Tag: Constitutional Error

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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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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