State v. Boppre

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/15/2023 08:06 AM CDT




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                               Nebraska Supreme Court Advance Sheets
                                        315 Nebraska Reports
                                                  STATE V. BOPPRE
                                                  Cite as 

                                        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. 

(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 rea-
                    sonable diligence, have been discovered and produced at trial. Second,
                    the defendant must show the evidence materially affected his or her sub-
                    stantial 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 

 (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 eviden-
                    tiary 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. 

 (Reissue 2016) imposes
                    different time limits on filing motions for new trial, depending on the
                    statutory ground relied upon.
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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 evi-
    dentiary 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, har-
    monious, and sensible.
 8. Criminal Law: Motions for New Trial. Because the materiality provi-
    sions in 

 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 

(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 ver-
    dict would probably have been reached at trial.
10. Criminal Law: Motions for New Trial: Evidence. To properly ana-
    lyze 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 

 and
    29-2103 (Reissue 2016); (2) comport with the timeliness requirements
    of § 29-2103; and (3) set forth facts which, if true, satisfy the eviden-
    tiary 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 dis-
      covered and produced at trial; and (3) why such evidence is so substan-
      tial 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 argu-
      ment 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 

(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 doc-
      trine 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 con-
      siderations 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-of-
      the-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 convic-
tions were affirmed on direct appeal. 1 In the years since his
direct appeal, Boppre has collaterally attacked his convic-
tions through a series of motions for new trial and succes-
sive 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 sup-
porting documents did not entitle him to an evidentiary hear-
ing, we affirm.
1
    State v. Boppre, 

, 

 (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 summa-
rized 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 pur-
      chased 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
    

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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 shoul-
ders 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 kill-
ings 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 dis-
pose 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 dis-
covered 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 mark-
ings on the door casement with a finger.
   When Valdez was found, there was white grease pres-
ent on the index and middle fingers of his right hand and
blood present on both of his hands. Valdez’ brother testi-
fied 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 insuf-
ficient 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 min-
utes. 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 min-
utes 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 sus-
tained “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 can-
yon 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 cas-
ings 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 indetermi-
nate 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 evi-
dence and prosecutorial misconduct. 5 The prosecutorial mis-
conduct claim was based on the State’s alleged failure to dis-
close 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 mur-
ders, 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 class-
mates that she was hiding inside the Valdez house when the
3
  Id. at 925-932, 

.
4
  Boppre I, supra note 1.
5
  See State v. Boppre, 

, 

 (1993).
6
  

, 

.
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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 testi-
fied that the State did not identify M.M. as a potential wit-
ness 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 prosecuto-
rial 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 cre-
ate 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, 

.
8
   Boppre II, supra note 5.
 9
   United States v. Agurs, 

, 

, 

   (1976).
10
   Boppre II, supra note 5, 

, 

.
11
   

, 

.
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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 dis-
trict court denied this postconviction motion, and we summar-
ily 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 convic-
tions. 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 mur-
ders 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 eviden-
tiary 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, 

, 

 (1997), disapproved on
   other grounds, State v. Silvers, 

, 

 (1998).
13
   See State v. Boppre, 

 (No. S-03-541, Dec. 30, 2003).
14
   See 

 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 postconvic-
tion 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 diffi-
culty electronically filing the amended motion and supporting
16
   State v. Boppre, 

, 

 (2010).
17
   Id. at 785, 790 N.W.2d at 426.
18
   Id.
19
   State v. Boppre, 

 (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 posi-
      tion 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 exhib-
its 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 opera-
tive 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 

(2) (Reissue 2016).
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operative motion for new trial without conducting an evi-
dentiary hearing. In support of this assignment, Boppre gen-
erally argues that the claims of newly discovered evidence
asserted in his operative motion for new trial, and the support-
ing 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 stan-
dard 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 eviden-
tiary 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 rea-
sonable procedures for identifying which records to review
when determining whether to grant a full evidentiary hear-
ing. 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, 

, 

 (2017). See, also, State v.
   Hill, 

, 

 (2021).
22
   But see 

 (Stacy, J., concurring).
23
   See, e.g., State v. Torres, 

, 

 (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 govern-
ing 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 pro-
cedures, just as they do under the Nebraska Postconviction Act.
However, as we have emphasized in the postconviction con-
text, 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 fil-
ing 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 

 (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, 

, 

 (2008).
25
   See 

, 

, 

 (comparing
   evidentiary hearing provisions in § 29-2102(2) and 

(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 

.
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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 

 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 pro-
vides, 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 dili-
gence, 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, 

, 

 (2021).
28
   See 

29
   See, id.; State v. Krannawitter, 

, 

 (2020).
   Accord, State v. Kofoed, 

, 798, 

, 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, 

, 

 (2005) (same); State v.
   Faust, 

, 

 (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 evi-
dence 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 discov-
ered 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 testi-
mony.” 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, 

, 

 (1978).
31
   § 29-2103(1).
32
   § 29-2103(2).
33
   Id.
34
   See, 

 (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); 

 (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 discov-
ered evidence.
   Prior to August 30, 2015, a motion based on newly discov-
ered 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, includ-
ing 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 pro-
      duced at trial and such evidence is so substantial that a
      different result may have occurred. 38
The 2015 amendments thus retained the statutory require-
ment 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, 

, 

 (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 evi-
dentiary 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 pro-
visions 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 substan-
     tial 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, 

 (refusing to consider motion for new trial to
   extent grounds failed to conform to statutory timeliness requirements);
   

.
42
   See 2015 Neb. Laws, L.B. 245.
43
   See 

.
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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 sup-
porting 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 identi-
cal materiality language appears in § 29-2101, which provides
that a new trial may be granted for “grounds affecting materi-
ally [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 substan-
tial 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 conjunc-
tively considered and construed to determine the intent of the
Legislature so that different provisions are consistent, harmo-
nious, and sensible. 46 Because the materiality provisions in
44
   Id. at 520, 

.
45
   See, 

; 

. Accord, Kofoed,
   supra note 29; 

; 

.
46
   State v. Roth, 

, 

 (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 provi-
sions of § 29-2102(2) are satisfied if the motion and support-
ing affidavits, depositions, or oral testimony set forth suffi-
cient 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 discov-
ered 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 require-
ments 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, 

, 

 (2017) (in
     enacting statute, Legislature is presumed to have knowledge of all previous
     legislation on subject); Heckman v. Marchio, 

, 

 (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 exception-
ally 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 fac-
tual assertions within long historical narratives that are scat-
tered 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, 

, 

 (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 spe-
cific 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, 

, 

   (2020). Accord, State v. Jennings, 

, 

 (2022) (courts “will not scour the record on appeal to understand
   unclear arguments or find support for broad conclusions”); State v. Wood,
   

, 

 (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 acknowl-
edges 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 appel-
late 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 ana-
lytical 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 spe-
cifically 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, 

, 

 (2023); Humphrey
   v. Smith, 

, 

 (2022).
54
   State v. Trail, 

, 

 (2022).
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   Broadly stated, our de novo review will address the follow-
ing 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 under-
mining 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 affida-
vits, 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 eviden-
tiary 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, news-
paper articles, magazine articles, police reports, pleadings,
orders, and a variety of other documents. But only affida-
vits, depositions, and oral testimony are competent support-
ing documents under the plain language of § 29-2102(1). We
55
   See 

.
56
   

, 

.
57
   

.
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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 sup-
porting 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 sup-
porting 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 

 (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 circum-
stances 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 law-
of-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 discov-
ered 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 doc-
trine 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 review-
ing proceedings of the trial court become the law of the case;
those holdings conclusively settle, for purposes of that litiga-
tion, all matters ruled upon, either expressly or by necessary
60
   Money v. Tyrrell Flowers, 

, 

 (2008).
61
   State v. Price, 

, 

 (2020); State v. Lavalleur,
   

, 

 (2017).
62
   Spratt v. Crete Carrier Corp., 

, 

 (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 consid-
erations 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
   

; 

.
64
   

, 

, 

. Accord, 

 (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, 

, 

 (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, 

; 

; 

.
66
   See, 

; 

.
67
   See, e.g., 

; 

; State v. Merchant,
   

, 

 (2014); 

.
68
   See, e.g., Thomas v. State, 

, 

 (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, 

, 

 (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, 

; 

.
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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 opera-
tive 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 discov-
ered 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 

.
73
   See 

. Accord 

.
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 sec-
tions that follow, we summarize each of these subcatego-
ries 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 satis-
fied 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 explana-
tion for Yellowboy’s blood stains [on] the door of the farm-
house.” 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 support-
ing documents satisfy all the requirements for an evidentiary
hearing on this evidence, because we conclude the same evi-
dence 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 blood-
stain 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 sub-
stantial 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 bed-
room 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 investiga-
tors 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 affida-
vit 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-of-
the-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 reason-
able 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 state-
ments 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
   

, 

.
80
   

, 

.
81
   Boppre V, supra note 16.
82
   Id. at 785, 790 N.W.2d at 426.
83
   See 

.
84
   See 

. Accord 

.
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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 mur-
ders, 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 pre-
vented 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 affi-
davits, 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 inves-
tigators 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 substan-
tial 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 

 (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 testi-
mony about Yellowboy’s statements might be deemed admis-
sible, 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 can-
not 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 miss-
ing magazine release, (2) evidence that the murder weapon
was reported stolen, and (3) evidence that Niemann was in jail
87
     See 

.
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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 exem-
plar 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 bul-
let.” 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 per-
formed 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 test-
fired 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’ bod-
ies 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 hand-
gun 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 pres-
ent,” 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 sig-
nificant 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 analy-
sis 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 evi-
dence 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 maga-
zine 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 evi-
dence. 91 Nor is it necessary to analyze whether Boppre’s
motion and supporting documents regarding the missing maga-
zine 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 per-
formed testing on the gun that was admitted into evidence,
90
     Brief for appellee at 44.
91
     See, e.g., U.S. v. Knutson, 

 (2001) (holding digital
     enhancement of trial photographs is not newly discovered evidence);
     State v. Avery, 

, 

 (2013) (treating digital
     enhancements to robbery video as newly discovered evidence but
     concluding such evidence did not entitle defendant to new trial). See, also,
     

 (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 modify-
ing 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 bal-
listics 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 bal-
listics 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
     

.
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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 mud-
caked gun that was provided to the experts for ballistics test-
ing 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 miss-
ing 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 inves-
tigators 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 pis-
tol was stolen from the murder scene, he could have used that
. . . to support his claim that the gun was in Valdez’s posses-
sion 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 docu-
ments 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 pro-
vided, Boppre would still not be entitled to an evidentiary
hearing on this claim, because the evidence is not so substan-
tial 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 overwhelm-
ing 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 dis-
covered 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 after-
noon.” (Emphasis in original.)
   Boppre’s operative motion references no competent sup-
porting 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, 

; 

.
94
     See 

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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 photo-
graphic 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 dis-
covered 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 declara-
tion’ 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 photo-
graph 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 case-
ment near Valdez’ right hand in what appeared to be blood. 95
Boppre’s operative motion asserts that in 2019, his investi-
gators 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, 

, 

.
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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 photo-
graph 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 evi-
dentiary 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 

 (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, 

, 

.
98
    

, 

.
99
    

100
    

, 

.
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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 pho-
tographic image produced from this negative. One of the
experts opines that the neck wounds were inflicted at differ-
ent 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 “slic-
ing 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 depict-
ing 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 

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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 com-
ply 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 eviden-
tiary hearing. 102
   But even if Boppre had complied with the supporting docu-
ment 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 pay-
ment 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, 

; 

.
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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 dis-
miss 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 dis-
covered 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, 

 (Neb. App.
    Nov. 22, 2016) (selected for posting to court website).
104
    See, 

; 

.