133 Nev., Advance Opinion AI
IN THE SUPREME COURT OF THE STATE OF NEVADA
JERICHO JAMES BRIOADY, No. 70311
Appellant,
vs.
THE STATE OF NEVADA, FiLED
Respondent.
JUN 2 9 201?
?.ETH kERCEVIsl
CIE*
Appeal from a judgment of conviction, pursuant 'to jury
verdict, of two counts of lewdness with a minor under the age of fourteen
years. Second Judicial District Court, Washoe County; Scott N. Freeman,
Judge.
Reversed and remanded.
Karla K. Butko, Verdi,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Christopher J. Hicks,
District Attorney, and Terrence P. McCarthy, Chief Appellate Deputy
District Attorney, Washoe County,
for Respondent.
BEFORE HARDESTY, PARRAGUIRRE and STIGLICH, JJ.
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OPINION
By the Court, STIGLICH, J.:
To prevail on a motion for a new trial on the basis of juror
misconduct during voir dire a defendant must demonstrate (1) that the
juror at issue failed to honestly answer a material question, and (2) that a
correct response would have provided a valid basis for a challenge for
cause. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548,
556 (1984). Based on the facts of this case, we further conclude that the
district court erred in denying appellant Jericho Brioady's motion for a
new trial on the basis of juror misconduct.
FACTS AND PROCEDURAL HISTORY
This case involves allegations by C.P. that she was molested
by appellant Jericho Brioady, a family friend. C.P. was twelve years old at
the time.
Following an investigation, the State charged Brioady with
two counts of sexual assault on a child and three counts of lewdness with a
child under fourteen years of age. Brioady proceeded to trial in January
2016.
During voir dire, the district court informed the venire of the
importance of giving full, complete, and honest answers to any questions
asked. The district court asked, "Has anybody been a victim of a crime?
And if it's a personal matter, we'll take it on sidebar which means we'll
talk privately." Two veniremembers advised that they had been molested
as children. Another stated that her child had been a victim of
molestation. Several other veniremembers indicated that they had been
the victim of various property crimes. A veniremember who would later be
selected for the jury, serving as Juror Three, said nothing during this line
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of questioning. The State extensively questioned the veniremembers who
had been molested or related to victims of molestation about their ability
to be impartial. Juror Three did not volunteer any information during
these inquiries.
The State also asked the venire to think of their "most serious
secret," qualifying that they would not have to tell the secret. The State
then asked veniremembers if they had ever told anyone their secret.'
Juror Three indicated that she had a secret, and had eventually told a
doctor whom she trusted. She did not reveal any further details about the
secret. The defense exercised seven of its peremptory challenges, and
waived the eighth.
Following the presentation of evidence, and after
approximately ten hours of deliberation, the jury returned a verdict of
guilty with respect to two counts of lewdness with a minor, and not guilty
with respect to the remaining counts of sexual assault and lewdness.
On February 10, 2016, eleven days after entry of the verdict,
Brioady filed a motion for new trial on the basis of juror misconduct.
Brioady specifically alleged that it had come to his attention that Juror
Three had failed to inform the court that she had been a childhood victim
of molestation. At a hearing on the matter, Juror Three testified that she
did not remember the court asking if anyone had ever been a victim of a
crime. Despite the fact that she did not remember the question, Juror
Three also stated that while she had been the victim of molestation as a
'This line of questioning could reveal how the veniremembers would
react to evidence that the victim in this case waited several months to
report the molestation.
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child, she did not volunteer that fact, because she believed she could be a
fair and impartial juror and did not consider herself to be a victim. She
clarified, "[T]he truth is, I didn't feel it was necessary for me to bring up
an event that happened when I was four years old."
Nonetheless, Juror Three acknowledged that she had thought
of her prior molestation during the voir dire process, as she considered
those events to be the "most serious secret" that she identified in response
to the prosecutor's questions. Juror Three also testified that when she had
disclosed the molestation, it was to a therapist that she had seen when she
was an adult.
Juror Three testified that during deliberations she disclosed to
the other jurors that she had been a victim of childhood sexual abuse.
Nonetheless, Juror Three contended that she persuaded other jurors to
find Brioady not guilty of the two sexual assault charges. On the apparent
basis of this testimony, the district court denied the motion for a new trial,
finding that Brioady had failed to demonstrate prejudice arising from the
alleged misconduct of Juror Three.
Brioady appeals. Among other claims, he contends that the
district court erred in denying his motion for a new trial on the basis of
juror misconduct.
Standard of review and timeliness of motion
This court generally reviews the denial of a motion for a new
trial following juror misconduct for an abuse of discretion. Meyer v. State,
119 Nev. 554, 561,
80 P.3d 447, 453 (2003).
With respect to the timeliness of a motion for a new trial, NRS
176.515 provides that:
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1. The court may grant a new trial to a
defendant if required as a matter of law or on the
ground of newly discovered evidence.
3. Except as otherwise provided in NRS
176.09187, a motion for a new trial based on the
ground of newly discovered evidence may be made
only within 2 years after the verdict or finding of
guilt.
4. A motion for a new trial based on any
other grounds must be made within 7 days after
the verdict or finding of guilt or within such
further time as the court may fix during the 7-day
period.
In this case, the verdict was entered on January 22,2016. Brioady did not
file his motion for a mistrial until February 10, 2016. Because Brioady
filed his motion more than seven days after entry of the verdict, the State
argues that pursuant to NRS 176.515(4), his motion was untimely.
The State does not dispute that neither Brioady nor his
counsel were aware of any potential misconduct by Juror Three until
February 4, 2016, during a conversation with several deputy district
attorneys. Under these circumstances, we conclude that any information
related to misconduct by Juror Three was newly discovered evidence,
which is governed by the provisions of NRS 176.515(3). Because Brioady
filed his motion for a new trial within two years of the verdict, the district
court did not err in considering the motion on the merits.
The district court abused its discretion in denying the motion for a new
trial
Both this court and the United States Supreme Court have
indicated that to obtain a new trial on the basis of juror misconduct during
voir dire, "a party must first demonstrate that a juror failed to answer
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honestly a material question on voir dire, and then further show that a
correct response would have provided a valid basis for a challenge for
cause." McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556
(1984); see also Lopez v. State, 105 Nev. 68, 89,
769 P.2d 1276, 1290 (1989).
With respect to the "honesty" prong of this inquiry, "[t] he motives for
concealing information may vary, but only those reasons that affect a
juror's impartiality can truly be said to affect the fairness of a trial."
United States v. Edmond, 43 F.3d 472, 473 (9th Cir. 1994) (quoting
McDonough, 464 U.S. at 556). Generally, this "determination. . . turns
upon whether or not [a juror] is guilty of intentional concealment." Lopez,
105 Nev. at 89,
769 P.2d at 1290 (quoting Walker v. State,
95 Nev. 321,
323,
594 P.2d 710, 711 (1979)).
In Edmond, the Ninth Circuit examined a situation in which a
juror, during a prosecution for armed robbery, disclosed that his family car
had been stolen a year earlier but failed to disclose that he had also been
an armed robbery victim 26 years earlier. 43 F.3d at 473. By way of
explanation, the juror stated, "I just didn't think of it at the time. . . . It
never really entered my mind. Being that long ago. . . I didn't even think
of it. . . ." Id. Under these circumstances, the Ninth Circuit concluded
that "simple forgetfulness" did not fall "within the scope of dishonesty as
defined by McDonough," indicating that a new trial was not required. Id.
at 474. Similarly, in Lopez, this court concluded that two jurors had not
intentionally concealed information when they failed to disclose that they
had been victims of child abuse. Both jurors indicated that they had not
thought of child abuse as a crime, and were not deliberately attempting to
withhold information. 105 Nev. at 89-90,
769 P.2d at 1290-91.
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In this case, thefl district court concluded that while Juror
Three had withheld information related to the prior molestation, her belief
that she could be impartial indicated that her actions were not
"intentional." This conclusion is clearly belied by the record. Regardless
of Juror Three's motives, the record indicates a level of intentional
concealment not present in either Edmond or Lopez. Juror Three's first
explanation that she had forgotten about her childhood molestation was
clearly belied by her subsequent testimony that she chose not to disclose
because she believed she could be a fair and impartial juror, and did not
consider herself to be a victim. Juror Three again acknowledged that she
had thought of her prior molestation during the prosecutor's questions
regarding a "most serious secret." Nonetheless, Juror Three still failed to
disclose this information to the court.
Rather than forgetting her childhood experiences, Juror
Three's testimony more consistently indicated that she believed the prior
incident of molestation "wasn't relevant to me being an impartial juror."
In this situation, the question of Juror Three's ability to be impartial was
not a determination for her to make. It appears that any incident of
molestation was serious enough that Juror Three discussed the incident
with a therapist as an adult, and still regarded the molestation as a
"serious secret." Juror Three's testimony at the post-trial hearing
demonstrates that she knowingly failed to honestly answer a question
during voir dire.
Given the nature of the allegations in this case, a truthful
response by Juror Three would have very likely provided a basis for a
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challenge for cause. 2 In addition, Brioady used one of his peremptory
challenges to remove a veniremember who disclosed prior sexual abuse.
As a result of Juror Three's failure to disclose, Brioady was deprived of
any opportunity• to use his remaining peremptory challenge to excuse
Juror Three. Therefore, as the record in this case indicates both juror
misconduct and resulting prejudice, the district court abused its discretion
in denying Brioady's motion for a new trial.
CONCLUSION
The testimony at the post-trial hearing indicated that Juror
Three failed to honestly answer a material question during voir dire. Had
Juror Three truthfully disclosed that she had been a childhood victim of
molestation, this disclosure could have provided a valid basis for a
challenge for cause. Under these circumstances, the district court abused
its discretion in denying Brioady's motion for a new trial on the basis of
2 In Bowman v. State, this court recently reiterated that to prevail on
a motion for a new trial on the basis of juror misconduct during
deliberation, a defendant must establish both (1) juror misconduct, and
(2) that the conduct was prejudicial. 132 Nev., Adv. Op. 74, 387 P.3d. 202,
205 (2016). To the extent the district court applied Bowman, and relied on
Juror Three's testimony that she had persuaded certain jury members to
acquit Brioady of several charges to find a lack of prejudice, we note that
this information is not relevant to the analysis set forth in McDonough or
Edmonds. Further, we note testimony that "delve[s] into a juror's thought
process [to reach a verdict] cannot be used to impeach a jury verdict and
must be stricken." Meyer v. State, 119 Nev. 554, 563,
80 P.3d 447, 454
(2003).
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juror misconduct. Accordingly, we reverse the judgment of the district
court and remand this matter for a new tria1. 3
A44:4,4
Stiglich
We coney:
Mo... X.*
Parraguirre
3 We have reviewed Brioady's remaining claims, including his claims
that his statement to police detectives was wrongfully admitted; that his
conviction was not supported by sufficient evidence; that his conviction
violates the rule of corpus delicti; that the trial court erred in restricting
cross-examination regarding prior false accusations by the victim; that the
trial court wrongfully refused to give Brioady's proposed jury instruction
on unlawful contact with a child; and that the imposition of a life sentence
constitutes cruel and unusual punishment, and conclude that these claims
lack merit.
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