State v. Myers
| Decision Date | 06 July 1973 |
| Docket Number | 38796,Nos. 38797,s. 38797 |
| Parties | STATE of Nebraska, Appellee, v. Lewis MYERS, Appellant. STATE of Nebraska, Appellee. v. Jim BRODRICK, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. It is the duty of a trial court to see that defendants in criminal cases are tried by a jury such that not even the suspicion of bias or prejudice can attach to any member thereof.
2. Where a jury has been impaneled and sworn as one of several juries selected from a single jury panel for the subsequent trial of a series of criminal cases, if the court is informed before the presentation of evidence begins of matters which might reasonably constitute grounds for a challenge for cause of one or more jurors, which grounds arose out of matters occurring after the jury was sworn, it is the duty of the court to hear evidence and examine the jurors and determine whether any juror might be subject to disqualification for cause. A failure to inquire under such circumstances constitutes such fundamental unfairness as to jeopardize the constitutional guaranty of the right to trial by an impartial jury.
Fisher & Fisher, Charles A. Fisher, Chadron, for appellants.
Clarence A. H. Meyer, Atty. Gen., Bernard L. Plackett, C. C. Sheldon, Asst. Attys. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
The defendants in these two cases, Lewis Myers, and Jim Brodrick, after separate jury trials, were found guilty of unlawful delivery and distribution of a controlled substance, and sentenced to terms of imprisonment. Each defendant appealed and the cases have been consolidated on appeal in this court. Both appeals involve the procedure of impaneling multiple juries at one time from a single jury panel for the subsequent trial of criminal cases which may be interrelated.
On May 30, 1972, the District Court for Dawes County, four juries were impaneled for the trial of four criminal cases involving the possession and sale of controlled substances. The four juries were all passed for cause, impaneled, and sworn on May 30. The multiple impaneling was an innovation in procedure motivated by the court's desire to economize on jury expenses. There was no objection to the procedure at the time of the original impaneling on May 30. Following impaneling, the cases were set for trial in sequence.
The first of the four cases tried was against Dale (Spike) Myers, a brother of the Lewis Myers involved here. The second case tried was a joint trial involving Kathy Shimp and Dan Clark. The cases involving the two defendants here were the third and fourth cases tried. The trial of defendant Lewis Myers began on June 2, 1972, and the trial of defendant Jim Brodrick began on June 5, 1972.
In each of the two cases now before the court, the defendant moved the court for a reexamination of the jurors previously examined and impaneled and requested further voir dire. The motion also included a request for a continuance. The basis for the motions was that some jurors had served on previous juries in the series, had heard the evidence in those trials, and all previous defendants had been found guilty of the drug offenses charged. The record establishes that the jury for the trial of defendant Lewis Myers included eight jurors who had served on the jury for the first trial in the series. The jury for the trial of the defendant Brodrick included one juror from the first trial, seven jurors from the second trial, and one juror from the third trial in the series.
The same undercover agent for the Nebraska State Patrol was the principal witness for the State in all four trials. Max B. Ibach was also a witness for the State in both the third and fourth trials. Violet Woodrum and Steve Crow were also defense witnesses common to both the third and fourth trials. Dale (Spike) Myers, the defendant in the case tried first, was a witness for himself at the first trial as well as a witness for the defendants in both of the trials here. As an example of the possible interrelationship of the various cases, the undercover agent for the State who was the principal witness in all four cases, in the fourth case testified to a conversation involving himself, the defendant in the fourth case, and the defendant in the first case. The conversation dealt with the sale and payment for controlled substances.
Before either of the two trials involved here commenced, the court, out of the presence of the jury, held a hearing on the motion to reexamine the jurors. At that hearing the jury lists of the preceding trials in the series were presented and it was stipulated that the principal undercover agent was a witness in all previous cases and would be a witness in the case about to be tried. No evidence was presented to support the allegations of the motions that the principal undercover agent had appeared before service clubs where the testimony had been generally discussed. It was also stipulated that there had been guilty verdicts from the juries in all the previous cases in the series. The court then overruled the motions for reexamination and additional voir dire, and a continuance, called the jury, and the trials proceeded.
Article I, section 11, of the Constitution of Nebraska, provides in part: 'In all criminal prosecutions, the accused shall have the right to * * * a speedy public trial by an impartial jury * * *.' Challenges for cause against prospective jurors are unlimited in number while peremptory challenges are limited in numer by statute. See, §§ 29--2005, 29--2006, R.R.S.1943.
Section 29--2006, R.R.S.1943, provides, among other things, that it shall be good cause for challenge to any person called as a juror 'that he has formed or expressed an opinion as to the guilt or innocence of the accused.' Other portions of that statute indicate clearly that if any such opinion of a juror was founded upon 'conversations with witnesses of the transactions or reading reports of their testimony or hearing them testify' the dismissal of such a juror is mandatory. It has been so interpreted. See Flege v. State, 93 Neb. 610, 142 N.W. 276. In that case a prospective juror who had read reports of a witness' testimony was held to be disqualified without reference to what he might say as to his ability to render an impartial verdict.
Section 29--2003, R.R.S.1943, specifically provides that a juror having heard the evidence as to one defendant tried separately under a joint indictment, where the same evidence is later required, is incompetent to sit in further causes in the same indictment or information. It must be noted here that section 29--2007, R.R.S.1943, requires that all challenges for...
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State v. Hessler
...transactions or reading reports of their testimony or hearing them testify," dismissal is mandatory. Id. See, also, State v. Myers, 190 Neb. 466, 209 N.W.2d 345 (1973). However, if the opinion was formed based on "reading newspaper statements, communications, comments or reports, or upon ru......
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State v. Blue Thunder, s. 16920
...counsel moved his Honor's judgment for additional peremptory challenges but this was denied. As was stated in State v. Meyers, 190 Neb. 466, 209 N.W.2d 345, 348 (1973): It is the duty of a trial court to see that Defendants in criminal cases are tried by a jury such that not even the suspic......
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State v. Rodriguez
...or reading reports of their testimony or hearing them testify' the dismissal of such a juror is mandatory." State v. Myers, 190 Neb. 466, 469, 209 N.W.2d 345, 348 (1973). Accord Flege v. State, 93 Neb. 610, 142 N.W. 276 (1913). But if the opinion is founded instead on "`rumor, newspaper rep......
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Rapid City Journal Co. v. Circuit Court of Seventh Judicial Circuit Within and For Pennington County
...117, 506 P.2d 248 (1973). Since the trial court has the duty of assuring a defendant his right to an impartial jury, State v. Myers, 190 Neb. 466, 209 N.W.2d 345 (1973), he has the discretion to close the Voir dire to public scrutiny if, in his considered judgment, he deems it necessary aft......
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Neb. Const. art. I § I-11 Rights of Accused
...if requested for good reason in subsequent trials in the series to determine if any jurors should be excused for cause. State v. Myers, 190 Neb. 466, 209 N.W.2d 345 (1973). Right to trial by jury may be waived by defendant in criminal case. State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129 (......
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§ I-11. Rights of Accused
...if requested for good reason in subsequent trials in the series to determine if any jurors should be excused for cause. State v. Myers, 190 Neb. 466, 209 N.W.2d 345 (1973). Right to trial by jury may be waived by defendant in criminal case. State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129 (......
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Neb. Const. art. I § I-11 Rights of Accused
...if requested for good reason in subsequent trials in the series to determine if any jurors should be excused for cause. State v. Myers, 190 Neb. 466, 209 N.W.2d 345 (1973). Right to trial by jury may be waived by defendant in criminal case. State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129 (......
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§ I-11. Rights of Accused
...if requested for good reason in subsequent trials in the series to determine if any jurors should be excused for cause. State v. Myers, 190 Neb. 466, 209 N.W.2d 345 (1973). Right to trial by jury may be waived by defendant in criminal case. State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129 (......