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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
D. Nigro, Lancaster County Public Defender, and Robert G.
Hays for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
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. 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.
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.
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.
Court of Appeals summarized the relevant events that occurred
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 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.''
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.
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
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
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.
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.
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."
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.
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.
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. The court
determined that the district court's dismissal of M.F.
was more properly characterized as a "discharge"
under Neb. Rev. Stat. § 29-2004(2) (Reissue 2016).
Section 29-2004(2) refers to the discharge of ...