{"id":3752,"date":"2018-05-28T07:05:58","date_gmt":"2018-05-28T14:05:58","guid":{"rendered":"http:\/\/www.jeffjaeger.com\/nvapp\/?p=3752"},"modified":"2018-12-15T10:03:14","modified_gmt":"2018-12-15T18:03:14","slug":"when-does-party-waive-their-right-challenge-juror-appeal","status":"publish","type":"post","link":"https:\/\/www.jeffjaeger.com\/nvapp\/2018\/05\/28\/when-does-party-waive-their-right-challenge-juror-appeal\/","title":{"rendered":"When does a party waive their right to challenge a juror on appeal?"},"content":{"rendered":"

\"Picture<\/a><\/p>\n

Sayedzada v. State (Nev. Ct. App. \u2013 May 24, 2018)<\/strong><\/p>\n

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.<\/p>\n

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\u2019s 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\u2019s consent, and he pleaded not guilty.<\/p>\n

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.<\/p>\n

<\/p>\n

During voir dire, Sayedzada initially challenged prospective jurors 7, 29, 37, and 38 for cause. The district court allowed a traverse of the challenged jurors before making its ruling. After each side finished questioning the prospective jurors, Sayedzada renewed his challenges to prospective jurors 29 and 38, but expressly declined the court\u2019s invitation to make further challenges and did not renew his challenges as to prospective jurors 7 and 37. The district court denied Sayedzada\u2019s two challenges for cause without explanation, and Sayedzada used his peremptory challenges to exclude prospective jurors 29 and 38 from the jury panel. Prospective jurors 7 and 37 were empaneled, and Sayedzada accepted the jury panel without further objection. The jury convicted Sayedzada on all charges following a two-day trial. Sayedzada appealed.<\/p>\n

On appeal, Sayedzada contended, among other issues, that the district court\u2019s denial of his challenges for cause required reversal because prospective jurors 7 and 37 were empaneled, which in turn prejudiced his case.<\/p>\n

Did Sayedzada waive his right to challenge jurors 7 and 37 on appeal?<\/u><\/em><\/p>\n

Sayedzada argued the empaneled jury was not fair and impartial because it included jurors 7 and 37, whom he had initially objected to for cause below. Sayedzada claimed these jurors gave answers during voir dire that indicated they were biased. When questioned at oral argument as to whether his failure to maintain an objection below waived the claim, Sayedzada conceded that he failed to renew his challenge for cause with respect to these jurors after they were traversed as to bias. But Sayedzada argued his counsel\u2019s actions below were irrelevant under Blake v. State<\/a><\/em>, 121 Nev. 779, 796, 121 P.3d 567, 578 (2005), which he contended required the Court of Appeals of Nevada to reverse the verdict if any biased juror is empaneled, regardless of whether the party challenged that juror for cause below.<\/p>\n

The Court explained<\/a> that Blake<\/a><\/em> does not stand for the broad proposition Sayedzada argued. The Supreme Court of Nevada concluded in Blake<\/a><\/em> that, even had the district court abused its discretion by denying a for-cause challenge to a juror, the error was not reversible where the defendant failed to show, or even argue that any juror actually empaneled was unfair or biased. Notably, the appellant in Blake<\/a><\/em> preserved his argument for appeal by challenging the juror below. Thus, Blake<\/a><\/em> simply comports with the general rule echoed in other Nevada cases that erroneously failing to strike a juror for cause is not reversible error where the jury actually empaneled is impartial. See, e.g., Preciado v. State<\/a><\/em>, 130 Nev. 40, 44, 318 P.3d 176, 178 (2014) (\u201cA district court\u2019s erroneous denial of a challenge for cause is reversible error only if it results in an unfair empaneled jury.\u201d); Weber v. State<\/a><\/em>, 121 Nev. 554, 581, 119 P.3d 107, 125 (2005) (\u201cAny claim of constitutional significance must focus on the jurors who were actually seated, not on excused jurors.”); see also Ross v. Oklahoma<\/a><\/em>, 487 U.S. 81, 88 (1988) (noting peremptory challenges \u201care a means to achieve the end of an impartial jury\u201d).<\/p>\n

The Court noted<\/a> that the issue before it was whether a defendant may waive subsequent challenges to the seating of a juror where the record demonstrates the defendant was aware of the particular facts below; the defendant consciously elected not to pursue, or abandoned, a challenge for cause based on these facts; and the defendant accepted the juror\u2019s presence on the jury. The Court further noted<\/a> that the Supreme Court of Nevada has held, albeit not recently, that a defendant does waive the right to challenge the seating of a juror under such circumstances. See McCall v. State<\/a><\/em>, 97 Nev. 514, 516, 634 P.2d 1210, 1211 (1981); State v. Hartley<\/em>, 22 Nev. 342, 357, 40 P. 372, 374 (1895); State v. Anderson<\/em>, 4 Nev. 265, 279 (1868).<\/p>\n

The Court explained<\/a> that the Supreme Court of Nevada first addressed this issue in 1868 in State v.<\/em> Anderson, <\/em>4 Nev. 265 (1868). There, during voir dire, a juror stated \u201che had formed and expressed an unqualified opinion as to the guilt or innocence of the prisoner, but subsequently had modified that opinion\u201d Id.<\/em> Defense counsel \u201cfailed to challenge the juror for either implied or actual bias, but accepted him without objection.\u201d Id.<\/em> Anderson attempted to challenge the juror on appeal, and the Supreme Court of Nevada concluded he could not raise this objection on appeal. Specifically, the court held:<\/p>\n

If the prisoner accepts a juror without objection, whom he knows to have formed and expressed an unqualified opinion, he cannot, after verdict, raise this objection. If he willfully takes his chance with such a juror, he must abide the result. Otherwise a prisoner could always get a new trial by simply refusing to exercise his unquestioned right to challenge such jurors for implied bias.<\/p>\n

Id.<\/em><\/p>\n

The Court noted<\/a> that the Supreme Court of Nevada again addressed the issue of waiver in Hartley<\/em>. 22 Nev. at 354-57, 40 P. at 373-74. In that case, during voir dire several jurors each \u201canswered that he had formed an unqualified opinion as to the guilt or innocence of [Hartley].\u201d Id.<\/em> at 354, 40 P. at 373. Hartley accepted the jurors without objection and subsequently argued on appeal that because these jurors should have been disqualified, he was denied his right to a fair and impartial trial. Id.<\/em> at 354-55, 40 P. at 373. Looking to the common law and Nev. Gen. Stat. \u00a7 4214 (1861), the court found that, under both, \u201ca defendant could waive an objection to a juror, and that he did waive it unless the challenge was taken prior to the jury being completed; and especially was this the case when the ground of challenge was then known.\u201d Id.<\/em> at 355-56, 40 P. at 373-74 (noting this view is further supported by caselaw, including Anderson<\/em>). The court further held that \u201cin such case, after verdict, [the defendant does not have a] constitutional ground for the objection that he has not been tried by a \u2018constitutional jury.\u2019\u201d Id.<\/em> at 357, 40 P. at 374.<\/p>\n

The Court explained<\/a> that the Supreme Court of Nevada has cited Anderson<\/em> and Hartley<\/em> on several occasions, recognizing their holdings that a defendant can waive the right to raise a challenge to juror bias on appeal. See Maxey v. State<\/a><\/em>, 94 Nev. 255, 256, 578 P.2d 751, 752 (1978) (citing Hartley<\/em> and holding where a defendant has knowledge of misconduct during voir dire, he must immediately assert his right to a mistrial or he will be deemed to have waived any alleged error); Hanley v. State<\/a><\/em>, 83 Nev. 461, 464, 434 P.2d 440, 442 (1967) (citing Anderson<\/em> and Hartley<\/em> in context of determining whether a change of venue is warranted due to the inability to obtain an impartial jury); State v. McMahon<\/em>, 17 Nev. 365, 370, 30 P. 1000, 1001 (1883) (citing Anderson<\/em> in context of finding that a provision, which required a jury sworn to try an indictment for a felony be kept together until finally discharged by the court, may be waived); State v. Borowsky<\/em>, 11 Nev. 119, 127 (1876) (citing Anderson<\/em> in context of determining whether a defendant can consent to proceed with a misdemeanor prosecution with less than the full number of jurors required).<\/p>\n

The Court noted<\/a> that it appears the Supreme Court of Nevada most recently addressed the issue of waiver in 1981 in McCall<\/a><\/em>. In that case, defense counsel received, before voir dire, a juror\u2019s questionnaire that indicated she was a citizen of British Columbia. There was no objection at the time of voir dire, but McCall moved for a mistrial after trial and sentencing, when he discovered the juror was a non-citizen. On appeal, McCall alleged \u201che was denied his right to a jury trial before twelve citizens because one juror was an alien.\u201d Id.<\/a><\/em> at 515-16, 634 P.2d at 1211. The court found McCall\u2019s failure to object to the seating of the non-citizen juror at the time of voir dire constituted a waiver of that claim. Id.<\/a><\/em> at 516, 634 P.2d at 1211.<\/p>\n

The Court determined<\/a> that although a significant amount of time has lapsed since Anderson<\/em>, Hartley<\/em>, and McCall<\/a><\/em> were decided, the policy underlying the waiver rule remained sound. Parties should not be able to strategically place questionable jurors on the jury as a means of cultivating grounds for reversal should the verdict be unfavorable. The Court explained<\/a> that as more recently observed by the Supreme Court of Appeals of West Virginia, the waiver rule \u201cserves to minimize the incentive to sandbag in the hope of acquittal and, if unsuccessful, mount a post-conviction attack on the jury selection process.\u201d State v. Tommy Y, Jr.<\/a><\/em>, 637 S.E.2d 628, 637 (W. Va. 2006) (quoting State v. Marlow<\/a><\/em>, 888 S.W.2d 417, 420 (Mo. Ct. App. 1994)); see also United States v. Brazelton<\/a><\/em>, 557 F.3d 750, 755 (7th Cir. 2009) (cautioning that allowing a defendant to intentionally forgo challenging a juror for cause and yet obtain a reversal based on that juror\u2019s presence on the jury would effectively allow defendants to \u201cplant an error and grow a risk-free trial\u201d (quoting United States v. Boyd<\/a><\/em>, 86 F.3d 719, 722-23 (7th Cir. 1996))).<\/p>\n

The Court therefore reiterated<\/a> that a party waives any challenge to the seating of a juror on appeal where the party was aware of the basis for the challenge at the time of voir dire, had the opportunity to challenge the prospective juror on those facts but ultimately declined to do so, and approved the juror\u2019s presence on the jury panel. The Court explained<\/a> that for the waiver rule to apply, the record must clearly demonstrate the party was aware of the salient facts and consciously chose to approve the juror for jury service rather than advance a challenge for cause. Where the record does not so demonstrate, a challenge to the seating of a juror may be reviewed for plain error. See<\/em> NRS 178.602<\/a> (plain error); Jeremias v. State<\/a><\/em>, 134 Nev. __, __, 412 P.3d 43, 48 (2018) (explaining NRS 178.602<\/a> provides a mechanism for review of a forfeited error); Nelson v. State<\/a><\/em>, 123 Nev. 534, 543-44, 170 P.3d 517, 523-24 (2007) (reviewing an unpreserved challenge to an empaneled juror for plain error); see also United States v. Olano<\/a><\/em>, 507 U.S. 725, 733 (1993) (distinguishing waiver, which occurs where a defendant intentionally relinquishes a known right, from forfeiture, the failure to timely assert a right).<\/p>\n

The Court explained<\/a> that in the present case, Sayedzada was aware of the facts elicited during voir dire that he claims demonstrates jurors 7 and 37 were biased. And, in fact, Sayedzada initially attempted to challenge those jurors for cause. But Sayedzada elected not to renew his challenge after the traverse of the jurors. The Court further explained<\/a> that Sayedzada intentionally bypassed two opportunities to challenge the jurors on the same facts he raised on appeal: immediately following the traverse when he reasserted his for-cause challenge to prospective jurors 29 and 38, and again when the district court expressly asked whether either party had any further challenges and Sayedzada asserted he did not. Sayedzada thereafter accepted the jury panel. The Court determined<\/a> that these facts demonstrated Sayedzada’s intent below to relinquish his objection to these jurors and accept their presence on the jury panel. Accordingly, the Court concluded<\/a> Sayedzada waived his right to make an appellate argument as to the bias of these jurors, along with any objection that the presence of these jurors on the jury deprived him of his right to be tried by a fair and impartial jury.<\/p>\n

Visit the Nevada Appellate Report<\/a> for more legal news.<\/h2>\n","protected":false},"excerpt":{"rendered":"

Sayedzada v. State (Nev. Ct. App. \u2013 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 […]<\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[21],"tags":[348],"class_list":["post-3752","post","type-post","status-publish","format-standard","hentry","category-jury","tag-nrs-178-602"],"yoast_head":"\nWhen does a party waive their right to challenge a juror on appeal? - Nevada Appellate Report<\/title>\n<meta name=\"description\" content=\"A defendant in a criminal trial challenged prospective jurors for cause. 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