                                                   132 Nev., Advance Opinion 2.0
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                JASON DUVAL MCCARTY,                                  No. 58101
                Appellant,
                vs.
                THE STATE OF NEVADA,
                                                                          FILED
                Respondent.                                                MAR 3 1 2016



                            Appeal from a judgment of conviction, pursuant to a jury
                verdict, of two counts of first-degree murder with the use of a deadly
                weapon, one count of conspiracy to commit murder, two counts of
                conspiracy to commit kidnapping, three counts of first-degree kidnapping,
                two counts of robbery with the use of a deadly weapon, and one count each
                of conspiracy to commit burglary, burglary, battery with substantial bodily
                harm, robbery, and pandering. Appellant was sentenced to death for each
                murder. Eighth Judicial District Court, Clark County; Michael Villani,
                Judge.
                            Reversed and remanded.


                Christopher R. Oram, Las Vegas,
                for Appellant.

                Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
                District Attorney, and Marc P. DiGiacomo and Ryan J. MacDonald,
                Deputy District Attorneys, Clark County,
                for Respondent.




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                BEFORE THE COURT EN BANC.

                                                OPINION

                By the Court, CHERRY, J.:
                            Jason Duval McCarty was convicted of multiple felony counts
                related to the kidnapping and murder of Charlotte Combado and Victoria
                McGee. In two interviews with police after his initial appearance before a
                magistrate, McCarty denied killing the women or being present when they
                were killed, instead implicating Domonic Malone, but he admitted to
                helping to discard evidence. The district court denied a motion to
                suppress the statements made in those interviews, and McCarty
                challenges that decision on appeal. We conclude that McCarty's Sixth
                Amendment right to counsel attached at his initial appearance before a
                magistrate but that he waived his right to have counsel present at the
                subsequent interviews when he was informed of his rights consistent with
                Miranda v. Arizona, 384 U.S. 436 (1966), and chose to speak with police
                without counsel Although McCarty is not entitled to relief on that issue,
                an error during jury selection requires that we reverse the judgment of
                conviction and remand for a new trial. In particular, after considering all
                the relevant circumstances, we conclude that the district court committed
                clear error when it rejected McCarty's objection under Batson v. Kentucky,
                476 U.S. 79 (1986), to the State's use of a peremptory challenge to remove
                an African American from the venire.
                                                     I.
                            McCarty was arrested on the evening of May 25, 2006. The
                supporting Declaration of Arrest identifies numerous charges, including
                two counts of murder with the use of a deadly weapon, three counts of
                kidnapping, three counts of conspiracy, and battery causing substantial
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                      bodily harm According to the Henderson Township Justice Court's
                      minutes, McCarty first appeared before a magistrate on May 30, 2006, five
                      days after he was arrested. At that time, McCarty was denied bail on the
                      murder charges and bail was set at $2 million on "all other charges."
                      Eight days later, counsel was appointed to represent him when he
                      appeared for arraignment. During the eight days between his initial
                      appearance and his arraignment, McCarty was interrogated by the State
                      on two occasions. He contends that the statements he made during the
                      interrogations should have been suppressed because detectives
                      deliberately elicited incriminating statements after his Sixth Amendment
                      right to counsel attached. The State contends that McCarty's Sixth
                      Amendment right to counsel did not attach until the district attorney filed
                      "formal" charges on June 7, 2006, the same date that McCarty appeared
                      for arraignment and was appointed counsel Both McCarty and the State
                      are mistaken.
                                                                A.
                                  We first address the State's misconception about when the
                      Sixth Amendment right to counsel attaches. The Sixth Amendment
                      provides that,   "WTI   all prosecutions, the accused shall enjoy the right .. . to
                      have the Assistance of Counsel for his defence." U.S. Const. amend. VI.
                      As the Supreme Court has explained, the Sixth Amendment right to
                      counsel "is limited by its terms," and therefore, wit does not attach until a
                      prosecution is commenced." Rothgery v. Gillespie Cty., 554 U.S. 191, 198
                      (2008) (quoting McNeil v. Wisonsin, 501 U.S. 171, 175 (1991)); see also
                      Dewey v. State, 123 Nev. 483, 488, 169 P.3d 1149, 1152 (2007) (stating that
                      the "right to counsel is triggered at or after the time that judicial
                      proceedings have been initiated" (quotation marks omitted)).

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                    Commencement of prosecution, for purposes of the attachment of the right
                    to counsel, has been tied to "the initiation of adversary judicial criminal
                    proceedings—whether by way of formal charge, preliminary hearing,
                    indictment, information, or arraignment."      Rot hgery, 554 U.S. at 198
                    (quotation marks omitted). One example of the initiation of judicial
                    proceedings is particularly relevant in this case—an initial appearance
                    before a magistrate.
                                Beginning as early as 1977, the Supreme Court has held "that
                    the right to counsel attaches at the initial appearance before a judicial
                    officer." Id. at 199 (citing Brewer v. Williams, 430 U.S. 387, 399 (1977);
                    Michigan v. Jackson, 475 U.S. 625, 629 n.3 (1986), overruled on other
                    grounds by Montejo v. Louisiana, 556 U.S. 778, 797 (2009). An "initial
                    appearance" has been characterized by the Court as a hearing at which a
                    magistrate informs the defendant of the charge and various rights in
                    further proceedings and determines the conditions for pretrial release. Id.
                    Based on the Court's description of an initial appearance, the proceeding
                    in this case in justice court on May 30, 2006, was an initial appearance:
                    McCarty was in custody on a declaration of arrest that set forth specific
                    charges and probable cause to support those charges, was brought before a
                    magistrate who informed him of his right to counsel, his right to remain
                    silent, and his right to a preliminary hearing and who had already
                    determined the conditions for pretrial release (as part of a probable cause
                    review on May 27). Contrary to the State's assertion, the fact that the
                    district attorney had not yet filed "formal" charges is irrelevant.   Id. at
                    194-95 (rejecting argument that attachment of the right to counsel
                    "requires that a public prosecutor (as distinct from a police officer) be
                    aware of [the] initial proceeding or involved in its conduct"); id. at 207

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                 ("[U]nder the federal standard, an accusation filed with a judicial officer is
                 sufficiently formal, and the government's commitment to prosecute it
                 sufficiently concrete, when the accusation prompts arraignment and
                 restrictions on the accused's liberty to facilitate prosecution."); id. at 210
                 (observing that "an initial appearance following a charge signifies a
                 sufficient commitment to prosecute regardless of a prosecutor's
                 participation, indictment, information, or what the County calls a 'formal'
                 complaint"). McCarty's Sixth Amendment right to counsel attached on
                 May 30, 2006.
                                                          B.
                              "Whether the right has been violated and whether [McCarty]
                 suffered cognizable harm are separate questions from when the right
                 attaches." Rothgery, 554 U.S. at 212 n.17; see also id. at 212 n.15 ("We do
                 not here purport to set out the scope of an individual's postattachment
                 right to the presence of counsel It is enough for present purposes to
                 highlight that the enquiry into that right is a different one from the
                 attachment analysis."); id. at 213-14 (Alito, J., concurring) ("As I interpret
                 our precedents, the term 'attachment' signifies nothing more than the
                 beginning of the defendant's prosecution. It does not mark the beginning
                 of a substantive entitlement to the assistance of counsel."). "Once
                 attachment occurs," the defendant "is entitled to the presence of counsel
                 during any 'critical stage' of the postattachment proceedings." Id. at 212.
                 "Thus, counsel must be appointed within a reasonable time after
                 attachment to allow for adequate representation at any critical stage
                 before trial, as well as at trial itself." Id.
                              After the right to counsel attached in this case, eight days
                 passed before counsel was appointed. During that time, McCarty was
                 interviewed by police on two occasions (June 1 and June 6). The Supreme
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                Court has held that postattachment interrogation by the State is a critical
                stage at which the defendant has a right to be represented by counsel.
                Montejo, 556 U.S. at 786 (citing Massiah v. United States, 377 U.S. 201,
                204-05 (1964)). It is undisputed that McCarty did not have counsel
                present during the postattachment interrogations. Although it is arguable
                that the eight-day delay in the appointment of counsel was unreasonable,
                as the Supreme Court has "place [dl beyond doubt," the defendant may
                waive the Sixth Amendment right to counsel, "so long as relinquishment of
                the right is voluntary, knowing, and intelligent." Id. "The defendant may
                waive the right whether or not he is already represented by counsel; the
                decision to waive need not itself be counseled." Id.
                            Here, the district court found, after a hearing on the motion to
                suppress, that McCarty "had been Mirandized." According to the Supreme
                Court, "when a defendant is read his Miranda rights (which includes the
                right to haveS counsel present during interrogation) and agrees to waive
                those rights, that typically does the trick" because even though the
                Miranda rights have their foundation in the Fifth Amendment, a Miranda
                advisement is sufficient to apprise a defendant of the nature of his Sixth
                Amendment rights and the consequences of abandoning those rights.        Id.
                at 786-87 (citing Patterson v. Illinois, 487 U.S. 285, 296 (1988)). Because
                McCarty has failed to demonstrate that his Miranda waiver was not
                voluntary, knowing, and intelligent, we cannot say that there was a Sixth
                Amendment violation that would have required the district court to grant
                the motion to suppress.


                            McCarty also contends that the State engaged in
                discriminatory jury selection when it exercised peremptory strikes to

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                remove two African-American prospective jurors from the venire. "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). 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 McCarty's trial, the district court held five
                days of voir dire, narrowing the venire to 36 prospective jurors after for-
                cause challenges. The State exercised ten peremptory challenges, using
                two of them to strike two of the three remaining African Americans in the
                venire McCarty objected to those two peremptory challenges as
                discriminatory, focusing primarily on prospective juror number 36, a
                married 28-year-old African-American mother of two who was a full-time
                college student. In response to McCarty's objection, the State explained
                that based on prospective juror 36's responses to questions during voir
                dire, it conducted independent research into her background in an attempt
                to learn why her brother had been incarcerated. During the course of that
                investigation, the State conducted a Shared Computer Operations for
                Protection and Enforcement (SCOPE) background check and learned that
                she had a valid work card for an adult nightclub.' Referring to that
                information, the prosecution explained to the district court that, "with all
                due respect, it has nothing to do with the race, but the State of Nevada's


                      'The investigation failed to uncover any information about the
                prospective juror's brother.

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                     not going to leave somebody who works at a strip club on their panel."
                     McCarty argued that the State used prospective juror 36's work card as
                     pretext for purposeful discrimination. When McCarty attempted to point
                     out that prospective juror 36 had obtained the work card "over three years
                     ago" and that she mentioned in her juror questionnaire that she had been
                     a full-time college student for over a year, the district court interrupted
                     defense counsel and told counsel, "Mt sounds like your argument here is
                     for the Supreme Court. I've made my decision. And I don't mean it in a
                     flippant way .. . [a]nd I am concerned about this, but. . . I've ordered that
                     they show you the SCOPE, and it'll be part of the record, and we can go
                     from there." The court then continued with the peremptory challenges
                     and swore in the jury.
                                 McCarty contends that the district court erred by denying his
                     Batson objection because the State's race-neutral explanations were
                     pretext for racial discrimination. In its answering brief, the State fails to
                     mention its strip-club explanation provided to the district court and
                     instead focuses on prospective juror 36's brother, arguing that it struck
                     this prospective juror because her brother was prosecuted by the State 13
                     years earlier and it did not want jurors who had family members who had
                     been convicted of a violent crime to serve on the jury. Having considered
                     all the circumstances surrounding McCarty's           Batson objection, 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

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                  (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). Then, "the production burden .. . 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
                  quotation marks omitted). Finally, "the trial court must ... 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 the district court's decision at step one is moot,
                  see Hernandez v. New York, 500 U.S. 352, 359 (1991), and McCarty 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
                  luhiless a 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.
                  575, 578-79, 256 P.3d 965,967 (2011). In order to carry that burden, the

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             ,
                 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. Considerations that are relevant at
                 the third step include, but are not limited to: (1) the similarity of answers
                 to voir dire questions given by jurors who were struck by the prosecutor
                 and answers by those jurors of another race or ethnicity who remained in
                 the venire, (2) the disparate questioning by the prosecutors of struck
                 jurors and those jurors 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 578, 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.
                                The district court also plays an important role during step
                 three of the Batson inquiry and 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.
                 Batson, 476 U.S. at 93, 96 (internal quotation marks omitted); see also
                 Snyder v. Louisiana, 552 U.S. 472, 478 (2008). "A district court may not
                 unreasonably limit the defendant's opportunity to prove that the
                 prosecutor's reasons for striking minority veniremembers were
                 pretextual."    Conner v. State, 130 Nev., Adv, Op. 49, 327 P.3d 503, 509
                 (2014). 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 U.S. 162, 170
                 (2005); see also Williams v. Beard, 637 F.3d 195, 215 (3d Cir. 2011).



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                                                        C.
                               We turn then to the inquiry that was conducted at step three
                   in this case. Although McCarty challenges the district court's decision at
                   step three with respect to both of the African-American prospective jurors
                   who were struck by the State, 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."). In its argument below,
                   the State explained to the district court that it does not want employees of
                   strip clubs to serve as jurors. After a lunch break, and 30 minutes into
                   argument on McCarty's Batson objection, the State added that it was also
                   concerned that prospective juror 36 might be upset because the State
                   prosecuted her brother 13 years earlier or that her brother might have
                   committed a violent crime.
                               We first address the race-neutral explanation initially offered
                   by the State for striking prospective juror 36. The State claimed that it
                   struck prospective juror 36 because "the State of Nevada's not going to
                   leave somebody who works at a strip club on their panel." The State's
                   explanation is troubling because the State admitted that it only ran a
                   SCOPE background check on one of the other 35 prospective jurors
                   remaining in the venire. If, indeed, prospective juror 36's possession of a
                   valid work card for an adult nightclub made the State uneasy, it should
                   have also been worried about the other 34 prospective jurors on whom it
                   did not conduct a SCOPE background check to determine whether they
                   had obtained a valid work card within the last three years. This kind of
                   disparate treatment supports our conclusion that it is more likely than not

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                that the reasons given for striking prospective juror 36 were mere pretext
                for purposeful discrimination. See Miller-El v. Dretke, 545 U.S. 231, 244
                (2004).
                            We acknowledge that this pretext argument was not well
                developed in the district court and McCarty takes a different tact on
                appeal. However, McCarty twice alluded to this observation below in the
                context of challenging the State's use of SCOPE background checks on
                jurors. He first complained that the defense cannot assess whether the
                State has articulated a race-neutral reason without equal access to the
                SCOPEs because the defense had no way of knowing if any of the other
                potential jurors had work cards. McCarty further argued that "[ill two of
                those jurors have stripper cards, then we can show the Court that's not a
                racially neutral reason." Later, McCarty suggested a hypothetical where a
                prosecutor accesses an African-American juror's SCOPE in search of a
                race-neutral reason to strike the juror. He argued that "[ill the prosecutor
                were to make a specific election to not examine any other SCOPEs, you
                have then a mechanism in place where a race-neutral reason can be
                proffered and the validity of the race-neutral reason can never be
                challenged." These arguments point to the concern we have in this case
                that the discovery of juror 36's work card was just a fortuitous excuse to
                remove this African-American juror. We cannot overlook such a clear
                instance of discriminatory intent. Considering the State's original reason
                for conducting the independent background investigation (prospective
                juror 36's brother's criminal history) and that investigation's failure to
                yield results, we conclude that the State's strip-club explanation is
                                  Kaczmarek, 120 Nev. at 334, 91 P.3d at 30 (quoting
                Purkett, 514 U.S. at 768).

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                                   We are also troubled by the district court's handling of
                    McCarty's concern about the accuracy of the work-card information on
                    prospective juror 36's SCOPE. Her SCOPE indicated that she had
                    obtained a work card to serve cocktails at an adult nightclub three years
                    earlier. The juror listed her occupation as "full-time student" in her
                    questionnaire, and she confirmed during voir dire that she was a full-time
                    student studying health-care administration. When McCarty attempted
                    to point out that it was unlikely that prospective juror 36 currently
                    worked at an adult nightclub because she listed her occupation as "full-
                    time student" in her questionnaire and had obtained the work card three
                    years earlier, the district court prevented him from continuing with his
                    argument and told him "it sounds like your argument here is for the
                    Supreme Court." The district court is mistaken. As we recently explained
                    in Conner, 130 Nev., Adv. Op. 49, 327 P.3d at 509, it is the district court
                    that "has a duty to assess whether the opponent of the strike has met its
                    burden to prove purposeful discrimination" and the "district court may not
                    unreasonably limit the defendant's opportunity to prove that the
                    prosecutor's reasons for striking minority veniremembers were
                    pretextual."
                                   Here, the district court admitted it was "concerned" about the
                    State's independent investigation into prospective juror 36's background,
                    but it nevertheless disregarded McCarty's attempt to show that it was
                    unlikely that prospective juror 36 currently worked at an adult nightclub.
                    The district court failed to undertake the sensitive inquiry into all the
                    relevant circumstances required by Batson and its progeny before
                    rendering its decision. See Batson, 476 U.S. at 93,96. Furthermore, the
                    district court failed to discuss which facts or circumstances alleviated its

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                  concerns about the State's independent investigation and caused it to deny
                  McCarty's Batson challenge. We have previously explained that "an
                  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's failure to consider all of the relevant circumstances
                  and make a record in this case undermines our confidence in its decision.
                              The State asks this court to disregard its strip-club
                  explanation and focus on its alternative explanation that it struck
                  prospective juror 36 because her brother was prosecuted by the State 13
                  years earlier, and it did not want veniremembers who had family members
                  who had been convicted of a violent crime to serve as jurors. But, there is
                  no evidence that prospective juror 36's brother was ever convicted of a
                  violent crime. Furthermore, when prospective juror 36 told the State that
                  she had "very little" relationship with her brother and, based on the
                  limited information she had about his prosecution, she believed the State
                  treated him fairly, the prosecutor responded, "So obviously. . . you don't
                  harbor any resentment against my office." The State also fails to mention
                  that it did not offer its alternative explanation until after McCarty
                  attacked its first race-neutral explanation as pretextual.     Cf. Miller-El,
                  545 U.S. at 246 (finding it difficult to credit the State's alternative race-
                  neutral explanation because of its pretextual timing).
                              Nonetheless, we have considered the State's alternative
                  explanation Like prospective juror 36, three other prospective jurors who
                  were not struck by the State responded affirmatively to the
                  questionnaire's inquiry whether "anyone close to you [has] ever been
                  charged with, arrested for, or convicted of any public offense." We focus on

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                 prospective juror 76, a Caucasian, and the only other prospective juror on
                 whom the State conducted a SCOPE background check. In response to
                 this question, prospective juror 36 answered, "Brother, not exactly sure of
                 the charges." Similarly, the Caucasian juror answered, "My real father,
                 but I don't know of what exactly... ." The Caucasian juror was only
                 asked one question about this answer during voir dire—"Without getting
                 too in depth into the questions that you had that were asked related to
                 your father, I'm assuming there is nothing related to your father that
                 would affect your ability to be fair and impartial." In contrast, prospective
                 juror 36 was asked 18 questions about her answer, 3 by the defense and 15
                 by the State. Sometime after this questioning, the State entered both
                 jurors' names into the SCOPE database as part of its independent
                 investigation. Neither background check turned up information about the
                 prospective jurors' family members. The African-American juror was
                 struck, and the Caucasian juror remained on the empaneled jury. We are
                 not persuaded that the State was seriously concerned about whether a
                 juror's family member had been prosecuted by the State and whether they
                 had been convicted of a violent crime, when it asked the Caucasian
                 prospective juror a single leading question about her father. Disparate
                 questioning by prosecutors of struck veniremembers and those
                 veniremembers of another race or ethnicity is evidence of purposeful
                 discrimination.




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                                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 prospective juror 36. Because this error
                   is structural, Diomampo v. State, 124 Nev. 414, 423, 185 P.3d 1031, 1037
                   (2008), we reverse the judgment of conviction and remand this matter to
                   the district court for proceedings consistent with this opinion.




                                                                Cherry


                   We concur:




                                                , J.
                   Saitta




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                DOUGLAS, J., concurring:
                            I agree with the majority's conclusion that McCarty's Sixth
                Amendment right to counsel attached at his initial appearance before the
                magistrate and that he waived his right to counsel under the
                circumstances presented here. Further, I agree with the majority's
                decision to reverse the judgment of conviction and remand for a new trial
                based on Batson error. I write separately to highlight my concern over the
                district court's handling of McCarty's Batson objection.
                            Although the three-step Batson analysis is firmly rooted in our
                jurisprudence, we continue to see that analysis not being followed.
                McCarty challenged the State's peremptory strike against juror 36 as
                discriminatory and the State proffered race-neutral reasons to support the
                strike. However, the district court ignored step three of the analysis,
                which required it to "undertake 'a sensitive inquiry into such
                circumstantial and direct evidence of intent as may be available" to
                determine whether McCarty met his burden of proving discriminatory
                intent.   Batson v. Kentucky, 476 U.S. 79, 93 (1986) (quoting Arlington
                Heights v. Metro. Hous. Dev. Corp.,       429 U.S. 252, 266 (1977)); see
                Hernandez v. New York,     500 U.S. 362, 363 (1991); Conner v. State, 130
                Nev., Adv. Op. 49, 327 P.3d 503, 509 (2014). That sensitive inquiry
                necessarily includes factual findings regarding discriminatory intent, see
                Hernandez, 500 U.S. at 364 (observing that the trial court's decision on the
                ultimate question of discriminatory intent represents a factual finding),
                and credibility determinations, not only concerning the prosecutor but the
                juror who is the subject of the Batson challenge, see Snyder v. Louisiana,
                552 U.S. 472, 477 (2008) ("[T]he trial court must evaluate not only
                whether the prosecutor's demeanor belies a discriminatory intent, but also

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                the juror's demeanor can credibly be said to have exhibited the basis for
                the strike attributed to the juror by the prosecutor."). The district court
                plays a crucial role in evaluating a Batson claim, as we rely on those
                determinations to effectively review whether there has been purposeful
                discrimination. See Kaczmarek v. State, 120 Nev. 314, 334, 91 P.3d 16, 30
                (2004) ("An 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"); see also Snyder, 552 U.S. at 477
                (acknowledging the trial court's "pivotal role in evaluating              Batson
                claims"); Hernandez, 500 U.S. at 365 (observing that the trial court's
                findings concerning discriminatory intent "largely will turn on evaluation
                of credibility" and therefore those findings are accorded great deference on
                appeal (quoting Batson, 476 U.S. at 98 n.21)).
                             Here, the district court articulated no factual or credibility
                findings regarding the State's proffered race-neutral reasons for striking
                juror 36. The record only reflects a lengthy discussion of the SCOPE
                searches and the prosecutor's use of the SCOPE database, not a discussion
                or analysis of any race-neutral reason for striking this juror. We therefore
                cannot make those determinations. That duty fell exclusively on the
                district court. Nor did the district court satisfy its obligation to determine
                whether McCarty had met his burden of showing purposeful
                discrimination. Consequently, the district court has left us in the dark. I
                acknowledge, as the majority does, that the pretext argument was not well
                developed in the district court. Nevertheless, this case aptly illustrates
                why it is crucial that the district court undertake a thoughtful and proper
                analysis, not only to adequately assess the merits of a Batson challenge at
                the trial level, but to allow this court to effectively evaluate a challenge on

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                appeal. A deficient Batson analysis is particularly troubling in capital
                prosecutions. When a defendant faces the ultimate punishment—a
                sentence of death—it is imperative to follow the letter of the law.         See
                Lockett v. Ohio, 438 U.S. 586, 604 (1978) ("We are satisfied that [the]
                qualitative difference between death and other penalties calls for a greater
                degree of reliability when the death sentence is imposed."); Furman v.
                Georgia, 408 U.S. 238, 306 (1972) (Stewart, J., concurring) ("The penalty
                of death differs from all other forms of criminal punishment, not in degree
                but in kind. It is unique in its total irrevocability."). The letter of the law
                was not followed here. Therefore, I would reverse the judgment of
                conviction based on the district court's failure to adhere to analysis
                mandated under Batson.


                                                                      tLa 0Q`3              ,J.
                                                              Douglas




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                PICKERING, J., with whom HARDESTY and GIBBONS, JJ., agree,
                concurring in part and dissenting in part:

                            The majority reverses McCarty's judgment of conviction based
                on its finding that the State engaged in purposeful racial discrimination,
                forbidden under Batson v. Kentucky, 476 U.S. 79 (1986), when it exercised
                a peremptory challenge against prospective juror 36, a 28-year-old,
                married, African-American woman. I cannot reconcile this finding with
                the record of proceedings in the district court, or controlling law. With the
                exception of part I of the opinion, in which I join, I therefore respectfully
                dissent.
                            Batson holds that the Equal Protection Clause of the
                Fourteenth Amendment forbids prosecutors from exercising peremptory
                challenges against prospective jurors based on their race.           Id. at 89.
                Unlike for-cause challenges, which test a juror's objective impartiality,
                peremptory challenges "are often the subjects of instinct," Miller-El v.
                Dretke, 545 U.S. 231, 252 (2005) (citing Batson, 476 U.S. at 106 (Marshall,
                J., concurring)), "based on subtle impressions and intangible factors,"
                Davis v. Ayala, 576 U.S. „ 135 S. Ct. 2187, 2208 (2015), that are
                "inherently subjective."     Miller-El, 545 U.S. at 266-67 (Breyer, J.,
                concurring); see also Hernandez v. New York, 500 U.S. 352, 374 (1991)
                (O'Connor, J., concurring) (plurality opinion) ("Absent intentional
                discrimination violative of the Equal Protection Clause, parties should be
                free to exercise their peremptory strikes for any reason, or no reason at
                all. The peremptory challenge is, 'as Blackstone says, an arbitrary and
                capricious right; and it must be exercised with full freedom, or it fails of its
                full purpose." (quoting Lewis v. United States, 146 U.S. 370, 378 (1892))).


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                 A case can be made for eliminating peremptory challenges altogether in
                 criminal cases, Batson, 476 U.S. at 102-03 (Marshall, J., concurring)
                 (stating that the only way to "end the racial discrimination that
                 peremptories inject into the jury-selection process [is to] eliminat[e]
                 peremptory challenges entirely"); Miller-El, 545 U.S. at 266-67 (Breyer, J.,
                 concurring) (to similar effect), but this has not occurred Instead, case law
                 leaves it to the district courts to ferret out discrimination in the exercise of
                 peremptory challenges, a process that "places great responsibility in the
                 hands of the trial judge, who is in the best position to determine whether a
                 peremptory challenge is based on an impermissible factor."          Davis, 576
                 U.S. at 135 S. Ct. at 2208.
                             A Batson objection triggers a three-step analysis in the district
                 court: "[(1)] a defendant must make a prima facie showing that a
                 peremptory challenge has been exercised on the basis of race; [(2)] the
                 prosecution must offer a race-neutral basis for striking the juror in
                 question; and [(3)] the trial court must determine whether the defendant
                 has shown purposeful discrimination." Snyder v. Louisiana, 552 U.S. 472,
                 476-77 (2008) (internal quotation marks and alterations omitted); accord
                 Hawkins v. State, 127 Nev. 575, 578, 256 P.3d 965, 967 (2011). Steps two
                 and three require the district judge to "evaluate both the words and the
                 demeanor of jurors who are peremptorily challenged, as well as the
                 credibility of the prosecutor who exercised those strikes."    Davis, 576 U.S.
                 at 135 S. Ct. at 2201. Such "'determinations of credibility and
                 demeanor lie peculiarly within a trial judge's province," and "in the
                 absence of exceptional circumstances, [a reviewing court will] defer to the
                 trial court." Id. (quoting Snyder, 552 U.S. at 477); see Rice v. Collins, 546
                 U.S. 333, 343 (2006) (Breyer, J., concurring) ("Appellate judges cannot on

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                 the basis of a cold record easily second-guess a trial judge's decision about
                 likely motivation."); Watson v. State, 130 Nev., Adv. Op. 76, 335 P.3d 157,
                 165-66 (2014) ("This court affords great deference to the district court's
                 factual findings regarding whether the proponent of a strike has acted
                 with discriminatory intent, Diomampo v. State, 124 Nev. 414, 422-23, 185
                 P.3d 1031, 1036-37 (2008), and we will not reverse the district court's
                 decision 'unless clearly erroneous." (quoting Kaczmarek v. State, 120 Nev.
                 314, 334, 91 P.3d 16, 30 (2004))).
                              The majority acknowledges these rules but then does not
                 follow them. Reversing the district court, it deems the race-neutral
                 reasons the State gave for striking juror 36 pretextual and suggests that
                 the district court gave the defense unfairly short shrift in adjudicating its
                 Batson challenge. This holding attributes to the defense a claim of pretext
                 it did not make and, I respectfully submit, misapprehends the record and
                 how it evolved in district court.
                              Juror 36 divulged in her answers to the written jury
                 questionnaire that her brother had been prosecuted by the Clark County
                 District Attorney's Office—the same office prosecuting McCarty—and did
                 time in prison as a result. She did not know the details, though the
                 defense and the State both pressed her about them. At one point during
                 the defense's questioning of her, for reasons not entirely clear, juror 36
                 started to cry. Neither side questioned her further, and both sides passed
                 her for cause.
                              In preparing for its peremptory challenges, the State
                 conducted a Shared Computer Operations for Protection and Enforcement
                 or SCOPE search on juror 36 to try to find her maiden name and thereby
                 identify her brother and the crime he was convicted of. Although the State

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                                                           Erna
                 learned juror 36's maiden name, the name was too common for the State
                 to identify her brother or his crime. But the State's research turned up a
                 work card authorizing juror 36 to work at a Las Vegas strip club called
                 "Sin." Though juror 36 had obtained the work card three years earlier,
                 and was attending college, the card was current and would not expire for
                 two more years. The State struck juror 36 and, when challenged by the
                 defense, relied on the facts just summarized.
                             The majority suggests that the defense challenged the State's
                 strip-club explanation as pretextual and that, when challenged, the State
                 scrambled to come up with another reason for excusing juror 36: her
                 brother's criminal history. This is not accurate. The defendant was
                 charged with murdering two women he had been pandering as prostitutes
                 and using to help him deal drugs. Given these alleged facts, not wanting a
                 woman who worked or had recently worked at a strip club on the jury
                 provided a facially race-neutral reason for the peremptory challenge.   See
                 Felkner v. Jackson, 562 U.S. 594, 595 (2011) (the trial court did not act
                 unreasonably in deeming the prosecutor's explanation about not "lik[ing]
                 to keep social workers" on a jury to be "race-neutral"); Hawkins, 127 Nev.
                 at 579, 256 P.3d at 967 (holding to similar effect as to peremptory
                 challenge of a college professor). Indeed, the defense did not argue
                 otherwise in district court and, at two points in the argument, came very
                 close to conceding that, in this particular case, striking a woman with a
                 work card for a Las Vegas strip club from the jury was understandable.
                 The brother's unexplained criminal history factored into the discussion as
                 the reason for conducting the SCOPE search on juror 36 (and juror 76, see




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                 below) and in that light is likewise understandable, not, as the majority
                 suggests, a flimsy fallback.'




                       "The transcript is consistent with the account in the text. When
                 challenged to provide a race-neutral reason for striking juror 36, the State
                 gave the following account of its reasons:

                             In our questionnaire, she indicated that her
                             brother had been convicted by a—of a felony by
                             our office. When I questioned her about it, you
                             know, it was, [w]ell, he had picked up warrants,
                             but I'm really not sure what for. She indicated
                             that—I asked her if it was about a crime that
                             [inaudible] which [inaudible] jurors on here with
                             anybody [inaudible] for the prosecutor of the
                             crime. She couldn't answer that question.
                                   Afterwards, [defense counsel] was asking
                             her questions and apparently she had an answer
                             to a question on the last section related to
                             something [inaudible]—her feelings concerning
                             the issue that—that's relevant there, and she did
                             not put it on the questionnaire but indicated to
                             [defense counsel] that something happened to her
                             and she didn't want to tell him about it, and he
                             didn't press her any further.
                                    Based on that, you know, I really want to
                             know what her brother did, so I did a little
                             research into her background, found out—I could
                             not identify who her brother was, but during the
                             course of researching her background, I found that
                             that she has a current valid hard work card for a
                             strip club, Judge. And so with all due respect, it
                             was nothing to do with the race, but the State of
                             Nevada's not going to leave somebody who works
                             at a strip club on their panel. So. . . .


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                             The State revealed that it had run a SCOPE search on juror
                 36 in explaining its reasons for striking her. This prompted the defense to
                 object to its lack of access to SCOPE and similar law enforcement
                 databases. When the defense suggested that the State may have run a
                 SCOPE search on juror 36 in the hopes of unearthing a plausible race-
                 neutral reason for excusing her, the district court did not, as Justice
                 Douglas's concurrence argues, fail to examine and resolve the purposeful
                 discrimination claim. On the contrary, the district judge directly
                 questioned the two prosecutors representing the State about the SCOPE
                 searches they or anyone working for them had run. The State's lawyers
                 represented to the court that they ran the searches on two jurors, juror 36
                 and one other, juror 76, a Caucasian woman whose questionnaire answers
                 resembled those of juror 36. (Juror 76's father did time in prison, but she
                 could not say for what; she, too, was married, and the State searched
                 SCOPE for her maiden name; unlike juror 36, the search did not turn up
                 anything.) The prosecutors further confirmed that they did not run
                 SCOPE searches on any other members of the venire, including,
                 specifically, the three other African Americans remaining after the jury
                 was passed for cause. The district court then stated, on the record, that it
                 was "accepting Counsel at his word that the two people he looked up were
                 [jurors 36 and 761," and, after entertaining additional argument, denied
                 the defense's motion to strike the jury panel. The district court heard,
                 considered, and resolved the purposeful discrimination claim the defense
                 made; it was not obligated to do more. Compare Conner v. State, 130 Nev.,
                 Adv. Op. 49, 327 P.3d 503, 509 (2014), cert. denied, U.S. , 135 S. Ct.
                 2351 (2015) ("[T]he defendant bears a heavy burden in demonstrating
                 that the State's facially race-neutral explanation is pretext for

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                discrimination."), with Hawkins, 127 Nev. at 579, 256 P.3d at 967 ("Batson
                does not impose 'an independent duty on the trial court to pore over the
                record and compare the characteristics of jurors, searching for evidence of
                pretext, absent any pretext argument or evidence presented by counsel.'
                (quoting Johnson v. Gibson, 169 F.3d 1239, 1248 (10th Cir. 1999))).
                            The real focus of the defense's argument in the district court
                was on the inequity in the State having access to the SCOPE database
                when the defense did not. The voir dire and the appellate briefing in this
                case predated our decision in Artiga-Morales v. State, 130 Nev., Adv. Op.
                77, 335 P.3d 179 (2014) (4-3), in which a divided en bane court rejected a
                challenge to the State's use of criminal databases such as SCOPE in
                preparing for voir dire. And here, the defense did not file the written
                pretrial motion that the defense did in Artiga-Morales, asking the district
                court to compel the State to produce SCOPE search results on the venire—
                a deficiency that led the district court in this case to state that the defense
                "almost in effect waived" the argument by not filing a written motion.
                Nonetheless, the district court granted the defense's oral motion to compel
                the State to share with the defense the results of the two SCOPE searches
                it ran on jurors 36 and 76. After the prosecutors again confirmed that
                these were the only SCOPE searches they or anyone acting for them ran
                on the venire, the defense then made a record that for the State to
                challenge jurors with incarcerated family members unfairly prejudices
                people of color, which argument is reiterated on appeal. The district court
                rejected the defense's Batson challenge, and the jury was sworn. Although
                the majority suggests otherwise, the district court did not cut the defense
                argument off on any of these issues. On the contrary, the transcript of
                proceedings on the defense's Batson challenge runs almost 50 pages, with

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                    the district court excusing the jury and breaking early for lunch so the
                    lawyers could undertake research over the noon hour, then reconvening
                    outside the presence of the jury to argue the matter.
                                The opening and answering briefs on appeal recite the Batson
                    standards but do little or no analysis of how they should apply to this
                    record. It is only in the reply brief that the defense actually hints at the
                    argument that striking juror 36 based on her strip club work card was
                    pretextual, an argument the majority credits but the defense did not make
                    in their opening brief or in district court. This is too little, too late. The
                    burden is on the opponent of the strike to traverse the race-neutral
                    reason(s) and demonstrate pretext.     E.g., Kazmarek, 120 Nev. at 333, 91
                    P.3d at 29 ("Unless a discriminatory intent is inherent in the prosecutor's
                    explanation, the reason offered will be deemed race neutral."); Hawkins,
                    127 Nev. at 579, 256 P.3d at 967 (rejecting Batson challenge where, as
                    here, the defense did not make in district court the pretext argument
                    advanced on appeal).
                                 The district court handled the Batson challenge with care. It
                    allowed the lawyers to make a record outside the presence of the jury and
                    gave them time to undertake research on the issues they raised. The
                    district judge witnessed juror 36's demeanor and that of the prosecutors
                    who exercised a peremptory strike against her. He found no purposeful
                    discrimination by the State's attorneys. On this record, that factual
                    finding was not "clearly erroneous" and does not properly serve as a basis




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                  to vacate the judgment on the jury's verdict and require a new trial in this
                  case.
                               I dissent.




                  We concur:


                                                 J.
                  Hardest



                  Gibbons




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