132 Nev., Advance Opinion 71
IN THE SUPREME COURT OF THE STATE OF NEVADA
ANTHONY MAYO, No. 69566
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT FILED
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
NOV 2 3 2016
CLARK; AND THE HONORABLE
KATHLEEN E. DELANEY, DISTRICT
JUDGE,
Respondents,
and
THE STATE OF NEVADA,
Real Party in Interest.
Original petition for a writ of mandamus directing the district
court to grant a pretrial petition for a writ of habeas corpus.
Petition denied.
Phillip J. Kohn, Public Defender, and Dan A. Silverstein and Arlene
Heshmati, Deputy Public Defenders, Clark County,
for Petitioner.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, and Steven S. Owens, Chief Deputy District Attorney,
Clark County,
for Real Party in Interest.
BEFORE PARRAGUIRRE, C.J., HARDESTY and PICKERING, JJ.
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OPINION
By the Court, PICKERING, J.:
A grand jury indicted petitioner Anthony Mayo for the murder
of his wife. Under NRS 172.145(2), the district attorney must provide the
grand jury any evidence of which the district attorney is "aware" that "will
explain away the charge." Mayo seeks dismissal of his indictment based
on the district attorney's failure to present to the grand jury two notes
from his deceased wife's hospital chart. The notes' exculpatory potential
was not obvious and only emerged when placed in the context of internet
research the defense conducted shortly before trial.
NRS 172.145(2) does not require the district attorney to sift
through the evidence and conduct research to construct a defense for the
accused. The record supports the district court's finding that, although
the district attorney had the hospital chart, he was not aware of the notes
and their potential exculpatory value when he presented the case to the
grand jury. As the district attorney did not violate NRS 172.145(2) by
failing to submit known exculpatory evidence to the grand jury, we deny
writ relief
I.
A.
The Clark County grand jury indicted Mayo on charges of
murder, battery constituting domestic violence (strangulation), coercion,
and dissuading a witness in connection with the death of his wife, Beverly
McFarlane. The couple's daughter testified before the grand jury that
Mayo strangled and beat Beverly, leaving her dazed and incoherent. Two
days later, Beverly remained incoherent, and the daughter called the
police. Beverly had a black eye, abrasions on her neck, and the left side of
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her face was bruised and swollen. When the responding officer tried to
interview Beverly, she could not give her date of birth, identify the day of
the week, or name the President.
Beverly was taken by ambulance to the hospital, where she
was examined more thoroughly. The examination revealed neck injuries,
swelling on the left side of her face and head, and petechial hemorrhages
consistent with strangulation. Within 24 hours of her admission to the
hospital, Beverly could no longer speak. She was placed on life support
and died two weeks later.
Clark County medical examiner Dr. Alane Olson performed
Beverly's autopsy. Beverly's brain was removed and sent to Dr. Claudia
Greco, a neuropatholog -ist at the University of California, Davis, for
examination. Both Dr. Olson and Dr. Greco testified before the grand
jury. Dr. Olson testified that she observed substantial swelling of the
brain; that although Beverly had "other significant contributing
conditions," namely, "occlusion of the left internal carotid artery,
hypertension, and diabetes," the cause of death was "brain injuries due to
assault"; and that the manner of death was "homicide." Dr. Greco also
observed massive swelling and hemorrhages on the left side and underside
of the brain. She testified that hypertension predisposed Beverly to
hemorrhage but that trauma, not disease, produced the profound brain
injuries that caused her death.
B.
Mayo filed a pretrial petition for a writ of habeas corpus, and a
later addendum thereto, seeking to dismiss the indictment without
prejudice. In the addendum, Mayo complained that the district attorney
violated NRS 172.145(2) by failing to submit exculpatory evidence in the
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State's file to the grand jury. The omitted evidence consisted of two notes
in Beverly's hospital records: (1) a physician's order for a cerebral
arteriogram that mentioned "strokes, possible Moya Moya"; and (2) a
radiology report noting, among other impressions, "[findings are
suggestive of a slow progressive vasculopathy that can be seen with
moyamoya disease [allthough the hypertrophied vessels are not well
developed." The addendum attached internet research on moyamoya
disease, including an article describing it as "a progressive, occlusive
disease of the cerebral vasculature with particular involvement of the
circle of Willis and the arteries that feed it" that can cause death "from
hemorrhage [dependent] on the severity and nature of the hemorrhage."
See Roy Sucholeiki, MD, Moyamoya disease, Medscape, January 7, 2015,
http://ww-w.emedicine.medscape.com/article/1180952-overview . Based on
this research, the defense urged the district court to consider that
moyamoya disease may have caused or contributed to Beverly's death.
The district attorney forwarded the addendum to Dr. Greco.
In response, Dr. Greco reexamined Beverly's brain and issued a
supplemental neuropathology report. Dr. Greco's supplemental report
states: "Occlusive changes in the Circle of Willis are those of
atherosclerosis. There is no pathology present that would lead to a
diagnosis of moyamoya disease." Later in the report Dr. Greco concludes:
"No evidence of moyamoya disease."
Based on Dr. Greco's supplemental report, the State denied
that the notes had exculpatory value, much less that the district attorney
was "aware" of them or their significance. The deputy district attorney
prosecuting the case acknowledged that, several months before presenting
the case to the grand jury, he obtained Beverly's medical records by
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subpoena, which included the notes mentioning moyamoya disease. There
were several hundred pages of records, which the deputy forwarded copies
of to his experts, Dr. Olson and Dr. Greco. Both doctors advised him that
Beverly died from blunt force trauma; neither raised moyamoya disease as
a possible cause of death. The district court accepted the deputy district
attorney's representation that he did not notice the references to
moyamoya disease in Beverly's medical records or recognize them as
potentially exculpatory until the defense filed its addendum, more than a
year after the indictment was returned.
The defense appears to have obtained Beverly's medical
records from the district attorney's office before the case went to the grand
jury. Like the prosecution, the defense did not initially recognize the notes
referencing moyamoya disease as significant. In the letter the defense
sent asking the State to submit certain exculpatory evidence to the grand
jury, nothing is said about moyamoya disease. As defense counsel
acknowledged, moyamoya disease is "very rare" and not something he
knew about before reviewing the medical records in preparation for trial
and conducting internet research into it.
The district court held two hearings on Mayo's pretrial habeas
corpus petition, which it ultimately denied by written order. In its order,
the district court held that "the State is only required to present to the
Grand Jury exculpatory evidence of which the State is aware. .. at that
time." It found that "although the State had possession of documents that
contained reference to the possible existence of moya moya disease" when
it presented the case to the grand jury, "the State was not aware of the
exculpatory value of such evidence." The district court declined to decide
whether the evidence was in fact exculpatory: "THE COURT ma[kes] no
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determination that Beverly McFarlane actually had moya moya disease or
that Beverly McFarlane succumbed to moya moya disease." Instead, it
resolved the case on the basis that
the State did not purposefully choose to not
disclose the possible existence of moya moya
disease, but instead the State was simply unaware
of the potential of moya moya disease or its
exculpatory value. Because the State was
unaware of the possible exculpatory value of the
reference in the medical records to moya moya
disease the State was not required to present such
evidence to the Grand Jury.
The district court stayed Mayo's trial pending this court's
decision on Mayo's petition for extraordinary writ relief.
A writ of mandamus may issue "to compel the performance of
an act which the law requires as a duty resulting from an office, trust, or
station, or to control an arbitrary or capricious exercise of discretion."
Schuster v. Eighth Judicial Dist. Court, 123 Nev. 187, 190,
160 P.3d 873,
875 (2007). But mandamus "is an extraordinary remedy," and "whether
an application for a writ of mandate will be entertained lies within the
discretion of the court." Kussman v. Eighth Judicial Dist. Court, 96 Nev.
544, 545,
612 P.2d 679 (1980). Writ relief from pretrial probable cause
determinations is disfavored for reasons of judicial economy and sound
judicial administration. Id. at 546, 612 P.2d at 680. On rare occasion we
have, nonetheless, undertaken mandamus review of pretrial habeas
corpus determinations that test the scope of the district attorney's
obligation under NRS 172.145(2). See Schuster, 123 Nev. at 190,
160 P.3d
at 875; Ostman v. Eighth Judicial Dist. Court,
107 Nev. 563, 565, 816 P.2d
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458, 459-60 (1991) (3-2). Mayo's petition presents a substantial legal
question: Does the obligation to present exculpatory evidence of which the
district attorney is "aware" extend to evidence the district attorney
possesses but does not recognize as exculpatory? Although we deny writ
relief, this question deserves a definitive answer, so we accept review and
resolve the petition by opinion. See Schuster, 123 Nev. at 188-89,
160 P.3d
at 874.
B.
The right of an accused to have the prosecutor present
exculpatory evidence to the grand jury derives from statute. Compare
United States v. Williams, 504 U.S. 36, 51-53 (1992) (rejecting the
proposition that federal prosecutors have a duty to provide the grand jury
with exculpatory evidence as a matter of federal constitutional law or the
inherent supervisory authority of the federal court), with Schuster, 123
Nev. at 193-94,
160 P.3d at 877 (declining to require the State to instruct a
grand jury on the legal significance of exculpatory evidence; quoting
Williams and noting this court's reluctance "to expand the rights of grand
jury targets beyond those explicitly provided by statute or constitutionally
required").
We therefore begin with the text of NRS 172.145(2):
If the district attorney is aware of any evidence
which will explain away the charge, the district
attorney shall submit it to the grand jury.
By its terms, NRS 172.145(2) requires that the district attorney be
"aware" of evidence "which will explain away the charge" before the duty
to submit the evidence to the grand jury arises. To be "aware" of
something is to "hav [e] knowledge or cognizance" of it. Aware, Webster's
New College Dictionary (3d ed. 2008). The district attorney is not "aware"
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of evidence "which will explain away the charge" merely by virtue of
possessing evidence that later proves exculpatory. Rather, the district
attorney or his or her deputy must appreciate the exculpatory value of the
evidence to be "aware" of it for purposes of NRS 172.145(2).
Citing United States v. Agars, 427 U.S. 97 (1976), Mayo urges
us to presume that, if exculpatory evidence exists in the State's file, the
district attorney is "aware" of it for purposes of NRS 172.145(2). See
Agurs, 427 U.S. at 110 ("If evidence highly probative of innocence is in [the
prosecutor's file], he should be presumed to recognize its significance even
if he has actually overlooked it."). But Agurs addresses a defendant's
constitutional right, under Brady v. Maryland, 373 U.S. 83 (1963), to have
the government disclose to the defense for the defendant's use at trial
exculpatory evidence that is material to guilt or innocence. Agurs, 427
U.S. at 107. Unlike a trial jury, "the grand jury sits not to determine guilt
or innocence, but to assess whether there is adequate basis for bringing a
criminal charge." Williams, 504 U.S. at 51. Consistent with this system,
"neither in this country nor in England has the suspect under
investigation by the grand jury ever been thought to have a right to testify
or to have exculpatory evidence presented," id. at 52, except as "explicitly
provided by statute." Schuster, 123 Nev. at 194,
160 P.3d at 877; see NRS
172.145(2); NRS 172.245(1). Brady's constitutional disclosure obligation,
and by extension, the presumption stated in Agurs, thus do not apply in
the grand jury setting. See Gordon v. Ponticello,110 Nev. 1015, 1020,
879
P.2d 741, 744 (1994) (noting that "this court, in step with the United
States Supreme Court, is reluctant to expand the rights of grand jury
targets and make them coextensive with those of criminal defendants" at
time of trial); 1 Sara Sun Beale et al., Grand Jury Law and Practice § 4:17
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(2d ed. 2015) (observing that "the standards developed for the prosecutor's
duty in the adversarial trial context are not well-suited to the traditional
procedures of the grand jury").
To import Agurs into NRS 172.145(2) as Mayo suggests would
be to rewrite the statute, replacing "is aware of" with "has in his file," like
this: "If the district attorney is aware of has in his file any evidence which
will explain away the charge, the district attorney shall submit it to the
grand jury." While the Legislature could write such a statute, it has not.
Instead, it has limited the obligation to evidence the district attorney is
"aware of. .. which will explain away the charge."' Tying the obligation
to present evidence to the district attorney's awareness of it and its
exculpatory value makes practical sense: When a prosecutor presents a
case to the grand jury, the case is in its preliminary stages; the object is
for the grand jury to determine whether there is probable cause to believe
a violation of the criminal laws has occurred, and that the accused
committed that violation.
A grand jury proceeding is an ex parte
investigatory proceeding to determine whether
there is probable cause to believe a violation of the
criminal laws has occurred, not a trial. Requiring
the prosecutor to ferret out and present all
evidence that could be used at trial to create a
'The Legislature adopted NRS 172.145(2) in 1985, 1985 Nev. Stat.,
ch. 134, § 6, at 555. Although an interim committee had proposed a more
"extensive provision. , laying a burden on the district attorney,"
Hearing on S.B. 103 Before the Assembly Judiciary Comm., 63d Leg.
(Nev., April 18, 1985), NRS 172.145(2) was adopted instead, limiting the
obligation to evidence of which the district attorney "is aware."
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:751Z
reasonable doubt as to the defendant's guilt would
be inconsistent with the purpose of the grand jury
proceeding and would place significant burdens on
the investigation.
William' s, 504 U.S. at 69 (Stevens, J., dissenting); see 4 Wayne R. LaFave
et al., Criminal Procedure § 15.7(f) (4th ed. 2015) (noting that, at the time
the prosecutor submits a case to the grand jury the prosecutor "ordinarily
does not have the advantage of defense motions identifying those items
that the defense views as potentially exculpatory" and that it "would
impose an intolerable burden on the government to require it to sift
through all the evidence to find statements or documents that might be
exculpatory") (footnotes and quotations omitted).
Though not required by the federal constitution or as a matter
of the federal courts' supervisory authority, see Williams, 504 U.S. at 51-
53, in a number of states and in the District of Columbia, "there are
statutes or judicial decisions that require prosecutors to inform the grand
jury of exculpatory evidence in some circumstances," 1 Sara Sun Beale et
al., supra, § 4:17, as do the ABA Standards for Criminal Justice, § 3-4.6(e)
(4th ed. 2015). Notably, while Isltate courts recognizing a prosecutorial
obligation to present the grand jury known exculpatory evidence have
varied in their description of the scope of that obligation, [al agree that
the evidence must be 'known' to the prosecutor." 4 Wayne R. LaFave et al.,
supra, § 15.7(f) (emphasis added); ABA Standards, supra, § 3-4.6(e) ("A
prosecutor with personal knowledge of evidence that directly negates the
guilt of the subject of the investigation should present or otherwise
disclose that evidence to the grand jury."); see Moran v. Schwarz, 108 Nev.
200, 202,
826 P.2d 952, 953 (1992) ("NRS 172.145 requires the grand jury
to hear, and the district attorney to submit, known evidence which will
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explain away the charge.") (emphasis added) (dictum). Requiring that the
evidence be "known" to the prosecutor—that he or she be "aware" of it, in
other words—comports with the investigative and accusatory function of
the grand jury, avoids delay, and recognizes the practical difficulties in
"[a]scertaining the exculpatory value of evidence at such an early stage of
the proceedings." State v. Hogan, 676 A.2d 533, 544 (N.J. 1996); see Frink
v. State, 597 P.2d 154, 166 (Alaska 1979) ("the prosecutor's obligation to
present exculpatory evidence to the grand jury does not turn the
prosecutor into a defense attorney; the prosecutor does not have to develop
evidence for the defendant and present every lead possibly favorable to the
defendant"); Hogan, 676 A.2d at 544 ("the prosecutor need not construct a
case for the accused or search for evidence that would exculpate the
accused. Only when the prosecuting attorney has actual knowledge of
clearly exculpatory evidence that directly negates guilt must such
evidence be presented to the grand jury."); see also United States v. Gray,
502 F. Supp. 150, 152 (D.D.C. 1980) (a pre-Williams case holding that,
while prosecutors may be required to present exculpatory evidence to the
grand jury, "prerequisite" to that dismissing an indictment for failure to
do so is "awareness by the prosecutors of the exculpatory evidence in
question").
Mayo argues that a rule holding the State strictly accountable
for the evidence in the district attorney's file is needed to avoid bad faith
abuse of the system. We disagree. When a prosecutor has abused NRS
172.145(2) by withholding known exculpatory evidence and engaging in
conduct that impairs the function of an independent and informed grand
jury, the courts of this state have not stood silently by. E.g., State v.
Babayan, 106 Nev. 155, 169-70,
787 P.2d 805, 816-17 (1990) (affirming
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order dismissing indictment without prejudice where the State failed to
present to the grand jury substantial exculpatory evidence that the
district court found was known to the district attorney's office). This is not
such a case. As the district court found, the district attorney did not know
or have reason to know the references in the hospital notes to moyamoya
disease had potential exculpatory value. The references to possible
moyamoya disease appeared only twice in several hundred pages of
hospital notes and, as the defense conceded in district court, the disease is
obscure enough that defense counsel did not initially see the references as
significant either. On this record, we decline to disturb the district court's
finding that no violation of NRS 172.145(2) occurred. If the references to
moyamoya disease have significance, Mayo will have the opportunity to
establish as much at trial.
We therefore deny writ relief.
We concur:
CAA , C. J.
Parraguirre
RA G,t4,6,
Hardesty
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