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.