Legislature(1993 - 1994)

02/22/1993 01:40 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  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.                                              

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