Brown (David) v. Dist. Ct. (State) ( 2014 )

 statutory rights to a speedy trial, moving the robbery case out of a judicial
department where he had received favorable pretrial rulings, and allowing
the State to circumvent unfavorable pretrial rulings. 2
"A writ of mandamus is an extraordinary remedy, and
therefore, the decision to entertain the petition lies within our discretion.
Such a writ is available only to compel the performance of an act which
the law especially enjoins as a duty resulting from an office, trust or
station." Winkle V. Foster, 127 Nev. , 269 P.3d 898, 899 (2011)
(citation and internal quotation marks omitted). "[It] will not lie to control
discretionary action, unless discretion is manifestly abused or exercised
arbitrarily or capriciously." Round Hill Gen. Improvement Dist. v.
Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981) (citation omitted);
see also State v. Eighth Judicial Dist. Court (Armstrong), 127 Nev. ,
267 P.3d 777, 780 (2011) (defining manifest abuse and arbitrary or
capricious exercise of discretion in context of mandamus). And it will not
issue if the petitioner has a plain, speedy, and adequate remedy in the
ordinary course of the law. NRS 34.170. "Petitioner[ ] cardies] the
burden of demonstrating that extraordinary relief is warranted." Pan v.
Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004).
We conclude that petitioner has failed to demonstrate that
extraordinary relief is warranted. Petitioner did not demonstrate in the
district court that all of the detective's testimony about the handwriting
2Petitioner has previously challenged the dismissal of the robbery
case in an original petition for a writ of mandamus, see Brown v. Eighth
Judicial Dist. Court, Docket 62619 (Order Granting Petition in Part,
March 13, 2013), and again in an appeal from a district court order
granting the State's motion to dismiss that case, see Brown v. State,
Docket No. 63065 (Order of Affirmance, October 17, 2013).
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exemplars was hearsay and did not fall within an exception to the hearsay
rule, see Rugamas v. Eighth Judicial Dist. Court, 129 Nev. „ 305
P.3d 887, 893 (2013) (the exclusion of hearsay in grand jury proceedings is
subject to the statutory hearsay exceptions), or that none of the detective's
testimony describing the collection of handwriting exemplars was legal
evidence, see NRS 172.135(2) (the grand jury can only receive legal
evidence); therefore, he has not demonstrated that the district court
manifestly abused its discretion by denying his pretrial habeas petition,
see Rugamas, 129 Nev. at 305 P.3d at 895-96 (a district court
manifestly abuses its discretion by denying a pretrial habeas petition
when there is no legal evidence to satisfy the elements of the charged
offenses in a challenged indictment). And petitioner has not demonstrated
that the district court manifestly abused its discretion by finding that the
manner by which the State consolidated its cases did not rise to a level of
prejudice and violation of speedy trial rights that would warrant
dismissal. See NRS 178.556(1) (speedy trial rule); Thompson v. State, 125
Nev. 807, 811-13, 221 P.3d 708, 711-12 (2009) (dual prosecutions rule);
State v. Lamb, 97 Nev. 609, 611, 637 P.2d 1201, 1202 (1981) ("Conscious
indifference is a factual determination."); Brown, Docket No. 63065 (Order
of Affirmance, October 17, 2013) (discussing constitutional speedy-trial
analysis in the context of petitioner's case). Accordingly, we
ORDER the petition DENIED.
Pickering
Parraguirre Saitta
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cc: Hon. Elizabeth Goff Gonzalez, District Judge
Bush & Levy, LLC
Oronoz & Ericsson
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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