State v. Babayan

• Decision Date: 01 March 1990
• Docket Number: 18732,Nos. 18713,s. 18713
• Citation: 787 P.2d 805,106 Nev. 155
• Parties: The STATE of Nevada, Appellant, v. Ruben BABAYAN, Respondent. Greg SARKISSIAN, Petitioner, v. The SECOND JUDICIAL DISTRICT COURT OF the STATE of Nevada and the Honorable Robert L. Schouweiler, District Judge, Respondents, and The State of Nevada, Real Party in Interest.
• Court: Nevada Supreme Court

Page 805

787 P.2d 805

106 Nev. 155

The STATE of Nevada, Appellant, v. Ruben BABAYAN, Respondent.

Greg SARKISSIAN, Petitioner, v. The SECOND JUDICIAL DISTRICT COURT OF the STATE of Nevada and the Honorable Robert L. Schouweiler, District

Judge, Respondents,

and

The State of Nevada, Real Party in Interest.

Nos. 18713, 18732.

Supreme Court of Nevada.

March 1, 1990.

Brian McKay, Atty. Gen., Carson City, Mills Lane, Dist. Atty., John W. Helzer, Deputy Dist. Atty., for appellant and respondent Second Judicial District Court.

Dean R. Heidrich, Pinkerton & Polaha, Mark Mausert, Reno, for respondent Babayan and petitioner.

OPINION

PER CURIAM:

This opinion considers two consolidated matters which arose from a series of five grand jury indictments. The indictments, returned between May 9th and December 13th, 1984, charged respondent Ruben Babayan (Babayan) and his co-defendants, petitioner Greg Sarkissian (Sarkissian) and Manouchehr Rashidi (Rashidi), with multiple counts of child abuse causing substantial mental harm, sexual assault, and lewdness with a child under the age of fourteen. See NRS 200.508; NRS 200.366; NRS 201.230. Prior to trial, Babayan and Sarkissian moved to dismiss the indictments. They contended, inter alia, that the indictments were invalid because (1) the district attorney had failed to present exculpatory evidence to the grand jury; and (2) those involved in the investigation and presentation of evidence to the grand jury had such conflicts of interest that concepts of due process and fundamental fairness were violated. The district court granted the motion with respect to respondent Babayan and dismissed with prejudice all indictments against him; however, the district court perceived a difference in the level of misconduct involving petitioner Sarkissian and denied his motion.

The State now appeals from that portion of the district court's order that dismissed all indictments against respondent Babayan with prejudice. Petitioner Sarkissian seeks mandamus directing respondents, the Second Judicial District Court of the State of Nevada and the Honorable Robert L. Schouweiler, District Judge, to dismiss the indictments against him. For the reasons set forth below, we (1) affirm that portion of the district court's order dismissing the indictments against Babayan, (2) reverse the district court's decision to dismiss the indictments with prejudice, and (3) grant the relief petitioner Sarkissian seeks.

FACTS

The allegations that formed the basis of the grand jury indictments against Babayan and Sarkissian began to surface in early March, 1984, following the psychological evaluation of a child who attended the Montessori Washoe County Sheriff's Detectives soon began to investigate the alleged child abuse by interviewing children who attended Babayan's preschools, the children's parents, and preschool teachers and staff. As word of the alleged abuse and the investigation spread, more parents began to have their children who attended the preschools evaluated. Most of the evaluations were conducted by employees of the Children's Behavioral Clinic or by clinicians with whom the Children's Behavioral Clinic employees were associated in private practice. In time, more alleged victims began to surface. The allegations of child abuse, originally made against only Sarkissian--a shuttle bus driver and handy man at the Hash Lane preschool--soon included respondent Babayan and petitioner Sarkissian's successor in employment, Manouchehr Rashidi. Ultimately, a task force was formed to carry on the burgeoning investigation and to collate the information being gathered.

                preschool on Hash Lane in Reno. 1  Following a brief interview of the child at the Children's Behavioral Clinic in Reno, the evaluator, a contract psychologist at the clinic and a clinical psychology student at the University of Nevada, Reno, concluded that the child had been sexually abused
                

By at least mid-April, 1984, private civil attorneys contemplating civil suits against the preschools began contacting the District Attorney's Office. John Maher, the Assistant District Attorney that Washoe County District Attorney Mills Lane originally assigned to the case, later described the interaction between the District Attorney's Office and civil attorneys, and, in particular, attorney Peter Chase Neumann, as a bi-directional flow of statements made by the civil attorneys' clients. At least one civil attorney contacted the District Attorney's Office and expressed concern regarding the speed at which the investigation of the case was progressing.

In early May, 1984, the District Attorney's Office also became aware of other complaints about the slowness of the investigation. District Attorney Mills Lane in a subsequent hearing attributed these complaints to parents and other people that were involved with the school. A meeting was held on May 3, 1984, at the Washoe County District Attorney's Office in order to address the concerns. In attendance at the meeting were therapists who had evaluated some of the alleged victims, parents--at least one of whom, Dr. William Terry, was also a therapist actively engaged in evaluating alleged victims and providing information for the investigation--and supporters of respondent Babayan. Also in attendance were Mills Lane, John Maher, John Oakes--who later, for a time, would prosecute the case--and sheriff's deputies. On that night, while the investigation of the alleged abuse and the psychological evaluations of children were still ongoing, the decision to go forward with the prosecution was made.

The District Attorney's Office filed a complaint on May 4, 1984, and made its first presentation to the grand jury on May 9, 1984. It made subsequent presentations to the grand jury on June 6, September 13, October 25, and December 12, 1984. Those testifying at the grand jury presentations included: Washoe County Sheriff's Detective Brent Royle, civil attorney Peter Chase Neumann, ² some alleged victims, the alleged victims, parents, and various therapists who had evaluated and/or were treating the children. In all, the grand jury returned five indictments against Babayan, Sarkissian, and Rashidi that alleged sixty-nine counts of child sexual abuse involving twenty-six alleged victims.

In mid-1985, the various counsel for the defendants joined in a motion to have the alleged victims examined by independent experts. The Honorable Robert Schouweiler held a hearing on the motion on July 9, 1985. There, Rashidi's counsel stressed the need for evaluation of the children by outside experts, rather than, as he phrased Defendants' counsel offered as an expert witness Dr. Robert ten Bensel, a nationally recognized pediatrician and expert in child abuse. Dr. ten Bensel testified about the necessity of having evaluators skilled in developmental psychology, the effect of leading and coercive questions on children, the anatomy of small children, and the physical trauma that would be evident if full vaginal or anal penetration had occurred as alleged. Defendants' counsel also offered the testimony of Dr. Ernest A. Dernburg, a child psychiatrist, who was highly critical of the techniques that the clinicians employed in their evaluations of the children.

                it, "marriage and family counselors and therapists whose children had attended the Montessori School."   The purpose of the psychiatric evaluation that the defendants proposed was not to determine the specifics of the State's allegations, but to evaluate the alleged victims' credibility and competency.  As a factual basis for the motion, counsel pointed to statements by children that were either inconsistent with established[106 Nev. 159]  facts, i.e., one child alleged total penile penetration of her vagina when a medical examination revealed that her hymenal ring was intact, or that were simply incredible, i.e., another child alleged that large bullets had been fired into his rectum and that he had been forced to kill hundreds of people
                

Even before Judge Schouweiler granted the defendants' motion for psychiatric evaluation of the children on July 22, 1985, the defendants, on July 12, 1985, moved to disqualify the District Attorney's Office from prosecuting the charges against them. Among other things, the defendants alleged that the District Attorney's Office was under the influence and control of private civil attorneys and, therefore, was unable to prosecute the action fairly. In addition, the defendants alleged that the District Attorney's Office had failed to present exculpatory evidence in its presentations to the grand jury. Presumably because the defendants also alleged in their motion that District Attorney Mills Lane had surreptitiously entered Judge Schouweiler's chambers without permission, the Honorable Jerry Carr Whitehead heard the defendants' motion. After a two day hearing, Judge Whitehead denied the defendants' motion in its entirety. To set the holding on whether the District Attorney's Office was under the control of civil attorneys, Judge Whitehead stated:

So as to make the holding of this day clear, the Court finds not only that the defendants failed to meet their burden of proof, but that in addition, the facts brought forth at the hearing established that the District Attorney's Office in exercising its prosecutorial function, did so independent of outside influence.

Judge Whitehead declined to make a determination regarding the defendants' allegation that the District Attorney's Office failed to present exculpatory evidence to the grand jury because he believed that a complete examination of all the evidence would be necessary. Judge Whitehead, however, stated in his written order,

The court, however, can and does determine that based upon the testimony presented, that the four pieces of evidence introduced by the defendants, standing alone, do not require a finding by this Court that acts of sexual assault charged in the four counts could...