 900 N.W.2d 790 (2017) (in 

enacting statute, Legislature is presumed to have knowledge of all previous 

legislation on subject); Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 

296 (2017) (where statute has been judicially construed and construction 

has not evoked amendment, it is presumed Legislature acquiesced in 

court’s determination of its intent).
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(1) identify what Boppre is claiming to be newly discovered 

evidence, (2) identify which of Boppre’s supporting documents 

are properly considered, (3) address the unusual procedural 

posture of this case, and (4) address the applicability of the 

law-of-the-case doctrine.

2. Preliminary Matters

(a) Identifying Boppre’s Claims of 

Newly Discovered Evidence

As the district court noted, the manner in which Boppre has 

styled his operative motion for new trial makes it exceptionally challenging to identify what, specifically, he asserts is 

the newly discovered evidence that supports his third motion 

for new trial. Instead of facilitating the preliminary judicial 

review required by §§ 29-2101 to 29-2103, Boppre’s operative 

motion and supporting documents unnecessarily frustrated it.

Boppre’s operative motion reads more like a true crime 

mystery than a concise legal motion. It is 153 pages long, 

includes more than 60 images and video links, and buries factual assertions within long historical narratives that are scattered with legal conclusions. We discern no meaningful effort 

to tie any of the allegations to the statutory requirements for an 

evidentiary hearing set out in § 29-2102(2), or to the timeliness 

requirements set out in § 29-2103(4).

[11] We are seeing similarly drafted motions with more 

regularity in cases such as this, and we expressly disapprove 

of the practice. It makes the trial court’s preliminary review 

process unnecessarily cumbersome and increases the risk that 

even a careful review of a novel-length motion might fail to 

identify a critical fact or supporting document. Although the 

rules of civil pleading do not govern motions such as this, 48

that does not mean that courts must tolerate motions for 

48 See State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016) (holding 

that motions in postconviction proceedings are not governed by Nebraska 

Court Rules of Pleading in Civil Cases).
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new trial that are not clear and succinct. It is not the court’s 

duty to scour the record in search of facts that might support 

a claim. 49

[12] In a postconviction motion, when stating the “grounds 

relied upon” 50 for postconviction relief, we require defendants 

to “make specific allegations instead of mere conclusions of 

fact or law in order to receive an evidentiary hearing.” 51 We 

now recognize a similar pleading requirement for defendants 

filing a motion for new trial: Such motions must make specific allegations, instead of mere conclusions of fact or law, to 

receive an evidentiary hearing. Indeed, the statutes governing 

motions for new trial are perhaps even more specific in this 

regard than the statutes governing postconviction motions, 

because § 29-2102(2) requires motions for new trial to “set 

forth sufficient facts” and provides that if a motion fails to 

do so, “the court may, on its own motion, dismiss the motion 

without a hearing.”

[13] To assist both litigants and trial courts, we clarify that 

in order to “set forth sufficient facts” under § 29-2102(2), 

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 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.

49 See In re App. No. C-4973 of Skrdlant, 305 Neb. 635, 942 N.W.2d 196 

(2020). Accord, State v. Jennings, 312 Neb. 1020, 1026, 982 N.W.2d 216, 

223 (2022) (courts “will not scour the record on appeal to understand 

unclear arguments or find support for broad conclusions”); State v. Wood, 

310 Neb. 391, 427, 966 N.W.2d 825, 853 (2021) (recognizing courts “do 

not scour the record in search of facts that might support an appellant’s 

claim”).

50 § 29-3001(1).

51 Boppre V, supra note 16, 280 Neb. at 784, 790 N.W.2d at 425.
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Boppre’s operative motion was far from clear and succinct, 

but with the assistance of written briefs, the district court 

was able to discern that Boppre was asserting 10 categories 

of newly discovered evidence. On appeal, Boppre acknowledges that the “trial court divided Boppre’s newly discovered 

evidence into ten categories,” 52 and he does not assign or 

argue that the court erred by misidentifying, mischaracterizing, 

or overlooking any category of newly discovered evidence 

alleged in his operative motion. We therefore use the same 

10 categories of evidence as the starting point for our appellate review. But we do not ultimately address all 10 categories 

of evidence, because we conclude only four of the categories 

were sufficiently argued in Boppre’s appellate brief.

[14,15] To be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically 

argued. 53 Conclusory assertions unsupported by coherent analytical argument fail to satisfy the requirement of arguing an 

assigned error to obtain consideration by an appellate court. 54

Although Boppre’s brief makes conclusory statements about 

several categories of newly discovered evidence considered 

by the district court, he does not support those statements with 

coherent legal analysis. Several other categories of evidence 

are referenced only in a summary chart appearing at the end 

of Boppre’s brief, again with no legal analysis. Because this 

does not satisfy the rule that assigned errors must be specifically argued, our de novo review will consider only those 

categories of newly discovered evidence that were considered 

by the district court and that Boppre specifically assigned and 

specifically argued in his appellate brief. We describe those 

four categories broadly now and provide greater detail later 

in our analysis.

52 Brief for appellant at 20.

53 See, State v. Miranda, 313 Neb. 358, 984 N.W.2d 261 (2023); Humphrey 

v. Smith, 311 Neb. 632, 974 N.W.2d 293 (2022).

54 State v. Trail, 312 Neb. 843, 981 N.W.2d 269 (2022).
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Broadly stated, our de novo review will address the following four categories of evidence: (1) evidence supporting the 

theory that Yellowboy was responsible for murdering Valdez 

and Condon, (2) evidence suggesting the gun recovered in 

New Mexico was not the murder weapon, (3) evidence undermining the State’s theories at trial, and (4) evidence that 

Boppre’s trial counsel had a conflict of interest.

(b) Proper Supporting Documents

[16] As stated, § 29-2102(1) directs that motions for new 

trial asserting newly discovered evidence “shall be supported 

by evidence of the truth of the ground in the form of affidavits, depositions, or oral testimony.” We have construed this 

statutory requirement to mandate such supporting documents 

and to allow dismissal without an evidentiary hearing when 

no such supporting documents are presented. 55 And we have 

emphasized that “[t]he requirement for evidence of the truth of 

the asserted grounds is not trivial; it is designed, inter alia, to 

demonstrate the strength of the claim, which in turn determines 

entitlement to a hearing.” 56 Thus, even when the allegations 

in the motion itself 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 

§ 29-2102(1) provides a basis for dismissal without an evidentiary hearing. 57

At the records hearing in this case, the court received more 

than 1,000 pages of supporting documents comprising various 

affidavits, as well as stand-alone photographs, letters, newspaper articles, magazine articles, police reports, pleadings, 

orders, and a variety of other documents. But only affidavits, depositions, and oral testimony are competent supporting documents under the plain language of § 29-2102(1). We 

55 See Hill, supra note 21.

56 Id. at 521, 955 N.W.2d at 309.

57 Hill, supra note 21.
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therefore limit our de novo review of Boppre’s supporting 

documents to those authorized by § 29-2102(1), which in this 

case include only the affidavits received during the records 

hearing. We neither consider nor discuss the other documents 

received at the records hearing.

[17] Nor do we consider any of the exhibits that Boppre 

offered during the hearing on his motion to alter or amend. 

At the point when Boppre offered such exhibits, the court had 

already conducted its review of the operative motion and supporting documents, had determined they did not warrant an 

evidentiary hearing, and had entered an order dismissing the 

motion. While nothing in the statutes authorizing motions for 

new trials in criminal cases expressly precludes a party from 

asking the court to alter or amend its ruling dismissing such 

a motion, neither do the statutes authorize expanding the supporting documents after the court has entered a final order 

denying the motion. 58 Simply put, we do not read the new 

trial statutes to permit a defendant to supplement the required 

supporting documents after receiving an order dismissing the 

motion without an evidentiary hearing. Consequently, our de 

novo review will consider only those supporting documents 

that were received during the records review hearing and that 

also comport with § 29-2102(1).

(c) Unique Procedural Posture

When considering whether Boppre’s third motion for new 

trial was filed within a reasonable time after the discovery 

of the evidence he relies upon, we do not ignore the unique 

procedural circumstances presented by the 2015 amendments 

to § 29-2103(4). Before such amendments, a motion for new 

trial based on newly discovered evidence could not be filed 

more than 3 years after the date of the verdict. 59 Boppre’s 

58 Accord Robertson, supra note 48 (holding Nebraska Postconviction Act 

does not contemplate opportunity to amend motion after court determines 

it is not sufficient to necessitate evidentiary hearing).

59 See 2015 Neb. Laws, L.B. 245.
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verdicts occurred in 1989, so after he filed his first motion 

for new trial in 1992, Boppre was effectively time barred 

from filing a motion for new trial based on newly discovered 

evidence under § 29-2101(5) until the effective date of the 

amendments to § 29-2103(4) on August 30, 2015. While not 

determinative, this procedural posture is one of the circumstances we consider when evaluating the timeliness of the 

claims asserted in his December 2018 motion.

(d) Law-of-the-Case Doctrine

The State’s brief on appeal argues that several of Boppre’s 

claims of newly discovered evidence are barred by the lawof-the-case doctrine, because substantially similar claims have 

already been considered and rejected by an appellate court. We 

have not previously discussed the applicability of this doctrine 

in the context of motions for new trial based on newly discovered evidence.

[18-20] 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. 60 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. 61 The doctrine promotes judicial efficiency and protects parties’ settled 

expectations by preventing parties from relitigating settled 

issues within a single action. 62

[21,22] 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 

60 Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).

61 State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020); State v. Lavalleur, 

298 Neb. 237, 903 N.W.2d 464 (2017).

62 Spratt v. Crete Carrier Corp., 311 Neb. 262, 971 N.W.2d 335 (2022).
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implication. 63 The doctrine is not without exceptions, however. 

Courts will not apply the law-of-the-case doctrine “if considerations of substantial justice suggest a reexamination of the 

issue is warranted,” 64 if materially and substantially different 

facts are presented, 65 or if the applicable law has changed. 66

[23] This court has applied the law-of-the-case doctrine in 

criminal cases, 67 in postconviction cases, 68 and in motions for 

new trial based on DNA testing. 69 We see no principled reason 

the doctrine cannot also be applied in motions for new trial 

when the defendant asserts that evidence is newly discovered, 

but the files and records in the case show that 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. 70 However, just as in other case types, the doctrine 

63 Price, supra note 61; Lavalleur, supra note 61.

64 Price, supra note 61, 306 Neb. at 52, 944 N.W.2d at 291. Accord, Money, 

supra note 60 (law-of-case doctrine will not apply when considerations 

of substantial justice suggest reexamination of issue is warranted, when 

materially and substantially different facts are presented, or when applicable 

law has changed); State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006) 

(law-of-case doctrine will not preclude reconsideration of foundational 

challenge to expert’s testimony in second trial, where expert’s opinions 

varied from one trial to next and new legal standard for admissibility was 

adopted after first trial).

65 See, Price, supra note 61; Lavalleur, supra note 61; Money, supra note 60.

66 See, Money, supra note 60; Davlin, supra note 64.

67 See, e.g., Price, supra note 61; Lavalleur, supra note 61; State v. Merchant, 

288 Neb. 439, 848 N.W.2d 630 (2014); Davlin, supra note 64.

68 See, e.g., Thomas v. State, 268 Neb. 594, 685 N.W.2d 66 (2004) (holding 

law-of-case doctrine precluded reconsideration of alleged juror misconduct 

in connection with postconviction claim because appellate court had 

previously affirmed denial of motion for new trial based on claims of juror 

misconduct).

69 See, e.g., State v. Pratt, 277 Neb. 887, 766 N.W.2d 111 (2009) (holding 

law-of-case doctrine did not preclude trial court from reconsidering matter 

not reached in prior appeal that was dismissed for lack of jurisdiction).

70 See, Price, supra note 61; Lavalleur, supra note 61.
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should not be applied if the defendant presents materially and 

substantially different facts, 71 when the applicable law has 

changed, 72 or when considerations of substantial justice suggest 

a reexamination of the issue is warranted. 73

3. Analysis of Boppre’s Motion 

and Supporting Documents

Having reviewed the analytical framework and addressed 

the preliminary matters bearing on our de novo review, we 

turn now to consideration of whether Boppre was entitled to 

an evidentiary hearing on any of the four broad categories 

of newly discovered evidence that he asserted in his operative motion for new trial and specifically assigned and argued 

in his appellate brief. For the convenience of the reader, we 

repeat the most pertinent standards that govern judicial review 

of a motion for new trial asserting the ground of newly discovered evidence.

The statutory form and content requirements are met when 

the motion is “supported by evidence of the truth of the ground 

in the form of affidavits, depositions, or oral testimony.” 74 The 

statutory time requirement in § 29-2103(4) is met when the 

motion is filed within a reasonable time after the discovery 

of the new evidence. And an evidentiary hearing is required 

by § 29-2102(2) when the motion and supporting documents 

set forth sufficient facts which, if true, establish that (1) the 

evidence relied upon 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.

71 Id.

72 See Money, supra note 60.

73 See Price, supra note 61. Accord Davlin, supra note 64.

74 § 29-2102(1).
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(a) Evidence Implicating Yellowboy

Boppre’s operative motion and appellate briefing describe 

three subcategories of newly discovered evidence implicating 

Yellowboy as the person who murdered Valdez and Condon: 

(1) evidence that Yellowboy’s DNA was discovered at the 

crime scene, (2) evidence that M.M. heard Yellowboy’s voice 

on the night of the murders, and (3) evidence that Yellowboy 

made statements about committing the murders. In the sections that follow, we summarize each of these subcategories of evidence and the supporting documents that Boppre 

offered to show the truth of such evidence. We then analyze 

whether Boppre’s motion and supporting documents satisfied all the requirements for an evidentiary hearing regarding 

such evidence.

(i) Evidence of Yellowboy’s DNA

Boppre’s motion alleges that “previously ordered” DNA 

testing identified Yellowboy as the source of a bloodstain 

found beside a door handle in Valdez’ home. He asserts this 

evidence is material because “[t]here is no innocent explanation for Yellowboy’s blood stains [on] the door of the farmhouse.” We identify just one supporting document referencing 

this evidence—an affidavit from a medical doctor opining 

that there may have been more than one assailant involved in 

Valdez’ murder.

We need not analyze whether Boppre’s motion and supporting documents satisfy all the requirements for an evidentiary 

hearing on this evidence, because we conclude the same evidence of Yellowboy’s DNA has already been considered in this 

case and found not to support a new trial, so the claim is barred 

by the law-of-the-case doctrine.

In Boppre V, decided in 2010, we considered the same 

DNA test results Boppre now claims are newly discovered, 

and we concluded the evidence did not entitle Boppre to a 

new trial under the DNA Testing Act. We described the issue 

on appeal as “whether the [Yellowboy] DNA evidence was of 
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such a nature that if it had been offered and admitted at the 

former trial, it probably would have produced a substantially 

different result.” 75 We concluded the DNA evidence was not 

exculpatory, because it did not disprove the State’s theory that 

Boppre was the perpetrator and did not impeach Niemann’s 

and Wasmer’s testimony that Boppre was the shooter. Instead, 

we found the DNA evidence “merely showed that . . . 

Yellowboy, a frequent visitor, had been to the Valdez home 

at some point in time prior to the murder investigation.” 76 We 

also noted that Boppre called Yellowboy as a witness during 

trial and that Yellowboy admitted he was at the Valdez home 

on the night of the murders and saw Boppre there. Finally, for 

the sake of completeness, we stated in Boppre V that even if 

the DNA evidence were considered in light of other evidence 

Boppre had developed after trial, “the DNA results would still 

not be exculpatory.” 77

The law-of-the-case doctrine plainly bars reconsideration 

of Boppre’s claim that he is entitled to a new trial based on 

evidence that Yellowboy’s DNA profile was found in a bloodstain near a door handle at the Valdez home. We have already 

considered the same evidence and concluded that it would not 

have produced a different result at trial, and Boppre’s current 

motion presents no materially different facts regarding this 

DNA evidence; nor does he suggest that considerations of substantial justice warrant reexamination of the issue or that the 

applicable law has changed. The district court did not err in 

dismissing this claim without an evidentiary hearing.

(ii) Evidence That M.M. Heard 

Yellowboy’s Voice

Boppre’s operative motion describes “newly discovered” 

evidence that M.M. was hiding under a mattress in the bedroom when the murders occurred and heard Yellowboy’s 

75 Boppre V, supra note 16, 280 Neb. at 781, 790 N.W.2d at 423.

76 Id. at 783, 790 N.W.2d at 424.

77 Id.
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voice but did not hear Boppre’s voice. Boppre claims he 

did not know about this evidence at the time of trial. But he 

acknowledges that since at least 1992, he and his investigators have known that M.M. claimed to have been hiding under 

the mattress during the murders and said she did not hear 

Boppre’s voice. Despite this knowledge, Boppre’s operative 

motion alleges that M.M. did not tell her “full true” story 

about this evidence to Boppre’s investigators until 2017. The 

operative motion therefore characterizes M.M.’s 2017 affidavit as “newly discovered for the purposes of this Motion.”

In her 2017 affidavit, M.M. states that she and Condon were 

in a bedroom talking when they heard people arrive. M.M. 

affirmatively states that she heard Yellowboy’s voice, after 

which Condon told her to hide, so she crawled

between the wall and the bed and I was able to pull the 

mattress over me a little. I could hear people walking 

around and muffled conversations but I was so scared and 

I couldn’t really understand what was going on. I could 

hear at least two voices but somehow I feel like there was 

three people there. I knew . . . Boppre’s voice and I did 

not hear his voice that night.

To support the truth of M.M.’s claim that she was hiding inside 

the Valdez house at the time of the murders, Boppre refers to 

several other affidavits in the record, including prior affidavits 

signed by M.M. in 1992.

Once again, we need not analyze whether Boppre’s motion 

and supporting documents satisfy all the requirements for 

an evidentiary hearing on this claim, because we conclude 

that reconsideration of this evidence is barred by the law-ofthe-case doctrine. As our earlier recitation of the procedural 

background illustrates, this is not the first time Boppre has 

requested a new trial based on a statement by M.M. that she 

was hiding at the murder scene and heard Yellowboy’s voice, 

but not Boppre’s voice. We considered substantially similar 

evidence in both Boppre II and Boppre V.
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In Boppre II, we considered Boppre’s claim that the State 

engaged in prosecutorial misconduct by not disclosing M.M.’s 

statement. 78 We rejected that claim, concluding that M.M.’s 

statement was not material and would not have created reasonable doubt as to Boppre’s guilt, because M.M. did not claim 

to see anything directly relevant to the killings and “never 

was in a position to claim that [Boppre] was not present at 

the scene or that he was not the one who shot the victims.” 79

We specifically found that even if M.M.’s testimony had been 

offered at trial, “it would not create a reasonable doubt as to 

[Boppre’s] guilt which did not otherwise exist.” 80

In Boppre V, we considered Boppre’s claim that his due 

process rights were violated when the State failed to disclose 

M.M.’s statements. 81 We again concluded that M.M.’s statements were not material to Boppre’s guilt, reasoning that her 

evidence was not “favorable evidence that was material to 

Boppre’s guilt.” 82

Although Boppre suggests that M.M.’s 2017 affidavit is 

more complete than her prior affidavits, the substance of what 

she claims to have heard while hiding under the mattress is 

no different than the evidence we considered in Boppre II

and Boppre V. We have already concluded this evidence does 

not materially affect Boppre’s guilt and does not entitle him 

to a new trial, and Boppre does not assert, nor do we find, 

that the applicable law has changed 83 or that considerations 

of substantial justice suggest a reexamination of the issue 

is warranted. 84 We therefore conclude the law-of-the-case 

78 Boppre II, supra note 5.

79 Id., 243 Neb. at 927-28, 503 N.W.2d at 538.

80 Id. at 928, 503 N.W.2d at 538.

81 Boppre V, supra note 16.

82 Id. at 785, 790 N.W.2d at 426.

83 See Money, supra note 60.

84 See Price, supra note 61. Accord Davlin, supra note 64.
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doctrine bars reconsideration of this evidence as reframed in 

M.M.’s 2017 affidavit.

(iii) Evidence of Yellowboy’s Confession

Boppre’s operative motion asserts there is newly discovered 

evidence that, at some point before Boppre’s trial, Yellowboy 

told a woman named “Sheila” that he killed Valdez and Condon 

and threatened to do the same to Sheila. The motion generally 

refers to Yellowboy’s statements as “confessions.” Boppre’s 

supporting documents for this claim include several affidavits, 

one of which was signed by Sheila on August 8, 2017.

In this affidavit, Sheila states that sometime after the murders, Yellowboy kidnapped her from a motel in Scottsbluff 

and drove her to the vacant home where Valdez and Condon 

were murdered. Sheila states that Yellowboy physically and 

sexually assaulted her inside the home and that during the 

assaults, he said “he would kill me like he killed [Condon] 

and that no one would find me.” Sheila stated that after 

this, Yellowboy claimed that “he owned” her and that she 

“would never be able to get away.” He told Sheila that if she 

disobeyed him, he would “find [her] and kill [her].” Sheila 

states that another time, Yellowboy took her to a cemetery in 

Scottsbluff and said they “were at [Condon’s] grave.” While 

they were there, he raped and beat Sheila and told her that 

“he wished he had stabbed [Condon] instead of shooting her.” 

He also told Sheila that if she ever left him, “he would find 

[her] and kill [her].” Sheila’s affidavit states that her fear of 

Yellowboy prompted her to move to another state and prevented her from coming forward sooner.

To support the truth of Sheila’s evidence about Yellowboy’s 

statements, Boppre refers to M.M.’s 1992 and 2017 affidavits, in which M.M. avers that someone named “Sheila” 

told her that Yellowboy confessed to killing Valdez and 

Condon. Boppre also refers to supporting affidavits describing 

Yellowboy’s violent criminal history both before and after the 

murders of Valdez and Condon, which Boppre says “shows 
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[Yellowboy] to be perfectly capable of having committed the 

murders.” Finally, Boppre refers to affidavits from his investigators describing the various investigative tools they had 

used since 1992 in an effort to locate and interview Sheila and 

explaining how, in 2017, they eventually located her living in 

Florida under a different surname and traveled there to obtain 

her affidavit.

The district court concluded that Sheila’s evidence about 

Yellowboy’s statements did not require an evidentiary hearing 

for several reasons: (1) The evidence was discovered decades 

ago (which we understand to be an implicit finding that the 

motion was not filed within a reasonable period of time after 

discovering the evidence); (2) the evidence is inadmissible 

hearsay; and (3) in any event, the evidence is not so substantial that with it, a different verdict would probably have been 

reached at trial.

Regarding Sheila’s evidence, we need not analyze whether 

Boppre’s motion and supporting documents satisfy all of the 

requirements for an evidentiary hearing, because we conclude 

Boppre’s motion and supporting documents have not set forth 

facts which, if true, would materially affect his substantial 

rights. 85 In other words, this evidence is not so substantial that 

with it, a different verdict would probably have been reached 

at trial.

As the district court observed, Sheila’s testimony about 

what Yellowboy said to her appears to be inadmissible hearsay 

being offered for its truth. 86 Boppre’s motion has advanced no 

legal theory under which such statements would be admissible 

if offered during either an evidentiary hearing or a new trial, 

and it is fundamental that newly discovered evidence must 

be admissible before it can be evidence that is so substantial 

85 See § 29-2102(2).

86 See Neb. Rev. Stat. § 27-801 (Reissue 2016) (defining hearsay as “a 

statement, other than one made by the declarant while testifying at the trial 

or hearing, offered in evidence to prove the truth of the matter asserted”).
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that with it, a different verdict would probably have been 

reached at trial.

But even if there is some theory under which Sheila’s testimony about Yellowboy’s statements might be deemed admissible, this evidence, even if true, is not so substantial that 

with it, a different verdict probably would have been reached 

at trial. 87 As our earlier recitation of the evidence at trial 

demonstrates, there was overwhelming evidence of Boppre’s 

guilt, including eyewitness testimony identifying Boppre as 

the shooter, testimony from Boppre’s jailmate that Boppre 

admitted to the murders, expert ballistics evidence connecting 

bullets and casings found at the murder scene to a handgun 

owned and used by Boppre, and a dying declaration written 

by one of the victims identifying Boppre by name. None of 

this evidence is refuted or weakened by Sheila’s testimony that 

Yellowboy “confessed” to the killings while he was assaulting 

her. Moreover, the context of Yellowboy’s statements strongly 

suggests he made the statements to terrorize and control Sheila, 

rather than to confess responsibility for the murders. We cannot find the district court erred in dismissing this claim without 

an evidentiary hearing.

(b) Evidence Relating to 

Murder Weapon

Boppre’s operative motion asserts there is newly discovered 

evidence that calls into question whether “major undisclosed 

modifications were made to the [handgun recovered in New 

Mexico] before it was tested” and whether the handgun found 

in New Mexico is “the same gun that is still in evidence and 

was identified as the murder weapon.” As part of this claim, 

Boppre identifies three subcategories of evidence that he 

describes as newly discovered: (1) evidence regarding a missing magazine release, (2) evidence that the murder weapon 

was reported stolen, and (3) evidence that Niemann was in jail 

87 See Krannawitter, supra note 29.
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in Nebraska on the day the handgun was recovered in New 

Mexico. Boppre argues this evidence “call[s] into question the 

entire story surrounding the discovery of the gun.” 88 Before we 

analyze each subcategory of evidence, we provide additional 

detail about the ballistics evidence adduced at trial.

(i) Ballistics Evidence

Evidence at trial established that before the murders of 

Valdez and Condon, Boppre owned a handgun and used it for 

target practice near his father’s residence. After the murders, 

investigators recovered shell casings from the target practice 

area. Evidence at trial also established that after the murders, 

Wasmer and Niemann led law enforcement to an area in New 

Mexico where they located and recovered parts of the handgun 

allegedly used in the murders of Valdez and Condon.

The State’s ballistics expert testified that the recovered 

handgun, a “La Industrial Orbea Eibar .32 auto. pistol,” was 

caked in mud and debris and had “several parts . . . missing” 

when it was delivered to him. Using a photograph of an exemplar gun of the same make and model, the expert generally 

testified about which parts were missing from the recovered 

gun, and about the modifications required to get the recovered 

gun to fire so that ballistics testing could be performed. The 

expert did not purport to testify about every modification he 

made in order to get the gun to fire, but he did testify that 

none of the modifications would “in any way change what 

kind of markings would end up on a shell casing or the bullet.” He also testified that if the recovered gun had been in 

proper working order, it would have fired nine rounds from 

a magazine clip, but that when he test-fired the recovered 

gun, he was “not using a magazine to automatically load” 

the rounds and instead had to “manually pull the slide back, 

feed another [round] into the chamber, close the slide and fire 

it again.”

88 Brief for appellant at 17.
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The State’s ballistics expert also testified about testing performed on both shell casings and bullets. Using a microscope, 

the expert examined the shell casings recovered from Boppre’s 

target practice area and the shell casings recovered from the 

murder scene and concluded they came from the same gun. 

The expert also concluded the shell casings from bullets testfired from the gun recovered in New Mexico matched the shell 

casings recovered from the murder scene.

As to the bullets, the State’s expert testified that bullets 

recovered from the murder scene and from the victims’ bodies matched the bullets test-fired from the recovered handgun. 

The State’s ballistics evidence thus tied Boppre to the crime 

in two ways: (1) Shell casings from Boppre’s target practice 

area matched casings recovered from the murder scene, and 

(2) casings and bullets from test-firing the recovered handgun 

matched casings and bullets recovered from the murder scene 

and the victims.

Boppre also offered trial testimony from his own ballistics 

expert, who also performed ballistics testing on the handgun recovered from New Mexico. Boppre’s expert testified 

that the condition of the gun made it dangerous to test-fire 

because “[a]ll of the normal component parts were not present,” but that after 63 tries, he was able to get the gun to fire. 

Boppre’s expert did not explain what he had to do to get the 

gun to fire or which specific component parts were missing, 

but he did not dispute the State’s expert’s explanation on 

those issues. As to the shell casings, Boppre’s expert agreed 

that the casings from test-firing the recovered gun matched 

both the casings found at the murder scene and those found 

in Boppre’s target practice area. As to the bullets, Boppre’s 

expert acknowledged the bullets fired from the recovered gun 

were similar to bullets recovered from the crime scene and 

the victims, but he could not say for certain they were fired 

from the same gun, in part because the recovered gun had significant oxidation on its barrel, perhaps from being immersed 

in water.
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With this additional background regarding the ballistics 

evidence in mind, we now address Boppre’s specific claims of 

newly discovered evidence regarding the handgun.

(ii) Evidence of Missing 

Magazine Release

Boppre alleges that in March 2019, his investigators obtained 

negatives of field photographs taken of the mud-caked gun 

when it was recovered in New Mexico that were “never before 

available to Boppre.” He claims these negatives were then 

scanned to make “high-resolution” images, and he alleges that 

“[t]he clarity and definition” of the enhanced images constitute 

“‘newly discovered’” evidence that allows “a completely new 

ability to compare the gun ‘found’ and photographed in the 

mud in New Mexico with the gun still in evidence.” According 

to Boppre, when these images are compared, a magazine 

release is visible on the image of the gun still in evidence, but 

no magazine release is visible in the high-definition image of 

the mud-caked gun photographed in New Mexico. The State 

disputes this conclusion, arguing that the recovered gun has 

always had a magazine release but the field photographs did 

not capture that detail because the gun was covered in mud. 

At this phase, however, we consider only whether Boppre’s 

motion and supporting documents have set forth facts which, 

“if true,” 89 would materially affect his substantial rights. As 

framed by Boppre’s motion, the newly discovered evidence is 

high-resolution images showing that the gun “found in the mud 

did not contain a magazine release,” and we focus our analysis accordingly.

The supporting document for this claim is an affidavit from 

a firearm expert Boppre retained in August 2019. That affidavit 

states that in a “Spanish ‘Ruby’ type pistol,” the “magazine 

release holds the magazine of bullets and main spring inside 

of the gun,” and that “without the magazine release, the gun 

89 See § 29-2102(2).
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would be inoperable and could not have been tested.” The 

affidavit refers to high-resolution images of the gun “found in 

the mud [and] photographed by law enforcement in 1988” and 

concludes the mud-covered gun “does not contain a magazine 

release.” Based on this conclusion, the expert opines that either 

the gun tested by the ballistics experts and admitted into evidence at trial was not the same gun recovered in New Mexico 

or, if it was, it was modified to include a magazine release even 

though the State’s expert did not mention such a modification 

in his testimony.

The State argues that the high-resolution images should 

not be considered newly discovered evidence. Alternatively, 

the State argues that even if evidence about a missing magazine release is newly discovered, it is not material, because 

“whether [the State’s ballistics expert] or someone else 

added a magazine release had no impact on the ballistics 

[evidence].” 90

We express no opinion about whether the images Boppre 

relies upon can properly be considered newly discovered evidence. 91 Nor is it necessary to analyze whether Boppre’s 

motion and supporting documents regarding the missing magazine release satisfy all the requirements for an evidentiary 

hearing—because, as we explain, this evidence, even if true, 

would not materially affect Boppre’s substantial rights and 

thus does not entitle him to an evidentiary hearing under 

§ 29-2102(2).

Boppre does not dispute that both ballistics experts performed testing on the gun that was admitted into evidence, 

90 Brief for appellee at 44.

91 See, e.g., U.S. v. Knutson, 9 Fed. Appx. 706 (2001) (holding digital 

enhancement of trial photographs is not newly discovered evidence); 

State v. Avery, 345 Wis. 2d 407, 826 N.W.2d 60 (2013) (treating digital 

enhancements to robbery video as newly discovered evidence but 

concluding such evidence did not entitle defendant to new trial). See, also, 

Cross, supra note 21 (holding evidence known to defendant at time of trial 

cannot be newly discovered evidence).
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and both experts were able to get the gun to fire after modifying it to accommodate for several missing component parts. 

But he contends that “based on the newly discovered evidence 

of the missing magazine release,” both the results of the ballistics testing “and the identification of the gun as the murder 

weapon [are] now clearly unsupported.” He contends this is 

so because evidence of the missing magazine release supports 

one of two possible inferences: either the recovered gun was 

modified before it was tested to include a magazine release 

or the gun that experts tested was not the same one recovered 

in New Mexico. But as we explain, the newly discovered 

evidence is not itself material and the inferences from this 

evidence advanced by Boppre either are not material or are 

entirely unsupported by any facts in the motion for new trial 

or supporting documents.

First, evidence of a missing magazine release does nothing 

to diminish the strength, or the inculpatory nature, of the ballistics testing performed on the gun received into evidence. 

That testing showed the gun in evidence was the same gun 

Boppre used for target practice and was the same gun used 

to kill Valdez and Condon. And the evidence was undisputed 

that the modifications made to get that gun to fire would not 

“in any way change what kind of markings would end up on a 

shell casing or the bullet.”

Moreover, even if it is true that the ballistics experts had to 

modify the gun in ways they did not describe in their testimony 

in order to get it to fire, such evidence would, at most, serve 

to impeach their credibility as to how they got the gun to fire. 

And for newly discovered evidence to be material, it must 

involve something other than the credibility of witnesses who 

testified at the former trial. 92

Finally, there are simply no facts in Boppre’s operative 

motion or supporting documents to support a reasonable 

inference that the gun tested by the experts was not the same 

92 French, supra note 30.
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gun recovered in New Mexico. Boppre does not challenge 

the chain of custody evidence regarding the recovered gun; 

nor does he assert that police, prosecutors, or anyone else 

swapped the recovered gun for the gun that was tested. In 

fact, Boppre makes no effort at all to explain how the mudcaked gun that was provided to the experts for ballistics testing might have come into the possession of police if it was 

not the same one recovered by police in New Mexico.

Simply put, neither the results of the ballistics testing, the 

admissibility of such test results, nor the reasonable inferences 

from such evidence would be impacted by evidence of a missing magazine release in the recovered gun. Indeed, even if 

the ballistics experts had never test-fired the gun in evidence 

at all, there was still significant ballistics evidence linking 

Boppre to the crimes, because the shell casings recovered 

from Boppre’s target practice area matched the shell casings 

recovered from the murder scene.

Because evidence of a missing magazine release in the gun 

recovered from New Mexico is not so substantial that with it, 

a different verdict would probably have been reached at trial, 

the district court did not err in dismissing this claim of newly 

discovered evidence without an evidentiary hearing.

(iii) Evidence Gun Reported Stolen

Boppre’s operative motion also asserts that in 2019, his investigators discovered a report indicating that sometime before 

Boppre’s trial, the Scotts Bluff County Sherriff’s Department 

was investigating the possible theft of the .32-caliber gun 

“believed” to have been used to kill Valdez and Condon. 

Boppre’s motion asserts that if he been able to offer evidence 

at trial that law enforcement “believed that the .32 caliber pistol was stolen from the murder scene, he could have used that 

. . . to support his claim that the gun was in Valdez’s possession prior to the murders.” (Emphasis omitted.)

The only supporting document identified for this claim 

of newly discovered evidence is a printout of the law 
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enforcement report on which the claim is based. As noted, 

§ 29-2102(1) provides that the only proper supporting documents for a motion asserting newly discovered evidence are 

affidavits, depositions, or oral testimony. Because Boppre has 

failed to support this allegation of newly discovered evidence 

with a proper supporting document, the district court did not 

err in finding he was not entitled to an evidentiary hearing, 

and we need not engage in further analysis of this claim. 93

But even if a proper supporting document had been provided, Boppre would still not be entitled to an evidentiary 

hearing on this claim, because the evidence is not so substantial that with it, a different verdict probably would have been 

reached at trial. Evidence that police at one time believed the 

murder weapon may have been stolen from the scene does not 

refute evidence that Boppre possessed the weapon either prior 

to or during the murders. Nor would it negate the overwhelming evidence of Boppre’s guilt adduced at trial.

(iv) Evidence of Jail Records

Boppre’s final subcategory of newly discovered evidence 

pertaining to the gun involves “jail records” that Boppre discovered in 2016, which he alleges show that Niemann was 

“checked back into the Morrill County, Nebraska Jail at 8:00 

a.m. on . . . the same day that he was supposed to be in New 

Mexico assisting the ‘gun expedition’ early that same afternoon.” (Emphasis in original.)

Boppre’s operative motion references no competent supporting documents regarding the truth of this evidence, and 

we need not engage in additional analysis to conclude that it 

did not entitle him to an evidentiary hearing. 94 But even if he 

had provided supporting documents, the jail records evidence 

is not so substantial that with it, a different verdict probably 

would have been reached at trial. To the contrary, several of 

93 See, Hill, supra note 21; Cross, supra note 21.

94 See id.
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the photographs in Boppre’s motion depict Niemann at the site 

in New Mexico when the gun was recovered. As such, while 

the jail records evidence may call into question the precise 

time the gun was recovered, it would not refute the photographic evidence and direct testimony showing that Niemann 

was present and assisting law enforcement when the gun was 

recovered. Nor would it call into question the overwhelming 

evidence of Boppre’s guilt. The district court did not err in 

dismissing this claim without an evidentiary hearing.

(c) Evidence Contradicting 

State’s Theories

Boppre’s operative motion asserts there are two newly discovered autopsy photographs of Valdez that “go[] directly to 

the heart of the State’s trial case against Boppre.” According to 

the motion, one photograph “directly contradict[s] the State’s 

central theme at trial that . . . Valdez wrote a ‘dying declaration’ implicating Boppre.” And the other photograph shows 

neck wounds that would have allowed Boppre to present “a 

credible version of events that included Valdez being held at 

knife point as he was killed and [show] that multiple assailants 

were directly involved in the death.” We address each photograph in turn.

(i) Dying Declaration

As noted in our recitation of the trial evidence, there was 

evidence that the letters “‘J-F-F B-O-P-E’” were written on 

the floor to the left of Valdez’ body using white grease and 

that the letters “‘J-E-F-F’” were written on the door casement near Valdez’ right hand in what appeared to be blood. 95

Boppre’s operative motion asserts that in 2019, his investigators obtained a previously undisclosed photograph taken 

during Valdez’ autopsy that shows him on his back with “a 

clipboard laying on [his] chest.” The motion asserts “this 

95 Boppre I, supra note 1, 234 Neb. at 929, 453 N.W.2d at 416.
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photograph is important newly discovered evidence of the 

lack of bleeding from the chest wound suffered by Valdez.” 

The clipboard blocks the view of most of Valdez’ chest area, 

but as we understand Boppre’s argument, he contends the 

image is circumstantial evidence that Valdez’ chest area was 

not bloody, because someone set a clipboard there.

The supporting document for this evidence is an affidavit 

from a forensic medical expert hired by Boppre in 2019 to 

review the autopsy evidence. This expert opines that in order 

to write the dying declaration on the floor, Valdez would have 

had to “roll onto his left side and lean forward,” and that this 

would have caused blood to “exit the [gunshot] wound on the 

left side of [his] chest.” The expert notes that the crime scene 

photographs show blood pooling under Valdez’ back “but not 

on his chest,” and she states that the newly disclosed photograph of the clipboard “confirm[s] the lack of bleeding from 

this chest wound.” The expert opines, based on this lack of 

bleeding from the chest, that either someone other than Valdez 

wrote the letters on the floor or Valdez wrote them before he 

was shot in the chest.

It is not necessary to analyze whether Boppre’s motion and 

supporting documents satisfy all the requirements for an evidentiary hearing on this claim of newly discovered evidence, 

because we conclude that to the extent the substance of this 

evidence shows a lack of bleeding from Valdez’ chest, it is not 

newly discovered at all.

[24] Evidence is not “newly discovered” if its substance 

was known to the defendant at the time of trial. 96 Here, the 

existing files and record, including the original crime scene 

photographs and autopsy report, show pooling of blood under 

Valdez’ back, but not on his chest. Evidence that Valdez did 

not have blood on his chest during the autopsy was thus 

known to Boppre at the time of trial. Such evidence is not 

96 See Cross, supra note 21 (counsel’s alleged conflict of interest not newly 

discovered evidence because defendant knew of it at time of trial).
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rendered newly discovered just because it is depicted in a 

recently obtained autopsy photograph.

Moreover, to the extent Boppre argues that the affidavit of 

his expert is newly discovered evidence, we rejected a similar 

argument in Boppre II, and it can fare no better now. In Boppre 

II, Boppre claimed that the affidavit of a “criminalist” was 

newly discovered evidence that contradicted the State’s theory 

that Valdez wrote the dying declarations. 97 The criminalist 

had reviewed the trial evidence and opined that “[b]ecause 

there was no splattering or blood trail,” it was “improbable 

that Valdez moved himself from where he was shot.” 98 The 

criminalist also opined that “there should have been latent 

fingerprints in the writings in blood on the doorjamb and in 

grease on the floor.” 99 We concluded these new theories did not 

represent newly discovered evidence, reasoning that the expert 

“merely sought to evaluate bits and pieces of the trial evidence 

favorably to [Boppre].” 100

We reach the same conclusion here. The affidavit of Boppre’s 

forensic expert merely evaluates known evidence about the 

bleeding documented on Valdez’ body during the autopsy, 

to advance possible alternative theories that are favorable to 

Boppre. Because this does not amount to newly discovered 

evidence, the district court correctly determined that Boppre is 

not entitled to an evidentiary hearing on this claim.

(ii) Neck Wounds

Boppre’s operative motion asserts that an autopsy negative 

first discovered in 2019 depicts “with specificity” two knife 

wounds to the side of Valdez’ neck. Boppre contends that if 

this image had been available at trial, he could have relied on 

97 Boppre II, supra note 5, 243 Neb. at 919, 503 N.W.2d at 534.

98 Id. at 920, 503 N.W.2d at 534.

99 Id.

100 Id. at 929, 503 N.W.2d at 539.
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it to support a defense theory that Valdez was “held at knife 

point” and that “multiple assailants were directly involved in 

the death.”

As supporting documents for this claim, Boppre points to 

the affidavits of two medical experts who viewed the photographic image produced from this negative. One of the 

experts opines that the neck wounds were inflicted at different times—one pre mortem and the other post mortem. The 

other expert describes the neck wounds as “superficial” and 

opines that the wounds were inflicted by someone holding 

Valdez from behind, suggesting the possibility of more than 

one assailant.

Once again, it is evident from the record that although 

Boppre claims this photographic image is newly discovered, 

the substance of the evidence it depicts was known to him 

at the time of trial. At trial, the State’s pathologist testified 

about the same two neck wounds, describing them as “slicing injuries” “from a thin sharp object of some type.” The 

pathologist testified that both wounds occurred near the time 

of Valdez’ death and acknowledged they could have occurred 

pre mortem.

The substance of the evidence in the new image depicting the neck wounds is, at best, cumulative of other evidence 

that was both known to Boppre and produced at trial. The 

fact that Boppre’s new experts reviewed this trial evidence 

and developed new theories about how Valdez may have been 

murdered does not make it newly discovered evidence. 101 The 

district court did not err in denying an evidentiary hearing on 

this claim.

(d) Evidence Regarding 

Conflict of Interest

Finally, Boppre’s operative motion asserts there is newly 

discovered evidence that his trial counsel had an “obvious 

101 See id.
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conflict of interest [that] entitles him to a new trial.” The 

motion states that sometime in 2016, Boppre requested and 

obtained copies of his trial counsel’s billing statements from 

1989. In reviewing those statements, Boppre discovered that, 

at one time, his attorney represented “Michael Herman Neu” in 

a divorce case and a workers’ compensation claim. When the 

State identified Neu as a potential witness in Boppre’s criminal 

trial, Boppre’s trial counsel withdrew as Neu’s counsel in both 

civil cases. Boppre’s operative motion asserts that “[d]espite 

knowing that Neu was going to provide damning evidence at 

trial against Boppre, [trial counsel] never disclosed to anyone 

that he was not only Boppre’s attorney, but he was also Neu’s 

attorney.” (Emphasis omitted.)

Boppre’s motion references no affidavits, depositions, or 

oral testimony to support the truth of this newly discovered 

evidence, and we see none among the supporting documents 

offered at the records hearing. Because Boppre failed to comply with the supporting document requirement of § 29-2102 

in presenting this claim, no further analysis of the assertions 

in his operative motion is necessary, and it was proper for 

the district court to dismiss this claim without an evidentiary hearing. 102

But even if Boppre had complied with the supporting document requirement, we would still conclude it was proper to 

deny an evidentiary hearing on this claim, because Boppre 

did not file his motion for new trial within a reasonable 

time after discovering evidence that his trial counsel had an 

alleged conflict of interest. Boppre’s operative motion does 

not specify the date on which he discovered this evidence, 

but it states he discovered the evidence by reviewing “copies 

of the bill [trial counsel] filed with the trial court for payment as Boppre’s court-appointed attorney.” Boppre’s motion 

asserts these billing statements were provided in response to 

a writ of mandamus that was affirmed in relevant part in a 

102 See, Hill, supra note 21; Cross, supra note 21.
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memorandum opinion by the Nebraska Court of Appeals in 

November 2016. 103 It is apparent from the Court of Appeals’ 

opinion that the trial court ordered these billing statements 

to be provided to Boppre in November 2015, yet Boppre did 

not file a motion for new trial asserting this newly discovered 

evidence until December 2018, and his motion asserts no facts 

justifying the reasonableness of this delay. On this record, we 

cannot find that the motion was filed within a reasonable time 

after discovery of the alleged conflict of interest as required 

by § 29-2103(4). And when 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. 104

V. CONCLUSION

Our de novo review of Boppre’s operative motion for new 

trial and supporting documents shows that he was not entitled 

to an evidentiary hearing on any of the claims of newly discovered evidence at issue in this appeal. Finding no merit to 

Boppre’s assigned error, we affirm the district court’s order 

dismissing the motion without an evidentiary hearing.

Affirmed.

Freudenberg, J., not participating.

103 See Boppre v. Overman, No. A-15-1135, 2016 WL 6872978 (Neb. App. 

Nov. 22, 2016) (selected for posting to court website).

104 See, Bartel, supra note 35; Cross, supra note 21.