Legislature(1993 - 1994)

02/19/1993 01:41 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
  SENATOR TAYLOR brought  SB 19  (CRIME OF CONSPIRACY)  before                 
  the  committee,  and  invited  the  prime  sponsor,  SENATOR                 
  HALFORD, to review the bill.                                                 
  SENATOR   HALFORD  explained   the  bill,  which   was  also                 
  introduced  last year, would make the  crime of conspiracy a                 
  separate crime, and would drop the crime classification down                 
  one from the actual crime resulting from the conspiracy.  He                 
  said it was a law enforcement tool, available on the federal                 
  level and in nearly every other state in the union.                          
  SENATOR DONLEY supported the concept  of the legislation and                 
  had sponsored similar  legislation in the past.   He praised                 
  the work done on  the concept in House Judiciary  last year,                 
  in refining to more closely parallel some of  the provisions                 
  of the Uniform Act.                                                          
  SENATOR DONLEY  also gave credit  to DEAN GUANELI,  from the                 
  Criminal Division of  the Department  of Law, for  providing                 
  him comfort for the concept of  conspiracy, one of which was                 
  to add a provision making it was an affirmative defense if a                 
  law   enforcement  official  was   the  only  other  person.                 
  Otherwise,  he  said,  you  have  the potential  for  police                 
  officers creating  the conspiracy, by  offering to  conspire                 
  with the perpetrator.                                                        
  Number 097                                                                   
  SENATOR DONLEY noted some additional provisions dealing with                 
  the issue of  conspiracies creating multiple crimes,  and he                 
  explained the  language in the previous bill that solved the                 
  problem.   Another  change, he  said, was  to better  define                 
  "overt act," and he gave an example of the definition.                       
  Additionally, SENATOR DONLEY  worked on the duration  of the                 
  conspiracy, and how it is terminated.  He discussed language                 
  that had been  developed previously,  and noted the  wording                 
  had been expanded since last year.                                           
  SENATOR  DONLEY  concluded by  describing  testimony  on how                 
  people could withdraw  from a  conspiracy.  They  originally                 
  agreed  to a conspiracy, and how do  they make it clear they                 
  don't want to have anything to do with it.  Are they pulling                 
  out  before the crime actually occurs, before the overt act?                 
  SENATOR  DONLEY  explained  they  had  added  a  section  on                 
  governing limitation actions, and  adding some criteria  for                 
  abandoning  the  conspiracy  agreement.   He  said  it would                 
  encourage  people  to   come  forward  to  warn   society  a                 
  conspiracy   is  taking   place   and  to   terminate  their                 
  SENATOR HALFORD directed the drafter, JERRY LUCKHAUPT, to go                 
  through the bill.                                                            
  Number 187                                                                   
  MR.  LUCKHAUPT   reviewed  the  bill  section   by  section,                 
  beginning  with  Section 1,  Subsection  (a), which  defines                 
  "conspiracy" and "overt act."  Subsection (b) explains guilt                 
  by  association,  and he  gave  an  example  to clarify  the                 
  situation of multiple offenders.                                             
  MR.  LUCKHAUPT  explained  Subsection (c)  outlines  various                 
  situations  which  are   not  offenses   to  the  crime   of                 
  conspiracy.  He said Subsection  (d) provided an affirmative                 
  offense  to the  crime  of conspiracy  when  dealing with  a                 
  person  for  whose  conduct  the  defendant is  not  legally                 
  accountable under AS 11.16.120(b).                                           
  MR.  LUCKHAUPT said  (e)  provides the  withdrawal discussed                 
  previously  by SENATOR  DONLEY, affirmative  defenses for  a                 
  person  withdrawing  from the  offense,  and sets  forth the                 
  process of withdrawing from the crime.  Subsection (f) lists                 
  the penalty provisions depending on the level of crime being                 
  conspired, and stepping down one  felony classification.  He                 
  gave an  example to  provide definition  to "serious  felony                 
  offense" in Subsection (g).                                                  
  Number 260                                                                   
  MR. LUCKHAUPT  summarized  Sections 2,  3,  and 4  as  being                 
  technical  amendments  to  recognize   conspiracy  as  being                 
  similar to solicitation and attempts to commit offenses.  He                 
  said Section 5  is basically  a technical amendment  setting                 
  forth the penalty for conspiracy.                                            
  SENATOR  LITTLE clarified there was no provision in the bill                 
  for a police officer  being the second person involved  in a                 
  two person conspiracy.   MR. LUCKHAUPT said he did  not hear                 
  the explanation by  SENATOR DONLEY,  and suggested that  MR.                 
  GUANELI could give a better answer.                                          
  SENATOR DONLEY asked  if the points he  raised were resolved                 
  in case  law.   MR. GUANELI  said there  was no  prohibition                 
  against  the  second person in  a conspiracy being a  police                 
  officer.  He  explained he was  not familiar with the  House                 
  Judiciary version of  the previous  conspiracy bill, but  he                 
  shared his  opinion  about  peace officers being  the second                 
  person in a conspiracy.                                                      
  MR.  GUANELI outlined  cases that would  be assisted  by the                 
  conspiracy  law: murder, kidnapping,  arson, and drug cases.                 
  He explained that some  cases such as sexual abuse  and rape                 
  are rarely subject to conspiracy prosecution.  He thought it                 
  would be rare in drug offenses to have a police officer be a                 
  party  to a conspiracy,  because it would  be stopped before                 
  the sale or  transfer.   With respect to  murder cases,  the                 
  police might  want to  stop that  offense before  an attempt                 
  takes place, and he gave a plausible example.                                
  Number 356                                                                   
  SENATOR  HALFORD continued with MR. GUANELI'S example, which                 
  he  claimed  would not  work.   They  worked on  a different                 
  SENATOR DONLEY  explained the  provision was  to address  an                 
  overt  act  being  committed  by the  police  officer.   MR.                 
  GUANELI thought that  fewer problems are probably  caused by                 
  officers  committing  overt acts  than  would be  created by                 
  eliminating police officers as second person candidates in a                 
  SENATOR DONLEY expressed concerns at the entrapment when the                 
  officer is the  co-conspirator, and MR. GUANELI  agreed, but                 
  said  that  law wouldn't  be  changed  with that  bill.   He                 
  claimed the state would still have the burden of proving the                 
  entrapment did  not occur.   SENATOR  HALFORD expressed  his                 
  concerns with their example and entrapment.                                  
  Number 397                                                                   
  SENATOR DONLEY was still troubled with having a third party,                 
  who  was not  an active  conspirator, and  he explained  his                 
  concerns about the theory of conspiracy, the intent, and the                 
  act.  He debated  the true co-conspirator as opposed  to the                 
  person who is doing the intent but not the act.                              
  Number 407                                                                   
  MR. GUANELI  said he  viewed the  elements of  the crime  as                 
  written in the bill as the intent,  and the act would be the                 
  agreement between two people.  In addition, he discussed how                 
  the offense would transpire.                                                 
  SENATOR TAYLOR suggested it might  be difficult to establish                 
  before a jury that the  officer was the one doing  the overt                 
  act, and it might be a weak case.                                            
  SENATOR  TAYLOR   led  a  continuing   discussion  with  the                 
  committee and MR. GUANELI of  overt acts, conspiracy, police                 
  officers  as  co-conspirators, possible  abuses, entrapment,                 
  murder, intimidation, enticement, and frustration.                           
  SENATOR HALFORD said he  would like to leave the  problem of                 
  "overt act" open for further  discussion, and SENATOR DONLEY                 
  thought it should  be done in a cautious  manner.  He played                 
  the "devil's advocate" to present the other side.                            
  Number 531                                                                   
  SENATOR TAYLOR invited C.E. SWACKHAMMER, from the Department                 
  of Public Safety, to testify on SB 19.                                       
  MR. SWACKHAMMER spoke for all of Public Safety in support of                 
  the conspiracy bill,  and he noted  a couple of points  that                 
  paralleled general statutes.  He said it would  allow Public                 
  Safety a tool to reach participants  in crimes, they are not                 
  presently able to reach.  He described the example of a case                 
  involving   a  substantial   amount   of   drugs  and   many                 
  participants,  but without  the  conspiracy tool,  they were                 
  unable to pull everyone together.                                            
  MR. SWACKHAMMER explained  the legislation  would assist  in                 
  trials with  multiple defendants,  where the defendants  are                 
  severed and  the jury  never hears  the total  story -  only                 
  SENATOR  DONLEY  agreed with  the  problems outlined  by MR.                 
  SWACKHAMMER, and he noted some  progress in bills from  last                 
  SENATOR TAYLOR announced  SB 19 would be  held in committee.                 
  He noted that DEBORAH GRAVO, and  RAY BROWN in Anchorage had                 
  comments,  and he invited them to try again when the bill is                 

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