Brown (David) v. Dist. Ct. (State)

statutory rights to a speedy trial, moving the robbery case out of a judicial department where he had received favorable pretrial rulings, and allowing the State to circumvent unfavorable pretrial rulings. 2 "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); see also State v. Eighth Judicial Dist. Court (Armstrong), 127 Nev. , 267 P.3d 777, 780 (2011) (defining manifest abuse and arbitrary or capricious exercise of discretion in context of mandamus). And it will not issue if the petitioner has a plain, speedy, and adequate remedy in the ordinary course of the law. NRS 34.170. "Petitioner[ ] cardies] 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). We conclude that petitioner has failed to demonstrate that extraordinary relief is warranted. Petitioner did not demonstrate in the district court that all of the detective's testimony about the handwriting

2Petitioner has previously challenged the dismissal of the robbery case in an original petition for a writ of mandamus, see Brown v. Eighth Judicial Dist. Court, Docket 62619 (Order Granting Petition in Part, March 13, 2013), and again in an appeal from a district court order granting the State's motion to dismiss that case, see Brown v. State, Docket No. 63065 (Order of Affirmance, October 17, 2013).

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exemplars was hearsay and did not fall within an exception to the hearsay rule, see Rugamas v. Eighth Judicial Dist. Court, 129 Nev. „ 305 P.3d 887, 893 (2013) (the exclusion of hearsay in grand jury proceedings is subject to the statutory hearsay exceptions), or that none of the detective's testimony describing the collection of handwriting exemplars was legal evidence, see NRS 172.135(2) (the grand jury can only receive legal evidence); therefore, he has not demonstrated that the district court manifestly abused its discretion by denying his pretrial habeas petition, see Rugamas, 129 Nev. at 305 P.3d at 895-96 (a district court manifestly abuses its discretion by denying a pretrial habeas petition when there is no legal evidence to satisfy the elements of the charged offenses in a challenged indictment). And petitioner has not demonstrated that the district court manifestly abused its discretion by finding that the manner by which the State consolidated its cases did not rise to a level of prejudice and violation of speedy trial rights that would warrant dismissal. See NRS 178.556(1) (speedy trial rule); Thompson v. State, 125 Nev. 807, 811-13, 221 P.3d 708, 711-12 (2009) (dual prosecutions rule); State v. Lamb, 97 Nev. 609, 611, 637 P.2d 1201, 1202 (1981) ("Conscious indifference is a factual determination."); Brown, Docket No. 63065 (Order of Affirmance, October 17, 2013) (discussing constitutional speedy-trial analysis in the context of petitioner's case). Accordingly, we ORDER the petition DENIED.

Pickering

Parraguirre Saitta

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cc: Hon. Elizabeth Goff Gonzalez, District Judge Bush & Levy, LLC Oronoz & Ericsson Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

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