Legislature(2003 - 2004)
05/09/2003 01:25 PM House JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
HB 244 - CRIMINAL LAW/SENTENCING/PROBATION/PAROLE Number 1946 CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 244, "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." Chair McGuire indicated that the committee would be considering amendments to HB 244. Number 2014 CHAIR McGUIRE made a motion to adopt Amendment 1, which would delete Sections 1-5 and which read [original punctuation provided]: Page 1, line 9 - Page 3, line 6: Delete all material. Renumber the following bill sections accordingly. CHAIR McGUIRE said she is pondering, however, whether to keep Section 1 in the bill. She noted that the Department of Law (DOL) has provided testimony regarding making a heat of passion defense an affirmative defense, and that she is inclined to agree with that testimony. Number 2063 CHAIR McGUIRE restated her motion such that Amendment 1, as amended, would delete all material from page 2, line 1, to page 3, line 6 [Sections 2-5]. Number 2080 REPRESENTATIVE GARA objected, and said that he supports the deletion of Section 1. He elaborated: Heat of passion is a defense to a serious crime in, I believe, almost every state. ... And so, really, the question before us is, do we place it upon the prosecution to prove this kind of case, or do we place it upon the defendant. And let me give the members of this committee an example, and I'll work from the example. ... I know of case like this: Assume that you witness somebody being raped; you witness ... a member of your family being raped by somebody else that you know. And I suppose assume that the three people involved - the person being raped, the person who is raping the victim, and then the person who observes it - all know each other and are romantically entwined. And you see this occur, and you go and you try and stop it, and there is a weapons fight. And the observer ends up killing the aggressor to protect the rape victim. I can envision a circumstance where the heat of passion issue would come up, and in my view, depending on the circumstances, probably the observer was entitled to do what the observer did if, in the middle of the fight, the observer's life was then threatened and then, in order to protect himself and the victim, the observer then killed the rapist. It seems that the heat of passion defense should apply. It seems that the person who ... killed the rapist maybe didn't commit a crime. It seems like all of those elements, if the prosecution is going to charge that person with a crime, should be proven by the prosecution. ... I think in my example there are some circumstances where a heat of passion defense would apply, and some circumstances where it wouldn't. But it seems to me that the point that applies to all these other affirmative defenses applies here, which is, if you didn't do anything illegal and the prosecution wishes to charge you with doing something illegal, it should be the prosecution's burden to prove beyond a reasonable doubt, even on that element, that you did something wrong. So, I think when we start relaxing the burden on these affirmative defenses, we are making it easier for people who have done nothing illegal to be prosecuted and thrown in jail for very long periods of time. So I think these cases should be treated like any other criminal case. REPRESENTATIVE GARA reiterated that he would prefer Amendment 1 to also include the deletion of Section 1. CHAIR McGUIRE suggested that the committee first consider the deletion of Sections 2-5, and then entertain the question of whether to delete Section 1. Number 2261 REPRESENTATIVE GRUENBERG offered his belief that Section 2 relates to Section 1. He suggested that Amendment 1, be amended to delete only Sections 3-5: page 2, line 10 - page 3, line 6. CHAIR McGUIRE agreed. Number 2314 CHAIR McGUIRE restated the motion to adopt Amendment 1, as amended, to delete all material on page 2, line 10 - page 3, line 6. There being no objection, Amendment 1, as amended, was adopted; thus Sections 3-5 were deleted. Number 2329 REPRESENTATIVE GARA made a motion to adopt [Conceptual] Amendment 2: delete all material on page 1, line 9, through page 2, line 9. Number 2347 REPRESENTATIVE GRUENBERG observed that [Conceptual] Amendment 2 would delete Sections 1 and 2. CHAIR McGUIRE announced that Representative Samuels objected. Number 2387 A roll call vote was taken. Representatives Ogg, Gara, Gruenberg, and Anderson voted in favor of [Conceptual] Amendment 2. Representatives Holm, Samuels, and McGuire voted against it. Therefore, [Conceptual] Amendment 2 was adopted by a vote of 4- 3. Number 2400 CHAIR McGUIRE turned attention to [Amendment 3, proposed by Representative Anderson, which, with original punctuation provided, read]: Page 3, line 11, after "prisoner" insert "or any relative or friend of the prisoner" TAPE 03-57, SIDE B Number 2385 CHAIR McGUIRE observed that Amendment 3 addresses Section 6, which pertains to a prisoner's rights after he/she has been read the Miranda warning. The committee took an at-ease from 2:14 p.m. to 2:15 p.m. Number 2351 CHAIR McGUIRE stated that she'd heard a motion to adopt Amendment 3. Number 2349 REPRESENTATIVE SAMUELS objected. REPRESENTATIVE ANDERSON explained that Amendment 3 deals with Section 6 of the bill, which seeks to restrict a person's access to an attorney. Although a prisoner has been read the Miranda warning and advised of the right to seek counsel, his/her relative or friend should be allowed to retain counsel on his/her behalf. Representative Anderson said he supports Amendment 3 because it has not been demonstrated that limiting a prisoner's right to counsel is in any way good public policy. REPRESENTATIVE SAMUELS argued: It's not good public policy to get "Mirandized" twice so we can just say, "You can't possibly speak to the police unless you have an attorney there." And that's not good public policy. The Miranda warning is to tell them what their rights are; it doesn't specifically give them any more rights, and in this case, now you're trying to give the rights to somebody else. You're jumping in the middle of the investigation. The police have a right to investigate the crime, and to "Mirandize" somebody twice does such a disservice to the victims of the crime. If you are a rape victim, and your person gets arrested and they're "Mirandized" and they turn Miranda down, and the police are questioning you, and you've turned it down, you are advised what your rights are, then we should not be going out of the way to help any individual, whether you have a wealthy family or you happen to have an in-law that saw you get arrested. That's not fair, and it's not fair to the victim. If we're going to be a level playing field for everybody, we "Mirandize" them all, and that's it. And we can get anecdotal on it; I know the defense lawyers hated the anecdotes yesterday until they start coming up with anecdotes that help them out. But this is bad public policy; we're treating people differently. Number 2256 REPRESENTATIVE GARA relayed that he is considering offering an amendment that would delete Section 6 altogether and retain current law. He said: I think that the debate about examples touches on this issue, but sometimes doesn't exactly address what this provision does. ... Representative Anderson's amendment only addresses the right to get counsel immediately after an arrest. We're not talking about somebody who's been sitting in jail for a week and changes his mind whether he wants an attorney. We're talking about this very narrow window of time. So if you look at page 3, line 8, the rights we're talking about are the rights to [an] attorney, quote unquote, "immediately after an arrest". The reality is that some people are not sophisticated; some people don't have like a direct hotline to their own attorney. A lot of people don't have a direct hotline to their own attorney. What happens in the real world is, somebody calls and says, "Mom," or somebody calls and says to their wife, "Please get me an attorney," because they didn't dial their attorney's number - they don't have an attorney. I mean, how many people in this room have an attorney? I don't have an attorney. CHAIR McGUIRE remarked that Section 6 still allows a prisoner to telephone or otherwise communicate with any relative or friend. REPRESENTATIVE GARA agreed on that point. He pointed out, however, that the reality is that there are many examples where a person who is arrested will ask a relative or friend to retain an attorney. He opined that in such instances, when the relative or friend lets the arresting officers know that an attorney has been retained for the prisoner, that should be enough; the police should know, then, that they need to give the prisoner access to that attorney. He expressed disbelief that Section 6 actually addresses the perceived problem as relayed by the administration, and suggested that although deleting Section 6 altogether may not address the perceived problem, Section 6 is divorced from real-world situations. He opined that it is appropriate to allow prisoners to have friends and family retain an attorney; therefore, he added, he supports Amendment 3. Number 2143 REPRESENTATIVE GRUENBERG said: When a person is put in jail, possibly for the first time, they may be very scared, certainly are in an unfamiliar situation, probably aren't thinking very clearly, may not fully realize - even though somebody has said - that they have a right to an attorney, and they don't probably know who the attorney is going to be. But if an attorney shows up who's been retained by the family, maybe a friend of the family, somebody this person knows, that's going to be comforting to the person. Now, confessions are often used to convict people, and they probably should be, but they can be problematic, too, particularly if the person is young, maybe intoxicated, maybe of low mental ability. And so an attorney, maybe an ethical attorney, can be quite helpful and ensure that the process is conducted ... fairly. Admittedly, if you have a defense lawyer in the process, it won't be as easy to convict people, but the system is built on the cornerstone of fairness. And regardless of who retains the attorney, the person should have the right to make that choice. And that's all this does. REPRESENTATIVE SAMUELS surmised that as long as the person says he/she wants to talk to an attorney, it won't matter who hires the attorney. He opined that what Section 6 pertains to is a defendant who has already turned down an attorney. Number 2020 REPRESENTATIVE GARA indicated that he has a possible amendment to Amendment 3, and that it consists of adding language currently in statute. He suggested that on page 3, line 10, the language be changed to read "(3) an immediate visit from an attorney". Number 1989 REPRESENTATIVE ANDERSON said he did not have a problem with that amendment to Amendment 3. Number 1973 CHAIR McGUIRE, hearing no objection, indicated that the foregoing amendment to Amendment 3 was adopted. Number 1967 A roll call vote was taken. Representatives Gara, Gruenberg, Anderson, and Ogg voted in favor of Amendment 3, as amended. Representatives Holm, Samuels, and McGuire voted against it. Therefore, Amendment 3, as amended, was adopted by a vote of 4- 3. The committee took an at-ease from 2:27 p.m. to 2:28 p.m. Number 1925 REPRESENTATIVE ANDERSON made a motion to adopt Amendment 4, which read [original punctuation provided]: Page 3, line 15 - Page 4, line 1: Delete all material. Renumber sections accordingly. REPRESENTATIVE ANDERSON explained that Amendment 4 would delete Section 7, the provision pertaining to the admissibility of prior convictions. CHAIR McGUIRE objected. REPRESENTATIVE ANDERSON offered his belief that the introduction of prior convictions during a criminal trial is highly prejudicial. Number 1854 DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), said that introducing prior convictions is done in sexual assault cases and domestic violence cases, but added that such has not always been the case. What can be admitted in a trial as evidence is determined by court rule, and a few years ago, he explained, the legislature stepped in and changed the court rules to allow for the admissibility of prior convictions in sexual assault cases and domestic violence cases. He opined that the legislature should do the same for DWI (driving while intoxicated) cases because it would be in keeping with the tougher DWI laws for repeat offenders that the legislature has enacted. Number 1766 BARBARA BRINK, Director, Public Defender Agency (PDA), Department of Administration, said that what is troubling about the process of allowing prior convictions to appear in the case in chief is that the jury can be unduly swayed by evidence of someone's past behavior. She relayed that the PDA continues to believe that a person should be convicted based upon the evidence of the present offense, not on his/her prior record. She went on to say: It seems like this is an attitude where we're just not trusting the jury system. And the community, when representatives are seated as a jury, have the ability to decide the facts of the case and whether or not they've been proven or not proven. I think we should continue to leave that responsibility in the hands of the jury. The State of Alaska is basically arguing [that] the jury doesn't know what they're doing, so we should be permitted to provide [the defendants'] history of their past in an effort to convict them on this current offense. I don't think we should do that. I think we should make the state prove a case up, based on the evidence of that case alone. Then, if there is a prior record, it can be submitted to the jury in the same trial after the original finding of guilt in order to enhance the penalties. CHAIR McGUIRE offered, however, that allowing prior convictions to be introduced in a current case is actually saying that the jury is trusted, trusted to not be unduly influenced by that information. MR. GUANELI, in response to a question, relayed that currently, Rule 404 of the Alaska Rules of Evidence says in part: In a prosecution for a crime involving domestic violence or of interfering with a report of a crime involving domestic violence, evidence of other crimes involving domestic violence by the defendant against the same or another person or of interfering with a report of a crime involving domestic violence is admissible. Number 1650 REPRESENTATIVE ANDERSON asked whether the issuance of a domestic violence restraining order that is later retracted is something that could be brought up in a current case. MR. GUANELI indicated that Rule 404 addresses instances in which a specific crime involving domestic violence has occurred, rather than the issuance of a restraining order. In response to another question, he relayed that Rule 404 specifically says "is admissible", as opposed to within the discretion of the court. However, under the Alaska Rules of Evidence, judges have a fair amount of discretion; thus, he opined, if a particular piece of evidence is extremely old or pertains to an unusual situation, the judge could deem it irrelevant and instead weigh other circumstances. In response to another question, he explained that issuance of a protective order does not constitute a conviction, although the facts that gave rise to its issuance might be admissible as proof that an actual crime did occur. REPRESENTATIVE HOLM asked whether information kept by law enforcement agencies on a particular person would be admissible under Section 7. MR. GUANELI reiterated that although the underlying facts that prompted the issuance of a protective order, if proven to have occurred, might be admissible at the judge's discretion, issuance of the protective order is not admissible. Section 7, he explained, does not pertain to unproven, uncharged offenses; Section 7 pertains to those crimes that have, as an element of the offense, prior convictions. For example, felony drunk driving, felony shoplifting, or instances in which a crime is committed by a felon. In those types of cases, it must be proven that the person has prior convictions or is a felon. In response to another question he said that currently, in those types of cases, there are two phases to the trial. The first phase involves looking only at the current incident; then, if the person is convicted of the crime, the second phase involves notifying the jury of the those prior convictions, for example, by being presented certified copies of those convictions or by having those convictions stipulated. Currently, the jury is prevented from knowing about those prior convictions during the first phase of the trial. Number 1318 REPRESENTATIVE GARA said: There is a problem with Section 7, and that is that the tradeoff is completely imbalanced. In order to make it easier for the prosecution to prove the prior elements in one proceeding rather than two, we are making it much easier for the prosecution to convict somebody of a new crime. So currently, what's really the burden to the prosecution? ... In a ... prosecution of somebody where the prosecution has to prove this is your third DWI, you make the prosecution prove that the person drove drunk; after you do that, it takes ... really not very much time to reconvene the jury and say, "Ladies and gentlemen of the jury, here's the second part of the case; here are two convictions for two prior DWIs." What's the defendant going to say? I mean, that part of the case is proven very easily, so what is the burden we're trying to ... delete? [There's] very little burden on the part of the prosecution, right now, to do the second part of the trial, where the prosecution just introduces the two prior convictions and says, "Here they are." The prosecution wins. So, to save that burden, what are we doing? We're taking away a very substantial right from the public. The public has the right to be presumed innocent. And the moment you go into trial with a shaky DWI case against somebody, that you might not be able to prove because, frankly, the person wasn't drunk, but then tell the jury, "Hey, this [guy has] ... two prior DWIs," all of a sudden, you make it that much easier that you're going to convict somebody for a crime the person didn't commit. Number 1222 REPRESENTATIVE GARA continued: And that's the purpose for the current rule. If you allege a crime against somebody, prove it to the jury. But don't prejudice the jury by saying ... "This guy's done stuff like this in the past." It's a longstanding rule, it's an important rule, and it fits within the constitutional rubric that people should be innocent until proven guilty. And I can't imagine that under the current law, it's that hard for the prosecution to prove the second part of the crime, that there were prior convictions; just do it later .... REPRESENTATIVE OGG said that he has problems with limiting the defendant's ability to legally challenge the validity of a previous conviction only to the right to counsel and to the right to a jury trial. This appears to narrow what the defendant can raise up as a defense, he added. Number 1163 CHAIR McGUIRE proposed that Amendment 4 be amended such that all conforming language to Section 7 throughout the bill would also be deleted if Amendment 4, which deletes Section 7, is adopted. [No objection was stated and this conceptual amendment to Amendment 4 was treated as adopted.] REPRESENTATIVES ANDERSON and GRUENBERG observed that this would entail Sections 28 and 29. Number 1114 A roll call vote was taken. Representatives Gara, Gruenberg, Anderson, and Ogg voted in favor of Amendment 4, as amended. Representatives Samuels, Holm, and McGuire voted against it. Therefore, Amendment 4, as amended, was adopted by a vote of 4- 3. Number 1073 CHAIR McGUIRE made a motion to adopt Amendment 5, which read [original punctuation provided]: Page 4, line 15 - Page 6, line 1: Delete all material. Page 8, lines 11-16: Delete all material. Renumber the following bill sections accordingly. The committee took an at-ease from 2:43 p.m. to 2:44 p.m. CHAIR McGUIRE noted that Amendment 5 would delete Sections 9-12 and 17, but would not affect Section 8. She remarked that it was Ms. Brink's testimony from the bill's prior hearing that persuaded her to keep Section 8 in the bill. REPRESENTATIVE SAMUELS objected for the purpose of commenting: "I agree with you, but I don't feel comfortable knowing enough about it just after the one hearing to stand up and fight for you." He then withdrew his objection to Amendment 5. CHAIR McGUIRE mentioned that over the interim, the administration might work some more on the issue of immunity and perhaps propose a separate bill. She opined that the current provisions in the bill relating to immunity constitute a dramatic, substantive change - a constitutional change - and said that at this point, she is not comfortable keeping those provisions in HB 244. MR. GUANELI acknowledged that the administration would continue to work on this issue, adding that meanwhile, there may very well be cases in which prosecutors won't be granting immunity because they are uncomfortable granting immunity "in the dark." REPRESENTATIVE GARA remarked that Section 8 appears to be an accurate statement of transactional immunity, adding that he appreciates the provision because it clarifies the law. Number 0849 CHAIR McGUIRE asked whether there were any further objections to Amendment 5. There being none, Amendment 5 was adopted. CHAIR McGUIRE noted that she has no objection to Section 14, which pertains to consecutive terms of imprisonment. REPRESENTATIVE GARA mentioned that later he would be offering an amendment to the provisions pertaining to consecutive terms of imprisonment [Sections 13, 14, and 18-20]. Number 0793 CHAIR McGUIRE, after noting that she did not like Section 16, made a motion to adopt Amendment 6, which read [original punctuation provided]: Page 8, lines 7-10: Delete all material. Renumber the following bill sections accordingly. Number 0775 REPRESENTATIVE GRUENBERG objected for the purpose of discussion. He said that Section 16 seemed to him to be a reasonable amendment to current law because it encouraged those without a defense to plead guilty. REPRESENTATIVE GARA disagreed. He elaborated: Currently, I believe that victims of sexual assault receive short shrift, that their cases are plead down to misdemeanor way too often, that violent crimes against women are way too often charged as misdemeanors when they're felonies. And ... I always understand the interest in trying to efficiently prosecute people - and I suppose this does this, it encourages guilty pleas - but by reducing the criminal sanction in this class of cases, it especially bothers me because this is a class of cases where people are underprosecuted in the first place. REPRESENTATIVE GRUENBERG indicated that because he did not know enough about the issue, he would not be [maintaining his objection] to Amendment 6. CHAIR McGUIRE relayed that she is offering Amendment 6 on the basis of Ms. Hugonin's and Ms. Brink's testimony during a prior hearing. Number 0628 CHAIR McGUIRE asked whether there were any further objections to [Amendment 6]. There being none, Amendment 6 was adopted. CHAIR McGUIRE, after acknowledging that Sections 18-20 relate back to Sections 13 and 14, mentioned that she favors Section 21, which is a direct court rule amendment. She indicated that the testimony regarding victims, victims' families, expedience, and considerable delays has engendered in her a belief that the current system is broken. She posited that Section 21 will help the situation and assist in providing an expedient outcome for all parties. Number 0555 REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 7, which read [original punctuation provided]: Page 9, line 20, after "defense" delete the remainder of line 20 through "defense" on line 22. REPRESENTATIVE GRUENBERG said he is offering Amendment 7 because, currently, Section 21 takes away the court's discretion whether to allow a particular defense if notice of it is not given at least 7 days before trial. The specific defenses listed include: alibi, justification, duress, entrapment, or other statutory or affirmative defense. He pointed out that in some cases, a defendant may not know about a key witness or a key piece of information until right before trial. Therefore, to absolutely prohibit the defendant from offering a defense "for a reason like this" is clearly unconstitutional, he opined. MR. GUANELI said that currently, notice of those defenses must be provided 10 days prior to trial. Section 21 changes that to 30 days and builds in some sanctions including prohibiting the assertion of the designated defense if notice is not given at least 7 days before trial. He asserted that currently, it is a defense tactic to not notify the prosecution of a defense until the absolute last moment. He opined that if a defendant is going to use a defense of alibi, justification, duress, or entrapment, it is not a last-minute decision; the defendant already knows what that defense will be, and thus there is no reason to delay notice to the prosecution. In addition, he explained, Rule 53 of the Alaska Rules of Criminal Procedure allows a judge to relax the rules to prevent a manifest injustice. So, for example, if there is a change of attorney at the last minute and the new attorney wants to use a different defense, that is the kind of thing that a judge could take into consideration and thus relax the rules to allow for the new defense. Number 0290 REPRESENTATIVE GARA indicated that although there are times when an attorney might give notice of a defense at the last minute in order to gain a strategic advantage, there are also times when it is simply that the attorney is overworked and is not able to provide notice until the last minute. He said: Here's the problem with what you're doing. If an attorney does something wrong, the attorney should be sanctioned. I have no problem with that. But you shouldn't throw somebody in jail because their attorney didn't follow the rules. That's a longstanding rule in the public process; it says ... punish the person who did the bad thing. So, I just can't accept that if somebody hires a private criminal-defense attorney or, especially, a public defender who has a 150 cases that they're carrying, and the ... [attorney] lets something slip through the cracks, maybe intentionally, maybe not - it doesn't really matter - that the consequences of that person's conduct should be thrown on the person that we're supposed to treat as innocent until proven guilty. There's a disconnect. So, I would have no problem saying that the prosecution is entitled to a continuance of trial if they're not given this information in time - that would be wonderful, that is fine, [and] it's also the current law - ... [and] if we want to make that stronger to make sure the prosecution is always given a continuance in these cases, that would be fine. But to take the rights away from a defendant and to make it easier to convict somebody - to take away their defense, to take away their witnesses - because their attorney had 150 cases they were working on and rightly or wrongly didn't provide notice in time, gosh, that's a big right we're taking away from people. REPRESENTATIVE OGG noted that although Mr. Guaneli had mentioned some of the designated defenses as being ones that the defense would know of before the last minute, Mr. Guaneli had not said the same of, "or other statutory or affirmative defense", which is also listed as a designated defense. Representative Ogg said he could envision a scenario wherein such a defense is not settled upon until the last minute. REPRESENTATIVE GRUENBERG said: It is not a question of whether you know you have the defense. It's a question of whether you can prove it. And these are affirmative defenses. What that means is, even though it's a criminal case, the defendant has the burden of persuasion by a preponderance of the evidence, and the burden is on them because it's an affirmative defense. This is not just a typical kind of a defense; [they have to prove their case by a preponderance of the evidence]. [The previously bracketed portion was not on tape, but was taken from the Gavel to Gavel recording on the Internet.] TAPE 03-58, SIDE A Number 0001 REPRESENTATIVE GRUENBERG continued: And an alibi, for example, may involve proof of another witness. And at the last minute, a witness can come up. And Mr. Guaneli, I'm sure, knows that this has occurred. I do; it has, in fact, occurred. And it's the word "shall" that bothers me, and to put that additional burden on the defendant, when it's his burden anyway to prove this, I think that's wrong. Number 0062 A roll call vote was taken. Representatives Gara, Gruenberg, and Ogg voted in favor of Amendment 7. Representatives Anderson, Holm, Samuels, and McGuire voted against it. Therefore, Amendment 7 failed by a vote of 3-4. The committee took an at-ease from 3:06 p.m. to 3:20. Number 0179 REPRESENTATIVE GARA made a motion to adopt Amendment 8, a handwritten amendment which read [original punctuation provided]: Delete p.7 line 26 - p.8 line 6. CHAIR McGUIRE objected. REPRESENTATIVE GARA, in support of Amendment 8, said: Here we're addressing cases where we're in the sentencing phase of the trial; the defendant has already been convicted, and the defendant's sentence may be increased if the defendant has a prior conviction. ... Currently, under the law, a defendant can show that a prior conviction wasn't valid or a prior conviction was questionable. And so the ways a prior conviction might be invalid or questionable would be: A defendant comes from a state where they didn't give him an interpreter, and the defendant can show that he sat through trial with an overburdened public defender in Washington, D.C., and then the defendant would have to prove that [he] ... didn't understand the trial or somehow wasn't given an interpreter. That would be something that ... [the state] should let [the defendant] ... try and prove, if [the state is] ... going to try and show that a prior conviction is [valid]. ... Section 15 now ... limits the number of places where your conviction was possibly improper and doesn't let you address those circumstances. There is no evidence, currently, that this is a problem that needs to be fixed. There is no evidence, currently, that defendants are in there proving, under bogus claims, that their prior convictions were invalid. It almost never happens. And there's been no proven abuse by the courts in this area. So why are we trying to fix this problem? If the general rule is, you shouldn't count a prior conviction if it was invalid, let the person come in and show it was invalid. It's not going to happen too often, but just let them do it. REPRESENTATIVE GARA, in response to a question, explained: By deleting Section 15, we leave in the current law. The current law is that your prior convictions do count. The current law says, though your prior convictions count, the defendant can come in and show the conviction was invalid .... They can't retry the case, but they can [show] it was invalid for a constitutional reason, that it either didn't occur or that is was invalid for a major constitutional reason. And the courts will listen to that. It's very rare that they ever say, "Okay, I'm not going to count this prior conviction." But, no, this would just leave the current law in place. Number 0443 MR. GUANELI, in defense of Section 15, offered an example: Let's say that in 1997, someone was convicted of drunk driving. They're convicted, they're sentenced, they have 30 days to decide whether to appeal that conviction. Once their 30 days are up, their appeal rights have gone, but there is, under Alaska law - and the laws ..., really, of most states - there is sort of a second phase appeal; it's called post-conviction relief, and that allows within a period of, I think, two years that you ... can file an action in the court and say, "That conviction was invalidly obtained," for any one of the reasons that Representative Gara mentioned. But once that two-year -- and the legislature actually had to go in and change the court rules to stop some of the abuses that were occurring several years ago, where convictions, many, many years ago, were being relitigated. And the legislature set some time limits on that. ... So, ... [if] convicted in 1997, by 1999, under Alaska law, you've had your right to direct appeal - appeal within 30 days - or, within two years, your rights to post-conviction relief. By 1999, the Alaska law is, that conviction is a matter of right, it's a matter of record, and we are not going to allow you to relitigate it. MR. GUANELI continued: Then let's say in 2000, the person gets another drunk driving conviction, doesn't appeal that one either, within 30 days, doesn't take post-conviction relief from that, doesn't claim that it's invalid within the two years. So, by 2000 he's got two drunk driving convictions as a matter of record. Well, 2003 he gets his third drunk driving arrest, all of a sudden he's facing a felony, and all of a sudden what we hear is, "Oh, those prior convictions [weren't] valid." In essence, what he's trying to do is get a third bite at the apple. ... He decided not to appeal those previous convictions, or maybe he did appeal and maybe the appeal was denied, but now he wants a third bite at the apple. Number 0572 And this often occurs years later, it occurs in felony drunk driving situations, it occurs anytime there's an enhanced sentencing provision, and Alaska law allows the courts to look back any number of years to enhance these sentences. And what we end up having to do, in the context of a new case, is litigate things that occurred sometimes many, many years in the past, sometimes in another state, that the defendant had a right to appeal at that time or sometime shortly after that and decided not to, or did and was turned down. And we simply want to stop these kinds of abuses. MR. GUANELI concluded: ... In some senses, I will agree with Representative Gara, it doesn't happen very often that the courts will allow these challenges to be successful, but it causes a lot of litigation, it causes a lot of confusion in these cases, it delays the processing of these cases, and it's simply an abuse that we think ought to be stopped. And unless the defendant can show that he was denied the right to counsel, or was denied the right to a jury trial, that conviction that occurred many, many years in the past that he had an opportunity to litigate in the past, ought to be a matter of record. The state ought to be able to rely on it, the courts ought to be able to rely on it. And that's this provision [in] Section 15. REPRESENTATIVE GRUENBERG responded: The defendant enjoys a number of constitutional rights. Two of them are the right to counsel, under the Sixth Amendment, and a right to a jury trial, [under] I think the Sixth or Seventh Amendment (indisc.). But he enjoys other constitutional rights also, and the one that comes to mind is due process, procedural due process. Let me give you an example of that: let's say you have a judge who's on the take - that may not come to light until later, but it would certainly be a denial of due process - or a DNA [deoxyribonucleic acid] situation, which we dealt with earlier. Number 0721 A due process right, if it's violated, is just as important as a denial of the right to counsel or the right to jury trial. I would feel more comfortable if, instead of just listing two constitutional rights, we would say a denial of their constitutional rights, because I don't know, at this point, what constitutional rights might have been violated. And I'm asking Mr. Guaneli: would you, would the administration, oppose us saying "denial of constitutional rights". MR. GUANELI replied: The reason why there is the focus on right to jury trial and right to counsel in this provision is because those are the two constitutional rights that have been recognized by the courts as really the fundamental ones in our criminal justice system, and without which the conviction is considered invalid. When you start talking about due process and some of these other rights that are not as clear-cut as these, you end up in the situation of litigating almost anything that the defendant wants to claim was a violation of due process. Due process simply means, "It wasn't fair, it wasn't fair to me," ... and under that rubric, you could - most attorneys could - probable squeeze just about anything that happens in a criminal case under that. So for that reason, we have focused on the two provisions that the courts generally recognize as invaliding a conviction; if you didn't have a right to counsel or didn't have a jury trial, that conviction [is] generally considered invalid, and that's what we've focused on. REPRESENTATIVE GRUENBERG asked Mr. Guaneli whether he could think of any types of cases that would be equally well recognized that maybe should be added. He elaborated, "I'm not trying to open this up; I'm trying to make sure that there are not classes of cases well recognized that we should maybe put on the list too. Number 0898 MR. GUANELI acknowledged that Representative Gruenberg's example of a judge on the take could be such a case because the conviction would have occurred on the basis of fraud. On the other hand, Representative Gara's example of a person that didn't have an interpreter, he surmised, is the type of case that should have been appealed either then or within the two- year time period for post-conviction relief. He posited that because he has never encountered any allegations of a conviction obtained by fraud, that is why it has not been included in Section 15. REPRESENTATIVE GARA responded: See, that's the problem with Section 15. We have a small class of cases where the prosecution believes there is a problem, but they're taking away many more rights than the rights that address the problem they've identified. I would have no problem with ... a section that addressed the situation Mr. Guaneli mentioned, which is, in the case where somebody doesn't ask for post-conviction relief, they can't claim that ... their conviction was invalid when it could have been corrected on appeal. ... I guess we could come up with a section of law that addresses that circumstance. But instead we're tossing out a defendant's rights where they didn't have the right to an interpreter. We're tossing out the defendant's rights because their attorney wouldn't let them testify .... Believe it or not, some attorneys ... think they know better than a client, and in other states that has happened: attorneys have told their clients they're not allowed to testify, and they've been convicted. In this state you're not allowed to do that as an attorney; if a client wants to testify, they testify. In other states, sometimes, a public defender with a 180 cases on their caseload assumes all their clients are guilty and just doesn't let any of them testify. That's an exaggeration, but it happens sometimes. And that would be, I think, outrageous, not to be able to consider that. So, I would be sympathetic to a section that addressed the problem the prosecution has identified. I'm not sympathetic to a section that ... throws out many more rights than I think have been, arguably, abused. Number 1024 A roll call vote was taken. Representatives Gruenberg and Gara voted in favor of Amendment 8. Representatives Ogg, Holm, Samuels, and McGuire voted against it. Therefore, Amendment 8 failed by a vote of 2-4. REPRESENTATIVE GARA asked for more information about Section 20. MR. GUANELI said that the three subsections of current statute that are being deleted via Section 20 of HB 244 are the current laws pertaining to consecutive sentencing. He suggested that upon a plain reading of those subsections of statute, one would think that consecutive sentencing is mandated for everything. However, the courts have not interpreted those subsections to mean that; instead, they have been interpreted as a legislative preference for consecutive sentencing. He indicated that Section 20 is in place because HB 244 proposes to adopt more comprehensive consecutive sentencing provisions. REPRESENTATIVE GARA relayed that he would return to this issue when he addresses his amendment pertaining to those consecutive sentencing provisions. Number 1115 REPRESENTATIVE GARA made a motion to adopt Amendment 9, a handwritten amendment which read [original punctuation provided]: Delete p.9 line 8 - p.11 line 28 CHAIR McGUIRE indicated that Amendment 9 would delete Sections 21-23. Number 1140 REPRESENTATIVE GARA, after acknowledging that Section 21 has already been addressed, said that he would amend Amendment 9 such that it would instead delete all material from page 10, line 5, through page 11, line 28, and thus have the effect of deleting Section 23. Number 1162 CHAIR McGUIRE objected. MR. GUANELI, in response to a question, explained that currently, notice of an expert witness must be given 30 days before trial. He added that once one party discloses an expert witness, the other party "has a certain period of time after that." MS. BRINK said that Mr. Guaneli's explanation is generally correct, adding that under the current Alaska Rules of Criminal Procedure Rule 16, the defense has the duty to disclose 30 days prior to trial, and the prosecution has the duty to disclose 45 days prior to trial. REPRESENTATIVE GARA sought confirmation that under Section 23, one of the sanctions is that the court shall prohibit the defense from introducing the witness. MR. GUANELI confirmed this, adding that this provision pertains to expert witnesses - psychiatrists, ballistics experts, et cetera - but not eyewitnesses to the crime. REPRESENTATIVE GARA said that he is offering Amendment 9 because sometimes, in an effort to economize, the defense does not hire expert witnesses until the last minute because the defense is hoping to settle the case before it goes to trial. Section 23 will cause people to hire and provide notice of an expert witness way in advance, just as a matter of caution. He added, "Section 23 includes this draconian punishment that says you don't get to use your expert witness at trial which could gut a case." He opined that the proper remedy for not giving proper notice is a continuance, adding that he would entertain such a change. CHAIR McGUIRE argued that the point of this provision is to speed up the process for victims, rather than delaying it via additional continuances. REPRESENTATIVE GRUENBERG noted that according to language on page 11, lines 7-14, it appears that the disclosure requirements of Section 23 do not apply to "peace officers and other crime investigators". In other words, those experts do not have to be made available for a deposition or recorded interview. MR. GUANELI confirmed this and said that the main thrust of Section 23 is that when there are expert witnesses, those who have not been directly involved in the investigation of a case, they need to be disclosed if used at trial. The exception stipulated on page 11, lines 7-14, however, pertains to "peace officers and other crime investigators" who have directly participated in the investigation. Number 1490 MS. BRINK, addressing Section 23, said: I do think this section is problematic in that -- frankly, it isn't that the defense attorney is claiming that the state is using a police officer as an expert witness, but rather that, in fact, the prosecutor is trying to qualify the investigator as an expert witness so [that] they are permitted to issue an opinion and testify about their opinions [of] the case to the jury. And so it doesn't seem to make a whole lot of sense to me that the 45-day timeframe should not apply to these witnesses as well. I mean the defense needs to know, is this person just testifying factually as to their observations, or are they, in fact, being used as an expert witness. Are they going to be permitted to give their opinions to the jury? In those situations, I think if we're going to be required to provide 45 days notice, it's fair to require that of the state witnesses as well. And one other observation. I can tell you that I appreciate, Madame Chairman, your desire to have the court system proceed efficiently and smoothly; I certainly don't disagree with any of those goals. But I have to tell you, in the regular processing of misdemeanor cases in Anchorage, ... first we have an arraignment where a person is charged with an offense and then the next scheduled court hearing is a pretrial conference. The conference is set up so it forces the prosecutor and the defense attorney to meet and talk about the case and try to settle it early and get it resolved. There is very rarely 45 days between the pretrial conference and then the trial date. Number 1562 MS. BRINK concluded: So all the impetus for the parties to settle the case is focused on the pretrial conference, and if they reach an impasse and then it's determined that this case is, indeed, one of the very few that are going to trial - because it's less than 10 percent of our cases that go to trial - there are not 45 days remaining 'til the trial date. And so the 45-day rule is really kind of problematic. What Representative Gara pointed out about retaining experts -- we do try to discourage hiring experts until we know it's one of those very few cases that is going to trial, and so this timeframe can be a problem for us. Thank you. REPRESENTATIVE GRUENBERG said it sounds as if the problem really arises if an officer is going to be designated as an expert. He suggested changing the exception to say that unless someone is designated as an expert, he/she is exempt from Section 23. MR. GUANELI said he has no objection to doing so. CHAIR McGUIRE agreed that that would be a good change. REPRESENTATIVE GRUENBERG asked Representative Gara if he would accept the aforementioned as a friendly amendment to Amendment 9, as amended. REPRESENTATIVE GARA suggested, instead, taking up that issue after Amendment 9, as amended, is dealt with. On the issue of Amendment 9, as amended, he remarked that given the current fiscal situation, the PDA is always going to be trying to economize. Therefore, he added, "we can't have them economize, have them not hire experts 'til the last minute, and then punish clients when they try to economize." MR. GUANELI, in response to a question, said that Section 23 provides a 45-day notice requirement for both the prosecution and the defense. He acknowledged that Ms. Brink is correct in that most cases are resolved before trial, but added that expert witnesses are not generally used in misdemeanor cases. He opined that most experienced defense attorneys and prosecutors have a pretty good idea which cases are likely to settle. He reiterated that the courts retain the ability to relax the rules in the interest of justice. Number 1770 A roll call vote was taken. Representatives Gara and Gruenberg voted in favor of Amendment 9, as amended. Representatives Ogg, Holm, Samuels, and McGuire voted against it. Therefore, Amendment 9, as amended, failed by a vote of 2-4. Number 1788 REPRESENTATIVE GRUENBERG [made a motion to adopt] Conceptual Amendment 10: On page 11, line 11, delete "and" after the semicolon. On page 11, line 12, before the period, insert "; and (D) the prosecution has not designated the officer or investigator as an expert witness". There being no objection, Conceptual Amendment 10 was adopted. Number 1921 REPRESENTATIVE GARA made a motion to adopt Amendment 11, a handwritten amendment which read [original punctuation provided]: Delete P.11 line 29 - p.12 line 13. REPRESENTATIVE SAMUELS objected. REPRESENTATIVE GARA said: When the prosecution obtains illegal evidence, there is a very strong rule in this country, and that is that only under the most narrow circumstances can it ever be used. In this circumstance, the prosecution would be allowed to use it to impeach a witness, the prosecution would be allowed to use illegal evidence to impeach a defendant, and it in too large a circumstance, I think, overrules the Miranda rule. And I also think that it's constitutionally suspect. So, I think one of our interests should be to have as little of this bill come back to us two years from now, because I don't want to see it again. But I also see this as a big problem: this issue addresses something that [is] a very complex area of the law. The governor has thrown 26, 27, 28 different sections of law at this committee and asked us to decide them in a few couple-of-hour hearings. It's not enough time. So, I'm asking members of this committee to send a message to the governor's office. If the governor wishes us to validly and responsibly consider a bill, the governor's office should give us one that is discrete enough and clear enough that we can possibly and competently handle it in the amount of time we have in a committee hearing, or a series of committee hearings. This is not the right place to address major constitutional issues, major issues of evidence. REPRESENTATIVE GARA continued: This issue, if it were debated before the supreme court, would require a lot of argument by learned counsel. I don't feel that we have that here, and I don't feel that any of the six of us who are remaining here know this issue well enough that we could put together five valid sentences. At the fifth sentence, we would run out of knowledge; we wouldn't be able to address it any further than that. So I ask you to vote in favor of this Amendment, either because you believe this section is a bad section or because you believe that we don't have enough time to consider it. I really do think this is a message we should send back to the governor's office; they bit off way too much in this crime bill. Number 2022 MR. GUANELI, in support of keeping Section 24, said: With respect to this particular provision, I think we start from the proposition that this was a voluntary statement - the person voluntarily gave this statement - it was not a coerced statement. In Alaska, we know exactly what is said during these police interrogations because the supreme court has adopted a rule that says all interviews must be taped. If you don't tape record the interview -- and a lot of them are actually videotaped, so you actually see the interactions; so we know exactly what was said, we know the kinds of pressures that were brought to bear, and this is voluntary statement. If there was some technical violation of Miranda, ... suppose at some point the guy says, "Well, maybe I really ought to talk to an attorney, gee, I don't know," some courts will hold that those kinds of equivocal statements about wanting to talk to an attorney mean that you've got to stop questioning. ... So there are some technical violations of Miranda. And this envisions that there was a technical violation of Miranda that was a voluntary statement and then the person gets on the stand and lies and says exactly the opposite of what he said before. MR. GUANELI concluded: And all this says is, if you're going to make a voluntary statement on tape and it wasn't coerced, and then you're going to get up and say the exact opposite in court, we're going to be able to impeach you with that statement. And it's simply a matter of, ... if you're charged with murder and you got lucky and there was a technical Miranda violation and your confession was suppressed, you can get up on the stand and you can lie with impunity, because the only thing you face right now under current law is that that statement could be later used in a prosecution for perjury. And frankly, I don't know of any defendant who wouldn't trade a murder conviction for a perjury conviction. So this simply means that if you're going to get on the stand and testify, we want truthful testimony; we want juries to base their decisions on truthful testimony. And I think this enhances that goal that verdicts are going to based on truthful testimony. Number 2098 REPRESENTATIVE GRUENBERG asked if "this" is in accordance with current U.S. Supreme Court law. MR. GUANELI offered his belief that it is. REPRESENTATIVE GRUENBERG asked whether the Alaska Supreme Court has determined that it is in accord with the Alaska State Constitution. MR. GUANELI offered his belief that the Alaska Supreme Court has not yet addressed this issue directly. He relayed, however, that the "attorneys who do the appellate work for the state" believe that "this" would withstand constitutional scrutiny. REPRESENTATIVE GRUENBERG asked whether this issue has been addressed in either a court of appeals or a superior court. MR. GUANELI said he did not believe so. REPRESENTATIVE GRUENBERG said he is developing a concern about the inclusion of retroactivity provisions in bills, and then turned attention to subsection (b) of Section 30 as an example. He said that he would not object to this provision on one condition: before HB 244 gets to the House floor, the Department of Law provide, in writing, the answer to the question of whether any Alaska court has addressed the issue of whether "this" would violate the Alaska State Constitution. He relayed that if such is not done, he would be offering a floor amendment. CHAIR McGUIRE said she agreed, adding that that is a reasonable request. MR. GUANELI agreed as well and said he would provide that information. Number 2200 MS. BRINK, on the issue of Amendment 11, which would delete Section 24, said: I don't believe any Alaska court has addressed this issue, because under current Rule 412 [of the Alaska Rules of Criminal Procedure], any evidence illegally obtained was not admissible for this purpose. So if trial judges were not admitting illegally obtained evidence in trials, nobody had reason to appeal those rulings because the evidence rule was being followed. I would like to point out, though, that I'm not sure I understand what Mr. Guaneli means by a, quote, "technical violation of Miranda." If a statement is taken in violation of Miranda, that in fact is in violation of your right to remain silent and your right to counsel. That is illegal under Miranda. And, frankly, it just isn't that hard to comply with Miranda. Since 1965, police officers have known they have to read this little statement off the card and get someone to agree to talk to them. So while it's characterized as a technical violation, it just isn't that hard to get legally obtained statements. And illegally obtained statements should not be used to promote convictions. You have to look at [paragraph] (2) of this ... [section] as well, because this addresses other evidence illegally obtained, and then we're talking about not just technical violations of Miranda, but violations of the Fourth Amendment - your right to privacy in your own home - [and] violations of the Fifth Amendment - your right to remain silent. So this is [a] very broad, sweeping change. It says illegal evidence is now going to be admissible at trial. And so this is a huge sea change in how we have enforced people's individual constitutional rights. Thank you, Madame Chair. REPRESENTATIVE GRUENBERG expanded his request for more information to include information regarding "subsection (b)". MR. GUANELI agreed. Number 2285 A roll call vote was taken. Representative Gara voted in favor of Amendment 11. Representatives Holm, Samuels, Gruenberg, Ogg, and McGuire voted against it. Therefore, Amendment 11 failed by a vote of 1-5. Number 2296 REPRESENTATIVE GARA made a motion to adopt Amendment 12, a handwritten amendment which read [original punctuation provided]: Delete P. 6 line 14 - p.7 line 25 P.8 line 17 - p.9 line 6. [Discussion among members indicated that the intent of Amendment 12 is to delete Sections 14 and 18-19.] REPRESENTATIVE GARA additionally relayed a desire to amend Amendment 12 such that line 7 on page 9 be included. [Therefore, Amendment 12, as amended, would also delete Section 20. Number 2315 REPRESENTATIVE SAMUELS objected. REPRESENTATIVE GARA said: This is where we have a debate about Alaska's sentencing structure in four minutes and decide whether or not to change it. I'm not going to repeat my argument about how this is just not a good way to present legislation for a committee to decide .... But I really would ask the members of this committee if they completely understand the current law and completely understand how this changes the current law. And [if] you like it, then vote for it, but if you don't completely understand either, this isn't the time to pass a sentencing structure change like this. Here are some things that I have figured out: ... This is not a well thought-out sentencing structure that the prosecution has offered - and I will say this now so I don't have to say it in wrap up. ... It is a very bad process for a group of prosecutors to get together and decide how they want to change the law. I would hope that on the sentencing issue, but [also] on these other issues, maybe the prosecution would sit down with learned members of the defense bar and come up with a way that at least people have, from both sides, considered to change the law, instead of coming up with something that seems to be very one-sided and not well thought out. Here's why this one's not well thought out. Let me give you an example of what we are going to do to people if we adopt the sentencing structure that the ... administration has offered. Under current law, almost all sentences for serious crimes are consecutive; they already are. You just have to read current law to see that. Under current law, ... sentences already run consecutively except for a narrow circumstance where the crimes are part of a continuing episode - so they're a hybrid between ... one crime and many crimes all at once - and then the judge is given the discretion. The judges always consider the seriousness of the crimes; they consider the prior history of the defendant. ... TAPE 03-58, SIDE B Number 2402 REPRESENTATIVE GARA continued: [I can give one example that I] hope will compel a number of members of this committee to cast doubt on this proposed sentencing scheme. Let's say you have somebody with a shotgun, and he decides to go out in the woods and have some fun but really wreak a little bit of havoc irresponsibly. And he ends up shooting his shotgun out into the woods because, well, he just wants to shoot his shotgun out into the woods. Inadvertently, he hits a group of ... [people] with spray from his shotgun and seriously injures them. And under the criminal code, a serious injury would be a major flesh wound; it would be something ... like that or worse. That would be first degree assault. If the reckless person, the person with the shotgun, ended up hitting one person, it's a 7-year presumptive sentence. That seems appropriate. But he's hit five people, and so all of a sudden we're sending this person to jail for a 35-year presumptive sentence. Well, I don't condone the conduct of this person who went out into the woods and, though he thought he was having fun, endangered the public stupidly. I don't condone that at all. And I think maybe something more than a 7-year sentence would be justified. But a 35-year sentence? I'm not so sure. The courts already have discretion in this area. And I think we're going to sort of pass a sentencing scheme that results in very many unintended consequences. So ... I'd ask people to favor the amendment; I would ask people that if they vote for this amendment, the message they're sending to the administration is to take this back to the drawing board and think it through and maybe actually consult with people outside of the prosecution office in coming up with a sentencing scheme. Number 2320 REPRESENTATIVE SAMUELS posed the example of a man with a hunting rifle who shoots and kills three kids. He asked whether this should result in the same penalty as for killing one kid. REPRESENTATIVE GARA countered that currently, it doesn't result in the same penalty. MR. GUANELI responded: This is a big bill. I apologize [that] it's a big bill. I apologize that it was introduced late in the session. I think it does impose a burden on the committees. This particular provision is obviously not well understood, because it doesn't do what Representative Gara said it would do. What this provision does -- [let me] first explain about current law. In 1982 the legislature adopted the current consecutive sentencing statutes, and if you read them, they do appear to say [that] just about everything is consecutive. But ... there was a problem in drafting, and the Alaska appellate courts have said ..., "That isn't what it says, it may be what was intended and we recognize that the legislature prefers there to be consecutive sentencing, but that isn't the law." So what this bill does is, it tries to address two kinds of crimes for mandatory consecutive sentencing: homicides and rapes or first degree sexual abuse of a minor - in other words, penetration of a minor under 13. Everything else is essentially at the judge's discretion. [For] the particular crime that Representative Gara talked about, and that was first degree assault, ... there is no provision for mandatory consecutive sentencing under this bill. MR. GUANELI went on to say: The only thing that this bill says is that - and it would be on page 7, starting at line 13, it's under (F) there, it says, "some active term of imprisonment of each additional crime, or each additional attempt or solicitation, under AS 11.41.200 - [11.41.250]", and 11.41.200 is first degree assault - what it says is that the judge really ought to recognize that there were separate victims and impose some additional time. ... It doesn't say how much; it can be one day. And so the situation he suggested, the presumptive sentence for first degree assault with a dangerous instrument is 7 years, so 7 years and four days for five victims presumably would be about the minimum. Number 2219 With the other types of offenses, homicides - and that really gets to Representative Samuels hypothetical, where you ... kill three victims - there this bill does impose some type of consecutive sentencing, but it's really fairly modest. If you look, for example, at ... the one case that really brought this to the forefront, ... the drunk-driving murder of two Juneau men a couple of years ago up north [and] serious physical injury of another, Cindy [Cashen] ..., who is head of the local MADD [Mothers Against Drunk Driving] chapter, her father was one of the victims who was killed. In that particular case, the judge ended up ... - for two victims [who] died and one [who] was seriously and permanently injured - giving a sentence that was barely more than the minimum for a single death. We think that's wrong. And what we propose is that for those kinds of cases ... where there are homicides or there are rapes, ... some additional period of imprisonment be imposed consecutively. And in that particular example, where it's two counts of second degree murder, for the second count ... what we propose is that the judge impose, as a mandatory period of consecutive sentencing, at least the mandatory minimum. So, ... if the law designates that 10 years is the mandatory minimum sentence for second degree murder, and you've killed two people, then at least for the second one you ought to get the minimum, and that ought to be consecutive to whatever you got on the first sentence. MR. GUANELI also said: ... Frankly, that's a fairly modest provision. And when you look at, for example, under (E) on page 7, ... line 8, and you talk about rapes, and let's say someone is convicted of multiple rapes, it isn't just the presumptive [terms] stacked on top of each other; ... in fact, for the extra rapes, you only get one- quarter of the presumptive term. So if the presumptive term is 8 years, if you commit two rapes, that it would be an extra 2, so that would be 10 years; three rapes would be 12. This really is a fairly modest provision. Number 2132 Partly it was designed to give judges some guidelines because they really don't have any right now - and, frankly, the sentencing ..., on a lot of homicide cases, ... is all over the board (indisc.) multiple homicide cases - and this gives some legislative guidance. At the same time, it was also designed to not burden the Department of Corrections [DOC] with unreasonably long sentences that would carry people ... in the prison beds for years and years and years. So we tried to strike a balance; I think we did it reasonably. MS. BRINK, on the issue of the mandatory sentencing provisions, said: I guess I must respectfully disagree with Mr. Guaneli's reading of the proposed ... [provisions]. If you look on page 7, lines 1-5, I think that Representative Gara's example is right on point. Assault in the first degree is a class A felony, and this part of the bill requires that the presumptive term be imposed for each additional crime that's a class A felony. So I believe that Representative Gara's example, (indisc.) 7 years to 35 years because of the fortuitous circumstance of the numbers of people involved, is correct. And that's my main objection to [those provisions of] the bill. ... If you take away the discretion from the judge and you impose a formula, that can result in sentences that are not commensurate with the level of conduct involved. Thank you, Madame Chair. CHAIR McGUIRE predicted that committee members might never agree on this issue. REPRESENTATIVE GARA, in conclusion, said: Oddly enough, ... the truth is that there's a lesser sentence in this bill introduced by the administration for ... people who commit rapes than there is for these other crimes ... The consecutive sentences for people who commit rapes is only a quarter of the time for each additional person. I think that's too little. But on the other ones I think it's too much. CHAIR McGUIRE suggested that before the bill gets to the House floor, Representative Gara could work more on that issue. REPRESENTATIVE GARA said he would be happy to work on something that addressed just the consecutive sentencing for sexual assault. Number 2029 A roll call vote was taken. Representatives Gara and Gruenberg voted in favor of Amendment 12, as amended. Representatives Samuels, Anderson, Ogg, Holm, and McGuire voted against it. Therefore, Amendment 12, as amended, failed by a vote of 2-5. CHAIR McGUIRE said she did not disagree with Representative Gara's comments. Number 1999 REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 13, which would delete Section 26. Number 1987 CHAIR McGUIRE objected. REPRESENTATIVE GRUENBERG, in defense of Amendment 13, said: My problem is, sometimes people who have claimed they're victims of domestic violence later decline to testify. And what this ... [section] will do, will be to allow the prosecution to introduce their domestic violence petition even though it was subsequently dropped and it may have been as a result of an argument. And the allegation, when we're talking about a crime involving domestic violence, may have been a simple assault based upon somebody shoving somebody else, not even any serious violence. ... I've had this happen in my family-law practice: in the middle of a divorce where people are seeking, for example, to get immediate custody of a child on an ex parte basis without even going [through] the normal process of having a hearing on temporary custody, they bootstrap themselves with a DV [domestic violence] petition. And then they, in an attempt to leverage themselves in the divorce, say they want to prosecute, and ultimately go forward with the bluff until they get to the criminal court door. And then they realize their going to be hit with a perjury if they really continue with this, and they decline to prosecute. And the only thing the prosecution has left in good faith is this report, and they could conceivably prosecute based on this hearsay report. And the person couldn't examine the spouse, and it could lead to not only to a misdemeanor minor charge and a conviction or even a plea, but that can have terrific implications in the family court and on the custody of the child. There are all kinds of exceptions in hearsay already .... And I just, with due respect, think this is really overbroad because I've seen it used that way. CHAIR McGUIRE noted that the excited-utterance exception has already been debated quite a bit. Number 1857 A roll call vote was taken. Representatives Gara, Gruenberg, and Holm voted in favor of Amendment 13. Representatives Anderson, Ogg, Samuels, and McGuire voted against it. Therefore, Amendment 13 failed by a vote of 3-4. Number 1835 CHAIR McGUIRE made a motion to adopt Conceptual Amendment 14, "to renumber accordingly, to adopt any conforming amendments necessary to meet with this committee's intent for sections we've removed, and ... to amend the title to reflect the provisions of the bill that are still left." There being no objection, Conceptual Amendment 14 was adopted. Number 1813 REPRESENTATIVE SAMUELS moved to report HB 244, as amended, out of committee with individual recommendations and the accompanying fiscal notes. Number 1805 REPRESENTATIVE GARA objected. Number 1785 A roll call vote was taken. Representatives Anderson, Ogg, Holm, Samuels, and McGuire voted in favor of reporting HB 244, as amended, from committee. Representatives Gara and Gruenberg voted against it. Therefore, CSHB 244(JUD) was reported out of the House Judiciary Standing Committee by a vote of 5-2.
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