Thomas v. Eighth Judicial Dist. Court of State

• Decision Date: 14 September 2017
• Docket Number: No. 69074.,69074.
• Citation: 402 P.3d 619
• Parties: Lacy L. THOMAS, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Michael Villani, District Judge, Respondents, and The State of Nevada, Real Party in Interest.
• Court: Nevada Supreme Court

402 P.3d 619

Lacy L. THOMAS, Petitioner,

v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Michael Villani, District Judge, Respondents,andThe State of Nevada, Real Party in Interest.

No. 69074.

Supreme Court of Nevada.

FILED SEPTEMBER 14, 2017

Law Office of Franny Forsman and Franny A. Forsman ; Daniel J. Albregts, Ltd., and Daniel J. Albregts, Las Vegas, for Petitioner.

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Michael V. Staudaher and Ofelia L. Monje, Deputy District Attorneys, Clark County, for Real Party in Interest.

BEFORE THE COURT EN BANC.¹

OPINION

By the Court, STIGLICH, J.:

In Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), the United States Supreme Court held that when a mistrial is declared at a defendant's request, the Double Jeopardy Clause of the United States Constitution bars reprosecution only in those instances where a defendant demonstrates that the prosecutor intentionally acted to "goad" the defendant to move for a mistrial. Nevada adopted the Kennedy standard in Melchor–Gloria v. State , 99 Nev. 174, 660 P.2d 109 (1983).

In the years following Kennedy , a number of states have observed the difficulty of proving a prosecutor's specific intent to provoke a mistrial, and adopted broader standards. Having reviewed these decisions, this court agrees that the Kennedy standard is unduly narrow. Therefore, the court concludes that pursuant to the protections of Article 1, Section 8 of the Nevada Constitution, when a defendant requests a mistrial, jeopardy will also attach when a prosecutor intentionally proceeds in a course of egregious and improper conduct that causes prejudice to the defendant which cannot be cured by means short of a mistrial.

FACTS AND PROCEDURAL HISTORY

In 2008, the State of Nevada filed an indictment against Lacy L. Thomas, the former chief executive officer of University Medical Center (UMC), charging five counts of theft and five counts of official misconduct. The charges related to contracts entered into between Thomas and five separate entities, which the State asserts were controlled by friends or associates of Thomas. The State contended that the terms of the five contracts were so grossly unfavorable to UMC that each contract represented an act of theft. One of these theft charges related to a contract negotiated by Thomas with Superior Consulting (ACS).

Thomas initially proceeded to trial in 2010. On approximately the fifth day of trial, an attorney for ACS, in a conversation with Thomas's attorneys outside of court, referred to a binder of documents that he believed to be exculpatory with respect to ACS. ACS's attorney indicated he had previously provided these documents to the police detectives investigating ACS and Thomas. These documents had never been provided to Thomas.²

On the basis of this late disclosure, Thomas moved for a mistrial. The district court granted the motion on the tenth day of trial. After a cursory review, the district court found that, at a minimum, the documents provided substantial material relevant to the cross-examination of several key witnesses. Given that 13 witnesses had already testified over nine days of trial, the district court determined that a mistrial was necessary.

Following the mistrial, Thomas filed a motion to dismiss pursuant to the Double Jeopardy Clause, and a motion to dismiss the indictment for vagueness and failure to state a claim with sufficient specificity. The district court granted the second motion with respect to all counts, finding that the State had failed to identify its allegations against Thomas with sufficient specificity. The district court did not rule on Thomas's claims that the underlying statutes were unconstitutionally vague. On appeal, this court upheld the dismissal of the theft charges related to ACS, but found that the indictment provided Thomas with sufficient notice of the remaining charges. State v. Thomas , Docket No. 58833 (Order Affirming in Part, Reversing in Part and Remanding, Sept. 26, 2013).

Upon remand to the district court, Thomas renewed his motion to dismiss for double jeopardy. He also filed a renewed motion regarding vagueness, arguing that the district court had not reached these claims in its prior order.

Following an evidentiary hearing, the district court made a conclusive finding that the documents at issue were exculpatory in nature, as they tended to demonstrate that ACS had performed work pursuant to its contract with UMC. The district court also found that the documents had been provided to the district attorney's office by police detectives. Nonetheless, the court denied Thomas's double jeopardy motion, finding that the State had not intentionally withheld the documents from Thomas. The district court further noted that the documents withheld related to conduct by ACS. Because the theft charge was dismissed with respect to ACS, the district court determined that there was no "carryover" of double jeopardy to any remaining counts. The district court concluded that it lacked authority to consider Thomas's vagueness motion, as the parties had argued the issue of constitutional vagueness in the first appeal to this court.

Thomas now petitions for extraordinary relief, asking this court to consider (1) whether double jeopardy bars reprosecution, (2) whether double jeopardy has attached to all charged counts, and (3) whether the district court had authority to rule on his renewed motion to dismiss for unconstitutional vagueness.

We exercise our discretion to consider Thomas's petition

The decision to consider a writ of 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). "A writ of mandamus is available to compel the performance of an act that the law requires ... or to control an arbitrary or capricious exercise of discretion." Int'l Game Tech., Inc. v. Second Judicial Dist. Court , 124 Nev. 193, 197, 179 P.3d 556, 558 (2008) ; NRS 34.160. "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." State v. Eighth Judicial Dist. Court (Armstrong ), 127 Nev. 927, 931–32, 267 P.3d 777, 780 (2011) (internal quotation marks omitted) (citation omitted). "[W]here there is [no] plain, speedy and adequate remedy in the ordinary course of law," extraordinary relief may be available. NRS 34.170 ; Smith, 107 Nev. at 677, 818 P.2d at 851. "While an appeal generally constitutes an adequate and speedy remedy precluding writ relief, we have, nonetheless, exercised our discretion to intervene ‘under circumstances of urgency or strong necessity, or when an important issue of law needs clarification and sound judicial economy and administration favor the granting of the petition.’ " Cote H. v. Eighth Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d 906, 908 (2008) (quoting State v. Second Judicial Dist. Court (Ducharm ), 118 Nev. 609, 614, 55 P.3d 420, 423 (2002) ).

The double jeopardy issues presented by this case are important issues of law that require clarification. Further, given Thomas's argument that double jeopardy bars reprosecution, sound judicial economy supports consideration of these issues before a second jury trial. Therefore, we exercise our discretion to intervene in these circumstances by way of extraordinary writ.³

Double jeopardy applies in this case

Thomas first argues that his renewed prosecution by the State following the initial mistrial violates the Double Jeopardy Clause of the United States and Nevada Constitutions. This presents a question of law that this court reviews de novo. Grupo Famsa v. Eighth Judicial Dist. Court, 132 Nev. ––––, 371 P.3d 1048, 1050 (2016). However, this court "will not disturb [the] district court's findings of fact unless th[ose] [findings] are clearly erroneous and not based on substantial evidence." All Star Bail Bonds, Inc . v. Eighth Judicial Dist. Court, 130 Nev. ––––, 326 P.3d 1107, 1109 (2014) (internal quotation marks omitted).

Generally, a state may not put a defendant in jeopardy twice for the same offense. U.S. Const. amend. V ; Nev. Const. art. 1, § 8. As observed by the United States Supreme Court, a fundamental purpose of the bar against double jeopardy is to ensure that

the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187–88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). Given the purpose of protecting against potential abuses by the state, in analyzing whether double jeopardy bars reprosecution after mistrial, "both the United States Supreme Court and this court have made a distinction between those cases in which the prosecution moves for mistrial and those in which the defense moves for mistrial." Taylor v. State, 109 Nev. 849, 861, 858 P.2d 843, 851 (1993) (Shearing, J., concurring in part and dissenting in part); see also Rudin v. State, 120 Nev. 121, 142–43, 86 P.3d 572, 586 (2004).

Double jeopardy following the State's request for mistrial

In cases where a mistrial is declared at the request of the prosecutor, the concern that the state may pursue a mistrial for its own advantage is strong. Therefore, in these instances, a court must examine (1) whether the declaration of a mistrial was dictated by "manifest necessity," and (2) "in the presence of manifest necessity, whether the prosecutor is responsible for the circumstances which necessitated declaration of a mistrial." Hylton v. Eight h Judicial Dist. Court, 103...