The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:45 a.m., on Thursday, February 11, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. The meeting was video conferenced to the Grant Sawyer Office Building, Room 4401, Las Vegas, 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:

James F. Nadeau, Lobbyist, Captain, Washoe County Sheriff’s Office

Chairman James opened the meeting and introduced three bill draft requests (BDRs).

Chairman James asked for a motion for committee introduction of the BDRs.

SENATOR WASHINGTON MOVED TO INTRODUCE BDR 15-305, BDR 3- 337 and BDR 14-465.

SENATOR MCGINNESS SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

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Chairman James opened the hearing on Senate Bill (S.B.) 11.

SENATE BILL 11: Repeals rule that for prosecution of murder or manslaughter, death of victim must occur within 1 year and 1 day of criminal act which caused death of victim. (BDR 15-130)

Senator Dina Titus, Clark County Senatorial District No. 7, pointed out that Assemblyman Richard Perkins, Clark County Assembly District No. 23, has introduced this same bill to the Assembly and would have been a cosponsor of this bill if it had not been prefiled. Senator Titus credited Jodi Curry of her office for working very hard with her on putting together the information and meeting with the Chris Trickle family to make this bill go forward. Senator Titus stated S.B. 11 would very simply repeal the year-and-a-day rule which states in order for a killing to qualify as either murder or manslaughter, the victim’s death must occur within 1 year and 1 day of the criminal act which caused the death. She said this year-and-a-day rule had its origins in English Common Law, dating back some 700 years to a time when doctors knew very little about medicine and forensic science. It was adopted in Nevada in 1861 and has remained on the books long after its utility has passed. She stated the purpose of the year-and-a-day rule originally was to ensure that the defendant’s action was truly the cause of a death. Senator Titus wondered aloud, "If too much time elapsed, how could the prosecutors prove the defendant’s guilt? How could they account for possible intervening variables?" She pointed out with present-day breakthrough advances in medicine, science and forensic research, this is no longer a problem. As a result, the recent trend across the country has been to abolish the year-and-a-day rule adopted long ago by so many states. Senator Titus stressed for example, Arizona, Arkansas, Colorado, Delaware, Florida, Illinois, Louisiana, Maine, Maryland, Montana, North Carolina, North Dakota, Texas, Utah and Washington have all legislatively repealed their year-and-a-day rule. In addition, Massachusetts, Michigan, New Jersey, Ohio, Pennsylvania and Rhode Island have judicially nullified the rule. In Georgia, New York and Oregon, the courts have interpreted the fact that the respective legislatures did not include the rule in their comprehensive revision of the criminal code as an intended abolition of the rule. Senator Titus said she believes the Supreme Court of Pennsylvania said it best when they handed down their decision in Commonwealth v. Ladd:

Senator Titus further stated that this issue was brought to her attention last year with the death of Chris Trickle. Chris was a well-liked, kind, talented, young racecar driver from Las Vegas, who was shot between the eyes by an unknown assailant in a passing car on February 9, 1997. For 13 months Chris hung to life, undergoing numerous operations and remaining in a comatose state for all but 5 days. He finally succumbed to his injuries on March 25, 1998, just a little over a year-and-a-day after he was shot. Senator Titus averred there is absolutely no doubt in anyone’s mind, his family’s, his doctor’s, or the police, that Chris died as the result of that gunshot wound; but under existing Nevada statutes, if the assailant is caught he cannot be charged with murder. Senator Titus stated this is wrong and she believes it should be changed. Senator Titus also said she believes that after the committee has heard the testimony of Chris Trickle’s parents, they will see the need to repeal this antiquated law. It is too late for Chris Trickle’s parents who are seeing that justice can be denied because of an outdated legal technicality. Nonetheless, this bill could be part of Chris’ legacy, his gift to Nevada, so that the families of any future victims could see murderers held accountable for their actions. Senator Titus urged the committee to pass S.B. 11, which should be known as the "Chris Trickle Bill."

Chuck Trickle, father of Chris Trickle, testifying from Las Vegas, stated that after Chris passed away last March, his attorneys told him about the year-and-a-day law. Mr. Trickle clarified that he was shocked to learn that this murderer can only be charged with attempted murder, but if S.B. 11 could be passed it would be a great thing for his son.

Barbara Trickle, mother of Chris Trickle, testifying from Las Vegas, expressed the injustice of her son’s death and the frustration of knowing that if his murderer is ever caught he will not be held accountable for Chris’ death. She stated she would be very grateful to see this year-and-a-day law repealed.

Ashley Nitz, Attorney for Trickle Family, testifying from Las Vegas, stated that with the medical advances present today, the year-and-a-day rule just does not make sense and needs to be repealed.

Ben Graham, Lobbyist, Clark County District Attorney, Nevada District Attorneys’ Association, stated the 1 year and 1 day rule was a loophole created a long time ago because of the lack of medical technology. He pointed out that it is time to remove this loophole. He urged the passage of this bill and remarked he would like to see it effective upon passage and approval.

Stan R. Olsen, Lobbyist, Lieutenant, Las Vegas Metropolitan Police Department, also representing Nevada Sheriff’s and Chief’s Association, stated he supports S.B. 11, 100 percent. He stressed he also spoke on behalf of Captain James F. Nadeau of the Washoe County Sheriff’s Office, who was unable to be present at this hearing.

There being no further testimony on the bill, Chairman James closed the hearing on S.B. 11 and accepted a motion.

SENATOR TITUS MOVED TO DO PASS S.B. 11.

SENATOR WIENER SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

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Chairman James opened the hearing on Senate Bill (S.B.) 120.

SENATE BILL 120: Expands circumstances under which interception of wire or oral communications is authorized. (BDR 14-303)

Ben Graham, Lobbyist, Clark County District Attorney, Nevada District Attorneys’ Association, spoke in support of search warrants for dealing with interception of telephone wire communications. Telephone communications fall under the Fourth Amendment of the U.S. Constitution. The Constitution conveys that no warrant shall be issued except based upon probable cause. Mr. Graham asserted that a search warrant specifically has to convey that there is probable cause, facts and information sufficient, to lead a reasonable person to believe that a crime has been committed and evidence of that crime exists in a particular place and a particular time. He pointed out that a very narrow rule of law has developed with regard to electronic communication, stating if it appears evidence cannot be readily obtained by an ordinary search warrant, there are provisions for interception of wire or oral communication. If a wiretap is sought, specificity is required as to the type of information being sought and where it is sought; and there is a very limited window of time to do that. Currently, there are seven bases for which an interception order can be obtained; which includes murder, kidnapping, robbery, extortion, bribery, destruction of public property by explosives, and sexual offense against a child. This amendment would allow wiretap for an attempted murder, battery with use of a deadly weapon and discharging of a firearm at or into an occupied structure. The constraints of when a warrant could be issued are narrow, the requirements are fairly narrow, and the courts control the duration of the interception as well with a report back to the courts.

Chairman James inquired where those parameters are in terms of having to report back to the judge and the limited duration of the wiretap authorization. Mr. Graham replied that some of it is statutory, but primarily case law with which he is familiar.

Senator Wiener asked for a distinction between "investigative and [or] law enforcement officers" as referenced on page 1, line 8 of the bill. Mr. Graham replied that there are drug enforcement investigators and gaming control investigators, whereas law enforcement officers are people such as Lieutenant Olsen and Captain Nadeau.

Senator Care stated that wiretapping is serious business in a free society. He inquired of Mr. Graham if there are particular cases of circumstances which would necessitate expanding those crimes for which a wiretap application could be made. Mr. Graham replied that there are particular cases that have arisen through the drug- and gang-enforcement unit. The attempted murder, battery with use of a deadly weapon, and discharging of a firearm at or into an occupied structure are all crimes of violence which are difficult to investigate with regard to gang activity.

Stan R. Olsen, Lobbyist, Lieutenant, Las Vegas Metropolitan Police Department (Metro), stated that law enforcement’s primary concern with S.B. 120 is the gang warfare that occurs in southern Nevada. From January 1 this year to February 6, there have been 45 drive-by shootings in southern Nevada. Out of the 45 shootings, 15 people have been shot, none have died, but Metro has attempted murder investigations continuing. He pointed out the problem is that if one of these people is shot or shot at, they are usually affiliated with a gang. Their code of silence, or more likely their fear of retaliation, prevents them from cooperating with the police. Many times the police can develop a suspect in a drive-by shooting, but again they cannot get a victim to come forward. With the aid of wiretapping they may be able to hear phone conversations wherein gang members will brag about what they have done.

Mr. Graham interjected that when the law enforcement community comes into his office requesting an intercept, they speak with senior deputies who have many years of experience and are very specialized in seeking these intercepts. Interception shuts down three or four people for most of the day to very meticulously establish that they are unable to get this information by traditional means and that a narrowly defined limited interception is authorized. Wiretapping is probably the most difficult warrant for the law enforcement community to obtain.

Senator Titus inquired that if the problem is drive-by shooting, why cannot that be taken care of by the third addition to the bill of discharging a firearm. Adding attempted murder or battery includes a lot of things besides drive-by shootings.

Lieutenant Olsen stated that the third addition to S.B. 120 just refers to discharging a firearm at or into an occupied structure. The drive-by shootings are not always into a structure, but are in open parks, school areas, on the roadways, in front yards, or into houses. They have occurred in grocery stores and shopping center parking lots. They can occur just about anywhere.

Senator Titus inquired if there was some way to word this more specifically than broadening it out with adding attempted murder and battery. Mr. Graham replied that if the law enforcement community is unable to get evidence by the traditional method of a regular search warrant of a residence or a premise, he does not anticipate that a wiretap warrant will be easily obtained for an ordinary attempted murder.

Chairman James explored the definition of a deadly weapon. Mr. Graham replied that definition is pretty broad since it was expanded significantly in 1997. Chairman James requested Mr. Graham to refresh the committee’s recollection. Mr. Graham recalled that definition covers nearly anything that can be used in a deadly fashion. He again reminded the committee that with S.B. 120 the police are dealing with cases where nobody is coming forward.

Lieutenant Olsen added that law enforcement often works with informants. In many cases it works, but not always. Cracking the gang world is extremely difficult.

Chairman James referred to a list he was given during the interim of all of the Los Angeles gangs coming to Las Vegas. He stated although he knows Metro is doing a lot, he inquired of Lieutenant Olsen what Metro is doing as a concerted response to this kind of full onrush into Las Vegas of Los Angeles gangs.

Lieutenant Olsen requested Ken Wellington, who was waiting in Las Vegas to testify, to respond to Chairman James’ question. He stated Mr. Wellington is a gang detective and is behind this proposed legislation.

Senator Wiener stated that she recently finished writing a book entitled "Winning the War Against Youth Gangs" which will be published this year. It will be a library book in hopes of getting to some of the kids who are wondering about what to do with their lives. She stated in doing research for the book, she worked with 270 young people in 9 states so it is fairly representative of what is happening across the country. Most of those young people were in detention, many of whom are in gangs. Senator Wiener stressed when they had the opportunity to express privately their response to some pivotal questions, it was quite impressive that when asked what the role of law enforcement should be in preventing a child from joining a gang or getting a child out of a gang, the response was 3 to 1 to enforce the laws in tact to the extent possible and create more laws to make sure that gang participation does not happen to other kids. She stated also, in research with another study done in Australia, 99 percent of male gang members surveyed said they would not want their child to be a member of a gang. Most of them are saying there is a need to persuade them at a very young age and even that is difficult because of the multi-generational gang lifestyle. This is not just an inner-city concern, it is happening everywhere. She concluded that the community needs to work together to deal with this problem.

Ken Wellington, Detective, Las Vegas Metropolitan Police Department, testifying from Las Vegas, stated he is currently assigned to the gang task force of the gang unit which is a multi-jurisdictional task force that cooperates with the Federal Bureau of Investigation, Drug Enforcement Administration, Bureau of Alcohol, Tobacco and Firearms. It is a different way they are trying to attack the gang problem in the Las Vegas area. He stressed in 1997, gang membership was 6,195. Since that time there has been an increase in a 1-month period of 199 additional gang members. He pointed out that last year there were 196 drive-by shootings in the Las Vegas area and this year there have already been 45 drive-by shootings which is a drastic increase. He stated last year 16 gang members were killed by homicide. Since witnesses will not come forward to testify, additional evidence, such as that which could be obtained through warrants for wiretapping, would make it a lot easier to conduct these investigations.

Senator Care inquired if California law permits wiretaps for the crimes that are under consideration here. Mr. Wellington stated he was unaware if that is a predicate offense for a wire intercept in California. He said he did do some ride-alongs with California detectives, but most of the duties they handle are enforcement and after-the-fact investigations.

Mr. Graham stated he was also unaware of the California statute, but offered to locate and provide this information to the committee. Chairman James requested Mr. Graham provide to the committee information on all the neighboring states. He stated he would like to check the expansiveness of the statutes.

Senator Care asked of Mr. Graham how many wiretap applications were made before the Eighth Judicial District last year and how many of those applications were approved. Mr. Graham said he was not aware of the exact number, but stated he will research that information for the committee. Senator Care asked if there is any difference between wiretapping a landline and a cellular phone. Mr. Wellington responded that they do both types of intercepts. There is not much difference, but different equipment is used for both of the intercepts.

Senator Wiener stated that she attended the White House Conference on School Safety in October 1998. The Secretary of Education and U.S. Attorney General Reno released a report at that conference that 90 percent of the schools in this country are safe. However, that same report indicated gang activity and self-admitted gang membership have increased by 200 percent since 1990.

James F. Nadeau, Lobbyist, Captain, Washoe County Sheriff’s Office, assured the committee this is not just a southern Nevada problem or concern and indicated that this legislation will be helpful in dealing with these types of situations on a statewide basis.

Chairman James inquired of Captain Nadeau what types of recent statistics Washoe County has on gang violence. Captain Nadeau replied that he did not have the specific numbers. Washoe County does have occasional drive-by shootings and they are extremely difficult to investigate. Both the City of Reno and the Washoe County Sheriff’s Office have a gang task force.

Senator McGinness commented that on the legality of cell phone taps, cell phones are using the airwaves which Congress has determined belong to the public. Also, he stated he believes with regard to the term "outhouse" on page 2, line 8 of S.B. 120, that outhouse was outlawed last session.

Captain Nadeau responded that he believes an outhouse by definition is not necessarily used for sanitary reasons, but also as an outbuilding on a ranch or something of that nature.

Chairman James inquired if Metro sees these drive-by shootings happening repeatedly in certain places or if they happen randomly in Las Vegas. Lieutenant Olsen responded it is random, not in a specific area.

Chairman James asked if Metro has stepped up patrols by having more police around parks and public places. Lieutenant Olsen responded that unfortunately it is hard to predict where the shootings are going to occur. He stated Las Vegas and Clark County have their own park police. If the gang members are in pursuit of a specific individual, the gang member will follow that individual until they get their opportunity without police around.

Chairman James indicated that Margaret McMillan, Lobbyist, Director, Governmental Affairs, Sprint, submitted a memorandum to the committee stating that the Sprint Security Department, which handles the orders authorizing interception of wire and oral communications in the Las Vegas Valley, has reviewed S.B. 120 and has no problem with the expanded language (Exhibit C). Chairman James stated Senator Care has identified some important information that the committee needs before going to the work session on this bill.

Being no further testimony, Chairman James closed the hearing on S.B. 120 and adjourned the meeting at 9:40 a.m.

RESPECTFULLY SUBMITTED:

Janice McClure,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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