State v. Childs
960 N.W.2d 585
Neb.2021Background
- In Feb 2016 a trench was found across a public road adjacent to Jean and Kenneth Childs’ home; Kenneth was charged with injuring a public road (misdemeanor).
- At Kenneth’s bench trial (he represented himself) Jean testified as his only defense witness, denying a trench existed; the county court found Kenneth guilty and remarked on the record that perjury had been committed by the defense and directed investigation.
- A special prosecutor later charged Jean with perjury based on her testimony at Kenneth’s trial; the State sought to admit the full transcript of Kenneth’s trial at Jean’s perjury trial.
- Jean moved in limine to redact/exclude portions of that transcript as hearsay; the district court admitted the full transcript for context, gave a limiting instruction, and allowed the jury to take the transcript to deliberations.
- The jury convicted Jean of perjury; on appeal she challenged (1) admission of the transcript over hearsay objection, (2) denial of a directed verdict, (3) prosecutor comments about Kenneth’s conviction, and (4) admission of the county court judge’s comment in the transcript. The Nebraska Supreme Court affirmed; two justices dissented as to plain error from the judge’s comment.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Childs) | Held |
|---|---|---|---|
| Admissibility of Kenneth’s trial transcript over hearsay objections | Transcript was admissible not for truth but to provide context for Jean’s testimony (nonhearsay); limiting instruction cures risk | Transcript portions containing other witnesses’ testimony and the judge’s comment are hearsay and should be excluded or redacted; §27-803(23) notice required for residual hearsay | Admitted for context (nonhearsay); limiting instruction given; no error in overruling hearsay objection |
| Denial of directed verdict on perjury charge | State presented sufficient evidence (witnesses, photo, contradictions) to submit issues to jury | Statements not material or falsity rests on single-witness contradiction; defendant believed her testimony was true | Denial proper; sufficient evidence on all perjury elements and corroboration; no directed verdict error |
| Prosecutor’s remarks about Kenneth’s conviction during opening and questioning | Brief, accurate references provided context for charge and were not inflammatory or misleading | Comments were irrelevant, prejudicial, and undermined fair trial | No plain error; remarks were accurate, contextually appropriate, and mirrored defense opening |
| Inclusion of county court judge’s comment in transcript (jury saw judge say he believed perjury had occurred) — plain error claim | (State) Transcript admitted for context; limiting instruction and standard jury instruction mitigated harm; no duty for court to sua sponte redact exhibits | (Childs) Judge’s remark directly implicated her, invaded jury province, and was highly prejudicial; trial court should have redacted sua sponte or plain error requires reversal | Majority: no plain error—no duty to sua sponte redact, limiting instruction presumed followed, evidence of guilt overwhelming. Dissent: plain error; judge’s comment bore extraordinary weight and removal required reversal. |
Key Cases Cited
- State v. Senteney, 307 Neb. 702 (Neb. 2020) (plain-error review and assessing prejudicial effect of unobjected-to evidence)
- State v. McCaslin, 240 Neb. 482 (Neb. 1992) (elements and proof requirements for perjury)
- State v. Stanko, 304 Neb. 675 (Neb. 2019) (directed-verdict standard and inferences for State on appeal)
- State v. Thomas, 303 Neb. 964 (Neb. 2019) (trial-court role and limits on sua sponte evidentiary rulings)
- State v. Mann, 302 Neb. 804 (Neb. 2019) (definition and contours of plain error review)