Brass v. State , 2014 NV 35 ( 2014 )

130 Nev., Advance Opinion 55
IN THE SUPREME COURT OF THE STATE OF NEVADA
STEPHANIE BRASS, AS PERSONAL No. 56146
REPRESENTATIVE FOR RONNIE
DANELLE BRASS,
Appellant, FILED
vs.
THE STATE OF NEVADA, MAY 2 9 2014
Respondent. ACJE K. LINDEMAN
CLERH 011 SUPREME C
BY
CHIEF DEPIIKI,CLERK
Appeal from a judgment of conviction, pursuant to a jury
verdict, of conspiracy to commit kidnapping and murder, first-degree
kidnapping, and first-degree murder with the use of a deadly weapon.
Eighth Judicial District Court, Clark County; Douglas Smith, Judge.
Reversed.
David M. Schieck, Special Public Defender, and JoNell Thomas and
Michael W. Hyte, Deputy Special Public Defenders, Clark County,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, Steven S. Owens, Chief Deputy District
Attorney, and David L. Stanton and Nancy A. Becker, Deputy District
Attorneys, Clark County,
for Respondent.
BEFORE THE COURT EN BANC.
SUPREME COURT
OF
NEVADA
(0) 1947A ce 14-11'303
OPINION
By the Court, DOUGLAS, J.:
In this opinion, we consider whether a judgment of conviction
must be vacated and the prosecution abated when a criminal defendant
dies while his or her appeal from the judgment is pending. We hold that
although a deceased appellant is not entitled to have his or her judgment
of conviction vacated and the prosecution abated, a personal
representative may be substituted as the appellant and continue the
appeal when justice so requires. In this appeal, we reverse the judgment
of conviction based on an error during jury selection.
FACTS
The State charged Ronnie Brass and his brother, Jermaine
Brass, as codefendants with burglary, grand larceny, conspiracy to commit
kidnapping, first-degree kidnapping, conspiracy to commit murder, and
murder with the use of a deadly weapon. Jermaine and Ronnie jointly
filed a motion to sever their trials. The district court denied the motion,
and the two were tried together.
During voir dire, defense counsel argued that the State
violated Batson v. Kentucky, 476 U.S. 79 (1986), because it exercised a
peremptory challenge to exclude prospective juror no. 173 not based on
lack of qualifications, but based on the prospective juror's race. Prior to
holding a hearing on Jermaine and Ronnie's Batson challenge, the district
court excused a number of prospective jurors, including prospective juror
no. 173. Subsequently, the district court conducted the Batson hearing
and—after concluding that the State had race-neutral reasons for its
peremptory challenge—denied the defense's Batson challenge.
SUPREME COURT
OF
NEVADA
2
(0) 1947A e
At the conclusion of the trial, the jury found Jet aine guilty
on all six counts and found Ronnie guilty on four counts, excluding
burglary and grand larceny. The brothers filed separate appeals.
In Jermaine's appeal, this court reversed his conviction and
remanded the matter for a new trial based on our conclusion that the
district court committed reversible error during the jury selection phase of
Jermaine and Ronnie's trial. See Brass v. State, 128 Nev. , 291 P.3d
145 (2012). Specifically, we held that "[Jermaine and Ronnie] were not
afforded an adequate opportunity to respond to the State's proffer of race-
neutral reasons [for its peremptory challenge of juror no. 1731 or to show
pretext because the district court permanently excused juror no. 173
before holding a Batson hearing," and that such dismissal of juror no. 173
"had the same effect as a racially discriminatory peremptory challenge
because even if [Jermaine and Ronnie] were able to prove purposeful
discrimination, they would be left with limited recourse." Id. at , 291
P.3d at 149. We concluded that reversal of Jermaine's conviction was
warranted because the "discriminatory jury selection constitute[d]
structural error that was intrinsically harmful to the framework of the
trial." Id.
On appeal, Ronnie raises the same Batson issue. However,
after the parties completed briefing in this matter, Ronnie died while in
prison. The district court appointed his mother, Stephanie Brass, as his
personal representative, and she substituted in as a party to this appeal
under NRAP 43. Upon substitution, Stephanie filed a motion to abate
Ronnie's judgment of conviction dueS to his death. Stephanie's motion
presents a novel issue in Nevada: Should a judgment of conviction be
SUPREME COURT
OF
NEVADA
3
(0) 1947A e
vacated and the criminal prosecution abated when a defendant dies while
his or her appeal from the judgment of conviction is pending?
DISCUSSION
There are three general approaches when a criminal
defendant dies while his or her appeal from a judgment of conviction is
pending: (1) abate the judgment ab initio, (2) allow the appeal to be
prosecuted, or (3) dismiss the appeal and let the conviction stand Tim A.
Thomas, Annotation, Abatement of State Criminal Case by Accused's
Death Pending Appeal of Conviction—Modern Cases, 80 A.L.R. 4th 189(1990). We will discuss each approach in turn.
Abatement ab initio
Abatement ab initio is the abatement of all proceedings in a
prosecution from its inception. United States v. Oberlin, 718 F.2d 894, 895
(9th Cir. 1983). This requires an appeal to be dismissed and the case
remanded to the district court with instructions to vacate the judgment
and dismiss the indictment or information. Id. Courts that apply the
abatement oh initio doctrine believe that when death deprives a defendant
of the right to an appellate decision, justice prohibits that defendant from
standing convicted without a court resolving his or her appeal on its
merits. United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir. 1977).
Many state courts employ this approach. See State v. Griffin, 592 P.2d
372, 372-73 (Ariz. 1979); Thomas, supra, 80 A.L.R. 4th at 191.
Allow the appeal to continue
Some jurisdictions have determined that a defendant who dies
while pursuing an appeal from a judgment of conviction is not entitled to
have the criminal proceedings abated ab initio; they instead resolve the
SUPREME COURT
OF
NEVADA
4
(0) 1947A 0
appeal on its merits. See, e.g., State v. Makaila, 897 P.2d 967, 969 (Haw.
1995) (citing cases that follow this approach). These courts have
rationalized that 'it is in the interest of both a defendant's estate and
society that any challenge initiated by a defendant to the regularity or
constitutionality of a criminal proceeding be fully reviewed and decided by
the appellate process." State v. McDonald, 424 N.W.2d 411, 414-15 (Wis.
1988) (quoting Commonwealth v. Walker, 288 A.2d 741, 742 n.* (Pa.
1972)). Some courts allow the appeal to continue only if a personal
representative is substituted for the deceased appellant; Makaila, 897
P.2d at 972; State v. McGettrick, 509 N.E.2d 378, 382 (Ohio 1987);
however, other courts decline to impose this requirement. See State v.
Jones, 551 P.2d 801, 803-04 (Kan. 1976); see also McDonald, 424 N.W.2d
at 415.
Dismiss the appeal and let the conviction stand
Courts that have dismissed the appeal and let the conviction
stand have done so on mootness grounds or out of public policy
considerations. See State v. Trantolo, 549 A.2d 1074, 1074 (Conn 1988)
(finding that where an appeal would not affect the interests of a decedent's
estate, it was moot); Perry v. State, 575 A.2d 1154, 1156 (Del. 1990)
(finding that there was no real party in interest because a cause of action
based upon a penal statute did not survive death, thus the appeal was
moot); State v. Korsen, 111 P.3d 130, 135 (Idaho 2005) (holding that the
provisions of a judgment of conviction related to custody or incarceration
are abated upon the death of the defendant during the pendency of a
direct appeal, but provisions of the judgment of conviction pertaining to
payment of court costs, fees, and restitution remain intact because those
provisions were meant to compensate the victim); Whitehouse v. State, 364
SUPREME COURT
OF
NEVADA
5
(0) PDTA
N.E.2d 1015, 1016 (Ind. 1977) (finding that the right to appeal was
personal and exclusive to the defendant and that any civil interests of
third parties may be separately litigated).
The appeal shall continue
The abatement ab initio and outright dismissal approaches
are extreme and have substantial shortcomings. Vacating the judgment
and abating the prosecution from its inception undermines the
adjudicative process and strips away any solace the victim or the victim's
family may have received from the appellant's conviction. Outright
dismissal could prevent a defendant's family from potentially clearing a
loved one's name. And both approaches would preclude this court from
correcting a deprivation of an individual's constitutional rights. Although
the appellant is deceased, rectifying a constitutional error nevertheless
benefits society because it decreases the chances that another person
would fall victim to the same error.
We now adopt the position articulated in Makaila and allow a
deceased criminal defendant's direct appeal to continue upon proper
substitution of a personal representative pursuant to NRAP 43 when
justice so requires. 1 This approach allows all parties to present
arguments, and then, the court can make an informed decision regarding
the validity of the deceased appellant's conviction. Further, a challenge to
i-Cf. State v. Salazar, 945 P.2d 996, 1003-04 (N.M. 1997) (noting that
appellate courts may consider "the best interests of [a] decedent's estate,
[any] remaining parties, or society" in determining whether an appeal may
continue after an appellant's death).
SUPREME COURT
OF
NEVADA
6
(0) 1947A 9Mp
.
the regularity of Nevada's criminal process presents a live controversy
regardless of the appellant's status because, as stated in Commonwealth v.
Walker, 288 A.2d 741 (Pa. 1972), society has an interest in the
constitutionality of the criminal process. Therefore, we deny Stephanie's
motion for abatement oh initio but conclude that, as Ronnie's properly
substituted personal representative, she is entitled to continue his appeal.
Ronnie's appeal
Stephanie asserts that the district court erred in denying
Ronnie's Batson challenge. 2 In Jermaine's appeal, we concluded that a
reversal of his judgment of conviction was warranted because the district
court's mishandling of Jermaine and Ronnie's Batson challenge was
intrinsically harmful to the trial's framework. Brass, 128 Nev. at , 291
P.3d at 149. Ronnie suffered the same harm as Jermaine and is entitled
to the same relief. We recognize that the jury found sufficient evidence to
convict Ronnie of the conspiracy, kidnapping, and murder charges.
2Stephanie raises several other issues on appeal. But, in light of our
determination regarding the Batson challenge, we need not address these
additional issues.
SUPREME COURT
OF
NEVADA
7
(0) 1947A Apo
However, the jury was not properly constituted, and its
decision does not override the constitutional error Ronnie suffered.
Accordingly, we reverse the judgment of conviction. 3
J.
D oat.;.?"-el
L
77--\ V VILA' "..--(1/ , CA.
Gibbons
J.
Pickering
J.
Hardesty
Parraguirre C reij
J.
Saitta
3A remand for further proceedings is unnecessary because Ronnie
cannot be retried.
SUPREME COURT
OF
NEVADA 8
(0) 1947A 0'