Category: Jury

When does a party waive their right to challenge a juror on appeal?

Posted on by Jeff Jaeger

Picture of jurors in a jury box

Sayedzada v. State (Nev. Ct. App. – May 24, 2018)

The Court of Appeals of Nevada addressed whether a criminal defendant waived his appellate argument of juror bias as to two jurors he passed for cause at trial.

Sayedzada attacked a condominium-complex security guard who confronted him after the guard noticed he was hiding something under his shirt and acting suspiciously. The guard subdued Sayedzada and called the police. The guard discovered Sayedzada had a purse hanging around his neck, which Sayedzada claimed to have found. The purse contained several credit cards belonging to a woman and her family. Additional credit cards were found scattered on the ground where Sayedzada had been sitting after the guard subdued him. Officers recovered a total of 13 credit cards. When police contacted the purse’s owner, she told them she was unaware her purse, which she had left in her unlocked car the night before, had been stolen. The State charged Sayedzada with 13 counts of possession of a credit or debit card without the cardholder’s consent, and he pleaded not guilty.

At the preliminary hearing, Sayedzada indicated that at trial he would seek to exclude evidence of the purse theft. The State stated it would not introduce that evidence, but acknowledged the jury would be able to draw that inference from the facts.

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Is it permissible to strike a prospective juror based on sexual orientation?

Posted on by Jeff Jaeger

Picture of two hands removing jurors from a jury box

Morgan (John) vs. State (Nev. Supreme Ct. – May 3, 2018)

The State used a peremptory challenge to strike a prospective juror, an identifiably gay member. The defendant made a Batson challenge against the State’s strike based on sexual orientation.

On October 30, 2014, Maria was working as a manager at an AM/PM convenience store when she saw a man grab a package of mixed nuts and put them into his pocket. Maria approached the man while he was at the checkout counter trying to pay for another item and asked him if he could please take out what he had placed into his pocket. The man told Maria to “get the f_ _ _ out of [his] face,” and as she backed up in response, he approached and hit her in the chest. Maria fell to the ground, got up, and hit the man’s backpack with a stick as he left the store. The man’s backpack ripped and containers of soup fell out. Maria called the police and indicated where the man departed. Police detained the man and identified him as Morgan. The State then charged Morgan by way of criminal complaint and information with one count of robbery and one count of battery with intent to commit a crime.

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Is it a constitutional error when a judge fails to swear in potential jurors?

Posted on by Jeff Jaeger

Barral v. State (Nev. Supreme Ct. – July 23, 2015)

The issue is whether a district court commits structural error when it fails to administer an oath to the jury panel, pursuant to NRS 16.030(5), prior to commencing voir dire.

Barral was charged with sexually assaulting a child. His case proceeded to a jury trial. At the beginning of voir dire, both the prosecution and defense explained to the potential jurors the importance of answering their questions honestly. After questioning the first potential juror, the following bench conference took place:

MR. BECKER [for Barral]: My recollection may not be correct, but I think it’s possible that the panel was not sworn in.
THE COURT: They aren’t.
MR BECKER: Okay.
THE COURT: I don’t swear them in until the end.
MR. BECKER: Okay. In other words, admonish [the jury] that they are to give truthful answers to all the questions—
MS. FLECK [for the State]: Yeah[.]
MR. CASTILLO [for Barral]: That’s fine.

….

THE COURT: —I won’t swear them in.
MR. BECKER: Okay.
THE COURT: Because the ones who are sworn in; that’s the panel.
MR. BECKER: Right.

….

MS. FLECK: But do we have to give them the oath that they have to tell the truth[?]
THE COURT: No.
MS. FLECK: Or no?
THE COURT: No.
MS. FLECK: Okay.
THE COURT: No.
MS FLECK: Okay.

The court then proceeded with voir dire. The district court clerk swore in the petit jury at the beginning of the second day of trial. After both parties rested and presented closing arguments, the jury deliberated for approximately three hours and returned guilty verdicts on both charges. Following a post-trial motion for acquittal that the court denied, Barral appealed.

Barral claimed that the district court committed structural error requiring reversal when it failed to comply with NRS 16.030(5) and administer the oath to the jury venire before voir dire. He argued that the court’s error compromised his right to trial by an impartial jury because potential jurors may not have felt obligated to respond truthfully during voir dire, as the court did not place them under oath. The State contended that the potential jurors understood that they were required to answer truthfully because the court and counsel for both sides repeatedly stressed to the venire the importance of answering their questions honestly. The State also argued that the court’s error did not undermine the framework of the trial.

The Nevada Supreme Court noted that although NRS 16.030(5) is articulated in the civil practice section of the Nevada Revised Statutes, it applies to criminal proceedings through NRS 175.021(1). The Court explained that NRS 16.030(5) does not give the district courts discretion: “the judge or the judge’s clerk shall administer an oath or affirmation.” Thus, the Court concluded that the district court violated NRS 16.030(5) in the instant case when, according to its apparent general preference, it failed to administer the oath to the venire. Neither party disputed that the district court erred by violating NRS 16.030(5). However, a district court’s error will not always entitle a convicted defendant to a new trial. The type of relief, if any, to which a criminal defendant is entitled following a trial court’s violation of NRS 16.030(5) was an issue of first impression for the Court.

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Must a court strike a juror whose background implies bias, but asserts they can be impartial?

Posted on by Jeff Jaeger

Sanders v. Sears-Page (Nev. Ct. App. – July 16, 2015)

When a juror is biased against a party, that juror must be struck from the jury. The issue is whether the district court erred in declining to strike an empaneled juror whose background experience implied bias, but who asserted he could be impartial.

This case arises from a jury trial on a personal injury claim for damages following a 2009 car accident. Sears-Page made a right turn from a left-hand lane and hit Toni Sanders’ car. Initially, the accident appeared minor as neither party claimed injuries at the scene. A few days later, Sanders purportedly began experiencing neck pain that worsened over time. Sanders and her husband, Robert, sued Sears-Page for negligence to recover damages, including medical expenses. Sears-Page admitted liability but denied causation and damages.

Sanders’ injuries

The central issues at trial involved whether the accident had caused or contributed to Sanders’ injury and, if so, whether Sanders’ claimed medical expenses were reasonable. Sanders, who had chronic back pain, had previously experienced neck pain in 2004 from a bone spur. But, she denied having neck pain in the years immediately preceding the accident, and two of her treating physicians testified the accident with Sears-Page caused Sanders’ 2009 neck pain. Both doctors also testified Sanders’ medical procedures and surgeries following the accident to alleviate pain were reasonably necessary.

To support her claimed damages, Sanders presented medical records and bills from Nevada Spine Clinic. Those records were generated primarily by treatment from Doctors Grover, Ghuman, and Rosler, but many records were generated by other doctors and medical professionals at Nevada Spine Clinic. Of the people who treated Sanders at Nevada Spine Clinic, only Dr. Grover testified at trial. Dr. Grover was one of several doctors at that clinic who treated Sanders for chronic back pain before the 2009 accident and also treated her for neck pain after the accident, and testified all of Sanders’ medical bills from Nevada Spine Clinic were reasonable.

Sears-Page denied Sanders’ injuries occurred as a result of the automobile accident. Instead, Sears-Page asserted Sanders’ symptoms arose from a preexisting degenerative medical condition. In opening statements, Sears-Page emphasized that Dr. Grover sold Sanders spine surgery and the doctors at Nevada Spine Clinic encouraged unnecessary surgery and medical procedures for their own financial gain. Sears-Page argued she should not have to pay for Sanders’ unnecessary medical expenses, which were purposely inflated by Nevada Spine Clinic.

During trial, Sears-Page’s retained medical experts, Dr. Schifini and Dr. Duke, both testified Sanders’ medical records showed a preexisting degenerative condition that developed over the course of several years, and her post-accident medical records were devoid of trauma to her neck. Both experts opined the accident did not cause Sanders’ medical condition or contribute to her current neck pain. Dr. Duke further noted Sanders’ medical history prior to the accident included treatment for neck pain in 2004 and 2009, which supported his opinion that Sanders’ degenerative condition alone caused her current neck pain.

Both experts testified Sanders’ surgery and medical procedures performed by Nevada Spine Clinic doctors were unnecessary and unreasonable. Further, they emphasized the clinic doctors’ fees were significantly higher than average doctor’s fees. Sears-Page argued Nevada Spine Clinic’s physicians’ practice of referring patients like Sanders to medical facilities owned by the physicians not only benefited the physicians financially, but also inflated Sanders’ medical bills.

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Is it a constitutional error if a court fails to notify the parties about a note from a jury?

Posted on by Jeff Jaeger

Manning v. State (Nev. Supreme Ct. – May 07, 2015)

A man entered the ABC Beer and Wine Store in Las Vegas where Potente was working. Potente recognized the man because she had seen him in the store two to three times before. During one of his prior visits, he spoke to Potente about selling either DVDs or CDs. When the man robbed the store, Potente stated that he looked around the store and then proceeded around the counter to where she stood behind the cash register. According to Potente, the man roughly pushed her aside and went to a set of plastic drawers where the store kept gaming money and receipts in envelopes, he took an envelope, and he then left the store. The robbery took approximately one minute to complete.

Three days after the incident, a responding officer returned to the convenience store with a six-person photo lineup. The officer showed Potente the lineup and asked her if she saw anyone in it that she recognized. Potente promptly identified Manning as the individual who came into the store that day and took the envelope. Manning was arrested after police discussed the case with Schafer, who was acquainted with Manning. The State subsequently charged Manning with burglary, battery with intent to commit a crime with a victim 60 years of age or older, and robbery with a victim 60 years of age or older.

The case proceeded to trial. The jury retired for deliberations late in the day and, about an hour later, gave the court a note indicating that it was deadlocked 10-2 in favor of conviction. The court instructed the marshal to tell the jury to come back the next day and continue deliberating. The court failed to inform the parties of the note until the next day after the jury returned its verdict finding Manning guilty of all charges.

After receiving the verdict and learning of the jury’s note that it was deadlocked, Manning filed a motion for a new trial. Manning argued that a new trial was warranted because he did not receive notice that the jury considered itself deadlocked, thus depriving him of his right to request a mistrial. The court denied the motion because the jury’s note did not contain a question about law or evidence.

The district court entered a judgment of conviction, sentencing Manning to six to 15 years in the Nevada Department of Corrections. Manning appealed.

The Nevada Supreme Court noted that the Ninth Circuit has determined that a district court’s failure to notify defense counsel about a jury’s inquiry during deliberations violates the defendant’s constitutional right to counsel during a critical stage of trial. See Musladin v. Lamarque, 555 F.3d 830, 840-43 (9th Cir. 2009). Accordingly, the presence of both the defendant and his or her counsel is required when discussing questions from the jury because counsel might object to the instruction or may suggest an alternative manner of stating the message, a critical opportunity given the great weight that jurors give a judge’s words. The defendant’s or attorney’s presence may also be an important opportunity to try and persuade the judge to respond.

Thus, the Court believed that due process gives a defendant the right to be present when a judge communicates to the jury, whether directly or via his or her marshal or other staff. A defendant also has the right to have his or her attorney present to provide input in crafting the court’s response to a jury’s inquiry. The Court held that a court violates a defendant’s due process rights when it fails to notify and confer with the parties after receiving a note from the jury. Therefore, the Court concluded that the district court erred in this regard in Manning’s case.

The Court also held that when a district court responds to a note from the jury without notifying the parties or counsel or seeking input on the response, the error will be reviewed to determine if it was harmless beyond a reasonable doubt.

The Court concluded that the district court’s error was harmless beyond a reasonable doubt. In this case, at the end of the day, after only a little more than an hour of deliberations, the jury’s note informed the district court that it was deadlocked 10-2. In response, the district court told the marshal to excuse the jury for the day and instruct them to return the next day to continue deliberations. The message that the district court instructed the marshal to give to the jury was simple and did not contain any legal instructions. Although the district court should have reconvened the proceedings and, on the record, discussed the jury’s note and conferred with counsel in developing a response, the Court did not believe that the result here would have been substantively different had it done so. It was unlikely that after only an hour of deliberations, the district court would have proffered additional instructions to the jury or required the jurors to continue deliberating past 5 p.m. Moreover, the Court believed that the district court correctly directed its marshal to excuse the jury and tell them to return the next day to continue deliberating. It was unlikely that the marshal would have altered this simple instruction in any meaningful or prejudicial manner. Therefore, the Court concluded that this error did not warrant reversal.

What happens when an attorney fails to object to a constitutional error at trial?

Posted on by Jeff Jaeger

Martinorellan v. State (Nev. Supreme Ct. – Feb. 26, 2015)

In this case, the Nevada Supreme Court considered the district court’s failure to instruct a jury to restart deliberations as is required by NRS 175.061(4) after an alternate juror replaced a regular juror.

“Martinorellan entered a smoke shop and stabbed the store’s owner while attempting to commit a robbery. At trial, the jury deliberated for approximately 1 hour and 15 minutes before the district court convened a hearing, dismissed a juror who stated that he knew the victim, and replaced that juror with an alternate juror. The district court did not recall the jury to the courtroom or instruct it to restart deliberations. Martinorellan did not object to the district court’s decision not to recall the jury and instruct it to restart deliberations. The reconstituted jury deliberated for nearly 4 hours and 30 minutes over two days and viewed a playback of testimony before convicting Martinorellan of burglary while in possession of a deadly weapon, attempted robbery with the use of a deadly weapon, and battery with the use of a deadly weapon.”

On appeal, Martinorellan argued that the failure to instruct the jury to restart deliberations after an alternate juror replaced an original juror was an error of constitutional dimension because it interfered with his constitutional right to a trial by a fair and impartial jury. The State argued that this error was not of constitutional dimension because the district court did not prevent the jury from restarting deliberations after the alternate juror was seated.

The Nevada Supreme Court reasoned that the failure to instruct a jury to restart deliberations after an alternate juror replaces an original juror during deliberations can create the risk of the original jurors exerting undue influence on the alternate juror. Since this infringes on a defendant’s right to a trial by an impartial jury, the Court held that the district court’s failure to instruct the jury to restart deliberations was an error of constitutional dimension.

What standard of review for unpreserved constitutional errors?

At trial, Martinorellan did not object to the district court’s decision not to recall the jury.  However, he argued that the standard of review for an unpreserved constitutional error should be the same as that for a preserved constitutional error. Citing Johnson v. United States, 520 U.S. 461, 465-66 (1997), the Court held that all unpreserved errors are to be reviewed for plain error without regard as to whether they are of constitutional dimension.

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