Chaparro v. State

• Decision Date: 10 November 2021
• Docket Number: No. 81352,81352
• Citation: 497 P.3d 1187
• Parties: Osbaldo CHAPARRO, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

497 P.3d 1187

Osbaldo CHAPARRO, Appellant,

v.The STATE of Nevada, Respondent.

No. 81352

Supreme Court of Nevada.

FILED NOVEMBER 10, 2021

John L. Arrascada, Public Defender, and Kathryn Reynolds, Deputy Public Defender, Washoe County, for Appellant.

Aaron D. Ford, Attorney General, Carson City; Christopher J. Hicks, District Attorney, and Jennifer P. Noble, Chief Appellate Deputy District Attorney, Washoe County, for Respondent.

BEFORE THE SUPREME COURT, EN BANC.

OPINION

By the Court, STIGLICH, J.:

It is well settled that a defendant has the right to be present at all critical stages of a criminal proceeding, including the sentencing hearing. In this opinion, we consider whether the defendant's right to be present was violated when the sentencing hearing was conducted by simultaneous audiovisual transmission over the Zoom videoconferencing platform due to administrative orders issued by the district court forbidding in-person hearings because of the COVID-19 pandemic. Appellant Osbaldo Chaparro was convicted after a jury trial in February 2020. His sentencing hearing took place in May 2020. All contemporary readers of this opinion will instantly understand the import of those dates: the onset of the COVID-19 pandemic in March 2020 impacted nearly every area of life. The criminal justice system was no exception. While his trial occurred in person and in court, Chaparro was sentenced in a hearing conducted over Zoom. Because we conclude that Chaparro's sentencing hearing was fair and just considering the surrounding circumstances, he is not entitled to relief on this claim.

We also consider several challenges related to Chaparro's trial. We conclude that the district court properly admitted evidence of Chaparro's previous conviction for battery with intent to commit sexual assault. We further conclude that the district court did not err in limiting inquiry into Chaparro's prior conviction that the court had determined would be admitted as evidence, as a party may not pre-try its case with the jury during voir dire. Nevertheless, we direct that district courts should not categorically limit questions about jurors’ views concerning whether a defendant has prior convictions. And we recognize that inconclusive DNA evidence may be relevant and admissible where permitted by the rules of evidence, as here. Accordingly, we affirm.

BACKGROUND

In December 2016, L.L. and a friend stayed at a hotel in downtown Reno. In the early morning hours of December 17, L.L. was walking alone towards the Harrah's casino when Chaparro grabbed her. Chaparro groped L.L.’s buttocks and breasts, reached under her dress and inside her tights, and digitally penetrated her. L.L. struggled and yelled that she would call 9-1-1. Chaparro responded, "[W]ho are they going to believe, me or you?" When L.L.’s friend approached, Chaparro hurried off. L.L. reported the assault and underwent a sexual assault exam that same morning. Harrah's security system captured the incident along with footage.

The State charged Chaparro with sexual assault, battery with the intent to commit sexual assault upon a victim age 16 or older, and open or gross lewdness. Before trial, the State moved to admit evidence of Chaparro's 2011 conviction for battery with the intent to commit sexual assault. In that instance, Chaparro groped and accosted P.J. in the parking lot of the Nugget Casino Resort. Chaparro opposed the motion, arguing the evidence was unfairly prejudicial, but the district court granted the State's motion and allowed P.J. to testify at trial. At trial, Chaparro did not dispute that he was in the security footage or that he had committed open or gross lewdness. Rather, Chaparro argued that he neither penetrated L.L. nor intended to do so and was therefore innocent of sexual assault and battery with the intent to commit sexual assault upon a victim age 16 or older.

The jury convicted Chaparro of all charges on February 14, 2020. In March 2020, the COVID-19 crisis prompted courts across the country to consider alternatives to in-person hearings. The Second Judicial District Court originally hoped to proceed with in-person appearances for "essential case types and hearings," including criminal sentencings. See In re Second Judicial District Court's Response to Coronavirus Disease (COVID-19), Administrative Order 2020-2 (Mar. 16, 2020).¹ But it soon ordered all hearings to "be conducted by alternative means to in-person hearings." See In re Second Judicial District Court's Response to Coronavirus Disease (COVID-19) , Administrative Order 2020-02(A) (Apr. 9, 2020). Chaparro's sentencing hearing was held on May 20, 2020, over Zoom. Chaparro joined the hearing from a jail courtroom and was able to communicate confidentially with counsel via a headset, as well as see and hear the other participants. The other participants could likewise see and hear Chaparro. Members of the public who chose to watch, including Chaparro's friends and family, could also see and hear Chaparro, the attorneys, and the judge, but they could not themselves be seen or heard by Chaparro. Chaparro objected to the use of Zoom instead of an in-person hearing, stating that he would like to be able to see his supporters, but the district court overruled the objection and proceeded with the hearing. The district court sentenced Chaparro to an aggregate sentence of life with parole eligibility after 12 years. This appeal follows.

DISCUSSION

Chaparro's due process challenge to the sentencing hearing over Zoom

We begin at the end, with Chaparro's sentencing hearing. Chaparro argues that the district court's decision that the hearing proceed over Zoom violated his due process right to be present.² Chaparro argued he did not think it was "fair ... that I have to do something by video and audio/visual because of a pandemic. That's not my fault. ... [T]his isn't what, you know, it should be like." The district court overruled Chaparro's objection, stating—

I intend to proceed to sentencing today, because I cannot predict with any reasonable certainty when in the future we can conduct an in-person sentencing.

And, in fact, it is more valuable to have resolution in your case for purposes of vesting jurisdiction for purposes of an appeal that I know you want to take, for example, for finality for the victims in this case and for a variety of reasons. It makes no sense to continue this to a date uncertain in the future, which we cannot predict....

[U]nder the circumstances, it is the best option available.

"A criminal defendant has the right under the Confrontation Clause of the Sixth Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendments to be present at every stage of the trial." Collins v. State, 133 Nev. 717, 719, 405 P.3d 657, 661 (2017) ; see also United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) ; Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) ; NRS 178.388(1). A sentencing hearing is a critical stage of the proceedings, see Cunningham v. State, 94 Nev. 128, 130, 575 P.2d 936, 938 (1978), and thus a defendant has the right to be present for sentencing. The right to be present is not absolute, however. Gallego v. State, 117 Nev. 348, 367, 23 P.3d 227, 240 (2001), abrogated on other grounds by Nunnery v . State, 127 Nev. 749, 263 P.3d 235 (2011). "[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Gagnon , 470 U.S. at 526, 105 S.Ct. 1482 (alteration in original) (quotation marks omitted); see also Kirksey v . State, 112 Nev. 980, 1000, 923 P.2d 1102, 1115 (1996) ("The due process aspect has been recognized only to the extent that a fair and just hearing would be thwarted by the defendant's absence.").

We thus consider whether Chaparro's hearing was fair and just despite its unorthodoxy and conclude that the sentencing hearing was appropriate considering the circumstances. Chaparro was able to be heard, to be seen, to confidentially communicate with counsel, and to speak on the record. Cf. People v. Lindsey, 201 Ill.2d 45, 265 Ill.Dec. 616, 772 N.E.2d 1268, 1276-79 (2002) (holding the due process right to be present was not violated where defendant participated in critical stages of arraignment and jury waiver by audiovisual transmission and "was able to interact with the court with relative ease," and noting similar holdings by other state supreme courts). Faced with an administrative order prohibiting in-person hearings, the district court balanced Chaparro's right to be sentenced without unreasonable delay, cf. NRS 176.015(1), his desire to appeal the conviction, and the risk of furthering the spread of a contagious disease with his right to be present at the hearing and the prospect of an indefinite delay. See Bonilla v. State , 71 Misc.3d 235, 141 N.Y.S.3d 289, 291 (Ct. CL. 2021) (recognizing the Hobson's choice foisted on courts by the pandemic between exposing the public to a dangerous disease and delaying court proceedings and praising virtual proceedings as a safe way to provide access to courts during the crisis). Chaparro does not allege that he was prevented from presenting argument or evidence on his behalf because of the way in which the hearing was conducted. We note that the fairness and justness of a given proceeding cannot be divorced from the circumstances in which the proceeding takes place, and acknowledge the realities of this moment in assessing the district court's decision to conduct the sentencing hearing over Zoom. See Snyder v. Massachusetts , 291 U.S. 97, 116, 54 S.Ct. 330, 78 L.Ed. 674 (1934) ("Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute, concept. It is fairness with reference to particular conditions or particular results."). Given the limited possibilities created by unprecedented emergency circumstances, we conclude that a...