The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:40 a.m., on Friday, February 5, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Mark A. James, Chairman

Senator Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

STAFF MEMBERS PRESENT:

Janice McClure, Committee Secretary

OTHERS PRESENT:

Glen Whorton, Chief, Classification/Planning, Department of Prisons

Chairman James opened the hearing on Senate Bill (S.B.) 63.

SENATE BILL 63: Provides additional penalty for murder or attempted murder of person who is 65 years of age or older. (BDR 15-723)

Richard Gammick, District Attorney, Washoe County, stated that normally when murder cases involve people over age 65, the deadly weapon enhancement is applied. However, last year the Washoe County District Attorney’s Office had a case that did not involve a deadly weapon. He pointed out that this brought attention to the fact that there was an oversight in Nevada Revised Statutes (NRS) 193.167 with regard to murder or attempted murder of a person who is 65 years of age or older. The attempted murder enhancement will increase the penalty from a maximum of 20 years in Nevada State Prison to a maximum of 40 years. The murder enhancement will give life with or life without parole as a double enhancement.

Chairman James inquired of Mr. Gammick as to when NRS 193.167 was passed. Mr. Gammick replied that to the best of his recollection this enhancement came into effect in the early 1980s.

Chairman James inquired why there is an October 1, 1999 cut-off date. Brad Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau, responded that is the standard non-retroactivity clause. Usually that is worded "the amendatory provisions of this act apply to offenses that are committed after the effective date."

Chairman James inquired why the bill did not state "upon passage and approval." Mr. Wilkinson stated that could be done.

Chairman James stated that this bill may go through the process fairly quickly and be signed by the Governor within a short period of time, as he does not see anybody challenging it.

Senator Wiener inquired of Mr. Gammick whether other states have these enhancement penalties for murder attempts on persons over 65 years of age. Mr. Gammick responded he did not know, but Nevada has had these enhancement provisions since at least 1982.

Chairman James stated he believed this statute may have been amended in 1993. Mr. Gammick said he believed it was the property crimes that were added early on. Senator Care pointed out that the age enhancement issue has been ruled on already and is constitutional.

Senator Wiener inquired if Nevada has enhancements for persons under the age of 14 years or any kind of provisions for younger people. Mr. Gammick stated he did not believe Nevada has any other specific enhancements such as NRS 193.167, but Nevada has many laws that deal with people who victimize children. He said those laws have been toughened up considerably to include that if a child is murdered, that is an aggravator now for the death penalty.

Chairman James inquired if the fiscal note on S.B. 63 is the same as usual on this type of bill.

Mr. Gammick responded that normally murder cases involve the enhancement of a deadly weapon. This bill adds the provisions of murder and attempted murder under the age enhancement for those few cases that do not involve a deadly weapon. He pointed out if the district attorney charges deadly weapon and age because the facts fit, at the time of sentencing the district attorney has to elect one or the other because they cannot be run concurrently. Enhancements cannot be stacked to add on more time. This bill catches those cases where a deadly weapon would not apply.

Senator Wiener inquired if the district attorney can select the greater of the enhancements. Mr. Gammick responded that each enhancement provides for a like consecutive sentence as the underlying sentence, both are even. Sometimes if the district attorney’s office can charge both enhancements, they will. The district attorney then can see the evidence and make sure it can be proven in court. Then they will elect an enhancement.

Chairman James inquired what the nature of the case was where Mr. Gammick’s office could not use the deadly weapon enhancement. Mr. Gammick recalled that it was a beating case where a senior person died; therefore, they did not have the deadly weapon enhancement available.

Glen Whorton, Chief, Classification/Planning, Department of Prisons, stated there were 10 cases of murder or attempted murder that affected victims over the age of 65 in the last year. Two of those had already been enhanced by the use of deadly weapon enhancement which does not create a new class of crime. He pointed out that the fiscal effect of this bill will not come into play until an individual reaches that first point of release. The fiscal effect will not be seen for some time and will be relatively small at the onset of impact.

Senator Titus inquired of Allison Combs, Committee Policy Analyst, Research Division, Legislative Counsel Bureau, if there is any other age group that is singled out, such as children, for special circumstances. Ms. Combs replied that there are no enhancements specifically to children, but the murder of a child under the age of 14 years is an aggravated circumstance for the death penalty.

Chairman James inquired of Mr. Gammick if it is important for S.B. 63 to become effective on passage and approval so that it comes into play a few months before October. Mr. Gammick replied that would become important if the district attorney’s office gets a particularly brutal case in that time period.

Chairman James restated that there were eight cases last year where there was no available enhancement, so it may be important. Mr. Gammick replied that if the district attorney’s office does not see this type of case, it would not be an issue; but they could very possibly see this type of case at any time. Chairman James recommended that the effective date of S.B. 63 be amended to "upon passage and approval."

There being no further testimony on the bill, Chairman James closed the hearing on S.B. 63 and opened the work session.

Chairman James stated he would like S.B. 63 amended to make the bill effective on passage and approval, and applicable to crimes committed on or after the effective date. Chairman James asked the committee for a motion on S.B. 63.

SENATOR WIENER MOVED TO AMEND AND DO PASS S.B. 63.

SENATOR PORTER SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

*****

Chairman James opened the work session on S.B. 18, which is the bill he requested for dealing with the stockpiling, possession, production and trafficking in biological weapons.

Chairman James introduced a news article from the Internet (Exhibit C) about anthrax threats received in two Georgia cities. He thought this article was interesting from the standpoint of the requested amendment by Dr. Donald Kwalick of the Clark County Health District that there be a crime also for a biological weapons hoax. However, Dr. Kwalick’s requested amendment would have to result in creating a different crime because it is not appropriate to give somebody the same life imprisonment for a hoax as for actually possessing the biological agent, although the hoax is a serious crime as well. Chairman James suggested crafting the hoax as a Category B felony. He inquired of Brad Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau, if he had thoughts as to how that might be crafted.

Mr. Wilkinson replied that it would be up to the committee to determine what penalty would be considered appropriate under the circumstances.

Chairman James stated there are a number of felonies under Category B that are serious threats, which are defined as strong assaults, like pointing a rifle at a person and threatening with it; a Category B assault with a deadly weapon, which is the same kind of crime.

Chairman James continued that he would like to talk about the chemical agent issue raised by Dr. Kwalick. He stated the request by Dr. Kwalick is to expand this law to deal with the trafficking in "chemical agents." Chairman James asserted he is reluctant to expand because it is much different than the biological weapon issue. He recited he is concerned about creating a narrow definition that will not bring into play the kinds of things which people traffic in legal commerce. Unless someone feels differently, Chairman James stated he is not of the mind right now to try to address chemical agents.

Senator Titus pointed out that "chemical agent" could be something that has some lawful purpose. Chairman James indicated that the legal purpose of any biological agent is much more narrow than a chemical agent. The bill contains language about prophylactic, protective, or other peaceful purposes. Chairman James inquired of Mr. Wilkinson as to how he came up with the word "prophylactic." Mr. Wilkinson replied that language was taken out of the federal law of the United States Code.

Chairman James stated there must be some case law backing that information. He stated with regard to bomb threats, it is a Category B felony of 1 to 6 years, which he also proposed as the penalty for the biological weapons hoax. Chairman James also pointed out that, in the proposed amendment, there was requested language to be incorporated that mirrors Nevada’s other hoax and threat statutes. He said since considering Dr. Kwalick’s proposal to amend the definition of delivery system also has to do with chemical agent, that will not be dealt with at this time. Chairman James asked if there were any other questions, amendments or comments.

Senator Wiener commented that with regard to the dialogue of primary and secondary jurisdiction, Nevada could be on the forefront of creating language of deterrents in hopes that people will think twice about committing these types of crime in Nevada. She stated this bill may be enough to say "do not come to Nevada with these kinds of things because you will pay a severe price."

Chairman James thanked Senator Wiener for her comments and agreed that is exactly what the Legislature is trying to do. He asked for a motion to amend and do pass.

SENATOR WIENER MOVED TO AMEND AND DO PASS S.B. 18.

SENATOR McGINNESS SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

*****

Chairman James opened the work session on Senate Bill (S.B.) 19, which clarifies the meaning of "street address" of resident agent.

The committee was given a handout from the Office of the Secretary of State proposing amendments to S.B. 19 (Exhibit D).

Senator Wiener inquired if the secretary of state’s requested amended language "in the State of Nevada" is redundant, since it is about a resident agent in a Nevada law affecting Nevada statutes. Chairman James replied it is defining the term "street address" used in the resident agent section.

Senator Wiener asked if in the definition of "resident agent" the language "in the State of Nevada" had been included, would that not resolve it rather than putting "street address" in every section possible in the bill. Chairman James asked Mr. Wilkinson what he thought was the best method to accomplish this definition. Mr. Wilkinson stated that if the statutes were going to be amended as proposed, the need would be to put it into the section on "street address." Chairman James stated the term "street address" does not necessarily refer to Nevada.

Mr. Wilkinson stated there are other provisions in Title 7 of NRS that state a resident agent has to reside or be located in the state, so that is already assumed. He stated adding this language from the proposed amendment would not hurt, it may well be redundant, but would not do any harm.

SENATOR PORTER MOVED TO AMEND AND DO PASS S.B. 19.

SENATOR TITUS SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

*****

Chairman James opened the work session on Senate Bill (S.B.) 20.

Chairman James asked if there were any proposed amendments to S.B. 20. None were offered.

Senator Wiener read into the record:

Chairman James asked if there were any questions about any aspect of the bill.

SENATOR PORTER MOVED TO DO PASS S.B. 20.

SENATOR McGINNESS SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

*****

There being no further business, Chairman James adjourned the meeting at 9:14 a.m.

RESPECTFULLY SUBMITTED:

Janice McClure,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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