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Cite as 298 Neb. 522

State of Nebraska, appellee, v.

Jeffrey A. Huff, appella

___ N.W.2d ___

Filed December 29, 2017. No. S-15-897.

1. Trial: Juries: Appeal and Error. The retention or rejection of a juror 

is a matter of discretion for the trial court. This rule applies both to the 

issue of whether a venireperson should be removed for cause and to the 

situation involving the retention of a juror after the commencement of 

trial. Thus, the standard of review in a case involving discharge of a 

juror is whether the trial court abused its discretion.

2. 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.

3. Criminal Law: Juror Misconduct: Proof. Where the jury misconduct 

in a criminal case involves juror behavior only, the burden to establish 

prejudice rests on the party claiming misconduct.

4. Juror Qualifications: Waiver. A party who fails to challenge the jurors 

for disqualification and passes the jurors for cause waives any objection 

to their selection.

5. Juror Qualifications. When a party to a criminal case, through diligence, is able to discover a reason to challenge a juror, the objection to 

the juror must be made at the time of voir dire.

6. Juror Qualifications: Juror Misconduct: Waiver. A party does not 

waive an objection to a juror when the juror has concealed the information that is the subject of the objection.

7. Trial: Juror Qualifications: Juror Misconduct. The motives for concealing information during voir dire may vary, but only those reasons 

that affect a juror’s impartiality can truly be said to affect the fairness of 

a trial.

8. Trial: Juries. Where a juror indicates that he or she is physically 

incapable of proceeding, such as in the case of the juror’s illness or 

incapacity, examination of the juror before discharging him or her is not 

required and may not be feasible.

Nebraska Supreme Court Online Library

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

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9. ____: ____. Whether a juror paid attention to the trial in order to intelligently comprehend the proceeding is generally left to the discretion of 

the trial judge.

10. Trial: Juries: Appeal and Error. A trial court’s decision to remove a 

juror and substitute an alternate is reviewed for an abuse of discretion.

11. Trial: Juries. A court’s decision is an abuse of discretion if the decision results in bias or prejudice to the defendant, and prejudice includes 

the discharge of a juror without factual support or for a legally irrelevant reason.

Petition for further review from the Court of Appeals, Moore,

Chief Judge, and Riedmann and Bishop, Judges, on app

thereto from the District Court for Lancaster County, Rober

R. Otte, Judge. Judgment of Court of Appeals affirme

Joseph D. Nigro, Lancaster County Public Defender, and 

Robert G. Hays for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel,

Kelch, and Funke,

Per Curiam

Jeffrey A. Huff was convicted of first degree sexual assault 

following a jury trial in the district court for Lancaster 

County. The Nebraska Court of Appeals affirmed his conviction and sentence.1

 Huff petitioned for further review, specifically challenging the order of the district court granting the 

State’s motion to discharge a juror, M.F., after the parties had 

rested their cases and before the jury began deliberations. 

We affirm.

I. BACKGROUND

On April 15, 2015, the State filed an information charging Huff with first degree sexual assault. He was ultimately 

1 State v. Huff, 24 Neb. App. 551, 891 N.W.2d 709 (2017).
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convicted by a jury. The errors raised in Huff’s petition for 

further review concern only a juror at his trial, and not the 

underlying charge. We therefore limit our recitation of the 

facts to those pertinent to our analysis.

Jury selection for Huff’s trial took place on August 10, 

2015. After voir dire, both parties passed the panel for cause 

and then exercised their peremptory challenges. Twelve regular 

jurors and one alternate juror were sworn in and then excused 

until the following morning.

The Court of Appeals summarized the relevant events that 

occurred next:

When trial reconvened on August 11, 2015, one juror, 

M.F., communicated that he was anxious about serving on the jury and was brought in to discuss the issue 

with the court and parties. M.F. explained that due to 

his upbringing, which included crime, gangs, drugs, and 

domestic assault, he did not think he was “suitable for 

[jury service] at all.” M.F. was questioned as to whether 

he could listen to the evidence and jury instructions and 

be fair and impartial. He initially expressed that he did 

not think he would “be fair due to” his background and 

experiences. He declined to state whether he thought he 

would be biased toward the State or toward Huff and 

indicated only that he felt he was not fit for jury service. 

Upon further questioning, however, M.F. agreed to follow the law and stated that he believed he could follow 

the instructions given, place his history and background 

aside, and fairly and impartially make a decision based 

on the evidence.

The State then moved to strike M.F. from the jury 

for cause, a motion to which Huff objected. The district 

court denied the motion at that point, observing that M.F. 

had taken the oath administered to the jury and opining 

that he perhaps merely experienced anxiety about jury 

service during the overnight break. The court indicated, 
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however, that “we [could] keep an eye on that issue” as 

the trial progressed.2

The trial then proceeded. After both parties rested and the 

jury had been excused for the day, the court expressed concern as to whether M.F. had been paying attention during 

trial. Specifically, the court advised the parties that it had not 

seen M.F. taking any notes during the trial or otherwise paying attention and stated that “[i]t wouldn’t appear to me that 

[M.F.] would be paying attention as intently as some of the 

other jurors.”

Later that day, at a hearing outside the presence of the jury, 

the State offered the transcript of the colloquy with M.F. from 

the first day of trial and a printout of M.F.’s criminal record. 

The printout showed in excess of 30 misdemeanor convictions 

M.F. had failed to disclose on his jury questionnaire. Both 

documents were received into evidence by the court. The State 

then moved to “strike” M.F. for cause, arguing M.F. could not 

be fair and unbiased.

The State argued that in the jury questionnaire, M.F. had 

said he had never been convicted or charged with a crime with 

a possible penalty of 1 year or more in prison, had never been 

convicted or charged with a crime involving a motor vehicle 

other than speeding, and had never been convicted or charged 

with a crime other than traffic. The State conceded that it 

could have exercised “a little bit more due diligence” before 

jury selection. Nevertheless, the State argued that M.F.’s 

criminal record showed that he had not been “forthcoming 

when he filled out his jury questionnaire” and that M.F.’s 

“deceit to the court” was a basis to strike him for cause. The 

record shows that M.F. was not statutorily disqualified from 

jury service.

Huff objected to the State’s motion to remove M.F. from 

the jury. Huff argued that the State had not sought to strike 

M.F. for cause during jury selection and had not used its 

2 Id. at 552-53, 891 N.W.2d at 712.
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peremptory strike on M.F. prior to his being sworn in and, 

instead, the State waited until after he had been sworn in. Huff 

generally contended that nothing had occurred since M.F. had 

been sworn in that would justify his being discharged.

After listening to the parties’ arguments, the court stated 

that it was “going to sustain the State’s motion” and “strike” 

or discharge M.F. The court reasoned M.F. had not been forthcoming about his criminal history in his jury questionnaire. It 

also stated that it had observed M.F.’s “apparent disinterest in 

the trial as it was going along.” In this respect, the court noted 

that M.F. “didn’t take a note from the start of the case through 

the end of evidence.” The court also stated that “overall, if he 

would have been a student in a third grade class, you would 

have thought that he didn’t pay attention to anything that had 

gone on that particular hour.” The court also referred to M.F.’s 

initial reluctance to serve as a juror.

Huff argued that before the court could discharge M.F., it 

was “incumbent upon the court to question him.” However, the 

court determined that it had sufficient good cause to discharge 

M.F. and chose not to examine him.

The next day, prior to bringing the jury into the courtroom, 

the court heard argument on Huff’s motion to vacate its ruling 

to strike M.F. Huff alternatively moved to “strike” three additional jurors and presented exhibits, including criminal histories and jury questionnaires, which he argued showed that the 

three had also been dishonest in their questionnaire responses 

regarding their criminal histories. The court overruled Huff’s 

motions. The court thereafter called M.F. into the courtroom 

without again examining him and without the other jurors present and informed him that the court had “made a determination 

to discharge [him] as a juror.”

Huff moved for a mistrial based in part on the court’s discharge of M.F. The court overruled Huff’s motion for mistrial, and the alternate juror was placed on the jury. The jury 

returned a guilty verdict against Huff, and the court sentenced 

him to 12 to 20 years’ imprisonment.
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Huff appealed, arguing the district court erred in granting 

the State’s motion to “strike” M.F. from the jury and in denying his motion for mistrial. The Court of Appeals rejected 

Huff’s claims and affirmed his conviction and sentence.3

In doing so, the Court of Appeals held that the district court 

actually discharged M.F., and did not “strike” him. It reasoned 

that pursuant to Neb. Rev. Stat. §§ 29-2006 and 29-2007 

(Reissue 2016), a “strike” or challenge to a potential juror for 

cause “shall be made before the jury is sworn, and not afterward,” and thus it was imprecise to say M.F. was struck.4

 The 

court determined that the district court’s dismissal of M.F. was 

more properly characterized as a “discharge” under Neb. Rev. 

Stat. § 29-2004(2) (Reissue 2016). Section 29-2004(2) refers to 

the discharge of a juror who has already been seated and provides for replacing a juror who is discharged during trial with 

an alternate juror.

Huff argued the State waived its challenge to M.F. based on 

the jury questionnaire by not raising the issue earlier and that 

in any event, the district court erred when it discharged M.F. 

without questioning him to ascertain whether he was subject to 

discharge for cause. Huff relied, in part, on State v. Myers,

5

 in 

which we held that a party who fails to challenge a juror for 

cause waives any objection to the juror’s selection and that if 

grounds for a challenge for cause arise out of matters occurring 

after the jury is 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.”

The Court of Appeals rejected Huff’s arguments, reasoning that because § 29-2004(2) applied, rather than § 29-2006, 

“the State’s objection to M.F. as a juror was not waived and 

the duty to question M.F. prior to discharging him from the 

3 Huff, supra note 1.

4 Id. at 555, 891 N.W.2d at 714.

5 State v. Myers, 190 Neb. 466, 472, 209 N.W.2d 345, 349 (1973).
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jury did not arise.”6 The Court of Appeals concluded that the 

district court did not abuse its discretion when it granted the 

State’s motion to discharge M.F.

The Court of Appeals determined that the same reasoning 

supported a conclusion that the district court did not abuse its 

discretion when it overruled Huff’s motion for mistrial. We 

granted Huff’s petition for further review.

II. ASSIGNMENTS OF ERROR

Huff claims, summarized and restated, that the district court 

abused its discretion in granting the State’s motion to discharge 

and denying Huff’s motion for mistrial.

III. STANDARD OF REVIEW

[1] The retention or rejection of a juror is a matter of discretion for the trial court.7

 This rule applies both to the issue of 

whether a venireperson should be removed for cause and to 

the situation involving the retention of a juror after the commencement of trial.8

 Thus, the standard of review in a case 

involving discharge of a juror is whether the trial court abused 

its discretion.9

[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.10

IV. ANALYSIS

1. Removal of Juror

Nebraska statutes provide for the removal of jurors both 

before and after the jury is sworn. This case illustrates the difference between disqualifying a juror for cause before the juror 

6 Huff, supra note 1, 24 Neb. App. at 557, 891 N.W.2d at 714.

7 State v. Hilding, 278 Neb. 115, 769 N.W.2d 326 (2009).

8 Id.

9 See State v. Krutilek, 254 Neb. 11, 573 N.W.2d 771 (1998).

10 State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016).
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has been sworn (pursuant to § 29-2006) and discharging a juror 

after he or she has been sworn (pursuant to § 29-2004(2)). We 

agree with the Court of Appeals that in this case, discharge 

under § 29-2004(2) is the proper analysis. To the extent the 

district court and the parties referred to “striking” M.F. from 

the jury panel, the terminology was imprecise.

Section 29-2004(2) provides that “before the final submission of the cause a regular juror dies or is discharged, the court 

shall order the alternate juror . . . to take his or her place in the 

jury box.” This statute does not specify the reasons for which 

a regular juror might be discharged or that the reason for the 

discharge must be based solely on one of the causes set forth 

in § 29-2006.11

2. Discharge of M

From Jury Pa

[3] Where the jury misconduct in a criminal case involves 

juror behavior only, the burden to establish prejudice rests on 

the party claiming the misconduct. 12 Because the State sought 

the discharge of M.F., it had the burden to show that M.F. was 

biased, engaged in misconduct, or was otherwise unable to 

continue to serve.

(a) Waiver

[4] Generally, a party who fails to challenge the jurors for 

disqualification and passes the jurors for cause waives any 

objection to their selection.13 For example, in Turley v. State,

14

it was discovered after the jury returned a verdict that one of 

the jurors had a felony conviction. Under those circumstances, 

we held that the issue of the juror’s qualification to serve was 

waived, stating:

11 See Hilding, supra note 7.

12 State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002).

13 Myers, supra note 5.

14 Turley v. State, 74 Neb. 471, 104 N.W. 934 (1905).
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Great latitude is allowed the defendant upon the voir dire

examination to enable him to ascertain whether there is 

any ground for objecting to the juror. He cannot waive an 

objection of this nature, and, after taking his chances of 

an acquittal before the jury selected, insist upon an objection which he should have raised upon the impaneling of 

the jury, and, if he makes no effort to ascertain whether 

a juror offered is qualified to sit, he must be held to have 

waived the objection.15

[5,6] Later, in State v. Harris,

16 we summarized the Turley

holding to be “when a defendant, through diligence, is able to 

discover a reason to challenge a juror, the objection to the juror 

must be made at the time of voir dire.” We went on to explain 

that “Turley does not stand for the proposition that an objection to a juror is waived when the juror has concealed information and the defendant through diligence cannot discover the 

information before trial.”17

In Harris, upon examination, it was learned that a juror 

intentionally failed to disclose she had been convicted of 

a crime that would have disqualified her from serving as 

a juror under Neb. Rev. Stat. § 25-1601(1) (Reissue 2016) 

and deemed her incompetent to be a juror under Neb. Rev. 

Stat. § 29-112 (Reissue 2016). The juror concealed information during voir dire, and it was ultimately determined that 

she deliberately lied with the motivation of being placed on 

the jury.18 The juror’s criminal record was discovered after 

the jury returned a verdict, and the discovery prompted the 

defendant to move for a new trial on the basis of juror misconduct. Under those circumstances, we held that a defendant 

does not waive an objection to a juror when the juror has 

15 Id. at 476, 104 N.W. at 936.

16 State v. Harris, 264 Neb. 856, 861, 652 N.W.2d 585, 589 (2002).

17 Id.

18 See Harris, supra note 16.
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concealed the information that is the subject of the objection.19

We noted the juror had actively concealed her criminal history 

on her juror questionnaire and that nothing in the record suggested the defendant could have discovered the concealment 

before trial. We reasoned:

Attorneys must be able to rely on a statutory scheme 

intended to prevent disqualified jurors from ever being 

placed in the jury pool. Attorneys should not be required 

to ask again at voir dire about past convictions that would 

disqualify a juror when jurors have already filled out 

forms addressing the issue.20

In the instant case, after the jury had been sworn in, M.F. 

advised the court that he was reluctant to serve, based upon 

his upbringing and his background. The court then questioned 

M.F. and determined that M.F. could be fair and impartial. 

After the close of evidence, the court, sua sponte, raised 

additional concerns about M.F. As a result, the State moved 

to discharge M.F. The court held a hearing on the motion, 

and the State offered M.F.’s criminal record, which showed 

numerous convictions for driving under suspension, assaults, 

and other misdemeanor law violations. At a later hearing, the 

court received into evidence M.F.’s juror qualification form, 

which showed his answers concerning his criminal record 

were inaccurate.

In both Turley and Harris, the question of waiver was raised 

after the juries rendered their verdicts. However, in this matter, 

M.F. was discharged prior to the case being submitted to the 

jury. The issue of M.F.’s suitability was raised by the trial court 

itself. As a result, the issue of whether the State waived an 

objection to M.F.’s concealment of his criminal record need not 

be considered by us. We also need not consider the correctness 

of the Court of Appeals’ analysis of the issue of waiver after 

19 Id.

20 Id. at 862, 652 N.W.2d at 590.
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the jury was sworn in. Instead, we conclude that under these 

facts and our jurisprudence, the district court had the discretion 

to discharge M.F.

(b) Questioning of M.F.

[7] The fact that M.F. failed to disclose his criminal history 

does not per se justify his disqualification from the jury. “The 

motives for concealing information may vary, but only those 

reasons that affect a juror’s impartiality can truly be said to 

affect the fairness of a trial.”21 In Harris, we declined to adopt 

an automatic presumed-bias rule when the juror concealed 

information. We upheld the discharge, however, because upon 

questioning, the juror admitted she had concealed information 

for the purpose of being placed on the jury.

In the instant case, there is no explanation in the record 

as to why M.F. provided inaccurate information on his jury 

questionnaire. This is at least in part because M.F. was never 

questioned on this matter.

The best practice in such a circumstance is to question the 

juror. In State v. Myers, a question of prejudice of the jurors in 

one case was presented because they had earlier sat as jurors in 

a related case.22 We stated that if the court is informed

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. Any 

21 See McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 

104 S. Ct. 845, 78 L. Ed. 2d 663 (1984).

22 See Myers, supra note 5.
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lowering of those constitutional standards strikes at the 

very heart of the jury system.23

[8] However, our jurisprudence shows that where a juror 

indicates that he or she is physically incapable of proceeding, such as in the case of the juror’s illness or incapacity, 

examination of the juror before discharging him or her is not 

required and may not be feasible.24

In the instant case, the district court did conduct a hearing on the issue of whether M.F. should be disqualified and 

did receive evidence. It did not, however, question M.F. 

directly as to why he failed to disclose his criminal history. 

If M.F.’s failure to disclose his criminal record had been the 

sole basis for discharge, it would have been difficult for this 

court to review the trial court’s decision to discharge M.F. 

However, because the record demonstrates there were various 

reasons for the discharge, we consider the lack of disclosure 

simply a factor in the overall exercise of the trial court’s 

discretion.

(c) M.F.’s Inattentiveness 

During Trial

[9] The district court also based its decision to discharge 

M.F. on his inattentiveness. Whether a juror paid attention to 

the trial in order to intelligently comprehend the proceeding 

is generally left to the discretion of the trial judge.25 Here, 

the court noted on the record that it had been observing M.F. 

and was concerned he was not paying attention and seemed 

disinterested in the trial. It stated that M.F. had not taken 

any notes and compared his attention span to that of a third 

grade student.

23 Id. at 472, 209 N.W.2d at 349. See, also, State v. Robinson, 198 Neb. 785, 

255 N.W.2d 835 (1977).

24 See Hilding, supra note 7.

25 See Braunie v. State, 105 Neb. 355, 180 N.W. 567 (1920).
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This court and other courts have upheld discharge based 

on similar grounds. In State v. Robinson,

26 the court gave 

a general admonishment to the entire jury after one juror 

appeared to have been sleeping during the proceedings. After 

the admonishment, the court noted, outside the presence of 

the jury, that the juror had again been sleeping during a witness’ testimony. The court removed the juror and sat the alternate juror.

In State v. Jorden,

27 the Washington Court of Appeals found 

that removing a juror on the ground of inattentiveness during 

trial was not an abuse of the trial court’s discretion. The record 

showed that no single incident led to the juror’s discharge and 

that the trial court “documented the juror’s stages of inattentiveness, ranging from having her eyes closed to an appearance 

of dozing.”28 The record also documented the specific trial 

testimony during which the juror was inattentive.

In U.S. v. Canales,

29 the Second Circuit discharged a juror 

for sleeping. The record demonstrated that “over the course 

of two days, the able district judge, his law clerk, government counsel, and [the defendant’s] counsel all witnessed the 

discharged juror repeatedly closing his eyes, tilting his head 

backward during testimony, and otherwise giving signs of 

being asleep.”30

In the matter before us, the record is not specific as to 

when and how M.F.’s inattentiveness occurred, aside from 

the observation that he took no notes. Greater specificity 

would aid the appellate court’s review of the trial court’s ruling. Nevertheless, the trial judge made it clear that he had 

significant concerns about whether M.F. was performing his 

duty as a juror, and we consider those findings as a factor in 

26 State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).

27 State v. Jorden, 103 Wash. App. 221, 11 P.3d 866 (2000).

28 Id. at 226 n.5, 11 P.3d at 869 n.5.

29 U.S. v. Canales, 459 Fed. Appx. 55 (2d Cir. 2012).

30 Id. at 57.
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determining whether the court abused its discretion in discharging M.F.

(d) Totality of Circumstances

[10,11] A trial court’s decision to remove a juror and substitute an alternate is reviewed for an abuse of discretion; the 

court’s decision is an abuse of discretion if the decision results 

in bias or prejudice to the defendant, and prejudice includes 

the discharge of a juror without factual support or for a legally 

irrelevant reason.31

Based on the totality of the circumstances shown in the 

record, the district court did not abuse its discretion in discharging M.F. The record specifically shows: (1) M.F., upon 

his own volition and after being sworn as a juror, advised the 

court that he did not think he was suitable for jury service; 

(2) during trial, the court observed M.F. to be inattentive and 

uninterested; and (3) M.F. failed to disclose the true nature of 

his criminal record, which included multiple convictions for 

crimes other than traffic offenses. As a result, the district court 

did not abuse its discretion when it discharged M.F.

3. Huff’s Motion

Declare Mistr

Because the district court did not abuse its discretion in 

discharging M.F., it also did not abuse its discretion when it 

denied Huff’s motion for mistrial based on the same events.

V. CONCLUSION

Although our reasoning differs from that of the Court of 

Appeals, for the foregoing reasons, we conclude that the Court 

of Appeals did not err when it affirmed the judgment of the 

district court.

Affirmed

Wright, J., not participating in the decision.

31 See, e.g., U.S. v. Ebron, 683 F.3d 105 (5th Cir. 2012); U.S. v. De La Vega, 

913 F.2d 861 (11th Cir. 1990); United States v. Fajardo, 787 F.2d 1523 

(11th Cir. 1986).