State v. Rush -- supplemental opinion

317 Neb. 917

Opinion

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 10/31/2024 09:05 AM CDT

- 917 - Nebraska Supreme Court Advance Sheets 317 Nebraska Reports STATE V. RUSH Cite as 317 Neb. 917

State of Nebraska, appellee, v. Deontae C. Rush, appellant. ___ N.W.3d ___

Filed October 31, 2024. No. S-23-076.

supplemental opinion Appeal from the District Court for Lancaster County, Kevin R. McManaman, Judge. Former opinion modified. Motion for rehearing overruled. Sanford J. Pollack, of Pollack & Ball, L.L.C., for appellant. Michael T. Hilgers, Attorney General, and Melissa R. Vincent for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Per Curiam. This case is before us on a motion for rehearing filed by the State, concerning our opinion in State v. Rush, ante p. 622, 11 N.W.3d 394 (2024). We overrule the motion, but modify the opinion as follows: In the analysis section, under the heading “6. Domestic Assault” and the subheading “(b) Withdrawal of Motion for New Trial re Subpoena,” we withdraw the first and second paragraphs and substitute the following: We next consider whether trial counsel was ineffec- tive in withdrawing Rush’s motion for new trial in rela- tion to Bruning’s subpoena. Rush argues that a new trial - 918 - Nebraska Supreme Court Advance Sheets 317 Nebraska Reports STATE V. RUSH Cite as 317 Neb. 917

was warranted because the clerk’s alleged plain error and the State’s alleged misconduct in interfering with the subpoena deprived him of evidence that would have supported his alibi. Under Neb. Rev. Stat. § 29-2101 (Reissue 2016): “A new trial, after a verdict of convic- tion, may be granted, on the application of the defendant, for any of the following grounds affecting materially his or her substantial rights: (1) Irregularity in the proceed- ings of the court, of the prosecuting attorney, or of the witnesses for the state or in any order of the court or abuse of discretion by which the defendant was prevented from having a fair trial; (2) misconduct of the jury, of the prosecuting attorney, or of the witnesses for the state; (3) accident or surprise which ordinary prudence could not have guarded against; (4) the verdict is not sustained by sufficient evidence or is contrary to law; (5) newly dis- covered evidence material for the defendant which he or she could not with reasonable diligence have discovered and produced at the trial; (6) newly discovered exculpa- tory DNA or similar forensic testing evidence obtained under the DNA Testing Act; or (7) error of law occurring at the trial.” The former opinion shall otherwise remain unmodified. Former opinion modified. Motion for rehearing overruled.