Legislature(2003 - 2004)
04/07/2004 01:55 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 0100 CHAIR McGUIRE announced that the first 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, adopted as a work draft on 3/19/04, was a proposed committee substitute (CS) labeled 04-0033, 1/16/2004, as amended on 4/02/04.] CHAIR McGUIRE, in response to Representative Gara, noted that [the committee packet] should now contain a proposed committee substitute (CS), labeled 23-GH1024\I, Luckhaupt, 4/6/04. Number 0147 REPRESENTATIVE SAMUELS moved that the committee rescind its action of 4/2/04 in adopting Amendment 3, which read [original punctuation provided]: Page 9, lines 2 and 3: Delete all material. Page 9, line 4: Delete "(4)" and replace it with "(2)" Page 9, line 30 to Page 10, line 1: Delete "and inform the prosecution of the category of offense to which the privilege applies: a higher level felony, a lower level felony, or a misdemeanor" CHAIR McGUIRE noted that Amendment 3 was made to the proposed CS labeled 04-0033, 1/16/2004. REPRESENTATIVE HOLM mentioned that Version I incorporated [Amendment 3]. CHAIR McGUIRE explained that [Amendment 3] addresses the section pertaining to when someone wants to claim a Fifth Amendment privilege and be granted immunity by a judge. The individual meets with the judge in his or her chambers and, under current law, if the prosecution agrees, the individual is granted transactional immunity. Amendment 3 deleted the language allowing the judge to inform the prosecution of the category of offense for which the privilege applied. REPRESENTATIVE GRUENBERG objected. REPRESENTATIVE SAMUELS recalled that the discussion on this was in regard to conforming to the Senate version. CHAIR McGUIRE clarified that the Senate version does incorporate [Amendment 3]. REPRESENTATIVE SAMUELS explained that he had thought [Amendment 3] was to a different portion of the Senate bill, otherwise he said he would've objected to the adoption [of Amendment 3]. Representative Samuels offered his understanding that immunity is rarely [granted]. He mentioned possibly having a "Chinese [firewall]" or some sort of compromise because he was concerned with "throwing it all out." Number 0427 LINDA WILSON, Deputy Director, Central Office, Public Defender Agency (PDA), Department of Administration (DOA), offered her understanding that the committee is discussing filtering information to the district attorney, information that is provided to the judge from the witness during a hearing held in camera. REPRESENTATIVE GRUENBERG said he had discussed filtering information to the district attorney with someone from the defense bar. He recalled that even the "Chinese firewall" theory would be unconstitutional. If there is some language with the "Chinese firewall" theory and the language on page 10, line 6, of Version I is changed from "shall" to "may", would that help solve the problem, he asked. MS. WILSON stated that [the "Chinese firewall"] wouldn't provide protection because any sharing of information will be unconstitutional. She pointed out that in the [State v. Gonzales, 853 P.2d 526 (Alaska 1993)] case, the court said that the state can't protect against the nonevidentiary uses of the information. She reminded the committee that Senator French, a former district attorney, said this [sharing of information] is unconstitutional. Number 0596 REPRESENTATIVE ANDERSON moved to adopt CSHB 244, Version 23- GH1024\I, Luckhaupt, 4/6/06, as the working document. There being no objection, Version I was before the committee. Number 0632 SUSAN A. PARKES, Deputy Attorney General, Central Office, Criminal Division, Department of Law (DOL), indicated that she disagreed with Ms. Wilson, and opined that it's a matter of interpretation. Ultimately, this is a matter on which the supreme court will have to rule. In reviewing the Gonzalez case, the DOL believes that the current proposal isn't unconstitutional. Furthermore, the DOL believes it's really detrimental for prosecutors to have to decide on granting immunity blindly. Therefore, the DOL is willing to compromise and establish a system in which the prosecutor isn't the person making the decision [with regard to granting immunity]. There could be people dedicated to sitting in on these hearings or be given the information by the judge, and that person would then make the decision regarding whether or not to grant immunity. MS. PARKES noted that the person making immunity decisions would be bound by confidentiality not to share that information with law enforcement or other prosecutors. She said she fails to see how that wouldn't protect the potential witness from nonevidentiary uses of the testimony if the person making the decision doesn't release that information or use it and isn't involved in the case in any manner. REPRESENTATIVE GRUENBERG asked whether, if an amendment to the effect was adopted, Ms. Parkes would be willing to change the "shall" to "may" [on page 10, line 6, of Version I]. MS. PARKES specified that she would oppose such a change. She explained that often immunity can be granted with information because witnesses and defense attorneys are cooperating. However, there are occasions in which the aforementioned parties aren't cooperative. As a public policy, the information should always be given to the prosecutor in order for him/her to make the decision about whether to grant immunity. Number 0805 REPRESENTATIVE GRUENBERG noted his opposition to Representative Samuels's motion. However, if the motion carries and the original language remains, the language will go to the supreme court. If the supreme court strikes it down, then it will be back to square one. Therefore, in order to resolve this problem, he said he supports an amendment such as suggested by Ms. Parkes as well as changing ["shall"] to "may" and providing for a contingent effective date. Representative Gruenberg announced that he would be prepared to make such an amendment if Representative Samuels's motion passes. MS. PARKES said she would like to take her chances with Representative Samuels's motion because she believes the supreme court would support the language that Amendment 3 changed. REPRESENTATIVE GRUENBERG clarified that he would be willing to make an amendment with the "may" language and a contingent effective date even if the motion fails.. In this way, [the matter] wouldn't have to come back before the legislature. CHAIR McGUIRE mentioned the severability clause. MS. PARKES said she couldn't support Representative Gruenberg's suggestion because if the supreme court found this to be unconstitutional, the court's language regarding why it was struck down would need to be reviewed as would whether the supreme court would view Representative Gruenberg's proposal as constitutional. REPRESENTATIVE GRUENBERG shared his doubt that the [supreme court] would "take" a hypothetical. MS. PARKES agreed, but stated that in the supreme court's decision and reasoning there would be some indication as to why it felt something wasn't constitutional. REPRESENTATIVE SAMUELS maintained his motion that the committee rescind its action of 4/2/04 in adopting Amendment 3. REPRESENTATIVE GRUENBERG maintained his objection. Number 0917 REPRESENTATIVE GARA pointed out that when one asks for a Fifth Amendment privilege, one isn't admitting that he/she committed a crime. Instead that individual is saying that he/she may have done something the government may view as a crime. Even in the aforementioned situation, he offered his understanding that the individual isn't required to talk to the government. He posed a situation in which an innocent person is found near circumstantial evidence of a murder: that individual doesn't have to talk to the government because of the fear that the government will try to implicate him/her in a crime he/she didn't commit. REPRESENTATIVE GARA said that the Fifth Amendment applies to both situations in which the individual committed the crime and in which the individual didn't commit the crime; it applies in situations in which the individual fears he or she will provide the government with a basis to be charged with a crime. Forcing an individual to do the aforementioned essentially makes him/her give up his/her right to the Fifth Amendment, he opined, because the Fifth Amendment provides protection for both innocent and guilty individuals and places the burden on government to prove a guilt. He acknowledged that the Fifth Amendment has both good and bad aspects. He maintained his support for Amendment 3. CHAIR McGUIRE expressed concern with regard to those who have abused the process and thus "we find ourselves in this position because of that." She offered her belief that testimony has indicated that it's not [the sponsor's] intent, once the level of crime is revealed, to prosecute individuals. To the extent such ever occurred, the legislature would change the law. REPRESENTATIVE GRUENBERG pointed out, however, that Ms. Parkes can't speak for the DOL in every case or for every administration. The fact is, he opined, these [witnesses] are going to have a hearing in camera during which there will be an offer of proof by the defense to the judge with the defendant and [his/her] attorney present. The defendant is going to say that he/she couldn't testify about this murder because it might reveal that he/she committed another murder. The judge would then tell the prosecution that the individual can't be made to testify because of an unclassified felony. At that point, the prosecution will be under immense political pressure to investigate and prosecute for that crime. Therefore, it will incriminate the witness, which is unconstitutional, he emphasized. MS. PARKES clarified that as it's proposed, [the DOL] is simply asking for information regarding whether the witness is concerned about a higher felony, a lower felony, or a misdemeanor. Although Ms. Parkes said she understood [members'] concern and couldn't speak for future cases, Representative Gruenberg's hypothetical situation is not the way it works. If the DOL is prosecuting a homicide and [a witness] says he or she may implicate themselves in a higher-level felony, the [prosecutor] has no idea what that is. She identified the aforementioned as the break in the chain of evidence. REPRESENTATIVE GRUENBERG suggested, "It may not, but it may." People may know exactly what the witness's potential involvement is, and this is what concerns him. Number 1251 A roll call vote was taken. Representatives Samuels, Holm, Anderson, and McGuire voted in favor of the motion to rescind the committee's action of 4/2/04 in adopting Amendment 3. Representatives Gara and Gruenberg voted against it. Therefore, the motion to rescind the committee's action in adopting Amendment 3 passed by a vote of 4-2. Number 1251 REPRESENTATIVE SAMUELS moved that the committee adopt Conceptual Amendment 17 "for the drafters to draft the language (indisc.) 'Chinese firewall' so that the same prosecutor prosecuting the case is not the one ... in the chambers with the judge." REPRESENTATIVE GARA objected for discussion purposes. He surmised that the desire is for the prosecutor who is told this information to not share it with other prosecutors. REPRESENTATIVE SAMUELS replied yes. REPRESENTATIVE GARA suggested, then, that [Conceptual Amendment 17] needs to be reworded. MS. PARKES offered her understanding that the desire is to have a designated person from the DOL assigned to make a determination about immunity and that designated person would be bound by confidentiality not to share the information with anyone. CHAIR McGUIRE offered her understanding that Representative Samuels's intention is for Conceptual Amendment 17 to mean what Ms. Parkes stated. REPRESENTATIVE GRUENBERG remarked that [adopting Conceptual Amendment 17] would be better than leaving the bill as is. However, he expressed concern that the supreme court will strike this provision down. Therefore, he said he wanted to offer an amendment to Conceptual Amendment 17 that would "have, ... instead of a 'shall', a 'may' in it, and it would have a contingent effective date if the supreme court strikes down the conceptual amendment." Therefore, if the supreme court says the judge can't be compelled to do this, then the amendment to Conceptual Amendment 17 would come into play and thus allow the judge to do so only when he/she feels it is appropriate. Number 1425 MS. PARKES said her concern is that if "shall" is unconstitutional, then "may" would be as well. REPRESENTATIVE GARA opined that Representative Gruenberg's amendment to Conceptual Amendment 17 probably makes sense because the judge can ensure that it's done only in constitutional cases. If, by a witness saying that he or she might have been involved in something that might be considered a higher level felony, the [prosecution] would be made aware of [the information], and so the judge wouldn't allow [the information] to be released because it's self-incriminating, which is unconstitutional. However, if the information wouldn't alert the prosecutor to what crime the witness might have been involved in, then it would probably be allowed. For example, he posed a situation in which there are five minors consuming at a mall and a fight begins with one of those minors and someone else. The fight results in the death of the other individual, and the prosecution brings a murder case. REPRESENTATIVE GARA posed that three [of the minors] were involved in the fight that resulted in the death, while two [minors] were merely consuming. The prosecution gets the evidence regarding involvement in what might be viewed as a higher-level felony, and therefore it becomes apparent that the individual was involved in the fight. While [it becomes apparent that] the individual involved in a low level misdemeanor is the minor consuming. Therefore, in such a situation the judge may say that [informing the prosecution of the offense level] would be [tantamount to] telling [the prosecution] who did what. Under the "may" language, the judge wouldn't inform [the prosecution] because it would be unconstitutional. However, in other situations such as those mentioned by Ms. Parkes, Representative Gara opined that it probably would be constitutional [to share the information]. The aforementioned has the benefit of doing what Representative Gruenberg is suggesting, he remarked. REPRESENTATIVE SAMUELS surmised that the DOL is willing to let [this provision] be struck down by the supreme court rather than start from scratch. CHAIR McGUIRE asked if the [amendment to Amendment 17] would be like a severability clause. REPRESENTATIVE GRUENBERG clarified that he is attempting to provide an option to [allow immunity] in the appropriate cases. Number 1568 MS. PARKES remarked that if the conceptual amendment passes, the scenario discussed by Representative Gara wouldn't happen because the designated individual who is told the level of the potential crime isn't going to share that information, and so this issue shouldn't be of concern. With regard to allowing the judge to decide when it's appropriate, the judge often has very little information and often doesn't have the information that prosecutors would have. Therefore, placing the judge in the position of having to decide whether a prosecutor could use this information is unfair. There could be investigations for which the judge has no knowledge and, under the proposed scenario, [the prosecution] could be "tipped off." A judge shouldn't be making those type of evidentiary decisions, she opined. Conceptual Amendment 17 seems to take care of the concerns about any information being used inappropriately. REPRESENTATIVE GRUENBERG said it wasn't his intent to place the judge in an awkward position. He explained that he is simply trying to provide the prosecution with the opportunity to request "the firewall," which would not otherwise be available. MS. PARKES said she would accept that concept. Upon further clarification, Ms. Parkes restated her concern with regard to the change of "shall" to "may". REPRESENTATIVE GARA relayed his understanding that the amendment to Conceptual Amendment 17 would only [be in effect] if Conceptual Amendment 17 is declared unconstitutional. REPRESENTATIVE GRUENBERG concurred with Representative Gara's understanding. Number 1698 REPRESENTATIVE GARA then objected. He commented that it's important to obtain information from witnesses, the department, and government when it's involved. However, he said he didn't like the tenor of trying to find out whether the government is going to agree that it's [appropriate] to do something. At some point, [legislators] have to make an independent judgment. CHAIR McGUIRE pointed out that the House Judiciary Standing Committee reviews opinions that are very diverse in nature. Often, courts in different circuits rule differently on the same question. Therefore, these opinions provide [members] the ability to reflect and analyze how a particular law may be interpreted. She opined that Representative Gruenberg is saying that the Gonzalez case is unclear. REPRESENTATIVE GARA said he tended to agree. REPRESENTATIVE SAMUELS said that he didn't view Representative Gruenberg's amendment to Conceptual Amendment 17 as friendly. MS. PARKES, in response to Representative Gruenberg, announced that the DOL would support Conceptual Amendment 17 without Representative Gruenberg's amendment to it. REPRESENTATIVE GRUENBERG withdrew his amendment to Conceptual Amendment 17. Number 1831 CHAIR McGUIRE asked whether there were any objections to the adoption of Conceptual Amendment 17. There being no objection, Conceptual Amendment 17 was adopted. Number 1844 REPRESENTATIVE SAMUELS moved that the committee adopt Amendment 2, which read [original punctuation provided]: Page 8, after line 18: Insert the following: "*Sec. 15. AS 12.25.150(b) is repealed and reenacted to read: (b) Immediately after an arrest, a prisoner has the right to (1) telephone or otherwise communicate with the prisoner's attorney; (2) telephone or otherwise communicate with any relative or friend; (3) an immediate visit from an attorney at law entitled to practice in the courts of Alaska requested by the prisoner; and (4) a visit from a relative or friend requested by the prisoner. This subsection does not provide a prisoner with the right to initiate communication or attempt to initiate communication under circumstances prescribed under AS 11.56.755." Renumber the following bill sections accordingly. REPRESENTATIVE GRUENBERG objected. Representative Gruenberg pointed out that Amendment 2 offers to insert nearly the same language that was in [the original version of] HB 244 but which was rejected last year via an amendment. The only change, he opined, from the original language that was rejected and today's Amendment 2 is that the visit from the attorney - in paragraph (3) - could now be an immediate visit. In essence, last year's amendment added language to the effect that the attorney described in paragraph (3) could be requested not only by the prisoner but also by any relative or friend of the prisoner; Amendment 2 seeks to undo this change that was made last year to the original version of HB 244. Representative Gruenberg asked Representative Samuels if he would be amenable to including "or any relative or friend of the prisoner" after "prisoner" in proposed paragraph (3) of Amendment 2. REPRESENTATIVE SAMUELS said that the purpose of Amendment 2 is to eliminate that language. Representative Samuels clarified that he is attempting reinsert language that the amendment from last year took out. REPRESENTATIVE GRUENBERG pointed out, however, that [all the language] isn't being reinserted because Amendment 2 doesn't include the language "or any relative or friend of the prisoner" after "prisoner". CHAIR McGUIRE clarified that Representative Samuels is trying to eliminate the ability of a relative or friend to be the one requesting an attorney to visit a defendant. Therefore, Amendment 2 makes it clear that the defendant can initiate contact with an attorney or telephone a friend or relative, but a friend or relative can't then solicit the attorney's participation. Number 1994 REPRESENTATIVE GRUENBERG moved that the committee adopt an amendment to Amendment 2, which would insert "or any friend or relative of the prisoner" [after "prisoner"]. REPRESENTATIVE SAMUELS objected, and announced that if the amendment to Amendment 2 passes, he would withdraw Amendment 2. Representative Samuels opined that someone else shouldn't be able to invoke someone's rights. When someone is arrested, that individual's rights are specified. He noted that there are already standards for those who don't speak English or those with mental difficulties. However, the current legislation differentiates between two people who have been accused of the same crime, and one individual is allowed "a second bite at the apple," and the aforementioned isn't fair, he opined. CHAIR McGUIRE recalled the debate during hearings on the original version of HB 244 in which there was reference to attorneys inside or outside the courthouse soliciting [defendants]. She questioned whether the problem could be solved differently [than via the proposal encompassed in Amendment 2]. Perhaps, there could be a prohibition against attorneys being around the courthouse and soliciting. REPRESENTATIVE SAMUELS specified that it's not just the attorneys. He reiterated that only the individual being arrested should be able to invoke his or her rights. REPRESENTATIVE GRUENBERG said that the problem with Amendment 2 is that as written it is broader than what Representative Samuels has suggested. Amendment 2 would include more than just those [under arrest] who have said they don't want an attorney; rather, Amendment 2 includes everyone. Representative Gruenberg highlighted that most individuals who are arrested are quite traumatized, and therefore may not have the presence of mind or ability to obtain an attorney. [Amendment 2] specifies that if a friend or relative hires an attorney for the prisoner, then that attorney is prohibited from talking to the prisoner even if the prisoner has never said he or she didn't want an attorney. This isn't a question of equal protection, rather "that's the tail wagging the dog," he opined, and posed a situation in which an 18-year-old is arrested and doesn't think about asking for an attorney - [under Amendment 2] the father can't hire an attorney to advise his son. Number 2219 REPRESENTATIVE GARA said that he opposes [Amendment 2]. In the context of these amendments, Representative Gara said that he thinks in the context of those innocent individuals that he has represented. He posed a situation in which an innocent person is taken to jail and calls home only to reach the 14-year-old brother. The prisoner and the 14-year-old don't know what to do and the phone call ends. No attorney is coming, and the prisoner hasn't asked for an attorney. Later, the prisoner talks with his mother, who secures an attorney. However, under [Amendment 2], the government can prevent the attorney from speaking to the prisoner. Representative Gara opined that the aforementioned is a bad policy. He inquired as to the harm of placing someone who has been arrested on equal footing with the government with regard to having someone with some expertise. REPRESENTATIVE SAMUELS, in response, posed a situation in which a young girl has been raped by a man who is confessing to the crime. However, the interview is interrupted because the man's friend suggested that he needs an attorney. If another individual - a parent, a friend, a relative - invokes the rights of the man confessing, the confession is gone and the victim is "left hanging." "Most crimes are solved because stupid people commit crimes and then ... confess to them," he opined. Therefore, if one wants an attorney, he or she should make that request. Furthermore, he recalled that a juvenile has the right to call his or her parent, but the juvenile can also waive that right. REPRESENTATIVE GRUENBERG emphasized that the constitution and the law is present to protect everyone. Even the guilty have a right to an attorney. If one's only goal is to convict the bad guys, then that individual would be against anything that's fair. He characterized this change as a slippery slope. REPRESENTATIVE GARA opined that the real benefit of [Amendment 2] will be to the repeat offender who knows that the first thing one must do is request an attorney. However, [Amendment 2] doesn't help those individuals involved with the criminal system for the first time because they aren't going to think to request an attorney. Representative Gara acknowledged that he tends to discuss criminal legislation [in the context of the innocent person who is arrested]. TAPE 04-62, SIDE B Number 2393 REPRESENTATIVE GARA pointed out that Representative Samuels tends to discuss the impact such legislation would have on the guilty person who abuses the system. The truth, Representative Gara posited, is that it will impact both. CHAIR McGUIRE noted her frustration with these situations because she wishes more people who commit crimes wouldn't use the system to get off. However, she also noted that the laws are present to protect [everyone's] constitutional rights. MS. PARKES clarified that [Amendment 2] won't take away anyone's constitutional right because each individual has the ability to personally invoke his/her rights. The question is whether one should have the ability to invoke another individual's constitutional rights. Allowing an attorney to interrupt an interview provides some individuals extra rights that can be invoked by someone else. REPRESENTATIVE ANDERSON inquired as to how many people will know, should Amendment 2 fail, that a friend or family member could obtain an attorney for the prisoner. REPRESENTATIVE SAMUELS pointed out that [current law] already allows this. CHAIR McGUIRE noted that the bill was trying to change this situation last year. REPRESENTATIVE GRUENBERG said he agrees that Ms. Parkes is correct in that there isn't a constitutional right to this. However, he pointed out that in Alaska it's a long-standing legal right. In many cases, Alaska law is more protective than the federal constitution. If Amendment 2 were to pass, it would change long-standing Alaska law. Representative Gruenberg announced that he [is withdrawing] his amendment to Amendment 2. REPRESENTATIVE SAMUELS opined that with the amendment one should choose the victim's [point of view]. Number 2195 A roll call vote was taken. Representatives Samuels, Holm, Anderson, and McGuire voted in favor of Amendment 2. Representatives Gara and Gruenberg voted against it. Therefore, Amendment 2 was adopted by a vote of 4-2. The committee took an at-ease from 2:49 p.m. to 2:50 p.m. Number 2107 REPRESENTATIVE GRUENBERG moved that the committee adopt Amendment 18 with handwritten changes, labeled with an "M" in the lower right corner, which read [original punctuation provided]: Page 8, Sec 14 lines 18-22, omit all of proposed section 14. [Sec. 11.81.345. DEFENSE OF SELF AND OTHERS. A COURT MAY INSTRUCT THE JURY ABOUT THE JUSTIFICATION DESCRIBED IN AS 11.81.330-11.81.340 IF THE COURT, SITTING WITHOUT A JURY, FINDS THAT THERE IS SOME PLAUSIBLE EVIDENCE TO WARRANT A REASONABLE JURY TO FIND THE ELEMENTS OF THE JUSTIFICATION.] CHAIR McGUIRE objected. REPRESENTATIVE GRUENBERG explained that this provision is the result of the Folger v. State case [648 P.2d 111, 113 (Alaska App. 1982)]. He specified that there is language in the aforementioned case and others, such as Toomey and Westin (ph), that makes it clear that the burden is on the defendant to produce some evidence supporting a claim of self-defense before being entitled to jury instruction on that defense. [Section 14] is an attempt to change the aforementioned standard, and therefore he has offered Amendment 18. REPRESENTATIVE GRUENBERG said that the only question is regarding whether there is enough evidence to go to the jury. Representative Gruenberg turned to Toomey, 581 P.2nd 1124, 1126, note 6, from Alaska Supreme Court, 1978, and offered a quote as follows: "The term 'some evidence' was defined, albeit in another context, by our Supreme Court in LeBlonde v. State as 'evidence, in light of which a reasonable jury could've entertained a reasonable doubt as to the element in question.'" He pointed out that the only reason the term "implausible" was ever used was in order to specify that it's not up to the court to weigh the evidence because that's the jury's responsibility. The aforementioned is a constitutional right, he opined, and if Section 14 is passed, the standard would be changed in the civil and criminal context. Representative Gruenberg mentioned that he is hypothetically taking this issue to the supreme court in a civil context. He noted that this question comes up on summary judgments when a case is taken and dismissed before the jury gets it. Number 1910 MS. PARKES acknowledged that the desire is to change the standard of evidence that will allow a case to proceed to a jury. There are many cases wherein the current standard has been interpreted to mean that any evidence, even a scintilla of evidence or implausible evidence, allows a jury to receive a self-defense instruction. The [DOL] is requesting that it be "bumped up" a bit. She reminded the committee that last year the DOL wanted to shift the burden and make self-defense an affirmative defense. [Section 14] merely specifies that there needs to be some plausible evidence before such a defense can be put before the jury, and then the state has to prove it wasn't self defense beyond a reasonable doubt. Ms. Parkes pointed out that judges frequently decide what relevant evidence is and what will be allowed to come before a jury. REPRESENTATIVE GRUENBERG emphasized that this isn't a question of what evidence can be introduced. He relayed his understanding from Ms. Parkes that the DOL's intent is to change the standard so that the issue gets taken from the jury. The question of taking a case from the jury is a divestment of a constitutional right, which is the holding by the Alaska Supreme Court in one case in the civil area. He specified that these cases are grounded in the state and federal right to a jury trial, and any attempt to change that standard runs afoul of those constitutional rights. This legislature and the attorney general have no ability to change it, he said. REPRESENTATIVE GARA asked whether, if by saying "some plausible evidence," Ms. Parkes means "any plausible evidence." If so, if there is any plausible evidence, it would support the use of a self-defense defense. MS. PARKES replied yes. She explained that if there is some plausible evidence on which the jury could rely, then the individual will receive the instruction and the state will have to prove beyond a reasonable doubt that it was not a case of self defense. Ms. Parkes acknowledged that although this isn't an evidence rule, what evidence is relevant and admissible may well hinge on whether a judge says there is a valid self-defense claim and whether a self-defense argument can be presented to a jury. If a self-defense argument isn't allowed, much evidence isn't going to come in because it wouldn't be relevant. REPRESENTATIVE GARA mentioned that he is sympathetic to the prosecution's view on this issue; however, the constitution doesn't mandate that one be allowed to present implausible evidence. In the civil context, the courts will dismiss a case if it's only based on implausible evidence. In the criminal context, it's fair, he opined, that before the prosecution is given the burden of proving that it isn't a case of self defense, that a scintilla of plausible evidence must be presented. Number 1722 A roll call vote was taken. Representatives Gruenberg voted in favor of Amendment 18. Representatives Gara, Holm, and McGuire voted against it. Therefore, Amendment 18 failed by a vote of 1-3. Number 1688 REPRESENTATIVE GRUENBERG moved that the committee adopt Amendment 19, which read [original punctuation provided]: Page 12, line 7: Add a new bill section and renumber bill sections and section references accordingly: Sec. ___. AS 28.35.030(a) is amended to read: (a) A person commits the crime of driving while under the influence of an alcoholic beverage, inhalant, or controlled substance if the person operates or drives a motor vehicle or operates an aircraft or a watercraft (1) while under the influence of an alcoholic beverage, intoxicating liquor, inhalant, or any controlled substance, singly or in combination; or (2) if [WHEN], as determined by a chemical test taken within four hours after the alleged offense was committed, there is 0.08 percent or more by weight of alcohol in the person's blood or 80 milligrams or more of alcohol per 100 milliliters of blood, or if [WHEN] there is 0.08 grams or more of alcohol per 210 liters of the person's breath[; OR (3) WHILE THE PERSON IS UNDER THE COMBINED INFLUENCE OF AN ALCOHOLIC BEVERAGE, AN INTOXICATING LIQUOR, AN INHALANT, AND A CONTROLLED SUBSTANCE]. REPRESENTATIVE GRUENBERG commented that AS 28.35.030(a)(3) seemed to have awkward phrasing, and therefore he felt that it would read better grammatically with the adoption of [Amendment 19]. MS. PARKES said that the department doesn't have any objection to Amendment 19. Number 1534 CHAIR McGUIRE, upon determining that there were no objections, announced that Amendment 19 was adopted. Number 1530 REPRESENTATIVE GARA moved that the committee adopt Amendment 20A [with handwritten changes], as follows [original punctuation provided]: Delete Page 13, lines 14-17 Insert in its place: (s) In a prosecution under (a) of this section, a person may introduce evidence on the amount of alcohol consumed before or after operating or driving the motor vehicle, aircraft or watercraft, to rebut or explain the results of a chemical test, but the consumption of alcohol before operating or driving cannot be used as a defense that the chemical test did not measure the blood alcohol at the time of the operating or driving. Consumption of alcohol after operating or driving the motor vehicle, aircraft or watercraft may be used to raise such a defense. CHAIR McGUIRE objected. REPRESENTATIVE GARA explained that he has worked with the language in order to eliminate the big gulp theory without going any further than that. The language in Amendment 20A specifies that if one want to rebut the evidence of a chemical test, the individual can inform the jury as to how much alcohol was consumed or not consumed before driving. But it's not a defense that the [chemical test] measures one's alcohol level at the time of the test as opposed to at the time of driving, he further explained. MS. PARKES said she has no objection to Amendment 20A. Number 1400 CHAIR McGUIRE removed her objection. Upon determining there were no further objections, Chair McGuire announced that Amendment 20A was adopted. Number 1382 CHAIR McGUIRE moved that the committee adopt Amendment 20B [with handwritten changes], as follows [original punctuation provided]: Add a new section and renumber other sections accordingly: *Sec.__. AS 28.35.030(a) is amended to read: (a) A person commits the crime of driving while under the influence of an alcoholic beverage, inhalant, or controlled substance if the person operates or drives a motor vehicle or operates an aircraft or a watercraft (1) while under the influence of an alcoholic beverage, intoxicating liquor, inhalant, or any controlled substance; (2) and if [WHEN], as determined by a chemical test taken within four hours after the alleged offense was committed, there is 0.08 percent or more by weight of alcohol in the person's blood or 80 milligrams or more of alcohol per 100 milliliters of blood, or [WHEN] there is 0.08 grams or more of alcohol per 210 liters of the person's breath; or (3) while the person under the combined influence of an alcoholic beverage, an intoxicating liquor, an inhalant, or [AND] a controlled substance. Number 1346 CHAIR McGUIRE, noting that there were no objections, announced that Amendment 20B was adopted. Number 1332 REPRESENTATIVE GARA moved that the committee adopt Amendment 21, on page 8, line 24, after "written" insert "or oral". There being no objection, Amendment 21 was adopted. Number 1279 REPRESENTATIVE GRUENBERG moved that the committee adopt Amendment 22, which read [original punctuation provided]: Page 5, line 9: Insert new bill section and renumber bill sections and section references accordingly: Sec. ___. AS 09.50.020(a) is amended to read: (a) A person who is guilty of contempt is punishable by a fine of not more than $300 or by imprisonment for not more than six months. However, when the contempt is one mentioned in AS 09.50.010(3)- (12), or in an action before a magistrate, the person is punishable by a fine of not more than $100 unless it appears that a right or remedy of a party to an action or proceeding was defeated or prejudiced by the contempt, in which case the penalty shall be as prescribed for contempts described in AS 09.50.010(1) and[,](2)[, AND (13)]. Page 7, lines 23-31: Amend existing language as follows Sec. 11.56.758. Violation of custodian's duty. (a) A person commits the crime of violation of a custodian's duty if the person knowingly fails, when acting as a custodian appointed by the court for a released person under AS 12.30, to report immediately as directed by the court that the person released has violated a condition of the release. (b) Violation of custodian's duty is [(1) A CLASS A MISDEMEANOR IF THE RELEASED PERSON IS CHARGED WITH A FELONY; (2)] a class B misdemeanor [IF THE RELEASED PERSON IS CHARGED WITH A MISDEMEANOR]. Number 1272 CHAIR McGUIRE objected. REPRESENTATIVE GRUENBERG explained that the first portion of Amendment 22 is a conforming amendment. Representative Gruenberg specified that the language in Amendment 22 should be inserted in the necessary location in [Version I]. The amendment requires that the person must "knowingly fail" to report the violation. Under current [law], this contempt of court violation is punishable by six months in prison. The second portion of Amendment 22 makes the violation a class B misdemeanor, which makes it subject to three months in prison. REPRESENTATIVE GRUENBERG pointed out that the "repealer section" already repeals the contempt provision on page 15, line 25, and therefore it wasn't necessary to do it via Amendment 22. However, he added, it is necessary to repeal a reference to it. Representative Gruenberg then turned attention to [a letter from] Jerry Luckhaupt, Attorney, Legislative Legal and Research Services, dated April 6, 2004, which specifies that a conforming amendment is necessary: "AS 12.30.020(b)(1) will also need to be amended because of the repeal of AS 09.50.010(13) ... because that references that particular statute." Number 1098 REPRESENTATIVE GRUENBERG moved that the committee conceptually amend Amendment 22 such that it conforms to AS 12.30.020(b)(1). Number 1071 CHAIR McGUIRE, upon determining there were no objections to the conceptual amendment to Amendment 22, announced that it was adopted. Therefore, Amendment 22, as amended, was before the committee. REPRESENTATIVE GRUENBERG opined that 90 days in jail is a sufficient penalty for failing to report someone. Furthermore, the arduous task of proving contempt isn't required. REPRESENTATIVE SAMUELS recalled that contempt was the middle ground and a class B misdemeanor lowers the penalty and a class A misdemeanor raises it. However, under Amendment 22, as amended, all of the penalties would be lower, even if the person being supervised committed it's a felony. REPRESENTATIVE GRUENBERG replied yes, and opined that it's better to make it a regular class of crime. Number 1010 MS. PARKES noted her support of repealing the contempt provision and that she didn't oppose inserting the "knowingly fails" language. However, she urged the committee to maintain the differentiation between a class A and class B misdemeanor. Number 0918 A roll call vote was taken. Representatives Gara and Gruenberg voted in favor of Amendment 22, as amended. Representatives Samuels, Holm, and McGuire voted against it. Therefore, Amendment 22, as amended, failed by a vote of 2-3. Number 0906 CHAIR McGUIRE moved that the committee adopt Amendment 23, as follows [original punctuation provided]: Page 5, line 9: Insert new bill section and renumber bill sections and section references accordingly: Sec. ___. AS 09.50.020(a) is amended to read: (a) A person who is guilty of contempt is punishable by a fine of not more than $300 or by imprisonment for not more than six months. However, when the contempt is one mentioned in AS 09.50.010(3)- (12), or in an action before a magistrate, the person is punishable by a fine of not more than $100 unless it appears that a right or remedy of a party to an action or proceeding was defeated or prejudiced by the contempt, in which case the penalty shall be as prescribed for contempts described in AS 09.50.010(1) and[,](2)[, AND (13)]. Page 7, lines 23-31: Amend existing language as follows Sec. 11.56.758. Violation of custodian's duty. (a) A person commits the crime of violation of a custodian's duty if the person knowingly fails, when acting as a custodian appointed by the court for a released person under AS 12.30, to report immediately as directed by the court that the person released has violated a condition of the release. With a conforming amendment to AS 12.30.020(b)(1) because of the repeal of AS 09.50.010(13). Number 0862 CHAIR McGUIRE, after ascertaining that there were no objections, announced that Amendment 23 was adopted. Number 0850 REPRESENTATIVE GRUENBERG moved that the committee adopt Amendment 24, which read [original punctuation provided]: Page 8, lines 1-17: Delete bill section 13. CHAIR McGUIRE objected. REPRESENTATIVE GRUENBERG said "This is presently overbroad," and clarified that he believes that [Section 13] speaks to the wrong [statute] and should [reference] the deadly force [statute] because [under Section 13] one isn't able to use nondeadly force when fleeing from a drug deal. Number 0608 MS. PARKES remarked that Section 13 applies to the use of deadly force. Based on the discussions and the way the legislation has been narrowed to a deadly weapon and felonious conduct, she urged the committee to keep Section 13 in the bill. If someone uses a gun to shoot someone and doesn't kill that individual, the same arguments apply for non-deadly force as well. The desire is to take away self-defense in dangerous situations in which people know they are entering dangerous situations. REPRESENTATIVE GRUENBERG recalled discussion regarding shifting the burden, and noted his dislike of the prohibiting a particular defense. He pointed out that AS 11.81.900(18) discusses the defenses in Alaska, including self-defense, and currently the burden isn't placed on the defendant. He offered his belief that there has been a concerted effort in Alaska to not make self defense an affirmative defense. CHAIR McGUIRE said she is opposed to Amendment 24. She recalled that the DOL came out with a broad version of Section 13 last year and it was rejected. The DOL has since fine-tuned the concept. She opined that there are compelling arguments that in gang activity, it really can be a case in which everyone says [their actions] were in self-defense. A rebuttable presumption would eliminate the argument that there is a constitutional right to argue it. Therefore, the burden would be shifted and wouldn't be on the prosecution. REPRESENTATIVE GRUENBERG said: They seem to want to take cases up to the supreme court, at least of Alaska, probably up to the Supreme Court of the United States. They want to ... test the theory [of] whether they can absolutely prohibit a defense like this under the constitution of the state and the U.S. If they want to spend the state's money on this and take this state and this country back into the dark ages, I don't think they'll be successful. But I don't want to make this any better because I think this is clearly unconstitutional. And if they do it, the court will strike it down and we'll be right back where we are, which is constitutional. Number 0260 MS. PARKES said that the department would oppose [Amendment 24]. The amendment to 11.81.330 discusses using a deadly weapon, and therefore is restricted to those situations. She offered her recollection that the Bangs (ph) case discusses and upholds the state's ability to prohibit the use of self-defense in certain situations, and Section 13 merely sets forth a few more circumstances in which the state can prohibit the use of self- defense. The DOL believes that the court has already said that prohibiting it in certain situations would be acceptable. Therefore, having a rebuttable presumption isn't the direction the DOL wants to go in. CHAIR McGUIRE maintained her objection. Number 0100 A roll call vote was taken. Representatives Gara and Gruenberg voted in favor of the adoption of Amendment 24. Representatives Samuels, Holm, and McGuire voted against it. Therefore, Amendment 24 failed by a vote of 2-3. Number 0010 REPRESENTATIVE SAMUELS moved to report the proposed CS for HB 244, Version 23-LS1024\I, Luckhaupt, 4/6/04, as amended, out of committee with individual recommendations and the accompanying fiscal notes. TAPE 04-63, SIDE A Number 0001 REPRESENTATIVE GRUENBERG objected. The committee took an at-ease from 3:34 p.m. to 3:35 p.m. CHAIR McGUIRE reminded the committee that it's her discretion as the chair of the House Judiciary Standing Committee to interpret Uniform Rule 24(a) to read that a majority of members present is what's required so long as a quorum is in place to report legislation from a standing committee. Number 0113 A roll call vote was taken. Representatives Samuels, Holm, and McGuire voted in favor of reporting the proposed CS for HB 244, Version 23-LS1024\I, Luckhaupt, 4/6/04, as amended, from the committee. Representatives Gara and Gruenberg voted against it. Therefore, CSHB 244(2d JUD) was reported out of the House Judiciary Standing Committee by a vote of 3-2. REPRESENTATIVE GRUENBERG noted that he supported the ruling of the chair with regard to her interpretation of Uniform Rule 24(a). Number 0121 REPRESENTATIVE GRUENBERG made a motion to adopt a letter of intent, which read [original punctuation provided]: The Alaska State Legislature acknowledges the findings contained in the Alaska Judicial Council's study "Alaska Felony Process: 1999" that the use of third party custodians was initially intended to give indigent defendants an equal opportunity for predisposition release, that this bail condition was one of the most important influences on the length of time that defendants spent incarcerated before disposition of their cases, and that this bail condition has resulted in substantially longer terms of predisposition incarceration in non-violent type cases. Given the right to bail guaranteed by Article I, Section 11 of the Alaska Constitution, it is the intent of the Legislature that judicial officers more rigorously apply the statutory framework set out in AS 12.30.010-029 for pretrial release. It is the intent of the Legislature that judicial officers appoint third party custodians in a manner that will further the intent of the statute. CHAIR McGUIRE, noting that there were no objections, indicated that the letter of intent was adopted and would be forwarded with CSHB 244(2d JUD).
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