Feole v. State
| Decision Date | 22 May 1997 |
| Docket Number | No. 27722,27722 |
| Citation | 113 Nev. 628,939 P.2d 1061 |
| Parties | Dennis Arthur FEOLE, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
FACTS
Appellant Dennis Arthur Feole shared a household with Martha Tiscareno. Tiscareno told Feole that she might report Feole's son Dominic's use of marijuana to the police. Feole responded by telling Tiscareno that if she "snitched," her body would be found in the desert. Tiscareno reported Dominic to the police, then moved out of the house. When Tiscareno next saw Feole, Feole made shoveling motions saying, "Remember what I told you."
Feole was charged by complaint with preventing or dissuading a witness from reporting a crime, and with intimidating a witness to influence testimony. At Feole's preliminary hearing, the justice of the peace, finding no probable cause, dismissed both charges.
After the charges were dismissed, Robert Witek, Deputy District Attorney, filed in the district court an information alleging the same violations set forth in the original criminal complaint and a Motion for Leave to File Information by Affidavit. Witek then filed an Affidavit in Support of Information that stated that Witek had been the prosecutor at the preliminary hearing and set forth the testimony of the two witnesses at the preliminary hearing.
Feole filed a Motion to Strike the Information and Opposition to Motion for Leave to File Information by Affidavit. The district court heard the State's Motion For Leave to File Information by Affidavit and allowed the State to file the information. However, after the hearing, the State filed an Amended Information, changing the original charges to one count of Attempted Preventing or Dissuading A Witness from Reporting A Crime, in violation of NRS 193.330 and NRS 199.305.
A jury trial resulted in a verdict of guilty on the amended information. Feole now appeals the district court's decision to permit the State to file the information.
After the justice court determines that probable cause does not exist to bind an accused over for trial, the State has two options. First, it can bring charges against the accused again by filing a second complaint with the justice court or by indictment. Murphy v. State, 110 Nev. 194, 198, 871 P.2d 916, 918 (1994). This is the proper method if the State wishes to correct and/or satisfy deficiencies in the evidence. See id. Alternatively, the State can proceed pursuant to NRS 173.035, which states in pertinent part:
2. If, however, upon the preliminary examination the accused has been discharged, ... the district attorney may, upon affidavit of any person who has knowledge of the commission of an offense, and who is a competent witness to testify in the case, setting forth the offense and the name of the person or persons charged with the commission thereof, upon being furnished with the names of the witnesses for the prosecution, by leave of the court first had, file an information, and process must forthwith be issued thereon.
We have stated that this statute "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." Cranford v. Smart, 92 Nev. 89, 91, 545 P.2d 1162, 1163 (1976).
Feole contends that the district court erred in allowing the State to file an information by affidavit because NRS 173.035 is a remedy for "egregious error," but here, the justice of the peace did not commit egregious error in failing to find probable cause. We agree.
Initially, we recognize that the State did not comply with the technical requirement of NRS 173.035(2) that it attach an affidavit of a competent witness with knowledge of the commission of the offense. The prosecutor filed his own affidavit, which we have previously stated is insufficient to satisfy the statute....
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Moultrie v. State
...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. Sta......
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Moultrie v. State
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Bolden v. State
...justice court dismissed the charges. See, e.g ., Parsons v. State, 116 Nev. 928, 938, 10 P.3d 836, 842 (2000) ; Feole v. State, 113 Nev. 628, 632, 939 P.2d 1061, 1064 (1997), overruled on other grounds by State v. Sixth Judicial Dist. Court (Warren), 114 Nev. 739, 743, 964 P.2d 48, 50-51 (1......
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Bolden v. State
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