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State v. Eighth Judicial District Court of State

Supreme Court of Nevada, En Banc

March 1, 2018


         Original petition for a writ of mandamus challenging a district court order denying a pretrial motion to admit testimonial evidence in a criminal prosecution.

          Adam Paul Laxait, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Dena I. Rinetti and Ryan J. MacDonald, Deputy District Attorneys, Clark County, for Petitioner.

          Philip J. Kohn, Public Defender, and Mike Feliciano, Deputy Public Defender, Clark County, for Real Party in Interest.


          STIGLICH, J.

         At issue in this petition is a defendant's Sixth Amendment right to confront a witness who testifies against him. In Chavez v. State, we held that when a witness testifies against a defendant at a preliminary hearing but subsequently becomes unavailable to testify at trial, the witness's prior testimony is admissible at trial so long as the defendant had "an adequate opportunity" to cross-examine the witness at the preliminary hearing. 125 Nev. 328, 337, 213 P.3d 476, 482 (2009). The question presented in this petition is whether a defendant had "an adequate opportunity" to cross-examine a witness when, immediately after the State's direct examination at the preliminary hearing, the defendant waived his right to continue the preliminary hearing. We answer in the affirmative because the Confrontation Clause guarantees an opportunity to cross-examine; it does not bestow upon defendants a sword to strike adverse testimony that the defendant declined to contest, FACTS AND PROCEDURAL HISTORY

         Real party in interest Jeffrey Baker stands accused of one count of sexually motivated coercion and eight counts of lewdness with a child under the age of 14. At the preliminary hearing, Baker's cousin, C.J., testified in detail regarding two instances in which Baker attempted to engage her in sexual activity. The first instance occurred when C.J, was 11 years old; the second when she was 13. Baker was well into his 20s on both occasions.

         During the preliminary hearing, when C.J. finished testifying, the justice court said, "All right. Cross." Instead of beginning cross-examination, Baker's attorney asked for the court's indulgence as he conferred off the record with the prosecutor. He then announced: "Today pursuant to negotiations, Mr. Baker will unconditionally waive his preliminary hearing. In district court he'll plead guilty to one count of attempt[ed] lewdness with a minor." After canvassing Baker, the justice court accepted his unconditional waiver of the remainder of the preliminary hearing.

         At the district court arraignment two weeks later, Baker presented his signed guilty plea agreement. The court questioned Baker as to whether he understood the consequences of pleading guilty; he indicated that he did. Then the court asked if Baker was pleading guilty because he in fact attempted to commit a lewd act upon C.J. Baker equivocated before answering in the negative: "It's not true." The court rejected Baker's guilty plea and ordered the State to prepare an amended information reinstating the original charges.

         One week later, C.J. committed suicide. The State moved to admit at trial the transcript of C.J.'s testimony at the preliminary hearing. The district court denied the motion, finding that Baker did not have an adequate opportunity to cross-examine C.J. at the preliminary hearing. The State challenges that order in the present writ petition.


         We exercise our discretion to consider the State's petition

         "[B]ecause a writ of mandamus is an extraordinary remedy, the decision to entertain a petition for the writ lies within our discretion." Gonzalez v. Eighth Judicial Dist. Court, 129 Nev. 215, 217, 298 P.3d 448, 449-50 (2013). "A writ of mandamus is available to compel the performance of an act that the law requires ... or to control a manifest abuse or arbitrary or capricious exercise of discretion." State v. Eighth Judicial Dist. Court (Armstrong), 127 Nev. 927, 931, 267 P.3d 777, 779 (2011). The writ is appropriate when "there is not a plain, speedy and adequate remedy in the ordinary course of law." NRS 34.170. Because the State cannot appeal a final judgment in a criminal case, see NRS 177.015(3), the State has no remedy in law to challenge the district court's evidentiary ruling. See Armstrong, 127 Nev. at 931, 267 P.3d at 780. We therefore exercise our discretion to consider the State's petition. The Confrontation Clause does not prohibit the admission of C.J.'s testimony

         The State argues that the district court arbitrarily and capriciously exercised its discretion when it denied the State's motion to admit C.J.'s testimony from the preliminary hearing. For the reasons set forth below, we agree.

         The Confrontation Clause of the Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." U.S. Const, amend. VI. In accordance with that right, prior testimony from a witness unavailable at trial is admissible only if the defendant had "a prior ...

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