130 Nev., Advance Opinion 19
IN THE SUPREME COURT OF THE STATE OF NEVADA
EDWARD PRECIADO, A/K/A EDWARD No. 58000
A. PRECIADO-NUNO,
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. FEB 1 3 2014
E LINDEM
CL F m
By / DtPUTY CL
ite
Appeal from a judgment of conviction, Pursuant to a jury
verdict, of voluntary manslaughter with the use of a deadly weapon.
Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Affirmed.
Law Office of Lisa Rasmussen and Lisa A. Rasmussen, Las Vegas,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District
Attorney, Clark County,
for Respondent.
BEFORE GIBBONS, C.J., DOUGLAS and SAITTA, JJ.
OPINION
By the Court, DOUGLAS, J.:
We take this opportunity to stress that bench and in-chambers
conferences should be memorialized either contemporaneously or by
allowing counsel to make a record afterward; and that a prospective juror
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who is anything less than unequivocal about his or her impartiality should
be excused for cause.
Appellant Edward Preciado engaged in a physical altercation
with Kim Long. During the altercation, Preciado repeatedly struck Long
in the head with a hammer, killing her. Preciado claimed self-defense, but
a jury convicted Preciado of voluntary manslaughter with the use of a
deadly weapon. The district court sentenced Preciado to the maximum of
4 to 10 years in prison, with a consecutive 4 to 10 years for the weapon
enhancement.
On appeal, Preciado raises eight issues for this court's review:
(1) whether the district court's failure to record numerous bench and in-chambers conferences was a constitutional violation; (2) whether the
district court erred in declining to give Preciado's jury questionnaire and
denying his challenges for cause; (3) whether the State committed
prosecutorial misconduct; (4) whether the State mishandled critical
evidence; (5) whether the district court erred in limiting Preciado's
examination of three witnesses; (6) whether the trial judge improperly
sentenced Preciado; (7) whether the trial judge was biased against the
defense; and (8) whether cumulative error requires a new trial.'
After full consideration, we determine that only two of
Preciado's issues have some merit: that the district court erred in failing to
record numerous bench and in-chambers conferences and in failing to
Preciado also asks this court to review alleged errors in his
presentence investigation report, but we decline to do so because he failed
to object to any perceived inaccuracies in the report at the time of his
sentencing, thereby waiving the argument on appeal. See NRS 176.156(1);
Stockmeier v. State, Bd. of Parole Comm'rs, 127 Nev. „ 255 P.3d
209, 214 (2011).
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excuse for cause a prospective juror who was equivocal about her
impartiality. However, these errors were harmless; thus, we affirm
Preciado's judgment of conviction.
Unrecorded bench conferences and in-chambers discussions
The district court conducted numerous unrecorded bench and
in-chambers conferences during Preciado's trial. The court memorialized
some of the conferences, but not all. The court also denied Preciado's
motion to settle the trial record and reconstruct the unrecorded
conferences. Preciado argues that the court's failure to make a record of
all of the conferences effectively denied him his right to appeal.
Meaningful appellate review is inextricably linked to the
availability of an accurate record of the lower court proceedings regarding
the issues on appeal; therefore, a defendant is entitled to have the most
accurate record of his or her district court proceedings possible. See
Daniel v. State, 119 Nev. 498, 507-08,
78 P.3d 890, 897 (2003). In Daniel,
we determined that SCR 250(5)(a) and due process require a district court
to record all sidebar proceedings in a capital case either
contemporaneously with the matter's resolution, or the sidebar's contents
must be placed on the record at the next break in trial. Id.
Due process requires us to extend our reasoning in Daniel to
defendants in noncapital cases, because regardless of the type of case, it is
crucial for a district court to memorialize all bench conferences, either
contemporaneously or by allowing the attorneys to make a record
afterward.
Here, the district erred by failing to make a record of the
unrecorded conferences, but this misstep does not warrant reversal. A
district court's failure to make a record of an unrecorded sidebar warrants
reversal only if the appellant shows that the record's missing portions are
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so significant that their absence precludes this court from conducting a
meaningful review of the alleged errors that the appellant identified and
the prejudicial effect of any error. Id. at 508,
78 P.3d at 897. Preciado did
not demonstrate that the district court's failure to record all conferences
prejudiced his appeal. The district court record is sufficient to allow this
court to adequately consider all issues that Preciado preserved for appeal.
Thus, the unrecorded conferences did not prejudice Preciado, and reversal
is not warranted.
Challenges for cause
During the jury selection process, Preciado asserted challenges
for cause against prospective jurors #304, #318, and #496, in an attempt to
exclude the jurors from the jury pool. Preciado asserted that: (1)
prospective juror #304's statement that graphic photos would make her
think Preciado was a little bit guilty demonstrated that she could not be
impartial when reviewing the evidence and rendering a verdict, (2) the
district court should have excluded prospective juror #318 because he
knew two of the State's witnesses, and (3) prospective juror #496's
relationship with a Las Vegas police officer effectively prohibited her from
being objective when evaluating the evidence.
The district court denied all of Preciado's challenges for cause
after each of the three prospective jurors stated that he or she could be
impartial. The court determined that the jurors' statements alleviated
any doubt as to their impartiality. In response, Preciado used peremptory
challenges to eliminate prospective jurors #304 and #496, but he did not
have any remaining peremptory challenges to eliminate prospective juror
#318, who sat on the empaneled jury.
A prospective juror should be removed for cause only if the
"prospective juror's views 'would prevent or substantially impair the
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performance of his duties as a juror in accordance with his instructions
and his oath." Weber v. State, 121 Nev. 554, 580,
119 P.3d 107, 125 (2005)
(quoting Leonard v. State, 117 Nev. 53, 65,
17 P.3d 397, 405 (2001)). "If
the jury actually seated is impartial, the fact that a defendant had to use a
peremptory challenge to achieve that result does not mean that the
defendant was denied his right to an impartial jury." Blake v. State, 121
Nev. 779, 796,
121 P.3d 567, 578 (2005). A district court's erroneous
denial of a challenge for cause is reversible error only if it results in an
unfair empaneled jury. See id. The district court has broad discretion in
ruling on challenges for cause. Id. at 795,
119 P.3d at 577.
The district court did not abuse its discretion in denying
Preciado's challenges for cause against prospective jurors #318 and
#496, but the court did abuse its discretion in denying Preciado's challenge
against prospective juror. #304. Prospective jurors #318
and #496 unequivocally stated that they could be impartial when
examining the evidence and rendering a verdict; thus, they were
suitable jurors. But, while prospective juror #304 stated that she could
be impartial, she was equivocal. Prospective juror #304's statement that
a graphic photo would make her believe the defendant was guilty
(without proof that the defendant caused the damage depicted in
the photo) cast doubt on her impartiality. Therefore, the court
should have granted Preciado's challenge for cause against prospective
juror #304. However, the court's error was harmless and does not require
reversal because prospective juror #304 was not on the empaneled jury
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and her preconceptions did not infect the jury panel. Further, though
Preciado did not have a peremptory challenge left to remove juror #318,
we conclude that juror #318 demonstrated the ability to set aside any
preconceived prejudices. Therefore, juror #318's presence on the
empaneled jury did not prejudice Preciado. Consequently, this issue is not
grounds for reversal.
Accordingly, we affirm Preciado's conviction.
We con ur:
C.J.
ibbons
J.
aitta
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