Broadhead v. Sheriff, Clark County

• Citation: 484 P.2d 1092,87 Nev. 219
• Decision Date: 13 May 1971
• Docket Number: No. 6473,6473
• Parties: Gareld B. BROADHEAD, Jr., Appellant, v. SHERIFF, CLARK COUNTY, Nevada, Respondent.
• Court: Nevada Supreme Court

Page 1092

484 P.2d 1092

87 Nev. 219

Gareld B. BROADHEAD, Jr., Appellant, v. SHERIFF, CLARK COUNTY, Nevada, Respondent.

No. 6473.

Supreme Court of Nevada.

May 13, 1971.

James D. Santini, Las Vegas, for appellant.

Robert List, Atty. Gen., Carson City, Roy A. Woofter, Dist. Atty. and Charles L. Garner, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

GUNDERSON, Justice.

Appellant originally was arrested and posted bail on a complaint filed in the Justice Court of Las Vegas Township, charging sale of marijuana to a person over the age of 21, a violation on NRS 453.030. Awaiting a preliminary hearing, which he demanded, appellant returned home to Colorado, where he was employed by a tree service company. The prosecution sought several continuances of the preliminary hearing, which appellant's counsel did not oppose, and appellant's counsel requested at least one continuance on their own account; then, on March 16, 1970, the prosecution again orally moved to continue the preliminary hearing because it was unable to produce its expert witness. Although appellant might have opposed this motion for failure to show good cause as required by DCR 21, ¹ and although appellant had honored his bail commitment by traveling from Colorado to be present, appellant's counsel agreed, conditioning acquiescence with the request that the court fix a firm date for the preliminary hearing. The court fixed June 24, 1970, as a firm date; thereafter, appellant's counsel apparently stipulated with the prosecutor that this date should be changed to July 8, 1970.

When seeking this continuance, the District Attorney's deputy did not reveal to the magistrate or to appellant's counsel that four days earlier, on March 12, 1970, the prosecution had obtained a Grand Jury indictment against appellant with regard to the same alleged offense; nor did the deputy reveal any intent to subvert or avoid to hearing on the 'firm date' to which he agreed. Yet, without reason, without warning, and at totally unnecessary expense to the State, on July 2, 1970, the prosecution caused appellant to be arrested under the indictment in Golden, Colorado, where he was kept from eight days, until transported back to Las Vegas for arraignment on the indictment on July 10, 1970, two days after his preliminary hearing should have been conducted in justice court. According to the petition before us, these untoward procedures resulted in appellant being subjected to adverse newspaper publicity not only in Las Vegas but also in his home town, resulting in loss of his employment.

When appellant was brought before the District Court to answer the indictment on July 10, 1970, his counsel appeared with him, declined to plead, declined to waive his right to a speedy trial as secured by NRS 178.556, advised the court that he had requested copies of the Grand Jury proceedings but that the prosecution had not provided them, told the court that he had only just learned when the indictment had been returned, and requested time to study the proceedings before taking action. For this purpose, the matter was continued until July 20, 1970; however, the appellant having become unemployed, the Public Defender's Office was obliged to enter the case, by reason of which two further continuances allowing time to prepare an attack on the indictment were sought by appellant and allowed by the District Court. In the absence of appellant and his counsel, on July 16, 1970, the prosecution caused the justice court magistrate to dismiss the earlier proceedings against him.

Appellant brought habeas corpus to challenge his confinement, and, relief being denied to him by the lower court, brings this appeal.

1. In Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969), this court recognized that the 'reasons underlying DCR 21 are equally appropriate to the continuance of a criminal proceeding in the justice's court'; thus, although we withheld application of the rule in that case, we gave prosecutors clear notice that, in the future, they must either proceed with a preliminary hearing at the appointed time, or show good cause for a continuance by affidavit, as under DCR 21. Continuing disregard of this simple obligation gave rise to our holding in Maes v. Sheriff, 86 Nev. 317, 468 P.2d 332 (1970), in which we said: 'Although NRS 178.562(2) may not have been intended to bar a second criminal complaint in the circumstances before us, basic fairness does bar such a procedure. A new proceeding for the same offense (whether by complaint, indictment or information) is not allowable when the original proceeding has been dismissed due to the willful failure of the prosecutor to comply with important procedural rules.' In this context, 'willful'...