                   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). In deciding whether to exercise that discretion, we generally
                   consider "whether judicial economy and sound judicial administration
                   militate for or against issuing the writ, including whether an important
                   issue of law needs clarification and public policy is served by this court's
                   invocation of its original jurisdiction." State v. Eighth Judicial Dist. Court
                   (Armstrong), 127 Nev.       , 267 P.3d 777, 779-80 (2011) (quotations
                   and citations omitted).
                               We have entertained writ petitions to address discrete legal
                   issues related to the statutory process that governs competency
                   evaluations. See, e.g., Sims v. Eighth Judicial Dist. Court, 125 Nev. 126,
                   206 P.3d 980 (2009). Unlike those petitions, the petition here challenges
                   the district court's exercise of discretion. Melchor-Gloria v. State, 99 Nev.
                   174, 180, 660 P.2d 109, 113 (1983). Based on the information provided to
                   the district court, we cannot conclude that the district court manifestly
                   abused or arbitrarily and capriciously exercised its discretion. Armstrong,
                   127 Nev. at ,267 P.3d at 780.
                               The alleged doubts about Desai's competency to stand trial
                   primarily involve amnesia and aphasia resulting from several strokes.
                   The amnesia was addressed as part of a prior competency proceeding
                   under NRS 178.415 and evaluations at Lake's Crossing. The independent
                   medical evaluation (IME) report prepared more recently confirms the prior
                   findings that Desai embellished the effects of his prior strokes,
                   particularly regarding the profound memory loss that he claimed. Even




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                assuming that Desai suffers from the level of amnesia that the IME report
                indicated is possible based on his prior strokes,' the amnesia alone would
                not be sufficient to require further competency proceedings or a finding at
                this point that he is not competent to stand trial. "[C]ourts have
                uniformly held that amnesia regarding the alleged crime does not
                constitute incompetence per se but may establish a basis for a finding of
                incompetence in a particular case." 2 United States v. No Runner, 590 F.3d
                962, 965 n.2 (9th Cir. 2009); see also Palmer, 31 P.3d at 866-67. Where the
                issue of competency turns on amnesia, there are a number of questions
                that are relevant to the issue and "the answers to these questions may not
                be known prior to trial; it may be the trial itself that illuminates them." 3
                No Runner, 590 P.3d at 965. For that reason, we cannot conclude that the


                     'According to the IME report, the memory function should not have
                been further affected by the more recent series of small strokes in
                February 2013.

                      2 We  recognize that there is a split of authority as to whether
                amnesia is even relevant to a competency determination.           People v.
                Palmer, 31 P.3d 863, 867-68 (Colo. 2001) (discussing the split), superseded
                by statute on other grounds as recognized in State ex rel. W.P., 295 P.3d
                514 (Colo. 2013). Because we have not addressed the issue previously and
                a final determination of that question is not necessary to resolve this
                petition, we assume for purposes of our decision today that this court
                would follow what appears to be the majority approach.

                      3 The order entered by the Honorable Kathleen Delaney in January
                2012 is consistent with the authority cited above, observing that
                "[m]emory loss itself, even if true, is not a bar to prosecution of an
                otherwise competent Defendant" and concluding that "there is no
                indication in the present record that Defendant and his counsel would be
                unable to reconstruct the events of the alleged crimes for which he is
                accused or to raise any possible defenses to the evidence against him."


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                                      district court manifestly abused or arbitrarily and capriciously exercised
                                      its discretion when it declined the pretrial request to order further
                                      competency proceedings under NRS 178.415 based on Desai's purported
                                      amnesia.
                                                       The record before the district court as to the extent of Desai's
                                      current aphasia as a result of the series of small strokes in February 2013
                                      does not include substantial evidence that Desai is incompetent to stand
                                      trial.       See Melchor-Gloria, 99 Nev. at 180, 660 P.2d at 113 ("A formal
                                      competency hearing is constitutionally compelled any time there is
                                      'substantial evidence' that the defendant may be mentally incompetent to
                                      stand trial. In this context, evidence is 'substantial' if it raises a
                                      reasonable doubt about the defendant's competency to stand trial."
                                      (quotations and citations omitted)). Defense counsel reported his
                                      observations as to Desai's difficulties communicating verbally and in
                                      writing, but as the district court observed, counsel had reported the same
                                      observations before the February strokes, at a time when various
                                      evaluators and the IME report opine that Desai was embellishing his
                                      deficiencies. The recent IME report does not opine on the extent of
                                      aphasia that could be expected based on the nature and location of the
                                      series of strokes in February. Although it may have been reasonable to
                                      grant defense counsel's request for an evidentiary hearing to clarify the
                                      opinions in the IME report as to the extent of Desai's current aphasia, we
                                      are not convinced that the district court's contrary decision amounts to a
                                      manifest abuse or arbitrary and capricious exercise of discretion; the judge
                                      did not rely on a clearly erroneous interpretation or application of the law,
                                      did not ignore the applicable law, considered all of the information
                                      presented to it, and discussed various accommodations to address Desai's

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;t'-‘"
  ..;.0.471NOMPBEL40:-.77.&.17-tqll            .            EIRIERMAI      MMNISIE
                          aphasia. 4 See Armstrong, 127 Nev. at                  , 267 P.3d at 780 (defining
                          manifest abuse of discretion as "[a] clearly erroneous interpretation of the
                          law or a clearly erroneous application of a law or rule" and an arbitrary or
                          capricious exercise of discretion "one founded on prejudice or preference
                          rather than on reason or contrary to the evidence or established rules of
                          law" (quotations and citations omitted)).
                                                 The district court's pretrial decision does not conclusively
                          determine the question of competency. Competency to stand trial is fluid
                          and therefore may be raised by the defendant or the court at any time.
                          See NRS 178.405(1); Fergusen v. State, 124 Nev. 795, 802-03, 192 P.3d
                          712, 717-18 (2008). For example, as the answers to the questions that
                          inform whether amnesia renders a defendant incompetent are illuminated
                          during trial, the defendant may raise the issue during or following trial or
                          the trial court may raise the issue sua sponte. Similarly, if the
                          proceedings reveal that the extent of any aphasia cannot be accommodated
                          and, as a result, there are doubts as to Desai's current competency, the
                          defendant may raise the issue during or following trial or the trial court
                          may raise the issue sua sponte. But we conclude that at this point, Desai




                                       4 We
                                      cannot determine in this proceeding whether the
                          accommodations will be sufficient. That issue was not addressed in
                          significant detail below and it seems likely that the trial itself will
                          illuminate the answer to that question.


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.                   III      ':`;;;;      _;--7'!"-";":' •
                    has not demonstrated that our intervention is warranted. Accordingly, we
                                  ORDER the petition DENIED. 5




                                                         Parraguirre


                    CHERRY, J., dissenting in part:


                                  I agree with my colleagues as to the district court's handling of
                    the competency issue based on amnesia, but I must depart with them as to
                    the district court's handling of the competency issue based on aphasia. In
                    my opinion, the district court manifestly abused its discretion in rejecting
                    defense counsel's request for an evidentiary hearing to further address the
                    IME report.
                                  The IME report indicates that "aphasia" is "the term used to
                    describe a neurologic disturbance of speech, and encompasses both the
                    ability to produce and understand speech." The doctor who prepared the
                    report had not examined Desai and therefore was limited in his ability to
                    give an opinion as to whether Desai's current described aphasia is real or
                    embellished, but the doctor did observe that Desai's current described
                    aphasia "is possible" and that he would expect the symptoms to improve
                    over time with an "excellent chance" at "near complete recovery." The

                          5 Given   our resolution of the petition, we deny the motion for a stay
                    as moot.


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                I
                doctor indicated that recovery normally occurs within 3 to 9 months but
                may take up to 18 months. At the time of the hearing, it had been less
                than 2 months since the most recent series of stroke. Although the IME
                doctor could not opine as to the real extent of Desai's current aphasia,
                defense counsel reported that Desai had difficulty communicating with
                him and expressed concern with Desai's ability to speak, to understand
                speech, and to communicate through writing. I acknowledge the
                significant concerns with the possibility that Desai is embellishing his
                symptoms, but there has been an undisputed change in circumstances
                since the prior findings of embellishment—the recent series of strokes.
                The accommodations offered by the district court may address Desai's
                current aphasia, but they may not if his current aphasia "involves a loss of
                or defect in comprehension of written or spoken language," 30 Am. Jur.
                Proof of Facts 2d 341, § 1(1982), or precludes him from communicating in
                writing to such a degree that he cannot aid and assist "counsel in the
                defense . . . with a reasonable degree of rational understanding," NRS
                178.400(2). We simply do not know. Presented with all of these
                circumstances, it not only would have been reasonable for the district
                court to grant defense counsel's request for an evidentiary hearing, in my
                opinion it was a manifest abuse of discretion not to do so.    Cf. Olivares v.
                State, 124 Nev. 1142, 1149, 195 P.3d 864, 869 (2008) ("when doubts have
                been raised as to a defendant's competency to stand trial, the district court
                has an obligation to hold a hearing to fully consider those doubts and to
                determine whether further competency proceedings under NRS 178.415
                are warranted"). An evidentiary hearing likely would not have
                significantly delayed the trial, if at all, and it may have resolved some of
                the potential ongoing competency issues that may now arise throughout

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                                              '
                the trial. For these reasons, I would grant the petition and the motion for
                a stay.


                                                         aka.
                                                   Cherry




                cc:   Hon. Valerie Adair, District Judge
                      Wright Stanish & Winckler
                      Attorney General/Carson City
                      Clark County District Attorney
                      Eighth District Court Clerk




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