State v. Dist. Ct. Jones (Johnny) ( 2014 )

 because they were not based on the same act or transaction, they did not
constitute parts of a common scheme or plan, and they were not connected
together. Jones further argued that, even if the counts were properly
joined, they must be severed to prevent the unfair prejudice that would
arise if the jury heard evidence that he admitted to committing some of
the counts and was prejudiced into assuming that he committed the
remaining counts. Jones sought an order severing the counts into 11 trials
based on the 11 different crime locations.
Petitioner opposed severance. Petitioner argued that all 34
counts were properly joined because they were either connected together
or constituted parts of a common scheme or plan. Petitioner also argued
that Jones failed to show that joinder of these counts was so manifestly
prejudicial that it outweighed the dominant concern of judicial economy.
Petitioner opined that any fear Jones had that the jury would improperly
associate evidence from one incident to other incidents could be cured with
a limiting instruction.
Jones replied to petitioner's opposition, the district court
heard argument on the motion, and the district court made the following
ruling:
I've reviewed the pleadings carefully and I've
listened carefully to the argument. And the Court
is inclined to grant the defendant's motion
pursuant to NRS 174.165, subsection 1, because
where the central issue will likely be whether the
defendant is a perpetrator in this particular case
for the Court to allow these cases to be combined
would cause substantial prejudice to the
defendant. It does appear to me that there seems
to be a common scheme or plan but given the law
as I understand it would be it would be extremely
prejudicial to the defendant for the Court to
SUPREME COURT
OF
NEVADA
2
(0) 1947A
permit this especially in view of the legal analysis
in the Tabish case.
The district court entered a written order granting Jones' motion to sever
in its entirety, and it denied petitioner's subsequent motion to consolidate
the counts after hearing argument on that motion. This mandamus
petition followed.
Petitioner argues that the district court exercised its
discretion in an arbitrary manner when it granted Jones' motion to sever
on a specter of prejudice and without consideration of the principles of
judicial economy.
Availability of mandamus relief
"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).
"An arbitrary or capricious exercise of discretion is one founded on
prejudice or preference rather than on reason, or contrary to the evidence
or established rules of law." State v. Eighth Judicial Dist. Court
(Armstrong), 127 Nev. , 267 P.3d 777, 780 (2011) (citation and
internal quotation marks omitted). "Petitioned ] carr[ies] 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).
Unfair joinder
SUPREME COURT
OF
NEVADA
3
(0) 1947A 7014,4
Even when charges are properly joined, some form of relief
may be necessary to avert unfair prejudice to the defendant. NRS
174.165(1) provides that "[i]f it appears that a defendant . . . is prejudiced
by a joinder of offenses . . . in an indictment . . . , the court may order an
election or separate trials of counts, . . . or provide whatever relief justice
requires." The defendant has the burden of demonstrating to the district
court that the joinder would be unfairly prejudicial; this requires more
than a mere showing that severance may improve the defendant's chances
for acquittal. Weber v. State, 121 Nev. 554, 574-75, 119 P.3d 107, 121
(2005). Courts construing NRS 174.165(1)'s federal cognate
have identified three related but distinct types of
prejudice that can flow from joined counts: (1) the
jury may believe that a person charged with a
large number of offenses has a criminal
disposition, and as a result may cumulate the
evidence against him or her or perhaps lessen the
presumption of innocence; (2) evidence of guilt on
one count may 'spillover' to other counts, and lead
to a conviction on those other counts even though
the spillover evidence would have been
inadmissible at a separate trial; and (3) defendant
may wish to testify in his or her own defense on
one charge but not on another.
1A Charles Wright, Andrew D. Leipold, Peter J. Jenning, & Sarah N.
Welling, Federal Practice and Procedure Criminal § 222 (4th ed. 2014).
Like the federal rule, NRS 174.165(1) "does not require severance even if
prejudice is shown; rather, it leaves the tailoring of the relief to be
granted, if any, to the district court's sound discretion." Zafiro v. United
States, 506 U.S. 534, 538-39 (1993).
"To require severance, the defendant must demonstrate that a
joint trial would be 'manifestly prejudicial.' The simultaneous trial of the
offenses must render the trial fundamentally unfair, and hence, result in a
SUPREME COURT
OF
NEVADA
4
(0) 1047A
violation of due process." Honeycutt v. State, 118 Nev. 660, 667-68, 56
P.3d 362, 367 (2002) (emphasis added), overruled on other grounds by
Carter v. State, 121 Nev. 759, 765, 121 P.3d 592, 596 (2005). In evaluating
the defendant's motion to sever, the district court must consider "whether
[the] joinder is so manifestly prejudicial that it outweighs the dominant
concern [of] judicial economy and compels the exercise of the court's
discretion to sever." Tabish v. State, 119 Nev. 293, 304, 72 P.3d 584, 591
(2003). We think the district court must also carefully consider other, less
drastic forms of relief before ordering a severance. See id. ("When some
potential prejudice is present, it can usually be adequately addressed by a
limiting instruction to the jury. The jury is then expected to follow the
instruction in limiting its consideration of the evidence.").
Discussion
Having considered the petition and the answer, we conclude
that relief is warranted. Severance is an extraordinary remedy that must
be used with great caution and care. Here, it is not apparent that the
district court gave due consideration to the tremendous impact that 11
separate trials would have on judicial resources and public funds. Nor is
it apparent that the district court considered forestalling the real-party-in-
interest's prejudice through lesser forms of relief—such as providing
cautionary instructions on the admissibility of evidence and the need to
compartmentalize the evidence or by grouping the counts into fewer trials.
Consequently, we conclude that the district court manifestly abused its
discretion by severing the 34 counts into 11 trials without due
consideration to the issues at hand, see Patterson v. State, 129 Nev. ,
, 298 P.3d 433, 439 (2013), and we
SUPREME COURT
OF
NEVADA
5
(0) 1947A
ORDER the petition GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
district court to vacate its order granting the real party in interest's
motion to sever counts and reconsider the motion to sever counts giving
due consideration to the dominant concern of judicial economy, whether
joinder is unfairly prejudicial, and the possibility of less drastic forms of
relief. 1
Piekuth,
Pickering
, J.
CI—Xect ck—Sc5 J.
Parraguirre Saitta
cc: Hon. Jessie Elizabeth Walsh, District Judge
Attorney General/Carson City
Clark County District Attorney
Anthony M. Goldstein
Eighth District Court Clerk
1 We
deny petitioner's motion for stay of the district court
proceedings.
SUPREME COURT
OF
NEVADA
6
(0) (94Th 4eloz•
Ola-ciert