132 Nev., Advance Opinion 74
IN THE SUPREME COURT OF THE STATE OF NEVADA
FREDRICK LEWIS BOWMAN, ATK/A
FREDERICK LEWIS BOWMAN, No. 67656
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. OCT 2 7 2016
A. BROWN
CHIEF
Petition for en bane reconsideration of a panel opithon in an
appeal from a judgment of conviction, pursuant to a jury verdict, of
trafficking in a controlled substance. Second Judicial District Court,
Washoe County; David A. Hardy, Judge.
Petition granted; reversed and remanded.
Ristenpart Law and Theresa A. Ristenpart, Reno,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Christopher J. Hicks,
District Attorney, and Joseph R. Plater, Deputy District Attorney, Washoe
County,
for Respondent.
BEFORE THE COURT EN BANC.'
'The Honorable Nancy M. Saitta, Justice, having retired, this
matter was decided by a six-justice court.
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OPINION
By the Court, GIBBONS, J.:
We previously issued an opinion in this matter on April 28,
2016. After respondent petitioned for en bane reconsideration, we
withdrew that opinion and granted the petition for en bane
reconsideration. We now issue this opinion in place of our prior opinion.
On en bane reconsideration, we reach the same conclusion as in our prior
opinion
This appeal concerns (1) whether it was error for the district
court to deny appellant's motion for a new trial based on juror misconduct;
(2) whether it was prejudicial for the district court to fail to give a jury
instruction sua sponte prohibiting jurors from conducting independent
research, investigations, or experiments; and (3) whether the stock jury
admonition required pursuant to NRS 175.401 fails to protect the parties'
right to a fair trial. We conclude that the juror misconduct here was
sufficient to warrant a new trial and that failure to give a jury instruction
prohibiting jurors from conducting independent investigations or
experiments constitutes a reversible error. We reverse the district court's
order denying appellant's motion for a new trial and remand this matter
to the district court for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
A Washoe County Sheriffs deputy conducted an intake search
of appellant Fredrick Bowman. While conducting the search, the deputy
found a small white package containing methamphetamine at Bowman's
feet. The State charged Bowman with a single count of trafficking in a
controlled substance.
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At trial, the State advanced a theory that Bowman hid the
package in his sock or on his person and it fell to the ground during the
intake search. The defense's theory of the case was that the package was
carried to that location because it was stuck to the deputy's boot. Neither
Bowman nor the State requested an instruction prohibiting the jury from
conducting independent research, investigations, or experiments, and the
district court did not give such an instruction sua sponte.
The jury deliberated for roughly three hours and requested to
be released for the evening to continue deliberations the following
morning. The district court judge admonished the jury pursuant to NRS
175.401, which does not include an admonishment against conducting
independent research, investigations, or experiments.
That evening, two jurors individually conducted experiments
testing the parties' theories of the case. Both jurors returned the following
morning and participated in deliberations. The jury returned a
unanimous guilty verdict. Following trial, the jurors who conducted
independent experiments revealed to counsel that they relied on their
independent experiments in reaching a verdict.
Bowman moved the district court to declare a mistrial and
order a new trial due to juror misconduct. The district court held a
hearing and determined that the deputy district attorney would have an
investigator contact the jurors who conducted the independent
experiments for a future evidentiary hearing regarding the prejudicial
effect of their independent experiments. Additionally, the deputy district
attorney drafted questions, in the form of an affidavit, for those jurors.
Both jurors confirmed in their affidavits that they conducted
independent experiments and disclosed their experiments to other jurors
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prior to the jury rendering a verdict. However, at the subsequent
evidentiary hearing, both jurors testified, contrary to their sworn
affidavits, that they only disclosed their experiments to one another
during the short time period after the jury rendered a verdict but before
the jury reentered the courtroom. 2
Following the jurors' testimony, the district court denied
Bowman's motion for a new trial, concluding that there was no reasonable
probability that the verdict was affected by the independent experiments
because the jurors who conducted the experiments did not change their
votes after conducting the experiments and did not disclose them to other
jurors until after a guilty verdict was reached. In this appeal, Bowman
argues that (1) the district court erred in denying his motion for a new
trial because the independent experiments conducted by the jurors
constitute juror misconduct, and (2) the statutory admonition required
pursuant to NRS 175.401 does not adequately protect a party's right to a
fair trial because it does not include a warning against conducting
independent investigations and experiments.
DISCUSSION
The district court erred in denying Bowman's motion for a new trial
Bowman argues that the district court erred in denying his
motion for a new trial because the independent experiments conducted by
the jurors constituted prejudicial misconduct. We agree.
Wben confronted with this inconsistency, one juror, after speaking
2
with the deputy district attorney's investigator, realized that the
information he provided in his affidavit was incorrect.
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"A denial of a motion for a new trial based upon juror
misconduct will be upheld absent an abuse of discretion by the district
court." Meyer v. State, 119 Nev. 554, 561,
80 P.3d 447, 453 (2003) (citing
United States v. Saya, 247 F.3d 929, 935 (9th Cir. 2001)). "Absent clear
error, the district court's findings of fact will not be disturbed. However,
where the misconduct involves allegations that the jury was exposed to
extrinsic evidence in violation of the Confrontation Clause, [31 de novo
review of a trial court's conclusions regarding the prejudicial effect of any
misconduct is appropriate." Id. at 561-62, 80 P.3d at 453.
To prevail on a motion for a new trial alleging juror
misconduct, "the defendant must present admissible evidence sufficient to
establish: (1) the occurrence of juror misconduct, and (2) a showing that
the misconduct was prejudicial." Id. at 563-64,
80 P.3d at 455. Thus,
"[elven if the jurors' behavior was misconduct, not every incidence of juror
misconduct requires a new trial. If it appears beyond a reasonable doubt
that no prejudice occurred, a new trial is unnecessary." Hernandez v.
State, 118 Nev. 513, 522,
50 P.3d 1100, 1107 (2002).
"Prejudice is shown whenever there is a reasonable probability
or likelihood that the juror misconduct affected the verdict." Meyer, 119
Nev. at 564,
80 P.3d at 455. We have concluded that:
[a juror's] exposure to extraneous information via
independent research or improper experiment
is. . . unlikely to raise a presumption of prejudice.
3 For example, in Zana v. State, 125 Nev. 541, 547,
216 P.3d 244, 248
(2009), we concluded that a juror's independent Internet search that he
later disclosed to other jurors constituted the use of extrinsic evidence in
violation of the Confrontation Clause.
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In these cases, the extrinsic information must be
analyzed in the context of the trial as a whole to
determine if there is a reasonable probability that
the information affected the verdict.
Id. at 565,
80 P.3d at 456. Meyer provides several factors to guide our
determination, including:
how the material was introduced to the jury
(third-party contact, media source, independent
research, etc.), the length of time it was discussed
by the jury, and the timing of its introduction
(beginning, shortly before verdict, after verdict,
etc.). Other factors include whether the
information was ambiguous, vague, or specific in
content; whether it was cumulative of other
evidence adduced at trial; whether it involved a
material or collateral issue; or whether it involved
inadmissible evidence (background of the parties,
insurance, prior bad acts, etc.).
Id. at 566,
80 P.3d at 456. Thus, "the district court is required to
objectively evaluate the effect [the extrinsic material] had on the jury and
determine whether it would have influenced 'the average, hypothetical
juror.'" Zana, 125 Nev. at 548,
216 P.3d at 248 (quoting Meyer,
119 Nev.
at 566,
80 P.3d at 456). It is not necessary that the extrinsic material be
disclosed to the jury; a single juror's exposure to extrinsic material may
still influence the verdict because that juror may interject opinions during
deliberations while under the influence of the extrinsic material. See
Tanksley v. State, 113 Nev. 997, 1005,
946 P.2d 148, 152-53 (1997).
The occurrence of juror misconduct
The determination of juror misconduct is a "factual inquiry."
Meyer, 119 Nev. at 566,
80 P.3d at 456. Analyzing the facts here, it is
uncontested that juror misconduct occurred. Both jurors stated in their
sworn affidavits that they conducted independent experiments to test the
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theories of the case advanced at trial and later confirmed that they
conducted the experiments prior to returning to jury deliberations We
therefore conclude that Bowman presented evidence sufficient to establish
that misconduct occurred.
Juror misconduct was prejudicial
The determination of prejudice is a legal inquiry. See Meyer,
119 Nev. at 564-65,
80 P.3d at 455-56 (indicating the court decides
whether there is a "reasonable probability or likelihood that the juror
misconduct affected the verdict"). Applying the Meyer factors here, we
further conclude that Bowman presented sufficient evidence to show that
there is a reasonable probability that the independent experiments
affected the jury's verdict and therefore fulfilled the second requirement to
prevail on a motion for a new trial Although there is some dispute as to
whether and how the independent experiments were disclosed to fellow
jurors, it is clear that two jurors conducted independent experiments
testing two primary theories of the case and returned to participate in jury
deliberations after being influenced by that extrinsic evidence. The jurors
later disclosed to counsel that they relied on those experiments—either by
swaying them to change their votes or by reinforcing their previously held
positions before rendering a verdict. Additionally, the short length of trial,
the timing of the experiments relative to the verdict, the specificity of the
experiments, and the materiality of the experiments all weigh in favor of
concluding that the extraneous information would have influenced the
average, hypothetical juror. We therefore conclude that the misconduct
here was prejudicial.
Given the totality of the circumstances here, with both the
factual and legal inquiries weighing in favor of granting a new trial, we
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conclude the district court abused its discretion in denying Bowman's
motion for a new trial.
The district court should have provided a jury instruction admonishing
jurors against conducting independent research, investigations, and
experiments
"Failure to object to or request a jury instruction precludes
appellate review, unless the error is patently prejudicial and requires the
court to act sua sponte to protect the defendant's right to a fair trial."
McKenna v. State, 114 Nev. 1044, 1052,
968 P.2d 739, 745 (1998). We
conclude that the district court's failure• to give a jury instruction
admonishing jurors against conducting independent research,
investigations, or experiments is prejudicial error requiring us to act.
Challenges to unobjected-to jury instructions are reviewed for
plain error. See Berry v. State, 125 Nev. 265, 282-83,
212 P.3d 1085, 1097
(2009), abrogated on other grounds by State v. Castaneda, 126 Nev. 478,
245 P.3d 550 (2010). "The need for [an] instruction must be analyzed in
light of the circumstances of the case." Bonin v. Vasquez, 807 F. Supp.
589, 617 (C.D. Cal. 1992) (citing United States v. Martin,
489 F.2d 674,
677 n.3 (9th Cir. 1973)) (concluding that a trial court's failure to give jury
instructions sua sponte as to unreliability of informant testimony is not
necessarily plain error requiring reversal), affd sub nom. Bonin v.
Calderon, 59 F.3d 815 (9th Cir. 1995).
Although the jury instructions are not in the record on appeal,
the State conceded at oral argument that the jury instructions did not
include an instruction prohibiting jurors from conducting independent
research, investigations, or experiments. It is of paramount importance
that district courts provide a clear instruction to jurors in all cases to not
conduct any form of independent research, investigations, or experiments
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prior to or during jury deliberations. Here, the parties advanced two
primary theories of the case that could be easily tested or investigated by
jurors. The results of such investigations or experiments, as demonstrated
here, would have a direct impact on the verdict and the defendant's right
to a fair trial. We therefore conclude that the district court's failure to
give a jury instruction in this case prohibiting jurors from conducting any
independent research, investigations, or experiments constituted error
requiring reversal consistent with our analysis in Meyer. See Meyer, 119
Nev. at 564-66,
80 P.3d at 455-56.
We further conclude that, given the ease with which jurors
may conduct independent research, investigations, and experiments,
failure to give an instruction prohibiting jurors from such conduct in any
civil or criminal case constitutes error. The Manual of Model Criminal
Jury Instructions for the District Courts of the Ninth Circuit (2010) advises
district courts to include an instruction regarding the jurors' consideration
of the evidence. Such an instruction should make clear that during
deliberations jurors are not to: (1) communicate with anyone in any way
regarding the case or its merits—either by phone, email, text, Internet, or
other means; (2) read, watch, or listen to any news or media accounts or
commentary about the case; (3) do any research, such as consulting
dictionaries, using the Internet, or using reference materials; (4) make any
investigation, test a theory of the case, re-create any aspect of the case, or
in any other way investigate or learn about the case on their own. Id. at
§§ 1.8, 2.1, 7.2.
We note that an appeal based on a district court's failure to
provide such an instruction in a case where no juror misconduct occurred
would likely be considered harmless error, However, providing such an
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instruction in all cases will undoubtedly protect the parties' right to a fair
trial and prevent jurors from unknowingly tainting the integrity of the
deliberative process.
Bowman failed to object to the statutory jury admonition at trial
Bowman argues that the statutory jury admonition required
pursuant to NRS 175.401 is insufficient and does not adequately protect
the parties' right to a fair trial. Bowman failed to object to the statutory
jury admonition at trial. We conclude that it was not plain error for the
district court to provide the statutory jury admonition required pursuant
to NRS 175.401.
"Failure to object generally precludes appellate review."
Saletta v. State, 127 Nev. 416, 421,
254 P.3d 111, 114 (2011). However,
this court has discretion to review an unpreserved error "if it [is] plain and
affected the defendant's substantial rights." Gallego v. State, 117 Nev.
348, 365,
23 P.3d 227, 239 (2001), abrogated on other grounds by Nunnery
v. State, 127 Nev. 749,
263 P.3d 235 (2011); see NRS 178.602. "In
conducting plain error review, we must examine whether there was error,
whether the error was plain or clear, and whether the error affected the
defendant's substantial rights." Green v. State, 119 Nev. 542, 545,
80 P.3d
93, 95 (2003) (internal quotation marks omitted). Unlike jury
instructions, the statutory jury admonition does not permit judicial
discretion regarding its content, and it is given at the beginning of trial,
without the same context and information available when the jury
instructions are given. Therefore, we conclude that no plain error
occurred with regard to the content or conveyance of the statutory jury
admonition required by MRS 175.401, and we therefore decline to further
address this issue.
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CONCLUSION
We conclude that the district court erred in denying Bowman's
motion for a new trial based on juror misconduct, which had resulted in
prejudice to Bowman. Further, we conclude that where a district court's
failure to provide a jury instruction prohibiting jurors from conducting
independent research, investigations, or experiments of any kind results
in prejudice, the failure may constitute reversible error. Therefore, we
reverse and remand this case to the district court for further proceedings
consistent with this opinion.
J.
Gibbons
We concur:
DaStr" C.J.
Parraguirre
Hardesty
(-1
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