concurring.
Although I consider suspect the district court’s finding that no juror read beyond the headline and subhead of the article, I cannot on the record presented conclude that it is clearly wrong. Thus, I accept that this case must be decided on the basis that no juror read the portions of the article revealing that the defendant, Martin L. Anderson, had previously been convicted of and received a life sentence for second degree murder on account of the events in question and that the only information imparted by the article to the jury is that it was sitting in judgment of a “retrial.”
The common definition of retrial is simply that it is a second trial. Webster’s Third New International Dictionary, Unabridged 1940 (1993). See, also, Black’s Law Dictionary 1317 (6th ed. 1990), defining the word as a “new trial of an action which has already been once tried.” Thus, in the absence of Anderson’s establishing that the word meant something else to any juror, such as that he had previously been convicted, he failed to sustain his burden of proving that he was prejudiced by the misconduct of any juror. See State v. McDonald, 230 Neb. 85, 430 N.W.2d 282 (1988) (where jury misconduct involves juror behavior only, burden to establish prejudice rests on party claiming misconduct). See, also, State v. West, 217 Neb. 389, 350 N.W.2d 512 (1984).
Nevertheless, I cannot help but wonder where the bailiff was while the jury was assembling and how the newspaper made its way into the jury room. The fact that prejudice was not demonstrated in this instance does not mean that under similar circumstances none will be demonstrated in a future case.