State v. Childs
309 Neb. 427
| Neb. | 2021Background
- A trench was dug across a public road near Jean and Kenneth Childs’ home; Kenneth was charged with injury to a public road and convicted after a bench trial in county court.
- Kenneth called his wife Jean as his only defense witness; Jean testified under oath denying there had been a trench or denying she had dug one.
- After Kenneth’s conviction the county court judge stated on the record that he believed perjury had been committed and directed the county attorney to contact the Nebraska State Patrol.
- Jean was later charged with felony perjury based on her testimony in 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 and the court gave a limiting instruction that the transcript was for context of Jean’s prior testimony only.
- Jean’s directed verdict motion was denied; a jury convicted Jean of perjury. She appealed, arguing (1) erroneous admission of the transcript as hearsay, (2) insufficiency of the evidence (directed verdict), (3) prosecutorial misconduct in commenting on Kenneth’s conviction, and (4) plain error in allowing the judge’s comment to go to the jury.
- The Nebraska Supreme Court (majority) affirmed: transcript admissible as nonhearsay/context, directed verdict denial proper, no plain error for prosecutor’s comments or for admitting the transcript with the judge’s remark; two justices dissented on the plain-error point concerning the judge’s comment.
Issues
| Issue | State's Argument | Childs' Argument | Held |
|---|---|---|---|
| Admissibility of transcript of Kenneth’s trial (hearsay) | Transcript offered for nonhearsay purpose: to provide context/content of Jean’s prior testimony; limiting instruction cures prejudice. | Transcript testimony of third parties is hearsay and (if offered under the residual exception) the State failed to give required notice. | Transcript admissible as nonhearsay/context; limiting instruction given; overruling hearsay objection was not error. |
| Motion for directed verdict (sufficiency of evidence for perjury) | Presented witnesses and photo corroboration that contradicted Jean’s sworn statements; evidence established perjury elements and supported reasonable inferences. | Jean’s statements were not material or she believed them to be true; insufficiency of proof to sustain perjury conviction. | Denial of directed verdict affirmed: evidence was sufficient on all perjury elements and permissibly submitted to the jury. |
| Prosecutor’s comments about Kenneth’s conviction | Remarks were accurate, contextual, and similar to defense opening; not misleading or inflammatory. | Comments were irrelevant, prejudicial, and denied Jean a fair trial. | No plain error: prosecutor’s comments were not misconduct and did not unduly influence the jury. |
| Inclusion of county court judge’s comment in admitted transcript (plain error) | No timely objection to that specific comment; trial court need not sua sponte redact exhibits; limiting instruction and other evidence prevent miscarriage of justice. | The judge’s statement that perjury occurred was prejudicial, invaded the jury’s province, and required plain-error reversal. | Majority: no plain error — no duty to sua sponte redact, limiting instruction presumed followed, overwhelming evidence; Dissent: would find plain error and reverse because the judge’s remark was prejudicial and removed credibility from the jury. |
Key Cases Cited
- State v. Stanko, 304 Neb. 675 (Neb. 2019) (directed-verdict and evidentiary inference principles)
- State v. Senteney, 307 Neb. 702 (Neb. 2020) (plain-error review and limits on finding plain error when no timely objection)
- State v. McCaslin, 240 Neb. 482 (Neb. 1992) (elements of perjury and corroboration requirement)
- State v. Thomas, 303 Neb. 964 (Neb. 2019) (trial-court duty and opposing party’s burden to sever prejudicial from admissible parts of exhibits)
- State v. Williams, 306 Neb. 261 (Neb. 2020) (directed-verdict and appellate review standards)
- Henderson v. United States, 568 U.S. 266 (U.S. 2013) (plain-error review is not a grading system for trial judges)
- Rosales-Mireles v. United States, 138 S. Ct. 1897 (U.S. 2018) (plain-error reversal appropriate for inadvertent or unintentional trial errors affecting substantial rights)