Legislature(2003 - 2004)
03/19/2004 01:15 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 244 - CRIMINAL LAW/SENTENCING/PROBATION/PAROLE Number 1850 CHAIR McGUIRE announced that the final 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." Number 1780 REPRESENTATIVE GRUENBERG moved to adopt the proposed committee substitute (CS) for HB 244, labeled 04-0033, 1/16/2004, as the work draft. There being no objection, this proposed CS was before the committee. Number 1748 SUSAN A. PARKES, Deputy Attorney General, Central Office, Criminal Division, Department of Law (DOL), reminded the committee that last year it heard a version of HB 244 about which many concerns were raised by committee members and the public. She relayed that the proposed CS should address many of those issues and concerns while maintaining a balance regarding the public's safety, victim's rights, and defendant's rights. Ms. Parkes informed the committee that the consecutive sentencing provisions found in Sections 18-19 and 25-26 are identical the provisions the committee debated last year which mandate that judges give some consecutive time of imprisonment for serious offenses. MS. PARKES turned to the issues of immunity and self-defense, which the department views as high priority matters. Both of these issues were in last year's version of HB 244, although in a very different form. She directed the committee's attention to Sections 15-17 and Section 20. Ms. Parkes informed the committee that the desire is for the statute to conform to State v. Gonzalez, which specifies that in Alaska, transactional immunity, rather than use immunity, must be provided. The proposed CS establishes a procedure by which to accomplish this goal. Under the proposed CS, the witness can have a private hearing with the judge and his/her attorney in order to offer proof with regard to why the witness believes he/she has a valid Fifth Amendment privilege. The significant difference between last year's legislation and the proposed CS is that the prosecutor wouldn't be present at that hearing. If the judge found that there was a valid Fifth Amendment privilege, the proposed CS would allow the judge to inform the prosecution of that fact and that it would apply to a higher-level felony, a lower level felony, or a misdemeanor. Therefore, the aforementioned is the only information that would be given to the prosecution and thus when a prosecutor is asked to give a witness immunity, there is enough information to ensure a responsible exercise of immunity. The department believes that this balances privacy and protection of the witness while providing the state enough information to responsibly exercise the tool of immunity. Number 1514 REPRESENTATIVE GARA asked what the current procedure involves. MS. PARKES answered that often these things are worked out informally, but there isn't a uniform way in which this is handled. She relayed that her experience is that the judge has a private meeting with the witness or just the witness's attorney and the judge determines whether the witness has a valid Fifth Amendment privilege and then announces that to the prosecution. Then, if the prosecution wants the witness to testify, the witness would have to be given immunity. REPRESENTATIVE GARA surmised, then, that there could be a situation in which there is a murder and a witness says he or she has immunity, which leads the judge to hold a hearing in camera and subsequently inform [the prosecution] that the witness will be provided immunity if he/she testifies, but [the prosecution] has no idea what the crime is for which the witness is receiving immunity. MS. PARKES clarified that only the state can provide immunity. The judge would simply inform [the prosecution] that the witness has a Fifth Amendment privilege and if the witness is required to testify, the witness may incriminate himself or herself. Therefore, if the [prosecution] wants the witness to testify, then [the prosecution] would have to give the witness immunity. In response to Representative Gara, Ms. Parkes confirmed that [the prosecution] receives no indication of what [crime] the immunity might be for. Because the state can only offer transactional immunity, the witness would receive immunity with regard to whatever crime he or she testifies about on the stand. REPRESENTATIVE GARA inquired as to the witness's interest in not letting the prosecution know the subject of the immunity. Number 1414 MS. PARKES said that there is concern that [information regarding the level of crime] could somehow be used as an investigative tool; the state could refuse the witness immunity and then focus on that witness in an investigation. However, she opined that the more realistic reason the witness doesn't want the [information] to be known by the prosecution is because people often use the Fifth Amendment as a way to escape having to testify against friends. REPRESENTATIVE GARA surmised, then, that the court, under this legislation, would only be able to provide the level of the crime but not the specific crime. MS. PARKES agreed. MS. PARKES turned to the issue of self-defense and Sections 13 and 14, and explained that Section 13 makes the level of evidence to obtain a self-defense instruction consistent with federal law. Therefore, the legislation proposes the need for some plausible evidence that could warrant a jury to find self- defense before the instruction is given. She opined that under Alaska case law, a judge will give a self-defense instruction for any evidence, even implausible evidence, of self-defense. CHAIR McGUIRE recalled the Wallner case in which a woman was stabbed forty-some times. She further recalled that the defendant, because the confession was excluded, took the stand and offered a self-defense theory. In the aforementioned situation, would that be considered plausible, she asked. MS. PARKES answered that a judge would have to make that decision, and such a decision would be based on whether the judge found the defendant's testimony credible or plausible. If it is found to be plausible, the self-defense instruction might be given. Number 1173 REPRESENTATIVE GRUENBERG clarified that the content of the instruction is a question of law, while the giving of instruction, based on the view of the evidence, makes it almost review-proof in many cases. The trial court in Alaska has very broad discretion on the admission and exclusion of evidence and whether to give it to a jury. MS. PARKES agreed that there is broad discretion with regard to what evidence goes to a jury. She then explained that the problems in self-defense cases have mainly arisen in situations in which a drug deal "went bad" or there has been gang activity in which [the prosecution] can't show who fired the first shot, and so no one is prosecuted. Therefore, the legislation specifies that one wouldn't be entitled to self-defense if the individual is involved in a drug transaction or gang activity. CHAIR McGUIRE commented that such was what the committee requested last year. REPRESENTATIVE GRUENBERG noted that the language being discussed is on page 8, lines 7-13. Representative Gruenberg said he is very concerned because [the language] doesn't specifically say what Ms. Parkes is saying. Furthermore, there aren't one set of evidentiary or defense rules for gang-related cases and drug cases. CHAIR McGUIRE remarked that at least [the language] is getting closer to what was being discussed [at the last hearing]. Number 0933 REPRESENTATIVE GARA commented that he still isn't convinced that there isn't a way to better limit the language to apply to gang activity. Representative Gara acknowledged that it's difficult to come up with fair rules for people who are doing terrible things. In this case, Representative Gara said that he is more sympathetic to making it harder for the person who is in the business of selling drugs. He said he didn't consider the person who purchases drugs because of his or her drug habit as engaging in the same class of crime [as a person who is in the business of selling drugs]. He posed a situation in which a person who purchases drugs from someone he or she knows is dangerous decides to carry a weapon for protection. In such a situation, if the drug dealer starts violent activity and the purchaser defends himself or herself, the purchaser would lose his/her right to claim self-defense under this provision. REPRESENTATIVE GARA specified that he would be more comfortable dealing with such a situation in a way that affects the drug dealer [because] a drug dealer who brings a weapon to a drug deal is doing something much worse than someone with a drug habit who might bring a gun along at a drug deal. He asked if such a distinction could be made in this provision. MS. PARKES recalled that in the Senate there were suggestions to limit it to felonious activities or to limit it to people who bring a dangerous weapon. The language is being reviewed for possible changes in order to make it apply in the situations desired. REPRESENTATIVE GARA said he would probably be agreeable if it is limited to the [drug] dealer, not the purchaser. Number 0729 REPRESENTATIVE SAMUELS posed a situation in which a [drug user] goes to a drug dealer's apartment and shoots the drug dealer, takes the drugs, and claims self-defense. REPRESENTATIVE GARA responded that the [drug user] would go to jail. REPRESENTATIVE SAMUELS clarified that in that hypothetical situation, the [drug user] came by to purchase only a small amount of drugs. MS. PARKES interjected that when everyone has a gun, proving who drew first is the problem. Therefore, the [intent] is to address those situations in which one engages in inherently dangerous activity that one comes to armed because of the knowledge that it's inherently dangerous. In such a situation, the individual assumes the risk that he or she might have to use his or her weapon. "This is meant to deter people from doing that," she said. REPRESENTATIVE GRUENBERG said he doubted that an individual who is going to purchase or sell a large quantity of drugs is going to review the criminal code to determine whether he or she will be prosecuted for self-defense. Representative Gruenberg opined that this isn't a circumstance in which [the law] would deter anyone. MS. PARKES continued her presentation, noting that the remaining provisions are new ones. She pointed out that Section 8 provides for a small modification to the felony murder statute, and explained that [the department] is proposing the deletion of the "other than a participant" language. Therefore, [those participants who didn't point a gun] could be charged with murder in the second degree in a situation in which four people attempt to rob a convenience store and one of the four points the gun at the clerk, but the clerk shoots the individual who pulled the gun. MS. PARKES offered that right now, there doesn't seem to be a logical reason to treat participants in a serious felony differently when the foreseeable consequence is that someone could die, whether it's an innocent person or one of [the perpetrators]; "it's the same serious conduct, so we're proposing to take away that distinction." MS. PARKES highlighted that Sections 21 and 23 address felony driving while under the influence (DUI). Because of the 10-year look-back, there are situations in which someone will have a felony DUI and later receive a misdemeanor DUI. Therefore, the [department] is proposing that once one receives a felony DUI, every DUI received after that is a felony. Number 0467 MS. PARKES, in response to a question, returned to Section 8 and explained that the language "other than a participant" was deleted. Therefore, if one of the "bad guys" die rather than the victim, the other "bad guys" can be charged with murder in the second degree. Under current law, if, during the course of a serious felony, someone other than a participant is killed, it's considered murder in the second degree. REPRESENTATIVE GARA surmised, then, that in a situation in which one of the participants in the felony is killed, under the proposed CS, it would also be murder in the second degree. MS. PARKES answered in the affirmative. REPRESENTATIVE GARA posed a situation in which two people commit a burglary or robbery with no intention to hurt anyone, but the store clerk shoots one of the burglars. Under the proposed CS, the remaining burglar would be charged with murder in the second degree. MS. PARKES replied yes, and added that under current law if robbers went into a store with no intention to kill anyone, but one of them shoots the store clerk, the remaining participants would be charged with murder in the second degree. Number 0229 REPRESENTATIVE GRUENBERG, returning attention to Sections 21 and 23, mentioned that Representative Rokeberg has introduced legislation dealing with the look-back provision. MS. PARKES offered her understanding that Representative Rokeberg's legislation addresses the misdemeanor look-back, while the proposed CS only addresses felony DUI, which currently has a 10-year look-back. She explained that currently, one would have to have two prior DUIs within a 10-year period and then the third DUI would be a felony. Therefore, the individual would do some jail time and, after being released, if the individual was charged with another DUI two years later, that DUI would only be a misdemeanor because it would be beyond the 10 years. MS. PARKES turned attention to Sections 22 and 24, which addresses Conrad v. State wherein the new "big gulp" defense was put forward. She explained the "big gulp" defense as follows: an individual at a bar who isn't intoxicated pounds back five shots and hops in his or her car to drive home. The police immediately stop this individual before the alcohol can enter the individual's blood stream, but [the alcohol has entered the blood stream] an hour later at the police station when he/she is tested. TAPE 04-43, SIDE A Number 0001 REPRESENTATIVE GRUENBERG asked if there is a constitutional problem with this [defense]. MS. PARKES said she didn't believe so, and explained that [the department] believes it's a perversion of the current law. REPRESENTATIVE GRUENBERG posed a situation in which one individual drinks just immediately before the accident, but so immediately that it hasn't had a chance to affect the individual. He also posed a situation in which an individual drinks immediately after an accident and [the alcohol] didn't affect the individual in this case either. If this [legislation] precludes the [big gulp] defense, he opined, there would be due process and equal protection problems because in both hypothetical scenarios, the alcohol didn't affect the driving. MS. PARKES disagreed and opined that what's being prohibited is people having that level of alcohol in their bodies getting into a car and driving. She said she didn't believe the intent is to get into the "blood-alcohol expert-witness" debate on the blood alcohol level. In the case wherein someone drinks after driving, the alcohol isn't in the person's system when he/she was behind the wheel. The aforementioned situation wouldn't be illegal. However, she opined that it's very different if someone has alcohol in his/her system at the time of an accident. She pointed out that the statute says that if within four hours of the driving, a person's blood alcohol concentration (BAC) is 0.08 or over, he/she is DUI. Therefore, she said, she believes that the legislature can legislate the aforementioned. Ms. Parkes said she didn't believe [the committee] wants people drinking in bars to try to calculate their body weight, how much they have eaten, and how far away they live in order to determine whether they can make it home before [the alcohol] reaches their system. REPRESENTATIVE GARA surmised that this legislation doesn't limit the "big gulp" [defense] in the traditional case. MS. PARKES replied no, and specified that the defense is being prohibited because the individual would have the alcohol in his or her system when behind the wheel of the car. She clarified that what isn't being prohibiting is the [defense] for a situation in which an individual pulls into his or her driveway and, after entering the house, drinks. Number 0329 REPRESENTATIVE GARA posed a situation in which a chemical test indicates that an individual is drunk, although the individual only had two drinks and believes the chemical test to be wrong. In such a situation, the individual would want to introduce evidence of having consumed alcohol in order to explain the results of the chemical test. However, it seems that Section 22 doesn't allow for the introduction of evidence showing that the individual didn't have very much to drink. MS. PARKES clarified that there is no intention to prohibit an attack on an inaccurate chemical test. The intent is simply to not allow the argument that at the time the individual was driving the blood alcohol was lower than specified at the later chemical test. REPRESENTATIVE GARA remarked that the intent is fine, although the language is of concern. MS. PARKES offered to review that. REPRESENTATIVE GARA suggested that the language should say, "If you're defense is that you've had an amount of alcohol that would render you intoxicated, ... you can't use the defense that you weren't intoxicated in time ... for the [chemical test]." He related his belief that the "big gulp" theory could be described in the section and then specified that it can't be used. MS. PARKES turned attention to Section 9. She explained that the assault statutes include assault in the fourth degree, which refers to criminal negligence causing "physical injury by means of a dangerous instrument." However, there is no assault statute that covers cases in which an individual in a vehicular collision may not have had a blood alcohol level at 0.08 but may have alcohol or drugs in his/her system, or some other condition that makes the individual's driving criminally negligent. Therefore, to cover such serious-physical-injury situations, the proposed CS includes a new assault in the third degree provision that would make such a situation a class C felony. REPRESENTATIVE GRUENBERG highlighted that the lowest crime in [Alaska statute] is a class B misdemeanor and the next level is a violation. Representative Gruenberg opined that there are some [crimes] that should have a 30-day jail sentence, and therefore he stated his desire to have a class C misdemeanor. He commented that a number of things would fall into his proposed class C misdemeanor. He inquired as to the department's thoughts on such. MS. PARKES said she would research that issue, but pointed out that the disorderly conduct statute has a maximum of 10 days in jail. Therefore, there is already at least one statute in which the penalty is different than that of a class A or B misdemeanor. CHAIR McGUIRE announced that HB 244 would be held over.
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