                                                   131 Nev., Advance Opinion      52.
                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                DUSTIN JAMES BARRAL,                                  No. 6413n LED
                Appellant,
                vs.
                THE STATE OF NEVADA,                                              JUL 2 3 2015
                Respondent.                                                  CL
                                                                                  A IE K. LIl1DEM AN
                                                                                            -




                            Appeal from a judgment of conviction, pursuant to               jury
                verdict, of two counts of sexual assault with a minor under 14 years of age.
                Eighth Judicial District Court, Clark County; Douglas Smith, Judge.
                            Reversed and remanded.


                Las Vegas Defense Group, LLC, and Michael L. Becker and Michael V.
                Castillo, Las Vegas,
                for Appellant.

                Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
                District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
                Michelle Y. Jobe, Deputy District Attorney, Clark County,
                for Respondent.




                BEFORE PARRAGUIRRE, DOUGLAS and CHERRY, JJ.

                                                 OPINION
                By the Court, CHERRY, J.:
                            In this opinion, we address whether a district court commits
                structural error when it fails to administer an oath to the jury panel,
                pursuant to NRS 16.030(5), prior to commencing voir dire. We hold that it
                does.

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                                 FACTS AND PROCEDURAL HISTORY
                            Dustin Barral was charged with sexually assaulting a child.
                His case proceeded to a jury trial. At the beginning of voir dire, both the
                prosecution and defense explained to the potential jurors the importance
                of answering their questions honestly. After questioning the first
                potential juror, the following bench conference took place:
                            MR. BECKER [for Barral]: My recollection may
                            not be correct, but I think it's possible that the
                            panel was not sworn in.
                            THE COURT: They aren't.
                            MR BECKER: Okay.
                            THE COURT: I don't swear them in until the end.
                            MR. BECKER: Okay. In other words, admonish
                            [the jury] that they are to give truthful answers to
                            all the questions—
                            MS. FLECK [for the State]: Yeah[.]
                            MR. CASTILLO [for Barral]: That's fine.


                            THE COURT: —I won't swear them in.
                            MR. BECKER: Okay.
                            THE COURT: Because the ones who are sworn in;
                            that's the panel.
                            MR. BECKER: Right.


                            MS. FLECK: But do we have to give them the
                            oath that they have to tell the truth[?]
                            THE COURT: No.
                            MS. FLECK: Or no?
                            THE COURT: No.
                            MS. FLECK: Okay.


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                                   THE COURT: No.
                                   MS FLECK: Okay.
                     The court then proceeded with voir dire. The district court clerk swore in
                     the petit jury at the beginning of the second day of trial. After both
                     parties rested and presented closing arguments, the jury deliberated for
                     approximately three hours and returned guilty verdicts on both charges.
                     Following a post-trial motion for acquittal that the court denied, Banal
                     appealed.
                                                         DISCUSSION
                                   Barral claims that the district court committed structural
                     error requiring reversal when it failed to comply with NRS 16.030(5)' and
                     administer the oath to the jury venire before voir dire. He argues that the
                     court's error compromised his right to trial by an impartial jury because
                     potential jurors may not have felt obligated to respond truthfully during

                           1 NRS   16.030(5) dictates:
                                   Before persons whose names have been drawn are
                                   examined as to their qualifications to serve as
                                   jurors, the judge or the judge's clerk shall
                                   administer an oath or affirmation to them in
                                   substantially the following form.
                                                Do you, and each of you, (solemnly
                                         swear, or affirm under the pains and
                                         penalties of perjury) that you will well and
                                         truly answer all questions put to you
                                         touching upon your qualifications to serve as
                                         jurors in the case now pending before this
                                         court (so help you God)?
                     (Emphasis added.) Although this statute is articulated in the civil
                     practice section of the Nevada Revised Statutes, it applies to criminal
                     proceedings through NRS 175.021(1).



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                voir dire, as the court did not place them under oath. The State contends
                that the potential jurors understood that they were required to answer
                truthfully because the court and counsel for both sides repeatedly stressed
                to the venire the importance of answering their questions honestly. The
                State also argues that the court's error did not undermine the framework
                of the trial.
                                Whether the district court's actions in this case constituted
                structural error is a question of law that we review de novo. See Neder v.
                United States, 527 U.S. 1, 7 (1999) ("[W] e have recognized a limited class
                of fundamental constitutional errors that defy analysis by harmless error
                standards. Errors of this type are so intrinsically harmful as to require
                automatic reversal (i.e., affect substantial rights) without regard to their
                effect on the outcome." (internal citations and quotation marks omitted));
                see also NRCP 61 ("No error.... in anything done or omitted by the
                court ... is ground for granting a new trial or for setting aside a
                verdict. , unless refusal to take such action appears to the court
                inconsistent with substantial justice.").
                NRS 16.030(5)
                                MRS 16.030(5) does not give the district courts discretion: "the
                judge or the judge's clerk shall administer an oath or affirmation." Id.
                (emphasis added); see also NRS 0.025(1)(d) (stating that "Ismail imposes
                a duty to act"). Thus, we conclude that the district court violated NRS
                16.030(5) in the instant case when, according to its apparent general
                preference, it failed to administer the oath to the venire. Neither party
                disputes that the district court erred by violating MRS 16.030(5).
                However, a district court's error will not always entitle a convicted
                defendant to a new trial. The type of relief, if any, to which a criminal

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                  defendant is entitled following a trial court's violation of NRS 16.030(5) is
                  an issue of first impression for this court.
                  Structural error
                               Structural errors compromise "the framework of a trial."
                  Brass v. State, 128 Nev., Adv. Op. 68, 291 P.3d 145, 148 (2012). Such
                  errors mandate routine reversal because they are "'intrinsically harmful."
                  Id. (quoting Cortinas v. State, 124 Nev. 1013, 1024, 195 P.3d 315, 322
                  (2008)). The United States Supreme Court has repeatedly held that trial
                  court errors which violate a defendant's Sixth Amendment right to an
                  impartial jury are structural errors that create the probability of prejudice
                  and preclude the need for showing actual prejudice to warrant relief.     See
                  Peters v. Kiff, 407 U.S. 493, 502 (1972) (stating that "even if there is no
                  showing of actual bias in the tribunal, this Court has held that due process
                  is denied by circumstances that create the likelihood or the appearance of
                  bias," and citing, as examples, Mayberry v. Pennsylvania, 400 U.S. 455,
                  465-66 (1971) (concluding that the same judge who was subject to a trial
                  lawyer's insults that were "apt to strike at the most vulnerable and
                  human qualities of a judge's temperament" was precluded from deciding
                  the criminal contempt charges against the lawyer in order for "justice [to]
                  satisfy the appearance of justice") (internal citations and quotations
                  omitted from parenthetical)); Estes v. Texas, 381 U.S. 532, 545 (1965)
                  (reversing a criminal conviction without a showing of the actual prejudice
                  caused by the television broadcast of the trial proceedings because "[t]he
                  conscious or unconscious effect that [broadcasting the trial] may have on
                  [the proceedings] cannot be evaluated, but experience indicates that it is
                  not only possible but highly probable"); Turner v. Louisiana, 379 U.S. 466,
                  467-73 (1965) (reversing a criminal conviction without a showing of

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                prejudice because two of the sheriffs deputies (who were "key witnesses"
                at trial and testified regarding disputed facts) were responsible for the
                sequestered jury over the course of the trial and were continuously in the
                jurors' company, including transporting the jurors to restaurants for each
                meal, transporting the jurors to and from their lodgings, conversing with
                the jurors, and handling errands for the jurors); In re Murchison, 349 U.S.
                133, 133-34, 136 (1955) (holding that a judge who acted as a "one-man
                grand jury" could not try the case of two witnesses the judge charged with
                contempt because "[a] fair trial in a fair tribunal is a basic requirement of
                due process [and] requires [not only] an absence of actual bias [but the
                prevention of] even the probability of unfairness"); and Tumey v. Ohio, 273
                U.S. 510, 531, 535 (1927) (reversing a defendant's criminal conviction by a
                judge who was "paid for his service only when he convicts the defendant"
                because "[n]o matter what the evidence was against [the defendant], he
                had the right to have an impartial judge"). In Peters, the Court reasoned
                that due process demands not only the absence of bias but the appearance
                of bias as well:
                             These principles [that fairness requires not only
                             the absence of actual bias but also preventing even
                             a possibility of bias] compel the conclusion that a
                             State cannot, consistent with due process, subject
                             a defendant to. . . trial by a jury that has been
                             selected in an arbitrary and discriminatory
                             manner, in violation of the Constitution and laws
                             of the United States. Illegal and unconstitutional
                             jury selection procedures cast doubt on the
                             integrity of the whole judicial process. They create
                             the appearance of bias in the decision of individual
                             cases, and they increase the risk of actual bias as
                             well.
                407 U.S. at 502-03.

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                            The Peters Court considered whether the arbitrary exclusion
                of African Americans from the grand jury invalidated the indictment and
                subsequent conviction of a Caucasian criminal defendant.       Id. at 496-97.
                Peters claimed that (1) the juries that indicted and convicted him were
                created through constitutional and statutorily prohibited means, (2) the
                consequence of this error on a single prosecution is indeterminable, and
                (3) any indictment or conviction returned by a jury selected in violation of
                the Constitution or federal law must be reversed.        Id. at 496-97. The
                Supreme Court agreed with Peters and concluded that neither the
                indictment nor the conviction against him was valid due to illegal selection
                procedures used to seat the grand and petit juries. Id. at 501.
                            The Peters Court was specifically concerned with protecting
                the integrity of the jury selection process through procedural safeguards.
                Id. at 501-03. The Court explained that our system of justice "has always
                endeavored to prevent even the probability of unfairness." Id. at 502
                (emphasis added) (quoting In re Murchison, 349 U.S. at 136). The Court
                further clarified that "[fit is in the nature of the practices here challenged
                that proof of actual harm, or lack of harm, is virtually impossible to
                adduce," because "there is no way to determine" the composition of the
                jury or the decision it would have rendered if the jury had been selected
                pursuant to constitutional mandates.      Peters, 407 U.S. at 504 (emphasis
                added).
                            Based on the Supreme Court's reasoning, see id. at 498-505,
                we are persuaded that a defendant in a criminal case is denied due process
                whenever jury selection procedures do not strictly comport with the laws
                intended to preserve the integrity of the judicial process. An indictment or
                a conviction resulting from an improperly selected jury must be reversed.

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                A fair tribunal is an elementary prerequisite to due process, so we will not
                condone any deviation from constitutionally or statutorily prescribed
                procedures for jury selection. Cf. id. at 501. Accordingly, we hold that a
                district court commits structural error when it fails to administer the oath
                to potential jurors pursuant to NRS 16.030(5). As we have concluded that
                failing to swear the potential jurors is a structural error, it is reversible
                per se; a defendant need not prove prejudice to obtain relief.
                            Therefore, we reverse Barral's convictions for sexual assault of
                a minor under 14 years of age and remand this matter to the district court
                for a new trial. Because we reverse Barral's convictions on the grounds
                that the district court committed structural error in the jury selection
                process, we need not address the remaining issues in his appeal.




                                                J.




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