MINUTES OF THE

      SENATE COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      March 15, 1993

 

 

 

The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 2:00 p.m., on Monday, March 15, 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

Senator Ernest E. Adler

 

STAFF MEMBERS PRESENT:

 

Dennis Neilander, Senior Research Analyst

Sherry Nesbitt, Committee Secretary

 

OTHERS PRESENT:

 

Ben Graham, Lobbyist, Legislative Representative, Nevada District Attorney's Association

Frank Barker, Lobbyist, Las Vegas Metropolitan Police Department

Pat Manning, Representing the Nevada Department of Motor          Vehicles and Public Safety

Bob Bayer, Officer, Nevada Department of Parole and Probation

Pete English, Officer, Nevada Department of Parole and Probation

 

*  Committee members only present for a portion of the             meeting.  This is noted in the body of the minutes.

 

Senator James opened the hearing on Assembly Bill (A.B.) 59.

 

ASSEMBLY BILL 59:       Revises definition of "robbery" to include theft in which force or fear is used as means of escape.  (BDR 15-595)

 

Ben Graham, Lobbyist, Legislature Representative, Nevada District Attorney's Association provided oral testimony.  Mr. Graham opened his testimony with a review of criminal law terminology.  A copy of this testimony is attached as Exhibit C.

 

Senator Titus entered the committee meeting at 2:20 p.m.

 

Mr. Graham began his testimony on A.B. 59, and asked the committee to look at the amended version.  His stated the purpose of the bill was to add to the Nevada statutes' definition of "robbery," an occurrence in which property was taken by means of force or fear of force.  He advised the force or fear thereof would have to happen contemporaneously with the occurrence.  He advised the bill was requested due to incidents which had become frequent in Las Vegas, where perpetrators enter a store, exit with clothing or other merchandise on their persons, and leave behind a person who threatens the store clerk with a weapon.

 

Senator James referred to the subject statute's language which said, " . . .force or fear of force is used to obtain or retain . . ."  He asked if this language did not cover the fact situation presented by Mr. Graham.

 

Mr. Graham answered it would depend on the way the police report was written.  He advised if the report was written with the standing statute in mind, there was a possibility it would suffice.  He stated, however, if the court ruled the taking had already occurred, the current language would not suffice. 

 

Senator James asked if the term "resists apprehension," used in A.B. 59 was too broad.

 

Mr. Graham replied not as long as it was reasonably contemporaneous with the taking, which would be a question of fact.

 

Senator James stated the term "reasonably contemporaneous"  means "at the same time."

 

Mr. Graham answered it would prevent the argument that a parking lot, for example, would be contemporaneous with the taking, and was used in the bill draft to limit the situation.

 

Senator James believed "reasonably contemporaneous" seemed a contradiction in terms.

 

Mr. Graham advised there had been opposition to saying "contemporaneous with" because "reasonably" was more limiting.

 

 

Senator James asked for and received confirmation that Mr. Graham did not have a problem with the term. 

 

Senator Adler asked if the offense would be considered robbery if a perpetrator took the merchandise, was running from the store and assaulted a person entering the store.

 

Mr. Graham replied, that would only apply if the person entering was the clerk.  The act must facilitate the taking of the property.

 

Senator Adler stated "force" meant any action which would facilitate the escape.

 

Mr. Graham stated the scenario Senator Adler described had not been anticipated by his organization. 

 

Senator James compared the phrasing problem to that of the language of the felony murder rule, which previously contained language regarding death occurring during the commission of a felony.  He recalled many cases in which circumstances went far afield of the meaning.  He stated that apprehension would most frequently occur when law enforcement became involved.  He was concerned A.B. 59 would be interpreted as meaning "reasonably contemporaneous" also included "resist apprehension." 

 

Senator James related other instances in which the court had imposed judicial constructs on broad subjects and phrases, and stated he would prefer to avoid that possibility by structuring the terminology more specifically.

 

Senator Adler asserted, "contemporaneous" meant to happen at the same time, and did not see the point of adding "reasonably."

 

Mr. Graham advised an effort was made by interested parties to limit the language of the bill, and it was believed "reasonably" was more limiting than simply "contemporaneous."

 

Senator Adler suggested, instead, "soon after the taking,"  "immediately after," "contemporaneous with," or "shortly thereafter."

 

Mr. Graham stated he would work on the language, and report back to the committee, and would keep in mind that larceny and resisting arrest were two separate crimes, as Senator James advised.

 

Senator Jacobsen stated "resists apprehension" bothered him because an innocent bystander could be caught in a robbery, be mistaken for one of the perpetrators, and become an accessory to the crime. 

 

Mr. Graham assured Senator Jacobsen that would not occur unless the person was holding a weapon, or leaving the establishment.

 

Senator James confirmed there was no further testimony, and closed the hearing on A.B. 59.

 

The hearing was opened on Assembly Bill (A.B.) 62.

 

ASSEMBLY BILL 62:       Requires convicted person applying or petitioning to have his civil rights restored or criminal record sealed to submit certain information with application or petition.  (BDR 14-590)

 

Mr. Graham explained the circumstances surrounding commission of a misdemeanor, gross misdemeanor and a felony and, after a period of time, the requirements of a petition to have the record sealed.  He advised A.B. 62 would require the person requesting the record be sealed to provide a certified copy of their record to the record-keeping authority.  He stated the purpose was to advise the parties concerned of what portions of the record the person wants sealed, thereby making the court record complete. 

 

Mr. Graham replied, in response to Senator Titus' question, the cost to seal a record was approximately $130, not including attorneys fees, and $10 to $15 was charged to provide a certified copy of the record. 

 

Mr. Graham further assured Senator Titus the department would change the instructions regarding the filing to reflect the provisions of A.B. 62.

 

Senator James confirmed there was no further testimony, and closed the hearing on A.B. 62.

 

The hearing was opened on Assembly Bill (A.B.) 63.

 

ASSEMBLY BILL 63:       Requires separate penalty hearing in all criminal cases which result in conviction of defendant for murder of first degree.  (BDR 14-589)

 

Mr. Graham described the circumstances surrounding a conviction for first degree murder and the sentencing alternatives therefore.  He advised that a prosecutor was barred from describing the character and criminal history of the accused in any but the sentencing hearing, and then only if the death penalty was requested.  He stated A.B. 63 provided the entitlement of the jury to hear evidence, after the guilt phase, to determine the penalty.  He further stated the bill provided a hearing would be held unless the defense and prosecuting attorneys determined in advance that a separate hearing was needed. 

 

Senator Adler asked what would occur if a defendant plead guilty to murder and the prosection agreed the death penalty would not be obtained.

 

Mr. Graham answered an agreement not to have a hearing could be entered into upon agreement of all concerned.

 

Senator Adler asked the result if the prosecutor wanted a hearing.

 

Mr. Graham replied the hearing would be before a three judge panel to decide a sentence of life, or life without parole.

 

Senator James asked what evidence was allowed at the penalty hearing.

 

Mr. Graham answered evidence allowed would include matters  prejudicial in the guilt phase.

 

Senator James advised the reason the statutes articulated the list of aggravating circumstances was to provide constitutional reasons for recommending the death penalty.  He asked if the assumption was that this list would also apply to a sentence of life with or without parole.

 

Mr. Graham believed it would be the same sort of things.

 

Senator Adler asked if a person committed a second murder, could evidence of the first murder or other crimes such as assault and battery be introduced to encourage a sentence of life without parole.

 

Mr. Graham affirmed that could be done.

 

Senator Titus asked how a sentence of life with or without parole would currently be decided.

 

Mr. Graham replied the decision would be made from evidence heard at the trial. 

 

In response to Senator Jacobsen's request, Mr. Graham explained the sequence of trial and penalty hearings, and the evidence necessary to convict and sentence a person of various charges.

 

In response to Senator Jacobsen's question, Mr. Graham affirmed in most instances, the trial jury would be involved in the sentencing hearing.

 

Senator James advised that currently in the Nevada statutes, criteria for the death penalty are disallowed at trial but are allowed in a hearing for the death penalty.

 

Senator Adler believed it was a waste of money, in the case of a plea bargain or a judge trial involving a guilty plea, to convene a three judge panel to put on the evidence.  His reason was the sentencing judge, in the sentencing hearing would hear the evidence.

 

Mr. Graham did not believe that scenario was anticipated, and added the bill proposed to amend the mandatory hearing on a death penalty case.  He advised he would explore this issue and possibly change the language.

 

Senator Jacobsen asked if any of the criteria in A.B. 63 could be used to request an appeal.

 

 

Mr. Graham replied that was possible, as was nearly anything in the law.  He added however, he did not believe the provisions of the bill would not add anything significant to that possibility.

 

Senator James asked for and received confirmation that the hearing would not be limited to aggravating circumstances. 

 

Senator James confirmed there was no further testimony and closed the hearing on A.B. 63.  He advised A.B. 59 and A.B. 63 would be taken up in an upcoming committee work session.

 

Senator James convened a work session for A.B. 62, stating he believed it was fairly straight forward.

 

            SENATOR SHAFFER MOVED TO DO PASS A.B. 62.

 

            SENATOR ADLER SECONDED THE MOTION.

 

            THE MOTION CARRIED UNANIMOUSLY.

 

Senator James confirmed there was no further business to come before the committee.  He adjourned the meeting at 3:05 p.m.

 

 

 

 

 

            RESPECTFULLY SUBMITTED:

 

 

 

                                     

            Sherry Nesbitt,

            Committee Secretary

 

 

 

APPROVED BY:

 

 

 

 

                                

Senator Mark A. James, Chairman

 

 

DATE:                           

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Senate Committee on Judiciary

March 15, 1993

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