Richardson (Tony) v. Dist. Ct. (State) ( 2014 )

 claims that witnesses who did not testify before the grand jury could have
implicated another individual in the murder and the statement of the
eyewitness who testified before the grand jury revealed that she had dated
Richardson and that her statement was not consistent with her testimony.
We conclude that extraordinary relief is not warranted on this claim
Richardson failed to demonstrate that exculpatory evidence existed which
the State neglected to present. The witnesses whom Richardson claims
could have pointed to other suspects did not witness the shooting. The
petition and supporting appendix do not support Richardson's contention
that a witness could testify that Richardson acted in self-defense. And the
fact that the eyewitness to the shooting who testified before the grand jury
had once met the victim and had dated Richardson did not exculpate
Richardson. Moreover, even if the State had presented this evidence, the
grand jury heard overwhelming evidence to support a true bill for murder
and dissuading a witness, which included testimony that a witness saw
Richardson shoot the victim and he later threatened that witness and her
family. Thus, Richardson cannot demonstrate a reasonable probability
that the grand jury would not have found probable cause existed to indict
him if the State had introduced the evidence. See Lay v. State, 110 Nev.
1189, 1198, 886 P.2d 448, 454 (1994) ("[A] defendant shows prejudice
[sufficient to warrant dismissal of an indictment] only when there is a
reasonable probability that the outcome would have been different absent
the misconduct."); Sheriff v. Keeney, 106 Nev. 213, 216, 791 P.2d 55, 57
(1990) (providing that defendant must demonstrate substantial prejudice
resulting from governmental misconduct to justify dismissal of
indictment). Richardson has not demonstrated that the district court
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manifestly abused its discretion by denying his pretrial petition for a writ
of habeas corpus. See MRS 34.160.
Second, Richardson claims that the State did not accurately
instruct the grand jury on the crime of dissuading a witness. We disagree.
The given instruction correctly informed the grand jury of the elements of
preventing or dissuading a person from testifying or producing evidence as
defined in NRS 199.230. See NRS 172.095(2) (providing that the State
must instruct the grand jury of the elements of the offense alleged).
Therefore, Richardson has not demonstrated that the district court
manifestly abused its discretion by denying his pretrial petition for a writ
of habeas corpus.
Third, Richardson claims that the facts presented to the grand
jury cannot support an indictment for dissuading a witness because the
victim of that crime had already reported the incident to the police when
he was alleged to have threatened her. The grand jury was instructed on
the elements of dissuading a witness from testifying pursuant to NRS
199.230, not dissuading a witness from reporting to police pursuant to
NRS 199.305. To the extent that Richardson further claims that his
charge is not supported by the evidence, this court's review of a pretrial
probable cause determination through an original writ petition is
disfavored. See Kussman v. Eighth Judicial Dist. Court, 96 Nev. 544, 545-
46, 612 P.2d 679, 680 (1980). Richardson has not demonstrated that the
challenge to the probable cause determination fits the exceptions we have
made for purely legal issues. See State v. Babayan, 106 Nev. 155, 174, 787
P.2d 805, 819-20 (1990) (granting writ of mandamus dismissing an
indictment to prevent "gross miscarriage of justice"). Therefore,
extraordinary relief is not warranted on this claim.
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Having considered Richardson's contentions and concluded
that they lack merit, we
ORDER the petition DENIED.
J.
Pi e )ng
.:ring
ri
TeOP-CL-Ai J.
Parraguirre
Saifta
cc: Hon. Douglas Smith, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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