i311 Nevi, Advance Opinion 13
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
MATTHEW LEON MOULTRIE, No. 65390
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
DEC 2 4.2015
TRACE K. LINDEMAN
CLERK OF SUPREME COURT
BY
DEPUTY CLERK _
Appeal from a judgment of conviction, pursuant to a
conditional guilty plea, of possession of a controlled substance with intent
to sell, a category D felony under NRS 453.337(2)(a). Fifth Judicial
District Court, Esmeralda County; Robert W. Lane, Judge.
Affirmed.
Law Offices of Chris Arabia, PC, and Christopher R. Arabia, Las Vegas,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; and Robert E.
Glennen, III, District Attorney, Esmeralda County,
for Respondent.
BEFORE GIBBONS C.J TAO and SILVER, JJ.
OPINION
By the Court, GIBBONS, C.J.:
In this appeal, we address whether a district court abused its
discretion by allowing the State to file an information by affidavit more
than 15 days after the preliminary examination concluded where the
defendant was discharged but was not prejudiced by the delay.
Additionally, we define the term "egregious error" and address whether a
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justice court commits egregious error if the error results in the dismissal
of a charge or discharge of a criminal defendant for lack of probable cause.
STATEMENT OF THE FACTS
Appellant Matthew Moultrie was a passenger in a car stopped
for a traffic violation by Deputy Sheriff Matthew Kirkland. The driver
orally consented to a search of the car. Kirkland discovered a backpack on
the seat or floor behind Moultrie that contained( , a glass pipe,
and a plastic bag holding a crystalline substance. Moultrie claimed the
items belonged to someone else. Kirkland arrested Moultrie for drug
possession because Kirkland believed the substance was
methamphetamine and it belonged to Moultrie. Moultrie admitted
ownership of the items after being advised of his Mirandal rights and
admitted he planned to sell the drugs. The substance tested
presumptively positive for amphetamine.
The Justice Court of Esmeralda Township held a preliminary
examination, and the State called Kirkland and another deputy as
witnesses. Moultrie objected on hearsay grounds to Kirkland's testimony
that the driver provided oral consent for a search of the car, and the
justice court sustained the objection. Moultrie then objected to any
testimony about evidence seized during the search as fruit of the
poisonous tree. The justice court briefly inquired into whether there was
consent to search the backpack, but no testimony was given and no ruling
was made. The justice court allowed the hearing to proceed but ultimately
excluded the testimony describing the evidence seized during the search.
1Miranda v. Arizona, 384 U.S. 436 (1966).
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Possession of a controlled substance with intent to sell is a
category D felony under NRS 453.337(2)(a). It is a category C felony if the
defendant has a prior conviction and is convicted under NRS
453.337(2)(b). The State charged Moultrie in the criminal complaint with
the category C felony but did not allege a prior conviction in the complaint
or produce any evidence at the preliminary examination demonstrating
that a prior conviction existed. During its rebuttal closing argument, the
State moved to amend the complaint to charge Moultrie under NR,S
453.337(2)(a) in order to conform to the evidence produced. The justice
court denied the State's motion. The justice court concluded that the State
did not meet its burden of proof for the category C felony and discharged
Moultrie.
The State moved for leave to file an information by affidavit in
the district court and included a proposed information charging Moultrie
with the category D felony, asserting egregious error by the justice court.
The State filed the motion 63 days after the justice court discharged
Moultrie. Moultrie opposed the State's motion, claiming the motion was
untimely, was filed without good cause for the delay, and was prejudicial.
Moultrie also responded that the justice court did not commit egregious
error; therefore, the State had no basis to file an information by affidavit.
The district court granted the State's motion 34 days after it
was filed, concluding the State presented sufficient evidence during the
preliminary examination to support a finding of probable cause for the
category D felony. Additionally, the district court concluded that (1) the
State's delay in filing the motion did not prejudice Moultrie, (2) the justice
court committed egregious error by sustaining Moultrie's hearsay
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objection, and (3) the justice court committed egregious error by denying
the State's motion to amend the complaint.
Moultrie pleaded guilty as charged but reserved the right to
appeal the district court's order granting the State's motion to file an
information. See NRS 174.035(3). The district court imposed a prison
sentence of 19 to 48 months but suspended it and placed Moultrie on
probation for five years. This appeal follows.
ANALYSIS
Timeliness of the motion
Moultrie first contends that the district court erred by
permitting the State to file an information by affidavit when the State
filed its motion for leave of court 63 days after he was discharged by the
justice court. We disagree.
It is within the discretion of the district court to grant a
motion to file an information by affidavit. See NRS 173.035(2). To
establish that the district court abused its discretion by granting a motion
to file an information by affidavit more than 15 days after the preliminary
examination, 2 the defendant must demonstrate actual prejudice resulting
2Although not argued below or on appeal, we note that applying the
15-day time limit to the filing of an information by affidavit pursuant to
NRS 173.035(2) is problematic. Pursuant to NRS 173.035(3), an
information must be filed within 15 days of the holding of a preliminary
examination. If a defendant is held to answer, the State exercises an
executive or administrative function by filing the information in district
court. See NRS 173.045. The 15-day limitation is a logical restriction in
the case of a defendant being held to answer because filing an information
simply involves retitling the complaint as an information and endorsing
the names of witnesses. Id. If a defendant is discharged, however, an
information by affidavit may only be filed if the State first obtains leave of
court, a judicial decision, without a statutory- or rule-imposed deadline on
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from the untimely filing. See, e.g., Berry v. Sheriff Clark Cnty., 93 Nev.
557, 558-59, 571 P.2d 109, 110 (1977) (holding that where no prejudice
was demonstrated, the district court did not abuse its discretion by
denying a motion to dismiss an information that was filed more than 15
days after the preliminary examination); Thompson v. State, 86 Nev. 682,
683, 475 P.2d 96, 97 (1970) (same). The prejudice alleged cannot be
hypothetical or speculative. See Wyman v. State, 125 Nev. 592, 601, 217
P.3d 572, 579 (2009) (rejecting claim of prejudice resulting from pre-
indictment delay where the defendant failed "to make a particularized
showing of actual, nonspeculative prejudice resulting from the delay");
State v. Autry, 103 Nev. 552, 555-56, 746 P.2d 637, 639-40 (1987)
(reversing district court order granting a pretrial petition for a writ of
habeas corpus where defendant's claims of prejudice were speculative and
premature).
Here, the State did not file the motion for leave of court to file
an information by affidavit until 63 days after the preliminary
examination. 3 Moultrie asserted he was prejudiced by the delay because
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the court. See NRS 173.035(2). The State is thus put in an untenable
position because it cannot comply with the time requirement in NRS
173.035(3) without judicial sanction, in contrast to when a defendant is
held to answer. Therefore, the only deadline the State could meet would
be with regard to its motion for leave to file the information by affidavit.
Cf. NRS 34.700 (defendant may challenge the commitment to district court
by filing a pretrial petition for writ of habeas corpus within 21 days of the
first appearance in district court).
3 The district court granted the motion for leave to file the
information by affidavit 97 days after the preliminary examination was
conducted; the information was filed 9 days after that order was signed.
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he did not confer with counsel or pursue any defense as he did not know
he could be recharged. He also claimed that the effectiveness of his
defense was diminished because he did not live in Esmeralda County. The
district court concluded that Moultrie's allegations of prejudice were
speculative and did not warrant denial of the motion.
Although Moultrie asserted he did not confer with counsel or
pursue any defense because he was unaware that he could be recharged,
Moultrie failed to allege how this lack of preparation prejudiced his
defense, or alternatively, how conferring with counsel or establishing a
defense during the delay would have benefited his defense. Thus, we
conclude the district court did not abuse its discretion by finding that
Moultrie failed to demonstrate actual prejudice resulting from the delay
and rejecting Moultrie's request to deny the motion based on the delay.
See id. (concluding no actual prejudice was demonstrated where defendant
alleged delay rendered potential witnesses unavailable but did not allege
how the testimony of the absent witnesses would have benefited his
defense). Moreover, the fact that Moultrie did not live in Esmeralda
County during the delay does not demonstrate actual prejudice to
Moultrie's defense. 4 See id.
4 To the extent Moultrie asserts that the district court erred by not
addressing the State's failure to assert good cause for the delay in filing
the motion to file an information by affidavit, Moultrie fails to support the
claim with relevant authority and cogent argument; therefore, we decline
to address this claim. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d -3,
6 (1987). Nitiler:111.61,, ) rtrti(s 5'hou.LA revove., 66 errit-ij -Ay na.1
Tyve,zecil rj.s. ,See ORS Vol, 035 6Fetvictini Crirnikul prIter ciikre., 6-1-thief e6' " 6411
in i*Dejure. ) faftrne56 In tnini 64.rd10 n
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Egregious error
Moultrie asserts that the district court erred by allowing the
State to file an information by affidavit based on a finding that the justice
court committed egregious error.
We review a district court's determination of egregious error
de novo. See Martin v. Sheriff, Clark Cnty., 88 Nev. 303, 306, 496 P.2d
754, 755 (1972) (applying de novo review to determine whether the
magistrate committed egregious error). An information by affidavit may
be filed to correct a magistrate's egregious error but not to correct
deficiencies in evidence at the preliminary examination. State v. Sixth
Judicial Dist. Court, 114 Nev. 739, 741-42, 964 P.2d 48, 49 (1998).
Although the Nevada Supreme Court has applied egregious error in
discussing the propriety of filing an information by affidavit on numerous
occasions, it has not defined the term. We take this opportunity to review
its usage and to clarify what constitutes egregious error.
The Nevada Supreme Court first addressed the purpose of
NRS 173.035(2) when it held that the statute "provides a safety valve
against an arbitrary or mistaken decision of the magistrate." Maes V.
Sheriff, Clark Cnty., 86 Nev. 317, 319, 468 P.2d 332, 333 (1970), holding
limited in part on other grounds by Sheriff, Washoe Cnty. v. Marcus, 116
Nev. 188, 995 P.2d 1016 (2000). In Maes, however, the court did not
analyze the safeguard provision because no preliminary examination
occurred. In Martin, the court held, because there was sufficient evidence
to support the rape charge, the magistrate clearly erred by dismissing the
charge, and the district attorney's only course of action was to refile the
rape charge under NRS 173.035(2) and NRS 178.562(2). 88 Nev. at 306,
496 P.2d at 755.
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In Cranford v. Smart, the Nevada Supreme Court first used
the term "egregious error" in describing the safeguard provided by NRS
173.035(2) but did not define the term. 92 Nev. 89, 91, 545 P.2d 1162,
1163 (1976) ("[NRS 173.035(2)] contemplates a safeguard against
egregious error by a magistrate in determining probable cause, not a
device to be used by a prosecutor to satisfy deficiencies in evidence at a
preliminary examination, through affidavit."). In Feole v. State, the court
relied on its usage of "egregious error" in Cranford to conclude a justice
court did not commit egregious error when it discharged a defendant
based on insufficient evidence to support a finding of probable cause to
support the charges. 113 Nev. 628, 631, 939 P.2d 1061, 1063 (1997),
overruled on other grounds by State v. Sixth Judicial Dist. Court, 114 Nev.
739, 964 P.2d 48 (1998); see also Murphy v. State, 110 Nev. 194, 198, 871
P.2d 916, 918 (1994) (relying on the use of "egregious error" from Cranford
to determine a justice court did not commit egregious error when it
I
discharged a criminal defendant and the State had "u tterly failed to
produce evidence to show probable cause existed"), overruled on other
grounds by State v. Sixth Judicial Dist. Court, 114 Nev. 739, 964 P.2d 48
(1998).
The Nevada Supreme Court has thus applied the term
"egregious error" in Cranford and its progeny when a charge was
erroneously dismissed or a defendant was erroneously discharged based
on a magistrate's error. Further, the error described in those cases is
plain error, although that label is not used. See Patterson v. State, 111
Nev. 1525, 1530, 907 P.2d 984, 987 (1995) ("An error is plain if the error is
so unmistakable that it reveals itself by a casual inspection of the record."
(internal quotation omitted)). Thus, we conclude a magistrate's error is
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"egregious error" when the magistrate commits plain error that affects the
outcome of the proceedings. See Green v. State, 119 Nev. 542, 545, 80 P.3d
93, 95 (2003) (stating that a court conducts plain error review by
determining "whether there was 'error,' whether the error was 'plain' or
clear, and whether the error affected the defendant's substantial rights"
(citing United States v. Olano, 507 U.S. 725, 734 (1993) (clarifying that an
error affects a party's substantial rights if it "affected the outcome of the
district court proceedings"))).
Hearsay objection and exclusion of evidence
During the preliminary examination, Moultrie objected to
Kirkland's testimony regarding the driver's consent to search as hearsay.
Moultrie also objected to any evidence that followed the consent as fruit of
the poisonous tree. The justice court sustained both objections and did not
consider the evidence produced as a result of the search.
Moultrie contends that, although the driver of the vehicle may
have consented to the car search, he, as the owner of the backpack, never
consented to a search of the backpack. Moultrie claims that a search of
the backpack required third-party consent because Kirkland allegedly
knew it was Moultrie's backpack. The State does not address Moultrie's
claim regarding the validity of the search. Rather, the State responds that
the hearsay ruling was egregious error, thereby allowing the filing of an
information by affidavit. 5 We address this issue to the extent Moultrie is
5 Moultrie urges this court to treat the State's failure to respond to
this issue as a confession of error. The issue raised by Moultrie challenges
the validity of the search. We note, however, that Moultrie never filed a
motion to suppress evidence and no court has ruled on the legality of the
search. Although we could treat the State's failure to respond as a
confession of error, see NRAP 31(d)(2); Polk v. State, 126 Nev. 180, 184,
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challenging the district court's determination that the justice court
committed egregious error in sustaining the hearsay objection.
The justice court sustained Moultrie's hearsay objection to
Kirkland's testimony that the driver provided oral consent for a search of
the car. Although Moultrie had not filed a motion to suppress evidence
based on the legality of the search, he then objected to any testimony
about evidence seized during the search as fruit of the poisonous tree. The
justice court did not rule on the legality of the search but ultimately
excluded the testimony describing the evidence seized during the search.
In its motion for leave to file an information by affidavit, the
State contended the justice court committed egregious error by not finding
probable cause to support the drug possession charge. Specifically, the
State claimed the justice court's incorrect hearsay ruling precluded the
court from considering the evidence properly before it. Moultrie
maintained that egregious error did not occur when the justice court
sustained the hearsay objection.
The district court determined that the justice court erred by
sustaining the hearsay objection. The district court further determined
that, although an evidentiary ruling normally would not be significant
enough to rise to the level of plain error, in this case, the error
substantially affected the State's rights because the error prevented the
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233 P.3d 357, 359-60 (2010); Bates v. Chronister, 100 Nev. 675, 682, 691
P.2d 865, 870 (1984), where, as here, the issue was not raised below and
was therefore not properly preserved for appeal and does not affect the
outcome of this appeal, we decline to do so, see Diaz v. State, 118 Nev. 451,
453 n.2, 50 P.3d 166, 167 n.2 (2002) (stating that this court need not
consider new issues on appeal).
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justice court from considering admissible evidence when making the
probable cause determination. When the district court reviewed the
evidence excluded by the justice court, it concluded there was sufficient
evidence to support Moultrie being held to answer.
The justice court's decision to exclude all evidence obtained
from the search of the backpack as fruit of the poisonous tree was error.
Generally, a motion to suppress evidence must be filed to exclude evidence
on constitutional grounds. 6 See NRS 174.125; NRS 179.085. Neither an
oral or written motion to suppress was presented nor was a hearing held
as required by NRS 174.125.
Further, the justice court erred by finding Kirkland's
testimony that the driver consented to a search of the car was hearsay.
Kirkland's testimony was not hearsay because it did not go to the truth of
the matter asserted. See NRS 51.035. Rather, the State offered it to
establish why Kirkland proceeded with the search of the car. See People v.
Nelson, 212 Cal. Rptr. 799, 803 (Ct. App. 1985) (holding that oral words of
consent are not offered to prove the truth of the matter, rather they are
relevant as words of authorization; they are therefore nonhearsay); see
also Wallach v. State, 106 Nev. 470, 473, 796 P.2d 224, 227 (1990) (holding
that a statement is not hearsay when it is offered to show the effect on the
listener and not for the truth of the matter).
6 This court is not holding that a motion to suppress evidence must
be filed in justice court before a constitutional objection may be raised
during a preliminary examination. Rather, only that no such motion was
filed in justice or district court; therefore, without a motion or suppression
hearing, the alleged illegal search and seizure cannot be a basis to reverse
the judgment of the district court.
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Because the justice court's error regarding the hearsay ruling
was plain from a casual inspection of the record, and resulted in Moultrie's
discharge, we conclude the district court did not err by finding that the
justice court committed egregious error.
Motion to amend the complaint
Moultrie also contends the district court erred in finding the
justice court committed egregious error by denying the State's motion to
amend the complaint. We disagree.
"The justice court's role at the preliminary hearing is to
determine whether there is probable cause to find that an offense has been
committed and that the defendant has committed it." State v. Justice
Court of Las Vega Twp., 112 Nev. 803, 806, 919 P.2d 401, 402 (1996). An
"accused may be held to answer for a public offense other than that
charged in the complaint." Singleton v. Sheriff, Clark Cnty., 86 Nev. 590,
593, 471 P.2d 247, 249 (1970) (internal quotation omitted). 7 A justice
court may permit the State to amend the complaint to conform to the
evidence presented. See generally Viray v. State, 121 Nev. 159, 163, 111
P.3d 1079, 1082 (2005) (concluding that the district court did not abuse its
discretion by allowing the State to amend the information to conform to
the victim's testimony); Grant v. State, 117 Nev. 427, 433-34, 24 P.3d 761,
765 (2001) (holding that the district court did not err by amending a grand
larceny charge from a category B to a category C offense to conform to the
evidence presented, where the State raised the alternative of amending
the criminal information, and the defendant was not prejudiced because
7 "10785 N.C.L. 1929 and NRS 171.206 are found to be comparable."
Singleton, 86 Nev. at 593 n.5, 471 P.2d at 249 n.5.
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he had sufficient notice of the lesser charge); see also NRS 178.610
(providing that a court may proceed in any lawful manner when procedure
is not specifically prescribed).
In its rebuttal closing argument during the preliminary
examination, the State moved to amend the complaint to charge Moultrie
with a violation of NRS 453.337(2)(a), a category D felony, and not NRS
453.337(2)(b), a category C felony. The State never alleged a prior
conviction in the complaint, nor tried to prove a prior conviction during the
hearing. The error in the complaint referring to a category C felony (a
second offense) compared to a category D felony (a first offense) was
immaterial in the preliminary examination. See NRS 173.075(3) (stating
that error in citation of statute is not a ground for dismissal unless error
resulted in prejudice).
Even if the complaint had alleged a prior offense, the State
requested the prior conviction allegation be removed. The amendment to
the complaint would have required Moultrie to defend the same
underlying crime and because Moultrie had sufficient notice of the charge
he was facing, granting the motion to amend would not have affected his
substantial rights. 8
8All omission or inaccuracy in the description of a prior offense does
not preclude its use without a showing of prejudice. Dressler v. State, 107
Nev. 686, 689, 819 P.2d 1288, 1290 (1991). Moreover, Moultrie's reliance
on Parsons v. State, 116 Nev. 928, 934-36, 10 P.3d 836, 839-41 (2000), to
assert that the State must substantiate the existence of prior convictions
at preliminary examinations is inapposite because prior convictions are
not part of the probable cause determination when they are used solely for
penalty enhancement purposes, and not as part of the underlying charge.
Moultrie is also misguided in relying on Hobbs v. State, 127 Nev. 234, 241,
251 P.3d 177, 181-82 (2011), where the State presented evidence of the
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At the preliminary examination, the State presented sufficient
evidence to demonstrate that Moultrie had committed first offense
possession of a controlled substance with the intent to sell, a category D
felony under NRS 453.337(2)(a). Thus, the justice court abused its
discretion in denying the motion to amend the complaint. This error is
plain from the record and resulted in Moultrie's discharge. Therefore, we
conclude that the district court did not err in finding the justice court
committed egregious error by denying the motion to amend the complaint
and discharging Moultrie.
Because we conclude the district court did not err in finding
the justice court committed egregious error, we conclude the district court
did not abuse its discretion by granting the motion to file an information
by affidavit pursuant to NRS 173.035(2).
CONCLUSION
We conclude the district court did not abuse its discretion in
finding that Moultrie failed to demonstrate actual prejudice resulting from
the delay in filing the motion for leave to file an information by affidavit.
We further conclude the district court did not err in finding that the
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prior convictions at the preliminary examination but failed to present the
evidence at sentencing. Moultrie's comparison to these cases, which
involve defendants charged with crimes involving prior convictions such as
DUI and domestic battery, is further misplaced because those crimes are
misdemeanors and those defendants would be held to answer on felony
charges only if two or more prior convictions were shown to exist. Here,
the drug charge was a felony with or without an alleged prior felony
conviction. The justice court's role is only to determine whether there is
probable cause that the defendant committed an offense. Parsons, 116
Nev. at 933, 10 P.3d at 839.
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justice court committed egregious error that resulted in Moultrie's
discharge. Therefore, we conclude the district court did not abuse its
discretion in granting the State's motion to file an information by
affidavit. Accordingly, we affirm the judgment of conviction.
C.J.
Gibbons
I concur:
J.
Silver
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TAO, J., concurring:
I agree that the majority opinion addresses the only argument
that Moultrie presents in his appeal, which relates to the prejudice that he
has allegedly suffered but which, unfortunately for Moultrie, the record
does not support. Both Moultrie and the district court assume that a court
possesses some discretion to waive the deadline to file an information by
affidavit; the arguments below were framed almost entirely around the
question of how that discretion should be exercised. But I am not sure
that any discretion exists in view of the plain language of the statutes. 1
By its terms, the 15-day deadline of NRS 173.035(3) applies
not just to the filing of an information by affidavit; it applies to the filing
of any information in district court regardless of whether the defendant (a)
was held to answer the charges and bound over for trial as a result of a
preliminary hearing, (b) was bound over to district court because he
waived his right to a preliminary hearing, or (c) was discharged from
custody after all charges were dismissed during the preliminary hearing
and the State now seeks to reinstate the charges in district court by way of
an information by affidavit.
In any of those scenarios, NRS 173.035(3) says rather plainly
that the information "must" be filed no later than 15 days after the
holding or waiver of the preliminary hearing. When a statute says "must,"
1 Therefore, this concurrence can be said to be dubitante. See Lloyd
v. J.P. Morgan Chase & Co., 791 F.3d 265, 274 (2d Cir. 2015) (Sack, J.,
concurring dubitante); United States v. Jeffries, 692 F.3d 473, 483 (6th Cir.
2012) (Sutton, J., concurring dubitante); Majors v. Abell, 361 F.3d 349, 355
(7th Cir. 2004) (Easterbrook, J., dubitante); Bierenbaum v. Graham, 607
F.3d 36, 59 (2d Cir. 2010) (Calabresi, J., concurring dubitante); see also
Jason J. Czarnezki, The Dubitante Opinion, 39 Akron L. Rev. 1, 2 (2006).
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we are required to rigorously interpret that word as meaning that the
Legislature intended to deprive courts of the discretion to refuse to do
what the statute directs. See NRS 0.025(1)(c) (defining "must" as
expressing a requirement); see also Goudge v. State, 128 Nev. , , 287
P.3d 301, 304 (2012) ("The use of the word 'shall' in the statute divests the
district court of judicial discretion. This court has explained that, when
used in a statute, the word 'shall' imposes a duty on a party to act and
prohibits judicial discretion and, consequently, mandates the result set
forth by the statute." (internal citations omitted)); Pasillas v. HSBC Bank
USA, 127 Nev. 462, 467, 255 P.3d 1281, 1285 (2011) ("[T]his court has
stated that 'shall' is mandatory unless the statute demands a different
construction to carry out the clear intent of the legislature. . . , [a.]nd as it
is used here, 'must' is a synonym of 'shall." (internal citation and
quotation omitted)); Johanson v. Eighth Judicial Dist. Court, 124 Nev.
245, 249-50, 182 P.3d 94, 97 (2008) ("[S]hall' is mandatory and does not
denote judicial discretion." (alteration in original) (quoting Washoe Med.
Ctr. v. Second Judicial Dist. Court, 122 Nev. 1298, 1303, 148 P.3d 790, 793
(2006))); Nev. Comm'n on Ethics v. JMA I Lucchesi, 110 Nev. 1, 9-10, 866
P.2d 297, 302 (1994) ("It is a well-settled principle of statutory
construction that statutes using the word 'may' are generally directory
and permissive in nature, while those that employ the term 'shall' are
presumptively mandatory.").
Thus, "must" means "must," and an information of any kind,
whether following a bind-over or following a discharge, cannot be filed
more than 15 days following a preliminary hearing—unless the
Legislature chose to give some leeway to that deadline in another statute.
In the case of an information filed after a defendant has been held to
answer, there is another statute that excuses the deadline: NRS 178.556
states that when a defendant has been held to answer, the district court
"may" dismiss an information that was not filed before the expiration of
the 15-day deadline. The Nevada Supreme Court has interpreted this to
mean that NRS 178.556 operates to give a district court some discretion to
permit a late-filed information to proceed where a defendant has not
suffered any prejudice arising from the delay and quite possibly also when
the State cannot show "good cause" for the delay. See Berry v. Sheriff,
Clark Cnty., 93 Nev. 557, 558, 571 P.2d 109, 110 (1977); Thompson v.
State, 86 Nev. 682, 683, 475 P.2d 96, 97 (1970) (discussing, but not
resolving, argument that "good cause" was required to file belated
information); see also Huebner v. State, 103 Nev. 29, 31, 731 P.2d 1330,
1332 (1987) (speedy trial portion of NRS 178.556 can only be waived upon
showing of good cause); Anderson v. State, 86 Nev. 829, 834, 477 P.2d 595,
598 (1970) ("NRS 178.556 states that the court 'may' dismiss the
information or indictment if the defendant is not brought to trial within 60
days. This rule is only mandatory if there is not good cause shown for the
delay." (internal footnote omitted)); Adams v. Sheriff, White Pine Cnty., 91
Nev. 575, 576, 540 P.2d 118, 119 (1975) (dismissal when State could not
show "good cause" for delay between issuing of indictment and
arraignment).
The district court interpreted this discretion as something that
exists just as much when a defendant has been discharged as when he has
been held to answer. But the statute does not say that. On its face, NRS
178.556 operates to supply this discretion only when the defendant has
been held to answer the charges. See NRS 178.556(1) ("If no indictment is
found or information filed against a person within 15 days after the person
3
has been held to answer for a public offense which must be prosecuted by
indictment or information, the court may dismiss the complaint."
(emphasis added)). NRS 178.556 says nothing about cases in which a
defendant has been discharged and the State seeks to file a late
information by affidavit.
Therefore, the question raised by this appeal can be
characterized as whether, notwithstanding the text of NRS 173.035(3) and
178.556, a district court also possesses the same, or at least similar,
discretion to waive the deadline when the State seeks to file an
information by affidavit more than 15 days (in this case, 63 days) after a
defendant has been discharged rather than held to answer the charges.
If we are "strict constructionists" guided only by the words of
the statutes and the intention of the Legislature as expressed in those
words, I would say that the answer to that question is no. See Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
56 (2012) ("[T]he words of a governing text are of paramount concern.").
Where the Legislature has expressly prohibited the exercise of judicial
discretion, we do not have the power to create it ourselves except perhaps
in the most compelling of circumstances. Here, NRS 173.035(3) limits
judicial discretion subject to the exception of NRS 178.556, which creates
some discretion, but only when the defendant has been held to answer.
NRS 178.556 says nothing about defendants who have been discharged,
and the inclusion of one thing within a statute is normally read as the
exclusion of other normally related things ("expressio unius est exclusio
alterius"). See Galloway v. Truesdell, 83 Nev. 13, 26, 422 P.2d 237, 246
0( (1967) ("The maxim `expressio Unius Est Exclusio Alterius,' the expression
of one thing is the exclusion of another, has been repeatedly confirmed in
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this State."); see also Scalia & Garner, supra, at 170 ("a material variation
in terms suggests a variation in meaning."). See generally Sheriff,
Pershing Cnty. v. Andrews, 128 Nev. 286 P.3d 262, 264 (2012)
(inferring that where the Legislature "clearly knows how to prohibit" an
act under one statute and does not prohibit it under a second statute, the
Legislature did not intend to prohibit it under the second statute). In the
absence of statutory sanction, I would conclude that a district court does
not possess any discretion to permit the filing of an information by
affidavit more than 15 days after a defendant has been discharged, no
matter how much "good cause" the State might be able to show and how
little "prejudice" the defendant might be able to claim. 2
Even if we look outside of the statutes, a dose reading of
existing Nevada Supreme Court precedent also suggests that the answer
to the question before us must be no. In Berry and Thompson, the
defendant was bound over and the court applied NRS 178.556 to excuse a
late information filed more than 15 days after a defendant was held to
answer the charges. Berry, 93 Nev. 557, 571 P.2d 109; Thompson, 86 Nev.
682, 472 P.2d 96. Neither of these cases involved an information by
affidavit belatedly filed after a defendant was discharged. Id. No existing
judicial precedent in Nevada that I can find contemplates or creates
discretion to permit the late filing of an information by affidavit more than
2There may be an interesting question regarding whether the
discretion embodied in NRS 178.556 applies when a defendant has been
held to answer some charges but was discharged from others, and the
State seeks to restore (in other words, add) the dismissed charges by way
of information by affidavit. In that case, the defendant has been bound
over as required by NRS 178.556, but the State seeks to file an
information by affidavit that normally would not fall within NRS
178.556's purview. But that question is not before us in this case.
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15 days after a defendant was discharged rather than held to answer the
charges.
Consequently, I would conclude that neither the Legislature
nor the Nevada Supreme Court have created any discretion for a district
court to ignore or waive the deadline of NRS 173.035(3) in the filing of an
information by affidavit after a defendant's discharge. Thus, when
confronted by a motion seeking leave to file an information by affidavit
following discharge, a district court cannot grant leave to the State when
more than 15 days have elapsed since the preliminary hearing.
One might wonder why the Legislature would divide things up
in this way to create judicial discretion when it comes to an information
filed after bind-over, but not in the case of an information by affidavit
following a discharge. But whether a statute represents sound or wise
policy is for the political branches of government to decide, not the
judiciary. See In re Fontainebleau Las Vegas Holdings, 128 Nev. ,
289 P.3d 1199, 1212 (2012) ("When a statute is clear, unambiguous, not in
conflict with other statutes and is constitutional, the judicial branch may
not refuse to enforce the statute on public policy grounds. That decision is
within the sole purview of the legislative branch." (quoting Beazer Homes
Nev., Inc. v. Eighth Judicial Dist. Court, 120 Nev. 575, 578 n.4, 97 P.3d
1132, 1134 n.4 (2004))). See generally Griswold v. Connecticut, 381 U.S.
479, 482 (1965) ("We do not sit as a super-legislature to determine the
wisdom, need, and propriety of laws that touch economic problems,
• business affairs, or social conditions."). When the Legislature has acted
and its intention is clear and unambiguous, we must enforce the statute as
written even if we think that the statute operates in an unfair way or was
just a bad idea. See Pellegrini v. State, 117 Nev. 860, 878, 34 P.3d 519,
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531 (2001) ("[E]quitable principles will not justify a court's disregard of
statutory requirements." (internal footnote omitted)).
Furthermore, the distinction is not without logical basis. The
filing of an information after a defendant has been bound over represents
a mere ministerial act that occurs after a judicial finding that the charges
were supported by probable cause and the defendant ought to stand trial
for the alleged crimes. The missing of that deadline mar represent little
more than a technicality, and it makes sense for the district court to have
some discretion to overlook technical errors supported by good cause
rather than be reluctantly compelled to dismiss serious felony charges
based on a clerical error that may have been utterly excusable.
But when a defendant has been discharged, a judicial officer
has affirmatively found that the charges were not worth pursuing any
further, either because they lacked enough evidence to even constitute
probable cause or perhaps because some material, nontechnical error
existed in the State's pleadings that required dismissal. When the State
seeks to file an information by affidavit after a defendant has already been
discharged from custody, it effectively seeks to have one judicial officer
overrule another and reinstate charges that have already been dismissed.
On its merits the State's request might be warranted; after all,
overworked judges do sometimes commit "egregious error" and charges
might be erroneously dismissed when they should not have been. But it
would not be utterly illogical for the Legislature to have decided that there
ought to be a very tight, nondiscretionary deadline for the State to make
this request and thereby force the defendant to again face charges that
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were already dismissed. 3 At the very least, the Legislature would have
been well within its constitutional powers in making that decision and
purposefully depriving us of the discretion to second-guess it. 4
Accordingly, I interpret NRS 173.035(3) as creating an
absolute statutory bar to the filing of an information by affidavit more
than 15 days after a defendant has been discharged from custody after a
3 If we read the statutes otherwise, a logical flaw would exist. As a
practical matter, the State possesses the right to file an information in
district court without judicial intervention whenever a defendant has been
held to answer. If filed late, the court may entertain a subsequent motion
seeking dismissal for untimeliness under NRS 178.556, which the court
has the discretion to grant or deny based upon the presence or absence of
good cause and prejudice. But the State has no right to file an information
by affidavit following discharge without judicial intervention; it cannot be
filed without first obtaining leave of court. NRS 173.035(2). Because the
district court would already have considered the timeliness of the State's
filing when it considered the request for leave, there would have been no
logical need for the Legislature to also create a separate ground for
dismissal based on timeliness within NRS 178.556 for a late-filed
information by affidavit; doing so would strangely require the district
court to consider the same question of timeliness in two different motions.
4 0ne could perhaps argue that, practically speaking, the State could
easily tiptoe around the deadline and re-charge the defendant any time it
wants, even months or years later, by simply submitting the same charges
to a grand jury (at least in counties where one sits regularly). But having
a grand jury reconsider charges and overrule a prior judge's finding of
probable cause is, constitutionally speaking, an entirely different animal
than having a later judge overrule a prior one through the submission of
affidavits. In any event, the Legislature is entitled to be as arbitrary as it
wants, and it is not required to draft statutes that are perfectly consistent
and close every imaginable loophole.
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preliminary hearing, without any inquiry into the presence or absence of
either "good cause" or prejudice.
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Moultrie v. State
Combined Opinion