In re Grand Jury of Lancaster Cty., S-04-587.
| Decision Date | 11 March 2005 |
| Docket Number | No. S-04-587.,S-04-587. |
| Citation | 693 NW 2d 285,269 Neb. 436 |
| Parties | IN RE GRAND JURY OF LANCASTER COUNTY. STATE OF NEBRASKA, APPELLEE, v. LANCASTER COUNTY DISTRICT COURT, APPELLEE, AND CELIA MILWOOD, FORMERLY KNOWN AS CELIA SHEPPARD, APPELLANT. |
| Court | Nebraska Supreme Court |
Kirk E. Naylor, Jr., for appellant.
Joseph P. Kelly, Chief Deputy Lancaster County Attorney, for appellee.
On March 10, 2004, the State of Nebraska, through the Lancaster County Attorney, filed a motion requesting that the district court for Lancaster County release certain grand jury testimony originally presented in March 1990 to the county attorney and the Lincoln Police Department. The testimony requested was that of the appellant, Celia Milwood, formerly known as Celia Sheppard. The grand jury had been convened to investigate the circumstances surrounding the October 19, 1986, death of Bruce Sheppard, Milwood's deceased husband. An evidentiary hearing was conducted on the State's motion seeking release of Milwood's grand jury testimony. Relying on several exceptions to the secrecy of grand jury proceedings found in the Federal Rules of Criminal Procedure, on April 12, 2004, the district court sustained the State's motion with certain conditions. Milwood appeals from the district court's order.
We conclude that the district court's reliance on the Federal Rules of Criminal Procedure was error. Further, because the Nebraska Legislature has provided for the judicial release of grand jury materials in only limited circumstances, and the case at bar does not present a situation for which release is authorized, we conclude the district court erred as a matter of law when it granted the motion seeking release of Milwood's grand jury testimony. We reverse.
On October 19, 1986, Sheppard died in his bedroom in Lincoln, Nebraska, of a single gunshot wound to the head. The only other person known to be present in Sheppard's home at the time of his death was his wife, Milwood. During the police investigation of Sheppard's death, Milwood told the police in an unsworn statement that she was in the kitchen when she heard a gunshot. She told investigators she went into the bedroom and found Sheppard on the bed with a gun in his hand. She stated that she took the gun out of his hand and then called police.
The police initially determined that Sheppard had committed suicide. Later, his death certificate was changed to read "undetermined cause." In March 1990, a grand jury was convened in Lancaster County to determine whether any person committed a crime in connection with Sheppard's death. Milwood testified before the grand jury. The grand jury returned a "no true bill," which this court recently indicated means that at least 12 of the 16 grand jurors found no probable cause to believe that a crime had been committed. See In re Grand Jury of Douglas Cty., 263 Neb. 981, 644 N.W.2d 858 (2002). See, also, Neb. Rev. Stat. § 25-1633 (Cum. Supp. 2004); Neb. Rev. Stat. §§ 29-1406(2)(e) and 29-1416 (Reissue 1995). The police department's file on Sheppard's death was closed.
In June 1990, Milwood gave deposition testimony in a civil case. In her deposition, she stated that she was in the bedroom with Sheppard when she saw him place the gun to his head. She stated that she grabbed the gun and that the gun went off.
Some time in 2003, Sheppard's sister contacted the Lincoln Police Department, requesting that the department reopen its investigation into Sheppard's death, based upon what she felt were inconsistencies between Milwood's statement to the police at the time of Sheppard's death and Milwood's later deposition testimony. Gregory Sorensen, a Lincoln police officer, reviewed the police file and the deposition testimony and concluded there was a significant discrepancy between the two statements.
Based upon this discrepancy and other information in the police file, Sorensen sought access to Milwood's grand jury testimony. On January 27, 2004, the county attorney's office filed an ex parte "Motion to Make Certain Records Available," seeking to have Milwood's grand jury testimony read to Sorensen as part of his investigation into Sheppard's death. The motion was denied without prejudice.
On March 10, 2004, the county attorney's office filed a second motion seeking the release of Milwood's testimony. This second motion came on for an evidentiary hearing on April 7. The county attorney and counsel for Milwood appeared. Sorensen was the sole witness to testify at the hearing.
At this point in time, there's definitely two different stories, and I'm wondering which one the grand jury heard. And, if the grand jury heard the initial story where she was in the kitchen when the gunshot went off, as opposed to the grand jury [having heard] that she was in the bedroom at the time the gun went off, I think it could have a significant effect on how the grand jury may [have] decide[d] to rule on whether this death was in fact a homicide.
On April 12, 2004, the district court, relying on the Federal Rules of Criminal Procedure, entered an order permitting the release of Milwood's testimony under certain conditions, including the following:
1. The grand jury court reporter would read Milwood's testimony to Sorensen.
2. Milwood and/or her attorney could be present during the reading.
3. Milwood's testimony would be read only once.
4. Sorensen could take handwritten notes of the testimony. If he took notes, he was required to provide Milwood or her attorney with a copy of those notes. He could also give a copy of the notes to the county attorney. Sorensen could not make any other copies of the notes.
5. Sorensen was prohibited, absent written authorization from the court, from discussing Milwood's testimony with anyone other than the county attorney.
6. Other than as provided in the order, the grand jury court reporter was prohibited from disclosing Milwood's testimony.
7. The disclosure of Milwood's grand jury testimony was not to occur until 30 days after the date of the court's order. In the event of an appeal of the court's order, the disclosure was stayed pending the outcome of the appeal.
Milwood appeals the district court's order permitting the release of her grand jury testimony.
On appeal, Milwood claims the district court erred in ordering the release of her testimony given before the Lancaster County grand jury in March 1990.
[1,2] The request for the release of grand jury testimony by the State, through the county attorney, presents a question of law. In re Grand Jury of Douglas Cty., 263 Neb. 981, 644 N.W.2d 858 (2002). When reviewing a question of law, an appellate court resolves the question independently of the conclusion reached by the trial court. Id.
District Court's Reliance on Rule 6(e) of Federal Rules of Criminal Procedure Was Error.
In its April 12, 2004, order, the district court acknowledged that "Nebraska's grand jury statutes allow only limited access to grand jury records, none of which applies [sic] to the instant case." Notwithstanding the strictures of the Nebraska statutes, the district court, in apparent reliance on In re Grand Jury of Douglas Cty., supra, proceeded to analyze the State's motion to release by reference to Fed. R. Crim. P. 6(e), which provides various exceptions, not recited here, to the general rule of secrecy regarding grand jury proceedings. The district court found that the request of the State related, inter alia, to whether there had been a violation of state criminal law and further found that "the interest in secrecy in this case is minimal." The district court concluded that release was proper under the exceptions found in rule 6(e) of the Federal Rules of Criminal Procedure.
On appeal, the State acknowledges that "there is not a Nebraska statute which expressly applies to this case to justify the release of the grand jury testimony of [Milwood]." Brief for appellee at 3. The State, however, asserts that the district court correctly decided the motion under federal standards.
On appeal, Milwood notes that "[t]he limited circumstances under which grand jury records may be released by the court are set forth by statute" and asserts that the district court's reliance on the Federal Rules of Criminal Procedure constituted error. Brief for appellant at 11. We agree with Milwood that Nebraska statutes do not provide for the release of her testimony under the facts of this case and that the district court's order granting the release stemming from its reliance on the Federal Rules of Criminal Procedure was error. Accordingly, we reverse.
The district court's order and the arguments of the parties indicate that both the district court and the State read our decision in In re Grand Jury of Douglas Cty., supra, as having adopted the various exceptions to secrecy embodied in rule 6(e) of the Federal Rules of Criminal Procedure. Contrary to this reading, our references in In re Grand Jury of Douglas Cty. to the Federal Rules of Criminal Procedure were limited to a recapitulation of the arguments of the parties in In re Grand Jury of Douglas Cty. and the district...
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