State v. Rush -- supplemental opinion

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10/31/2024 09:05 AM CDT




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

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

  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 

  (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.