State v. Madren , 308 Neb. 443 ( 2021 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    05/07/2021 08:12 AM CDT
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    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 unrea-
    sonable 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 review-
    ing 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 evi-
    dentiary 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.
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    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 pres-
    ence of an alternate juror in deliberations of the 12 regular jurors cre-
    ates 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 constitu-
    tional violation of the right to a fair and impartial trial that merely cre-
    ates a rebuttable presumption of prejudice for purposes of a harmless
    error analysis.
    10. Motions for Mistrial: New Trial: Proof. After an error has been prop-
    erly 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 incor-
    rect 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
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    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 delib-
    erations. 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 participa-
    tion” of the alternate juror in reaching a verdict and, when no
    juror responded, was satisfied that the court’s actions were suf-
    ficient 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 limit-
    ing 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.
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    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 communi-
    cated 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 affirm­
    atively, and the jury was then dismissed to begin delibera-
    tions 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 immedi-
    ately overruled Madren’s motion for mistrial, reasoning that it
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    STATE v. MADREN
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    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, indi-
    cates 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 participa-
    tion in deliberations, if the court were inclined to allow any
    evidence, in the form of an affidavit or direct testimony, regard-
    ing 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
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    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 dis-
    trict court’s decision to overrule Madren’s motion for mistrial
    and motion for new trial regarding the alternate juror’s partici-
    pating 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 eviden-
    tiary 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).
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    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 intelli-
    gence 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 alter-
    nate 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.
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    STATE v. MADREN
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    deliberations constitutes reversible error per se. These jurisdic-
    tions reason that it is impossible to make an adequate inquiry
    that would disprove prejudice from such a constitutional vio-
    lation. 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 imper-
    missible. 12 Furthermore, these jurisdictions reason that a factual
    inquiry into the extent of an alternate’s participation and influ-
    ence 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 alter-
    nate 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 fun-
    damental 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.
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    But if the alternate is only present during organizational activi-
    ties 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 repeat-
    edly recognized that most constitutional errors can be harm-
    less. 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 consti-
    tutional 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.
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    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 increas-
    ing 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 alter-
    nate 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 mis-
    takenly 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 delib-
    erations 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 prej­
    udice in a harmless error analysis for the unauthorized pres-
    ence 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.
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    adopted by a substantial number of other jurisdictions. 28 We
    disagree with the reasoning of the “prejudice per se” juris-
    dictions 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 indict-
    ment, a juror may not testify as to any matter or state-
    ment occurring during the course of the jury’s delibera-
    tions 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.
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    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 alter-
    nate’s participation during jury deliberations, as a stranger to
    the proceedings, is extraneous information and outside influ-
    ence. 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 sanc-
    tity 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 delibera-
    tions. Also, if the alternate replaces a juror after deliberations
    have started, “the court shall instruct the jury to begin its delib-
    erations 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.
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    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 informa-
    tion 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 ques-
    tioned 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
    .
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    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 discre-
    tion 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 safe-
    guards limiting her participation.
    In our de novo review, we hold that the court had a manda-
    tory 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 constitu-
    tional 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 prej-
    udice 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
    .
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    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 partici-
    pation” of the alternate juror while she was with them in the
    jury room, was not an adequate replacement for individual-
    ized 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 pre-
    sumption 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 sug-
    gest 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 hear-
    ing, 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
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    the court erred in doing so without first conducting an eviden-
    tiary 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 infor-
    mation 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 extra-
    neous 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 eviden-
    tiary 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
    .
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    reversed and that the matter should be remanded for an evi-
    dentiary hearing to determine whether Madren was prejudiced
    by the violation of his right to a fair and impartial jury stem-
    ming 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 substan-
    tial 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).