from a judgment of conviction, pursuant to jury verdict, of
two counts of lewdness with a minor under the age of fourteen
years. Second Judicial District Court, Washoe County; Scott
N. Freeman, Judge.
K. Butko, Verdi, for Appellant.
Paul Laxalt, Attorney General, Carson City; Christopher J.
Hicks, District Attorney, and Terrence P. McCarthy, Chief
Appellate Deputy District Attorney, Washoe County, for
HARDESTY, PARRAGUIRRE and STIGLICH, J J.
prevail on a motion for a new trial on the basis of juror
misconduct during voir dire a defendant must demonstrate (1)
that the juror at issue failed to honestly answer a material
question, and (2) that a correct response would have provided
a valid basis for a challenge for cause. See McDonough
Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556
(1984). Based on the facts of this case, we further conclude
that the district court erred in denying appellant Jericho
Brioady's motion for a new trial on the basis of juror
AND PROCEDURAL HISTORY
case involves allegations by C.P. that she was molested by
appellant Jericho Brioady, a family friend. C.P. was twelve
years old at the time.
an investigation, the State charged Brioady with two counts
of sexual assault on a child and three counts of lewdness
with a child under fourteen years of age. Brioady proceeded
to trial in January 2016.
voir dire, the district court informed the venire of the
importance of giving full, complete, and honest answers to
any questions asked. The district court asked, "Has
anybody been a victim of a crime? And if it's a personal
matter, we'll take it on sidebar which means we'll
talk privately." Two veniremembers advised that they had
been molested as children. Another stated that her child had
been a victim of molestation. Several other veniremembers
indicated that they had been the victim of various property
crimes. A veniremember who would later be selected for the
jury, serving as Juror Three, said nothing during this line
of questioning. The State extensively questioned the
veniremembers who had been molested or related to victims of
molestation about their ability to be impartial. Juror Three
did not volunteer any information during these inquiries.
State also asked the venire to think of their "most
serious secret, " qualifying that they would not have to
tell the secret. The State then asked veniremembers if they
had ever told anyone their secret.Juror Three indicated that
she had a secret, and had eventually told a doctor whom she
trusted. She did not reveal any further details about the
secret. The defense exercised seven of its peremptory
challenges, and waived the eighth.
the presentation of evidence, and after approximately ten
hours of deliberation, the jury returned a verdict of guilty
with respect to two counts of lewdness with a minor, and not
guilty with respect to the remaining counts of sexual assault
February 10, 2016, eleven days after entry of the verdict,
Brioady filed a motion for new trial on the basis of juror
misconduct. Brioady specifically alleged that it had come to
his attention that Juror Three had failed to inform the court
that she had been a childhood victim of molestation. At a
hearing on the matter, Juror Three testified that she did not
remember the court asking if anyone had ever been a victim of
a crime. Despite the fact that she did not remember the
question, Juror Three also stated that while she had been the
victim of molestation as a child, she did not volunteer that
fact, because she believed she could be a fair and impartial
juror and did not consider herself to be a victim. She
clarified, "[T]he truth is, I didn't feel it was
necessary for me to bring up an event that happened when I
was four years old."
Juror Three acknowledged that she had thought of her prior
molestation during the voir dire process, as she considered
those events to be the "most serious secret" that
she identified in response to the prosecutor's questions.
Juror Three also testified that when she had disclosed the