State v. Madren ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/14/2021 08:11 AM CDT
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. MADREN
Cite as 308 Neb. 443State of Nebraska, appellee, v.
James M. Madren, appellant.
___ N.W.2d ___
Filed February 19, 2021. No. S-19-240.
1. 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.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Criminal Law: Motions for New Trial: Evidence: Appeal and Error.
A de novo standard of review applies when an appellate court is review-
ing a trial court’s dismissal of a motion for a new trial under Neb. Rev.
Stat. § 29-2102(2) (Reissue 2016) without conducting an evidentiary
hearing. But a trial court’s denial of a motion for new trial after an evi-
dentiary hearing is reviewed for an abuse of discretion.
4. Constitutional Law: Speedy Trial: Juries. The U.S. Constitution and
the Nebraska Constitution both guarantee a speedy public trial by an
impartial jury.
5. Constitutional Law: Trial: Juries. The presence of an alternate juror
during the jury’s deliberations violates a defendant’s federal and state
constitutional rights to a fair and impartial trial.
6. Juries: Verdicts. The presence of strangers during jury deliberations
destroys the sanctity of the jury because the verdict of a jury should
represent the concurring judgment, reason, and intelligence of the entire
jury based upon the evidence and free from outside influence from any
source whatever.
7. Juries. Once a case has been submitted to the jury, an alternate juror is
a stranger to the proceedings regardless of whether the alternate juror
was discharged.
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STATE v. MADREN
Cite as 308 Neb. 4438. Juries: Presumptions: Appeal and Error. The irregularity of the pres-
ence of an alternate juror in deliberations of the 12 regular jurors cre-
ates a rebuttable presumption of prejudice subject to a harmless error
analysis.
9. Constitutional Law: Trial: Juries: Presumptions: Appeal and Error.
The presence of an alternate juror in jury deliberations is a constitu-
tional violation of the right to a fair and impartial trial that merely cre-
ates a rebuttable presumption of prejudice for purposes of a harmless
error analysis.
10. Motions for Mistrial: New Trial: Proof. After an error has been prop-
erly preserved by a motion for a mistrial, in order for a new trial to be
granted, it must be shown that a substantial right of the defendant was
adversely affected and that the defendant was prejudiced thereby.
11. Criminal Law: Trial: Juries: Verdicts: Appeal and Error. In a jury
trial of a criminal case, harmless error exists when there is some incor-
rect conduct by the trial court which, on review of the entire record,
did not materially influence the jury in reaching a verdict adverse to a
substantial right of the defendant.
Petition for further review from the Court of Appeals,
Moore, Arterburn, and Welch, Judges, on appeal thereto
from the District Court for Douglas County, James T. Gleason,
Judge. Judgment of Court of Appeals reversed and remanded
with directions.
Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
In a petition for further review from a direct appeal of a
first degree sexual assault conviction, the defendant challenges
the Nebraska Court of Appeals’ affirmance of the district
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. MADREN
Cite as 308 Neb. 443court’s denials of his motions for mistrial and new trial after
the district court mistakenly failed to dismiss an alternate juror
who remained with the jury during the first hour of delib-
erations. The defendant asserts the district court erred when
it refused to inquire of the alternate before dismissing her,
to hold an evidentiary hearing to question each of the jurors,
or even to allow an affidavit of the alternate to be obtained,
any of which could have been used to determine the extent
of communications or other influence by the alternate during
the jury’s deliberations. The court instead instructed the jury
to begin deliberations “from scratch,” specifically telling them
that it did not want to know the extent it “communicated back
and forth” with the alternate. Then, after the verdict, the court
generally requested that the jury “please let me know” whether
any juror “consider[ed] any of the conversations or participa-
tion” of the alternate juror in reaching a verdict and, when no
juror responded, was satisfied that the court’s actions were suf-
ficient to rectify any presumption of prejudice that arose when
the court mistakenly permitted the alternate to intrude upon the
sanctity of the jury deliberations without any safeguards limit-
ing the alternate’s participation.
BACKGROUND
Following a jury trial, James M. Madren was convicted
of first degree sexual assault, in violation of Neb. Rev. Stat.
§ 28-319(1)(c) (Reissue 2016), a Class II felony. Madren was
sentenced to 30 to 38 years’ imprisonment. Madren appealed
the conviction to the Court of Appeals, assigning, among other
things, that the district court erred in overruling Madren’s
motions for mistrial and new trial after an alternate juror was
not discharged for the first hour of jury deliberations. The
Court of Appeals affirmed. We granted further review on the
question of whether the Court of Appeals erred by affirming
the district court’s denials of Madren’s motions for mistrial and
new trial.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. MADREN
Cite as 308 Neb. 443The basis for the motions was the fact that, at trial, after
the parties rested and an hour after the case was submitted to
the jury, the district court became aware of the fact that it had
mistakenly failed to discharge the alternate juror. The district
court called back counsel for both sides, notified them of the
court’s mistake, and proposed to “call the jury back in, remove
the alternate[,] and send the jury back for deliberations.” The
district court gave each counsel the opportunity to respond to
its proposal.
Madren indicated his intent to move for a mistrial. Madren
asked the court to inquire of the alternate juror the extent, if
any, the alternate had participated in deliberations. Further,
Madren requested that the court admonish the remaining 12
jurors that any opinions expressed by the alternate were not to
be considered in deliberations. The court indicated it intended
to admonish the jury to start its deliberations “anew from spot
zero,” but refused to make any inquiries of the alternate.
The court then recalled the jury, notified the jury of the
error, and identified and dismissed the alternate juror. At that
time, the court asked the jury to again “refer to the instructions
. . . regarding your duties as jurors.” It also specifically told
the jury, “I don’t want to inquire to what extent you communi-
cated back and forth.” Rather, the court instructed the jury to
start “again from scratch as if your deliberations start now and
without the alternate present.” The court asked the jury if the
instruction made sense to them, all jurors responded affirm­
atively, and the jury was then dismissed to begin delibera-
tions anew.
When the jury retired back to the jury room, Madren moved
for a mistrial. Madren argued that without knowing the extent
that the alternate participated in persuading the jurors to change
their minds, it could not be determined that the potential
persuasion by the alternate could be undone when the jury
was instructed to start deliberations over. The court immedi-
ately overruled Madren’s motion for mistrial, reasoning that it
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. MADREN
Cite as 308 Neb. 443was satisfied that the cautionary instruction to have the jurors
commence their deliberations anew was sufficient.
After the jury returned its verdict, the jury was polled at
defense counsel’s request and each juror was asked whether
the guilty verdict was his or her final verdict. Each juror
answered, “Yes.” No further questioning of any individual
juror took place. The district court generally requested that
the jury “please let me know” whether any of its members, in
reaching the verdict, “consider[ed] any of the conversations or
participation” of the alternate juror while she was with them in
the jury room. There was no audible response, and the judge
rendered judgment on the verdict.
After the verdict was entered, Madren moved for a new trial,
alleging in the written motion, among other things, that the
alternate juror’s participating in deliberations for over an hour
could not be cured by any instruction, prejudiced Madren, and
prevented him from having a fair trial. The order scheduling
a hearing on the motion for new trial was not included in the
transcript. The bill of exceptions of the hearing, however, indi-
cates that the court was not allowing evidence at the hearing,
but only arguments.
At the hearing on the motion for a new trial, Madren
requested that the court keep the motion under advisement until
sentencing in order to give defense counsel time to at least
secure an affidavit from the alternate juror as to her participa-
tion in deliberations, if the court were inclined to allow any
evidence, in the form of an affidavit or direct testimony, regard-
ing what the alternate actually did. Madren explained that if the
affidavit indicated the alternate juror substantially participated,
it “would support our argument that there was prejudice to
[Madren] by having that alternate in the jury room.”
The court overruled Madren’s motion for a new trial without
giving Madren an opportunity to secure the alternate juror’s
affidavit or for either party to present any evidence. The court
concluded that “all the matters regarding the alternate were
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STATE v. MADREN
Cite as 308 Neb. 443resolved in the jury’s verdict after [its] admonition by the
Court,” the jury was polled after returning its verdict, and even
if there was such an error, it would be harmless.
The Court of Appeals affirmed. Madren petitioned for ­further
review limited to the Court of Appeals’ affirmance of the dis-
trict court’s decision to overrule Madren’s motion for mistrial
and motion for new trial regarding the alternate juror’s partici-
pating in deliberations. We granted further review.
ASSIGNMENTS OF ERROR
In Madren’s petition for further review, he assigns that the
Court of Appeals erred by misconstruing Nebraska law in
affirming the district court’s decision to overrule Madren’s
motions for mistrial and new trial after the district court allowed
a nonjuror, the alternate juror, to participate in the deliberation
process that rendered a guilty verdict against Madren.
STANDARD OF REVIEW
[1,2] 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. 1 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. 2
[3] We determine a de novo standard of review applies
when an appellate court is reviewing a trial court’s dismissal
of a motion for a new trial under Neb. Rev. Stat. § 29-2102(2)
(Reissue 2016) without conducting an evidentiary hearing. But
a trial court’s denial of a motion for new trial after an eviden-
tiary hearing is reviewed for an abuse of discretion. 3
1
State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).
2
State v. Senteney, 307 Neb. 702, 950 N.W.2d 585 (2020).
3
State v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017).
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. MADREN
Cite as 308 Neb. 443ANALYSIS
[4,5] The U.S. Constitution and the Nebraska Constitution
both guarantee a speedy public trial by an impartial jury. 4 We
have held that the presence of an alternate juror during the
jury’s deliberations violates a defendant’s federal and state
constitutional rights to a fair and impartial trial. 5
[6,7] The presence of strangers during jury deliberations
destroys the sanctity of the jury because the verdict of a jury
should represent the concurring judgment, reason, and intelli-
gence of the entire jury based upon the evidence and free from
outside influence from any source whatever. 6 We have held that
once a case has been submitted to the jury, an alternate juror
is a stranger to the proceedings regardless of whether the alter-
nate juror was discharged. 7 An alternate, we have explained, is
not part of the deliberating body and should not be permitted
with the group, where an alternate may have an influence on
the jury’s determination. 8
Neb. Rev. Stat. § 29-2022 (Reissue 2016) states that once a
case has been submitted, the jury shall have no communication
with nonjurors, in order to ensure that an accused receives the
right of an impartial jury and to shield the jury from improper
conduct by jurors during the course of their deliberations. 9
And, at the time of Madren’s trial, Neb. Rev. Stat. § 29-2004(Reissue 2016) required the court to discharge alternate jurors
“upon the final submission of the cause to the jury.” 10
Madren correctly points out that several jurisdictions hold
that the presence of an alternate in the jury room during
4
U.S. Const. amend. VI; Neb. Const. art. I, § 11.
5
State v. Menuey, 239 Neb. 513, 476 N.W.2d 846 (1991).
6
See, id.; Bramlett v. State, 129 Neb. 180, 261 N.W. 166 (1935).
7
See Menuey, supra note 5.
8
See id.
9
See State v. Barranco, 278 Neb. 165, 769 N.W.2d 343 (2009).
10
See Menuey, supra note 5.
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308 Nebraska Reports
STATE v. MADREN
Cite as 308 Neb. 443deliberations constitutes reversible error per se. These jurisdic-
tions reason that it is impossible to make an adequate inquiry
that would disprove prejudice from such a constitutional vio-
lation. 11 It could not be known whether or to what extent that
participation affected the other jurors or the ultimate verdict
because any inquiry into the mental process of jurors is imper-
missible. 12 Furthermore, these jurisdictions reason that a factual
inquiry into the extent of an alternate’s participation and influ-
ence upon the jury is itself an intrusion into the proceedings
and privacy of the jury. 13 The 10th Circuit Court of Appeals in
United States v. Beasley 14 reasoned that any inquiry of the jury
under a prejudice standard “is itself a dangerous intrusion into
the proceedings of the jury” and that the purpose sought to be
achieved at a prejudice hearing “is not of sufficient importance
to warrant such an inquiry in comparison to the possible harm
or appearance of interference.”
At least one jurisdiction has modified this per se approach
by making a distinction between instances where the alter-
nate juror was present while the jury actually deliberated and
instances where the alternate was present only during “limited
organizational activity,” such as electing a foreperson. 15 If the
alternate is present after deliberations begin, the error is fun-
damental and prejudicial per se, and a new trial is ­­necessary. 16
11
See, Stokes v. State, 379 Md. 618, 843 A.2d 64 (2004) (citing United
States v. Beasley, 464 F.2d 468 (10th Cir. 1972)); Com. v. Smith, 403
Mass. 489, 531 N.E.2d 556 (1988); State v. Bindyke, 288 N.C. 608, 220
S.E.2d 521 (1975); Brigman v. State, 350 P.2d 321 (Okla. Crim. App.
1960); Commonwealth v. Krick, 164 Pa. Super. 516, 67 A.2d 746 (1949).
12
See, Smith, supra note 11; Bindyke, supra note 11 (citing Beasley, supra
note 11; State v. Cuzick, 85 Wash. 2d 146, 530 P.2d 288 (1975); and Krick,
supra note 11).
13
See id.14
Beasley, supra note 11, 464 F.2d at 470.
15
Bouey v. State, 762 So. 2d 537, 540 (Fla. App. 2000).
16
See id.- 451 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. MADREN
Cite as 308 Neb. 443But if the alternate is only present during organizational activi-
ties and the case is not discussed, a harmless error analysis
is appropriate. 17 This jurisdiction has emphasized that it is
critical that the trial court conduct an inquiry and make factual
determinations on the record in order to determine how long
the alternate was with the other jurors and what was discussed
while the alternate was present. 18
[8] Both our court and the U.S. Supreme Court have repeat-
edly recognized that most constitutional errors can be harm-
less. 19 Thus, under most circumstances, we have rejected a per
se rule for irregularities or misconduct involving the sanctity of
the jury. 20 We have specifically held that the irregularity of the
presence of an alternate juror in deliberations of the 12 regular
jurors creates a rebuttable presumption of prejudice subject to
a harmless error analysis. 21
In State v. Menuey, 22 we explained that the presence of an
alternate juror in the jury room, while a fundamental consti-
tutional violation, is nevertheless distinct from the presence
of a court or law enforcement officer for a significant period
of time during deliberations—which we held in Gandy v.
State 23 and Cooney v. State 24 is prejudice per se regardless
17
See id.18
See id.19
See, State v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012); Menuey, supra
note 5 (citing Simants v. State, 202 Neb. 828, 277 N.W.2d 217 (1979)).
20
See, State v. Anderson, 252 Neb. 675, 564 N.W.2d 581 (1997); State v.
LeBron, 217 Neb. 452, 349 N.W.2d 918 (1984); Simants, supra note 19;
State v. Robinson, 198 Neb. 785, 255 N.W.2d 835 (1977); Cooney v. State,
61 Neb. 342, 85 N.W. 281 (1901); Gandy v. State, 24 Neb. 716, 40 N.W.
302 (1888). See, also, State v. Owen, 1 Neb. App. 1060, 510 N.W.2d 503(1993).
21
Menuey, supra note 5.
22
Id.
23
Gandy, supra note 20.
24
Cooney, supra note 20.
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STATE v. MADREN
Cite as 308 Neb. 443of whether the officer participated or advised the jury in any
manner. 25 A court officer might be expected to monitor the
jury’s discussions and a law enforcement officer could be
expected to inhibit criticism of the State’s case, thereby increas-
ing the inhibitory effect of their presence. 26
We ultimately held in Menuey that the evidence presented
at the evidentiary hearing, at which the alternate and the jurors
testified, rebutted the presumption of prejudice. The alternate
and the jurors had been called by the trial court to testify,
and it was undisputed that no deliberations took place during
the alternate’s presence, which was for only approximately
10 minutes while the jury chose a foreman. The jurors and
the alternate testified that the alternate did not participate in
the choosing of the foreman; nor did the alternate discuss the
case with the jurors when the bailiff had allowed the alter-
nate to join them for lunch. Finally, the jurors testified their
decisions were not in any way influenced by the alternate’s
presence. 27
[9] We decline Madren’s invitation to overrule Menuey and
adopt a per se standard for prejudice when an alternate is mis-
takenly allowed in juror deliberations. We reaffirm that under
the statutory scheme for alternates controlling at the time of
Madren’s trial, the presence of an alternate juror in jury delib-
erations is a constitutional violation of the right to a fair and
impartial trial that merely creates a rebuttable presumption of
prejudice for purposes of a harmless error analysis.
This approach, adopting a rebuttable presumption of prej­
udice in a harmless error analysis for the unauthorized pres-
ence of an alternate juror in jury deliberations, has been
25
See, Simants, supra note 19; Cooney, supra note 20.
26
Menuey, supra note 5. But see Simants, supra note 19.
27
Menuey, supra note 5.
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STATE v. MADREN
Cite as 308 Neb. 443adopted by a substantial number of other jurisdictions. 28 We
disagree with the reasoning of the “prejudice per se” juris-
dictions that an evidentiary hearing to determine prejudice
is fruitless because of restrictions on examinations of jurors’
mental states.
As we noted in Menuey, Neb. Rev. Stat. § 27-606(2) (Reissue
2016) describes the confines of permissible inquiry into jurors’
minds and allows a juror to testify on the question whether
extraneous prejudicial information was improperly brought to
the jury’s attention or whether any outside influence was
improperly brought to bear upon any juror. 29 Section 27-606(2)
states in full:
Upon an inquiry into the validity of a verdict or indict-
ment, a juror may not testify as to any matter or state-
ment occurring during the course of the jury’s delibera-
tions or to the effect of anything upon his or any other
juror’s mind or emotions as influencing him to assent to
or dissent from the verdict or indictment or concerning
his mental processes in connection therewith, except that
a juror may testify on the question whether extraneous
prejudicial information was improperly brought to the
jury’s attention or whether any outside influence was
improperly brought to bear upon any juror. Nor may his
affidavit or evidence of any statement by him indicating
an effect of this kind be received for these purposes.
(Emphasis supplied.) We explained in Menuey that the jurors’
and the alternate’s testimony as to both the objective extent
28
See, Stokes, supra note 11 (citing United States v. Watson, 669 F.2d
1374 (11th Cir. 1982)); State v. Crandall, 452 N.W.2d 708 (Minn. App.
1990); People v. Boulies, 690 P.2d 1253 (Colo. 1984); State v. Scrivner,
676 S.W.2d 12 (Mo. App. 1984); State v. Coulter, 98 N.M. 768, 652 P.2d
1219 (N.M. App. 1982); Yancey v. State, 640 P.2d 970 (Okla. Crim. App.
1982); Cuzick, supra note 12; Johnson v. State, 235 Ga. 486, 220 S.E.2d
448 (1975).
29
See Menuey, supra note 5.
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STATE v. MADREN
Cite as 308 Neb. 443of the alternate’s participation in deliberations and the jurors’
subjective determination that they were not influenced by the
alternate’s presence was thus properly received. 30 The alter-
nate’s participation during jury deliberations, as a stranger to
the proceedings, is extraneous information and outside influ-
ence. While the court may still be prohibited from inquiring of
the jurors as to what they said to the alternate, the court is not
prohibited from questioning individual jurors and the alternate
as to how, if at all, the alternate communicated to the jury. 31
The court is also permitted to inquire as to individual jurors
whether the alternate’s outside influence was brought to bear
upon them. 32
We observe that since Madren’s trial, amendments made by
2020 Neb. Laws, L.B. 881, effective November 14, 2020, now
allow courts to retain alternate jurors after the jury retires to
deliberate, with added safeguards intended to protect the sanc-
tity of juror deliberations. 33 Under § 29-2004 as amended, if a
court decides to retain alternate jurors, the court “shall ensure
that a retained alternate does not discuss the case with anyone
until that alternate replaces a juror or is discharged.” 34 It does
not elaborate on how that must be done and does not indicate
that the retained alternate should be present in juror delibera-
tions. Also, if the alternate replaces a juror after deliberations
have started, “the court shall instruct the jury to begin its delib-
erations anew.” 35
This case presents the unique situation where the district
court, through its own error, allowed the alternate, without any
30
Id.
31
See, Zeeb v. Delicious Foods, 231 Neb. 358, 436 N.W.2d 190 (1989);
Owen, supra note 20.
32
§ 27-606; Menuey, supra note 5. See, also, LeBron, supra note 20;
Robinson, supra note 20.
33
§ 29-2004 (Cum. Supp. 2020).
34
Id.
35
Id.
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Cite as 308 Neb. 443safeguards, to remain in the jury room for approximately an
hour after the case was submitted to the jury. Yet, the district
court denied both the motion for a mistrial and the motion for
a new trial without conducting an evidentiary hearing or even
questioning any individual juror to determine the extent of
the alternate’s participation in deliberations. And no informa-
tion was permitted to be obtained from the alternate before
the court dismissed her or when Madren sought to obtain an
affidavit from her prior to the court’s deciding the motion for
new trial.
When the grounds for a motion for a mistrial involve the
sanctity of jury deliberations, the defendant has generally
been given an opportunity to have the jurors both ques-
tioned and polled, and whether the defendant was prejudiced
depends in part on what the jurors say on interrogation. 36
Even more to the point, § 29-2102(2) dictates with respect to a
motion for new trial that the court “shall” hold an evidentiary
hearing and make findings of fact and law “[i]f the motion
for new trial and supporting documents set forth facts which,
if true, would materially affect the substantial rights of the
defendant . . . .”
As a general rule, the use of the word “shall” is considered
to indicate a mandatory directive, inconsistent with the idea
of discretion. 37 In State v. Cross, 38 we held that we apply a de
novo standard of review to a trial court’s dismissal of a motion
for a new trial under § 29-2102(2), without first conducting an
evidentiary hearing.
[10] After an error has been properly preserved by a motion
for a mistrial, in order for a new trial to be granted, it
must be shown that a substantial right of the defendant was
36
See State v. Myers, 258 Neb. 272, 603 N.W.2d 390 (1999). See, also,
LeBron, supra note 20; Robinson, supra note 20; Owen, supra note 20.
37
Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015).
38
Cross, supra note 3.
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STATE v. MADREN
Cite as 308 Neb. 443adversely affected and that the defendant was prejudiced
­thereby. 39 Pursuant to Neb. Rev. Stat. § 29-2101 (Reissue
2016), a new trial after a verdict of conviction may be granted
on the application of the defendant on specified grounds
“affecting materially his or her substantial rights,” including,
as set forth in subsection (1), “[i]rregularity in the proceedings
of the court . . . or in any order of the court or abuse of discre-
tion by which the defendant was prevented from having a fair
trial.” When the motion for a new trial is on grounds set forth
in § 29-2101(2), (3), and (6), then § 29-2102 requires that they
be supported by affidavits showing the truth of such grounds.
But § 29-2102 does not require that the movant support with
affidavits a motion for a new trial made on the grounds set
forth under § 29-2101(1). Moreover, it was undisputed that the
court mistakenly allowed the alternate to be present during an
hour of jury deliberations without any instruction or other safe-
guards limiting her participation.
In our de novo review, we hold that the court had a manda-
tory duty under § 29-2102 to conduct an evidentiary hearing.
Madren’s motion for new trial set forth facts which, if true,
would materially affect his substantial rights. The constitu-
tional right to trial by a fair and impartial jury that is affected
by a stranger’s presence in the jury room is a substantial
right. 40 As discussed, there is a rebuttable presumption of prej-
udice when an alternate, who should have been discharged, is
mistakenly allowed with the jury during deliberations. 41 Both
Madren and the State were entitled to a hearing on the motion
for new trial in order to determine the extent and nature of
any communications by the alternate regarding the case and
whether the alternate’s presence or communications materially
influenced the jury, thus giving the State an opportunity to
39
State v. Hudson, 268 Neb. 151, 680 N.W.2d 603 (2004).
40
See Menuey, supra note 5.
41
See, id.; Simants, supra note 19.
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Cite as 308 Neb. 443rebut the presumption of prejudice that arose by virtue of the
alternate’s unauthorized presence.
The district court’s general request to the jury, that any of
its members should “please let me know” if, in reaching the
verdict, they “consider[ed] any of the conversations or partici-
pation” of the alternate juror while she was with them in the
jury room, was not an adequate replacement for individual-
ized questioning of whether the jurors were influenced. And,
under these facts, the court’s instruction to begin deliberations
“from scratch” did not nullify its mandatory duty to conduct
an evidentiary hearing for purposes of determining if the pre-
sumption of prejudice had been rebutted. Such an instruction
is not a panacea for every violation of the sanctity of juror
deliberations.
The requirement in the 2020 amendment to § 29-2004 to
instruct the jury to begin its deliberations anew if the alternate
replaces a juror after deliberations have started does not sug-
gest that the Legislature believes such an instruction could
cure improper influence by alternates who are mistakenly
left in deliberations with no instruction as to how to conduct
themselves and where the extent of communications by the
alternates are unknown. It is instead a measure that assumes
there has been no improper influence and merely fully includes
the alternate in the deliberations after the alternate has replaced
a juror.
This is not to say that an instruction to begin deliberations
anew after the sanctity of jury deliberations has been violated
is irrelevant, but the effectiveness of such an instruction in
erasing all prejudice from the presumed unauthorized influence
of the jurors necessarily depends on the extent of the influence.
And because the court refused to conduct an evidentiary hear-
ing, it is precisely this that we do not know.
Without information as to whether and to what extent the
alternate communicated with the jury during deliberations,
we cannot determine the merits of whether the court erred in
denying the motion for a new trial. But we can determine that
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Cite as 308 Neb. 443the court erred in doing so without first conducting an eviden-
tiary hearing.
The facts of this case are similar to those presented in State
v. Owen, 42 wherein the district court had refused to conduct an
evidentiary hearing upon the defendant’s motion for new trial
and the Court of Appeals remanded the matter for an evidentiary
hearing on the motion. The defendant in Owen had presented
affidavits suggesting that the court had informally expounded
upon its instruction on the term “reasonable doubt,” when it
entered the jury room before evening recess to admonish the
jurors concerning their separation, and, further, that jurors had
brought dictionary definitions of the term “reasonable doubt”
into their deliberations. The Court of Appeals explained that
while the alleged violations were not prejudicial per se, due to
the lack of an evidentiary hearing, there was insufficient infor-
mation to determine whether there was a reasonable possibility
that extraneous information or the irregularities of the court’s
communications affected the verdict.
Thus, the Court of Appeals in Owen held that the district
court judge had abused his discretion in failing to recuse
himself and allow an evidentiary hearing, which deprived the
defendant of her substantial right to determine whether she had
been prejudiced by either the alleged further instruction on the
burden of proof by the judge or the juror’s production of extra-
neous dictionary information. Without expressing any opinion
as to whether the alleged misconduct in connection with the
jury deliberations occurred or whether it was prejudicial if it
occurred, the Court of Appeals vacated the order denying the
motion for a new trial and remanded the matter back to the
trial court with directions that a judge other than the trial judge
rule on the motion for new trial after conducting an eviden-
tiary hearing.
[11] We likewise find it necessary that the district court’s
order denying Madren’s motion for a new trial should be
42
Owen, supra note 20.
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Cite as 308 Neb. 443reversed and that the matter should be remanded for an evi-
dentiary hearing to determine whether Madren was prejudiced
by the violation of his right to a fair and impartial jury stem-
ming from the alternate’s unauthorized presence with the jury
during deliberations. In a jury trial of a criminal case, harmless
error exists when there is some incorrect conduct by the trial
court which, on review of the entire record, did not materially
influence the jury in reaching a verdict adverse to a substan-
tial right of the defendant. 43 However, we cannot enter into
a harmless error analysis without knowing the extent of the
alternate’s participation in the jury deliberations.
The Court of Appeals erred in affirming the district court’s
denials of Madren’s motions for mistrial and new trial, because
the district court erred in failing to hold an evidentiary hearing
regarding the alternate juror’s participation in deliberations. We
reverse the decision of the Court of Appeals and remand the
matter to the Court of Appeals with directions to remand the
matter to the district court to conduct the mandated evidentiary
hearing as required by § 29-2102(2). Upon remand, nothing in
this opinion should be construed to circumscribe the authority
of the trial court to establish procedures to protect the integrity
of the proceedings.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the
Court of Appeals and remand the matter with directions.
Reversed and remanded with directions.
43
State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), abrogated on
other grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).