MINUTES OF THE
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
February 9, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader, at 8:02 a.m., on Tuesday, February 9, 1993, in Room 105/106 at Cashman Field Center, Las Vegas, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Mr. Robert M. Sader, Chairman
Mr. Gene T. Porter, Vice Chairman
Mr. Bernie Anderson
Mr. John Bonaventura
Mr. John C. Carpenter
Mr. Tom Collins, Jr.
Mr. James A. Gibbons Late
Mr. William D. Gregory
Mr. William A. Petrak
Mr. John B. Regan
Mr. Scott Scherer Late
Mr. Mike Schneider
Ms. Stephanie Smith
Mr. Louis A. Toomin
OTHERS PRESENT:
Ben Graham, Nevada District Attorneys' Association,
Clark County District Attorneys' Office
Mel Harmon, Chief Criminal Deputy, Clark County District Attorney's Office
Steve Dahl, Nevada Attorneys for Criminal Justice and
Nevada Trial Lawyers' Association
Tom Pitaro, Nevada Attorneys for Criminal Justice and
Nevada Trial Lawyers' Association
John Momot, Nevada Attorneys for Criminal Justice
Robert Langford, Clark County Deputy District Attorney
Det. James Vaccaro, Las Vegas Metropolitan Police Dept.
James Jackson, Nevada State Public Defender's Office
Karen Winckler, Nevada Attorneys for Criminal Justice
David Wall, Nevada Attorneys for Criminal Justice
Annette Courier, Dept. of Motor Vehicles Employee
Darlene Exposito, Dept. of Motor Vehicles Employee
Anthony DeNardo, Southern Nevada Adult Mental Health
Jim Rhodes, Southern Nevada Adult Mental Health
Monna Miller, State of Nevada Employees' Association and
State Industrial Insurance System
Vic Schulze, Esmeralda County District Attorney
Bob Gagnier, State of Nevada Employees' Association
Ed Higginbotham, State of Nevada Employees' Association and
State Industrial Insurance System
Colleen Gougar, Nevada Employment Security Department
Also see attached guest list (Exhibit B)
Following roll call, Chairman Sader noted there were five bills on the day's agenda. After morning hearings, he hoped to be able to vote on those bills and bills heard the previous day.
ASSEMBLY BILL 63 - Requires separate penalty hearing in all criminal cases which result in conviction of defendant for murder of first degree.
Ben Graham, Nevada District Attorneys' Association, Clark County District Attorneys' Office, opened testimony on AB 63. He reminded committee members they had discussed on Monday, "aggravating circumstances" for death penalty consideration. This discussion had been confusing, Mr. Graham thought. Basically, he said he wanted to emphasize that prior to any hearing in a death penalty case there first had to be a first degree intentional killing conviction. Minus this, a capital hearing for the death penalty never occurred.
With few exceptions, Mr. Graham maintained, when a person ran for public office they adopted a "tough on crime" and "supporting law enforcement" stand. Mr. Graham exhorted the committee members to carefully consider their votes so the statutory changes made by the Legislature truly reflected the will of the public. Unless a first degree murder conviction was obtained, and unless there was a notice to seek the death penalty, the jury ultimately deciding the sentence never heard a great deal of important testimony.
Mr. Graham then introduced Chief Criminal Deputy Mel Harmon, from the Clark County Major Violators Unit. Deputy Harmon noted his support of AB 63, stating it was their desire to see NRS 175.552 and NRS 175.554 amended to specifically provide for a separate penalty hearing in cases where there had been a finding of first degree murder, but the death penalty was not being sought. Mr. Harmon agreed with Mr. Graham it was very important for the sentencing entity, whether a trial jury or a court, to have all the pertinent and relevant sentencing factors before it. When a citizen jury was required to impose a severe punishment, it was a disservice for the jurors to have to do this in a vacuum, without real insight into the personality or background of the person being sentenced.
Providing an overview, Mr. Harmon said the present statutory scheme became effective in 1977 after the enactment of NRS 175.552 and NRS 175.554. In his experience all parties generally accepted the jury would set the penalty in cases of murder in the first degree. Regardless of whether death was being sought or their option was limited to life with or without the possibility of parole, a separate penalty hearing would be conducted. He said it also appeared the courts and counsel basically all accepted this, given the enactment of the new statutory scheme in 1977.
In a number of circumstances, Mr. Harmon added, the parties elected to waive the separate penalty hearing because there was no additional pertinent evidence to be brought before the jury. Also, in many instances the parties agreed the court could go ahead and sentence.
The proposed wording of the new sections, Mr. Harmon said, would still allow this possibility. However, after the enactment of the statute in 1977, the Nevada Supreme Court passed a decision known as McCabe v. State, in 1982. In the McCabe case the parties stipulated capital punishment was not an option at the commencement of the trial. As a result, the trial court determined a separate hearing would not be necessary. Ultimately, Mr. McCabe was convicted and sentenced and that issue was appealed. On appeal, the Nevada Supreme Court had determined it was not error to find the defendant guilty, and also allowed the trial jury to fix his punishment in a single hearing. However, Mr. Harmon stated, the door had been left open for a separate penalty hearing to occur if this was necessary.
The "door" he spoke of had been shut last June, Mr. Harmon told the committee. In 1992, in a decision known as Kazalyn v. State (Exhibit C), the Nevada Supreme Court ruled it was now error to conduct the separate bifurcated hearing if death was not being sought by the prosecution. Although this initially was considered the more expeditious way to handle things, Mr. Harmon emphasized to those fixing the punishment -- and certainly those on the receiving end -- even a life sentence (particularly life without the possibility of parole) was a very severe sanction.
The result of Kazalyn could lead to very inequitable results, Mr. Harmon opined. Relating a personal experience, Mr. Harmon said he had been involved within a few months of the decision in Kazalyn, in trying a case in which a man had been accused of strangling his wife in the couple's home. This case, he remarked, had been vigorously contested by both sides. The state had not sought the death penalty as there was no notice of aggravating circumstances. In law enforcement's judgment, it was not a case with sufficient aggravating circumstances to ask for the death penalty. When this case went to trial the jury was limited to two options, i.e., life with the possibility of parole or life without the possibility of parole.
Continuing, Mr. Harmon said they had discussed with the judge before trail, in the event a conviction for murder in the first degree was received, this particular defendant should be given a separate penalty hearing for very specific reasons. The defendant was a former police office, he made a very good appearance in court, was articulate and well groomed. As a prosecutor, Mr. Harmon said he was fearful if the jury decided guilt and punishment in a single hearing, they would see only the good side of the defendant. If he elected not to take the witness stand, the jury would be totally unaware of the dark side of this defendant.
In addition to incriminating evidence showing the defendant had murdered his wife for the $250,000 life insurance, Mr. Harmon said several years before his wife's murder, law enforcement had received evidence the defendant had faked his death and had sought to defraud insurance companies in the State of Indiana. Approximately six months later the same man, now using an alias, was arrested in a robbery, using a sawed off shotgun. The man was subsequently convicted of a felony. Thus, long before the murder trial, there was a criminal history.
The trial court in this case had agonized over this situation, Mr. Harmon related, but the defendant was absolutely bound by the judicial language in the earlier 1992 Kazalyn decision. The Supreme Court, although probably not fully appreciating this type of situation would occur, had ruled it was error to conduct a separate penalty hearing if death was not being sought.
The jury found the defendant guilty of the first degree murder of his wife, but without a separate hearing and without insight into the effort at insurance fraud, robbery and prior domestic violence, this case was submitted to the jury to fix the punishment of life with or without the possibility of parole.
Mr. Harmon submitted it was unfair to the jury and unfair to the system. He said, "There are times when the death penalty is not being sought but where the defendant has significant prior criminal history, that it is appropriate to conduct a separate penalty hearing, and that is what we are trying to achieve by these proposed amendments of the pertinent statutory sections. . . . ".
Chairman Sader said he understood the way the language was written there could be a separate penalty hearing in certain situations which did not exist under Kazalyn. Those were circumstances in which there was a first degree murder but the death penalty was not sought. In the separate penalty hearing would the death penalty be an option again? Mr. Harmon said, "No." "So was the only option life with or life without parole?" Mr. Sader asked. Mr. Harmon said, "Yes." Continuing, Chairman Sader asked what evidence would be available to the prosecution in a separate hearing which was not available in the joint hearing in the first place. Mr. Harmon said the jury would not learn about prior criminal history at the guilt phase and thus, prior criminal history never came before the jury unless the defendant elected to take the witness stand.
Mr. Harmon acknowledged this was not a one-sided issue, and there were circumstances in which the defense would also urge the court to conduct a separate penalty hearing.
Prior to Kazalyn, Mr. Harmon declared, it was common to have a separate penalty hearing in a first degree murder case when the death penalty was not sought. The 1992 Kazalyn decision had basically changed the procedure utilized in those kinds of cases.
Mr. Sader asked on what rational basis the Kazalyn decision was decided, what policy had motivated the court to change prior practice. Deputy Harmon opined the court had sought to expedite trials. Although this was a worthy endeavor, it placed juries in the position of convicting and imposing punishment without a separate hearing.
Tom Pitaro, representing the Nevada Attorneys for Criminal Justice (NACJ) and the Nevada Trial Lawyers' Association (NTLA), and Steve Dahl, representing the NACJ and the Clark County Public Defender's Office, came forward to oppose AB 63. Mr. Dahl indicated they did not oppose the bill so much as wanting an additional amendment. Historically, he said, there were three ways in which to sentence. In most cases the judge set the sentence. The two exceptions occurred in cases of sexual assault and substantial bodily harm. The jury sentenced in those cases and there was no separate penalty hearing. In murder cases, particularly death penalty cases, there was a separate penalty phase. He stated there was nothing special about a murder in the sentencing scheme. What made it special was when the death penalty was sought; and the only reason there was a separate penalty phase in those cases was because of requirements by the United States Supreme Court to ensure the death penalty was imposed fairly. There was no requirement for any penalty phase, or for the jury to sentence, in non-death penalty cases. This was a scheme the Legislature had adopted in 1977.
Originally, Mr. Dahl said, the jury decided the penalty in all murder cases because in years past there was no requirement for the state to announce the penalty they were seeking at any particular time prior to the penalty phase itself. Currently, however, it was known well in advance of trial whether the state would seek the death penalty and whether a separate penalty phase would be needed.
The amendment Mr. Dahl advocated was language which would allow the judge to set the sentence in a murder case upon agreement of the parties. This would be quicker, easier and better understood. The three methods of sentencing were: 1) By the judge, which was the method most frequently used; 2) a jury sentence without a separate penalty hearing which occurred in a narrow line of cases of sexual assault with substantial bodily harm and some murder cases; and 3) a jury sentence in a separate hearing on death penalty cases.
Clarifying Mr. Dahl's request, Chairman Sader asked if his amendment would delete the new language and add a new provision allowing the parties to stipulate to a separate penalty hearing in front of a judge. Or would the amendment incorporate the new language and in addition, give the parties the option. Mr. Dahl said he thought all three options should be available. Whether the amendment was something tied in with present language or whether it was created as something separate, he thought the judge sentence option should be in place.
Speaking up, Mr. Pitaro thought it would be best if he, Mr. Harmon and Mr. Dahl worked together to create appropriate language. This was agreed upon between the parties.
There being no further testimony on AB 63, Chairman Sader opened the hearing on AB 65.
ASSEMBLY BILL 65 - Allows testimony given before magistrate at hearing or examination to be admitted at trial if witness persistently refuses to testify despite order of judge to do so.
Again coming forward to testify, Ben Graham explained the ever-growing tendency of defendants to refuse to testify or to use the excuse "could not remember" once they were at trial. In many instances, he pointed out, a witness would be coaxed into cooperation early in the criminal proceedings, and would be cooperative and willing to be sworn to give substantive testimony at the preliminary hearing. At trial, however, this same witness would suddenly be unable to remember or would simply refuse to testify. Current law, Mr. Graham remarked, allowed the use of preliminary hearing testimony in cases where the defendant was sick, out of state or deceased. What the District Attorneys' Association wished to do was broaden the law to include refusal to testimony or the excuse the defendant "could not remember" as justification to use preliminary hearing testimony.
The defense, Mr. Graham declared, would accurately say a preliminary hearing was not a trial. This argument really did not hold true since a defendant's refusal to testify was no different than being unavailable because of sickness, out of state or dead.
Adding testimony in favor of AB 65, Deputy Harmon observed the prosecution was not insensitive to an accused person's right of confrontation. However, he said, years ago the Supreme Court had ruled that preliminary hearing testimony was admissible if, 1) the state had the necessary statutes and the defendant was represented by counsel at the time of the preliminary hearing; 2) if defense counsel had been provided ample opportunity to cross-examine; and 3) if the witness was shown to actually be unavailable.
Deputy Harmon submitted the essence of their request was to close a "loophole" in criminal law. As a case came close to trial, intimidation of witnesses became a reality and when witnesses were intimated it was not likely they would testify. Therefore, they asked the committee to consider expanding the existing categories for the use of reported testimony. He acknowledged preliminary hearing testimony was inferior to having the witness testify before the jury, but on the other hand it was preferable to the jury having no, or limited, information in their search for the truth.
Acknowledging a defendant's right to confrontation, Deputy Harmon assured the committee there was a safety valve to their proposal. Where the prosecution sought to use reported preliminary hearing testimony, it would have to be prefaced by a motion to the court; then a hearing held by the court outside the presence of the jury. At this hearing the court would consider the facts and determine whether the defendant was represented by counsel at the time the testimony was given, whether there was adequate opportunity to cross-examine, and whether, in fact, the witness was truly unavailable. The court would then make a judgment of whether preliminary hearing testimony would be allowed before the jury.
Summarizing, Deputy Harmon pointed out they were simply asking the Legislature to enlarge the categories which defined "unavailability," to include those witnesses who refused to testify despite order of the court, and also to include the category of witnesses who maintained they had no memory of their prior testimony.
Chairman Sader recalled that during the 1991 Session the committee had heard proposed amendments to the same statute. He wondered whether there had been a compromise on that particular bill which created the current language. Mr. Graham said there had been discussion but nothing had been finalized and the bill had been indefinitely postponed.
Mr. Porter questioned how much latitude the court gave the prosecution in challenging the credibility of the witness. Deputy Harmon replied this varied, but it had been his experience the more serious the charge became the greater the latitude provided by the court.
Mr. Porter also asked whether there was a sanction of contempt available to the court if the witness was simply unable to remember his testimony. Deputy Harmon was unsure, but opined it would depend upon the court and the insights the court was able to glean from the demeanor of the witness on the stand.
Discussion followed centered principally on the reasons why a witness would either refuse to testify at trial or say he could not remember.
In regard to the excuse used by a witness he could not remember, Mr. Scherer wondered if the prosecution would have the obligation to "refresh" the witness's memory. Responding, Mr. Graham said as a matter of policy if a prior statement or transcript was available, this was furnished to the witness. While Deputy Harmon did not think there was a legal requirement to do this, he agreed it was common practice. He said he thought it would be foolish to prepare for a criminal trial and not attempt to make certain prospective witnesses had copies of prior testimony and statements they had made.
Would this create a more prolonged preliminary hearing? Mr. Anderson questioned. Deputy Harmon did not think it would change the preliminary hearing. He pointed out to the extent allowed, every defense attorney whose client had been convicted, engaged in the complete latitude on cross-examination. If the trial court allowed it, the outlined categories which made reported testimony admissible were already in NRS 171.198.
Mr. Graham reminded the committee 95 percent of the cases going on to district court were plea bargained. When this occurred, a witness would not have to testify at trial in any event.
Tom Pitaro and John Momot, both representing the Nevada Attorneys for Criminal Justice, came forward to testify in opposition to AB 65. Mr. Momot stated he not only believed the contempt process was sufficient safeguard against a witness refusing to testify or conveniently not remembering, he also wondered if the availability of preliminary testimony would allow the prosecution to shortcut the system and ability of the defendant to get a fair trial.
After discussing various legal scenarios, Mr. Pitaro concluded the proposed bill would serve to emasculate the concept of a fair trial and would strike at a basic fundamental right of a defendant or witness.
Hypothetical situations dealing with the impeachment process, cross-examination, and reasons for reluctant witnesses was further discussed between Mr. Scherer, Mr. Momot and Mr. Pitaro.
Ultimately, Mr. Porter noted, there was just no opportunity to attack a witness's truth and veracity at the preliminary stage. Mr. Pitaro allowed most justices of the peace tried to move cases along and therefore, would restrict cross-examination into areas relevant at trial, but possibly not relevant to the fundamental issue of whether the state had met its minimal burden of taking a person to trial.
Responding to Ms. Smith's question, Mr. Pitaro said he had never encountered a witness who refused to testify, although he had had a case in federal court in which the witness was willing to testify his client was guilty, but was not willing to testify to other matters. Mr. Graham replied in North Las Vegas he had experienced witnesses who refused to testify in probably 12 cases.
Chairman Sader closed the hearing on AB 65 and following a 5-minute break, opened the hearing on AB 64.
ASSEMBLY BILL 64 - Provides for confidentiality of informer's identity during preliminary examination.
Again Ben Graham from the Clark County District Attorney's Office, came forward to testify in favor of AB 64. During a preliminary examination, he said, the state had the obligation to prove each and every element of an offense beyond a reasonable doubt. As part of this the state generally made their case and the defense then proceeded to put forward a defense in hopes of creating a reasonable doubt. The frustration the District Attorneys' Association and the Clark County District Attorney's Office experienced was the lack of opportunity to rebut what was introduced by the defense.
Mr. Graham introduced Robert Langford, a trial deputy in the Clark County District Attorney's Office. Mr. Langford then introduced his companions, Det. James Vaccaro and Sgt. Manning, narcotics investigators from the Las Vegas Metropolitan Police Department.
Outlining the problems they experienced, Mr. Langford pointed out a preliminary hearing was only to decide whether there was sufficient evidence to bind a case over to district court. AB 64 did not affect this in any way, he stated. The name and identity of the confidential informant was not going to aid the defense at the time of preliminary hearing, since the preliminary hearing was not to decide the issue of guilt or innocence. And, the identity of the confidential informant would only be relevant when considering the question of guilt or innocence.
Presently, Mr. Langford continued, there was the ability to cross-examine at trial on the issue of the identity of the confidential informant. AB 64 would change this only for the preliminary hearing. Once a case was bound over to district court, the trial judge could rule whether it was necessary to reveal the identity of the confidential informant. AB 64 would just extend the amount of time the state had before revealing to the defense the identity of the confidential informant. For obvious reasons, Mr. Langford said, once the identity of a confidential informant was revealed, that person could never again be used and this eliminated a very important law enforcement tool. He said they were not trying to remove the right of the defense to obtain the identity of the confidential informant at a critical stage of the proceeding, i.e., at the trial stage.
Mr. Langford discussed various situations which clearly indicated the confidential informant should be protected as long as possible without invading the right of the defendant to confront his accusers.
Det. James Vaccaro told the committee the "bread and butter" of any narcotics deal was the informant. Disclosure of the identity of the informant at the preliminary hearing stage severely crippled law enforcement's ability to use the informant in future apprehension of narcotics offenders.
Opposing AB 64, Karen Winckler, also representing the Nevada Attorneys for Criminal Justice and the Nevada Trial Lawyers' Association, called on Mr. Momot to again present the testimony.
Mr. Momot said basically the informant was ordinarily a percipient witness, a witness who would testify to the ultimate issue of guilt or innocence of the accused. In this capacity, Mr. Momot opined, this person would become such an important witness the privilege against revealing his identity might have to give way and the state might have to produce his name, identity and whereabouts so the person could be called as a witness. This was the basic holding, Mr. Momot maintained, in the Supreme Court case of Roviaro v. United States (Exhibit D). Mr. Momot read excerpts from the case, as seen on pages 60 and 61, paragraphs 1 and 2.
Thus, Mr. Momot argued, when dealing with fundamental fairness, the United States Supreme Court had already spoken to the issue and required the disclosure. The question was whether it should be disclosed at the time of preliminary hearing, or as the state would have it, at a later time.
Mr. Sader questioned at what point in time the defense would receive the information if AB 64 was passed. Ms. Winckler noted the bill did not specify a time. It appeared from the information provided by Mr. Langford the defendant would have to make a motion to the court and then be heard at the district court level. Mr. Langford agreed with this and added it would be anywhere from 10 to 15 days after the time of preliminary hearing. Ms. Winckler insisted this time limit was not so stated in the bill and noted a trial was often continued for perhaps six months or even a year for a variety of reasons. Would the be two weeks before trial or two weeks after the preliminary hearing? she asked.
Currently, Mr. Momot and Ms. Winckler said, this information was received prior to the preliminary hearing. This practice was based upon the case of Sheriff v. Vasile, 96 Nev. (Exhibit E), page 6, paragraph "1. Criminal Law." In part this case stated, "The state's privilege to refuse disclosure of the identity of an informant is not unlimited. Where there is a reasonable probability that the informant can give testimony necessary to a fair determination of the issue of guilt or innocence, the state's claim of privilege may result in a dismissal. . . ." (Paragraphs 3 and 4, page 7, Exhibit E.)
Mr. Momot acknowledged the statements made by Det. Vaccaro and Mr. Langford that many cases were negotiated at the preliminary hearing stage were true. Primarily this was true because the introduction of a confidential informant at the preliminary hearing furthered the accused's resignation to the futility of continuing on to trial.
Further legal argument was made by Mr. Momot to support his stance.
Lacking testimony from the confidential informant at the preliminary hearing, Mr. Carpenter questioned whether the case could be moved on to district court. Mr. Momot agreed this presented a problem. Ms. Winckler added the question of when to prosecute a case was within the discretion of the district attorney's office.
Further legal argument were discussed between Mr. Momot, Mr. Langford and Mr. Porter.
Steve Dahl, representing the Clark County Public Defender's Office, and David Wall, a private attorney with the firm of Gentile and Porter, came forward to also speak against AB 64.
Argument continued between defense attorneys and law enforcement. No significant new testimony was made.
Closing the hearing on AB 64, Chairman Sader opened the hearing on AB 175.
ASSEMBLY BILL 175 - Prohibits persons from directly or indirectly threatening or intimidating state employees.
Opening testimony, Bob Gagnier, Executive Director for the State of Nevada Employees' Association (SNEA), said this bill had been devised at their request. The intent was to create a law which would prescribe a criminal penalty for threatening, coercing or assaulting a state employee during the course of that person's employment. Mr. Gagnier explained the bill drafters had discovered NRS 199.300 was similar in nature. He said he had agreed SNEA's quest would be satisfied if NRS 199.300 was amended by adding "state employees" to the existing legislation, although there were some differences in what they had envisioned in the bill.
Incidences of threat, coercion and physical violence upon state employees was growing, Mr. Gagnier insisted. Unfortunately even when there was a violation of current law, state agencies appeared to be unwilling to prosecute the people engaged in such activity. Essentially, if agencies would prosecute people who threatened employees, perhaps such violence could be ended before it occurred.
Chairman Sader indicated he intended to hear AB 175 again when they returned to Carson City, and he would anticipate testimony from state employees there.
An employee of the Department of Motor Vehicles and Public Safety, Annette Courier, came forward to speak in behalf of AB 175. She stated she not only had personally experienced such abuse, she had also been witness to incidents of physical abuse and verbal harassment. She did not think this would have occurred if AB 175 had been in effect. The public appeared to feel the state employees had no legal support and thus, no way to defend themselves.
Addressing his question to Mr. Gagnier, Mr. Gibbons asked if he envisioned AB 175 applying only to state employees. Mr. Gagnier said the amendment would apply only to state employees, however, he could not speak confidently as to the extent it would apply to local governments. Mr. Gibbons thought there was a need for AB 175 to be expanded to incorporate licensing people as well, for example zoning inspectors. Mr. Gagnier said he would have no objection to this expansion.
Mr. Gibbons also asked how a legitimate complaint against a state employee's or governmental agency's conduct could be voiced without violating this provision. Mr. Gagnier acknowledged the point. There should be a process in every state agency whereby citizen taxpayers could voice their concerns in a lawful manner, but this would not include threatening the employee who was carrying out the activity, Mr. Gagnier countered.
Mr. Toomin suggested the language of the bill should be expanded and clarified to include city and county employees. Mr. Gagnier said he had no objections to this, however, it was his primary mission to protect SNEA members in state government. If other levels of government encountered the same problems, Mr. Gagnier encouraged them to come forward to address the issue.
The following people came forward to support AB 175:
Louise Hall - Employee for the Department of Motor Vehicles. Ms. Hall said she represented not only herself but also her co-workers. Although she had worked in state government in other states, she said she had never faced the abuse she had encountered as a DMV employee. She told the committee people spit at them, cursed them and called them thieves. In representing state law, state employees were in the forefront in meeting the public.
Darlene Exposito - Employee for the Department of Motor Vehicles. Assured committee she and her co-workers were there to testify on their own time, because they felt the issue was so important. Ms. Exposito described instances of abuse and physical threats.
Anthony DeNardo - Southern Nevada Adult Mental Health Division employee. Mr. DeNardo reiterated previous testimony supporting the need for AB 175. Although he admitted the nature of his job brought him into contact with the mentally ill (who were sometimes also prisoners), he presently had no recourse when someone threatened or indulged in physical or verbal abuse.
Jim Rhodes - Southern Nevada Adult Mental Health employee. Echoed Mr. DeNardo's testimony.
Edward Higginbotham - Employee of the State Industrial Insurance System. Mr. Higginbotham told the committee he had helped write the proposed bill because his agency backed its employees, allowing them to sign complaints when necessary. Mr. Higginbotham described a business owner who threatened to kill him when the man's proposal to establish a deal to train rehabilitation clients was turned down. Without new legislation, nothing could be done.
Monna Miller - Employee of the State Industrial Insurance System and member of SNEA. Ms. Miller said she had co-authored the request for this bill. Ms. Miller related personal threats and instances of violence and abuse.
Colleen Gougar - Senior Appeals Referee with the Las Vegas Appeals Office of the Employment Security Department. Related measures which had to be taken when a client threatened violence and death.
Mike Johanason - Representing the Service Employees' International Union. Responded to comments made by Mr. Toomin and Mr. Gibbons. Although it was possible to negotiate language when its members drew up contracts, Mr. Johanason said there was no real mechanism to enforce any measures against people who threatened or engaged in abuse or violence. Thus, he felt the strong characteristic of this bill was the enforcement clause. He also asked the committee to consider expanding this to "public employees."
Speaking in opposition to AB 175, Steve Dahl, again representing the Clark County Public Defender's Office, suggested there were some common sense applications he thought the committee should consider. Most incidents he had heard described, he said, were already crimes. Passing AB 175 would not change the picture. What Mr. Dahl thought was needed was greater enforcement of already exiting laws and possibly greater awareness. Essentially, Mr. Dahl thought the language of AB 175 was too broad.
Also testifying in opposition to AB 175, David Wall assured the committee his opposition to the bill was not based on a lack of sympathy for the problems of state employees and others who had experienced this type of abuse and violence. Presently the statute was designed to keep those who were decision-makers unbiased, intimidated or threatened. He did not think
the state employees' concerns would be covered by the present bill. The various aspects of penalties and disproportionality were further explained. Mr. Wall echoed Mr. Dahl's opinion that AB 175 was over-broad, vague and possibly unconstitutional.
Mr. Sader pointed out the bill would again be heard at a future date and thus, he would hold further questions at this time.
Mr. Collins suggested the committee should hear comments from the district attorneys' offices and law enforcement on whether this type of prosecution was pursued; and if not, why not.
Following a short break, the hearing on AB 68 was opened.
ASSEMBLY BILL 68 - Creates crime of reckless endangerment.
Again coming forward to offer testimony in behalf of AB 68, Ben Graham told the committee prior to hearing testimony on this bill they wished to submit a proposed amendment (Exhibit F), which would change the language on page 1, lines 5 and 6 and remove the phrases "or the death of." Thus the bill would read, ". . .bodily harm to another person and thereby causes substantial bodily harm to another person, is guilty of reckless endangerment."
Following Mr. Graham's introduction, Victor Schulze, District Attorney from Esmeralda County, informed the committee and guests he had drafted this bill. Mr. Schulze tried to impress upon committee members the difficulties arising in the rural areas. Esmeralda County had less than 2,000 people in a 7,000 square mile county; and there were only seven members in the sheriff's department to cover the 7,000 square miles. Mr. Schulze was the only full-time lawyer practicing in the county.
He pointed out that ". . .justice is not based on the facts of the case in a criminal proceeding, but more specifically justice is based on what the jurors believed the facts showed beyond a reasonable doubt. Convictions are not had on what happened. Convictions are had on what the jurors believed the prosecutor proved what happened beyond a reasonable doubt. . . ." In summary, Mr. Schulze said he was trying to illustrate the situations in which law enforcement had no authority to correct reckless endangerment. He asked the committee to create a new crime and fill a loophole currently existing.
Explaining the loophole, Mr. Schulze explained the crime of "reckless endangerment" existed in a number of other states, such as Connecticut, Colorado, Georgia and Texas, and some of these statutes related to current Nevada statutes. He asked the Legislature to take the crime of "reckless driving" and expand it to include other kinds of reckless conduct which resulted in substantial bodily injury; and to protect the citizens of this state from substantial bodily injury and protect the bodily security and integrity of constituents. This was a "different" crime, Mr. Schulze maintained. What was different was the mental element. The prosecution had to prove not only that the act was committed by the perpetrator, but also the perpetrator's mental element, i.e., malice, specific intent, general intent or, in this case, recklessness. Recklessness was a different mental intent than general intent -- different than battery and different than assault.
Primarily, Mr. Schulze was concerned with the reckless use of firearms, and went on to describe hypothetical and illustrative examples. He concluded by asking for a narrowly drafted statute which would deal with the specific issue of substantial bodily harm. He mentioned the gang problems occurring in Las Vegas and Reno with the use of firearms. Many times, he reiterated, the intent to commit a battery could not be proven, but recklessness could be proven. The definition of "recklessness" was: Willful and wanton disregard for the safety of other people." This was a previously defined legal form of art used by the courts for many years. Also the harm that had to be proven was "substantial bodily injury," which was also a well defined term.
The purpose of the proposed amendment was to delete the situation of death caused by recklessness, Mr. Schulze explained. The error of crafting the language in this manner was brought to light by a Nevada Supreme Court definition of the term "inferred maliciousness." This was further explained by Mr. Schulze. Nearly 50 percent of the states had some form of "reckless endangerment" statute, he concluded.
Mr. Sader pointed out Mr. Schulze's examples spoke primarily to the use of a dangerous weapon. Was this the intent? Mr. Schulze replied under current law he thought it was possible to commit substantial bodily injury without using a gun. A deadly weapon could be any number of objects or things. The penalties and definitions were further discussed between Chairman Sader and Mr. Schulze. Chairman Sader expressed concern regarding the extent of the application of this type of concept to the criminal system.
Mr. Schulze suggested if the Legislature so chose, the bill could be limited to specific types of instruments, i.e., firearms and explosives. Alternatively, it could be left more general, outlawing conduct.
After further discussion, Chairman Sader pointed out the Legislature had to be very careful about what was intended and what was ultimately done.
Mr. Gibbons questioned whether in a situation where someone riding in the back end of his pickup fell out. Would Mr. Gibbons' be guilty of reckless endangerment? In that case it would probably only fall to "negligence," Mr. Schulze opined. Adding to it, Mr. Gibbons suggested they add two beers and although he was within the limit, between .05 and 1.0 and speeding, would he be within the felony penalty. First, Mr. Schulze said, if the man did not fall out and did not get hurt, there would be no crime. Once it was determined the driver was truly reckless and the man in the back of the pickup truck had some kind of permanent disfigurement or loss of bodily function, yes, there would be crime. This would come after actual substantial bodily injury was shown -- not just the likelihood of it.
Mr. Carpenter questioned whether the bill could be limited to specific weapons. Mr. Schulze said he would not object to this if the intent of protecting the Nevada citizens was kept intact.
Testimony in opposition was opened by Tom Pitaro. Mr. Pitaro stated, "We don't need this bill." He discussed the penalties set for various violations, and reiterated the last thing needed was a broad-based law based upon the proposition that every aspect of human conduct had to be criminalized. Mr. Pitaro maintained people were not deterred from acting reckless by passing such a law, and there were statutes available which already covered such action.
James Jackson, representing the Nevada State Public Defender's office, concurred with Mr. Pitaro in that offenses described were already covered by law and would serve to create additional confusion.
There being no further testimony on AB 68, Chairman Sader opened a work session. He asked the committee to first consider the bills heard during the day and when those were finished they could consider bills heard on Monday's agenda.
ASSEMBLY BILL 63 - Requires separate penalty hearing in all criminal cases which result in conviction of defendant for murder of first degree.
Chairman Sader pointed out there had been some discussion at the end of the testimony regarding some agreement on amending language. He asked Mr. Graham and Mr. Pitaro if they had a suggested amendment on the bill. Mr. Graham indicated Mr. Harmon and Mr. Dahl had devised some language which appeared to address the concerns of the state while continuing to serve the needs pointed out by Mr. Dahl.
Referring to their proposed amendment, Mr. Graham read from Exhibit G. He said the present subsection 2, page 1, lines 10-16, would be removed. The following language would be inserted: "In a case in which the death penalty is not sought, the parties by written stipulation may waive the separate penalty hearing required pursuant to subsection 1 and the parties may agree to have either the trial judge or the trial jury impose the sentence. The stipulation must be in writing and signed by the defendant, his attorney, if any, and the prosecuting attorney. The stipulation must be filed with the court prior to the commencement of the trial."
Additionally, Mr. Graham explained, on page 2, line 9, the language would read, "2. The jury, the judge or the panel of judges shall determine: . . .".
Questioning the amendment, Mr. Carpenter asked which trial was being specified. Chairman Sader explained in the case of a first-degree murder the case would have to be decided by a jury, both on whether the person was guilty and also what the penalty should be, life with or life without parole. What was being said was with this amendment the parties could stipulate the penalty, and prior to the time of trial the judge would decide if a first-degree murder conviction was determined to be the case by the jury.
Further clarifying, Mr. Graham said the language agreed to would require the prosecutor, the defendant and the defendant's attorney to agree to the method of sentencing prior to trial, provided the defendant was convicted.
Mr. Anderson questioned whether the language on page 2, line 9 would expand the term "judge," meaning a single judge would have the ability to make a determination of first-degree murder. Mr. Graham assured him this was not the case.
ASSEMBLYWOMAN SMITH MOVED TO AMEND AND DO PASS ASSEMBLY BILL 63.
ASSEMBLYMAN SCHERER SECONDED THE MOTION.
Mr. Carpenter asked if this was an advantage for the defendant to agree before the trial the judge was going to decide the sentence. Chairman Sader suggested if it was a good deal for the defendant he doubted if the prosecutor would stipulate. Mr. Graham thought it was a fair proposition for all parties. This statement was not rebutted by the defense representation.
When asked by Mr. Toomin, the Public Defender's representative, James Jackson, replied the Public Defender's office agreed with the language of the bill as amended.
THE MOTION TO AMEND AND DO PASS CARRIED UNANIMOUSLY.
Mr. Graham agreed to have the proposed amendment typed and submitted to Chairman Sader on the following day so it could be then submitted to the bill drafters.
ASSEMBLY BILL 64 - Provides for confidentiality of informer's identity during preliminary examination.
ASSEMBLYMAN SCHERER MOVED TO INDEFINITELY POSTPONE ASSEMBLY BILL 64.
ASSEMBLYMAN PORTER SECONDED THE MOTION.
In the case of the tipster, Mr. Scherer did not think the district attorney should have to reveal the identity in cases where the person was not a percipient witness. However, he thought there were protections already in statute to allow the argument that identity should not be revealed. In the case of a percipient witness to the crime being charged, he thought this was information the defense was entitled to have. An earlier proposed bill, Mr. Scherer pointed out, would have required the defense to give the list of witnesses to the district attorney. In this case, Mr. Scherer felt this was necessary in order to give the district attorney time to prepare. Likewise, where the informant was a percipient witness, he thought the defense deserved the same adequate time to prepare.
Mr. Porter agreed.
Mr. Carpenter disagreed with both Mr. Porter and Mr. Scherer. He maintained persons involved in drugs and criminal activity knew they were breaking the law. Essentially, he felt protecting the informant gave law enforcement a necessary tool.
Ms. Smith asked if there could be amending language devised which would make the bill acceptable as she saw some validity to the bill.
Chairman Sader perceived there was little room for compromise. Mr. Pitaro agreed this bill so struck at a fundamental constitutional right, there was no room for compromise. Mr. Graham countered by saying he agreed there was no room for compromise, however, he took exception to Mr. Pitaro's premise regarding fundamental constitutionality.
Chairman Sader called for a roll call vote.
THE MOTION TO INDEFINITELY POSTPONE ASSEMBLY BILL 64 CARRIED. (ASSEMBLYMEN ANDERSON, BONAVENTURA, PORTER, REGAN, SCHERER, SCHNEIDER, TOOMIN AND SADER VOTED YES, ALL OTHERS VOTED NO.)
ASSEMBLY BILL 65 - Allows testimony given before magistrate at hearing or examination to be admitted at trial if witness persistently refuses to testify despite order of judge to do so.
Mr. Graham asked that the proposed amendment reading "or unable to remember the subject matter of his testimony and so testifies at the hearing," be withdrawn (Exhibit H) prior to consideration.
ASSEMBLYMAN PORTER MOVED TO DO PASS ASSEMBLY BILL 65.
ASSEMBLYMAN SCHERER SECONDED THE MOTION.
Clarifying, Chairman Sader stated the bill would be unchanged and language on page 2, lines 4 and 5, and would read, ". . . persistent in refusing to testify despite an order of the judge to do so, . . .".
Mr. Carpenter insisted a person had the right to not testify. If having thought about it a witness chose not to testify, Mr. Carpenter thought he should have that right.
Mr. Bonaventura did not believe the amendment (as proposed in Exhibit H) would greatly change procedural aspects. If a person did not want to testify, his testimony from the preliminary hearing would still be admitted.
THE MOTION CARRIED. (ASSEMBLYMEN BONAVENTURA, ANDERSON, CARPENTER, COLLINS AND SADER VOTED NO, ALL OTHERS VOTED YES.)
Chairman Sader asked Mr. Porter to handle AB 65 on the floor of the Assembly.
ASSEMBLY BILL 68 - Creates crime of reckless endangerment.
ASSEMBLYMAN GIBBONS MOVED TO AMEND AND DO PASS ASSEMBLY BILL 68.
After some discussion, it was determined the intent of the amendment would be to restrict the bill's application to use of "inherently deadly weapons," as defined by the Supreme Court; and also to delete the words, "or the death of" appearing on page 1, lines 5 and 6.
ASSEMBLYWOMAN SMITH SECONDED THE MOTION.
Explaining his rationale, Mr. Gibbons stated by restricting the application of the language they had narrowed the over broad construction of the bill, alleviating its application to all other cases which might arise, to and including an unintended use of the statute.
Chairman Sader stated his opposition to the motion to amend and do pass. He explained in testimony they had heard it was clear the examples used could be charged in two or three different ways as felonies for the most part. He had additional concern when this kind of law was passed it was sometimes used for circumstances the Legislature had not contemplated. He asked the committee to consider, for instance, the term "use of a deadly weapon." Although their present thoughts were directed to shootings and stabbings, this was not necessarily the way the deadly weapon ended up being used. Thus, under the circumstances and with all the different ways criminal conduct was prescribed with dangerous weapons, he concluded this bill provided an opportunity for mischief.
Mr. Bonaventura also opposed the motion. He opined all the crimes described could be charged under current statute.
Defending his position, Mr. Gibbons stated the need for the bill was obvious when considering the current statutes -- already discussed -- each requiring the mental condition of "intent" to commit the crime. Thus, this bill attempted to define a new mental intent of "reckless intent" which was outside the current scope of the crimes weapons were used for. This brought into their decision a "reckless" use which resulted in substantial bodily harm.
Chairman Sader called for a roll call vote.
THE MOTION FAILED. (ASSEMBLYMEN GIBBONS, GREGORY AND SMITH VOTED YES, ALL OTHERS VOTED NO.)
Chairman Sader asked if there was another motion.
ASSEMBLYMAN BONAVENTURA MOVED TO INDEFINITELY POSTPONE ASSEMBLY BILL 68.
ASSEMBLYMAN COLLINS SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMEN GIBBONS, GREGORY AND SMITH VOTED NO, ALL OTHERS VOTED YES.)
Chairman Sader announced Assembly Bill 175 would be held for later hearings in Carson City. Although he noted many people had signed in to testify on AB 175, he opined 95 percent of the offenses earlier testified to would not be covered by the bill in any way.
Turning to bills heard the previous day, Mr. Graham asked if the hearing on Assembly Bill 57 could be heard the following week.
Attention was turned to Assembly Bill 58.
ASSEMBLY BILL 58 - Expands aggravated circumstances under which death penalty may be imposed to include first degree murder of child under 14 years of age.
Chairman Sader recalled the discussion to amend further to include a double or triple murder situation in the same circumstances. Thus, the bill had two facets as it was proposed. Chairman Sader noted the bill had been patterned after Arizona and California legislation.
ASSEMBLYMAN GIBBONS MOVED TO AMEND AND DO PASS ASSEMBLY BILL 58.
Explaining the amendment, Mr. Gibbons said the amendment would include adding the "Lizzy Borden" amendment, number 11, for the multiple murder provision to the existing bill, and to retain the provision of "murder committed upon a child."
ASSEMBLYMAN REGAN SECONDED THE MOTION.
Explaining, Chairman Sader said the amendment would retain the existing language as presently seen in the bill, plus incorporating language as seen in Exhibit I.
Mr. Carpenter agreed with including language dealing with a triple murder. However, regarding child abuse, he was worried certain requests for legislation in this regard would lead to abuse.
Chairman Sader stated he could support the amendment proposed in Exhibit I dealing with multiple murder and there was no persuasive testimony by the defense why the loophole should not be closed. He was very concerned with language on page 2, lines 14 and 15, reading, "10. The murder was committed upon a child who had not attained the age of 14 years." He asked the committee to consider the present system. Mr. Sader opined the Legislature had created a group of preferred victims in several different categories, i.e., older people to double penalties for them, children, etc. The trend seemed to be expanding, and it was important to consider the appropriateness of making all the different classifications. Under these circumstances, when speaking specifically about aggravating factors for purposes of the death penalty, the "children" provision was not the best policy.
Mr. Gibbons said he believed it was the Legislature's responsibility to react to the public and consider the public outcry when an innocent child was murdered. He continued by saying, "Of all deaths committed by murder, that the death of someone of that tender years is by far an aggravating circumstance which this body needs to consider as a response to the public needs. While I do agree with you Mr. Chairman, my concern rests with the fact that by aggravating, we're adding to the aggravation statutes, that we may in someway be jeopardizing our death penalty statute at some point, by expanding it. I do believe that in some situations such as this that we do have a need to respond to public policy and it is my intent to support the motion."
Mr. Regan recalled in testimony heard the previous day from both the district attorneys and the defense, there appeared to be agreement the amendment, Exhibit I, did fill a gap.
Committee members spoke to whether they would support or oppose the motion.
Restating, Chairman Sader indicated the motion was to amend and do pass with both the existing language in the bill and the amendment proposed in Exhibit I. He asked for a roll call vote. (See Exhibit J.)
THE MOTION FAILED. (ASSEMBLYMEN GIBBONS, GREGORY, REGAN, SCHERER AND TOOMIN VOTED YES, ALL OTHERS VOTED NO.)
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ASSEMBLYMAN ANDERSON MOVED TO AMEND AND DO PASS ASSEMBLY BILL 58.
The amendment, Mr. Sader noted, would be to delete the existing language on page 2, lines 14 and 15, and insert the language appearing in the proposed new amendment, Exhibit I.
ASSEMBLYMAN GIBBONS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Ms. Smith was asked to handle AB 58 on the floor of the assembly.
ASSEMBLY BILL 61 - Prohibits court-ordered psychiatric or psychological examination of victim or witness in prosecution for sexual assault or sexual abuse of child to assess credibility as witness.
Chairman Sader recalled there had been a factual question regarding whether the incidents, or perceived incidents, could be substantiated.
Ms. Smith stated she felt very strongly regarding this bill. Although there was probably a need for an amendment, Ms. Smith did not want to see the bill postponed indefinitely. She asked if it could be placed in a subcommittee to devise appropriate language.
Speaking up, Mr. Graham agreed a subcommittee would be helpful; and when asked, Mr. Pitaro agreed to make an effort at compromise.
Volunteering for the subcommittee were Ms. Smith, Mr. Toomin and Mr. Scherer. Chairman Sader named Ms. Smith as the chairperson. He asked the subcommittee to return to the committee with a report by Friday, February 12th.
ASSEMBLY BILL 59 - Revises definition of "robbery" to include theft in which force or fear is used as means of escape.
Referring to testimony the previous day, Mr. Porter said he agreed that "using a weapon as a means of escape" was a loophole. The amendment he would propose would insert language on page 1, line 13. The language would read, "The degree of force used is immaterial, and must be reasonably contemporaneous with the taking."
ASSEMBLYMAN PORTER MOVED TO AMEND AND DO PASS ASSEMBLY BILL 59.
ASSEMBLYMAN SCHERER SECONDED THE MOTION.
Chairman Sader pointed out the bill drafter would probably rearrange the language somewhat, but the intent was clear.
THE MOTION CARRIED UNANIMOUSLY.
ASSEMBLY BILL 69 - Requires the courts to give precedence to certain cases involving sexual assault or in which victim or witness is a minor.
ASSEMBLYMAN BONAVENTURA MOVED TO INDEFINITELY POSTPONE ASSEMBLY BILL 69.
Explaining his position, Mr. Bonaventura opined a sexual assault case should not have priority on a court calendar over other heinous crimes.
ASSEMBLYMAN GREGORY SECONDED THE MOTION.
Mr. Scherer agreed with the motion, saying he did not think it was the position of the Legislature to dictate the court's calendar, and he hoped the court was sensitive enough to give these cases priority on its own initiative.
Also explaining his support, Mr. Gregory said he believed the Legislature had no right to dictate to the court's calendar.
THE MOTION CARRIED UNANIMOUSLY.
Chairman Sader announced there would be no meeting the following day (Wednesday), but the committee would reconvene on Thursday morning.
Ms. Smith asked if the current language of Assembly Bill 53 (section 3, page 2) could be amended to state "three years after discovery," rather than "ten" years after discovery.
To expedite matters, Mr. Porter suggested revamping a bill previously indefinitely postponed. Chairman Sader disagreed. The manner in which to introduce this proposal was discussed.
Finally, Chairman Sader suggested they amend Assembly Bill 68, a bill dealing with "reckless endangerment," previously indefinitely postponed, deleting the language entirely and inserting language to deal with Ms. Smith's request. In order to do this, Chairman Sader explained, they would first have to reconsider the motion to indefinitely postpone, pass the motion to reconsider by two-thirds and then amend to gut the bill and replace the language with an unassociated concept.
ASSEMBLYMAN SMITH MOVED TO RECONSIDER ASSEMBLY BILL 68.
ASSEMBLYMAN SCHERER SECONDED THE MOTION.
Questioning the action, Mr. Scherer asked if it was Mr. Sader's intention to schedule a further hearing on the concept of extending the statute of limitations. Chairman Sader said they would devise the amendment, it would be taken to the floor of the assembly and then returned to the committee.
THE MOTION CARRIED UNANIMOUSLY.
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The next motion, Chairman Sader explained, would be to amend AB 68 to delete all language in the bill, and insert section 3 of Assembly Bill 53, changing that section to provide for a ten year civil statute of limitations.
ASSEMBLYWOMAN SMITH MOVED TO SO AMEND ASSEMBLY BILL 68.
ASSEMBLYMAN SCHERER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
The amendment would have to be devised after returning to Carson City, Chairman Sader said, and then brought back to the committee for another hearing.
There being no further business, the meeting was adjourned at 1:23 p.m.
RESPECTFULLY SUBMITTED:
Iris Bellinger
Committee Secretary
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Assembly Committee on Judiciary
Date: February 9, 1993
Page: 1