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State v. Huff

Supreme Court of Nebraska

December 29, 2017

State of Nebraska, appellee,
Jeffrey A. Huff, appellant,

         1. Trial: Juries: Appeal and Error. The retention or rejection of a juror is a matter of discretion for the trial court. This rule applies both to the issue of whether a venireperson should be removed for cause and to the situation involving the retention of a juror after the commencement of trial. Thus, the standard of review in a case involving discharge of a juror is whether the trial court abused its discretion.

         2. Motions for Mistrial: Appeal and Error. Decisions regarding motions for mistrial are directed to the discretion of the trial court, and will be upheld in the absence of an abuse of discretion.

         3. Criminal Law: Juror Misconduct: Proof. Where the jury misconduct in a criminal case involves juror behavior only, the burden to establish prejudice rests on the party claiming misconduct.

         4. Juror Qualifications: Waiver. A party who fails to challenge the jurors for disqualification and passes the jurors for cause waives any objection to their selection.

         5. Juror Qualifications. When a party to a criminal case, through diligence, is able to discover a reason to challenge a juror, the objection to the juror must be made at the time of voir dire.

         6. Juror Qualifications: Juror Misconduct: Waiver. A party does not waive an objection to a juror when the juror has concealed the information that is the subject of the objection.

         7. Trial: Juror Qualifications: Juror Misconduct. The motives for concealing information during voir dire may vary, but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial.

         8. Trial: Juries. Where a juror indicates that he or she is physically incapable of proceeding, such as in the case of the juror's illness or incapacity, examination of the juror before discharging him or her is not required and may not be feasible.

         [298 Neb. 523] 9. ___: ___. Whether a juror paid attention to the trial in order to intelligently comprehend the proceeding is generally left to the discretion of the trial judge.

         10. Trial: Juries: Appeal and Error. A trial court's decision to remove a juror and substitute an alternate is reviewed for an abuse of discretion.

         11. Trial: Juries. A court's decision is an abuse of discretion if the decision results in bias or prejudice to the defendant, and prejudice includes the discharge of a juror without factual support or for a legally irrelevant reason.

         Petition for further review from the Court of Appeals, Moore. Chief Judge, and Riedmann and Bishop, Judges, on appeal thereto from the District Court for Lancaster County, Robert R. Otte, Judge. Judgment of Court of Appeals affirmed.

          Joseph D. Nigro, Lancaster County Public Defender, and Robert G. Hays for appellant.

          Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          PER CURIAM.

         Jeffrey A. Huff was convicted of first degree sexual assault following a jury trial in the district court for Lancaster County. The Nebraska Court of Appeals affirmed his conviction and sentence.[1] Huff petitioned for further review, specifically challenging the order of the district court granting the State's motion to discharge a juror, M.F., after the parties had rested their cases and before the jury began deliberations. We affirm.

         I. BACKGROUND

         On April 15, 2015, the State filed an information charging Huff with first degree sexual assault. He was ultimately [298 Neb. 524] convicted by a jury. The errors raised in Huff's petition for further review concern only a juror at his trial, and not the underlying charge. We therefore limit our recitation of the facts to those pertinent to our analysis.

         Jury selection for Huff's trial took place on August 10. 2015. After voir dire, both parties passed the panel for cause and then exercised their peremptory challenges. Twelve regular jurors and one alternate juror were sworn in and then excused until the following morning.

         The Court of Appeals summarized the relevant events that occurred next:

When trial reconvened on August 11, 2015, one juror, M.F., communicated that he was anxious about serving on the jury and was brought in to discuss the issue with the court and parties. M.F. explained that due to his upbringing, which included crime, gangs, drugs, and domestic assault, he did not think he was "suitable for [jury service] at all." M.F. was questioned as to whether he could listen to the evidence and jury instructions and be fair and impartial. He initially expressed that he did not think he would "be fair due to" his background and experiences. He declined to state whether he thought he would be biased toward the State or toward Huff and indicated only that he felt he was not fit for jury service. Upon further questioning, however, M.F. agreed to follow the law and stated that he believed he could follow the instructions given, place his history and background aside, and fairly and impartially make a decision based on the evidence.
The State then moved to strike M.F. from the jury for cause, a motion to which Huff objected. The district court denied the motion at that point, observing that M.F. had taken the oath administered to the jury and opining that he perhaps merely experienced anxiety about jury service during the overnight break. The court indicated, [298 Neb. 525] however, that "we [could] keep an eye on that issue" as the trial progressed.[2]

         The trial then proceeded. After both parties rested and the jury had been excused for the day, the court expressed concern as to whether M.F. had been paying attention during trial. Specifically, the court advised the parties that it had not seen M.F. taking any notes during the trial or otherwise paying attention and stated that "[i]t wouldn't appear to me that [M.F.] would be paying attention as intently as some of the other jurors.''

         Later that day, at a hearing outside the presence of the jury, the State offered the transcript of the colloquy with M.F. from the first day of trial and a printout of M.F.'s criminal record. The printout showed in excess of 30 misdemeanor convictions M.F. had failed to disclose on his jury questionnaire. Both documents were received into evidence by the court. The State then moved to "strike" M.F. for cause, arguing M.F. could not be fair and unbiased.

         The State argued that in the jury questionnaire, M.F. had said he had never been convicted or charged with a crime with a possible penalty of 1 year or more in prison, had never been convicted or charged with a crime involving a motor vehicle other than speeding, and had never been convicted or charged with a crime other than traffic. The State conceded that it could have exercised "a little bit more due diligence" before jury selection. Nevertheless, the State argued that M.F.'s criminal record showed that he had not been "forthcoming when he filled out his jury questionnaire" and that M.F.'s "deceit to the court" was a basis to strike him for cause. The record shows that M.F. was not statutorily disqualified from jury service.

         Huff objected to the State's motion to remove M.F. from the jury. Huff argued that the State had not sought to strike M.F. for cause during jury selection and had not used its [298 Neb. 526] peremptory strike on M.F. prior to his being sworn in and. instead, the State waited until after he had been sworn in. Huff generally contended that nothing had occurred since M.F. had been sworn in that would justify his being discharged.

         After listening to the parties' arguments, the court stated that it was "going to sustain the State's motion" and "strike" or discharge M.F. The court reasoned M.F. had not been forthcoming about his criminal history in his jury questionnaire. It also stated that it had observed M.F.'s "apparent disinterest in the trial as it was going along." In this respect, the court noted that M.F. "didn't take a note from the start of the case through the end of evidence." The court also stated that "overall, if he would have been a student in a third grade class, you would have thought that he didn't pay attention to anything that had gone on that particular hour." The court also referred to M.F.'s initial reluctance to serve as a juror.

         Huff argued that before the court could discharge M.F., it was "incumbent upon the court to question him." However, the court determined that it had sufficient good cause to discharge M.F. and chose not to examine him.

         The next day, prior to bringing the jury into the courtroom, the court heard argument on Huff's motion to vacate its ruling to strike M.F. Huff alternatively moved to "strike" three additional jurors and presented exhibits, including criminal histories and jury questionnaires, which he argued showed that the three had also been dishonest in their questionnaire responses regarding their criminal histories. The court overruled Huff's motions. The court thereafter called M.F. into the courtroom without again examining him and without the other jurors present and informed him that the court had "made a determination to discharge [him] as a juror."

         Huff moved for a mistrial based in part on the court's discharge of M.F. The court overruled Huff's motion for mistrial, and the alternate juror was placed on the jury. The jury returned a guilty verdict against Huff, and the court sentenced him to 12 to 20 years' imprisonment.

         [298 Neb. 527] Huff appealed, arguing the district court erred in granting the State's motion to "strike" M.F. from the jury and in denying his motion for mistrial. The Court of Appeals rejected Huff's claims and affirmed his conviction and sentence.[3]

         In doing so, the Court of Appeals held that the district court actually discharged M.F., and did not "strike" him. It reasoned that pursuant to Neb. Rev. Stat. §§ 29-2006 and 29-2007 (Reissue 2016), a "strike" or challenge to a potential juror for cause "shall be made before the jury is sworn, and not afterward, " and thus it was imprecise to say M.F. was struck.[4] The court determined that the district court's dismissal of M.F. was more properly characterized as a "discharge" under Neb. Rev. Stat. ยง 29-2004(2) (Reissue 2016). Section 29-2004(2) refers to the discharge of ...

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