Peterson (Kasheem) v. Dist. Ct. (State) ( 2013 )

 a plain, speedy and adequate remedy in the ordinary course of law. NRS
34.170; NRS 34.330. And ultimately, because mandamus and prohibition
are extraordinary remedies, it is within the discretion of this court to
determine if a petition will be considered. See Poulos v. Eighth Judicial
Dist. Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982); see also State ex
rel. Dep't Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339
(1983).
We are not convinced that our intervention is warranted at
this time. Petitioner suggests that the Legislature "has not allowed for a
hearing with the admission of separate evidence" when the sentence must
be determined by a jury under NRS 200.400(4)(a) and therefore there is
"no authority to let either side present additional evidence to the jury."
We disagree with the broad premise that the parties are not allowed to
present evidence relevant to sentencing when the jury is tasked with
determining the appropriate sentence. In the absence of specific guidance
from the Legislature, it is within the district court's discretion to
determine what evidence is relevant and admissible to the jury's
sentencing determination. See generally Atkins v. State, 112 Nev. 1122,
1127, 923 P.3d 1119, 1123 (1996) ("Trial courts have considerable
discretion in determining the relevance and admissibility of evidence."),
overruled on other grounds by McConnell v. State, 120 Nev. 1043, 102 P.3d
606 (2004).
On the more specific concern that the district court has
decided to use rules that apply to capital cases, we acknowledge that the
petition and accompanying documents raise some potential concerns. But
we conclude that the request for extraordinary relief is premature as it is
unclear how the proceedings will be conducted.
SUPREME COURT
OF
NEVADA
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First, there is some suggestion in the record that the district
court intends to voir dire the jury on sentencing issues similar to capital
cases. Although the primary reason that sentencing is addressed during
voir dire in capital cases is to death qualify the jury, see, e.g., McKenna v.
State, 101 Nev. 338, 342-44, 705 P.2d 614, 617-18 (1985) (discussing
qualification of jurors in capital case), and there is no need to death
qualify a jury faced with making a sentencing determination under NRS
200.400(4)(a), it is conceivable that a juror's views could prevent or
substantially impair her duty to impose a sentence in general or to impose
either or both of the sentencing options allowed under NRS 200.400(4)(a)
and therefore any such views may be an appropriate subject for voir dire
in this case, see generally Lamb v. State, 127 Nev. , 251 P.3d 700,
707 (2011) ("The purpose of jury voir dire is to discover whether a juror
will consider and decide the facts impartially and conscientiously apply
the law as charged by the court." (internal quotation marks omitted)).
Because jury selection has not yet happened and the district court has not
made its plans clear, we have no idea whether or how sentencing will be
addressed during voir dire.
Second, petitioner suggests that the district court intends to
conduct the proceedings consistent with SCR 250 and that this will
present several problems, including that counsel is not SCR 250 qualified.
It is not clear, however, that the district court has wholesale applied SCR
250. Rather, when defense counsel suggested that the State should have
to provide some kind of notice as to the evidence or witnesses that it
intends to call relevant to the jury's sentencing determination, the district
court determined that both parties should have to provide notice of
witnesses relevant to the sentencing determination as a matter of due
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process and turned to SCR 250 for guidance on that point, indicating that
it "want[ed] notice consistent with the rule." It therefore appears that the
district court looked to SCR 250 solely to address the notice issue, but we
acknowledge that it is not entirely clear the extent to which the district
court will turn to the rules governing capital penalty hearings for
guidance on other issues that may arise in this case.
Third, there may be concerns that evidence relevant only to
the jury's sentencing decision may unfairly prejudice the defense with
respect to the jury's decision as to guilt or innocence. It is not entirely
clear whether the district court intends to bifurcate the proceedings to
avoid the possibility of unfair prejudice or whether such bifurcation is
even required.
None of these potential concerns were addressed in any
significant detail by the parties or the district court, nor are they
adequately addressed by petitioner before this court. These circumstances
simply do not allow for meaningful review by this court.
Further complicating matters, the State has filed a notice of
joinder in the petition, expressing its "opinion that should [petitioner] be
convicted, it is the judge and not the jury, which is required to make the
sentencing determination." Typically, a party joining in a petition agrees
with the arguments made in the petition or is at least taking the same
position as the petitioner. The State's notice indicates, however, that it
wishes to make a new argument that is not presented in the petition and
appears to be different from the petitioner's position. That argument also
was not presented below and has not been addressed by the district court.
We therefore disapprove the State's attempt to "join" in the petition.
Having considered the petition and other papers filed in this
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matter, we decline to intervene at this time and therefore
ORDER the petition and the motion for a stay DENIED.
Douglas
Hardesty Saitta
cc: Hon. David Barker, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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