S-25-0170, S-25-0171, and S-25-0172 State of Nebraska (Appellee) v. John L. Lotter (Appellant)
Appeal from the District Court for Richardson County, Judge Julie D. Smith
Attorneys: Stuart J. Dornan (Dornan, Howard, Breitkreutz, Dahlquist & Klein, PC LLO for Appellant) and Erin E. Tangeman (Asst. Attorney General for Appellee)
Criminal: Post-conviction relief on a capital punishment case
Proceedings Below: In these consolidated cases, Appellant was convicted on three counts of first-degree murder, three counts of the use of a weapon to commit a felony, and one count of burglary. He was sentenced to death for each murder conviction and to not less than 80 months' nor more than 20 years' imprisonment for each use of a weapon conviction and the burglary conviction. The convictions and sentences were affirmed on direct appeal. See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), modified on denial of rehearing 255 Neb. 889, 587 N.W.2d 673 (1999), cert. denied 526 U.S. 1162, 119 S. Ct. 2056, 144 L. Ed. 2d 222 (1999). After Appellant filed his seventh motion for post-conviction relief, which was denied, he then filed a motion to amend the judgment, which was also denied. Capital punishment cases are direct appeals to the Nebraska Supreme Court.
Issues: Appellant assigns the following errors: 1) The district court erred in concluding that Appellant’s motion for postconviction relief was untimely and procedurally barred. In reaching this conclusion the district court made three errors, which were repeated in the order dismissing Appellant’s motion and in the order denying Appellant’s motion to alter or amend judgment. Each of these errors provide an independent basis for relief: A) the district court ignored Appellant’s argument that his motion was timely because the State suppression of exculpatory evidence was an “impediment created by state action, in violation of the Constitution of the United States or the Constitution of Nebraska or any law of this state” that prevented him from filing his motion for postconviction relief, see Neb. Rev. Stat. Ann. § 29-3001(4)(c); B) the district court erred by concluding that, when it comes to claims regarding the suppression of exculpatory evidence, the “due diligence” requirement in Neb. Rev. Stat. Ann. § 29-3001(4)(b) requires petitioners assume that the State has violated the law; C) the district court failed to consider that Appellant has been diligent in his pursuit of the exculpatory evidence that the prosecution suppressed before, during, and after trial.