# Leonard v. State > Nevada Supreme Court · January 30, 2001 · 117 Nev. 53 URL: https://www.frixlaw.com/law-library/cases/9785662 ## Case - **Full name:** GREGORY NEAL LEONARD, Appellant, v. THE STATE OF NEVADA, Respondent - **Court:** Nevada Supreme Court - **Decided:** January 30, 2001 - **Citations:** 117 Nev. 53; 117 Nev. Adv. Rep. 6; 17 P.3d 397; 2001 Nev. LEXIS 5 - **Precedential status:** Published - **Opinion:** Concurring in part by Rose - **Judges:** Young, Maupin, Rose, Shearing, Agosti, Leavitt - **Cited by:** 63 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9785662 ## How later opinions describe it (automated extraction) - explaining that despite a significant delay, the other factors weighed against a determination that the defendant was denied his right to a speedy trial where the reasons for most of the delay were not by fault of the State or the court and a significant portion of the delay r… - holding that the statutory language defining implied malice accurately informs the jury of the distinction between express and implied malice - holding that evidence of strangulation and other injuries to the victim and the absence of defensive injuries are factors a jury can rely on in concluding that the defendant committed a willful, deliberate, and premeditated killing - observing that a district court's discretion to limit cross-examination is narrow "where potential bias is at issue" ## Opinion text Rose, J., concurring and dissenting: I respectfully dissent in part from my colleagues’ opinion because I believe that the district court committed reversible error in excusing juror no. 129 for cause. Juror no. 129 was excused because the district court found that she could not consider the death penalty “equally” with the other two possible sentences. Our precedent mandates that we not only review this issue for plain error despite Leonard’s failure to lodge a proper objection, but also that we reverse Leonard’s conviction because the district court violated Leonard’s fundamental right to an impartial jury. *88 The majority first suggests that a review of the issue is not warranted in light of Leonard’s failure to object because such failure “might reflect a tactical decision by counsel” or might be “an indication of [Leonard’s] contemporaneous impression that the juror was biased and properly excluded.” Our prior precedent, however, clearly indicates that this type of constitutional error should be fully reviewed on appeal even in the absence of a properly lodged objection. See, e.g., Sipsas v. State, 102 Nev. 119, 125 , 716 P.2d 231, 234-35 (1986) (reversing first degree murder conviction in part because unobjected-to prosecutorial misconduct violated defendant’s right to fair trial); Sullivan v. State, 115 Nev. 383 , 387-88 n.3, 990 P.2d 1258 , 1260 n.3 (1999) (reviewing a prosecutor’s unobjected-to comments which were contrary to a plea agreement because they may have violated defendant’s due process rights); Buff v. State, 114 Nev. 1237 , 1244 n.4, 970 P.2d 564 , 568 n.4 (1998) (reviewing an unobjected-to jury instruction for plain error). In addition, this court has held that “where a life is at stake, we will consider the allegations of misconduct as if there had been compliance with the contemporaneous objection rule.” Flanagan v. State, 104 Nev. 105, 108 , 754 P.2d 836, 837 (1988) overruled on other grounds by Moore v. Nevada, 503 U.S. 930 (1992). Moreover, we should be consistent in considering unobjected-to error in both criminal and civil cases. In the recent civil case of DeJesus v. Flick, 116 Nev. 812 , 7 P.3d 459 (2000), we held that this court would review as plain error unobjected-to attorney misconduct that was so substantial that it appeared to improperly influence the verdict. If we are going to examine unobjected-to argument in a civil matter concerning the rendering of a money judgment, we should certainly examine unobjected-to error in a criminal matter where the death penalty is concerned. Thus, I believe that our precedent clearly requires that we review the district court’s dismissal for cause of juror no. 129 notwithstanding Leonard’s lack of objection. The majority also opines that failure to object might have been a trial strategy of Leonard’s attorney. This is sheer speculation and it is not supported by logic or the record. What beneficial purpose would be served by letting a prospective juror, reluctant to assess the death penalty, be excused for cause? Instead, the record establishes that this case was tried from beginning to end on the mistaken belief that each juror had to be able to consider each potential penalty equally. The erroneous standard was printed in the prospective juror’s questionnaire, both the prosecutor and defense counsel continuously repeated it in voir dire, it was emphatically stated by the district court judge during voir dire, the prosecutor challenged juror no. 129 because she could *89 not consider each penalty equally, the district court judge dismissed juror no. 129 for this reason, and the defense attorney did not try to traverse the challenge to juror no. 129 because he likely believed the decision was proper. Thus, the dismissal of juror no. 129 occurred because all participants in the trial had an incorrect understanding of a fundamental rule of law, and not because of some fanciful strategy of the defense. The majority next concludes that even upon a review of the issue, Leonard has not demonstrated plain error. I disagree. It is well settled that a prospective juror in a death penalty case must be able to consider each penalty available before being qualified to sit as a juror. See Adams v. Texas, 448 U.S. 38, 45 (1980); Walker v. State, 113 Nev. 853, 866 , 944 P.2d 762, 770-71 (1997); Milligan v. State, 101 Nev. 627, 632 , 708 P.2d 289, 292-93 (1985) (applying Adams in a Nevada death penalty case). The defendant’s constitutional right to an impartial jury, however, demands that this principle not be used to empanel a jury overly prone toward the death penalty. Thus, the rule is more precisely stated: “[A] juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Adams, 448 U.S. at 45 . Importantly, there is no requirement that a potential juror be able to consider each sentence “equally,” as the jury here was instructed, and the requirement simply misstates the law. As the majority has concluded, this instruction must not be included in future jury voir dires or questionnaires. In this case, juror no. 129 indicated that she could consider each penalty, but that she believed the death penalty was appropriate in only a few cases. She further indicated that she would be more inclined to choose the other penalties available that involved substantial jail time. By stating that the death penalty should be reserved only for rare offenders and that death was not her preferred form of punishment, juror no. 129 did not manifest any belief that would ‘ ‘prevent or substantially impair’ ’ her sworn duty as a juror, but rather demonstrated that she had a better understanding of sentencing law than those jurors who affirmatively indicated that they could consider the sentences “equally” and were not disqualified. As the majority itself recognizes, “the death penalty is reserved for a limited class of offenders” and need not ever be applied by the jury. Therefore, I cannot agree with the majority’s conclusion that Leonard has not shown plain error where an impermissible question was asked of a juror and where the juror’s response indicated that she merely had a conscious and emotional concern about the death penalty. See Adams, 448 U.S. at 49 (jurors cannot be excluded simply because they *90 indicated that the “potentially lethal consequences of their decision would invest their deliberations with greater seriousness and gravity or would involve them emotionally”). I believe that the district court clearly violated Adams by excusing juror no. 129 for cause. This error in excusing juror no. 129 for cause violates Leonard’s constitutional right to an impartial jury, a right “so basic to a fair trial that [its] infraction can never be treated as harmless error.” Gray v. Mississippi, 481 U.S. 648, 668 (1987) (holding that an impermissible exclusion of a juror is not subject to harmless-error analysis (quoting Chapman v. California, 386 U.S. 18, 23 (1967))). Accordingly, Leonard’s sentence must be reversed and the matter remanded for a new penalty hearing. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9785662. Public record. Not legal advice.