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Date: 12-30-2017

Case Style:

State of Nebraska v. Jeffrey A. Huff

1st Degree Sexual Assault

Case Number: 298 Neb. 522

Judge: Per Curiam Heavican, Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke

Court: Nebraska Supreme Court

Plaintiff's Attorney: Douglas J. Peterson, Attorney General, and Kimberly A.
Klein

Defendant's Attorney: Joseph D. Nigro, Lancaster County Public Defender, and
Robert G. Hays

Description: On April 15, 2015, the State filed an information charging
Huff with first degree sexual assault. He was ultimately
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,
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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
2 Id. at 552-53, 891 N.W.2d at 712.
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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.
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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. § 29-2004(2) (Reissue 2016). Section 29-2004(2) refers to
the discharge of a juror who has already been seated and provides
for replacing a juror who is discharged during trial with
an alternate juror.
Huff argued the State waived its challenge to M.F. based on
the jury questionnaire by not raising the issue earlier and that
in any event, the district court erred when it discharged M.F.
without questioning him to ascertain whether he was subject to
discharge for cause. Huff relied, in part, on State v. Myers,5 in
which we held that a party who fails to challenge a juror for
cause waives any objection to the juror’s selection and that if
grounds for a challenge for cause arise out of matters occurring
after the jury is sworn, “it is the duty of the court to hear evidence
and examine the jurors and determine whether any juror
might be subject to disqualification for cause.”
The Court of Appeals rejected Huff’s arguments, reasoning
that because § 29-2004(2) applied, rather than § 29-2006,
“the State’s objection to M.F. as a juror was not waived and
the duty to question M.F. prior to discharging him from the
3 Huff, supra note 1.
4 Id. at 555, 891 N.W.2d at 714.
5 State v. Myers, 190 Neb. 466, 472, 209 N.W.2d 345, 349 (1973).
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jury did not arise.”6 The Court of Appeals concluded that the
district court did not abuse its discretion when it granted the
State’s motion to discharge M.F.
The Court of Appeals determined that the same reasoning
supported a conclusion that the district court did not abuse its
discretion when it overruled Huff’s motion for mistrial. We
granted Huff’s petition for further review.
II. ASSIGNMENTS OF ERROR
Huff claims, summarized and restated, that the district court
abused its discretion in granting the State’s motion to discharge
and denying Huff’s motion for mistrial.
III. STANDARD OF REVIEW
[1] The retention or rejection of a juror is a matter of discretion
for the trial court.7 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.8 Thus, the standard of review in a case
involving discharge of a juror is whether the trial court abused
its discretion.9
[2] 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.10
IV. ANALYSIS
1. Removal of Jurors
Nebraska statutes provide for the removal of jurors both
before and after the jury is sworn. This case illustrates the difference
between disqualifying a juror for cause before the juror
6 Huff, supra note 1, 24 Neb. App. at 557, 891 N.W.2d at 714.
7 State v. Hilding, 278 Neb. 115, 769 N.W.2d 326 (2009).
8 Id.
9 See State v. Krutilek, 254 Neb. 11, 573 N.W.2d 771 (1998).
10 State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016).
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has been sworn (pursuant to § 29-2006) and discharging a juror
after he or she has been sworn (pursuant to § 29-2004(2)). We
agree with the Court of Appeals that in this case, discharge
under § 29-2004(2) is the proper analysis. To the extent the
district court and the parties referred to “striking” M.F. from
the jury panel, the terminology was imprecise.
Section 29-2004(2) provides that “before the final submission
of the cause a regular juror dies or is discharged, the court
shall order the alternate juror . . . to take his or her place in the
jury box.” This statute does not specify the reasons for which
a regular juror might be discharged or that the reason for the
discharge must be based solely on one of the causes set forth
in § 29-2006.11
2. Discharge of M.F.
From Jury Panel
[3] Where the jury misconduct in a criminal case involves
juror behavior only, the burden to establish prejudice rests on
the party claiming the misconduct. 12 Because the State sought
the discharge of M.F., it had the burden to show that M.F. was
biased, engaged in misconduct, or was otherwise unable to
continue to serve.
(a) Waiver
[4] Generally, a party who fails to challenge the jurors for
disqualification and passes the jurors for cause waives any
objection to their selection.13 For example, in Turley v. State,14
it was discovered after the jury returned a verdict that one of
the jurors had a felony conviction. Under those circumstances,
we held that the issue of the juror’s qualification to serve was
waived, stating:
11 See Hilding, supra note 7.
12 State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002).
13 Myers, supra note 5.
14 Turley v. State, 74 Neb. 471, 104 N.W. 934 (1905).
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Great latitude is allowed the defendant upon the voir dire
examination to enable him to ascertain whether there is
any ground for objecting to the juror. He cannot waive an
objection of this nature, and, after taking his chances of
an acquittal before the jury selected, insist upon an objection
which he should have raised upon the impaneling of
the jury, and, if he makes no effort to ascertain whether
a juror offered is qualified to sit, he must be held to have
waived the objection.15
[5,6] Later, in State v. Harris,16 we summarized the Turley
holding to be “when a defendant, 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.” We went on to explain
that “Turley does not stand for the proposition that an objection
to a juror is waived when the juror has concealed information
and the defendant through diligence cannot discover the
information before trial.”17
In Harris, upon examination, it was learned that a juror
intentionally failed to disclose she had been convicted of
a crime that would have disqualified her from serving as
a juror under Neb. Rev. Stat. § 25-1601(1) (Reissue 2016)
and deemed her incompetent to be a juror under Neb. Rev.
Stat. § 29-112 (Reissue 2016). The juror concealed information
during voir dire, and it was ultimately determined that
she deliberately lied with the motivation of being placed on
the jury.18 The juror’s criminal record was discovered after
the jury returned a verdict, and the discovery prompted the
defendant
to move for a new trial on the basis of juror misconduct.
Under those circumstances, we held that a defendant
does not waive an objection to a juror when the juror has
15 Id. at 476, 104 N.W. at 936.
16 State v. Harris, 264 Neb. 856, 861, 652 N.W.2d 585, 589 (2002).
17 Id.
18 See Harris, supra note 16.
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concealed the information that is the subject of the objection.19
We noted the juror had actively concealed her criminal history
on her juror questionnaire and that nothing in the record suggested
the defendant could have discovered the concealment
before trial. We reasoned:
Attorneys must be able to rely on a statutory scheme
intended to prevent disqualified jurors from ever being
placed in the jury pool. Attorneys should not be required
to ask again at voir dire about past convictions that would
disqualify a juror when jurors have already filled out
forms addressing the issue.20
In the instant case, after the jury had been sworn in, M.F.
advised the court that he was reluctant to serve, based upon
his upbringing and his background. The court then questioned
M.F. and determined that M.F. could be fair and impartial.
After the close of evidence, the court, sua sponte, raised
additional concerns about M.F. As a result, the State moved
to discharge M.F. The court held a hearing on the motion,
and the State offered M.F.’s criminal record, which showed
numerous convictions for driving under suspension, assaults,
and other misdemeanor law violations. At a later hearing, the
court received into evidence M.F.’s juror qualification form,
which showed his answers concerning his criminal record
were inaccurate.
In both Turley and Harris, the question of waiver was raised
after the juries rendered their verdicts. However, in this matter,
M.F. was discharged prior to the case being submitted to the
jury. The issue of M.F.’s suitability was raised by the trial court
itself. As a result, the issue of whether the State waived an
objection to M.F.’s concealment of his criminal record need not
be considered by us. We also need not consider the correctness
of the Court of Appeals’ analysis of the issue of waiver after
19 Id.
20 Id. at 862, 652 N.W.2d at 590.
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the jury was sworn in. Instead, we conclude that under these
facts and our jurisprudence, the district court had the discretion
to discharge M.F.
(b) Questioning of M.F.
[7] The fact that M.F. failed to disclose his criminal history
does not per se justify his disqualification from the jury. “The
motives for concealing information may vary, but only those
reasons that affect a juror’s impartiality can truly be said to
affect the fairness of a trial.”21 In Harris, we declined to adopt
an automatic presumed-bias rule when the juror concealed
information. We upheld the discharge, however, because upon
questioning, the juror admitted she had concealed information
for the purpose of being placed on the jury.
In the instant case, there is no explanation in the record
as to why M.F. provided inaccurate information on his jury
questionnaire. This is at least in part because M.F. was never
questioned on this matter.
The best practice in such a circumstance is to question the
juror. In State v. Myers, a question of prejudice of the jurors in
one case was presented because they had earlier sat as jurors in
a related case.22 We stated that if the court is informed
of matters which might reasonably constitute grounds
for a challenge for cause of one or more jurors, which
grounds arose out of matters occurring after the jury
was sworn, it is the duty of the court to hear evidence
and examine the jurors and determine whether any juror
might be subject to disqualification for cause. A failure
to inquire under such circumstances constitutes such fundamental
unfairness as to jeopardize the constitutional
guaranty of the right to trial by an impartial jury. Any
21 See McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556,
104 S. Ct. 845, 78 L. Ed. 2d 663 (1984).
22 See Myers, supra note 5.
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lowering of those constitutional standards strikes at the
very heart of the jury system.23
[8] However, our jurisprudence shows that 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.24
In the instant case, the district court did conduct a hearing
on the issue of whether M.F. should be disqualified and
did receive evidence. It did not, however, question M.F.
directly as to why he failed to disclose his criminal history.
If M.F.’s failure to disclose his criminal record had been the
sole basis for discharge, it would have been difficult for this
court to review the trial court’s decision to discharge M.F.
However, because the record demonstrates there were various
reasons for the discharge, we consider the lack of disclosure
simply a factor in the overall exercise of the trial court’s
discretion.
(c) M.F.’s Inattentiveness
During Trial
[9] The district court also based its decision to discharge
M.F. on his inattentiveness. 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.25 Here,
the court noted on the record that it had been observing M.F.
and was concerned he was not paying attention and seemed
disinterested in the trial. It stated that M.F. had not taken
any notes and compared his attention span to that of a third
grade student.
23 Id. at 472, 209 N.W.2d at 349. See, also, State v. Robinson, 198 Neb. 785,
255 N.W.2d 835 (1977).
24 See Hilding, supra note 7.
25 See Braunie v. State, 105 Neb. 355, 180 N.W. 567 (1920).
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This court and other courts have upheld discharge based
on similar grounds. In State v. Robinson,26 the court gave
a general admonishment to the entire jury after one juror
appeared to have been sleeping during the proceedings. After
the admonishment, the court noted, outside the presence of
the jury, that the juror had again been sleeping during a witness’
testimony. The court removed the juror and sat the alternate
juror.
In State v. Jorden,27 the Washington Court of Appeals found
that removing a juror on the ground of inattentiveness during
trial was not an abuse of the trial court’s discretion. The record
showed that no single incident led to the juror’s discharge and
that the trial court “documented the juror’s stages of inattentiveness,
ranging from having her eyes closed to an appearance
of dozing.”28 The record also documented the specific trial
testimony during which the juror was inattentive.
In U.S. v. Canales,29 the Second Circuit discharged a juror
for sleeping. The record demonstrated that “over the course
of two days, the able district judge, his law clerk, government
counsel, and [the defendant’s] counsel all witnessed the
discharged juror repeatedly closing his eyes, tilting his head
backward during testimony, and otherwise giving signs of
being asleep.”30
In the matter before us, the record is not specific as to
when and how M.F.’s inattentiveness occurred, aside from
the observation that he took no notes. Greater specificity
would aid the appellate court’s review of the trial court’s ruling.
Nevertheless, the trial judge made it clear that he had
significant concerns about whether M.F. was performing his
duty as a juror, and we consider those findings as a factor in
26 State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
27 State v. Jorden, 103 Wash. App. 221, 11 P.3d 866 (2000).
28 Id. at 226 n.5, 11 P.3d at 869 n.5.
29 U.S. v. Canales, 459 Fed. Appx. 55 (2d Cir. 2012).
30 Id. at 57.
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determining whether the court abused its discretion in discharging
M.F.
(d) Totality of Circumstances
[10,11] A trial court’s decision to remove a juror and substitute
an alternate is reviewed for an abuse of discretion; the
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.31
Based on the totality of the circumstances shown in the
record, the district court did not abuse its discretion in discharging
M.F. The record specifically shows: (1) M.F., upon
his own volition and after being sworn as a juror, advised the
court that he did not think he was suitable for jury service;
(2) during trial, the court observed M.F. to be inattentive and
uninterested; and (3) M.F. failed to disclose the true nature of
his criminal record, which included multiple convictions for
crimes other than traffic offenses. As a result, the district court
did not abuse its discretion when it discharged M.F.
3. Huff’s Motion to
Declare Mistrial
Because the district court did not abuse its discretion in
discharging M.F., it also did not abuse its discretion when it
denied Huff’s motion for mistrial based on the same events.

Outcome: Although our reasoning differs from that of the Court of
Appeals, for the foregoing reasons, we conclude that the Court
of Appeals did not err when it affirmed the judgment of the
district court.

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