MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
February 19, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:05 a.m., Friday, February 19, 1993, at Cashman Field Center in Las Vegas, Nevada. Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Mr. Robert M. Sader, Chairman
Mr. Bernie Anderson
Mr John C. Bonaventura
Mr. Tom Collins, Jr.
Mr. James A. Gibbons
Mr. William D. Gregory
Mr. William A. Petrak
Mr. John B. Regan
Mr. Scott Scherer
Ms. Stephanie Smith
Mr. Louis A. Toomin
GUEST LEGISLATORS PRESENT:
None
COMMITTEE MEMBERS ABSENT:
Mr. John C. Carpenter (excused)
Mr. Gene T. Porter, Vice Chairman
Mr. Michael A. Schneider
STAFF MEMBERS PRESENT:
Ms. Denise Miller
OTHERS PRESENT:
Mr. Ben Graham/Clark County District Attorneys Association
Mr. Michael O'Callaghan/Clark County District Attorneys Association
Mr. Richard Wright/Nevada Attorneys for Criminal Justice
Mr. Steve Dahl/Nevada Attorneys for Criminal Justice
AB-82: Expands authority of district courts to issue orders for use of pen register or trap and trace device to include investigators for attorney general or district attorneys. (BDR 14-591)
Mr. Sader had been requested to withdraw AB 82 from the agenda because the prime proponent was a Northern Nevada prosecutor. No one present wished to testify on AB 82. Mr. Sader then stated AB 82 would be heard in Carson City at a later time.
AB-83: Defines "deadly weapon" for purpose of imposing additional penalty for use of such weapon in commission of crime. (BDR 15-593)
Mr. Ben Graham with the Clark County District Attorneys Association, and a Clark County Deputy District Attorney, informed the committee AB 83 was a result of two cases, submitted for the record: the Clem case (Exhibit C) and the Zgombic case (Exhibit D). He stated as a result of what Zgombic did to the Clem case and the legislation in that area, a bill draft was requested. He added he and Mr. Mike O'Callaghan, Clark County Deputy District Attorney, were present to ask for consideration of AB 83.
Mr. Graham called attention to the proposed amendment to AB 83 (Exhibit E) which removed Section 5 (a) Lines 24, 25 and 26 on the first page and Section 5 (c) Lines 3 and 4 on the 2nd page.
At this time, Mr. Sader clarified AB 83, as amended, would be only the Section 5 (b) portion. Mr. Graham affirmed and read Section 5 (b), "Any instrument used in a manner capable of causing substantial bodily harm or death."
Mr. Graham then introduced Mr. Michael O'Callaghan, Senior Trial Deputy in Clark County District Attorney's office. Mr. Graham noted Mr. O'Callaghan had been with the office for 10 years.
Mr. O'Callaghan testified in favor of AB 83. The important nature of AB 83 had to do with mandatory prison time, he stated. He further commented deadly weapon enhancement also involved those who did not have mandatory prison time such as attempted murder, which carried a penalty of one to 20 years, and with use of a deadly weapon, would double to two to 40 years. Over the years, he continued, the deadly weapon issue had arisen. The key case was Clem which came out in 1988 with the functionality test.
The weapons involved in the Clem case were an iron and a fork, common household items. The issue raised by the defense in the Clem case on appeal was whether or not those items, which were common household items, should be considered as deadly weapons under N.R.S. 193.165. The Supreme Court at that time in a 5-0 decision found the items were deadly weapons and used the functionality test. Mr. O'Callaghan reminded the committee that prior to the Clem case, no test was laid out by the Nevada Supreme Court. The Clem case caused a definition to be written. The Clem decision, he explained, gave direction to the District Attorney's office and other prosecutors with regard to pleading deadly weapons.
Mr. O'Callaghan recited the details of the Clem case as written in Exhibit C and showed the committee pictures of the victim. The Clem case was not a murder case, he related.
The functionality test, he reported, had to do with the manner of the weapons' use. The question was whether or not the jury should consider the manner of use, he continued, and be able to decide beyond a reasonable doubt whether an item, object, or an instrumentality was a deadly weapon.
At this time, Mr. O'Callaghan called attention to Page 357 of the Clem decision, the functionality test, which concerned how an instrument was used and the fact and circumstances of its use. He asked the committee to note the language of the original bill which discussed manner of use and specifically noted the word "manner" was not in the original bill.
The Clem decision was re-affirmed in Moore vs State in 1989
(Volume 205 of the Nevada reports). In that particular case, Mr. O'Callaghan reported, where there were several defendants, the victim was killed with a rock. The issue was raised whether a rock was not a deadly weapon. The Supreme Court decided that how the object was used determined a deadly weapon, he cited.
Mr. O'Callaghan then discussed at length the Zgombic decision in 1990. (Exhibit D) The Supreme Court held in a 3-2 decision the Clem decision should be overruled and crafted another test. Mr. O'Callaghan asked the committee to read the dissent in that case. Former Justice Mowbray and Justice Steffen argued the Court should stay with the Clem decision, Mr. O'Callaghan added.
At this point, Mr. O'Callaghan gave descriptions of certain workers' tools and other items which could constitute a "deadly weapon." If items were used in their ordinary manner, the manner for which they were designed, the items were not deadly weapons as a matter of law under Zgombic decision, he declared.
Next, Mr. O'Callaghan described several homicide cases. At this point, Mr. O'Callaghan expressed his opinion the jury should be able to decide if an object was a deadly weapon. He endorsed the Clem decision as a workable standard.
Mr. Sader asked Mr. O'Callaghan to comment on the analysis of Justice Steffen in the Zgombic dissent and asked his opinion of the dissent and the reasoning of Justice Steffen. Mr. Sader acknowledged Zgombic was a 3 to 2 decision, but commented the logic of the dissent would also restrict the test of Clem. Mr. O'Callaghan said he agreed with most of the dissent, but disagreed with certain parts of it, and gave as an example the knitting needle which was a deadly weapon if shoved through an eye (an illustration of the functionality test), which should be considered a deadly weapon. In the dissent, Justice Steffen mentioned items altered, for instance, a toothbrush sharpened down and made into a shiv at the prison. This was not a broad enough definition, in Mr. O'Callaghan's view.
Rulings against prosecutions with regard to deadly weapons generally were not appealable, Mr. O'Callaghan said, because they were enhancements. He could not appeal and bring to the Nevada Supreme Court the issues of the Zgombic decision except on rare occasion. The rulings were only brought up, he declared, when the defendant was convicted.
Mr. O'Callaghan continued, post conviction relief was a big issue. "Does Zgombic act retroactively? Do all defendants who went to prison since their sentences were enhanced after 1970 or 1971 have a chance to get out of prison because the weapon used was not a deadly weapon?" he asked. He added enhancements were important when they doubled a sentence, particularly on life sentences which had mandatory time before parole eligibility.
Zgombic, Mr. O'Callaghan pointed out, prevented prosecutors from presenting the issue to the jury to let the jury determine whether an instrumentality was a deadly weapon.
Mr. Gibbons stated the term "instrumentality" implied an item of construction physically made by somebody, which would eliminate a rock. Mr. O'Callaghan replied, "Not necessarily." Mr. Gibbons' wished to avoid a situation where the committee used a word which implied an item of construction made by hand and thereby eliminated an item which could normally be used as a weapon.
Next, Mr. Regan addressed Mr. O'Callaghan and pointed out many problems were caused from legislation getting to the courts which tried to define "legislative intent." He highlighted the word "instrument" meaning "man-made or constructed," and stated if the committee could define the word "instrument," he supported Mr. O'Callaghan's intent of the bill. However, he stated, he did not wish to see the situation arise where Nevada had Arizona case law based on Arizona legislative intent being defined in the State of Nevada. Mr. O'Callaghan agreed and stated Arizona case law was used in the Zgombic decision.
Mr. Regan expressed his concern the committee define intent to assure judicial mischief would not occur in the future.
At this point in Mr. O'Callaghan's testimony, Mr. Bonaventura questioned Mr. O'Callaghan regarding his use of the word "object" in place of the word "instrument." Mr. Bonaventura hoped the word "instrumentality" or "instrument" would be used, to be as consistent as possible with the Nevada Supreme Court's language used in these decisions. Mr. Bonaventura was of the opinion the committee should stay with the intent and make sure intent was defined correctly. His choice would be to replace "instrument" with "object," but if "instrument" had already been defined, and the intent was understood, a change might not be necessary, he concluded.
Mr. Bonaventura next questioned Mr. Graham regarding courts' interpretation of certain words and phrases. Use of the word "object" when the courts had interpreted "instrument" could raise questions. The goal was to have a judicial history, Mr. Graham thought. The word "instrument" and "instrumentalities" was defined by Mr. Graham as the same, just a matter of degrees.
At this point, Mr. Sader made a statement to Mr. O'Callaghan and prosecutors regarding the deadly weapon statute. He agreed in part and disagreed in part. He agreed Zgombic would provide a very confusing principle to apply in the future. He also agreed an area of interpretation would always exist. He added the statute was an enhancement statute. It doubled a penalty. The original intent focussed on serious crimes. When these crimes were done with a deadly weapon, the crimes became more serious. It was the fear in the victim, the terror of the victim, and the potential for an increased likelihood of harm in the act with the deadly weapon which led the legislature to pass the bill.
Mr. Sader gave the example of a gun used in the commission of a robbery, in which case a killing would be more likely than if a gun was not used. However, when the bill was passed, it applied to all crimes. This created a terrible interpretation problem in the application of this particular law to crimes such as murder, attempted murder, and any crime involving substantial bodily harm where some instrumentality was used to commit the crime.
Therefore, just about everything used to commit murder became a deadly weapon, Mr. Sader continued, and the penalty was doubled, which was a great tool for a prosecutor. But as public policy, legislature lost all touch with the reason the law was passed.
Mr. Sader further commented when a murder was committed, many cases had the death penalty. Sometimes multiple crimes were involved. In such cases the prosecutor has many tools to incarcerate an offender for a long period of time. And then the penalty was doubled. The Zgombic test was not perfect, he said, but he felt it was a step in the right direction from Clem.
Mr. Sader concluded his statement saying Zgombic troubled him as well because any weapon used in the commission of a robbery or an attempted rape would terrorize the victim, yet under Zgombic many of them would not be considered deadly weapons.
Next, Mr. Richard Wright and Mr. Steve Dahl, both of Nevada Attorneys for Criminal Justice, spoke in opposition to AB 83.
Mr. Wright asked the committee to look at what the statute was used for, what it was intended and should be used for, and why it was passed, instead of going to the emotionalism of bad offenses.
Every crime described by the prosecutor was already a crime, Mr. Wright related. The enhancement statute says, "if you use a deadly weapon in the commission of any crime whatsoever, the penalty automatically shall be doubled and be consecutive," and the jury by law does not know that and is not told that. All the jury is told, he stated, is to make a finding, "Do you find that a person committed a crime?" And then they are also asked to decide, "Was a deadly weapon used?" If the answer is "yes," the jury says, "A deadly weapon was used." When it comes to punishment, the judge knows he must give a consecutive doubling, which is double punishment for the crime, to send the person to prison for twice as many years. Mr. Wright also noted prisons were full and getting fuller.
Mr. Wright expressed his objection to AB 83 and gave examples to support his opinion. He felt prosecutors were overzealous with the use of this statute.
Mr. Sader responded he understood the natural competitive instinct of defense attorneys and prosecutors, but felt ultimately the responsibility was the legislature's.
Next, Mr. Dahl spoke against AB-83, and expressed his opinion regarding AB-83 as it pertained to manslaughter situations and deadly weapons. Mr. Dahl stated the Ninth Circuit Federal Court had already criticized the statute as the harshest they had seen. The statute was constitutional, according to the Ninth Circuit, but very harsh.
Mr. Anderson questioned Mr. Wright and Mr. Dahl regarding the jury's determination, without knowing why, if a deadly weapon was used. He noted AB-83 meant "use," and not an instrument or weapon in the pocket. He called attention to usage of the word "instrument" and "deadly weapon." He discussed enhancement and stated for involuntary manslaughter there could not be enhancement for use of a weapon because involuntary manslaughter was an unintentional crime.
The only change was the definition of a deadly weapon, Mr. Wright explained. Under the Clem definition, anything was a deadly weapon, he said.
Mr. Anderson continued questioning Mr. Wright regarding the Clem decision and interpretation by the court of Zgombic. Any time legislation was passed, it would be back before the court to see where the lines were drawn, Mr. Wright maintained.
Mr. Bonaventura asked Mr. O'Callaghan if he felt punishment was not sufficient in some cases, and he also asked Mr. O'Callaghan if he was trying to overrule Zgombic?
Mr. O'Callaghan replied he did want to go back to Clem. In 60 or 70 percent of the cases, punishment was not enough in the situation, he felt. He added about 70 percent of the people in prison were not involved with violent crimes. He believed six percent actually involved enhancements with regard to use of a deadly weapon.
Mr. Bonaventura called attention to Line 3 and 4 of the statute, and asked if tear gas was a deadly weapon, and Mr. O'Callaghan
replied it was.
Mr. Regan then addressed Mr. Wright and stated his concern was to define terms so that in every session the Judiciary Committee was not arguing legislative intent. He further stated he would like to see both the prosecutive bar and the defense bar get together, define terms with the committee and help the committee work to define an understandable decision so the Supreme Court was not called upon every other year.
Mr. Wright respectfully disagreed with Mr. Regan and said he believed the Supreme Court decision clarified it. The Supreme Court said when legislature passed the doubling and mandatory prison for use of a deadly weapon, legislature meant by "deadly weapon" inherently dangerous weapons which were used as weapons. Mr. Regan then concurred with Mr. Wright.
At this point, Mr. Petrak expressed his opinion the right of the jury should be considered greatly in determination of the particular weapon. Mr. Petrak did not think agreement existed between the defense and the prosecutor. Mr. Dahl replied in most issues agreement would not exist between the defense and the prosecutors.
Mr. Dahl felt the problem with the statute was juries were sworn to uphold the law, and if juries were told a deadly weapon was any instrument used in the manner capable of causing substantial bodily harm or death, that would make anything a deadly weapon. Mr. Dahl did not believe this was the intention of the legislature in the first place. He further did not believe it was good policy now.
Ms. Smith expressed her concern regarding how AB 83 would be used. AB 83 could have severe impact on people on the low end of the crime scale, she pointed out. These people, she remarked, have need of counselling more than they need to be imprisoned. Ms. Smith emphasized she did not think possession and use were equal. She also did not see a problem with the word "instrument." She defined instrument as a tool, something one would utilize. Ms. Smith expressed her disagreement with citing numbers of persons in jail and felt it irrelevant. The issue of dangerous or deadly weapons was less important than the crimes for which the weapons were used, she felt. She suggested a change in the wording to note in torturous crimes, any instrument used could be considered a deadly weapon.
A lengthy discussion ensued with numerous questions raised between Mr. Scherer, Mr. Dahl, Mr. Wright, and Mr. Collins as to deadly weapons, inherently dangerous weapons, and normal items becoming dangerous when used in a particular way. Examples were given and intent was discussed. Justice Steffen's dissent in the Zgombic case was also discussed.
Mr. O'Callaghan felt the scenarios given were impractical and not proper. He disagreed with Mr. Dahl and Mr. Wright's opinions of the scenarios.
Mr. Sader stated the committee would not vote on AB-83 and postponed decision on the bill until a later time.
There being no further business to come before committee, the meeting was adjourned at 10:10 A. M.
RESPECTFULLY SUBMITTED:
BOBBIE A. MIKESELL, Committee Secretary
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Assembly Committee on Judiciary
February 19, 1993
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