Opinion
No. 68372
07-27-2016
MAXWELL FELCH MULLEN, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER LIFTING STAY AND REVERSING AND REMANDING
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of attempted murder with the use of a deadly weapon and assault with a deadly weapon. Eighth Judicial District Court, Clark County; Douglas Smith, Judge.
On February 26, 2016, we stayed the resolution of this appeal pending final disposition of a petition for a writ of certiorari filed with the United States Supreme Court that challenges the Nevada Supreme Court's decision in Barral v. State, 131 Nev. ___, 353 P.3d 1197 (2015), cert. denied, 2016 WL 309779 (U.S.Nev., June 28, 2016). On July 6, 2016, respondent informed this court that the United States Supreme Court denied the petition for a writ of certiorari in Barral on June 28, 2016. Accordingly, we lift the stay and proceed with resolution of this appeal.
Relying on Barral, appellant Maxwell Felch Mullen claims the district court committed structural error requiring reversal when it failed to comply with NRS 16.030(5) and administer the oath to the jury venire before voir dire. We agree.
The record clearly demonstrates that the district court did not comply with NRS 16.030(5) and administer the oath to the jury venire before voir dire. The Nevada Supreme Court has held that this is structural error and "is reversible per se." Id. at ___, 353 P.3d at 1200. Therefore, we
ORDER the judgment of conviction REVERSED AND REMAND this matter to the district court for a new trial.
Because we reverse Mullen's convictions on the grounds the district court committed structural error, we decline to address the remaining issues in this appeal. --------
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver cc: Hon. Douglas Smith, District Judge
William B. Terry, Chartered
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk