State v. Huff, 298 Neb. 522

Background

Jeffrey A. Huff was tried and convicted by a jury in Lancaster County for first-degree sexual assault; he appealed only the district court’s handling of a juror issue.
During trial, juror M.F. told the court he felt unsuitable for jury service because of his upbringing but agreed he could follow instructions and be fair.
After evidence closed, the court observed M.F. appearing inattentive (no notes taken) and the State presented M.F.’s juror questionnaire and a criminal-record printout showing numerous misdemeanor convictions M.F. had not disclosed.
The State moved to discharge M.F. after he had been sworn; Huff objected and moved for mistrial when the court granted the State’s motion and replaced M.F. with an alternate.
The district court discharged M.F. without re-questioning him about the nondisclosure; Huff argued waiver and that the court should have examined M.F. before discharge.
The Court of Appeals affirmed; the Nebraska Supreme Court granted further review and affirmed the conviction, holding the discharge was within the court’s discretion under the totality of circumstances.

Issues

Issue	State's Argument	Huff's Argument	Held
Whether the court properly discharged a sworn juror after trial but before deliberations	Court may discharge a juror under §29-2004(2) when juror is unable/improper to continue; here M.F.’s nondisclosure and inattentiveness justified discharge	State waived challenge by not striking M.F. before he was sworn; court should have questioned M.F. before discharge	Discharge upheld: court did not abuse discretion given M.F.’s voluntariness re: unsuitability, observed inattentiveness, and undisclosed criminal record
Whether failure to question the juror before discharge required reversal	Questioning is best practice but not required where facts support discharge and other grounds (e.g., incapacity/inattention) exist	Failure to examine M.F. prevented determination whether nondisclosure demonstrated bias or deceit	No reversible error: lack of direct questioning was offset by totality of circumstances and court’s prior colloquy and observations
Whether the State waived objection to juror qualification by not raising issue at voir dire	If juror conceals disqualifying info, objection is not waived; here court raised issue and State moved promptly after discovery	State should have used peremptory or challenged for cause during selection; waiting waived objection	Waiver doctrine inapplicable here because the court itself raised concern and discharge occurred before submission to jury
Whether denial of mistrial was proper after juror discharge	Discharge was within discretion and substitution of alternate remedied any potential prejudice	Discharge prejudiced Huff’s right to impartial jury; mistrial required	Denial of mistrial affirmed because no abuse of discretion in discharge and no showing of resulting prejudice

Key Cases Cited

State v. Hilding, 278 Neb. 115 (Neb. 2009) (trial court has discretion to retain or reject jurors)
State v. Myers, 190 Neb. 466 (Neb. 1973) (court must hear evidence and examine jurors when grounds for challenge arise after jury sworn)
State v. Harris, 264 Neb. 856 (Neb. 2002) (no waiver where juror deliberately concealed disqualifying criminal history)
State v. Robinson, 272 Neb. 582 (Neb. 2006) (upholding removal for juror sleeping/inattentiveness)
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (U.S. 1984) (motives for concealment matter; only concealment affecting impartiality undermines trial fairness)
U.S. v. Ebron, 683 F.3d 105 (5th Cir. 2012) (discussing juror discharge/substitution standards)
U.S. v. De La Vega, 913 F.2d 861 (11th Cir. 1990) (juror misconduct and discharge principles)
United States v. Fajardo, 787 F.2d 1523 (11th Cir. 1986) (juror removal and alternate substitution jurisprudence)