Artiga-Morales v. State , 2014 NV 77 ( 2014 )

130 Nev., Advance Opinion 77
IN THE SUPREME COURT OF THE STATE OF NEVADA
EDWIN HUMBERTO ARTIGA- No. 60172
MORALES,
Appellant, FILED -
vs.
OCT 0 2 2014
THE STATE OF NEVADA,
TEA,. i'E K. L NDEMAN
Respondent. CLE cct
BY
ELT CEP
Appeal from a judgment of conviction, pursuant to a jury
verdict, of battery with a deadly weapon causing substantial bodily harm.
Second Judicial District Court, Washoe County; Janet J. Berry, Judge.
Affirmed.
Jennifer L. Lunt, Alternate Public Defender, and Cynthia Lu, Deputy
Alternate Public Defender, Washoe County,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Richard A.
Gammick, District Attorney, and Joseph R. Plater, Deputy District
Attorney, Washoe County,
for Respondent.
Arthur E. Mallory, Fallon,
for Amicus Curiae Nevada District Attorneys Association.
T. Augustas Claus, Henderson; Robert Arroyo, Las Vegas,
for Amicus Curiae Nevada Attorneys for Criminal Justice.
BEFORE THE COURT EN BANC.
OPINION
By the Court, PICKERING, J.:
Artiga-Morales appeals his conviction for battery with a
deadly weapon causing substantial bodily harm His principal argument
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is that the district court erred in denying his pretrial motion for "an order
mandating the prosecutor provide a summary of any jury panel
information gathered by means unavailable to the defense." The record
does not include a complete transcript of the oral argument on this motion;
what we have suggests the parties focused on the criminal histories the
prosecution admitted having run on the venire, which revealed "[s]ome
prior misdemeanors, that was it." The district court denied the motion on
two grounds: (1) "the prosecution's choice not to disclose potential juror
information will not create an unfair trial or impartial [sic] jury [since
dlefense counsel will have adequate opportunity to examine each potential
juror during voir dire," and (2) Artiga-Morales "has not established that
the potential juror information he seeks cannot be obtained by the defense
investigator or through other reasonable avenues." Our review is for an
abuse of discretion, People v. Jones, 949 P.2d 890, 913 (Cal. 1998); see
Lamb v. State, 127 Nev. „ 251 P.3d 700, 707 (2011), and finding
none, we affirm
Almost without exception, courts have declined to find
reversible error in a trial court denying the defense access to juror
background information developed by the prosecution. See Jeffrey F.
Ghent, Annotation, Right of Defense in Criminal Prosecution to Disclosure
of Prosecution Information Regarding Prospective Jurors, 86 A.L.R.3d 571(1978 & Supp. 2014) (collecting cases). Most courts have held that, in the
absence of a statute or rule mandating disclosure, no such disclosure
obligation exists. Albarran v. State, 96 So. 3d 131, 157-58 (Ala. Crim. App.
2011) ("arrest and conviction records of potential jurors do not qualify as
the type of discoverable evidence that falls within the scope of Brady [v.
Maryland, 373 U.S. 83 (1963)]" (alteration in original) (internal quotation
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marks omitted)); State v. Mathews, 373 S.E.2d 587, 590-91 (S.C. 1988)
(without a statuteS or court rule requiring disclosure, due process did not
require disclosure of state-assembled juror background information); see
generally Weatherford v. Bursey, 429 U.S. 545, 559 (1977) ("There is no
general constitutional right to discovery in a criminal case, and Brady did
not create one.").
Other courts struggle with the disparity between the
prosecution, which has ready access to criminal history and other
government databases on prospective jurors, and the defense, which does
not. E.g., People v. Murtishaw, 631 P.2d 446, 465-66 (Cal. 1981),
superseded by statute on other grounds as stated in People v. Boyd, 700
P.2d 782, 790 (Cal. 1985). But the clear majority of these courts as well
have found no reversible error in a trial court's denial of access to
prosecution-developed juror background information, concluding, as we do
here, that the injury, if any, in the particular case was speculative and/or
prejudice was not shown.
Murtishaw is typical. In Murtishaw, the California Supreme
Court announced that, while not compelled by the constitution, statute, or
rule, trial courts in future cases may compel disclosure of prosecution-
developed juror background materials. Id. Even so, the court
acknowledged that "in any individual case it is entirely speculative
whether denial of access caused any significant harm to the defense." Id.
at 466. Thus, Murtishaw's holding, as distinct• from its dictum, was that
the trial court's refusal to order disclosure "does not require us to reverse
the conviction in the present case"• because, absent a showing of
"prejudice ... the denial of access is not reversible error." Id.; see Tagala
v. State, 812 P.2d 604, 613 (Alaska Ct. App. 1991) (opining that "the
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prosecutor should disclose to the defense, upon request, criminal records of
jurors, at least in cases where the prosecution intends to rely on them,"
but declining to reverse because "[it is difficult to say how [the defense]
was harmed by the fact that [the defendant] did not have access to the
prosecutor's report" and noting, as the district court did here, "[n] °thing
prevented [the defense] from asking the jurors about their criminal
records"); State v. Goodale, 740 A.2d 1026, 1031 (N.H. 1999) (while opining
that "fundamental fairness requires that official information concerning
prospective jurors utilized by the State in jury selection be reasonably
available to the defendant," holding that "[w]e nonetheless affirm the
defendant's conviction in this case, as he has failed to demonstrate that he
was in fact prejudiced by the trial court's ruling"); cf. Commonwealth v.
Smith, 215 N.E.2d 897, 901 (Mass. 1966) (declining to reverse based on
the trial court's denial of access to prosecution juror background
materials—"[w]hether there was any advantage as to any juror is
speculative"—but noting its concern with disparate access to background
information and suggesting that "[t]he subject could appropriately be dealt
with in a rule of Court").
Like the defendants in Murtishaw, Tagala, Goodale, and
Smith, Artiga-Morales does not connect his theoretical argument to the
facts in his case. Nevada's disclosure statute, NRS 174.235, does not
mandate disclosure of prosecution-developed juror background
information.' Lacking statutory authority, Artiga-Morales turns to
constitutional precepts. But he does not argue, much less establish, that
'Subparagraph 2 of NRS 174.235 protects the prosecution's work
product, an issue not developed here.
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"any of the jurors who sat in judgment against him were not fair and
impartial." Weber v. State, 121 Nev. 554, 581, 119 P.3d 107, 125-26 (2005).
Without this showing, his claim that he was denied his constitutional
right to a fair and impartial jury fails. Ross v. Oklahoma, 487 U.S. 81, 88
(1988); see State v. Grega, 721 A.2d 445, 450 (Vt. 1998) (finding no error in
the trial court's refusal to order disclosure of criminal background checks
the prosecution ran on prospective jurors where voir dire was conducted
on juror's criminal backgrounds and the Idlefendant does not claim that
any of the jurors gave inaccurate or incomplete information, nor has he
shown that the impaneled jury was biased in any way").
Artiga-Morales makes a more focused argument as to
prospective juror Lazaro. He maintains that, but for its superior access to
juror background information, the prosecution would not have known to
question her about her son's detention in the Washoe County jail on gang-
related charges and then been able to defend its peremptory challenge of
her on that basis. But this argument does not hold up. In the first place,
he does not explain how the prosecution's access to juror Lazaro's criminal
history would have produced information about her son's criminal history.
Second, and more fundamentally, Lazaro's son's detention in the Washoe
County jail on gang-related charges established a race-neutral,
nonpretextual reason for the prosecution's peremptory challenge of her.
See Hawkins v. State, 127 Nev. , , 256 P.3d 965, 966-67 (2011).
Thus, no Batson v. Kentucky, 476 U.S. 79 (1986), violation occurred. And,
even accepting that the prosecution came to court with information about
Lazaro that Artiga-Morales didn't have and couldn't get beforehand, the
information was revealed during voir dire—indeed, the district court
offered Artiga-Morales additional voir dire of prospective juror Lazaro,
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which he declined. Again, Artiga-Morales does not connect the injury of
which he complains—unequal access to juror background information—to
cognizable prejudice affecting his case.
Artiga-Morales thus has established neither a constitutional
nor statutory basis for us to reverse his conviction based on the district
court's denial of his motion to compel disclosure of prosecution-gathered
juror background information. "If policy considerations dictate that
defendants should be allowed to see [prosecution-developed jury] dossiers,
then a court rule should be proposed, considered and adopted in the usual
manner." People v. Mdntosh, 252 N.W.2d 779, 782 (Mich. 1977), overruled
on other grounds by People v. Weeder, 674 N.W.2d 372 (Mich. 2004);
Smith, 215 N.E.2d at 901. 2 Such a formal rule-making procedure is
implicitly authorized by NRS 179A.100(7)(j) and better suited to the job of
assessing the scope of the disparity, the impact on juror privacy interests,
2 Examples provided by other jurisdictions and commentators
suggest a variety of approaches, ranging from declaring such information
off-limits to the prosecution except on motion with the results to be shared
with the defense, see State v. Bessenecker, 404 N.W.2d 134, 139 (Iowa
1987) (of note, Artiga-Morales did not argue to the district court or on
appeal that the prosecution's accessing the jurors' criminal histories
exceeded its authority under NRS 179A.100), to adopting a variant of
Massachusetts General Law, ch. 234A § 33 (2009), which authorizes "[t]he
court, the office of jury commissioner, and the clerk of court. . . to inquire
into the criminal history records of grand and trial jurors for the limited
purpose of corroborating and determining their qualifications for juror
service," to adopting a variant of Rule 421 of the Uniform Rules of
Criminal Procedure, which makes it the duty of the prosecuting attorney,
on the defendant's written request, to allow access to various materials,
including "reports on prospective jurors," to doing nothing at all given the
depth and range of publicly available information on the Internet today.
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the need to protect work product, practicality, and fundamental fairness
than this case, with its limited record and arguments.
We have considered Artiga-Morales's remaining assignments
of error and find them without merit. The prosecutor's use of Artiga-
Morales's photograph during closing argument with the word "guilty"
across the front presents an issue analogous to that in Watters v. State,
129 Nev. , 313 P.3d 243 (2013). But the photo was briefly
displayed during closing argument, not extensively displayed during
opening statement as in Wcaters; the defense conceded that the
prosecution's limited use of the power point photograph during closing
argument was proper; and the court sustained the defense's objection to
the photograph the second time it was shown. Impropriety and prejudice
of the sort demonstrated in Watters thus does not appear.
We affirm.
Gibbons
/- J.
Hardesty
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CHERRY, J., with whom DOUGLAS and SAITTA, JJ., agree, dissenting:
The majority fails to recognize that this court has inherent
supervisory authority over criminal procedure within Nevada's trial
courts. See Halverson v. Hardcastle, 123 Nev. 245, 261-62, 163 P.3d 428,
440 (2007) (indicating that this court has "inherent power to prevent
injustice and to preserve the integrity of the judicial process"); State v.
Second Judicial Dist. Court, 116 Nev. 953, 968, 11 P.3d 1209, 1218 (2000)
(holding that this court has inherent authority to regulate procedure in
criminal cases). Under this authority, when a practice or procedure
creates an inequality between adverse parties that reflects on the fairness
of the criminal process, we have the inherent duty to correct such
disparity.
The instant case demonstrates the prejudice and lack of
fairness that results when the prosecution fails to disclose veniremember
information. During voir dire, the prosecution used its exclusive
knowledge regarding the criminal history of a veniremember's son as the
basis for her examination and subsequent peremptory challenge.
Meanwhile, defense counsel, without access to the same information, was
unable to verify the truthfulness of the veniremember's answers or
develop independent questions suggested by the omitted information. I
am at a loss to explain why the prosecution should be granted such an
advantage over the defense; principles of fairness and justice require that
it be provided to defense counsel.
A growing number of jurisdictions permit defense counsel to
review veniremember information available exclusively to the prosecution.
Tagala v. State, 812 P.2d 604, 612 (Alaska Ct. App. 1991) ("Our sense of
fundamental fairness requires placing defendant upon an equal
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footing. . . ." (internal quotation omitted)); People v. Murtishaiv, 631 P.2d
446, 465 (Cal. 1981) ("[A] trial judge will have discretionary authority to
permit defense access to jury records and reports of investigations
available to the prosecution."), superseded on other grounds by statute as
stated in People v. Boyd, 700 P.2d 782, 790 (Cal. 1985); Losavio v. Mayber,
496 P.2d 1032, 1035 (Colo. 1972) ("The requirements of fundamental
fairness and justice dictate" allowing defense counsel access to criminal
histories of veniremembers); State v. Bessenecker, 404 N.W.2d 134, 138
(Iowa 1987) ("[C]onsiderations of fairness and judicial control over the jury
selection process requires" equal access to juror information.);
Commonwealth v. Smith, 215 N.E.2d 897, 901 (Mass. 1966) ("The public
interest in assuring the defendant a fair trial is, we think, equal to the
public interest in assuring such a trial to the Commonwealth."); State v.
Goodale, 740 A.2d 1026, 1031 (N.H. 1999) ("We disagree that the
defendant had no interest in knowing the criminal histories of the
potential replacement jurors."). I believe that Nevada should follow suit.
I am extremely concerned about the unintended consequences
that the majority disposition produces. It is not uncommon for the
criminal defense bar as well as the Nevada prosecutors to read, reread,
digest, and analyze every disposition, whether opinion or order of this
court, to facilitate preparation of their tactics and strategies for their
upcoming trials. What the majority disposition will cause is extensive use
of jury questionnaires in many more cases than are used today, extensive
use of Facebook, Google, and the like to find out "who is that person on the
petit jury panel," investigators talking to and interviewing neighbors and
coemployees of potential jurors, and even the use of a "war room" that is
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portrayed in John Grisham's book and movie Runaway Jury. Is this what
will occur to "even the playing field" and bring basic fairness to the
administration of the criminal justice system in our state? Even the
majority concedes that other jurisdictions have mandated the sharing of
jury information in criminal cases. Why should Nevada be different when
it comes to basic fairness?
For these reasons, I would reverse Artiga-Morales's
conviction and grant him a new trial.
J.
We concur:
na J.
Douglr
J.
Saitta
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