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Brioady v. State

Supreme Court of Nevada

June 29, 2017

JERICHO JAMES BRIOADY, Appellant,
v.
THE STATE OF NEVADA, Respondent.

         Appeal 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.

          Karla K. Butko, Verdi, for Appellant.

          Adam Paul Laxalt, Attorney General, Carson City; Christopher J. Hicks, District Attorney, and Terrence P. McCarthy, Chief Appellate Deputy District Attorney, Washoe County, for Respondent.

          BEFORE HARDESTY, PARRAGUIRRE and STIGLICH, J J.

          OPINION

          STIGLICH, J.

         To 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 misconduct.

         FACTS AND PROCEDURAL HISTORY

         This 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.

         Following 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.

         During 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.

         The 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.[1]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.

         Following 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 and lewdness.

         On 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."

         Nonetheless, 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 ...


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