MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
March 8, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 2:00 p.m., on Monday, March 8, 1993, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator R. Hal Smith, Vice Chairman
Senator Lawrence E. Jacobsen
Senator Mike McGinness
Senator Dina Titus*
Senator Raymond C. Shaffer
COMMITTEE MEMBERS ABSENT:
Senator Ernest E. Adler (Excused)
GUEST LEGISLATORS PRESENT:
Senator Lori Lipman Brown
STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Analyst
Sherry Nesbitt, Committee Secretary
OTHERS PRESENT:
Richard Wyett, Chief Parole and Probation Officer, Nevada Department of Parole and Probation
Pete English, Deputy Chief, Nevada Department of Parole and
Probation
Bob Bayer, Officer, Nevada Department of Parole and
Probation
Pat McGaffin, Correctional Case Manager, Department of
of Prisons
Kevin M. Kelly, Lobbyist, Nevada Attorneys for Criminal
Justice
Ben Graham, Lobbyist, Legislative Representative, Nevada District Attorneys Association
Paula Treat, Lobbyist, Peace Officers Research Association
of Nevada
David Sarnowski, Chief of Criminal Justice Division, Nevada
Attorney General's Office
* If committee members are only present for a portion of the
meeting, this is noted in the body of the minutes.
Senator James advised the first matter to be heard was Senate Bill (S.B.) 234.
SENATE BILL 234: Requires department of parole and probation to approve or assist in development of plan for placement of prisoner released on parole. (BDR 16-917)
Richard Wyett, Chief Parole and Probation Officer, Nevada Department of Parole & Probation, provided oral testimony. He stated this amendment to Nevada Revised Statutes (NRS) 213.140 would serve to make the role of the department of parole and probation clear in the release process, once an inmate had been granted parole by the board of parole commissioners. He advised as the law was presently written, it merely stated the board may consider and authorize an inmate's release upon parole. The proposed changes make it clear that an inmate would not simply be dumped on the streets or in the neighborhood without an approved plan, which would include the kind of support and resources that would give the parolee a decent chance to make it on parole and to survive without having to return to criminal activities. He further believed the bill further assured greater safety in the community. Usually faced with the choice of freedom or continued incarceration, the inmate would put things together to help get him out of prison. The activity by the department of parole and probation specified in the bill would help insure the best program for all involved was worked out. It would also reduce the risk of the marginal inmate being placed in a marginal program which would increase risk to the community. He did suggest, however, the following changes in the wording of the bill be made: at line 11, before the beginning phrase in section 2, the bill stated "the department," and Mr. Wyett asked the following be inserted: "Upon parole approval". Therefore, line 11 in section 2 would then read: "upon parole approval the department shall . . ." He stated the reason for the addition was that the current wording did not make it clear that the Department of Parole and Probation would get involved in the approval of parole plans only after the inmate had appeared before the parole board and had been granted parole. He felt the present wording left open the possibility for interpretation that the department should be involved with inmates who were under consideration or would be under consideration for parole by the board of parole commissioners. He advised his department was not staffed for that type of speculative parole development. Their resources were needed directly only for those on parole. Another change suggested by Mr. Wyett was at line 14, to delete the phrase " . . .if there is not a proposed plan for placement of the prisoner." He stated with that deletion, section 2(b) would read as follows: " . . .if this plan is not approved by the department, assist the prisoner to develop a plan before he or she is released on parole." He advised the reason for the deletion was so the parolee would take an active role in planning his future and thinking about a positive parole plan for the board. The phrase his department wished to delete might suggest that they may appear with no plan at all and the department had to do all the work for them.
Senator Titus entered the meeting at 2:15 p.m.
Senator Shaffer asked what kind of programs were available or offered by Mr. Wyett's committee for those people when they were being considered for parole. Programs from which the parolee could form a plan.
Mr. Wyett answered the department had several programs within the community, for example the halfway house, the shelter, the Salvation Army and residential alcohol and drug treatment programs.
Senator Shaffer stated the recidivism rate was high in many areas and asked Mr. Wyett if the department ever considered the vocation the parolees might need when they were released, or whether they had a driver's license, birth certificate or social security card.
Mr. Wyett responded that phase was done by the pre-release unit in the department. The parolees were assisted in those areas once they had been granted release by the parole board.
Senator Shaffer asked if the parolees were really prepared for any kind of occupation, if they previously had none. He stated many people were incarcerated at a young age, never finished high school and had no vocation whatsoever.
Mr. Wyett stated there were opportunities to cover those areas within the prison system and also once the person was released his department could continue in that vein, for example, educational programming. He added, while in the institution, the person had available an education program.
Senator Shaffer asked if there was any assistance in helping to place the parolees with an employer.
Mr. Wyett answered the department had a job developer within the department in most districts.
Senator McGinness stated he represented the Ely area, and asked if prisoners were released in the Ely area or were they released in their home town.
Mr. Wyett replied if the release plan that had been accepted was in the Ely area, and the person had employment, residence or family residing in that area, and the plan they had submitted had been investigated and approved, that person would live in the Ely area. If that person was not being paroled to the Ely area they would be transported from the Ely area to the location where he or she would be residing and be would supervised in that area.
Senator James asked if the plan was something the department was currently doing, but was not statutory.
Mr. Wyett replied that was correct. He added what the changing in the wording would help them in the area where the department had previously had mentally ill clients and dangerous clients being released from prison without sufficient plans prior to leaving the institution. With the changes, the department would have the necessary time to set up an acceptable plan prior to prisoners leaving the institution.
Senator James asked if the release would be contingent on the plan, the parole board having already decided at that point the person would be on parole. Senator James assumed the language in the bill " . . . before he is released . . ." implied the persons would not be released until the department had approved a plan. This is not, however, explicitly stated in the bill, nor at any other place in NRS.
Mr. Wyett agreed this was true.
Senator James asked for confirmation that the significance of the change was that the parolee would have to go through the plan procedure. He asked Mr. Wyett if he believed the language was sufficiently specific to accomplish this, so the department would not have a problem with someone who said they had already been adjudged under the statutes as entitled to parole from the board and now had to go through the next step. Senator James asked if that would create any procedural problem for the department.
Mr. Wyett answered it would not create a problem. He stated prior to a person applying for parole he or she had to have a plan as to what they want to do or where do they want to go. That plan was worked within the prison system while the person was still incarcerated, and then the parole board evaluated the plan and granted the parole. From that point on, the board advised the department of parole and probation that parole had been granted for the person and the information was relayed to the pre-release division in Mr. Wyett's department. The plan was the key as to what his department would do with the parolee and in most cases they looked at the plan to see whether it was acceptable.
Senator James asked if the plan had already been reviewed and approved by the parole board.
Mr. Wyett answered the plan had not necessarily been reviewed, but had been approved. Otherwise, his department would take the plan and investigate it to be sure a relative lived in the town, and would provide a place of residence, the employer would provide a job (and what type of work), and so forth.
Senator James asked if the parole board did not try to investigate the points in the plan, but viewed it as more of a hypothetical. For example, a parolee was going to go and live in Ely, work at a particular business, and then the job of Mr. Wyett's department was to make sure the plan was something that was credible.
Mr. Wyett affirmed that was correct.
Senator James asked if the plan was not credible, did Mr. Wyett's department goes through the process of evaluating and changing the plan.
Mr. Wyett affirmed that was correct also.
Senator James asked if the parole board had any concern about the fact that what they voted on may be changed substantively.
Mr. Wyett stated that was not a problem.
Senator James affirmed that what the legislature was doing was to codify what Mr. Wyett's department was already doing.
Mr. Wyett said that was correct.
Pete English, Deputy Chief, Nevada Department of Parole and Probation stated the department was simply trying to put into law what they were already doing in practice.
Senator Jacobsen stated that in 1991 he spent a shift with the parole and probation officers in Las Vegas. He was concerned because most places they checked on a parolee, Senator Jacobsen did not like the atmosphere. It seemed the parolee was right back with the same old cronies waiting for the next opportunity to be arrested again. He got the feeling the parolee had not had the expectations of being on parole spelled out to him. He asked if the department furnished any kind of a checklist, which he noticed an officer used in Las Vegas. He said the first question asked when they went in the door was "are you clean." Senator Jacobsen thought there were a couple of places they went in when they should not have. He just got the feeling the whole atmosphere was wrong, and wondered if anything was done prior to release to give the parolees the rules and tell them if they did not comply with the rules they were going back to prison.
Mr. Wyett replied prior to a person going before the parole board or very shortly thereafter, the rules of parole were gone through several times and the parolee signed a parole agreement. One of the rules involved associates. Mr. Wyett stated it was very difficult in some cases to totally remove a person from the same environment from which he came, because his whole release plan, associates and support system were within that community. The department made an honest effort to assist the person in finding a better class of people to associate with, and to keep him from former locations. However, a 24-hour supervisory setting would be necessary in order to do that. The department does the best with what they have, but in most cases that person's whole life had been spent in a area, and taking the person from that area could create more of a problem.
Senator Jacobsen asked if the department found it was a necessity to go to the person on parole. He had the opinion perhaps it would better for the officer to tell the person he had to come and see the officer. He admitted going to the person was probably more of an eye-opener than anything.
Mr. Wyett replied it would be ideal for the department to have everyone come to them and not having to go knocking on doors; however that is not, in the department's opinion effective supervision. They have to see for themselves what the parolee was doing.
Pat McGaffin, Correctional Case Manager, Nevada Department of Prisons, presented oral testimony. She stated her department controlled the admissions and releases for the department of prisons. She stated the Department of Prisons was fully behind S.B. 234 and gives it full support. She had a printout initiated prior to that meeting which indicated out of a population of 6,220 inmates her department presently had 240 waiting to be released on parole from the system. She wanted to stress the Department of Prisons did not have the resources to do release planning. They were essentially the resource provider for when individuals were removed from the community, and did not have the resources at that time to work on placement or reentry into the community. Her office had been monitoring release data in terms of parole release wait-times. She stated prisons were very expensive and had a transient population. Many of the population granted parole had been transients who were passing through Nevada and not from Nevada. They want to return to their families out-of-state, and that was a very difficult situation to handle, which caused one of the biggest release backlogs. Her department was hopefully looking at first speeding up the process of parole release wait time which currently averaged from 45 to 95 days, once an inmate was legally eligible to be released. Secondly, her department was looking at inmates who did not have resources for program placement. With the Department of Parole and Probation, their resources and staff could help place an inmate back into the community if the inmate was from Nevada or out of state. Thirdly, her department looked at the fact that S.B. 234 would allow inmates, if parole and probation would assist in program placement back into the community, to have a higher success rate. She believed less recidivism in terms of parole violators returning would result. Lastly, what her department was looking at in terms of parole and probation was assisting parolees in developing a placement panel, as a law enforcement agency which would simplify for them in terms of supervision of those people.
Senator James stated he would hope that what Ms. McGaffin had articulated would happen. He understood the bill codified something already being done and Ms. McGaffin had addressed a number of things she would like to see result. He stated, unless another member of the committee thought differently, it was the hope that if the bill was passed those benefits would come.
Senator Jacobsen asked if Ms. McGaffin's department had any dealings with honor camp crews.
Ms. McGaffin stated she had trained caseworkers in terms of transporting parolees back to a work center to facilitate a release. She stated this took up some of the roles formally in parole and probation, and reduced paperwork formally submitted after an inmate had been granted parole. Approximately 1 year prior to this committee meeting, her department began to initiate the parolee's paperwork in the hope that if the person was granted parole the department could process him immediately, instead of waiting for the pony express which went through the state.
Senator Jacobsen asked if her department had experienced any problems communicating with the people in honor camps.
Ms. McGaffin said they had experienced no problems whatsoever.
Senator James confirmed there was no further testimony, and closed the hearing on S.B. 234, and advised the bill would be taken up in one of the committee's noticed work sessions.
Senator James advised the committee had before it two bills which sought the circumstances under which oral communications could be taped, and would begin with S.B. 259.
Senator James opened the hearing on Senate Bill (S.B.) 259.
SENATE BILL 259: Authorizes person who receives wire or oral communication to record communication under certain circumstances.
Senator Lori Lipman Brown, the sponsor of S.B. 259 provided oral testimony. She advised the bill was drafted in reaction to some problems in proof regarding sexual assault cases. Apparently there exist some very tough laws in terms of punishment, but one of the district attorneys, John Lukins, had expressed the idea that it was very hard to prosecute those cases without proper evidence. Senator Brown advised there were two parts to the bill. She explained how the part concerning a victim being able to tape his or her own conversation if that victim had a reasonable belief the person on the other end of the line was going to be confessing to a crime. To show how this might occur, she used the example of a woman walking down the street being accosted and raped, having her purse taken and her address and phone number becoming available to the perpetrator. The woman called the police and advised them of the crime and the next day she received a phone call from someone who began saying things like "I'm glad I got you." Suddenly there is a confession coming out which might be good evidence. If the woman had a tape recorder available to record the conversation and tried to bring it into court, she would be guilty of a felony because she had taped someone's conversation without letting him know. Furthermore, the evidence would not be useable in court. If the judiciary committees on both sides passed some sort of stalking law, a provision to allow someone who is the victim of the stalking to tape a conversation, which may involve the stalker, could be essential in evidence. She stated the main problem which may occur in proof, regarding stalking, was showing that the person was not simply courting the woman, but actually stalking or harassing. Much of that could deal with the tone of voice and the way something was said. Senator Brown believed the most explicit kind of proof of something like that would be to hear the conversation. In these cases, one of the parties did have to consent, so the person would have to reasonably believe he or she was talking to a person who may be confessing. This was different than simply leaving the machine on and taping everything everyone says to use against them. In the victim section of the bill, it specified that recordings could not be used for illegal purposes in order to get someone for libel, use their words without permission in a newspaper, or something similar. Senator Brown advised she tried to keep the bill very specific, as obviously the desire was not to have everyone tapping everyone's phones for no reason. She advised the other section simply said that if there was a reasonable belief the communication itself was a crime, such as an obscene phone call, consumer fraud, and so forth, this also would be, a good time to tape the conversation for use in evidence if that crime was later brought to court.
Senator Adler agreed with Senator Brown on the stalking portion of the law. After having attended the stalking hearings he did not think it would be easy to get a conviction unless some sort of one party consent on those types of crimes was obtained. He said in fact it would be very difficult especially if it was the phone call variety. A phone tap could be placed on the phone, but many times those are not too effective because the person would start making calls from different phones at different locations. He believed unless something like the proposed bill was in place those crimes would be extremely difficult to prosecute.
Senator Brown stated, in light of what Senator Adler said, if one were to have to instead get a wire-tap on all of the incoming phone calls, that might be a loss of privacy of people who were calling not for victimization reasons.
Senator James asked if Senator Brown had stated there was a limitation in the bill that it could only be used for a prosecution of one of those crimes.
Senator Brown replied there was a limitation as to when that could occur and that the reason it was suggested was because of the need in the prosecution of the case. It did require that the person report the conversation to the law enforcement authorities. She thought it was just assumed that would be its use, and that it be maintained for a certain amount of time. She stated those were not provisions she was adamant about if the committee felt there was no prosecution in which those tapes would be needed they should dispose of or do something else with them. She was amenable to that, as long as the purpose was to get them into court when needed.
Senator James wondered if Senator Brown knew where it said that their use was limited to that. The bill states tapes could not be duplicated except for use by the law enforcement officer or the court. But he wondered if it was reasonably believed that something was a violation of one of those things and it was recorded and nothing illegal was done, was there something somewhere else saying it could not be used.
Senator Brown was referring to section 2 on page 1 at line 12, number 2. What she meant was the communication could not be recorded for the purposes of committing a criminal or tortious act, so that could not then be used.
Senator James asked if Senator Brown was referring to getting someone on the record and then using the recording for extortion.
Senator Brown said that would be a possibility.
Senator James wondered whether the legislature opened that up to 1(a) in the bill and it was reasonably believed that it was, pursuant to NRS 201,255 an obscene phone call, a threatening phone call or if it was not that and a person had some other purpose for it, he asked if Senator Brown knew if there was some other place in the law limiting the use, once the recording was legally obtained. For example, could it be used in a domestic case?
Senator Brown had not considered that possibility or the effects.
Senator McGinness wondered, regarding section 1(b) line 10, which states, "Was the victim of a crime and reasonably believes that the communication will include a confession by the perpetrator of the crime;" if that could pretty much open that up to any instances. He asked if Senator Brown was trying to limit it to the crime of rape or obscene phone calls or perhaps a stalker, or if it was her intention to put it in some of the personal crimes rather than some kind of gambling or crime ring type thing. He wondered if Senator Brown had started out to limit the bill to a certain area.
Senator Brown replied that, in order to be a victim of a crime, if someone was involved in, say a gambling ring, she believed it would be hard to consider them in that category.
Senator McGinness wondered if someone's home was burglarized as part of a burglary ring and they started calling the victim for some reason if this could be used for that purpose as well.
Senator Brown stated she would want it to be used that way. In addition, if a person was the victim of extortion and someone was extorting them over the phone, this could be used as evidence in that instance. She knew that just a general blanket one party tap would be a problem, so she did try to keep it somewhat specific. But she believed any time someone was a victim of a crime and not being unreasonable would be the equivalent to having some probable cause to do this. If good evidence could be obtained about that crime the person was a victim of, she would like to see that.
Senator McGinness referred to the bill at line 1(b) which said "The person: (b) Was the victim of a crime . . .," and wondered about a situation where someone put a bomb in a casino or hotel and then tried to extort. He wondered if the bill would cover that instance as well.
Senator Brown believed that would be more under the communication itself being a crime, because that would be the extortion, or the threat would be the crime itself.
Senator James stated, to follow up on Senator McGinness' question, that an elaborate procedure existed in the cited statutes, NRS 179.410 to 515 by which law enforcement agencies must jump through those hoops to be able to use this as an investigative tool in certain instances, among which are listed kidnapping, extortion, bribery, and destruction of property by explosives. Under S.B. 259 anything would be included if there was a victim. The law enforcement officers would just have to go find the victim, have them record the calls. He was not sure whether this procedure currently in the statutes would even be applicable any more, as essentially the whole thing would be eliminated, referring to NRS 179.460.
Senator Brown stated the only thing that would be different would be the victim would have to be dealt with him or herself. If she understood the statutes correctly, the police could tap a phone between two conspirators.
Senator James agreed that was his understanding.
Senator Titus asked Dennis Neilander, Senior Research Analyst, which of the NRS numbers is the obscene phone call provision.
Mr. Neilander answered it was NRS 201.255, which covered obscene or threatening phone calls.
Senator Titus stated it had been her experience that the law already contains very effective ways of dealing with obscene phone calls with pin registers on telephones, and the police had a system where a person could call them and they would call back. Senator Titus advised that her mother-in-law was getting obscene phone calls, which the family tracked down, the police found the person, sent a squad out to visit the person and that took care of the problem. She was not sure the need existed to do away with that protection of the first amendment when the problem is pretty much under control.
Senator Brown advised she was amenable to the types of amendments if the committee felt something was covered elsewhere, but she really believed there was a hole on the second part at that time.
Senator James believed it was the fourth amendment which provided a reasonable expectation of privacy. He stated the supreme court had said in different cases, sometimes a person had reasonable expectation of privacy and sometimes they did not. He stated he would like to hear from the other lawyers present when they testify how this bill affects the constitutional provisions and so forth.
Senator Brown stated she could not recall the name, but the one supreme court case which seemed to stand out was regarding the man who got an answering machine and starting talking away. She advised that the judge in that case stated the man really had an expectation he was being taped because he did reach a machine. She advised the cases were very limited.
Ben Graham, Lobbyist, Legislative Representative, Nevada District Attorney's Association provided oral testimony. He stated he was asked by Senator Brown to testify on S.B. 259. He stated his history did not go back to 1981, but his history regarding one party consent or anything sounding like wire-tap was very similar to Senator Adler's. Mr. Graham's understanding was that several sessions ago the Attorney General's Office made an attempt to get a decent workable one party consent bill. The Metropolitan Police Department made an effort in the next session, and in 1991 the District Attorney's Association made an effort to get a one party consent bill. He further stated S.B. 259 was being introduced by Senator Brown who had made an attempt to limit it, and he believed that was an admirable position and it would be useful tool. Regarding constitutional protection and constitutional amendments, it seemed incongruous to him that when someone would call his home and threatened him, his wife or his family and he would record the conversation without telling someone, he would be guilty of a felony and the evidence could not be used. However, that was the status of the law in Nevada.
Senator James asked if that was the status of the constitutional law under the fourth amendment.
Mr. Graham answered it was not constitutionally mandated, because there were more states which did have a one party consent than those that did not. He advised that was a jealously guarded, individual right which Nevada had held for many years. There was a move in 1991 simply to reduce that penalty to a lesser penalty, which was rejected by the assembly and never made it to the senate. Mr. Graham advised this was his first experience with the issue in the senate. He believed Senator James' comment about using the provision for other crimes was covered by what is called a derivative evidence rule, on which he was not an expert but he believed it limited the evidence even in an authorized wire-tap to evidence of the crime for which evidence is sought and not of other criminal events discovered. He further stated that as indicated Senator Brown had spoken with John Lukins who actually addressed a similar measure before the assembly in Las Vegas in 1991, and Mr. Graham's organization felt this would be a useful tool. He felt it was a small step into what is really needed, and did not know that this legislature was even willing to even take that step.
Senator Adler stated when he was chief criminal deputy for the Attorney General's Office it came to his attention that there were two murders out of Clark County where there were tapes of this nature which could not be used in evidence. Senator Adler advised as a fact those two murderers are still living happily in Clark County because the tapes could not be used. He stated one of those people was a very successful member of the Clark County community. He felt that was kind of the trade-off or the debate over whether the person's right to privacy to tell everything to someone over a phone, which conversation is being recorded, is more important than finding the murderer or stalker or whoever it may be. Senator Adler stated the legislature had consistently said that right to talk is preeminent over trying to catch the criminal. That disturbed him as a criminal deputy, that the state had experienced some very egregious cases where people had gone free and the recording was almost on the inadvertent side by the person who recorded it, the person not being a law enforcement official.
Mr. Graham agreed there would be many arguments such as unconstitutionality, invasion of right to privacy, subject to being tampered with, altered and abused, and set up by an irate person to trick another person to testify, and so forth. He stated all these reasons would be heard and an editorial would be seen in the Las Vegas newspapers that the legislature was embarking off in that area, but it would be a step in the right direction.
Senator James asked Mr. Graham to assist in explaining the existing law. He assumed the way the law currently read, if a person reasonably believed someone was going to make an obscene call to that person, it would be an obscene call under NRS 201.255. If a person was to hook up a phone with a recording device and tape the conversation, that person would have violated the law in Nevada and committed a felony, simply to try to prove a crime was being committed against that person. He asked if the language was changed as S.B. 259 proposed, and the person reasonably believed the same thing was going to happen, and the conversation was recorded, and the reasonable belief demonstrated, could the person taping the call use that recording in other situations, for example in a civil case?
Mr. Graham did not believe the recording could be used in that way under the intention of S.B. 259. He believed the effort had been made to limit it specifically to the violations set forth in subsection 1(a).
Senator James asked if this law or some other stated this.
Mr. Graham believed there was a provision in the wire-tap provision, but he was not certain. He believed it was contained in the overall law where regular authorized wire-taps were involved, under the derivative evidence rule the law cannot use that.
Senator James assumed no court authorization was needed under S.B. 259.
Mr. Graham agreed that was correct.
Senator James further assumed that under S.B. 259 the recording could be done and as long as it was accomplished in the way provided in the bill it would not violate the other provisions. His concern was if a hole was created by the bill that the recordings could be used in other ways, because they were obtained legally.
Senator Brown commented that if the derivative evidence rule was not applicable to this she had no problem with adding it as an amendment.
Senator James asked if derivative evidence was not a criminal rule.
Mr. Graham believed it was criminal, but believed Senator Brown could include it in civil matters as well.
Senator Brown stated there was also the provision that the recording could not be used for committing a tort.
Senator James replied that the intention was not to commit a tort, but simply to use the one party consent recording legally to gain advantage in a civil case or whatever it may be. Otherwise a person could not use it unless they at least thought they had the reasonable belief.
Senator Brown believed what Senator James was pointing out might require some more specific language in section 3 as to what could then be done with the recording.
Senator James suggested it should say it could only be used in connection with the prosecution of the crime which it was reasonably believed was going to be committed. He further stated a deceptive trade practice was a fairly large area and that nearly any call of a business nature could be recorded under that provision. He asked if "reasonably believed" went in that section, and read from the bill ". . .or is a deceptive trade practice. . .". He assumed that if the person believed the call involved a deceptive trade practice, the recording would be considered legally obtained, which could then be used in a civil suit against the company involved, even though it would not rise to the level of being a crime.
Senator Brown agreed Senator James' point was important and she suggested rather than removing the possible criminal piece of evidence, that this concern be dealt with by adding to section 3, stating the recording may only be used in a criminal prosecution dealing with the crime which was reasonably believed to be connected.
Senator James concurred and stated that was his suggestion. Without passing on the merits of the bill, this was one way to deal with this.
Mr. Graham stated those who had been in the legislature previously had heard the arguments, which were very compelling, regarding this issue. He further stated if there was an appetite to go into that area it would be commendable.
Kevin Kelly, Lobbyist, Nevada Trial Lawyers Association, provided oral testimony and discussed Assembly Bill (A.B.) 142. He stated his organization opposed S.B. 259 for a number of separate reasons. He advised a few weeks ago A.B. 142 was heard both in Carson City and in Las Vegas, and as a compromise it appeared, pursuant to this day's agenda, sexual abuse of a minor had been added in the overall wire-tap provision. He advised the arguments concerning the explosive, which he believed Senator Adler had mentioned, was already covered in NRS 179. He saw the problem with S.B. 259, with all due respect to Senator Brown, as being a wholesale one-party provision. Clearly if the Senate Committee on Judiciary felt this was what they wished to do, and if the assembly and senate as a whole felt this was what they wished to do, Mr. Kelly agreed that action was within their province. He felt the provisions in the bill would be subject to a great amount of abuse. He advised that in 1979, 1980, 1981 and part of 1982, he sat as paternity master and child support master. One of the most common themes when a person was attempting to obtain money from the delinquent father or mother, was that the other spouse was abusing the children. He advised this was repeated so often it lost validity in many cases. He saw S.B. 259 as being a great tool to be used in domestic cases, and noted there was nothing in the bill at the present time which would limit any time of intercepted communication pertaining to civil or domestic matters. His organization had been involved in attempting to assist the assembly and senate with a stalking bill, to obtain a bill which would ease the concerns of many of the elected officials and at the same time maintain the privacy issue Nevada has cherished, and the First Amendment right which is important. He stated there would be many hearings which would be repeated over many days once they reach the floor, but he felt it was premature to throw this proposed bill in at that time, believing it would be covered if that area is pursued. He believed the problem with S.B. 259 as it stood was there was something on the books which covered the serious offenses, those being rape, robbery, extortion, bribery, destruction of public property by explosives, and if A.B. 142 passed sexual assault upon children would be added, all part of the wire-tap intercept provision. He again stated the disposition of S.B. 259 was clearly a policy decision left in the hands of the legislators, but he felt it would open the door to a great amount of abuse.
Senator James read from NRS 48.077: "Except as limited by this section in addition to the matters made admissible under NRS 179.465, the contents of any communication lawfully intercepted under the laws of the United States or of another jurisdiction. . .if the interception took place within that jurisdiction, and any evidence derived from such a communication, are admissible in any action or proceeding in a court or before an administrative body of this state, including without limitation the Nevada gaming commission and the state gaming control board." Senator James reiterated the statute refers to the United States or any other jurisdiction, which he assumed meant if a law is changed, this type of evidence would be dealt with in the same way. He supposed Nevada would be considered another jurisdiction. He asked if this would not pretty much open it up.
Mr. Kelly agreed it would indeed open it up. He stated NRS 48 provided the allowance for the admissability and if S.B. 259 were to pass, it would be a lawful intercept which could be used in any civil proceeding.
Senator James added a person would only need to have the victim.
Mr. Kelly replied the victim was only under section 2(1)(b). He stated section 2(1)(a) indicated whether the person had the annoying or molesting phone call under NRS 201.255, as well as officially NRS 598 dealt primarily with the telemarketing.
Senator James assumed those were just two crimes, the obscene call and deceptive trade practices, something which normally would arise on the phone if dealing with telephone solicitation of a wrongful type. He assumed where Mr. Kelly was saying the bill opened the law up to all eventualities was under section b, where the victim must be included. He assumed Senator Brown's argument was that this was a different situation. A person's house would not be entered, their phone tapped and all conversations they might have recorded, but the only conversation discussed would be a case in which a crime had been committed against a person and they reasonably believe the caller may confess to the crime. Therefore, the person gets on the phone with the alleged perpetrator and if he or she confesses, even the supreme court's interpretation of the constitution does not prohibit that type of thing.
Mr. Kelly responded the supreme court did not prohibit it, however, he believed one of the problems was the wholly speculative possibility that one might reasonably believe someone was going to make an incriminating statement.
Senator James asked if, as suggested by Senator Brown, a change in the bill would elevate that problem. He reiterated the bill would read that not only would the belief be required, but in addition something in fact would have to be said, amounting to a confession, and that conversation could only be used at a criminal proceeding for that crime. He suggested the evidentiary rule be limited so that the evidence could not come in any other way. This would protect people's reasonable expectation of privacy in their conversations. Only when they call someone against whom they had committed a crime and confess to that crime, was that conversation allowed into evidence in a criminal proceeding.
Mr. Kelly stated his only comment was that might lead itself to allow an individual to feel they could record a conversation, leading a person down the path, thinking they were going to start saying something which may be incriminating so the machine would be put on. It seemed to him that if S.B. 259 were passed a person would be allowed to tape all conversations, however they would not keep them nor try to use them unless they had some type of statement in that conversation in which the caller admitted to a crime. That to him leads to potential entrapment, and he believed it opened the doors to some serious consequences.
Senator James deferred to Mr. Kelly regarding criminal law expertise, but stated the object was a crime which had already been committed. If someone had been raped and the perpetrator calls the victim and confesses the rape, it seemed to him in that situation if the victim said everything possible in the conversation to get the person to confess, it would not be entrapment, but a private citizen trying to get someone to confess a crime. He was not sure if there was a custodial confession problem or a Miranda situation.
Mr. Kelly stated he wished he could acknowledge there were constitutional problems, but there were none. He agreed with Mr. Graham in that there was no custodial investigation or situation. However, he believed if the committee was anxious to do something in this area and were thinking of rape specifically, they could certainly amend NRS 179.460 to add that as an additional offense. He believed the way S.B. 259 was written opened the door to some serious areas, and offered that as a suggestion.
Senator Adler stated all this evidence would be admissible in federal court, as had been the case for some 30 or 40 years, therefore the question was as to whether the state of Nevada wished to adopt something similar to the federal standard.
Mr. Kelly advised Senator Adler that in the senator's absence he had made that comment and indicated it was clearly a matter within the province of the Nevada legislature. He advised there were no constitutional problems and the federal court in fact had a one-party system. He stated what was seen in a lot of areas in criminal cases, particularly drug cases, a task force was formed in Las Vegas involving various local and federal agencies so that when a case such as one involving 0.5 gram of a controlled substance now pending in federal court in Clark County, the federal government was used. The Drug Enforcement Agency (DEA) was asked to help in the investigation, and a one-party wire tap was affected. Mr. Kelly stated clearly, the state of Nevada had a tradition of privacy and had cherished that right. If that was going to be weakened to the point where the provisions of S.B. 259 were all right, he again stated that was entirely up to the ladies and gentleman of the Senate Committee on Judiciary and the legislature in general.
Senator Adler agreed this would be a major policy decision. He stated he had always thought one of the reasons Clark County had so many federal agents was because the state did not have the ability to do some of the things mentioned by Mr. Kelly.
Mr. Kelly disagreed and said he believed the Nevada Gaming Control Board, in a couple of cases he had, were doing a tremendous job. He stated the Nevada constitution was, far more protective than the federal constitution about privacy. He further affirmed the legislative bodies for many sessions had maintained the protection of the right of privacy, but this could change if the legislature decided to change.
Senator Titus asked how often did it happen that a rapist called up a victim the next day to chat.
Mr. Kelly replied he had been practicing law for 15 years and had not ever had a case in which this happened. He testified in the assembly on A.B. 142 which had been amended to what he believed was a reasonable degree. He knew that circumstances occurred in extortion cases and potentially in bribery cases. He believed in incest cases it would be open for entrapment, but in a typical sexual assault case he did not see the victim receiving a call from their assailant.
Senator Adler stated, pursuant to his experience as an attorney, frequently in domestic violence there was often follow up phone calls and threats, such as "if you go to the police I'm going to get you" and so forth.
Mr. Kelly responded that was the area most prone, in his opinion, to the abuse.
Senator Adler agreed that was probably true, but was also the area in which it happened the most.
Senator Titus referred to scenarios to where once the tape was made in a criminal case or a lawsuit or something similar, if it was legal to make the tape, could it not be used in a television commercial or however the person wanted to use it.
Mr. Kelly did not know about television, he would have to look at NRS Chapter 48 regarding the admissability of evidence, but stated that chapter allowed any legally, lawfully intercepted communication to be used in a civil proceeding.
Senator James stated Senator Brown testified to a rapist calling up to chat. He believed if such situation occurred, subsequent contact could occur. He felt the perpetrator could become worried about getting turned in and, having the victim's identification, could make a threat or something similar. Again, if it was not a big problem and it would not be something which would be a pervasive thing in society, then not that big of a change would be made by the bill. He stated perhaps it was a small step, as Mr. Graham said. Senator James was as concerned as anyone that the legislature not arm the government to get any more big-brotherish and get into personal lives, tap phone calls and surreptitiously record private conversations. He believed since the supreme court had not seen fit to protect that constitutionally, Nevada had done something admirable in the areas where it does protect things. He asked if this was not a fairly limited situation, not involving the government, not necessitating law enforcement activity, but involving the victim of a crime, either one being committed right there on the telephone or one which had been committed and the call was reasonably believed to be a perpetration. He asked if the limiting language that it could only be used in the prosecution for that crime, had not the legislature dealt with the iron heel of government getting into private person's lives. He stated tapes still could not be made unless all the provisions of NRS 179 were followed.
Mr. Kelly replied the term "victim of a crime" could be the victim of a misdemeanor crime, and that crime, as defined in Nevada statutes was fairly open. He believed if Senator Brown's concern was to allow for the interception of a rape victim, the easiest way to do that was to incorporate it in NRS 179.460, adding that offense to the other seven presently on the books.
Senator James replied that if that was done, then the victim would have to get the government to do the interception. He believed in some of those cases, women were concerned about even going into the judicial system before they felt they had proof, because of what they were going to have to go through in trying to explain what had happened.
Mr. Kelly replied as a compromise and at the same time protecting the woman in giving her the ammunition to bring her perpetrator before the court, it seemed to him a far better way would be to insert in NRS 179.460 that of sexual assault be listed as one of the enumerated offenses. He stated this would give a sense of maintaining Nevada's cherished right of privacy, would avoid the potential of going through the red tape. He had experienced waiting for the Las Vegas Metropolitan Police Department (Metro) to get the affidavit for the intercept from a district court judge, and stated it took them as long as it took to fill in the blanks in a search warrant. He stated they get a call, believe it valid, fill out the affidavit and get it to the victim in short order, the same day and in some cases the same morning, they can start the intercept. He stated additionally, NRS 179 does not require a written request, but probably could be done orally as is allowed under the fourth amendment concerning search warrants. He did not believe it was as bad as some people maintain it to be, but in fact was rather easy to get a district court judge to listen and to sign the authorization, which they do fairly freely.
Senator McGinness stated the Senate Committee on Judiciary had heard testimony on the stalking bills in Las Vegas during which one lady testified she was stalked for one year before she even told her husband. He believed that shows there was some reluctance to go to law enforcement, and if at some time in that year, that lady happened to be talking to the stalker on the phone and thought to turn on the recorder, that would give her an opportunity. He asked if there had been abuses on the federal level because of this, for example one glaring instance in which a person's rights had been abused.
Mr. Kelly replied in the federal system the standard was a bit different. He stated when committee hearings were heard at the assembly level there was a woman who was a victim of abuse whose last name was Smith. Ms. Smith and Dr. Rhoads both testified in that matter. In one of the points Dr. Rhoads made he talked about the Vietnam delayed stress syndrome, the point being there was currently a great deal of public education beginning in the grade school, seen on television, during the Super Bowl, and other public education regarding the various resources available to a person who is abused. He asserted this applies whether the victim is a wife or a single woman. He stated there was far more education currently than was available 10 or 15 years ago and it seemed to him the problems now rising to the surface were because this education was available. He presumed in the situation of Ms. Smith, the woman who testified, she was an older woman and not a 17 or 18 year old.
Senator McGinness stated she was young and the perpetrator was an in-law.
Mr. Kelly continued there was public education in that area which had not been available in the past.
Paula Treat, Lobbyist, Police Officers Research Association of Nevada, provided oral testimony. Ms. Treat advised her organization was comprised of approximately 900 northern Nevada police officers. She had members of her organization look at S.B. 259, and they had some specific questions, as they are in favor of the bill. One question had to do with something which had actually happened to Ms. Treat many times, which was getting strange calls with threats and sexual threats. Having her answering machine connected to her phone she could just push a button and get the conversation on tape. She was then told afterward that she should not be doing that and it was inadmissable. The members of her organization were in a dilemma concerning someone having a tape on which a voice trace could be done, should someone happen post a threat on the phone, it could not be used. She was informed of this by Metro as well as the members of her organization in northern Nevada.
Senator James affirmed Mr. Graham's testimony stating it was a felony to use a tape for that purpose.
Ms. Treat reaffirmed her organization wholeheartedly supported S.B. 259. They believed with the problems which existed and the kinds of calls which are going through, with the devices which are connected to the phones the members of her organization had found many problems they could have actually had help with. She advised in some cases people making obscene calls actually leave their phone numbers to call them back, and there was nothing the victim could do.
Senator McGinness asked about intercepting a cellular phone, and stated it was legal to intercept those.
Senator Adler believed if a person heard a crime being committed over a cellular phone, the conversation could not be recorded.
Senator McGinness wondered why that could not be done.
Senator Adler stated he believed that was under a different rule.
Mr. Kelly stated what goes over the public airways belongs to the public, and if a person decided to record that he was not sure it would be a different standard that had been set up for cellular phones.
Senator Adler stated the way he understand the law was that a person could testify they heard that conversation over a cellular phone, but the conversation could not be recorded and used.
Mr. Kelly stated as he read it, the statute dealt with wire communication, and wire was still the traditional telephone.
Senator Adler mentioned cellular phone transmittals are accomplished by microwaves.
Mr. Kelly replied that would be the defense he would use, however a person could be on a speaker phone in their office and if an individual was making threatening phone calls a person wanted to record, recording from a speaker by means of a tape recorder on a desk would not be violation of the statute as he understands it. He believed the statute applied strictly to intercepting the wire, having a hook-up to the wire itself.
Senator James stated he was not sure his question had been answered. He recognized the policy decision the state of Nevada had made in adopting the law to prohibit this type of practice, however he was not sure that what Senator Brown had proposed, if limited properly, was such a great intrusion on the existing law. He invited anyone to respond to the question why the limited ability of a victim of a crime, even limited to the number and types of crimes, to record a conversation under those limited circumstances and then use the recording only in the prosecution, would be a great intrusion on anyone's expectation of privacy.
Mr. Kelly responded he did not have the specific amendments which Senator Brown or the committee may be contemplating. As he saw it, the term "victim" itself was open to a great deal of interpretation, as was "crime," whether made into gradations between misdemeanor, gross misdemeanor or felony, crimes of passion, crimes of violence, theft related crimes. He believed those were some of the things the committee might want to consider in determining to what extent the bill would be narrowed or restricted. He stated once the amendment was before the committee, he or his associates might be better able to offer whatever insight the committee might seek.
Senator James wondered if Senator Brown was amenable to having the committee consider a limitation that the proposal could only be used for prosecution of the crime and extend some contemplation as to the types of crimes, for example rape, certainly a violent crime. He asked Senator Brown if those limitations were placed on the bill would it still be something she would support.
Senator Brown believed the limitation that the interception could only be used in a prosecution of the crime in question was, from what she had heard, a necessity, and something she had not contemplated. In terms of the other limitations mentioned, in her personal view she would prefer to see anyone who was the victim of any type of crime be able to use this, but if the committee chose to limit it very specifically, she would still prefer to see something go through rather than nothing at all.
Senator Adler stated at one time he read the entire history of wire-tap in the state of Nevada, including all committee minutes, as he had a preoccupation with the issue over the years. He was not sure how strongly he supported it anymore, but originally, the issue began with a bill from Senator Hecht. Senator Adler advised one of the reasons it was so restrictive on single party wire-tap was in the early 1970s a person actually had to affix a device to the phone in order to get a one party intercept. At the time Senator Hickey and other were objecting to this in the early 1980s, home answering machines were not in wide use, and what they were talking about when they said they did not want people having one party intercept, was putting a device into the phone which was not already there to intercept. Now, in the 1990s, there are numerous home answering machines, therefore, what was discussed back then was not exactly what was being discussed here regarding intercept capability. Senator Adler recalled in the early 1980s when prosecutors testified on the bill, what was being talked about was a device being affixed to the phone for the purpose of intercepting conversations without a warrant. Currently, an almost different situation was being discussed, that is, someone being contacted and pushing a button. He believed the victim here was not consciously setting up the recording to the same extent discussed in the 1970s or 1980s. There had been an evolution in technology which had changed the debate. He remembered appearing for Richard Bryan before a senate committee, whose concern, he believed, was to record as a deliberate action by the person to avoid going to get a warrant, which was the intrusion. He stated what was being discussed currently was a different debate, as currently nearly every household had a recording device on their telephone.
Senator Titus believed basically it was a philosophical question regarding whether people wanted more invasion of their privacy than they already had, or not. She stated all the scenarios had focused on the criminals, however the law would not only affect the criminals, but everyone. She believed there was no one who had not had a telephone conversation they probably would not want to have taped and broadcast somewhere. She stated there were a lot of things people did which were crimes on the books whether they like it or not, or admit it or not. Senator Titus stated there was a tendency in the Senate Committee on Judiciary to take bad bills and try to make them more palatable, and she believed the committee would be better off killing bad bills and move on to make good policy with good bills which are needed. She did not see S.B. 269 as being needed.
Senator Hickey testified that he believed if the tradition was looked at, about which Senator Titus had pushed one of the hot buttons, the concept was, as he understood it, that there had to be a check with police powers. He stated the problem in Nevada had been the state had a large federal police force and a substantial police force throughout the community because of gaming and other reasons. He advised there was a bill not too long before dealing with wire tapping only, and that bill was not passed either because of the check and balance which had been built in with the requirement to obtain a warrant. He heard Mr. Kelly state there was easy access to the courts, and he agreed. The judges are available to act if there was a criminal act or the threat of a criminal act. Senator Hickey stated it had always been the legislature's concern that private citizens were best protected by the third party. He agreed it was a philosophical decision, a determination of whether to protect the present system or change it, and allow easy access by the police force to decide what a crime is or is not. He re-emphasized, police force can make that decision. He stated that was why they generally never looked at this favorably, up to this point.
Mr. Kelly added if it was the committee's intention to amend S.B. 259 in some fashion more palatable to the committee members, he would suggest the committee also look at line 11 and the term "confession." He advised that was a term of art within the criminal field. He stated the three words he saw as being terms of specific meaning were "confession," "crime" and "victims." He stated if the committee was attempting to do something with the bill, because it was believed philosophically it was the appropriate thing to do, he believed those three words should be looked at as they had very specific meanings. They would be potentially challengeable unless further defined. He advised if a person did not say "I raped you," for example, but made what would be incriminating statements, not amounting to a confession, potentially that good evidence, if you will, might be inadmissable as well.
Senator James responded "victim" was defined elsewhere in the statutes under victim protection as being a fairly limited group of people hurt by crime.
Senator Jacobsen asked if the judge did not still have the right to decide what was admissible and what was not. He further asked if the judge could not deny the conversation by saying it was not admissible, for example the telephone call being somewhat fictitious and the person calling could not be seen.
Mr. Kelly answered the judge did have total discretion as to probably the majority of all evidence. He stated the problem if the state or the government were to propose the use of this intercepted communication, the judge would make a decision on whether the requirements of the statute had or had not been met and whether he intended to allow it in as evidence.
Senator James stated he disagreed the committee had been trying to make good bills out of bad ones. He advised the bills passed out of the Senate Committee on Judiciary had been amended in a small amount, and those had not received substantial amendments, but only those necessary by reason of the testimony brought before the committee. He stated the present question was whether to recommend a change which would allow a limited wire recording for telephone calls or other oral conversations. He further stated if the language in S.B. 259 was too broad allowing it to be used in something other than the criminal prosecution, that was one way to suggest plugging it, and if it should not be every crime, that was a way to suggest plugging it. Senator James stated he had not heard where this was going to really open up the flood gates and therefore he would like to request something be drafted to attempt to address those things discussed and then consider the bill with the limitations which he articulated. He stated he would like to see it limited in the types of crimes dealt with to possibly ones in need of this type of proof. He saw this as the value of the proposed legislation. He further stated if it was difficult to prove the crime, for example stalking, without this type of evidence, the evidence can be obtained, people's expectations of privacy are protected, and there is no law enforcement activity because it was a victim taping it, Senator James saw it as valuable. He stated he had not seen Mr. Kelly talk about the evidentiary protections in the bill, that the tape was kept sequestered, and not altered or duplicated for other purposes. However, he stated if Mr. Kelly was satisfied with those protections, and the bill protected the justice system from the evidentiary standpoint, he would like to see amendments submitted to the committee for its consideration.
Mr. Kelly affirmed Senator James' statements were correct.
Senator James advised he had not made a decision on the bill, but felt it was worthy of further consideration.
Confirming there was not further testimony on S.B. 259, Senator James closed the hearing.
Senator James opened the hearing on Assembly Bill (A.B.) 142.
ASSEMBLY BILL 142: Expands cases in which interception of wire or oral communications may be authorized. (BDR 14-1031)
Senator James advised this bill was a limited addition to the existing law, but is a different issue as it deals with law enforcement, rather than the victim of a crime, doing the wire-tapping.
Kevin Kelly provided oral testimony. He stated this bill was a compromise to the bill originally enacted before A.B. 142, and with the amendment his organization had no opposition.
Senator James confirmed there was no one else present to give testimony, closed the hearing on A.B. 142 and advised in the interest of consistency, he would hold the bill to be considered in a work session at the same time as S.B. 259.
Senator James opened the hearing on Assembly Bill (A.B.) 58.
ASSEMBLY BILL 58: Expands aggravated circumstances under which death penalty may be imposed. (BDR 15-594)
Mr. Ben Graham provided oral testimony. He stated A.B. 58, as amended, created an additional aggravating circumstance which a jury during the penalty phase may consider for a death penalty. He advised, the statutes dealing with the death penalty were found to be constitutional not too many years ago and the court set up some guidelines after a case in Georgia. He continued, basically what the court said if there existed a first degree intentional killing, that was the first requirement. A death penalty may be considered in a separate hearing provided the state can prove beyond a reasonable doubt certain aggravating circumstances, and a jury must find aggravating circumstances before any death penalty may be handed down. To avoid a death penalty, the jury very simply has to say they find the death penalty does not apply, that there are mitigating factors, and do not have to enumerate them. To use the death penalty, they have to find aggravating circumstance not outweighed by any mitigating circumstance. Mr. Graham continued, regarding A.B. 58, aggravating circumstances are listed as lethal force, to avoid lawful arrest, monetary gain, protection for fireman and policemen, murder involving torture, murder committed upon more than one person at random without apparent motive. Mr. Graham advised one aggravating circumstance was listed endangering more than one person. A number of states had 19, 20 or 25 aggravating circumstances, where Nevada had a relatively small number. Mr. Graham related a judge, who really is the driving force behind this, became aware of a case were an individual went into a house and killed a child in a bedroom, then later killed another person in another room and a killed another person in another room, a total of three murders. Under Nevada's statutory scheme, any one of those three killings could not be used in relation to another in consideration for the death penalty. Mr. Graham continued, saying the judge, and the people involved with this felt if someone killed one or more persons in a series of events at about the same time, once found guilty of killing one person, the jury should then be able to consider that as an aggravating circumstance to consider the death penalty. Mr. Graham stated this was really what A.B. 58 was asking the legislature to do. Under present law people may do multiple murders and the most they could face under those circumstances was life in prison without the possibility of parole. He stated the legislature was being asked to include successive-type killing as an aggravating circumstance.
David Sarnowski, Chief of the Criminal Justice Division in the Nevada Attorney General's office provided oral testimony. He stated his department was engaged in death penalty litigation primarily in the federal court system although his department does litigate in the state courts as well. He advised his department often met certain arguments by very capable defense counsel trying to extricate their clients from very difficult circumstances. Mr. Sarnowski wished to show there was some difficulty. He spoke of subsection 3 of A.B. 58 indicating that an aggravating circumstances was committed if the state proved beyond a reasonable doubt the murder was committed by a person who knowingly created a great risk of death to more than person by means of a weapon, device or course of action which would normally be hazardous to the lives to more than one person. He continued, as recently as 1 month before, his department was met with the argument by counsel for a defendant, who had shot and killed one victim and shot and seriously wounded, but not killed a second victim in the same apartment, that her client was not subject to that particular aggravating circumstance of killing a person in a series of murders because he did not blow the apartment up, nor set the apartment on fire. He stated the defense bar had taken the position that short of use of a mass casualty producing device, that particular aggravating circumstance did not apply. He further stated the issue is yet unresolved in the federal courts, as the higher court had selectively concluded the use of a firearm in close proximity to more than one person did create a substantial hazard to more than one person. However, in the instance Mr. Graham talked about, the state was left to hang its case on subsection 8, that the murder in that particular case involved torture, depravity of mind or mutilation. Mr. Sarnowski stated certainly it was depraved in the common sense or general meaning of the term, however the federal courts, which govern Nevada to some extent when they review the federal constitutionality of convictions and sentences, had essentially emasculated the use of depravity of mind as an aggravating circumstance. He advised the courts had found it was, at least as applied in one case which was still being litigated by him, that it was unconstitutional. The Nevada court had said that if depravity was present, either torture or mutilation also had to be present, which were more objectively definable. However, he stated if he was a prosecutor, and all he had was whether the vague term depravity was enough to put the person on death row, he would have a real problem. He knew the case of which Mr. Graham spoke, and the prosecutor in that case did indeed have a real problem, and yet there were bodies littering one apartment, and he believed the weapon of choice was either a hammer or a knife. He advised no one thought of a hammer as a device which would normally be hazardous to someone's health. He would call this a commonly used aggravator, and in common existence in many states which had the death penalty, particularly California where, for some reason, they had a large number of murderers who do not rape, rob, and so forth. He stated those murders were done in a family or domestic disturbance setting which gets totally out of hand.
Senator James asked Mr. Graham what was amended in A.B. 58.
Mr. Graham answered his organization had initially asked for an aggravated circumstance of killing a child under the age of 14 years, and then offered the present form of section 10 as an additional amendment to that bill. He advised the Assembly Committee on Judiciary was not inclined to make killing of a child an aggravating circumstance, but was willing to add section 10 as an aggravating circumstance.
Senator James asked Mr. Graham to confirm that a person could kill a child in Nevada and assuming the person did not come within one of the other aggravating circumstances, could not receive the death penalty.
Mr. Graham confirmed that was correct. He stated he was tempted to play upon the sentiment and ask that the bill be amended to include a child under the age of 14, but he would not ask the Senate Committee on Judiciary to do that because there were strong arguments made against it in the assembly and he felt under the circumstances A.B. 58 was a good measure. He felt that subsection 10 definitely needed to be an aggravating circumstance, and rather than jeopardize the bill he would like to leave it intact.
Senator Jacobsen stated he had a bit of a hard time rationalizing Mr. Graham's decision, and wondered if that was unanimous amongst his group.
Mr. Graham replied it was a decision his organization made in a quaker fashion, that is there was really no dissent to the decision. He stated there was very strong opposition in the assembly to include that initial aggravating circumstance, and he did not feel if it was brought back it would get through. He further stated that was not to say there was not something which could be done with S.B. 192, about which Senator James and the committee had heard testimony in Las Vegas.
Senator James stated he would further review S.B. 192.
Senator James confirmed there was no further testimony, and closed the hearing on A.B. 58. He advised the committee would work on the four bills discussed at this meeting at a noticed work session.
There being no further business to bring before the committee, the meeting was adjourned at 3:50 p.m.
SUBMITTED:
Sherry Nesbitt,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
??
Senate Committee on Judiciary
March 8, 1993
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