353 P.3d 1197 (Nev. 2015), 64135, Barral v. State

Docket Nº:64135
Citation:353 P.3d 1197
Opinion Judge:CHERRY, J.:
Party Name:DUSTIN JAMES BARRAL, Appellant, v. THE STATE OF NEVADA, Respondent
Attorney:Las Vegas Defense Group, LLC, and Michael L. Becker and Michael V. Castillo, Las Vegas, for Appellant. Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Michelle Y. Jobe, Deputy District Attorney, Clark Coun...
Judge Panel:BEFORE PARRAGUIRRE, DOUGLAS and CHERRY, JJ. We concur: Parraguirre, J., Douglas, J.
Case Date:July 23, 2015
Court:Supreme Court of Nevada
 
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Page 1197

353 P.3d 1197 (Nev. 2015)

DUSTIN JAMES BARRAL, Appellant,

v.

THE STATE OF NEVADA, Respondent

No. 64135

Supreme Court of Nevada

July 23, 2015

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

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

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

BEFORE PARRAGUIRRE, DOUGLAS and CHERRY, JJ.

OPINION

CHERRY, J.:

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

FACTS AND PROCEDURAL HISTORY

Dustin Barral was charged with sexually assaulting a child. His case proceeded to a jury trial. At the beginning of voir dire, both the prosecution and defense explained to the potential jurors the importance of answering their questions honestly. After questioning the first potential juror, the following bench conference took place:

MR. BECKER [for Barral]: My recollection may not be correct, but I think it's possible that the panel was not sworn in.

THE COURT: They aren't. MR. BECKER: Okay. THE COURT: I don't swear them in until the end. MR. BECKER: Okay. In other words, admonish [the jury] that they are to give truthful answers to all the questions-- MS. FLECK [for the State]: Yeah[.] MR. CASTILLO [for Barral]: That's fine. . . . . THE COURT: --I won't swear them in. MR. BECKER: Okay. THE COURT: Because the ones who are sworn in; that's the panel. MR. BECKER: Right. . . . . Page 1198

MS. FLECK: But do we have to give them the oath that they have to tell the truth[?]

THE COURT: No. MS. FLECK: Or. no? THE COURT: No. MS. FLECK: Okay. THE COURT: No. MS. FLECK: Okay.

The court then proceeded with voir dire. The district court clerk swore in the petit jury at the beginning of the second day of trial. After both parties rested and presented closing arguments, the jury deliberated for approximately three hours and returned guilty verdicts on both charges. Following a post-trial motion for acquittal that the court denied, Barral appealed.

DISCUSSION

Barral claims that the district court committed structural error requiring reversal when it failed to comply with NRS 16.030(5)1 and administer the oath to the jury venire before voir dire. He argues that the court's error compromised his right to trial by an impartial jury because potential jurors may not have felt obligated to respond truthfully during voir dire, as the court did not place them under oath. The State contends that the potential jurors understood that they were required to answer truthfully because the court and counsel for both sides repeatedly stressed to the venire the importance of answering their questions honestly. The State also argues that...

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