State v. Eighth Judicial District Court of the State of Nevada, 120 Nev. Adv. Op. No. 69 (NV 9/16/2004)
| Citation | 120 Nev. Adv. Op. No. 69 |
| Decision Date | 16 September 2004 |
| Docket Number | No. 41577.,41577. |
| Parties | THE STATE OF NEVADA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, AND THE HONORABLE JOHN S. MCGROARTY, DISTRICT JUDGE, Respondents, and ROBERT ROMANO, Real Party in Interest. |
| Court | Supreme Court of Nevada |
Petition granted.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and Douglas W. Herndon and James Tufteland, Chief Deputy District Attorneys, Clark County, for Petitioner.
Law Offices of Barry Levinson and Carol A. Kingman and Barry Levinson, Las Vegas, for Real Party in Interest.
BEFORE THE COURT EN BANC.1
Real party in interest Robert Romano is charged in an indictment with four counts of sexual assault of a minor under fourteen years of age and ten counts of lewdness with a child under fourteen years of age. The district court granted Romano's motion to compel the child victim to submit to an independent psychological examination. The State requests that this court issue a writ of prohibition, or in the alternative, mandamus, to prevent the Eighth Judicial District Court from enforcing its May 5, 2003, order granting Romano's motion for an independent psychological examination of the victim.
Robert Romano and his girlfriend are the natural parents of the child victim, born May 5, 1997. The couple and their child lived together in an apartment in Las Vegas until the couple's relationship began to deteriorate and the mother moved out. In August or September, 2002, Romano moved into a house in North Las Vegas. Romano and the mother agreed that the child would reside with Romano during the week so that the child could attend a better school. Romano claims that the mother asked him to take the child full time because she was not capable of taking care of the child and wanted the child to live in a better neighborhood. Romano claims that, due to the mother's job as a stripper, she rarely visited the child.
Romano also claims that shortly after his move, the mother informed him that she had obtained stable employment as a waitress, was ready to assume more parental responsibilities and wanted the child to reside with her. Romano refused the mother's request because he felt the child had become accustomed to his home, neighborhood and school. Romano states that as a result of his refusal a custody dispute ensued.
In November 2002, the child allegedly told her mother that Romano had engaged in inappropriate activities with her. The mother contacted Nevada Child Protective Services and, at that agency's request, took the child to Sunrise Hospital for evaluation. Doctor Harold Zilberman, a pediatric emergency physician at Sunrise, testified before the grand jury that the findings of the child's examination were normal, meaning that there were no signs of trauma, but that this did not necessarily preclude the possibility of sexual assault.
On December 19, 2002, the five-year-old child testified before the grand jury that she knew people were not supposed to touch certain areas of her body. She testified that she had touched Romano's "ding-ding" with her hands. She also demonstrated how she touched him and that, when she did, "lotion" came out of the hole. The child also stated that her father put his "ding-ding" in her mouth. This activity occurred both at the apartment shared by her parents and later at her father's house. The child testified that Romano had touched her butt with his hands and mouth while they were both naked and that he told her not to tell anyone. The child's mother was not present in the courtroom when the child testified.
The mother testified to the grand jury that she was not fabricating or lying to get Romano in trouble. She testified that she did not seek a change in custody until the child had told her about Romano's behavior. Romano did not testify before the grand jury. Instead, he requested that the prosecutor tell the grand jury that the mother had
fabricated these charges and used the child either for financial gain or to get revenge on Robert Romano because she thought Robert Romano was going to bring child custody proceedings to take the child away from her because of her unfitness as a mother and her physical abuse of the child.
Detective Jay Roberts also testified before the grand jury concerning his interview with Romano. Detective Roberts testified that initially Romano denied all the allegations and stated that he had never showered or bathed with the child. Romano insisted that the child's mother had coached the child and that the mother exposed the child to sex movies. Romano also told Detective Roberts that the child strikes sexy poses like Britney Spears. As the interview progressed, however, Romano admitted bathing with the child and sleeping in the same bed while both were clothed. Romano also told the detective that, on several occasions when he was on the computer, the child had reached into his gym shorts and grabbed him. Detective Roberts testified that Romano then admitted that the child had probably grabbed his penis in the shower when they lived in the apartment. Romano also related to Detective Roberts that the child had once caught him masturbating in the bathroom and that that is where she had seen the "lotion."
Detective Roberts further testified that, when he asked Romano why the child had told the detective that her father put his mouth on her "peck-peck," the child's term for vagina, Romano stated that he had to sniff her vagina after she bathed to make sure she was clean, and that perhaps his nose or moustache accidentally touched the child. He said that the child's mother made him do it. Romano told the detective that the child had also told him to kiss her "peck-peck" and her butt.
On January 10, 2003, the grand jury returned a true bill and Romano was then indicted on four counts of sexual assault of a minor under fourteen years of age and ten counts of lewdness with a child under fourteen years of age. On April 10, 2003, Romano moved for an independent psychological examination of the victim, alleging that there was no corroborating evidence other than the victim's testimony and that a reasonable basis existed for believing the victim's mental or emotional state may have affected her veracity. The district court granted Romano's motion and the State thereafter filed, with this court, a petition for a writ of prohibition or, alternatively, for a writ of mandamus.
Writ relief
We first consider whether a petition for writ relief seeking either to prevent the district court from enforcing its order or compelling it to vacate its order is proper in the instant case. Both mandamus and prohibition are extraordinary remedies, and are only appropriate when a plain, speedy and adequate remedy at law is not available.2 "A writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office, trust or station, NRS 34.160 . . . ."3 A "writ of prohibition is the counterpart of the writ of mandate" and is available to halt a tribunal's proceedings "when such proceedings are without or in excess of the jurisdiction of such tribunal."4 Petitions for extraordinary relief are not meant to control discretionary acts, "`unless discretion is manifestly abused or is exercised arbitrarily or capriciously.'"5 Finally, whether to grant the extraordinary remedy of writ relief is within the court's sound discretion.6
The instant petition follows the district court's order compelling an independent psychological examination of the victim. We have previously held that writ relief is available to prevent improper discovery.7 Moreover, we have held that "prohibition is a more appropriate remedy for the prevention of improper discovery than mandamus."8
In the instant case, a plain, speedy and adequate remedy at law is not available to the State. If improper discovery proceeds, this young alleged sexual assault victim will be unnecessarily subjected to an intrusive examination and the State will have no effective remedy to cure the improper discovery. Delayed consideration of this procedural issue until after completion of the trial will irreparably intrude upon the minor child's privacy rights. Under this circumstance, we consider entertainment of writ relief necessary. Accordingly, we conclude that the State's petition for a writ of prohibition is the appropriate vehicle for challenging the order compelling a psychological examination of the minor child.
Jurisdiction of trial courts
Because the Nevada Constitution does not grant a right to discovery in a criminal case or a right to order an alleged sexual assault victim to submit to psychological examination, the State suggests that we must find authority for such an examination in either statutory law or common law.9
Statutory authority
The State argues that the closest statutory sources empowering the trial court to order an alleged sexual assault victim to submit to a psychological examination are NRS 174.235 and NRCP 35, but that neither the statute nor the rule grants sufficient authority to the trial courts.
Although NRS 174.235 codifies discovery powers in criminal cases, the ability to discover reports of mental examinations of an alleged victim is limited to reports within the State's possession. NRS 174.235 does not grant trial courts the authority to require an alleged victim, who is, after all, a witness in the action but not a party to the action, to submit to psychological examination. NRCP 35 authorizes a trial court to order a party in a civil suit to submit to a mental examination when the...
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