GRANADA-RUIZ (GAMBINO) VS. DIST. CT. (STATE)

134 Nev., Advance Opinion 67
IN THE SUPREME COURT OF THE STATE OF NEVADA
GAMBINO GRANADA-RUIZ, No. 72446
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT ED
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF AUG 0 22018
CLARK; AND THE HONORABLE /4 r21/
CLETTI1k
BROWN
KATHLEEN E. DELANEY, DISTRICT BY
JUDGE,
Respondents,
and
THE STATE OF NEVADA,
Real Party in Interest.
Original petition for a writ of mandamus, or in the alternative,
prohibition in a criminal matter.
Petition denied.
David M. Schieck, Special Public Defender, and Robert Arroyo, Alzora B.
Jackson, and JoNell Thomas, Deputy Special Public Defenders, Clark
County,
for Petitioner.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
Nicole J. Cannizzaro and Kenneth N. Portz, Deputy District Attorneys,
Clark County,
for Real Party in Interest.
BEFORE THE COURT EN BANC.
SUPREME COURT
OF
NEVADA
(0) 1947A et.
OPINION
By the Court, CHERRY, J.:
Petitioner Gambino Granada-Ruiz stood trial on charges of
murder and battery with substantial bodily harm. During a weekend recess
in jury deliberations, one juror conducted extrinsic legal research and
shared that information with other jurors when deliberations resumed.
After considering argument from counsel and canvassing two jurors, the
district court declared a mistrial. Granada-Ruiz moved to dismiss the
charges based on a constitutional double jeopardy theory. The district court
denied the motion and set the matter for a new trial. Granada-Ruiz
petitions this court for a writ of mandamus' directing the district court to
grant his motion to dismiss and bar his re-prosecution following the
mistrial. We conclude that double jeopardy does not prohibit Granada-
Ruiz's retrial under the totality of the circumstances because he impliedly
consented to the district court's declaration of a mistrial, and the district
court did not abuse its discretion in finding manifest necessity to declare a
mistrial. Therefore, we deny Granada-Ruiz's petition on the merits.
FACTS AND PROCEDURAL HISTORY
The State charged Granada-Ruiz with murder and battery
resulting in substantial bodily harm Whether Granada-Ruiz and the
victim had a physical altercation was not at issue, and the trial hinged on
whether Granada-Ruiz acted in self-defense. The trial proceeded to jury
'Granada-Ruiz alternatively seeks a writ of prohibition; however, a
writ of prohibition serves to arrest the proceedings of a court outside of its
jurisdiction. NRS 34.320. Because he seeks a writ compelling the district
court to grant his motion to dismiss on grounds that the double jeopardy
principles mandate such an outcome, we consider his petition under the
mandamus standard.
SUPREME COURT
OF
NEVADA
(0) I 947) a, 2
-77
deliberations without incident. On the second day of deliberations,
however, the district court received two notes from jurors. The first note
was from Juror No. 12 and claimed that Juror No. 3 had performed external
legal research on the internet the previous weekend. The second note was
from Juror No. 3 and stated that he had researched legal definitions and
was unwilling to disregard what he had found.
The district court summoned both parties and, before Granada-
Ruiz arrived, informed counsel for both sides of the developments and that
the district court would need to determine if further deliberations were
possible. The district court stated that it would canvass the jurors to
determine whether the information had been shared, the nature and scope
of the taint, and whether the deliberative process had been so compromised
to necessitate a mistrial.
The State suggested that the district court conduct a two-part
inquiry to determine whether the information had been shared and whether
the remaining jurors would be able to disregard it. It further posited that,
because Juror No. 3 had separated himself from the other jurors, his
research may not have affected their deliberations. Granada-Ruiz's counsel
disagreed, stating that external research entering the deliberation room
was inherently a problem, creating the possibility that it "infect[ed] the
jury." The district court again indicated that if canvassing revealed the
external research had been shared amongst the jurors, deliberations may
be irreparably tainted and whether the trial continued would ultimately be
up to the court.
Upon Granada-Ruiz's arrival, the district court apprised him of
what had occurred and allowed the parties to present the caselaw they had
SUPREME COURT
OF
NEVADA
(0) 1947A co 3
;
found in the meantime. 2 To determine the nature and extent of the taint,
the district court called the foreperson for canvassing. The foreperson
stated that although multiple jurors had informed Juror No. 3 that he
should not attempt to discuss his external research, the deliberations
throughout the day included discussions about Juror No. 3's external
research concerning the definitions of premeditation and self-defense. The
foreperson further stated that Juror No. 3 perceived a difference in what
was stated during closing argument about premeditation and what his
research revealed, and the deliberations never meaningfully returned to the
jury instructions on either issue because "the conversation really got bent
more on what Juror No. 3 was saying about premeditation."
After dismissing the foreperson, the district court told both
parties that it would question Juror No. 3 but that it appeared external
research concerning the central issues presented to the jury had permeated
deliberations and led to the exclusion of the jury instructions on two points
of law. The district court stated that it struggled to see how deliberations
could be untainted, even if the remaining jurors offered assurances that
they could disregard the improper research. The district court requested
both parties' thoughts on proceeding. The State maintained that the
district court could disregard the external research so long as the remaining
jurors rejected it and canvassing revealed that the external research did not
affect deliberations. Granada-Ruiz's counsel stated that she wanted to hear
from Juror No. 3 but that she tended to agree with the court's initial
2We note here that the best practice is to wait for the defendant's
arrival before discussing crucial issues at trial, however, the district court
acted responsibly here by repeating the information upon Granada-Ruiz's
arrival.
SUPREME COURT
OF
NEVADA
(0) 1947A
4
;11
impression that the external research both permeated the deliberations and
concerned the central issue of trial.
The district court then canvassed Juror No. 3. Juror No. 3
stated that he had been confused by something the State had said in closing
arguments and decided to research premeditation and self-defense on his
own for clarity as to sufficient time lapse for forming a premeditated intent
and continuing danger for purposes of self-defense. Juror No. 3 stated that
he perceived the other jurors comments about outside research being
impermissible to mean that he was not allowed to consider the law and that
the law was "stricken from the record." He further stated, "I don't know
what I am doing. I don't know what is going on to be honest with you."
After Juror No. 3 returned to the deliberation room, the district court stated
that Juror No. 3's incoherent statements and fundamental
misunderstanding of his duty demonstrate his inability to serve on the jury,
and the district court reiterated its concern over the nature and length of
discussion involving external research. Counsel for Granada-Ruiz then
expressed Granada-Ruiz's frustration after two weeks of trial and said, "[s]
it's my understanding that the Court is going to declare a mistrial. I don't
know if we are going to try to go down that road of trying to discuss it."
Defense counsel and co-counsel asked the court to "find out [the results of]
the 11 to 1" preliminary jury vote, and stated, "I think based on that, we
have our opinion. We would just like to know." Not hearing any objections,
the district court ordered a mistrial, finding a manifest necessity as there
could be no assurances that any further product of deliberations would be
fair and impartial and unaffected by the external research. The district
court informed the foreperson that it was declaring a mistrial and asked the
foreperson about his earlier note indicating that the jury had voted and
SUPREME COURT
OF
NEVADA
(0) 1947A
5
deliberations were not moving toward unanimous decision. The foreperson
stated that the vote stood at 11 to 1 not guilty. The court then dismissed
the jury.
Granada-Ruiz moved to dismiss the charges, arguing that there
was no manifest necessity for a mistrial, such that re-prosecution was
barred by constitutional double jeopardy principles. The State opposed the
motion, arguing that the court acted within its discretion in declaring a
mistrial, and Granada-Ruiz did not object to it. After oral arguments, the
district court denied the motion and issued the following findings of facts
and conclusions of law: (1) neither party requested a mistrial, (2) the court
considered alternatives to declaring a mistrial, (3) it had canvassed the jury
in order to determine whether a mistrial was necessary, (4) the jurors had
discussed the substance of Juror No. 3's research for a lengthy period,
(5) the jury never returned to the statements of law in the jury instructions,
(6) the court found manifest necessity to order a mistrial because the
research pertained to material facts and issues and the jury's deliberation
on this research made it impossible to determine what constituted proper
deliberation, and (7) that a sua sponte mistrial was necessary in light of the
permeation of the extrinsic research. Granada-Ruiz now petitions this court
for extraordinary writ relief.
DISCUSSION
Entertaining a petition for a writ of mandamus is within this
court's discretion. Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677,
818 P.2d 849, 851 (1991). A writ of mandamus serves to compel an act
required by law or to control the arbitrary exercise of discretion. State v.
Eighth Judicial Dist. Court (Armstrong), 127 Nev. 927, 931-32, 267 P.3d
777, 779-80 (2011). We will not entertain such a petition if there is an
SUPREME COURT
adequate remedy in the ordinary course of law. NRS 34.170. However, a
OF
NEVADA
(0) 1 ,147A 6
petitioner's ability to raise a double jeopardy argument on appeal from a
final judgment following a retrial is not an adequate remedy, as it still
subjects the accused to being placed in jeopardy twice. Gonzalez v. Eighth
Judicial Dist. Court, 129 Nev. 215, 217-18, 298 P.3d 448, 449-50 (2013). As
such, we exercise our discretion to consider the merits of Granada-Ruiz's
petition.
The Double Jeopardy Clause does not bar the re-prosecution of Granada-
Ruiz
The guarantee against double jeopardy provided by the Fifth
Amendment of the United States Constitution, which is applicable to the
states through the Fourteenth Amendment's Due Process Clause, prevents
a defendant from being tried more than once for the same offense. Oregon
v. Kennedy, 456 U.S. 667, 671 (1982). Where a mistrial that has not been
requested by the defendant prevents the return of a verdict, re-prosecution
violates the Double Jeopardy Clause unless the defendant has either
consented to the mistrial or the court determines that a mistrial was a
manifest necessity. Glover v. Eighth Judicial Dist. Court, 125 Nev. 691,
709, 220 P.3d 684, 696 (2009).
The totality of the circumstances demonstrate that Granada-Ruiz
impliedly consented to mistrial
Granada-Ruiz argues that he never expressly consented to a
mistrial and never had an opportunity to object because the district court
stated that the decision of whether a mistrial was necessary was within the
court's sole discretion. Citing Benson v. State, he also asserts that when
looking to the totality of the circumstances, he did not impliedly consent to
a mistrial. 111 Nev. 692, 895 P.2d 1323 (1995). We disagree.
SUPREME COURT
OF
NEVADA
(0) I947A
7
ILj
Consent to mistrial need not come in the form of a motion from
the defendant or verbal approval, but may be implied from the totality of
the circumstances. Benson, 111 Nev. at 696-97, 895 P.2d at 1326-27(determining that the totality of the circumstances did not demonstrate the
defendant's implied consent where the defendant disputed the prosecution's
basis for seeking a mistrial, defense counsel's initial statement that he
would not oppose a mistrial was made without consulting the defendant and
while under attack from the prosecutor and under threat of contempt, the
court did not explore other options before declaring a mistrial, and there
was no manifest necessity for a mistrial). Among the facts we look to in
considering the totality of the circumstances under Benson, this court has
previously recognized a defendant's failure to object or argue against a
court's declaration of a mistrial as a circumstance that may indicate implied
consent. See Gaitor v. State, 106 Nev. 785, 788, 801 P.2d 1372, 1374 (1990)
(holding that "[t]he failure of defense counsel to object or express an opinion
to the district court regarding the propriety of the mistrial implied consent
and indicated tacit approval" when the circumstances otherwise supported
the district court's conclusion that there was a manifest necessity for a
mistrial), overruled on other grounds by Barone v. State, 109 Nev. 1168, 866
P.2d 291 (1993). However, consent cannot be implied based on a failure to
object where the defendant was not given an opportunity to object or where
the circumstances made objection an impracticability. United States v.
Jam, 400 U.S. 470, 487 (1971); Benson, 111 Nev. at 698, 895 P.2d at 1327-
28.
Here, it is clear that Granada-Ruiz never expressly consented
to the declaration of mistrial. However, the totality of the circumstances
support the conclusion that Granada-Ruiz impliedly consented to a mistrial.
SUPREME COURT
OF
NEVADA
(0) I947A a(gg
8
Granada-Ruiz did not object to the declaration of a mistrial. Instead, when
informed about the juror's notes to the district court, defense counsel stated
that external research entering the deliberation room was an inherent
problem, which may have "infect [ed] the jury." When asked by the district
court to express an opinion on the appropriateness of declaring a mistrial,
Granada-Ruiz and defense counsel seemed amenable to it, and after the
canvassing of the foreperson, defense counsel stated that she tended to
agree with the district court that the juror's external research both
permeated and derailed the deliberations and concerned issues central to
trial. Implied consent to a mistrial has serious implications and we do not
presume it lightly, Benson, 111 Nev. at 696-97, 895 P.2d at 1327, and thus,
while some indication of opposition would have weighed on our analysis in
considering the totality of the circumstances, it was not present here.
Further, the facts here bear no similarity to situations in which
the trial court declared a mistrial without warning and defendants were not
given an opportunity to object or in which objection was impracticable.
Unlike Jorn, in which the United States Supreme Court held that finding
implied consent was inappropriate because the defendant was not given an
opportunity to object where the trial judge declared a mistrial with no prior
warning or consultation with the parties, 400 U.S. at 487, Granada-Ruiz
was invited to present his views on whether a mistrial was appropriate, and
the district court took steps to investigate the impact of the improper
research. Additionally, unlike Benson, in which this court concluded that it
was inappropriate to interpret defense counsel's acquiescence to a mistrial
as consent because defense counsel had previously argued against the
State's motion for a mistrial, and his continued opposition was made
impracticable by the openly hostile exchanges between defense counsel,
SUPREME COURT
OF
NEVADA
(0) 1947A (41P0 9
prosecution, and the court, 111 Nev. at 698, 895 P.2d at 1328, the basis for
a mistrial here was jury misconduct that was brought to the district court's
attention by the jury, not a prosecution motion, and the proceedings to
resolve that issue were not hostile, but instead driven by appropriate
inquiry regarding the integrity of jury deliberations. 3
Finally, the district court's statement that the decision
regarding whether to declare a mistrial would be within its own discretion
did not absolve Granada-Ruiz from objecting to the mistrial. The power to
order a mistrial rests with the district court but that does not mean counsel
need not advocate its positions, and concluding otherwise would contradict
this court's holding that it is appropriate to consider a defendant's failure
to voice any opposition when• determining whether a defendant consented
to a mistrial. See Gaitor, 106 Nev. at 788, 801 P.2d at 1374. Here, the
district court asked for the parties' opinions on whether the• juror
misconduct permeated the deliberations and impacted the jury's ability to
render an impartial decision, and defense counsel stated that she tended to
agree with the district court's assessment that it did. Granada-Ruiz was in
the courtroom when the jury was canvassed on the matter, and the district
court informed him of the misconduct and the possibility of a mistrial.
3 Granada-Ruiz also argues that Benson held the failure of defense
counsel to discuss the consequences of mistrial with the defendant weighed
against a finding of implied consent. While the absence of consultation was
a factor supporting the lack of implied consent in Benson, 111 Nev. at 698,
895 P.2d at 1328, it was one of several factors considered under the totality
of the circumstances. Moreover, it was considered in the context of how
hurried and hostile the courtroom atmosphere had become when the court
declared a mistrial, id., unlike here, where the district court canvassed
jurors, asked for counsel's input, and considered Granada-Ruiz's frustration
with the jury misconduct before declaring a mistrial.
SUPREME COURT
OF
NEVADA
(0) ( sum ep
10
'
While counsel and Granada-Ruiz expressed frustration with what had
transpired at this late stage in the trial, they did not present any objection
to the declaration of a mistrial despite being given ample opportunity to do
so. These circumstances support that Granada-Ruiz impliedly consented to
the district court's declaration of a mistrial, and double jeopardy does not
bar a second trial.
The district court did not abuse its discretion in finding manifest
necessity to declare a mistrial
Even in the absence of implied consent, the district court did
not abuse its discretion in finding manifest necessity to declare a mistrial.
Granada-Ruiz argues that the district court employed an incorrect legal
standard, as not every exposure to improper research requires a mistrial.
Granada-Ruiz further submits that less drastic remedies would have been
appropriate, and there was no support for the district court's conclusion that
impaneling an alternate juror would not have been adequate. We disagree.
A sua sponte declaration of a mistrial does not create a bar to
re-prosecution on the same charges when there is manifest necessity to
declare a mistrial. United States v. Perez, 22 U.S. 579, 580 (1824). The
finding of manifest necessity is reviewed for an abuse of discretion. Glover,
125 Nev. at 703, 220 P.3d at 693. In this context, the abuse of discretion
standard turns on the question of whether the finding of manifest necessity
is one "a rational jurist could have made based on the record." United States
v. Chapman, 524 F.3d 1073, 1083 (9th Cir. 2008). The deference extended
to the trial court varies based on the circumstances of the case, but great
deference is given when the district court declared a mistrial based on its
own finding of potential juror bias. Id. at 1082; United States v. Jarvis, 792
F.2d 767, 769 (9th Cir. 1986). Our purpose on review is to halt irrational
decisions, thus we "focus on the procedures employed by the judge," and "[a]
SUPREME COURT
OF
NEVADA
(I)) 1947A
11
determination of manifest necessity may be upheld even if other reasonable
trial judges might have proceeded with the trial despite the error."
Chapman, 524 F.3d at 1082. In determining whether the trial court
exercised sound discretion in declaring a mistrial, we consider whether the
court: (1) allowed both parties to voice their opinions on the necessity of a
mistrial, (2) considered alternatives to a mistrial, (3) deliberately arrived at
the decision to declare a mistrial, and (4) declared the mistrial based on
evidence in the record. Id.; Glover, 125 Nev. at 710, 220 P.3d at 697.
The record shows that the district court acted within its sound
discretion in declaring a mistrial. First, the district court solicited the
opinions of both parties on three separate occasions following the discovery
of the juror misconduct. Thus, both parties had multiple opportunities to
apprise the district court of their positions regarding an appropriate remedy
and to provide caselaw they found to be instructive.
Second, the record demonstrates the district court considered
alternatives to declaring a mistrial. It expressly stated that its course of
action would depend on what it discovered while canvassing the jurors. The
transcript of the canvassing likewise supports the district court's
determination that Juror No. 3's research had permeated the jury room and
the jurors did not return to the jury instructions during deliberations, and
thus also supports the district court's resulting conclusion that employing
alternate jurors would be inadequate.
Third, the district court was deliberate in arriving at its
decision to declare a mistrial. Implicit in this factor is whether the district
court applied the appropriate legal standards in arriving at its decision.
See, e.g., Glover, 125 Nev. at 716, 220 P.3d at 701. The primary indicator of
behavior that is not deliberate is where the mistrial is declared suddenly,
SUPREME COURT
OF
NEVADA
(0) 19.47A
12
without a hearing, and without giving thought to alternatives. Chapman,
524 F.3d at 1082 (citing United States v. Bates, 917 F.2d 388, 396 (1990)).
Here, the district court not only allowed the parties to present arguments
as to the appropriateness of declaring a mistrial, but canvassed the
foreperson and the offending juror in order to evaluate the extent to which
the improper research had tainted deliberations.
Relatedly, the record does not support Granada-Ruiz's
argument that the district court employed an incorrect legal standard in
which any spread of the improper research would constitute manifest
necessity. The depth of the district court's investigation into the impact of
the improper outside influence on the jury's deliberations is reflected in the
progression of the district court's questioning of the jurors and its findings
of fact in that regard. The district court's determination that the improper
research had been shared amongst the jurors and consumed deliberations
to the extent that the jury never returned to the proper statements of law
in the jury instructions is supported by the record. 4 Thus, we see no grounds
on which to conclude that the district court's factual findings were clearly
4 Granada-Ruiz contends that the improper research introduced by
Juror No. 3 did not differ from the jury instruction, and consequently could
not have tainted jury deliberations. Juror No. 3, however, was not able to
articulate the legal conclusions he drew from his research, except to state
that they differed from what he recalled from trial or understood from the
jury instructions. Regardless, his outside research led to prolonged
disagreement in the deliberation room, and the fact that the other jurors
opposed the introduction of Juror No. 3's improper research does not change
the fact that the jury discussed it without returning to the jury instructions.
Thus, Granada-Ruiz's argument in this regard does not warrant a different
outcome. See Chapman, 524 F.3d at 1082 ("A determination of manifest
necessity may be upheld even if other reasonable trial judges might have
proceeded with the trial despite the error.").
SUPREME COURT
OF
NEVADA
(0) 194Th
13
erroneous. See Meyer v. State, 119 Nev. 554, 561, 80 P.3d 447,453 (2003)
("Absent clear error, the district court's findings of fact will not be
disturbed.").
Finally, the decision to order a mistrial was based on evidence
in the record. Two notes from jurors revealed that improper outside
research was considered in deliberations and Juror No. 3's stated inability
to follow the law. The district court's canvass of the jury revealed that the
improper research had replaced the jury instructions as the center of jury
deliberations, and the jury did not return to the proper statements of law in
deliberating on a verdict. The district court relied on this evidence in
finding manifest necessity to declare a mistria1. 5 Accordingly, we conclude
that the district court did not abuse its discretion in finding a manifest
necessity to declare a mistrial.
5Granada-Ruiz also argues that the trial court was required to
canvass each of the jurors to determine the improper research was
prejudicial and the replacing the offending juror would be an inadequate
remedy. While the district court must determine whether the improper
research had an effect on the jury, Bowman v. State, 132 Nev., Adv. Op. 74,
387 P.3d 202, 206 (2016), we have never held that a court must canvass
each of the nonoffending jurors to determine whether each, individually,
was effected by the improper research. Here, the district court determined
the effect of the improper research on the jury by canvassing Juror No. 3
and the foreperson and discovering that the improper research had
dominated deliberations and prevented the jury from applying the proper
statements of law provided in the jury instructions.
SUPREME COURT
OF
NEVADA
(0) 1947A ce 14
r ,
CONCLUSION
We conclude that the district court properly denied Granada-
Ruiz's motion to dismiss. A second prosecution following the district court's
declaration of mistrial is not prohibited by double jeopardy as the totality of
the circumstances, which include (1) Granada-Ruiz's lack of objection to a
mistrial, despite having the opportunity to raise an objection; (2) his
agreement with the court's analysis of the juror misconduct; and (3) the
possibility of mistrial being raised sua sponte, support Granada-Ruiz's
implied consent to mistrial. Further, the district court did not abuse its
discretion in finding manifest necessity to declare a mistrial, as the court
heard the positions of both sides; the record supports that the court explored
other options, such as replacing Juror No. 3; the district court was
deliberate in investigating the juror misconduct and evaluating the need for
mistrial; and the basis for finding manifest necessity was reflected in the
record. Therefore, re-prosecution is not barred by double jeopardy and
accordingly we deny Granada-Ruiz's petition _fiv a writ of mandamus.
Cherry
We concur:
t,cei c.j.
Douglas ibbons
J. / ALA cet-IA. 1 J.
Hardesty
/eksaC4-0
Parraguirre Stiglich
SUPREME COURT
OF
NEVADA
15
(0) 1947A