DONALD ALLEN OSTMAN, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, AND THE HONORABLE ADDELIAR D. GUY, DISTRICT JUDGE, Respondents, and THE STATE OF NEVADA, Real Party in Interest
Ostman v. Eighth Judicial District Court
Springer, Rose and Young, JJ., concur.
DONALD ALLEN OSTMAN, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, AND THE HONORABLE ADDELIAR D. GUY, DISTRICT JUDGE, Respondents, and THE STATE OF NEVADA, Real Party in Interest.
DONALD ALLEN OSTMAN, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, AND THE HONORABLE ADDELIAR D. GUY, DISTRICT JUDGE, Respondents, and THE STATE OF NEVADA, Real Party in Interest.
No. 20924
August 27, 1991
816 P.2d 458
Momot and Tidwell, Las Vegas, for Petitioner.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney and James Tufteland, Deputy, Clark County, for Respondents.
OPINION
Per Curiam:
This petition for a writ of mandamus, or, in the alternative, a writ of prohibition, challenges an order of the district court denying petitioner's pretrial petition for a writ of habeas corpus. Petitioner contends that the district court abused its discretion by not granting his pretrial petition brought on the grounds that the prosecutor violated her statutory duty to present exculpatory evidence to the grand jury. See NRS 172.145(2). We agree.
On October 13, 1989, an indictment was filed charging petitioner with ten counts of sexual assault and one count of coercion. NRS 200.366; NRS 207.190. Petitioner was not given prior notice of the grand jury proceeding which resulted in this indictment. The only witness before the grand jury was petitioner's girlfriend, the victim of the alleged assault. The victim testified that petitioner repeatedly forced her to engage in unwanted sexual activity on the evening of August 26, 1989. The grand jury was not informed of a voluntary statement petitioner made to the police following the incident. In his statement, petitioner generally acknowledged that the alleged events occurred, but claimed that the victim voluntarily participated.
NRS 172.145(2) provides: "If the district attorney is aware of any evidence which will explain away the charge, he shall submit it to the grand jury." This court has held that a district attorney violates NRS 172.145(2) if he fails to present to the grand jury evidence which has a tendency to explain away the charge. Sheriff v. Frank, 103 Nev. 160, 165, 734 P.2d 1241, 1244 (1987). The determination of whether particular evidence is exculpatory is generally left to the discretion of the district court. After reviewing the evidence in this case, however, we conclude, as a matter of law, that the evidence in question was exculpatory. Specifically, we conclude that the statement petitioner gave to the police had "a tendency to explain away the charge[s]" of sexual assault and coercion. The prosecutor was therefore obligated under Frank to present it to the grand jury.
A writ of mandamus may issue "to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station . . . ." NRS 34.160. In Frank, we held that a prosecutor's refusal to present exculpatory evidence, '"destroys the existence of an independent and informed grand jury.'" Frank, 103 Nev. at 165 (quoting United States v. Gold, 470 F.Supp. 1336, 1353 (N.D.Ill. 1979). In the instant case the prosecutor's failure to present the exculpatory evidence to the grand jury irreparably impaired the independent function of the grand jury. The district court therefore had a duty to dismiss petitioner's indictment. See Frank, 103 Nev. at 165, 734 P.2d at 1244. It failed to do so. As the dissent notes, this court will generally not review pretrial challenges to the sufficiency of an indictment. See, e.g., Kussman v. District Court, 96 Nev. 544, 612 P.2d 679 (1980) (judicial economy and sound judicial administration generally militate against use of mandamus to review pretrial probable cause determinations). We have, however, made exceptions to this general rule. See, e.g., State v. Babayan, 106 Nev. 155, 787 P.2d 805 (1990) (petition for writ of mandamus directing the district court to dismiss the indictment against petitioner granted where unusual and urgent circumstances revealed a strong necessity). This case involves only a purely legal issue. Thus, the concerns expressed in Kussman do not apply. We conclude, therefore, that under the facts of this case, relief is warranted. Accordingly, we grant the petition for a writ of mandamus. The clerk of this court shall forthwith issue a writ of mandamus directing the district court to dismiss the indictment without prejudice.
Springer, Rose and Young, JJ., concur.