Saletta v. State

• Decision Date: 07 July 2011
• Docket Number: No. 52428.,52428.
• Citation: 127 Nev. Adv. Op. 34,254 P.3d 111
• Parties: David SALETTA, Appellant,v.The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

254 P.3d 111

127 Nev. Adv. Op. 34

David SALETTA, Appellant,

v.The STATE of Nevada, Respondent.

No. 52428.

Supreme Court of Nevada.

July 7, 2011.

Diane R. Crow, State Public Defender, and Kerry Zachariasen Malone, Deputy State Public Defender, Carson City, for Appellant.Catherine Cortez Mastro, Attorney General, Carson City; Daniel M. Hooge, District Attorney, Lincoln County, for Respondent.Before SAITTA, HARDESTY and PARRAGUIRRE, JJ.

OPINION

By the Court, PARRAGUIRRE, J.:

In this appeal, we consider whether the district court, in conducting a jury poll after a jury has published its verdict, may continue to poll the jury after a juror has retreated from the published verdict and whether the district court may question a dissenting juror regarding his or her reasons for retreating from the verdict. We hold that NRS 175.531 allows the district court some discretion in its polling method, the district court's polling method is reviewed for an abuse of discretion, and it will constitute reversible error if the totality of the circumstances indicate that the polling method was coercive. To this end, we adopt the three factors that the Second Circuit Court of Appeals identified in U.S. v. Gambino, 951 F.2d 498, 501–02 (2d Cir.1991), for evaluating the coerciveness of a polling method: (1) whether counsel objected to the polling, (2) whether the district court gave a cautionary instruction to the jury before excusing the jury for further deliberation, and (3) the amount of time that it took the jury to reach a verdict after deliberation resumed. We further hold that NRS 175.531 limits the district court's options for addressing a non-unanimous jury poll and prohibits the district court from questioning jurors regarding their reasons for retreating from the verdict. We conclude that although the district court's polling method was not coercive and the district court did not abuse its discretion by continuing to poll the jury after a juror retreated from the verdict, the district court erred by questioning the dissenting juror, the error was plain, and it affected appellant David Saletta's substantial rights. Accordingly, we reverse the judgment of conviction and remand for further proceedings.¹

FACTS

Saletta was charged with indecent or obscene exposure. The State presented testimony that Saletta exposed his penis to a convenience store clerk while standing in a parking lot, and Saletta presented testimony that he was urinating and did not intentionally expose himself. Following a very short deliberation, the jury returned a guilty verdict.

After the verdict was published and in response to Saletta's request for a jury poll, the district court polled the jury. The first six jurors affirmed the verdict, but the seventh juror dissented from the verdict. The district court continued its poll, and the remaining jurors affirmed the verdict. Confronted with a non-unanimous jury poll, the district court excused all but the seventh juror and ordered an evidentiary hearing. The seventh juror was sworn in and examined by the State, Saletta, and the district court. The juror was asked why she was having “second thoughts,” whether she had enough time to deliberate, if she was coerced, when she changed her vote, and whether further deliberation would change her mind. The State moved to disqualify the seventh juror and use an alternate juror, and Saletta moved for a mistrial based on the seventh juror's testimony. During a recess, the district court became aware of Nevada's jury polling statute, NRS 175.531, determined that further deliberation was appropriate, and denied both motions. The jury received additional instructions, was ordered to resume deliberation, and again returned a guilty verdict. A subsequent jury poll revealed that the verdict was unanimous.

The district court sentenced Saletta to serve six months in the county jail and ordered him to register as a sex offender pursuant to NRS Chapter 179D.

DISCUSSION

The primary issues raised in this appeal are whether the district court erred by continuing to poll the jury after the seventh juror disagreed with the verdict and questioning the seventh juror about her reasons for changing her mind.

Continuing the poll

Relying on United States v. Spitz, 696 F.2d 916 (11th Cir.1983), Saletta contends that the district court should have stopped the jury poll as soon as the lack of unanimity was revealed and its failure to do so was per se reversible error. We disagree.

In Nevada, jury polling is governed by NRS 175.531. The statute authorizes the trial court to poll the jury and provides that if the poll does not show unanimous concurrence in the verdict, the court may direct the jury to continue its deliberation or discharge the jury. We have not previously addressed the issue of whether a district court must stop polling once a juror has dissented from the verdict. However, several federal circuit courts of appeal have addressed this issue in the context of Federal Rule of Criminal Procedure 31(d), and, because NRS 175.531 is substantially similar to Rule 31(d), ² we look to these courts for guidance. Of the six circuit courts that have considered the issue of whether continuing to poll the jury after a juror has dissented constitutes per se reversible error, one has concluded that it does, Spitz, 696 F.2d at 917–18, and five have concluded that it does not, Lyell v. Renico, 470 F.3d 1177, 1182–85 (6th Cir.2006); Gambino, 951 F.2d at 502; U.S. v. Fiorilla, 850 F.2d 172, 174 (3d Cir.1988); Amos v. United States, 496 F.2d 1269, 1272–73 (8th Cir.1974); United States v. Brooks, 420 F.2d 1350, 1354 (D.C.Cir.1969).

In Spitz, the Eleventh Circuit determined that continuing to poll a jury after a juror dissented from the verdict had the effect of establishing where the jury stands numerically and held that continuing the poll is per se reversible error. 696 F.2d at 917. The court relied on Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926), wherein the Supreme Court addressed a trial court's decision to recall a jury from deliberation to inquire about its numerical division, id. at 449, 47 S.Ct. 135, and held that such an inquiry constitutes per se reversible error because it serves no useful purpose, has a tendency to be coercive, and can rarely be conducted without imposing an improper influence upon the jury, id. at 450, 47 S.Ct. 135.

The Second Circuit has rejected Spitz's conclusion that Brasfield requires reversal when a judge continues to poll the jury after a juror has dissented from the verdict. Gambino, 951 F.2d at 502. The Second Circuit noted that other circuit courts had interpreted Rule 31(d) as leaving the jury polling method to the discretion of the trial court, determined that proper deference should be given to the trial court's exercise of that discretion, and suggested factors to consider when assessing whether a polling method is coercive. Id. at 501–02. The Second Circuit specifically identified three factors that should be considered when assessing whether a polling method is coercive: (1) whether counsel objected to the polling, (2) whether the district court gave a cautionary instruction to the jury before excusing the jury for further deliberation, and (3) the amount of time that it took the jury to reach a verdict after deliberation resumed. Id. Other courts considering this issue have also distinguished Brasfield and held that the trial court has discretion to continue polling so long as its polling method is not coercive. Lyell, 470 F.3d at 1182–85; Fiorilla, 850 F.2d at 174–77; Amos, 496 F.2d at 1272–73; Brooks, 420 F.2d at 1353–54.

We are persuaded by the Second Circuit's analysis that the district court has discretion to continue polling the jury after a juror has dissented from the verdict so long as the polling method is not coercive. Like Rule 31(d), NRS 175.531 gives the district court the discretion to discharge a non-unanimous jury or direct the jury to continue deliberating. To give effect to this discretion, NRS 175.531 must be interpreted to leave “the method of conducting the jury poll to the judge's discretion.” Gambino, 951 F.2d at 501. Accordingly, we reject Spitz's per se rule as too rigid and inflexible, and we adopt the rule that the district court's method for polling a jury shall be reviewed for an abuse of discretion and will constitute reversible error only if the totality of the circumstances demonstrates that the polling method was coercive.³ We further adopt the Gambino factors for assessing the coerciveness of a polling method.

Here, Saletta did not object when the district court continued to poll the jury. Failure to object generally precludes appellate review. Rippo v. State, 113 Nev. 1239, 1259, 946 P.2d 1017, 1030 (1997). However, we have the discretion to review an unpreserved error “if it [is] plain and affected the defendant's substantial rights.” Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001); see NRS 178.602. “In conducting plain error review, we must examine whether there was error, whether the error was plain or clear, and whether the error affected the defendant's substantial rights.” Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003) (internal quotation marks omitted). “An error is plain if the error is so unmistakable that it reveals itself by a casual inspection of the record.” Patterson v. State, 111 Nev. 1525, 1530, 907 P.2d 984, 987 (1995) (internal quotation marks omitted). “[A]t a minimum,” the error must be “clear under current law,” Gaxiola v. State, 121 Nev. 638, 648, 119 P.3d 1225, 1232 (2005) (internal quotation marks omitted), and, “[n]ormally, the defendant must show that an error was prejudicial in order to establish that it affected substantial rights,” Gallego, 117 Nev. at 365, 23 P.3d at 239.

Applying the Gambino factors, we conclude that the continued polling of the jury in this instance was not coercive. Saletta's failure to object...