                                                     131 Nev., Advance Opinion ee
                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                ROGELIO MARTINORELLAN A/K/A                             No. 58904
                ROGELIO MARTINEZ-ORELLANO,
                Appellant,
                vs.
                THE STATE OF NEVADA,
                                                                          FILED
                Respondent.                                               FEB 2 6 2015
                                                                              K. LINDEMAN




                             En bane reconsideration of a panel order affirming a judgment
                 of conviction, pursuant to a jury verdict, of burglary while in possession of
                 a deadly weapon, attempted robbery with the use of a deadly weapon, and
                 battery with the use of a deadly weapon. Eighth Judicial District Court,
                 Clark County; Susan Scann, Judge.
                             Judgrrterti affirmed.


                 Philip J. Kohn, Public Defender, and Sharon G. Dickinson, Deputy Public
                 Defender, Clark County,
                 for Appellant.
                Mann 124w, t 1-44A1 -4--
                                             Attorney General, Carson City; Steven B.
                Wolfson, District Attorney, and                             (Deputy District
                Attorney, Clark County,
                for Respondent.                       30nA.--11-vui f, ■/a1a6keeek
                                                                                            Chicc


                 BEFORE THE COURT EN BANC.




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                                                   OPINION


                By the Court, DOUGLAS, J.:
                             In the present case, we consider the effect of the district
                court's failure to instruct the jury to restart deliberations as is required by
                NRS 175.061(4) after an alternate juror replaced a regular juror. NRS
                175.061(4) provides that "[i]f an alternate juror is required to replace a
                regular juror after the jury has retired to consider its verdict, the judge
                shall recall the jury, seat the alternate and resubmit the case to the jury."
                Thus, if a district court fails to instruct the jury to restart deliberations, it
                commits an error that, in appropriate circumstances, can require reversal
                despite overwhelming evidence of guilt.        Carroll v. State, 111 Nev. 371,
                372-74, 892 P.2d 586, 587-88 (1995).
                             Appellant Rogelio Martinorellanl did not object to the district
                court's failure to instruct the reconstituted jury to restart deliberations.
                At issue here is (1) whether the district court's failure was an error of
                constitutional dimension, (2) which standard of review applies to an
                unpreserved constitutional error,      )(3) (d    whether the district court
                committed a reversible error in this case. We hold that although the
                district court's error was of constitutional dimension, it is subject to plain
                error review because Martinorellan did not preserve this issue. Therefore,




                      'The judgment of conviction shows the defendant's name as Rogelio
                Martinorellan. However, throughout the trial and on appeal, Rogelio is
                referred to as Rogelio Martinez-Orellano. We follow the name that
                appears on the judgment of conviction.

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                we affirm the conviction because Martinorellan did not demonstrate that
                the district court's failure to instruct the reconstituted jury to restart
                deliberations rose to the level of plain error.
                                FACTUAL AND PROCEDURAL HISTORY
                            Martinorellan entered a smoke shop and stabbed the store's
                owner while attempting to commit a robbery. At trial, the jury deliberated
                for approximately 1 hour and 15 minutes before the district court
                convened a hearing, dismissed a juror who stated that he knew the victim,
                and replaced that juror with an alternate juror. The district court did not
                recall the jury to the courtroom or instruct it to restart deliberations.
                Martinorellan did not object to the district court's decision not to recall the
                jury and instruct it to restart deliberations. 2 The reconstituted jury
                deliberated for nearly 4 hours and 30 minutes over two days and viewed a
                playback of testimony before convicting Martinorellan of burglary while in
                possession of a deadly weapon, attempted robbery with the use of a deadly
                weapon, and battery with the use of a deadly weapon.
                            After Martinorellan appealed, a panel of this court affirmed
                his conviction, holding in a footnote that Martinorellan's assignment of
                error regarding the district court's failure to instruct the jury to restart
                deliberations was without merit. The panel denied Martinorellan's




                      2Martinorellan  argues that the remaining original jurors deliberated
                after the juror who knew the victim was removed and before the alternate
                juror joined the jury. However, the record does not demonstrate that the
                jury deliberated during the period of time between the removal of the juror
                who knew the victim and the seating of the alternate juror. Therefore,
                this argument is without merit.

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                petition for rehearing, and he filed a petition for en bane reconsideration.
                This court granted the petition for en bane reconsideration to address the
                district court's failure to instruct the jury to restart deliberations when the
                alternate juror replaced the original juror.
                                                 DISCUSSION
                            We first consider the nature of the error of failing to instruct a
                jury to restart deliberations when an alternate juror replaces an original
                juror. We next address the standard of review to be applied to this error if
                it is unpreserved. Finally, we determine if the district court committed
                reversible error in this case.
                 The failure to instruct the jury to restart deliberations when an alternate
                juror replaces an original juror is an error of constitutional dimension
                            Martinorellan argues that the failure to instruct the jury to
                restart deliberations after an alternate juror replaced an original juror
                was an error of constitutional dimension because it interfered with his
                constitutional right to a trial by a fair and impartial jury. 3 The State
                argues that this error was not of constitutional dimension because the




                      3Although    Martinorellan argued in his briefing in support of his
                petition for en bane reconsideration that the district court's failure to
                instruct the jury to restart deliberations violated NRS 16.080, he
                contended at oral argument before the en bane court that NRS 175.061(4)
                is the statute that applies. In relevant part, NRS 16.080 provides that in
                a civil trial the district court shall recall the jury and resubmit the case
                when replacing an original juror with an alternate juror during
                deliberations. Although NRS 16.080's provision is analogous to NRS
                175.061(4), which governs criminal trials, it does not apply to the present
                case. Therefore, we limit our consideration to NRS 175.061(4).

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                district court did not prevent the jury from restarting deliberations after
                the alternate juror was seated. We review de novo whether an error is of
                constitutional dimension.     See Jackson v. State, 128 Nev. , , 291
                P.3d 1274, 1277 (2012) (reviewing constitutional issues de novo).
                             NRS 175.061(4) provides that "[i]f an alternate juror is
                required to replace a regular juror after the jury has retired to consider its
                verdict, the judge shall recall the jury, seat the alternate and resubmit the
                case to the jury." While we have not expressly addressed whether the
                error in this circumstance is of constitutional dimension, we have
                determined that a district court's failure to instruct a reconstituted jury to
                restart deliberations violates NRS 175.061 and can constitute reversible
                error. See Carroll, 111 Nev. at 372-74, 892 P.2d at 587-88.
                             In Carroll, the district court failed to instruct the jury to
                restart deliberations when an alternate juror replaced an original juror
                after two days of deliberations.      Id. at 373, 892 P.2d at 587-88. The
                reconstituted jury then deliberated for "only a couple of hours before the
                final verdict was rendered." Id. at 373, 892 P.2d at 588. Although there
                was overwhelming evidence of the defendant's guilt, the Carroll court held
                that the district court's failure to instruct the jury to restart deliberations,
                as required by NRS 175.061, was not harmless because the relatively
                short length of time of the post-substitution deliberations "may [have]
                indicate[d] that the alternate juror was unduly influenced by the rest of
                the jury." Id. at 373, 892 P.2d at 587-88. As a result, it reversed the
                defendant's conviction.    Id. at 374, 892 P.2d at 588. The Carroll court,
                however, did not address whether the failure to instruct the reconstituted




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jury to restart deliberations was an error of constitutional dimension. See
id. at 372-74, 892 P.2d at 587-88. Therefore, we address this issue now.
            An error is of constitutional dimension if it impairs a
defendant's constitutional rights. See Dickson v. State, 108 Nev. 1, 3, 822
P.2d 1122, 1123 (1992). A criminal defendant has a "Sixth Amendment
right to a fair trial by an impartial jury." Valdez v. State, 124 Nev. 1172,
1185, 196 P.3d 465, 474 (2008). An error which violates this right is of
constitutional dimension. See id. at 1188, 196 P.3d at 476.
            The failure to instruct a jury to restart deliberations after an
alternate juror replaces an original juror during deliberations can create
the risk of the original jurors exerting undue influence on the alternate
juror.   Carroll, 111 Nev. at 373, 892 P.2d at 588. Thus, this failure
infringes on a defendant's right to a trial by an impartial jury.   See Vi ray
v. State, 121 Nev. 159, 163-64, 111 P.3d 1079, 1082 (2005) (observing that
a juror exercising improper influence on another juror could prejudice the
defendant). Therefore, we now hold that the failure to instruct the jury to
restart deliberations when an alternate juror replaces an original juror is
an error of constitutional dimension because it impairs the right to a trial
by an impartial jury.
Unpreserved errors are reviewed for plain error regardless of whether they
are of constitutional dimension
            We ordinarily review an error that was not preserved in the
district court for plain error.   Valdez, 124 Nev. at 1190, 196 P.3d at 477;
Nelson v. State,     123 Nev. 534, 543, 170 P.3d 517, 524 (2007).
Martinorellan, however, argues that the standard of review for an
unpreserved constitutional error should be the same as that for a




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                preserved constitutional error. Thus, he contends that this court should
                review an unpreserved constitutional error to determine if it was harmless
                beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24
                (1967) (setting forth the standard of review for preserved constitutional
                error).
                             Instead of using the ordinary standard of review that applies
                to preserved constitutional errors, we have reviewed unpreserved
                constitutional errors for plain error.       See Maestas v. State, 128 Nev. ,
                   , 275 P.3d 74, 89 (2012) (reviewing an unpreserved First Amendment
                claim for plain error). Our review of unpreserved constitutional errors for
                plain error is consistent with the United States Supreme Court's caselaw
                which provides that unpreserved constitutional errors are to be reviewed
                for plain error. See Johnson v. United States, 520 U.S. 461, 465-66 (1997)
                (reviewing an unpreserved Sixth Amendment jury right violation for plain
                error). Therefore, we hold that all unpreserved errors are to be reviewed
                for plain error without regard as to whether they are of constitutional
                dimension.
                Martinorellan did not demonstrate that the district court's failure to
                instruct the jury to restart deliberations after the alternate juror replaced
                the original juror was plain error
                             Martinorellan argues that the district court's failure to
                instruct the jury to restart deliberations was prejudicial to his right to a
                trial by an impartial jury because of the relatively short amount of time
                that the jury deliberated after the alternate juror was seated. We now
                address the nature of our review of the district court's error and whether
                reversal is warranted.




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                         The district court's error is subject to review for plain error
                               Martinorellan did not object when the district court failed to
                instruct the reconstituted jury to restart deliberations. Therefore, we
                review this error for plain error.      Valdez, 124 Nev. at 1190, 196 P.3d at
                477.
                               "To amount to plain error, the 'error must be so unmistakable
                that it is apparent from a casual inspection of the record."        Vega v. State,
                126 Nev. , 236 P.3d 632, 637 (2010) (quoting Nelson, 123 Nev. at
                543, 170 P.3d at 524). In addition, "the defendant [must] demonstrate[]
                that the error affected his or her substantial rights, by causing 'actual
                prejudice or a miscarriage of justice." Valdez, 124 Nev. at 1190, 196 P.3d
                at 477 (quoting Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003)).
                Thus, reversal for plain error is only warranted if the error is readily
                apparent and the appellant demonstrates that the error was prejudicial to
                his substantial rights.
                               Here, the error is readily apparent from the record. The trial
                transcripts presented in the record do not show that the district court gave
                any instruction to the reconstituted jury when the alternate juror joined it.
                The question then is whether Martinorellan has demonstrated that this
                error had a prejudicial effect on his substantial rights.
                         Martinorellan did not demonstrate that the district court's error had
                         a prejudicial effect on his right to a jury trial
                               When determining whether an error relating to the
                substitution of an alternate juror for an original juror is prejudicial, courts
                t(
                     consider[], among other factors, the length of the jury's deliberations
                before and after the substitution."        United States v. Virgen Moreno, 265
                                                                                    -




                F.3d 276, 289 (5th Cir. 2001). Thus, if most of the jury's deliberation time
                occurs before an error relating to the replacement of an original juror, this
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                can demonstrate that the error was prejudicial.     See Carroll, 111 Nev. at
                373, 892 P.2d at 588 (holding that because the jury reached a verdict "only
                a couple of hours" after an alternate juror joined the jury two days into
                deliberations, the district court's failure to instruct the jury to restart
                deliberations was a prejudicial error); see also United States v. Lamb, 529
                F.2d 1153, 1156 (9th Cir. 1975) (holding that because a jury reached a
                verdict only 29 minutes after an alternate juror joined it following nearly 4
                hours of deliberations, there was "impermissible coercion upon the
                alternate juror"); cf. State v. Guytan, 968 P.2d 587, 594 (Ariz. Ct. App.
                1998) (holding that the trial court's failure to instruct the jury to restart
                deliberations after replacing a juror 30 minutes into deliberations was
                harmless error, in part because the reconstituted jury deliberated for 5
                hours before reaching a verdict).
                            Here, the jury deliberated for approximately 1 hour and 15
                minutes before the district court convened a hearing to replace an original
                juror with an alternate juror. The reconstituted jury then deliberated for
                nearly 4 hours and 30 minutes before convicting Martinorellan. Thus,
                over 75 percent of the jury's deliberation time occurred after the alternate
                juror joined the jury. As a result, this case is distinct from Carroll and
                Lamb where the vast majority of the jury's deliberation time occurred
                before the alternate juror replaced the original juror. Instead, it is similar
                to Guytan where nearly all of the jury's deliberation time occurred after
                the alternate juror replaced the original juror. Because the relative
                lengths of time that the jury deliberated before and after the alternate
                juror replaced an original juror do not demonstrate that the district court's
                error was prejudicial, Martinorellan failed to demonstrate that the district
                court's failure to instruct the reconstituted jury to restart deliberations

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                rose to the level of plain error. Therefore, this unpreserved error does not
                warrant reversal of Martinorellan's conviction, and we affirm the
                judgment of conviction.




                                                                                   J.



                We concur:


                             Lf2eX \        , C.J.
                Hardesty




                                               J.
                Gibbons


                                               J.
                Pickering




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                SAITTA, J., with whom CHERRY, J., agrees, dissenting:
                            Although I agree with the majority's conclusion that a district
                court's failure to instruct the jury to restart deliberations after an
                alternate juror replaces an original juror impairs a defendant's
                constitutional right to a trial by an impartial jury, I believe that this
                failure is a structural error which requires that Martinorellan's conviction
                be reversed and his case be remanded for a new trial. Therefore, I
                respectfully dissent.
                            Because this type of error can substantially alter how the jury
                deliberates, it "affect[s] the very 'framework within which the trial
                proceeds' and is thus a structural error. Cortinas v. State, 124 Nev. 1013,
                1024, 195 P.3d 315, 322 (2008) (quoting Neder v. United States, 527 U.S. 1,
                8 (1999)). Without an instruction from the district court to begin
                deliberating anew, there is a significantly greater risk that the original
                jurors will improperly impose upon the alternate juror any conclusions
                that they reached before the original juror's removal.
                            In addition, the district court's failure to instruct the jury to
                begin deliberating anew impliedly allows the jury to rely on the
                deliberations of the removed juror—a person who is not part of the jury
                actually deciding the defendant's guilt. Because this error undermines the
                defendant's right to an impartial jury by allowing a removed juror's
                deliberations to be considered and permitting the original jurors to
                improperly impose their previously reached conclusions onto a newly




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seated juror, it is a structural error. Therefore, I would reverse
Martinorellan's conviction and remand this case for a new trial.




                                    Saitta


I concur:



                               J.




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