Moultrie v. State

• Decision Date: 24 December 2015
• Docket Number: No. 65390.,65390.
• Citation: 364 P.3d 606
• Parties: Matthew Leon MOULTRIE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Court of Appeals

364 P.3d 606

Matthew Leon MOULTRIE, Appellant,

v.The STATE of Nevada, Respondent.

No. 65390.

Court of Appeals of Nevada.

Dec. 24, 2015.

As Modified Dec. 29, 2015.

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 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 $ 50, 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 Miranda¹ 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.

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 NRS 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 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 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 preindictment 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 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.

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.

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...