State v. Barranco

CONCLUSION
We do not find any merit to Sack’s assignments of error.
Sack was aware of the sick leave policy when he was hired
by the State, and he acquiesced to those policies by accepting
continued employment. Furthermore, Sack has not shown that
L.B. 340 is unconstitutional or that he has been deprived of a
property right.
A ffirmed.
StAte of NebrASkA, Appellee , v.
luiS o. bArrANco, AppellANt.
769 N.W.2d 343
Filed July 24, 2009. 	No. S-08-142.
1. Criminal Law: Juries. Under Neb. Rev. Stat. § 29-2022 (Reissue 2008), the
defendant has the right to have the jury kept together until the jury agrees upon a
verdict or is discharged by the court.
2. ____: ____. The basic purpose of Neb. Rev. Stat. § 29-2022 (Reissue 2008) is to
preserve the right to a fair trial by shielding the jury from improper contact by
others and restricting the opportunities for improper conduct by jurors during the
course of their deliberations.
3. Criminal Law: Juries: Presumptions: Proof. In the absence of express agree-
ment or consent by the defendant, a failure to comply with Neb. Rev. Stat.
§ 29-2022 (Reissue 2008) by permitting the jurors to separate after submission of
the case is erroneous, creates a rebuttable presumption of prejudice, and places
the burden upon the prosecution to show that no injury resulted.
4. Trial: Words and Phrases: Appeal and Error. Structural errors are errors so
affecting the framework within which the trial proceeds that they demand auto-
matic reversal.
5. ____: ____: ____. Trial errors generally occur during the presentation of the case
to the jury and may therefore be quantitatively assessed in the context of other
evidence presented in order to determine whether they were harmless beyond a
reasonable doubt.
6. Judges: Recusal. In evaluating a trial judge’s alleged bias, the question is
whether a reasonable person who knew the circumstances of the case would ques-
tion the judge’s impartiality under an objective standard of reasonableness, even
though no actual bias or prejudice was shown.
7. Courts. Vertical stare decisis compels lower courts to follow strictly the decisions
rendered by higher courts within the same judicial system.
8. Courts: Judges. A judge who disagrees with a statute or a decision of a higher
court may express that disagreement, but must do so in a way that is consistent
with his or her obligation to do what the law requires.
STATe v. BARRANCO 	165
Cite as 278 Neb. 165
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

Appeal from the District Court for Lancaster County: Jeffre
cheuvroNt, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, and
Robert G. Hays for appellant.
Jon Bruning, Attorney General, and erin e. Leuenberger for
appellee.
Wright, coNNolly, gerrArd, StephAN, mccormAck, and
miller-lermAN, JJ.
gerrArd, J.
Nebraska law provides that in a criminal case, “[w]hen a
case is finally submitted to the jury, they must be kept together
in some convenient place, under the charge of an officer, until
they agree upon a verdict or are discharged by the court.”1
Although this provision can be waived by agreement of the
defendant and the State, it is otherwise mandatory.2
In this case, the district court indicated that although the
defendant had not waived sequestration, the court intended to
allow the jury to separate if a verdict had not been reached
by the end of the day. But the jury actually reached a guilty
verdict the same morning the case was submitted, so it never
separated. Nonetheless, the defendant appeals, claiming the
court erred. Because the law was actually complied with in this
case, we find no reversible error. Therefore, we affirm.
BACKGROUND
Luis O. Barranco was charged by information with one
count of strangulation and one count of domestic assault in the
third degree.3 The matter proceeded to a jury trial in the district
court. evidence was adduced by the State and Barranco, and
the parties rested.
At the jury instruction conference, Barranco objected to the
court’s proposed jury instruction No. 14, which provided in
1 Neb. Rev. Stat. § 29-2022 (Reissue 2008).
2 See State v. Robbins, 205 Neb. 226, 287 N.W.2d 55 (1980).
3 See Neb. Rev. Stat. §§ 28-310.01 and 28-323 (Reissue 2008).
166 	278 NeBRASKA RePORTS

relevant part that “[i]f you do not agree on a verdict by 5:00
o’clock p.m. each evening, you may recess your deliberations
until 9:00 o’clock a.m. the following working day morning.
When you do separate, during that time, you are not allowed
to discuss this case with anyone, even another juror.” Barranco
objected on the ground that “the law in the State of Nebraska
is the jury is to be kept together until they reach a verdict so I
would object to the jury being allowed to separate.” The court
overruled the objection.
Because the court’s explanation of its decision is important
to understanding Barranco’s appellate argument, we quote the
judge’s discussion of the subject at some length:
Well, I’ve given this a great deal of thought and the
one thing I noted is that the applicable statute, Section
29-2022 appears to have not been amended since before
1929 and perhaps it hasn’t been amended since sometime
in the 19th century. And arguably when perhaps only men
served as jurors, we are all aware that sequestration can
cause undue hardship to people such as single parents or
parents who are both employed.
Although I don’t think it is up to me to change the
statute and all of us have certain quarrels with statutory
schemes of various types, it is up to the Legislature to
change those. But it seems to me that the statute is not
compatible with modern society and if we excused every-
one from jury service that sequestration could cause a
hardship for, the result certainly would be a jury that’s
not representative of the community. Sequestration results
in hardship and inconvenience to court personnel and
increases dramatically the costs of trials, since our experi-
ence has been that hotels often charge for the rooms even
when they are cancelled.
I’ve been on the district court bench in excess of 24
years and I’m generally familiar with the rare sequestra-
tion of juries in other districts in the state and the fact that
private practice criminal defense attorneys in this county
rarely, if ever, request the jury be sequestered except in
the most serious type of cases and even then it is some-
times not done.
STATe v. BARRANCO 	167
Cite as 278 Neb. 165

This is a simple case. It involves a Class IV felony and
a Class I misdemeanor.[4] There has been no publicity and
it is safe to conclude there will be none. There is abso-
lutely no reasonable reason to require that the jur[ors] be
sequestered, which would be a hardship on them.
I am aware of the Robbins case at 205 Neb. 226,[5]
which was decided in 1980 which was over 27 years ago,
and although I don’t think the Supreme Court would rule
otherwise, they perhaps should be given an opportunity
to revisit the case in view of modern society or if the
court concludes that any change must come from the
Legislature, perhaps the decision of the Supreme Court
denying the trial judge’s discretion to not order sequestra-
tion would serve as an impetus for legislative action.
As stated in Robbins, the statute is aimed to protect the
defendant’s right to a fair trial. Considering the nature of
the charges and the complete lack of publicity or public
interest in this case, I have concluded that sequestration
is not necessary to preserve . . . Barranco’s right to a fair
trial particularly if appropriate, supplemental, cautionary
instructions are given to the jur[ors] if they do not reach a
verdict by the end of the day tomorrow.
So the objection to Instruction 14 will be overruled.
At 8:55 a.m. the following day, before the jury was instructed,
Barranco again objected to the court’s decision not to sequester
the jurors. The court conceded that Barranco’s understanding
of the law was correct, but said that “the court has made a
decision and the court is going to stay with that decision.” The
judge explained:
I don’t know what goes on in the minds of people out in
the state or in other districts. It may be that there is an
undercurrent or a subtle understanding in those districts
that if the defendant does not waive sequestration, that if
the defendant is convicted then when it comes time for
sentencing it would be an adverse situation for the defend-
ant. I have never thought that way. I don’t think I’ve ever
4 See id.
5 See Robbins, supra note 2.
168 	278 NeBRASKA RePORTS

let it be known that I would do that and the judges of this
district certainly would never take basically, if you want
to put it that way, take it out on the defendant. . . .
But in any event, I’m not going to send the jury home
to get overnight things right now so your request will
be denied.
Barranco moved for a mistrial and asked the judge to recuse
himself and assign the matter to a different judge. The court
overruled the motions for mistrial and recusal.
Following those rulings, closing arguments were had and
the jury was instructed. Instruction No. 14 was given as quoted
above. The case was submitted to the jury at 10:04 a.m. Court
resumed at 11:20 a.m., at which time the jury returned a verdict
of guilty on the assault charge, but not guilty on the strangula-
tion charge.
The 	court 	accepted 	the 	verdicts 	and 	entered 	judgment
accordingly. Barranco filed a motion for new trial alleging that
the court’s refusal to sequester the jurors violated his constitu-
tional rights. The court found that because the jury had never
separated, Barranco had not been prejudiced, and overruled
the motion for new trial. Barranco was sentenced to 180 days’
imprisonment. He appeals.
ASSIGNmeNT OF eRROR
Barranco assigns that the district court erred in refusing to
sequester the jury during deliberations.
ANALySIS
[1] As briefly mentioned above, § 29-2022 provides that in
a criminal case,
[w]hen a case is finally submitted to the jury, they
must be kept together in some convenient place, under the
charge of an officer, until they agree upon a verdict or are
discharged by the court. The officer having them in charge
shall not suffer any communication to be made to them,
or make any himself, except to ask them whether they
have agreed upon a verdict, unless by order of the court;
nor shall he communicate to anyone, before the verdict
is delivered, any matter in relation to the state of their
deliberations. If the jury are permitted to separate during
STATe v. BARRANCO 	169
Cite as 278 Neb. 165

the trial, they shall be admonished by the court that it is
their duty not to converse with or suffer themselves to be
addressed by any other person on the subject of the trial,
nor to listen to any conversation on the subject; and it is
their duty not to form or express an opinion thereon until
the cause is finally submitted to them.
We have explained that under § 29-2022, the defendant has the
right to have the jury kept together until the jury agrees upon a
verdict or is discharged by the court.6
[2,3] The basic purpose of § 29-2022 is to preserve the right
to a fair trial by shielding the jury from improper contact by
others and restricting the opportunities for improper conduct by
jurors during the course of their deliberations.7 In the absence
of express agreement or consent by the defendant, a failure to
comply with § 29-2022 by permitting the jurors to separate
after submission of the case is erroneous, creates a rebuttable
presumption of prejudice, and places the burden upon the
prosecution to show that no injury resulted.8 Consequently, the
issue is whether there was improper contact or communication
with or by the jurors during separation which resulted in preju-
dice to the defendant.9
Obviously, there was no prejudice in this case. more funda-
mentally, the court did not fail to comply with § 29-2022. The
record establishes that after the case was submitted, the jurors
were kept together until they agreed upon a verdict. Whatever
the district court’s intentions might have been, the requirements
of § 29-2022 were met in this case. Barranco does not argue
otherwise—he does not argue that the jury actually separated
after the case was submitted or that the giving of instruction
No. 14 was somehow prejudicial. Nor is any prejudice from the
giving of instruction No. 14 apparent, given that it is substan-
tially the same as the pattern instruction that is given in cases
where sequestration is waived.10
6 See State v. Bao, 263 Neb. 439, 640 N.W.2d 405 (2002).
7 Robbins, supra note 2.
8 Bao, supra note 6; Robbins, supra note 2.
9 Id.
10 See NJI2d Crim. 9.0.
170 	278 NeBRASKA RePORTS

[4,5] Instead, Barranco argues that the court’s intended
refusal to sequester the jury constitutes structural error, requir-
ing reversal. Structural errors are errors so affecting the frame-
work within which the trial proceeds that they demand auto-
matic reversal.11 They are distinguished from trial errors, which
generally occur during the presentation of the case to the jury
and may therefore be quantitatively assessed in the context of
other evidence presented in order to determine whether they
were harmless beyond a reasonable doubt.12
We have clearly established that failure to comply with
§ 29-2022 does not demand reversal if the defendant was not
prejudiced.13 As we understand Barranco’s argument, he is
trying to distinguish between simple failure to comply with
§ 29-2022 and deliberate refusal to do so. There is no basis for
such a distinction, but more importantly, as explained above,
§ 29-2022 was actually complied with in this case. The court
may have intended to disobey § 29-2022, but it never actually
happened. The distinction between structural and trial error is
not implicated when no error is actually committed.
Barranco also argues that trial before a judge who is not
impartial constitutes structural error. We agree.14 But Barranco
has not assigned error to the court’s denial of his motion to
recuse, nor does he direct us to anything in the record reflect-
ing an actual bias against him. In fact, he concedes that this
case involves neither a personal animosity toward the defend-
ant or his attorney nor any conflict of interest; instead, he
asserts that “this case involves judicial bias which is based
upon the judge’s personal disagreement with the law he is
charged with enforcing.”15
[6] But under the standard we have articulated for evalu-
ating a trial judge’s alleged bias, the question is whether a
11 See State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007), cert. denied
552 U.S. 1065, 128 S. Ct. 715, 169 L. ed. 2d 560.
12 See id.
13 See, Bao, supra note 6; Robbins, supra note 2.
14 See McKinney, supra note 11.
15 Brief for appellant at 29.
STATe v. BARRANCO 	171
Cite as 278 Neb. 165

reasonable person who knew the circumstances of the case
would question the judge’s impartiality under an objective
standard of reasonableness, even though no actual bias or prej-
udice was shown.16 The court’s disagreement with § 29-2022
and our application of it does not suggest that the court was not
impartial toward the parties. The court’s reasoning, although
inconsistent with precedent, clearly articulated the court’s
belief that strict enforcement of § 29-2022 was not essential
to Barranco’s right to a fair trial. And there is no basis on this
record to conclude that he actually received anything less than
a fair trial.
[7,8] Obviously, we cannot countenance the court’s con-
duct. Some of the court’s concerns about whether § 29-2022
remains sound policy in the context of modern trial practice
may certainly be worthy of further debate. Nonetheless, this is
fundamentally a question of public policy, and it is the func-
tion of the Legislature through the enactment of statutes to
declare what is the law and public policy of this state.17 Our
decisions applying § 29-2022 are grounded in the plain lan-
guage of the statute,18 which we are not at liberty to change.19
Vertical stare decisis compels lower courts to follow strictly
the decisions rendered by higher courts within the same
judicial system,20 and the most fundamental underpinning of
our judicial system is the law, not the personal beliefs of the
men and women who are privileged to serve as judges.21 A
judge who disagrees with a statute or a decision of a higher
court may express that disagreement, but must do so in a way
that is consistent with his or her obligation to do what the
law requires.
But in this case, regardless of the district court’s intentions,
no error actually occurred. And the court’s expression of its
16 See State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998).
17 See State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
18 See, Bao, supra note 6; Robbins, supra note 2.
19 See State v. Warriner, 267 Neb. 424, 675 N.W.2d 112 (2004).
20 State v. Hausmann, 277 Neb. 819, 765 N.W.2d 219 (2009).
21 State v. Nichols, 8 Neb. App. 654, 600 N.W.2d 484 (1999).
172 	278 NeBRASKA RePORTS

disagreement with § 29-2022 neither harmed Barranco nor
suggested any bias against him. Therefore, we find Barranco’s
sole assignment of error to be without merit.
CONCLUSION
For the foregoing reasons, the judgment of the district court
is affirmed.
A ffirmed.
heAvicAN, C.J., not participating.
StAte of NebrASkA, Appellee , v.
michAel J. guNther , AppellANt.
768 N.W.2d 453
Filed July 24, 2009. 	No. S-08-631.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the district court’s findings
will not be disturbed unless they are clearly erroneous.
2. Postconviction: Constitutional Law: Proof. In a motion for postconviction
relief under the Nebraska Postconviction Act, Neb. Rev. Stat. §§ 29-3001 through
29-3004 (Reissue 2008), the defendant must allege facts which, if proved,
constitute a denial or violation of his or her rights under the U.S. or Nebraska
Constitution, causing the judgment against the defendant to be void or voidable.
3. Right to Counsel: Effectiveness of Counsel. A defendant who elects to repre-
sent himself or herself cannot thereafter complain that the quality of his or her
own defense amounted to a denial of effective assistance of counsel.
4. Constitutional Law: Right to Counsel. There is no federal Sixth Amendment
constitutional right to effective assistance of standby counsel, and there is no
right to effective assistance of standby counsel under Neb. Const. art. I, § 11.
Appeal from the District Court for Sarpy County: WilliAm
b. ZASterA, Judge. Affirmed.
Donald L. Schense, of Law Office of Donald L. Schense, for
appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
heAvicAN, 	c.J., 	Wright, 	coNNolly, 	gerrArd, 	StephAN,
mccormAck , and miller-lermAN, JJ.
STATe v. GUNTHeR 	173
Cite as 278 Neb. 173