Legislature(2003 - 2004)

05/05/2004 04:22 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ 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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