Must the court hold an oral hearing before withholding target notice of a grand jury proceeding?

Grand Jury

State v. Beaudion (Nev. Supreme Ct. – July 2, 2015)

NRS 172.241 affords the target of a grand jury investigation the opportunity to testify before them unless, after holding a closed hearing on the matter, the district court determines that adequate cause exists to withhold target notice. In this case, the district judge supervising the grand jury entered an order authorizing the State to withhold target notice based on the district attorney’s written request and supporting affidavit, without conducting a face-to-face oral hearing. The issue is whether this procedure satisfies NRS 172.241’s closed hearing requirement.

NRS 172.241(1) provides that a person whose indictment the district attorney intends to seek may testify before the grand jury if the person requests to do so and executes a valid waiver in writing of the person’s constitutional privilege against self-incrimination. To facilitate exercise of this right, NRS 172.241(2) requires the district attorney to give the target reasonable notice, sometimes called Marcum notice, of the grand jury proceeding, unless the court determines that adequate cause exists to withhold notice. Addressing the circumstances in which target notice may be withheld, NRS 172.241(3) specifies that the district attorney may apply to the court for a determination that adequate cause exists to withhold notice, if the district attorney determines that the target poses a flight risk, cannot be located or, as relevant here, that the notice may endanger the life or property of other persons.

The State alleged that Beaudion committed battery causing substantial bodily harm constituting domestic violence against his then-girlfriend when he tied her to their bed and poured boiling water over her exposed torso, burning her so severely that she required skin grafts. The State further alleged that Beaudion intimidated or threatened the victim with additional harm if she cooperated in his prosecution.

Initially, the State attempted to proceed against Beaudion by information, rather than indictment. Each time the date scheduled for the preliminary hearing arrived, the victim failed to appear and, eventually, she vanished. After three failed attempts at conducting the preliminary hearing, the State dismissed its criminal complaint against Beaudion without prejudice.

Several years later, detectives located the victim. The district attorney’s office renewed its efforts to charge Beaudion, this time utilizing the grand jury, which conducts its proceedings largely in secret. Before presenting its case against Beaudion to the grand jury, the district attorney’s office submitted a written application to the court supervising the grand jury for permission to withhold target notice from Beaudion. As grounds for withholding target notice, the application asserted that Beaudion would threaten or harm the victim and/or her family to prevent the victim from testifying if Beaudion knew the grand jury was considering his indictment. The ex parte application was supported by an affidavit from the prosecutor relating that previously the Defendant intimidated the victim to the point where she would not appear for court; that, when the victim had to be hospitalized for her burns, Beaudion had driven her from Nevada to California to avoid being caught for committing the crimes in this case; and that there was a good faith basis to believe that if the Defendant learns of the State’s intentions of indicting him he will again intimidate or harm the victim to prevent her from testifying. After considering the written application and supporting affidavit, but without holding an oral hearing, the court entered a written order finding cause for and authorizing the State to proceed without notice to Beaudion.

The victim testified before the grand jury, which returned a true bill, and the State filed an indictment against Beaudion in district court. Under local court rule EDCR 1.31, the case was administratively assigned to a different department of the district court than had impaneled the grand jury and so had issued the order dispensing with target notice. Beaudion filed a motion to dismiss in the department of the district court to which his criminal case was assigned. He argued that the order authorizing the district attorney’s office to withhold Marcum notice was deficient because it had not been preceded by the closed hearing required by NRS 172.241(4) and that this deficiency invalidated the indictment.

The district court granted Beaudion’s motion to dismiss. It accepted that, on the merits, the application and supporting affidavit established more than adequate cause to withhold Marcum notice from Beaudion under NRS 172.241(3)(b). And, it rejected Beaudion’s argument that the closed hearing needed to include him and his lawyer as participants. Nonetheless, the district court deemed it a violation of NRS 172.241(4)’s closed hearing requirement for the court to have dispensed with target notice based on the prosecutor’s written submissions, without conducting an oral, face-to-face hearing. In the district court’s view, the failure to hold the hearing required by NRS 172.241(4) invalidated the order authorizing the State to withhold target notice from Beaudion and rendered the indictment procedurally defective, requiring dismissal. The dismissal was effectively with prejudice since by then the statute of limitations had run. The State appealed.

On appeal, the State made a threshold argument that it did not make in the district court challenging the district court’s jurisdiction over Beaudion’s motion to dismiss. It contended that the district judge assigned to Beaudion’s criminal case lacked authority to overrule the grand jury judge’s decision to waive target notice, and that instead of asking the former to overrule the latter, Beaudion should have challenged the grand jury judge’s decision by way of an extraordinary writ. The Nevada Supreme Court disagreed. The court explained that NRS 174.105 allows a defendant to challenge procedural defects in the indictment by pretrial motion, and the State offered no authority that makes an original action in the Nevada Supreme Court the exclusive means for a criminal defendant to contest compliance with NRS 172.241. Nor was the Court persuaded that the district judge assigned to Beaudion’s criminal case improperly reexamined or second-guessed the grand jury judge’s substantive determination that adequate cause existed to withhold target notice. To the contrary, the district judge examined the procedure followed, specifically, whether it deviated from NRS 172.241(4) in such a way as to require dismissal of the indictment questions neither tendered to nor decided by the district judge charged with supervising the grand jury’s preindictment activities. While one district judge may not directly overrule the decision of another district judge on the same matter in the same case, this rule does not prohibit a second district judge who is assigned to a matter by operation of administrative court rules from deciding a matter related, but not identical to another regularly assigned judge’s earlier rulings.

The Court then considered what NRS 172.241(4) means by its closed hearing requirement. The statute does not define the term closed hearing. Beaudion argued in the district court that the closed hearing excludes the public, but includes the target—in other words, that before granting an application to withhold notice, the court must conduct an adversarial hearing, with the target present, so the target can challenge the factual and legal bases for withholding Marcum notice. The district court rejected this reading of NRS 172.241(4), and so did the Court. The Court explained that a defendant’s rights to Marcum notice and to testify before the grand jury are statute-based, not constitutional in origin. This being so, the defendant has no right to participate in the closed hearing beyond that conferred by statute and here, the statute did not confer the right to notice of the closed hearing on the defendant. The Court further explained that the point of the hearing is to determine whether adequate cause exists to withhold notice of the grand jury proceeding from its target because, under NRS 172.241(3), giving such notice might cause the target to flee or endanger the lives or property of others. The Court noted that it does not read statutes to produce absurd or unreasonable results, and it would indeed be absurd to read NRS 172.241(4) to require that the target be given notice and opportunity to be heard on whether notice should be withheld because he or she presents a flight risk or threat to others if given notice. Thus, the Court found that the district court correctly rejected this argument.

The Court next considered whether the reference in NRS 172.241(4) to a “closed hearing” requires an oral presentation to the court by the prosecutor or permits the court to decide whether to approve withholding target notice based on the prosecutor’s written submission if the written submission is adequate to the task. The Court explained that the hearing must be “closed” does not affect the analysis; the adjective “closed” signifies only that the hearing, whatever it may entail, be conducted in secrecy, which is consistent with the obligations of secrecy stated in NRS 172.245. The difficulty lies in the term “hearing.”

The Court explained that the word “hearing” derives from the word “hear” and thus seems to carry an “auditory component.” This suggestion of an oral or auditory component also inheres in general dictionary definitions of “hearing,” for example, Black’s Law Dictionary, which defines “hearing” as “A judicial session, usu. open to the public, held for the purpose of deciding issues of fact or of law, sometimes with witnesses testifying.” But, this does not answer the question whether, invariably, a hearing must be oral or can be achieved by written submissions.

The Court noted that the majority of courts to have considered the question have concluded that the use of the term “hearing” in a statute does not confer a mandatory right to oral argument or oral presentation unless additional statutory language or the context indicates otherwise.

Given the ex parte nature of the procedure here, the Court believed that if the district court has determined that the State’s written submissions provide sufficient grounds to support withholding notice, nothing further would be accomplished by requiring the prosecuting attorney to appear before the district court to orally argue what is already provided in the written materials. And as long as the State’s written submissions and the district court’s order memorialize the reasons underlying the district court’s decision, the target, if later indicted, would be able to challenge the basis upon which the notice was withheld, serving another purpose of the notice withholding procedure.

Thus, the Court reasoned that the more reasonable interpretation of “closed hearing,” as used in NRS 172.241, did not mandate an oral hearing in all instances, as that would require use of court resources and time for essentially no reason in cases such as this, but instead requires in camera review by the court of the State’s submission, with or without the prosecutor present. This is consistent with ABA Model Grand Jury Act of 1982, section 102(3), which, like NRS 172.241, affords a target notice and the opportunity to testify unless the prosecutor demonstrates to the court in camera that there are reasonable grounds to believe that giving such notice would create an undue risk of danger to other persons, flight of the target or other obstruction of justice, requiring judicial review, but not an in-person meeting between the prosecutor and the judge. And, the Court believed there was no reason to impose a blanket oral hearing requirement when NRS 172.241’s purposes can be met without the prosecuting attorney meeting in-person ex parte with the district court judge. Thus, the Court held that NRS 172.241’s procedure for withholding notice is met if the State presents sufficient evidence to the district court, through written application and/or at oral argument, should the court require it, to allow the court to conclude by written order that that adequate cause to withhold notice of the grand jury proceedings exists. Therefore, the Court reversed the district court’s order dismissing the indictment.

Leave a Reply

Your email address will not be published. Required fields are marked *