Opinion
No. 64285
10-31-2013
JONATHAN LOPEZ, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE DOUGLAS SMITH, DISTRICT JUDGE, Respondents, and THE STATE OF NEVADA, Real Party in Interest.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER DENYING PETITION
This original petition for a writ of mandamus challenges a district court decision granting a pretrial motion to strike expert witness.
The petition challenges a pretrial evidentiary decision. Because petitioner has a plain, speedy, and adequate remedy in the ordinary course of law by way of an appeal if he is convicted, see NRS 177.015(3), we decline to exercise our original jurisdiction. NRS 34.170; see Poulos v. Eighth Judicial Dist. Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982); see also State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983).
Contrary to petitioner's suggestion, our order granting in part a prior writ petition in this matter did not determine the admissibility of any expert testimony. We merely directed the district court to vacate its order denying petitioner's motion to employ an expert at public expense, hold a hearing on the motion, and make the findings on the two considerations set forth in Widdis v. Second Judicial Dist. Court, 114 Nev. 1224, 968 P.2d 1165 (1998). Lopez v. Eighth Judicial Dist. Court, Docket No. 62754 (Order Granting Petition in Part, May 14, 2013).
Although we are not inclined to intervene in this evidentiary matter pretrial, we remind the district court of the need to make a complete record of its decision so that the parties are aware of the scope and basis of its decision and there is a sufficient record for appellate review, should it be necessary. At this point, there is no written order. The petition filed with this court suggests that the district court's pretrial decision has "forc[ed] the Defense to abort its only defense to the State's primary theory of prosecution," but it appears that the State's motion sought to preclude the defense expert from testifying on one subject identified in the notice of expert witnesses—the defendant's state of mind during police interrogation—and did not seek to preclude the expert from testifying on a more general subject identified in the notice—"general concepts of interrogations taken under unusual and/or stressful circumstances." Striking the entirety of the defense expert's opinion would appear to exceed the relief sought by the State. A written order, entered before the trial begins, would avoid confusion.
Accordingly, we
We therefore also deny the motion to stay the trial pending our resolution of this petition.
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___________________, J.
Hardesty
___________________, J.
Parraguirre
CHERRY, J., dissenting:
Because I would grant a short stay and direct the State to file an answer to the petition, I dissent. In particular, I am concerned that the district court may have precluded the defense expert from testifying as to any of the subjects set forth in the notice of expert witnesses. If that is the case, I would be inclined to grant the petition.
___________________, J.
Cherry
cc: Hon. Douglas Smith, District Judge
Law Office of Kristina Wildeveld
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk