STEPHANIE BRASS, AS PERSONAL REPRESENTATIVE FOR RONNIE DANELLE BRASS, Appellant,
THE STATE OF NEVADA, Respondent
Appeal from a judgment of conviction, pursuant to a jury verdict, of conspiracy to commit kidnapping and murder, first-degree kidnapping, and first-degree murder with the use of a deadly weapon. Eighth Judicial District Court, Clark County; Douglas Smith, Judge.
David M. Schieck, Special Public Defender, and JoNell Thomas and Michael W. Hyte, Deputy Special Public Defenders, Clark County, for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and David L. Stanton and Nancy A. Becker, Deputy District Attorneys, Clark County, for Respondent.
BEFORE THE COURT EN BANC.
In this opinion, we consider whether a judgment of conviction must be vacated and the prosecution abated when a criminal defendant dies while his or her appeal from the judgment is pending. We hold that although a deceased appellant is not entitled to have his or her judgment of conviction vacated and the prosecution abated, a personal representative may be substituted as the appellant and continue the appeal when justice so requires. In this appeal, we reverse the judgment of conviction based on an error during jury selection.
The State charged Ronnie Brass and his brother, Jermaine Brass, as codefendants with burglary, grand larceny, conspiracy to commit kidnapping, first-degree kidnapping, conspiracy to commit murder, and murder with the use of a deadly weapon. Jermaine
and Ronnie jointly filed a motion to sever their trials. The district court denied the motion, and the two were tried together.
During voir dire, defense counsel argued that the State violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), because it exercised a peremptory challenge to exclude prospective juror no. 173 not based on lack of qualifications, but based on the prospective juror's race. Prior to holding a hearing on Jermaine and Ronnie's Batson challenge, the district court excused a number of prospective jurors, including prospective juror no. 173. Subsequently, the district court conducted the Batson hearing and--after concluding that the State had race-neutral reasons for its peremptory challenge--denied the defense's Batson challenge.
At the conclusion of the trial, the jury found Jermaine guilty on all six counts and found Ronnie guilty on four counts, excluding burglary and grand larceny. The brothers filed separate appeals.
In Jermaine's appeal, this court reversed his conviction and remanded the matter for a new trial based on our conclusion that the district court committed reversible error during the jury selection phase of Jermaine and Ronnie's trial. See Brass v. State, 128 Nev.
__, 291 P.3d 145 (2012). Specifically, we held that " [Jermaine and Ronnie] were not afforded an adequate opportunity to respond to the State's proffer of race-neutral reasons [for its peremptory challenge of juror no. 173] or to show pretext because the district court permanently excused juror no. 173 before holding a Batson hearing," and that such dismissal of juror no. 173 " had the same effect as a racially discriminatory peremptory challenge because even if [Jermaine and Ronnie] were able to prove purposeful discrimination, they would be left with limited recourse." Id. at
__, 291 P.3d at 149. We concluded ...