Legislature(2003 - 2004)

2003-04-04 Senate Journal

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2003-04-04                     Senate Journal                      Page 0693
SB 170                                                                                            
SENATE BILL NO. 170 BY THE SENATE RULES COMMITTEE                                                   
BY REQUEST OF THE GOVERNOR, entitled:                                                               
          "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                                         
was read the first time and referred to the Judiciary and Finance                                   
The following fiscal information was published today:                                               
 Fiscal Note No. 1, Department of Corrections                                                       
 Fiscal Note No. 2, zero, Department of Law                                                         
Governor's transmittal letter dated April 3:                                                        
Dear President Therriault:                                                                          
Under the authority of art. III, sec. 18, of the Alaska Constitution, I am                          
transmitting a bill making changes to criminal procedures that would                                
allow for more straightforward and fair prosecution of crime in                                     
Alaska. Additionally, the bill would improve the criminal law                                       
regarding sentences.                                                                                

2003-04-04                     Senate Journal                      Page 0694
The bill proposes the following changes in criminal procedures.                                     
Deterring Those Who Take Deadly Weapons to a Fight. We have to                                    
cut down on the violence on our streets. There are too many drug                                    
dealers, gang members, and violent people who bring guns to                                         
situations where they know they will get into fights; they then claim                               
self-defense when they use the gun. Too many innocent people die,                                   
and prosecution is too difficult. We need to put a stop to this. If you                             
bring a gun to a fight, you should be responsible for the consequences.                             
Self-defense should not excuse a killing if the defendant brought a                                 
deadly weapon to a confrontation with reason to believe that combat                                 
would result. The Alaska Supreme Court long ago declared in Bangs                                   
v. State, 608 P.2d 1 (Alaska 1980), that a person who brings a deadly                               
weapon to a confrontation, having reason to know that the encounter                                 
will likely result in combat, should not be entitled to self-defense                                
protection. But trial judges have become too loose in enforcing the                                 
Alaska Supreme Court's admonition. A defendant who brings a gun to                                  
an encounter and uses it to finish a fight should not be able to claim                              
Improving the Law of Self-Defense, Deadly Force In Self-Defense,                                  
Heat Of Passion, And Other Defenses. A related change is also                                     
necessary in the law of self-defense and "heat of passion." The                                     
prosecution always bears the burden of proving the essential elements                               
of an offense, but if the defendant is going to raise a defense of which                            
the defendant has exclusive knowledge, the defendant should have the                                
burden to prove the defense by a preponderance of the evidence. This                                
is called an affirmative defense, and the legislature has already created                           
many examples in the Alaska Statutes. For example, duress is an                                     
affirmative defense. To establish duress, the defendant must prove that                             
the defendant was coerced to commit a crime by a threat of imminent                                 
harm. The burden is correctly on the defendant, because only the                                    
defendant knows the effect of the threat.                                                           
The bill would change several similar defenses -- heat of passion, self-                            
defense, the use of deadly force in self-defense, and defense of a third                            
person -- to affirmative defenses. Currently, prosecutors must prove a                              
negative. For example, if the defendant claims heat of passion (a                                   
defense to intentional murder in the first and second degrees), the state                           
would have to disprove that the victim, who is dead, acted in a way to                              

2003-04-04                     Senate Journal                      Page 0695
arouse the passion of the defendant. The bill provides that the                                     
defendant, who is often the only eyewitness still alive at trial, would                             
be required to prove that "heat of passion" was aroused because of                                  
provocation by the victim. Citizens who defend themselves in their                                  
own homes and must use force to protect their families are not affected                             
by this change. If the person acting in self-defense is a peace officer,                            
or is on the person's own premises and is not assaulting a household                                
member, this bill leaves the current law on self-defense intact, and                                
requires that the prosecution disprove self-defense.                                                
Right of Arrested Person. The bill would clarify that a person who is                             
arrested has the right to a telephone call or visit from a friend, relative,                        
or attorney. However, the right belongs to the person arrested, to                                  
exercise at his or her discretion.                                                                  
Limiting Collateral Attacks on Prior Convictions. When an habitual                                
criminal commits a new crime, the punishment is often greater                                       
because of the person's prior convictions. But it is now a common                                   
tactic in the new criminal case to attack the old convictions on                                    
technicalities. This means that before the prosecutor can even begin to                             
prove the new crime, the prosecutor is forced to validate what                                      
happened in an old conviction, which is often from another state. This                              
is generally a fruitless inquiry. The law already provides many                                     
avenues by which offenders can have their convictions reviewed.                                     
Unless a conviction was invalid because the defendant was denied the                                
right to counsel or to a jury trial, the state should be able to rely on                            
those convictions in prosecuting repeat criminals.                                                  
Admissibility of Prior Convictions. In the criminal code, the                                     
conviction of a prior crime is, in a few cases, an element of another                               
offense. For example, having two prior drunk driving convictions                                    
within a certain period of time is an element of felony drunk driving.                              
The bill would clarify that in these circumstances, evidence of prior                               
convictions is admissible in order to prove all the elements of the                                 
charged offense. Although generally courts do not admit this evidence,                              
the legislature has the authority to allow it. The bill also would                                  
overrule Ostlund v. State, 51 P.2d 938 (Alaska App. 2002), which                                    
requires a bifurcated trial, by allowing, at any time in the prosecution,                           
evidence of prior convictions in the state's case if the prior conviction                           
is an element of the current crime.                                                                 

2003-04-04                     Senate Journal                      Page 0696
Grants of Immunity. The bill would give prosecutors the information                               
needed to decide whether to grant immunity to a witness. If a witness                               
claims a privilege against self-incrimination and refuses to testify, the                           
only way to obtain that testimony under the Alaska Constitution is to                               
give the person complete immunity for any crime the person may                                      
testify about. This makes it critical for the state to know what crimes                             
will be immunized before offering immunity, but that is impossible                                  
under current procedures used by the courts. The current practice is for                            
the judge to decide whether the witness is entitled to immunity in a                                
closed hearing in which the prosecution is not allowed to be present.                               
The prosecutor thus does not know what crimes require immunity. A                                   
homicide prosecution that currently is awaiting trial is a good                                     
example. The defendant, while in jail, allegedly tried to arrange for the                           
killing of the trooper transporting him to court, so the defendant could                            
escape. A cellmate notified the police, but will not testify without                                
immunity. The judge held a hearing without the prosecutor, and ruled                                
that the cellmate had a privilege against self-incrimination, but                                   
wouldn't reveal how the cellmate's testimony would incriminate him --                               
or even whether the cellmate feared prosecution for a felony or a                                   
misdemeanor. Unwilling to grant immunity blindfolded, the                                           
prosecutor must forego this powerful evidence of consciousness of                                   
guilt of the defendant.                                                                             
The bill would give guidance to the court for evaluating a claim of                                 
privilege, and would allow the prosecutor to obtain necessary                                       
information and to be present at any hearings on the matter. Judges                                 
thus would no longer decide these issues without hearing both sides,                                
and the prosecutor can make an informed decision about immunity.                                    
Consecutive Sentences. This bill also would strengthen and clarify the                            
law regarding consecutive sentences for conviction of more than one                                 
crime. In 1982, AS 12.55.025(e) and (g), which mandated full                                        
consecutive sentences for each count of homicide, assault, and sexual                               
offense, were enacted. But because of imprecise drafting, this clear                                
expression of legislative intent was instead interpreted to be merely a                             
"legislative preference" for consecutive sentences that courts were free                            
to ignore. State v. Andrews, 707 P.2d 900 (Alaska App. 1985), aff'd.                                
723 P.2d 85 (Alaska 1986). Later, in 1988, the legislature mandated                                 
consecutive sentences for assaults against children, but the provision                              
that was finally enacted provided no firm guidance to the courts,                                   
especially in the most serious sexual assaults. AS 12.55.025(h).                                    

2003-04-04                     Senate Journal                      Page 0697
As a result of the interpretations of the courts, trial judges ignore or                            
pay only nominal recognition to the legislature's preference for                                    
consecutive sentences. For example, in the recent case of State v.                                  
Glaser, the defendant was convicted of two counts of second degree                                  
murder and one count of first degree assault. The sentence imposed by                               
the superior court treated the drunk driving killing of two people and                              
the serious physical injury of a third person as if only one victim had                             
been affected by the crime, and imposed a sentence only slightly                                    
longer than the mandatory minimum sentence for a single count of                                    
second degree murder.                                                                               
This bill would adopt minimum requirements for consecutive                                          
sentencing in cases involving multiple counts of homicide,                                          
kidnapping, first degree sexual assault, and first degree sexual abuse of                           
a minor (sexual penetration). Although this bill does not go so far as                              
the fully consecutive sentencing reflected in the 1982 legislation, it                              
does provide more specific guidance than exists in current law. In a                                
second degree murder case such as State v. Glaser, for example, the                                 
bill would require that imprisonment for at least 10 consecutive years                              
be imposed for the second conviction of second degree murder, and                                   
some additional consecutive term of imprisonment be imposed for the                                 
assault on the third victim.                                                                        
Better Notice of Expert Witnesses And Defenses. Delay, confusion,                                 
and other problems often result from the inefficient exchange of                                    
information about defenses and expert witnesses in criminal                                         
prosecutions. The discovery rules are supposed to make pretrial                                     
procedure orderly and avoid surprises at trial. However, our                                        
prosecutors report that at times attorneys who give late notice or no                               
notice rarely suffer adverse consequences from the court, which                                     
encourages further disregard of the rules. The bill would adopt                                     
procedures for a more orderly exchange of expert witness information,                               
and it also would adopt firm sanctions for violation of the rules. If a                             
party does not provide notice of an expert in the time set out in the                               
rule, the person may not use the expert testimony. The bill also would                              
require that notice of certain defenses be made as required by the rules                            
or the offering of that defense could be forfeited.                                                 

2003-04-04                     Senate Journal                      Page 0698
Expanding Impeachment of Testimony. The bill also would amend                                     
several provisions in the Alaska Rules of Evidence. Under the current                               
rules, a statement obtained from a defendant that was not preceded by                               
the warnings required in Miranda v. Arizona, 384 U.S. 436 (1966), is                                
not admissible except in a prosecution for perjury. That is, although                               
the statement may not be used against the person for the underlying                                 
offense, it may be used in a subsequent perjury prosecution if the                                  
person testifies falsely at trial. The bill would expand this exception to                          
allow the statement to be used for impeachment if the person testifies                              
falsely. Under the current court rule, a defendant in a murder case                                 
whose statements to police were suppressed could lie with impunity on                               
the stand, knowing that at most the defendant faced a later prosecution                             
for perjury. The bill's change to the court rule would, however, allow                              
the defendant's statement to be used to contradict the defendant's                                  
testimony in the murder trial if the defendant lied.                                                
A similar court rule limits the use of evidence obtained with an invalid                            
search warrant or if the police make a mistake in the technical rules                               
governing search and seizure. Such evidence is not admissible for the                               
underlying prosecution, and can only be used in a subsequent perjury                                
case. This bill would allow this evidence to be used to impeach the                                 
defendant or other witness on cross-examination. The exclusionary                                   
rule discourages careless law enforcement by excluding illegally                                    
obtained evidence. It should not give witnesses a chance to testify                                 
falsely at trial.                                                                                   
Current rules also allow a witness's credibility to be impeached by a                               
prior conviction for a crime involving dishonesty or false statement                                
(for example, theft, robbery, burglary, perjury) if the conviction                                  
occurred within five years of the testimony. However, in many                                       
instances, the five-year period is over before the person is even out of                            
jail, so juries never find out that the person has a conviction for                                 
dishonesty. This bill would amend the court rule to allow juries to be                              
told of such convictions if less than five years has elapsed from the                               
person's unconditional discharge from probation or parole.                                          
Giving Juries the Full Picture in Domestic Violence Cases. Domestic                               
abusers often succeed in pressuring their domestic partners into not                                
testifying against the abuser. In order to prosecute such cases, the                                
prosecutor must be able to introduce evidence from other persons to                                 

2003-04-04                     Senate Journal                      Page 0699
tell the jury the whole story. But if the jury isn't allowed to know what                           
was said immediately after the assault, the jury only gets part of the                              
story. We can change this, and provide more perpetrators with the help                              
they need to stop abusing. Victims of domestic violence are often                                   
unavailable to testify at trial -- often for compelling reasons                                     
concerning their safety and the safety of their children. Under current                             
court rules, if the victim is not present, the statements of the victim are                         
admissible only if the statements qualify under the narrow rule for                                 
"excited utterances."                                                                               
This bill would expand that rule in domestic violence cases, so that a                              
jury can learn about all statements made within 24 hours of the crime,                              
if there are other indications of reliability. This hearsay exception                               
would apply to statements that an assault occurred, and also if the                                 
victim recanted and denied that an assault occurred.                                                
New Mitigating Factor for Defendants Who Show Concern for                                         
Victims of Sexual Offenses. Victims of sexual offenses, more so than                              
any other crime, dread testifying in open court and often view giving                               
testimony as being victimized again. They must not only testify in                                  
front of a jury of citizens and the defendant who violated them, but it                             
must be done in public and often in cases that gain press attention.                                
This is very traumatic for the victim. Sex offenders who have genuine                               
remorse for their crimes do not want to put the victim through this                                 
crucible. For those sex offenders who quickly plead guilty, thus                                    
sparing their victims the ordeal of public testimony, this bill would                               
provide a statutory "mitigating factor" that the judge may take into                                
consideration in reducing the person's sentence.                                                    
I urge your prompt and favorable consideration of this bill.                                        
Frank H. Murkowski