Document Type

Case Summary

Publication Date

12-29-2005

Case Synopsis

A jury, selected from the third venire, convicted Gary Jerome Williams of battery with use of a deadly weapon causing substantial bodily harm on Robin Swope. On June 22, 2003, Williams and the victim (Robin Swope) engaged in an altercation after Swope saw Williams speaking to Swope’s thirteen-year-old daughter. At trial, most details of the altercation were highly disputed including, who was the initial aggressor, who produced a knife, and whether Swope used highly inflammatory language. In 1985, when he was seventeen, the State of Arkansas convicted Williams of aggravated battery, sentencing him to fifteen years confinement. The Nevada pre-sentencing report listed the Arkansas conviction as a juvenile offense. Williams moved to exclude the conviction under NRS 50.095(4).2 Without addressing whether his conviction at seventeen years of age was a juvenile or adult conviction, the district court denied Williams motion. During jury selection, Williams moved to dismiss the first venire3 because it included only one African-American. The State did not object and the court granted the motion. In chambers, the court contacted the jury commissioner twice to ensure that a second venire would be randomly selected. The court and counsel stated that the second venire contained “specific inclusion of African-Americans,”4 accomplished by inserting the African-Americans available for jury duty that day into the jury panel from which the venire would be selected. The State did not object to this method of selecting the venire. The second venire included six African-Americans, of which three were included in the first twelve jurors. The State then moved to dismiss the venire, stating that they did not feel it was randomly selected. Specifically, the State objected to the number of African-Americans included in the second venire, and requested a new venire. Williams objected and requested that the jury commissioner testify on the record as to the method used to select the second venire. Without obtaining such testimony, the court granted the State’s motion and dismissed the second venire. The third venire included three African-American members. Neither party objected to the venire; one African-American served on the final jury. Williams appealed arguing that the court erred in permitting use of his juvenile conviction to impeach him and that the court erred in dismissing the second venire because specific inclusion is permissible to avoid discrimination and that the State’s motion to dismiss the second venire resulted in a Batson violation. The Nevada Supreme Court first determined that Williams failed to show that the selection process for the first venire violated any constitutional rights. Therefore, without reaching the question of whether specific inclusion can be used once a constitutional violation has occurred in jury selection, the Court held that specific inclusion is not permissible if there is no constitutional violation. Additionally, because the district court made no record as to how the second venire was constituted, there was no evidence to support dismissing the second venire. However, since the remedy for a non-randomly constituted venire is to grant a new venire, Williams had already received his remedy for the court errors in dismissing the first and second venires. The Court did, however, determine that a Batson violation occurred when the State requested the second venire be dismissed. The Court relied on Miller-El v. Dretke6 in determining that challenging entire venires so as to obtain fewer African-Americans in the venire is discriminatory and implicates Batson. After performing the Batson analysis, the Court stated that because the State did not object to specific inclusion as lacking randomness during the chambers meeting, but only objected to the venire upon learning of its racial make-up, the State had not and could not offer any race-neutral explanation for wanting the second venire dismissed. The Court reasoned that while the usual remedy to a Batsonviolation is a new venire, in this case that remedy would not be sufficient. The third venire, granted by the district court, effectively allowed the State to discriminate against the target class. Therefore the Court held that only a new trial would remedy the Batson violation. Lastly, the Court found that the issue of guilt was closely contested, and that the State furnished no evidence that Williams’ Arkansas conviction was not a juvenile conviction. Therefore, the Court held that the district court error in admitting the conviction was not harmless and reversed and remanded for a new trial.

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