State v. Second Judicial Dist. Court of State

Decision Date06 December 2018
Docket NumberNo. 72456,72456
Parties The STATE of Nevada, Petitioner, v. The SECOND JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF WASHOE; and the Honorable Lynne K. Simons, District Judge, Respondents, and Francisco Merino Ojeda, Real Party in Interest.
CourtNevada Supreme Court

Adam Paul Laxalt, Attorney General, Carson City; Christopher J. Hicks, District Attorney, Jennifer P. Noble and Joseph R. Plater, Appellate Deputy District Attorneys, Washoe County, for Petitioner.

John L. Arrascada, Public Defender, and John Reese Petty, Chief Deputy Public Defender, Washoe County, for Real Party in Interest.

BEFORE THE COURT EN BANC.

OPINION

By the Court, STIGLICH, J.:

In Artiga-Morales v. State , this court held that it was not reversible error for a district court to deny a defendant's motion to compel the disclosure of veniremember background information developed by the prosecution. 130 Nev. 795, 798-99, 335 P.3d 179, 181 (2014). This petition raises a related issue: whether a district court acted without authority in granting a motion to compel the disclosure of prosecution-gathered criminal histories of veniremembers. We hold that the district court has authority to order the State to share criminal history information obtained from databases to which the defense did not have access. We therefore deny the State's petition.

FACTS AND PROCEDURAL HISTORY

Francisco Ojeda awaits trial for murder in the Second Judicial District Court. In a pretrial motion, he sought an order compelling the State to disclose the criminal histories of veniremembers before jury selection. Ojeda alleged—and the State did not dispute—that courts in the Second Judicial District release a list of veniremembers to both parties several days before jury selection commences. Ojeda further alleged—and again the State did not dispute—that the State using government databases then accesses criminal histories for those veniremembers that are not available to defendants. Ojeda contended that the resulting disparity in information would put him at a disadvantage during jury selection. The State disputed this point, claiming that Ojeda would not be disadvantaged because he could obtain equivalent information either from commercial databases or through voir dire.

The district court granted Ojeda's motion. In particular, the district court ordered the State to "disclose the criminal histories the State gathers, if any, for potential venire members" to the district court on the Friday before trial, so that the court could then provide that information to Ojeda. The district court grounded its authority to order disclosure in NRS 179A.100(7)(j) (2015),1 which requires "[r]ecords of criminal history [to] be disseminated by an agency of criminal justice" to persons authorized by "court order." The district court further explained that "it believes in the fundamental right to fair play," and that "[a]llowing only the State to use the criminal histories of potential jurors creates a disparity."

The State filed the instant petition for a writ of prohibition or mandamus, arguing that the district court did not have the authority to compel the disclosure of the veniremembers' criminal history records.

DISCUSSION

We exercise our discretion to consider the State's petition

The decision to consider a writ of prohibition or mandamus lies within the sole discretion of this court. Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). As an extraordinary remedy, writ relief is generally available only when no "adequate and speedy" legal remedy exists, Cote H. v. Eighth Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d 906, 908 (2008). However, this court has exercised its discretion to intervene to resolve "a question of first impression that arises with some frequency," in "the interests of sound judicial economy and administration." Id. at 39-40, 175 P.3d at 908. A writ of prohibition is the proper remedy to restrain a district judge from acting "without or in excess of its jurisdiction." Smith , 107 Nev. at 677, 818 P.2d at 851. Mandamus is the proper remedy "to control a manifest abuse or arbitrary or capricious exercise of discretion." State v. Eighth Judicial Dist. Court (Armstrong), 127 Nev. 927, 931, 267 P.3d 777, 779 (2011).

Here, the State has no remedy in law. Whether Ojeda is acquitted or convicted, the State will not have the right to appeal. NRS 177.015(3). Moreover, as both parties agree, the departments in the Second Judicial District Court have adopted differing approaches to the issue of when to order disclosure of veniremember criminal histories.

Considering the State's petition is therefore in "the interests of sound judicial economy and administration," Cote H., 124 Nev. at 40, 175 P.3d at 908, we exercise our discretion to consider the State's petition.

A district court has the authority to compel the State to disclose veniremember criminal histories

The State argues that "the district court had no statutory, constitutional, or other authoritative basis to order the State to divulge its work product regarding the jury venire." We disagree.

The State is correct that the United States Constitution does not require the State to disclose veniremember criminal histories—we held as much in Artiga-Morales , 130 Nev. at 798-99, 335 P.3d at 181. In that case, Humberto Artiga-Morales challenged his conviction on the basis that the district court had denied his pretrial motion for the prosecutor to disclose veniremember "information gathered by means unavailable to the defense." Id. at 796, 335 P.3d at 180. After considering Artiga-Morales' statutory and constitutional arguments, we concluded that he "established neither a constitutional nor statutory basis for us to reverse his conviction based on the district court's denial of his motion to compel disclosure of prosecution-gathered juror background information." Id. at 798-99, 335 P.3d at 181. In declining to reverse Artiga-Morales' conviction, however, we did not address the threshold issue presented here: whether the district court had the authority to grant a motion to compel disclosure of veniremember criminal histories.

District courts enjoy broad discretion in the realm of discovery disputes. See Means v. State, 120 Nev. 1001, 1007, 103 P.3d 25, 29 (2004). As the district court noted, NRS 179A.100(7)(j) (2015) allowed courts to order "an agency of criminal justice" to disseminate "[r]ecords of criminal history." That statutory basis, combined with the district court's discretionary authority to control discovery, leads us to conclude that the district court did not act "without or in excess of its jurisdiction" when it ordered disclosure. Smith, 107 Nev. at 677, 818 P.2d at 851. Therefore, a writ of prohibition will not lie.

The district court did not act arbitrarily or capriciously in requiring the State to share veniremember criminal history information

Having concluded that the district court had authority to order disclosure of the State's records, we must now determine whether the court exercised that authority in an "arbitrary or capricious" manner. See Armstrong, 127 Nev. at 931-32, 267 P.3d at 779-80. "An arbitrary or capricious exercise of discretion is one founded on prejudice or preference rather than on reason, or contrary to the evidence or established rules of law ...." Id. at 931-32, 267 P.3d at 780 (citation and internal quotation marks omitted).

The district court's order contains a single factual finding: "[a]llowing only the State to use the criminal histories of potential jurors creates a disparity." The parties' stipulations support this finding. That is, the State concedes that it prepares for voir dire by acquiring veniremember information using at least one government database that is unavailable to defendants. Such unilateral access to a resource the State finds useful for jury selection indeed creates a disparity between the two sides. See People v. Murtishaw, 29 Cal.3d 733, 175 Cal.Rptr. 738, 631 P.2d 446, 465 (1981) ("[P]rosecutors in case after case will have substantially more information concerning prospective jurors than do defense counsel"), superseded by statute on other grounds as stated in People v. Boyd, 38 Cal.3d 762, 215 Cal.Rptr. 1, 700 P.2d 782, 790 (1985).

The remaining question is whether this disparity can be corrected. As the State correctly notes, our judicial system does not require parity of information between prosecution and defense. See generally Kyles v. Whitley, 514 U.S. 419, 436-37, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (acknowledging that "the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense"). And while the State attempts to categorize the veniremember information as its work product, this argument was not made before the district court and is therefore inappropriately presented to this court. See Archon Corp. v . Eighth Judicial Dist. Court, 133 Nev. ––––, 407 P.3d 702, 708 (2017). However, even if we consider the State's work product argument, we do not believe the raw information from the criminal history databases contains "the mental processes of the attorney." Floyd v. State, 118 Nev. 156, 167, 42 P.3d 249, 257 (2002) (internal quotation marks omitted), abrogated on other grounds by Grey v . State, 124 Nev. 110, 118, 178 P.3d 154, 160 (2008) ; see also Losavio v. Mayber, 178 Colo. 184, 496 P.2d 1032, 1034 (1972) (holding that veniremember criminal histories are not "in any conceivable way work product" (internal quotation marks omitted) ). Rather, in accessing these databases, the prosecution is merely capitalizing on its relationship with government entities that systematically acquire detailed information on individuals who enter the criminal justice system. As the quantity and quality of that information continue to increase, unilateral State access will increasingly disadvantage defendants. See A...

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