No. 72446 

ED 

AUG 0 22018 

CLETTI1/4kr2/ 1

BY 

BROWN 

tntiST,J SSE 17 

134 Nev., Advance Opinion 67 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

GAMBINO GRANADA-RUIZ, 

Petitioner, 

vs. 

THE EIGHTH JUDICIAL DISTRICT 

COURT OF THE STATE OF NEVADA, 

IN AND FOR THE COUNTY OF 

CLARK; AND THE HONORABLE 

KATHLEEN E. DELANEY, DISTRICT 

JUDGE, 

Respondents, 

and 

THE STATE OF NEVADA, 

Real Party in Interest. 

Original petition for a writ of mandamus, or in the alternative, 

prohibition in a criminal matter. 

Petition denied. 

David M. Schieck, Special Public Defender, and Robert Arroyo, Alzora B. 

Jackson, and JoNell Thomas, Deputy Special Public Defenders, Clark 

County, 

for Petitioner. 

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, 

District Attorney, Steven S. Owens, Chief Deputy District Attorney, and 

Nicole J. Cannizzaro and Kenneth N. Portz, Deputy District Attorneys, 

Clark County, 

for Real Party in Interest. 

BEFORE THE COURT EN BANC. 

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OPINION 

By the Court, CHERRY, J.: 

Petitioner Gambino Granada-Ruiz stood trial on charges of 

murder and battery with substantial bodily harm. During a weekend recess 

in jury deliberations, one juror conducted extrinsic legal research and 

shared that information with other jurors when deliberations resumed. 

After considering argument from counsel and canvassing two jurors, the 

district court declared a mistrial. Granada-Ruiz moved to dismiss the 

charges based on a constitutional double jeopardy theory. The district court 

denied the motion and set the matter for a new trial. Granada-Ruiz 

petitions this court for a writ of mandamus' directing the district court to 

grant his motion to dismiss and bar his re-prosecution following the 

mistrial. We conclude that double jeopardy does not prohibit GranadaRuiz's retrial under the totality of the circumstances because he impliedly 

consented to the district court's declaration of a mistrial, and the district 

court did not abuse its discretion in finding manifest necessity to declare a 

mistrial. Therefore, we deny Granada-Ruiz's petition on the merits. 

FACTS AND PROCEDURAL HISTORY 

The State charged Granada-Ruiz with murder and battery 

resulting in substantial bodily harm Whether Granada-Ruiz and the 

victim had a physical altercation was not at issue, and the trial hinged on 

whether Granada-Ruiz acted in self-defense. The trial proceeded to jury 

'Granada-Ruiz alternatively seeks a writ of prohibition; however, a 

writ of prohibition serves to arrest the proceedings of a court outside of its 

jurisdiction. NRS 34.320. Because he seeks a writ compelling the district 

court to grant his motion to dismiss on grounds that the double jeopardy 

principles mandate such an outcome, we consider his petition under the 

mandamus standard. 

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deliberations without incident. On the second day of deliberations, 

however, the district court received two notes from jurors. The first note 

was from Juror No. 12 and claimed that Juror No. 3 had performed external 

legal research on the internet the previous weekend. The second note was 

from Juror No. 3 and stated that he had researched legal definitions and 

was unwilling to disregard what he had found. 

The district court summoned both parties and, before GranadaRuiz arrived, informed counsel for both sides of the developments and that 

the district court would need to determine if further deliberations were 

possible. The district court stated that it would canvass the jurors to 

determine whether the information had been shared, the nature and scope 

of the taint, and whether the deliberative process had been so compromised 

to necessitate a mistrial. 

The State suggested that the district court conduct a two-part 

inquiry to determine whether the information had been shared and whether 

the remaining jurors would be able to disregard it. It further posited that, 

because Juror No. 3 had separated himself from the other jurors, his 

research may not have affected their deliberations. Granada-Ruiz's counsel 

disagreed, stating that external research entering the deliberation room 

was inherently a problem, creating the possibility that it "infect[ed] the 

jury." The district court again indicated that if canvassing revealed the 

external research had been shared amongst the jurors, deliberations may 

be irreparably tainted and whether the trial continued would ultimately be 

up to the court. 

Upon Granada-Ruiz's arrival, the district court apprised him of 

what had occurred and allowed the parties to present the caselaw they had 

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found in the meantime. 2To determine the nature and extent of the taint, 

the district court called the foreperson for canvassing. The foreperson 

stated that although multiple jurors had informed Juror No. 3 that he 

should not attempt to discuss his external research, the deliberations 

throughout the day included discussions about Juror No. 3's external 

research concerning the definitions of premeditation and self-defense. The 

foreperson further stated that Juror No. 3 perceived a difference in what 

was stated during closing argument about premeditation and what his 

research revealed, and the deliberations never meaningfully returned to the 

jury instructions on either issue because "the conversation really got bent 

more on what Juror No. 3 was saying about premeditation." 

After dismissing the foreperson, the district court told both 

parties that it would question Juror No. 3 but that it appeared external 

research concerning the central issues presented to the jury had permeated 

deliberations and led to the exclusion of the jury instructions on two points 

of law. The district court stated that it struggled to see how deliberations 

could be untainted, even if the remaining jurors offered assurances that 

they could disregard the improper research. The district court requested 

both parties' thoughts on proceeding. The State maintained that the 

district court could disregard the external research so long as the remaining 

jurors rejected it and canvassing revealed that the external research did not 

affect deliberations. Granada-Ruiz's counsel stated that she wanted to hear 

from Juror No. 3 but that she tended to agree with the court's initial 

2We note here that the best practice is to wait for the defendant's 

arrival before discussing crucial issues at trial, however, the district court 

acted responsibly here by repeating the information upon Granada-Ruiz's 

arrival. 

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impression that the external research both permeated the deliberations and 

concerned the central issue of trial. 

The district court then canvassed Juror No. 3. Juror No. 3 

stated that he had been confused by something the State had said in closing 

arguments and decided to research premeditation and self-defense on his 

own for clarity as to sufficient time lapse for forming a premeditated intent 

and continuing danger for purposes of self-defense. Juror No. 3 stated that 

he perceived the other jurors comments about outside research being 

impermissible to mean that he was not allowed to consider the law and that 

the law was "stricken from the record." He further stated, "I don't know 

what I am doing. I don't know what is going on to be honest with you." 

After Juror No. 3 returned to the deliberation room, the district court stated 

that Juror No. 3's incoherent statements and fundamental 

misunderstanding of his duty demonstrate his inability to serve on the jury, 

and the district court reiterated its concern over the nature and length of 

discussion involving external research. Counsel for Granada-Ruiz then 

expressed Granada-Ruiz's frustration after two weeks of trial and said, "[s] 

it's my understanding that the Court is going to declare a mistrial. I don't 

know if we are going to try to go down that road of trying to discuss it." 

Defense counsel and co-counsel asked the court to "find out [the results of] 

the 11 to 1" preliminary jury vote, and stated, "I think based on that, we 

have our opinion. We would just like to know." Not hearing any objections, 

the district court ordered a mistrial, finding a manifest necessity as there 

could be no assurances that any further product of deliberations would be 

fair and impartial and unaffected by the external research. The district 

court informed the foreperson that it was declaring a mistrial and asked the 

foreperson about his earlier note indicating that the jury had voted and 

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deliberations were not moving toward unanimous decision. The foreperson 

stated that the vote stood at 11 to 1 not guilty. The court then dismissed 

the jury. 

Granada-Ruiz moved to dismiss the charges, arguing that there 

was no manifest necessity for a mistrial, such that re-prosecution was 

barred by constitutional double jeopardy principles. The State opposed the 

motion, arguing that the court acted within its discretion in declaring a 

mistrial, and Granada-Ruiz did not object to it. After oral arguments, the 

district court denied the motion and issued the following findings of facts 

and conclusions of law: (1) neither party requested a mistrial, (2) the court 

considered alternatives to declaring a mistrial, (3) it had canvassed the jury 

in order to determine whether a mistrial was necessary, (4) the jurors had 

discussed the substance of Juror No. 3's research for a lengthy period, 

(5) the jury never returned to the statements of law in the jury instructions, 

(6) the court found manifest necessity to order a mistrial because the 

research pertained to material facts and issues and the jury's deliberation 

on this research made it impossible to determine what constituted proper 

deliberation, and (7) that a sua sponte mistrial was necessary in light of the 

permeation of the extrinsic research. Granada-Ruiz now petitions this court 

for extraordinary writ relief. 

DISCUSSION 

Entertaining a petition for a writ of mandamus is within this 

court's discretion. Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 

818 P.2d 849, 851 (1991). A writ of mandamus serves to compel an act 

required by law or to control the arbitrary exercise of discretion. State v. 

Eighth Judicial Dist. Court (Armstrong), 127 Nev. 927, 931-32, 267 P.3d 

777, 779-80 (2011). We will not entertain such a petition if there is an 

adequate remedy in the ordinary course of law. NRS 34.170. However, a 

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petitioner's ability to raise a double jeopardy argument on appeal from a 

final judgment following a retrial is not an adequate remedy, as it still 

subjects the accused to being placed in jeopardy twice. Gonzalez v. Eighth 

Judicial Dist. Court, 129 Nev. 215, 217-18, 298 P.3d 448, 449-50 (2013). As 

such, we exercise our discretion to consider the merits of Granada-Ruiz's 

petition. 

The Double Jeopardy Clause does not bar the re-prosecution of GranadaRuiz 

The guarantee against double jeopardy provided by the Fifth 

Amendment of the United States Constitution, which is applicable to the 

states through the Fourteenth Amendment's Due Process Clause, prevents 

a defendant from being tried more than once for the same offense. Oregon 

v. Kennedy, 456 U.S. 667, 671 (1982). Where a mistrial that has not been 

requested by the defendant prevents the return of a verdict, re-prosecution 

violates the Double Jeopardy Clause unless the defendant has either 

consented to the mistrial or the court determines that a mistrial was a 

manifest necessity. Glover v. Eighth Judicial Dist. Court, 125 Nev. 691, 

709, 220 P.3d 684, 696 (2009). 

The totality of the circumstances demonstrate that Granada-Ruiz 

impliedly consented to mistrial 

Granada-Ruiz argues that he never expressly consented to a 

mistrial and never had an opportunity to object because the district court 

stated that the decision of whether a mistrial was necessary was within the 

court's sole discretion. Citing Benson v. State, he also asserts that when 

looking to the totality of the circumstances, he did not impliedly consent to 

a mistrial. 111 Nev. 692, 895 P.2d 1323 (1995). We disagree. 

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Consent to mistrial need not come in the form of a motion from 

the defendant or verbal approval, but may be implied from the totality of 

the circumstances. Benson, 111 Nev. at 696-97, 895 P.2d at 1326-27 

(determining that the totality of the circumstances did not demonstrate the 

defendant's implied consent where the defendant disputed the prosecution's 

basis for seeking a mistrial, defense counsel's initial statement that he 

would not oppose a mistrial was made without consulting the defendant and 

while under attack from the prosecutor and under threat of contempt, the 

court did not explore other options before declaring a mistrial, and there 

was no manifest necessity for a mistrial). Among the facts we look to in 

considering the totality of the circumstances under Benson, this court has 

previously recognized a defendant's failure to object or argue against a 

court's declaration of a mistrial as a circumstance that may indicate implied 

consent. See Gaitor v. State, 106 Nev. 785, 788, 801 P.2d 1372, 1374 (1990) 

(holding that "[t]he failure of defense counsel to object or express an opinion 

to the district court regarding the propriety of the mistrial implied consent 

and indicated tacit approval" when the circumstances otherwise supported 

the district court's conclusion that there was a manifest necessity for a 

mistrial), overruled on other grounds by Barone v. State, 109 Nev. 1168, 866 

P.2d 291 (1993). However, consent cannot be implied based on a failure to 

object where the defendant was not given an opportunity to object or where 

the circumstances made objection an impracticability. United States v. 

Jam, 400 U.S. 470, 487 (1971); Benson, 111 Nev. at 698, 895 P.2d at 1327- 

28. 

Here, it is clear that Granada-Ruiz never expressly consented 

to the declaration of mistrial. However, the totality of the circumstances 

support the conclusion that Granada-Ruiz impliedly consented to a mistrial. 

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Granada-Ruiz did not object to the declaration of a mistrial. Instead, when 

informed about the juror's notes to the district court, defense counsel stated 

that external research entering the deliberation room was an inherent 

problem, which may have "infect [ed] the jury." When asked by the district 

court to express an opinion on the appropriateness of declaring a mistrial, 

Granada-Ruiz and defense counsel seemed amenable to it, and after the 

canvassing of the foreperson, defense counsel stated that she tended to 

agree with the district court that the juror's external research both 

permeated and derailed the deliberations and concerned issues central to 

trial. Implied consent to a mistrial has serious implications and we do not 

presume it lightly, Benson, 111 Nev. at 696-97, 895 P.2d at 1327, and thus, 

while some indication of opposition would have weighed on our analysis in 

considering the totality of the circumstances, it was not present here. 

Further, the facts here bear no similarity to situations in which 

the trial court declared a mistrial without warning and defendants were not 

given an opportunity to object or in which objection was impracticable. 

Unlike Jorn, in which the United States Supreme Court held that finding 

implied consent was inappropriate because the defendant was not given an 

opportunity to object where the trial judge declared a mistrial with no prior 

warning or consultation with the parties, 400 U.S. at 487, Granada-Ruiz 

was invited to present his views on whether a mistrial was appropriate, and 

the district court took steps to investigate the impact of the improper 

research. Additionally, unlike Benson, in which this court concluded that it 

was inappropriate to interpret defense counsel's acquiescence to a mistrial 

as consent because defense counsel had previously argued against the 

State's motion for a mistrial, and his continued opposition was made 

impracticable by the openly hostile exchanges between defense counsel, 

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prosecution, and the court, 111 Nev. at 698, 895 P.2d at 1328, the basis for 

a mistrial here was jury misconduct that was brought to the district court's 

attention by the jury, not a prosecution motion, and the proceedings to 

resolve that issue were not hostile, but instead driven by appropriate 

inquiry regarding the integrity of jury deliberations. 3 

Finally, the district court's statement that the decision 

regarding whether to declare a mistrial would be within its own discretion 

did not absolve Granada-Ruiz from objecting to the mistrial. The power to 

order a mistrial rests with the district court but that does not mean counsel 

need not advocate its positions, and concluding otherwise would contradict 

this court's holding that it is appropriate to consider a defendant's failure 

to voice any opposition when• determining whether a defendant consented 

to a mistrial. See Gaitor, 106 Nev. at 788, 801 P.2d at 1374. Here, the 

district court asked for the parties' opinions on whether the• juror 

misconduct permeated the deliberations and impacted the jury's ability to 

render an impartial decision, and defense counsel stated that she tended to 

agree with the district court's assessment that it did. Granada-Ruiz was in 

the courtroom when the jury was canvassed on the matter, and the district 

court informed him of the misconduct and the possibility of a mistrial. 

3Granada-Ruiz also argues that Benson held the failure of defense 

counsel to discuss the consequences of mistrial with the defendant weighed 

against a finding of implied consent. While the absence of consultation was 

a factor supporting the lack of implied consent in Benson, 111 Nev. at 698, 

895 P.2d at 1328, it was one of several factors considered under the totality 

of the circumstances. Moreover, it was considered in the context of how 

hurried and hostile the courtroom atmosphere had become when the court 

declared a mistrial, id., unlike here, where the district court canvassed 

jurors, asked for counsel's input, and considered Granada-Ruiz's frustration 

with the jury misconduct before declaring a mistrial. 

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While counsel and Granada-Ruiz expressed frustration with what had 

transpired at this late stage in the trial, they did not present any objection 

to the declaration of a mistrial despite being given ample opportunity to do 

so. These circumstances support that Granada-Ruiz impliedly consented to 

the district court's declaration of a mistrial, and double jeopardy does not 

bar a second trial. 

The district court did not abuse its discretion in finding manifest 

necessity to declare a mistrial 

Even in the absence of implied consent, the district court did 

not abuse its discretion in finding manifest necessity to declare a mistrial. 

Granada-Ruiz argues that the district court employed an incorrect legal 

standard, as not every exposure to improper research requires a mistrial. 

Granada-Ruiz further submits that less drastic remedies would have been 

appropriate, and there was no support for the district court's conclusion that 

impaneling an alternate juror would not have been adequate. We disagree. 

A sua sponte declaration of a mistrial does not create a bar to 

re-prosecution on the same charges when there is manifest necessity to 

declare a mistrial. United States v. Perez, 22 U.S. 579, 580 (1824). The 

finding of manifest necessity is reviewed for an abuse of discretion. Glover, 

125 Nev. at 703, 220 P.3d at 693. In this context, the abuse of discretion 

standard turns on the question of whether the finding of manifest necessity 

is one "a rational jurist could have made based on the record." United States 

v. Chapman, 524 F.3d 1073, 1083 (9th Cir. 2008). The deference extended 

to the trial court varies based on the circumstances of the case, but great 

deference is given when the district court declared a mistrial based on its 

own finding of potential juror bias. Id. at 1082; United States v. Jarvis, 792 

F.2d 767, 769 (9th Cir. 1986). Our purpose on review is to halt irrational 

decisions, thus we "focus on the procedures employed by the judge," and "[a] 

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determination of manifest necessity may be upheld even if other reasonable 

trial judges might have proceeded with the trial despite the error." 

Chapman, 524 F.3d at 1082. In determining whether the trial court 

exercised sound discretion in declaring a mistrial, we consider whether the 

court: (1) allowed both parties to voice their opinions on the necessity of a 

mistrial, (2) considered alternatives to a mistrial, (3) deliberately arrived at 

the decision to declare a mistrial, and (4) declared the mistrial based on 

evidence in the record. Id.; Glover, 125 Nev. at 710, 220 P.3d at 697. 

The record shows that the district court acted within its sound 

discretion in declaring a mistrial. First, the district court solicited the 

opinions of both parties on three separate occasions following the discovery 

of the juror misconduct. Thus, both parties had multiple opportunities to 

apprise the district court of their positions regarding an appropriate remedy 

and to provide caselaw they found to be instructive. 

Second, the record demonstrates the district court considered 

alternatives to declaring a mistrial. It expressly stated that its course of 

action would depend on what it discovered while canvassing the jurors. The 

transcript of the canvassing likewise supports the district court's 

determination that Juror No. 3's research had permeated the jury room and 

the jurors did not return to the jury instructions during deliberations, and 

thus also supports the district court's resulting conclusion that employing 

alternate jurors would be inadequate. 

Third, the district court was deliberate in arriving at its 

decision to declare a mistrial. Implicit in this factor is whether the district 

court applied the appropriate legal standards in arriving at its decision. 

See, e.g., Glover, 125 Nev. at 716, 220 P.3d at 701. The primary indicator of 

behavior that is not deliberate is where the mistrial is declared suddenly, 

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without a hearing, and without giving thought to alternatives. Chapman, 

524 F.3d at 1082 (citing United States v. Bates, 917 F.2d 388, 396 (1990)). 

Here, the district court not only allowed the parties to present arguments 

as to the appropriateness of declaring a mistrial, but canvassed the 

foreperson and the offending juror in order to evaluate the extent to which 

the improper research had tainted deliberations. 

Relatedly, the record does not support Granada-Ruiz's 

argument that the district court employed an incorrect legal standard in 

which any spread of the improper research would constitute manifest 

necessity. The depth of the district court's investigation into the impact of 

the improper outside influence on the jury's deliberations is reflected in the 

progression of the district court's questioning of the jurors and its findings 

of fact in that regard. The district court's determination that the improper 

research had been shared amongst the jurors and consumed deliberations 

to the extent that the jury never returned to the proper statements of law 

in the jury instructions is supported by the record. 4Thus, we see no grounds 

on which to conclude that the district court's factual findings were clearly 

4Granada-Ruiz contends that the improper research introduced by 

Juror No. 3 did not differ from the jury instruction, and consequently could 

not have tainted jury deliberations. Juror No. 3, however, was not able to 

articulate the legal conclusions he drew from his research, except to state 

that they differed from what he recalled from trial or understood from the 

jury instructions. Regardless, his outside research led to prolonged 

disagreement in the deliberation room, and the fact that the other jurors 

opposed the introduction of Juror No. 3's improper research does not change 

the fact that the jury discussed it without returning to the jury instructions. 

Thus, Granada-Ruiz's argument in this regard does not warrant a different 

outcome. See Chapman, 524 F.3d at 1082 ("A determination of manifest 

necessity may be upheld even if other reasonable trial judges might have 

proceeded with the trial despite the error."). 

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erroneous. See Meyer v. State, 119 Nev. 554, 561, 80 P.3d 447,453 (2003) 

("Absent clear error, the district court's findings of fact will not be 

disturbed."). 

Finally, the decision to order a mistrial was based on evidence 

in the record. Two notes from jurors revealed that improper outside 

research was considered in deliberations and Juror No. 3's stated inability 

to follow the law. The district court's canvass of the jury revealed that the 

improper research had replaced the jury instructions as the center of jury 

deliberations, and the jury did not return to the proper statements of law in 

deliberating on a verdict. The district court relied on this evidence in 

finding manifest necessity to declare a mistria1. 5Accordingly, we conclude 

that the district court did not abuse its discretion in finding a manifest 

necessity to declare a mistrial. 

5Granada-Ruiz also argues that the trial court was required to 

canvass each of the jurors to determine the improper research was 

prejudicial and the replacing the offending juror would be an inadequate 

remedy. While the district court must determine whether the improper 

research had an effect on the jury, Bowman v. State, 132 Nev., Adv. Op. 74, 

387 P.3d 202, 206 (2016), we have never held that a court must canvass 

each of the nonoffending jurors to determine whether each, individually, 

was effected by the improper research. Here, the district court determined 

the effect of the improper research on the jury by canvassing Juror No. 3 

and the foreperson and discovering that the improper research had 

dominated deliberations and prevented the jury from applying the proper 

statements of law provided in the jury instructions. 

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Stiglich 

Hardesty 

J. 

CONCLUSION 

We conclude that the district court properly denied GranadaRuiz's motion to dismiss. A second prosecution following the district court's 

declaration of mistrial is not prohibited by double jeopardy as the totality of 

the circumstances, which include (1) Granada-Ruiz's lack of objection to a 

mistrial, despite having the opportunity to raise an objection; (2) his 

agreement with the court's analysis of the juror misconduct; and (3) the 

possibility of mistrial being raised sua sponte, support Granada-Ruiz's 

implied consent to mistrial. Further, the district court did not abuse its 

discretion in finding manifest necessity to declare a mistrial, as the court 

heard the positions of both sides; the record supports that the court explored 

other options, such as replacing Juror No. 3; the district court was 

deliberate in investigating the juror misconduct and evaluating the need for 

mistrial; and the basis for finding manifest necessity was reflected in the 

record. Therefore, re-prosecution is not barred by double jeopardy and 

accordingly we deny Granada-Ruiz's petition _fiv a writ of mandamus. 

Cherry 

We concur: 

t,cei c.j. 

Douglas ibbons 

J. 

Parraguirre 

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