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Thomas v. The Eighth Judicial District Court of State

Supreme Court of Nevada

September 14, 2017

LACY L. THOMAS, Petitioner,

         Original petition for extraordinary relief challenging a district court order denying a motion to dismiss an indictment, or alternatively, to order the district court to rule upon petitioner's motion to dismiss the indictment as deficient.

          Law Office of Franny Forsman and Franny A. Forsman; Daniel J. Albregts, Ltd., and Daniel J. Albregts, Las Vegas, for Petitioner

          Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Michael V. Staudaher and Ofelia L. Monje, Deputy District Attorneys, Clark County, for Real Party in Interest.



          STIGLICH, J.

         In Oregon v. Kennedy, 456 U.S. 667 (1982), the United States Supreme Court held that when a mistrial is declared at a defendant's request, the Double Jeopardy Clause of the United States Constitution bars reprosecution only in those instances where a defendant demonstrates that the prosecutor intentionally acted to "goad" the defendant to move for a mistrial. Nevada adopted the Kennedy standard in Melchor-Gloria v. State, 99 Nev. 174, 660 P.2d 109 (1983).

         In the years following Kennedy, a number of states have observed the difficulty of proving a prosecutor's specific intent to provoke a mistrial, and adopted broader standards. Having reviewed these decisions, this court agrees that the Kennedy standard is unduly narrow. Therefore, the court concludes that pursuant to the protections of Article 1, Section 8 of the Nevada Constitution, when a defendant requests a mistrial, jeopardy will also attach when a prosecutor intentionally proceeds in a course of egregious and improper conduct that causes prejudice to the defendant which cannot be cured by means short of a mistrial.


         In 2008, the State of Nevada filed an indictment against Lacy L. Thomas, the former chief executive officer of University Medical Center (UMC), charging five counts of theft and five counts of official misconduct. The charges related to contracts entered into between Thomas and five separate entities, which the State asserts were controlled by friends or associates of Thomas. The State contended that the terms of the five contracts were so grossly unfavorable to UMC that each contract represented an act of theft. One of these theft charges related to a contract negotiated by Thomas with Superior Consulting (ACS).

         Thomas initially proceeded to trial in 2010. On approximately the fifth day of trial, an attorney for ACS, in a conversation with Thomas's attorneys outside of court, referred to a binder of documents that he believed to be exculpatory with respect to ACS. ACS's attorney indicated he had previously provided these documents to the police detectives investigating ACS and Thomas. These documents had never been provided to Thomas.[2]

         On the basis of this late disclosure, Thomas moved for a mistrial. The district court granted the motion on the tenth day of trial. After a cursory review, the district court found that, at a minimum, the documents provided substantial material relevant to the cross-examination of several key witnesses. Given that 13 witnesses had already testified over nine days of trial, the district court determined that a mistrial was necessary.

         Following the mistrial, Thomas filed a motion to dismiss pursuant to the Double Jeopardy Clause, and a motion to dismiss the indictment for vagueness and failure to state a claim with sufficient specificity. The district court granted the second motion with respect to all counts, finding that the State had failed to identify its allegations against Thomas with sufficient specificity. The district court did not rule on Thomas's claims that the underlying statutes were unconstitutionally vague. On appeal, this court upheld the dismissal of the theft charges related to ACS, but found that the indictment provided Thomas with sufficient notice of the remaining charges. State v. Thomas, Docket No, 58833 (Order Affirming in Part, Reversing in Part and Remanding, Sept. 26, 2013).

         Upon remand to the district court, Thomas renewed his motion to dismiss for double jeopardy. He also filed a renewed motion regarding vagueness, arguing that the district court had not reached these claims in its prior order.

         Following an evidentiary hearing, the district court made a conclusive finding that the documents at issue were exculpatory in nature, as they tended to demonstrate that ACS had performed work pursuant to its contract with UMC. The district court also found that the documents had been provided to the district attorney's office by police detectives. Nonetheless, the court denied Thomas's double jeopardy motion, finding that the State had not intentionally withheld the documents from Thomas. The district court further noted that the documents withheld related to conduct by ACS. Because the theft charge was dismissed with respect to ACS, the district court determined that there was no "carryover" of double jeopardy to any remaining counts. The district court concluded that it lacked authority to consider Thomas's vagueness motion, as the parties had argued the issue of constitutional vagueness in the first appeal to this court.

         Thomas now petitions for extraordinary relief, asking this court to consider (1) whether double jeopardy bars reprosecution, (2) whether double jeopardy has attached to all charged counts, and (3) whether the district court had authority to rule on his renewed motion to dismiss for unconstitutional vagueness.

         We exercise our discretion to consider Thomas's petition

         The decision to consider a writ of mandamus lies within the sole discretion of this court. Smith v. Eighth Judicial Dist Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). "A writ of mandamus is available to compel the performance of an act that the law requires ... or to control an arbitrary or capricious exercise of discretion, " Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008); NRS 34.160. "An arbitrary or capricious exercise of discretion is one founded on prejudice or preference rather than on reason, or contrary to the evidence or established rules of law." State v. Eighth Judicial Dist. Court (Armstrong), 127 Nev. 927, 931-32, 267 P.3d 777, 780 (2011) (internal quotation marks omitted) (citation omitted), "[W]here there is [no] plain, speedy and adequate remedy in the ordinary course of law, " extraordinary relief may be available. NRS 34.170; Smith, 107 Nev. at 677, 818 P.2d at 851. "While an appeal generally constitutes an adequate and speedy remedy precluding writ relief, we have, nonetheless, exercised our discretion to intervene 'under circumstances of urgency or strong necessity, or when an important issue of law needs clarification and sound judicial economy and administration favor the granting of the petition."' Cote H. v. Eighth Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d 906, 908 (2008) (quoting State v. Second Judicial Dist. Court (Ducharm), 118 Nev. 609, 614, 55 P.3d 420, 423 (2002)).

         The double jeopardy issues presented by this case are important issues of law that require clarification. Further, given Thomas's argument that double jeopardy bars reprosecution, sound judicial economy supports consideration of these issues before a second jury trial. Therefore, we exercise our discretion to intervene in these circumstances by way of extraordinary writ.[3]

         Double jeopardy applies in this case

         Thomas first argues that his renewed prosecution by the State following the initial mistrial violates the Double Jeopardy Clause of the United States and Nevada Constitutions. This presents a question of law that this court reviews de novo. Grupo Famsa v. Eighth Judicial Dist. Court, 132 Nev., Adv. Op, 29, 371 P.3d 1048, 1050 (2016). However, this court "will not disturb [the] district court's findings of fact unless th[ose] [findings] are clearly erroneous and not based on substantial evidence." All Star Bail Bonds, Inc. v. Eighth Judicial Dist, Court, 130 Nev., Adv. Op. 45, 326 P.3d 1107, 1109 (2014) (internal quotation marks omitted).

         Generally, a state may not put a defendant in jeopardy twice for the same offense. U.S. Const, amend. V; Nev. Const, art. 1, § 8. As observed by the United States Supreme Court, a fundamental purpose of the bar against double jeopardy is to ensure that

the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88 (1957) Given the purpose of protecting against potential abuses by the state, in analyzing whether double jeopardy bars reprosecution after mistrial, "both the United States Supreme Court and this court have made a distinction between those cases in which the prosecution moves for mistrial and those in which the defense moves for mistrial" Taylor v State, 109 Nev 849, 861, 858 P.2d 843, 851 (1993) (Shearing, J, concurring in part and dissenting in part); see also Rudin v. State, 120 Nev. 121, 142-43, 86 P.3d 572, 586 (2004).

         Double jeopardy following the State's request for mistrial

         In cases where a mistrial is declared at the request of the prosecutor, the concern that the state may pursue a mistrial for its own advantage is strong. Therefore, in these instances, a court must examine (1) whether the declaration of a mistrial was dictated by "manifest necessity, " and (2) "in the presence of manifest necessity, whether the prosecutor is responsible for the circumstances which necessitated declaration of a mistrial." Hylton v. Second Judicial Dist. Court, 103 Nev. 418, 422-23, 743 P.2d 622, 625 (1987); see also Illinois v. Somerville, 410 U.S. 458, 463 (1973) (discussing the "manifest necessity" standard). The state may retry a defendant only after establishing both manifest necessity, and that the prosecutor was not "in some way responsible" for the mistrial. Hylton, 103 Nev. at 424, 743 P.2d at 626 (internal quotation marks omitted).

         Double Jeopardy following a defendant's request for mistrial

         Conversely, a defendant's motion for, or consent to, a mistrial generally removes any double jeopardy bar to reprosecution. Oregon v. Kennedy, 456 U.S. 667, 672 (1982). As noted by the United States Supreme Court in Kennedy, when "the defendant himself has elected to terminate the proceedings against him, the 'manifest necessity' standard has no place in the application of the Double Jeopardy Clause, " Id. Nonetheless, the Court delineated a narrow exception, holding that in those circumstances where the prosecutor intentionally provokes or "goad[s]" the defendant into moving for a mistrial, a defendant may raise double jeopardy as a defense to subsequent reprosecution. Id. at 673-74.

         This court adopted the Kennedy standard in Melchor-Gloria v. State, determining that to bar reprosecution under the Double Jeopardy Clause, a defendant must demonstrate intent by the state to provoke a mistrial. 99 Nev. 174, 178, 660 P.2d 109, 112 (1983). In that case, the court noted that "prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause." Id. This court again applied the Kennedy standard in Collier v. State, concluding that even though the prosecutor's remarks leading to mistrial were "egregious, " double jeopardy did not bar reprosecution because the defendant failed to prove that "the prosecution was disposed to seek a mistrial for its advantage." 103 Nev. 563, 566, 747 P.2d 225, 227 (1987).[4]

         Criticism of the Kennedy standard

         As observed by Justice Stevens in his concurring opinion in Kennedy, "[i]t is almost inconceivable that a defendant could prove that the prosecutor's deliberate misconduct was motivated by an intent to provoke a mistrial instead of an intent simply to prejudice the defendant." 456 U.S. at 688 (Stevens, J., concurring). Further, by limiting the protections of the Double Jeopardy Clause to the narrow circumstances delineated in Kennedy, the purposes of double jeopardy protection are not fully realized. The New Mexico Supreme Court noted that "[t]he object of constitutional double-jeopardy protections is not to punish disreputable prosecutors. The purpose, rather, is to protect the defendant's interests in having the prosecution completed by the original tribunal before whom the trial was commenced." State v. Breit, 930 P.2d 792, 800 (N.M. 1996). Notably, whether dismissal results from goading or other intentional misconduct, "the burden of a second trial is not attributable to the defendant's preference for a new trial over completing trial infected by an error. Rather, it results from the state's readiness, though perhaps not calculated intent, to force the defendant to such a choice." State v. Kennedy, 666 P.2d 1316, 1326 (Or. 1983).

         Given similar concerns, a number of courts have noted the difficulty in proving a prosecutor's specific intent to provoke a mistrial, and adopted approaches pursuant to their respective state constitutions that encompass other intentional or willful prosecutorial misconduct. See, e.g., People v. Batts, 68 P.3d 357, 360 (Cal. 2003) (observing that the Kennedy standard "has been widely viewed as unduly narrow and as not fully protective of the interest that the [D]ouble [J]eopardy [C]lause was intended to safeguard"); Breit, 930 P.2d at 803 (holding that double jeopardy attaches when an official intends to provoke a mistrial, or acts in "willful disregard" of the possibility of a mistrial); State v. Kennedy, 666 P.2d 1316, 1326 (Or. 1983) (extending double jeopardy protections to instances where the prosecutor "either intends or is indifferent to the resulting mistrial or reversal"); Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992) (concluding that in addition to the goading discussed in Kennedy, double jeopardy also prohibits retrial "when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial"); see also State v. Rogan, 984 P.2d 1231, 1249 (Haw. 1999).[5] Indeed, the only state to have attempted adoption of a broader double jeopardy standard and then reversed its approach is Texas. See Bauder v. Texas, 921 S.W.2d 696, 699 (Tex. Crim. App. 1996), overruled by Ex parte Lewis, 219 S.W.3d 335, 337 (Tex. Crim. App. 2007). We have reviewed the unique circumstances attendant to the Bauder and Lewis line of cases and find this authority unpersuasive.[6]

         The difficulties inherent in the Kennedy standard are discussed at length in Pool v. Superior Court, where the Arizona Supreme Court noted that under Kennedy, proving specific intent to provoke mistrial "must necessarily involve a subjective inquiry and is too difficult to determine." 677 P.2d 261, 271 (Ariz. 1984). Therefore, in addition to those instances where a prosecutor intentionally attempts to "goad" a defendant into moving for a mistrial, the court further concluded that double jeopardy would attach in those instances where the guarantees of Arizona's Double Jeopardy Clause "would be impaired by a prosecutor's intentional, improper conduct." Id.

         New standard for double jeopardy following a defendant's successful motion for mistrial

         Having reviewed Pool, as well as other state court decisions discussing the rigidity of the Kennedy standard, this court agrees that the Kennedy approach is unduly narrow.[7] As stated in Kennedy, intentional conduct by the state to "goad* the defendant into requesting a mistrial certainly triggers the protections of the Double Jeopardy Clause. However, for the reasons discussed above, the protections of Nevada's Double Jeopardy Clause are no less implicated when a prosecutor intentionally engages in egregious misconduct for the purposes of securing a conviction. Therefore, this court finds that in addition to the conduct described in Kennedy, the protections of Article 1, Section 8 of the Nevada Constitution also attach to those instances when a prosecutor intentionally proceeds in a course of egregious and improper conduct that causes prejudice to the defendant which cannot be cured by means short of a mistrial.

         In analyzing whether double jeopardy will attach under this approach, the court finds the test set forth in Pool to be instructive, and adopts it today. Accordingly, when evaluating a double jeopardy claim following a defendant's motion for a mistrial, courts should consider whether:

1. Mistrial is granted because of improper conduct or actions by the prosecutor; and
2. such conduct is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial. . .; and
3. the conduct causes prejudice to the defendant which cannot be cured by means short of a mistrial.[8]

Pool, 677 P.2d at 271-72; see also People v. Dawson, 397 N.W.2d 277');">397 N.W.2d 277, 282 (Mich. Ct. App. 1986) (adopting the Arizona test). With respect to the second prong of this test, we first note that the question of whether a prosecutor "knows" or "intends" his conduct to be improper and prejudicial should generally be measured by objective factors. As clarified by the court in Pool, these factors may include

the situation in which the prosecutor found himself, the evidence of actual knowledge and intent and any other factors which may give rise to an appropriate inference or conclusion. [A trial court] may also consider the prosecutor's own explanations of his "knowledge" and "intent" to the extent that such explanation can be given ...

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