Camacho-Moreno was charged with two counts of sexual
assault of a child, one count of attempted sexual assault of a child, two
counts of lewdness with a child, and two counts of indecent exposure. He
was acquitted of one count of sexual assault and convicted of the
remaining six counts. Camacho-Moreno's primary assertion of error on
appeal is that the district court erred in making comments in the jury's
presence that were overly prejudicial. We conclude that the district
court's comments were improper and a new trial is warranted. As the
parties are familiar with the facts, we do not recount them further except
as necessary to our disposition.
The district court's statements, made in the jury's presence, were overly
prejudicial
Camacho-Moreno contends that the district court made
inappropriate comments to the jury venire and during A.M.'s testimony.
Specifically, he argues that the jury perceived an appearance of partiality
and prejudice—in effect, denying him of his right to a fair and impartial
trial. In response, the State points to the fact that all of the comments
made by the district court were either passing comments or taken out of
context. It also notes that the statements made during A.M.'s testimony
were made within the context of instructing the jury on certain procedural
issues.
Generally, when judicial misconduct occurs, in order to
preserve the issue for appellate review, a party must move for a mistrial.
Holderer v. Aetna Cas. and Sur. Co. 114 Nev. 845, 850, 963 P.2d 459, 463
(1998). If, however, "judicial deportment is of an inappropriate but non-
egregious and repetitive nature," this court may review the misconduct.
Parodi v. Washoe Medical Ctr., 111 Nev. 365, 370, 892 P.2d 588, 591
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(1995). As such, judicial misconduct is reviewed for plain error. Id. at
368, 892 P.2d at 590. In cases where the "evidence [of guilt] is quite
apparent, misconduct may so interfere with the right to a fair trial as to
constitute grounds for reversal." Kinna v. State, 84 Nev. 642, 647, 447
P.2d 32, 35 (1968).
The line between a needed instruction and inappropriate
remarks by a trial judge is not always clear. The United States Supreme
Court has explained that a trial judge may explain and comment upon
evidence, draw a jury's attention to certain facts, and express his or her
opinion on the facts, but he or she must instruct the jury that it is the
jury's responsibility to ultimately decide the matters before it. Quercia v.
United States, 289 U.S. 466, 469 (1933). Further, comments relating to
bias and racial prejudices are never appropriate and only serve to inflame
passion and emotion. See Rush v. Smith, 56 F.3d 918, 922 (8th Cir. 1995).
Because of the respect a juror has for a judge, the judge's
commentary can mold the juror's opinion. Holderer, 114 Nev. at 851, 963
P.2d at 463. As stated in Parodi,
"[t]he average juror is a layman; the average
layman looks with most profound respect to the
presiding judge; and the jury is, as a rule, alert to
any remark that will indicate favor or disfavor on
the part of the trial judge. Human opinion is
ofttimes formed upon circumstances meager and
insignificant in their outward appearance; and the
words and utterances of a trial judge, sitting with
a jury in attendance, are liable, however
unintentional, to mold the opinion of the members
of the jury . . . ."
111 Nev. at 367-68, 892 P.2d at 589-90 (quoting Ginnis v. Mapes Hotel
Corp., 86 Nev. 408, 416-17, 470 P.2d 135, 140 (1970)).
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We now turn to the specific statements made by the district
court judge, which Camacho-Moreno contends were prejudicial.
Statement regarding rape statistics
The first statement made by the district court to the jury
venire concerned a statistic that one-quarter of women had been subject to
unwanted sexual advances. Specifically, the district court stated that it
had
learned that there's credible statistics that maybe
25 percent, or better, of all women have received
unwanted sexual advances, many of them at a
time before they reach the age of majority, or 18.
So statistics hold true one quarter of the women in
this room may have been victimized by someone at
some time. And I'm not here to embarrass
anybody.
. . . [I]f any of you have been victims at any
time during your lives, and if one of two things
have gone on -- one, the case likely to conjure up
the past for you, and you might bring that frame
of mind or those colored glasses to this proceeding,
this case history; also, if you're looking for an
opportunity to vindicate something that remains
unvindicated in your life, this is not the case for
you.
Camacho-Moreno contends that the statements created a
presumption in the jurors' minds that there was a high probability that
A.M. was indeed sexually abused. The statements, however, were taken
out of context. Although a statistic offered by the district court as
evidence is inappropriate, a district court's use of a statistic to determine
the fitness of a juror does not rise to the level of admitting unsupported
evidence into the record. See Quercia, 289 U.S. at 470. More importantly,
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P7.7
the district court made this statement in an attempt to make the jury
panel more fair by attempting to dismiss any juror who had been subjected
to unwanted sexual advances and, as a result, could not remain fair and
impartial. As such, these comments were not error and did not prejudice
Camacho-Moreno.
Statement regarding Hispanic jurors
Next, during voir dire, the district court, in commenting on the
number of Hispanic jurors that had been excused, stated:
In particular, if you want to know the truth,
I'd like to have some Hispanic jurors on the case
who may have a cultural understanding, because
the defendant appears to me to have an Hispanic
background, but I also know that there are -- how
do I say this? Let me say it this way: Believe it or
not, there are -- some of you may or may not know
this, but there are some places in Mexico where
this kind of thing is more common than in other
places.
The district court went on to state that
[w]hatever stories you may have heard about
whomever, this man is innocent as he sits here; do
you understand that?
. . . You'd have to say he's innocent because
there's no evidence. Do you see what I mean?
There's none, zero evidence. She has to put on the
evidence that convinces you, the DA does; do you
understand that?
Although the district court qualified its statements by
instructing the jury that there was no evidence of guilt yet presented, the
statement as a whole carries with it a danger of molding the opinion of the
potential jurors. Parodi, 111 Nev. at 368, 892 P.2d at 590-91. The
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comment regarding the possibility that rape is more common in Mexico or
in Mexican communities is clearly inappropriate commentary on
Camacho-Moreno's race, which is always prejudicial. Rush, 56 F.3d at
922-23 (stating that the district court's statement that "races have a
tendency to stick together" was error). These comments, also, tend to
‘`remain firmly lodged in the memory of the jury and to excite a prejudice
which would preclude a fair and dispassionate consideration of the
evidence." Quercia, 289 U.S. at 472. We, therefore, conclude that this
statement alone necessitates reversal of the judgment.
Statement regarding A.M. being "pretty"
Camacho-Moreno's third issue with the district court's
statements came during the State's direct examination of A.M. The State
attempted to admit into evidence a collage of A.M.'s school photos in order
to assist it in setting a timeline of events. After Camacho-Moreno's
objection, and subsequent overruling, the district court stated:
I'm going to allow, over objection, these
pictures -- it's a collage of evidence -- because
there are issues over the dates and times of the
events that were alleged in this case. But the
mere fact that she's a very pretty young lady at
those ages is not relevant, and you're so
instructed.
At first blush, this comment seems innocuous. However, the
district court's commentary on the victim's appearance is wholly irrelevant
and therefore inappropriate to the district court's admission of the
proffered evidence. The comment does nothing more than to impassion
the jury and show the district court's favoritism for the young female
victim. Quercia, 289 U.S. at 469; see also Parodi, 111 Nev. at 367-68, 892
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:141 z1s"
P.2d at 589-90. Consequently, this statement, on its own, necessitates
reversal.
Statement regarding the time that passed between the preliminary
hearing and the trial
The final statement that Camacho-Moreno takes issue with
occurred during A.M.'s cross-examination. When the State asked A.M. if
she had reviewed the transcripts from other conversations she had with
the police and the State, A.M. stated that she had reviewed a transcript
from the preliminary hearing two years prior. At that point, the district
court
instruct[ed] the jury that the statement that she
went to court two years ago should, in your mind,
signify nothing. A case arrives here by a process
and you're to place no emphasis or consideration
on the fact that there may have been another
hearing or a preliminary hearing in this case.
Camacho-Moreno contends that the district court's statement
limited his ability to fully cross-examine the witness. This argument is
disingenuous. The district court's comments were simply an attempt to
explain to the jury that it does not matter that there was a significant
amount of time that passed between the preliminary hearing and the trial.
There was no attempt on the part of the district court to limit Camacho-
Moreno's ability to show A.M.'s prior inconsistent statements. It is not
clear from the record that the district court was trying to improperly
comment on the weight of the evidence or credibility of the witness.
However, in light of the two prejudicial statements made by
the district court, we must conclude that the misconduct 'so infected the
trial with unfairness as to make the resulting conviction a denial of due
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process." Valdez v. State. 124 Nev. 1172, 1189, 196 P.3d 465, 477 (2008)
(quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)).
We therefore
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for a new trial."
P,ae , C.J.
Pickering
Saitta
cc: Chief Judge, The Second Judicial District Court
Hon. Charles M. McGee, Senior Judge
Richard F. Cornell
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
'Because we are reversing the judgment based on the district court's
improper comments during jury selection, we decline to address the other
issues raised on appeal.
8