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State v. Beaudion

Supreme Court of Nevada

July 2, 2015

THE STATE OF NEVADA, Appellant,
v.
EARL WAYNE BEAUDION, Respondent

Appeal from an order dismissing an indictment. Eighth Judicial District Court, Clark County; Joe Hardy, Judge. [1]

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens and Jonathan VanBoskerck, Chief Deputy District Attorneys, and Jeffrey S. Rogan, Deputy District Attorney, Clark County, for Appellant.

Philip Kohn, Public Defender, and Jeffrey M. Banks and Howard Brooks, Deputy Public Defenders, Clark County, for Respondent.

BEFORE SAITTA, GIBBONS and PICKERING, JJ. We concur: Saitta, J., Gibbons, J.

OPINION

Page 40

PICKERING, J.:

NRS 172.241 affords the target of a grand jury investigation the opportunity to testify before them unless, after holding " a closed hearing on the matter," the district court determines that adequate cause exists to withhold target notice. In this case, the district judge supervising the grand jury entered an order authorizing the State to withhold target notice based on the district attorney's written request and supporting affidavit, without conducting a face-to-face oral hearing. We must decide whether this procedure satisfies NRS 172.241's " closed hearing" requirement. We hold that it does and therefore reverse the order dismissing the indictment that was entered by the district judge to whom the criminal case was assigned after the indictment was returned.

I.

A.

NRS 172.241(1) provides: " A person whose indictment the district attorney intends

Page 41

to seek ... may testify before the grand jury if the person requests to do so and executes a valid waiver in writing of the person's constitutional privilege against self-incrimination." To facilitate exercise of this right, NRS 172.241(2) requires the district attorney to give the target reasonable notice, sometimes called Marcum notice,[2] of the grand jury proceeding, " unless the court determines that adequate cause exists to withhold notice." Addressing the circumstances in which target notice may be withheld, NRS 172.241(3) specifies that " [t]he district attorney may apply to the court for a determination that adequate cause exists to withhold notice, if the district attorney ... [d]etermines" that the target poses a flight risk, cannot be located or, as relevant here, " that the notice may endanger the life or property of other persons."

If a district attorney applies to the court for a determination that adequate cause exists to withhold notice, the court shall hold a closed hearing on the matter. Upon a finding of adequate ...

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