MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-First Session
April 2, 2001
The Committee on Judiciarywas called to order at 8:15 a.m., on Monday, April 2, 2001. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. Mark Manendo, Vice Chairman
Ms. Sharron Angle
Mr. Greg Brower
Mr. John Carpenter
Mr. Jerry Claborn
Mr. Tom Collins
Mr. Don Gustavson
Mrs. Ellen Koivisto
Ms. Kathy McClain
Mr. Dennis Nolan
Mr. John Oceguera
Ms. Genie Ohrenschall
COMMITTEE MEMBERS ABSENT:
Ms. Barbara Buckley (excused)
GUEST LEGISLATORS PRESENT:
Assemblyman David Brown, District 22
Assemblywoman Vonne Chowning, District 28
Assemblyman David Humke, District 26
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Deborah Rengler, Committee Secretary
OTHERS PRESENT:
Gemma Waldron, Deputy District Attorney, Criminal Division, Washoe County District Attorney, Reno, NV
Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence (NNADV), Reno, NV
Nancy Hart, Deputy Attorney General, State of Nevada, Office of the Attorney General, Reno, NV
David Gibson, Legislative Team, Clark County Public Defenders Office, Clark County, NV
John Morrow, Chief Deputy, Washoe County Public Defender, Reno, NV
Howard Brooks, Deputy Public Defender of Clark County, Las Vegas, NV
Kirby Burgess, Clark County Family and Youth Services
Ben Graham, Legislative Representative, Nevada District Attorney’s Association, Las Vegas, NV
Bruce Mickee, Vice President of Political Action Committee Against Noise Pollution, Las Vegas, NV
Donald Fondriasopolous, President/Resident Agent of Political Action Committee Against Noise Pollution, Las Vegas, NV
Janelle Kraft, Senior Financial Analyst, Intergovernmental Relations, Legislative Advocate, City of Las Vegas, NV
Ben Blinn, Citizen
Chairman Anderson noted a quorum was present and stated his opening remarks.
Chairman Anderson opened the hearing on A.B. 436 and acknowledged Assemblywoman Ohrenschall, the primary sponsor of the bill, as she made her way to the witness table.
Assembly Bill 436: Revises provisions concerning admissibility of evidence in criminal proceedings involving domestic violence. (BDR 4-987)
Assemblywoman Ohrenschall, District 12, stated the bill was simple with one purpose; A.B. 436 proposed to expand the circumstances under which evidence concerning prior acts of a criminal defendant would be admissible in a criminal proceeding involving domestic violence. Specifically, if a defendant was charged with a crime constituting domestic violence within ten years of the current charge of domestic violence, that prior evidence would be admissible in a criminal proceeding. Not only would the bill hold repeat criminal offenders of domestic violence responsible, A.B. 436 would also protect more women from the aggressive behavior of criminal offenders.
Chairman Anderson recognized when discussing domestic violence, it included: battery; assault; compelling others by force or a threat of force to perform an act from which a person had the right to refrain; sexual assault; knowingly, purposefully, or restless course of conduct intended to harass the other such as stalking, arson, trespass, larceny, and destruction of private property; carrying a concealed weapon without a permit; false imprisonment; unlawful entry of another’s residence; and forcible entry against the other’s will if there were a reasonable, foreseeable risk of harm.
Assemblywoman Ohrenschall agreed with Chairman Anderson. The bill was needed because domestic violence was not being recognized nor fully charged for the crime it was. The bill specifically departed from existing English common law, present Nevada statutes and federal rules of evidence, but Assemblywoman Ohrenschall believed A.B. 436 was essential.
Gemma Waldron, Deputy District Attorney, Criminal Division, Washoe County District Attorney, and who also represented the Nevada District Attorney’s Association, stated A.B. 436 was requested to provide an accurate picture of the person the court was dealing with. When no mention of prior instances was made, it could be presumed the current charge was a first-time offense, not knowing it was actually a third or even fourth offense with the same victim. The hearing prior to the jury trial would determine whether such evidence would be probative or prejudicial, that it was a legitimate conviction and the purposes why it was being brought to the court. Recent statistics prepared by the Nevada Network Against Domestic Violence reported the total number of domestic violence contacts in Nevada were 66, 647, which included 36,158 first-time domestic batteries and 30,489 repeat domestic violence contacts.
Assemblyman Brower asked Ms. Waldron if she had been successful getting such evidence into a court previously. Ms. Waldron had demonstrated “lack of mistake” and “common scheme or plan” for those with a history of hitting for approximately five cases at the jury trial level. With A.B. 436, a judge would make the determination whether information could be presented to the jury.
Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence, spoke in favor of A.B. 436. She believed it would be an important tool for successful prosecution of domestic battery cases by allowing jurors to hear about the patterns of behavior that might have led to the current situation (Exhibit C). Groundbreaking legislation passed by the California Legislature was upheld on appeal; Ms. Meuschke believed Nevada would benefit from a similar change.
Nancy Hart, Deputy Attorney General, stated A.B. 436 would create an exception to the general statutory rule that evidence of other crimes, wrongs or acts is not admissible to prove a person acted in conformity with a previous act (Exhibit D). Nevada Revised Statutes (NRS) 48.045 already provided evidence was admissible for purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. A.B. 436 would create an additional exception allowing such evidence in a criminal proceeding of domestic violence. Ms. Hart believed evidence that a defendant had a “propensity to commit acts of domestic violence” was appropriate because ongoing violence and abuse was normal in domestic violence cases. A battering episode might be part of a larger scheme of “dominance and control,” usually escalating in frequency and severity. Without such evidence, the escalating nature of domestic violence could be unknown. Ms. Hart concluded, “Criminal prosecution is one of the few steps which may interrupt the escalating pattern of domestic violence.”
David Gibson, Legislative Team, Clark County Public Defenders Office, opposed A.B. 436 and saying it caused him great concern. Although previous testimony was true, Mr. Gibson believed there were major problems with this type of legislation. There were other ways to get evidence of prior bad acts available for the jury’s consideration. Under subsection 2, evidence of prior bad acts could not be used to prove character of an individual; there was good reason for that. He could find no place detailing a “hearing regarding previous conduct.” Mr. Gibson did not believe A.B. 436 was necessary, although he did agree that it would be a great tool for the prosecution’s use of hearsay.
John Morrow, Washoe County Public Defenders Office, also opposed A.B. 436. He was concerned A.B. 436 implied the jury and the judge were not capable of viewing the facts of a case and determining the right answer. It would allow character to prove guilt. “It goes beyond what is necessary, what is advisable, and sets a bad precedent for future legislation.”
Chairman Anderson asked why Mr. Gibson was concerned with hearsay testimony. It was Chairman Anderson’s impression that A.B. 436 would utilize the provisions as set forth NRS 33.018, which defined domestic violence.
Mr. Gibson clarified A.B. 436 did not specify the previous “acts” developed into charges, just that they were “committed”; it could be accusations. Mr. Morrow agreed with Mr. Gibson.
Assemblyman Carpenter asked what the current procedure was to admit that type of information into evidence. Mr. Gibson stated if a defendant said, “I would never do something like that,” the door was opened to admit character evidence. If there was a prior conviction for that type of behavior, evidence could be admitted if the conviction were not older than ten years. If it was shown the behavior was a common scheme or plan; if there was a connection between the current and previously complained-of behavior and the court found it to be reliable, the prosecution could ask the court for permission to present evidence. Character evidence was not relevant to guilt or innocence, each case needed to be considered on its own; but the evidence of previous acts could be used during the sentencing phase of the case.
Mr. Morrow said if A.B. 436 was enacted there could be a charge of domestic violence against a person, that person would go to trial, there would be no evidence presented of the act of domestic violence, but by admitting something that had happened ten years prior, the person could be convicted. That would be the result of A.B. 436.
Chairman Anderson recounted a scenario involving “Bubba” beating up his wife. The police were called; Bubba was arrested and taken away for 24 hours. The wife did not charge Bubba. Eight years later, Bubba beat his wife causing substantial injury resulting in her being admitted to the hospital. The police were called; Bubba was taken into protective custody. The wife charged Bubba, left the domestic relationship and got a divorce. What would happen to Bubba now?
Mr. Gibson stated the first case must be finished. Even though the wife did not come forward, the police came out and Bubba would be convicted. Chairman Anderson agreed there would be a conviction on the record. Ms. Waldron said for the second circumstance Bubba would be charged with first-time domestic battery because it happened over seven years ago. Chairman Anderson said under current law, the first instance would not come forward. What happened regarding jail time? Ms. Waldron said it would depend on the level of injury on the second circumstance. If there was substantial bodily harm, Bubba would be charged with a felony and the judge could determine whether evidence of the prior conviction could be admitted.
Chairman Anderson stated the felony charge could result in a prison term of one-to-two years. When Bubba got out of prison, he found his ex-wife and assaulted her again – third time. Did Bubba go back to prison? Ms. Waldron said if it was not within seven years of the last conviction, he could be charged with second time domestic battery misdemeanor. Mr. Morrow said if he was on parole and had a second violation, same as the first, he would go back to prison. If it was a violent re-offense, the parole board would probably not grant him any statutory “good time.” He would finish his time in prison and be charged for the second offense.
Chairman Anderson restated where substantial bodily injury was involved, it resulted in a prison term. If a lesser degree of injury, it might result in just jail time. What would happen with the new law? Would both the first and second instances count? Mr. Gibson said A.B. 436 only made the information admissible into the case; the evidence must still be shown as reliable and valid.
Assemblyman Brower understood the similar California statute still left the decision to the discretion of the judge as to determine whether the evidence of prior acts was more prejudicial than probative. How would that issue work with A.B. 436? Ms. Waldron said A.B. 436 would allow the admission of information regarding prior bad acts involving domestic battery. There would be nothing changed regarding the standard of proof of those acts, still clear and convincing evidence, which did not necessarily rise to the level of a conviction, but there must be some evidence such as a medical record, an arrest, etc. In the hearing prior to the jury trial, if a judge determined the evidence was more prejudicial than probative, the prosecution could not talk about that evidence in the jury trial. A.B. 436 would allow the judge to listen to the evidence to make the determination whether it was admissible in the trial.
Mr. Gibson disagreed with Ms. Waldron, believing that Section 1 of A.B. 436 took the evidence out of NRS 48.045 and made it admissible. It made it “hearsay in its purest form.” The way the statute was written, there was nothing about clear and convincing evidence; A.B. 436 said the evidence was admissible. It did not give the judge or anyone the ability to object to the evidence, it did not put any standard of any kind on it, it just could be an accusation. It took away the right of confrontation; it took away the presumption of innocence. Even if cleared of a charge eight years ago and winning the trial, the evidence could still be admitted. Mr. Gibson did not believe it was constitutional, and it took away the right to a fair trial.
Assemblyman Brower read a section from Exhibit C. Assemblyman Brower felt A.B. 436 should mirror the safeguards built into the California law. Mr. Gibson said if the safeguards were included, the hearings occurred prior to the jury trial, and the judge determined the evidence was more probative than prejudicial, then it would still fall within the purview of NRS 48.045. Ms. Waldron offered her services to craft language to clarify the intent of the bill. Mr. Morrow reiterated the way the bill was written, prior bad acts would be admissible as proof the defendant did a current crime.
Chairman Anderson voiced his concern regarding convictions relative to the current event and that scenarios be developed to determine a progression of behavior.
Howard Brooks, Deputy Public Defender for Clark County, opposed A.B. 436. Mr. Brooks felt there was a misunderstanding that evidence regarding previous bad acts was not currently being admitted in domestic battery trials; that was untrue. Any competent prosecutor could get into evidence prior bad acts involving domestic battery very easily. The standard for bringing evidence of prior bad acts was very liberal because judges were aware of the domestic battery problem. A.B. 436 would be a remarkable crutch for prosecutors and would then arm the defense lawyers with arguments for appeal.
Chairman Anderson asked Risa Lang, Committee Counsel, if she could help with the misunderstanding. Ms. Lang agreed that prior acts did not have to be a conviction. There might have been some confusion because there were two statutes that covered battery, one that dealt with general battery and one that dealt specifically with domestic violence. Depending on the level of harm, a first offense would be a felony under general battery, where a first-time domestic battery would be a misdemeanor. Ms. Lang believed A.B. 436 had the same protections in NRS 48.025 and NRS 48.035 as seen in the California law, which was reviewed when drafting A.B. 436.
Chairman Anderson closed the hearing on A.B. 436. Assemblywoman Ohrenschall assured Chairman Anderson statutes from other states had been reviewed and it was the intent of A.B. 436 to fit within the general scheme of Nevada statutes. Assemblywoman Ohrenschall was willing to work with the committee to increase their level of confidence. Chairman Anderson agreed some common language was needed to clear up the ambiguity within the proposed bill.
Chairman Anderson opened the hearing on A.B. 470.
Assembly Bill 470: Creates juvenile crime reduction fund and provides for its administration and use. (BDR 5-1012)
Assemblyman David Humke, District 26, said A.B. 470 was concurrently referred to the Assembly Committee on Ways and Means because the bill contained an appropriation. A.B. 470 came from the Juvenile Justice Commission; a subcommittee of that commission began meeting last year to craft this legislation. The subcommittee consisted of Judge Deborah Schumacher of Department 5 of the Second Judicial District; Willie Brown, Administrator of Youth Services Division of the Division of Child and Family Services (DCFS); Leonard Pugh of Washoe County Family Court Services; Kirby Burgess of Clark County Family Court Services; and several others including himself (Assemblyman Humke). Several years of planning took advantage of two federal grant programs that DCFS began to use starting in 1997. The intent of the bill was to conduct substance abuse and mental health treatment at the local level, avoiding incarcerating youths. The funds would serve as “match money” so that Nevada could take advantage of additional programs under the two federal grants. A twelve-page report (Exhibit E) was the work product of the subcommittee.
Assemblyman Carpenter asked if there were other programs similar to that proposed in A.B. 470. Assemblyman Humke said the program would be the first of its kind as an institutionalized program across the state to be used in each court district.
Kirby Burgess, Director of Clark County Department of Family Youth Services; also spoke on behalf of the Juvenile Justice Administrators Association, of which he was President; and for Leonard Pugh who was unable to attend the meeting. This bill would go a long way to address an issue in the community that dealt with substance abuse and mental health issues on the front end of the system and thereby keeping youngsters out of the state institutions. Substance abuse was a prevailing issue in Clark County in all stages of the juvenile justice system, and it was believed if more funding was available for treatment within the community, everyone would be better off. S.B. 287, which makes appropriations for establishment of community-based programs that serve as alternatives to incarceration of minors (BDR S-882), would soon be heard by the Assembly Committee on Judiciary. He hoped that bill would be considered in combination with A.B. 470.
Chairman Anderson told Mr. Burgess the Judiciary Committee did not have both bills. Mr. Burgess clarified S.B. 287 came out of the A.C.R. 13 Interim Legislative Study Committee on Juvenile Justice supported by the Seventieth Session.
Chairman Anderson asked Assemblyman Humke what his expectations were for A.B. 470. Assemblyman Humke hesitated to speculate. Chairman Anderson closed the hearing on A.B. 470 and entertained a motion.
ASSEMBLYMAN MANENDO MOVED TO “DO PASS” A.B. 470.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
MOTION PASSED WITH MR. COLLINS, MR. NOLAN, MR. BROWER, MS. McCLAIN AND MS. BUCKLEY ABSENT.
A.B. 470 would go to the Assembly Committee on Ways and Means. Chairman Anderson acknowledged that Assemblyman Humke would defend his bill on the Assembly floor, with Assemblywoman Ohrenschall as his backup.
Chairman Anderson opened the hearing on A.B. 396 and acknowledged Assemblyman David Brown, a sponsor of the bill.
Assembly Bill 396: Makes statement of child describing act of physical abuse admissible in criminal proceedings under certain circumstances. (BDR 4-984)
Assemblyman David Brown, District 22, said A.B. 396 extended an existing hearsay exception to include certain crimes of physical abuse committed against children under ten years old. The exception currently exists where sex crimes were committed against the child under ten years old. Due to the child’s age, the child might not be qualified to testify, A.B. 396 would amend NRS 51.385 to allow hearsay testimony at the trial.
Ms. Waldron testified regarding a current case where a four-year-old child was so traumatized by the abuse (a spiral break of the elbow) that he would not say who had hurt him. It was not until the child was removed from the home and felt more safe that the child finally told someone what had happened. By the time he had told someone, his testimony was “hearsay without exception.” Ms. Waldron was able to prosecute the man for child abuse causing substantial bodily harm, and prosecute the mother for child neglect. If the defendants had not decided to plea, it might have been difficult to proceed with the case because the child was too young to testify, there was no statement immediately after the incident, and there was no law allowing hearsay testimony from those who the child finally told. The charge of child abuse causing substantial bodily harm was a very serious crime, resulting in a 2-to-20 year term in a Nevada State Prison.
Chairman Anderson reiterated hearsay testimony was allowed in cases of sexual abuse of a child under ten years old. Ms. Waldron agreed. Chairman Anderson queried that A.B. 396 would expand it to allow for physical abuse or just substantial bodily harm. Ms. Waldron stated it would be for physical abuse, gross misdemeanor, or substantial bodily harm felony.
Assemblyman Carpenter said it was clear the hearing would be “out of the presence of the jury.” Ms. Waldron agreed the court would be notified of hearsay testimony and the judge would make a determination to bring it before the jury.
Ben Graham, Nevada District Attorney’s Association, said it must be remembered that “every little part, bits and pieces” being put together, not one thing in and of itself, would ever lead to a successful prosecution or defense.
Mr. Gibson spoke in opposition to A.B. 396. He believed there were provisions and safeguards to verify the evidence was good evidence with good reason. He was uncomfortable with the expansion of hearsay. Mr. Gibson stated the physical evidence of children taken to the emergency room could appear very alarming to people, and the process of getting testimony from children might be very troublesome. Mr. Gibson recounted a personal experience with his son who had ITP, a very serious condition of spontaneous bruising. When taken to the emergency room, doctors separated Mr. Gibson and his son, assuming he had abused his son, and the police were called. The situation was resolved and his son received treatment, but it made Mr. Gibson aware that statements from children should be protected. Mr. Gibson was not opposed to the bill in principle because he believed the children must be protected, but he did voice caution.
Chairman Anderson noted, “The system worked.”
Chairman Anderson closed the hearing on A.B. 396 and entertained a motion.
ASSEMBLYMAN CARPENTER MOVED TO “DO PASS” ON A.B. 396.
ASSEMBLYWOMAN KOIVISTO SECONDED THE MOTION.
MOTION PASSED WITH MR. NOLAN AND MS. BUCKLEY ABSENT.
Chairman Anderson opened the hearing on A.B. 481 and welcomed Assemblywoman Chowning, sponsor of the bill.
Assembly Bill 481: Prohibits in certain circumstances person from operating sound amplification system in motor vehicle in certain manner. (BDR 43-1278)
Assemblywoman Vonne Chowning, District 28, believed A.B. 481 was a good bill, whose need had been voiced by many of her constituents during her last campaign. The current Las Vegas ordinance restricted noise from fifty feet or more; the Clark County ordinance limited noise from seventy-five feet or more; consequently, A.B. 481 proposed to limit noise levels from twenty-five feet or more. Assemblywoman Chowning said noise problems not only interfered with the “peaceful enjoyment of your own home,” but also were a traffic hazard, interfering with warning sounds from police sirens, ambulances, fire trucks, etc. For those who still believed that A.B. 481 did not go far enough, that twenty-five feet was still too far, Assemblywoman Chowning would happily agree to a “friendly” amendment. Simply stated, if noise could be heard twenty-five feet from a motor vehicle while it operated on a highway, it would be a misdemeanor. The term “highway” was used as an all-inclusive term, which included all roads, streets, etc. whether maintained or not. In subsection 2, parades and emergency uses were exempted. In subsection 3, sound amplification was defined to include radio, compact disc player, cassette player or similar device.
Chairman Anderson stated a similar bill had been heard during the Sixty-Sixth or Sixty-Seventh Session and at that time the issue had been “musical choice” rather than the distance. How was the twenty-five feet determined rather than fifty feet or a greater number? Assemblywoman Chowning envisioned herself driving in a vehicle, looked to the left and to the right, behind and in front; it was ample and the sounds coming from other vehicles were much closer. Twenty-five feet seemed a reasonable number, realizing it was not close enough.
Assemblyman Gustavson agreed there was a problem with “boom boxes” and loud music from vehicles, but asked how would the law be enforced? Would it be strictly at the discretion of the officer? What would happen to those drivers who drive with their windows down or in convertibles? Assemblywoman Chowning replied that officers were very aware and A.B. 481 would eliminate the inconsistency between city and county regulations, and give the officer the ability to issue a citation for disturbing noise heard from twenty-five feet.
Assemblyman Collins asked how would “ice cream wagons” be exempt? Does it involve a special local sound permit or a state permit? Assemblywoman Chowning intended to have ice cream trucks exempt, which should be covered by Section 1, subsection C that specifies “a vehicle authorized by a permit issued by the proper public authority to operate a sound amplification system in a parade or authorized procession.” Ms. Lang felt additional language would clarify the situation; an ice cream truck might not be considered a procession.
Bruce Mickee, Vice President of Political Action Committee Against Noise Pollution, supported A.B. 481. He recounted personal experience tied to “boom box” noise and submitted a prepared statement (Exhibit F) to be included for the record.
Donald Fondriasopolous, President/Resident Agent of Political Action Committee Against Noise Pollution, supported A.B. 481 and submitted a prepared statement (Exhibit G) for the record. It was Mr. Fondriasopolous’ understanding that A.B. 481 used Ohio and Delaware statutes as a model. In each of those statutes no footage distance was specified, and yet those statutes work. He believed A.B. 481 exhibited a singleness of purpose.
Assemblyman Nolan made comments regarding decibel levels, sound levels established by OSHA, and prolonged exposure that might cause hearing loss.
Janelle Kraft, city of Las Vegas, offered support for A.B. 481. The citizens of Las Vegas have stated this was a “quality of life” issue as well as a public safety issue. Having the state law would strengthen the Las Vegas ordinance and would provide uniformity making it easier to enforce for the Metropolitan Police Department across jurisdictional lines.
Ben Blinn, representing himself, felt “ghetto blasters” should be limited on “public thoroughfares” and not limited to highways. Chairman Anderson reiterated the definition of highways as the most generic term that could be used. Mr. Blinn accepted Chairman Anderson’s definition and voiced his support for A.B. 481.
Mr. Gibson and Mr. Morrow supported A.B. 481 as private citizens.
Assemblyman Gustavson asked why “disturbing the peace” did not cover this type of disturbance? Ms. Lang replied the “disturbing the peace” laws had not been interpreted to include this type of disturbance.
Chairman Anderson closed the hearing on A.B. 481 and proposed an amendment to assure that ice cream trucks were not excluded, as well as other necessary vehicles permitted by city ordinance.
ASSEMBLYMAN COLLINS MOVED TO “AMEND AND DO PASS” A.B. 481.
ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.
MOTION PASSED WITH MS. BUCKLEY ABSENT.
Chairman Anderson asked Assemblywoman Chowning to present A.B. 481 on the Assembly floor and the Judiciary Committee would take care of the amendment.
Chairman Anderson adjourned the meeting at 10:20 a.m.
RESPECTFULLY SUBMITTED:
Deborah Rengler
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: