565 P.2d 330 | Nev. | 1977
By the Court,
Pursuant to a True Bill by the Clark County Grand Jury, an indictment was filed charging Terry Lee Phillips, and others, with murder (NRS 200.010; NRS 200.030) and robbery with use of a deadly weapon in the commission of a crime (NRS 200.380; NRS 193.165). The indictment was challenged with a pre-trial petition for a writ of habeas corpus wherein the principal contention was that the district attorney, in prosecuting the case, showed a conscious indifference to Phillips’ rights. Appellant also contends that there was inadmissible evidence presented to the grand jury and without such evidence, probable cause evaporates. Both contentions were considered and rejected by the district court and are reasserted in this appeal.
The State originally proceeded against Phillips by criminal complaint. The preliminary examination, first scheduled for December 10, 1976, was continued at the prosecution’s
Phillips argues that our decision in Maes v. Sheriff, 86 Nev. 317, 468 P.2d 332 (1970), requires a dismissal of the indictment because “[a] new proceeding for the same offense ... is not allowable when the original proceeding has been dismissed due to the willful failure of the prosecutor to comply with important procedural rules.” Appellant contends there were two such “willful failures.”
First, he argues the inability of the State to proceed to preliminary examination constitutes a violation of DCR 21 and bars any further proceedings. However, the record supports the district judge’s determination that the case was originally dismissed, not as a sanction against the State for any “willful failures” to comply with DCR 21, but because the State, after exercising due diligence, was unable to proceed. Therefore, Maes is inapposite, and this proceeding on the indictment is permissible. Tellis v. Sheriff, 85 Nev. 557, 459 P.2d 364 (1969).
Secondly, he contends that since the district attorney was later able to obtain a True Bill without the missing witness’s testimony, the witness was never really essential and the Bustos declaration was necessarily false. A false Bustos declaration, the argument proceeds, evidences a “conscious indifference” to his rights (forbidden by State v. Austin, 87 Nev. 81, 482 P.2d 284 (1971)), and, therefore, this subsequent proceeding is improper. A similar argument was considered and rejected in Egan v. Sheriff, 88 Nev. 611, 503 P.2d 16 (1972). Cf. Johnson v. Sheriff, 89 Nev. 304, 511 P.2d 1051 (1973). That the district attorney was able to obtain a True Bill from the grand jury without the testimony of the absent witness does not, by itself, establish that such witness’s testimony was unnecessary at the time of the preliminary examination.
In support of his second contention, Phillips argues that inadmissible hearsay statements were presented to the grand jury without it having been instructed as to the foundational
Additionally, appellant has proffered the contention that the requirements of NRS 172.155(1 )
Affirmed.
The statute provides: “A statement made by a declarant while believing that his death was imminent is not inadmissible under the hearsay rule if the declarant is unavailable as a witness.”
NRS 172.155(1) provides: “The grand jury ought to find an indictment when all the evidence before them, taken together, establishes probable cause to believe that an offense has been committed and that the defendant has committed it.”