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Preciado v. State

Supreme Court of Nevada

February 13, 2014

Edward PRECIADO, a/k/a Edward A. Preciado-Nuno, Appellant,
v.
The STATE of Nevada, Respondent.

Page 177

Law Office of Lisa Rasmussen and Lisa A. Rasmussen, Las Vegas, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Respondent.

BEFORE GIBBONS, C.J., DOUGLAS and SAITTA, JJ.

OPINION

DOUGLAS, J.

We take this opportunity to stress that bench and in-chambers conferences should be memorialized either contemporaneously or by allowing counsel to make a record afterward; and that a prospective juror who is anything less than unequivocal about his or her impartiality should be excused for cause.

Appellant Edward Preciado engaged in a physical altercation with Kim Long. During the altercation, Preciado repeatedly struck Long in the head with a hammer, killing her. Preciado claimed self-defense, but a jury convicted Preciado of voluntary manslaughter with the use of a deadly weapon. The district court sentenced Preciado to the maximum of 4 to 10 years in prison, with a consecutive 4 to 10 years for the weapon enhancement.

On appeal, Preciado raises eight issues for this court's review: (1) whether the district court's failure to record numerous bench and in-chambers conferences was a constitutional violation; (2) whether the district court erred in declining to give Preciado's jury questionnaire and denying his challenges for cause; (3) whether the State committed prosecutorial misconduct; (4) whether the State mishandled critical evidence; (5) whether the district court erred in limiting Preciado's examination of three witnesses; (6) whether the trial judge improperly sentenced Preciado; (7) whether the trial judge was biased against the defense; and (8) whether cumulative error requires a new trial.[1]

After full consideration, we determine that only two of Preciado's issues have some merit: that the district court erred in failing to record numerous bench and in-chambers conferences and in failing to excuse for cause a prospective juror who was equivocal about her impartiality. However, these errors were harmless; thus, we affirm Preciado's judgment of conviction.

Page 178

Unrecorded bench conferences and in-chambers discussions

The district court conducted numerous unrecorded bench and in-chambers conferences during Preciado's trial. The court memorialized some of the conferences, but not all. The court also denied Preciado's motion to settle the trial record and reconstruct the unrecorded conferences. Preciado argues that the court's failure to make a record of all of the conferences effectively denied him his right to appeal.

Meaningful appellate review is inextricably linked to the availability of an accurate record of the lower court proceedings regarding the issues on appeal; therefore, a defendant is entitled to have the most accurate record of his or her district court proceedings possible. See Daniel v. State, 119 Nev. 498, 507-08, 78 P.3d 890, 897 (2003). In Daniel, we determined that SCR 250(5)(a) and due process require a district court to record all sidebar proceedings in a capital case either contemporaneously with the matter's resolution, or the sidebar's contents must be placed on the record at the next break in trial. Id.

Due process requires us to extend our reasoning in Daniel to defendants in noncapital cases, because regardless of the type of case, it is crucial for a district court to memorialize all bench conferences, either ...


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