Legislature(2007 - 2008)BELTZ 211
01/25/2007 09:00 AM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB45 | |
| SB25 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 45 | TELECONFERENCED | |
| *+ | SB 7 | TELECONFERENCED | |
| *+ | SB 25 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 36 | ||
SB 45-PEACE OFFICER CONVICTED OF MURDER
CHAIR MCGUIRE announced the consideration of SB 45.
DAVID GRAY, staff to Senator Donny Olson, said SB 45 is "near
and dear" to Senator Olson's district. It mandates the maximum
sentence for a peace officer who is convicted of first degree
murder and stems from a case in Nome where a young woman [Sonya
Ivanoff] was murdered [by a peace officer]. She was well-liked,
he said, and it tore up the region. The trial was moved to
Kotzebue, and the peace officer was convicted. During
sentencing, the state's prosecutor noted that the maximum
mandatory sentence is given to anyone who murders a peace
officer. SB 45 is the compliment to that law and states that a
peace officer should be held to a higher standard for "extreme
misconduct of this nature."
9:02:16 AM
MR. GRAY said the residents in the region have almost
unanimously come forward to request this legislation.
SENATOR BUNDE said the man was sentenced to 99 years, and this
is what the bill asks for-without judicial discretion--so it
would not have changed the outcome of the trial.
MR. GRAY said the bill will have no effect on what occurred in
Nome, but many residents requested that any peace officer
convicted of first degree murder face the maximum sentencing.
9:03:39 AM
WALT MONEGAN, Commissioner, Department of Public Safety, said
the law may create unintended consequences. He said he is not
concerned about the punishment for a peace officer who violates
the law, "but rather the way it's currently worded." He spoke of
the complicated case of an officer shooting a suspect, and
expressed concern about a defense or a civil action. He said the
wording should be worked on. A police officer, trained in the
use of deadly force, does not have the intent to shoot to kill.
Officers are trained to shoot the center mass, or the biggest
portion of the person, which will most likely "stop the fight"
or hit the target. He noted that a trooper or officer is often
confronted with imperfect information and has to make a split-
second decision. It is analyzed later in the safety of full
daylight, he stated.
9:07:13 AM
COMMISSIONER MONEGAN said investigators try to understand what
the officer knew at the time to determine if policy was
violated. In cases where other defendants are brought to trial,
"I could see it being complicated by some defense
attorneys…citing that ll.41.100, murder in the first degree. A
person commits the crime of murder if [there is] the intent to
cause death of another person." If someone pulls a weapon on an
officer who is trained to respond by hitting "center mass",
there is a high likelihood to cause death, he said. Officers and
troopers are trained to deploy two rounds into the chest area of
an armed suspect, and if that person is still standing, they are
trained to shoot either for the head or hips, and that could
certainly be viewed as the intent to cause death. He said he
understands the spirit of the legislation, and anyone should
face the consequences of criminal acts, but he would hate to see
the bill cause hesitation for officers who are "confronted."
9:09:39 AM
COMMISSIONER MONEGAN gave the example of a man planning to shoot
his girlfriend in Anchorage. He saw a man of similar description
and asked for identification. Commissioner Monegan had been told
that the person was a mental patient, a convicted armed robber,
and had a warrant out for sexual assault. The man reached for a
handgun, and Commissioner Monegan went through a quick decision-
making process on whether to shoot the suspect or not. He said
SB 45 may create another decision to be made in a similar
situation, and when someone hesitates, someone gets hurts, he
opined. He asked the committee to consider an aggravator in the
bill, so if the individual who commits the crime is a peace
officer, "that would be added as an aggravator versus clearly
lining it out as it is now."
9:14:11 AM
CHAIR MCGUIRE said that is a good point. State law requires that
a trial for an aggravator be a separate trial, "but it may be
warranted."
MR. GRAY said Senator Olson does not want to interfere or
inhibit the police office. This is a different situation, he
added, a predator situation.
9:15:03 AM
SENATOR FRENCH said the bill is interesting and touchy.
Currently a police officer who commits a murder faces 20 to 99
years in jail, so the bill "does not introduce a new calculus,
it just increases the severity of it." He said he didn't think
aggravators properly apply to unclassified felonies. The
sentence for murder in the first degree is 20 to 99 years with
or without any aggravators, so that is not a "viable out" for
the committee. He asked if there is a difference between a peace
officer being "on duty" or "being engaged in the performance of
official duties."
MR. GRAY said he doubts that a difference was considered in the
drafting of the bill, and it is open for consideration.
9:17:29 AM
LORETTA BULLARD, President, Kawerak, Inc, Nome, said Kawerak is
a regional non-profit corporation and supports SB 45. She said
the entire community was horrified and devastated when Sonya
Ivanoff--a beautiful, vibrant and promising young woman--was
murdered. When a police officer came under suspicion, she was
thankful that the Alaska State Troopers were called in. During
sentencing there were family and friends of the defendant who
were advocating for the minimum sentence. She said there was
much concern that the offender could get a short jail sentence
with time off for good behavior and early parole. People turn to
peace officers in times of need, and the offender "failed in his
capacity as a sworn police officer and as a human being," she
said. The bill would ensure that peace officers convicted of
first degree murder while on duty would receive a mandatory
sentence of 99 years. She said AS 33.19.90 removes the
possibility of being eligible for discretionary parole for
crimes listed in AS 12.55.125; however, there is no prohibition
against early release for good behavior which could result in a
reduction of time served by one third, and she recommended the
language be amended to not allow early release. She said she
provided the committee with resolutions from Kawerak and the
Norton Sound Health Corporation board in support of SB 45.
9:20:41 AM
SENATOR BUNDE asked if an off-duty officer witnesses a crime,
does his or her oath require the officer to take some official
action or act as an officer.
COMMISSIONER MONEGAN said yes, and it is called "under the color
of authority". Taking some action is expected, he stated.
SENATOR BUNDE said that basically an officer is never off duty.
COMMISSIONER MONEGAN said he believes in the intent of the bill
because police officers are symbols of high standards. There
should be screening in hiring, but things can go awry. He stated
that those who decide to violate the law must be held
accountable, especially those in positions of trust, like police
officers. There are two different issues, and one issue is
"using your job to be a predator, and that is totally criminal."
The other issue is if the law could cause hesitation or
confusion by officers responding to a situation. He said there
is no criminal intent when an officer responds with deadly force
to defend themselves or somebody else. The wording of SB 45
could easily be interpreted "to be that way." It would be better
to word the bill "in an aggravator sense."
9:24:37 AM
SENATOR BUNDE asked about cases where other officers have been
charged with murder in the line of duty.
COMMISSIONER MONEGAN said he cannot think of any in Anchorage.
He said, "What I'm anticipating would be, more so, the civil
actions afterwards," like the case of O.J. Simpson who was not
convicted but the power of law was used in the civil case. The
Anchorage police department has been sued for taking someone's
life, he noted. The bill could be used "to confuse the issue on
other defendants that were taken into custody if one of them had
been killed." It opens up more on the civil side, but that is
his intuitive feeling, he said. He stated that his biggest
concern is the hesitation that might occur to an officer who has
to choose to use deadly force. This bill may be in the back of
their minds, he said.
9:27:15 AM
CHAIR MCGUIRE asked about any police officer being charged with
murder in such circumstances, and she said it wouldn't be first
degree murder but second degree murder or manslaughter. Officers
are taught to stop the suspect from moving forward, and that
does not constitute first degree murder.
9:28:21 AM
RICK SVOBODNY, Chief Assistant Attorney General, Criminal
Division, Department of Law, said he prosecuted the offender in
the Nome case, and the man is the only police office in Alaska
ever charged with murder in the first or second degree. It was a
unique case. He said the state would always have to prove that
the officer acted with the intent to kill. Looking at self
defense and other types of justification makes it highly
unlikely that a police officer would ever be charged with murder
in the first or second degree if responding to a situation. An
officer acting with wanton disregard, like shooting at a
shoplifter in a crowded mall and killing someone, may be charged
with manslaughter.
9:30:26 AM
SENATOR GREEN asked if the expectations for peace officers would
be the same whether they are on or off duty.
MR. SVOBODNY said that what happened in Nome is the officer used
his authority to get a 19-year-old girl into his patrol car and
into "a situation where he could ultimately kill her." The way
the bill is drafted now, it would apply, for example, to an
officer who was on duty and had a fight with his wife and
intentionally killed her, even though he did not use his police
authority to do so. "I think that the language about being on
duty needs to be tightened up a little bit."
9:32:08 AM
CHAIR MCGUIRE noted that an officer could be off duty and still
use the color of authority to commit such a crime, "and it would
be equally as offensive." She asked for better language.
MR. SVOBODNY said the language the chair just used may be good:
"use of the color of his authority."
9:32:42 AM
SENATOR FRENCH asked if it was proved that the Nome incident
took place while the man was on duty.
MR. SVOBODNY said, yes he was on duty.
9:33:17 AM
SENATOR STEVENS said it was a terrible case and the only
incidence of its type in Alaska. He asked about such a predator
being hired and suggested that weeding out predators "is a big
issue as well."
COMMISSIONER MONEGAN said it depends on how strict a department
is on following their own guidelines for background checks and
other screening. He said his profession tries to do the best
possible job, but some issues, especially deviant sexuality, are
buried and undisclosed. He said it takes persistence and
thorough background checks.
9:34:56 AM
SENATOR STEVENS said is sounds like there were several incidents
prior to the murder in which girls were taken into the police
car. "How can we do a better job to make sure that people like
this are not in uniform?"
COMMISSIONER MONEGAN said he agrees and assumes Nome has now
looked at their screening process. He spoke of a case of an
officer having pornography on his computer where there was
nothing in his background that would have disclosed it. A
person's latent tendencies can come out after being hired, he
said. He asked if SB 45 could place the following language on
page 2, line 9: the defendant is a peace officer who acted with
criminal intent and under the color of authority at the time of
the murder. He said that would separate incidents of criminal
intent from deployment of deadly force without criminal intent.
9:37:42 AM
MR. SVOBODNY said this is a sentencing provision, and culpable
mental states--intent to kill the person--would be under the
charging provisions. He thinks the language of acting under the
color of authority is good, but he does not know of any
sentencing provision that provides for a person's state of mind.
"I think we can work out language that covers what everyone
wants," he stated.
9:38:41 AM
CHAIR MCGUIRE said she understands Commissioner Monegan's
concern with the public relations issue. "You don't want an
officer to have one more thing to think about to hesitate." The
language needs to be clear that it is for the abuse of one's
color of authority, she stated.
SENATOR STEVENS asked when a police officer is ever not acting
under the color of authority. "People would always be aware this
person was a police officer whether he's in uniform or not."
9:39:52 AM
MR. SVOBODNY noted the example he gave of an officer on duty who
killed his wife in a domestic dispute but was not using the
authority of his position to do so.
SENATOR STEVENS said everyone in Nome knew the offender was a
police officer.
SENATOR FRENCH suggested the following language: "the defendant
is a peace officer who acts contrary to established police
practices and under color of the authority of his or her
position to commit the murder."
9:41:21 AM
COMMISSIONER MONEGAN said something like that would work or
"anything like that that clearly says the officer is acting
within their scope of duties…versus totally outside the law."
9:41:49 AM
CHAIR MCGUIRE said the committee is all headed in the same
direction.
GAIL SHUBERT, Executive Vice President and General Council,
Bering Straits Native Corporation, said her niece is married to
Sonya Ivanoff's brother. Ms. Ivanoff was in her prime and was
well-liked, and the Bering Straits board took her murder
seriously and adopted the first resolution in support of what it
called the Sonya Ivanoff law. One of the fundamental duties of a
law enforcement officer is to protect the community and respect
constitutional rights. She said that the board believes that
peace officers should be held to a higher standard. The incident
set a tidal wave of distrust of law enforcement officers and the
judicial system through the Native community of western Alaska.
She noted that the prosecutor in the trial, Mr. Svobodny, opined
that murder by an officer on duty should mandate the same
sentence--99 years--that is imposed on a person killing an
officer on duty. The presiding judge agreed and "thankfully
imposed the maximum sentence of 99 years." She highlighted the
fact that SB 45 only relates to an officer convicted of first
degree murder, "and presumably that police officer would have a
jury of 12 who would hear the facts and circumstances and decide
whether, in fact, murder in the first degree is an appropriate
conviction." Ms. Shubert requested that the law be entitled the
Sonya Ivanoff law.
9:46:05 AM
CHAIR MCGUIRE spoke of how awful and gut-wrenching the murder
was and how the people in Nome felt abandoned. "We will get some
version of this bill through." She said it was good the justice
system did respond in this case and give the officer a 99-year
sentence. This bill will insure the same sentence every time an
officer uses the color of authority to commit murder, she said.
SENATOR BUNDE asked if anyone in the position of authority
should be brought under this, including teachers and clergy.
CHAIR MCGUIRE said it is not a bad idea. SB 45 will be brought
up on Tuesday "with an eye toward the amendments."
9:48:33 AM
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