Camacho-Moreno (Juan) v. State ( 2013 )


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  •                             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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    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.
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