Legislature(2011 - 2012)BELTZ 105 (TSBldg)
04/04/2012 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB180 | |
| SB134 | |
| SB218 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 180 | TELECONFERENCED | |
| += | SB 218 | TELECONFERENCED | |
| += | SB 134 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 218-SEX CRIMES; TESTIMONY BY VIDEO CONFERENCE
2:18:59 PM
CHAIR FRENCH announced the consideration of SB 218, "An Act
relating to conspiracy to commit human trafficking in the first
degree or sex trafficking in the first degree; relating to the
crime of furnishing indecent material to minors, the crime of
online enticement of a minor, the crime of prostitution, and the
crime of sex trafficking; relating to forfeiture of property
used in prostitution offenses; relating to sex offender
registration; relating to testimony by video conference; adding
Rule 38.3, Alaska Rules of Criminal Procedure; and providing for
an effective date." He asked for a motion to adopt version B
committee substitute (CS).
SENATOR WIELECHOWSKI moved to adopt the work draft CS for SB
218, labeled 27-GS2627\B, as the working document.
2:19:35 PM
ANNE CARPENETI, Assistant Attorney General representing the
Criminal Division, Department of Law (DOL), provided a sectional
analysis.
Sections 1-16 generally raise the threshold amounts for theft in
the second, third, and fourth degrees to a higher level. For
example, a person commits theft in the second if a person takes
property or services valued at $500 or more but less than
$25,000. SB 218 would change the threshold amount to $1,500 or
more but less than $25,000. Second-degree theft is a class C
felony. The threshold values for theft in the third degree would
change from $50 or more but less than $500 to $250 or more but
less than $1,500. Theft in the third degree is a class A
misdemeanor. Current law provides that it is theft in the fourth
degree if a person takes property or services valued at $50 or
more. The bill raises the threshold amount to $250 or more up to
$1,500. Theft in the fourth degree is a class B misdemeanor.
CHAIR FRENCH recalled that class B misdemeanor penalties provide
90 days in jail. He asked the amount of the fine.
MS. CARPENETI said she would look it up. She continued to
explain that the bill changes those threshold amounts in other
theft-related crimes. She listed concealment of merchandise,
removal of identification marks, unlawful possession, issuing a
bad check, fraudulent use of an access device, vehicle theft.
Section 9 deals with prior convictions. Second, third, and
fourth degree theft each has a provision that increases the
penalty one level if a person commits a lower level of theft and
the person has two prior theft convictions within the previous
five years. The bill also changes the values related to the
penalty for criminal mischief in the third, fourth, and fifth
degrees.
2:22:30 PM
CHAIR FRENCH asked if criminal mischief is generally the
destruction of somebody else's property.
MS. CARPENETI said yes. She continued to explain that the
changes in the bill would also apply to the crimes of criminal
simulation, misapplication of property, and defrauding
creditors.
2:24:20 PM
CHAIR FRENCH asked if the department had taken a position on the
idea of Senator Coghill's [to increase the threshold values for
theft.]
MS. CARPENETI said no.
SENATOR WIELECHOWSKI questioned why DOL had not taken a
position.
MS. CARPENETI explained that it would be awkward for DOL to take
a position when it was prosecuting people for crimes under the
law as currently written.
SENATOR WIELECHOWSKI expressed a desire to hear the
administration's position.
2:25:42 PM
CHAIR FRENCH asked Ms. Carpeneti to work on getting a response
from the department that was something more than "no position."
MS. CARPENETI referenced an earlier question and relayed that a
class B misdemeanor carries a maximum fine of $2,000. A class A
misdemeanor carries a maximum fine of $10,000.
CHAIR FRENCH recapped that the penalty for a class B misdemeanor
is 90 days in jail and a maximum fine of $2,000. The penalty for
a class A misdemeanor is one year in jail and a maximum fine of
$10,000. The penalty for a class C felony is 5 years in jail and
a maximum fine of $50,000.
2:27:01 PM
MS. CARPENETI added that the penalty for a class B [felony] is
10 years in jail and a maximum fine of $100,000.
Section 17 amends the elements of the crime of distribution of
indecent materials to minors. This is in response to a finding
by a federal district court judge that this law is
constitutionally overbroad. The proposal is to require the state
to prove that the defendant intentionally and knowingly
distributed, or possessed with intent to distribute, prohibited
material to a person that the defendant knows is a child under
age 16 or believes to be a child under age 16.
CHAIR FRENCH asked if the key change is the insertion of the
word "intentionally" on page 8, line 8.
MS. CARPENETI replied the key words are "intentionally" and
"knows" on page 8, lines 8 and 11. A person intentionally
distributes prohibited material and knows it is to a child who
is under 16 years of age.
CHAIR FRENCH commented that it is hammering the mental state of
the offender.
MS. CARPENETI agreed. She noted that the American Civil
Liberties Union (ACLU) had testified on various provisions of
the bill, but had not raised concerns about this particular
change.
Sections 18-20 contain provisions of SB 186. These statutes need
to be change in response to the Blakely and Apprendi decisions.
Under the law, a person who is found guilty but mentally ill may
not be released from incarceration until the person is
determined not to be a danger to him or herself or the public.
That may mean that the person would not qualify for mandatory
parole, which effectively raises the possible penalty for that
person. Under Blakely and Apprendi, the decision of whether a
person is guilty but mentally ill must be made by the jury or
the court and that finding must be made by proof beyond a
reasonable doubt.
Section 21 is a new provision. It allows a witness in a
competency hearing to testify by contemporaneous two-way video
teleconference if the court finds that the witness would have to
travel to the hearing by air and that the procedure is fair to
the parties. Although the confrontation clause generally applies
to trial procedures, DOL believes the competency hearing is
enough different that it is justifiable. Competency is decided
by a judge, the burden of proof is by a preponderance of the
evidence, and the burden is placed on the party that raises the
issue. That is generally the defendant.
2:31:06 PM
CHAIR FRENCH asked if this had been tried in Alaska.
MS. CARPENETI said no; it is new law that will likely be
challenged. However, DOL believes it is on solid ground under
the circumstances of competency hearings held in rural areas.
Section 22 changes the general rule about preponderance of the
evidence as the burden of proof to reflect the changes since
Blakely and Apprendi.
Sections 23 and 24 add provisions to ensure that there is mutual
agreement about changing the terms of an Alaska Rules of
Criminal Procedure Rule 11 agreement after it has been imposed.
If a defendant, as part of a Rule 11 plea agreement, agrees to a
particular period of probation, the court may not reduce the
period of probation without the consent of the prosecution.
[This effectively overrules the decision in State v. Henry, 240
P. 3d 846.] The court still has to apply the Chaney criteria in
deciding how much suspended time to impose for the violation of
probation, but unless the parties agree, the court cannot reduce
the period of probation that was agreed upon for sentencing.
2:33:14 PM
CHAIR FRENCH mentioned the recent U.S. Supreme Court decision
that had to do with the assistance of counsel in plea
agreements. He did not recall that it touched on changing terms
of a plea agreement.
MS. CARPENETI responded that this would reverse the decision in
State v. Henry, which allowed the judge in a negotiated plea to
reduce the term of probation. She said it is DOL's position that
the parties should abide by the terms of a plea bargain and one
party should not be able to make a unilateral reduction in the
terms.
Section 25 is a conforming amendment to reflect the Blakely and
Apprendi decisions. It amends the sentencing law for murder in
the first degree to change the burden of proof that the
defendant subjected the victim to substantial physical torture
or that the defendant was a peace officer who used their
authority to facilitate the murder. Current statute provides for
a clear and convincing burden on the prosecution and now the
state must prove these factors beyond a reasonable doubt.
Section 26 clarifies that if a sentence is imposed that would
preclude the defendant from receiving good time, the jury must
determine the factual issue. For example, if a person has been
convicted of first-degree murder of a peace officer, the jury
must determine the factual issue that the victim was a peace
officer beyond a reasonable doubt. In addition, if a court is
sentencing a person who is subject to a presumptive range and
the prosecution seeks to increase the range by proof of certain
aggravating factors, the jury must determine the factual issue
by proof beyond a reasonable doubt. She confirmed that this also
comes from the Blakely and Apprendi decisions.
Section 27 adds new subsections to AS 12.55.155. Subsection (i)
deals with the aggravating factor under AS 12.55.155(c)(10) that
the defendant's conduct was the most serious in the definition
of that offense. In that circumstance, the court may raise the
sentence above the sentencing range for that class of offense.
The facts of the offense that might justify the finding have to
be found by the jury beyond a reasonable doubt. Then the legal
conclusion that that conduct is the most serious in the range of
that offense ought to be decided by the judge.
Subsection (j) says that once a factor in aggravation has been
found according to law, the court is allowed to sentence the
person up to the maximum term of imprisonment. If it is a prior
offense, the finding can be made by the judge. Additional
factors in aggravation do not need to be determined by the jury,
but can be found as mitigating factors by the trial judge by
clear and convincing evidence.
CHAIR FRENCH summarized that it is necessary to prove at least
one aggravator to the jury beyond a reasonable doubt. Additional
aggravators fall under the clear and convincing standard.
MS. CARPENETI clarified that, in this particular case, the first
aggravator may not have to be found by the jury, because one of
the aggravating factors is five or more prior offenses. The
courts have found that those have already been found by a jury
beyond a reasonable doubt.
2:38:54 PM
SENATOR COGHILL asked where Blakely applies.
MS. CARPENETI explained that the Blakely and Apprendi decisions
say that if a fact could raise the maximum penalty for a crime,
the fact finder must make that determination beyond a reasonable
doubt. If a prior conviction has already been found by a jury
beyond a reasonable doubt, it is not necessary to go to the jury
again to make a subsequent finding.
SENATOR COGHILL asked if the Blakely and Apprendi decisions
allow the judge to apply aggravators.
MS. CARPENETI said yes; the jury has already made the
determination or the court has already found another aggravating
factor.
Sections 28 and 29 are conforming to the provisions in Sections
23 and 24 that say the court cannot change the terms of a
negotiated plea without the consent of all parties.
Section 30 adds a rule to the Alaska Rules of Criminal Procedure
to address the use of testimony by contemporaneous two-way video
conference in a trial. It is much more limited than the
procedure in the bill for competency hearings, because of the
Sixth Amendment right to confront and cross examine witnesses.
This rule follows the guidelines in Maryland v. Craig, which
approved remote testimony of a child. The requirements are that
important public policy must support the use of the remote
testimony, the witness is unavailable, and the testimony is
subject to cross examination and given under oath. This has been
upheld by the U.S. Supreme Court and the Second Circuit Court of
Appeals.
2:42:06 PM
CHAIR FRENCH highlighted Justice Scalia's extremely powerful
dissent and suggested members read that before taking final
action on that aspect of the bill.
MS. CARPENETI pointed out that Alaska's procedure for children,
AS 12.45.046, is similar to the procedure that Maryland v. Craig
upheld. The Alaska Court of Appeals has also upheld the
procedure.
2:43:22 PM
SENATOR PASKVAN referenced the phrase "as if the witness were
sitting in the courtroom's witness stand." on page 13, line 30.
He asked if that requires the camera literally to be there.
MS. CARPENETI replied the camera has to be where the witness is.
To make this as close to face-to-face as possible, the witness
has to be able to see everybody in the courtroom and everybody,
including the public, has to be able to see the witness. This is
not a child proceeding and will probably be used infrequently.
SENATOR PASKVAN read line 29 and commented that multiple screens
may be needed.
MS. CARPENETI said it is a good point and she may offer a
suggestion.
SENATOR PASKVAN stressed the importance of "getting it right"
since it is part of the confrontation clause.
CHAIR FRENCH confirmed that the cases are clear that it is more
than just the verbal testimony of a witness. It is the witness's
coloring, perspiring, body language and other visual "tells."
2:47:39 PM
MS. CARPENETI said Section 31 notices there is an indirect court
rule amendment in Section 26.
Sections 32-34 include applicability provisions, conditional
effect of the court rule change, and the effective date of July
1, 2012.
SENATOR PASKVAN referred to Section 30 and asked how defense
counsel could submit a document to a remote witness without
tipping their hand ahead of time.
MS. CARPENETI said she suspects that the video technician would
hand it to the witness at the appropriate time.
SENATOR PASKVAN commented on the potentially confidential nature
of these documents.
MS. CARPENETI pointed out that the bill provides that the trial
court will establish procedures for taking the testimony. She
acknowledged that the court would have to consider how to do
this fairly and efficiently.
2:51:56 PM
CHAIR FRENCH noted that Mafia boss Vincent "The Chin" Gigante
challenged the judge for allowing two-way video testimony in his
trial. The judge ordered it based on his inherent power under
federal Criminal Rule 2 and 57(b). He asked if Alaska has
similar rules of evidence.
MS. CARPENETI said there are parallels in Alaska law and the
court could arguably do it now in its inherent power. However,
DOL believes it would be better to have a rule that follows what
the U.S. Supreme Court set out.
CHAIR FRENCH asked how she would address the slippery slope
argument that allowing remote testimony in one trial will make
it more difficult to disallow others.
MS. CARPENETI said the witness has to be unavailable as defined
under the civil and criminal court rules. The standard is clear
and convincing evidence and the circumstances are limited. She
reiterated her expectation that this would not be broadly used.
CHAIR FRENCH said he would like to hear from the Court System on
this point to understand the implied financial obligation.
2:54:37 PM
NANCY MEADE, General Counsel, Alaska Court System, stated that
the court submitted a zero fiscal note with the understanding
that the bill would not impose a requirement to install any
video conferencing system. However, the court generally would
like to move toward more video conferencing. She stated that the
court does not have an opinion on video conferencing permitted
under the bill but it does have some capacity for video
conferences. She did not know if the court has the specific
ability to allow the witness to see three different places at
once as this rule would call for, but it is conceivable that
some courts will have good high quality video equipment in the
future. It may be available in some locations already.
CHAIR FRENCH asked if her position is that it would be the
obligation of the state to provide the equipment.
2:56:23 PM
MS. MEADE said she had not given it complete thought but the
court is working to increase video capabilities.
CHAIR FRENCH asked the number of superior courtrooms in the
state.
MS. MEADE replied there are about 45 court locations, and she
would follow up on the specific number of courtrooms.
2:57:44 PM
[CHAIR FRENCH held SB 218 in committee.]
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