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Azucena v. State

Supreme Court of Nevada

September 5, 2019

JOSE AZUCENA, Appellant,
v.
THE STATE OF NEVADA, Respondent.

         Appeal from a judgment of conviction, pursuant to a jury verdict, of twelve counts of lewdness with a child under the age of 14; seven counts of child abuse, neglect or endangerment; five counts of indecent exposure; four counts of attempted lewdness with a child under the age of 14; and one count each of first-degree kidnapping and sexual assault of a minor under 14 years of age. Eighth Judicial District Court, Clark County; Richard Scotti, Judge.

          Darin linlay, Public Defender, P. David Westbrook and Deborah L Westbrook, Chief Deputy Public Defenders, Clark County. for Appellant.

          Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Krista D. Barrie, Chief Deputy District Attorney, and Christopher 8. Hamner, Deputy District Attorney. Clark County. for Respondent.

          BEFORE HARDESTY, STIGLICH and SILVER, JJ.

          OPINION

          HARDESTY, J.

         During voir dire in this criminal case, the trial judge threw a book against the wall, cursed, and berated, yelled at, and threatened a prospective juror for expressing her belief that she could not be impartial. We conclude that such behavior and statements constitute judicial misconduct and may have discouraged other prospective jurors from answering candidly about their own biases. Because we cannot be convinced that an impartial jury was selected under these circumstances where the judge did nothing to alleviate the intimidating atmosphere that he created, we reverse and remand for a new trial.

         FACTS

         Appellant Jose Azucena was charged with multiple sex offenses against children and other related offenses. His case proceeded to a jury trial. During the second day of voir dire, a prospective juror stated that she did not think she could be unbiased toward Azucena because of her exposure to child abuse in her work as a nurse. The following colloquy took place between the trial judge and the prospective juror:

THE COURT: So you didn't say that yesterday. All right.
PROSPECTIVE JUROR NO. 177: Well, I said I had other issues.
THE COURT: No, listen, what-what we're not going to have in this jury is people coming in overnight and thinking up shit and try to make shit up now so they can get out of the jury. That's not going to happen. All right. All right. Because if I find that someone said something yesterday under oath and changes it because they're trying to fabricate something to get out of serving on this jury, there's going to be repercussions. All right.
PROSPECTIVE JUROR NO. 177:1 did say-
THE COURT: Now, what's going on here?
PROSPECTIVE JUROR NO. 177: I did ...

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