State v. Allen -- supplemental opinion

995 N.W.2d 446, 315 Neb. 255

Opinion

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 09/15/2023 09:07 AM CDT

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Nebraska Supreme Court Advance Sheets 315 Nebraska Reports

STATE V. ALLEN Cite as 315 Neb. 255

State of Nebraska, appellee, v.

Keith L. Allen, appellant.

___ N.W.2d ___

Filed September 15, 2023. No. S-22-169.

supplemental opinion

Appeal from the District Court for Lincoln County: Richard A. Birch, Judge. Affirmed.

Charles D. Brewster, of Anderson, Klein, Brewster & Brandt, for appellant.

Michael T. Hilgers, Attorney General, and Jordan Osborne for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Per Curiam. This case is before us on a motion for rehearing filed by the appellee, the State, concerning our opinion in State v. Allen, 314 Neb. 663, 992 N.W.2d 712 (2023).

We overrule the motion, but modify the opinion as follows: In the analysis section, under the subheading “2. Juror Misconduct,” we withdraw the second paragraph and substitute the following:

Neb. Rev. Stat. § 29-2101(2) (Reissue 2016) provides that “[a] new trial, after a verdict of conviction, may be granted, on the application of the defendant” for “misconduct of the jury” “affecting materially his or her

Nebraska Supreme Court Advance Sheets 315 Nebraska Reports

STATE V. ALLEN Cite as 315 Neb. 255

substantial rights.” In the civil context, we have said “misconduct of the jury” does not necessarily mean a jury’s bad faith or malicious motive, but means a jury’s violation of, or departure from, an established rule or procedure for production of a valid verdict. See Loving v. Baker’s Supermarkets, 238 Neb. 727, 472 N.W.2d 695 (1991). The remainder of the opinion shall remain unmodified.

Former opinion modified. Motion for rehearing overruled.