IN THE SUPREME COURT OF THE STATE OF NEVADA
BRYON CHARLES OUSLEY, No. 79140mil E
Appellant, Rol L
VS.
THE STATE OF NEVADA, JUL 23 20
Respondent. CLE
ELIZAB iH & aPo•-•p:
UPREME COUP.
BY
ORDER VACATING JUDGMENT OF CONVICTION AND R DINO
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of robbery. Eighth Judicial District Court, Clark County;
Michael Villani, Judge.
The State charged appellant Bryon Charles Ousley with
robbery with use of a deadly weapon under NRS 200.380 and NRS 193.165.
Ousley had two trials. The first resulted in a mistrial due to a hung jury.
During his second trial, Ousley made a fair-cross-section challenge to the
composition of the venire and objected to several of the district court's
evidentiary rulings. Ousley moved for a new trial twice and later for
acquittal. The district court denied Ousley's motions and challenges and
overruled his evidentiary objections. After a four-day trial, the jury found
Ousley guilty of robbery, a category B felony, but not guilty of committing
it with use of a deadly weapon. He was sentenced to serve a prison term of
60 to 180 months. Ousley now appeals.
On appeal, Ousley argues, among other things, that the district
court abused its discretion by denying his fair-cross-section challenge to the
venire without conducting an evidentiary hearing. Defendants are entitled
to a jury that is a fair cross section of the community. Valentine v. State,
135 Nev. 463, 464,
454 P.3d 709, 713 (2019). To make a fair-cross-section
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challenge, a defendant must make a prima facie showing that there was
"underrepresentation [of a distinctive group in the community] due to
systematic exclusion of th[at] group in the jury-selection process," among
other requirements. Williams v. State, 121 Nev. 934, 940,
125 P.3d 627,
631 (2005) (emphases and internal quotation marks omitted). "[A]n
evidentiary hearing is warranted on a fair-cross-section challenge when a
defendant makes specific allegations that, if true, would be sufficient to
establish a prima facie violation of the fair-cross-section requirement."
Valentine, 135 Nev. at 466, 454 P.3d at 714. "We review the district court's
denial of [a defendant's] request for an evidentiary hearing for an abuse of
discretion." Id. at 464, 454 P.3d at 713.
Ousley contends that he has made the necessary showing under
Valentine because, if it is true that the jury commissioner did not use all
four sources now required for the juror master list under NRS 6.045,2 then
it is plausible that the jury selection process systematically excluded
'Under Williams v. State, 121 Nev. 934, 940,
125 P.3d 627, 631 (2005),
a defendant must also make a prima facie showing "that the group alleged
to be excluded is a distinctive group in the community[, and] 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." (Emphases and internal quotation marks omitted.)
21n 2017, the Legislature enacted Assembly Bill (A.B.) 207, which
amended NRS 6.045 to require the jury commissioner to compile and
maintain a list of qualified jurors from information provided by voter
registration records and the Employment Security Division of the
Department of Employment, Training and Rehabilitation, in addition to the
information already provided by the Department of Motor Vehicles and
certain public utilities. See 2017 Nev. Stat., ch. 549, § 1, at 3880-81.
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minorities such as Hispanics and African Americans.3 Instead of having
the jury commissioner testify regarding this allegation at an evidentiary
hearing, the district court relied on previous jury commissioner testimony
that did not address Ousley's specific allegations to reject his fair-cross-section argument. As such, we conclude that the district court abused its
discretion because, as in Valentine, if Ousley's allegations are true, they
"would be sufficient to establish a prima facie violation of the fair-cross-section requirement."4 135 Nev. at 466-67, 454 P.3d at 714-15. We
therefore vacate the judgment of conviction and remand for an evidentiary
hearing. Thereafter, if the district court finds no systematic exclusion, it
may reinstate the judgment of conviction.5 See id. at 467, 454 P.3d at 715
(providing that the district court may reinstate the judgment of conviction
if it finds no systematic exclusion on remand, except as to convictions that
were not supported by sufficient evidence).
3Proponents of A.B. 207 explained that the bill was designed to make
the master jury pool list more inclusive of minority groups, including the
poor, African Americans, and Hispanics by requiring the jury commissioner
to use more Sources to compile and maintain the jury master list. Hearing
on A.B. 207 Before the Assembly Judiciary Comm., 79th Leg. (Nev., Mar. 3,
2017) (statement of Robert T. Eglet, representing Nevada Justice
Association, and statement of Lisa Rasmussen, Legislative Committee CoChair, Nevada Attorneys for Criminal Justice).
4The State does not argue that the district court erred when it found
that Ousley met the first two requirements under Williams to assert a fair-cross-section challenge. See Williams, 121 Nev. at 940,
125 P.3d at 631
(setting forth the requirements that a defendant must demonstrate to make
a prima facie showing for a fair-cross-section challenge).
5We decline to address Ousley's remaining assertions of error at this
time, but he may re-raise his arguments in this appeal by filing a timely
new appeal if the district court ultimately reinstates his conviction. Ousley
may also raise any errors that arise as a result of the remand.
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Accordingly, we
ORDER the judgment of conviction VACATED AND REMAND
this matter to the district court for proceedings consistent with this order.
J.
Stiglich
LI4Act) J.
Silver
cc: Hon. Michael Villani, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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