- 443 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. MADREN

Cite as 308 Neb. 443

State of Nebraska, appellee, v. 

James M. Madren, appellant.

___ N.W.2d ___

Filed February 19, 2021. No. S-19-240.

1. Motions for Mistrial: Appeal and Error. Decisions regarding motions 

for mistrial are directed to the discretion of the trial court and will be 

upheld in the absence of an abuse of discretion.

2. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

3. Criminal Law: Motions for New Trial: Evidence: Appeal and Error.

A de novo standard of review applies when an appellate court is reviewing a trial court’s dismissal of a motion for a new trial under Neb. Rev. 

Stat. § 29-2102(2) (Reissue 2016) without conducting an evidentiary 

hearing. But a trial court’s denial of a motion for new trial after an evidentiary hearing is reviewed for an abuse of discretion.

4. Constitutional Law: Speedy Trial: Juries. The U.S. Constitution and 

the Nebraska Constitution both guarantee a speedy public trial by an 

impartial jury.

5. Constitutional Law: Trial: Juries. The presence of an alternate juror 

during the jury’s deliberations violates a defendant’s federal and state 

constitutional rights to a fair and impartial trial.

6. Juries: Verdicts. The presence of strangers during jury deliberations 

destroys the sanctity of the jury because the verdict of a jury should 

represent the concurring judgment, reason, and intelligence of the entire 

jury based upon the evidence and free from outside influence from any 

source whatever.

7. Juries. Once a case has been submitted to the jury, an alternate juror is 

a stranger to the proceedings regardless of whether the alternate juror 

was discharged.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/05/2021 09:07 AM CST
- 444 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. MADREN

Cite as 308 Neb. 443

8. Juries: Presumptions: Appeal and Error. The irregularity of the presence of an alternate juror in deliberations of the 12 regular jurors creates a rebuttable presumption of prejudice subject to a harmless error 

analysis.

9. Constitutional Law: Trial: Juries: Presumptions: Appeal and Error.

The presence of an alternate juror in jury deliberations is a constitutional violation of the right to a fair and impartial trial that merely creates a rebuttable presumption of prejudice for purposes of a harmless 

error analysis.

10. Motions for Mistrial: New Trial: Proof. After an error has been properly preserved by a motion for a mistrial, in order for a new trial to be 

granted, it must be shown that a substantial right of the defendant was 

adversely affected and that the defendant was prejudiced thereby.

11. Criminal Law: Trial: Juries: Verdicts: Appeal and Error. In a jury 

trial of a criminal case, harmless error exists when there is some incorrect conduct by the trial court which, on review of the entire record, 

did not materially influence the jury in reaching a verdict adverse to a 

substantial right of the defendant.

Petition for further review from the Court of Appeals, 

Moore, Arterburn, and Welch, Judges, on appeal thereto 

from the District Court for Douglas County, James T. Gleason, 

Judge. Judgment of Court of Appeals reversed and remanded 

with directions.

Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for 

appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

In a petition for further review from a direct appeal of a 

first degree sexual assault conviction, the defendant challenges 

the Nebraska Court of Appeals’ affirmance of the district 
- 445 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. MADREN

Cite as 308 Neb. 443

court’s denials of his motions for mistrial and new trial after 

the district court mistakenly failed to dismiss an alternate juror 

who remained with the jury during the first hour of deliberations. The defendant asserts the district court erred when 

it refused to inquire of the alternate before dismissing her, 

to hold an evidentiary hearing to question each of the jurors, 

or even to allow an affidavit of the alternate to be obtained, 

any of which could have been used to determine the extent 

of communications or other influence by the alternate during 

the jury’s deliberations. The court instead instructed the jury 

to begin deliberations “from scratch,” specifically telling them 

that it did not want to know the extent it “communicated back 

and forth” with the alternate. Then, after the verdict, the court 

generally requested that the jury “please let me know” whether 

any juror “consider[ed] any of the conversations or participation” of the alternate juror in reaching a verdict and, when no 

juror responded, was satisfied that the court’s actions were sufficient to rectify any presumption of prejudice that arose when 

the court mistakenly permitted the alternate to intrude upon the 

sanctity of the jury deliberations without any safeguards limiting the alternate’s participation.

BACKGROUND

Following a jury trial, James M. Madren was convicted 

of first degree sexual assault, in violation of Neb. Rev. Stat. 

§ 28-319(1)(c) (Reissue 2016), a Class II felony. Madren was 

sentenced to 30 to 38 years’ imprisonment. Madren appealed 

the conviction to the Court of Appeals, assigning, among other 

things, that the district court erred in overruling Madren’s 

motions for mistrial and new trial after an alternate juror was 

not discharged for the first hour of jury deliberations. The 

Court of Appeals affirmed. We granted further review on the 

question of whether the Court of Appeals erred by affirming 

the district court’s denials of Madren’s motions for mistrial and 

new trial.
- 446 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. MADREN

Cite as 308 Neb. 443

The basis for the motions was the fact that, at trial, after 

the parties rested and an hour after the case was submitted to 

the jury, the district court became aware of the fact that it had 

mistakenly failed to discharge the alternate juror. The district 

court called back counsel for both sides, notified them of the 

court’s mistake, and proposed to “call the jury back in, remove 

the alternate[,] and send the jury back for deliberations.” The 

district court gave each counsel the opportunity to respond to 

its proposal.

Madren indicated his intent to move for a mistrial. Madren 

asked the court to inquire of the alternate juror the extent, if 

any, the alternate had participated in deliberations. Further, 

Madren requested that the court admonish the remaining 12 

jurors that any opinions expressed by the alternate were not to 

be considered in deliberations. The court indicated it intended 

to admonish the jury to start its deliberations “anew from spot 

zero,” but refused to make any inquiries of the alternate.

The court then recalled the jury, notified the jury of the 

error, and identified and dismissed the alternate juror. At that 

time, the court asked the jury to again “refer to the instructions 

. . . regarding your duties as jurors.” It also specifically told 

the jury, “I don’t want to inquire to what extent you communicated back and forth.” Rather, the court instructed the jury to 

start “again from scratch as if your deliberations start now and 

without the alternate present.” The court asked the jury if the 

instruction made sense to them, all jurors responded affirmatively, and the jury was then dismissed to begin deliberations anew.

When the jury retired back to the jury room, Madren moved 

for a mistrial. Madren argued that without knowing the extent 

that the alternate participated in persuading the jurors to change 

their minds, it could not be determined that the potential 

persuasion by the alternate could be undone when the jury 

was instructed to start deliberations over. The court immediately overruled Madren’s motion for mistrial, reasoning that it 
- 447 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. MADREN

Cite as 308 Neb. 443

was satisfied that the cautionary instruction to have the jurors 

commence their deliberations anew was sufficient.

After the jury returned its verdict, the jury was polled at 

defense counsel’s request and each juror was asked whether 

the guilty verdict was his or her final verdict. Each juror 

answered, “Yes.” No further questioning of any individual 

juror took place. The district court generally requested that 

the jury “please let me know” whether any of its members, in 

reaching the verdict, “consider[ed] any of the conversations or 

participation” of the alternate juror while she was with them in 

the jury room. There was no audible response, and the judge 

rendered judgment on the verdict.

After the verdict was entered, Madren moved for a new trial, 

alleging in the written motion, among other things, that the 

alternate juror’s participating in deliberations for over an hour 

could not be cured by any instruction, prejudiced Madren, and 

prevented him from having a fair trial. The order scheduling 

a hearing on the motion for new trial was not included in the 

transcript. The bill of exceptions of the hearing, however, indicates that the court was not allowing evidence at the hearing, 

but only arguments.

At the hearing on the motion for a new trial, Madren 

requested that the court keep the motion under advisement until 

sentencing in order to give defense counsel time to at least 

secure an affidavit from the alternate juror as to her participation in deliberations, if the court were inclined to allow any 

evidence, in the form of an affidavit or direct testimony, regarding what the alternate actually did. Madren explained that if the 

affidavit indicated the alternate juror substantially participated, 

it “would support our argument that there was prejudice to 

[Madren] by having that alternate in the jury room.”

The court overruled Madren’s motion for a new trial without 

giving Madren an opportunity to secure the alternate juror’s 

affidavit or for either party to present any evidence. The court 

concluded that “all the matters regarding the alternate were 
- 448 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. MADREN

Cite as 308 Neb. 443

resolved in the jury’s verdict after [its] admonition by the 

Court,” the jury was polled after returning its verdict, and even 

if there was such an error, it would be harmless.

The Court of Appeals affirmed. Madren petitioned for further 

review limited to the Court of Appeals’ affirmance of the district court’s decision to overrule Madren’s motion for mistrial 

and motion for new trial regarding the alternate juror’s participating in deliberations. We granted further review.

ASSIGNMENTS OF ERROR

In Madren’s petition for further review, he assigns that the 

Court of Appeals erred by misconstruing Nebraska law in 

affirming the district court’s decision to overrule Madren’s 

motions for mistrial and new trial after the district court allowed 

a nonjuror, the alternate juror, to participate in the deliberation 

process that rendered a guilty verdict against Madren.

STANDARD OF REVIEW

[1,2] Decisions regarding motions for mistrial are directed 

to the discretion of the trial court and will be upheld in the 

absence of an abuse of discretion. 1 An abuse of discretion 

occurs when a trial court’s decision is based upon reasons that 

are untenable or unreasonable or if its action is clearly against 

justice or conscience, reason, and evidence. 2

[3] We determine a de novo standard of review applies 

when an appellate court is reviewing a trial court’s dismissal 

of a motion for a new trial under Neb. Rev. Stat. § 29-2102(2) 

(Reissue 2016) without conducting an evidentiary hearing. But 

a trial court’s denial of a motion for new trial after an evidentiary hearing is reviewed for an abuse of discretion. 3

1 State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).

2 State v. Senteney, 307 Neb. 702, 950 N.W.2d 585 (2020).

3 State v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017).
- 449 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. MADREN

Cite as 308 Neb. 443

ANALYSIS

[4,5] The U.S. Constitution and the Nebraska Constitution 

both guarantee a speedy public trial by an impartial jury. 4 We 

have held that the presence of an alternate juror during the 

jury’s deliberations violates a defendant’s federal and state 

constitutional rights to a fair and impartial trial. 5

[6,7] The presence of strangers during jury deliberations 

destroys the sanctity of the jury because the verdict of a jury 

should represent the concurring judgment, reason, and intelligence of the entire jury based upon the evidence and free from 

outside influence from any source whatever. 6 We have held that 

once a case has been submitted to the jury, an alternate juror 

is a stranger to the proceedings regardless of whether the alternate juror was discharged. 7 An alternate, we have explained, is 

not part of the deliberating body and should not be permitted 

with the group, where an alternate may have an influence on 

the jury’s determination. 8

Neb. Rev. Stat. § 29-2022 (Reissue 2016) states that once a 

case has been submitted, the jury shall have no communication 

with nonjurors, in order to ensure that an accused receives the 

right of an impartial jury and to shield the jury from improper 

conduct by jurors during the course of their deliberations. 9

And, at the time of Madren’s trial, Neb. Rev. Stat. § 29-2004 

(Reissue 2016) required the court to discharge alternate jurors 

“upon the final submission of the cause to the jury.” 10

Madren correctly points out that several jurisdictions hold 

that the presence of an alternate in the jury room during 

4 U.S. Const. amend. VI; Neb. Const. art. I, § 11.

5 State v. Menuey, 239 Neb. 513, 476 N.W.2d 846 (1991).

6 See, id.; Bramlett v. State, 129 Neb. 180, 261 N.W. 166 (1935).

7 See Menuey, supra note 5.

8 See id.

9 See State v. Barranco, 278 Neb. 165, 769 N.W.2d 343 (2009).

10 See Menuey, supra note 5.
- 450 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. MADREN

Cite as 308 Neb. 443

deliberations constitutes reversible error per se. These jurisdictions reason that it is impossible to make an adequate inquiry 

that would disprove prejudice from such a constitutional violation. 11 It could not be known whether or to what extent that 

participation affected the other jurors or the ultimate verdict 

because any inquiry into the mental process of jurors is impermissible. 12 Furthermore, these jurisdictions reason that a factual 

inquiry into the extent of an alternate’s participation and influence upon the jury is itself an intrusion into the proceedings 

and privacy of the jury. 13 The 10th Circuit Court of Appeals in 

United States v. Beasley 14 reasoned that any inquiry of the jury 

under a prejudice standard “is itself a dangerous intrusion into 

the proceedings of the jury” and that the purpose sought to be 

achieved at a prejudice hearing “is not of sufficient importance 

to warrant such an inquiry in comparison to the possible harm 

or appearance of interference.”

At least one jurisdiction has modified this per se approach 

by making a distinction between instances where the alternate juror was present while the jury actually deliberated and 

instances where the alternate was present only during “limited 

organizational activity,” such as electing a foreperson. 15 If the 

alternate is present after deliberations begin, the error is fundamental and prejudicial per se, and a new trial is necessary. 16

11 See, Stokes v. State, 379 Md. 618, 843 A.2d 64 (2004) (citing United 

States v. Beasley, 464 F.2d 468 (10th Cir. 1972)); Com. v. Smith, 403 

Mass. 489, 531 N.E.2d 556 (1988); State v. Bindyke, 288 N.C. 608, 220 

S.E.2d 521 (1975); Brigman v. State, 350 P.2d 321 (Okla. Crim. App. 

1960); Commonwealth v. Krick, 164 Pa. Super. 516, 67 A.2d 746 (1949).

12 See, Smith, supra note 11; Bindyke, supra note 11 (citing Beasley, supra

note 11; State v. Cuzick, 85 Wash. 2d 146, 530 P.2d 288 (1975); and Krick, 

supra note 11).

13 See id.

14 Beasley, supra note 11, 464 F.2d at 470.

15 Bouey v. State, 762 So. 2d 537, 540 (Fla. App. 2000).

16 See id.
- 451 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. MADREN

Cite as 308 Neb. 443

But if the alternate is only present during organizational activities and the case is not discussed, a harmless error analysis 

is appropriate. 17 This jurisdiction has emphasized that it is 

critical that the trial court conduct an inquiry and make factual 

determinations on the record in order to determine how long 

the alternate was with the other jurors and what was discussed 

while the alternate was present. 18

[8] Both our court and the U.S. Supreme Court have repeatedly recognized that most constitutional errors can be harmless. 19 Thus, under most circumstances, we have rejected a per 

se rule for irregularities or misconduct involving the sanctity of 

the jury. 20 We have specifically held that the irregularity of the 

presence of an alternate juror in deliberations of the 12 regular 

jurors creates a rebuttable presumption of prejudice subject to 

a harmless error analysis. 21

In State v. Menuey,

 22 we explained that the presence of an 

alternate juror in the jury room, while a fundamental constitutional violation, is nevertheless distinct from the presence 

of a court or law enforcement officer for a significant period 

of time during deliberations—which we held in Gandy v. 

State 23 and Cooney v. State 24 is prejudice per se regardless 

17 See id.

18 See id.

19 See, State v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012); Menuey, supra

note 5 (citing Simants v. State, 202 Neb. 828, 277 N.W.2d 217 (1979)).

20 See, State v. Anderson, 252 Neb. 675, 564 N.W.2d 581 (1997); State v. 

LeBron, 217 Neb. 452, 349 N.W.2d 918 (1984); Simants, supra note 19; 

State v. Robinson, 198 Neb. 785, 255 N.W.2d 835 (1977); Cooney v. State, 

61 Neb. 342, 85 N.W. 281 (1901); Gandy v. State, 24 Neb. 716, 40 N.W. 

302 (1888). See, also, State v. Owen, 1 Neb. App. 1060, 510 N.W.2d 503 

(1993).

21 Menuey, supra note 5.

22 Id.

23 Gandy, supra note 20.

24 Cooney, supra note 20.
- 452 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. MADREN

Cite as 308 Neb. 443

of whether the officer participated or advised the jury in any 

manner. 25 A court officer might be expected to monitor the 

jury’s discussions and a law enforcement officer could be 

expected to inhibit criticism of the State’s case, thereby increasing the inhibitory effect of their presence. 26

We ultimately held in Menuey that the evidence presented 

at the evidentiary hearing, at which the alternate and the jurors 

testified, rebutted the presumption of prejudice. The alternate 

and the jurors had been called by the trial court to testify, 

and it was undisputed that no deliberations took place during 

the alternate’s presence, which was for only approximately 

10 minutes while the jury chose a foreman. The jurors and 

the alternate testified that the alternate did not participate in 

the choosing of the foreman; nor did the alternate discuss the 

case with the jurors when the bailiff had allowed the alternate to join them for lunch. Finally, the jurors testified their 

decisions were not in any way influenced by the alternate’s 

presence. 27

[9] We decline Madren’s invitation to overrule Menuey and 

adopt a per se standard for prejudice when an alternate is mistakenly allowed in juror deliberations. We reaffirm that under 

the statutory scheme for alternates controlling at the time of 

Madren’s trial, the presence of an alternate juror in jury deliberations is a constitutional violation of the right to a fair and 

impartial trial that merely creates a rebuttable presumption of 

prejudice for purposes of a harmless error analysis.

This approach, adopting a rebuttable presumption of prejudice in a harmless error analysis for the unauthorized presence of an alternate juror in jury deliberations, has been 

25 See, Simants, supra note 19; Cooney, supra note 20.

26 Menuey, supra note 5. But see Simants, supra note 19.

27 Menuey, supra note 5.
- 453 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. MADREN

Cite as 308 Neb. 443

adopted by a substantial number of other jurisdictions. 28 We 

disagree with the reasoning of the “prejudice per se” jurisdictions that an evidentiary hearing to determine prejudice 

is fruitless because of restrictions on examinations of jurors’ 

mental states.

As we noted in Menuey, Neb. Rev. Stat. § 27-606(2) (Reissue 

2016) describes the confines of permissible inquiry into jurors’ 

minds and allows a juror to testify on the question whether 

extraneous prejudicial information was improperly brought to 

the jury’s attention or whether any outside influence was 

improperly brought to bear upon any juror. 29 Section 27-606(2) 

states in full:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other 

juror’s mind or emotions as influencing him to assent to 

or dissent from the verdict or indictment or concerning 

his mental processes in connection therewith, except that 

a juror may testify on the question whether extraneous 

prejudicial information was improperly brought to the 

jury’s attention or whether any outside influence was 

improperly brought to bear upon any juror. Nor may his 

affidavit or evidence of any statement by him indicating 

an effect of this kind be received for these purposes.

(Emphasis supplied.) We explained in Menuey that the jurors’ 

and the alternate’s testimony as to both the objective extent 

28 See, Stokes, supra note 11 (citing United States v. Watson, 669 F.2d 

1374 (11th Cir. 1982)); State v. Crandall, 452 N.W.2d 708 (Minn. App. 

1990); People v. Boulies, 690 P.2d 1253 (Colo. 1984); State v. Scrivner, 

676 S.W.2d 12 (Mo. App. 1984); State v. Coulter, 98 N.M. 768, 652 P.2d 

1219 (N.M. App. 1982); Yancey v. State, 640 P.2d 970 (Okla. Crim. App. 

1982); Cuzick, supra note 12; Johnson v. State, 235 Ga. 486, 220 S.E.2d 

448 (1975).

29 See Menuey, supra note 5.
- 454 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. MADREN

Cite as 308 Neb. 443

of the alternate’s participation in deliberations and the jurors’ 

subjective determination that they were not influenced by the 

alternate’s presence was thus properly received. 30 The alternate’s participation during jury deliberations, as a stranger to 

the proceedings, is extraneous information and outside influence. While the court may still be prohibited from inquiring of 

the jurors as to what they said to the alternate, the court is not 

prohibited from questioning individual jurors and the alternate 

as to how, if at all, the alternate communicated to the jury. 31

The court is also permitted to inquire as to individual jurors 

whether the alternate’s outside influence was brought to bear 

upon them. 32

We observe that since Madren’s trial, amendments made by 

2020 Neb. Laws, L.B. 881, effective November 14, 2020, now 

allow courts to retain alternate jurors after the jury retires to 

deliberate, with added safeguards intended to protect the sanctity of juror deliberations. 33 Under § 29-2004 as amended, if a 

court decides to retain alternate jurors, the court “shall ensure 

that a retained alternate does not discuss the case with anyone 

until that alternate replaces a juror or is discharged.” 34 It does 

not elaborate on how that must be done and does not indicate 

that the retained alternate should be present in juror deliberations. Also, if the alternate replaces a juror after deliberations 

have started, “the court shall instruct the jury to begin its deliberations anew.” 35

This case presents the unique situation where the district 

court, through its own error, allowed the alternate, without any 

30 Id.

31 See, Zeeb v. Delicious Foods, 231 Neb. 358, 436 N.W.2d 190 (1989); 

Owen, supra note 20.

32 § 27-606; Menuey, supra note 5. See, also, LeBron, supra note 20; 

Robinson, supra note 20.

33 § 29-2004 (Cum. Supp. 2020).

34 Id.

35 Id.
- 455 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. MADREN

Cite as 308 Neb. 443

safeguards, to remain in the jury room for approximately an 

hour after the case was submitted to the jury. Yet, the district 

court denied both the motion for a mistrial and the motion for 

a new trial without conducting an evidentiary hearing or even 

questioning any individual juror to determine the extent of 

the alternate’s participation in deliberations. And no information was permitted to be obtained from the alternate before 

the court dismissed her or when Madren sought to obtain an 

affidavit from her prior to the court’s deciding the motion for 

new trial.

When the grounds for a motion for a mistrial involve the 

sanctity of jury deliberations, the defendant has generally 

been given an opportunity to have the jurors both questioned and polled, and whether the defendant was prejudiced 

depends in part on what the jurors say on interrogation. 36

Even more to the point, § 29-2102(2) dictates with respect to a 

motion for new trial that the court “shall” hold an evidentiary 

hearing and make findings of fact and law “[i]f the motion 

for new trial and supporting documents set forth facts which, 

if true, would materially affect the substantial rights of the 

defendant . . . .”

As a general rule, the use of the word “shall” is considered 

to indicate a mandatory directive, inconsistent with the idea 

of discretion. 37 In State v. Cross,

 38 we held that we apply a de 

novo standard of review to a trial court’s dismissal of a motion 

for a new trial under § 29-2102(2), without first conducting an 

evidentiary hearing.

[10] After an error has been properly preserved by a motion 

for a mistrial, in order for a new trial to be granted, it 

must be shown that a substantial right of the defendant was 

36 See State v. Myers, 258 Neb. 272, 603 N.W.2d 390 (1999). See, also, 

LeBron, supra note 20; Robinson, supra note 20; Owen, supra note 20.

37 Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015).

38 Cross, supra note 3.
- 456 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. MADREN

Cite as 308 Neb. 443

adversely affected and that the defendant was prejudiced 

thereby. 39 Pursuant to Neb. Rev. Stat. § 29-2101 (Reissue 

2016), a new trial after a verdict of conviction may be granted 

on the application of the defendant on specified grounds 

“affecting materially his or her substantial rights,” including, 

as set forth in subsection (1), “[i]rregularity in the proceedings 

of the court . . . or in any order of the court or abuse of discretion by which the defendant was prevented from having a fair 

trial.” When the motion for a new trial is on grounds set forth 

in § 29-2101(2), (3), and (6), then § 29-2102 requires that they 

be supported by affidavits showing the truth of such grounds. 

But § 29-2102 does not require that the movant support with 

affidavits a motion for a new trial made on the grounds set 

forth under § 29-2101(1). Moreover, it was undisputed that the 

court mistakenly allowed the alternate to be present during an 

hour of jury deliberations without any instruction or other safeguards limiting her participation.

In our de novo review, we hold that the court had a mandatory duty under § 29-2102 to conduct an evidentiary hearing. 

Madren’s motion for new trial set forth facts which, if true, 

would materially affect his substantial rights. The constitutional right to trial by a fair and impartial jury that is affected 

by a stranger’s presence in the jury room is a substantial 

right. 40 As discussed, there is a rebuttable presumption of prejudice when an alternate, who should have been discharged, is 

mistakenly allowed with the jury during deliberations. 41 Both 

Madren and the State were entitled to a hearing on the motion 

for new trial in order to determine the extent and nature of 

any communications by the alternate regarding the case and 

whether the alternate’s presence or communications materially 

influenced the jury, thus giving the State an opportunity to 

39 State v. Hudson, 268 Neb. 151, 680 N.W.2d 603 (2004).

40 See Menuey, supra note 5.

41 See, id.; Simants, supra note 19.
- 457 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. MADREN

Cite as 308 Neb. 443

rebut the presumption of prejudice that arose by virtue of the 

alternate’s unauthorized presence.

The district court’s general request to the jury, that any of 

its members should “please let me know” if, in reaching the 

verdict, they “consider[ed] any of the conversations or participation” of the alternate juror while she was with them in the 

jury room, was not an adequate replacement for individualized questioning of whether the jurors were influenced. And, 

under these facts, the court’s instruction to begin deliberations 

“from scratch” did not nullify its mandatory duty to conduct 

an evidentiary hearing for purposes of determining if the presumption of prejudice had been rebutted. Such an instruction 

is not a panacea for every violation of the sanctity of juror 

deliberations.

The requirement in the 2020 amendment to § 29-2004 to 

instruct the jury to begin its deliberations anew if the alternate 

replaces a juror after deliberations have started does not suggest that the Legislature believes such an instruction could 

cure improper influence by alternates who are mistakenly 

left in deliberations with no instruction as to how to conduct 

themselves and where the extent of communications by the 

alternates are unknown. It is instead a measure that assumes 

there has been no improper influence and merely fully includes 

the alternate in the deliberations after the alternate has replaced 

a juror.

This is not to say that an instruction to begin deliberations 

anew after the sanctity of jury deliberations has been violated 

is irrelevant, but the effectiveness of such an instruction in 

erasing all prejudice from the presumed unauthorized influence 

of the jurors necessarily depends on the extent of the influence. 

And because the court refused to conduct an evidentiary hearing, it is precisely this that we do not know.

Without information as to whether and to what extent the 

alternate communicated with the jury during deliberations, 

we cannot determine the merits of whether the court erred in 

denying the motion for a new trial. But we can determine that 
- 458 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. MADREN

Cite as 308 Neb. 443

the court erred in doing so without first conducting an evidentiary hearing.

The facts of this case are similar to those presented in State 

v. Owen,

 42 wherein the district court had refused to conduct an 

evidentiary hearing upon the defendant’s motion for new trial 

and the Court of Appeals remanded the matter for an evidentiary 

hearing on the motion. The defendant in Owen had presented 

affidavits suggesting that the court had informally expounded 

upon its instruction on the term “reasonable doubt,” when it 

entered the jury room before evening recess to admonish the 

jurors concerning their separation, and, further, that jurors had 

brought dictionary definitions of the term “reasonable doubt” 

into their deliberations. The Court of Appeals explained that 

while the alleged violations were not prejudicial per se, due to 

the lack of an evidentiary hearing, there was insufficient information to determine whether there was a reasonable possibility 

that extraneous information or the irregularities of the court’s 

communications affected the verdict.

Thus, the Court of Appeals in Owen held that the district 

court judge had abused his discretion in failing to recuse 

himself and allow an evidentiary hearing, which deprived the 

defendant of her substantial right to determine whether she had 

been prejudiced by either the alleged further instruction on the 

burden of proof by the judge or the juror’s production of extraneous dictionary information. Without expressing any opinion 

as to whether the alleged misconduct in connection with the 

jury deliberations occurred or whether it was prejudicial if it 

occurred, the Court of Appeals vacated the order denying the 

motion for a new trial and remanded the matter back to the 

trial court with directions that a judge other than the trial judge 

rule on the motion for new trial after conducting an evidentiary hearing.

[11] We likewise find it necessary that the district court’s 

order denying Madren’s motion for a new trial should be 

42 Owen, supra note 20.
- 459 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. MADREN

Cite as 308 Neb. 443

reversed and that the matter should be remanded for an evidentiary hearing to determine whether Madren was prejudiced 

by the violation of his right to a fair and impartial jury stemming from the alternate’s unauthorized presence with the jury 

during deliberations. In a jury trial of a criminal case, harmless 

error exists when there is some incorrect conduct by the trial 

court which, on review of the entire record, did not materially 

influence the jury in reaching a verdict adverse to a substantial right of the defendant. 43 However, we cannot enter into 

a harmless error analysis without knowing the extent of the 

alternate’s participation in the jury deliberations.

The Court of Appeals erred in affirming the district court’s 

denials of Madren’s motions for mistrial and new trial, because 

the district court erred in failing to hold an evidentiary hearing 

regarding the alternate juror’s participation in deliberations. We 

reverse the decision of the Court of Appeals and remand the 

matter to the Court of Appeals with directions to remand the 

matter to the district court to conduct the mandated evidentiary 

hearing as required by § 29-2102(2). Upon remand, nothing in 

this opinion should be construed to circumscribe the authority 

of the trial court to establish procedures to protect the integrity 

of the proceedings.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the 

Court of Appeals and remand the matter with directions.

Reversed and remanded with directions.

43 State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), abrogated on 

other grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).