SB 170: "An Act relating to the Code of Criminal Procedure; relating to defenses, affirmative defenses, and justifications to certain criminal acts; relating to rights of prisoners after arrest; relating to discovery, immunity from prosecution, notice of defenses, admissibility of certain evidence, and right to representation in criminal proceedings; relating to sentencing, probation, and discretionary parole; amending Rule 16, Alaska Rules of Criminal Procedure, and Rules 404, 412, 609, and 803, Alaska Rules of Evidence; and providing for an effective date."
00 SENATE BILL NO. 170 01 "An Act relating to the Code of Criminal Procedure; relating to defenses, affirmative 02 defenses, and justifications to certain criminal acts; relating to rights of prisoners after 03 arrest; relating to discovery, immunity from prosecution, notice of defenses, 04 admissibility of certain evidence, and right to representation in criminal proceedings; 05 relating to sentencing, probation, and discretionary parole; amending Rule 16, Alaska 06 Rules of Criminal Procedure, and Rules 404, 412, 609, and 803, Alaska Rules of 07 Evidence; and providing for an effective date." 08 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 09 * Section 1. AS 11.41.115(a) is amended to read: 10 (a) In a prosecution under AS 11.41.100(a)(1)(A) or 11.41.110(a)(1), it is an 11 affirmative [A] defense that the defendant acted in a heat of passion, before there had 12 been a reasonable opportunity for the passion to cool, when the heat of passion 13 resulted from a serious provocation by the intended victim.
01 * Sec. 2. AS 11.81.330 is amended by adding new subsections to read: 02 (c) Except as provided in (d) of this section, the justification specified in (a) of 03 this section is an affirmative defense. 04 (d) The justification specified in (a) of this section is a defense if the person is 05 (1) on premises that the person owns or leases, the person is not the 06 initial aggressor, and the other person is not a household member as defined in 07 AS 18.66.990; or 08 (2) a peace officer acting within the scope and authority of the officer's 09 employment or is a person assisting a peace officer under AS 11.81.380. 10 * Sec. 3. AS 11.81.335(a) is amended to read: 11 (a) Except as provided in (b) and (c) of this section, a person may use deadly 12 force upon another person when and to the extent 13 (1) the use of nondeadly force is justified under AS 11.81.330; and 14 (2) the person reasonably believes the use of deadly force is necessary 15 for self defense against death, serious physical injury, kidnapping, sexual assault in the 16 first degree, sexual assault in the second degree, or robbery in any degree. 17 * Sec. 4. AS 11.81.335 is amended by adding new subsections to read: 18 (c) A person may not use deadly force under this section if the person brought 19 a deadly weapon to an encounter with reckless disregard that the encounter would 20 result in combat. 21 (d) Except as provided in (e) of this section, the justification specified in (a) of 22 this section is an affirmative defense. 23 (e) The justification specified in (a) of this section is a defense if the person is 24 (1) on premises that the person owns or leases, the person is not the 25 initial aggressor, and the other person is not a household member as defined in 26 AS 18.66.990; or 27 (2) a peace officer acting within the scope and authority of the officer's 28 employment or is a person assisting a peace officer under AS 11.81.380. 29 * Sec. 5. AS 11.81.340 is amended by adding new subsections to read: 30 (b) Except as provided in (c) of this section, the justification specified in (a) of 31 this section is an affirmative defense.
01 (c) The justification specified in (a) of this section is a defense if the person 02 claiming the defense of justification 03 (1) reasonably believes that the third person is on premises that the 04 third person owns or leases and the third person is not the initial aggressor; 05 (2) is a peace officer acting within the scope and authority of the 06 officer's employment or is a person assisting a peace officer under AS 11.81.380. 07 * Sec. 6. AS 12.25.150(b) is repealed and reenacted to read: 08 (b) Immediately after an arrest, a prisoner has the right to (1) telephone or 09 otherwise communicate with the prisoner's attorney; (2) telephone or otherwise 10 communicate with any relative or friend; (3) a visit from an attorney at law entitled to 11 practice in the courts of Alaska requested by the prisoner; and (4) a visit from a 12 relative or friend requested by the prisoner. This subsection does not provide a 13 prisoner with the right to initiate communication or attempt to initiate communication 14 under circumstances proscribed under AS 11.56.755. 15 * Sec. 7. AS 12.45 is amended by adding a new section to article 2 to read: 16 Sec. 12.45.117. Admissibility of prior convictions. (a) In a prosecution for 17 a crime that has a prior conviction as an element of the offense, the following are 18 admissible to prove any element of the offense: 19 (1) evidence of the prior conviction of the defendant; 20 (2) a stipulation made by the defendant to the prior conviction. 21 (b) In a prosecution for a crime that has a prior conviction as an element of the 22 offense, the defendant may raise a legal challenge to the validity of a prior conviction 23 only by proving, by a preponderance of evidence to a judge sitting without a jury, that 24 the prior conviction is invalid because the defendant was denied the right to counsel or 25 the right to a jury trial. 26 (c) In this section, 27 (1) "denied the right to counsel" means that under the law of the 28 jurisdiction in which the conviction was entered, the defendant had no right to court- 29 appointed counsel and in that particular case the defendant did not retain counsel; 30 (2) "right to a jury trial" means that under the law of the jurisdiction in 31 which the conviction was entered, the defendant was entitled to a trial by a jury of six
01 or more persons. 02 * Sec. 8. AS 12.50.101(a) is amended to read: 03 (a) If a witness refuses on the basis of the privilege against self-incrimination 04 to testify or provide other information in a criminal proceeding before or ancillary to a 05 court or grand jury of this state, and a judge issues an order under (b) of this section, 06 the witness may not refuse to comply with the order on the basis of the privilege 07 against self-incrimination. If the witness fully complies with the order, the witness 08 may not be prosecuted for an offense about which the witness is compelled to 09 testify [NO TESTIMONY OR OTHER INFORMATION COMPELLED UNDER 10 THE ORDER, OR INFORMATION DIRECTLY OR INDIRECTLY DERIVED 11 FROM THAT TESTIMONY OR OTHER INFORMATION, MAY BE USED 12 AGAINST THE WITNESS IN A CRIMINAL CASE], except in a prosecution based 13 on perjury, giving a false statement[,] or otherwise knowingly providing false 14 information, or hindering prosecution. 15 * Sec. 9. AS 12.50.101(b) is amended to read: 16 (b) In the case of an individual who has been or may be called to testify or 17 provide other information in a criminal proceeding before or ancillary to a court or a 18 grand jury of this state, a superior or district court for the judicial district in which the 19 proceeding is or may be held shall issue, upon the application of the prosecutor 20 [ATTORNEY GENERAL OR THE ATTORNEY GENERAL'S DESIGNEE] in 21 accordance with (d) of this section, an order requiring the individual to give testimony 22 or provide other information that the individual refuses to give or provide based on the 23 privilege against self-incrimination. 24 * Sec. 10. AS 12.50.101(d) is amended to read: 25 (d) The prosecutor [ATTORNEY GENERAL OR THE ATTORNEY 26 GENERAL'S DESIGNEE] may apply for an order under (b) of this section when, in 27 the judgment of the prosecutor [ATTORNEY GENERAL OR THE ATTORNEY 28 GENERAL'S DESIGNEE], 29 (1) the testimony or other information may be necessary to the 30 administration of criminal justice; and 31 (2) the individual who is the subject of the application has refused or is
01 likely to refuse to testify or to provide other information on the basis of the privilege 02 against self-incrimination. 03 * Sec. 11. AS 12.50.101(e) is amended by adding a new paragraph to read: 04 (2) "proffer" means a written or oral statement by the attorney for the 05 witness, stating the attorney's good faith belief of the substance of the witness's 06 testimony or other information. 07 * Sec. 12. AS 12.50.101 is amended by adding new subsections to read: 08 (f) If a witness refuses, or there is reason to believe that a witness will refuse, 09 to testify or provide other information based on the privilege against self- 10 incrimination, and if the prosecutor has not applied for an order under (b) of this 11 section, the court shall inform the witness of the right to be represented by an attorney 12 and that an attorney will be appointed for the witness if the witness qualifies for 13 representation by an attorney under AS 18.85. The court shall recess the proceeding 14 to allow the witness to consult with the attorney for the witness. 15 (g) If the prosecutor declines to seek an order under (b) of this section after the 16 witness has had an opportunity to consult with the attorney for the witness, and the 17 witness continues to refuse to testify or provide other information, the court shall hold 18 a hearing to determine the validity of the claim of privilege by the witness. The 19 hearing shall be in camera. The court shall permit the prosecutor to be present at the 20 hearing under this subsection. 21 (h) At the hearing under (g) of this section, the attorney for the witness, in the 22 form of a written or oral proffer, shall describe the testimony or other information that 23 the witness claims is privileged. The proffer must include a description of how the 24 testimony or other information could connect the witness with a crime. The proffer is 25 privileged and inadmissible for any other purpose. A copy of any written proffer shall 26 be provided to the prosecutor. The court shall allow the prosecutor an opportunity to 27 be heard at the hearing under (g) of this section on the merits of the claim. If the 28 witness establishes a factual basis that there is a real or substantial danger that the 29 testimony or other information to be compelled would support a conviction or would 30 furnish a link in the chain of evidence leading to conviction of a crime, the court may 31 find that the witness has a valid claim of privilege. If the court finds that the witness
01 has a valid claim of privilege, it shall specify the crimes to which the privilege applies. 02 * Sec. 13. AS 12.55.025(c) is amended to read: 03 (c) Except as provided in (d) [AND (e)] of this section, when a defendant is 04 sentenced to imprisonment, the term of confinement commences on the date of 05 imposition of sentence unless the court specifically provides that the defendant must 06 report to serve the sentence on another date. If the court provides another date to 07 begin the term of confinement, the court shall provide the defendant with written 08 notice of the date, time, and location of the correctional facility to which the defendant 09 must report. A defendant shall receive credit for time spent in custody pending trial, 10 sentencing, or appeal, if the detention was in connection with the offense for which 11 sentence was imposed. A defendant may not receive credit for more than the actual 12 time spent in custody pending trial, sentencing, or appeal. The time during which a 13 defendant is voluntarily absent from official detention after the defendant has been 14 sentenced may not be credited toward service of the sentence. 15 * Sec. 14. AS 12.55 is amended by adding a new section to read: 16 Sec. 12.55.127. Consecutive terms of imprisonment. (a) If a defendant is 17 required to serve a term of imprisonment under a separate judgment, any term of 18 imprisonment imposed in a later judgment, amended judgment, or probation 19 revocation shall be consecutive. 20 (b) Except as provided in (c) of this section, if a defendant is being sentenced 21 for two or more crimes in a single judgment, terms of imprisonment may be 22 concurrent or partially concurrent. 23 (c) If the defendant is being sentenced for 24 (1) escape, the term of imprisonment shall be consecutive to the term 25 for the underlying crime; 26 (2) two or more crimes under AS 11.41, a consecutive active term of 27 imprisonment shall be imposed for at least 28 (A) the mandatory minimum term under AS 12.55.125(a) for 29 each additional crime that is murder in the first degree; 30 (B) the mandatory minimum term for each additional crime 31 that is an unclassified felony governed by AS 12.55.125(b);
01 (C) the presumptive term specified in AS 12.55.125(c) or the 02 active term of imprisonment, whichever is less, for each additional crime that 03 is 04 (i) manslaughter; or 05 (ii) kidnapping that is a class A felony; 06 (D) two years or the active term of imprisonment, whichever is 07 less, for each additional crime that is criminally negligent homicide; 08 (E) one-fourth of the presumptive term under AS 12.55.125(c) 09 or (i) for each additional crime that is sexual assault in the first degree under 10 AS 11.41.410 or sexual abuse of a minor in the first degree under 11 AS 11.41.434, or an attempt, solicitation or conspiracy to commit those 12 offenses; and 13 (F) some active term of imprisonment for each additional 14 crime, or each additional attempt or solicitation, under AS 11.41.200 - 15 11.41.250, 11.41.420 - 11.41.432, 11.41.436 - 11.41.458, or 11.41.500 - 16 11.41.520. 17 (d) In this section, 18 (1) "active term of imprisonment" means the total term of 19 imprisonment imposed for a crime, minus suspended imprisonment; 20 (2) "additional crime" means a crime that is not the primary crime; 21 (3) "primary crime" means the crime 22 (A) for which the sentencing court imposes the longest active 23 term of imprisonment; or 24 (B) that is designated by the sentencing court as the primary 25 crime when no single crime has the longest active term of imprisonment. 26 * Sec. 15. AS 12.55.145 is amended by adding new subsections to read: 27 (h) For purposes of imposing a sentence under this chapter, a defendant may 28 challenge the legal validity of a prior conviction only if the defendant was denied the 29 right to counsel or the right to a jury trial. The burden of proof for a challenge under 30 this subsection is on the defendant by a preponderance of evidence. 31 (i) In this section,
01 (1) "denied the right to counsel" means that under the law of the 02 jurisdiction in which the conviction was entered, the defendant had no right to court- 03 appointed counsel and in that particular case the defendant did not retain counsel; 04 (2) "right to a jury trial" means that under the law of the jurisdiction in 05 which the conviction was entered, the defendant was entitled to a trial by a jury of six 06 or more persons. 07 * Sec. 16. AS 12.55.155(d) is amended by adding a new paragraph to read: 08 (18) in a conviction for an offense under AS 11.41.410 - 11.41.470, the 09 defendant reduced the impact of the offense on the victim by entering a plea of guilty 10 or no contest within 30 days of being arraigned in superior court on the charge. 11 * Sec. 17. AS 18.85.100 is amended by adding a new subsection to read: 12 (f) Notwithstanding (a) of this section, an indigent person is entitled to the 13 representation and necessary services and facilities of representation as provided in (a) 14 of this section, when the person is a witness who refuses, or there is reason to believe 15 will refuse, to testify or provide other information based on the privilege against self- 16 incrimination. 17 * Sec. 18. AS 33.16.090(b) is amended to read: 18 (b) Except as provided in (e) of this section, a prisoner is not eligible for 19 discretionary parole during the term of a presumptive sentence; however, a prisoner is 20 eligible for discretionary parole during a term of sentence enhancement imposed under 21 AS 12.55.155(a) or during the term of a consecutive or partially consecutive 22 presumptive sentence imposed under AS 12.55.127 [AS 12.55.025(e) OR (g)]. A 23 prisoner sentenced to a mandatory 99-year term under AS 12.55.125(a) or a definite 24 term under AS 12.55.125(l) is not eligible for discretionary parole during the entire 25 term. 26 * Sec. 19. AS 33.16.090(c) is amended to read: 27 (c) Except as provided in (e) of this section, a prisoner eligible for 28 discretionary parole during a period of sentence enhancement imposed under 29 AS 12.55.155(a) or during a consecutive or partially consecutive presumptive sentence 30 imposed under AS 12.55.127 [AS 12.55.025(e) OR (g)] shall serve the unenhanced 31 portion of the sentence or the initial presumptive sentence before being otherwise
01 eligible for discretionary parole under AS 33.16.100(c) or (d). For purposes of this 02 subsection, the sentence for the most serious offense in the case of consecutive or 03 partially consecutive presumptive sentences shall be considered the initial presumptive 04 sentence. The unenhanced sentence or the initial presumptive sentence is considered 05 served for purposes of discretionary parole on the date the unenhanced or initial 06 presumptive sentence is due to expire less good time earned under AS 33.20.010. 07 * Sec. 20. AS 12.55.025(e), 12.55.025(g), and 12.55.025(h) are repealed. 08 * Sec. 21. The uncodified law of the State of Alaska is amended by adding a new section to 09 read: 10 DIRECT COURT RULE AMENDMENT. Rule 16(c)(5), Alaska Rules of Criminal 11 Procedure, is amended to read: 12 (5) Notice of Defenses. Unless a different date is set by the court, no 13 later than 30 [10] days before [PRIOR TO] trial, the defendant shall inform the 14 prosecutor if [OF] the defendant is likely [DEFENDANT'S INTENTION] to rely 15 upon a defense of alibi, justification, duress, entrapment, or other statutory or 16 affirmative defense. Failure to provide [TIMELY] notice 30 days before trial 17 entitles [UNDER THIS RULE SHALL ENTITLE] the prosecutor to a continuance. If 18 the court finds that a continuance is not an adequate remedy under the circumstances 19 of the case, the court may impose other sanctions, including prohibiting the defendant 20 from asserting the designated defense; however, if the defendant fails to provide 21 notice at least seven days before trial, the court shall prohibit the defendant from 22 asserting the designated defense. The defendant shall give notice of an insanity 23 defense or a defense of diminished capacity due to mental disease or defect in 24 compliance with AS 12.47. 25 * Sec. 22. The uncodified law of the State of Alaska is amended by adding a new section to 26 read: 27 DIRECT COURT RULE AMENDMENT. Rule 16(e)(1), Alaska Rules of Criminal 28 Procedure, is amended to read: 29 (1) Failure to Comply with Discovery Rule or Order. In addition to 30 any other consequences provided in statute or these rules, if [IF] at any time 31 during the course of the proceedings it is brought to the attention of the court that a
01 party has failed to comply with an applicable discovery rule or an order issued 02 pursuant thereto, the court shall order such party to permit the discovery of material 03 and information not previously disclosed or enter such other order as it deems just 04 under the circumstances. 05 * Sec. 23. The uncodified law of the State of Alaska is amended by adding a new section to 06 read: 07 DIRECT COURT RULE AMENDMENT. Rule 16, Alaska Rules of Criminal 08 Procedure, is amended by adding new subsections to read: 09 (g) Mandatory disclosure of expert witnesses. 10 (1) No later than 45 days before the first trial date set by the court, the 11 prosecution and defense shall provide opposing counsel with the following 12 information: 13 (A) the prosecution shall provide the defense with the name, 14 address, telephone number, and curriculum vitae of any expert witness 15 (i) that the prosecution may call at trial or other court 16 proceeding; 17 (ii) who has performed work, other than solely for the 18 purpose of trial preparation, in connection with the case; 19 (B) the defense shall provide the prosecution with the name, 20 address, telephone number, and curriculum vitae of any expert witness that the 21 defense may call at trial or other court proceeding. 22 (2) At the time of disclosure under (1) of this rule, each party shall 23 provide the opposing party with a written report by the expert witness made in 24 connection with the case. If a written report is not made by the expert, or the written 25 report does not provide fair notice of the expert's opinion and the basis for the opinion, 26 counsel shall provide a good faith written description of the substance of the proposed 27 testimony. The written description may be used for cross-examination of the expert to 28 the same extent as a report by the expert. The written description by counsel shall 29 include the expert's opinion and the basis for the opinion. Upon request, counsel shall 30 make the expert available for a telephonic or in-person deposition or recorded 31 interview, with fees for the expert being paid by the party that has retained the expert.
01 (3) If a party retains an expert in response to discovery exchanged 02 under (1) and (2) of this subsection, the party's counsel shall provide opposing counsel 03 with the information described in (1) of this subsection within 15 days, or 30 days 04 before trial, whichever is later. A written report by the expert or the written 05 description by counsel under (2) of this subsection must be provided to opposing 06 counsel at a time before trial set by the court. 07 (4) The disclosure requirements in this subsection do not apply to 08 peace officers and other crime investigators regarding their on-scene observations, and 09 conclusions drawn from their observations, if (A) their observations are made in the 10 normal course of duties at or near the time of the offense; (B) their conclusions are 11 based on their training and experience; and (C) the witness prepared a written report 12 that was exchanged in discovery under this rule. In this paragraph, "other crime 13 investigator" means a person retained or employed by a party to interview witnesses 14 and gather evidence. 15 (5) At any time in the course of the proceedings, if it is brought to the 16 attention of the court that a party has failed to comply with the requirements of this 17 subsection or an order issued under it, the court 18 (A) shall order the nondisclosing party to provide the 19 information required to be disclosed; 20 (B) if requested, shall grant a party a continuance to investigate 21 or otherwise respond to the undisclosed material or information; 22 (C) if disclosure under (1) and (2) of this subsection is not 23 complete within seven days before trial, or disclosure under (3) of this 24 subsection is not made at the time ordered by the court, shall prohibit the 25 nondisclosing party from presenting the witness's testimony. 26 (h) Definition. In this rule, if disclosure is required at a specified time before 27 trial, "trial" means the first day of jury selection or, if there is no jury, the first day on 28 which testimony is presented. 29 * Sec. 24. The uncodified law of the State of Alaska is amended by adding a new section to 30 read: 31 DIRECT COURT RULE AMENDMENT. Rule 412, Alaska Rules of Evidence, is
01 amended to read: 02 Rule 412. Evidence Illegally Obtained. Evidence illegally obtained shall not 03 be used over proper objection by the defendant in a criminal prosecution for any 04 purpose except: 05 (1) a statement illegally obtained in violation of the right to warnings 06 under Miranda v. Arizona, 384 U.S. 436 (1966), may be used in a prosecution for 07 perjury if the statement is relevant to the issue of guilt or innocence or to impeach the 08 person who made the statement [AND] if the prosecution shows that the statement 09 was otherwise voluntary and not coerced; and 10 (2) other evidence illegally obtained may be admitted in a prosecution 11 for perjury if it is relevant to the issue of guilt or innocence or to impeach a witness 12 [AND] if the prosecution shows that the evidence was not obtained in substantial 13 violation of rights. 14 * Sec. 25. The uncodified law of the State of Alaska is amended by adding a new section to 15 read: 16 DIRECT COURT RULE AMENDMENT. Rule 609(b), Alaska Rules of Evidence, is 17 amended to read: 18 (b) Time Limit. Evidence of a conviction under this rule is inadmissible if a 19 period of more than five years has elapsed since the date of unconditional discharge 20 from the conviction. The court may, however, allow evidence of the conviction of the 21 witness other than the accused in a criminal case after more than five years have 22 elapsed if the court is satisfied that admission in evidence is necessary for a fair 23 determination of the case. 24 * Sec. 26. The uncodified law of the State of Alaska is amended by adding a new section to 25 read: 26 DIRECT COURT RULE AMENDMENT. Rule 803, Alaska Rules of Evidence, is 27 amended by adding a new paragraph to read: 28 (24) Domestic Violence Report. A statement reporting or describing 29 a crime involving domestic violence made within 24 hours of the alleged offense, 30 either by the alleged victim or by another person who saw or heard the offense. 31 * Sec. 27. The uncodified law of the State of Alaska is amended by adding a new section to
01 read: 02 REPEAL OF COURT RULES. Rules 16(b)(1)(B) and 16(c)(4), Alaska Rules of 03 Criminal Procedure, are repealed. 04 * Sec. 28. The uncodified law of the State of Alaska is amended by adding a new section to 05 read: 06 INDIRECT COURT RULE AMENDMENT. AS 12.45.117(a), added by sec. 7 of this 07 Act, has the effect of changing Rule 404, Alaska Rules of Evidence, by requiring that 08 evidence of prior convictions or stipulations made by the defendant of the prior conviction, 09 when the prior convictions are an element of an offense, be admissible in the prosecution's 10 initial presentation of its case. 11 * Sec. 29. The uncodified law of the State of Alaska is amended by adding a new section to 12 read: 13 CONDITIONAL EFFECT. AS 12.45.117(a), added by sec. 7 of this Act, takes effect 14 only if sec. 28 of this Act receives the two-thirds majority vote of each house required by art. 15 IV, sec. 15, Constitution of the State of Alaska. 16 * Sec. 30. The uncodified law of the State of Alaska is amended by adding a new section to 17 read: 18 APPLICABILITY. (a) The changes made in secs. 1 - 5, 14, and 18 - 20 of this Act 19 apply to offenses committed on or after the effective date of this Act. 20 (b) The changes made in secs. 6 - 13, 15 - 17, and 21 - 29 of this Act apply to criminal 21 proceedings for offenses committed before, on, or after the effective date of this Act. 22 * Sec. 31. This Act takes effect July 1, 2003.