                                                     132 Nev,, Advance Opinion 30
                        IN THE SUPREME COURT OF THE STATE OF NEVADA

                FREDRICK LEWIS BOWMAN, A/K/A                             No. 67656
                FREDERICK LEWIS BOWMAN,
                Appellant,
                vs.
                                                                                  FILED
                THE STATE OF NEVADA,
                                                                                  APR 2 8 2016
                Respondent.
                                                                                        K..I1NDEMAN
                                                                              1                   0 T
                                                                             BY Sac° A-I A.
                                                                                CHIEF D        CLERK
                            Appeal from a judgment of conviction, pursuant               • a jury
                verdict, of trafficking in a controlled substance. Second Judicial District
                Court, Washoe County; David A. Hardy, Judge.
                            Reversed and remanded.

                Ristenpart Law and Theresa A. Ristenpart, Reno,
                for Appellant.

                Adam Paul Laxalt, Attorney General, Carson City; Christopher J. Hicks,
                District Attorney, and Joseph R. Plater, Deputy District Attorney, Washoe
                County,
                for Respondent.




                BEFORE DOUGLAS, CHERRY and GIBBONS, JJ.

                                                  OPINION

                By the Court, GIBBONS, J.:
                            This appeal concerns (1) whether it was error for the district
                court to deny appellant's motion for a new trial based on juror misconduct;
                (2) whether it was patently prejudicial for the district court to fail to give a
                jury instruction sua sponte prohibiting jurors from conducting
                independent research, investigations, or experiments; and (3) whether the
                stock jury admonition required pursuant to NRS 175.401 fails to protect
SUPREME COURT
      OF
    NEVADA

(0) 1947A                                                                          )47-13-3n
                the parties' right to a fair trial. We conclude that the juror misconduct
                here was sufficient to warrant a new trial and that failure to give a jury
                instruction prohibiting jurors from conducting independent investigations
                or experiments constitutes a reversible error. We reverse the district
                court's order denying appellant's motion for a new trial and remand this
                matter to the district court for a new trial.
                             FACTUAL AND PROCEDURAL BACKGROUND
                            A Washoe County sheriffs deputy conducted an intake search
                of appellant Fredrick Bowman. While conducting the search, the deputy
                found a small white package containing methamphetamine at Bowman's
                feet. The State charged Bowman with a single count of trafficking in a
                controlled substance.
                             At trial, the State advanced a theory that Bowman hid the
                package in his sock or on his person and it fell to the ground during the
                intake search. The defense's theory of the case was that the package was
                carried to that location because it was stuck to the deputy's boot. Neither
                Bowman nor the State requested an instruction prohibiting the jury from
                conducting independent research, investigations, or experiments, and the
                district court did not give such an instruction sua sponte.
                             The jury deliberated for roughly three hours and requested to
                be released for the evening to continue deliberations the following
                morning. The district court judge admonished the jury pursuant to NRS
                175.401, which does not include an admonishment against conducting
                independent research, investigations, or experiments.
                             That evening, two jurors individually conducted experiments
                testing the parties' theories of the case. Both jurors returned the following
                morning and participated in deliberations. The jury returned a
                unanimous guilty verdict. Following trial, the jurors who conducted
SUPREME COURT
         OF
     NEVADA
                                                        2
(0) 19471)
                      independent experiments revealed to counsel that they relied on their
                      independent experiments in reaching a verdict.
                                  Bowman moved the district court to declare a mistrial and
                      order a new trial due to juror misconduct. The district court held a
                      hearing and determined that the deputy district attorney would have an
                      investigator contact the jurors who conducted the independent
                      experiments for a future evidentiary hearing regarding the prejudicial
                      effect of their independent experiments. Additionally, the deputy district
                      attorney drafted questions, in the form of an affidavit, for those jurors.
                                  Both jurors confirmed in their affidavits that they conducted
                      independent experiments and disclosed their experiments to other jurors
                      prior to the jury rendering a verdict. However, at the subsequent
                      evidentiary hearing, both jurors testified, contrary to their sworn
                      affidavits, that they only disclosed their experiments to one another
                      during the short time period after the jury rendered a verdict but before
                      the jury reentered the courtroom.'
                                  Following the jurors' testimony, the district court denied
                      Bowman's motion for a new trial, concluding that there was no reasonable
                      probability that the verdict was affected by the independent experiments
                      because the jurors who conducted the experiments did not change their
                      votes after conducting the experiments and did not disclose them to other
                      jurors until after a guilty verdict was reached. In this appeal, Bowman
                      argues that (1) the district court erred in denying his motion for a new



                             "When confronted with this inconsistency, one juror indicated that,
                      after speaking with the deputy district attorney's investigator, he realized
                      that the information he provided in his affidavit was incorrect.


SUPREME COURT
        OF
     NEVADA
                                                             3
((3) 1947A 4,7017c4
                  trial because the independent experiments conducted by the jurors
                  constitute juror misconduct, and (2) the statutory admonition required
                  pursuant to NRS 175.401 does not adequately protect a party's right to a
                  fair trial because it does not include a warning against conducting
                  independent investigations and experiments.
                                                 DISCUSSION
                  The district court erred in denying Bowman's motion for a new trial
                                Bowman argues that the district court erred in denying his
                  motion for a new trial because the independent experiments conducted by
                  the jurors constituted prejudicial misconduct. We agree.
                                "A denial of a motion for a new trial based upon juror
                  misconduct will be upheld absent an abuse of discretion by the district
                  court." Meyer v. State, 119 Nev. 554, 561, 80 P.3d 447, 453 (2003) (citing
                  United States v. Saya, 247 F.3d 929, 935 (9th Cir. 2001)). "Absent clear
                  error, the district court's findings of fact will not be disturbed. However,
                  where the misconduct involves allegations that the jury was exposed to
                  extrinsic evidence in violation of the Confrontation Clause, 2 de novo
                  review of a trial court's conclusions regarding the prejudicial effect of any
                  misconduct is appropriate." Id. at 561-62, 80 P.3d at 453.
                                To prevail on a motion for a new trial alleging juror
                  misconduct, "the defendant must present admissible evidence sufficient to
                  establish: (1) the occurrence of juror misconduct, and (2) a showing that



                        2 For example, in Zana v. State, 125 Nev. 541, 547, 216 P.3d 244, 248
                  (2009), we concluded that a juror's independent Internet search that he
                  later disclosed to other jurors constituted the use of extrinsic evidence in
                  violation of the Confrontation Clause.



SUPREME COURT
        OF
     NEVADA
                                                        4
(0) 1947A    eo
                the misconduct was prejudicial." Id. at 563-64, 80 P.3d at 455. Thus,
                le]ven if the jurors' behavior was misconduct, not every incidence of juror
                misconduct requires a new trial. If it appears beyond a reasonable doubt
                that no prejudice occurred, a new trial is unnecessary."      Hernandez v.
                State, 118 Nev. 513, 522, 50 P.3d 1100, 1107 (2002).
                            "Prejudice is shown whenever there is a reasonable probability
                or likelihood that the juror misconduct affected the verdict."     Meyer, 119
                Nev. at 564, 80 P.3d at 455. We have concluded that a
                            Wuror's exposure to extraneous information via
                            independent research or improper experiment
                            is ... unlikely to raise a presumption of prejudice.
                            In these cases, the extrinsic information must be
                            analyzed in the context of the trial as a whole to
                            determine if there is a reasonable probability that
                            the information affected the verdict.
                Id. at 565, 80 P.3d at 456. Meyer provides several factors to guide our
                determination, including:
                            how the material was introduced to the jury
                            (third-party contact, media source, independent
                            research, etc.), the length of time it was discussed
                            by the jury, and the timing of its introduction
                            (beginning, shortly before verdict, after verdict,
                            etc.). Other factors include whether the
                            information was ambiguous, vague, or specific in
                            content; whether it was cumulative of other
                            evidence adduced at trial; whether it involved a
                            material or collateral issue; or whether it involved
                            inadmissible evidence (background of the parties,
                            insurance, prior bad acts, etc.).
                Id. at 566, 80 P.3d at 456. Thus, "the district court is required to
                objectively evaluate the effect [the extrinsic material] had on the jury and

SUPREME COURT
        OF
     NEVADA
                                                      5
(0) 1947A
                determine whether it would have influenced the average, hypothetical
                juror!" Zana, 125 Nev. at 548, 216 P.3d at 248 (quoting Meyer, 119 Nev.
                at 566, 80 P.3d at 456). It is not necessary that the extrinsic material be
                disclosed to the jury, a single juror's exposure to extrinsic material may
                still influence the verdict because that juror may interject opinions during
                deliberations while under the influence of the extrinsic material.       See
                Tanksley v. State, 113 Nev. 997, 1005, 946 P.2d 148, 152-53 (1997).
                            In this case, it is uncontested that juror misconduct occurred.
                Both jurors stated in their sworn affidavits that they conducted
                independent experiments to test the theories of the case advanced at trial
                and later confirmed that they conducted the experiments prior to
                returning to jury deliberations. We therefore conclude that Bowman
                presented evidence sufficient to establish that misconduct occurred.
                            We further conclude that Bowman presented sufficient
                evidence to show that there is a reasonable probability that the
                independent experiments affected the jury's verdict and therefore fulfilled
                the second requirement to prevail on a motion for a new trial. The Meyer
                factors weigh in favor of concluding that there is a reasonable probability
                that the independent experiments affected the verdict. Although there is
                some dispute as to whether and how the independent experiments were
                disclosed to fellow jurors, it is clear that two jurors conducted independent
                experiments testing two primary theories of the case and returned to
                participate in jury deliberations after being influenced by that extrinsic
                evidence. Those jurors later disclosed to counsel that they relied on those
                experiments—either to sway them to change their votes or to reinforce
                their previously held positions—before rendering a verdict. Additionally,
                the short length of the trial, the timing of the experiments relative to the

SUPREME COURT
        OF
     NEVADA
                                                      6
(0) 1947A
                  verdict, the specificity of the experiments, and the materiality of the
                  experiments all weigh in favor of concluding that the extraneous
                  information would have influenced the average, hypothetical juror. We
                  therefore conclude that the misconduct was prejudicial and that the
                  district court erred in denying Bowman's motion for a new trial
                   The district court should have provided a jury instruction admonishing
                  jurors against conducting independent research, investigations, and
                  experiments
                              "Failure to object to or request a jury instruction precludes
                  appellate review, unless the error is patently prejudicial and requires the
                  court to act sua sponte to protect the defendant's right to a fair trial"
                  McKenna v. State, 114 Nev. 1044, 1052, 968 P.2d 739, 745 (1998). We
                  conclude that the district court's failure to give a jury instruction
                  admonishing jurors against conducting independent research,
                  investigations, or experiments is a patently prejudicial error requiring us
                  to act.
                              Challenges to unobjected-to jury instructions are reviewed for
                  plain error. See Berry v. State, 125 Nev. 265, 282-83, 212 P.3d 1085, 1097
                  (2009), abrogated on other grounds by State v. Castaneda, 126 Nev. 478,
                  245 P.3d 550 (2010). "The need for [an] instruction must be analyzed in
                  light of the circumstances of the case."    Bonin v. Vasquez, 807 F. Supp.
                  589, 617 (C.D. Cal. 1992) (citing United States v. Martin, 489 F.2d 674,
                  677 n.3 (9th Cir. 1973)) (concluding that a trial court's failure to give jury
                  instructions sua sponte as to unreliability of informant testimony is not
                  necessarily plain error requiring reversal), affd sub nom. Bonin v.
                  Calderon, 59 F.3d 815 (9th Cir. 1995).
                              Although the jury instructions are not in the record on appeal,
                  the State conceded at oral argument that the jury instructions did not

SUPREME COURT
      OF
    NEVADA
                                                        7
(0) 1947A 0t1I.
                include an instruction prohibiting jurors from conducting independent
                research, investigations, or experiments. It is of paramount importance
                that district courts provide a clear instruction to jurors in all cases to not
                conduct any form of independent research, investigations, or experiments
                prior to or during jury deliberations. Here, the parties advanced two
                primary theories of the case that could be easily tested or investigated by
                jurors. The results of such investigations or experiments, as demonstrated
                here, would have a direct impact on the verdict and the defendant's right
                to a fair trial. We therefore conclude that the district court's failure to
                give a jury instruction in this case prohibiting jurors from conducting any
                independent research, investigations, or experiments constitutes plain
                error requiring reversal
                            We further conclude that, given the ease with which jurors
                may conduct independent research, investigations, and experiments,
                failure to give an instruction prohibiting jurors from such conduct in any
                civil or criminal case constitutes plain error. The Manual of Model
                Criminal Jury Instructions for the District Courts of the Ninth Circuit
                (2010) advises district courts to include an instruction regarding the
                jurors' consideration of the evidence. Such an instruction should make
                clear that during deliberations jurors are not to: (1) communicate with
                anyone in any way regarding the case or its merits—either by phone,
                email, text, Internet, or other means; (2) read, watch, or listen to any news
                or media accounts or commentary about the case; (3) do any research, such
                as consulting dictionaries, using the Internet, or using reference
                materials; (4) make any investigation, test a theory of the case, re-create
                any aspect of the case, or in any other way investigate or learn about the
                case on their own. Id. §§ 1.8, 2.1, 7.2.

SUPREME COURT
         OF
      NEVADA
                                                       8
1.0) 1947A
                            We note that an appeal based on a district court's failure to
                provide such an instruction in a case where no juror misconduct occurred
                would likely be considered harmless error. However, providing such an
                instruction in all cases will undoubtedly protect the parties' right to a fair
                trial and prevent jurors from unknowingly tainting the integrity of the
                deliberative process.
                Bowman failed to object to the statutory jury admonition at trial
                            Bowman argues that the statutory jury admonition required
                pursuant to NRS 175.401 is insufficient and does not adequately protect
                the parties' right to a fair trial. Bowman failed to object to the statutory
                jury admonition at trial. We conclude that it was not plain error for the
                district court to provide the statutory jury admonition required pursuant
                to NRS 175.401.
                            "Failure to object generally precludes appellate review."
                Saletta v. State, 127 Nev. 416, 421, 254 P.3d 111, 114 (2011). However,
                this court has discretion to review an unpreserved error "if it [is] plain and
                affected the defendant's substantial rights."     Gallego v. State, 117 Nev.
                348, 365, 23 P.3d 227, 239 (2001), abrogated on other grounds by Nunnery
                v. State, 127 Nev. 749, 263 P.3d 235 (2011); see NRS 178.602. "In
                conducting plain error review, we must examine whether there was error,
                whether the error was plain or clear, and whether the error affected the
                defendant's substantial rights." Green v. State, 119 Nev. 542, 545, 80 P.3d
                93, 95 (2003) (internal quotation marks omitted). Unlike jury
                instructions, the statutory jury admonition does not permit judicial
                discretion regarding its content, and it is given at the beginning of trial,
                without the same context and information available when the jury
                instructions are given. Therefore, we conclude that no plain error
                occurred with regard to the content or conveyance of the statutory jury
SUPREME COURT
        OF
     NEVADA
                                                       9
(0) 1947A
                 admonition required by NRS 175.401 and we therefore decline to further
                 address this issue.
                                                 CONCLUSION
                              We conclude that the district court erred in denying Bowman's
                 motion for a new trial based on juror misconduct which had resulted in
                 prejudice to Bowman. Further, we conclude that where a district court's
                 failure to provide a jury instruction prohibiting jurors from conducting
                 independent research, investigations, or experiments of any kind results
                 in prejudice, the failure may constitute reversible error. Therefore, we
                 reverse and remand this case to the district court for further proceedings
                 consistent with this opinion.




                                                    Gibbons


                 We concur:


                 Dia 1.4.411A,a
                 Douglas




SUPREME COURT
        OF
     NEVADA
                                                     10
(0) 1947A    e
