State v. Rush -- supplemental opinion

- 917 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE v. RUSH
Cite as 317 Neb. 917
State of Nebraska, appellee, v.
Deontae C. Rush, appellant.
___ N.W.3d ___
Filed October 31, 2024. 	No. S-23-076.
supplemental opinion
Appeal from the District Court for Lancaster County, Kevin
R. McManaman, Judge. Former opinion modified. Motion for
rehearing overruled.
Sanford J. Pollack, of Pollack & Ball, L.L.C., for appellant.
Michael 	T. 	Hilgers, Attorney 	General, 	and 	Melissa 	R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
This case is before us on a motion for rehearing filed by the
State, concerning our opinion in State v. Rush, ante p. 622, 11
N.W.3d 394 (2024). We overrule the motion, but modify the
opinion as follows:
In the analysis section, under the heading “6. Domestic
Assault” and the subheading “(b) Withdrawal of Motion for
New Trial re Subpoena,” we withdraw the first and second
paragraphs and substitute the following:
We next consider whether trial counsel was ineffec-
tive in withdrawing Rush’s motion for new trial in rela-
tion to Bruning’s subpoena. Rush argues that a new trial
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:27 AM CDT

- 918 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE v. RUSH
Cite as 317 Neb. 917
was warranted because the clerk’s alleged plain error
and the State’s alleged misconduct in interfering with
the subpoena deprived him of evidence that would have
supported his alibi. Under Neb. Rev. Stat. § 29-2101
(Reissue 2016): “A new trial, after a verdict of convic-
tion, may be granted, on the application of the defendant,
for any of the following grounds affecting materially his
or her substantial rights: (1) Irregularity in the proceed-
ings of the court, of the prosecuting attorney, or of the
witnesses for the state or in any order of the court or
abuse of discretion by which the defendant was prevented
from having a fair trial; (2) misconduct of the jury, of the
prosecuting attorney, or of the witnesses for the state; (3)
accident or surprise which ordinary prudence could not
have guarded against; (4) the verdict is not sustained by
sufficient evidence or is contrary to law; (5) newly dis-
covered evidence material for the defendant which he or
she could not with reasonable diligence have discovered
and produced at the trial; (6) newly discovered exculpa-
tory DNA or similar forensic testing evidence obtained
under the DNA Testing Act; or (7) error of law occurring
at the trial.”
The former opinion shall otherwise remain unmodified.
Former opinion modified.
Motion for rehearing overruled.