State v. Second Judicial District Court of the State of Nevada

Young, J.,

dissenting,

with whom Mowbray, C. J., joins:

Respectfully, I dissent. In my opinion, granting relief to the petitioner may well serve the cause of justice in this case, but will almost certainly create endless problems in the future for a court already overburdened with an evergrowing criminal caseload. It is a clear message to prosecutors that we will entertain petitions for extraordinary relief during the course of proceedings if a prosecutor is dissatisfied with the decision by the trial judge on a proposed instruction.

On Friday, November 27, 1992, the trial judge stated that he would give the contested instruction. On Tuesday, December 1, 1992, a petition was filed for extraordinary relief in our court.1 The respondents were not given an opportunity to reply to the petition. I was first advised of the petition by staff on Wednesday, December 2, 1992. An opinion granting the petition for writ of prohibition was signed December 3, 1992. It was a commendable demonstration of speed in the processing of the request for relief.

However, the process is fraught with danger. In most matters, the court receives input from both parties — and sometimes hears oral arguments. This did not occur here. Staff prepared the opinion granting petition for writ of prohibition which was briefly considered by the court and signed.

Staff reached the conclusion that the proposed instruction was erroneous as a matter of law notwithstanding the fact that it had been approved by a respected trial judge and considered at some length in the trial court.

While justice may have been served in the instant case, I am *1036fearful that the granting of this writ will be an invitation to prosecutors throughout the state to petition for extraordinary relief when they perceive that error has been committed. In this case, it involves an instruction. However, the principle seems to have a much broader application. If error occurs during voir dire of the jury, or in a motion in limine, or in the admission or refusal to admit evidence, or elsewhere, can the prosecutor be denied relief?

In many cases, the error may not be as clear as the majority believes it to be in this case. Will the respondent be given an opportunity to file a brief in opposition? Will it be necessary to have a conference, or oral argument? If so, the disruption of the trial may be wasteful of judicial resources at both the trial and appellate level. Our court runs the risk of being transformed into a special appellate tribunal for prosecutors only. The majority states, “[T]he interest of speedy and efficient criminal proceedings must give way to the state’s superior interest in insuring that the criminal process is fair and punishes the guilty.” On the other hand, what about the interests of the defendant? Is not the state also interested in “insuring that the criminal process is fair” for the defendant and permits the innocent to be acquitted — and freed from constraint? While petitioner argues that the state now has no right of appeal in the event of acquittal and should be given the opportunity to prevent error, it would seem that the defendant is entitled to no less speedy consideration — and perhaps vindication. If he must wait until a jury verdict and completion of an appellate process that may go on for a year — -it seems hardly fair that he would be confined during this period.

If there is a problem here insofar as the state is concerned, I submit this matter should be addressed by the legislature. Presumably, it could provide that the state would have the right of appeal after completion of the trial resulting in acquittal to secure what would in effect be an advisory opinion and establish the law for future cases.

A similar problem has heretofore been addressed by this court in civil matters. For years litigants had used a petition for special writ to challenge orders in civil matters denying motions to dismiss and motions for summary judgment. Our court wisely said in State ex rel. Dep’t Transp. v. Thompson, 99 Nev. 358, 362, 662 P.2d 1338, 1340 (1983),

We conclude . . . that judicial economy and sound judicial administration militate against the utilization of mandamus petitions to review orders denying motions to dismiss and motions for summary judgment. Therefore, although we reaffirm the principle that we have the power to entertain *1037such petitions ... in the exercise of our discretion we will no longer utilize that power.

In the majority opinion, we are opening a door in criminal matters that some nine years ago was closed for civil proceedings. This seems improvident at a time when we have more criminal cases than civil and when it is unlikely that we will receive any relief from an intermediate appellate court for many years to come. I respectfully submit that our system of justice would not perish if the petition were denied in the instant case, and we continue to process criminal cases as we have for many years. For these reasons, I respectfully dissent.

This petition probably had its origin in comments by this court in a criminal proceeding where we stated that if a prosecutor believed that the trial judge was going to give an improper instruction, the prosecutor “could have timely asked the district court judge for a brief continuance of the trial to enable the district attorney to seek relief by way of an extraordinary writ addressed to this court.” Ohlson v. Holmes, Docket No. 23229 (Order Denying Petition for Writ of Mandamus, June 24, 1992, at 4).