petition for a writ of mandamus or prohibition challenging a
district court order denying a pretrial petition for a writ
of habeas corpus and a motion to dismiss an indictment with
granted in part and denied in part.
Law PLLC and Adrian M. Lobo, Las Vegas,' for Petitioner.
D. Ford, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, and Alexander G. Chen, Chief Deputy
District Attorney, Clark County, for Real Party in Interest.
K. Hawkins, Las Vegas, for Amicus Curiae Nevada Attorneys for
HARDESTY, STIGLICH and SILVER, JJ.
172.135(2) provides that only "legal evidence" may
be presented to the grand jury. The primary question raised
in this original proceeding is whether evidence that has been
suppressed in justice court proceedings on a felony complaint
is "legal evidence" that may be presented to the
grand jury in support of an indictment. We conclude that such
i evidence is not "legal evidence" for purposes of
NRS 172.135(2) and' therefore cannot be presented to a
grand jury so long as the justice court's suppression
ruling has not been overturned before the evidence is
presented to the grand jury. Here, because the justice court
suppressed statements and evidence about the gun and because
the State did not challenge the justice court's
suppression ruling before going to the grand jury and did not
present any other legal evidence to support the indictment,
we conclude that the district court erroneously denied the
defendant's pretrial petition for a writ of habeas
corpus. We therefore grant the petition for a writ of
mandamus in part.
from petitioner Deandre Gathrite's alleged involvement in
a deadly shooting, the State filed a criminal complaint in
the justice court charging Gathrite with murder with use of a
deadly weapon and possession of a firearm by a prohibited
person. Before the preliminary hearing, Gathrite moved to
suppress his statements to the police and the gun discovered
as a result of his statements, alleging that the police had
violated Miranda v. Arizona, 384 U.S. 436 (1966),
and his Fifth Amendment privilege against self-incrimination.
The justice court granted the motion and ordered the
statements and the gun suppressed. The State did not ask the
justice court to reconsider its decision or appeal the
justice court's decision to the district court. Instead,
the State voluntarily dismissed the criminal complaint
without prejudice and went to the grand jury solely on a
charge of possession of a firearm by a prohibited person,
presenting the evidence that the justice court had
suppressed. The grand jury indicted Gathrite on one count of
possession of a firearm by a prohibited person.
filed a pretrial petition for a writ of habeas corpus,
challenging the legal sufficiency of the evidence supporting
the indictment. Gathrite primarily contended that the State
erroneously presented evidence to the grand jury that had
been suppressed in the justice court proceedings and did not
present the grand jury with the suppression
ruling. In deciding the petition, the district
court reviewed the justice court's suppression ruling.
After conducting an evidentiary hearing and determining that
the evidence was not obtained in violation of Gathrite's
constitutional rights, the district court denied the
petition. Gathrite now asks this court to intervene and issue
a writ of mandamus.
of mandamus is available to compel the performance of an act
that the law requires as a duty arising from an office,
trust, or station, or to control a manifest abuse or an
arbitrary or capricious exercise of discretion. NRS 34.160;
State v. Eighth Judicial Dist Court (Armstrong), 127
Nev. 927, 931, 267 P.3d 777, 779 (2011); Round Hill Gen.
Improvement Dist. v. Newman, 97 Nev. 601, 603-04, 637
P.2d 534, 536 (1981). Issuance of an extraordinary writ is
purely discretionary. State, Office of the Attorney Gen.
v. Justice Court of Las Vegas Twp., 133 Nev. 78, 80, 392
P.3d 170, 172 (2017). Although we ordinarily will not
exercise that discretion to "review; pretrial challenges
to the sufficiency of an indictment," we have made
exceptions when presented with a purely legal question.
Ostman v. Eighth Judicial Dist. Court, 107 Nev. 563,
565, 816 P.2d 458, 459-60 (1991), This is such a case. We
therefore elect to consider the petition for a writ of
mandamus on its merits.
argues that insufficient legal evidence was presented to the
grand jury because the State only presented evidence that had
been suppressed by the justice court in earlier proceedings
on a criminal complaint for the same felony offense. The
Legislature has directed that "the grand jury can
receive none but legal evidence, and the best evidence in
degree, to the exclusion of hearsay or secondary
evidence." NRS 172.135(2). In this respect, our
Legislature has provided greater evidentiary constraints in
grand jury proceedings than are provided in the federal
system. See Costello v. United States,350 U.S. 359,
362 (1956) ("[N] either the Fifth Amendment nor any
other constitutional provision ...