State v. Childs, 309 Neb. 427

Background

In Feb 2016 a trench was found across a public road near Jean and Kenneth Childs’ home; Kenneth was charged with injuring a public road and tried pro se.
Kenneth called Jean as his sole defense witness; Jean repeatedly denied a trench existed or that they dug one.
The county court found Kenneth guilty and, on the record, stated it believed perjury had been committed by the defense and directed the county attorney to contact the State Patrol.
Jean was subsequently charged with felony perjury based on her testimony at Kenneth’s trial.
At Jean’s trial the State introduced the full transcript of Kenneth’s trial (which included the county judge’s comment) over Jean’s hearsay objections; the court gave a limiting instruction that the transcript was for context of Jean’s testimony only.
The jury convicted Jean of perjury; she appealed arguing (1) erroneous admission of the transcript/hearsay, (2) denial of directed verdict, (3) prosecutorial remarks about Kenneth’s conviction, and (4) admission of the county court judge’s comment in the transcript. The majority affirmed; two justices dissented on plain-error grounds regarding the judge’s comment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Kenneth trial transcript (hearsay)	Transcript offered for context, not for truth; admissible nonhearsay; limiting instruction sufficed	Transcript contains hearsay from other witnesses and residual exception notice was not given; should be excluded or redacted	Transcript admissible as nonhearsay for context; limiting instruction given; no error in overruling hearsay objection
Directed verdict on perjury charge	Evidence (photo, multiple witness testimony, inconsistent statements) supports each element of perjury and corroboration requirement satisfied	Jean’s statements were immaterial or honestly believed; insufficient proof of mens rea/materiality	Denial proper; reasonable minds could differ; State proved elements and corroboration so case for jury was sufficient
Prosecutor’s comments about Kenneth’s conviction	Comments were accurate, contextual, not inflammatory or misleading	Comments were prejudicial and undermined a fair trial	No prosecutorial misconduct; statements were brief, accurate, and mirrored defense opening; no plain error
Inclusion of county court judge’s comment in transcript	No party objected specifically to the judge’s remark; court had discretion to admit exhibit and gave limiting instruction; trial judge has no duty to sua sponte redact exhibits	Judge’s comment directly implied Jean’s guilt and was highly prejudicial; court should have redacted or not sent transcript to jury; plain error	Majority: no plain error — no duty to sua sponte redact, limiting instruction and overwhelming evidence cure; two-justice dissent: would find plain error and reverse because the judge’s comment invaded jury’s province and was prejudicial

Key Cases Cited

State v. McCaslin, 240 Neb. 482 (perjury elements and corroboration requirement)
State v. Senteney, 307 Neb. 702 (plain-error framework in evidentiary context)
State v. Stanko, 304 Neb. 675 (standards for reviewing evidentiary sufficiency/corroboration)
State v. Thomas, 303 Neb. 964 (trial court not required to sua sponte redact or rule when no objection was made)
State v. Swindle, 300 Neb. 734 (presumption that jury follows limiting instructions)
Rosales-Mireles v. United States, 138 S. Ct. 1897 (plain-error reversal for inadvertent/unobjected-to errors can be appropriate)
United States v. Snype, 441 F.3d 119 (no obligation for trial court to sua sponte redact exhibits)
State v. Pointer, 224 Neb. 892 (appellate review and §27-103(4) notice of plain error)