                                                     130 Nev., Advance Opinion        41
                         IN THE SUPREME COURT OF THE STATE OF NEVADA

                  CHARLES REESE CONNER,                                 No. 57109
                  Appellant,
                  vs.                                                          FILED
                  THE STATE OF NEVADA,
                  Respondent.
                                                                               JUN 2 6 2014
                                                                           cLETRA E j Li
                                                                                 0 el;C    MAN

                                                                          BY
                                                                             AEHIEF


                              Appeal from a judgment of conviction, pursuant a jury
                                                                          In                '




                  verdict, of first-degree murder and two counts of sexual assault. Eighth
                  Judicial District Court, Clark County; Elissa F. Cadish, Judge.
                              Reversed and remanded.

                  Philip J. Kohn, Public Defender, and Howard Brooks, Deputy Public
                  Defender, Clark County,
                  for Appellant.

                  Catherine Cortez Masto, Attorney General, Carson City; Steven B.
                  Wolfson, District Attorney, and Pam Weckerly and Nancy Becker, Deputy
                  District Attorneys, Clark County,
                  for Respondent.




                  BEFORE THE COURT EN BMW.

                                                  OPINION

                  By the Court, CHERRY, J.:
                              In this appeal, we primarily consider whether the district
                  court committed clear error by overruling appellant Charles Reese
                  Conner's Batson' objection and allowing the State to exercise a

                        'Batson v. Kentucky, 476 U.S. 79 (1986).
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                peremptory challenge against an African-American prospective juror. We
                also explain the district court's obligation to conduct a sensitive inquiry
                into all the relevant circumstances before deciding whether the opponent
                of a peremptory challenge has demonstrated purposeful discrimination by
                a preponderance of the evidence. After considering all the relevant
                circumstances and having concluded that it is more likely than not that
                the State struck at least one prospective juror because of race, we hold
                that the district court committed clear error in its ruling on Conner's
                Batson objection, and we therefore reverse and remand. Further, we
                reject Conner's claim that insufficient evidence supports his convictions.
                                                     I.
                            On the night of June 2, 1985, neighbors heard Beth Jardine
                enter her Las Vegas apartment with a man. When Jardine and the man
                walked past the neighbors' apartment, one neighbor testified that he
                heard "a little chuckle [or laughter] here and there." Later that night they
                heard what they believed to be cupboard doors banging around. When one
                neighbor went down to the laundry room, he noticed that Jardine's front
                door was ajar. The next day, a maintenance man found Jardine's nude
                body inside the bedroom of her apartment. She had been bludgeoned to
                death. After Jardine's body was transported to the Clark County Medical
                Examiner's Office, a crime scene investigator for• the Las Vegas
                Metropolitan Police Department (Metro) took swabs from the victim's anal
                and vaginal openings. After forensic tests eliminated Metro's prime
                suspect, the case went cold.
                            In 2004, a detective from Metro's Cold Case Unit asked the
                Las Vegas crime lab to conduct a DNA analysis on the swabs. Two years
                later, the test was performed and the DNA profile from the vaginal swab

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                       was entered into the Federal Bureau of Investigation's Combined DNA
                       Index System (CODIS). On March 2, 2007, the detective received a report
                       indicating that the CODIS database had matched the DNA profile from
                       the vaginal swab to Conner's DNA profile. Conner's fingerprints were
                       then compared to those recovered from an artist lamp and bed sheet found
                       in the apartment and determined to match.
                                      Later that month, detectives traveled to Arkansas to confront
                       Conner with evidence that his DNA was found inside Jardine and his
                       fingerprints were found at the crime scene. The interview was recorded
                       after Conner waived his Miranda2 rights. Conner initially denied any
                       knowledge of the incident, telling detectives that he was drunk most of his
                       time in Las Vegas and he did not remember much. He eventually
                       confessed and told detectives that he hit Jardine with a hammer in a blind
                       rage after he just snapped. At that time, detectives had not told Conner
                       that the weapon used was a hammer. Conner also told detectives that he
                       remembered having sex with Jardine and had anal sex with her after he
                       struck her with the hammer. Conner was charged with one count of open
                       murder and two counts of sexual assault by vaginal and anal penetration.
                                      At trial, Conner admitted that he murdered Jardine but
                       contended that it was not premeditated or committed during the
                       perpetration of sexual assault because the sex was consensual. The State
                       called Dr. Kane Olson, a medical examiner in the Clark County Office of
                       the Coroner/Medical Examiner. She testified to another medical
                       examiner, Dr. James Clark's, findings as memorialized in his 1985
                       autopsy report as well as her own conclusions based on the autopsy report


                             2   Miranda v. Arizona, 384 U.S. 436 (1966).

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                      and photographs taken during the autopsy. Dr. Olson testified that based
                      on her review of the autopsy report and photographs, Jardine had between
                      20 and 25 separate injuries to her head and neck. She was also asked to
                      relay Dr. Clark's opinion as to the cause of death as contained in the
                      autopsy report. Dr. Olson testified that it was Dr. Clark's opinion that the
                      manner of death was homicide, caused by "[c]erebral lacerations and
                      hemorrhage due to fragmented and depressed skull fractures, due to
                      heavy multiple blunt force trauma to [the] head." She also testified to Dr.
                      Clark's opinion that there was, "[a]nal and vaginal sexual intercourse,
                      probable rape." Other findings made by Dr. Clark were also introduced
                      through Dr. Olson's testimony, including that a grid like pattern
                      associated with the injury appeared to be the same pattern present on the
                      end of the hammer that was discovered at the crime scene, there was an
                      area of bruising near the posterior fourchette of the vagina, and sperm
                      was present on the vaginal and anal swabs taken from Jardine before the
                      autopsy.
                                  After hearing all the evidence, a jury rendered a special
                      verdict of guilty against Conner for two counts of sexual assault (vaginal
                      and anal penetration), and one count of first-degree murder, based on both
                      premeditated and felony murder, and sentenced him to death.


                                  Conner contends that the State presented insufficient
                      evidence to sustain his convictions for first-degree murder and two counts
                      of sexual assault.   See NRS 200.030(1)(a) and (b); NRS 200.366(1). He
                      argues that the State failed to prove beyond a reasonable doubt that the
                      sexual intercourse was not consensual or that the murder was "willful,
                      deliberate and premeditated." We disagree.

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                            "The Due Process Clause of the United States Constitution
                requires that an accused may not be convicted unless each fact necessary
                to constitute the crime with which he is charged has been proven beyond a
                reasonable doubt." Rose v. State, 123 Nev. 194, 202, 163 P.3d 408, 414
                (2007). To determine whether due process requirements are met, "[Mae
                standard of review in a criminal case is 'whether, after viewing the
                evidence in the light most favorable to the prosecution, any rational trier
                of fact could have found the essential elements of the crime beyond a
                reasonable doubt." McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573
                (1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). "In
                assessing a sufficiency of the evidence challenge, 'a reviewing court must
                consider all of the evidence admitted by the trial court, regardless whether
                that evidence was admitted erroneously." Stephans v. State, 127 Nev. ,
                    262 P.3d 727, 734 (2011) (emphasis in original) (quoting McDaniel v.
                Brown, 558 U.S. 120, 131 (2010)).
                            When all of the evidence is viewed in the light most favorable
                to the prosecution, a rational juror could conclude that nonconsensual anal
                and vaginal penetration occurred and that Conner deliberately and with
                premeditation intended to kill Jardine by repeatedly striking her in the
                head with the hammer. "[lit is the jury's function, not that of the court, to
                assess the weight of the evidence and determine the credibility of
                witnesses," and "a verdict supported by substantial evidence will not be
                disturbed by a reviewing court." McNair, 108 Nev. at 56, 825 P.2d at 573;
                see also Buchanan v. State, 119 Nev. 201, 217, 69 P.3d 694, 705 (2003)
                (explaining that circumstantial evidence alone may sustain a conviction).




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                                   Even where, as here, there was sufficient evidence to sustain a
                      conviction, that conviction cannot stand where the State engages in
                      discriminatory jury selection. See Diomampo v. State, 124 Nev. 414, 423,
                      185 P.3d 1031, 1037 (2008) (explaining that discriminatory jury selection
                      in violation of Batson constitutes structural error that requires reversal).
                      "The harm from discriminatory jury selection extends beyond that
                      inflicted on the defendant and the excluded juror to touch the entire
                      community." Batson v. Kentucky, 476 U.S. 79, 87 (1986). "That is, the
                      very integrity of the courts is jeopardized when a prosecutor's
                      discrimination invites cynicism respecting the jury's neutrality, and
                      undermines public confidence in adjudication." Miller-El v. Dretke, 545
                      U.S. 231, 238 (2005) (citation and internal quotation marks omitted).
                      Discriminatory jury selection is particularly concerning in capital cases
                      where each juror has the power to decide whether the defendant is
                      deserving of the ultimate penalty, death.
                                                            A.
                                   At the beginning of Conner's trial, the district court held four
                      days of voir dire narrowing the venire to 32 prospective jurors who
                      survived the for-cause challenges. The State exercised nine peremptory
                      challenges, using six of them to strike minority members of the remaining
                      venire. Conner alleged that these challenges established a pattern of
                      racial discrimination. In response to this allegation, the State provided
                      race-neutral reasons for the six peremptory challenges. The State argued
                      that all of the veniremembers it struck were "weak on penalty" and
                      explained:
                                   Every single one of these jurors, . . . each one of
                                   them indicated either [1] they couldn't imagine a
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                            scenario where the death penalty would be
                            appropriate or [2] they flat out switched their
                            questions from what was in their questionnaire
                            where they said they couldn't consider the death
                            penalty and all of a sudden had a change of heart.
                            And those are the reasons, and those are race
                            neutral reasons. . . . That's the basis we used for
                            all those jurors.
                Conner argued that these general explanations for striking all six
                prospective jurors were insufficient and specifically pointed to prospective
                juror number 157, an African American who expressed no reservations
                about imposing the death penalty in both his questionnaire and during
                voir dire. Conner also argued that the State should address its reasons as
                to each prospective juror individually. The district court relented: "Okay.
                Do you know what? I'm not paying extra fees for my kid to be at daycare
                after 6:00 o'clock. So now let's go through it quickly." The State then
                addressed each of the six challenged veniremembers individually.
                Without giving Conner an opportunity to respond and without making
                specific findings as to each challenged veniremember, the district court
                concluded, "I don't think those explanations given are a pretext for such
                discrimination, so I'm denying the Batson challenge based on that." The
                jury was then immediately sworn in.
                            Conner contends that the district court erred by denying his
                Batson challenge because the State's general explanations for striking four
                of the six veniremembers were not supported by the record and were
                pretext for racial discrimination. The State does not respond to this
                contention other than stating that the general explanation was "race
                neutral and appropriate" and instead focuses on the individual
                explanations for striking each juror by criticizing Conner for failing to
                challenge these individual explanations as pretextual during jury
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                 selection. Having considered all the circumstances surrounding Conner's
                 Batson claim, we conclude that the district court clearly erred.
                                                       B.
                             An equal-protection challenge to the exercise of a peremptory
                 challenge is evaluated using the three-step analysis set forth by the
                 United States Supreme Court in Batson. Kaczmarek v. State, 120 Nev.
                 314, 332, 91 P.3d 16, 29 (2004); see also Purkett v. Elem, 514 U.S. 765, 767
                 (1995) (summarizing the three-step Batson analysis). First, "the opponent
                 of the peremptory challenge must make out a prima facie case of
                 discrimination."   Ford v. State, 122 Nev. 398, 403, 132 P.3d 574, 577
                 (2006). Next, "the production burden then shifts to the proponent of the
                 challenge to assert a neutral explanation for the challenge," id., that is
                 "clear and reasonably specific," Purkett, 514 U.S. at 768 (internal
                 quotations omitted). Finally, "the trial court must then decide whether
                 the opponent of the challenge has proved purposeful discrimination." Ford,
                 122 Nev. at 403, 132 P.3d at 577. "This final step involves evaluating the
                 persuasiveness of the justification proffered by the prosecutor, but the
                 ultimate burden of persuasion regarding racial motivation rests with, and
                 never shifts from, the opponent of the strike." Rice v. Collins, 546 U.S. 333,
                 338 (2006) (internal quotation marks omitted). We review the district
                 court's ruling on the issue of discriminatory intent for clear error.     See
                 Libby v. State, 115 Nev. 45, 55, 975 P.2d 833, 839 (1999). In this case, we
                 only address the third step of the Batson inquiry because, as the State
                 admits, the district court's decision at step one is moot, see Hernandez v.
                 New York, 500 U.S. 352, 359 (1991), and Conner does not argue that the
                 State's explanations• for striking the prospective jurors were facially
                 discriminatory, see Purkett, 514 U.S. at 768 (explaining that "[Witless a

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                discriminatory intent is inherent in the prosecutor's explanation, the
                reason offered will be deemed race-neutral" at step two (internal quotation
                marks omitted)).
                            As we recently discussed in our opinion in Hawkins v. State,
                the defendant bears a heavy burden in demonstrating that the State's
                facially race-neutral explanation is pretext for discrimination. 127 Nev.
                          256 P.3d 965, 967 (2011). In order to carry that burden, the
                defendant must offer some analysis of the relevant considerations which is
                sufficient to demonstrate that it is more likely than not that the State
                engaged in purposeful discrimination. These relevant considerations
                include, but are not limited to: (1) the similarity of answers to voir dire
                questions given by veniremembers who were struck by the prosecutor and
                answers by those veniremembers of another race or ethnicity who
                remained in the venire, (2) the disparate questioning by the prosecutors of
                struck veniremembers and those veniremembers of another race or
                ethnicity who remained in the venire, (3) the prosecutors' use of the "jury
                shuffle," and (4) "evidence of historical discrimination against minorities
                in jury selection by the district attorney's office." Id. at , 256 P.3d at
                967. "An implausible or fantastic justification by the State may, and
                probably will, be found to be pretext for intentional discrimination." Ford,
                122 Nev. at 404, 132 P.3d at 578.
                            Although we explained the defendant's obligation in Hawkins,
                we did not emphasize the important role that the district court plays at
                step three of the Batson inquiry. "[T]he trial court has a duty to assess
                whether the opponent of the strike has met its burden to prove purposeful
                discrimination." United States v. McAllister, 693 F.3d 572, 580 (6th Cir.
                2012). The answer to the decisive question about whether the race-

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                  neutral explanation for a peremptory challenge should be believed will
                  largely turn on an evaluation of credibility and usually will involve an
                  evaluation of the demeanor of the jurors and the attorney who exercises
                  the challenge. See Hernandez, 500 U.S. at 365. "The proffer of various
                  faulty reasons and only one or two otherwise adequate reasons, may
                  undermine the prosecutor's credibility to such an extent that a court
                  should sustain a Batson challenge." Lewis v. Lewis, 321 F.3d 824, 831 (9th
                  Cir. 2003). "[A]n adequate discussion of the district court's reasoning may
                  be critical to our ability to assess the district court's resolution of any
                  conflict in the evidence regarding pretext."   Kaczmarek, 120 Nev. at 334,
                  91 P.3d at 30.
                              The district court "must undertake a sensitive inquiry into
                  such circumstantial and direct evidence of intent as may be available" and
                  "consider all relevant circumstances" before ruling on a Batson objection
                  and dismissing the challenged juror. Batson, 476 U.S. at 93, 96 (internal
                  quotation marks omitted); see also Snyder v. Louisiana, 552 U.S. 472, 478
                  (2008). This sensitive inquiry certainly includes giving the defendant an
                  opportunity to "traverse an ostensibly race-neutral explanation for a
                  peremptory challenge as pretextual." Hawkins, 127 Nev. at , 256 P.3d
                  at 967; Coombs v. Diguglielmo, 616 F.3d 255, 264 (3d Cir. 2010) ("Batson
                  requires . . . an opportunity for opposing counsel to argue that the
                  proffered reasons are pretextual . . . ."). A district court may not
                  unreasonably limit the defendant's opportunity to prove that the
                  prosecutor's reasons for striking minority veniremembers were pretextual.
                  See Coombs, 616 F.3d at 263. The district court should sustain the Batson
                  objection and deny the peremptory challenge if it is "more likely than not
                  that the challenge was improperly motivated." Johnson v. California, 545

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                 U.S. 162, 170 (2005); see also Williams v. Beard, 637 F.3d 195, 215 (3d Cir.
                 2011).
                                                       C.
                             We turn then to the inquiry that was conducted at step three
                 in this case. Although Conner challenges on appeal the district court's
                 decision during step three with respect to four of the prospective jurors, we
                 need only consider one of them here.         See Snyder, 552 U.S. at 478
                 (explaining that clear error with respect to one juror is sufficient for
                 reversal); United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)
                 ("[T]he Constitution forbids striking even a single prospective juror for a
                 discriminatory purpose."). As discussed above, two general explanations
                 were offered by the State for striking all of the challenged veniremembers:
                 (1) they "switched their [answers] from what was in their questionnaire"
                 or (2) they "couldn't imagine a scenario where the death penalty would be
                 appropriate." Conner challenged these race-neutral explanations with
                 respect to prospective juror 157, a United States Air Force Reserve officer,
                 who worked full-time as a correctional officer and formerly served as a
                 naval officer and police officer in another state. Conner reminded the
                 district court that this prospective juror told both parties during voir dire
                 that he could consider all three forms of punishment and was not
                 concerned about his ability to impose the death penalty. His exact answer
                 to the question, "do you feel as though you could, if necessary, vote to
                 impose the ultimate punishment of the death penalty" was "I could sir."
                 Furthermore, a review of his answers during voir dire reveals that he did
                 not switch any of his answers from what he wrote on his questionnaire.
                 Thus, the State's general explanations for striking this prospective juror



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                were belied by the record. A race-neutral explanation that is belied by the
                record is evidence of purposeful discrimination.
                            Without responding to Conner's allegation of pretext, the
                district court asked the State to provide a more specific explanation for
                striking each of the six challenged veniremembers. Five of the six
                individual explanations provided further details about how each of them
                (1) switched answers or (2) "couldn't imagine a scenario where the death
                penalty would be appropriate." Juror 157 was the exception. The State
                abandoned its two general explanations for striking him and produced two
                new explanations Instead of giving Conner an opportunity to respond to
                these new explanations, the district court judge overruled Conner's
                objections, swore •in the jury, and left the courtroom after briefly
                reassuring the parties that she had listened "to the six separate
                explanations and [that her] ruling was based on those." We conclude that
                the district court failed to meet its step-three obligations. At the very
                least, the district court should have provided Conner an opportunity to
                meet his burden by responding to the individual race-neutral explanations
                proffered by the State. Without doing so, the district court could not
                undertake the sensitive inquiry into all the relevant circumstances
                required by Batson and its progeny. See Batson, 476 U.S. at 93, 96.
                            On appeal, the State asks this court to overlook the evidence
                of purposeful discrimination and focus on the new race-neutral
                explanations for striking prospective juror 157 that were not belied by the
                record. We find it "difficult to credit the State's new explanation, which
                reeks of afterthought."   Miller-El v. Dretke, 545 U.S. 231, 246 (2005)
                (describing the State's sudden production of a new explanation and failure
                to defend its first explanation after defense counsel drew attention to its

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                   misstatement). Moreover, the State's new race-neutral explanations do
                   not instill this court with confidence in the district court's rushed decision
                   below. The State's first new explanation was that it feared the prospective
                   juror would influence others in the jury room because of his knowledge of
                   law enforcement and the criminal justice system. While not necessarily
                   "Lain implausible or fantastic justification," Ford, 122 Nev. at 404, 132
                   P.3d at 578, we find it unusual that the State based its decision on this
                   prospective juror's law enforcement experience, especially in light of his
                   promise during voir dire, at the State's request, that he would follow the
                   instructions of the district court about the law. The second new
                   explanation for striking this prospective juror was that he believed people
                   could be redeemed or rehabilitated. If, indeed, prospective juror 157's
                   thoughts on redemption or rehabilitation made the State uneasy, it also
                   should have been worried about a number of other veniremembers whom
                   it accepted with no evident reservations.    Miller-El, 545 U.S. at 244. A
                   comparison of prospective juror 157's responses to those of other
                   veniremembers who were not struck reveals that his expressed views on
                   redemption or rehabilitation were similar, if not identical, to those of at
                   least three other non-African-American veniremembers who remained on
                   the jury. This kind of disparate treatment of similarly situated
                   veniremembers can support the inference that the reasons given for
                   striking prospective juror 157 were mere pretext for purposeful
                   discrimination.      See id. at 244-47. Having considered all the relevant
                   circumstances, we conclude that the district court clearly erred by
                   allowing the State to exercise a peremptory challenge to dismiss this
                   prospective juror.



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                                   Because this error is structural, we reverse the judgment of
                      the district court and remand this matter to the district court for
                      proceedings consistent with this opinion. 3




                      We concur:




                      Pickering


                                   vetz-St-x.    , J.
                      Hardesty




                 C.




                      firouglas




                            3 Becausewe reverse the judgment of conviction on these grounds we
                      need not address the other contentions raised by Conner on appeal.


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                GIBBONS, C.J., with whom SAITTA, J., agrees, concurring:

                               While I agree with the majority that the district court clearly
                erred by denying Conner's Batson challenge, I write separately to express
                my concern with the State's introduction of the statements and opinions of
                Dr. James Clark as contained in his 1985 autopsy report through the
                testimony of Dr. Alane Olson. In its answering brief, the State argues
                that an autopsy report is not testimonial because it falls within the
                business-records exception to the hearsay rule. The United States
                Supreme Court has clearly explained that whether a report falls within an
                exception to the hearsay rule is not determinative of whether the report is
                testimonial.    See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 322-24
                (2009). This court has "previously concluded that a statement is
                testimonial if it would lead an objective witness to reasonably believe that
                the statement would be available for use at a later trial."     Vega v. State,
                126 Nev. , 236 P.3d 632, 637 (2010) (internal quotations omitted);
                see also Davis v. Washington, 547 U.S. 813, 822 (2006) (determining
                whether statement was made for the primary purpose of establishing
                "past events potentially relevant to later criminal prosecution"); Williams
                v. Illinois, 567 U.S. „ 132 S. Ct. 2221, 2261 (2012) (Thomas, J.,
                concurring in judgment) (agreeing with the primary purpose analysis of
                Kagan, Scalia, Ginsburg, and Sotomayor, JJ.). Furthermore, the Sixth
                Amendment prohibits the State from introducing testimonial evidence
                through "surrogate testimony." Bullcoming v. New Mexico, 564 U.S.
                   , 131 S. Ct. 2705, 2710 (2011); Vega, 126 Nev. at , 236 P.3d at 638
                (concluding that an expert witness's testimony regarding the content of a
                written report prepared by another person who did not testify "effectively


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                 admitted the report into evidence"). In the event of a retrial, the State
                 should carefully consider the Confrontation Clause issues.




                                                                                 C.J.
                                                    Gibbons


                 I concur:


                                               J.
                 Saitta




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