                                                      130 Nev., Advance Opinion 19
                           IN THE SUPREME COURT OF THE STATE OF NEVADA


                    EDWARD PRECIADO, A/K/A EDWARD                          No. 58000
                    A. PRECIADO-NUNO,
                    Appellant,
                    vs.
                    THE STATE OF NEVADA,
                                                                           FILED
                    Respondent.                                                FEB 1 3 2014
                                                                                  E LINDEM
                                                                      CL         F      m
                                                                      By   /      DtPUTY CL
                                                                                              ite

                               Appeal from a judgment of conviction, Pursuant to a jury
                    verdict, of voluntary manslaughter with the use of a deadly weapon.
                    Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
                               Affirmed.


                    Law Office of Lisa Rasmussen and Lisa A. Rasmussen, Las Vegas,
                    for Appellant.

                    Catherine Cortez Masto, Attorney General, Carson City; Steven B.
                    Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District
                    Attorney, Clark County,
                    for Respondent.




                    BEFORE GIBBONS, C.J., DOUGLAS and SAITTA, JJ.


                                                    OPINION
                    By the Court, DOUGLAS, J.:
                               We take this opportunity to stress that bench and in-chambers
                    conferences should be memorialized either contemporaneously or by
                    allowing counsel to make a record afterward; and that a prospective juror
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                who is anything less than unequivocal about his or her impartiality should
                be excused for cause.
                            Appellant Edward Preciado engaged in a physical altercation
                with Kim Long. During the altercation, Preciado repeatedly struck Long
                in the head with a hammer, killing her. Preciado claimed self-defense, but
                a jury convicted Preciado of voluntary manslaughter with the use of a
                deadly weapon. The district court sentenced Preciado to the maximum of
                4 to 10 years in prison, with a consecutive 4 to 10 years for the weapon
                enhancement.
                            On appeal, Preciado raises eight issues for this court's review:
                (1) whether the district court's failure to record numerous bench and in-
                chambers conferences was a constitutional violation; (2) whether the
                district court erred in declining to give Preciado's jury questionnaire and
                denying his challenges for cause; (3) whether the State committed
                prosecutorial misconduct; (4) whether the State mishandled critical
                evidence; (5) whether the district court erred in limiting Preciado's
                examination of three witnesses; (6) whether the trial judge improperly
                sentenced Preciado; (7) whether the trial judge was biased against the
                defense; and (8) whether cumulative error requires a new trial.'
                            After full consideration, we determine that only two of
                Preciado's issues have some merit: that the district court erred in failing to
                record numerous bench and in-chambers conferences and in failing to

                      Preciado also asks this court to review alleged errors in his
                presentence investigation report, but we decline to do so because he failed
                to object to any perceived inaccuracies in the report at the time of his
                sentencing, thereby waiving the argument on appeal. See NRS 176.156(1);
                Stockmeier v. State, Bd. of Parole Comm'rs, 127 Nev. „ 255 P.3d
                209, 214 (2011).

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                    excuse for cause a prospective juror who was equivocal about her
                    impartiality. However, these errors were harmless; thus, we affirm
                    Preciado's judgment of conviction.
                    Unrecorded bench conferences and in-chambers discussions
                                 The district court conducted numerous unrecorded bench and
                    in-chambers conferences during Preciado's trial. The court memorialized
                    some of the conferences, but not all. The court also denied Preciado's
                    motion to settle the trial record and reconstruct the unrecorded
                    conferences. Preciado argues that the court's failure to make a record of
                    all of the conferences effectively denied him his right to appeal.
                                 Meaningful appellate review is inextricably linked to the
                    availability of an accurate record of the lower court proceedings regarding
                    the issues on appeal; therefore, a defendant is entitled to have the most
                    accurate record of his or her district court proceedings possible.        See
                    Daniel v. State, 119 Nev. 498, 507-08, 78 P.3d 890, 897 (2003). In Daniel,
                    we determined that SCR 250(5)(a) and due process require a district court
                    to record all sidebar proceedings in a capital case either
                    contemporaneously with the matter's resolution, or the sidebar's contents
                    must be placed on the record at the next break in trial. Id.
                                 Due process requires us to extend our reasoning in Daniel to
                    defendants in noncapital cases, because regardless of the type of case, it is
                    crucial for a district court to memorialize all bench conferences, either
                    contemporaneously or by allowing the attorneys to make a record
                    afterward.
                                 Here, the district erred by failing to make a record of the
                    unrecorded conferences, but this misstep does not warrant reversal. A
                    district court's failure to make a record of an unrecorded sidebar warrants
                    reversal only if the appellant shows that the record's missing portions are
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                so significant that their absence precludes this court from conducting a
                meaningful review of the alleged errors that the appellant identified and
                the prejudicial effect of any error. Id. at 508, 78 P.3d at 897. Preciado did
                not demonstrate that the district court's failure to record all conferences
                prejudiced his appeal. The district court record is sufficient to allow this
                court to adequately consider all issues that Preciado preserved for appeal.
                Thus, the unrecorded conferences did not prejudice Preciado, and reversal
                is not warranted.
                Challenges for cause
                            During the jury selection process, Preciado asserted challenges
                for cause against prospective jurors #304, #318, and #496, in an attempt to
                exclude the jurors from the jury pool. Preciado asserted that: (1)
                prospective juror #304's statement that graphic photos would make her
                think Preciado was a little bit guilty demonstrated that she could not be
                impartial when reviewing the evidence and rendering a verdict, (2) the
                district court should have excluded prospective juror #318 because he
                knew two of the State's witnesses, and (3) prospective juror #496's
                relationship with a Las Vegas police officer effectively prohibited her from
                being objective when evaluating the evidence.
                            The district court denied all of Preciado's challenges for cause
                after each of the three prospective jurors stated that he or she could be
                impartial. The court determined that the jurors' statements alleviated
                any doubt as to their impartiality. In response, Preciado used peremptory
                challenges to eliminate prospective jurors #304 and #496, but he did not
                have any remaining peremptory challenges to eliminate prospective juror
                #318, who sat on the empaneled jury.
                            A prospective juror should be removed for cause only if the
                "prospective juror's views 'would prevent or substantially impair the
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                   performance of his duties as a juror in accordance with his instructions
                   and his oath." Weber v. State, 121 Nev. 554, 580, 119 P.3d 107, 125 (2005)
                   (quoting Leonard v. State, 117 Nev. 53, 65, 17 P.3d 397, 405 (2001)). "If
                   the jury actually seated is impartial, the fact that a defendant had to use a
                   peremptory challenge to achieve that result does not mean that the
                   defendant was denied his right to an impartial jury." Blake v. State, 121
                   Nev. 779, 796, 121 P.3d 567, 578 (2005). A district court's erroneous
                   denial of a challenge for cause is reversible error only if it results in an
                   unfair empaneled jury. See id. The district court has broad discretion in
                   ruling on challenges for cause. Id. at 795, 119 P.3d at 577.
                               The district court did not abuse its discretion in denying
                   Preciado's challenges for cause against prospective jurors #318 and
                   #496, but the court did abuse its discretion in denying Preciado's challenge
                   against prospective juror. #304. Prospective jurors #318
                   and #496 unequivocally stated that they could be impartial when
                   examining the evidence and rendering a verdict; thus, they were
                   suitable jurors. But, while prospective juror #304 stated that she could
                   be impartial, she was equivocal. Prospective juror #304's statement that
                   a graphic photo would make her believe the defendant was guilty
                   (without proof that the defendant caused the damage depicted in
                   the photo) cast doubt on her impartiality. Therefore, the court
                   should have granted Preciado's challenge for cause against prospective
                   juror #304. However, the court's error was harmless and does not require
                   reversal because prospective juror #304 was not on the empaneled jury




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                   and her preconceptions did not infect the jury panel. Further, though
                   Preciado did not have a peremptory challenge left to remove juror #318,
                   we conclude that juror #318 demonstrated the ability to set aside any
                   preconceived prejudices. Therefore, juror #318's presence on the
                   empaneled jury did not prejudice Preciado. Consequently, this issue is not
                   grounds for reversal.
                                Accordingly, we affirm Preciado's conviction.




                   We con ur:


                                                   C.J.
                    ibbons


                                                   J.
                    aitta




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