                                                   130 Nev., Advance Opinion       55
                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                 STEPHANIE BRASS, AS PERSONAL                        No. 56146
                 REPRESENTATIVE FOR RONNIE
                 DANELLE BRASS,
                 Appellant,                                                   FILED
                   vs.
                 THE STATE OF NEVADA,                                         MAY 2 9 2014
                 Respondent.                                                 ACJE K. LINDEMAN
                                                                        CLERH 011 SUPREME C
                                                                        BY
                                                                             CHIEF DEPIIKI,CLERK



                            Appeal from a judgment of conviction, pursuant to a jury
                 verdict, of conspiracy to commit kidnapping and murder, first-degree
                 kidnapping, and first-degree murder with the use of a deadly weapon.
                 Eighth Judicial District Court, Clark County; Douglas Smith, Judge.
                            Reversed.

                 David M. Schieck, Special Public Defender, and JoNell Thomas and
                 Michael W. Hyte, Deputy Special Public Defenders, Clark County,
                 for Appellant.

                 Catherine Cortez Masto, Attorney General, Carson City; Steven B.
                 Wolfson, District Attorney, Steven S. Owens, Chief Deputy District
                 Attorney, and David L. Stanton and Nancy A. Becker, Deputy District
                 Attorneys, Clark County,
                 for Respondent.




                 BEFORE THE COURT EN BANC.




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                                                    OPINION
                 By the Court, DOUGLAS, J.:
                             In this opinion, we consider whether a judgment of conviction
                 must be vacated and the prosecution abated when a criminal defendant
                 dies while his or her appeal from the judgment is pending. We hold that
                 although a deceased appellant is not entitled to have his or her judgment
                 of conviction vacated and the prosecution abated, a personal
                 representative may be substituted as the appellant and continue the
                 appeal when justice so requires. In this appeal, we reverse the judgment
                 of conviction based on an error during jury selection.

                                                    FACTS

                             The State charged Ronnie Brass and his brother, Jermaine
                 Brass, as codefendants with burglary, grand larceny, conspiracy to commit
                 kidnapping, first-degree kidnapping, conspiracy to commit murder, and
                 murder with the use of a deadly weapon. Jermaine and Ronnie jointly
                 filed a motion to sever their trials. The district court denied the motion,
                 and the two were tried together.
                             During voir dire, defense counsel argued that the State
                 violated Batson v. Kentucky, 476 U.S. 79 (1986), because it exercised a
                 peremptory challenge to exclude prospective juror no. 173 not based on
                 lack of qualifications, but based on the prospective juror's race. Prior to
                 holding a hearing on Jermaine and Ronnie's Batson challenge, the district
                 court excused a number of prospective jurors, including prospective juror
                 no. 173. Subsequently, the district court conducted the Batson hearing
                 and—after concluding that the State had race-neutral reasons for its
                 peremptory challenge—denied the defense's Batson challenge.


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                               At the conclusion of the trial, the jury found Jet   aine guilty
                 on all six counts and found Ronnie guilty on four counts, excluding
                 burglary and grand larceny. The brothers filed separate appeals.
                               In Jermaine's appeal, this court reversed his conviction and
                 remanded the matter for a new trial based on our conclusion that the
                 district court committed reversible error during the jury selection phase of
                 Jermaine and Ronnie's trial. See Brass v. State, 128 Nev. , 291 P.3d
                 145 (2012). Specifically, we held that "[Jermaine and Ronnie] were not
                 afforded an adequate opportunity to respond to the State's proffer of race-
                 neutral reasons [for its peremptory challenge of juror no. 1731 or to show
                 pretext because the district court permanently excused juror no. 173
                 before holding a Batson hearing," and that such dismissal of juror no. 173
                 "had the same effect as a racially discriminatory peremptory challenge
                 because even if [Jermaine and Ronnie] were able to prove purposeful
                 discrimination, they would be left with limited recourse."    Id. at , 291
                 P.3d at 149. We concluded that reversal of Jermaine's conviction was
                 warranted because the "discriminatory jury selection constitute[d]
                 structural error that was intrinsically harmful to the framework of the
                 trial." Id.
                               On appeal, Ronnie raises the same Batson issue. However,
                 after the parties completed briefing in this matter, Ronnie died while in
                 prison. The district court appointed his mother, Stephanie Brass, as his
                 personal representative, and she substituted in as a party to this appeal
                 under NRAP 43. Upon substitution, Stephanie filed a motion to abate
                 Ronnie's judgment of conviction dueS to his death. Stephanie's motion
                 presents a novel issue in Nevada: Should a judgment of conviction be



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                 vacated and the criminal prosecution abated when a defendant dies while
                 his or her appeal from the judgment of conviction is pending?

                                                DISCUSSION

                             There are three general approaches when a criminal
                 defendant dies while his or her appeal from a judgment of conviction is
                 pending: (1) abate the judgment ab initio, (2) allow the appeal to be
                 prosecuted, or (3) dismiss the appeal and let the conviction stand Tim A.
                 Thomas, Annotation, Abatement of State Criminal Case by Accused's
                 Death Pending Appeal of Conviction—Modern Cases, 80 A.L.R. 4th 189
                 (1990). We will discuss each approach in turn.

                 Abatement ab initio
                             Abatement ab initio is the abatement of all proceedings in a
                 prosecution from its inception. United States v. Oberlin, 718 F.2d 894, 895
                 (9th Cir. 1983). This requires an appeal to be dismissed and the case
                 remanded to the district court with instructions to vacate the judgment
                 and dismiss the indictment or information.       Id.   Courts that apply the
                 abatement oh initio doctrine believe that when death deprives a defendant
                 of the right to an appellate decision, justice prohibits that defendant from
                 standing convicted without a court resolving his or her appeal on its
                 merits. United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir. 1977).
                 Many state courts employ this approach.      See State v. Griffin, 592 P.2d
                 372, 372-73 (Ariz. 1979); Thomas, supra, 80 A.L.R. 4th at 191.

                 Allow the appeal to continue
                             Some jurisdictions have determined that a defendant who dies
                 while pursuing an appeal from a judgment of conviction is not entitled to
                 have the criminal proceedings abated ab initio; they instead resolve the

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                appeal on its merits. See, e.g., State v. Makaila, 897 P.2d 967, 969 (Haw.
                1995) (citing cases that follow this approach). These courts have
                rationalized that 'it is in the interest of both a defendant's estate and
                society that any challenge initiated by a defendant to the regularity or
                constitutionality of a criminal proceeding be fully reviewed and decided by
                the appellate process." State v. McDonald, 424 N.W.2d 411, 414-15 (Wis.
                1988) (quoting Commonwealth v. Walker, 288 A.2d 741, 742 n.* (Pa.
                1972)). Some courts allow the appeal to continue only if a personal
                representative is substituted for the deceased appellant; Makaila, 897
                P.2d at 972; State v. McGettrick,     509 N.E.2d 378, 382 (Ohio 1987);
                however, other courts decline to impose this requirement.       See State v.
                Jones, 551 P.2d 801, 803-04 (Kan. 1976); see also McDonald, 424 N.W.2d
                at 415.

                Dismiss the appeal and let the conviction stand
                            Courts that have dismissed the appeal and let the conviction
                stand have done so on mootness grounds or out of public policy
                considerations. See State v. Trantolo, 549 A.2d 1074, 1074 (Conn 1988)
                (finding that where an appeal would not affect the interests of a decedent's
                estate, it was moot); Perry v. State, 575 A.2d 1154, 1156 (Del. 1990)
                (finding that there was no real party in interest because a cause of action
                based upon a penal statute did not survive death, thus the appeal was
                moot); State v. Korsen, 111 P.3d 130, 135 (Idaho 2005) (holding that the
                provisions of a judgment of conviction related to custody or incarceration
                are abated upon the death of the defendant during the pendency of a
                direct appeal, but provisions of the judgment of conviction pertaining to
                payment of court costs, fees, and restitution remain intact because those
                provisions were meant to compensate the victim); Whitehouse v. State, 364

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                   N.E.2d 1015, 1016 (Ind. 1977) (finding that the right to appeal was
                   personal and exclusive to the defendant and that any civil interests of
                   third parties may be separately litigated).

                   The appeal shall continue
                               The abatement ab initio and outright dismissal approaches
                   are extreme and have substantial shortcomings. Vacating the judgment
                   and abating the prosecution from its inception undermines the
                   adjudicative process and strips away any solace the victim or the victim's
                   family may have received from the appellant's conviction. Outright
                   dismissal could prevent a defendant's family from potentially clearing a
                   loved one's name. And both approaches would preclude this court from
                   correcting a deprivation of an individual's constitutional rights. Although
                   the appellant is deceased, rectifying a constitutional error nevertheless
                   benefits society because it decreases the chances that another person
                   would fall victim to the same error.
                               We now adopt the position articulated in Makaila and allow a
                   deceased criminal defendant's direct appeal to continue upon proper
                   substitution of a personal representative pursuant to NRAP 43 when
                   justice so requires. 1 This approach allows all parties to present
                   arguments, and then, the court can make an informed decision regarding
                   the validity of the deceased appellant's conviction. Further, a challenge to




                         i-Cf. State v. Salazar, 945 P.2d 996, 1003-04 (N.M. 1997) (noting that
                   appellate courts may consider "the best interests of [a] decedent's estate,
                   [any] remaining parties, or society" in determining whether an appeal may
                   continue after an appellant's death).

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              .
                   the regularity of Nevada's criminal process presents a live controversy
                   regardless of the appellant's status because, as stated in Commonwealth v.
                   Walker, 288 A.2d 741 (Pa. 1972), society has an interest in the
                   constitutionality of the criminal process. Therefore, we deny Stephanie's
                   motion for abatement oh initio but conclude that, as Ronnie's properly
                   substituted personal representative, she is entitled to continue his appeal.

                   Ronnie's appeal
                               Stephanie asserts that the district court erred in denying
                   Ronnie's Batson challenge. 2 In Jermaine's appeal, we concluded that a
                   reversal of his judgment of conviction was warranted because the district
                   court's mishandling of Jermaine and Ronnie's Batson challenge was
                   intrinsically harmful to the trial's framework. Brass, 128 Nev. at , 291
                   P.3d at 149. Ronnie suffered the same harm as Jermaine and is entitled
                   to the same relief. We recognize that the jury found sufficient evidence to
                   convict Ronnie of the conspiracy, kidnapping, and murder charges.




                         2Stephanie raises several other issues on appeal. But, in light of our
                   determination regarding the Batson challenge, we need not address these
                   additional issues.

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                              However, the jury was not properly constituted, and its
                  decision does not override the constitutional error Ronnie suffered.
                  Accordingly, we reverse the judgment of conviction. 3




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                       3A remand for further proceedings is unnecessary because Ronnie
                  cannot be retried.


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