DAYANI (FAHD) v. DIST. CT. (STATE) , 140 Nev. Adv. Op. No. 50 ( 2024 )

140 Nev., Advance Opinion 5?)
IN THE SUPREME COURT OF THE STATE OF NEVADA
FAHD MASHIN DAYANI, No. 86847
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE ERIC AUG 2 2 202
JOHNSON, DISTRICT JUDGE.
EL JFTRA. BR
Respondents, CLE • SUkJEMEQURT
and BY
IEF DEPUTY CLERK
THE STATE OF NEVADA,
Real Party in Interest.
Original petition for a writ of mandamus or prohibition
challenging a district court order denying a motion to dismiss a criminal
indictment.
Petition granted.
Clark Hill PLLC and Dominic P. Gentile, Austin T. Barnum, and Tiffany
Solari, Las Vegas,
for Petitioner.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District
Attorney, Christopher J. Lalli, Assistant District Attorney, and Jonathan
E. VanBoskerck, Chief Deputy District Attorney, Clark County,
for Real Party in Interest.
BEFORE THE SUPREME COURT, STIGLICH, PICKERING, and
PARRAGUIRRE. JJ.
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OPINION
By the Court, PARRAGUIRRE, J.:
This original petition for a writ of mandamus or prohibition
challenges a district court order denying a motion to dismiss an indictment
based on alleged violations of NRS 172.145(2). We clarify that a challenge
•
under NRS 172.145(2) may properly be brought through a motion to
dismiss. Here, because the district court had a duty to hear Dayani's motion
on its merits, we grant the petition.
FACTS AND PROCEDURAL HISTORY
Petitioner Fand Dayani was on house arrest pending an
unrelated trial. Pursuant to the terms of his house arrest, officers
conducted a warrantless compliance check on his residence and found
rnethamphetamine and heroin in a hallway bathroom. Dayani was arrested
and charged with two counts of trafficking in a controlled substance. On
the same day as Dayani's arrest, his cousin, Alina Jagshi, made
incriminating statements to police officers indicating that the drugs
belonged to her rather than Dayani. Leading up to the grand jury
proceedings regarding Dayani's trafficking charges, Dayani's counsel sent
emails to the district attorney's office bringing their attention to Jagshi's
apparent third-party confession, which he claimed was recorded on an
officer's body-worn camera.
Prosecutors brought the charges before a grand jury in July
2022. The State did not provide the grand jury with the video recording of
Jagshi's confession but did briefly recount what Dayani's counsel had stated
in the email correspondence about Jagshi's confession. There was also
testimony from two officers present during the search of Dayani's residence,
both of whom testified that the bathroom in which the drugs were found
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was the only bathroom in the house. The prosecution did not question the
officers' statements even though there was, in fact, a second bathroom
attached to the room in which Dayani stayed, and Dayani mentioned the
second bathroom to officers when he was arrested. The grand jury indicted
Dayani on both counts, and he was arraigned on the indictment on July 14,
2022. Over 200 days later, on February 2, 2023, Dayani filed what was
titled, "Defendant Fand Mohsin Dayani's Motion to Dismiss." The motion
argued that the State violated NRS 172.145(2) by failing to introduce
exculpatory evidence, namely, the video recording of Jagshi's confession,
other evidence that may have corroborated the confession, and the existence
of a second bathroom.
The district court construed the motion as a pretrial petition for
a writ of habeas corpus and denied it as untimely pursuant to NRS
34.700(1)(0's 21-day deadline. Dayani then filed the instant petition for a
writ of mandamus or prohibition with this court, arguing that the district
court improperly construed the motion as an untimely pretrial habeas
petition. He asserts that his arguments were properly brought as a motion
to dismiss and, thus, the 21-day time limit for filing a pretrial habeas
petition does not apply to his motion and the district court should have
considered the motion on its merits.
DISCUSSION
This court may issue a writ of mandamus "to compel the
performance of an act that the law requires as a duty resulting from an
office, trust, or station." Inel Garne Tech., Inc. v. Second Jud. Dist. Ct., 124
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Nev. 193, 197, 179 P.3d 556, 558 (2008); NRS 34.160.1 Writ relief is an
extraordinary remedy, and it is therefore "within the discretion of this court
to determine if a petition will be considered." Clay v. Eighth Jud. Dist. Ct.,
129 Nev. 445, 450, 305 P.3d 898, 901 (2013). This court will exercise its
discretion to consider petitions for extraordinary writs "where there is not
a plain, speedy and adequate remedy in the ordinary course of law," NRS
34.170, especially where "there are either urgent circumstances or
important legal issues that need clarification in order to promote judicial
economy and administration," Cheung v. Eighth Jud. Dist. Ct., 121 Nev.
867, 869, 124 P.3d 550, 552 (2005).
We exercise our jurisdictional discretion to review this
mandamus petition because it presents an important legal issue requiring
clarification to promote judicial economy and administration: the proper
procedure for bringing challenges under NRS 172.145(2). Challenges under
NRS 172.145(2) have come before this court through both motions to
dismiss and pretrial habeas petitions, and we have not previously addressed
the proper vehicle by which to bring such a challenge. Further, Dayani's
underlying motion was based on an alleged error in the grand jury
proceeding, and "any error in the grand-jury proceeding is likely to be
harmless after a conviction." Clay, 129 Nev. at 450, 305 P.3d at 901. Thus,
Dayani may not have an adequate remedy in the ordinary course of law. Id.
at 449-50, 305 P.3d at 901.
1Dayani filed a petition for a writ of mandamus or, alternatively,
prohibition. Mandamus is the appropriate procedure here because Dayani
does not allege that the district court lacked jurisdiction to hear his motion,
See NRS 34.320. Thus, this opinion addresses only mandamus.
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NRS 172.145(2) states, "If the district attorney is aware of any
evidence which will explain away the charge, the district attorney shall
submit it to the grand jury." There is no Nevada caselaw directly discussing
whether a challenge under this statute should be brought via a habeas
petition or a motion to dismiss, though the answer to that question
significantly impacts the available time frame for bringing such a challenge.
In fact, our caselaw is somewhat supportive of both methods. For example,
in State v. Babayan, we upheld the granting of a motion to dismiss partially
based on violations of NRS 172.145(2). 106 Nev. 155, 787 P.2d 805 (1990);
see also King v. State, 116 Nev. 349, 358-59, 998 P.2d 1172, 1178 (2000)
(reviewing, but not commenting on the propriety of, a motion to dismiss
partly based on alleged violations of NRS 172.145(2)). But we have also
reviewed decisions on pretrial petitions for a writ of habeas corpus alleging
violations of NRS 172.145(2) without commenting on whether those
challenges were brought through the correct procedural vehicle. See, e.g.,
Moran v. Schwarz, 108 Nev. 200, 202, 826 P.2d 952, 953 (1992); Sheriff v.
Harrington, 108 Nev. 869, 871, 840 P.2d 588, 588-89 (1992); Ostman v.
Eighth Jud. Dist. Ct., 107 Nev. 563, 565, 816 P.2d 458, 459 (1991).
Our lack of discussion regarding the correct method by which
to bring NRS 172.145(2) challenges merely reflects a lack of procedural
challenges brought by the parties in such cases. Nonetheless, we recognize
that this silence may have led to confusion among courts and practitioners
as to the proper vehicle through which a challenge of this nature may be
brought. See, e.g., Schuster v. Eighth Jud. Dist. Ct., 123 Nev. 187, 188, 160
P.3d 873, 874 (2007) (noting that the defendant filed a "pretrial petition for
a writ of habeas corpus and/or motion to dismiss a grand jury indictment"
implicating questions under NRS 172.145(2), presumably because the
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defendant's attorney was unsure which was the correct procedure
(emphasis added)). Thus, we turn to statutory interpretation to resolve the
matter at hand.
"Statutory interpretation is a question of law subject to de novo
review." State v. Catanio, 120 Nev. 1030, 1033, 102 P.3d 588, 590 (2004).
NRS 172.155(2) states, "The defendant may object to the sufficiency of the
evidence to sustain the indictment only by application for a writ of habeas
corpus." (Emphases added.) Pretrial habeas petitions must be brought
"within 21 days after the first appearance [by the defendant] in the district
court." NRS 34.700(1)(a). On the other hand, NRS 174.105(1) states,
"Defenses and objections based on defects in the institution of the
prosecution, other than insufficiency of the evidence to warrant an
indictment, ... may be raised only by motion before trial." (Emphasis
added.) The only statutory time limit for bringing such a motion to dismiss
is "before trial."2 Id. Based on the plain language of these statutes, the
question a district court must answer in deciding whether the 21-day time
limit applies is whether the motion or petition challenges the sufficiency of
the evidence to sustain the indictment. Cf. Srnith v. Zilverberg, 137 Nev.
65, 72, 481 P.3d 1222, 1230 (2021) ("If a statute's language is plain and
unambiguous, we enforce the statute as written, without resorting to the
rules of construction.").
Turning back to NRS 172.145(2), we hold that a challenge
alleging a failure to submit exculpatory evidence under this statute is not a
challenge to the sufficiency of the evidence to sustain the indictment.
2However, local courts often prescribe their own deadlines for
bringing a motion to dismiss an indictment.
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R.ather, in cases in which we have concluded that the State violated NRS
172.145(2), we have considered whether the violation "irreparably impaired
the independent function of the grand jury," Ostrnan, 107 Nev. at 565, 816
P.2d at 459, which is a distinct inquiry from whether the State submitted
sufficient evidence to sustain the indictment. A challenge under NRS
172.145(2) goes to the heart of the grand jury proceeding and asks whether
the State has lived up to its mandate to ensure a fundamentally fair grand
jury process. It is therefore a challenge "based on defects in the institution
of the prosecution, other than insufficiency of the evidence to warrant an
indictment." NRS 174.105(1). Thus, challenges alleging a failure of the
State to submit exculpatory evidence may be properly brought through a
motion to dismiss.3
Here, Dayani's motion to dismiss argued that the State violated
NRS 172.145(2) by failing to present evidence of Jagshi's confession, other
evidence that may have corroborated the confession, and evidence of the
existence of a second bathroorn within Dayani's residence. In essence,
Dayani challenged the fairness of his grand jury proceedings, not whether
the State's submitted inculpatory evidence was sufficient to sustain the
indictment. Consequently, the district court had a duty to review the
allegations and dismiss the indictment if it concluded that the State did, in
fact, violate NRS 172.145(2) in a manner requiring dismissal. See Ostinan,
107 Nev. at 565, 816 P.2d at 459 (noting the district court "had a duty to
dismiss [the] indictment" where the prosecutor failed to present exculpatory
3 While issues involving exculpatory evidence under NRS 172.145(2)
may be raised by motion to dismiss, nothing in this opinion should be read
as limiting pretrial habeas petitions to arguments challenging the
sufficiency of the evidence.
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evidence). By declining to consider the motion on its merits, the district
court neglected its duty.
CONCLUSION
Challenges alleging violations of NRS 172.145(2) may be
properly brought via a motion to dismiss and are not confined by the time
limits NRS 34.700(1)(a) imposes for pretrial habeas petitions. Here, the
district court had a duty to consider Dayani's motion on the merits. We
therefore grant the petition and direct the clerk of this court to issue a writ
of mandamus instructing the district court to vacate its order denying
Dayani's motion to dismiss and to consider the motion on the merits.
j
Parraguirre
We concur:
J.
Stiglich
J.
Pickering
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