from a judgment of conviction, pursuant to a jury verdict, of
one count each of conspiracy to commit robbery and burglary
while in possession of a deadly weapon, and two counts each
of robbery with the use of a deadly weapon and murder with
the use of a deadly weapon. Eighth Judicial District Court,
Clark County; Valerie Adair, Judge.
M. Schieck, Special Public Defender, and JoNell Thomas, Chief
Deputy Special Public Defender, Clark County, for Appellant.
Paul Laxalt, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, Jonathan E. VanBoskerck, Chief
Deputy District Attorney, and David L. Stanton and
Christopher Burton, Deputy District Attorneys, Clark County,
opinion addresses matters which arose during appellant Ralph
Jeremias' trial for the murders of Brian Hudson and Paul
Stephens. We focus the bulk of our discussion on
Jeremias' claim that the district court violated his
right to a public trial by closing the courtroom to members
of the public during jury selection without making sufficient
findings to warrant the closure. Under Presley v.
Georgia, 558 U.S. 209 (2010), such a violation
constitutes structural error, which usually entitles an
appellant to automatic reversal of his judgment of conviction
without an inquiry into whether the error affected the
verdict. But Jeremias did not object to the closure and thus
did not preserve the error for appellate review. Under Nevada
law, this means he must demonstrate plain error that affected
his substantial rights. Following the United States Supreme
Court's guidance in Weaver v. Massachusetts, 582
U.S. ___, 137 S.Ct. 1899 (2017), which discussed the
violation of the right to a public trial during jury
selection in the context of an
ineffective-assistance-of-counsel claim, we hold that
Jeremias fails to satisfy plain error review. We also
conclude that no relief is warranted on his other claims and
that his death sentences are supported by our independent
review of the record under NRS 177.055(2).
AND PROCEDURAL HISTORY
8, 2009, Brian Hudson and Paul Stephens were found murdered
in the apartment they shared. They had both been shot in the
head, and it appeared they had been robbed. A witness who
lived in the same apartment complex told law enforcement that
she saw two men, one with light skin and one with darker
skin, near the scene around the time of the murders. Another
witness said that, after hearing gunshots, he saw a red truck
speed from the complex.
learned that the victims' credit cards had been used at
various locations after the murders. They obtained
surveillance videos from those locations and identified a
potential suspect and a vehicle he was driving. That vehicle
model was often used as a rental car, so detectives searched
rental car records. This search led them to Jeremias, who
matched the person who had been seen in the surveillance
footage using the victims' bank cards. Jeremias was
identified by one of the witnesses as the darker-skinned man
she had seen in the apartment complex. Jeremias' friend,
Carlos Zapata, drove a red truck that was identified by the
other witness as that which had left the complex after the
further investigation, law enforcement determined that
Jeremias committed the murders in the course of a robbery he
planned with Zapata and a third individual named Ivan Rios.
They were all charged for their roles in the murders; Zapata
pleaded guilty and testified on behalf of the prosecution at
Jeremias' trial. According to Zapata, Jeremias proposed
robbing the victims because he believed there would be drugs
and money in their apartment. The plan was for Jeremias, who
was friendly with the victims, to gain entry to the
apartment. When Jeremias texted the others that everything
was ready to go, Zapata would run in and grab the property
and Rios would drive them away in Zapata's truck. With
the plan set, the group drove to the victims' apartment
and Jeremias went inside. While waiting for the signal,
Zapata heard gunshots. Jeremias returned empty-handed, and
the group fled the scene. Later, Jeremias complained that
"it's all for nothing" unless they went back to
the apartment and took the property he had left behind. Rios
apparently balked, so Jeremias and Zapata took a rental car
back to the apartment and stole the property. Afterward, the
entire group went out celebrating with the victims'
testified in his own defense. He admitted that he had been in
the victims' apartment and that he stole their property,
but he denied there was a plan to rob the victims or that he
was involved in their deaths. Instead, he claimed he went to
the victims' apartment to buy marijuana. When he knocked
on their front door, it "popped open" and he saw
them with blood on their faces. He knew they were dead, and
in a state of shock and intoxication, he decided to take
jury found Jeremias guilty of conspiracy to commit robbery,
burglary while in possession of a deadly weapon, two counts
of robbery with the use of a deadly weapon, and two counts of
first-degree murder with the use of a deadly weapon. With
respect to the murders, the jury unanimously found they were
willful, deliberate, and premeditated and were committed
during the perpetration or attempted perpetration of a
burglary and robbery. The jury also unanimously found each of
the aggravating circumstances alleged (that the murders were
committed in the course of a robbery, the murders were
committed to prevent a lawful arrest, and Jeremias was
convicted of more than one murder), and at least one juror
found several mitigating circumstances. The jury unanimously
concluded that the mitigating circumstances did not outweigh
the aggravating circumstances and imposed a sentence of death
for each murder. This appeal followed.
of Jeremias' family from the courtroom during jury
contends that the district court violated his right to a
public trial by excluding members of his family from the
courtroom during voir dire. As explained in more detail
below, we conclude that Jeremias forfeited any error by
failing to object and fails to demonstrate that this court
should grant relief under plain error review.
claim is based on Presley v. Georgia, 558 U.S. 209
(2010). In Presley, the trial court judge noticed an
observer sitting in the audience as jury selection was about
to commence. Id., at 210. The judge told the
observer that he had to leave the courtroom because all of
the seats would be needed for prospective jurors.
Id. The observer was the defendant's uncle, and
the defendant objected to "the exclusion of the public
from the courtroom." Id., (quotation marks
omitted). The judge reiterated that there would not be enough
seats and noted that it would be inappropriate for the uncle
to "intermingle" with the prospective jurors.
Id. When the matter was raised on appeal, the
Supreme Court of Georgia determined that the judge had
identified a compelling interest for closing the courtroom.
Id. at 211. Reversing that decision, the United
States Supreme Court explained that limited space in a
courtroom and concerns that the defendant's family might
interact with potential jurors were inadequate reasons to
exclude the public entirely, and the trial court was required
to take reasonable measures to accommodate public attendance,
such as "reserving one or more rows for the public;
dividing the jury venire panel to reduce courtroom
congestion; or instructing prospective jurors not to engage
or interact with audience members." Id. at 215.
Because the trial court had relied on inadequate reasons to
close the proceedings and did not consider reasonable
alternatives, the Court determined that it committed
structural error, warranting automatic reversal and remand
for a new trial. Id. at 216.
facts of this case are similar. Before potential jurors
entered the courtroom, the prosecutor objected to having
members of Jeremias' family present during the jury
selection process. The prosecutor stated that he had a
"number of reasons" for wanting to exclude
Jeremias' family and was willing to identify them on the
record, but defense counsel had already told Jeremias'
family that they would be asked to leave the courtroom.
Defense counsel remained silent. The judge then stated:
"Okay. And just so the family knows, we use every single
seat for the jurors. So we would need to kick you out,
anyway. At least until we get started with the jury selection
and get a few people excused, because we don't have
enough chairs. We bring the maximum number we can fit with
the chairs." Apparently, Jeremias' family then left
the courtroom, and it is unclear when they returned.
first blush, the facts of this case seem to neatly align with
those in Presley. But there is an important
distinction in that the defendant in Presley
objected to the closure whereas Jeremias did not. The failure
to preserve an error, even an error that has been deemed
structural, forfeits the right to assert it on appeal.
United States v. Olano, 507 U.S. 725, 731 (1993)
("No procedural principle is more familiar to this Court
than that a constitutional right, or a right of any other
sort, may be forfeited in criminal as well as civil cases by
the failure to make timely assertion of the right...."
(internal quotation marks omitted)). Nevada law provides a
mechanism for an appellant to seek review of an error he
otherwise forfeited. NRS 178.602 (explaining when an
unpreserved error "may be noticed"). Before this
court will correct a forfeited error, an appellant must
demonstrate that: (1) there was an "error"; (2) the
error is "plain, " meaning that it is clear under
current law from a casual inspection of the record; and (3)
the error affected the defendant's substantial rights.
Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95
purposes of this discussion, we will assume that Jeremias
satisfies the first two prongs by demonstrating that the
district court closed the courtroom to members of the public
(his family) for an inadequate reason (courtroom congestion)
without balancing other interests or exploring reasonable
alternatives. See Presley, 558 U.S. at 216. Whether
he is entitled to relief ...