was "based on original discovery, and discussions with witnesses in the
case." But as the preliminary hearing proceeded, the prosecutor sought to
admit a toxicology report that had not been included with the original
discovery. The toxicology report provided the only evidence that petitioner
had been under the influence of marijuana.
Petitioner objected to the toxicology report. He asserted that
the prosecutor was required to provide a copy of the report five days before
the preliminary hearing, and he asked that the report not be admitted into
evidence. The prosecutor acknowledged that it was probably true that
petitioner did not have discovery of the report, but argued that petitioner
was aware of the additional report and that the complaint would be
amended to reflect the information in the report, and moved to admit the
report pursuant to NRS 50.320 (an evidentiary rule). The justice court
asked petitioner for the number of the statute that governed the
timeliness of discovery for preliminary hearings and provided the remedy
for untimely discovery. But petitioner did not know the statute number
and ultimately the justice court determined that NRS 50.320 and NRS
50.325 were dispositive of the issue and overruled petitioner's objection.
Petitioner challenged the justice court's ruling in a pretrial
petition for a writ of habeas corpus filed in the district court, seeking
dismissal of the DUI charge. The district court heard argument, found
that petitioner "did not specifically identify the statute NRS 171.1965 for
the magistrate so the magistrate could have taken the options that are
provided in that statute when there is a late identification of discovery,"
and denied the habeas petition. This mandamus petition followed.
Petitioner argues that the district court abused its discretion
and violated due process guarantees by denying his habeas petition
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because the prosecutor lied about having no additional discovery when he
filed the amended complaint, the prosecutor violated NRS 171.1965(1) by
failing to provide discovery of the toxicology report at least five days prior
to the preliminary hearing, and the district court's reason for denying the
habeas petition has no basis in law.
Availability of mandamus relief
"A writ of mandamus is an extraordinary remedy, and
therefore, the decision to entertain the petition lies within our discretion.
Such a writ is available only to compel the performance of an act which
the law especially enjoins as a duty resulting from an office, trust or
station." Winkle v. Foster, 127 Nev. „ 269 P.3d 898, 899 (2011)
(internal citation and quotation marks omitted). "[It] will not lie to control
discretionary action, unless discretion is manifestly abused or exercised
arbitrarily or capriciously." Round Hill Gen. Improvement Dist. v.
Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981) (internal citation
omitted); see also State v. Eighth Judicial Dist. Court (Armstrong), 127
Nev. 267 P.3d 777, 780 (2011) (defining manifest abuse and
arbitrary or capricious exercise of discretion in context of mandamus).
And it will not issue if the petitioner has a plain, speedy, and adequate
remedy in the ordinary course of the law. NRS 34.170. We have
recognized that "[w]hether a future appeal is sufficiently adequate and
speedy necessarily turns on the underlying proceedings' status, the types
of issues raised in the writ petition, and whether a future appeal will
permit this court to meaningfully review the issues presented," D.R.
Horton, Inc. v. Eighth Judicial Dist. Court, 123 Nev. 468, 474-75, 168 P.3d
731, 736 (2007), and "[w]here the circumstances establish urgency or
strong necessity, or an important issue of law requires clarification and
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public policy is served by this court's exercise of its original jurisdiction,
this court may exercise its discretion to consider a petition for
extraordinary relief," Schuster v. Eighth Judicial Dist. Court, 123 Nev.
187, 190, 160 P.3d 873, 875 (2007). We conclude that a future appeal
would not provide a meaningful review of petitioner's issues and a strong
necessity exists for our consideration of his petition.
Discussion
The preliminary hearing transcript plainly reveals that the
prosecutor misrepresented his actions by maintaining that the amended
complaint was not based on new discovery. At worst, the prosecutor's
behavior was intentional, and, at a minimum, it was reckless. Prosecutors
have a duty to conduct themselves with honesty, candor, and fairness. See
RPC 3.3; RPC 3.4; RPC 3.8. We conclude that the prosecutor's conduct
breached that duty and requires remedial action.
The preliminary hearing transcript also plainly reveals that
petitioner's contemporaneous objection adequately placed the justice court
on notice that the prosecutor may have violated a discovery statute. A
justice court should be familiar with the statutes that govern conduct
within its jurisdiction. NRS 171.1965 governs discovery prior to a
preliminary hearing. It requires the prosecutor to provide discovery "not
less than 5 judicial days before a preliminary examination," and it
furnishes a limited remedy should the prosecutor fail to provide timely
discovery. NRS 171.1965(1), (2). Had the justice court been familiar with
the discovery statute, it could have properly exercised its jurisdiction by
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making findings as to whether petitioner was prejudiced by the discovery
violation and postponement of the preliminary hearing was necessary.'
The habeas hearing transcript plainly reveals that the district
court erroneously believed that the petitioner's objection was inadequate
because it failed to cite the pertinent statute. A party who objects to the
admission of evidence must make "a timely objection or motion to strike
. . . stating the specific ground of objection." NRS 47.040(1)(a). There is no
requirement that the party cite to the statute that supports its objection.
As stated above, petitioner's objection adequately placed the justice court
on notice that the prosecutor may have violated a discovery statute.
We conclude that petitioner is entitled to extraordinary relief
from the prosecutor's misconduct. Accordingly, we
ORDER the petition GRANTED IN PART AND DIRECT THE
CLERK OF THIS COURT TO ISSUE A WRIT OF MANDAMUS
instructing the district court to dismiss the amendments made to the
original charging document; specifically, the "and/or a controlled
substance and/or prohibited substance in blood" language that was added
to count 1 and all of count 2.
4 -4-A LEgAtti
Hardesty
J.
'Although the statute contemplates a limited remedy for a discovery
violation, we note that a court would be justified in using its inherent
authority to sanction counsel or refer him to the State Bar based on the
kind of conduct reflected in this case. See SCR 39; Young v. Ninth
Judicial Dist. Court, 107 Nev. 642, 647, 818 P.2d 844, 847 (1991).
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cc: Hon. Elizabeth Goff Gonzalez, District Judge
Hon. Joseph Bonaventure, Justice of the Peace
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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