Sayedzada v. State

• Decision Date: 24 May 2018
• Docket Number: No. 71731,71731
• Citation: 419 P.3d 184
• Parties: Sayedbashe SAYEDZADA, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Court of Appeals

419 P.3d 184

Sayedbashe SAYEDZADA, Appellant,

v.The STATE of Nevada, Respondent.

No. 71731

Court of Appeals of Nevada.

FILED MAY 24, 2018

Philip J. Kohn, Public Defender, and Tyler C. Gaston and Deborah L. Westbrook, Deputy Public Defenders, Clark County, for Appellant.

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, John Thomas Jones, Chief Deputy District Attorney, and Charles W. Thoman, Deputy District Attorney, Clark County, for Respondent.

BEFORE SILVER, C.J., TAO and GIBBONS, JJ.

OPINION

By the Court, SILVER, C.J.:

Sayedbashe Sayedzada was arrested after a security guard discovered Sayedzada hiding a woman’s purse under his shirt; police later determined the purse had been stolen. The State charged Sayedzada with possession of a credit or debit card without the cardholder’s consent. The case went to trial, and during voir dire, Sayedzada challenged several prospective jurors for cause. The district court allowed a traverse of those jurors before making its ruling. Sayedzada thereafter renewed his for-cause challenge as to two of the prospective jurors. The district court denied Sayedzada’s challenges for cause, and Sayedzada used two peremptory challenges to exclude those two jurors from the jury panel. Sayedzada did not renew his challenge as to the other two jurors, and they were empaneled.

In this opinion, we first address whether Sayedzada waived his appellate argument of juror bias as to the two jurors he passed for cause below. We thereafter address juror bias and whether the district court abused its discretion by failing to strike the two challenged jurors for cause.

We first hold that a party waives the right to challenge a juror’s presence on the jury on appeal where the party’s appellate argument is based on facts known to the party during voir dire; the party consciously elected not to pursue, or abandoned, a challenge for cause on that basis; and the party accepted the juror’s presence on the jury. We conclude that in this case, Sayedzada waived his arguments regarding the empaneled jurors. We thereafter turn to the issue of juror bias and distinguish between actual, implied, and inferable bias. We conclude the district court erred by denying one of Sayedzada’s challenges for cause, but this error is harmless and does not warrant reversal.

FACTS

Sayedzada attacked a condominium-complex security guard who confronted him after the guard noticed he was hiding something under his shirt and acting suspiciously. The guard subdued Sayedzada and called the police. The guard discovered Sayedzada had a purse hanging around his neck, which Sayedzada claimed to have found. The purse contained several credit cards belonging to a woman and her family. Additional credit cards were found scattered on the ground where Sayedzada had been sitting after the guard subdued him. Officers recovered a total of 13 credit cards. When police contacted the purse’s owner, she told them she was unaware her purse, which she had left in her unlocked car the night before, had been stolen. The State charged Sayedzada with 13 counts of possession of a credit or debit card without the cardholders consent, and he pleaded not guilty.

At the preliminary hearing, Sayedzada indicated that at trial he would seek to exclude evidence of the purse theft. The State stated it would not introduce that evidence, but acknowledged the jury would be able to draw that inference from the facts.

As relevant to this appeal, during voir dire, Sayedzada initially challenged prospective jurors 7, 29, 37, and 38 for cause. The district court allowed a traverse of the challenged jurors before making its ruling. After each side finished questioning the prospective jurors, Sayedzada renewed his challenges to prospective jurors 29 and 38, but expressly declined the court’s invitation to make further challenges and did not renew his challenges as to prospective jurors 7 and 37. The district court denied Sayedzada’s two challenges for cause without explanation, and Sayedzada used his peremptory challenges to exclude prospective jurors 29 and 38 from the jury panel. Prospective jurors 7 and 37 were empaneled, and Sayedzada accepted the jury panel without further objection. The jury convicted Sayedzada on all charges following a two-day trial. Sayedzada appeals.

ANALYSIS

Sayedzada contends the district court’s denial of his challenges for cause requires reversal because prospective jurors 7 and 37 were empaneled, which in turn prejudiced his case. Sayedzada also contends the district court abused its discretion by denying his challenges for cause to prospective jurors 29 and 38.¹ We address these points in turn.

Waiver of right to challenge jurors 7 and 37 on appeal

Sayedzada argues the empaneled jury was not fair and impartial because it included jurors 7 and 37, whom he had initially objected to for cause below. Sayedzada claims these jurors gave answers during voir dire that indicated they were biased. When questioned at oral argument as to whether his failure to maintain an objection below waived the claim, Sayedzada conceded that he failed to renew his challenge for cause with respect to these jurors after they were traversed as to bias. But Sayedzada argued his counsel’s actions below are irrelevant under Blake v. State ,² which he contends requires this court to reverse the verdict if any biased juror is empaneled, regardless of whether the party challenged that juror for cause below.

As an initial matter, Blake does not stand for the broad proposition Sayedzada argues. The Nevada Supreme Court concluded in Blake that, even had the district court abused its discretion by denying a for-cause challenge to a juror, the error was not reversible where the defendant failed to show, or even argue, "that any juror actually empaneled was unfair or biased." 121 Nev. at 796, 121 P.3d at 578. Notably, the appellant in Blake preserved his argument for appeal by challenging the juror below. Id. at 795–96, 121 P.3d at 578. Thus, Blake simply comports with the general rule echoed in other Nevada cases that erroneously failing to strike a juror for cause is not reversible error where the jury actually empaneled is impartial. See, e.g., Preciado v. State , 130 Nev. 40, 44, 318 P.3d 176, 178 (2014) ("A district court’s erroneous denial of a challenge for cause is reversible error only if it results in an unfair empaneled jury."); Weber v. State , 121 Nev. 554, 581, 119 P.3d 107, 125 (2005) ("Any claim of constitutional significance must focus on the jurors who were actually seated, not on excused jurors."), rejected on other grounds by Farmer v. State , 133 Nev. ––––, 405 P.3d 114 (2017) ; see also Ross v. Oklahoma , 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988) (noting peremptory challenges "are a means to achieve the end of an impartial jury").

The issue before this court is whether a defendant may waive subsequent challenges to the seating of a juror where the record demonstrates the defendant was aware of the particular facts below; the defendant consciously elected not to pursue, or abandoned, a challenge for cause based on these facts; and the defendant accepted the juror's presence on the jury. The Nevada Supreme Court has held, albeit not recently, that a defendant does waive the right to challenge the seating of a juror under such circumstances. See McCall v. State , 97 Nev. 514, 516, 634 P.2d 1210, 1211 (1981) ; State v. Hartley , 22 Nev. 342, 357, 40 P. 372, 374 (1895) ; State v. Anderson , 4 Nev. 265, 279 (1868).

The Nevada Supreme Court first addressed this issue in 1868 in Anderson . 4 Nev. at 279. There, during voir dire, a juror stated "he had formed and expressed an unqualified opinion as to the guilt or innocence of the prisoner, but subsequently had modified that opinion." Id. Defense counsel "failed to challenge the juror for either implied or actual bias, but accepted him without objection." Id. Anderson attempted to challenge the juror on appeal, and the Nevada Supreme Court concluded he could not raise this objection on appeal. Specifically, the court held:

If the prisoner accepts a juror without objection, whom he knows to have formed and expressed an unqualified opinion, he cannot, after verdict, raise this objection. If he willfully takes his chance with such a juror, he must abide the result. Otherwise a prisoner could always get a new trial by simply refusing to exercise his unquestioned right to challenge such jurors for implied bias.

Id.

The Nevada Supreme Court again addressed the issue of waiver in Hartley . 22 Nev. at 354–57, 40 P. at 373–74. In this case, during voir dire several jurors each "answered that he had formed an unqualified opinion as to the guilt or innocence of [Hartley]." Id. at 354, 40 P. at 373. Hartley accepted the jurors without objection and subsequently argued on appeal that because these jurors should have been disqualified, he was denied his right to a fair and impartial trial. Id. at 354–55, 40 P. at 373. Looking to the common law and Nev. Gen, Stat. § 4214 (1861),³ the court found that, under both, "a defendant could waive an objection to a juror, and that he did waive it unless the challenge was taken prior to the jury being completed; and especially was this the case when the ground of challenge was then known." Id. at 355–56, 40 P. at 373–74 (noting this view is further supported by caselaw, including Anderson ). The court further held that "in such case, after verdict, [the defendant does not have a] constitutional ground for the objection that he has not been tried by a ‘constitutional jury.’ " Id. at 357, 40 P. at 374.

The Nevada Supreme Court has cited Anderson and Hartley on several occasions, recognizing their holdings that a defendant can waive the right to raise a challenge to juror bias on appeal. See Maxey v. State , 94 Nev. 255, 256, 578 P.2d 751, 752 (1978) (citing Hartley and holding where a defendant has knowledge of misconduct during voir dire, he must...