State v. Childs , 309 Neb. 427 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/30/2021 08:10 AM CDT
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE v. CHILDS
Cite as 309 Neb. 427State of Nebraska, appellee, v.
Jean Childs, appellant.
___ N.W.2d ___
Filed June 11, 2021. No. S-20-024.
1. Criminal Law: Directed Verdict: Appeal and Error. In an appellate
court’s consideration of a criminal defendant’s motion for a directed
verdict, the State is entitled to have all its relevant evidence accepted as
true, every controverted fact resolved in its favor, and every beneficial
inference reasonably deducible from the evidence.
2. Rules of Evidence: Appeal and Error. When 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.
3. Appeal and Error. An appellate court may find plain error on appeal
when an error unasserted or uncomplained of at trial, but plainly evident
from the record, prejudicially affects a litigant’s substantial right and,
if uncorrected, would result in damage to the integrity, reputation, and
fairness of the judicial process.
4. ____. Generally, an appellate court will find plain error only when a
miscarriage of justice would otherwise occur.
5. Criminal Law: Directed Verdict. In a criminal case, the court can
direct a verdict only when (1) there is a complete failure of evidence
to establish an essential element of the crime charged or (2) evidence is
so doubtful in character and lacking in probative value that a finding of
guilt based on such evidence cannot be sustained.
6. Directed Verdict: Evidence: Appeal and Error. When a motion for a
directed verdict made at the close of all the evidence is overruled by the
trial court, appellate review is controlled by the rule that a directed ver-
dict is proper only where reasonable minds cannot differ and can draw
but one conclusion from the evidence, and the issues should be decided
as a matter of law.
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STATE v. CHILDS
Cite as 309 Neb. 4277. Perjury: Proof. There are three elements necessary to prove perjury:
(1) the defendant makes a false statement under oath, (2) the state-
ment is material, and (3) the defendant did not believe the statement to
be true.
8. ____: ____. Perjury must be proved by at least two witnesses or by a
single witness, together with material and established corroborative facts
sufficient to amount to the testimony of another witness.
9. Appeal and Error. Plain error is not a vehicle that should be routinely
used to save an issue for appeal where a proper objection should have
been, but was not, made at trial.
10. Trial: Prosecuting Attorneys: Appeal and Error. When assessing a
claim of alleged prosecutorial misconduct, an appellate court first deter-
mines whether the prosecutor’s acts constituted misconduct.
11. Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial mis-
conduct encompasses conduct that violates legal or ethical standards for
various contexts because the conduct will or may undermine a defend­
ant’s right to a fair trial.
12. Trial: Prosecuting Attorneys: Juries. Prosecutors are charged with the
duty to conduct criminal trials in such a manner that the accused may
have a fair and impartial trial, and prosecutors are not to inflame the
prejudices or excite the passions of the jury against the accused.
13. ____: ____: ____. A prosecutor’s conduct that does not mislead and
unduly influence the jury does not constitute misconduct.
14. Trial: Evidence: Appeal and Error. An objection must be specifically
stated, and on appeal, a defendant may not assert a different ground for
his or her objection to the admission of evidence than was offered to the
trier of fact.
15. Records: Appeal and Error. An appellate court often declines to scour
the record on appeal in search of facts that might support a claim if not
cited by a party in its brief, even if the failure to do so may result in the
appellate court’s overlooking a fact or otherwise treating a matter under
review as if it does not exist.
Appeal from the District Court for Kimball County: Derek
C. Weimer, Judge. Affirmed.
Jerald L. Ostdiek, of Douglas, Kelly, Ostdiek, Snyder,
Ossian, Vogl & Lookabill, P.C., for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
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STATE v. CHILDS
Cite as 309 Neb. 427Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
Jean Childs appeals her conviction for perjury based upon
testimony she gave at her husband’s trial on a misdemeanor
charge. On appeal, Jean argues the district court erred in
receiving the transcript from her husband’s trial over her hear-
say objections and erred in overruling her motion for a directed
verdict. She also argues it was plain error for the trial court to
allow the prosecutor to comment on her husband’s conviction
and to allow the jury to consider the transcript of her husband’s
trial without redacting a comment made by the judge. Finding
neither error nor plain error, we affirm.
I. BACKGROUND
1. Kenneth’s Trial
On February 16, 2016, the village of Dix, Nebraska
(Village), received a complaint that a trench had been dug
across a street adjacent to the home of Jean and her husband,
Kenneth Childs. Because the Childses’ vehicle was parked
over the trench, the Village contacted Kimball County Deputy
Sheriff Marla Knigge for assistance with moving the vehicle
so the Village could fill the trench.
On February 18, 2016, Knigge met with Kenneth at the
Childses’ home. Kenneth told Knigge that he dug the trench
to drain the water away from their property. When Knigge
informed Kenneth that the Village wanted to fill in the trench,
Kenneth stated that if that happened, he would dig the trench
again if he needed to drain water away from their property in
the future.
Kimball County charged Kenneth with injury to a public
road, in violation of Neb. Rev. Stat. § 39-301 (Reissue 2016), a
Class V misdemeanor. In August 2016, the county court judge
held a bench trial, where Kenneth chose to represent himself.
At trial, the State called four witnesses.
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STATE v. CHILDS
Cite as 309 Neb. 427Mark Miller, the street commissioner for the Village, testi-
fied about receiving a complaint from the Childses’ neighbor
that a trench had been dug across the public road adjacent to
the Childses’ house.
Sharon McKinney, the village clerk, testified that she
received a report about the trench and that on or about February
16, 2016, she drove to the location and took a photograph. The
photograph was received as exhibit 1. McKinney described
the trench as “fairly large” and said it “made a racket” when
she drove across it. She indicated that the trench went from the
edge of the Childses’ property to the edge of the neighbor’s
property across the road. McKinney testified that Kenneth did
not have permission to dig the trench and that he had previ-
ously been asked not to do so.
Knigge testified about her February 18, 2016, visit with
Kenneth. Knigge testified that she made contact with Kenneth
on February 18 to ask him to move his vehicle so the Village
could fill in the trench and that exhibit 1 depicted the trench as
it appeared on February 18. She testified that Kenneth told her
he dug the trench to drain water away from their property and
that if the trench got filled in, he would dig it again.
Linda Williams, the office administrator for the Kimball
County sheriff’s office, was also present during Knigge’s con-
versation with Kenneth, and she corroborated Knigge’s tes-
timony. Williams further testified that when she and Knigge
made contact with Kenneth in February 2016, he admitted to
digging the trench because water would pool on their property
and he wanted it to drain off.
Kenneth called Jean as the only defense witness. On direct
examination, Kenneth showed Jean exhibit 1, the photograph
of the trench taken by McKinney on February 16, 2016. When
asked, under oath, whether Jean saw “any digging at all [in the
photograph],” she testified, “No. I see a difference between the
pavement and the dirt, and there’s always a difference between
the pavement and the dirt no matter where you live at.” Then,
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STATE v. CHILDS
Cite as 309 Neb. 427when Kenneth asked Jean whether the trench depicted in
the photograph was the same trench that was at issue in the
case, Jean stated that “[t]here’s no trench there.” Kenneth also
asked Jean questions regarding Knigge and Williams’ visit on
February 18, and the following exchange took place:
Q When [Knigge and Williams] were down there, was
there a trench?
A No.
Q There was no trench? There was no ditch, right?
A Right.
Kenneth asked Jean whether they had ever dug a ditch or
trench, to which Jean replied that they had never dug a trench.
The court ultimately found Kenneth guilty of injuring or
obstructing a public road by plowing or digging a ditch or
other opening thereon, describing the evidence as “overwhelm-
ing.” The court then stated, on the record, “I am also going to
direct the county attorney’s office to contact the Nebraska State
Patrol, because I believe perjury was committed by the defense
in this case today and, also, aiding and abetting perjury by you
in your questioning and the statements that you’ve made.” The
court then proceeded to sentencing and ordered Kenneth to pay
a $100 fine.
2. Jean’s Perjury Trial
After the Nebraska State Patrol completed its investigation,
a special prosecutor for Kimball County charged Jean with per-
jury in violation of Neb. Rev. Stat. § 28-915 (Reissue 2016), a
Class III felony, based on her testimony during Kenneth’s trial.
The day before Jean’s trial was scheduled to begin, she filed
a motion in limine. As relevant to the issues on appeal, Jean
moved to exclude “[t]he portions of the transcript of [Kenneth’s
trial] containing the testimony of Deputy Marla Knigge, Mark
Miller, Sharon McKinney, and Linda Williams.”
Jean’s motion in limine was taken up on the morning of her
trial, outside the presence of the jury. Jean’s counsel acknowl-
edged a prior stipulation that the transcript from Kenneth’s trial
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STATE v. CHILDS
Cite as 309 Neb. 427could be admitted, but asked the court to redact, as inadmis-
sible hearsay, the testimony of all witnesses other than Jean.
Counsel also described the challenged testimony as “all the
portions that are not [Jean’s] testimony.” The State objected
and argued it would be impracticable to “parse out certain sec-
tions without having a full and complete understanding of the
context of the statements that [Jean] makes.” The State also
argued the testimony was admissible on the bases of in-court
statements, residual hearsay, and the hearsay exception for
coconspirators.
The court told the parties it “would have liked to have had a
little more time to consider these things [but] I’ll make the best
ruling that I can on the circumstances that I’m presented with.”
The court overruled Jean’s motion in limine and indicated it
would allow the transcript from Kenneth’s trial into evidence
because it provided necessary context for the jury to evaluate
Jean’s testimony and the circumstances that gave rise to the
perjury charge. However, the court stated it would give a limit-
ing instruction to the jury on the specific purpose for which the
transcript could be considered.
It is undisputed that, in addition to the testimony of the
various witnesses, the transcript of Kenneth’s trial included the
county court’s comment that it believed perjury had been com-
mitted by the defense. The comment appeared on page 129 of
the 131-page exhibit, and nothing in our record suggests that
Jean ever complained of the judicial comment or otherwise
brought it to the attention of the district court judge either
before, during, or after her trial.
Jean’s jury trial began immediately after the hearing on
the motion in limine. During opening statements, the special
prosecutor provided the jury with background information
on Kenneth’s trial and informed the jury that “[Kenneth] was
found guilty in that proceeding, and [Jean] testified.” Jean
did not object to the special prosecutor’s opening statement.
Subsequently, counsel for Jean informed the jury in her open-
ing statement:
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STATE v. CHILDS
Cite as 309 Neb. 427Over the course of today you’re going to hear evi-
dence, as [the special prosecutor] stated, about [Kenneth]
and the trial he had downstairs in Kimball County back
on August 1 of 2016. And as [the special prosecutor]
pointed out, it was a charge of injury to a public road.
And I think you’ll hear testimony that there was what
I would call a drain going across the road. And there
was a trial and [Jean] testified on behalf of her husband,
and he was convicted. He was found guilty of injuring a
public road. And subsequent to that, [Jean] has now been
charged with perjury.
Lt. Travis Wallace with the Nebraska State Patrol, who
investigated Jean’s suspected perjury, testified on behalf of
the State. According to Wallace, Jean stated in an interview
that “[she and her husband] had made a line in the road to
drain water” and that “the water made a small trench across
the street.” Jean also informed Wallace that “[she and her hus-
band] used a stick to make a small line in the road.” On cross-
examination, Wallace testified that Jean told him she felt her
testimony in Kenneth’s trial was honest.
The State’s second witness, Knigge, testified to the events
involving the trench, explaining that when she first arrived
at the Childses’ residence in February 2016, she observed
a trench across the public road that “looked like it was dug
with a spade.” Knigge further testified that she spoke with
Jean while standing next to the trench and that Jean told her
water accumulated at the edge of their property and “the only
reason there [was] a little trench is because they [had] a big
water puddle.”
The State then offered exhibit 4, the entire transcript of
Kenneth’s trial, into evidence, and the district court judge
remarked:
THE COURT: I will note the prior comments and
objection made to Exhibit 4, and I assume you are renew-
ing those at this time?
[Defense counsel:] Yes, your Honor.
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STATE v. CHILDS
Cite as 309 Neb. 427THE COURT: The Court will receive Exhibit 4 sub-
ject to its prior ruling on 4. And noting those objections
and for purposes of today will overrule those objections.
The court also gave the following limiting instruction regard-
ing exhibit 4:
The court specifically notes and directs your atten-
tion to Exhibit 4. This Exhibit is offered for the limited
purpose of providing the context and content of [Jean’s]
testimony in the matter of the State of Nebraska v.
Kenneth Childs in the County Court of Kimball County,
Nebraska[,] Case No. CR16-62. It may be used for no
other purpose.
There was no objection to the limiting instruction.
David Wilson, the prosecuting county attorney from
Kenneth’s trial, also testified on behalf of the State. Wilson
testified that during Kenneth’s trial, both the street commis-
sioner and the Village clerk were asked whether they had given
the Childses permission to dig a trench on the public street, and
that both denied giving any such permission. Wilson further
testified that during Jean’s examination at Kenneth’s trial, Jean
testified there was no trench or ditch in the road when Knigge
came to investigate. Wilson read an excerpt of his cross-
examination of Jean on that issue, in which Wilson asked Jean
whether she recognized exhibit 1, which others had testified
was a photograph of the trench. Wilson told the jury that Jean
testified she did not recognize what was depicted in the photo-
graph and said it “‘looks like dirt.’” Wilson told the jury that
when being examined at trial, Jean expressly denied that the
road looked as depicted in the photograph when Knigge came
to investigate, adding, “‘We have a puddle of water — and my
opinion is [the neighbor] hates us so much . . . that he probably
dug it himself and then had the picture taken.”
The State also elicited testimony from Wilson about
Kenneth’s conviction:
Q. And the judge found [Kenneth] guilty of injury to
the public road.
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STATE v. CHILDS
Cite as 309 Neb. 427A. He did.
....
Q. So, [Kenneth], when that case [w]as proven beyond
a reasonable doubt, would have committed a law viola-
tion, specifically injuring or obstructing a public road
by plowing or digging a ditch or other opening thereon,
specifically Vine Street in Dix, Nebraska?
A. Yes.
At the close of the State’s case in chief, Jean moved for
a directed verdict. In support, Jean’s counsel argued that to
secure a conviction for perjury under § 28-915, the State must
prove (1) the defendant made a false statement under oath,
(2) the statement was material, and (3) the defendant did not
believe the statement to be true. 1 Jean argued that her state-
ments during Kenneth’s trial were not material and that she did
not believe her statements to be untrue. The court overruled the
motion, reasoning that the materiality of Jean’s statements, and
what she believed when the statements were made, were issues
of fact for the jury to decide. Jean did not present any evidence
after her motion was overruled.
After deliberating for about an hour, the jury returned a ver-
dict finding Jean guilty of perjury. The court entered judgment
in accordance with the verdict, and no posttrial motions were
filed. The court sentenced Jean to probation, after which she
filed this timely appeal.
II. ASSIGNMENTS OF ERROR
Jean assigns, reordered and restated, that the district court
erred in (1) overruling her hearsay objections to exhibit 4, (2)
overruling her motion for a directed verdict, (3) allowing the
prosecutor to comment on her husband’s conviction during
opening statements and when questioning a witness, and (4)
“allowing evidence that contained statements of the [county]
court’s opinion as to the guilt of [Jean] to go to the jury for
consideration.”
1
See State v. McCaslin, 240 Neb. 482, 482 N.W.2d 558 (1992).
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STATE v. CHILDS
Cite as 309 Neb. 427III. STANDARD OF REVIEW
[1] In an appellate court’s consideration of a criminal defend­
ant’s motion for a directed verdict, the State is entitled to have
all its relevant evidence accepted as true, every controverted
fact resolved in its favor, and every beneficial inference rea-
sonably deducible from the evidence. 2
[2] When the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for
an abuse of discretion. 3 Apart from rulings under the residual
hearsay exception, an appellate court reviews for clear error
the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination to
admit evidence over a hearsay objection or exclude evidence
on hearsay grounds. 4
[3,4] An appellate court may find plain error on appeal when
an error unasserted or uncomplained of at trial, but plainly
evident from the record, prejudicially affects a litigant’s sub-
stantial right and, if uncorrected, would result in damage to
the integrity, reputation, and fairness of the judicial process. 5
Generally, we will find plain error only when a miscarriage of
justice would otherwise occur. 6
IV. ANALYSIS
1. No Error in Overruling
Hearsay Objection
Jean contends the district court erred in overruling her hear-
say objections to that portion of the transcript from Kenneth’s
trial containing the testimony of Knigge, Miller, McKinney,
2
State v. Stanko, 304 Neb. 675, 936 N.W.2d 353 (2019).
3
AVG Partners I Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212(2020).
4
Id.5
State v. Senteney, 307 Neb. 702, 950 N.W.2d 585 (2020).
6
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STATE v. CHILDS
Cite as 309 Neb. 427and Williams. Jean argues that although the State claimed the
testimony was admissible under the residual hearsay excep-
tion, it failed to provide advance notice of its intent to use
that exception as required by Neb. Rev. Stat. § 27-803(23)
(Reissue 2016).
The State counters that the trial court’s ruling on the admis-
sibility of the transcript, along with the limiting jury instruction
regarding the proper use of the transcript, demonstrates that the
transcript was not received into evidence under the residual
hearsay exception and was not offered for the truth at all, but
instead for necessary context. We agree.
Neb. Rev. Stat. § 27-801(3) (Reissue 2016) defines hearsay
as a “statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted,” and Neb. Rev. Stat. § 27-802(Reissue 2016) prohibits the admission of hearsay except as
provided under our rules of evidence. Although the State
initially argued that the transcript was admissible under the
residual hearsay exception, the court received the transcript
into evidence reasoning it was admissible nonhearsay evidence.
The court determined the transcript was not being offered for
the truth of the matter asserted, but instead was offered “for
the limited purpose of providing the context and content of
[Jean’s] testimony” in Kenneth’s trial. The court gave the jury
a limiting instruction consistent with that stated purpose, and
it expressly told them the transcript “may be used for no other
purpose.” Jean did not object to the limiting instruction and
presents no argument that it was inadequate.
On this record, we see no error in the trial court’s decision
to overrule Jean’s hearsay objection. This assignment of error
has no merit.
2. No Error in Denying
Directed Verdict
Jean moved for a directed verdict at the close of the State’s
evidence, and she presented no evidence after the motion was
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STATE v. CHILDS
Cite as 309 Neb. 427overruled. She therefore has preserved for appellate review the
district court’s denial of her motion for a directed verdict.
[5,6] In a criminal case, the court can direct a verdict only
when (1) there is a complete failure of evidence to establish
an essential element of the crime charged or (2) evidence is
so doubtful in character and lacking in probative value that a
finding of guilt based on such evidence cannot be sustained. 7
Additionally, when a motion for a directed verdict made at the
close of all the evidence is overruled by the trial court, appel-
late review is controlled by the rule that a directed verdict
is proper only where reasonable minds cannot differ and can
draw but one conclusion from the evidence, and the issues
should be decided as a matter of law. 8
[7,8] Section 28-915 sets forth three elements necessary to
prove perjury: (1) the defendant makes a false statement under
oath, (2) the statement is material, and (3) the defendant did
not believe the statement to be true. 9 Additionally, no person
can be convicted of perjury under this section when proof of
falsity rests solely upon contradiction by testimony of a single
person other than the defendant. 10 Furthermore, we have held
that perjury must be proved by at least two witnesses or
by a single witness, together with material and established
corroborative facts sufficient to amount to the testimony of
another witness. 11
During Kenneth’s trial, Jean repeatedly testified under oath
that she and her husband did not dig a trench in the road, and
she testified that the trench did not exist when Knigge and
Williams visited the Childses’ property. During Jean’s perjury
trial, the State offered testimony from three witnesses, and
7
Stanko, supra note 2.
8
State v. Williams, 306 Neb. 261, 945 N.W.2d 124 (2020).
9
See McCaslin, supra note 1.
10
§ 28-915(7).
11
McCaslin, supra note 1.
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Cite as 309 Neb. 427a corroborating photograph, directly contradicting the truth
of these statements. The statements were material to the mis-
demeanor charge on which Kenneth was being tried, and
although Jean emphasizes that she told the Nebraska State
Patrol investigator that she did not think her statements during
Kenneth’s trial were untrue, the State presented evidence from
which reasonable inferences could be drawn to the contrary.
For instance, the State presented evidence that Jean alternated
between denying the trench existed and admitting that the
trench existed but claiming that the Childses had permission
to dig the trench, that they used a stick to make a “line” in the
road and drain water, that the trench developed when she used
a broom to push standing water off their property, or that the
street commissioner may have dug the trench.
During Jean’s trial, the State adduced evidence supporting
each element of perjury. On a motion for a directed verdict, the
State must be afforded the benefit of every inference reason-
ably deducible from that evidence. 12 We find no error in over-
ruling Jean’s motion for a directed verdict and submitting the
case to the jury. This assignment of error is meritless.
3. No Plain Error
Jean’s remaining two assignments of error involve com-
plaints that were never presented to, or considered by, the
district court. Because the failure to make a timely objection
waives the right to assert prejudicial error on appeal, 13 Jean
generally asks that we review both assignments under our plain
error jurisprudence.
[9] We have long held that an appellate court may find plain
error on appeal when an error unasserted or uncomplained
of at trial, but plainly evident from the record, prejudicially
12
See Stanko, supra note 2.
13
Western Ethanol Co. v. Midwest Renewable Energy, 305 Neb. 1, 938
N.W.2d 329 (2020).
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STATE v. CHILDS
Cite as 309 Neb. 427affects a litigant’s substantial right and, if uncorrected, would
result in damage to the integrity, reputation, and fairness of
the judicial process. 14 Plain error should be resorted to only in
those rare instances where it is warranted, 15 and it is warranted
only when a miscarriage of justice would otherwise occur. 16
Plain error is not a vehicle that should be routinely used to
save an issue for appeal where a proper objection should have
been, but was not, made at trial. 17 With this settled standard
in mind, we review Jean’s final two assignments and find no
plain error.
(a) Prosecutor’s Comments
Jean assigns that the district court erred by allowing the
prosecutor to comment on Kenneth’s conviction during open-
ing statements and while questioning a witness. She asserts
that the prosecutor’s remarks were irrelevant, inadmissible,
and undermined her right to a fair trial. However, Jean did not
object to the prosecutor’s comments, nor did she move for a
mistrial alleging prosecutorial misconduct. As such, our appel-
late review is confined to a search for plain error.
[10-13] When assessing a claim of alleged prosecutorial
misconduct, an appellate court first determines whether the
prosecutor’s acts constituted misconduct. 18 Prosecutorial mis-
conduct encompasses conduct that violates legal or ethical
standards for various contexts because the conduct will or
may undermine a defendant’s right to a fair trial. 19 Prosecutors
are charged with the duty to conduct criminal trials in such a
14
Senteney, supra note 5.
15
State v. McSwine, 292 Neb. 565, 873 N.W.2d 405 (2016).
16
Senteney, supra note 5.
17
McSwine, supra note 15.
18
See State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).
19
State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
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STATE v. CHILDS
Cite as 309 Neb. 427manner that the accused may have a fair and impartial trial,
and prosecutors are not to inflame the prejudices or excite the
passions of the jury against the accused. 20 A prosecutor’s con-
duct that does not mislead and unduly influence the jury does
not constitute misconduct. 21
During opening statements, the prosecutor informed the jury
that Kenneth had been convicted of injury to a public road and
that Jean testified in Kenneth’s defense at the trial. Notably,
Jean’s counsel made similar remarks during her opening state-
ment. The prosecutor also elicited testimony from Wilson, the
prosecutor in Kenneth’s case, confirming that the county court
found Kenneth guilty of injuring or obstructing a public road.
The prosecutor’s brief references to Kenneth’s conviction
were accurate and provided context for Jean’s charge, were not
misleading, and were not phrased or delivered in a way that
suggests they were intended to inflame prejudice or excite the
passions of the jury against Jean. We see no error, let alone
plain error, in the court’s “allowing” these statements.
(b) Judicial Comment in Transcript
Lastly, Jean argues the district court erred in “allowing evi-
dence that contained statements of the [county] court’s opinion
as to the guilt of [Jean] to go to the jury for consideration.”
The judicial statement about which Jean complains appeared
near the end of the 131-page transcript from Kenneth’s trial,
when the judge said to Kenneth: “I am also going to direct the
county attorney’s office to contact the Nebraska State Patrol,
because I believe perjury was committed by the defense in
this case today and, also, aiding and abetting perjury by you in
your questioning and the statements that you’ve made.” Jean
argues that even though this comment was made by the judge
in Kenneth’s case, it “spoke directly to the Judge’s opinion
20
Id.21
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Cite as 309 Neb. 427of [her] guilt” 22 and “suggest[ed] to the jury what the judge of
[Kenneth’s] case believed an appropriate verdict would be” in
Jean’s case. 23
Jean did not, at any point, object to the transcript based
on the inclusion of this judicial comment or ask to redact the
comment. She does suggest, in her reply brief, that remarks
by her lawyer while arguing the motion in limine were suf-
ficient to preserve this alleged error, but we soundly reject that
suggestion.
[14] An objection must be specifically stated, and on appeal,
a defendant may not assert a different ground for his or her
objection to the admission of evidence than was offered to the
trier of fact. 24 In other words, an objection, based on a specific
ground and properly overruled, does not preserve a question
for appellate review on any other ground. 25
Jean’s motion in limine sought only to exclude, as inadmis-
sible hearsay, the portions of the transcript that contained the
trial testimony of Knigge, Miller, McKinney, and Williams.
At the hearing on the motion, Jean reiterated this request and
asked that “the testimony of the other parties from the tran-
script . . . be stricken” and that “all the portions that are not
[Jean’s] testimony be redacted as they’re hearsay and will be
prejudicial to her.” At all times, Jean’s hearsay objection was
confined to the testimony of the witnesses and no mention was
made, in passing or otherwise, to the findings or comments
22
Reply brief for appellant at 7.
23
Id. at 6.
24
See, State v. Timmens, 263 Neb. 622, 641 N.W.2d 383 (2002); State
v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002). See, also, Rocek v.
Department of Public Institutions, 225 Neb. 247, 404 N.W.2d 414 (1987);
Gateway Bank v. Department of Banking, 192 Neb. 109, 219 N.W.2d 211(1974); Fries v. Goldsby, 163 Neb. 424, 80 N.W.2d 171 (1956).
25
Timmens, supra note 24; State v. Davlin, 263 Neb. 283, 639 N.W.2d 631(2002).
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Cite as 309 Neb. 427of the county court judge. Jean renewed the same objection
at trial, and it was overruled. Because Jean never raised an
objection to the judicial comments she now claims should have
been redacted from the transcript, we review this assignment
for plain error, and we necessarily confine our analysis to the
alleged error as Jean has framed it.
Jean claims the district court erred by “allowing” the tran-
script to “go to the jury for consideration” when it contained
the judicial comment about suspected perjury. In other words,
she contends the district court erred by not sua sponte review-
ing the transcript and redacting the judicial comment before
allowing the jury to consider it. And since no party brought the
judicial comment on page 129 to the court’s attention, Jean’s
contention necessarily presumes that the district court had a
duty to examine all 131 pages of the transcript before allowing
it to go back to the jury.
We have been directed to no rule of law in Nebraska requir-
ing a trial judge to review, sua sponte, each exhibit offered in a
criminal trial to ensure that no statement or inference contained
therein might be prejudicial to one of the parties. Indeed, the
only authority we find on the question from other jurisdictions
supports quite the opposite conclusion. 26
We recently considered, and rejected, a somewhat analogous
claim: that the trial court was obligated to rule sua sponte
on the admissibility of testimony during a criminal trial. 27 In
26
See, U.S. v. Snype, 441 F.3d 119 (2d Cir. 2006) (finding no plain error
in trial court’s failure to redact information from exhibit because no
rule of law required trial judge to sua sponte review exhibit to ensure it
contained nothing prejudicial); Havilah Real Property Services v. VLK,
LLC, 108 A.3d 334 (D.C. App. 2015) (finding no plain error in trial
court’s admission of exhibits containing hearsay, because documents were
admitted for limited purpose and limiting instruction was given, and there
was no support for argument that judge was required sua sponte to review
each exhibit for potential evidentiary issues before admission).
27
See Senteney, supra note 5.
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Cite as 309 Neb. 427State v. Senteney, 28 the defendant failed to timely object to
a witness’ testimony regarding indicators of deception that
the defendant exhibited during an interview. But on appeal,
the defendant argued it was plain error for the court to allow
this testimony, as it amounted to one witness testifying to the
credibility of another witness. 29 We ultimately found that any
error in the presentation of the witness’ testimony did not rise
to the level of plain error. 30 We acknowledged that without an
objection, the trial court was not asked to rule on the admis-
sibility of the witness’ testimony, and that therefore, it could
not be said that the court made an erroneous evidentiary rul-
ing. 31 We reasoned that during a trial, a court is not obligated
to rule sua sponte on the admissibility of testimony, and that
without an objection, we could not say the court committed
plain error when it allowed specific testimony. 32 We ultimately
concluded the witness’ testimony did not rise to the level of
plain error because the testimony regarding the indicators of
deception was a relatively small part of his testimony over-
all, and was not emphasized by the prosecutor during closing
arguments. 33
[15] In connection with our appellate review, we often
decline to scour the record on appeal in search of facts that
might support a claim if not cited by a party in its brief, even
if the failure to do so may result in our overlooking a fact or
otherwise treating a matter under review as if that fact does
not exist. 34 We see nothing on this record that compels us to
28
Id.29
Id. See, also, State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).
30
See Senteney, supra note 5.
31
See id.32
See id. (citing State v. Pointer, 224 Neb. 892, 402 N.W.2d 268 (1987)).
33
See Senteney, supra note 5.
34
See State v. Dill, 300 Neb. 344, 913 N.W.2d 470 (2018). See, also, In re
App. No. C-4973 of Skrdlant, 305 Neb. 635, 942 N.W.2d 196 (2020).
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Cite as 309 Neb. 427hold trial courts to a different standard, and we decline Jean’s
invitation to impose a new duty on trial courts to review all
exhibits sua sponte for potentially prejudicial content not
objected to by the parties. 35 As we recently explained in State
v. Thomas, 36 “‘It is not the judge’s responsibility to sever the
bad parts [of an exhibit] if some are good. That is the oppo-
nent’s burden.’”
Here, the judge’s comment appeared on page 129 of a
131-page exhibit. While the comment would have been plainly
evident to anyone who reviewed the entire transcript, neither
party brought the judicial comment to the district court’s atten-
tion, and we can find no error, let alone plain error, in the dis-
trict court’s failure to sua sponte review the exhibit and redact
the comment. Such is not the proper role of the trial court.
Moreover, even if we could find judicial error in not review-
ing the exhibit sua sponte, and even if we assume that the
jurors noticed the comment during deliberations and under-
stood the judge was expressing an opinion that Jean had com-
mitted perjury while testifying for the defense, we could not
find that the failure to redact the comment rises to the level
of plain error. First, we would have to ignore the limiting
35
Accord, U.S. v. Williams, 527 F.3d 1235, 1247 (11th Cir. 2008) (for admis­
sion of evidence to constitute plain error, evidence must have been “‘so
obviously inadmissible and prejudicial that, despite defense counsel’s
failure to object, the district court, sua sponte, should have excluded the
evidence’”). See, also, U.S. v. Browne, 953 F.3d 794, 800 (D.C. Cir. 2020)
(“[r]are indeed would the case be in which we would find plain error in
a judge’s failure to sua sponte exclude evidence”); Proenza v. State, 541
S.W.3d 786 (Tex. Crim. App. 2017) (recognizing trial judge has no duty
to enforce forfeitable rights unless requested to do so); United States
v. Amador-Flores, 728 Fed. Appx. 839 (10th Cir. 2018) (for admission
of testimony to be plain error, testimony must have been so obviously
inadmissible and prejudicial that, despite opposing party’s failure to
object, court sua sponte should have excluded testimony).
36
State v. Thomas, 303 Neb. 964, 981, 932 N.W.2d 713, 726 (2019) (quoting
1 McCormick on Evidence § 52 (Kenneth S. Broun et al. eds., 7th ed.
2013 & Supp. 2016)).
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Cite as 309 Neb. 427instruction, which expressly told the jurors not to consider the
transcript for any purpose other than “providing the context
and content of [Jean’s] testimony” in Kenneth’s trial. The trial
judge also gave the jury the standard instruction that the law
does not permit the judge to comment on the evidence and that
if it appeared the judge had commented on the evidence, the
jury was to disregard such comment. Absent evidence to the
contrary, it is presumed that a jury followed the instructions
given in arriving at its verdict. 37
Here, the properly admitted evidence that Jean committed
perjury during Kenneth’s trial was overwhelming; even if we
assume the jury discovered the judicial comment during delib-
erations and understood it to express an opinion that Jean had
committed perjury, failing to correct the error would not result
in a miscarriage of justice or damage the integrity, reputation,
and fairness of the judicial process. 38
V. CONCLUSION
For the foregoing reasons, we conclude the assigned errors
are without merit, and we find no plain error. We therefore
affirm the judgment of the district court.
Affirmed.
37
State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).
38
See Senteney, supra note 5.
Heavican, C.J., dissenting.
I respectfully dissent.
During Kenneth Childs’ misdemeanor trial for injury to a
public road, Kenneth, unrepresented by an attorney, called his
wife, Jean Childs, as his only defense witness. After Jean’s
testimony, the county court judge commented, on the record,
“I believe perjury was committed by the defense in this case
today . . . .” Despite not naming her, the comment, when read
in context, obviously implicated Jean. The judge also directed
the county attorney’s office to contact the Nebraska State
Patrol to pursue perjury charges against Jean.
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Cite as 309 Neb. 427A transcript containing those comments was admitted to the
jury in Jean’s subsequent felony trial for perjury. The transcript
then accompanied the jurors to their deliberations room, where
they adopted the same conclusion as the county court judge
that Jean had committed perjury.
Despite Jean’s objection to “all the portions [of the tran-
script] that are not [Jean’s] testimony,” the majority believes
she failed to adequately raise the county court judge’s prejudi-
cial comments in the transcript as an issue for appellate review.
A more generous reading of Jean’s objection would find it suf-
ficient. However, for purposes of this dissent, I accept that the
objection was not adequate and that our review is instead for
plain error. Still, I would find such plain error and reverse.
Plain error exists when there is an error, plainly evident
from the record but not complained of at trial, which prejudi-
cially affects a substantial right of a litigant. 1 To warrant rever-
sal on appeal, a plain error at trial must be of such a nature that
to leave it uncorrected would result in a miscarriage of justice
or damage to the integrity, reputation, and fairness of the judi-
cial process. 2
The majority characterizes the main issue as being whether
a trial judge has a duty “to review, sua sponte, each exhibit
offered in a criminal trial to ensure that no statement or infer-
ence contained therein might be prejudicial to one of the par-
ties.” Throughout its analysis of that issue, the majority then
emphasizes Jean’s failure to raise a specific objection at trial
before it concludes that her failure to offer the court an oppor-
tunity to make a correct ruling results in no plain error.
But in my view, this framing misses the point. After deter-
mining initially that an error was not complained of at trial, an
appellate court’s next step is not to reassess whether the error
was complained of at trial. That step is done. Rather, the next
step is to assess whether the error resulted in a miscarriage
1
See State v. Senteney, 307 Neb. 702, 950 N.W.2d 585 (2020).
2
See id.- 448 -
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Cite as 309 Neb. 427of justice or damage to the integrity, reputation, and fairness
of the judicial process. 3 By permeating its second step of plain
error review with a reassessment of whether Jean made a spe-
cific objection at trial, the majority conflates the initial proce-
dural inquiry of whether there was an adequate objection with
the later substantive assessment of whether the error resulted in
such prejudice that it needs to be corrected.
In collapsing its analysis in this way, the majority would
neuter our plain error review. Rather than reviewing errors that
were unobjected to at trial for their threat of clear harm to the
judicial process, the majority would simply find the errors not
plain enough because they were unobjected to at trial. Such
circular logic defies the purpose and effect of our plain error
review, which, after all, only exists to consider errors that were
unobjected to at trial.
Indeed, the majority’s approach is unsupported by the prin-
cipal authority cited in its opinion. In State v. Senteney, 4 the
trial court had erroneously admitted a detective’s testimony
that the defendant may have been deceptive during an inter-
rogation. After finding the defendant had failed to object to
the detective’s testimony at trial, we moved to the separate
substantive assessment of whether the trial court’s erroneous
admission of that evidence was plain error. We held it was
not—not simply because the evidence had not been brought
to the judge’s attention at trial, but because the evidence had
been a relatively small part of the prosecution’s case and had
not gone to the ultimate issue at trial of the defendant’s guilt of
sexual assault of a child. In Senteney, the evidence’s relatively
inconsequential role at trial lessened its apparent threat of harm
to the judicial process.
In contrast, here, the comments were not isolated in the
middle of other evidence, but positioned obviously on the
penultimate page of the transcript, one of only three exhibits
3
See id.4
Id.- 449 -
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Cite as 309 Neb. 427offered by the State at Jean’s trial. Although the transcript was
131 pages in length, the district court need not have scoured
all of those pages to detect the county court judge’s prejudicial
comments. After all, Jean did object on hearsay grounds to
admitting the portion of the transcript that contained testimony
from persons other than her. Even if that objection was not
specific enough to preserve her appeal of that issue, I see no
reason that it should not be relevant in our determination of
whether the error was plain in the record.
And the evidence at issue was of immense consequence at
trial. The county court judge’s comment—that “perjury [had
been] committed by [Jean]”—went straight to the heart of the
ultimate issue at Jean’s trial. The danger that lies in a judge’s
comments being admitted as testimony at trial is that simply by
virtue of the judge’s position, the jurors will give too much cre-
dence to his or her testimony. 5 A judge’s position and authority
bestow him or her with an “‘imprimatur of character, credibil-
ity and reliability.’” 6 We have thus warned that “‘heightened
scrutiny’” should be applied before a judge can be compelled
to testify. 7 Because a judge retains his or her position and
authority regardless of whether he or she is then presiding in
the case, it is no less of a plain error for a judge’s testimony to
be used in a case over which he or she is not presiding.
In State v. Smith, 8 an appellate court in Ohio reversed
a perjury conviction with similar facts. The trial court had
allowed the judge presiding over the first trial to opine in
the subsequent perjury trial that the defendant had committed
perjury. Much like the instant case, the first judge in Smith
had “drafted a letter to both the administrative judge of the
5
See, Cornett v. Johnson, 571 N.E.2d 572 (Ind. App. 1991); Merritt v.
Reserve Ins. Co., 34 Cal. App. 3d 858, 110 Cal. Rptr. 511 (1973).
6
Rubens v. Mason, 387 F.3d 183, 190 (2d Cir. 2004). Accord Kennedy v.
Great Atlantic & Pacific Tea Co., 551 F.2d 593 (5th Cir. 1977).
7
State v. Sims, 272 Neb. 811, 827, 725 N.W.2d 175, 189 (2006).
8
State v. Smith, 2015 Ohio 1736, 32 N.E.3d 517 (2015).
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Cite as 309 Neb. 427court of common pleas and the Cuyahoga County Prosecuting
Attorney requesting that [the defendant] be investigated for
perjury.” 9 The decision reversing the perjury conviction noted
that the judge, as witness, had used terms that have legal
meaning and that such testimony is not helpful, because “‘the
testimony attempts to answer, rather than aid the jury in
answering, the ultimate question at issue.’” 10
The facts in this case are no less troubling in their measure
of threat to the judicial process. The issue at the heart of Jean’s
perjury trial was whether she had lied during Kenneth’s trial.
By admitting the judge’s pronouncement that Jean had commit-
ted perjury, “the [district court] effectively removed the issue
of [Jean’s] credibility from the jury.” 11 The comments were
allowed to invade the province of the jury and thereby damage
the integrity of Jean’s conviction. 12
As we have previously observed, “We are not inclined to
readily find plain error in [evidence] to which the opposing
party did not object.” 13 But where that error—even though it
was unobjected to at trial—is plainly evident from the record
and harmful to the fairness of the judicial process, we must
reverse the judgment of the court below. 14 Because, in my
view, it was plain error to allow the jury to see the county court
judge’s comment that Jean had committed perjury, I would
reverse the judgment of the district court.
Miller-Lerman, J., joins in this dissent.
9
Id. at ¶ 4, 32 N.E.3d at 520.
10
Id. at ¶ 16, 32 N.E.3d at 523.
11
State v. Privat, 251 Neb. 233, 242, 556 N.W.2d 29, 35 (1996).
12
See id.13
Senteney, supra note 1, 307 Neb. at 711, 950 N.W.2d at 592.
14
See id.
Miller-Lerman, J., dissenting.
I respectfully dissent. As an appellate court, we serve as
a safety net to protect the integrity of the judicial process
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Cite as 309 Neb. 427occasionally through the appellate procedure known as plain
error review. We are not about finding fault with the rulings of
the trial judges, overburdened though they may be. In this case,
the remarks of the county judge to the effect that Jean Childs
had committed perjury in an earlier trial were inadvertently, but
prejudicially, placed before the jury in Jean’s perjury trial. The
error is plainly evident from the record and to leave it uncor-
rected would result in damage to the integrity, reputation, and
fairness of the judicial process.
Plain Error Review.
Our customary definition of plain error review is as follows:
“Plain error may be found on appeal when an error unasserted
or uncomplained of at trial, but plainly evident from the record,
prejudicially affects a litigant’s substantial right and, if uncor-
rected, would result in damage to the integrity, reputation, and
fairness of the judicial process.” State v. Mann, 302 Neb. 804,
809, 925 N.W.2d 324, 329 (2019). Plain error review is an
appellate process. Given this definition, there is no need for
the majority to highlight Jean’s failure to complain about the
admissibility of the county judge’s remarks; such exposition
is superfluous in a plain error review. Failure to complain at
trial is baked into the plain error exercise and such failure to
object is of no legal consequence once the appellate court has
embarked on a plain error review.
It’s Not Sua Sponte, It’s an
Evidentiary Ruling.
The majority writes at length about there being no obliga-
tion by the trial court to rule sua sponte on the contents of the
evidence consisting of the transcript of Kenneth’s trial, which
included the offending remarks. This discussion tends to over-
look the fact that the transcript was an exhibit upon which the
court was required to rule and which it admitted into evidence.
Compare State v. Senteney, 307 Neb. 702, 950 N.W.2d 585(2020) (discussing live testimony). Under our rules, an alleged
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Cite as 309 Neb. 427error in ruling on a piece of evidence such as the transcript at
issue is subject to appellate plain error review.
Neb. Rev. Stat. § 27-103(4) (Reissue 2016) provides:
“Nothing in this rule [regarding admissibility of evidence]
precludes taking notice of plain errors affecting substantial
rights although they were not brought to the attention of the
judge.” So the process which led to our current review is
wholly anticipated by the evidentiary rules. We have long
applied § 27-103(4) to appellate review involving admitted
evidence. See, e.g., State v. Pointer, 224 Neb. 892, 402 N.W.2d
268 (1987).
The Trial Judges Are Okay:
Inadvertent Errors.
The majority opinion is laden with concern that the trial
judges might be expected to scour exhibits and to rule sua
sponte on things and might be offended if this court reverses
a matter based on plain error. I am not indifferent to the risk
of overburdening the very able trial judges of this State. But it
is inappropriate to let such concern outweigh the object of the
plain error review, i.e., to preserve the integrity, reputation, and
fairness of the judicial process. The U.S. Supreme Court has
observed: “The Court repeatedly has reversed judgments for
plain error on the basis of inadvertent or unintentional errors
of the court or the parties below.” Rosales-Mireles v. U.S., ___
U.S. ___, 138 S. Ct. 1897, 1906, 201 L. Ed. 2d 376 (2018).
That seems to be the circumstance here. Identification of an
inadvertent error serves not to criticize the trial judge, but,
rather, to strengthen the integrity of the judicial process.
The U.S. Supreme Court explained that the error under
consideration in the plain error appellate review need not be
obvious or clear to the trial judge. Henderson v. United States,
568 U.S. 266, 135 S. Ct. 1780, 191 L. Ed. 2d 874 (2013). The
Court stated, “[P]lain error review is not a grading system
for trial judges.” Id., 568 U.S. at 278. I am confident the trial
judges of this state understand this.
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the Record and Requires Reversal.
Our definition of plain error is error unasserted or uncom-
plained of at trial, but is plainly evident from the record and
of such a nature that to leave it uncorrected would result in
damage to the integrity, reputation, or fairness of the judicial
process. See Senteney, supra. Under our historical standard, I
conclude that, regardless of sua sponte distractions, the chal-
lenged material is “obvious” to an appellate court and “plain”
from the record and thus, because of the harm done, requires
reversal. The district court perhaps inadvertently made an
incorrect ruling; but the correct standard is whether the error
is plainly evident from the record, not was it plainly evident to
the trial judge.
On the last page of the trial exhibit—no scouring of the
record required—the county judge states that “I believe per-
jury was committed by the defense in this case today” and
that Kenneth, who did not testify, aided and abetted perjury by
Jean. In the exhibit, the county judge also directed the county
attorney’s office to contact the Nebraska State Patrol to pursue
perjury charges against Jean. These remarks are plainly evident
from the record.
The transcript containing these comments made by the
county judge in Kenneth’s trial was ruled admissible pursu-
ant to a requested ruling in Jean’s perjury trial. The county
judge’s remarks, although verbal, were included in evidence,
not testimony. The jury was instructed to consider the evi-
dence. Contrary to the majority’s puzzling suggestion, the
jury was not advised to ignore the county judge’s remarks
enshrined in the exhibit transcript. The transcript accompa-
nied the jury to the jury room where deliberations took place
and provided the jury an opportunity to review and weigh the
evidence, including the county judge’s remarks. I agree with
the reasons recited in Chief Justice Heavican’s dissent to the
effect that the county judge’s remarks that Jean lied under oath
at Kenneth’s trial and were admitted in her trial for perjury
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Cite as 309 Neb. 427bore extraordinary weight and removed the penultimate issue
of Jean’s credibility from the jury. I conclude that the county
judge’s remark that Jean lied under oath was erroneously and
prejudicially admitted in her perjury trial and resulted in dam-
age to the integrity, reputation, and fairness of the judicial
process and requires reversal.
In the end, contrary to the majority’s reasoning, our appel-
late analysis needs to be viewed in relation to the integrity of
the process absent undue sympathies for the trial judge. It is
not a good look for the Nebraska appellate authority vested in
the Nebraska Supreme Court to permit a judge not under oath
to advise the jury in a perjury trial that the defendant lied.