Legislature(2011 - 2012)BELTZ 105 (TSBldg)

04/04/2012 01:30 PM JUDICIARY


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

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