Indico (Elinor) v. Dist. Ct. (State) ( 2014 )

 abdomen (a shallow stab wound and a nick to her intestine) and a stab
wound to her thumb were consistent with her claims of self-defense, and
(4) her multiple statements to the police that the victim stabbed her and
she acted in self-defense.
To secure an indictment, the State must present sufficient
evidence showing probable cause that the accused committed the alleged
offense. Sheriff v. Burcham, 124 Nev. 1247, 1258, 198 P.3d 326, 333
(2008). That probable cause determination "may be based on slight, even
'marginal' evidence." Sheriff v. Hodes, 96 Nev. 184, 186, 606 P.2d 178, 180
(1980). The grand jury is limited to receiving "none but legal evidence,
and the best evidence in degree, to the exclusion of hearsay or secondary
evidence." NRS 172.135(2). And, while "the State is not required to
negate all inferences which might explain [an accused's] conduct," Kinsey
v. Sheriff, 87 Nev. 361, 363, 487 P.2d 340, 341 (1971), it is obligated to
present to the grand jury any known evidence that "will explain away the
charge." NRS 172.145(2). The phrase "explain away the charge" within
the context of a grand jury proceeding means explain away the slight or
marginal evidence supporting at least one element of the charge. See
State v. Cameron, 113 P.3d 687. 690 (Alaska Ct. App. 2005) (ascribing a
narrow definition to exculpatory evidence that strikes a balance between
the grand jury's function to "authorize the trial of a defendant when the
government has established a probability of the defendant's guilt" and to
shield an accused from an unjust prosecution) rev'd on other grounds, 171
P.3d 1154 (Alaska 2007); Cathey U. State, 60 P.3d 192, 195 (Alaska Ct.
App. 2002) (explaining that the prosecution's obligation to apprise the
grand jury of exculpatory evidence embraces only "evidence that tends, in
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and of itself, to negate the defendant's guilt" (internal quotation marks
omitted)); see also Sheriff v. Frank, 103 Nev. 160, 165, 734 P.2d 1241, 1244
(1987) (recognizing that the grand jury's mission is "to clear the innocent,
no less than to bring to trial those who may be guilty" (internal quotation
marks omitted)).
Petitioner argues that statements in her 911 call and to a
neighbor that the victim stabbed her satisfy the excited-utterance
exception to the hearsay rule, see NRS 51.095 (providing that "[a]
statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or
condition is not inadmissible under the hearsay rule"), and therefore could
be considered by the grand jury. Even accepting that premise, we
conclude that those statements are not exculpatory under NRS 172.145(2),
as they do not explain away the charges. Neither does medical evidence
regarding petitioner's injuries. Moreover, the grand jury was presented
with evidence that she sustained stab wounds to her abdomen and thumb.
Petitioner's statements in a 911 call and to a neighbor do not in and of
themselves explain away or negate the slight or marginal evidence
supporting the elements of the charge. Evidence that the victim stabbed
petitioner, alone, would not preclude a probable cause determination that
petitioner committed first-degree murder. See NRS 200.030(1) (defining
first-degree murder, in relevant part, as a "willful, deliberate and
premeditated killing"). Further, petitioner's non-life-threatening stab
wounds do not explain away the charge as those wounds could have been
inflicted by means other than self-defense. Finally, self-exculpating
statements are inherently suspect in their trustworthiness, see Williamson
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v. United States, 512 U.S. 594, 600 (1994) (observing that "[s]elf-
exculpatory statements are exactly the ones which people are most likely
to make even when they are false").
Regarding petitioner's statements to the police that the victim
stabbed her and that she acted in self-defense, those statements are not
exculpatory for the reasons explained above. See United States v.
Camacho, 163 F. Supp. 2d 287, 308 (S.D.N.Y. 2001) ("Statements to police
and prosecutors by criminal suspects or defendants are not considered to
be reliable, because the declarant generally wants to obtain favorable
treatment; [defendant's] statements to the police were especially
unreliable because they were self-exculpatory."). In addition, they
constitute hearsay and she has not demonstrated that they are admissible
under any exception to the hearsay rule. See 51.035; United States v.
Ferrell, No. 11 CR 595, 2013 WL 2636108, at *5 (N.D. Ill. June 12, 2013)
(concluding that "[a] party's self-serving, exculpatory, out-of-court
statement generally constitutes inadmissible hearsay" and therefore
"[d]efendant[ ] may only elicit testimony regarding any exculpatory
statements if there is an applicable exception to the hearsay rule that
would permit their admission"); People v. Mitchell, 583 N.Y.S.2d 432, 433
(App. Div. 1992) (concluding that defendant's self-serving exculpatory
statements to the police were inadmissible hearsay and because the grand
jury may only consider evidence admissible at trial, the prosecution was
not required to present the statements to the grand jury), aff'd, 626
N.E.2d 630 (N.Y. 1993).
Because we conclude that petitioner has not demonstrated
that the district court manifestly abused its discretion or exercised its
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discretion in an arbitrary or capricious manner, see State v. Eighth
Judicial Dist. Court (Armstrong), 127 Nev. , 267 P.3d 777, 780
(2011) (defining manifest abuse of discretion and arbitrary and capricious
exercise of discretion), we
ORDER the petition DENIED.'
J.
Parraguirre Saitta
'Petitioner relies on our decision in Schuster Ti. Eighth Judicial Dist.
Court, 123 Nev. 187, 160 P.3d 873 (2007), to support her claim the
prosecution was required to present evidence of self-defense to the grand
jury. However, in that case, we were faced with the question of whether a
prosecutor must explain the law of self-defense to the grand jury and
concluded that NRS 172.145(2) imposed no such obligation. Our holding
was premised on the fact that the prosecutor introduced the defendant's
videotaped interview in which the defendant made inculpatory statements
but also told the police that he fired a gun at the victim because the victim
was "coming at him" and that he did not intend to shoot the victim. We
have not expressly addressed whether a prosecutor's obligation under NRS
172.145(2) to present exculpatory evidence encompasses evidence of self-
defense, and, because we conclude that the challenged evidence here is not
exculpatory, we need not resolve that question.
We deny petitioner's Motion for Leave to File Supplemental Brief
and an Additional Appendix in Support of Petition for Writ of Mandamus.
The clerk shall reject the documents received via E flex on May 28, 2014.
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cc: Hon. Stefany Miley, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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