Cassel, J.
Matthew L. Pangborn appeals from his convictions and sentences on nine counts involving actual or attempted violence or physical abuse upon "persons with intellectual disabilities who require[d] residential care."
In October 2011, a complaint was filed in county court charging Pangborn with six counts of abuse of a vulnerable adult and five counts of strangulation. All counts arose from Pangborn's employment at the Beatrice State Developmental Center (BSDC) in Beatrice, Nebraska, and involved three adult residents at that facility. The parties stipulated that all three alleged victims were vulnerable adults as defined by statute. After a hearing in county court, Pangborn was bound over to the district court for arraignment. He entered pleas of "not guilty" to all 11 counts. One count of strangulation was later dismissed with prejudice at the State's request.
A jury trial on the remaining 10 counts was held over several days in July 2012. During the trial, eight witnesses testified and numerous exhibits were admitted into evidence. In particular, exhibit 36 was central to presentation of the State's case. Having prepared the exhibit as a "road map" of its case, the State repeatedly relied upon exhibit 36 when delivering opening and closing statements and when examining and cross-examining witnesses. Exhibit 36 was admitted for demonstrative purposes only, but later was submitted to the jury for use during deliberations, over Pangborn's objection. Two other exhibits are relevant for purposes of appeal. Exhibits 37 and 38 consisted of timesheets from BSDC and were admitted under the business records exception to the hearsay rule, which admission Pangborn assigns as error.
Before we more thoroughly describe the circumstances surrounding the use of exhibit 36 — circumstances which are critical to our analysis — we provide a detailed description of the exhibit. Exhibit 36 was a one-page chart that the State described as providing a "road map" that it would use "during the course of the trial for clarification purposes only." It consisted of five columns labeled "COUNT," "VICTIM," "WITNESS," "LOCATION," and "INJURY." Each of the 11 original charges was listed in the column labeled "COUNT." For each count, the remaining columns identified the BSDC resident who was the alleged victim, the individual who supposedly witnessed Pangborn's abuse upon the victim (all of whom testified at trial to what they saw), the exact location where the alleged abuse was witnessed, and the precise nature of the violence allegedly inflicted upon the victim by Pangborn. These injuries were identified in the fifth column of the chart as "[s]truck on top of head," "[s]truck on ear," "[e]lbowed in chest," "[c]hoked unconscious," or "[c]hoked." Essentially, the exhibit was a concise summary of the evidence the State planned to present against Pangborn on each count — hence, a "road map."
The morning of trial, the parties discussed the proposed exhibit 36 with the district court in the absence of the jury. Pangborn had no objection to the use of exhibit 36 for demonstrative purposes, but moved that the jury not be allowed to use the exhibit during deliberations. At that time, the court received exhibit 36 for demonstrative purposes, but held that the exhibit could not be used during deliberations. The court did not communicate this ruling to the jury in any way but merely asked the State to "offer" exhibit 36 before publishing it to the jury at trial and noted that the court might revisit the issue of use during deliberations at a later time.
Throughout the trial that followed, the State relied heavily upon its "road map" in presenting its case against Pangborn. Despite this extensive usage of the exhibit, the district court did not explain to the jury the limited purpose of the exhibit, distinguish it from other substantive exhibits,
Early in its opening statement, the State first displayed exhibit 36 to the jury. But the State did not offer the exhibit as the district court had requested or ask for permission to publish. The only explanation provided for the exhibit was the following statement made by the State during opening arguments: "In order to help you try to work through this, we have prepared what we are calling a road map, and we encourage you to utilize this. It's been stipulated to by the parties and provided also to the judge...." The court neither clarified nor elaborated upon the State's minimal explanation.
Although the record is not precisely clear about each instance when exhibit 36 was used during the remainder of the trial, the briefs suggest that exhibit 36 was employed by the State throughout the examination and cross-examination of witnesses and was frequently displayed to the jury. Neither the State nor the district court identified exhibit 36 as having previously been admitted for demonstrative purposes at any point during the trial.
At the conclusion of all evidence, the district court held an in-chambers jury instruction conference. During that conference, the court announced that it was going "to take up on [its] own motion the matter of Exhibit 36." Because it found that exhibit 36 "would be very helpful to the jury to have and would not be prejudicial, although, it is a demonstrative exhibit," the court ruled that the jury would be allowed to use exhibit 36 during deliberations. Pangborn objected, but his objection was overruled. Neither this ruling nor any other explanation regarding the use of exhibit 36 during deliberations was communicated to the jury.
Following closing arguments, the district court gave jury instructions and submitted the case to the jury. The court's instructions to the jury included the standard jury instruction on exhibits admitted for limited purposes: "During the trial[,] I called your attention to some evidence that was received for a specific limited purpose; you must consider that evidence only for those limited purposes and for no other." Significantly, however, the instructions given by the court failed to identify that exhibit 36 had been admitted for the limited purpose of a demonstrative exhibit. And, as noted earlier, the court initially admitted exhibit 36 outside the presence of the jury and never informed the jury at any point during the trial that the exhibit was admitted only for demonstrative purposes.
After deliberation, the jury found Pangborn guilty on four counts of abuse of a vulnerable adult, one count of attempted abuse of a vulnerable adult, three counts of strangulation, and one count of attempted strangulation. The jury found Pangborn not guilty of one count of abuse of a vulnerable adult. After unsuccessfully moving for a new trial, Pangborn was sentenced to an aggregate sentence of 15 to 23 years' imprisonment.
Pangborn timely appeals. Pursuant to statutory authority, we moved the case to our docket.
Pangborn chiefly assigns that the district court abused its discretion in permitting the jury to take exhibit 36 into the jury room for use during deliberations. Pangborn also assigns, reordered and restated, that the court erred in admitting exhibits 37 and 38, that there was insufficient evidence to support the verdicts, and that he received excessive sentences. Because
The admission of demonstrative evidence is within the discretion of the trial court, and a judgment will not be reversed on account of the admission or rejection of such evidence unless there has been a clear abuse of discretion.
Pangborn argues that the district court abused its discretion in allowing the jury to take a demonstrative exhibit into the jury room for use during deliberations. The relevant demonstrative exhibit — exhibit 36 — was the State's "road map" of its case against Pangborn. Initially, the court admitted exhibit 36 for demonstrative purposes only. This occurred prior to the start of trial and out of the presence of the jury. At that time, Pangborn agreed to the admission of exhibit 36 for demonstrative purposes only. However, at the conclusion of evidence and over Pangborn's objection, the court ruled upon its own motion that the jury would be allowed to take exhibit 36 into the jury room for deliberations. At no point during the trial itself or during final jury instructions did the court inform the jury that exhibit 36 was admitted for demonstrative purposes or provide a limiting instruction specific to exhibit 36. We must decide whether this was an abuse of the court's discretion.
Pangborn does not challenge the actual admission of exhibit 36 into evidence for demonstrative purposes or its use during trial. He assigns error only to its use during deliberations. However, before reaching the question whether demonstrative exhibits can be used during jury deliberations, we must first clarify what is meant by the "admission" of a demonstrative exhibit.
We historically have discussed the use of demonstrative exhibits in terms of admissibility. In Benzel v. Keller Indus.,
But the use of such terminology can be misleading. Demonstrative exhibits are broadly defined as aids "offered to
Due to the difference in purpose, an exhibit admitted for a demonstrative purpose — that is, to aid the jury — is not evidence in the same way that an exhibit admitted for a substantive purpose — that is, as proof of an underlying fact or occurrence — is evidence. Our case law does not state that demonstrative exhibits are not to be considered as substantive evidence. However, a majority of circuit courts have so held,
Just because demonstrative exhibits are not substantive evidence does not mean that they should be excluded automatically from jury deliberations. As mentioned earlier, the explicit purpose of a demonstrative exhibit is to aid the jury in its consideration of the evidence and issues in a case.
Precisely because demonstrative exhibits can be exceedingly useful, many courts allow demonstrative exhibits to be used in jury deliberations under certain circumstances.
Allowing or disallowing the use of demonstrative exhibits in deliberations usually is a matter of discretion.
Prior to its restyling in 2011, Fed. R.Evid. 611(a) was identical to Neb. Evid. R. 611(1), Neb.Rev.Stat. § 27-611(1) (Reissue 2008). The 2011 amendments to the Federal Rules of Evidence were meant to be stylistic only.
Where a Nebraska Evidence Rule is substantially similar to a corresponding federal rule of evidence, Nebraska courts will look to federal decisions interpreting the corresponding federal rule for guidance
Of the 13 circuits, 10 permit demonstrative exhibits to be used by the jury during deliberations when certain circumstances are present. As will be explained below, these circumstances vary from the use of limiting instructions or other safeguards to consent of the parties.
The most common prerequisite for the use of demonstrative exhibits during jury deliberations is the use of safeguards against prejudice. In the 2d,
The remaining circuits that allow demonstrative exhibits to be used in jury deliberations each employ different approaches. The Fourth Circuit allows demonstrative exhibits to go to the jury during deliberations following the "proper admission of the summary chart into evidence."
In summary, although there is no uniform approach among the circuit courts, the use of limiting instructions is the most prevalent. Indeed, in the Fourth,
Other states do not appear to have a unified approach to the use of demonstrative exhibits in jury deliberations. Courts in Massachusetts,
As the foregoing discussion revealed, a common approach taken by many courts in other jurisdictions to the use of demonstrative exhibits in jury deliberations is to allow such use at the trial judge's discretion. This approach is consistent with Nebraska jurisprudence, which frequently addresses evidentiary matters to the trial judge's discretion.
In Nebraska, "[a] trial judge has broad discretion over the conduct of a trial."
In practice, a trial judge is called upon to make many decisions during the course of a trial based upon this broad discretion. The Nebraska Evidence Rules explicitly place many evidentiary matters at the discretion of the trial judge.
When it comes to matters regarding the jury, under Nebraska case law, the trial judge has discretion to allow the jury to reexamine evidence during deliberations.
In accordance with this broad discretion already accorded to trial courts, particularly in evidentiary matters, we believe that the submission of demonstrative exhibits to the jury during deliberations should be left to the discretion of the trial court. Accordingly, we hold that a trial judge may exercise his or her broad judicial discretion to allow or disallow the use of demonstrative exhibits during jury deliberations.
This discretion, however, is not unlimited. Despite their potential usefulness, demonstrative exhibits also carry the potential to prejudice the party against whom such exhibits are used.
If used improperly, demonstrative exhibits can distract the jury from considering all of the evidence presented, causing them instead to unfairly emphasize only portions of the evidence.
Furthermore, if not instructed on the limited purposes of demonstrative exhibits, the jury may assume that demonstrative exhibits constitute primary proof of the information contained therein, leading the jury to shirk its duty to determine the truth and accuracy of the evidence.
Given the possibility for such forms of prejudice, a trial judge must carefully consider the potential prejudice that may arise from the use of demonstrative exhibits during jury deliberations. Each demonstrative exhibit must be considered individually, because both the usefulness of a demonstrative exhibit and the potential prejudice arising from its use will depend on the form and substance of each particular exhibit. We note that a trial court is already required to weigh these considerations before allowing the use of demonstrative exhibits in trial.
Significantly, many of the dangers in allowing the use of demonstrative exhibits in jury deliberations stem from the improper use of such exhibits or a disregard for their limited purpose. As such, these dangers often can be avoided by the use of limiting instructions that advise a jury of the limited purpose for which demonstrative exhibits should be employed. As noted earlier, the limiting instruction is the most prevalent safeguard used by the circuit courts. Moreover, several circuits have held that limiting instructions can limit
In addition to jury instructions, there are other safeguards that can be employed to limit the prejudice that will result from allowing the jury to use demonstrative exhibits in deliberations. These safeguards include requiring the proponent of the exhibit to lay foundation for its use outside the presence of the jury,
As noted above, the prejudicial potential of any particular demonstrative exhibit will vary depending on the exhibit. Having presided over the presentation of evidence, the trial judge should exercise sound discretion to ensure that adequate safeguards are present to prevent that prejudice.
In the instant case, the district court employed no safeguards against prejudice before allowing the jury to use exhibit 36 during its deliberations. Exhibit 36 was "admitted" for use during trial in a pretrial conference, employed by the State in its opening statement, and used repeatedly throughout the trial. Yet, the court never informed the jury that exhibit 36 had been admitted for demonstrative purposes only or explained the proper purposes for which the jury might use a demonstrative exhibit. Although the State erroneously informed the jury in its opening statement that Pangborn had "stipulated" to exhibit 36, the court did not correct the implication that Pangborn agreed with the substantive content of the exhibit or take the opportunity to instruct the jury regarding the proper use of the exhibit. And even when submitting the case for the jury's consideration and sending all the exhibits to the jury room, the court failed to provide a jury instruction that exhibit 36 was admitted for demonstrative purposes only and specifically instruct the jury as to the proper purpose for use of the exhibit. In effect, the court gave the jury unlimited access to exhibit 36 — a clear and concise "road map" of the State's entire case against Pangborn and upon which the State had relied significantly during the presentation of evidence — without limiting or guiding the jury's use of that exhibit.
We conclude that the district court abused its discretion in permitting the jury to use exhibit 36 during its deliberations without providing a limiting instruction. That is not to say that a limiting instruction is always required; however, except in the rare case where other safeguards combine to make the limited purpose of the demonstrative exhibit abundantly clear to the jury, an appropriate limiting instruction will be necessary to avoid unfair prejudice.
Errors, other than structural errors, which occur within the trial and sentencing process, are subject to harmless error review.
Due to the complete absence of safeguards employed in the instant case when erroneously submitting the demonstrative exhibit to the jury, we cannot say that this error was harmless. Because the jury was never informed that exhibit 36 was admitted for only demonstrative purposes, it had no way of knowing that the standard instruction on exhibits admitted for limited purposes applied to the exhibit. And without any sort of guidance from the district court, the jury did not know that exhibit 36 was not substantive evidence of Pangborn's guilt.
The State argues that the jury's acquittal of Pangborn on 1 of 10 counts reflects that "the jury was not unduly influenced by Exhibit 36."
We cannot say that the jury's guilty verdicts were surely unattributable to the act of sending exhibit 36 to the jury during deliberations without a proper limiting instruction. We reverse Pangborn's convictions and remand the cause for a new trial.
The Double Jeopardy Clauses of the federal and state Constitutions do not forbid a retrial after an appellate determination of prejudicial error in a criminal trial so long as the sum of all the evidence admitted by the trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict.
Having found that the district court's decision to allow the jury to use exhibit 36 during deliberations without a limiting instruction or other safeguards was reversible error, we do not reach any of Pangborn's other assignments of error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.
Because we do not believe that the evidentiary foundation for exhibits 37 and 38 will be identical upon retrial, we do not discuss Pangborn's arguments regarding
We hold that a trial judge may exercise his or her broad judicial discretion to allow or disallow the use of demonstrative exhibits during jury deliberations. But given the prejudice that can arise from the use of demonstrative exhibits in jury deliberations, this discretion is not unlimited. Due to the lack of limiting instructions and the complete absence of safeguards employed in the instant case, the district court abused its discretion in allowing the jury to use the State's "road map" of its case — admitted for demonstrative purposes only — during deliberations without giving a limiting instruction. We find this error to be prejudicial. Therefore, we reverse the judgment and remand the cause for a new trial.
REVERSED AND REMANDED FOR A NEW TRIAL.
Connnnolly and Miller-Lerman, JJ., participating on briefs
