130 Nev., Advance Opinion 54
IN THE SUPREME COURT OF THE STATE OF NEVADA
SHAFIQ AHMED AFZALI, No. 54019
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent.
MAY 29 2014
TRACIE K. LINDEMAN
CLE1T
RIACIF SAREM
kfLI1
BY
CHIEF DE CLERK
Appeal from a judgment of conviction, pursuant to a jury
verdict, of 11 counts of lewdness with a child, 15 counts of sexual assault
of a child under 14 years of age, 2 counts of first-degree kidnapping, 1
count of second-degree kidnapping, 3 counts of battery with intent to
commit a crime, 3 counts of using a minor in the production of
pornography, and 22 counts of possession of child pornography. Eighth
Judicial District Court, Clark County; James M. Bixler, Judge.
Remanded.
Philip J. Kohn, Public Defender, and Sharon G. Dickinson, Deputy Public
Defender, Clark County,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, Steven S. Owens, Chief Deputy District
Attorney, and Parker P. Brooks, Deputy District Attorney, Clark County,
for Respondent.
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BEFORE THE COURT EN BANC.
OPINION
By the Court, HARDESTY, J.:
Appellant Shafiq Ahmed Afzali asserts that the district court
violated his constitutional rights by obstructing his ability to challenge the
racial composition of the three grand juries that indicted him. 1 Prior to
his trial, Afzali requested information that would identify the racial
composition of the three separate grand juries that indicted him, and the
100-person venires from which the grand jurors were selected. The
district court denied him the requested information.
Afzali argues that he had the right to challenge the grand jury
selection process under either the Equal Protection or the Due Process
Clauses of the United States Constitution, but that he was unable to
determine whether he had a viable challenge to the racial composition of
the three grand juries that indicted him because the court failed to provide
the information requested.
We conclude that Afzali has a right to the information he
requested. Without this information, Afzali's ability to show a potential
violation of his constitutional right to a grand jury drawn from a fair cross-section of the community is limited. Therefore, we conclude that a limited
remand is necessary for the district court to conduct further proceedings
consistent with this opinion.
lAfzali raises a number of additional issues on appeal. However,
because we determine that a limited remand is necessary, we do not
address those issues at this time.
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FACTS AND PROCEDURAL HISTORY
In July 2007, Afzali was charged by indictment with 17 felony
counts regarding crimes of a sexual nature against 3 children. He was
then' charged by a superseding indictment with 42 felony counts regarding
crimes of a sexual nature based on his acts against the 3 child victims and
the 25 images of child pornography he possessed. He was later charged by
a final second superseding indictment with 63 felony counts regarding
crimes of a sexual nature.
In October 2007, Afzali filed a motion requesting information
on the selection process for the grand jury, the racial composition of the
three grand juries that indicted him, and the racial composition of the
entire 100-person venires from which those grand jurors were chosen. He
stated that his request was being made to evaluate whether he had
grounds to bring an equal protection or due process challenge to the makeup of the three grand juries or the grand jury selection process.
The district court held two hearings on the motion. During
the first hearing, Afzali's counsel stated that she was concerned about the
grand jury selection process and the ethnic background of the grand jury.
The district court explained that it had no such information, but would
inquire of the then-sitting chief judge about the procedure for obtaining
the information Afzali was requesting. During the second hearing, the
district court provided Afzali with information on the grand jury selection
process; however, it explained that race information did not exist. It also
explained that the records of all potential grand jurors were shredded,
3
except for the records of those 50 potential grand jurors selected by the
judges from the 100-person poo1. 2
In November 2007, the Eighth Judicial District Court
Administration (Eighth District) filed a motion to quash a subpoena duces
tecum served on the jury commissioner by Afzali's counsel. The subpoena
sought the names and contact information for the 100-person venires for
each of the three grand juries that indicted Afzali. The next month the
district court conducted hearings on the Eighth District's motion to quash.
Ultimately, the district court concluded that the Eighth District handled
the information Afzali was requesting, not the jury commissioner; the
personal information of the 50 potential grand jurors was destroyed but
their contact information was preserved; and Afzali was "entitled to it."
The district court granted the motion to quash as to the jury commissioner
but denied it as to the Eighth District because only the latter had access to
the information requested.
In January 2008, the district court conducted a hearing on the
disclosure of the grand jury contact information. Afzali's counsel asserted
Under NRS 6.110, the selection of the grand jury begins when the
clerk of the court solicits 500 qualified persons at random and mails a
questionnaire to those selected. The names of the first 100 persons who
return the completed questionnaire to the clerk are submitted to the
district court judges for that judicial district. NRS 6.110(1). The district
court judges then select one name from the list until 50 persons have been
selected, at which time the clerk issues a venire. NRS 6.110(2). Finally,
the presiding district court judge selects 17 persons at random from the
50-person group to serve as the grand jury. NRS 6.110(3).
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that, if given the contact information for the 50 potential grand jurors, she
would conduct an independent investigation on the racial composition of
that group. The State objected, arguing that the disclosure would violate
the secrecy of the grand jury. In a compromise, the district court asked
Afzali's counsel to draft a questionnaire to be given to the 50 potential
jurors. The district judge stated that he would then provide that
questionnaire to the jury commissioner and the chief judge, who
supervises the grand jury.
In March 2008, then-Chief Judge Hardcastle entered an order
denying Afzali's request for the grand jury contact information. In
denying Afzali's request, Judge Hardcastle reviewed Afzali's questionnaire
and determined that "the proper procedure and notice to all interested
parties to challenge the methods used to select the grand jury has not been
followed." In June 2008, Afzali requested a hearing on Judge Hardcastle's
order, arguing that he had followed the district court's direction in
requesting the grand jury contact information. The district court did not
grant the request, but admitted, "I don't know we know the procedure."
Afzali's trial took place in March 2009, and the jury ultimately
found Afzali guilty as to counts 4-39, 42-54, and 56-63. The jury was hung
as to counts 1-3, and found Afzali not guilty as to counts 40, 41, and 55.
The district court entered its judgment of conviction in June 2009. This
appeal followed. 3
3 In November 2007, during the time Afzali was attempting to obtain
the information on the grand jury, he also filed a petition for writ of
habeas corpus. He argued that the district court's grand jury selection
process violated his constitutional and statutory rights because the
destruction of records concerning proposed grand jurors prevented him
continued on next page . . .
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DISCUSSION
Afzali contends that without access to information about the
racial composition of the three grand jury pools that indicted him, he has
no way to know whether he has grounds to bring a challenge to the grand
jury selection process under the Equal Protection Clause or the Due
Process Clause. We agree.
The United States Supreme Court has held that "the criminal
defendant's right to equal protection of the laws has been denied when he
is indicted by a grand jury from which members of a racial group
purposefully have been excluded." Vasquez v. Hillery, 474 U.S. 254, 262
(1986). Furthermore, a person has the right to have the grand jury
selected from a fair cross-section of the community. Adler v. State, 95 Nev.
339, 347,
594 P.2d 725, 731 (1979) ("Mt is settled that a grand jury must
be drawn from a cross-section of the community, and there must be no
systematic and purposeful exclusion of an identifiable class of persons.").
A federal statute was enacted in order to squarely address a
defendant's right to obtain the information necessary to mount challenges
to the composition of the grand jury in federal court. See 28 U.S.C. §
1867(f) (2006) (allowing parties who are preparing a motion to challenge
the grand jury composition to have access to "Mlle contents of records or
. . . continued
from obtaining the evidence necessary to support any challenge to the
racial composition of the grand jury. The State filed a return, arguing
that it was not part of the grand jury selection process and it thus could
not address that process. In December 2008, prior to the filing of this
appeal, the district court denied the petition.
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papers used by the jury commission or clerk in connection with the jury
selection process"). In analyzing this statute, the United States Supreme
Court stated that its purpose was to ensure grand juries were selected at
random from a fair cross-section and noted that "without inspection, a
party almost invariably would be unable to determine whether he has a
potentially meritorious jury challenge." Test v. United States, 420 U.S. 28,
30 (1975).
Certainly, Nevada is not bound by this federal statute, and it
does not have a state statute providing the right to inspect grand jury
records. Nevertheless, this court is bound by Supreme Court precedent,
and in Adler, we recognized that a defendant has a constitutional right to
a grand jury drawn from a fair cross-section of the community. 95 Nev. at
347,1594 P.2d at 731. As the Supreme Court of Missouri noted when
considering this same issue, "[t]his cross-section requirement would be
without meaning if a defendant were denied all means of discovery in an
effort to assert that right." State ex rel. Garrett v. Saitz, 594 S.W.2d 606,
608 (Mo. 1980). Thus, we hold that Afzali is entitled to information
relating to the racial composition of the grand jury so that he may assess
whether he has a viable constitutional challenge.
Based on our holding, we conclude that a limited remand is
necessary in order for the district court to make available to Afzali the
information he requested. On remand, the district court should first
determine whether information is available on the racial composition of
the three grand juries that indicted Afzali and on the 100-person venires
from which those jurors were chosen, in whatever form and by whatever
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means.4 We recognize that during the prior district court hearings
surrounding Afzali's request, there was some confusion as to what
information was actually retained by the district court regarding the
grand jury pools involved in Afzali's indictments. The record
demonstrates that at least the contact information for the 50 proposed
grand jurors was available. Once the district court obtains the
information, it should be provided to Afzali so that he can determine
whether he has grounds for a fair cross-section challenge. If he
determines that there is a viable challenge, he should make the challenge
in the district court so that the court can resolve the matter and enter
appropriate findings of facts and conclusions of law. This court can then
review that decision, if challenged. If the district court is unable to
provide the requested information after exploring all possible avenues,
then the district court should enter appropriate findings and certify them
to this court. This court will then determine whether the failure to
provide this information requires reversal of the judgment of conviction.
4For example, contact information may be available through payroll
records pertaining to grand jurors who served, see NRS 6.150 (grand juror
fees), or from the transcripts of the grand jury proceedings. Thus, if the
racial composition of those jurors is not otherwise known, the district court
may need to contact the grand jurors in order to obtain the necessary
information.
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The [district court shall have 90 days to conduct the necessary proceedings
required as a result of the limited remand of this matter.
J.
Hardesty
We concur:
C.J.
Gibbons
Pideu
Pickering
Parraguirre
Cherry
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J.
Saitta
9
