MILLS LANE, District Attorney for Washoe County, Petitioner, v. SECOND JUDICIAL DISTRICT COURT, WASHOE COUNTY, THE HONORABLE ROBERT L. SCHOUWEILER, District Judge, and THE HONORABLE ROBIN WRIGHT, District Judge, Respondents
Lane v. Second Judicial District Court, Washoe County
Young, J., concurs.
MILLS LANE, District Attorney for Washoe County, Petitioner, v. SECOND JUDICIAL DISTRICT COURT, WASHOE COUNTY, THE HONORABLE ROBERT L. SCHOUWEILER, District Judge, and THE HONORABLE ROBIN WRIGHT, District Judge, Respondents.
MILLS LANE, District Attorney for Washoe County, Petitioner, v. SECOND JUDICIAL DISTRICT COURT, WASHOE COUNTY, THE HONORABLE ROBERT L. SCHOUWEILER, District Judge, and THE HONORABLE ROBIN WRIGHT, District Judge, Respondents.
No. 18768
August 29, 1988
760 P.2d 1245
Mills Lane, District Attorney, and Gregory R. Shannon, Deputy District Attorney, Washoe County, for Petitioner.
Hon. Robert L. Schouweiler, District Judge, Second Judicial District Court, Washoe County, for Respondents.
OPINION
By the Court,
Springer, J.:
This original petition for a writ of prohibition challenges an order of the district court enjoining the Washoe County District Attorney from proceeding further with a criminal matter, and designating an investigator or so-called "special prosecutor" to evaluate the case for possible resubmission to the grand jury. On February 22, 1988, this court entered an order denying extraordinary relief, concluding that petitioner failed to demonstrate that the respondent district court acted arbitrarily or capriciously in the exercise of its discretion, or that it otherwise exceeded its jurisdiction. Petitioner has now petitioned for rehearing or reconsideration of our order, contending that this court overlooked two material matters and requesting further consideration of an argument previously raised. The petition for rehearing is opposed. Upon thorough review of the contentions of the parties, and of the record now before us, we conclude:
(1) The district attorney is inappropriately seeking to raise points never properly raised by his original petition to this court, and to reargue points fully considered in our original order;
(2) In any case, the district attorney is incorrect in his contention that he is vested with the sole right to control the processes of the grand jury, to the exclusion of District Court Judge Robert L. Schouweiler, who impaneled the grand jury, and to the exclusion of Chief Judge Robin A. Wright, who joined with Judge Schouweiler in entering the order challenged in these proceedings;
(3) The respondent judges' determination is well founded that complaints tendered to the district court by victims of alleged sexual assaults, and by two investigating officers of the Washoe County Sheriff's Department, warrant judicial inquiry, by virtue of the following:
(a) The record reflects without contradiction that the district attorney's deputy who presented the case to the grand jury did so in a manner that, as a natural consequence, precluded the grand jury from knowing about or considering the testimony of the investigatory officers;
(b) In presenting the case to the grand jury, the district attorney's deputy also depreciated the prosecution's case by multiple violations before the grand jury of Nevada's "rape shield law," NRS 50.090 and 48.069; and
(c) The district attorney's deputy depreciated and prejudiced the prosecution's case by the introduction of hearsay testimony which, as a natural and apparently intended consequence, diminished the credibility of the complaining witnesses.
Nonetheless, in our view, an inference does not inexorably follow that the district attorney himself, Mills Lane, was a blameworthy participant in the prosecutorial omissions mentioned above. Consequently, before the respondent judges took action to appoint a special investigator or "prosecutor" to collect further data in the district attorney's place and stead, we believe they should have accorded the district attorney notice and an opportunity to be heard concerning the prior failures of the prosecution and as to whether the district attorney's office will proceed properly with the case in the future. Although petitioner's claim that he did not receive proper notice has been raised belatedly, for the first time on rehearing, we have considered the matter in the interests of reaching a correct and speedy disposition. Accordingly, we grant rehearing and a writ of prohibition directing that the inquiry ordered below shall not proceed until a hearing on notice to the district attorney has been conducted before the district court, affording the district attorney an opportunity to be heard as aforesaid.
FACTS
In the early morning hours of February 22, 1986, two young women, referred to hereafter as Jane and Mary, visited Nye Hall, a coeducational dormitory on the campus of the University of Nevada at Reno (UNR). During that visit, four young men, three of whom are members of the UNR football team, allegedly engaged in nonconsensual sexual acts with the young women. Jane and Mary did not immediately complain to the police. Several days after the incident, however, Jane allegedly continued to experience pelvic pain. Both women then visited the hospital and were examined by physicians. The police were notified of the incident at this time. Washoe County Sheriff's Deputies Putnam and Jenkins assisted the university police in investigating the complaints of the two women. The officers took statements from the four suspects involved, administered certain tests, and recorded the results of these tests and interviews. As a result of their investigation, it appears that the officers obtained certain data, some of which they regarded as admissions or confessions.
Following their investigation, the officers felt that the evidence, including the confessions or admissions, justified charges against the men for sexual assault. The officers' supervisor agreed, and the evidence was submitted to the Washoe County District Attorney for presentation to the grand jury.
The deputy district attorney scheduled grand jury time for this presentation on two dates, March 26, 1986, and April 10, 1986, to accommodate all witnesses whose testimony he felt would be necessary to present. The proposed indictments of the suspects, however, listed only four witnesses — the complainants and two friends of the suspects. The investigating officers were not listed as witnesses, although they were subpoenaed to testify.
According to the grand jury transcript of March 26th, at the outset of the presentation of evidence, the deputy district attorney told the grand jurors, "[t]his is . a rather unusual proceeding in that we anticipate a break . . . and I think you will see why that break is necessary." He then presented to the grand jury the testimony of the two alleged victims, after which he requested that the grand jurors take a break. Following this break, the deputy district attorney called "Roe," a friend of the suspects, to testify. This "witness," a fellow member of the UNR football team, testified that he had spent the weekend in question out of town and that he had learned about the incident from others during the following week. He then indicated to the grand jurors his opinion, based on a conversation with Mary and their past relationship, that Mary had in fact consented to the sexual acts of which she later complained:
DEPUTY D.A.: After the police talked to you, [Mary] called you?
ROE: That night she called me saying . . . she felt she owed me an explanation of what had happened. I told her she didn't owe me anything. And I did inquire about it, asked her "Why are you guys lying about this and trying to get. . . all them in trouble?"
DEPUTY D.A.: What did she say?
ROE: She said it — I said "Why are you lying about and saying they raped you?" Was my direct statement. She said "They did not rape us. I feel they took advantage of us."
DEPUTY D.A.: "They took advantage of us?"
ROE: That is what she said.
DEPUTY D.A.: Did you have any other discussion with either [Jane] or [Mary] about this situation?
ROE: No, I have not.
DEPUTY D.A.: You haven't had any other meetings with [Mary] on any subject.
ROE: No. But when I asked her on the phone, I asked her "Why are you lying about this and trying to get them in trouble?" She wouldn't answer me. I felt, you know—
DEPUTY D.A.: That is when she said "They were taking advantage of us?"
ROE: Yeah. In my mind I felt that, you know, I knew there wasn't any wrongdoing.
DEPUTY D.A.: How did you know?
ROE: From—
DEPUTY D.A.: The way you feel?
ROE: My feelings there wasn't any wrongdoings. From my past experiences with [Mary], I know how she is and I didn't want to further the conversation any.
Following this testimony, the deputy district attorney indicated to the grand jurors that no more time was scheduled on that day for their consideration of the case:
Mr. Foreman, looking at the schedule we have gone way beyond our allotted time. There are several other witnesses who have been subpoenaed to testify and I would leave it to the Grand Jury to decide whether you want to deliberate at this point in time to the conclusion of a no true bill or true bill or desire to hear those other witnesses who will be made available to you in two weeks.
The transcript indicates that the grand jury then met privately to consider whether to proceed. The deputy district attorney then stated for the record:
Before we proceed, Mr. Foreman, you asked the reporter and I [sic] to leave the room at the end of the last witness' testimony when we indicated we were pretty much out of time. You have since asked me to have Mr. [Doe] who was here present and ready to testify and you wish to continue with that with our investigation. . . .
Accordingly, the deputy district attorney presented Mr. Doe, the last witness endorsed on the proposed indictment. Doe, a friend of the suspects, testified that he was in the suspects' dormitory room on the night in question, that the two complainants were apparently intoxicated, and that he left before the alleged incidents occurred when an argument ensued between Jane and one of the suspects. The deputy district attorney then permitted this witness to testify in response to the following questions of a grand juror concerning rumors Doe had heard about the complainants' reputations, and concerning Doe's belief that the women had consented to the sexual acts:
A GRAND JUROR: Did you hear any talk that would lead you to any sort of conclusion in your own mind as to whether either of these girls resisted or didn 't want this to happen?
DOE: No, I did not.
A GRAND JUROR: Did you hear any talk that would indicate that they did want it to happen? . . .
DOE: Somewhat, because they came around and, you know, it really wasn't any talk, you know, they wanted to have it, you know. You know. It wasn't a plan. It was nothing like that. No one — you know, it wasn't like they wanted it to happen or they didn't want it to happen. I guess it just happened. It wasn't nothing like that.
A GRAND JUROR: You said [Mary] made a statement to you you didn't — you shouldn't mess with the person who gives the best head in Reno?
DOE: Yeah.
A GRAND JUROR: What was your impression about her then I mean?
DOE: I had heard rumors about her.
A GRAND JUROR: Was it just because she was intoxicated, this girl was drunk?
DOE: I just thought she wanted, you know.
A GRAND JUROR: No biggie?
DOE: I didn't think nothing of it. I just thought they were like that.
DEPUTY D.A.: Did you think it was like a drunk girl talking or being real serious or what?
DOE: Yeah. I just thought they were like that, the girls were like that period, drunk, or that is the impression they left me.
DEPUTY D.A.: You didn't know them before, don't know them since?
DOE: I never knew them. Just their reputation.
A GRAND JUROR: When you talk about their reputation, is this something you had heard before that evening?
DOE: Oh, I had heard it around last semester about them, you know. But I never really took it, you know, because I never said anything to them. I just seen them. I never talked to them.
A GRAND JUROR: Did you hear the reputation around the guys?
DOE: The campus.
A GRAND JUROR: Or was it the campus? I am trying to specify. Was it a mixed group of females or just males talking?
DOE: It was everyone in Nye. Male and female knew about these girls.
(Emphasis added.) During this testimony, the foreman of the grand jury commented upon the relevance of the complainants' reputations to the proceeding: "Mr. [deputy district attorney], I don't know, their reputation isn't a factor." Rather than answering the foreman's inquiry, the deputy district attorney replied only that:
The legal question here today is the strict thing that is laid out in the proposed Indictment, whether or not on this occasion they had sexual relations with each — the individual persons that are named in the particular counts against the will of the woman and whether that lack of consent was communicated to the perpetrator.
Although the investigating officers had been subpoenaed and were available to testify at the proceeding, the deputy district attorney then falsely informed the grand jury that "I don't know there are any other witnesses here available to testify, although I do know there are some that have been proposed by the defendants' attorneys who can bring evidence to the Grand Jury." The foreman then asked the deputy district attorney if the suspects wished to testify. In an affidavit submitted to this court in support of the petition for rehearing, the deputy district attorney states that all four suspects wished to testify and were available. In contradiction of this, however, the deputy district attorney responded to the foreman's question as follows:
DEPUTY D.A.: They have been invited to testify. One of them has indicated . he does desire to testify. And I am not sure as to any of the other defendants. Whether or not they testify of course cannot be held against them if they decide not to testify.
Further, when the foreman asked the deputy district attorney whether the suspect who had indicated he wished to testify was present, the deputy district attorney indicated, "I am not sure. I will check." That suspect, who was not listed on the proposed indictments as an intended witness, then testified. During the course of the testimony of the suspect relating his version of the incident in question, the deputy district attorney permitted him to recount to the grand jury an alleged prior sexual encounter with Jane:
A GRAND JUROR: You said the girls had been there before on other occasions. Did you and your roommate or any of the other guys have sex with them?
THE WITNESS: I have sir. I had sex with [Jane] once, sir, and she gave me oral copulation one time before because she was on her period.
At no time did the deputy district attorney inform the grand jurors either that the investigating officers were available to testify or that their investigation generated eight exhibits. In his affidavit filed in this court, the deputy district attorney explains his reasons for not calling the officers: "[T]he testimony of [this suspect] . . . was not inconsistent with his statements to law enforcement officers. . It was your affiant's intention to present these witnesses if the targets of the Grand Jury testified inconsistently with the statements they had given these officers." (This explanation, of course, totally obscures and fails to address the experienced investigating officers' representations that the statements constituted incriminating confessions or admissions.) Following presentation of the testimony set forth above, the deputy district attorney told the grand jury:
Again, Mr. Foreman, we are severely behind the schedule. I know Miss Zuppan is going to kill me, but there are other potential witnesses available. I don't know what the Grand Jury's pleasure is at this point in time. I don't know they are able to testify at this point.
The foreman then requested a moment of privacy with the grand jury, and the deputy district attorney and the court reporter were excluded from the grand jury room. The transcript of the grand jury proceeding ends at this point; hence, the record does not support the deputy district attorney's representation that the grand jury "refused" to hear more witnesses. Following their conference, the grand jury returned a "no true bill," and thus declined to indict the suspects based upon the evidence they had heard.
When the sheriff's deputies realized that the grand jury reached its decision without hearing testimony and other evidence relating to their investigation, they immediately complained to their supervisor. Eventually, the officers tendered their information to respondent Judge Schouweiler, who made the officers' complaints known to respondent Judge Wright. Further, one or both of the two complainants also visited Judge Schouweiler, and Mary provided him with an affidavit which reflected her belief that there existed confessions of the suspects which had not been presented to the grand jury. Although Judge Schouweiler attempted to obtain the transcript of the grand jury proceeding, it was not delivered to Judge Schouweiler upon his request. Consequently, confronted with the complaints of the officers and the alleged victims, and unable to review the transcript of the challenged proceeding, on February 12, 1988, the respondent judges issued an order appointing attorney Paul Elcano to collect the data necessary to determine whether resubmission of the matter to a new grand jury would be appropriate, and restraining the Washoe County District Attorney from proceeding further in the case due to perceived irregularities in the presentation of the case to the grand jury.
Petitioner, Washoe County District Attorney Mills Lane, then filed in this court a petition for a writ of prohibition, requesting that the respondent district court judges be prohibited from intervening in the case. The petition was not, however, verified by petitioner Lane or his deputy. See NRS 34.330 (writ is issued only upon affidavit, on the application of the person beneficially interested); NRS 15.010(1) (verification by petitioner's attorney appropriate under certain circumstances). Additionally, the petition was not properly documented with a copy of the grand jury transcript as required by NRAP 21(a).
On February 22, 1988, this court entered an order noting the procedural derelictions and denying the petition on the merits. Petitioner subsequently filed a petition for reconsideration or rehearing on February 26, 1988. Prior to the filing of that petition, however, on February 18, 1988, Judge Schouweiler issued a supplemental order in the proceeding below. This supplemental order is designated "sealed," and indicates that the review by respondent Judge Schouweiler of the grand jury transcript supports his earlier conclusion that a special investigation is warranted. Specifically, respondent Judge Schouweiler notes in the supplemental order that the admissions or confessions of the suspect who testified before the grand jury should have been presented in order to impeach his testimony. Judge Schouweiler also states that the grand jury transcript does not disclose that the deputy district attorney informed the grand jury of the existence of the confessions and admissions, or that the investigating officers were subpoenaed to present them. Thus, respondent Judge Schouweiler concludes that the transcript "fails to support the District Attorney's media allegations that the confessions were not presented because the Grand Jury told the District Attorney it did not want to hear any more testimony." Judge Schouweiler also opines that "one inference that can be drawn is that the District Attorney did not want to present the confessions and took several opportunities to suggest to the Grand Jury that it begin deliberating." The district judge further notes in this order that the transcript reveals violations of Nevada's rape shield law, see NRS 48.069 and 50.090, during the grand jury proceeding.
SUPERVISION OF GRAND JURY
In his original petition for extraordinary relief, petitioner primarily contended that the district court's order violated the doctrine of separation of powers. Specifically, petitioner contended that only he, as the representative of the executive branch of the government, may conduct prosecutions on behalf of the people, and that, therefore, the challenged order constituted "an unconstitutional infringement of the judiciary on executive powers." In rejecting this contention, this court noted that the office of the district attorney is not an office created by the Nevada State Constitution. Rather, the district attorney's duties and powers are prescribed by the legislature and are statutorily defined in NRS 252.110. Consequently, we concluded that the doctrine of separation of powers is inapplicable.
Further, we noted that control of the grand jury's functions is not vested in the district attorney or his office and that the grand jury should function independently of the prosecution. The grand jury performs as an adjunct to the judicial branch of the government and, as such, is not integrated within the executive branch. Significantly, NRS 172.097(1) expressly provides that "[t]he district judge impaneling a grand jury shall supervise its proceedings." See also NRS 172.047. Thus, our order concluded that, even under the concept of separation of powers, the supervision of the grand jury is committed to the judicial branch of the government. As this court has previously stated in a case involving the Washoe County District Attorney's Office:
Grand juries have traditionally been within the control of the courts, In re Grand Jury Subpoena to Central States, 225 F.Supp. 923 (N.D.Ill. 1964); In re Ormsby Grand Jury, 74 Nev. 80, 322 P.2d 1099 (1958); and the trial judge should exercise his powers when appropriate. United States v. Doulin, 538 F.2d 466 (2d Cir. 1976), cert. denied, 429 U.S. 895. Moreover, our constitutional and statutory scheme contemplate reasonable judicial control of our grand juries. Thus, the court presides at the impanellment of the grand jury (Art. 6, § 5, Nev. Const.; NRS 6.110-140), receives presentments and indictments (Art. 6, § 5, Nev. Const.; NRS 172.255, 172.285), determines when a grand jury shall be impanelled (NRS 6.110, 6.130), charges the grand jury as to its authorities and responsibilities (NRS 172.095), and determines when a grand jury is to be discharged, recessed (NRS 6.145), or a juror excused (NRS 172.275).
In re Report Washoe Co. Grand Jury, 95 Nev. 121, 126-27, 590 P.2d 622, 625-26 (1979) (emphasis added). Thus, we concluded that the district court had not undertaken review or supervision of the performance of the grand jury that exceeded its jurisdiction or infringed upon powers exclusive to the executive branch of government.
We also rejected petitioner's argument that the district court lacks jurisdiction to disqualify a prosecutor prior to the filing of a charging document in a criminal matter and to appoint a special prosecutor. As we noted in our order, NRS 252.100(1) specifically provides, in relevant part:
If the district attorney . for any reason is disqualified from acting in any matter coming before the court, the court may appoint some other person to perform the duties of the district attorney. . . .
Indeed, courts in other jurisdictions have recognized that, in exercising its supervisory powers over grand jury proceedings, a trial court "may order the disqualification of attorneys attending the grand jury where the integrity of the grand jury process and the proper administration of justice require it." See Amemiya v. Sapienza, 629 P.2d 1126, 1129 (Haw. 1981) (quoting Sapienza v. Hayashi, 554 P.2d 1131 (Haw. 1976)). In the absence of countervailing authority, we think that a district attorney may be disqualified if a court, in the exercise of its supervisory powers over the grand jury, determines there is a prospect that the district attorney has not properly pursued his prosecutorial functions.
On rehearing, petitioner urges this court to consider further certain aspects of the separation of powers argument raised in his original petition. Specifically, petitioner states that he
agrees that based upon the specific statutory and case citations in that Opinion [In re Report Washoe Co. Grand Jury, supra] that while the courts have those specific supervisory functions they do not retain or supervise the District Attorney or Attorney General presentations to the Grand Jury. There is no citation to either statute or case law which allows the judiciary to make the evidentiary presentation to the Grand Jury, to have the Court's agent make the presentation to the Grand Jury or to retain any control over which witnesses or what evidence will be presented prior to the case actually being presented to the Grand Jury.
Petitioner further contends that, should the district attorney refuse to resubmit this matter to the grand jury, under NRS 173.065 the prosecutorial responsibility for the case remains with the executive branch rather than with a "special prosecutor" selected by the district court.
As we have stated many times, matters previously presented to this court may not be reargued in a petition for rehearing. See NRAP 40(c)(1); In re Herrmann, 100 Nev. 149, 151, 679 P.2d 246, 247 (1984). Petitioner is therefore improperly raising this issue for a second time before this court. In any event, we have reviewed petitioner's argument on rehearing and conclude that further consideration of his separation of powers argument is unwarranted.
First, respondents are not attempting to supervise the district attorney's presentation to the grand jury. They merely appointed an independent attorney to conduct an investigation to determine whether the case should be resubmitted to the grand jury. Neither are respondents making the evidentiary presentation to the grand jury, or controlling the witnesses or evidence to be presented. Likewise, the district court's agent is not presenting the case to the grand jury, but simply investigating whether the matter should be resubmitted to the grand jury.
Additionally, the district court's supervisory powers are not as limited as petitioner suggests. Its powers over the grand jury extend beyond those declared specifically by statute:
A grand jury has no existence aside from the court which calls it into existence and upon which it is attending. A grand jury does not become, after it is summoned, impaneled, and sworn, an independent planet, as it were, in the judicial system, but still remains an appendage of the court on which it is attending. . It is and remains a grand jury attending on the court, and does not, after it is organized, bécome an independent body, functioning at its uncontrolled will, or the will of the district attorney or special assistant. . A supervisory duty, not only exists, but is imposed upon the court, to see that its grand jury and its process are not abused, or used for purposes of oppression and injustice.
People v. Sears, 273 N.E.2d 380, 387-88 (Ill. 1971) (quoting In re National Window Glass Workers, 287 F. 219 (N.D. Ohio 1922)); see also Annotation, Power of Court to Control Evidence or Witnesses Going Before Grand Jury, 52 A.L.R.3d 1316 (1973).
Further, NRS 173.065 does not support petitioner's argument that the attorney general, rather than a "special prosecutor," should resubmit a case to the grand jury when the district attorney refuses to do so. That statute provides for the appointment of the attorney general in the district attorney's place when the district attorney refuses to prosecute a person who has committed a crime. As noted in our order denying extraordinary relief, it might well be appropriate that the attorney general perform the function of alternate prosecutor following the return of any indictments. At this point in time, however, no indictments have been filed and, accordingly, a "prosecution" has not begun. See Ryan v. District Court, 88 Nev. 638, 503 P.2d 842 (1972) (prosecution of a case does not begin until after charges are filed). Hence, petitioner's concern in this regard is premature.
Similarly, we reject petitioner's contention that respondents have no authority to require the special prosecutor to report to respondent Judge Schouweiler prior to resubmitting the case to the grand jury. NRS 172.255(4) requires the district court to approve the resubmission of a matter to the grand jury if a grand jury has previously refused to indict on the same charges.
GRAND JURY PROCEEDINGS
Petitioner next argues that rehearing is warranted because we overlooked the request in his original petition that this court inspect the grand jury transcript. He contends that a review of this transcript will establish that there was no irregularity in the presentation of the case. As noted above, in contravention of NRAP 21(a), a copy of this transcript was not appended to the writ petition. Nonetheless, we have now reviewed the grand jury transcript. We adhere to our prior determination that petitioner failed to demonstrate that the district court acted arbitrarily or capriciously in determining that a judicial inquiry is warranted into the presentation of the case to the grand jury.
A. WITHHOLDING OF INCULPATORY EVIDENCE
First, our review of the grand jury transcript reveals sufficient evidence to support the district court's determination that the deputy district attorney may have withheld inculpatory evidence from the grand jury. The transcript of the grand jury presentation reveals that the deputy district attorney handled the presentation in such a manner that the results of the sheriff department's investigation were never revealed. Indeed, the deputy district attorney not only failed to list the investigating officers as witnesses on the proposed indictments, he also failed to inform the grand jury that they were present to testify on March 26th. Additionally, the grand jurors were never made aware of the existence of the eight exhibits generated as a result of the investigation or that the suspects gave allegedly incriminating statements to law enforcement officials. It does not, as petitioner argues, appear from the transcript that the grand jurors "refused" to hear more testimony. Rather, it appears from the transcript that the proceedings ended due to the deputy district attorney's repeated references to scheduling pressures and to his "doubts" about the availability of witnesses or the suspects to testify. The deputy district attorney's suggestion that the grand jury take a break during the presentation of the case, despite the time pressures, is particularly troubling. It is not apparent why he wanted the grand jury to break, and we query whether he was creating the time shortage of which he repeatedly complained. The prosecutor is under a duty not to inflame or otherwise improperly influence the grand jury's ability to evaluate the evidence independently and impartially. See Sheriff v. Frank, 103 Nev. 160, 734 P.2d 1241 (1987). As this court stated in Franklin v. State, 89 Nev. 382, 386, 513 P.2d 1252, 1255 (1973):
In presenting a case to a grand jury a prosecutor . . . must scrupulously refrain from words or conduct that will invade the province of the grand jury or tend to influence the jurors in their judgment.
The deputy district attorney's conduct before the grand jury is therefore clearly a matter of legitimate concern, and validates the conclusion of the district court that the case had not been properly presented.
B. VIOLATION OF RAPE SHIELD LAW
It also appears from the transcript that the deputy district attorney presented improper evidence to the grand jury of the complainants' asserted reputations for promiscuity and specific instances of their prior sexual encounters in violation of NRS 172.135(2) and Nevada's rape shield law. "The grand jury can receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay or secondary evidence." NRS 172.135(2). In 1975, Nevada, joining the vast majority of jurisdictions, passed statutes limiting the admissibility at trial of evidence concerning the sexual history of a complaining witness in a rape or sexual assault case. To this end, NRS 50.090 prohibits the accused from impeaching a rape victim's credibility with evidence of her prior sexual conduct, unless the victim has testified regarding her sexual history or the prosecution has presented evidence regarding the victim's prior sexual conduct. NRS 48.069 further prohibits the accused from introducing such evidence to prove the victim's consent unless the procedures set forth in that statute are followed. NRS 48.069 contemplates that before admitting any evidence of prior sexual conduct the district court will conduct a hearing, based upon the accused's specific written offer of proof, and determine whether the evidence is relevant to the issue of consent and whether it is of sufficient probative value to outweigh the danger of unfair prejudice, of confusion of the issues, and of misleading the jury. NRS 50.090 and 48.069 expressly limit the admission of such evidence to prosecutions. Because prosecution of a case does not exist until charges are filed, see Ryan v. District Court, 88 Nev. 638, 503 P.2d 842 (1972), evidence of prior sexual conduct is not admissible under NRS 48.069 and 50.090, and cannot become legal evidence within the meaning of NRS 172.135(2), until on motion a district court rules it to be such following the return of the indictment. See NRS 172.005. Consequently, this evidence is inadmissible before the grand jury.
Nevada's rape shield law recognizes that there may be no relationship between prior sexual conduct and the victim's ability to relate the truth, and that whether a victim has previously consented to sexual activity under different circumstances may have little or no relevance to the issue of her consent to the activities which resulted in the rape prosecution. Moreover, the rape shield law acknowledges that such evidence tends to distract and inflame the jury and carries with it the danger of unduly prejudicing the truth-finding process. See Summitt v. State, 101 Nev. 159, 163, 697 P.2d 1374, 1377 (1985); State v. Hudlow, 659 P.2d 514 (Wash. 1983); People v. McKenna, 585 P.2d 275 (Colo. 1978); Comment, Evidence — Admissibility of the Victim's Past Sexual Behavior Under Washington's Rape Evidence Law—Wash. Rev. Code § 9.79.150 (1976), 52 Wash.L.Rev. 1011, 1033 (1977). As Justice John Mowbray recently explained,
Such [rape shield] laws have generally been designed to reverse the common law rule applicable in rape cases, that use of evidence of a female complainant's general reputation for morality and chastity was admissible to infer consent and also to attack credibility generally. Thus, for example, it had been held: "It is a matter of common knowledge that the bad character of a man for chastity does not even in the remotest degree affect his character for truth, when based upon that alone, while it does that of a woman." State v. Sibley, 33 S.W. 167, 171 (Mo. 1895), quoted in State v. Brown, 636 S.W.2d 929, 933 n. 3 (Mo. 1982), cert. denied sub nom., Brown v. Missouri, 103 S.Ct. 1207 (1983). Such statutes as Nevada's have been described as "directed at the misuse of prior sexual conduct evidence based on this antiquated and obviously illogical premise." State v. Hudlow, 659 P.2d 514, 519 (Wash. 1983). See also People v. McKenna, 585 P.2d 275, 278 (Colo. 1978). An additional purpose of such statutes is " 'to protect rape victims from degrading and embarrassing disclosure of intimate details about their private lives.' " 124 Cong. Rec. at H 11945 (1978), quoted in Doe v. United States, 666 F.2d 43, 45 (4th Cir. 1981). Finally, "[t]he restrictions placed on the admissibility of certain evidence by the rape-shield laws will, it was hoped, encourage rape victims to come forward and report the, crimes and testify in court protected from unnecessary indignities and needless probing into their respective sexual histories." State v. Lemon, 456 A.2d 261, 264 (R.I. 1983).
Summitt v. State, 101 Nev. at 161, 697 P.2d at 1375.
In light of the questionable relevance of this evidence and its distracting and inflammatory nature, the policies underlying Nevada's rape shield law would be defeated if, in grand jury proceedings, evidence regarding the victim's prior sexual acts or reputation for promiscuity is disclosed. If deputy district attorneys are allowed to present such evidence before grand juries, while as here the complaining witnesses are afforded no chance to explain or deny, it is likely few, if any, indictments would be returned. The presentation to the grand jury of such potentially prejudicial evidence could result in an inability to institute prosecution of a crime, due to evidence that might well later have been ruled inadmissible at trial. In such circumstances, the complaining witness would be denied the opportunity to prosecute an attacker due to untested use of the complainant's asserted reputation and purported prior sexual encounters, and without regard to the particular facts and circumstances of the alleged sexual assault.
In the present case, the deputy district attorney first elicited testimony from Jane that she had previously been involved in a "romantic relationship" with one of the suspects, and from Mary that she also had a prior "romantic relationship" with Roe, the friend of the suspects who testified immediately following the grand jury's break. Although the complainants had testified only to a romantic relationship with these men, the deputy district attorney later questioned, or permitted the grand jury to question, the suspect and Roe about whether they had previously engaged in sexual relations with the women. Further, the deputy district attorney permitted the suspect to testify concerning Mary's previous refusal to have sex with one of the other suspects. Although the four suspected participants in the crimes were willing and available to testify, the deputy district attorney presented the opinion testimony of Doe and Roe, two persons absent at the time of the alleged assaults, that the complainants consented to the sexual acts. Despite the obviously prejudicial nature of such testimony, the deputy district attorney also permitted Doe, who had never met the complainants prior to the evening in question, to testify as to the complainants' alleged reputations for promiscuity. The deputy district attorney, by eliciting such testimony, permitted the grand jury to receive evidence of prior sexual conduct in violation of the rape shield law and NRS 172.135(2).
This case highlights the need to apply such controls on this type of evidence to presentations before the grand jury. Violation of the rape shield law may well have compromised the grand jury's ability to evaluate the evidence independently and impartially in the instant case. The grand jurors themselves elicited Doe's account of the complainants' reputations, and inquired of the suspect whether he, his roommate or "any of the other guys" had previous sexual relations with the two women. Moreover, the deputy district attorney, to what legitimate end is unknown to this court, also posed questions relating to the alleged victims' prior sexual conduct. The transcript indicates that this evidence confused the issues and misled the grand jury. Yet, when the foreman questioned the relevance of this evidence, the deputy district attorney did nothing to dissipate the grand jury's perplexity, but simply reiterated that: "The legal question here today is the strict thing that is laid out in the proposed Indictment. ."
Finally, we reject petitioner's contention that his deputy was required to present such evidence by virtue of NRS 172.145 because of its exculpatory nature. Evidence of prior sexual conduct is not identified as exculpatory evidence until after the accused submits the issue of consent to the court and the court determines, after a hearing on the matter, that the evidence is more probative than prejudicial. See NRS 48.069.
C. HEARSAY DIMINISHING VICTIMS' CREDIBILITY
As noted above, "[t]he grand jury can receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay or secondary evidence." NRS 172.135(2). The opinion testimony of two individuals, who were not present at the time of the alleged sexual assault, that the complainants consented to the acts was neither legal nor the best evidence. NRS 50.025 provides that to be competent to testify, a witness must have personal knowledge of the subject of his testimony. Thus, the two witnesses called by the deputy district attorney, who were not present at the time in question, were incompetent to testify as to the alleged victims' consent. Additionally, the four suspected participants in the crimes who had personal knowledge of the events were willing and available to testify. If the prosecutor felt compelled to present evidence of the complainants' consent, opinion testimony of two persons absent at the time of the alleged assaults was not the best evidence available. Further, as noted above, this opinion evidence, as well as the testimony regarding the complainants' reputations in general for promiscuity and prior sexual conduct, was highly inflammatory, and for the most part, hearsay evidence. As such, it was presented to the grand jury in violation of NRS 172.135.
NOTICE AND OPPORTUNITY TO BE HEARD
The original petition for a writ of prohibition complained that respondents entered the order appointing a special prosecutor "without any prior notice to the Washoe County District Attorney's Office that there was an Order being prepared or even that the Court was conducting an investigation," and that respondents "failed to give the District Attorney any notice or opportunity to be heard in the matter. ." Although the original petition contained these statements, it set forth absolutely no legal authority demonstrating that a district attorney is entitled to notice and an opportunity to be heard prior to being enjoined from investigating a particular case. Although affidavits executed by the petitioner and the deputy district attorney vaguely alluded to notions of procedural due process, these concepts were not developed elsewhere in the petition or supported by any points and authorities. It did not, therefore, appear that petitioner was tendering this issue to this court, as petitioner made no effort whatsoever to support the statements quoted above. Thus, due to the dearth of authority presented by petitioner to support the statements regarding notice and opportunity to be heard, this court did not address the merits of those statements. See, e.g., Franklin v. State, 89 Nev. 382, 386, 513 P.2d 1252, 1255 (1973). Although petitioner has now tendered this issue on rehearing, because this argument is now briefed for the first time in a petition for reconsideration, we would not ordinarily grant a rehearing of our previous determination that extraordinary relief is not warranted. See NRAP 40(c)(1). Nevertheless, in the instant case, in the interest of moving toward a correct resolution of this matter, we will address the arguments that petitioner now presents for the first time.
Petitioner contends that he is entitled to notice and an eviden-tiary hearing before the district court can disqualify the district attorney's office from prosecuting a case. In opposition, respondent states that the "special prosecutor" was intended to function as a "special investigator for the Court" charged with the narrow duty of evaluating the case for possible resubmission to the grand jury. He argues that the district attorney was not disqualified from resubmitting the matter to the grand jury, and therefore was not entitled to notice and a hearing prior to the appointment of the "special prosecutor." Consequently, it appears that the district court merely enjoined petitioner from acting during Elcano's investigation and did not "disqualify" petitioner from prosecuting the case. In either event, however, under the circumstances of this case, we conclude that the district court should have afforded the district attorney notice and an opportunity to be heard prior to the appointment of this investigator.
As noted above, the district court, in the exercise of its supervisory powers over the grand jury, has authority to displace a district attorney where it appears that the district attorney has not properly pursued his prosecutorial functions. In the instant case, it does not inexorably appear on the face of the record that the district attorney was a blameworthy participant in the prosecu-torial omissions. The record reveals that it was the deputy district attorney who presented the case to the grand jury and who committed the improprieties discussed above. On the other hand, the district attorney, at the time the orders were entered, was not actively pursuing the prosecution of this case below. Once the deputy district attorney obtained a "no true bill," the district attorney accepted this result and, in the two years since then, has actively resisted any prosecution of the matter. Moreover, the deputy district attorney has, since the issuance by the district court of the challenged order, arguably adopted the position of the accused by repeatedly making statements to the media charac terizing the suspects' statements to law enforcement officials as not being confessions or admissions. See, e.g., Judge Accuses DA of Withholding Evidence, Reno Gazette-Journal, February 13, 1988. It thus appears that the district attorney and his staff may have neither the desire nor the intention to see the case resubmitted to the grand jury or prosecuted by way of an information. See NRS 172.255(4) (permitting resubmission to the grand jury upon approval by the court). Since the record does not conclusively show, however, that the district attorney will not conscientiously perform his functions, we think the court, prior to taking further action, should accord the district attorney notice and an opportunity to be heard.
In Collier v. Legakes, 98 Nev. 307, 311, 646 P.2d 1219, 1221 (1982), the district court had disqualified the entire Clark County District Attorney's Office without first holding an evidentiary hearing or hearing argument from the district attorney. Because the court's ruling in that case was based solely on the appearance of impropriety, we concluded that the district judge had, in effect, failed to exercise his discretion. Consequently, we directed the district court to conduct a hearing to determine, after a consideration of all the relevant facts, whether the prosecutorial function could be carried out impartially by the district attorney's office. Similarly, in the present case, we conclude that a hearing is warranted to determine whether individual rather than vicarious disqualification may be appropriate under the circumstances of this case. See Collier v. Legakes, supra; Brinkman v. State, 95 Nev. 220, 592 P.2d 163 (1979).
Accordingly, we grant a writ of prohibition directing that the inquiry ordered below shall not proceed further until a hearing on notice to the district attorney has been conducted before the district court, affording the district attorney an opportunity to be heard. On remand, the court shall determine whether the district attorney was involved in or later ratified the deputy's derelictions, and whether the district attorney is able to go forward and is willing to resubmit the matter to the grand jury, should the court determine that resubmission is warranted. In order that the district attorney will be afforded a full and fair opportunity to respond thereto, the respondent judges shall place on record, for the consideration of the successor judge hereinafter designated, reports of any and all evidence which may tend to support their conclusions that there is a need for a special prosecutor herein. Because it appears that the respondent judges have already expressed factual determinations as to this ultimate issue, we hereby assign The Honorable David Zenoff, Senior Justice, to conduct the hearing on remand. Nev. Const. art. 6, § 19(1)(c).
Young, J., concurs.
These are fictitious names assigned to them for purposes of this opinion.
Although the district attorney represents that this data did not constitute admissions or confessions, he has not tendered to this court for evaluation any of the data compiled by the officers.
Specifically, the deputy district attorney avers:
The Grand Jury issued invitations to all four targets to appear and to testify in this proceeding. All four targets were available at the March 26 hearing and had indicated through their respective counsel that each would testify at either the March 26 hearing or the April 10 hearing and that their testimony would be consistent with statements given to law enforcement officers.
See paragraph 7, affidavit in support of petition for reconsideration or for rehearing.
The deputy district attorney has represented to this court that "[t]hese witnesses were available for the Grand Jury on March 26 and would have been made available to the Grand Jury on April 10." See paragraph 15, affidavit in support of petition for reconsideration or for rehearing.
In paragraph 15 of his affidavit, however, the deputy district attorney states:
That your affiant had had available the testimony of several other witnesses including Sergeant Richard Putnam and Deputy Gordon Jenkins of the Washoe County Sheriff's Office. It was your affiant's intention to present these witnesses if the targets of the Grand Jury testified inconsistently with the statements they had given these officers. These witnesses were available for the Grand Jury on March 26 and would have been made available to the Grand Jury on April 10. These and other witnesses, as weil as the targets, were not sent away until the Grand Jury indicated they were finished with receiving evidence for the day. Your affiant was further aware that the office of Sergeant Putnam and Deputy Jenkins is in the courthouse building and that even if the Grand Jury had changed their minds and desired more witnesses on the 26th and wished to go further behind schedule, they would have been available for testimony.
NRS 172.097(1) provides that "[t]he district judge impaneling a grand jury shall supervise its proceedings." Respondent Schouweiler impaneled and supervised the grand jury that heard this case in 1986. Apparently because respondent Judge Wright is the present Chief Judge of the Second Judicial District Court, she signed the order as the person responsible for supervision of the grand jury currently impaneled.
The challenged order of the district court recites:
The Court ten (10) days ago, requested that Judith Ann Schonlau provide the Court with a transcript of the Grand Jury proceedings, conveying to her the urgency of the request and the need for prompt action on her part. The Court has still not received the transcript.
Thus, although some 22 months had elapsed following the hearing, ten days after the demand by the district court the transcript had not been supplied.
NRAP 21(a) requires that petitions for extraordinary relief be accompanied by "copies of any order or opinion or parts of the record which may be essential to an understanding of the matters set forth in the petition."
Although this supplemental order was entered approximately five hours prior to the filing of petitioner's petition for extraordinary relief, at no time has petitioner advised this court of the entry of this order, as required by NRAP 21(a). See note 8, supra. Rather, this order was first brought to this court's attention by respondent Judge Schouweiler in his opposition to petitioner's motion for reconsideration or rehearing. Despite this, petitioner failed to file a reply to the opposition and address this supplemental order.
Additionally, we refused to accept petitioner's contention that, as long as a district attorney maintained his "qualifications" to hold office under NRS 252.010, i.e., Nevada residency and a license to practice law, he can never be disqualified from proceeding in a particular matter.
NRS 173.065 states:
The judge of the court having jurisdiction may in extreme cases, upon affidavit filed with him of the commission of a crime, require all available evidence to be delivered to the attorney general for prosecution, if the district attorney refuses to prosecute any person for such crime.
NRS 50.090 provides:
In any prosecution for sexual assault or statutory sexual seduction or for assault with intent to commit, attempt to commit or conspiracy to commit either crime, the accused may not present evidence of any previous sexual conduct of the victim of the crime to challenge the victim's credibility as a witness unless the prosecutor has presented evidence or the victim has testified concerning such conduct, or the absence of such conduct, in which case the scope of the accused's cross-examination of the victim or rebuttal shall be limited to the evidence presented by the prosecutor or victim.
NRS 175.186 correspondingly restricts jury instructions:
1. In any prosecution for sexual assault or statutory sexual seduction or for an assault with intent to commit, attempt to commit or conspiracy to commit either crime, the term "unchaste character" may not be used with reference to the alleged victim of the crime in any instruction to the jury.
2. In a prosecution for sexual assault or statutory sexual seduction, the court may not give any instructions to the jury to the effect that it is difficult to prove or establish the crime beyond a reasonable doubt.
NRS 48.069 provides:
In any prosecution for sexual assault or for assault with intent to commit, attempt to commit or conspiracy to commit a sexual assault, if the accused desires to present evidence of any previous sexual conduct of the victim of the crime to prove the victim's consent:
1. The accused shall first submit to the court a written offer of proof, accompanied by a sworn statement of the specific facts that he expects to prove and pointing out the relevance of the facts to the issue of the victim's consent.
2. If the court finds that the offer of proof is sufficient, the court
shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the victim regarding the offer of proof.
3. At the conclusion of the hearing, if the court determines that the offered evidence:
(a) Is relevant to the issue of consent; and
(b) Is not required to be excluded under NRS 48.035, the court shall make an order stating what evidence may be introduced by the accused and the nature of the questions which he is permitted to ask. The accused may then present evidence or question the victim pursuant to the order.
NRS 172.145 provides, in part:
1. The grand jury is not bound to hear evidence for the defendant.
2. If the district attorney is aware of any evidence which will explain away the charge, he shall submit it to the grand jury.
Although the district attorney is precluded from presenting evidence of prior sexual conduct to the grand jury, Brady v. Maryland, 373 U.S. 83 (1963), requires disclosure to the accused, upon request, of such evidence where it is material either to guilt or punishment.
We note that respondent Judge Schouweiler, in his opposition to the petition for rehearing, waives all claims of procedural insufficiency of the rehearing petition. This court is not obliged, however, to accept respondents' tendered waiver.