Perez v. Talley

499 P.3d 1176 (Table)

Cesar PEREZ, Appellant,

v.Doris Ann TALLEY, Respondent.

No. 79094

Supreme Court of Nevada.

FILED NOVEMBER 30, 2021

Bighorn Law/Las Vegas

Clagget & Sykes Law Firm

Hansen & Hansen, LLC

ORDER OF AFFIRMANCE

Appellant filed a personal-injury lawsuit against respondent following a car accident. After a 13-day jury trial, the jury returned a unanimous verdict for respondent, awarding appellant nothing.¹ Appellant raises four main arguments in support of reversal of the jury's verdict and a new trial. We affirm.²

The district court did not commit reversible error in reviewing appellant's Batson objections

During voir dire, respondent peremptorily struck four prospective jurors. Relying on Batson v. Kentucky, 476 U.S. 79 (1986), appellant objected to those peremptory strikes, arguing that the decisions to strike those prospective jurors were based either on the jurors’ race or sexual orientation. Cf. Morgan v. State , 134 Nev. 200, 211-12, 416 P. 3d 212, 224 (2018) (citing Batson for the proposition that a litigant cannot strike a prospective juror based on race and SmithKline v. Beecham Corp. v. Abbott Labs, 740 F.3d 471 (9th Cir. 2014), for the proposition that a litigant cannot strike a prospective juror based on sexual orientation). The district court promptly held a two-and-a-half hour discussion with the parties’ counsel on appellant's Batson challenges, although for reasons that are unclear and concerning, the discussion was held in a hallway and was not recorded. Following the off-the-record discussion, the district court and counsel for both parties returned to the courtroom, at which point the district court stated on the record that they had discussed appellant's Batson objections and would make a detailed record on each objection at a later time. The district court then excused the four prospective jurors that respondent had peremptorily struck. Roughly two weeks later, and on the final day of trial while the impaneled jurors were deliberating, the district court held an on-the-record hearing to memorialize appellant's four Batson objections.

Appellant contends that reversal is warranted because the district court committed structural error by not conducting a prompt on-the-record Batson hearing, which was necessary for appellant to establish that respondent's race-neutral and sexual-orientation-neutral explanations for striking the four prospective jurors were pretextual. Cf. Brass v. State , 128 Nev. 748, 753, 291 P.3d 145, 149 (2012) (explaining that a Batson objection involves a three-step analysis wherein (1) the opponent of the peremptory strike makes a prima facie showing of impermissible discrimination, (2) the party exercising the peremptory strike offers a neutral, permissible explanation for the strike, and (3) the opponent is provided an opportunity to show that the neutral explanation is pretextual). We are not persuaded under these particular facts that the district court committed reversible error. Because appellant did not object to the district court's decision to conduct the initial Batson discussion off the record, we review appellant's argument for plain error.³ See Jeremias v. State, 134 Nev. 46, 50-51, 412 P.3d 43, 49 (2018) (recognizing that even alleged structural errors must be objected to in district court in order to properly preserve them for appellate review); see also Landmark Hotel & Casino, Inc. v. Moore, 104 Nev. 297, 299-300, 757 P.2d 361, 362-63 (1988) (holding that a failure to object in district court precludes appellate review absent "plain error," which is an error "so substantial as to result in a miscarriage of justice"). We agree with appellant that the district court erred in failing to conduct a prompt on-the-record Batson hearing. Indeed, we have explicitly held that a district court errs when it dismisses a prospective juror before holding a Batson hearing. Brass, 128 Nev. at 754, 291 P.3d at 149. Under Brass and our other Batson -related case law, an on-the-record hearing is required to allow for meaningful appellate review.⁴ See Matthews v. State, 136 Nev. 343, 345-46, 466 P.3d 1255, 1260 (2020) (discussing the importance of a clear record as to the district court's determinations and reasoning under the Batson framework).

Nonetheless, we are not persuaded that the error presents a "miscarriage of justice" that warrants reversal and a new trial. Landmark Hotel & Casino, 104 Nev. at 299, 757 P.2d at 362. As noted, the district court did address the Batson objections at length with counsel before dismissing the prospective jurors and it did eventually hold an on-the-record hearing during which appellant memorialized the bases for his Batson objections, respondent provided race-neutral and sexual-orientation-neutral explanations for using his peremptory strikes, and the district court explained its determinations under the Batson framework. Although appellant contends that the district court prohibited him from establishing that respondent's explanations were pretextual under Batson s third step, appellant has not explained in his briefs or at oral argument what evidence or arguments he wanted to proffer to show pretext that he was unable to present to the district court during the initial off-the-record discussion or the subsequent on-the-record discussion.

For example, although appellant contends that the district court prohibited him from showing that respondent's explanation for striking prospective juror 464 was pretextual, appellant has not explained how he would have made this showing.⁵ Relatedly, although appellant contends that respondent's decision to strike prospective jurors 381 and 469 was necessarily pretextual because their inability to understand English is not a permissible neutral reason to strike a prospective juror, appellant has not provided any authority to support that proposition,⁶ and this court has never held as much. See Diomampo v. State, 124 Nev. 414, 424 n.21, 185 P.3d 1031, 1038 n.21 (2008) (observing that this court has "not reach[ed] the issue of whether using a peremptory challenge to dismiss a minority juror because of a true language barrier constitutes de facto discrimination"). Nor are we persuaded that the district court's initial comments regarding these two prospective jurors’ English-speaking abilities precluded the district court from later reevaluating their ability to understand the trial testimony. Cf. United States v. Changco, 1 F.3d 837, 840 (9th Cir. 1993) (holding that a true language barrier can provide a race-neutral basis for a peremptory challenge). Accordingly, we conclude that the district court's failure to conduct a prompt on-the-record Batson hearing does not warrant reversal.

The district court did not commit reversible error in allowing Officer Richter's deposition testimony to be read at trial or in changing a word that he used

Las Vegas Metropolitan Police Officer Johnathon Richter responded to the scene of the accident and, as relevant here, reported that he observed "yaw" marks at the scene. After appellant filed the underlying lawsuit, Officer Richter was deposed, but by the time of trial he had moved out of state and was unavailable to testify. Consequently, the district court permitted portions of his deposition testimony to be read to the jury during trial. Appellant contends that reversal is warranted because (1) Officer Richter's deposition testimony should have been excluded in its entirety, or (2) the district court changed Officer Richter's statement in his deposition that he observed "yaw" marks to him having observed "skid" marks.⁷ We disagree.

With respect to appellant's first argument, appellant did not ask the district court to exclude Officer Richter's deposition in its entirety. Thus, this argument is waived. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (observing that arguments not raised in district court need not be considered on appeal). Although appellant appears to have filed at least two motions in limine and a trial brief seeking to exclude portions of Officer Richter's deposition or his accident report, none of these requests coherently sought to exclude Officer Richter's deposition testimony in its entirety.⁸ Regardless, even if appellant had originally sought to exclude Officer Richter's deposition testimony in its entirety, appellant likely waived that argument by willingly participating with the district court in redacting portions of Officer Richter's testimony without subsequently re-objecting to the district court's decision to allow the testimony to be read. Cf. Turner v. State , 136 Nev. 545, 551, 473 P.3d 438, 445 (2020) (holding that a defendant who initially seeks to exclude a codefendant's statement from evidence but then participates in redacting the statement must subsequently make an on-the-record objection to preserve the exclusion issue for appeal).

With respect to appellant's second argument, although the district court's decision to change "yaw" marks to "skid" marks is unorthodox, we note that appellant invited this alleged error by initially proposing that "yaw" marks be changed to "tire" marks. See Pearson v. Pearson , 110 Nev. 293, 297, 871 P.2d 343, 345 (1994) ("The doctrine of invited error embodies the principle that a party will not be heard to complain on appeal of errors which he himself induced or provoked the court... to commit." (internal quotation marks omitted)). In any event, appellant has not explained how changing Officer Richters singular mention of "yaw" marks to "skid" marks had any bearing on the outcome of the 13-day trial, much less how that bearing prejudiced appellant. Accordingly, the district court did not commit reversible error in allowing Officer Richter's deposition testimony to be read to the jury or in changing "yaw" marks to "skid" marks.

The district court was within its discretion in finding that alleged juror bias did not warrant a new trial

After the jury rendered...