                                                       130 Nev., Advance Opinion 77
                            IN THE SUPREME COURT OF THE STATE OF NEVADA

                     EDWIN HUMBERTO ARTIGA-                               No. 60172
                     MORALES,
                     Appellant,                                                      FILED -
                     vs.
                                                                                     OCT 0 2 2014
                     THE STATE OF NEVADA,
                                                                                   TEA,. i'E K. L NDEMAN
                     Respondent.                                                CLE         cct
                                                                                BY
                                                                                     ELT CEP



                                Appeal from a judgment of conviction, pursuant to a jury
                     verdict, of battery with a deadly weapon causing substantial bodily harm.
                     Second Judicial District Court, Washoe County; Janet J. Berry, Judge.
                                Affirmed.

                     Jennifer L. Lunt, Alternate Public Defender, and Cynthia Lu, Deputy
                     Alternate Public Defender, Washoe County,
                     for Appellant.

                     Catherine Cortez Masto, Attorney General, Carson City; Richard A.
                     Gammick, District Attorney, and Joseph R. Plater, Deputy District
                     Attorney, Washoe County,
                     for Respondent.

                     Arthur E. Mallory, Fallon,
                     for Amicus Curiae Nevada District Attorneys Association.

                     T. Augustas Claus, Henderson; Robert Arroyo, Las Vegas,
                     for Amicus Curiae Nevada Attorneys for Criminal Justice.


                     BEFORE THE COURT EN BANC.

                                                     OPINION
                     By the Court, PICKERING, J.:
                                Artiga-Morales appeals his conviction for battery with a
                     deadly weapon causing substantial bodily harm His principal argument
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                is that the district court erred in denying his pretrial motion for "an order
                mandating the prosecutor provide a summary of any jury panel
                information gathered by means unavailable to the defense." The record
                does not include a complete transcript of the oral argument on this motion;
                what we have suggests the parties focused on the criminal histories the
                prosecution admitted having run on the venire, which revealed "[s]ome
                prior misdemeanors, that was it." The district court denied the motion on
                two grounds: (1) "the prosecution's choice not to disclose potential juror
                information will not create an unfair trial or impartial [sic] jury [since
                dlefense counsel will have adequate opportunity to examine each potential
                juror during voir dire," and (2) Artiga-Morales "has not established that
                the potential juror information he seeks cannot be obtained by the defense
                investigator or through other reasonable avenues." Our review is for an
                abuse of discretion, People v. Jones, 949 P.2d 890, 913 (Cal. 1998); see
                Lamb v. State, 127 Nev. „ 251 P.3d 700, 707 (2011), and finding
                none, we affirm
                            Almost without exception, courts have declined to find
                reversible error in a trial court denying the defense access to juror
                background information developed by the prosecution.          See Jeffrey F.
                Ghent, Annotation, Right of Defense in Criminal Prosecution to Disclosure
                of Prosecution Information Regarding Prospective Jurors, 86 A.L.R.3d 571
                (1978 & Supp. 2014) (collecting cases). Most courts have held that, in the
                absence of a statute or rule mandating disclosure, no such disclosure
                obligation exists. Albarran v. State, 96 So. 3d 131, 157-58 (Ala. Crim. App.
                2011) ("arrest and conviction records of potential jurors do not qualify as
                the type of discoverable evidence that falls within the scope of Brady [v.
                Maryland, 373 U.S. 83 (1963)]" (alteration in original) (internal quotation

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                   marks omitted)); State v. Mathews, 373 S.E.2d 587, 590-91 (S.C. 1988)
                   (without a statuteS or court rule requiring disclosure, due process did not
                   require disclosure of state-assembled juror background information); see
                   generally Weatherford v. Bursey, 429 U.S. 545, 559 (1977) ("There is no
                   general constitutional right to discovery in a criminal case, and Brady did
                   not create one.").
                                Other courts struggle with the disparity between the
                   prosecution, which has ready access to criminal history and other
                   government databases on prospective jurors, and the defense, which does
                   not.   E.g., People v. Murtishaw, 631 P.2d 446, 465-66 (Cal. 1981),
                   superseded by statute on other grounds as stated in People v. Boyd, 700
                   P.2d 782, 790 (Cal. 1985). But the clear majority of these courts as well
                   have found no reversible error in a trial court's denial of access to
                   prosecution-developed juror background information, concluding, as we do
                   here, that the injury, if any, in the particular case was speculative and/or
                   prejudice was not shown.
                               Murtishaw is typical. In Murtishaw, the California Supreme
                   Court announced that, while not compelled by the constitution, statute, or
                   rule, trial courts in future cases may compel disclosure of prosecution-
                   developed juror background materials.           Id.    Even so, the court
                   acknowledged that "in any individual case it is entirely speculative
                   whether denial of access caused any significant harm to the defense."     Id.
                   at 466. Thus, Murtishaw's holding, as distinct• from its dictum, was that
                   the trial court's refusal to order disclosure "does not require us to reverse
                   the conviction in the present case"• because, absent a showing of
                   "prejudice ... the denial of access is not reversible error." Id.; see Tagala
                   v. State, 812 P.2d 604, 613 (Alaska Ct. App. 1991) (opining that "the

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                  prosecutor should disclose to the defense, upon request, criminal records of
                  jurors, at least in cases where the prosecution intends to rely on them,"
                  but declining to reverse because "[it is difficult to say how [the defense]
                  was harmed by the fact that [the defendant] did not have access to the
                  prosecutor's report" and noting, as the district court did here, "[n] °thing
                  prevented [the defense] from asking the jurors about their criminal
                  records"); State v. Goodale, 740 A.2d 1026, 1031 (N.H. 1999) (while opining
                  that "fundamental fairness requires that official information concerning
                  prospective jurors utilized by the State in jury selection be reasonably
                  available to the defendant," holding that "[w]e nonetheless affirm the
                  defendant's conviction in this case, as he has failed to demonstrate that he
                  was in fact prejudiced by the trial court's ruling"); cf. Commonwealth v.
                  Smith, 215 N.E.2d 897, 901 (Mass. 1966) (declining to reverse based on
                  the trial court's denial of access to prosecution juror background
                  materials—"[w]hether there was any advantage as to any juror is
                  speculative"—but noting its concern with disparate access to background
                  information and suggesting that "[t]he subject could appropriately be dealt
                  with in a rule of Court").
                              Like the defendants in Murtishaw, Tagala, Goodale, and
                  Smith, Artiga-Morales does not connect his theoretical argument to the
                  facts in his case. Nevada's disclosure statute, NRS 174.235, does not
                  mandate disclosure of prosecution-developed juror background
                  information.' Lacking statutory authority, Artiga-Morales turns to
                  constitutional precepts. But he does not argue, much less establish, that


                       'Subparagraph 2 of NRS 174.235 protects the prosecution's work
                  product, an issue not developed here.


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                 "any of the jurors who sat in judgment against him were not fair and
                 impartial." Weber v. State, 121 Nev. 554, 581, 119 P.3d 107, 125-26 (2005).
                 Without this showing, his claim that he was denied his constitutional
                 right to a fair and impartial jury fails. Ross v. Oklahoma, 487 U.S. 81, 88
                 (1988); see State v. Grega, 721 A.2d 445, 450 (Vt. 1998) (finding no error in
                 the trial court's refusal to order disclosure of criminal background checks
                 the prosecution ran on prospective jurors where voir dire was conducted
                 on juror's criminal backgrounds and the Idlefendant does not claim that
                 any of the jurors gave inaccurate or incomplete information, nor has he
                 shown that the impaneled jury was biased in any way").
                             Artiga-Morales makes a more focused argument as to
                 prospective juror Lazaro. He maintains that, but for its superior access to
                 juror background information, the prosecution would not have known to
                 question her about her son's detention in the Washoe County jail on gang-
                 related charges and then been able to defend its peremptory challenge of
                 her on that basis. But this argument does not hold up. In the first place,
                 he does not explain how the prosecution's access to juror Lazaro's criminal
                 history would have produced information about her son's criminal history.
                 Second, and more fundamentally, Lazaro's son's detention in the Washoe
                 County jail on gang-related charges established a race-neutral,
                 nonpretextual reason for the prosecution's peremptory challenge of her.
                 See Hawkins v. State, 127 Nev. , , 256 P.3d 965, 966-67 (2011).
                 Thus, no Batson v. Kentucky, 476 U.S. 79 (1986), violation occurred. And,
                 even accepting that the prosecution came to court with information about
                 Lazaro that Artiga-Morales didn't have and couldn't get beforehand, the
                 information was revealed during voir dire—indeed, the district court
                 offered Artiga-Morales additional voir dire of prospective juror Lazaro,

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                which he declined. Again, Artiga-Morales does not connect the injury of
                which he complains—unequal access to juror background information—to
                cognizable prejudice affecting his case.
                            Artiga-Morales thus has established neither a constitutional
                nor statutory basis for us to reverse his conviction based on the district
                court's denial of his motion to compel disclosure of prosecution-gathered
                juror background information. "If policy considerations dictate that
                defendants should be allowed to see [prosecution-developed jury] dossiers,
                then a court rule should be proposed, considered and adopted in the usual
                manner." People v. Mdntosh, 252 N.W.2d 779, 782 (Mich. 1977), overruled
                on other grounds by People v. Weeder, 674 N.W.2d 372 (Mich. 2004);
                Smith, 215 N.E.2d at 901. 2 Such a formal rule-making procedure is
                implicitly authorized by NRS 179A.100(7)(j) and better suited to the job of
                assessing the scope of the disparity, the impact on juror privacy interests,




                      2 Examples    provided by other jurisdictions and commentators
                suggest a variety of approaches, ranging from declaring such information
                off-limits to the prosecution except on motion with the results to be shared
                with the defense, see State v. Bessenecker, 404 N.W.2d 134, 139 (Iowa
                1987) (of note, Artiga-Morales did not argue to the district court or on
                appeal that the prosecution's accessing the jurors' criminal histories
                exceeded its authority under NRS 179A.100), to adopting a variant of
                Massachusetts General Law, ch. 234A § 33 (2009), which authorizes "[t]he
                court, the office of jury commissioner, and the clerk of court. . . to inquire
                into the criminal history records of grand and trial jurors for the limited
                purpose of corroborating and determining their qualifications for juror
                service," to adopting a variant of Rule 421 of the Uniform Rules of
                Criminal Procedure, which makes it the duty of the prosecuting attorney,
                on the defendant's written request, to allow access to various materials,
                including "reports on prospective jurors," to doing nothing at all given the
                depth and range of publicly available information on the Internet today.

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                the need to protect work product, practicality, and fundamental fairness
                than this case, with its limited record and arguments.
                            We have considered Artiga-Morales's remaining assignments
                of error and find them without merit. The prosecutor's use of Artiga-
                Morales's photograph during closing argument with the word "guilty"
                across the front presents an issue analogous to that in Watters v. State,
                129 Nev.           , 313 P.3d 243 (2013). But the photo was briefly
                displayed during closing argument, not extensively displayed during
                opening statement as in       Wcaters; the defense conceded that the
                prosecution's limited use of the power point photograph during closing
                argument was proper; and the court sustained the defense's objection to
                the photograph the second time it was shown. Impropriety and prejudice
                of the sort demonstrated in Watters thus does not appear.
                            We affirm.




                Gibbons


                  /-                           J.
                Hardesty




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                CHERRY, J., with whom DOUGLAS and SAITTA, JJ., agree, dissenting:
                             The majority fails to recognize that this court has inherent
                supervisory authority over criminal procedure within Nevada's trial
                courts. See Halverson v. Hardcastle, 123 Nev. 245, 261-62, 163 P.3d 428,
                440 (2007) (indicating that this court has "inherent power to prevent
                injustice and to preserve the integrity of the judicial process"); State v.
                Second Judicial Dist. Court, 116 Nev. 953, 968, 11 P.3d 1209, 1218 (2000)
                (holding that this court has inherent authority to regulate procedure in
                criminal cases). Under this authority, when a practice or procedure
                creates an inequality between adverse parties that reflects on the fairness
                of the criminal process, we have the inherent duty to correct such
                disparity.
                             The instant case demonstrates the prejudice and lack of
                fairness that results when the prosecution fails to disclose veniremember
                information. During voir dire, the prosecution used its exclusive
                knowledge regarding the criminal history of a veniremember's son as the
                basis for her examination and subsequent peremptory challenge.
                Meanwhile, defense counsel, without access to the same information, was
                unable to verify the truthfulness of the veniremember's answers or
                develop independent questions suggested by the omitted information. I
                am at a loss to explain why the prosecution should be granted such an
                advantage over the defense; principles of fairness and justice require that
                it be provided to defense counsel.
                             A growing number of jurisdictions permit defense counsel to
                review veniremember information available exclusively to the prosecution.
                Tagala v. State, 812 P.2d 604, 612 (Alaska Ct. App. 1991) ("Our sense of
                fundamental fairness requires placing defendant upon an equal

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                footing. . . ." (internal quotation omitted)); People v. Murtishaiv, 631 P.2d
                446, 465 (Cal. 1981) ("[A] trial judge will have discretionary authority to
                permit defense access to jury records and reports of investigations
                available to the prosecution."), superseded on other grounds by statute as
                stated in People v. Boyd, 700 P.2d 782, 790 (Cal. 1985); Losavio v. Mayber,
                496 P.2d 1032, 1035 (Colo. 1972) ("The requirements of fundamental
                fairness and justice dictate" allowing defense counsel access to criminal
                histories of veniremembers); State v. Bessenecker, 404 N.W.2d 134, 138
                (Iowa 1987) ("[C]onsiderations of fairness and judicial control over the jury
                selection process requires" equal access to juror information.);
                Commonwealth v. Smith, 215 N.E.2d 897, 901 (Mass. 1966) ("The public
                interest in assuring the defendant a fair trial is, we think, equal to the
                public interest in assuring such a trial to the Commonwealth."); State v.
                Goodale, 740 A.2d 1026, 1031 (N.H. 1999) ("We disagree that the
                defendant had no interest in knowing the criminal histories of the
                potential replacement jurors."). I believe that Nevada should follow suit.
                            I am extremely concerned about the unintended consequences
                that the majority disposition produces. It is not uncommon for the
                criminal defense bar as well as the Nevada prosecutors to read, reread,
                digest, and analyze every disposition, whether opinion or order of this
                court, to facilitate preparation of their tactics and strategies for their
                upcoming trials. What the majority disposition will cause is extensive use
                of jury questionnaires in many more cases than are used today, extensive
                use of Facebook, Google, and the like to find out "who is that person on the
                petit jury panel," investigators talking to and interviewing neighbors and
                coemployees of potential jurors, and even the use of a "war room" that is



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                    portrayed in John Grisham's book and movie Runaway Jury. Is this what
                    will occur to "even the playing field" and bring basic fairness to the
                    administration of the criminal justice system in our state? Even the
                    majority concedes that other jurisdictions have mandated the sharing of
                    jury information in criminal cases. Why should Nevada be different when
                    it comes to basic fairness?
                                        For these reasons, I would reverse Artiga-Morales's
                    conviction and grant him a new trial.



                                                                                          J.



                    We concur:


                                   na              J.
                    Douglr


                                                    J.
                    Saitta




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