ROGELIO MARTINORELLAN A/K/A ROGELIO MARTINEZ-ORELLANO, Appellant,
THE STATE OF NEVADA, Respondent
As Corrected March 12, 2015.
En banc reconsideration of a panel order affirming a judgment of conviction, pursuant to a jury verdict, of burglary while in possession of a deadly weapon, attempted robbery with the use of a deadly weapon, and battery with the use of a deadly weapon. Eighth Judicial District Court, Clark County; Susan Scann, Judge.
Philip J. Kohn, Public Defender, and Sharon G. Dickinson, Deputy Public Defender, Clark County, for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Jonathan E. VanBoskerck, Chief Deputy District Attorney, Clark County, for Respondent.
DOUGLAS, J. We concur: Hardesty, C.J., Parraguirre, J., Gibons, J., Pickering, J. SAITTA, J., with whom CHERRY, J., agrees, dissenting.
BEFORE THE COURT EN BANC.
In the present case, we consider the effect of the district court's failure to instruct the jury to restart deliberations as is required by NRS 175.061(4) after an alternate juror replaced a regular juror. NRS 175.061(4) provides that " [i]f an alternate juror is required to replace a regular juror after the jury has retired to consider its verdict, the judge shall recall the jury, seat the alternate and resubmit the case to the jury." Thus, if a district court fails to instruct the jury to restart deliberations, it commits an error that, in appropriate circumstances, can require reversal despite overwhelming evidence of guilt. Carroll v. State, 111 Nev. 371, 372-74, 892 P.2d 586, 587-88 (1995).
Appellant Rogelio Martinorellan did not object to the district court's failure to instruct the reconstituted jury to restart deliberations. At issue here is (1) whether the district court's failure was an error of constitutional dimension, (2) which standard of review applies to an unpreserved constitutional error, and (3) and whether the district court committed a reversible error in this case. We hold that although the district court's error was of constitutional dimension, it is subject to plain error review because Martinorellan did not preserve this issue. Therefore, we affirm the conviction because Martinorellan did not demonstrate that the district court's failure to instruct the reconstituted jury to restart deliberations rose to the level of plain error.
FACTUAL AND PROCEDURAL HISTORY
Martinorellan entered a smoke shop and stabbed the store's owner while attempting to commit a robbery. At trial, the jury deliberated for approximately 1 hour and 15 minutes before the district court convened a hearing, dismissed a juror who stated that he knew the victim, and replaced that juror with an alternate juror. The district court did not recall the jury to the courtroom or instruct it to restart deliberations. Martinorellan did not object to the district court's decision not to recall the jury and instruct it to restart deliberations. The reconstituted jury deliberated for nearly 4 hours and 30 minutes over two days and viewed a playback of testimony before convicting Martinorellan of burglary while in possession of a deadly weapon, attempted robbery with the use of a deadly weapon, and battery with the use of a deadly weapon.
After Martinorellan appealed, a panel of this court affirmed his conviction, holding in a footnote that Martinorellan's assignment of error regarding the district court's failure to instruct the jury to restart ...