Desai (Dipak) v. Dist. Ct. (State) ( 2013 )

 [T]he second degree felony murder rule applies
only where the felony is inherently dangerous,
where death or injury is a directly foreseeable
consequence of the illegal act, and where there is
an immediate and direct causal
relationship—without the intervention of some
other source or agency—between the actions of the
defendant and the victim's death.
Labastida v. State, 115 Nev. 298, 307, 986 P.2d 443, 448-49 (1999). The
predicate felony must be the immediate and direct cause of the victim's
death to sustain a conviction. See id. at 307, 986 P.2d at 449 (vacating
conviction for second-degree felony murder where victim's death was the
direct result of another's abuse and not the defendant's neglect). While
the instant indictment alleged that Desai may have indirectly engaged in
the felonies of criminal neglect of patients and performance of an act in
reckless disregard of persons or property, it maintains that those crimes
themselves were the direct and immediate cause of the victim's death.
Therefore, he has not demonstrated that extraordinary relief is warranted
on this claim. 1
Second, Desai contends that the State failed to instruct the
grand jury that second-degree felony murder required the jurors to find
that the predicate crime was the immediate cause of the victim's death.
While the State must instruct the grand jury on the elements of the
offenses alleged, see NRS 172.095(2), we have never required the State to
1 Desaialso asserts that the murder charge violates due process as it
is based on counts which this court had already concluded were
inadequate to provide notice of the crimes charged as they failed to allege
which defendant committed which act. As the charges have been amended
in response to this court's order and Desai has not raised a challenge to
the charges as amended, we deny this claim as moot.
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instruct the grand jury on the law concerning theories of liability, see
Schuster v. Dist. Ct., 123 Nev. 187, 192, 160 P.3d 873, 876 (2007)
(observing that the prosecuting attorney is not required to instruct grand
jury on law); Hyler v. Sheriff, 93 Nev. 561, 564, 571 P.2d 114, 116 (1977)
(stating that "it is not mandatory for the prosecuting attorney to instruct
the grand jury on the law"). Therefore, the State had no obligation to
instruct the grand jury on the different theories of second-degree murder.
The record indicates that the grand jury was provided the relevant
statutes and the indictment set forth the elements of the crime.
Therefore, we conclude that extraordinary relief is not warranted on this
ground.
Third, Desai asserts that the grand jury that returned the
murder indictment was not properly impaneled. He contends that the
district court erred in granting the State's request to recall the grand jury
to hear new evidence, improperly represented to the court that it sought a
superceding indictment instead of a separate indictment, and failed to
inquire of any member of the grand jury whether he or she had developed
any bias against Desai. We conclude that Desai failed to demonstrate that
the district court manifestly abused its discretion by failing to grant relief
on this ground. A grand jury may be recalled by a district court "at such
[a] time as new business may require its attention." NRS 6.145; see NRS
172.045 ("Grand juries shall be impaneled as provided in chapter 6 of
NRS."). Regardless of whether the grand jury was charged with returning
a separate or superceding indictment, it was recalled to assess probable
cause related to events which it already considered during its term. In
addition, Desai has not demonstrated that any recalled grand juror
harbored bias toward him. See Hill v. State, 124 Nev. 546, 550, 188 P.3d
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51, 54 (2008) ("[A] grand jury indictment need only be dismissed on appeal
if the defendant shows actual prejudice."). Therefore, extraordinary relief
is not warranted on this ground.
Having considered Desai's contentions and concluded that
they lack merit, we
ORDER the petition DENIED.
J.
Gibbons
J.
Dougl
Saitta
cc: Hon. Valerie Adair, District Judge
Wright Stanish & Winckler
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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