134 No v., Advance Opinion g`g ,
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
SAYEDBASHE SAYEDZADA, No. 71731
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent.
MAY 2 if 2018
ETFI A. BROWN
NVIX"
BY
CHIEF Dc Y CLERK
Appeal from a judgment of conviction, pursuan o a jury
verdict, of 13 counts of possession of credit or debit card without
cardholder's consent. Eighth Judicial District Court, Clark County . William
D. Kephart, Judge.
Affirmed.
Philip J Kohn, Public Defender, and Tyler C. Gaston and Deborah L.
Westbrook, Deputy Public Defenders, Clark County,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson.
District Attorney, John Thomas Jones, Chief Deputy District Attorney, and
Charles W. Thoman, Deputy District Attorney, Clark County,
for Respondent.
BEFORE SILVER, C.J., TAO and GIBBONS, JJ.
OPINION
By the Court, SILVER, C.J.:
Sayedbashe Sayedzada was arrested after a security guard
discovered Sayedzada hiding a woman's purse under his shirt; police later
determined the purse had been stolen. The State charged Sayedzada with
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possession of a credit or debit card without the cardholder's consent. The
case went to trial, and during voir dire, Sayedzada challenged several
prospective jurors for cause. The district court allowed a traverse of those
jurors before making its ruling. Sayedzada thereafter renewed his for-cause
challenge as to two of the prospective jurors. The district court denied
Sayedzada's challenges for cause, and Sayedzada used two peremptory
challenges to exclude those two jurors from the jury panel. Sayedzada did
not renew his challenge as to the other two jurors, and they were
empaneled.
In this opinion, we first address whether Sayedzada waived his
appellate argument of juror bias as to the two jurors he passed for cause
below. We thereafter address juror bias and whether the district court
abused its discretion by failing to strike the two challenged jurors for cause.
We first hold that a party waives the right to challenge a juror's
presence on the jury on appeal where the party's appellate argument is
based on facts known to the party during voir dire; the party consciously
elected not to pursue, or abandoned, a challenge for cause on that basis; and
the party accepted the juror's presence on the jury. We conclude that in this
case, Sayedzada waived his arguments regarding the empaneled jurors. We
thereafter turn to the issue of juror bias and distinguish between actual.
implied, and inferable bias. We conclude the district court erred by denying
one of Sayedzada's challenges for cause, but this error is harmless and does
not warrant reversal.
FACTS
Sayedzada attacked a condominium-complex security guard
who confronted him after the guard noticed he was hiding something under
his shirt and acting suspiciously. The guard subdued Sayedzada and called
the police. The guard discovered Sayedzada had a purse hanging around
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his neck, which Sayedzada claimed to have found. The purse contained
several credit cards belonging to a woman and her family. Additional credit
cards were found scattered on the ground where Sayedzada had been sitting
after the guard subdued him. Officers recovered a total of 13 credit cards.
When police contacted the purse's owner, she told them she was unaware
her purse, which she had left in her unlocked car the night before, had been
stolen. The State charged Sayedzada with 13 counts of possession of a credit
or debit card without the cardholder's consent, and he pleaded not guilty.
At the preliminary hearing, Sayedzada indicated that at trial
he would seek to exclude evidence of the purse theft. The State stated it
would not introduce that evidence, but acknowledged the jury would be able
to draw that inference from the facts.
As relevant to this appeal, during voir dire, Sayedzada initially
challenged prospective jurors 7, 29, 37, and 38 for cause. The district court
allowed a traverse of the challenged jurors before making its ruling. After
each side finished questioning the prospective jurors, Sayedzada renewed
his challenges to prospective jurors 29 and 38, but expressly declined the
court's invitation to make further challenges and did not renew his
challenges as to prospective jurors 7 and 37. The district court denied
Sayedzada's two challenges for cause without explanation, and Sayedzada
used his peremptory challenges to exclude prospective jurors 29 and 38 from
the jury panel. Prospective jurors 7 and 37 were empaneled, and Sayedzada
accepted the jury panel without further objection. The jury convicted
Sayedzada on all charges following a two-day trial. Sayedzada appeals.
ANALYSIS
Sayedzada contends the district court's denial of his challenges
for cause requires reversal because prospective jurors 7 and 37 were
empaneled, which in turn prejudiced his case. Sayedzada also contends the
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district court abused its discretion by denying his challenges for cause to
prospective jurors 29 and 38. 1 We address these points in turn.
Waiver of right to challenge jurors 7 and 37 on appeal
Sayedzada argues the empaneled jury was not fair and
impartial because it included jurors 7 and 37, whom he had initially
objected to for cause below. Sayedzada claims these jurors gave answers
during voir dire that indicated they were biased. When questioned at oral
argument as to whether his failure to maintain an objection below waived
the claim, Sayedzada conceded that he failed to renew his challenge for
cause with respect to these jurors after they were traversed as to bias. But
Sayedzada argued his counsel's actions below are irrelevant under Blake v.
State, 2 which he contends requires this court to reverse the verdict if any
biased juror is empaneled, regardless of whether the party challenged that
juror for cause below.
1 Sayedzada additionally argues the district court violated his
constitutional rights by denying his fair-cross-section challenge without an
evidentiary hearing. Sayedzada did not make a prima facie showing that
the venire process systematically excluded a distinctive group in the
community or that the district court selected the jury panel in an unfair
manner, and accordingly, we conclude Sayedzada was not deprived of his
right to a jury selected from a fair cross section of the community. See
Williams v. State, 121 Nev. 934, 939,
125 P.3d 627, 631 (2005) ("The Sixth
Amendment does not guarantee a jury or even a venire that is a perfect
cross section of the community."). Sayedzada further argues the evidence
was insufficient, the prosecutor engaged in misconduct, the district court
abused its discretion when making various evidentiary findings, and
cumulative error warrants reversal. We have carefully considered the
parties' arguments on these additional points and conclude these claims
lack merit.
2 121 Nev. 779, 796,
121 P.3d 567, 578 (2005).
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As an initial matter, Blake does not stand for the broad
proposition Sayedzada argues. The Nevada Supreme Court concluded in
Blake that, even had the district court abused its discretion by denying a
for-cause challenge to a juror, the error was not reversible where the
defendant failed to show, or even argue, "that any juror actually empaneled
was unfair or biased." 121 Nev. at 796, 121 P.3d at 578. Notably, the
appellant in Blake preserved his argument for appeal by challenging the
juror below. Id. at 795-96,
121 P.3d at 578. Thus, Blake simply comports
with the general rule echoed in other Nevada cases that erroneously failing
to strike a juror for cause is not reversible error where the jury actually
empaneled is impartial. See, e.g., Preciado v. State, 130 Nev. 40, 44,
318
P.3d 176, 178 (2014) ("A district court's erroneous denial of a challenge for
cause is reversible error only if it results in an unfair empaneled jury.");
Weber v. State, 121 Nev. 554, 581,
119 P.3d 107, 125 (2005) ("Any claim of
constitutional significance must focus on the jurors who were actually
seated, not on excused jurors?), rejected on other grounds by Farmer u.
State, 133 Nev. , 405 P.3d 114 (2017); see also Ross v. Oklahoma,
487
U.S. 81, 88 (1988) (noting peremptory challenges "are a means to achieve
the end of an impartial jury").
The issue before this court is whether a defendant may waive
subsequent challenges to the seating of a juror where the record
demonstrates the defendant was aware of the particular facts below; the
defendant consciously elected not to pursue, or abandoned, a challenge for
cause based on these facts; and the defendant accepted the juror's presence
on the jury. The Nevada Supreme Court has held, albeit not recently, that
a defendant does waive the right to challenge the seating of a juror under
such circumstances. See McCall v. State, 97 Nev. 514, 516,
634 P.2d 1210,
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1211 (1981); State v. Hartley, 22 Nev. 342, 357,
40 P. 372, 374 (1895); State
v. Anderson, 4 Nev. 265, 279 (1868).
The Nevada Supreme Court first addressed this issue in 1868
in Anderson. 4 Nev. at 279. There, during voir dire, a juror stated "he had
formed and expressed an unqualified opinion as to the guilt or innocence of
the prisoner, but subsequently had modified that opinion" Id. Defense
counsel "failed to challenge the juror for either implied or actual bias, but
accepted him without objection." Id. Anderson attempted to challenge the
juror on appeal, and the Nevada Supreme Court concluded he could not
raise this objection on appeal. Specifically, the court held:
If the prisoner accepts a juror without objection,
whom he knows to haveS formed and expressed an
unqualified opinion, he cannot, after verdict, raise
this objection. If he willfully takes his chance with
such a juror, he must abide the result. Otherwise a
prisoner could always get a new trial by simply
refusing to exercise his unquestioned right to
challenge such jurors for implied bias.
Id.
The Nevada Supreme Court again addressed the issue of waiver
in Hartley. 22 Nev. at 354-57,
40 P. at 373-74. In this case, during voir dire
several jurors each "answered that he had formed an unqualified opinion as
to the guilt or innocence of [Hartley]." Id. at 354,
40 P. at 373. Hartley
accepted the jurors without objection and subsequently argued on appeal
that because these jurors should have been disqualified, he was denied his
right to a fair and impartial trial. Id. at 354-55,
40 P. at 373. Looking to
the common law and Nev. Gen. Stat. § 4214 (1861), 3 the court found that,
3 This
statute was eventually codified in NRS 175.075 and repealed in
1967. 1967 Nev. Stat., ch. 523, § 447, at 1472.
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under both, "a defendant could waive an objection to a juror, and that he
did waive it unless the challenge was taken prior to the jury being
completed; and especially was this the case when the ground of challenge
was then known." Id. at 355-56, 40 P. at 373-74 (noting this view is further
supported by caselaw, including Anderson). The court further held that "in
such case, after verdict. [the defendant does not have a] constitutional
ground for the objection that he has not been tried by a 'constitutional jury."'
Id. at 357,
40 P. at 374.
The Nevada Supreme Court has cited Anderson and Hartley on
several occasions, recognizing their holdings that a defendant can waive the
right to raise a challenge to juror bias on appeal. See Maxey v. State, 94
Nev. 255, 256,
578 P.2d 751, 752 (1978) (citing Hartley and holding where a
defendant has knowledge of misconduct during voir dire, he must
immediately assert his right to a mistrial or he will be deemed to have
waived any alleged error); Hanley v. State, 83 Nev. 461, 464,
434 P.2d 440,
442 (1967) (citing Anderson and Hartley in context of determining whether
a change of venue is warranted due to the inability to obtain an impartial
jury); State u. McMahon, 17 Nev. 365, 370,
30 P. 1000, 1001 (1883) (citing
Anderson in context of finding that a provision, which required a jury sworn
to try an indictment for a felony be kept together until finally discharged by
the court, may be waived); State v. Borowsky, 11 Nev. 119, 127 (1876) (citing
Anderson in context of determining whether a defendant can consent to
proceed with a misdemeanor prosecution with less than the full number of
jurors required).
Finally, it appears the Nevada Supreme Court most recently
addressed the issue of waiver in 1981 in McCall. 97 Nev. at 515-16,
634
P.2d at 1211. In that case, defense counsel received, before voir dire, a
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juror's questionnaire that indicated she was a citizen of British Columbia.
Id. at 516,
634 P.2d at 1211. There was no objection at the time of voir dire,
but McCall moved for a mistrial after trial and sentencing, when he
discovered the juror was a non-citizen. Id. at 516,
634 P.2d at 1211. On
appeal, McCall alleged "he was denied his right to a jury trial before twelve
citizens because one juror was an alien." Id. at 515-16,
634 P.2d at 1211.
The court found McCall's failure to object to the seating of the non-citizen
juror at the time of voir dire constituted a waiver of that claim. Id. at 516,
634 P.2d at 1211.
Although a significant amount of time has lapsed since
Anderson, Hartley, and McCall were decided, the policy underlying the
waiver rule remains sound. Parties should not be able to strategically place
questionable jurors on the jury as a means of cultivating grounds for
reversal should the verdict be unfavorable. As more recently observed by
the Supreme Court of Appeals of West Virginia, the waiver rule "serves to
minimize the incentive to sandbag in the hope of acquittal and, if
unsuccessful, mount a post-conviction attack on the jury selection process."
State v. Tommy Y, Jr., 637 S.E.2d 628, 637 (W. Va. 2006) (quoting State v.
Marlow, 888 S.W.2d 417, 420 (Mo. Ct. App. 1994)); see also United States v.
Brazelton, 557 F.3d 750, 755 (7th Cir. 2009) (cautioning that allowing a
defendant to intentionally forgo challenging a juror for cause and yet obtain
a reversal based on that juror's presence on the jury would effectively allow
defendants to "plant an error and grow a risk-free trial" (quoting United
States v. Boyd, 86 F.3d 719, 722-23 (7th Cir. 1996))).
We therefore take this opportunity to reiterate that a party
waives any challenge to the seating of a juror on appeal where the party
was aware of the basis for the challenge at the time of voir dire, had the
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opportunity to challenge the prospective juror on those facts but ultimately
declined to do so, and approved the juror's presence on the jury panel. We
emphasize that for the waiver rule to apply, the record must clearly
demonstrate the party was aware of the salient facts and consciously chose
to approve the juror for jury service rather than advance a challenge for
cause. Where the record does not so demonstrate, a challenge to the seating
of a juror may be reviewed for plain error. See NRS 178.602 (plain error):
Jeremias v. State, 134 Nev. „ 412 P.3d 43, 48 (2018) (explaining NRS
178.602 provides a mechanism for review of a forfeited error); Nelson v.
State, 123 Nev. 534, 543-44,
170 P.3d 517, 523-24 (2007) (reviewing an
unpreserved challenge to an empaneled juror for plain error); see also
United States v. Olano, 507 U.S. 725, 733 (1993) (distinguishing waiver,
which occurs where a defendant intentionally relinquishes a known right,
from forfeiture, the failure to timely assert a right).
Turning to the present case, Sayedzada was aware of the facts
elicited during voir dire that he claims demonstrates jurors 7 and 37 were
biased. And, in fact, Sayedzada initially attempted to challenge those jurors
for cause. But Sayedzada elected to not renew his challenge after the
traverse of the jurors. More to the point, Sayedzada intentionally bypassed
two opportunities to challenge the jurors on the same facts he now raises on
appeal: immediately following the traverse when he reasserted his for-cause
challenge to prospective jurors 29 and 38, and again when the district court
expressly asked whether either party had any further challenges and
Sayedzada asserted he did not. Sayedzada thereafter accepted the jury
panel. These facts demonstrate Sayedzada's intent below to relinquish his
objection to these jurors and accept their presence on the jury panel.
Accordingly, we conclude Sayedzada waived his right to make an appellate
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argument as to the bias of these jurors, along with any objection that the
presence of these jurors on the jury deprived him of his right to be tried by
a fair and impartial jury.
For-cause challenges to prospective jurors 29 and 38
Sayedzada contends the district court abused its discretion by
denying his challenges for cause to jurors 29 and 38 because both
demonstrated bias in their voir dire answers and each had experiences
similar to the victim's.
Under NRS 175.036(1), a party may challenge a prospective
juror "for any cause . . . which would prevent the juror from adjudicating
the facts fairly." The juror's qualification is a question of fact for the trial
judge. See NRS 16.060; Hall v. State, 89 Nev. 366, 370-71,
513 P.2d 1244,
1247 (1973) (applying NRS 16.060, which pertains to civil cases, to a
criminal trial). Thus, we generally will defer to the trial court's decision so
long as the trial court sufficiently questioned the juror and determined the
juror was unbiased and could be impartial. See Preciado v. State, 130 Nev.
40, 44,
318 P.3d 176, 178-79 (2014) (discussing the standard of review in
challenges for cause); see also United States u. Maloney, 699 F.3d 1130,
1137-38 (9th Cir. 2012) (discussing cases where the jurors in question had
experiences similar to the facts of the cases and the district courts'
questioning of those jurors was sufficient to show their impartiality),
overruled on other grounds by United States v. Maloney, 755 F.3d 1044 (9th
Cir. 2014). When reviewing whether a juror demonstrated bias, the juror's
statements must be considered as a whole. See Weber v. State, 121 Nev.
554, 581,
119 P.3d 107, 125 (2005).
The Nevada Supreme Court has repeatedly held district courts
must strike for cause any juror whose voir dire answers demonstrate the
juror's views would prevent or substantially impair the juror's ability to be
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impartial and apply the law. See, e.g., Khoury v. Seastrand, 132 Nev. ,
, 377 P.3d 81, 88-89 (2016) (clarifying that prospective jurors whose voir
dire answers demonstrate actual bias must be dismissed for cause);
Preciado, 130 Nev. at 44, 318 P.3d at 178-79 (concluding the district court
should have removed for cause a prospective juror whose answers cast doubt
on her ability to be impartial); Jitnan v. Oliver, 127 Nev. 424, 431-32,
254
P.3d 623, 628-29 (2011) (holding that prospective jurors whose views would
prevent them from performing their duties as jurors should be removed for
cause). However, bias may also arise based on the juror's background or
experiences and may exist even where the juror promises impartiality. See
Sanders v. Sears-Page, 131 Nev. 500, 508-09,
354 P.3d 201, 206-07 (Ct. App.
2015); see also United States v. Torres, 128 F.3d 38, 45-48 (2d Cir. 1997)
(addressing implied and inferable bias).
In Torres, the United States Court of Appeals for the Second
Circuit defined three types of bias that provide grounds for removing a juror
for cause: actual, implied, and inferable bias. 128 F.3d at 43-48. Actual
bias, or bias in fact, arises where the juror demonstrates a state of mind
that prevents the juror from being impartial. Id. at 43-44; see also Sanders.
131 Nev. at 507, 354 P.3d at 206 (addressing actual bias). Thus, the court
will find actual bias where the juror admits to partiality or the juror's voir
dire answers demonstrate bias. Torres, 128 F.3d at 43-44; see also Preciado.
130 Nev. at 44-45, 318 P.3d at 179 (reviewing voir dire answers for actual
bias); Jitnan, 127 Nev. at 432,
254 P.3d at 629 (considering whether a juror
who gave inconsistent answers demonstrated bias). A determination of
actual bias is grounded in the court's adequate questioning of the juror
regarding the juror's ability to apply the law impartially. Torres, 128 F.3d
at 44. A district court has broad discretion to determine whether a juror's
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answers evince actual bias. "as it is better able to view a prospective juror's
demeanor than a subsequent reviewing court." Khoury, 132 Nev. at
377 P.3d at 88 (quoting Jitnan, 127 Nev. at 431,
254 P.3d at 628).
In contrast, implied bias, or bias as a matter of law, depends
solely on the juror's background and/or relationship to the parties or case,
and exists independently of actual bias. Torres, 128 F.3d at 45. Thus, the
juror's voir dire answers regarding the juror's ability to be impartial have
no bearing on implied bias. Id. Under common law, implied bias exists in
a narrow set of specific situations, most of which deal with the juror's
relationship to the case, such as where the juror is related to or has worked
with a party, or has some interest in the outcome of the case. See id.; cf.
Nev. Gen. Stat. § 4220 (1861) (limiting implied bias to nine specific
situations). The Nevada Legislature has codified elements of the common
law's implied bias in the civil context, see NRS 16.050 (addressing
challenges for cause), and this court has previously considered whether
other situations may establish implied bias and require a court to remove a
juror for cause. See Sanders, 131 Nev. at 508-09, 354 P.3d at 206-07.
However, the Legislature has not codified a definition or prohibition on
implied bias in the criminal context. As we conclude the facts in this case
ultimately do not rise to the level of implied bias, we need not attempt to
define its parameters here. See Torres, 128 F.3d at 46 ("[T]he doctrine of
implied bias is reserved for 'exceptional situations' in which objective
circumstances cast concrete doubt on the impartiality of a juror." (citing
Smith v. Phillips, 455 U.S. 209, 222 (1982) (O'Connor, J., concurring)));
Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990) (urging prudence in
formulating categories that bar jurors).
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A third type of bias, inferable bias, arises where the juror
discloses some fact that "bespeaks a risk of partiality sufficiently significant
to warrant granting the trial judge discretion to excuse the juror for cause ;
but not so great as to make mandatory a presumption of bias." Torres, 128
F.3d at 47. Inferable bias is related to actual bias in that it derives from
facts elicited during voir dire, but it is also distinct in that it does not rely
upon the juror's admission of bias or the judge's evaluation of the juror's
credibility. Id. Inferable bias is related to implied bias in that it exists
independently of the juror's assertion of impartiality, but it is also distinct
in that "the disclosed fact does not establish the kind of relationship
between the juror and the parties or issues in the case that mandates the
juror's excusal for cause." Id. Unlike the situation where mandatory
disqualification arises because a juror is actually or impliedly biased, a
judge may exercise his or her discretion to infer bias from the facts elicited
during voir dire where those facts show an average person in the juror's
situation would be unable to decide the matter objectively. Id. This
discretion to infer bias enables courts to strike for cause jurors who either
may have an interest in concealing their bias or may be unaware of it, but
whose answers demonstrate that the juror cannot reasonably be expected
to separate his or her own experiences from the facts at the core of the case
and judge impartially. Id. at 47-48; see Dennis v. United States,
339 U.S.
162, 172-73 (1950) (Reed, J., concurring) (noting the court's decision that it
would not imply bias to jurors based on their employer did not mean the
court could not do so "when circumstances are properly brought to the
court's attention which convince the court that Government employees
would not be suitable jurors in a particular case" (emphasis added)).
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Inferable bias is not the same as potential bias, which does not
justify removing a juror for cause. Compare Torres, 128 F.3d at 46-48, with
Khoury, 132 Nev. at , 377 P.3d at 89. Bias may be inferred where facts
disclosed by the prospective juror during voir dire show an average person
in the juror's situation would not be able to be unbiased. Torres, 128 F.3d
at 46-48. For example, bias may be inferred where "a juror has engaged in
activities that closely approximate those of the defendant on trial." Id. at
47. "[Once facts are elicited that permit a finding of inferable bias, then,
just as in the situation of implied bias, the juror's statements as to his or
her ability to be impartial become irrelevant." Id. On the other hand,
potential bias is the suggestion of bias based on the juror's expressed doubts
as to his or her impartiality and ability to follow the law. See Khoury, 132
Nev. at , 377 P.3d at 89. Unlike inferable bias, if a juror manifests
potential bias, further questioning may either rehabilitate the juror or
demonstrate impermissible bias if the juror's answers, taken as a whole,
demonstrate the juror's state of mind "substantially impairs the juror's
ability to apply the law and the instructions of the court in deciding the
verdict." Id.
With this in mind, we turn now to Sayedzada's claim that the
district court abused its discretion by denying his challenges for cause to
prospective jurors 29 and 38.
Prospective juror 29
We are troubled by prospective juror 29's answers during voir
dire. First, prospective juror 29 disclosed that she had past experiences
similar to those of the victim in this case. Specifically, prospective juror 29
was the victim of credit card theft on several occasions and was also a victim
of a vehicle burglary where her purse and other valuable items were stolen.
And, critically, prospective juror 29 expressly and repeatedly doubted her
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ability to be impartial as a result of her own victimization, stating, "It
makes me very angry. . At makes me mad. I don't know if I could be
impartial." Although after further questioning, prospective juror 29
asserted the experiences did not affect her view of the criminal justice
system and claimed she could be fair and impartial, she immediately
backtracked, reiterating that "[Hersonally, it makes you angry, but who
wouldn't be," and admitting that, despite her assertion of impartiality, she
still "could be biased" by her experiences. Of even further concern,
prospective juror 29 gratuitously opined that the role of a criminal defense
attorney is to "get your client off the [ ] hook" and she firmly believed that
as "a matter of integrity," a truly innocent defendant would necessarily
want to "state [their] case personally." Unlike other prospective jurors, she
did not retreat from these opinions upon further questioning.
We conclude the district court abused its discretion by denying
Sayedzada's challenge for cause as to prospective juror 29. 4 The facts here
show prospective juror 29 demonstrated actual bias. She expressly and
repeatedly doubted her ability to be impartial, disparaged Sayedzada's
constitutional right not to testify and the defense attorney's role in the case,
and offered only a lukewarm claim of impartiality to counter those
damaging statements. Prospective juror 29's statements as a whole
demonstrated that her bias would have prevented or substantially impaired
4 We note the district court's decision is particularly troubling here,
where the district court failed to provide any reason for its decision and the
bias is apparent from the record. See Jitnan, 127 Nev. at 433,
254 P.3d at
629 (noting district courts are encouraged to make particularized findings
on the record when deciding a challenge for cause and the failure to do so
hampers appellate review).
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her ability to apply the law and the court's instructions. See Khoury, 132
Nev. at , 377 P.3d at 89.
We also determine that even if there was no actual bias, these
facts would have supported striking prospective juror 29 for inferable bias.
The district court was aware from the pretrial proceedings and voir dire
that prospective juror 29 was the victim of the same key crimes underlying
the charges: car burglary, purse theft, and credit card theft. And, critically,
prospective juror 29's statements that these experiences made her "angry"
and admissions that those experiences could bias her against the defendant
show that she would be unable to separate her own experiences from those
in this particular case. An objective evaluation of these facts supports a
conclusion that an average person in prospective juror 29's position would
not be able to decide the case objectively. Because the record supports an
inference that prospective juror 29's similar experiences would have
prevented her from deciding the matter objectively, the district court would
have been within its discretion to infer bias and strike prospective juror 29
accordingly. 5 See Torres, 128 F.3d at 48 (affirming the decision to strike for
cause a juror who had engaged in conduct similar to the conduct alleged
against the defendant); el Brioady v. State, 133 Nev. „ 396 P.3d 822,
823-25 (2017) (noting that a juror's history of being molested as a child could
have "very likely" supported a challenge for cause where the defendant was
on trial for sexual assault of a child and lewdness with a child).
5 We note, however, that credit card theft or compromise is especially
commonplace in today's society and a juror's experience with such a crime
is unlikely to support an inference of bias absent more particularized
similarities to the victim's experience.
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Although the district court should have granted the challenge
for cause as to prospective juror 29, a district court's error in denying a
challenge for cause is not grounds for reversal unless the defendant
demonstrates both that he exhausted all of his peremptory challenges and
that an empaneled juror was unfair or biased. Preciado v. State. 130 Nev.
40, 44,
318 P.3d 176, 178 (2014); Blake v. State,
121 Nev. 779, 796,
121 P.3d
567, 578 (2005). We conclude the error was harmless here. Sayedzada
removed both prospective jurors 29 and 38 by peremptory challenge.
Further, as we held above, he waived his arguments that jurors 7 and 37
were biased, along with any objection that the presence of these jurors on
the jury deprived him of his right to be tried by a fair and impartial jury.
And Sayedzada does not argue any other empaneled juror was biased.
Accordingly, we conclude no relief is warranted. See Preciado, 130 Nev. at
44, 318 P.3d at 178.
Prospective juror 38
We conclude the district court did not abuse its discretion by
denying the challenge for cause to prospective juror 38. Unlike prospective
juror 29, prospective juror 38 did not express more than a possibility of bias
arising from her experiences. Prospective juror 38 asserted she could be
fair and impartial and that she did not believe her experiences would affect
her ability to fairly judge the case. And although prospective juror 38 had
been the victim of having her bank account and credit card information
stolen, she did not have experiences closely similar to those of the victim
here. Accordingly, the record does not show that prospective juror 38
harbored bias that would prevent her from applying the law or following the
court's instructions. See Khoury, 132 Nev. at , 377 P.3d at 89; Hall v.
State, 89 Nev. 366, 370-71,
513 P.2d 1244, 1247 (1973) (finding defendant
was not entitled to a new trial because the fact that a juror was the victim
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of a burglary committed on the first day of a burglary trial was not grounds
to dismiss the juror as a matter of law, and there was no proof of actual bias
on the part of the juror or facts from which to infer the juror was biased).
CONCLUSION
A defendant is entitled to a fair and impartial jury, and the
district court must remove biased jurors for cause. However, a party waives
the right to challenge a juror's presence on the jury on appeal where the
party's appellate argument is based on facts known to the party during voir
dire; the party consciously elected not to pursue, or abandoned, a challenge
for cause on that basis; and the party accepted the juror's presence on the
jury panel. In this case, we conclude Sayedzada waived his challenges as to
jurors 7 and 37.
In assessing juror bias, a district court must excuse a juror for
cause for actual and implied bias, and may excuse a juror for inferable bias.
The failure to excuse a biased prospective juror is reversible error only
where the erroneous denial of the for-cause challenge results in an unfair
empaneled jury. Here, although the district court abused its discretion by
failing to strike for cause a prospective juror who demonstrated actual and
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inferable bias, the error does not warrant reversal. Accordingly, we affirm
Sayedzada's conviction.
Silver
We concur:
Tao
Y stbaC. J.
J.
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