854 N.W.2d 783
Neb.2014Background
- Charles E. Kays was convicted of first- and third-degree sexual assault of a child and appealed his convictions.
- Appellate counsel relied on a version of the bill of exceptions that showed the alternate (13th) juror was polled; a later reproofread version filed by the court reporter showed only 12 jurors were polled.
- The Court of Appeals remanded under Neb. Ct. R. App. P. § 2-105(B)(5) for a hearing to resolve the discrepancy; the trial judge recused and another judge conducted the hearing.
- At the § 2-105(B)(5) hearing the court reporter testified she had reproofread, backdated, and filed a corrected bill and shredded the original; the 13th juror averred she did not deliberate or participate in polling; appellate counsel did not dispute the juror’s affidavit.
- The district court found the reproofread bill of exceptions accurate; the Court of Appeals affirmed; Kays sought further review arguing the term “disability” in § 2-105(B)(5) does not encompass judicial recusal for conflict of interest and attacking overall bill credibility.
- The Nebraska Supreme Court conducted plain-error review limited to the bill-of-exceptions issue, found no plain error, affirmed the Court of Appeals, and declined to address unpreserved claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "disability" in § 2-105(B)(5) includes judge recusal for conflict of interest | Kays: "Disability" should not be read to include a judge’s recusal for conflict; hearing should be before trial judge | State: A judge’s conflict of interest can constitute a "disability" permitting another judge to hear § 2-105(B)(5) matters | Court: Issue waived on further review; in any event, hearing by different judge is not structural error and "disability" can include recusal contexts |
| Whether the reproofread bill of exceptions accurately reflected the record (13th juror issue) | Kays: Bill is unreliable due to court reporter’s mishandling; entire bill lacks credibility; merits new trial or use of originally e-mailed version | State: Reproofread bill, supported by court reporter testimony and juror affidavit, accurately reflects that 12 jurors deliberated | Court: No plain error; district court reasonably found reproofread bill accurate; Kays failed to produce contradictory evidence |
| Whether Kays preserved objection to trial judge’s recusal from § 2-105(B)(5) hearing | Kays: Later raised as error on further review | State: Kays did not object below and thus waived the issue | Court: Issue waived; appellate review limited to preserved errors absent plain error |
| Whether court reporter’s negligent handling of the bill required reversal/new trial | Kays: Negligence undermines entire bill and justice requires new trial | State: Negligence does not negate reporter’s uncontradicted testimony that corrected bill matches audiotape | Court: Reporter’s negligence did not negate her testimony; burden on movant to prove inaccuracy; no plain error shown |
Key Cases Cited
- Miller v. Brunswick, 253 Neb. 141 (procedural preservation and appellate review principles)
- In re Interest of Justine J. & Sylissa J., 288 Neb. 607 (plain-error doctrine explained)
- State v. Taylor, 286 Neb. 966 (waiver and preservation principles)
- State v. Nadeem, 284 Neb. 513 (one may not gamble on a result and later assert waived error)
- Steffy v. Steffy, 287 Neb. 529 (appellate deference to district court findings)
- Baldwin v. Reese, 541 U.S. 27 (preservation requirements for appellate review)
- Black v. Youmans, 245 F. 460 (burden in proceedings to challenge bills of exceptions)