131 Nev., Advance Opinion 52.
IN THE SUPREME COURT OF THE STATE OF NEVADA
DUSTIN JAMES BARRAL, No. 6413n LED
Appellant,
vs.
THE STATE OF NEVADA, JUL 2 3 2015
Respondent. CL
A IE K. LIl1DEM AN
-
Appeal from a judgment of conviction, pursuant to jury
verdict, of two counts of sexual assault with a minor under 14 years of age.
Eighth Judicial District Court, Clark County; Douglas Smith, Judge.
Reversed and remanded.
Las Vegas Defense Group, LLC, and Michael L. Becker and Michael V.
Castillo, Las Vegas,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
Michelle Y. Jobe, Deputy District Attorney, Clark County,
for Respondent.
BEFORE PARRAGUIRRE, DOUGLAS and CHERRY, JJ.
OPINION
By the Court, CHERRY, J.:
In this opinion, we address 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. We hold that it
does.
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FACTS AND PROCEDURAL HISTORY
Dustin 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.
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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, Banal
appealed.
DISCUSSION
Barral claims 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 argues 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
1 NRS 16.030(5) dictates:
Before persons whose names have been drawn are
examined as to their qualifications to serve as
jurors, the judge or the judge's clerk shall
administer an oath or affirmation to them in
substantially the following form.
Do you, and each of you, (solemnly
swear, or affirm under the pains and
penalties of perjury) that you will well and
truly answer all questions put to you
touching upon your qualifications to serve as
jurors in the case now pending before this
court (so help you God)?
(Emphasis added.) Although this statute is articulated in the civil
practice section of the Nevada Revised Statutes, it applies to criminal
proceedings through NRS 175.021(1).
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voir dire, as the court did not place them under oath. The State contends
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 argues that the court's error did not undermine the framework
of the trial.
Whether the district court's actions in this case constituted
structural error is a question of law that we review de novo. See Neder v.
United States, 527 U.S. 1, 7 (1999) ("[W] e have recognized a limited class
of fundamental constitutional errors that defy analysis by harmless error
standards. Errors of this type are so intrinsically harmful as to require
automatic reversal (i.e., affect substantial rights) without regard to their
effect on the outcome." (internal citations and quotation marks omitted));
see also NRCP 61 ("No error.... in anything done or omitted by the
court ... is ground for granting a new trial or for setting aside a
verdict. , unless refusal to take such action appears to the court
inconsistent with substantial justice.").
NRS 16.030(5)
MRS 16.030(5) does not give the district courts discretion: "the
judge or the judge's clerk shall administer an oath or affirmation." Id.
(emphasis added); see also NRS 0.025(1)(d) (stating that "Ismail imposes
a duty to act"). Thus, we conclude 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
disputes that the district court erred by violating MRS 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
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defendant is entitled following a trial court's violation of NRS 16.030(5) is
an issue of first impression for this court.
Structural error
Structural errors compromise "the framework of a trial."
Brass v. State, 128 Nev., Adv. Op. 68, 291 P.3d 145, 148 (2012). Such
errors mandate routine reversal because they are "'intrinsically harmful."
Id. (quoting Cortinas v. State, 124 Nev. 1013, 1024, 195 P.3d 315, 322
(2008)). The United States Supreme Court has repeatedly held that trial
court errors which violate a defendant's Sixth Amendment right to an
impartial jury are structural errors that create the probability of prejudice
and preclude the need for showing actual prejudice to warrant relief. See
Peters v. Kiff, 407 U.S. 493, 502 (1972) (stating that "even if there is no
showing of actual bias in the tribunal, this Court has held that due process
is denied by circumstances that create the likelihood or the appearance of
bias," and citing, as examples, Mayberry v. Pennsylvania, 400 U.S. 455,
465-66 (1971) (concluding that the same judge who was subject to a trial
lawyer's insults that were "apt to strike at the most vulnerable and
human qualities of a judge's temperament" was precluded from deciding
the criminal contempt charges against the lawyer in order for "justice [to]
satisfy the appearance of justice") (internal citations and quotations
omitted from parenthetical)); Estes v. Texas, 381 U.S. 532, 545 (1965)
(reversing a criminal conviction without a showing of the actual prejudice
caused by the television broadcast of the trial proceedings because "[t]he
conscious or unconscious effect that [broadcasting the trial] may have on
[the proceedings] cannot be evaluated, but experience indicates that it is
not only possible but highly probable"); Turner v. Louisiana, 379 U.S. 466,
467-73 (1965) (reversing a criminal conviction without a showing of
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prejudice because two of the sheriffs deputies (who were "key witnesses"
at trial and testified regarding disputed facts) were responsible for the
sequestered jury over the course of the trial and were continuously in the
jurors' company, including transporting the jurors to restaurants for each
meal, transporting the jurors to and from their lodgings, conversing with
the jurors, and handling errands for the jurors); In re Murchison, 349 U.S.
133, 133-34, 136 (1955) (holding that a judge who acted as a "one-man
grand jury" could not try the case of two witnesses the judge charged with
contempt because "[a] fair trial in a fair tribunal is a basic requirement of
due process [and] requires [not only] an absence of actual bias [but the
prevention of] even the probability of unfairness"); and Tumey v. Ohio, 273
U.S. 510, 531, 535 (1927) (reversing a defendant's criminal conviction by a
judge who was "paid for his service only when he convicts the defendant"
because "[n]o matter what the evidence was against [the defendant], he
had the right to have an impartial judge"). In Peters, the Court reasoned
that due process demands not only the absence of bias but the appearance
of bias as well:
These principles [that fairness requires not only
the absence of actual bias but also preventing even
a possibility of bias] compel the conclusion that a
State cannot, consistent with due process, subject
a defendant to. . . trial by a jury that has been
selected in an arbitrary and discriminatory
manner, in violation of the Constitution and laws
of the United States. Illegal and unconstitutional
jury selection procedures cast doubt on the
integrity of the whole judicial process. They create
the appearance of bias in the decision of individual
cases, and they increase the risk of actual bias as
well.
407 U.S. at 502-03.
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The Peters Court considered whether the arbitrary exclusion
of African Americans from the grand jury invalidated the indictment and
subsequent conviction of a Caucasian criminal defendant. Id. at 496-97.
Peters claimed that (1) the juries that indicted and convicted him were
created through constitutional and statutorily prohibited means, (2) the
consequence of this error on a single prosecution is indeterminable, and
(3) any indictment or conviction returned by a jury selected in violation of
the Constitution or federal law must be reversed. Id. at 496-97. The
Supreme Court agreed with Peters and concluded that neither the
indictment nor the conviction against him was valid due to illegal selection
procedures used to seat the grand and petit juries. Id. at 501.
The Peters Court was specifically concerned with protecting
the integrity of the jury selection process through procedural safeguards.
Id. at 501-03. The Court explained that our system of justice "has always
endeavored to prevent even the probability of unfairness." Id. at 502
(emphasis added) (quoting In re Murchison, 349 U.S. at 136). The Court
further clarified that "[fit is in the nature of the practices here challenged
that proof of actual harm, or lack of harm, is virtually impossible to
adduce," because "there is no way to determine" the composition of the
jury or the decision it would have rendered if the jury had been selected
pursuant to constitutional mandates. Peters, 407 U.S. at 504 (emphasis
added).
Based on the Supreme Court's reasoning, see id. at 498-505,
we are persuaded that a defendant in a criminal case is denied due process
whenever jury selection procedures do not strictly comport with the laws
intended to preserve the integrity of the judicial process. An indictment or
a conviction resulting from an improperly selected jury must be reversed.
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A fair tribunal is an elementary prerequisite to due process, so we will not
condone any deviation from constitutionally or statutorily prescribed
procedures for jury selection. Cf. id. at 501. Accordingly, we hold that a
district court commits structural error when it fails to administer the oath
to potential jurors pursuant to NRS 16.030(5). As we have concluded that
failing to swear the potential jurors is a structural error, it is reversible
per se; a defendant need not prove prejudice to obtain relief.
Therefore, we reverse Barral's convictions for sexual assault of
a minor under 14 years of age and remand this matter to the district court
for a new trial. Because we reverse Barral's convictions on the grounds
that the district court committed structural error in the jury selection
process, we need not address the remaining issues in his appeal.
J.
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Barral v. State
Combined Opinion