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State v. Kays

Supreme Court of Nebraska

October 17, 2014

STATE OF NEBRASKA, APPELLEE,
v.
CHARLES E. KAYS, APPELLANT

Page 784

Petition for further review from the Court of Appeals, Inbody, Chief Judge, and Irwinin and Moore, Judges, on appeal thereto from the District Court for Douglas County, Leigh Annnn Retelsdorf, Judge.

Frank E. Robak, Sr., of Robak Law Office, for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

WRIGHT, CONNNNOLLY, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ. HEAVICAN, C.J., and CASSEL, J., not participating.

OPINION

Page 785

[289 Neb. 261] McCormack, J.

NATURE OF CASE

The originally filed bill of exceptions prepared for this appeal indicated tat the alternate 13th juror was polled in the verdict against the defendant. A reproofread version of the bill of exceptions that replaced the original bill of exceptions indicates that the alternate juror did not deliberate and was not polled. The question of the accuracy of the bill of exceptions was remanded for a hearing before the district court. The district court found that the reproofread version of the bill of exceptions was the bill of exceptions upon which the appeal should proceed. The court reporter

Page 786

testified at the hearing that the reproofread bill of exceptions accurately portrayed what occurred at trial. The 13th juror averred at the hearing that she did not deliberate and was not polled for the verdict. Subsequent to the order on remand, the defendant amended his brief on appeal to assign and argue that the bill of exceptions was not trustworthy in any respect and that, as a result, he was entitled to a new trial. The Nebraska Court of Appeals affirmed the district court's determination that the appeal should proceed upon the reproofread bill of exceptions and affirmed the defendant's convictions. On further review, we find no plain error in the district court's order determining that the presently filed bill of exceptions is accurate. We do not address any other assignments of error that were not [289 Neb. 262] properly preserved, assigned, or argued in the petition for further review.

BACKGROUND

Charles E. Kays was convicted by a jury of one count of first degree sexual assault of a child and two counts of third degree sexual assault of a child. He was sentenced to 15 to 15 years' imprisonment on the conviction of first degree sexual assault of a child and 20 months' to 5 years' imprisonment on each of the remaining convictions.

Kays timely appealed to the Court of Appeals. He had different counsel on direct appeal than his trial counsel. Among other things, Kays assigned as error that the district court failed to select and discharge an alternate juror before submission of the case to the jury and that the alternate 13th juror deliberated and was polled in the guilty verdict against him. Trial counsel did not object to the alleged alternate juror's deliberation or move for a new trial on that basis, but appellate counsel assigned and argued as error ineffective assistance of trial counsel for failing to object to the 13th juror.

In preparing Kays' brief, appellate counsel had relied on the most recent copy of the bill of exceptions that had been e-mailed to him by the court reporter. That version reflected the 13th juror's being polled. But the bill of exceptions filed in the case reflected only 12 jurors polled for the verdict. Neither version reflected that the district court had explicitly discharged the 13th juror on the record.

When the court reporter became aware that appellate counsel was arguing that the 13th juror deliberated in Kays' case, she wrote to appellate counsel that she must have mistakenly e-mailed him a prior version of the bill of exceptions that was not adequately proofread. The court reporter explained that she personally remembered that the 13th juror did not participate in deliberation or polling. Further, she had checked the audiotape to confirm that the 13th juror did not deliberate.

Kays filed an application with the Court of Appeals for remand of the cause to the district court to correct the bill of exceptions due to the discrepancies between the version e-mailed to appellate counsel and the version on file. The [289 Neb. 263] Court of Appeals granted the motion and remanded the matter to the district court for a hearing under Neb. Ct. R. App. P. § 2-105(B)(5) (rev. 2010).

Section 2-105(B)(5) states:

The parties in the case may amend the bill of exceptions by written agreement to be attached to the bill of exceptions at any time prior to the time the case is submitted to the Supreme Court. Proposed amendments not agreed to by all the parties to the case shall be heard and decided by the district court after such notice as the court shall ...

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