Legislature(1993 - 1994)
02/22/1993 01:40 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATOR TAYLOR returned SB 19 (CRIME OF CONSPIRACY) to committee for additional testimony. He noted RAY BROWN was waiting on teleconference in Anchorage. SENATOR HALFORD returned to a previous objection from SENATOR DONLEY dealing with a law enforcement officer being part of the conspiracy, and he referred to the version in the House which also excluded action from anyone in cooperation with the police. He said the House bill had an affirmative defense, and he read the applicable paragraph. He also said he would like to hear from someone in Public Safety as to why the law enforcement officials shouldn't be excluded, as raised by SENATOR DONLEY. Number 148 SENATOR TAYLOR invited RAY BROWN in Anchorage to testify. MR. BROWN referred to questions raised by SENATOR DONLEY about the second person being a police officer, and having a provision in statute to specifically prohibit it. He also referred to questions from senators about the propriety of having a police officer being the second person in the conspiracy, and he pointed out the problem of having a police officer as the second person in a conspiracy, was entrapment. MR, BROWN explained entrapment on the federal level was decided by a jury, but he said entrapment was a mixed bag of fact and law, and initially determined by the court. He described how an officer in Alaska could be in grave danger, and he pointed to components in existing statutes in Title 11. MR. BROWN said all of the examples given at the last meeting on SB 19 are addressed in existing statutes, thus, there would be no fear of over-reaching by law enforcement personnel. He claimed the outlying areas did not have the control or quality of training, and the existing statutes would cover all of the participants the conspiracy bill would reach. Number 225 MR. BROWN said the bill would treat all players in a conspiracy act identical, even the peripheral participants, by nature of being near the conspiracy. He claimed it would allow tremendous prosecutorial over-reaching, and he described what he called the reality of the number of cases. He continued to give his opinions on fiscal implications, jurisdictions, attorneys for indigent defendants, multi- defendant conspiracy trials, rural trials, and the Sixth Amendment. SENATOR DONLEY asked MR. BROWN for his definition of "overt Act," and MR. BROWN explained why he thought it would be difficult, but he thought there should be an attempt to do so. Number 285 SENATOR DONLEY read his definition, and MR. BROWN thought his definition was better than leaving it undefined, and would address some of the concerns. They also discussed a definition for "conspiracy," and MR. BROWN expanded into the problems with escalating the conspiracy. He thought the bill should be more clearly defined to prevent this. SENATOR TAYLOR called on MR. GUANELI to testify again. SENATOR HALFORD asked for some clarification if the only other person involved was a policeman, and he read a section from a previous conspiracy bill relating to the involvement of police personnel in the conspiracy. He wanted to know how the section from the House version would apply to the legislation at hand. Number 368 MR. GUANELI agreed with SENATOR HALFORD'S concerns about the police involvement, and explained the use of investigators to gain evidence. He thought it would undermine the case to prohibit the state from using the police officers to provide evidence of conspiracy, and he described the possible use of an undercover police officer to infiltrate the conspiracy. MR. GUANELI explained what evidence would be left for the jury to make a decision, and he also explained how difficult it might be for the prosecution without the assistance of the undercover officers. SENATOR HALFORD asked about the Governor's bill, and MR. GUANELI discussed the related provisions in the bills. He said there was no prohibition in the Governor's bill to having a police officer as part of the conspiracy; therefore, it would be allowed. SENATOR DONLEY asked about the prevention of solicitation, and MR. GUANELI reviewed present legislation which might cover the problem. SENATOR TAYLOR led a discussion with the committee members and MR. GUANELI on organized crime rings, solicitation statutes, entrapment, complex issues of fact, interpretation of federal rules, and case law. Number 471 SENATOR HALFORD decided not to move the bill until he learned more about the Governor's bill. SENATOR DONLEY offered three amendments, the first being to define "overt act," from the House Bill 343 from 1992, 'In this section, "overt act in furtherance of the conspiracy' means an act of such character that it manifests a purpose on the part of the actor that the object of conspiracy be completed." He suggested it would be inserted on page 1, line 8, following the word "conspiracy," to CSSB 56, 8- LSO246\A, and explained reasons for his amendment. There was some discussion among committee members and MR. GUANELI, before SENATOR TAYLOR moved Amendment #1. Without objections, so ordered. Number 506 SENATOR DONLEY proposed a second amendment which would address communications on page 1, line 7, after the word "activity," to insert "and communicate that agreement." SENATOR HALFORD expressed his concerns about the burden of proof. They discussed the proposed amendment at some length in terms of a specific offense, agreement to the conspiracy, and proving intent. SENATOR DONLEY moved to change the amendment to add to the amendment, "... by words or other conduct." SENATOR HALFORD had concerns that in a multifaceted conspiracy, the defense would argue that unless everyone knew every detail, the conspiracy wasn't complete. MR. GUANELI explained why he didn't think it would be a problem. SENATOR DONLEY agreed, and still thought an affirmative act of communication was necessary. Number 570 SENATOR HALFORD was not convinced ... TAPE 93-16, SIDE B Number 001 ... there should be an addition, since it might be another standard that had to be proved. SENATOR TAYLOR suggested an example that might be applicable to the standard. SENATOR DONLEY added his part to the example to defend his amendment. There was a general discussion on the amendment as it related to the conspiracy example. SENATOR TAYLOR repeated SENATOR DONLEY'S amendment and asked if there was objection to the amendment. SENATOR HALFORD objected and the amendment failed. Number 047 SENATOR DONLEY moved to add on page 3, a new subsection on line 4, "(h) In a prosecution under this Section, it is an affirmative defense that in order to obtain the evidence of the commission of a conspiracy, a public law enforcement official, or a person working in cooperation with the official, agreed with the defendant to engage in and cause the performance of the offense, and the defendant and the law enforcement official, or person working in cooperation with the official, are the only persons who conspired to commit the offense." SENATOR HALFORD said he wasn't going to support the amendment, but suggested a better place on page 2, between (d) and (e), and he explained his reasons. SENATOR DONLEY asked to have the amendment replaced on page 2, line 16, with a new subsection following (d). SENATOR TAYLOR asked for objection on the amendment, and SENATOR HALFORD objected. Motion failed on a 3 - 2 vote. Number 089 SENATOR DONLEY asked to retry the motion using just the law enforcement officials, and SENATOR TAYLOR clarified the amendment. SENATOR HALFORD still objected to the amendment, and the amendment failed on a 3 - 2 vote. SENATOR HALFORD moved to pass CS FOR SENATE BILL NO. 19(JUD) as amended from committee with individual recommendations. Without objections, so ordered.