Biased juror, punishment for hurt feelings, & substantial mental harm
JERICHO BRIOADY VS. STATE OF NEVADA
(Supreme Court Order remanding and reversing)
Pursuant to a jury conviction of two counts of lewdness with a minor under the age of fourteen, Appellant Jericho Brioady filed a motion for a new trial on the basis of juror misconduct.
Eleven days after the entry of the jury verdict, Brioady discovered that during voir dire one of the jurors had failed to disclose that they had been a victim of childhood molestation. The District Court denied Appellant’s motion because Brioady failed to demonstrate prejudice that arose from the alleged misconduct of Juror Three.
On appeal, the State argued that the appellant’s motion had surpassed the 7 day time limit pursuant to NRS 176.515(4) and was therefore untimely. The Nevada Supreme Court ruled that the information relating to the juror misconduct was newly discovered evidence and satisfies the two year requirement for motions of new trial on the grounds of newly discovered evidence ( NRS 176.515).
In order to obtain a new trial on the basis of juror misconduct, a party must demonstrate that a juror has failed to answer honestly material questions and then further show that the correct response to those questions contain sufficient grounds for challenge. The Supreme Court further wrote that while there are a litany of reasons and motives for a juror to conceal information, the reasons that “affect a juror’s impartiality can truly be said to affect the fairness of a trial.” In addition, the Supreme Court cited that a juror’s impartiality can be determined “upon whether or not [a juror] is guilty of intentional concealment.”
In this case, the Supreme Court argued that the court records indicate that Juror Three had intentionally chose not to disclose her prior childhood molestation and withheld this information throughout voir dire. From the trial proceedings to deliberations, Juror Three had revisited her childhood molestation, which showed that her childhood molestation was serious enough to Juror Three. In addition, the Supreme Court ruled that her disclosure to material questions asked during voir dire deprived Appellant of any opportunity to issue a peremptory challenge to excuse the Juror. The Supreme Court reversed the judgement of the District Court and remanded for a new trial.
ROBERT WILLIAM DOWNS II VS. STATE OF NEVADA
(Supreme Court Order unpublished affirming)
Pursuant to a jury verdict of first-degree kidnapping and three counts of abuse, neglect or endangerment of a child resulting in substantial bodily and/or mental harm, Robert Downs appealed on the grounds that the district court had erred by not providing a Mendoza instruction, insufficient evidence to support first-degree kidnapping, allowing a social worker to provide expert medical opinions, not requiring the State to prove ‘substantial’ mental harm under NRS 200.508(1), allowing a detective to give expert medical opinion, and finally that all of these issues provide cumulative effect of error to warrant a reversal of his conviction.
Mendoza requires that to convict someone of both kidnapping and child abuse, the prosecution would have to show that the movement of the child (constituting the element of kidnapping) was not incidental to the child abuse charges. In this case, Downs was suspected of having bound the “child's hands and feet together and gagged the child; these acts constitute the restraint involved in the kidnapping charge.” The jury instructions included that kidnapping is done with the “intent to hold or detain... that person for the purpose of inflicting substantial bodily harm.” The Court held that as the child was bound and gagged, and that injuries were inflicted through the process, it was found that these elements went beyond simple child abuse. There was a substantial increase of risk, danger, and harm to the child through the binding and gagging, thus supporting Down’s first-degree kidnapping conviction and showing the Mendoza factors were proven.
Another issue Downs argued was about the jury instruction for child abuse. They had left out ‘substantial’ from the ‘substantial mental harm’ element in the NRS statute regarding child abuse. This allowed for the State to not have to prove the ‘substantial’ element, but only simply mental harm suffered by the victim. The Nevada Supreme Court found that the jury instruction about mental harm of the child was erroneous because it omitted “substantial” for “mental harm.” In addition, the Court found that the social worker and the detective who both testified had erroneously given medical expert testimonies without being experts. Despite these errors, the Court held that Downs did not show prejudice from these errors and affirmed his judgment.
JOHNATHAN PEREZ VS. STATE OF NEVADA
(Supreme Court Order unpublished affirming)
Perez was convicted of second-degree murder with use of a deadly weapon and discharge of firearm from a structure or vehicle. He had been selling marijuana to a few men who were all in the same vehicle when one of them left to take a phone call. Perez pulled out his gun and shot the man from inside the car three times. The victim died. Perez was charged with murder with use of a deadly weapon, discharge of a firearm from inside a vehicle, and possession of a firearm by ex-felon. He plead guilty after his trial to the possession charge, and the jury found him guilty of the other two charges.
Perez argued that there was insufficient evidence at trial to show the elements of robbery arguing the district court abused its discretion by instructing the jury with those elements. During the trial, evidence was presented about the victim’s phone not being recovered with his body. There was nothing else proving the intent of Perez to rob his eventual victim and take his phone, thus the Court deemed that the district court had indeed abused their discretion by allowing the jury instruction for robbery. The Court found that though the district court had erred, it was harmless. An instructional "error is harmless when it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.“ However, because the jury only found him guilty of second-degree and no robbery, there was no instructional error. The Court affirmed his conviction.
MONTE MCDANIEL VS. STATE OF NEVADA
(Court of Appeals Order affirming)
Monte McDaniel appealed from an order of the district court revoking his probation and an amended judgment of conviction. McDaniel argued that the district court abused their discretion by increasing his sentence right after they had agreed to a shorter sentence. The district court initially sentenced McDaniel to a prison term of 24 to 60 months, suspended the sentence, and placed McDaniel on probation. At the revocation hearing, the district court revoked McDaniel's probation and orally modified his sentence to 12 to 60 months in prison. McDaniel then made a comment referring to his probation officer as a “bitch.” The district court recalled the matter and witnesses informed the court what they had heard. The district court then decided with McDaniel’s conduct and the current case, that imposition of the original prison term of 24 to 60 months was justified.
McDaniel first argued the district court abused its discretion by increasing his sentence after they had just orally pronounced a shorter sentence and that the district court should have punished him with in-court conduct with contempt, rather than increasing his prison term. McDaniel further asserted that he did not know that using an explicative would result in a lengthier sentence, and that he should have been given an opportunity to dispute the allegation. The court found that they had the authority to alter its oral modification of his sentence because they had not yet entered a written judgment of conviction modifying the sentence. In addition, McDaniel failed to show that he was required to receive notice that inappropriate court conduct could result in a longer sentence. The court also gave him an opportunity to explain his explicative language, McDaniel out-right denied saying anything, but the district court relied on their witnesses testimony that he had. Accordingly, the court ruled that McDaniel is not entitled to relief and there was no error in his amended judgment of conviction.
FREDERICK HAROLD HARRIS JR. VS. STATE OF NEVADA
(Court of Appeals Order affirming)
Frederick Harold Harris, Jr., appealed from a judgment of conviction, pursuant to a jury verdict, 36 counts for numerous crimes including sexual assault with a minor under 14 years of age; lewdness with a child under the age of 14; child abuse, neglect, or endangerment; first degree kidnapping; coercion; administration of a drug to aid in the commission of a crime; sexual assault with a minor under 16 years of age; sexual assault; battery with intent to commit sexual assault; pandering; and living from the earnings of a prostitute.
Harris was convicted for physically and sexually abusing several children in the same family. Harris asserted in his appeal that the district court erred in limiting his cross-examination regarding a book authored by the mother of the children. The district court allowed for the book written by the children’s mother to be used as the State’s evidence in trial. The Court of Appeals agreed with Harris that the district court erred by limiting his cross-examination of the mother about the book. The book entitled titled “Secret Revenge” depicts the story of a rape victim who murders her rapist. The district court had ruled that the book's title was too prejudicial to be discussed in court, but allowed questioning regarding the book's contents. The appellate court ruled that the district the title of the book was relevant and more probative than prejudicial to show witness bias. They also ruled that since Harris was allowed to cross-examine the mother regarding the book's contents and the mother denied that the book had anything to do with Harris, the error was harmless. Harris also argued that the district court improperly allowed the State to introduce testimonial hearsay statements into evidence.
The Court of Appeals also found that Harris was correct in stating the State presented testimonial hearsay at trial. The state called a detective as witness to testify about a statement made by Harris’ girlfriend in a police investigation a few years prior. The statement regarded the two children disclosing sexual abuse by Harris to his girlfriend. This statement was testimonial in the fact that it was made during a police investigation, and hearsay as it was a statement made out of court to prove the truth of the matter at issue. Harris argued that this testimony being admitted into trial violated the Confrontation Clause because though the girlfriend could have been called as a witness, she did not testify. Thus, Harris did not have the ability to question her regarding her statements.
Regardless of these errors, the Court of Appeals found that “the error complained of did not contribute to the verdict obtained" and affirmed the judgment of conviction.
JOSHUA AGUILAR VS. STATE OF NEVADA
(Court of Appeals Order affirming)
Aguilar appealed from a judgment of conviction for battery with a deadly weapon causing substantial bodily harm and assault with a deadly weapon. He argued that the district court erred in denying his motion to suppress statements he made during a recorded police interrogation, his main point being that he had invoked his right to remain silent.
After Aguilar was arrested, he was read his Miranda rights and then was interrogated about the crime. Aguilar stated that he invoked his right to remain silent, but the police continued to question him. This resulted in Aguilar making statements that were used against him at trial. For a suspect to invoke his right to silence, he must do so "unambiguously."(Berghuis vs. Thompkins 2010). The district court held a suppression hearing regarding the statements. One of the police officers who conducted the interrogation testified and the court also listened to the recording of the interrogation. It was determined that “Aguilar did not unambiguously invoke his right to remain silent.“ To do so unambiguously means that the invocation of remaining silent must be straightforward and obvious enough for anyone to be able to interpret their Miranda rights as being invoked. The lower court deemed his invocation as being too ambiguous and open to interpretation. The Court of Appeals did not have access to the recording of the interrogation nor the transcript, as it was the appellate burden to provide the appellate record. As the interrogation/transcript was not deprived, the Appellate Court affirmed the conviction.
