finding that objection at end of closing arguments sufficiently preserves for appeal opponent’s misconduct during closing arguments
How later courts described this case
- finding that objection at end of closing arguments sufficiently preserves for appeal opponent’s misconduct during closing arguments
- in order to preserve, as ground of appeal, opponent’s misconduct during closing argument, aggrieved party must have objected to improper remarks no later than at conclusion of argument
- discussing ex parte communications between judge and jury
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by State v. Rogers, 277 Neb. 37 (2009)
253 Neb. 950, 980 , 574 N.W.2d 117, 141 (1998), abrogated on other grounds, State v. Nolan, 283 Neb. 50 , 807 N.W.2d 520 (2012). 45 State v. Rogers, 277 Neb. 37, 72-73 , 760 N.W.2d 35, 63
Abrogated on other grounds by State v. Nolan, 292 Neb. 118 (2015)
253 Neb. 950 , 574 N.W.2d 117 (1998), abrogated on other grounds, Nolan, supra note 83
The opinion
Caporale, J.,
dissenting.
I am distressed to note that this is the third occasion in the short space of 2 years in which we have been made aware that our trial courts are not providing proper jury room security. State v. Anderson, 252 Neb. 675 , 564 N.W.2d 581 (1997) (newspaper found in Douglas County jury room); State v. Nissen, 252 Neb. 51 , 560 N.W.2d 157 (1997) (spouse permitted to spend night with sequestered Richardson County juror). While it is time to remedy that situation, I write to respectfully dissent from that portion of the majority’s opinion which holds that the trial court’s improper ex parte instruction to the jury did not prejudice the defendant, Steven Jacob.
As the majority opinion notes, the only purpose for playing a portion of the tape-recorded statement was to impeach John Ingram’s explanation that because he was “shook up,” nervous, and trembling while giving the statement, he failed to mention the light-colored, slowly traveling vehicle later determined to *985 have been driven by Jacob. In response to the jury’s concern that it was unable to find the tape recording among the items of evidence it had been given, the trial court advised not that “the language contained in the portion of the tape recording played had been received in evidence, but the tape itself had not,” but instead wrote that “[a] portion of the tape was played in court but not received in evidence.” Said another way, the court instructed the jury that the exact portion of the tape recording played in court was not received in evidence.
The majority’s interpretation of the trial court’s message is contrary to the clear and ordinary meaning of what the court wrote and is arrived at by considering discussions made outside the presence of the jury. The propriety of particular remarks made by a court to a jury after its retirement for deliberation must be measured by the language employed, not by the meaning the court intended. See Neujahr v. Neujahr, 223 Neb. 722 , 393 N.W.2d 47 (1986) (meaning of judgment determined from language, not what parties thought judge meant or what judge thought he or she meant).
Moreover, even if the trial court’s ex parte instruction were open to multiple interpretations, we would not be free to assume that the jury accepted the legally correct interpretation. An instruction to a jury given in language which is susceptible of two interpretations, one correct in point of law and the other incorrect, and which may have misled the jury to the prejudice of the complaining party, is a misdirection, for which the judgment will be reversed. Frederick v. Ballard, 16 Neb. 559 , 20 N.W. 870 (1884).
Contrary to the majority’s reasoning, the prejudicial nature of the trial court’s improvident ex parte instruction is not overcome by its instruction concerning the use of testimony admitted solely for impeachment purposes. What is at issue here is not the testimony solicited by Jacob about Ingram’s tape-recorded statement, but the actual tape-recorded statement itself. In that regard, the trial court properly instructed that the jury must be governed solely by the evidence introduced. See Loving v. Baker’s Supermarkets, 238 Neb. 727 , 472 N.W.2d 695 (1991).
In short, the trial court’s ex parte instruction prejudicially deprived Jacob of his 6th and 14th Amendment right to present *986 a defense. I would therefore reverse the trial court’s judgment and remand the cause for a new trial.