MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session June 24, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 7:30 a.m., on Saturday, June 24, 1995, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Mark A. James, Chairman Senator Jon C. Porter, Vice Chairman Senator Maurice Washington Senator Mike McGinness Senator Ernest E. Adler Senator Dina Titus Senator O. C. Lee GUEST LEGISLATORS PRESENT: Assemblywoman Jan Evans STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary OTHERS PRESENT: Michael P. Gibbons, Judge, Ninth Judicial District Michael Fondi, Judge, First Judicial District Lawrence "Larry" Hyde, Retired Judge Phil Galeoto, Lieutenant, Lobbyist, City of Reno, Reno Police Department Bill Cavagnaro, Lieutenant, Lobbyist, Las Vegas Metropolitan Police Department (METRO) Victoria Riley, Lobbyist, Attorney, Nevada Trial Lawyers Association Janine Hansen, Lobbyist, President, Nevada Eagle Forum James Dan, Lobbyist, Representative, Libertarian Party of Nevada David S. Gibson, Attorney, Office of the Clark County Public Defender Ben Graham, Chief Deputy, Clark County District Attorney, Lobbyist, Nevada District Attorneys Association ASSEMBLY BILL 598: Limits exclusion of persons from criminal proceedings. The hearing was opened before a subcommittee consisting of Senators James, Lee, and McGinness. Michael P. Gibbons, Judge, Ninth Judicial District, appeared in support of Assembly Bill (A.B.) 598. Judge Gibbons explained this bill is a companion bill to the one heard previously by the committee A.B. 560. ASSEMBLY BILL 560: Revises provisions permitting attendant to support prosecuting witness at preliminary hearing and trial. A.B. 598, he reported is a piece of legislation which is designed to allow a victim to remain in the courtroom after the victim has completed his testimony. Additionally, it allows the investigating police officer to remain in the courtroom after completing his testimony, the witness noted. He explained this bill is a result of the 1982 presidential task force on victims of crime, as was A.B. 560. One of the recommendations from this panel was for judges to allow victims to remain in the courtroom. Their recommendation was that the victim be allowed in the courtroom at all times, with no exclusions allowed; but this bill allows for the traditional point of view that witnesses can be excluded from the courtroom so that their testimony is not influenced by what they may have observed. A.B. 598 recognizes there is no legitimate reason to exclude someone from the courtroom after their testimony has been completed, Judge Gibbons reported. The bill balances the rights of the accused with the rights of the victim to be aware of the proceedings which have "greatly affected their lives," the judge stated. The section referring to the investigating officer originally called for the officer to be allowed in the courtroom at all times, the witness explained, based on what is being done in other states, such as California. The Assembly wished to amend the bill so that lines 9 and 12 were consistent, thus "after testifying" was inserted. Judge Gibbons concluded his testimony, noting the change in the law is not major, but will provide a balance which has been lacking. He urged the committee's support. Senator McGinness asked if the bill will provide the judge with discretion at all times as to whether or not to allow the parties to be present. Judge Gibbons replied in the affirmative. There were no further questions and the witness was excused, and the hearing on A.B. 598 closed. A full quorum had arrived and the chairman moved to the next bill. ASSEMBLY BILL 606: Revises provisions governing criminal and civil liability for crimes motivated by certain characteristics of victim. Assemblywoman Jan Evans came to the committee in support of A.B. 606. She provided a copy of her testimony which is incorporated as Exhibit C. She introduced Michael Fondi, Judge, First Judicial District, and Lawrence "Larry" Hyde, Retired Judge, who will provide further information and answer questions. Senator James asked the assemblywoman what factors caused this important piece of legislation to arrive so late in the legislative session. Mrs. Evans reported the bill emerged from the drafting room very late and there were delays in scheduling and a dual referral to the ways and means and judiciary committees. Mrs. Evans noted the bill had a small fiscal note ($1000) which impacts the criminal history repository, but this has been approved by the ways and means committee. Senator Washington drew attention to a Senate bill which changed the death penalty aggravators to include hate crimes. He asked the assemblywoman if she anticipated any conflict with her bill. She replied it did require a conflict amendment, but that has been taken care of. The assemblywoman was excused. Judge Fondi spoke next, he referred to page 3, line 9 of the bill (subsection 11 of section 3), noting this language was almost identical in A.B. 606 to what the Senate bill said. There followed some discussion of the technicalities involved in incorporating new pieces of law into bills, effective dates of new laws, etc. The witness wished to make some additional comments. He observed the bill has his support because it covers a type of offense that should provide for an enhanced penalty. This enhanced penalty hinges on the facts of the case being alleged and proved during the trial. The jury will have to decide the question of the crime being a hate crime, and then can impose the enhanced penalty. Senator James asked what the burden of proof would be. Judge Fondi explained it would be a beyond- a-reasonable-doubt standard. The chairman asked what evidence standard would be needed in response to line 5, which requires a reason ("because the actual or perceived..."); is it an objective standard or must the actual motive be proved? Judge Fondi opined it is a jury question where they would need to determine whether one of the offenses covered was committed and if it was committed because the victim was a member of one of the particular groups covered by this hate crime provision. He offered the example of sexual assault against a woman of color that would not have been committed if the victim had been Caucasian. The witness pointed out that chapter 41 of Nevada Revised Statutes (NRS) is amended to create a new cause of civil action for someone who is victimized in this manner. It provides for actual and punitive damages for injuries suffered as a result of one of these crimes. He guessed reality is that persons who commit such crimes generally do not have any assets to be taken civilly. Judge Fondi pointed out that sections 7 and 9 of the bill were not in the original bill. These sections call for effective dates that are different than the effective date for Senate Bill 416. SENATE BILL 416: Makes various changes regarding sentencing of persons convicted of felonies. The judge wondered why these bills have different effective dates. Senator Adler explained the reason might be because the bill drafters need some time to organize and distribute the new laws. Judge Fondi was concerned the two dates would cause some confusion in the courts. Senator Titus asked the witness if it would be more practical to move the effective date of S.B. 416 back a little bit to coincide with this bill. The judge said he did not believe that would be helpful. Senator Adler asked the witness if, as a former district attorney, he would have trouble charging crimes properly if they come too quickly. Judge Fondi opined he would not have trouble, because that is what he is trained to do. He stated he had pointed out the different dates simply because he perceived them to be inconsistent. Allison Combs, Senior Research Analyst, Legislative Counsel Bureau, explained October 1 is the default date and when conflicts arise with other bills, the bill drafters use the default date. Senator James observed these dates will work as they are drafted, agreeing there is a "lag time" between when crimes are committed and the sentence is handed down. Because of this, to delay any effectiveness of the sentencing bill will only serve to postpone persons being sentenced under it. Retired Judge Hyde spoke to the committee regarding the bill. He offered a copy of his testimony (Exhibit D). He responded to the chairman's question regarding the burden of proof. He noted the bill requires the act be done willfully (section 1, line 3 and section 4, line 21) which probably became a requirement as a result of U.S. Supreme Court decisions such as Wisconsin v. Mitchell. Senator James asked the witness if the offender is willfully violating the statute or willfully violating the statute because of "race" or other prejudice. The judge opined it is willfully violated because of the victim's affiliation with some minority. This made sense to the senator. The chairman reiterated the drafters of this bill had examined the statutes of other states along with the court decisions. Judge Hyde concurred. Senator James asked if the other states included the provision for civil damages. The answer was some states do, but there was no case law uncovered in this regard. The next witnesses, Phil Galeoto, Lieutenant, Lobbyist, City of Reno, Reno Police Department, and Bill Cavagnaro, Lieutenant, Lobbyist, Las Vegas Metropolitan Police Department (METRO), came in support of the measure. Lt. Galeoto spoke in reference to some questions that were raised in the Assembly hearings. He noted that most law enforcement officers in northern Nevada had never heard of a hate crime until 1988. At that time a skinhead group went "hunting" in the city of Reno one night following a party. This group randomly shot and killed a young black man. This incident brought this crime to a glaring light in Reno, he explained. Since that time, there has been a need to investigate other hate crimes. These investigations have revealed one thing, Lt. Galeoto stated, which is that hate crimes are quite easy to investigate and charge. This is because there generally is a conspiracy to carry out these crimes, he said. The other thing revealed is these crimes, while a conspiracy, are not gang-related crimes. Senator James asked why there was a concern that hate crimes might be gang-related. The lieutenant explained there was a fear that overzealous charging might result because of the cultural groups identified in gang investigations. Lt. Cavagnaro also voiced support for the bill. He reported that hate crimes are a distinctive activity that is fairly easily identified. The perpetrators are seeking recognition of their actions and their motivations, he opined. The METRO investigations have revealed the offenders usually leave some telltale sign of their mind-set. These crimes are very widespread in the Las Vegas area, the witness noted. The chairman attempted to recall a case where the group committing the hate crimes were rather well off. In this case, the damages provision would be a good one, he observed. Lt. Galeoto agreed, noting in all but one case he could recall there was a potential for collecting damages from the criminal. Senator James opined the damage rewards in these cases should not be subject to the damage caps currently in place. Senator Washington asked about section 5, subsections 1 and 2, wondering if this provision would open another channel for frivolous lawsuits. Senator Adler interjected if there is a criminal conviction, the proof of a civil claim would be "automatic." Senator Titus wondered if the provision could be used without a conviction for a hate crime. Senator Adler replied in the affirmative, noting there is a lower standard of proof in a civil matter. Senator James maintained the party would have to prove a willful violation of the statutes. He also added that facts determined in a criminal trial would not have to be proved again in a civil case about the same incident. However, if the facts were initially proved in a civil case and then brought to a criminal court, they would have to be proven again, due to the higher standard of proof in a criminal court, he explained. The next witness to speak was Victoria Riley, Lobbyist, Attorney, Nevada Trial Lawyers Association. She noted, from the audience, the association supports the measure. Janine Hansen, Lobbyist, President, Nevada Eagle Forum, came forward to speak in opposition to A.B. 606. She opined the proposed law would violate the 14th Amendment to the U.S. Constitution which guarantees equal protection to all citizens under the law. She quoted from a book by the founder of the National Center for Constitutional Studies. Mrs. Hansen read: The Fourteenth Amendment states no state shall deny to any person who lives within its jurisdiction the equal protection of the laws. This provision guarantees the right to every person, not just citizens, living within the state to equal protection of the laws. It is impossible to protect equal protection against the violation of the law, but once a law becomes operative as the result of a crime or a tort the law should be equally administered, regardless of race, sex origin [sic], citizenship, or nation origin. She revealed a number of personal experiences which may relate to this legislation. She told of her efforts and work against homosexuality, gathering signatures on a petition. At this time, she reported, she was accosted physically by a homosexual. She speculated this law would not protect her in that situation. Senators James and Adler both offered the witness would have been covered under the law, because if the perception was he was a homosexual and she is a heterosexual, the law would apply. The chairman noted the witness raises a good point, and that it is very important the record reflect the intent that the law applies both ways. Campaigns of hate, no matter who is the target, must be addressed by this bill. Senator Adler concurred with the chairman. The law would apply to whites attacking blacks and blacks attacking whites; homosexuals against heterosexuals and heterosexuals against homosexuals, he asserted. Senator Washington also agreed the law would apply in both directions. He offered a group such as the Black Panthers could generate as much hate as the Ku Klux Klan. The chairman asked the witness to continue. Ms. Hansen offered the committee examples of other times she felt she was the subject of prejudicial attacks. She also wondered if the term "sexual orientation" applies to such individuals as those who practice pedophilia or bestiality. She concluded the law may provide unequal protection by creating different classes of people. Senator James asked Judge Hyde if the crime of stalking would apply under this statute. The statute is not listed in those covered by the enhancement, he noted, and wondered if it should be included in the felony section as well as the misdemeanor section. The judge replied it is covered under the misdemeanor section, which would enhance the crime to a gross misdemeanor. The chairman explained there was a bill just passed which changes the penalty for stalking, under certain circumstances, to a felony. The witness agreed, noting it should be included in section 1, because it was the intent to include all personal felonies. The problem appeared to the chairman to be amending the bill at this late date. The research analyst assured him there should be no problem. James Dan, Libertarian Party of Nevada, came to express objections, both personal and on behalf of the Libertarian Party, to any bill such as this which makes distinctions between people who are different racially, ethnically, or through other types of characteristics. Mr. Dan pointed out there has been a long and extensive battle in the U.S. to remove these kinds of distinctions. This bill, he observed, seems to move in the wrong direction. He stated he agrees with the spirit of the bill, but it seems to subvert society's efforts toward equality for all. Mr. Dan emphasized that a crime is a crime, no matter who perpetrates it or who it is perpetrated against. He also called for equal protection under the law. He offered a personal anecdote from his days in college. Mr. Dan noted, though he is of Taiwanese extraction, he felt more comfortable with the "white guys" than he did with the Taiwanese graduate students. In fact, he told, the graduate students denigrated the U.S.-born Taiwanese as a special class to be singled out for derision. He asked how far this measure would go in determining the differences between individuals. Senator James explained he sees the bill in exactly the opposite light, seeing A.B. 606 as taking the state in a direction leading to unity, rather than division. This bill, he asserted, requires people to ignore the various distinctions among people. If they do not, and act because of these distinctions, the penalty should be greater, he opined. Senator Washington voiced agreement with the chairman's view, adding discrimination is not something to be tolerated. The final witness to speak was David S. Gibson, Attorney, Office of the Clark County Public Defender. He stressed each of the concerns raised during the hearing will likely be litigated in the future. He voiced support for the ideas behind the bill, but said he feels there are some sections which might create problems. Mr. Gibson pointed out that section 2, subsection 2(b) recreates problems of the habitual criminal statutes. A.B. 606 allows the state to plead the allegations in the alternative within the Information or Indictment that is filed with the district court. There is a need to clarify the procedure used to enhance penalties, he declared, particularly in reference to the habitual criminal statute. Many cases have been reversed by the state supreme court, he reported, because the process used to enhance penalties has not been followed correctly. For example, many cases are overturned because information that is not correctly a part of the guilt phase of the trial is brought out. References to groups the defendant belongs to or past acts which indicate something that is not clearly and directly tied to the facts of the case result in the conviction being overturned. He suggested if these things (evidence of hate motivation for the crime) are going to be alleged in an Information simply for enhancement purposes, the facts should be handled the same way other information is added to these documents as in the case of a habitual criminal allegations. The chairman opined this would be the case and the witness asked that the intent be clearly spelled out. The senator agreed to do so. He asked the witness what access the jury has to the Information, or if the facts they receive are only those provided through a reading aloud of the Information. During the guilt phase, Mr. Gibson explained, the enhancement portion is not read to the jury. The chairman stated for the record, "this is an enhancement, not an element of the crime. Thus, you prove the crime separately from proving the elements of the enhancement." He asked for confirmation of this from Ben Graham, Chief Deputy, Clark County District Attorney, Lobbyist, Nevada District Attorneys Association. Mr. Graham asserted the true intent of this legislation is as outlined by the chairman, as strictly an enhancement to the penalty. The information about the motivation of hate would not be introduced until the penalty phase. Judge Hyde concurred with this interpretation. Senator Adler outlined the procedure. He told, the jury would return a verdict of guilty of the crime; then additional evidence would be presented about the motivation behind the crime. He asked if there would be a bifurcated or two-part hearing? Mr. Gibson reported this is an option under the habitual criminal statute. There should be a separate hearing, he asserted, noting the procedure needs to be spelled out clearly. Senator Adler asked if the same language as is included in death penalty cases should be incorporated into this law. Mr. Gibson opined the allegation of motivation needs to be proved beyond a reasonable doubt. The senator agreed. Mr. Gibson told of a recent sentencing he attended. He told... ... he watched Judge Leavitt sentence a young man, in a rock- throwing case, to 10 years. The department [of Parole and Probation] had recommended 6 [years] or something. They did bring up information that statements that the individual had made to the police about the racial origin of the victim and some things like that. The judge found, there on the record, that he did believe that the crime was motivated by hate and sentenced the individual to 10 years instead of 6 years. He was within his statutory right on the 2-10 for battery with substantial bodily injury to do that, and he enhanced it within the 10 years. You know, when you go beyond that statutory limit and you start to add time beyond that, then you have a whole other question. And I think you probably need to look at the wording of the habitual criminal statute and maybe put that language in there... Senator Adler interjected the habitual criminal statute does a lot with judgements and convictions, while this bill actually requires primary factual determinations, which is more like a death-penalty case. Mr. Gibson agreed, adding another question: "How much leeway does the court have. Say you prove these things beyond a reasonable doubt, but the judge decides, `well, this is a stupid kid, that did this...'." The senator pointed out the bill provides leeway because it allows up to 25 percent of the original sentence. These were the points Mr. Gibson wished to point out, he said, noting he really is not at the hearing as a proponent or opponent to the bill. Mr. Graham said it might be necessary to insert a short clarifying statement. Senator Adler opined there needs to be language which says, "shall be a separate hearing to prove up the elements..." Senator James asked if this hearing was to be before the jury. Senator Adler replied affirmatively, noting they are the ones to decide if the enhancement is applicable. Judge Hyde came forward to clarify. He stated, It seems to me you can show motivation as part of the case-in-chief. I don't see that this is different. Here you would be showing motivation. I don't think that's prejudicial, and I think you would then instruct the jury that if they found that this was the motivation, that would be part of their verdict. Then the sentencing would be within the discretion of the judge. So, I don't really see that you need to have language requiring a separate hearing. The chairman could not agree, opining the evidence would be prejudicial. He added there should be a separate phase to the hearing in order to ensure the person is convicted of doing the act before bringing in aspects of why, unless the motivation is an element of proving "motive, intent, opportunity" to commit the act. He stated that is a different kind of a motive, where the bill speaks of the motive of prejudice. Judge Hyde emphasized that prejudice is simply motivation which can be proved as part of proving beyond a reasonable doubt that this individual did it, "that he had a motivation to do it." The chairman speculated discussions of this motivation would bring in information that "is far afield of evidence that would normally come in in a criminal trial, because of the nature of the statute." The judge disagreed. He referred to testimony given by the law enforcement representatives. They testified that when these crimes are committed it has been "made very apparent as to the reason for the crime being committed. That kind of information is currently being brought forward as part of the motivational evidence, he asserted, and this is no different, except it would require a different instruction to the jury. Senator James asked if it could be discretionary on the part of the judge as to whether a separate penalty phase should be used. He suggested the bill be amended to add the stalking language, with no other changes, relying on the legislative record as to other aspects of questions of intent. In the next session, if the law appears to need adjustment, then it can be addressed procedurally, he offered. Senator Adler suggested wording: "the court may conduct a separate hearing before the jury to prove the enhancement, after the jury has returned a verdict on the primary offense." Thus, if the case existed where the fact the defendant was a Nazi was not relevant to the case-in-chief, but was relevant to the enhancement, the judge could decide. Judge Hyde added the defense could raise the issue that the information is highly prejudicial and should not be brought up. Senator James again suggested the bill be amended to include the stalking language and then to rely on the record of the hearing to clarify intent. There was no further testimony and the hearing on A.B. 606 was closed. The chairman called for a motion to amend and do pass A.B. 606. SENATOR TITUS MOVED TO AMEND AND DO PASS A.B. 606 IN REGARD TO THE STALKING STATUTE. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** Senator James moved to A.B. 598. He briefly explained for those who were absent during this portion of the hearing. He called for a motion. SENATOR McGINNESS MOVED TO DO PASS A.B. 598. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** SENATE BILL 335: Prohibits person from having actual physical possession of firearm while under influence of intoxicating liquor or controlled substance. Senator James explained this is the bill requested by Senator Adler which was amended by the Assembly. He asked the senator if he was aware of the amendment. Senator Adler explained he likes the amendment because it says if a person is in their own home, even if drunk, and another person is breaking into the home, the home owner could retrieve a firearm to protect himself and would not be guilty of a crime. The chairman called for a motion to concur in the Assembly amendment to S.B. 335. SENATOR ADLER MOVED THE COMMITTEE CONCUR IN THE ASSEMBLY'S AMENDMENT TO S.B. 335. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** ASSEMBLY BILL 109: Authorizes issuance of protective order for victim of person charged with crime of harassment or stalking who is acquitted by reason of insanity. Senator James explained that since the Legislature has passed the insanity defense bill (removing the innocent by reason of insanity defense), there is no need to move A.B. 109. Mr. Graham has represented the bill is unnecessary and Assemblywoman Stroth has asked the bill be removed from consideration. He called for a motion to indefinitely postpone the bill. SENATOR ADLER MOVED TO INDEFINITELY POSTPONE A.B. 109. SENATOR PORTER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** There was no further business before the committee. The chairman adjourned the hearing at 8:35 a.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary June 24, 1995 Page