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Gathrite v. The Eighth Judicial District Court of State of Nevada

Supreme Court of Nevada

November 7, 2019

DEANDRE GATHRITE, Petitioner,
v.
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE DOUGLAS W. HERNDON, DISTRICT JUDGE, Respondents, and THE STATE OF NEVADA, Real Party in Interest.

         Original 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 prejudice.

         Petition granted in part and denied in part.

          Lobo Law PLLC and Adrian M. Lobo, Las Vegas,' for Petitioner.

          Aaron 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.

          Sarah K. Hawkins, Las Vegas, for Amicus Curiae Nevada Attorneys for Criminal Justice.

          BEFORE HARDESTY, STIGLICH and SILVER, JJ.

          OPINION

          STIGLICH, J.

         NRS 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.

         PROCEDURAL HISTORY

         Stemming 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.

         Gathrite 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.[1] 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.[2]

         DISCUSSION

         A writ 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.

         Gathrite 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 ...


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