Appeal from a judgment of conviction, pursuant to a jury verdict, of battery with a deadly weapon causing substantial bodily harm. Second Judicial District Court, Washoe County; Janet J. Berry, Judge.
Jennifer L. Lunt, Alternate Public Defender, and Cynthia Lu, Deputy Alternate Public Defender, Washoe County, for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Joseph R. Plater, Deputy District Attorney, Washoe County, for Respondent.
Arthur E. Mallory, Fallon, for Amicus Curiae Nevada District Attorneys Association.
T. Augustas Claus, Henderson; Robert Arroyo, Las Vegas, for Amicus Curiae Nevada Attorneys for Criminal Justice.
Pickering, J., We concur: Gibbons, C.J., Hardesty, J., Parraguirre, J. CHERRY, J., with whom DOUGLAS and SAITTA, JJ., agree, dissenting.
BEFORE THE COURT EN BANC.
Artiga-Morales appeals his conviction for battery with a deadly weapon causing substantial bodily harm. His principal argument is that the district court erred in denying his pretrial motion for " an order mandating the prosecutor provide a summary of any jury: panel information gathered by means unavailable to the defense." The record does not include a complete transcript of the oral argument on this motion; what we have suggests the parties focused on the criminal histories the prosecution admitted having run on the venire, which revealed " [s]ome prior misdemeanors, that was it." The district court denied the motion on two grounds: (1) " the prosecution's choice not to disclose potential juror information will not create an unfair trial or impartial [sic] jury [since d]efense counsel will have adequate opportunity to examine each potential juror during voir dire," and (2) Artiga-Morales " has not established that the potential juror information he seeks cannot be obtained by the defense investigator or through other reasonable avenues." Our review is for an abuse of discretion, People v. Jones, 17 Cal.4th 279, 70 Cal.Rptr.2d 793, 949 P.2d 890, 913 (Cal. 1998); see Lamb v. State, 127 Nev. __, __, 251 P.3d 700, 707 (2011), and finding none, we affirm.
Almost without exception, courts have declined to find reversible error in a trial court denying the defense access to juror background information developed by the prosecution. See Jeffrey F. Ghent, Annotation, Right of Defense in Criminal Prosecution to Disclosure of Prosecution Information Regarding Prospective Jurors, 86 A.L.R.3d 571 (1978 & Supp. 2014) (collecting cases). Most courts have held that, in the absence of a statute or rule mandating disclosure, no such disclosure obligation exists. Albarran v. State, 96 So.3d 131, 157-58 (Ala.Crim.App. 2011) (" arrest and conviction records of potential jurors do not qualify as the type of discoverable evidence that falls within the scope of Brady [ v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)]" (alteration in original) (internal quotation marks omitted)); State v. Matthews, 296 S.C. 379, 373 S.E.2d 587, 590-91 (S.C. 1988) (without a statute or court rule requiring disclosure, due process did not require disclosure of state-assembled juror background information); see generally Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (" There is no general constitutional right to discovery in a criminal case, and Brady did not create one." ).
Other courts struggle with the disparity between the prosecution, which has ready access to criminal history and other government databases on prospective jurors, and the defense, which does not. E.g., People v. Murtishaw, 29 Cal.3d 733, 175 Cal.Rptr. 738, 631 P.2d 446, 465-66 (Cal. 1981), superseded by statute on other grounds as stated in People v, Boyd, 38 Cal.3d 762, 215 Cal.Rptr. 1, 700 P.2d 782, 790 (Cal. 1985). But the clear majority of these courts as well have found no reversible error in a trial court's denial of access to prosecution-developed juror background information, concluding, as we do here, that the injury, if any, in the particular case was speculative and/or prejudice was not shown.
Murtishaw is typical. In Murtishaw, the California Supreme Court announced that, while not compelled by the constitution, statute, or rule, trial courts in future cases may compel disclosure of prosecution-developed juror background materials. Id. Even so, the court acknowledged that " in any individual case it is entirely speculative whether denial of access caused any significant harm to the defense." Id. at 466. Thus, Murtishaw 's holding, as distinct from its dictum, was that the trial court's refusal to order disclosure " does not require us to reverse the conviction in the present case" because, absent a showing of " prejudice . . . the denial of access is not reversible error." Id.; see Tagala v. State, ...