Chasing Horse v. Eighth Jud. Dist. Ct.

555 P.3d 1205

Nathan CHASING HORSE, Petitioner,

v.The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and The Honorable Carli Lynn Kierny, District Judge, Respondents,andThe State of Nevada, Real Party in Interest.

No. 86538

Supreme Court of Nevada.

Filed September 26, 2024

Original petition for a writ of mandamus or, alternatively, prohibition challenging a district court order denying a pretrial petition for a writ of habeas corpus.

Nancy Lemcke, Public Defender, and Kristy S. Holston, Chief Deputy Public Defender, Clark County, for Petitioner.

Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and William C. Rowles and Karen L. Mishler, Chief Deputy District Attorneys, Clark County, for Real Party in Interest.

BEFORE THE SUPREME COURT, EN BANC.

OPINION

By the Court, HERNDON, J.:

A grand jury is charged with the solemn duty of deciding whether the State has suffi- cient evidence demonstrating probable cause to issue an indictment. In fulfilling that duty, the grand jury checks the power of the State and protects fellow citizens from unfounded prosecutions. In this original proceeding, we consider two assignments of error within such grand jury proceedings in determining whether the district court manifestly abused its discretion in denying petitioner Nathan Chasing Horse’s pretrial petition for a writ of habeas corpus: first, whether a State-provided instruction defining the term "grooming" prejudiced Chasing Horse, and second, whether the State must present exculpatory evidence that it is aware of but which it considers to be mere inconsistent statements.

We conclude that it is error for the State to give the grand jury an instruction that is unsupported by the evidence and does not address a necessary element of an offense under NRS 172.095(2). In this case, the State exceeded its statutory duty and gave the grand jury an improper instruction on grooming that prejudiced Chasing Horse. We also conclude that Chasing Horse was prejudiced by the State’s failure to present exculpatory evidence, as required by NRS 172.145(2). The combination of these two clear errors undermines our confidence in the grand jury proceedings and created intolerable damage to the independent function of the grand jury process. Because the State provided an inflammatory instruction and failed to present exculpatory evidence, the district court manifestly abused its discretion by denying pretrial habeas relief. Accordingly, we grant the writ petition before us.

BACKGROUND

The State sought an indictment charging Chasing Horse with numerous felonies allegedly committed between February 2012 and January 2023. The grand jury returned an indictment on 18 felonies, including 16 counts of sexual assault involving two alleged victims—C.C.H. and S.B. As a result, Chasing Horse is awaiting trial.

The allegations against Chasing Horse are as follows. According to C.C.H., she first met Chasing Horse when she was between 6 and 7 years old. C.C.H. and Chasing Horse are members of the Lakota Tribe, and Chasing Horse held a prominent position within that community. In that role, Chasing Horse traveled throughout North America to perform ceremonies. Chasing Horse was also known to communicate with ancestral spirits and to heal afflicted members of the Lakota community.

When C.C.H. was 14, her mother, Melissa, was diagnosed with Stage IV cancer. Melissa sent C.C.H. to Chasing Horse to ask him to perform a ceremony to heal the cancer. When C.C.H. sought his help, Chasing Horse told her that the ancestors required C.C.H. to have sexual intercourse with him. C.C.H. believed that to be true and agreed. Chasing Horse told C.C.H. that they made a sacred promise with the spirits and that C.C.H. had to keep it a secret. The sexual relationship continued during ceremonial trips to other states. After one trip, Chasing Horse performed a ceremony for Melissa and the cancer went into remission, reinforcing C.C.H.’s belief in Chasing Horse’s abilities. C.C.H. continued to have sexual interactions with Chasing Horse because she believed that Melissa’s cancer would return if she stopped.

The second alleged victim, S.B., met Chasing Horse when she was 3 or 4 years old and over several years participated in ceremonies with him. S.B.’s mother was romantically involved with Chasing Horse, and S.B. viewed him as a father figure. S.B. also believed Chasing Horse could speak with the ancestors and spirits. In 2014, when S.B. was 19 years old, she traveled to Chasing Horse’s home at his request. At the house, Chasing Horse had sexual intercourse with S.B. Chasing Horse told S.B. that the ancestors told him to have sex with her. S.B. testified that she did not want to have sex with Chasing Horse but was afraid of the ancestors and any consequence she would face if she refused.

In 2022, investigators from the Bureau of Indian Affairs (BIA) interviewed C.C.H., who was about 24 years old at the time. During the interview, C.C.H. discussed a sexual encounter she had with Chasing Horse and stated that she did not feel bad about her decision. Rather, C.C.H. stated that she was proud because she thought it helped her mother. Although the sexual encounters involved this transactional aspect, C.C.H. stated that during her trip with Chasing Horse in 2012 through multiple states, she believed she was falling in love with him. C.C.H. stated that the sexual encounters continued for years across multiple states and that she eventually fell in love with Chasing Horse, wished to be his wife, and pressured Chasing Horse to allow her to move in with him.

That same year, C.C.H. wrote a social media post discussing her relationship with Chasing Horse. C.C.H. stated in the post that she had initially wanted to say "no" during their first sexual encounter, but she agreed after Chasing Horse told her it was the only way to help Melissa. C.C.H. said she made a proud, honorable decision. The post also discussed her love for Chasing Horse and her desire to be his wife. C.C.H. wrote that she wanted to move in with Chasing Horse and had to pressure him to allow her to do so. Finally, she wrote that she had said "yes" when Chasing Horse told her he wanted to arrange for her to have sex with other men.¹

After seeing this post and further investigating, the State sought an indictment of Chasing Horse. The charges were brought before a grand jury. During the grand jury proceedings, the State presented testimony from four witnesses, including the two alleged victims. The State did not present C.C.H.’s BIA interview or her social media post to the grand jury. The State also did not present any expert testimony on the clinical concept of "grooming" but nevertheless provided the grand jury with the following instruction on the subject:

The term "grooming" describes:

[W]hen an offender prepares a child for victimization by getting close to the child, making friends with the child, becoming perhaps a confidant of the child, and getting the child used to certain kinds of touching, and play activities. Grooming can also include gifts, praises, and rewards as well as exposure to sexual items and language. This conduct is undertaken to develop an emotional bond between the victim and offender and may even lead the victim to feel responsible for his or her own abuse. The offender engages in grooming activity to reduce the child’s resistance to sexual activity and reduce the possibility that the victim will report the abuse.

Ultimately, the grand jury returned an indictment charging Chasing Horse with 19 felonies—first-degree kidnapping of a minor, open or gross lewdness, trafficking in a controlled substance, six counts of sexual assault, and ten counts of sexual assault of a victim under 16 years of age.

After the grand jury returned the indictment, Chasing Horse filed a pretrial petition for a writ of habeas corpus. The petition challenged the indictment on multiple grounds, including that the State improperly instructed the grand jury on grooming and failed to introduce exculpatory evidence that it was aware of—C.C.H.’s BIA interview and social media post. The district court dismissed count 19 (trafficking in a controlled substance) but otherwise denied Chasing Horse’s pretrial habeas petition. Chasing Horse filed the instant petition seeking writ relief, and a panel of this court declined to entertain the petition. Chasing Horse v. Eighth Jud. Dist. Ct., No. 86538, 2023 WL 8659301 (Nev. Dec. 14, 2023) (Order Denying Petition). We granted Chasing Horse’s subsequent petition for en banc reconsideration under NRAP 40A.

DISCUSSION

This court’s review by way of mandamus is warranted

[1–4] Chasing Horse seeks a writ of mandamus compelling the district court to grant the pretrial habeas petition and dismiss the charges.² Writ relief is an extraordinary rem- edy, and "it is within the discretion of this court to determine if a petition will be considered." Clay v. Eight Jud. Dist. Ct., 129 Nev. 445, 450, 305 P.3d 898, 901 (2013). A petitioner carries "the burden of demonstrating that extraordinary relief is warranted." Pan v. Eighth Jud. Dist. Ct., 120 Nev. 222, 228, 88 P.3d 840, 844 (2004). A writ of mandamus is available "to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station" or to control the manifest abuse or arbitrary or capricious exercise of discretion, NRS 34.160; Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). "Because mandamus is an extraordinary remedy, this court does not typically employ it where ordinary means, already afforded by law, permit the correction of alleged errors." Walker v. Second Jud. Dist. Ct., 136 Nev. 678, 681, 476 P.3d 1194, 1197 (2020); see also NRS 34.170 (providing that mandamus "shall be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law").

[5] "[T]he...