Legislature(2003 - 2004)
04/14/2003 01:10 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 14, 2003
1:10 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 151
"An Act relating to claims and court actions for defects in the
design, construction, and remodeling of certain dwellings;
limiting when certain court actions may be brought; and amending
Rules 79 and 82, Alaska Rules of Civil Procedure."
- MOVED CSHB 151(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 244
"An Act relating to the Code of Criminal Procedure; relating to
defenses, affirmative defenses, and justifications to certain
criminal acts; relating to rights of prisoners after arrest;
relating to discovery, immunity from prosecution, notice of
defenses, admissibility of certain evidence, and right to
representation in criminal proceedings; relating to sentencing,
probation, and discretionary parole; amending Rule 16, Alaska
Rules of Criminal Procedure, and Rules 404, 412, 609, and 803,
Alaska Rules of Evidence; and providing for an effective date."
- HEARD AND HELD
PREVIOUS ACTION
BILL: HB 151
SHORT TITLE:DWELLING DESIGN/CONSTRUCTION CLAIMS
SPONSOR(S): REPRESENTATIVE(S)MEYER
Jrn-Date Jrn-Page Action
03/05/03 0396 (H) READ THE FIRST TIME -
REFERRALS
03/05/03 0396 (H) L&C, JUD, FIN
03/05/03 0407 (H) FIN REFERRAL REMOVED
03/26/03 (H) L&C AT 3:15 PM CAPITOL 17
03/26/03 (H) -- Meeting Canceled --
03/28/03 (H) L&C AT 3:15 PM CAPITOL 17
03/28/03 (H) Moved CSHB 151(L&C) Out of
Committee
MINUTE(L&C)
03/31/03 0707 (H) L&C RPT CS(L&C) 7DP
03/31/03 0707 (H) DP: LYNN, GATTO, CRAWFORD,
GUTTENBERG,
03/31/03 0707 (H) DAHLSTROM, ROKEBERG, ANDERSON
03/31/03 0708 (H) FN1: ZERO(H.L&C/CED)
04/11/03 (H) JUD AT 1:00 PM CAPITOL 120
04/11/03 (H) Heard & Held
04/11/03 (H) MINUTE(JUD)
04/14/03 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 244
SHORT TITLE:CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
04/04/03 0770 (H) READ THE FIRST TIME -
REFERRALS
04/04/03 0770 (H) JUD, FIN
04/04/03 0771 (H) FN1: ZERO(LAW)
04/04/03 0771 (H) FN2: (COR)
04/04/03 0771 (H) GOVERNOR'S TRANSMITTAL LETTER
04/04/03 0771 (H) REFERRED TO JUDICIARY
04/14/03 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE KEVIN MEYER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 151.
JOHN NOVAK, Chief Assistant District Attorney
Third Judicial District (Anchorage)
Criminal Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Presented HB 244 on behalf of the
administration and responded to questions.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 244.
MATTHEW C. LEVEQUE, Lieutenant
Field Operations Coordinator
Division of Alaska State Troopers
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 244.
GLENN KLINKHART, Detective
Anchorage Police Department (APD)
Municipality of Anchorage (MOA)
Anchorage, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 244.
ACTION NARRATIVE
TAPE 03-38, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:10 p.m. Representatives
McGuire, Anderson, Holm, Ogg, and Gruenberg were present at the
call to order. Representatives Samuels and Gara arrived as the
meeting was in progress.
HB 151 - DWELLING DESIGN/CONSTRUCTION CLAIMS
Number 0025
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 151, "An Act relating to claims and court
actions for defects in the design, construction, and remodeling
of certain dwellings; limiting when certain court actions may be
brought; and amending Rules 79 and 82, Alaska Rules of Civil
Procedure." [Before the committee was the proposed committee
substitute (CS), Version 23-LS0499\V, Bannister, 4/10/03, which
was adopted as a work draft on 4/11/03.]
Number 0095
REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, sponsor,
announced that he's had a chance to review the amendment drafted
by Legislative Legal and Research Services and he's in agreement
with it.
REPRESENTATIVE GRUENBERG pointed out that the committee should
have two amendments on the same page.
CHAIR McGUIRE determined that there were no objections to
keeping the two concepts together under one amendment.
Number 0141
REPRESENTATIVE GRUENBERG moved that the committee adopt
Amendment 1, labeled [23-LS0499\V.1, Bannister, 4/14/03], which
contained handwritten changes and which originally read:
Page 2, following line 2:
Insert a new subsection to read:
"(b) The 10-year limitation imposed under (a) of
this section is tolled between the time the claimant
serves notice under AS 09.45.881 and the time the
claimant should reasonably understand that settlement
under the procedures in AS 09.45.881 - 09.45.899 will
not succeed."
Reletter the following subsection accordingly.
Page 5, lines 30 through 31:
Delete "may be included as part of the contract,
must be conspicuous, and must be in substantially the
following form:"
Insert "must be included on a separate page
attached to the contract and must contain a title at
the top of the page that reads "Potential Claim."
(c) The notice required by (a) of this section must
be conspicuous and must be in substantially the
following form:"
[The handwritten changes in Amendment 1 involved replacing, from
the third line from the top, "The 10-year limitation imposed
under (a) of this section" with "A limitation imposed under AS
09.10 for an action under AS 09.45.881 - 09.45.899"; and
replacing, from the fourth line from the bottom, "'Potential
Claim'" with "'Notice and Opportunity to Repair'".]
Number 0141
CHAIR McGUIRE ascertained that there were no objections.
Therefore, Amendment 1 was adopted.
REPRESENTATIVE GRUENBERG noted that he offered Amendment 1 on
behalf of Representative Gara.
Number 0153
REPRESENTATIVE ANDERSON moved to report the CS for HB 151,
Version 23-LS0499\V, Bannister, 4/10/03, as amended, out of
committee with individual recommendations and the accompanying
fiscal note. There being no objection, CSHB 151(JUD) was
reported from the House Judiciary Standing Committee.
HB 244 - CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
Number 0229
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 244, "An Act relating to the Code of Criminal
Procedure; relating to defenses, affirmative defenses, and
justifications to certain criminal acts; relating to rights of
prisoners after arrest; relating to discovery, immunity from
prosecution, notice of defenses, admissibility of certain
evidence, and right to representation in criminal proceedings;
relating to sentencing, probation, and discretionary parole;
amending Rule 16, Alaska Rules of Criminal Procedure, and Rules
404, 412, 609, and 803, Alaska Rules of Evidence; and providing
for an effective date."
Number 0258
JOHN NOVAK, Chief Assistant District Attorney, Third Judicial
District (Anchorage), Criminal Division, Department of Law
(DOL), explained that he is one of the people that goes into
court and "actually tries these cases," and he is also the one
who has to sit down with the victims or their families and
explain why their case can't be prosecuted because of the
current status of the law. He noted that he has tried cases in
Anchorage, Bethel, Kenai, King Salmon, Palmer, and Unalaska.
Since the mid-'90s, he relayed, he has worked "gang cases" along
with the federal task force, and offered that this experience
relates to the aspects of HB 244 dealing with self-defense.
MR. NOVAK said that HB 244 came about in large part by talking
to prosecutors and law enforcement officials statewide. The
governor's office asked for input on how to make communities
safer and more peaceful places. He said that HB 244 is not
about making his job easier; instead, he remarked, "it's about
making our community a safer and better place for everybody."
He surmised that most members would like him to testify in
detail on the self-defense aspects of the bill - the first five
sections of HB 244; with that in mind, he said he would first be
talking about the latter sections of the bill.
MR. NOVAK turned attention to Section 6, and offered the
following as an example. A person has been brought to the
police station and has been advised of his/her rights - that
he/she doesn't have to talk to the police, that he/she can have
a lawyer present if he/she wishes - but the person has decided
to go ahead and talk to the police. He asserted that current
law allows a lawyer showing up at the front counter to go back
to the person that is being interviewed even though he/she never
asked for a lawyer.
Number 0538
MR. NOVAK said:
We don't think that's right. We think that if the
person wants to talk to a lawyer, that's their right.
If they don't want to talk to the law enforcement
personnel, that's their right. But the current
statute giving somebody a right to interrupt police
interviews on their own accord, we don't think that
that aids in the truth-finding function of law
enforcement to solve what's going on. And so we don't
see how that is of assistance, especially when this
lawyer's essentially thrusting himself or herself into
the situation despite the wishes of the person being
interviewed. And so that's the change that we're
proposing there: not to limit, at all, or restrict
any of the person-being-interviewed rights, but rather
to delete this right of an attorney, who's not
representing this person at this point in time, to
interrupt a police interview.
CHAIR McGUIRE said that her concern surrounding this issue is
that if someone is incapacitated but has not yet been legally
declared such - for example, someone who has a head injury,
suffers from mental retardation, or has some other sort of
disorder - and the person's family and friends are aware of this
incapacitation, under this provision, neither his/her family nor
friends could arrange for an attorney to intercede even though
they know that the person is not capable of making a fully
cognizant decision.
MR. NOVAK remarked that any statement provided has to be
voluntary; in other words, it has to be "knowingly, intelligent,
and voluntary." That's aside from any of these other rights, he
added. Therefore, in order for law enforcement personnel to use
anybody's statement, or even to question that person, they have
to be satisfied that the person knows what he/she is doing. He
mentioned that they'd recently had a situation in which, during
the course of an interview, it became clear that the person was
having mental issues. That interview was discontinued and the
person was admitted to the Alaska Psychiatric Institute (API).
MR. NOVAK stressed that [prosecutors] can't ever use someone's
statement unless it is voluntary. If someone is so intoxicated
or mentally challenged or impaired that he/she didn't know what
he/she was doing, "that protection is always going to be there,"
he added. He noted that interviews are always recorded, either
on audiotape or videotape, and so prosecutors always have to be
fair with people because the jury will see whether an individual
was treated fairly. In conclusion, he said the requirement that
a statement be voluntary would not be affected by HB 244.
Number 0761
CHAIR McGUIRE said she assumes that this provision has arisen
from perceived abuses. She remarked that it sounds like it's a
case of attorneys just barging in whenever an interview is in
progress, rather than a case of family members or friends
contacting attorneys.
MR. NOVAK replied:
Well, ... when this first came about, we were all
surprised that this law was on the books, I can tell
you that, as prosecutors. And a number of years ago,
there was a case, it was a sexual assault case - last
name was Smith - where the context was, the lawyer
just showed up. After about an hour or two of the
interview, [a] lawyer shows up at the front counter,
hadn't been retained, and says, "I want to go talk to
the guy." And the advice he got at that part in time
was, "No; if the suspect says, 'I want to talk to
lawyer,' we'll let the lawyer back, but if he's not
asked for a lawyer, we're not going let him come
back."
And what happened in that case, this statute got
pointed out; law enforcement as well as prosecutors,
frankly, were surprised it was on the books. And in
that case, what the court did, not only did they
suppress - or not allow us to use the statement from
the time the lawyer showed up - but they also
suppressed the ... the two hours before the lawyer
showed up.
And so, basically, it was a statute that I think was
not well known for certain, and it really is a problem
of, ... are we going to limit the ability to find out
what the truth is, particularly at the investigation
stage. And if somebody wants to have their lawyer and
talk to them, I think that's very different from
letting a lawyer interject or get in the way of the
investigation - figuring out what's going on.
MR. NOVAK, in response to a question about the four rights
listed in proposed AS 12.25.150(b), said that the person [being
detained and interviewed] has all four rights. In other words,
that person doesn't have to choose just one of those rights
listed to the effect of giving up the other three; he/she can
choose to exercise all four rights. He offered his
understanding that the current statute also gives a lawyer the
right to interrupt an interview, and suggested that this
proposed provision merely takes away a lawyer's right to
intervene.
Number 1051
REPRESENTATIVE GRUENBERG pointed out, however, that the current
language actually says:
(b) Immediately after an arrest, a prisoner shall
have the right to telephone or otherwise communicate
with the prisoner's attorney and any relative or
friend, and any attorney at law entitled to practice
in the courts of Alaska shall, at the request of the
prisoner or any relative or friend of the prisoner,
have the right to immediately visit the person
arrested. This subsection does not provide a prisoner
with the right to initiate communication or attempt to
initiate communication under circumstances proscribed
under AS 11.56.755.
REPRESENTATIVE GRUENBERG posited that the purpose of Section 6
is to reverse the holding in Farrell v. Municipality of
Anchorage.
MR. NOVAK offered that the purpose of Section 6 is to clarify
that the rights listed therein are the rights of the person
under arrest, and to delete the right of a lawyer to intervene.
REPRESENTATIVE GRUENBERG offered that apparently Farrell holds
that the express language of subsection (b) provides for an
immediate visit with counsel following an arrest, which, he
added, seems to be reversed by Section 6.
MR. NOVAK said that if the person under arrest requests to meet
immediately with a lawyer, then he she is entitled to meet with
a lawyer. Section 6, he reiterated, takes away a lawyer's right
to intervene, but does not take away any of the rights of the
person under arrest.
REPRESENTATIVE OGG pointed out, however, that Section 6 is
removing the right of any friend or relative to get a lawyer for
the person arrested. Those two categories of people would no
longer have the right to assist the arrested person in getting
an attorney.
MR. NOVAK noted that under current law, family and friends
cannot walk back and interrupt an ongoing interview, only a
lawyer can do so.
CHAIR McGUIRE, after some discussion regarding the meaning of
current law as compared to what is proposed by Section 6,
clarified that Section 6 will take away the right of friends or
family to request an attorney for an arrestee. She said that
there is no question that that is a policy change.
Number 1443
MR. NOVAK next turned to Section 7 of HB 244. He offered that
Section 7 addresses principally felony DWI (driving while
intoxicated) cases. He relayed to members that conviction of a
DWI crime is a felony if the individual has two or more prior
DWI convictions within "the last five years and that's expanding
out now with time." Thus, he remarked, he has to prove that a
person is guilty of DWI and that the person has two prior DWI
convictions within the last five years. A recent court case has
said that there should now be two trials, rather than one, in
those situations. The first trial will take up the issue of
whether the person was DWI, and the second trial will take up
the issue of whether the person has had two or more prior DWI
convictions within the last five years. Section 7 clarifies
that all the evidence regarding the prior convictions will be
presented in the one trial pertaining to the current offense.
REPRESENTATIVE GRUENBERG suggested, however, that in the case
referred to by Mr. Novak - the 2002 Alaska Court of Appeals
case, Ostlund v. State - the court came to it's decision because
of constitutional issues.
MR. NOVAK said that according to his interpretation of Ostlund,
the court made its decision based on a "403 analysis." He
opined that the consideration of Rule 403 of the Alaska Rules of
Evidence implies that trial jurors cannot be trusted to properly
consider the prior convictions. He said, "I think we can trust
the jurors; I think we can have them consider the evidence as
they're instructed to do so, and not have this double trial."
Having one trial avoids the jurors' wondering among themselves
whether information is being kept from them, he concluded.
CHAIR McGUIRE concurred that the jurors do get instruction on
what aspects to disregard.
Number 1606
REPRESENTATIVE GRUENBERG sought confirmation that the court used
Rule 403 of the Alaska Rules of Evidence, which reads:
Rule 403. Exclusion of Relevant Evidence on Grounds
of Prejudice, Confusion, or Waste of Time.
Although relevant, evidence may be excluded if its
probative value is outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
MR. NOVAK confirmed that according to his interpretation, the
court's decision in Ostlund was based, not on the issue of
constitutional due process, but on a Rules of Evidence analysis.
In response to a question, he said that via Section 7, they were
attempting to mandate, on [felony] DWI cases, that the jury hear
all the information. In this way, all the elements that must be
proven - that the person was drunk and driving, and that there
were two or more prior convictions - can be done in one case.
MR. NOVAK next turned to Sections 8-12 and 17, and said that
these provisions pertain to when a witness claims a Fifth-
Amendment privilege not to testify. Currently, when a witness
makes that claim, the prosecutor has to choose between not
calling that witness at all or granting blanket immunity without
knowing what crimes the witness is seeking immunity for. He
said that in such situations, he is reluctant to simply grant
blanket immunity - transactional immunity - without knowing more
of the specifics. For example, if the witness had a bindle of
cocaine in his/her pocket at the time he/she witnessed whatever
circumstance has led to the trial, the prosecutor would be
willing to "take a pass on that" and agree not to prosecute for
possession of cocaine; however, if the witness murdered somebody
two weeks beforehand, the prosecutor won't want to give immunity
for that crime.
MR. NOVAK said that these provisions of HB 244 will allow the
prosecutor to be present when the witness tells the judge what
he/she is seeking immunity for. In this way, the prosecutor
would be able to make an informed decision regarding whether to
grant transactional immunity to a witness seeking a Fifth-
Amendment privilege.
Number 1823
CHAIR McGUIRE asked Mr. Novak whether, instead of having the
prosecutor present when the witness speaks to the judge about
immunity, he has considered just requiring the judge to specify
which things the immunity will be granted for. She opined that
if claiming the Fifth Amendment really is a privilege, then
there ought to be a tremendous amount of privacy associated with
that privilege. She said that her concern is that in revealing
to the prosecutor what crimes a witness may have committed, it
could later lead to that person being prosecuted. She asked
whether other states provide something other than transactional
immunity.
MR. NOVAK explained that most other states offer "use immunity."
Under use immunity, a prosecutor only has to tell the witness
that anything he/she says will not later be used to prosecute
him/her. Under transactional immunity, a witness can never be
prosecuted regarding anything he/she reveals, even if there is
independent evidence that he/she committed a particular crime.
However, in Alaska, he said, the Alaska State Constitution has
been interpreted to mean that use immunity is not sufficient.
CHAIR McGUIRE asked whether it would be possible to simply
change from transactional immunity to use immunity; that way
they could avoid having prosecutors insert themselves into the
private conversations between witnesses and judges.
MR. NOVAK argued that they had to live with transactional
immunity because the Alaska Supreme Court has interpreted that
the Alaska State Constitution mandates it. He said that they,
as prosecutors, needed to know that the claims for Fifth
Amendment immunity are valid and for what crimes the immunity is
being sought. Otherwise, he stated, "we can't make a decision
whether or not to grant somebody a deal, so to speak."
REPRESENTATIVE GRUENBERG acknowledged that it is to the
witness's advantage to seek transactional immunity and then, if
granted, confess all.
MR. NOVAK agreed.
CHAIR McGUIRE indicated that although she understands the
problem, she was simply trying to find a solution other than
what is being proposed via Sections 8-12 and 17.
Number 2056
MR. NOVAK indicated that those provisions would allow a
witness's lawyer to offer either written or oral proof to the
court; it doesn't have to be the witness himself/herself. He
opined that the proposed language would protect witnesses'
rights and get prosecutors the information they need. In
response to a question, he explained that currently, when
speaking to a witness about the Fifth Amendment privilege, a
judge must make a determination regarding whether the defense
attorney is likely to bring up the issues that the witness is
seeking immunity for.
REPRESENTATIVE HOLM referred to Section 12, page 5, line 19, and
asked what "in camera" means.
MR. NOVAK explained that it refers to a closed hearing.
REPRESENTATIVE HOLM referred to subsection (h) on page 5, and
asked about the meaning of the phrase, "The proffer is
privileged and inadmissible for any other purpose".
MR. NOVAK said that language stipulates that when the witness's
lawyer submits - or proffers - information regarding what the
witness is likely to speak to during testimony, the prosecution
cannot then use the information that is in that proffer to
prosecute the witness. In response to a question regarding the
difference between transactional immunity and use immunity, he
said that he is unaware of any difference other than what he
previously spoke to.
TAPE 03-38, SIDE B
MR. NOVAK, in response to further questions, said he didn't
think that adoption of the proposed language would affect,
either way, a witness's willingness to disclose information to
the judge or in the proffer. The only difference would be that
prosecutors would then know what the information being divulged
is. He noted that commonly, the ground rules regarding what
issues the defense lawyer can raise are laid out up front. Both
sides must have a good-faith basis for asking a witness a
particular question. In conclusion, he reiterated that the
proposed sections under discussion will allow prosecutors to
make informed decisions, rather than being kept in the dark,
regarding whether to grant immunity.
Number 2226
REPRESENTATIVE GRUENBERG observed that often, when witnesses for
the prosecution have shady pasts, a defense attorney will do
what he/she can to discredit those witnesses by going into their
pasts, including their juvenile records. Defense attorneys are
granted this latitude by both the Alaska State Constitution and
the Sixth Amendment to the U.S. Constitution. Unless this
latitude is allowed, he added, the defendant's right of cross-
examination is infringed upon. That's why the issue of immunity
becomes such an important one.
MR. NOVAK next turned to Sections 13, 14, and 18-20, and said
that those sections address the issue of consecutive sentencing.
In 1982, the legislature enacted a law with the clear intent of
wanting consecutive sentences. He used the example of a drunk
driver running into a car carrying a family of three, with both
of the adults in that car being killed and the child being
injured. Under the legislation enacted in 1982, the legislature
intended the sentences for each of those three offenses to be
added on top of each other, consecutively. However, he
remarked, the legislation was not well drafted and, thus, the
court interpreted the legislation to mean that consecutive
sentencing was simply a legislative preference, not mandatory.
MR. NOVAK said that although these provisions of HB 244 are not
intended to take the law back to what was intended with the 1982
legislation, they will require mandatory minimum sentences to be
consecutive. Thus, in the example used, assuming the drunk
driver was convicted of murder in the second degree, he/she
would have to serve 10 years for each of the adults killed and
at least 1 day for the crime of assaulting the child, for a
total of 20 years and 1 day. These provisions of HB 244, he
said, are a way to recognize the importance of each individual
person. In response to a question, he said, "It's one day, or
the mandatory minimum"; thus, because there is no mandatory
minimum on an assault conviction, the drunk driver would have to
serve at least one day for injuring the child.
CHAIR McGUIRE agreed that when it comes to sentencing someone
for the crimes he/she is convicted of, the injury to each
individual victim should be recognized.
MR. NOVAK, in response to questions, clarified that the term
"consecutive" means that sentences would be added together to
make for a longer time period, and that the term "concurrent"
means that sentences could run at the same time.
Number 1958
MR. NOVAK next turned to Section 15. He explained that prior
felony convictions trigger mandatory sentences and
"presumptively correct" sentences. Section 15 provides that
those prior convictions - oftentimes they are very old
convictions and occurred out of state - will not be relitigated.
Instead, it will be sufficient for the prosecutor to have a
certified copy of the prior conviction, and to be able to show
that it was for an offense similar to a felony offense under
Alaska law and that the person had a right to a jury trial and a
right to counsel. Section 15 will limit the scope of attack on
prior convictions, he concluded.
REPRESENTATIVE GRUENBERG asked whether Section 15 would reverse
any existing cases.
MR. NOVAK said he didn't believe it reversed any cases.
Currently, however, the defense could attack the validity of [a
prior conviction]. As a practical matter, he said, Section 15
will prohibit the defense from relitigating cases in which the
defendant "pleads out."
REPRESENTATIVE GRUENBERG asked whether Section 15 would preclude
the defense from bringing up the issue of having new evidence
regarding a prior conviction, for example DNA testing, for the
purpose of having that prior conviction discounted from the
current case.
MR. NOVAK said no. What would happen, he added, is that that
prior conviction "would go away" if the defendant is exonerated
in that prior case. However, Section 15 would preclude that new
evidence from being litigated in the current case; instead, the
defense would have to reopen the prior case in order to present
the new evidence.
REPRESENTATIVE GRUENBERG noted that in civil litigation, one can
always do a collateral attack for lack of jurisdiction, for
example. He asked if there was a similar attack for criminal
litigation.
MR. NOVAK said he was unaware of such.
Number 1627
MR. NOVAK next turned to Section 16, and said, "This is [an]
'acceptance of responsibility' mitigator." It would apply in
sexual assault cases and sexual-abuse-of-a-minor cases; if a
defendant were to plead to the charge - or accept responsibility
- at an early stage in the case, the court would be able to
factor that in, in issuing a lesser sentence. For example, if
the defendant plead to the charge early in the case, the court
might view that as being a sign that the person is on the way to
rehabilitation. It would also ensure that the victim does not
have to go through a court trial. He offered the example of a
case in which a little boy refused to provide testimony in court
that he was molested, and opined that it is appropriate to
"reward somebody for pleading out and not dragging these little
kids through [a court case]." He acknowledged, however, that
some could argue that Section 16 is punishing someone for
exercising his/her constitutional right to go to trial.
REPRESENTATIVE HOLM indicated that because of the high
recidivism rate of those who commit sexual assault crimes and/or
sexual-abuse-of-a-minor crimes, he disagrees that a sentence
should be minimized on the premise that pleading to the charge
means the perpetrator is on the road to rehabilitation. He
noted, however, that he did see the advantage of doing it for
the victim's sake.
MR. NOVAK added that Section 16 provides a way, by giving the
defendant some incentive to plead to the charge, to resolve
cases in which the victim isn't going to come to the trial. He
agreed with Representative Holm that those who commit sexual
offenses commonly reoffend.
CHAIR McGUIRE offered that Attorney General Renkes has said that
in cases of child abuse and sexual abuse of a minor, "We will
not plead down." If that's the case, she asked, isn't this
provision watering that down?
MR. NOVAK said he did not think so. He opined that the state is
appropriately aggressive with such offenses, and that Section 16
merely provides prosecutors with another tool in order to
continue to be aggressive. He mentioned that in order to make
deals, prosecutors have to get approval from those with very
high levels of authority.
Number 1365
CHAIR McGUIRE asked whether prosecutors would use this provision
regularly or only in rare cases. She mentioned frustration with
the practice of "plea bargaining things down."
MR. NOVAK pointed out that adoption of Section 16 would provide
the defendant with the choice. In other words, it would not be
up to the prosecutors to decide whether the provision is taken
advantage of; the defendant would choose whether he/she wanted
to go to trial, and if instead he/she chooses to plead to the
charge, then he/she can also choose to do so early in the case
and thus save a victim from having to go into court. In
response to a concern, he noted that ultimately, it is up to the
judge to decide whether to actually give a lesser sentence. For
example, if the defendant is a recidivist offender, the judge
may not give any weight to the fact that the defendant plead to
the charge and did so early in the case.
MR. NOVAK, in response to questions, explained that there are
presumptive sentences, and that mitigators and aggravators give
the court the discretion to deviate up or down, as much as 50
percent of the presumptive sentence, for good reason. He
concluded by saying that for sexual assault cases and sexual-
abuse-of-a-minor cases, Section 16 would give a defendant the
incentive to plea to a charge.
REPRESENTATIVE GRUENBERG pondered whether such a provision might
be useful for other types of offenses, to save a victim from
cross-examination. He asked whether the administration would be
amenable to expanding Section 16 to include other offenses.
MR. NOVAK said yes, it would be useful to expand Section 16 in
that manner.
MR. NOVAK next turned to Section 21-23, and said those
provisions deal with expert [witness] disclosure and notices of
defenses. The concept is to ensure that both the state and the
defense get notices of defenses and expert [witnesses] "at least
45 days before trial." In addition, to ensure that parties
comply, failure to do so may result in continuances being
granted or sanctions being imposed. He used the example of a
case on Saint Paul Island pertaining to the murder of the Coast
Guard commander, and noted that the logistics involved in that
case were extensive. In that case, he asserted, three days
prior to the court date, the defense gave notice regarding what
kind of defense would be used and that an expert witness would
be used; as a result, the prosecutors had to ask for a
continuance and cancel all the reservations and the other
arrangements that were made for the trial. The goal of these
provisions, he added, is to ensure that notices and disclosures
happen before the eve of trial.
REPRESENTATIVE GRUENBERG asked whether Section 21-23 provides
the court with any discretion "to allow defenses later."
Number 1020
MR. NOVAK, in response, said that the bill says that if [notice]
isn't given at least seven days before trial, then "you don't
get to run the defense or call the expert." The concept he
added, is to clarify that neither the state nor the defense can
wait until the last minute [to provide notice].
REPRESENTATIVE OGG asked how Sections 21-23 would affect a
defendant's right to a speedy trial and "the 120-day time
limit."
MR. NOVAK replied that the purpose of those sections is to avoid
continuances and surprises; hopefully, he added, it will result
in trials going as scheduled rather than there being delays. He
said that the continuance granted in the Saint Paul case counted
against the defense. In response to a further question, he said
that under HB 244, the defense could no longer wait, in order to
gain a tactical advantage, until the eve of trial to provide
notice. In the Saint Paul case, the defense would have been
told that it could not use that particular defense because
notice was not given in a timely manner. He remarked that in
that case, the defense wound up not using either the defense or
the expert witness that were noticed. He confirmed that if a
defense is taking longer to get its facts and experts together,
it might have to waive the "120-day rule."
MR. NOVAK, in response to further questions, said that under HB
244:
They have to lay their cards on the table 45 days
before trial. ... And then it says if they don't lay
their cards on the table 45 days before trial, there's
various things a court can do. If they don't lay
their cards on the table 7 days before trial, they
just can't run that defense, they can't call that
expert. I mean, 7 days is kind of the bright-line
test, and you either have to give notice or not run
that defense. We're not going to let you, on the day
before trial, spring this on the prosecution. Or, for
that matter, the state springs something on the
defense. ... They have to give notice of their
experts; we have to give notice of our experts as
well.
Number 0782
REPRESENTATIVE SAMUELS remarked that it is also important to
consider what a victim's family must go through when trials get
delayed.
MR. NOVAK agreed.
MR. NOVAK next turned to Section 24. He said that currently, if
a person gives a voluntary statement that is nevertheless given
in violation of his/her Miranda rights, that statement cannot be
used for any purpose, at all, during cross-examination at a
trial, unless it is during a later perjury prosecution. Section
24 would allow such a statement to be used during cross-
examination to impeach the person making the statement. He
noted that this provision would bring Alaska in accord with "the
vast majority of other jurisdictions that allow this same use of
information." He opined that Section 24 takes away a person's
license to lie. He added:
I think trials should be about a search for the truth,
and not a search about gamesmanship between the
lawyers. And I don't see how suppressing or not
allowing the state to use knowing, voluntary, and
intelligent statements at trial is assisting the
search for the truth.
MR. NOVAK next turned to Section 25, and said it pertains to the
length of time that the crime of dishonesty can be used to
impeach a witness that testifies. Current law says the time
period is five years from the date of conviction; Section 25
would make the time period begin from the date of unconditional
discharge from the conviction, and thus it will extend the time
period.
MR. NOVAK next turned to Section 26. He said that in domestic
violence cases, this provision would allow the prosecution to
use the original statements given to the police if they are
given within 24 hours of the alleged crime. It broadens the
timeframe in which something could be considered an "excited
utterance" for the purpose of prosecuting the crime of domestic
violence.
Number 0440
MR. NOVAK then returned to Sections 1-5, which, he said,
pertained to the defenses of self-defense, heat of passion, and
defense of others. These provisions of HB 244 seek to have
those defenses presented in the same fashion as the defenses of
duress and insanity, that being that it is up to the defendant
to come into court and present that evidence - he/she would have
the burden of proof. When asked how communities could be made
safer and less violent, he said, prosecutors offered the
language in Sections 1-5 as a solution.
MR. NOVAK offered two examples to illustrate the perceived
problem. He said that one was a 1996 case involving Vasco Vea
(ph), and that at trial it was determined that Mr. Vea was
involved in gang activities. Mr. Novak said that Mr. Vea had
said that he carried a gun because of the threat of rival gang
members. One night, Mr. Vea came across some rival gang members
and shot at them 15 times and killed somebody. Mr. Vea's
reasoning, Mr. Novak relayed, was that he didn't want his rivals
to get the drop on him and so he shot at them first. Mr. Novak
said that Mr. Vea was acquitted by a jury, which held that the
state had not disproved, beyond a reasonable doubt, that the
crime was committed in self-defense.
MR. NOVAK said the second example was another 1996 case, which,
he offered, was also gang-related, involving two teenagers
standing on opposite sides of the street who started shooting at
each other. Another teenager who happened to step out of a
building at that moment was shot and killed. Mr. Novak said
that [his office] couldn't do anything because both teens said
that the other teen started shooting first, and so nothing could
be proven. He relayed that it is very difficult for him to have
to sit down with families and tell them that his office cannot
do anything. He added, however, that his office does try to get
"drugs and guns cases" to the U.S. attorney's office.
MR. NOVAK opined that HB 244 only changes "the law of self-
defense" to the extent that if people arm themselves and go
looking for a fight - recklessly disregarding the fact that they
will be engaging in mortal combat - then they don't get to claim
self-defense. He offered that current law says that if someone
can walk away from a situation, he/she has a duty to do so; HB
244 is intended to clarify that duty. He assured the committee
that Sections 1-5 will not change a homeowner's right to defend
himself/herself from someone who breaks in. He said that these
provisions are not intended to make law enforcement's job
easier.
MR. NOVAK remarked that if people think that the outcome of the
two examples given is acceptable, and that the violence in those
situations is at an acceptable level, then there is no need to
change the law. However, if people think that that is not
acceptable and that it is too much violence, then the law does
need to be changed. He relayed that his office has determined
that from the mid-'90s to the present time, there have been 16
cases in which his office has been unable to effectively
intervene in situations which he opined subjected the community
to too much violence.
TAPE 03-39, SIDE A
Number 0001
MR. NOVAK said that he is tired of meeting with parents,
particularly in Mountain View [in Anchorage], who say that they
teach their children, "When the gunfire erupts, ... lay down on
the floor." He said that he didn't think that the people in any
neighborhood in Alaska should have to live like that. "I think
we need to change the law of self-defense; we've thought long
and hard, and we believe strongly that this would make our state
a better place to live.
MR. NOVAK, in response to questions, said that HB 244 does not
change the law with regard to people who are defending
themselves on their own property, which is defined as a building
or land. However, someone claiming self-defense cannot have
been the initial aggressor nor can the altercation be with a
family member. If it is against a family member, then HB 244
does change the law for that type of situation, and a claim of
self-defense would be an affirmative defense. In addition, if
someone with a concealed carry permit gets into an altercation,
then the claim of self-defense would be an affirmative defense
in that circumstance as well. He noted that the claim of self-
defense is an affirmative defense in a number of states, for
example, Washington and Ohio.
REPRESENTATIVE GRUENBERG noted that the person watching his
house in Mountain View reported a shootout in the neighborhood
last weekend.
MR. NOVAK mentioned that he has been told that eight people have
been shot in Anchorage during the last one or two weeks.
REPRESENTATIVE GARA noted that his neighborhood, Fairview, also
suffers from a high rate of crime. He said that the sentiment
of those active in the community of Fairview is that there
aren't enough police officers, and that the remedy for the high
rate of crime in that neighborhood is to bring in more police
officers to fight crime. He said he tends to agree with that
perspective, and is not so sure that tweaking rules that only
lawyers know about is going to have a huge impact on the rate of
crime.
Number 0394
REPRESENTATIVE GARA, with regard to changing the burden of proof
for self-defense, said:
It seems to me, if you hurt somebody because you're
engaging in self-defense, you haven't committed a
crime. Right? And if the prosecution wants to
prosecute you for conduct where you say that what you
did was in self-defense, I guess I don't have a
problem with making the prosecution prove all elements
of the crime beyond a reasonable doubt. And so what
is -- can you offer me again the logical basis for
saying that that aspect of the crime, the self-defense
part, shouldn't be proven beyond a reasonable doubt.
MR. NOVAK offered the following example in response:
There was a case where - it was at King Career Center,
and it was a number of years ago, now - Denarius
Lockhart was the defendant. And what it was is, they
were at school, and Denarius Lockhart testified at
trial, said, "I was afraid this guy was going to punch
me." And so what he did is, he went in and grabbed a
hammer and then beat this guy over the head and
severely damaged him for the rest of his life. ... And
under the current law, the jury said, "Not guilty -
the state didn't disprove self-defense beyond a
reasonable doubt."
I guess I look at that case and I say the law needs to
be changed. I think that's an unacceptably high level
of violence in our community. I guess if you or this
body disagrees with that, that that's acceptable
conduct, that ... that's okay, it shouldn't be a
crime, that's fine, but I mean ... that's what I guess
my answer is. This body decides what a crime is and
what a crime is not, and, under that scenario, I
believe that had the defense had the burden to show
that that action of him picking up the hammer and
beating him over the head had to be justified by a
preponderance of the evidence, I think the jury would
have convicted him.
I think that would have been justice in that case.
If, on those facts, you or somebody else believes that
that's okay, and the current law says that's okay, ...
we don't have to change it. It's just a matter of how
much violence is acceptable to this body, and, like I
said, this is the body that decides what the law is
and what are those elements that I have to prove.
Number 0602
REPRESENTATIVE GARA responded:
With all due respect, Mr. Novak, some of the facts in
that case were that the person who the defendant was
in fear of was a hockey player who had exhibited
violence towards that defendant in the past, and who
had called him "nigger" in the past. ... Weren't those
facts also - that the jury took into account in
saying, "Gosh, that was self-defense" - ... weren't
those important facts that maybe we should consider
before we change the law?
MR. NOVAK said that he did not take issue with the facts of the
case; instead, the issue is whether the legislature thinks that
that level of violence, in response to a racial slur or violence
in the past, is acceptable. He opined that it is not, that,
instead, such action should be considered criminal.
REPRESENTATIVE GARA replied:
We're not going to change the [Denarius] Lockhart
verdict. And, frankly, there were a lot of facts that
the jury considered that none of us have before us.
And - I'm not pointing (indisc. - coughing) to you - I
take it very seriously when people ask us to re-decide
cases when they only tell us part of the story. ... So
I think that there was a lot that went on in that case
that we don't have before us. I tend to agree with
you about the verdict, from what I know about the
case. But what we're doing is changing the law so we
could convict [Denarius] Lockhart on less than proof
beyond a reasonable doubt.
That's the part that concerns me. I mean, let's apply
it to a different person, because his case is never
coming before us again; it's somebody else's case that
maybe involves somebody much more sympathetic. ...
What is the logical rationale, apart from the fact
that we don't like violence - which none of us like
violence - apart from the fact that we don't like
violence, what is the rationale, the logical
rationale, behind making it so that we can convict
people in a case involving self-defense with less
evidence than proof beyond a reasonable doubt?
Number 0772
MR. NOVAK, in response, remarked that the legislature decides
what the elements of self-defense are and when it can be used.
For example, in Alaska, the self-defense law holds that if
someone is off his/her [property], he/she has a duty to retreat
[rather than harm someone]. He mentioned that "in the old
west," there was no duty to retreat; instead, someone could
"stand toe to toe" and shoot the other person. Therefore, he
concluded, the legislature can decide what self-defense is, when
it can be used, and who has to prove or disprove it.
REPRESENTATIVE GARA said he understands what the legislature's
duty is. However, he remarked, he is just trying to figure out
why the legislature should make the changes proposed by Sections
1-5 of HB 244, to enable prosecutors to convict somebody with
less proof than proof beyond a reasonable doubt.
MR. NOVAK replied that the law says prosecutors must prove
certain things beyond a reasonable doubt. As is now the case
with duress and insanity defenses, Sections 1-5 would require
that the defenses of self-defense, heat of passion, and defense
of others must be proven, by the person committing the act, by a
preponderance of the evidence.
CHAIR McGUIRE, after acknowledging that Sections 1-5 are
changing the burden of proof from beyond a reasonable doubt and
are requiring that the aforementioned defenses would be
affirmative defenses, predicted that with such a change, there
will be cases in which someone will be unable to prove an action
was justified. The question, she said, is why would the
legislature want to make such changes. On that point, she noted
that the Denarius Lockhart example does not provide as
compelling a reason to change the current law as do the gang-
related examples.
Number 1037
CHAIR McGUIRE posited that gang-related cases are really the
impetus for the proposed changes, and asked what other states
have done to solve the underlying problem of gang members arming
themselves, getting in fights, claiming self-defense, and
getting away with killing people. The point, she surmised, is
to stop that type of behavior, and pondered whether there is
another solution, other than what is proposed via Sections 1-5,
that would accomplish that.
MR. NOVAK said that the problem with drafting a law which only
applies to gangs is that there are people who say there aren't
any gangs in Alaska. In addition, defining what a gang is [and
determining who belongs to a gang] would prove difficult. He
noted that in the mid-'90s, the legislature enacted a law
addressing gangs; to date, however, the courts have not found
"that there is a gang" as defined by statute. He mentioned that
Alaska does not have the type of well-established, "rooted"
gangs that other jurisdictions have to deal with. He
elaborated:
We don't have territorial-based gangs that claim
"this" area. We don't have, in large part, racially
based gangs. And my effort as a prosecutor is to
avoid us ever going down the road to be in a position
where we're like Tacoma, Washington, or we're like ...
Los Angeles or [places] like that. And so I think it
would be very difficult to use [in Alaska] ... some of
the tools used in other jurisdictions now ....
MR. NOVAK said that the idea is to prevent the situation from
ever degrading to what it's become in some of the big cities in
the Lower 48. In response to a question, he said that according
to his knowledge, of the states that do make self-defense an
affirmative defense, it applies to all situations; there is no
singling out of situations related to gangs.
Number 1277
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
added that what other states do is a rather complex question
because it depends on the elements of homicide. For example,
some states still have the old element of homicide of "malice
aforethought," which is determined by what is present and what
is absent in the situation, and one of the things that must be
absent to find malice aforethought is self-defense. So, in
states where malice aforethought is an element of homicide, the
state has to disprove self-defense beyond a reasonable doubt.
In states with a more modern code, or with a code that doesn't
have malice aforethought as an element of homicide, such as
Alaska, it's possible to have self-defense as an affirmative
defense because the state's burden to prove, beyond a reasonable
doubt, every element of the offense charged is not being taken
away.
MS. CARPENETI went on to say:
I was reading a case ... from California, I think it's
the main case from California, [People v. Rios], where
their homicide statute ... requires the state to prove
malice aforethought, so that the state must disprove
self-defense beyond a reasonable doubt. But for other
offenses ..., for example, voluntary manslaughter and
others where that element is not a part of the state's
burden of proof beyond a reasonable doubt, then ...
they do treat it as [an] affirmative defense and they
require ... the defendant to carry the burden on that
particular issue.
In other states, for example, Ohio, North Carolina,
Virginia, Arizona -- there are other states that do
put the burden on the defendant to establish - the
burden of persuasion to establish - by a
preponderance, self-defense. But in those states -
and, actually, it's really interesting because a lot
[of] states call it an affirmative defense - but when
you look at the elements of their statute, it actually
isn't, at least for homicide. So it's not a simple
question. ... I think Ohio was the first state to make
it an affirmative defense; it has been upheld by the
United States Supreme Court against a challenge of due
process of law.
MS. CARPENETI, in response to the same question asked of Mr.
Novak, also said that states that do make self-defense an
affirmative defense do not make a distinction for gang-related
circumstances.
Number 1434
REPRESENTATIVE GARA agreed that they did not want someone who is
looking for a fight to walk down the street, start a fight with
another gang, and then claim self-defense. To be able to do so
seems ludicrous, he added. He pondered, however, whether such
gang-related self-defense claims really come up very often.
Isn't it correct that if someone instigates the violence, then
that person cannot claim self-defense? Thus, if a gang member
is out looking for a fight, and then says the other guy shot
first and so he/she shot second, isn't that person prohibited
from using the claim of self-defense because he/she put
himself/herself in the situation of essentially causing the
violence to start? Does this gang-related self-defense issue
ever really arise in the real world?
MR. NOVAK said it does arise. He offered to use a 2001 case as
an example.
REPRESENTATIVE GARA asked Mr. Novak to instead address the basic
principle of law. He elaborated, "I have in the ... far
recesses of my mind, that if you have somehow become responsible
for the violence that you then claim self-defense for, you're
not (indisc.) ..."
CHAIR McGUIRE interjected to say: "And even at any point, too.
... Even if you aren't the initial aggressor, but if at some
point during the fight, the person backs off and says, 'Okay,'
and then you become the aggressor ..., you can't then later
claim [self-defense]. Right?"
REPRESENTATIVE GARA asked, "What's the principle of law?"
MR. NOVAK said that a person can still make the claim, and then
it would be up to him, as the prosecutor in the case, to
disprove it beyond a reasonable doubt. He pointed out that the
problem lies in him being able to do that, and indicated that
that is why he'd offered the previous examples, to illustrate
that prosecutors have not been able to disprove self-defense
beyond a reasonable doubt. He mentioned an August 17, 2001,
case in which two people agreed to go arm themselves, meet
later, and have a shootout; in that case, the person who was
more familiar with his firearm won the gun battle.
MR. NOVAK insisted that such cases happen with regularity, cases
in which the prosecution is unable to disprove the claim of
self-defense beyond a reasonable doubt. "[In] those cases, we
can't convince 12 people beyond a reasonable doubt that self-
defense doesn't apply," he added. He acknowledged, however,
that in some cases, the prosecutors try to disprove self-defense
and lose, but in other cases, they don't even try because they
believe that they won't be able to prove to 12 people that self-
defense doesn't apply.
Number 1635
REPRESENTATIVE GARA, in response, indicated that he still had a
question. He said:
It's still the same question because I'm not sure that
I understand the answer. So please just humor me and
just pay attention to the strict aspects of the
question that I'm asking. If you have a case where
you have provoked a fight - you're a gang member, you
show up with a bunch of guns - and then the
prosecution shows that, beyond a reasonable doubt, you
provoked this fight that then ensued. Is it or is it
not true that once you've shown that this guy has
provoked the fight, beyond a reasonable doubt, he
can't use the self-defense defense? Isn't that true?
MR. NOVAK said, "Right; self-defense is at issue and [if] I, on
those facts, if I prove what you've said beyond a reasonable
doubt, the jury should convict on those facts."
REPRESENTATIVE GARA then continued:
Okay. So you've proven that I instigated this ... by
showing up with all this armor. I've instigated it;
my lawyer can't stand up and say, "Yeah, he instigated
it, but then this thing, this circle of violence
started, and then he shot somebody in self-defense."
That's just not available as a defense, right? If I
instigated it, if it's clear that I instigated it?
MR. NOVAK replied:
If I prove it beyond a reasonable doubt. ... [But]
doing what you've assumed are the facts, being able to
prove that, is very difficult. But ... because of the
fact of, many times, both sides in this shootout
aren't available as witnesses because ... they're not
wanting to come into court and testify about this
stuff. I mean, one, they probably got Fifth Amendment
privileges, they're dealing dope, and all this kind of
stuff.
Number 1713
And, frankly, ... if these guys shoot each other, I
think that's one issue. It's a greater concern to me
when these bullets are flying and they're going into
people's houses and into cars, and little kids are ...
being taught to lay down on the floor. And so, ... I
think you can -- I think it's a different issue on --
people can have different views on whether it's a loss
to our community that these guys shoot each other.
But ... people shouldn't have to live with shootouts
... in their community; they should be able to walk
down the street of Fairview or Mountain View or
anywhere else and not have this.
And the challenge is, how do we try to lessen this
happening in our community. Rather than looking at
the analysis being, "Can we win this one ... case and
trial," on the narrow view, I think it's a bigger
question of, "How can we try to make our community
more peaceful. And ... what this does is it restricts
or limits the availability of self-defense. I mean
that's what this is about: ... making it more
difficult for people to claim or prevail on self-
defense claims. ... I'm not here to say anything else.
... This makes it more difficult for somebody to
benefit from the law of self-defense.
The committee took an at-ease from 3:20 p.m. to 3:37 p.m.
REPRESENTATIVE OGG pointed out that some cases just make bad
law, adding that sometimes, when one reacts to certain cases or
certain incidents and then tries to write a law, the law doesn't
necessarily solve the problem. He said that in listening to
some of the examples given, it does appear that current law is
not sufficient, and that "Hamilton and Burr" could live in
Alaska, either as individuals or as groups who want to stand
across the street from each other and have a shootout. He said
that in determining whether the proposed language will really
accomplish the goal of making communities safer, it would be
helpful to him if DOL representatives could provide statistics
regarding whether having self-defense be an affirmative defense
has really resulted in fewer cases of the type used as examples.
Number 1872
REPRESENTATIVE OGG said, "Maybe Alaska does need something like
a 'dueling law,' or maybe some of these other places have
dueling laws that make that [activity] against the law." He
suggested that perhaps approaching the problem in a way other
than what is proposed in HB 244 would actually solve the problem
in a better fashion. He also said it would be helpful to him if
statistics could be provided that would show how many such cases
occur in towns and areas outside of Anchorage. Is this an
Alaskan problem or just a problem in some Anchorage
neighborhoods, he asked. He pondered whether, wouldn't it be
possible, and a bit more judicious, to "carve out" only what's
needed to solve the problem, rather than using the blanket
approach to change a whole spectrum of rights. He said he would
like to be provided with the information he's requested by the
time the committee next takes up this bill.
REPRESENTATIVE GRUENBERG, on the issue of making neighborhoods
more peaceful, relayed that his neighborhood's community council
and law enforcement officers have said that what they would like
the most would be to have more police officers on the beat; a
change in the law is not necessarily going to do as much good as
having more police officers in the neighborhood.
MR. NOVAK acknowledged that having more police would be a good
thing and that police can do a lot. He pointed out, however,
that if the people arrested aren't successfully prosecuted, they
learn that they can get away with their actions and be back out
on the streets shortly after their arrest.
REPRESENTATIVE GRUENBERG, on a different issue, mentioned that a
friend of his who sits on the bench has relayed to him that
there appears to be a conflict between two different statutes
pertaining to the refusal to take a Breathalyzer test.
CHAIR McGUIRE asked Mr. Novak to research whether that apparent
conflict should be addressed in either this bill or in some
other legislation. Chair McGuire then indicated that Linda
Wilson, Deputy Director, Public Defender Agency (PDA), would
provide testimony at the next hearing on HB 244.
Number 2176
MATTHEW C. LEVEQUE, Lieutenant, Field Operations Coordinator,
Division of Alaska State Troopers, Department of Public Safety
(DPS), said simply that the DPS fully supports HB 244.
The committee took an at-ease from 3:43 p.m. to 3:44 p.m.
Number 2275
GLENN KLINKHART, Detective, Anchorage Police Department (APD),
Municipality of Anchorage (MOA), noted that in March, there was
a seven-day period in which eight people suffered gunshot
wounds, although he acknowledged that not all those incidents
were gang-related. Some of those incidents were drug related or
involved circumstances in which people were engaging in other
crimes. He mentioned a case in which two groups of people,
neither of which specifically claimed any gang affiliation,
drove around at 3 a.m. shooting at each other from rental cars.
In that case, it came down to who started shooting first, but no
one was willing to help the police solve the crime. What the
APD is now faced with, he remarked, is that "these guys"
immediately start claiming self-defense and, oftentimes, the APD
is unable to prove who shot first.
MR. KLINKHART pointed out, however, that in terms of what's
important to the community, who shot first doesn't matter as
much as why these people are roaming around launching rounds at
each other. Regardless of the reason, though, the people
involved in these shootouts are immediately claiming self-
defense, he reiterated, adding that this is frustrating because
the perpetrators are able to claim self-defense and get away
with their actions.
MR. KLINKHART said he thinks the changes proposed in HB 244 are
something to be considered and something to be commended.
TAPE 03-39, SIDE B
Number 2372
REPRESENTATIVE GARA remarked that although they are focusing
attention on a real problem in the community, the question
before the committee is whether the solution proposed by
Sections 1-5 of HB 244 is the right solution or whether
something else is. He asked whether the people being arrested
in these incidents are also being found with drug paraphernalia
or evidence of other crimes. Because if such is the case, then
even though they might not be successfully prosecuted for
intending to hurt somebody, they could, for example, be
successfully prosecuted on a drug charge and weapon's
aggravator. Are there additional crimes associated with these
incidences, or are they just shooting at each other?
MR. KLINKHART acknowledged that the situations vary. He assured
the committee that all the circumstances involved in these
incidences are investigated and presented to the courts, but
oftentimes that evidence is not enough. He mentioned the "J.C.
Penny homicide" and said that that case has ended up going into
the federal system. He said that it is hard to have to explain
to family members of victims that the charges in these types of
cases may be dropped.
REPRESENTATIVE GARA asked:
If somebody shoots a gun out of their car, you find
out they have ... commercially relevant amounts of
drugs on them, so that you can prove that ... they had
the intent to sell, and then they had the weapon on
them, isn't that a crime? Isn't that a felony right
there, having commercially saleable quantities of
drugs with a weapon on you? And then the fact that
whether or not they intended to kill somebody, that's
a whole separate issue, but don't you still have them
on that core crime?
MR. KLINKHART said yes, [that synopsis] is right on the money.
In fact, when those elements are present, there are federal
statutes that apply, and federal agencies like the Federal
Bureau of Investigation (FBI) and the Bureau of Alcohol, Tobacco
and Firearms (ATF) have special programs in which those cases
can be put on a fast track in the federal system.
CHAIR McGUIRE said she would like to know how many cases are
really gang-related as opposed to just instances of Alaskans'
protecting themselves.
Number 2199
MR. KLINKHART said that although instances of people really
acting in self-defense do happen, they are rare. He added that
there are laws on the books to protect those individuals, and
that oftentimes the APD never really becomes involved in those
cases. With regard to how many case are gang-related, he echoed
Mr. Novak in saying that the problem with making that kind of
determination is that it is still not clear how to define what a
gang is, especially in Alaska, because gangs in Alaska don't
have the same characteristics as gangs in the Lower 48. Often,
it is easier to consider such groupings in Alaska as criminal
enterprises rather than gangs because it is only by luck that
someone will admit to belonging to an organized gang.
CHAIR McGUIRE remarked that defining what a gang is would be one
way of getting at the problem, and indicated that that would be
preferable to requiring an affirmative defense from people who
are legitimately acting in self-defense regardless of whether
they are on their own property or just out minding their own
business. She mentioned that people acquire concealed-weapon
permits for a variety of reasons, one of which is self-defense,
and it would be reasonable to consider that such a person might
really have to use that weapon in self-defense. She indicated
agreement with Representative Ogg with regard to the danger of
making bad law based solely on a few egregious-sounding cases.
MR. KLINKHART remarked that sometimes police officers are
involved in cases in which they have to defend themselves, and
in those cases, the details are closely scrutinized. He then
provided details of some of the incidents that occurred in March
and some the problems the APD is facing with regard to charging
people in those cases.
CHAIR McGUIRE, referring to one of those examples, opined that
when someone drives by and shoots into another person's vehicle,
that person should have the right to defend himself/herself.
Why create a higher threshold for the person just minding
his/her own business?
Number 1910
MR. KLINKHART countered by saying that that's just the problem:
Is that person really minding his/her own business? As an
investigator, he explained, it is part of his job to determine
whether people are really minding their own business and are
just innocent bystanders, or whether they, too, are engaging in
some sort of criminal activity. Why should a person thus
engaged be able to claim self-defense?
CHAIR McGUIRE remarked that Mr. Klinkhart has raised good
points, and that she appreciated his comments. She said that
the committee would continue to look at this issue.
REPRESENTATIVE GARA said:
If the evidence coming to us is really evidence of ...
gang- and drug-related crimes, ... I'd be curious to
see whether other states have approached this issue
more narrowly by trying to enact statutes that relate
to gang- and drug-related crimes. And so, to the
extent that people have answers on that when we meet
again, I'd be interested in hearing them.
CHAIR McGUIRE mentioned that between now and the time HB 244 is
next heard, committee staff and DOL representatives will be
working together to gather the information requested by members.
[HB 244 was held over.]
ADJOURNMENT
Number 1806
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 4:04 p.m.
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