838 N.W.2d 366
Neb. Ct. App.2013Background
- Kays was convicted by a jury of first degree sexual assault of a child and two counts of third degree sexual assault of a child in Douglas County, Nebraska.
- The trial record included disputes over the bill of exceptions, with a 13th juror allegedly present and later disputed by replacements and backdating of documents.
- The district court remanded to certify an appellate record under Neb. Ct. R. App. P. § 2-105(5), due to discrepancies in the bill of exceptions.
- A substitute district judge presided over proceedings on remand because the original trial judge recused herself for a claimed conflict of interest.
- Kays argued prosecutorial misconduct, insufficient evidence, ineffective assistance of counsel, and excessive sentences on direct appeal.
- The Nebraska Court of Appeals ultimately affirmed the convictions and sentences, but found the direct appeal insufficient to resolve a separate ineffective assistance claim related to closing arguments and mistrial requests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the certified bill of exceptions is valid | Kays argues the replacement bill of exceptions is not credible. | State contends the certified replacement bill is proper and controlling. | Yes; bill of exceptions certified on remand is controlling. |
| Whether the alternate juror was properly discharged | Kays claims 13 jurors deliberated without his consent. | State asserts record shows 12 jurors deliberated and juror 13 did not participate. | Meritless; record supports 12-juror deliberations. |
| Prosecutorial misconduct and sufficiency of evidence | Kays maintains prosecutorial misconduct and ineffective assistance of counsel; challenge to evidence of penetration. | State defends openness of opening statements, cross-examinations, and sufficiency of evidence. | Waived or without merit on direct appeal; evidence sufficient for convictions. |
| Ineffective assistance of trial counsel | Kays asserts counsel failed to object to prosecutorial misconduct and to challenge 13-juror issues. | State maintains many claims are not reviewable on direct appeal or lack prejudice. | Majority finds most claims unsupported on direct appeal; some claims deemed insufficient for direct review. |
| Excessive sentences | Kays argues age, health, and lack of criminal history render current sentences excessive and cruel and unusual as applied. | State argues sentences fall within statutory ranges and are not abusive. | No abuse of discretion; sentences within statutory ranges and considering circumstances. |
Key Cases Cited
- State v. Dyer, 245 Neb. 385 (1994) (record accuracy limits and corrective procedures on remand)
- Wonderling v. Conley, 182 Neb. 446 (1967) (absolute verity of trial records; appellate review constraints)
- Anzalone Inv. Co. v. City of Omaha, 179 Neb. 314 (1965) (transcript/record integrity; unimpeachable evidence in appeals)
- In re Complaint Against White, 264 Neb. 740 (2002) (disability concept includes conflicts affecting proceedings)
- Stewart v. McCauley, 178 Neb. 412 (1965) (disability and appointment issues in official capacity)
- Gandy v. State, 27 Neb. 707 (1889) (disability concept linked to disqualification due to conflict)
- Newman v. Rehr, 10 Neb. App. 356 (2001) (proper use of substitute judge and case familiarity matters)
- Commonwealth v. Trapp, 396 Mass. 202 (1985) (substitution of judges; importance of judicial integrity)
- Durden v. The People, 192 Ill. 493 (1901) (limits on delegating judicial duties related to facts)