State v. Childs
| Decision Date | 11 June 2021 |
| Docket Number | No. S-20-024.,S-20-024. |
| Citation | 309 Neb. 427,960 N.W.2d 585 |
| Parties | STATE of Nebraska, appellee, v. Jean CHILDS, appellant. |
| Court | Nebraska Supreme Court |
Jerald L. Ostdiek, of Douglas, Kelly, Ostdiek, Snyder, Ossian, Vogl & Lookabill, P.C., Scottsbluff, for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Jean Childs appeals her conviction for perjury based upon testimony she gave at her husband's trial on a misdemeanor charge. On appeal, Jean argues the district court erred in receiving the transcript from her husband's trial over her hearsay objections and erred in overruling her motion for a directed verdict. She also argues it was plain error for the trial court to allow the prosecutor to comment on her husband's conviction and to allow the jury to consider the transcript of her husband's trial without redacting a comment made by the judge. Finding neither error nor plain error, we affirm.
On February 16, 2016, the village of Dix, Nebraska (Village), received a complaint that a trench had been dug across a street adjacent to the home of Jean and her husband, Kenneth Childs. Because the Childses’ vehicle was parked over the trench, the Village contacted Kimball County Deputy Sheriff Marla Knigge for assistance with moving the vehicle so the Village could fill the trench.
On February 18, 2016, Knigge met with Kenneth at the Childses’ home. Kenneth told Knigge that he dug the trench to drain the water away from their property. When Knigge informed Kenneth that the Village wanted to fill in the trench, Kenneth stated that if that happened, he would dig the trench again if he needed to drain water away from their property in the future.
Kimball County charged Kenneth with injury to a public road, in violation of Neb. Rev. Stat. § 39-301 (Reissue 2016), a Class V misdemeanor. In August 2016, the county court judge held a bench trial, where Kenneth chose to represent himself. At trial, the State called four witnesses.
Mark Miller, the street commissioner for the Village, testified about receiving a complaint from the Childses’ neighbor that a trench had been dug across the public road adjacent to the Childses’ house.
Sharon McKinney, the village clerk, testified that she received a report about the trench and that on or about February 16, 2016, she drove to the location and took a photograph. The photograph was received as exhibit 1. McKinney described the trench as "fairly large" and said it "made a racket" when she drove across it. She indicated that the trench went from the edge of the Childses’ property to the edge of the neighbor's property across the road. McKinney testified that Kenneth did not have permission to dig the trench and that he had previously been asked not to do so.
Knigge testified about her February 18, 2016, visit with Kenneth. Knigge testified that she made contact with Kenneth on February 18 to ask him to move his vehicle so the Village could fill in the trench and that exhibit 1 depicted the trench as it appeared on February 18. She testified that Kenneth told her he dug the trench to drain water away from their property and that if the trench got filled in, he would dig it again.
Linda Williams, the office administrator for the Kimball County sheriff's office, was also present during Knigge's conversation with Kenneth, and she corroborated Knigge's testimony. Williams further testified that when she and Knigge made contact with Kenneth in February 2016, he admitted to digging the trench because water would pool on their property and he wanted it to drain off.
Kenneth called Jean as the only defense witness. On direct examination, Kenneth showed Jean exhibit 1, the photograph of the trench taken by McKinney on February 16, 2016. When asked, under oath, whether Jean saw "any digging at all [in the photograph]," she testified, "No. I see a difference between the pavement and the dirt, and there's always a difference between the pavement and the dirt no matter where you live at." Then, when Kenneth asked Jean whether the trench depicted in the photograph was the same trench that was at issue in the case, Jean stated that "[t]here's no trench there." Kenneth also asked Jean questions regarding Knigge and Williams’ visit on February 18, and the following exchange took place:
Kenneth asked Jean whether they had ever dug a ditch or trench, to which Jean replied that they had never dug a trench.
The court ultimately found Kenneth guilty of injuring or obstructing a public road by plowing or digging a ditch or other opening thereon, describing the evidence as "overwhelming." The court then stated, on the record, "I am also going to direct the county attorney's office to contact the Nebraska State Patrol, because I believe perjury was committed by the defense in this case today and, also, aiding and abetting perjury by you in your questioning and the statements that you've made." The court then proceeded to sentencing and ordered Kenneth to pay a $100 fine.
After the Nebraska State Patrol completed its investigation, a special prosecutor for Kimball County charged Jean with perjury in violation of Neb. Rev. Stat. § 28-915 (Reissue 2016), a Class III felony, based on her testimony during Kenneth's trial. The day before Jean's trial was scheduled to begin, she filed a motion in limine. As relevant to the issues on appeal, Jean moved to exclude "[t]he portions of the transcript of [Kenneth's trial] containing the testimony of Deputy Marla Knigge, Mark Miller, Sharon McKinney, and Linda Williams."
Jean's motion in limine was taken up on the morning of her trial, outside the presence of the jury. Jean's counsel acknowledged a prior stipulation that the transcript from Kenneth's trial could be admitted, but asked the court to redact, as inadmissible hearsay, the testimony of all witnesses other than Jean. Counsel also described the challenged testimony as "all the portions that are not [Jean's] testimony." The State objected and argued it would be impracticable to "parse out certain sections without having a full and complete understanding of the context of the statements that [Jean] makes." The State also argued the testimony was admissible on the bases of in-court statements, residual hearsay, and the hearsay exception for coconspirators.
The court told the parties it "would have liked to have had a little more time to consider these things [but] I'll make the best ruling that I can on the circumstances that I'm presented with." The court overruled Jean's motion in limine and indicated it would allow the transcript from Kenneth's trial into evidence because it provided necessary context for the jury to evaluate Jean's testimony and the circumstances that gave rise to the perjury charge. However, the court stated it would give a limiting instruction to the jury on the specific purpose for which the transcript could be considered.
It is undisputed that, in addition to the testimony of the various witnesses, the transcript of Kenneth's trial included the county court's comment that it believed perjury had been committed by the defense. The comment appeared on page 129 of the 131-page exhibit, and nothing in our record suggests that Jean ever complained of the judicial comment or otherwise brought it to the attention of the district court judge either before, during, or after her trial.
Jean's jury trial began immediately after the hearing on the motion in limine. During opening statements, the special prosecutor provided the jury with background information on Kenneth's trial and informed the jury that "[Kenneth] was found guilty in that proceeding, and [Jean] testified." Jean did not object to the special prosecutor's opening statement. Subsequently, counsel for Jean informed the jury in her opening statement:
Over the course of today you're going to hear evidence, as [the special prosecutor] stated, about [Kenneth] and the trial he had downstairs in Kimball County back on August 1 of 2016. And as [the special prosecutor] pointed out, it was a charge of injury to a public road. And I think you'll hear testimony that there was what I would call a drain going across the road. And there was a trial and [Jean] testified on behalf of her husband, and he was convicted. He was found guilty of injuring a public road. And subsequent to that, [Jean] has now been charged with perjury.
Lt. Travis Wallace with the Nebraska State Patrol, who investigated Jean's suspected perjury, testified on behalf of the State. According to Wallace, Jean stated in an interview that "[she and her husband] had made a line in the road to drain water" and that "the water made a small trench across the street." Jean also informed Wallace that "[she and her husband] used a stick to make a small line in the road." On cross-examination, Wallace testified that Jean told him she felt her testimony in Kenneth's trial was honest.
The State's second witness, Knigge, testified to the events involving the trench, explaining that when she first arrived at the Childses’ residence in February 2016, she observed a trench across the public road that "looked like it was dug with a spade." Knigge further testified that she spoke with Jean while standing next to the trench and that Jean told her water accumulated at the edge of their property and "the only reason there [was] a little trench is because they [had] a big water puddle."
The State then offered exhibit 4, the entire transcript of Kenneth's trial, into evidence, and the district court judge remarked:
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