Legislature(2003 - 2004)
03/31/2004 01:20 PM House JUD
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* first hearing in first committee of referral
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HB 244 - CRIMINAL LAW/SENTENCING/PROBATION/PAROLE Number 2034 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." Before the committee was [Before the committee, adopted as a work draft on 3/19/04, was a proposed committee substitute (CS) labeled 04-0033, 1/16/2004.] Number 2092 JOSHUA FINK, Public Advocate, Anchorage Office, Office of Public Advocacy (OPA), Department of Administration (DOA), indicated that he would be focusing on the sections of the proposed CS that he finds the most problematic. First are Sections 15-17 and 20, the sections on immunity. On page 9, lines 29, through page 10, line 1, it speaks about the judge informing the prosecution what level of crime the person wishes immunity for. He said: For this legislation to be constitutional under [State v. Gonzales, 853 P.2d 526 (Alaska 1993)], an individual who has the privilege, that would be the witness about to self incriminate, if they are forced to testify to a judge or tell a judge their story back in chambers, and the judge comes out and tells [the] prosecution what level of crime, Gonzales requires that that individual with the privilege be in the same position they'd be in had they not opened their mouth. And if you think of it that way, if the judge comes out and says, "It would be a high-level felony; this person does have a privilege to not testify," are they in the same position? The district attorney now knows what level of crime, how serious the conduct was that they would be testifying about; that's another way to think about it. That is a link; the judge providing the information, about what level of crime, is in fact a link. And if you look at Gonzales, it talks about a link being a thing that would help the police focus an investigation. It might help the district attorney decide whether to initiate prosecution against a witness. It might help the district attorney determine whether to offer a plea bargain, or how to interpret evidence, or how to plan cross examination, or develop trial strategy. All of those things are links. And ... it's just implausible to me, the district attorney's position that ... the immunity section would survive constitutional scrutiny by the [Alaska] Supreme Court. I'm going to use an example that I thought was very insightful, that I [was] given by Senator French just about an hour ago in [the Senate Judiciary Standing Committee]. Number 2167 MR. FINK continued: Assume ... this is a murder case, a woman hears some shots, watches the front door of a house, no one comes in and leaves, the police arrive, there are four people in the house. The police go in, one person's dead - has been shot - they find a baggie of marijuana under ... a bed, and they find a bloody gun under another bed. There's a set of fingerprints on the bag of marijuana - that's suspect A. And then they find two sets of fingerprints on the bloody gun - suspect B and suspect C. They charge suspect A with possession, they want to put ... suspects B and C - or the witnesses - on the stand, and they both take the Fifth Amendment. The judge takes them in chambers. So what happens? One of them says, "Well, I shot the guy." The other one says, "All I did was throw the bloody gun under the bed." So the judge comes out, he says, "Well, both of them have a privilege; suspect B would be an unclassified or class A felony, and suspect C would be a class C [felony]." The judge has just informed them who committed the murder. That is clearly a link. And I would just ask the committee to really look at that provision. I'm confident it would not survive a constitutional challenge, but it will cost money ... [and] resources to get there, so I believe that this committee should follow the Senate's lead in deleting that provision from the bill. REPRESENTATIVE GARA asked whether, in that example, suspects B and C are immune from prosecution under the proposed CS. MR. FINK said they were not, because at that point the district attorney still has the option of whether or not to grant immunity; the district attorney could decide not to grant immunity and instead refocus the investigation on the murder. Number 2242 MR. FINK then turned attention to Section 9 of the proposed CS, and said that he understands the district attorney's desire, when an individual has been drinking - but is not above the legal limit - and gets in an accident and harms someone, to tighten the laws up so as to be able to charge assault in the third degree. But Section 9 goes much further than that, he opined, because it takes away the mental element of awareness. Currently, in order to be charged with assault in the third degree, a person has to have done something with recklessness, which involves being aware of and consciously disregarding a substantial and unjustifiable risk. MR. FINK pointed out, however, that Section 9 specifies criminal negligence, which merely involves failing to perceive a substantial risk, and noted that such could result from simply coming up to a stop sign that has black ice under a light dusting of snow and sliding through and hitting someone. Having a car accident while talking on a cell phone or putting on makeup could also be considered criminal negligence. Section 9 proposes to make all such instances, wherein an accident occurs and someone gets hurt, assault in the third degree, which is a felony. He said he did not believe such conduct warrants a felony charge, and predicted that the public would find the accompanying penalty grossly disproportionate to the charge. He concluded by characterizing the new language being proposed in Section 9 as too broad. CHAIR McGUIRE asked Mr. Fink how he reconciles the fact that under existing law, if one of those same errors is made and someone dies, then the person making the error is held responsible, but if someone is merely badly injured - for example, has to have a leg amputated - then such is not the case. MR. FINK offered that loss of life does warrant the charge available under existing law. He noted that the definition of serious physical injury currently includes an injury caused by an act performed under circumstances that create a substantial risk of death, and remarked that any car accident could be considered such. CHAIR McGUIRE indicated disagreement with Mr. Fink's latter remark, but suggested that perhaps they should focus on clarifying what would be meant by serious physical injury as it relates to the language in Section 9. TAPE 04-55, SIDE B Number 2389 CHAIR McGUIRE mentioned that there is already a public policy that says mental intent will be disregarded if the circumstances involving a death involve actions that are so careless as to constitute criminal negligence. Section 9 proposes the same policy if the circumstances result in serious physical injury such as becoming paralyzed. She indicated that she could agree to making the language narrower with regard to what is meant by serious physical injury. MR. FINK offered his belief that that aspect of Section 9 needs to be tightened up, and indicated that he would work on some possible alternatives to the current language. He reiterated that criminal negligence does not involve an awareness of a substantial risk and that the definition of serious physical injury could involve something as simple as running into someone riding a bicycle and breaking his/her leg. CHAIR McGUIRE mentioned that she does have concern that serious physical injury could involve such a circumstance, and remarked that that issue should be clarified. REPRESENTATIVE GARA suggested that rather than changing the definition of serious physical injury, because it appears that Section 9 is intended to deal with alcohol-related crimes, they could instead alter Section 9 so that it only addresses serious physical injuries that have been caused by those who've been driving under the influence (DUI). He asked whether it is already a crime to injure someone while DUI. Number 2200 MR. FINK offered his belief that anytime alcohol is involved, a person will meet the mens rea of reckless, which would lead to a charge of assault in the third degree. He added: I've defended people ... where there was no alcohol involved where the state's charged assault [in the third degree]. I represented someone in the valley who was driving a friend home, it was late at night on a pretty bad road out there, [and] they went off the road. The friend hit their nose and broke their nose. The state charges the driver with assault [in the third degree]. The passenger said, "We hit a rut; there was no alcohol." He asked the state not to prosecute the case. The state refused [and] went for it on the prosecution - again, no alcohol - and ... I used the passenger as a witness at trial. [The] guy got acquitted, but the state pursued assault [in the third degree] on a reckless theory because of serious physical injury being the broken nose. So they're doing this now. [Proposed Section 9] is just going to make it a heck of a lot easier. ... If you want to narrow it to alcohol, put that in here. But right now, this is going through a stop sign, this is [talking] on the cell phone. REPRESENTATIVE GARA asked: "Are you saying that if we limit it to alcohol, then in effect we'll just be doing what we're already doing currently if it's alcohol-related and you break a nose? Is that a felony?" MR. FINK responded: Well, it makes it a lot easier. I mean, currently, yes, ... if you're in an accident now and there's alcohol involved, you're going to be charged with assault [in the third degree] and there's a really good possibility you're going to get convicted. In all likelihood you'll be convicted - the jury hears "alcohol," that's going to be reckless. [Proposed Section 9] just makes it a lot easier to get those convictions. So ... I think the law's fine as it is, but if you wanted to pass this but add an alcohol requirement, you would make it easier to get those assault [in the third degree] charges where alcohol was involved and there's an accident but it's below the level of a [DUI]. REPRESENTATIVE OGG suggested looking to the workers' compensation statutes and making the language in proposed Section 9 dependant on the percentage of loss someone experiences due to a serious physical injury. REPRESENTATIVE GARA, in response to a question, suggested perhaps using the phrase found in AS [09.17.010], "severe permanent physical impairment or severe disfigurement". Number 2084 SUSAN A. PARKES, Deputy Attorney General, Central Office, Criminal Division, Department of Law (DOL), noted that the definition of serious physical injury - AS 11.81.900(55) - contains two provisions: (A) physical injury caused by an act performed under circumstances that create a substantial risk of death; or (B) physical injury that causes serious and protracted disfigurement, protracted impairment of health, protracted loss or impairment of the function of a body member or organ, or that unlawfully terminates a pregnancy; MS. PARKES noted that "physical injury" is also defined in statute. She added that her experience has been that a clean broken arm or leg doesn't necessarily rise to the level of serious physical injury, though it does depend on whether there has been protracted impairment of health. She went on to say: I'd like to also address this idea that criminal negligence is somehow not a very heightened mental state. As has been referenced, we have a homicide for criminal negligence, we have [assault in the fourth degree] that uses criminal negligence as the mental state, and what it is, it's got to be a gross deviation from the standard of care that a reasonable person would observe. That's what the definition is. Although alcohol-related cases are ... what cause us to see a hole in the statutes, there's a loophole in the law right now. If you, with criminal negligence, cause physical injury by means of a dangerous instrument, you're guilty of assault in the fourth degree. Number 2027 There is no provision that covers causing, with criminal negligence, serious physical injury by means of a dangerous instrument. So, if you do the same conduct that you could be prosecuted in the [assault in the fourth degree] statute for but cause serious physical injury, there's nothing that recognizes that heightened level of damage as is referenced in the criminally negligent homicide [statute]; there's nothing that recognizes that, it's still going to just be a misdemeanor. And that appears to be just a hole in the statutes. MS. PARKES continued: And I'd like to point out, actually, people ... are charged with reckless conduct when [they have a blood alcohol concentration (BAC) of .08] or over; we've got statutes that cover when people are legally intoxicated - they are per se reckless - and they are charged under the statutes, under the recklessness. And right now I would point out that there is an [assault in the third degree], that if you are reckless and cause simply physical injury by means of a dangerous instrument, that's a felony. So, yes, if you're drunk and you get in a car collision and your buddy busts his nose and it's not serious physical injury, it's still a felony. So it's a felony to cause physical injury if you're a drunk driver. So I just want to clear up that misconception. But there's no statute right now that covers criminally negligent conduct with a dangerous instrument that causes serious physical injury, and we need that. REPRESENTATIVE GARA opined that unless paragraph (4) of Section 9 is limited to intoxication-related crimes, it will say that with essentially just a tad more than just regular negligence, a car accident case becomes a felony. He added that he would not be comfortable with that; "I don't think we should be considering people who make accidents, even dumb accidents, felons. Number 1871 MS. PARKES, in response to a question, relayed that currently, if a person, with criminal negligence, blows through a stop sign and puts someone in coma, the highest level of crime that that person could be charged with would only be assault in the fourth degree, which is a class A misdemeanor, but if someone was killed under the same circumstances, the charge could be homicide, which is a class B felony. REPRESENTATIVE GARA said he could guarantee, however, that if a person sped through a stop sign and put someone in a coma, that person would be charged with "a recklessness crime," and that would result in a felony. The jury is going to consider the extent of the injury even if it's not in the jury instruction, he predicted. He remarked, though, that he could agree to, "if we want to do a coma definition or some sort of similar level of injury," making that a felony. MR. FINK suggested limiting proposed paragraph (4) of Section 9 so that it applies only to serious physical injuries as defined in AS 11.81.900(55)(B). Currently under paragraph (4), he opined, a broken finger could result in a felony being charged because serious physical injury is defined as one of two things, the first being any physical injury caused by an act performed under circumstances that create a substantial risk of death, and anytime someone is in "a couple-thousand-pound vehicle" going down the road, it constitutes a circumstance that could create a substantial risk of death. Another alternative, he suggested, if the goal is to get at circumstances involving alcohol consumption, would be to alter page 6, line 24, to say in part, "after the consumption of alcohol and with criminal negligence causes". Doing such would tie the alcohol consumption with the criminal negligence. Number 1742 MR. FINK next directed attention to the provision pertaining to violation of a custodian's duty - Section 12. He said: I would just like the committee to know, most custodians take their duties very, very seriously. I think the committee was correct in identifying the larger problems [as] far too many people are put under a third-party restriction - which costs them their jobs, keeps them incarcerated for, oftentimes, a significant period of time before their "Rule 45ers" (ph) seek trial-right routes - and they might even ... then be found innocent or acquitted at a trial, and yet, effectively, they've served a sentence and been presumed guilty, really, because they can't get a third-party [custodian]. I think that's the bigger problem; ... I'd love if the committee would address the third-party custodian problem. Having said that, ... I would just like to say, I think the current contempt statute is sufficient. Right now it is difficult to get [third-party custodians]. You almost can't work; the judge tells you about the contempt possibility, that you could be looking at ... six months in jail [and a] $300 fine. You know, it's something oftentimes people are on the fence [about], and you can't have a criminal record, you have to have the time to do it, and I'm concerned that this provision ... is really put in there to kind of bully potential [third-party custodians] so that they can be frightened more. I mean, if you're on the fence and then the [district attorney] says, "Well, you know you could go to jail for a year and have a $10,000 fine if you don't ... report this person," well you've just upped the stakes significantly. And I think at the margins you've made it that much more difficult for [third-party candidates] to get ... decent people without criminal histories that are kind of on the fence; well, you've just kind of given them a little extra push on getting off that fence ... [so they] don't agree to do that. And I think the upshot's going to be [that] more people stay in jail for longer periods of time because they can't get [third-party custodians]. I think our statutes, with contempt, are adequate now. In the event the committee was going to go forward with this section, I would ask them to limit it to a class B misdemeanor, which doubles the current penalties under the contempt law. Number 1608 MR. FINK continued: And I'd ask that the committee consider putting "knowingly" on line 20 between "person" and "fails". That's because ... right now, if there's no mens rea or culpable state listed, it's knowingly as to conduct [and] reckless as to circumstance, and I'm concerned that ... [if a young person] goes out the window at 3 in the morning [and the] parents don't catch it until [later in] the morning, you could potentially make an argument [that] they were reckless as to that circumstance. You could ... threaten prosecution where there really was no bad behavior on the part of the [third-party custodian]. And so I would ask that you put "knowingly" in there to at least indicate the culpable state to that - the knowing failure, which means you have to know about the violation. And again, I think limiting [it] to [a] class B misdemeanor, which doubles the current penalties, would be sufficient but not as onerous as -- you know, it's scary when someone's there, never been to court before, offers themselves as a third-party [custodian], when the judge then says, "You realize you could go to jail for a year and pay $10,000 if you don't report this person." It's just a scary thing, and it's going to discourage ... [third-party custodians], and the upshot is, there are going to be fewer [third-party custodians]. CHAIR McGUIRE relayed that the issue of a lack of mental intent had been noted at a prior hearing on the bill. MS. PARKES clarified that although a class A misdemeanor would double the current penalty, a class B misdemeanor would reduce that penalty by half. She noted that Section 12 proposes to charge a class A misdemeanor when the failure pertains to a felon, and a class B misdemeanor when the failure pertains to a misdemeanant. REPRESENTATIVE GRUENBERG mentioned that he has long been in favor of creating a class C misdemeanor, which would have a maximum jail sentence of 30 days, and suggested that perhaps Section 12 ought to be altered to that effect. Number 1502 MS. PARKES said she did not want to reduce the penalty that low. She indicated that the differentiation in the penalties currently provided for in Section 12 adequately addresses the differences in the seriousness of the responsibility of being a third-party custodian for a felon as compared to being one for a misdemeanant. REPRESENTATIVE GRUENBERG remarked: On a policy basis and a constitutional basis, there is a right to bail. And all we want, as a society, is to be sure that they obey the conditions and that they don't flee. And assume for the purposes of discussion that there is a problem in finding third-party custodians, how do we solve that problem? MS. PARKES said she does not know the answer to that, but agrees, to an extent, that third-party requirements may be being used too often by magistrates and judges. "I think it's become very routine to require it, and maybe that needs to be looked at," she remarked, adding, "My view is, though, anyone who ... isn't planning to neglect their duties as a third-party [custodian] is not going to be put off by being told there's potentially criminal liability, which they're already told - this really doesn't change that ... in any way." REPRESENTATIVE GRUENBERG said he'd like to see both sides - prosecutors and defense attorneys - come up with some guidelines regarding when a judge or a magistrate is to appoint a third- party custodian. MS. PARKES, noting that there are provisions in the bail statute that speak to when the courts should appoint a third-party custodian, said she'd be happy to research that issue at a later time to see whether that statute is being applied properly, but doesn't anticipate anything to that effect being done with the current bill. REPRESENTATIVE GRUENBERG suggested that they should either fix Section 12 to everyone's satisfaction or take it out altogether until more work is done on the issue. He asked Ms. Parkes which option she prefers. MS. PARKES remarked that she does not accept the assumption that Section 12, as written, will discourage people from agreeing to be third-party custodians. Violation of a custodian's duties is already a criminal offense; Section 12 will merely provide a cleaner way to prosecute it and is not a major change, she opined. Number 1291 REPRESENTATIVE GARA commented: The reality as I see it is, this crime bill is probably going to move. The reality as a I see it is, if next year somebody comes up with a bill to make it harder to impose third-party custodianship, it's not going to pass. So if we're going to address that issue in a way that's acceptable to everybody, now is the time to do it. ... I'm not able to do this, [so] I would entertain any language that any of ... you feel is reasonable to put some limits on the circumstances where third-party custodianship is required by judges. This committee can't stop the judges from interpreting the current law the way they are interpreting it, so that's not going to happen. We need more guidance in the statute, apparently. And I would say that if we make it very difficult for judges to impose third-party custodianship, that amendment's not going to pass, but if we can come up with some limited way just to make [it] more clear that third-party custodianships should not be granted so reflexively, I think that probably will pass. So if anybody can come up with any suggested language to the current third-party custodianship statute on the standards applicable to when you require third-party custodianship, ... I will try and offer an amendment. ... CHAIR McGUIRE suggested to Mr. Fink that he check with someone with the Alaska Superior Court because, according to prior testimony by Ms. Brink, it appears that the Alaska Superior Court applies the current statutory standards more consistently than do magistrates. REPRESENTATIVE GRUENBERG asked Ms. Parkes to do what she could to help solve the problem. MR. FINK relayed that he would work on that issue. Number 1147 MR. FINK next turned attention to Section 5 of the proposed CS. He said: Section 5 ... makes it a felony to provide alcohol to a minor in a local option area. ... I almost find this the most outrageous section in the bill. This is going to "felonize" conduct that I don't believe the public believes is felony conduct. It's also going to grossly discriminate between rural and urban residents. MR. FINK offered the following scenarios: [If you are] 22-years-old and you give your 20-year- old brother a beer in Anchorage, if it's ever even prosecuted you may get a fine and maybe suspended time. If you're in the Bush, you've just made that a felony. That means that 22-year-old can't join the ... the military, now is a felon for the same conduct that in the urban areas would be a slap on the hand. I think this section just goes simply too far. I have spoken with the [Alaska Native Justice Center, Inc.], ... I know they're adamantly opposed to this from my conversations with them. ... You're "felonizing" conduct in the Bush that's not a felony in the urban areas, and I just think there's a real problem with this. CHAIR McGUIRE noted that that point was raised by the Public Defender Agency during a prior hearing on the proposed CS. She pointed out that currently such behavior is already a class A misdemeanor, and so the penalty can't be raised without moving into the felony arena. She also noted that just by virtue of allowing local option areas to begin with, similar behavior is treated differently in urban and rural areas: Someone in Anchorage can go to a liquor store and buy alcohol, but someone in a dry or damp village cannot do the same thing without it being considered criminal conduct and thus he/she would be subject to criminal penalties. She opined that although it's a good argument to say that a felony conviction is with someone forever, Section 5 sends the message that in local option areas, such conduct does rise to a different level because of all of the problems that come about due to alcohol abuse in those areas. MS. PARKES relayed that [the DOL] contacted the Bush caucus and spoke with Representative Kapsner, the chair, on this issue; Representative Kapsner expressed concern about the heightened penalties but supports them overall because if a village or community made the decision to go dry or damp, it is because of the recognition that alcohol has been such a social scourge on that community or village. REPRESENTATIVE GRUENBERG suggested as a solution adding language to the effect that the behavior referred to in Section 5 would be felony in a location that had gone dry or damp if that locality voted to make the behavior a felony. MR. FINK expressed approval of Representative Gruenberg's suggestion. Number 0821 MR. FINK then turned attention to Sections 13 and 14 of the proposed CS. He said: On Section 13 I would just indicate ... [that] you are disenfranchising an entire group of the citizenry from self defense. ... Let's say you're a prostitute - and we just had a trial in Anchorage on this - and your john attacks you, under this language you lose the right to self defense. ... [let's say you're] in a bar and you're 20-years-old and you have a fake ID - and we just had a tragedy ... last week ... with some rough conduct in a bar that ... potentially led to a death - ... if you're in a bar underage ... and someone attacks you, ... you can't defend yourself. So I would just suggest to the committee [that] this language ... way overreaches .... And I understand what the [district attorney] is trying to do, but it needs some significant work. REPRESENTATIVE GARA asked why the latter example would result in not being able to defend oneself. MR. FINK said it is because the person has a criminal objective, since being in a bar while underage is illegal. He noted that the language in the bill says, "acting alone or with others", and so it wouldn't matter that the person is in the bar by himself/herself. He mentioned that the Senate altered this provision in the Senate version of the bill, and thus took care of his concern; he suggested that the committee follow the Senate's lead on this issue and adopt a similar amendment. MS. PARKES relayed that a similar amendment is in members' packets and that it proposes to require that the person come armed with a deadly weapon and that felonious criminal conduct or a felonious drug transaction take place. Number 0656 MR. FINK, in closing, offered the following regarding HB 244: I understand that we want to ... be safe in our homes, safe in public, but I would suggest [that] this legislation last year grossly overreached. And because of outcries, particularly on [the] self defense [provisions], it was held on to and it's back before the legislature now and it's in better shape. However, while we want to be safe in our homes and in public, we also don't want to live in a police state. I would suggest [that] in certain [provisions], this bill criminalizes conduct in a way that is disproportionate to the conduct, and criminalizes conduct [that] the public doesn't consider criminal. So while ... the district attorney might say, or law enforcement might say [that] this is an important tool for us, that, really, said another way, ... will lessen the level of civil rights, lessen the level of protection for our citizenry. So from a philosophical perspective, I understand what the committee is trying to do and what the [district attorney] wants, but just keep in mind ... [that] this is a free society, and to the extent [that] you give law enforcement more tools, you are diminishing citizenry's rights and legal protections. And with that I would just thank you for allowing me to testify. CHAIR McGUIRE asked that forthcoming amendments be in writing and be made available to members before the bill's next hearing. She indicated that a representative from the Department of Public Safety has been on line and available for questions, and that a representative from the Public Defender Agency might provide possible amendments at the bill's next hearing. [HB 244 was held over.]
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