130 Nev., Advance Opinion S 2.
IN THE SUPREME COURT OF THE STATE OF NEVADA
ABRON MARCUS BUCHANAN, No. 62343
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. OCT 02 014
Appeal from a judgment of conviction, pursuant 'to a jury
verdict, of burglary and robbery. Eighth Judicial District Court, Clark
County; Abbi Silver, Judge.
Reversed and remanded.
Philip J. Kohn, Public Defender, and Sharon G. Dickinson, Deputy Public
Defender, Clark County,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, Steven S. Owens, Chief Deputy District
Attorney, and Jacob J. Villani, Deputy District Attorney, Clark County,
for Respondent.
BEFORE HARDESTY, DOUGLAS and CHERRY, JJ.
OPINION
By the Court, DOUGLAS, J.:
In this opinion, we address whether, after a district court
grants an evidentiary hearing on a pretrial motion to strike a jury venire,
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it is structural error to deny that motion before completing the evidentiary
hearing. We hold that it is.
FACTS AND PROCEDURAL HISTORY
Buchanan was charged with burglary, robbery, and abuse or
neglect of an older person. Upon seeing the jury venire enter the
courtroom for voir dire, Buchanan's counsel lodged an immediate
objection, seeking to strike the venire for an alleged violation of
Buchanan's constitutional right to a jury selected from a fair cross section
of the community Buchanan's counsel argued that because the jury
venire contained no Black prospective jurors, it was not representative of
Clark County's population. Buchanan's counsel then questioned the
Eighth Judicial District Court's jury-selection process and whether it was
reaching a fair cross section of the community in Clark County.
The prosecutor conceded that the group alleged to be excluded,
Black citizens, constitutes a distinctive group, and that Buchanan's venire
did not contain a fair and reasonable representation of that group. Thus,
the only dispute regarding Buchanan's fair-cross-section challenge was
whether the underrepresentation of Black citizens in the jury venire was
due to systematic exclusion in the jury-selection process. The prosecutor
contended that it was not. Before Buchanan's counsel could rebut the
prosecutor's claim in an attempt to prove systematic exclusion, the district
court judge ended arguments, stating that she would put the jury
commissioner under oath to determine how the jury venire was selected
and whether Black citizens were being systematically excluded.
Immediately after granting this evidentiary hearing, but before holding it,
the district court judge sua sponte denied Buchanan's motion because she
did not believe the jury-selection process systematically excluded Black
citizens.
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Thereafter, the jury panel was selected and sworn in.
Buchanan's counsel then asked the district court judge about interviewing
the jury commissioner. The district court judge stated that she had
already denied the motion and planned on waiting until Buchanan's trial
was over before holding the hearing with the jury commissioner. After a
two-day trial, the jury found Buchanan guilty of burglary and robbery.
The next day, the district court judge allowed the parties to question the
acting jury commissioner for the Eighth Judicial District Court.
DISCUSSION
Buchanan argues that the district court committed structural
error under Brass v. State, 128 Nev. 291 P.3d 145 (2012), by making
its determination prior to a full hearing on his fair-cross-section challenge.
The State contends that Brass is inapposite.'
Whether the district court's actions in this case constituted
structural error is a question of law that we review de novo. See Chavez v.
State, 125 Nev. 328, 339,
213 P.3d 476, 484 (2009).
In Brass, defendant's counsel lodged a Batson 2 objection
during voir dire after the prosecutor used a peremptory challenge to strike
a Black prospective juror from the jury venire. 128 Nev. at , 291 P.3d
at 148. Only after dismissing the prospective juror at issue did the district
court conduct its hearing on the Batson challenge. Id. We concluded that
"We note that Brass involved a Batson challenge, and that this case
centers on a fair-cross-section challenge; however, both situations raise
the issue of what constitutes proper district court conduct when jury-selection challenges are raised.
2Batson v. Kentucky, 476 U.S. 79 (1986).
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"when a defendant asserts a Batson violation, it is a structural error to
dismiss the challenged juror prior to conducting the Batson hearing
because it shows that the district court predetermined the challenge
before actually hearing it." Id. at , 291 P.3d at 147. In making this
decision, we expressed our concern "that the dismissal of a prospective
juror before holding a Batson hearing may present thefl appearance of
improper judicial bias." Id. at n.4, 291 P.3d at 149 n.4.
Here, Buchanan's counsel lodged an objection and moved the
court to strike the jury venire based on an alleged violation of Buchanan's
fair-cross-section right. Although "Nhe Sixth Amendment does not
guarantee a jury or even a venire that is a perfect cross section of the
community," a criminal defendant "is entitled to a [jury] venire selected
from a fair cross section of the community" Williams v. State, 121 Nev.
934, 939,
125 P.3d 627, 631 (2005) (emphasis added). To establish a prima
facie violation of the fair-cross-section guarantee, a criminal defendant
must show:
"(1) that the group alleged to be excluded is a
'distinctive' group in the community; (2) that
the representation of this group in venires
from which juries are selected is not fair and
reasonable in relation to the number of such
persons in the community;[ 3 ] and (3) that this
3 The U.S. Supreme Court has not yet approved any particular
method or threshold for satisfying this requirement. See Berg huis v.
Smith, 559 U.S. 314, 329-30 (2010). This court has stated that
comparative disparities over 50% indicate that a group is
underrepresented. Williams, 121 Nev. at 940 n.9,
125 P.3d at 631 n.9.
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underrepresentation is due to systematic exclusion
of the group in the jury-selection process." 4
Evans v. State, 112 Nev. 1172, 1186,
926 P.2d 265, 275 (1996) (emphasis
omitted) (quoting Duren v. Missouri, 439 U.S. 357, 364 (1979)). If a
criminal defendant establishes a prima facie showing, "the burden shifts
to the government to show that the disparity is justified by a significant
state interest." Id. at 1187, 926 P.2d at 275.
During the district court's initial sidebar addressing
Buchanan's motion to strike the venire, the prosecutor conceded the first
two elements of the fair-cross-section test, leaving only the issue of
whether the Eighth Judicial District Court's jury-selection process
systematically excluded Black citizens. After hearing initial arguments on
that issue, the district court judge granted Buchanan an evidentiary
hearing with the jury commissioner to determine how Buchanan's jury
venire was selected and whether the process used systematically excluded
Black citizens. But the district court judge then denied Buchanan's
motion to strike the jury venire for violating his fair-cross-section right
before conducting that hearing. Thus, Buchanan was not afforded a
4 In Berghuis, the U.S. Supreme Court emphasized that a defendant
merely pointing to multiple factors that might contribute to a distinctive
group's underrepresentation in jury venires is insufficient to show
systematic exclusion. 559 U.S. at 332 Instead, a defendant must show
that underrepresentation is inherent in the particular selection process.
Evans v. State, 112 Nev. 1172, 1186-87,
926 P.2d 265, 275 (1996); see also
Duren v. Missouri, 439 U.S. 357, 367 (1979) (concluding that Missouri's
law exempting women from jury service and the way that Jackson County
administered that law were systematic causes of women's
underrepresentation in jury venires).
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complete hearing on his pretrial motion before the district court judge
decided the issue.
While Buchanan's case is factually distinguishable from Brass,
the district court judge's actions elicit the same concerns. By indicating
that she would conduct an evidentiary hearing and consider testimony
from the jury commissioner but then deciding the fair-cross-section
challenge before doing so, and making that decision based on a record
devoid of any factual information regarding the venire selection process,
the district court judge predetermined the challenge and created the
appearance of improper judicial bias. This was structural error and
requires reversal. See Neder v. United States, 527 U.S. 1, 8 (1999)
(recognizing that trial judge bias constitutes structural error); see also
Brass, 128 Nev. at , 291 P.3d at 148. We therefore hold that when a
defendant moves the court to strike a jury venire, and the district court
determines that an evidentiary hearing is warranted, it is structural error
for the district court to deny the defendant's challenge before holding that
hearing to determine the merits of the motion. 5
5During the belated hearing, the jury commissioner testified that the
Eighth Judicial District Court's jury-selection process relies on random
selections, without regard to race or gender, from a database created with
information from the DMV and Nevada Energy. We do not determine
whether this process disproves systematic exclusion of Black citizens in
Clark County because the district court committed independent reversible
error by making its decision before understanding this process. See Miller
v. Burk, 124 Nev. 579, 588-89,
188 P.3d 1112, 1118-19 (2008) (stating that
this court will not decide constitutional issues in an appeal unless
necessary).
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Because we reverse the district court's decision on the
independent grounds of structural error, we decline to consider
Buchanan's challenge to the sufficiency of the evidence supporting his
convictions. See United States v. Douglas, 874 F.2d 1145, 1150 (7th Cir.
1989) (acknowledging that the Supreme Court "has never held that a
reviewing court must review the sufficiency of the evidence whenever a
defendant raises the issue on appeal"), abrogated on other grounds by
United States v. Durrive, 902 F.2d 1221, 1225-26 (7th Cir. 1990).
Based on the foregoing, we reverse Buchanan's convictions for
robbery and burglary and remand this matter to the district court for a
new trial.
J.
We concur:
/ cleaStaak J.
Hardesty
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