Rules of Evidence. In proceedings where the Nebraska Evidence
Rules apply, the admissibility of evidence is controlled by
such rules; judicial discretion is involved only when the
rules make discretion a factor in determining admissibility.
Rules of Evidence: Appeal and Error. Where the Nebraska
Evidence Rules commit the evidentiary question at issue to
the discretion of the trial court, an appellate court reviews
the admissibility of evidence for an abuse of discretion.
Trial: Rules of Evidence. A trial court exercises its
discretion in determining whether evidence is relevant and
whether its prejudicial effect substantially outweighs its
Judgments: Words and Phrases. An abuse of discretion occurs
when a trial court's decision is based upon reasons that
are untenable or unreasonable or if its action is clearly
against justice or conscience, reason, and evidence.
Motions for Mistrial: Appeal and Error. The decision whether
to grant a motion for mistrial will not be disturbed on
appeal in the absence of an abuse of discretion.
Motions to Dismiss: Appeal and Error. Any error in a ruling
on a motion to dismiss under Neb. Rev. Stat. §
29-1418(3) (Reissue 2016) based on the sufficiency of
evidence before a grand jury is cured by a subsequent finding
at trial of guilt beyond a reasonable doubt which is
supported by sufficient evidence.
Prosecuting Attorneys: Appeal and Error. The decision to
appoint a special prosecutor is addressed to the discretion
of the trial court, and absent an abuse of discretion, such
ruling will not be disturbed on appeal.
Neb. 454] 8. Evidence: Words and Phrases. Evidence is
relevant if it tends in any degree to alter the probability
of a material fact.
Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat.
§ 27-403 (Reissue 2016), relevant evidence may be
excluded if its probative value is substantially outweighed
by the danger of unfair prejudice.
Evidence: Words and Phrases. Unfair prejudice means an undue
tendency to suggest a decision based on an improper basis.
__:__. Unfair prejudice speaks to the capacity of some
concededly relevant evidence to lure the fact finder into
declaring guilt on a ground different from proof specific to
the offense charged, commonly on an emotional basis.
Criminal Law: Motions for Mistrial: Proof: Appeal and Error.
A mistrial is properly granted in a criminal case where an
event occurs during the course of a trial that is of such a
nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a
fair trial. The defendant must prove that the alleged error
actually prejudiced him or her, rather than creating only the
possibility of prejudice.
Motions for Mistrial: Motions to Strike: Appeal and Error.
Error cannot ordinarily be predicated on the failure to grant
a mistrial if an objection or motion to strike the improper
material is sustained and the jury is admonished to disregard
from the District Court for Scotts Bluff County: Leo
Dobrovolny, Judge. Affirmed.
W. Lancaster, of Nebraska Commission on Public Advocacy, for
Douglas J. Peterson, Attorney General, and Stacy M. Foust for
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
NATURE OF CASE
a grand jury investigation into the death of the 2-year-old
daughter of Dustin Chauncey's girlfriend, a special
prosecutor filed charges against Chauncey. Chauncey appeals
[295 Neb. 455] his conviction and sentence in the district
court for Scotts Bluff County for intentional child abuse
resulting in death. Chauncey assigns numerous errors
addressed to the grand jury process and trial rulings. We
STATEMENT OF FACTS
Background and Evidence at Trial
11, 2008, police officers responding to a call to a house in
Gering, Nebraska, found the body of 2-year-old Juliette
Geurts. Juliette had lived in the house with her twin sister,
Jaelyn Geurts; their mother, Charyse Geurts; and Chauncey,
who was Charyse's boyfriend. Charyse's ex-boyfriend,
Brandon Townsend, also lived in the house. When the first
police officer entered the house, she saw Charyse on the
floor next to Juliette's body, Chauncey pacing back and
forth, and Townsend standing in a doorway holding Jaelyn.
officer who arrived at the house observed discoloration on
Juliette's abdomen and a laceration on the left side of
her head. An autopsy later revealed that Juliette's death
had been caused by blunt force trauma and that the manner of
death was homicide. The pathologist who conducted the autopsy
testified that Juliette had been beaten to death and that she
had sustained several injuries-including a subarach-noid
hemorrhage in the brain, a lacerated liver, and bleeding into
the mesentery-any one of which might have caused her death.
first officer who had arrived at the house was unable to
immediately communicate with Charyse and Chauncey because
both were too emotional. Chauncey had identified himself to
the officer using the first name "Roy, " but the
officer later learned that his first name was actually
"Dustin." The officer was able to communicate with
of the investigation of Juliette's death, the clothing
she was wearing was sent to the state crime laboratory for
testing. A stain on Juliette's shirt, which was found to
include a sperm fraction and a nonsperm fraction, was tested
[295 Neb. 456] for DNA. It was determined that Chauncey was
included as a major contributor to the DNA of the sperm
fraction and a contributor to the DNA of the nonsperm
testified as follows at the trial in this case. Townsend had
briefly dated Charyse before she began dating Chauncey, and
he lived at the house with them in order to care for Juliette
and Jaelyn. On the evening of July 10. 2008, Townsend,
Charyse, Chauncey, and the girls had all attended a carnival.
Juliette did not feel well at the carnival, and after they
all returned home, Townsend put the girls to bed. Charyse
went to check on the girls around 2 a.m. and discovered that
Juliette was having a seizure. Charyse and Townsend decided
that Juliette should be taken to the hospital. Chauncey at
first resisted the idea of taking her to the hospital, but
eventually Charyse and Chauncey took her to the hospital
while Townsend stayed at home with Jaelyn. After they left,
Townsend put Jaelyn back to bed and he went to the couch
where he "end[ed] up laying down and passing out."
testified that the next thing he remembered was waking up
around 11 a.m. the next day. Shortly after waking, he went to
check on the girls and found Jaelyn already awake. He turned
to wake up Juliette, and saw that her "bed had almost
been crushed down to the ground . . . almost as if something
really heavy had been on the bed." He saw Juliette
"kind of like in the bed folding into it [a]nd, she was
very purple and very stiff." Townsend went and picked up
Juliette, while attempting to prevent Jaelyn from seeing
Juliette's condition. Townsend carried Juliette to the
room in which Charyse and Chauncey were sleeping. When
Townsend entered the room, Chauncey jumped up and asked
Townsend what was going on. Townsend told them that there was
something wrong with Juliette. Chauncey grabbed Juliette from
Townsend's arms and held her at arm's length from
himself. Townsend heard Chauncey say, '"Oh, my
fucking God, she is fucking dead. I need to fucking
leave.'" Chauncey handed Juliette [295 Neb. 457]
back to Townsend, who took her to the living room and set her
on the floor. Townsend tried to find a telephone, but Charyse
was "very hysterical, " and Chauncey said he could
not find one. Townsend ran to a neighbor's house and
asked them to call the police because he thought Juliette was
dead. He returned to the house and saw that Charyse was
crying and screaming Juliette's name, while Chauncey was
getting dressed. Townsend testified that "[t]here was a
discussion if anybody asked [Chauncey's] name, his name
is not Dustin, his name is Roy."
addition to Townsend's testimony described above and
other evidence presented at trial, the State called Paul
Cardwell as a witness. In 2014, Cardwell had been housed in
the same unit as Chauncey at the Scotts Bluff County jail.
Prior to questioning Cardwell, the State read the
parties' stipulation to the jury to the effect that
Cardwell had been convicted in federal court of three felony
offenses involving fraud and that he had the potential of
having his sentence reduced if the federal court determined
that he had "provided substantial assistance to the
government." Cardwell testified that in August 2014,
Chauncey had discussed his case with Cardwell and another
prisoner. Chauncey told them about the charges for which he
was in jail and described the events of July 11, 2008, to
testimony regarding Chauncey's jailhouse statements was
as follows: After Charyse and Chauncey had returned from
taking Juliette to the hospital, they were having sex in the
bedroom when Juliette came to the door of the bedroom asking
for Charyse because she did not feel well. Chauncey was angry
that Juliette had interrupted them, so he got out of bed and
kicked her in the stomach. While he was still naked, he
picked up Juliette to return her to her room, and he
speculated that his sperm got on her shirt when he picked her
up. Juliette was crying because of the kick to the stomach;
because Chauncey wanted "her to shut up, " he
punched her in the upper chest area. Chauncey returned to
[295 Neb. 458] finish having sex with Charyse, and then he
went to sleep. He was awoken around 11 a.m. by shouts that
Juliette was not breathing. As they waited for police to
arrive, Charyse and Chauncey decided that they would lie
about his name because he was wanted on outstanding warrants.
Grand Jury Proceedings
an autopsy was conducted on Juliette's body on July 12,
2008, and the pathologist concluded that the manner of death
was homicide, the State had not filed charges against anyone
in connection with Juliette's death as of mid-2012. On
July 11, 2012, certain community petitioners filed a petition
in the district court for Scotts Bluff County for a grand
jury investigation into Juliette's death. On August 8,
the court appointed James L. Zimmerman as a special
prosecutor. In the appointment order, the court found that
this was "an appropriate case to appoint a special
prosecutor to investigate and prosecute this matter."
presented the case to a grand jury. On January 14, 2013,
Zimmerman filed an indictment, signed by the foreperson of
the grand jury, in the district court. The indictment charged
Chauncey with three counts: count I, intentional child abuse
resulting in death; count II, manslaughter; and count III,
providing false information to a peace officer. Counts II and
III were dismissed prior to trial because the statute of