Legislature(2003 - 2004)
05/05/2004 04:22 PM House FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR SENATE BILL NO. 170(JUD)
An Act relating to murder in the second degree, the
justification of defense of self or others, immunity
from prosecution, sentencing, probation, discretionary
parole, and the right to representation in certain
criminal proceedings; relating to violation of a
custodian's duty; relating to sexual abuse of a minor;
relating to release of information concerning certain
cases involving a minor; relating to local options
regarding alcoholic beverages, the offense of
furnishing or delivery of alcoholic beverages to a
person under 21 years of age, and forfeiture of
property used in, and money or other items of value
used in financial transactions derived from, violation
of certain laws relating to alcoholic beverages;
relating to assault by means of a dangerous instrument;
relating to operating or driving a motor vehicle,
aircraft, or watercraft while under the influence of an
alcoholic beverage, inhalant, or controlled substance,
to the refusal to submit to a chemical test, and to the
presumptions concerning the chemical analysis of breath
or blood; and providing for an effective date.
CO-CHAIR HARRIS MOVED TO ADOPT Work Draft 23-GS1024, Version
S, Luckhaupt, dated 5-5-04, as the version of legislation
before the Committee. There being NO OBJECTION, it was so
ordered.
SUSAN PARKES, DEPUTY ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF LAW (DOL), explained that the seven amendments
from the Department of Law propose to move language from the
House version into the Senate version, and one amendment
from Co-Chair Williams proposes to delete a provision. With
the exception of Amendment #1 relating to self-defense, all
of the amendments and the revised Amendment #2, relating to
immunity and formerly Amendment #5, have been moved into the
Senate bill. She noted that Ms. Linda Wilson of the Public
Defender Agency had testified in support of those
amendments.
Ms. Parkes explained that the first change is found in
Section 7, raising provision of alcohol to a minor from an A
misdemeanor to a C felony. It allows a local option
community to opt out of making that change. The second
change is in Section 13, creating a new offense of assault
in the third degree, with criminal negligence causing
serious physical injury by means of a dangerous instrument.
Two definitions of "serious physical injury" appear in
subsections (a) and (b). The House limited the offense to
only the definition in subsection (b).
In response to a question by Representative Joule, Ms.
Parkes read from the definition of "dangerous instrument,"
and said that it is any deadly weapon, including knives,
guns, vehicles, bricks or bats.
Ms. Parkes explained that the next change appears in
subsection 27. The Senate version provided that once
convicted of a felony DUI, every subsequent DUI would also
be a felony. The House Judiciary Committee wanted to limit
subsequent felony DUIs to twenty years. This change has been
incorporated for both felony DUI and felony refusal.
Representative Stoltze asked how it meshes with the recently
passed HB 342. Ms. Parkes replied that HB 342 was a "look
back" and this is a "look forward." The Department believes
that the bills mesh without conflict.
Representative Chenault asked if HB 342 was a 15-year look
back. Ms. Parkes thought that it was a 15-year look back,
and then 15 years later, a DUI would be considered a first
offense.
Representative Chenault asked if the Department would prefer
a 20-year look back. Ms. Parkes clarified that this is a
20-year look forward that only applies to felonies. She
explained the triggers. Once someone commits a felony
offense, the sentencing moves into Title 12.
Backtracking, Ms. Parkes explained Amendment #2 regarding
third party custodians ordered by the judge as part of the
bail condition. The judge must make written or oral findings
describing the reason for the order. This change is now
incorporated into the Senate version, due to a Judicial
Council study showing that the third party custodian
requirement was holding people in jail for a longer period
of time.
The Amendment #8 proposed by Co-Chair Williams removed the
felony murder provision from the bill. Representative Joule
asked if Amendment #8 appears in Section 13, and Ms. Parkes
thought so [Amendment #8 deletes Section 13, which would
expand the felony murder rule to include the death of a
participant in the crime].
Ms. Parkes urged that Amendments #1 and #2 made by the House
Judiciary Committee and deleted by the Senate Judiciary
Committee be adopted into the Finance Committee Substitute.
Representative Stoltze asked if she had discussed the change
in immunity. Ms. Parkes clarified that it is the revised
Amendment #2, but there is a provision in the Work Draft
Version S that simply codifies current law.
Representative Joule asked if the House Judiciary provision
on rights to contact attorneys by friends or family does not
appear in this version. Ms. Parkes affirmed that it's not in
the Senate version and the DOL does not propose to adopt it.
Representative Fate referred to Section 17 and asked for a
description of non-deadly force. Ms. Parkes explained that
it includes pushing, hitting, or shoving without the intent
to kill; in other words, force without a deadly weapon. A
discussion ensued with Representative Fate.
Co-Chair Harris MOVED to ADOPT Amendment #1. Co-Chair
Williams OBJECTED.
Amendment #1 reads:
Page 11, following line 5:
Insert a new bill section to read:
"*Sec.19. AS 11.81 is amended by adding a new section to
read:
Sec.11.81.345. Defense of self and others. A court may
instruct the jury about justification described in AS
11.81.330-11.81.340 if the court, sitting without a jury,
finds that there is some plausible evidence to warrant a
reasonable jury to find elements of the justification."
Renumber the following bill sections accordingly.
Ms. Parkes noted that the Public Defender does not support
Amendment #1, which changes the level of evidence necessary
for the judge to instruct on self-defense. Currently under
case law, if there is some, even implausible evidence, the
judge instructs on self-defense. This proposes "some
plausible evidence," and it doesn't change the burden of
proof. Judges make these decisions all the time, and the
Department feels that it is an appropriate job for the
judge. With only implausible evidence of self-defense for a
jury to rely on, Ms. Parkes said that it might lead to
jurors making decisions based on speculation or conjecture.
Representative Croft commented that the amendment takes away
the self-defense from the jury and gives it to the judge.
He felt that the right to defend oneself before a jury is
very important. The Senate removed this after hearing it.
Representative Joule asked if it applies to both the grand
and petit jury systems. Ms. Parkes explained that the grand
jury is ex parte, or just the prosecutor with the jurors.
The grand jury does not receive jury instructions although
the prosecutor will instruct on self-defense if needed.
Co-Chair Williams upheld his objection to Amendment #1.
A roll call vote was taken on the motion to adopt Amendment
#1.
IN FAVOR: Hawker
OPPOSED: Stoltze, Chenault, Croft, Fate, Foster, Joule,
Meyer, Williams, Harris
Representative Moses was absent.
The MOTION FAILED (1-9). Amendment #1 was not adopted.
Co-Chair Harris MOVED to ADOPT Amendment #2. Co-Chair
Williams OBJECTED.
Amendment #2 reads:
Page 11, following line 20:
Insert the following:
"(1) "higher-level felony" means an unclassified
or class A felony;
(2) "lower-level felony" means a class B or class
C felony;"
Renumber the following paragraphs accordingly.
Page 12, lines 17 and 18:
Delete all material and insert:
"(i) If the court finds that the witness has a valid
claim of privilege, it shall advise an attorney designated
by the attorney general of that finding and inform the
attorney of the category or categories of offense to which
the privilege applies: a higher-level felony, a lower-level
felony, or a misdemeanor. If the designated attorney
decides that granting immunity to the witness is
appropriate, the designated attorney shall inform the
prosecution of that decision, and shall deliver or cause to
be delivered a letter to the witness, or an attorney for the
witness, granting immunity to the witness. The designated
attorney may not disclose the category of offense to
anyone."
Ms. Parkes explained that the Senate Judiciary Committee did
not consider Amendment #2. A prior immunity provision was
deleted and Representative Gruenberg proposed this
compromise. Currently when someone claims a right against
self-incrimination to testify, a judge conducts a hearing,
appoints an attorney, listens to his or her offer of proof,
and decides whether they have a valid right to immunity. The
judge informs the prosecutor that the person has a valid
Fifth Amendment privilege and, based on no information
whatsoever, the prosecutor must decide whether to give the
person immunity. The Gonzales Case interprets the
Constitution in the manner that Alaska must give
transactional immunity so that any crimes the person
discusses on the stand cannot be prosecuted.
Ms. Parkes explained that Amendment #2 proposes a
constitutional means for prosecutors to gain information to
make an informed decision about whether to offer immunity.
The risks are extremely high. She said that if immunity were
given to the wrong individuals, they would take the stand
and talk about serious crimes for which they can't be
prosecuted. However, if immunity is not given in very
serious cases, crucial evidence may not be offered to
prosecute a serious crime.
Ms. Parkes continued, this proposes that the judge not
inform the prosecutor of any information but instead,
appoint someone within the Criminal Division to grant
immunity. The judge would determine the Fifth Amendment
privilege of the witness for a higher-level felony, a lower-
level felony or a misdemeanor. The prosecutor would only be
informed of the granting of immunity, not the category of
offense to which it applies.
Ms. Parkes concluded that the DOL believes that the
amendment would safeguard a witness's Fifth Amendment
privilege. She noted that the House Judiciary Committee
discussed it at length, and the Public Defender believes it
will violate the Gonzales Case but the Department of Law
does not. The Department feels it's good public policy for
public defenders to make informed decisions on whether to
grant immunity. She said that the issue would be appealed to
the Supreme Court. She urged adoption of the amendment.
In response to a question by Representative Croft, Ms.
Parkes said that the State would want to weigh the risk in
granting immunity depending on the seriousness of the crime,
ranging from shoplifting to felony. She commented that few
states require transactional immunity but Alaska's
constitution is unique in requiring a greater level of
immunity.
Representative Croft indicated that he had no objection to
the amendment.
Co-Chair Williams WITHDREW his OBJECTION. Amendment #2 was
adopted.
Representative Chenault brought up Section 26 relating to
DUI and asked if AS 04 appears somewhere else in law. Ms.
Parkes affirmed that this deals with the DUI statute, and AS
04 relates to minor and commercial DUI. Section 26 relates
to the "big gulp" defense.
MOVED to report HCS CSSB 170(FIN) out of Committee with
individual recommendations and the accompanying fiscal note.
There being NO OBJECTION, it was so ordered.
HCS CSSB 170(FIN) was REPORTED out of Committee with
individual recommendations and three fiscal impact notes.
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