State v. Madren

308 Neb. 443

954 N.W.2d 881

STATE of Nebraska, appellee,

v.James M. MADREN, appellant.

No. S-19-240.

Supreme Court of Nebraska.

Filed February 19, 2021

Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. Duffy, Lincoln, 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 court'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 deliberations. 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 participation" of the alternate juror in reaching a verdict and, when no juror responded, was satisfied that the court's actions were sufficient 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 limiting 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.

The 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 communicated 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 affirmatively, and the jury was then dismissed to begin deliberations 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 immediately overruled Madren's motion for mistrial, reasoning that it was 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, indicates 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 participation in deliberations, if the court were inclined to allow any evidence, in the form of an affidavit or direct testimony, regarding 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 resolved 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 district court's decision to overrule Madren's motion for mistrial and motion for new trial regarding the alternate juror's participating 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

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

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 evidentiary hearing is reviewed for an abuse of discretion.³

ANALYSIS

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

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. 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 alternate 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 deliberations constitutes reversible error per se. These jurisdictions reason that it is impossible...