Legislature(2011 - 2012)BELTZ 105 (TSBldg)

03/16/2012 01:30 PM JUDICIARY


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01:33:49 PM Start
01:34:15 PM HB80
02:56:57 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 80 SELF DEFENSE TELECONFERENCED
Heard & Held
+= SB 200 EYEWITNESSES AND LINEUPS TELECONFERENCED
Scheduled But Not Heard
Work Session:
+= SB 110 HUMAN TRAFFICKING/SEX OFFENSES TELECONFERENCED
Scheduled But Not Heard
+= SB 186 SENTENCING/PROBATION/MENTALLY ILL TELECONFERENCED
Scheduled But Not Heard
+= SB 210 CRIMES AGAINST CHILDREN TELECONFERENCED
Scheduled But Not Heard
+= SB 212 HUMAN TRAFFICKING TASK FORCE TELECONFERENCED
Scheduled But Not Heard
+= SB 218 SEX CRIMES; TESTIMONY BY VIDEO CONFERENCE TELECONFERENCED
Scheduled But Not Heard
+ Bills Previously Heard/Scheduled TELECONFERENCED
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         March 16, 2012                                                                                         
                           1:33 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Hollis French, Chair                                                                                                    
Senator Bill Wielechowski, Vice Chair                                                                                           
Senator Joe Paskvan                                                                                                             
Senator Lesil McGuire                                                                                                           
Senator John Coghill                                                                                                            
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
HOUSE BILL NO. 80                                                                                                               
"An Act relating to self defense  in any place where a person has                                                               
a right to be."                                                                                                                 
                                                                                                                                
     - HEARD & HELD                                                                                                             
                                                                                                                                
SENATE BILL NO. 200                                                                                                             
"An   Act  establishing   certain  procedures   related  to   the                                                               
identification   of   suspects   by  eyewitnesses   to   criminal                                                               
offenses."                                                                                                                      
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
SENATE BILL NO. 110                                                                                                             
"An  Act   relating  to  human   trafficking;  and   relating  to                                                               
sentencing  and   conditions  of  probation  in   criminal  cases                                                               
involving sex offenses."                                                                                                        
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
SENATE BILL NO. 186                                                                                                             
"An  Act  relating to  persons  found  guilty but  mentally  ill;                                                               
relating to  sentencing procedures for factors  that may increase                                                               
the  presumptive range  or affect  mandatory parole  eligibility;                                                               
relating  to the  granting of  probation; relating  to procedures                                                               
for  finding aggravating  factors  at  sentencing; amending  Rule                                                               
32.1, Alaska  Rules of Criminal  Procedure; and providing  for an                                                               
effective date."                                                                                                                
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
SENATE BILL NO. 210                                                                                                             
"An Act relating  to crimes against children;  establishing a new                                                               
aggravating  factor  at  sentencing  in  certain  crimes  against                                                               
children; relating to criminal nonsupport;  adding to the list of                                                               
crimes against children that bar  the Department of Public Safety                                                               
from issuing to a person a  license to drive a school bus; adding                                                               
an  exception to  a  provision that  requires  the Department  of                                                               
Health and Social Services to  make timely, reasonable efforts to                                                               
provide family support services  to prevent out-of-home placement                                                               
of a child; and providing for an effective date."                                                                               
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
SENATE BILL NO. 212                                                                                                             
"An  Act relating  to crimes  of human  trafficking; establishing                                                               
the Human  Trafficking Task Force to  evaluate services available                                                               
to   victims  of   human  trafficking;   and   relating  to   the                                                               
recommendations and report of the task force."                                                                                  
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
SENATE BILL NO. 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."                                                                                
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB  80                                                                                                                  
SHORT TITLE: SELF DEFENSE                                                                                                       
SPONSOR(s): REPRESENTATIVE(s) NEUMAN, FEIGE, LYNN, COSTELLO                                                                     
                                                                                                                                
01/18/11       (H)       PREFILE RELEASED 1/14/11                                                                               
01/18/11       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/18/11       (H)       JUD, FIN                                                                                               
02/09/11       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/09/11       (H)       Heard & Held                                                                                           
02/09/11       (H)       MINUTE(JUD)                                                                                            
02/11/11       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/11/11       (H)       Moved Out of Committee                                                                                 
02/11/11       (H)       MINUTE(JUD)                                                                                            
02/14/11       (H)       JUD RPT 4DP 1DNP 1NR                                                                                   
02/14/11       (H)       DP: KELLER, THOMPSON, LYNN, GATTO                                                                      
02/14/11       (H)       DNP: HOLMES                                                                                            
02/14/11       (H)       NR: GRUENBERG                                                                                          
03/08/11       (H)       FIN AT 9:00 AM HOUSE FINANCE 519                                                                       
03/08/11       (H)       Heard & Held                                                                                           
03/08/11       (H)       MINUTE(FIN)                                                                                            
03/30/11       (H)       FIN AT 5:00 PM HOUSE FINANCE 519                                                                       
03/30/11       (H)       -- MEETING CANCELED --                                                                                 
04/04/11       (H)       FIN AT 6:00 PM HOUSE FINANCE 519                                                                       
04/04/11       (H)       Moved Out of Committee                                                                                 
04/04/11       (H)       MINUTE(FIN)                                                                                            
04/05/11       (H)       FIN RPT 5DP 3NR                                                                                        
04/05/11       (H)       DP: FAIRCLOUGH, T.WILSON, COSTELLO,                                                                    
                        STOLTZE, THOMAS                                                                                         
04/05/11       (H)       NR: GUTTENBERG, JOULE, DOOGAN                                                                          
04/09/11       (H)       TRANSMITTED TO (S)                                                                                     
04/09/11       (H)       VERSION: HB 80                                                                                         
04/11/11       (S)       READ THE FIRST TIME - REFERRALS                                                                        
04/11/11       (S)       JUD, FIN                                                                                               
03/07/12       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/07/12       (S)       Heard & Held                                                                                           
03/07/12       (S)       MINUTE(JUD)                                                                                            
03/16/12       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
GARY ELLIS, representing himself                                                                                                
Wasilla, AK                                                                                                                     
POSITION STATEMENT: Testified in strong support of HB 80.                                                                     
                                                                                                                                
WILLIAM PINNEY, representing himself                                                                                            
Anchorage, AK                                                                                                                   
POSITION STATEMENT: Testified in strong support of HB 80.                                                                     
                                                                                                                                
BRIAN JUDY, Senior State Liaison                                                                                                
National Rifle Association                                                                                                      
Institute for Legislative Action (NRA-ILA)                                                                                      
Sacramento, CA                                                                                                                  
POSITION STATEMENT: Testified in strong support of HB 80.                                                                     
                                                                                                                                
JAMES FAYETTE, representing himself                                                                                             
Anchorage, AK                                                                                                                   
POSITION STATEMENT: Testified in vigorous opposition to HB 80.                                                                
                                                                                                                                
REPRESENTATIVE MARK NEUMAN                                                                                                      
Alaska State Legislature                                                                                                        
Juneau, AK                                                                                                                      
POSITION STATEMENT: sponsor of HB 80.                                                                                         
                                                                                                                                
REX SHATTUCK, Staff                                                                                                             
Representative Mark Neuman                                                                                                      
Alaska State Legislature                                                                                                        
Juneau, AK                                                                                                                      
POSITION  STATEMENT: Offered  supporting  testimony on  HB 80  on                                                             
behalf of the sponsor.                                                                                                          
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
1:33:49 PM                                                                                                                    
CHAIR  HOLLIS   FRENCH  called  the  Senate   Judiciary  Standing                                                             
Committee meeting  to order at 1:33  p.m. Present at the  call to                                                               
order  were Senators  Wielechowski, Paskvan,  Coghill, and  Chair                                                               
French. Senator McGuire arrives soon thereafter.                                                                                
                                                                                                                                
                      HB  80-SELF DEFENSE                                                                                   
                                                                                                                                
1:34:15 PM                                                                                                                    
CHAIR  FRENCH  announced the  consideration  of  HB 80,  "An  Act                                                               
relating to self defense in any  place where a person has a right                                                               
to be." He noted  that there was a great deal  of interest in the                                                               
bill and that the committee  was committed to honoring the public                                                               
process.                                                                                                                        
                                                                                                                                
1:35:23 PM                                                                                                                    
GARY   ELLIS,  representing   himself,   Wasilla,  AK,   strongly                                                               
encouraged  the committee  to support  HB  80. He  stated that  a                                                               
person who  is in a life  and death situation should  not have to                                                               
decide  if he/she  could potentially  face charges  for defending                                                               
him or  herself. The bill  addresses that problem  by essentially                                                               
doing away  with the duty to  retreat. He noted that  a number of                                                               
other  states have  passed similar  legislation  and haven't  had                                                               
problems.                                                                                                                       
                                                                                                                                
SENATOR MCGUIRE joined the committee.                                                                                           
                                                                                                                                
1:36:57 PM                                                                                                                    
WILLIAM  PINNEY, representing  himself,  Anchorage, AK,  strongly                                                               
encouraged the  committee to support HB  80. He said the  bill is                                                               
an  important  tool  so  that   average  individuals  can  defend                                                               
themselves against  those who have  no respect for  other people.                                                               
Without  such  legislation,  an individual  who  feels  he  can't                                                               
retreat  can easily  have  his life  destroyed  by a  prosecuting                                                               
attorney.  He cited  the  Rodney Lewis  in  Iowa as  particularly                                                               
egregious,    and   concluded    that   individuals    have   the                                                               
responsibility  to protect  themselves because  the U.S.  Supreme                                                               
Court ruled that it is not the responsibility of the police.                                                                    
                                                                                                                                
CHAIR  FRENCH thanked  him for  bringing  the Lewis  case to  the                                                               
committee's  attention, because  he  was looking  for a  specific                                                               
instance where a bill like HB  80 would have made a difference in                                                               
the outcome of a criminal case.                                                                                                 
                                                                                                                                
1:41:19 PM                                                                                                                    
BRIAN JUDY,  Senior State Liaison,  National Rifle  Association -                                                               
Institute  for  Legislative  Action  (NRA-ILA),  Sacramento,  CA,                                                               
testifying in support  of HB 80, characterized  the proposed bill                                                               
as important self-defense legislation.  It provides that a person                                                               
who is  justified in using  deadly force  in self defense  has no                                                               
duty to retreat  if the person is  in any place the  person has a                                                               
legal right to be. NRA  members believe that a potential victim's                                                               
life is  just as worthy  of defense if they  are in a  place they                                                               
have a legal right to be as if  they were at home, at work, or on                                                               
their property.                                                                                                                 
                                                                                                                                
When  an  individual  uses  deadly force  in  self  defense,  the                                                               
primary consideration  is justification. Alaska  statutes provide                                                               
that the use of deadly force  in self defense is justified when a                                                               
person  reasonably believes  that he/she  or a  person he/she  is                                                               
protecting  is  in danger  of  being  killed, sustaining  serious                                                               
bodily  injury,   being  a  victim   of  sexual   assault,  being                                                               
kidnapped,  or being  robbed. Both  the subjective  and objective                                                               
standard  must be  satisfied. The  person  must actually  believe                                                               
that deadly force is necessary  to protect him or herself against                                                               
an imminent serious  threat, and that belief  must be reasonable.                                                               
Deadly  force is  specifically  not justified  if  the person  is                                                               
engaged  in  mutual  combat,  is   provoking  another  person  to                                                               
violence, is the  initial aggressor, or involved  in felonious or                                                               
gang activity. Removing  the additional question as  to whether a                                                               
person  can  retreat with  complete  safety  makes for  one  less                                                               
consideration in  the split second life  or death decision-making                                                               
process. This  does not change the  fact that the person  must be                                                               
justified and have a  legal right to be in a  place where the act                                                               
of self  defense occurs.  In conclusion  he opined  that removing                                                               
the retreat provision shifts some  of the risk calculation to the                                                               
aggressor.                                                                                                                      
                                                                                                                                
CHAIR FRENCH closed  public testimony and stated  that he invited                                                               
Mr. Fayette to testify because of his experience in this area.                                                                  
                                                                                                                                
1:46:58 PM                                                                                                                    
JAMES FAYETTE,  representing himself, Anchorage, AK,  said he was                                                               
taking  personal leave  from  his job  as  an assistant  district                                                               
attorney  to   testify  against   the  bill.  He   described  his                                                               
education, work  experience, and  qualifications to speak  on the                                                               
topic. He said he did not  presume to represent the department or                                                               
the administration,  but he found  no support for the  bill among                                                               
his prosecution colleagues. The bill  is a bad and dangerous idea                                                               
because of  its unintended and serious  consequences. The problem                                                               
is that violent criminals will  take advantage of the legislation                                                               
by claiming self defense. He said  he would give four examples of                                                               
cases  where this  bill would  have made  a tragic  difference in                                                               
trial outcomes.                                                                                                                 
                                                                                                                                
CHAIR  FRENCH  said  it's a  widespread  concern  of  law-abiding                                                               
citizens that  they will be  unnecessarily prosecuted  for having                                                               
used deadly force to defend  themselves. The example he used last                                                               
week was a woman  taking groceries to her car who  is beset by an                                                               
aggressor. He said his sense is  that DAs can tell the difference                                                               
between  the  good   guy  and  the  bad  guy  in   this  sort  of                                                               
circumstance. She's not  going to be prosecuted  for using deadly                                                               
force to  defend herself and  neither will someone  who witnesses                                                               
the encounter and uses deadly force to stop an armed aggressor.                                                                 
                                                                                                                                
MR.  FAYETTE said  he wasn't  familiar with  the Lewis  case, but                                                               
none  of the  people who  testified during  the previous  hearing                                                               
indicated  they were  responding to  a specific  case. They  just                                                               
generally  and philosophically  thought  that  people should  not                                                               
have a duty to retreat. He opined  that the bill is trying to fix                                                               
a problem  that does not  exist, because existing law  protects a                                                               
citizen's right to defend him or herself.                                                                                       
                                                                                                                                
MR. FAYETTE added that the  2006 amendment clarified that someone                                                               
defending his/her  children does not  have a duty to  retreat. He                                                               
said the perception from Mr.  Judy's comments is that someone has                                                               
to go  to court  and prove  they acted in  self defense,  but the                                                               
burden  is  actually   on  the  prosecutor  to   prove  beyond  a                                                               
reasonable  doubt  and to  the  unanimous  satisfaction of  trial                                                               
jurors  that the  person  did  not act  in  self defense.  That's                                                               
notoriously difficult to do.                                                                                                    
                                                                                                                                
1:56:11 PM                                                                                                                    
MR.  FAYETTE  said the  basic  rule  of  self  defense is  in  AS                                                               
11.81.330. Subsection  (a) says "A  person is justified  in using                                                               
nondeadly force  upon another when  and to the extent  the person                                                               
reasonably  believes it  is  necessary  for self-defense  against                                                               
what the  person reasonably  believes to be  the use  of unlawful                                                               
force by the other person,"  and paragraphs (1)-(3) say that self                                                               
defense is  not justified  when the person  is engaged  in mutual                                                               
combat,  is  provoking another  person  to  violence, or  is  the                                                               
initial  aggressor.   In  2004  the  Legislature   added  to  the                                                               
exceptions saying that self defense  is not justified if a person                                                               
is retaliating or  in revenge for gang conduct,  is a participant                                                               
in a felony drug transaction, or  is engaged in the commission of                                                               
a felony.                                                                                                                       
                                                                                                                                
AS  11.81.335  has  the  special  rules  for  when  a  person  is                                                               
justified in  using deadly force  in defense of  self. Subsection                                                               
(a)  says a  person is  justified in  using deadly  force if  the                                                               
person  reasonably  believes it  is  necessary  for self  defense                                                               
against  death,  serious  physical  injury,  sexual  assault,  or                                                               
robbery. Subsection  (b) says a  person may not use  deadly force                                                               
if  the person  knows  that, with  complete  personal safety  and                                                               
safety  as to  others being  defended, the  person can  avoid the                                                               
necessity of  using deadly  force by  leaving the  area. It  is a                                                               
fairly  high burden  and it's  the prosecutor  that has  to prove                                                               
that the  person could not  retreat. There are exceptions  to the                                                               
duty to retreat.                                                                                                                
                                                                                                                                
There is  no duty to  retreat if the  person is on  premises that                                                               
the person  owns or  leases, where  the person  resides, or  is a                                                               
guest or agent of the owner  or resident. A police officer acting                                                               
within  the scope  of the  officer's  employment has  no duty  to                                                               
retreat. There is no duty to  retreat if the person is at his/her                                                               
workplace or if the person is protecting a child.                                                                               
                                                                                                                                
HB 80 seeks to add another  exception that says a person does not                                                               
have to retreat if he/she is in  a place where he/she has a right                                                               
to lawfully  be. This would  basically do  away with the  duty to                                                               
retreat except  in trespass situations.  He opined that  this was                                                               
over broad and problematic. Gang  members who shoot at other gang                                                               
members  on a  public street  are in  a place  where they  have a                                                               
right to  be. In road rage  situations when someone pulls  a gun,                                                               
the people are on a highway and  are in a place they have a legal                                                               
right to be.                                                                                                                    
                                                                                                                                
2:01:57 PM                                                                                                                    
SENATOR COGHILL asked if the  exceptions in AS 11.81.330 wouldn't                                                               
rule in this case.                                                                                                              
                                                                                                                                
MR. FAYETTE confirmed  that the first test for the  use of deadly                                                               
force  is  that  all  the  conditions in  AS  11.81.330  must  be                                                               
satisfied. In other words, a  person who is the initial aggressor                                                               
can't  use  deadly  force  because   they're  boxed  out  by  [AS                                                               
11.81.330(a)(3)].                                                                                                               
                                                                                                                                
SENATOR  COGHILL asked  if gang  member activity  falls into  the                                                               
categories  of mutual  combat,  initial  aggressor, or  felonious                                                               
activity.                                                                                                                       
                                                                                                                                
MR. FAYETTE  said yes, but  it's disputed. The prosecutor  has to                                                               
disprove  the propositions  and  a skilled  defense attorney  can                                                               
easily characterize the situation as ambiguous.                                                                                 
                                                                                                                                
2:04:34 PM                                                                                                                    
SENATOR  WIELECHOWSKI   summarized  that   AK  11.81.330(a)(4)(C)                                                               
blocks a claim of self defense by gang members.                                                                                 
                                                                                                                                
MR.  FAYETTE said  that's  correct  if the  jury  decides it  was                                                               
retaliation for gang conduct or a drug transaction.                                                                             
                                                                                                                                
SENATOR  WIELECHOWSKI  asked if  road  rage  would be  considered                                                               
mutual combat.                                                                                                                  
                                                                                                                                
MR. FAYETTE replied it would be disputed in court.                                                                              
                                                                                                                                
CHAIR FRENCH  said a bar fight  is the classic example  of mutual                                                               
combat, and no one can  claim self defense. He questioned whether                                                               
it was  mutual combat when two  drivers flip each other  off at a                                                               
stoplight.                                                                                                                      
                                                                                                                                
MR. FAYETTE  responded that  whether or not  it is  mutual combat                                                               
will be  disputed in every  case that  goes to trial.  The burden                                                               
will be on the prosecutor to  prove that it was mutual combat and                                                               
the jury will be told repeatedly  to resolve any ambiguity in the                                                               
defendant's favor.                                                                                                              
                                                                                                                                
2:06:23 PM                                                                                                                    
SENATOR MCGUIRE recalled  the case of a minister  [from Big Lake]                                                               
who  was prosecuted  for shooting  a man  in the  back as  he was                                                               
fleeing after  breaking into  the church. The  jury found  in the                                                               
minister's favor, but it brought up  a number of issues since the                                                               
criminal  was  retreating.  She  asked  him  to  comment  on  the                                                               
outcome, why  there was a  decision to  prosecute, and how  HB 80                                                               
would enter into that fact pattern.                                                                                             
                                                                                                                                
MR. FAYETTE  said he  wasn't directly involved  in the  case, but                                                               
the important point  is that the minister was  acquitted after he                                                               
[shot and  killed one man and  shot another in the  back] as they                                                               
ran from an unoccupied building.                                                                                                
                                                                                                                                
2:12:09 PM                                                                                                                    
MR. FAYETTE  described four  cases where  a bill  like HB  80 may                                                               
have made  a difference  in the  outcome of  a criminal  case. He                                                               
displayed a  video clip that  showed off-duty Army  Sergeant Evan                                                               
Minnear, a military  policeman, being shot by  Mr. Vongthongdy, a                                                               
felon who  was drunk  at the time.  Mr. Vongthongdy  claimed self                                                               
defense  at trial.  The judge  ultimately ruled  that he  was not                                                               
entitled to a  self defense claim, but part  of the prosecution's                                                               
argument  was  the  duty  to retreat.  Mr.  Vongthongdy  had  the                                                               
opportunity to walk away from Sergeant  Minnear but he did not do                                                               
so. The  incident occurred  on the  street outside  a bar  so Mr.                                                               
Vongthongdy had a legal right to be  there. Had HB 80 been law it                                                               
would have been much more  difficult for the prosecution, and Mr.                                                               
Vongthongdy may have been acquitted.                                                                                            
                                                                                                                                
2:19:06 PM                                                                                                                    
MR.  FAYETTE  next  displayed  a video  clip  of  a  gang-related                                                               
shooting. Mr. Tautua,  a Bloods member, was standing  in front of                                                               
Rumrunners Bar in  Anchorage at 1:00 a.m. He was  flagging red as                                                               
Crips members cruised  by. In a face-off a Crip  punched a Blood,                                                               
and Mr. Tautua emptied a five-shot  revolver at the Crips. One of                                                               
those shots hit  an innocent woman in the  collarbone. Mr. Tautua                                                               
was arrested  and argued self  defense at trial.  The prosecution                                                               
argued that  the self  defense claim failed  because it  was gang                                                               
conduct, he provoked the incident by  flagging, and he had a duty                                                               
to retreat. If  HB 80 had been  law, Mr. Tautua would  have had a                                                               
better claim of self defense.                                                                                                   
                                                                                                                                
2:26:36 PM                                                                                                                    
CHAIR  FRENCH highlighted  that it's  a  lawful death  if a  shot                                                               
fired in self defense hits and kills an innocent bystander.                                                                     
                                                                                                                                
MR. FAYETTE agreed that transferred  intent counts. If Mr. Tautua                                                               
had a  valid claim of  self defense and  was not reckless  in the                                                               
care  of a  third party  the self  defense claim  would transfer.                                                               
That  was litigated  in the  Tautua case  and the  jury concluded                                                               
that he  was reckless because  he was  trying to shoot  rivals in                                                               
the back as they were fleeing.                                                                                                  
                                                                                                                                
2:27:44 PM                                                                                                                    
MR. FAYETTE described a stabbing/murder  case from Ketchikan. Mr.                                                               
Rossiter  was  searching  through  a car  that  belonged  to  Mr.                                                               
Stachelrodt's  parents. When  Mr. Stachelrodt  tried to  pull Mr.                                                               
Rossiter out of the car,  Mr. Rossiter stabbed Mr. Stachelrodt to                                                               
death.  The jury  wrestled  with  the case  for  two days  before                                                               
convicting  him of  second degree  murder. Mr.  Rossiter was  not                                                               
committing a  felony, he was  not a gang  member, and he  was not                                                               
the initial aggressor, but he could  have retreated. If HB 80 had                                                               
been law, there  would potentially have been  a different outcome                                                               
at trial.                                                                                                                       
                                                                                                                                
2:29:37 PM                                                                                                                    
MR.  FAYETTE described  a  road-rage/murder  case from  Fairbanks                                                               
that  was  pending  retrial.  Mr.  Bostic  was  alleged  to  have                                                               
instigated a fight following a  road-rage incident and he fatally                                                               
stabbed Mr.  Lund. Road-rage  cases are  illustrative of  duty to                                                               
retreat;  you step  on the  brake  and remove  yourself from  the                                                               
situation, Mr. Fayette said.                                                                                                    
                                                                                                                                
MR. FAYETTE  concluded that HB  80 dangerously  and unnecessarily                                                               
expands the defense  of self defense, which  will benefit violent                                                               
criminals and  do nothing  to enhance  the safety  of law-abiding                                                               
gun  owners. Existing  law protects  life, whereas  this proposal                                                               
devalues it.                                                                                                                    
                                                                                                                                
SENATOR PASKVAN asked what impact  the bill will potentially have                                                               
on set guns.                                                                                                                    
                                                                                                                                
MR.  FAYETTE said  AS 11.81.350(c)(2)  allows the  use of  deadly                                                               
force to  terminate a  burglary in an  occupied dwelling,  but he                                                               
would argue  that there would be  no defense for using  a set gun                                                               
under that statute.  He added that he was unaware  of any set gun                                                               
case being presented to his office in the last 20 years.                                                                        
                                                                                                                                
CHAIR  FRENCH   asked  Representative   Neuman  if  he   had  any                                                               
concluding comments.                                                                                                            
                                                                                                                                
2:35:35 PM                                                                                                                    
REPRESENTATIVE MARK NEUMAN,  sponsor of HB 80,  stated his belief                                                               
that current  statutes do  not adequately  protect the  rights of                                                               
individual Alaskans to  defend themselves. HB 80  does not change                                                               
that a  jury may  hear a  case but  it sends  a clear  message to                                                               
prosecutors  and the  courts that  an individual  has a  right to                                                               
self defense  when he/she is any  place where he/she has  a right                                                               
to  legally be.  He disputed  that the  bill would  increase self                                                               
defense claims  and expressed discomfort  with any  argument that                                                               
associates costs with human life.                                                                                               
                                                                                                                                
He  offered  his belief  that  the  presumption of  innocence  is                                                               
disregarded in many  cases of self defense, and the  burden is on                                                               
the individual to prove his/her  innocence. The minister from Big                                                               
Lake, for example, spent his life  savings to defend his right to                                                               
defend  himself. Referring  to the  cases cited  by the  previous                                                               
testifier, he said  each of the cases  violated the justification                                                               
clauses. In the first case the  shooter was a felon who was drunk                                                               
and in  possession of a  firearm. That's illegal. He  argued that                                                               
the road-rage  case was  a mutual combat  situation, and  did not                                                               
meet  the justification  clauses. Referring  to the  gang-related                                                               
shooting, he opined  that if one of the security  guards had been                                                               
armed he would have had the  duty to retreat instead of trying to                                                               
defend the people that Mr. Tautua shot.                                                                                         
                                                                                                                                
2:42:16 PM                                                                                                                    
CHAIR  FRENCH  clarified  that  the  issue  is  not  whether  the                                                               
security guard  could personally  retreat, but  whether everybody                                                               
involved could safely  get away. If not, then  deadly force could                                                               
be used.                                                                                                                        
                                                                                                                                
REPRESENTATIVE NEUMAN responded  that current law says  that if a                                                               
person can  safely remove  him or herself  from the  scene he/she                                                               
has to do that.                                                                                                                 
                                                                                                                                
CHAIR FRENCH  wondered what  was wrong with  that idea.  Don't we                                                               
want people  to withdraw  from a  situation if  it could  be done                                                               
with complete personal safety, he asked.                                                                                        
                                                                                                                                
REPRESENTATIVE NEUMAN said absolutely.                                                                                          
                                                                                                                                
CHAIR FRENCH observed  that there didn't appear to  be an example                                                               
in  Alaska law  of the  wrong person  being prosecuted  under the                                                               
self defense statute.  The [Big Lake] case  appropriately went to                                                               
a jury  because one person  died and  another person was  shot in                                                               
the back.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  NEUMAN responded  that  he  purposefully did  not                                                               
bring individual cases forward.                                                                                                 
                                                                                                                                
2:44:31 PM                                                                                                                    
SENATOR MCGUIRE  asked the sponsor his  motivation in introducing                                                               
the  bill,  and  if  it  might  unwittingly  allow  more  defense                                                               
opportunities for  gang members  and make  it more  difficult for                                                               
prosecutors.                                                                                                                    
                                                                                                                                
REPRESENTATIVE NEUMAN  said the  primary motivators were  the Big                                                               
Lake case and the fact that  so many other states brought forward                                                               
similar  legislation. He  offered his  belief that  the right  of                                                               
self  defense under  the  castle doctrine  should  extend to  any                                                               
place that  a person  has a  legal right to  be, like  the Dimond                                                               
Center or out camping.                                                                                                          
                                                                                                                                
2:49:07 PM                                                                                                                    
REX SHATTUCK, staff to Representative  Mark Neuman, discussed the                                                               
judicial  system and  an  individual's  objective and  subjective                                                               
decision  making in  the context  of HB  80. The  judicial system                                                               
addresses  justification  and  self defense;  when  a  prosecutor                                                               
takes on one  of these cases it  has to go to the  jury for final                                                               
decision as to  whether it was self defense.  For the individual,                                                               
the message is  that there is justification for  self defense. An                                                               
individual who  is in imminent danger  has a right to  defend him                                                               
or herself in a place where he/she has a right to be.                                                                           
                                                                                                                                
He concluded that  the bill enjoyed broad support  in both bodies                                                               
and that the administration indicated its support as well.                                                                      
                                                                                                                                
2:52:28 PM                                                                                                                    
CHAIR FRENCH announced he would hold HB 80 in committee.                                                                        
                                                                                                                                
2:52:34 PM                                                                                                                    
At ease.                                                                                                                        
                                                                                                                                
2:54:05 PM                                                                                                                    
CHAIR FRENCH  reconvened the meeting and  reviewed his intentions                                                               
for  the six  criminal bills  that were  scheduled but  not heard                                                               
today.                                                                                                                          
                                                                                                                                
SB  110, Senator  Wielechowski's bill  on human  trafficking, and                                                               
the  sex trafficking  elements  of  SB 218  will  be  put into  a                                                               
committee substitute (CS) and moved along.                                                                                      
                                                                                                                                
SB 212  creates a task  force dealing with human  trafficking and                                                               
Senator McGuire's requested that it move forward alone.                                                                         
                                                                                                                                
SB 186 was  filed on behalf of the  administration. The amendment                                                               
that  Senator  Coghill  brought   forward  to  raise  the  felony                                                               
misdemeanor cutoff for theft and  criminal mischief will be added                                                               
to the bill.                                                                                                                    
                                                                                                                                
The second half of SB 218, video provisions for video                                                                           
conferencing, will be addressed along with a pornography ruling                                                                 
in a new CS.                                                                                                                    
                                                                                                                                
SB 210 deals with felony child assault and Senator McGuire                                                                      
requested that it go forward alone.                                                                                             
                                                                                                                                
2:56:57 PM                                                                                                                    
There being no further business to come before the committee,                                                                   
Chair French adjourned the meeting at 2:56 p.m.                                                                                 
                                                                                                                                

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