State v. Nadeem
| Decision Date | 19 October 2012 |
| Docket Number | No. S–10–981.,S–10–981. |
| Citation | 822 N.W.2d 372,284 Neb. 513 |
| Parties | STATE of Nebraska, Appellee, v. Mohammed NADEEM, appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
[284 Neb. 513]1. Trial: Juries: Appeal and Error. A district court's decision regarding impaneling an anonymous jury is reviewed under the deferential abuse-of-discretion standard.
2. Appeal and Error. Although an appellate court ordinarily considers only those errors assigned and discussed in the briefs, the appellate court may, at its option, notice plain error.
[284 Neb. 514]3. Courts: Appeal and Error. Regarding a question of law, the Nebraska Supreme Court reaches a conclusion independent of the determination reached by the Nebraska Court of Appeals.
4. Juries: Words and Phrases. Generally, the term “anonymous jury” describes a situation where juror identification information is withheld from both the public and the parties.
5. Juries: Words and Phrases. If only the jurors' names are kept from the parties and the jurors are referred to by number, the jury may be called a numbers jury.
6. Juries: Appeal and Error. A court should not impanel an anonymous jury unless it (1) concludes that there is a strong reason to believe the jury needs protection and (2) takes reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his or her fundamental rights are protected.
7. Trial: Waiver: Appeal and Error. Failure to make a timely objection waives the right to assert prejudicial error on appeal.
8. Appeal and Error. When an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition.
9. Trial: Waiver: Appeal and Error. One may not waive an error, gamble on a favorable result, and, upon obtaining an unfavorable result, assert the previously waived error.
10. Trial: Appeal and Error. An issue not presented to or decided on by the trial court is not an appropriate issue for consideration on appeal.
11. Appeal and Error: Words and Phrases. Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.
Dennis R. Keefe, Lancaster County Public Defender, and Elizabeth D. Elliott, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust, for appellee.
Mohammed Nadeem was convicted in a jury trial of one count of attempted first degree sexual assault and one count of attempted third degree sexual assault of a child. During the proceedings, the jurors were addressed by juror number instead of by name, with a few exceptions. Nadeem appealed his convictions and sentences. Noting plain error, the Nebraska Court of Appeals reversed the convictions and remanded the cause for a new trial, after determining that the district court abused its discretion in impaneling an “anonymous jury.” See State v. Nadeem, 19 Neb.App. 565, 809 N.W.2d 825 (2012) (Nadeem II). This court granted the State's petition for further review.
A district court's decision regarding impaneling an anonymous jury is reviewed under the deferential abuse-of-discretion standard. State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010).
Although an appellate court ordinarily considers only those errors assigned and discussed in the briefs, the appellate court may, at its option, notice plain error. State v. Paul, 256 Neb. 669, 592 N.W.2d 148 (1999).
Regarding a question of law, the Nebraska Supreme Court reaches a conclusion independent of the determination reached by the Nebraska Court of Appeals. State v. Moore, 276 Neb. 1, 751 N.W.2d 631 (2008).
On August 6, 2009, 14–year–old H.K. went to a library in Lincoln, Nebraska, to research places to visit during an upcoming vacation to South Dakota. She went to a reading room in the library to use her laptop computer and sat at a table next to a magazine rack. After about 20 minutes, H.K. saw a man, later identified as Nadeem, standing a few feet from her with a newspaper in his hands. Nadeem occasionally glanced over the newspaper at H.K.
Nadeem began a conversation with H.K., asking where she went to school, her name, her age, and whether she had a boyfriend. Nadeem also asked for H.K.'s telephone number, which H.K. refused to give him. Nadeem left the room for several minutes, but he later returned, handed H.K. a piece of paper with a telephone number on it, and said he expected a call. When Nadeem left the room, he said he hoped to see H.K. again.
H.K. reported the incident to her mother, who had her report it to the library branch manager. H.K.'s mother also filed a police report. H.K. was interviewed by police, who asked if she would make a controlled call to Nadeem. H.K. and her mother agreed.
The next day, H.K. called the telephone number Nadeem gave to her at the library and eventually spoke to Nadeem. She and Nadeem had a 20–minute conversation that became sexually explicit. At the direction of police, H.K. arranged to meet Nadeem at the library around 2:30 p.m. At about 2:15 p.m., police saw Nadeem heading toward the library. Upon his arrival at the library, Nadeem was arrested.
On October 2, 2009, Nadeem was charged by information in Lancaster County District Court with one count of attempted first degree sexual assault and one count of attempted third degree sexual assault of a child. The case was tried to a jury. Before trial, the jurors completed questionnaires. The State presumably had access to the questionnaires, because it specifically noted in voir dire that juror No. 5 “reported on [the] questionnaire that [the juror knew] the attorney general.” No questionnaires are included in the record.
Throughout most of the proceedings, the jurors were referred to by number instead of name, though there were a few exceptions. One juror was called by name for a sidebar with the court and counsel. Juror No. 23 reported knowing a juror, whom he named, and whom the court identified as juror No. 21. Similarly, juror No. 11 stated that he was acquainted with a juror, whom he named, and whom the court identified as juror No. 34. At the end of the case, the court excused juror No. 34 by name.
During voir dire, both attorneys questioned jurors by number and jurors were excused by number. Defense counsel asked if juror No. 6 was familiar with him, and the juror claimed he was not. However, defense counsel correctly suggested that juror No. 6 graduated from “Benson” in 1968. Finally, the court referred to “prospective jurors whose number ha[d] not yet been called.”
On June 30, 2010, the jury found Nadeem guilty of attempted first degree sexual assault and attempted third degree sexual assault of a child. On August 18, he moved to release juror information so he could investigate if “the jurors were manipulated or influenced by the defendant['s] religious and national origins, or whether any other factor may have play[ed] a part in their decision making.” Nadeem requested “the jurors' names and information.” The motion was overruled.
Nadeem was sentenced on September 16, 2010. He received 3 to 6 years' imprisonment on the attempted first degree sexual assault conviction and not less than nor more than 1 year's imprisonment on the attempted third degree sexual assault of a child conviction, with the sentences to run concurrently, and credit for 162 days served. Nadeem was also required to register under Nebraska's Sex Offender Registration Act. Nadeem appealed.
In an opinion filed January 17, 2012, the Court of Appeals concluded that the district court abused its discretion by impaneling an anonymous jury. See State v. Nadeem, 19 Neb.App. 466, 808 N.W.2d 95 (2012). On March 6, the Court of Appeals sustained the State's motion for rehearing, withdrew its initial opinion, and filed a second opinion reaching the same result on different reasoning. See Nadeem II. The Court of Appeals determined that the district court abused its discretion in impaneling an anonymous jury and that this constituted plain error. Because the evidence presented by the State was sufficient to sustain Nadeem's convictions, the court reversed, and remanded for a new trial. Id. The State petitioned for further review, which this court granted.
In its petition for further review, the State assigns, restated, that the Court of Appeals erred in (1) finding on plain error review that the district court abused its discretion in impaneling an anonymous jury, despite a silent record; (2) reversing, and remanding for a new trial rather than remanding for further proceedings; (3) finding that the district court impaneled an anonymous jury; and (4) applying the two-part test from State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010), to a “numbers jury.”
This court addressed anonymous juries for the first time in State v. Sandoval, supra. Generally, the term “anonymous jury” describes a situation where juror identification information is withheld from both the public and the parties. See id. If only the jurors' names are kept from the parties and the jurors are referred to by number, the jury may be called a numbers jury. See id.
In Sandoval, 280 Neb. at 326–27, 788 N.W.2d at 195, this court determined that “[g]enerally, impaneling an anonymous jury is a drastic measure that should only be undertaken in limited circumstances ... and there is a danger that the practice could prejudice jurors against the [defendant].”
We explained that juror anonymity can prejudice a defendant in two ways. First, during voir dire, a lack of knowledge about the jurors' biographical information could prevent the defense counsel from making intelligent decisions regarding peremptory strikes. See State v....
To continue reading
Request your trial
-
State v. Wood
...v. Veiman , 249 Neb. 875, 546 N.W.2d 785 (1996).62 Sacco v. Carothers , 257 Neb. 672, 601 N.W.2d 493 (1999).63 See State v. Nadeem , 284 Neb. 513, 822 N.W.2d 372 (2012).64 See State v. Schreiner , 276 Neb. 393, 754 N.W.2d 742 (2008). See, also, Davis v. Alaska , 415 U.S. 308, 94 S. Ct. 1105......
-
State v. Smith
...537, 827 N.W.2d 814 (2013).69 Id.70 Brief for appellant at 39.71 State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013) ; State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012) ; State v. Kibbe, supra note 6.72 Wamsley v. State, 171 Neb. 197, 106 N.W.2d 22 (1960).73 Brief for appellant at 59.74 S......
-
State v. Space
...See State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012). A defendant's failure to object waives alleged violations of procedural due process. Id. In context, we have generally said that the '"[d]efense may not remain silent in hopes that trial court will fall into reversible error where po......
-
State v. Space, S-21-837.
...unconstitutionality of a charging statute. A defendant's failure to object can waive the right to confrontation. See State v. Nadeem , 284 Neb. 513, 822 N.W.2d 372 (2012). A defendant's failure to object waives alleged violations of procedural due process. Id.In this context, we have genera......