Legislature(2003 - 2004)
04/24/2003 04:07 PM Senate JUD
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* first hearing in first committee of referral
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 24, 2003
4:07 p.m.
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Johnny Ellis
Senator Hollis French
MEMBERS ABSENT
Senator Gene Therriault
COMMITTEE CALENDAR
SENATE BILL NO. 170
"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
SB 170 - See Judiciary minutes dated 4/15/03.
WITNESS REGISTER
Mr. John Novak, Chief Assistant District Attorney
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Supported SB 170.
Mr. Jim McComas, Criminal Defense Attorney
1227 N. 9th, Suite 201
Anchorage, AK 99501
POSITION STATEMENT: Opposed SB 170.
Ms. Meg Simonian
14801 Northfield
Anchorage, AK 99501
POSITION STATEMENT: Opposed SB 170.
Ms. Linda Wilson, Deputy Director
Alaska Public Defender Agency
2207 Belair Dr.
Anchorage, AK 99501
POSITION STATEMENT: Opposed SB 170.
Ms. Lucille Frey
Mat-Su Property Owners
HC02, Box 7342
Palmer, AK 99645
POSITION STATEMENT: Opposed SB 170.
Mr. Noel Woods
Matanuska Valley Sportsmen
PO Box 827
Palmer, AK 99645
POSITION STATEMENT: Opposed SB 170.
Mr. Vern Rupright
866 W. Spruce
Wasilla, AK 99654
POSITION STATEMENT: Opposed SB 170.
Ms. Barbara Beckman &
Mr. Eric Beckman
3321 N. Wyoming Dr.
Wasilla, AK 99654
POSITION STATEMENT: Opposed SB 170.
Ms. Carmen Gutierrez, Atty.
No address provided
POSITION STATEMENT: Opposed SB 170.
ACTION NARRATIVE
TAPE 03-28, SIDE A
SB 170-CRIMINAL LAW/SENTENCING/ PROBATION/PAROLE
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 4:07 p.m. Present were Senators
French, Ellis, Ogan and Chair Seekins. He announced SB 170 to be
up for consideration.
MR. NOVAK, Chief Assistant District Attorney, said he would talk
about the portion of SB 170 that wasn't covered on April 15, but
is more controversial. He said this legislation is about trying
to have people resolve situations of conflict in a peaceful
manner rather than resorting to violence. He stressed this is
not a draconian change in the law of self-defense. With current
law, the person accused of a crime has the burden of coming
forward with some evidence of self-defense. It is less of a
burden than under the proposed legislation. He read a quote from
the Alaska Supreme Court describing the law:
The law of self-defense is designed to afford
protection to one who is beset by an aggressor and not
confronted by a necessity of his own making. It must
not be so perverted as to justify a homicide, which
occurs in the course of a dispute, provoked by the
defendant at the time when he knows or ought to
reasonably know the encounter will result in mortal
combat.
In large part, the comments he has received are about the
concept of mortal combat and whether that is changed. Part of
the legislation is codification into statute what the Alaska
Supreme Court has already said the law of self-defense is.
People should be held accountable for their violence and he had
a list of 16 cases that, in his view, exemplified the need to
change the law of self-defense. Two cases describe his
frustration in meeting with family members and victims and
saying he can't do anything. One case happened in July 1996 and
involved Bosco Villa and gang activities. On this occasion Mr.
Villa was carrying a gun because he knew that the gang members
that were harassing him carried guns. Mr. Novak said Mr. Villa
was in a car, and saw the gang members in another car and
immediately started shooting. He shot into the car 15 times and
killed one person. The reason he did that is to be the one that
shot first. Under the law as it is now, the jury decided they
could not hold him accountable and acquitted him.
A second case also demonstrates the problem. In August 1995,
there was another gang shootout. Rival gangs on opposite sides
of the street were shooting back and forth. A juvenile, Juan
Ross just happened to be there and was killed by a shotgun slug.
He wasn't able to charge anybody in that case, because they
couldn't prove who was shooting in self-defense and who started
the situation.
If people think it's okay that no one has to be accountable in
those kinds of cases, they don't need to change the law, but if
they think there is too much violence, then the law needs to be
changed to hold people accountable.
SENATOR OGAN said in the first case, it seems to him that there
was a flawed jury more than a flawed law and in the second case,
even if they had the self-defense law, they still couldn't tell
who started shooting first.
MR. NOVAK replied that situations like the Bosco Villa case are
not isolated. When the district attorney selects the best cases
to try under this law, they lose. In the second instance, they
were able to identify the shooters and it came down to Team A
said the other guys started shooting first and Team B said Team
A started shooting first. In these cases, the participants
frequently have to be hunted down. These kinds of cases are
fundamentally different than situations where someone breaks
into a homeowner's house and the homeowner shoots the person to
defend himself and his family. In that instance, the homeowner
calls the police, they talk to the police, and the investigation
is wrapped up quickly and no one is charged. Those are not the
cases they are trying to get to.
SENATOR OGAN said he doesn't think it's okay for innocent people
to die, but he has a serious concern over compromising what he
believes is an inalienable right to defend oneself. He wants to
look at other ways of achieving the goal without compromising
the homeowner and suggested tying it to committing a felony, a
gang activity or something like that.
CHAIR SEEKINS asked Mr. Novak to define the difference between a
defense and an affirmative defense.
MR. NOVAK explained that under current law a defendant must
introduce some evidence of self-defense and then he, as a
prosecutor, has to prove beyond a reasonable doubt that the
defense is not valid.
An affirmative defense is an excuse for the conduct. The accused
needs to present evidence and prove it by a preponderance of the
evidence. For instance, if he commits a homicide and claims
insanity, then he would have to come in with evidence and prove
it more likely than not that he was insane at the time. If he
wants to excuse his committing a homicide because he was under
duress, he might say someone threatened to kill his child if he
didn't kill this other person. He would have to prove that with
a preponderance of the evidence.
CHAIR SEEKINS said it looked like it was guilty until proven
innocent instead of the other way around.
MR. NOVAK responded that as a prosecutor, he would still have to
prove that the person intended to kill a human being. It would
be up to the accused to introduce evidence of the excuse.
CHAIR SEEKINS said in the previously mentioned case, it was
assumed that the gang members committed murder and they would
have to prove that they acted in self-defense versus the state
having to prove that they didn't act in self-defense.
MR. NOVAK agreed that he would have to prove that person
recklessly caused the death of Juan Ross. If he did that, the
defense would have to introduce evidence proving it was self
defense.
CHAIR SEEKINS said he believes there is a huge difference
between this bill and existing law if you're being accused.
MR. NOVAK said he was anxious to clarify his comments for the
committee and that the burden is currently is on the defense to
prove some evidence of self-defense; it's not by a preponderance
of evidence. Generally, the court will allow evidence of self-
defense, but once it becomes an issue in a trial, it is often
used to introduce all kinds of bad evidence about the victim.
Often the jury sees the victim as a person not worthy of
protection in the first place, and perhaps they are not worse
off not having him around. He said, "That's really the problem."
He said it really would change the law, but these things go on
and innocent people get killed. He submitted that this
legislation tries to limit or give greater structure to what
happens at trial.
SENATOR ELLIS asked him to provide the committee with the names
and docket numbers for the other cases.
MR. NOVAK said he would be happy to do that and added that all
the cases aren't charged.
SENATOR FRENCH remarked that he has lost self-defense cases and
knows how tough it can be to talk to victims and victims'
families about what happened. He asked what happens in the
shootout cases when it can't proved beyond a reasonable doubt
that someone wasn't acting in self-defense.
MR. NOVAK replied that when these things happen, if they can't
proceed on a homicide, they look at other types of offenses -
like whether drugs and guns are involved. They try to prosecute
people even if they can't hold them responsible; they might
become targets for other investigations.
SENATOR FRENCH asked about section 4 dealing with bringing a gun
to a deadly encounter and whether it is right to assume that
this is a codification of the Bangs case where the guy left the
bar, came back with a gun, conducted a shooting and the Supreme
Court said that under those circumstances it wasn't self-
defense.
MR. NOVAK replied yes.
SENATOR FRENCH said he wasn't sure how this addresses the mutual
shootout at a stoplight where there are two armed camps in two
armed cars looking at each other and they start shooting. He
asked what "brought a deadly weapon to an encounter" means.
MR. NOVAK replied that idea is about someone arming himself and
going to a specific confrontation.
SENATOR FRENCH asked him about the shootout at a stoplight.
MR. NOVAK replied in that situation, those people would have the
affirmative defense and would have to prove with a preponderance
of evidence that they didn't go to this encounter with reckless
disregard.
4:40 p.m.
CHAIR SEEKINS asked what happens if he, as a law-abiding
citizen, has his handgun in the car with him and he comes to the
stoplight and someone shoots at him and he shoots back. Does he
have to prove that he didn't go to that encounter?
MR. NOVAK replied under that scenario, he didn't go to the
encounter. The encounter came to him. This is about someone
looking for a fight.
CHAIR SEEKINS asked about a situation where a woman has a gun
permit because her estranged husband is threatening her. He
questioned whether it would be assumed that she knew the
encounter could result in deadly combat.
MR. NOVAK responded that he wasn't trying to duck the question,
but the short answer is that she would never be in court. The
police and prosecutor wouldn't charge her - assuming that he
came to her and she had to act in self-defense.
SENATOR FRENCH asked him to explain the exceptions in self-
defense on your own property versus domestic violence that
happens on your own property, which he believes to be an
affirmative defense.
MR. NOVAK replied that there are two exceptions to the rule for
an affirmative defense. The first is if a peace officer is
acting in his or her employment; the other exception, which is
in current law, is if the shooting is on the person's premises
and the shooter is not the initial aggressor and is not another
household member. If someone breaks into your house and you
shoot that person, you would use the traditional defense. The
prosecution would have to prove that beyond a reasonable doubt
and it would not be an affirmative defense.
SENATOR OGAN said when he had a union job he was threatened and
was even in a building that was shot at. He and his employees
felt threatened and everyone carried guns to work. He said he is
struggling with the idea that under this statute it could be
construed that he took a gun to a gunfight. To be comfortable
with this, he would have to tie it to some other criminal
behavior as an aggravator.
MR. NOVAK responded that he understands that and is trying to
get at that, too. "All of us want to protect people's legitimate
use of self-defense and yet do something about the level of
violence."
He said that even under current law, if you can walk away from a
situation, you have a duty to do that. Tying these actions to
gangs has been discussed, but that is extremely difficult to do
because nobody agrees on the definition of a gang. He has
prosecuted "gangs" for seven years in Anchorage and has yet to
have a judge find that Anchorage has a gang. He suggested trying
to tie it to drugs and said he welcomed ideas to address those
concerns.
MR. JIM McCOMAS, Anchorage Criminal Defense Attorney, said he
had practiced for 24 years in three different jurisdictions. He
started trying cases in Alaska in 1986. He is also the father of
two boys and knows the situations kids can get themselves into
these days. "My message to you is this: There is no need at all
for the self-defense portion of this legislation."
He gave the committee a handout and referred to page 2 listing
the exceptions that further limit the claim of self-defense and
said the question of needing a new section for duals is not
needed.
· Exception 1) takes care of it saying, "The force involved
was the product of mutual combat not authorized by law....
You are excluded from self-defense under current law, if
you engage in mutual combat."
MR. McCOMAS exclaimed that the prosecution is citing cases that
they have lost and refusing to grant the legitimacy of what the
jury decided.
TAPE 03-28, SIDE B
4:55 p.m.
He said that juries really make a concerted effort to find out
what the facts show and the two cars at the stoplight are
already excluded.
EXCEPTION 2) the accused provoked the other person's conduct
with the intent to cause physical injury to them. This takes
care of someone who goes looking for a fight.
He commented that Mr. Novak would be satisfied if everyone who
went to trial was acquitted claiming self-defense.
EXCEPTION 3) the accused was the initial aggressor. This would
cover Bosco Villa.
So, what's the problem? The problem is that facts in a
courtroom are contested otherwise there's a plea. When
the facts are contested, the prosecutor has only told
you his side of the story. There was another side to
the story...that led a rational and dedicated jury to
entertain reasonable doubts about her client's guilt
based on self-defense. It's not as easy as saying,
'Well, here's the problem. We have people bringing
guns and initiating violence.'
Under the rule, they wouldn't get a self-defense
instruction if everyone agreed. On the other hand, if
there was some evidence of each of the four elements
of self-defense, which I'll talk about in a minute,
the defendant doesn't have to just prove a little bit
of self-defense. He has to satisfy each and every
element by some evidence and then the traditional rule
you've talked about where the burden is on the
prosecution kicks in.
EXECPTION 4) you do have a duty to retreat unless you're in your
own home. He was astonished to hear that no one in their own
home got prosecuted and cited a case he defended in Kenai a few
years ago where a young man was asleep in his own home when
criminals tried to break in to his house, breaking through the
glass in his wooden door. He fired in self-defense after seeing
a gun in the hand of one. The jury acquitted him of murder one,
murder two and manslaughter. Every grade of homicide was brought
by the prosecution. When the judge asked the jurors how they
felt about the verdict when he polled them, some stood and said
yes, not guilty. An acquittal doesn't mean there has been an
injustice. It means that the state's story has been disbelieved.
That's what we want jurors to be able to do when the facts don't
support them.
Another handout Mr. McComas had relates to elements to self-
defense with the use of deadly force, but this change would
affect the rules to regular self-defense, as well.
ELEMENT 1) the defendant has to actually believe that his life
is in danger or be subject to certain specified felonies like
rape or kidnapping and there has to be evidence in the record
from which the court can infer that. If there is no evidence,
there is no self-defense instruction. With some evidence, there
is a dispute between the parties and then there is a self-
defense instruction and burden on the state, because some
evidence was presented.
ELEMENT 2) it doesn't matter if the defendant actually believed,
if his belief was unreasonable - an important point. Reasonable
is what self-defense law is all about. It makes sure that
objectively unreasonable perceptions of danger don't get
justified. On the other hand, if a battered woman is carrying a
weapon, because her husband has threatened her life so many
times, she doesn't expect to encounter him, but she happens to.
He goes into his pocket like he's pulling his gun and she knows
he has a gun and she pulls out her gun and fires. Then, it's
going to be for the jury to decide whether or not that was
reasonable for her to take that action.
MR. McCOMAS pointed out an anomaly with the battered woman
situation saying if the battered woman is in her home with a
weapon where she would supposedly be under the exception, but
the person who comes into the home is the ex-husband, he is a
household member under the statutory definition in the new bill.
She would have to prove an affirmative defense that she acted in
self-defense.
ELEMENT 3) the necessity or threat that is perceived has to be
imminent. It's not enough to know that tomorrow or the next day,
that person will come to get you. If there's no evidence that a
threat was imminent, there is no self-defense instruction. If
there's contested evidence, the instructions are given and the
jury decides.
ELEMENT 4) the accused used only necessary force. A lot of self-
defense cases come down to excessive force. If you get hit in
the face with a hand and take out a gun and shoot the person
nine times, that is excessive force.
He reiterated that even the examples raised by the prosecution
are adequately dealt with in existing law. The only thing they
don't like is the result of 10 out of 16 of the cases. In the
example they gave of two groups of armed people shooting at each
other and they couldn't prosecute anyone for homicide, he
couldn't understand why they didn't indict both groups on a
mutual combat theory. Then it doesn't matter who shot first.
MR. McCOMAS concluded saying that self-defense is probably the
most basic conscious action a person can take. "Any form of life
tries to protect itself."
He said SB 170 would be a radical change. "It changes the burden
of proof and that could make a substantial difference...."
Senator Ellis's point about looking at the 16 cases Is good. He
cited an incident that happened in Anchorage that resulted in an
acquittal and juror #4 called him afterwards and said, "Thank
you very much for the work you did in Mr. Lockhart's case. You
have restored my faith in the justice system."
Jurors are the ones that we need to make decisions
about when the use of force is justified or not and it
wouldn't be fair and it wouldn't be right to shift the
burden that's worked so well for so long.
SENATOR OGAN said he is troubled with Senator French's statement
that a prosecutor seeks justice and a defender wants to get
their clients off. He feels that we are not like Mexico where
you either get off or pay the bribe. We have a Bill of Rights
and he feels that justice is being fair. The defense plays an
important role in making sure that people's due process rights
are intact.
5:10 p.m.
SENATOR FRENCH explained what he means is that the two roles are
not equal. There is frequently a mismatch in the missions of the
two individuals. "The prosecutor is seeking justice and the
defense has an unswerving obligation to that client. If that
produces an acquittal, so be it - from the perspective of the
defense."
MR. McCOMAS responded that the basic thing they are talking
about is:
...The state has all the resource advantages - they
get to investigate the case before there's ever a
defense lawyer; they've got the grand jury they can
use. That's why they have the burden of proof in our
traditional system. What the defendant gets once he's
hauled into court and accused is he gets procedural
rights. One of those is that he is presumed innocent
and another is that he can hold them to their burden
of proof.
CHAIR SEEKINS thanked him for his testimony.
MS. MEG SIMONIAN said she used to be a public defender and now
she does civil work. She came here because the provisions in
this bill are very disturbing to anyone who cares about our
constitution and the rights that go along with being charged
with a criminal offense in this state. She said the self-defense
issues were covered very well in previous testimony and she
wanted to cover other areas that are equally concerning.
Section 6 talks about changing the district court rule that
allows a family member to contact an attorney and have that
attorney come to the aid of someone who is being interrogated by
the police. She pointed out that it is very rare that an
attorney barges in on a police questioning. The reason is that
public defenders that handle most cases in our criminal justice
system can't do that, because you have to be appointed by the
court before you can insert yourself into any sort of
investigation. Where it could logically happen is with a
juvenile defendant or someone who is mentally ill or
incapacitated in some other way and who has contacted their
family asking them what they should do and the family gets a
lawyer. This change would prohibit the lawyer from talking to
that incapacitated person, which is problematic on lots of
levels. While she hadn't had a chance to research the example
Mr. Novak used, she thought it was dangerous to start
legislating based on anecdotes, especially when they are talking
about the right to counsel and the waiver of your Miranda
rights, especially when dealing with young people who are
charged with crimes.
It is also very dangerous to hope that the police department or
the prosecutors involved in those sorts of situations are going
to have the presence of mind to put aside their roles to get to
the bottom of the matter, although they are trying to do that.
"It's a change that's not necessary and it could have some
pretty significant ramifications in situations that I don't
think anybody would want them."
Section 15 talks about habitual offenders getting lighter
sentences by challenging old convictions. In the Governor's
transmittal letter, it appears they are suggesting that what is
happening at sentencing hearings is that prosecutors are having
the onerous burden of going back and finding out these prior
convictions are really valid and that people are getting lighter
sentences because of it, which she thought was a stretch of what
was really going on.
In most cases like this, there is an out-of-state conviction and
the question is whether it is going to trigger a presumptive
sentence. It's often figured out in the course of negotiating
the sentence, because if the statute is not a felony in Alaska,
it can't be considered that for the purposes of sentencing here.
That was the will of the legislature.
Section 15 would take away the ability to make sure that that
would be a felony in Alaska and the only things that can be
attacked are whether or not you were denied the right to counsel
or whether or not you had the right to a jury trial. That would,
in some ways, be subverting the intent of the Legislature,
because the purpose of the presumptive sentencing is to make
sure that people who are prior felons are treated more harshly
under our statutory scheme.
SENATOR FRENCH said he agrees with her, but he doesn't look at
this bill as taking away the judge's fact-finding role of
deciding whether or not that conduct is an Alaskan felony. He
believes it is a way of reducing the haggling over whether the
guy got due process when he was convicted somewhere else.
MS. SIMONIAN replied it is an open question.
She said that Section 7 overrules the Ostland case (as per the
transmittal letter). She encouraged the committee to read the
case and said that she is also a member of the Criminal Pattern
and Jury Instruction Committee, which is made up of judges,
prosecutors and defense attorneys from across the state. They
have been dealing with the Ostland decision, which says unless
the prior conviction is relevant for the case at hand you should
go to a bifurcated trial. However, a bifurcated trial does not
mean two trials (a comment by Mr. Novak); it means that the
prosecutor presents the evidence, the jury makes a decision
based on that evidence and they come back in. Then the judge
reads an instruction about the prior crime - the element that
makes it a felony.
The Ostland decision is very good in pointing out that
we don't want our juries making decisions based on
what someone has done bad in the past if it's not
relevant to the conduct at hand.
This case is not a procedural nightmare and she knows that from
her participation on the Jury Instructions Committee. Tomorrow
they will discuss a simple instruction that will be used in the
DWI cases, theft cases and felony in-possession cases to deal
with the bifurcation issue without any second trial.
SENATOR OGAN asked her to provide them a copy of the decision.
MS. SIMONIAN said she would do that and continued with section
8-11 dealing with a change in granting immunity.
I understand prosecutors' frustration when they have a
case that's going to trial and they have a key witness
who comes in and says, 'I'm asserting my Fifth
Amendment privilege.' The problem is that it's
unconstitutional to say that you have to tell a
prosecutor what your Fifth Amendment privilege is.
That was decided in Gonzales. Our supreme court said
that under the Alaska Constitution, you cannot make
somebody testify or even talk about crimes that they
have not been prosecuted for.
The federal system has no such provision that will
allow a prosecutor to come into a room and listen to a
witness or a witness's attorney to talk about criminal
exposure - telling them what they have done wrong,
that they are afraid they could be prosecuted for.
SENATOR OGAN asked if they couldn't use that as the evidence.
MS. SIMONIAN replied that that is an interesting question. It
has been said that they can't use what that attorney said to
them, but they can take what was said to them, investigate it
through an independent source and develop a case in a way that
is based on what was said in that room against that person.
That is what the Gonzales decision talks about - it's
any link in the chain. That's our term of art that we
talk about.... You just can't legislate away that
constitutional right to not have to incriminate
yourself, whether through your attorney or through
anybody.... As a defense attorney, looking at that
decision, I would not participate in that hearing. I
would not allow my client to participate in that
hearing. I would just say he or she is asserting his
Fifth Amendment privilege, because once that cat's out
of the bag, there's no getting it back.
She explained that the federal system deals with granting
immunity all the time and they don't have a provision that
allows the U.S. Attorney to come into a hearing if someone is
revealing potential criminal exposure based on things they have
done in the past.
5:25 p.m.
SENATOR OGAN asked if in a closed door meeting with the judge,
an astute defense attorney could, have his client admit to a
crime so that he couldn't be prosecuted for it.
MS. SIMONIAN replied that she doesn't believe that is how it
works. That would be an ineffective defense attorney and that
provision means they can't use the attorney's statement as
evidence against the person. Evidence that has been established
independent of that statement could be used.
SENATOR OGAN asked if an attorney could be disbarred for getting
that information in a closed door session and then going to his
buddy, the police chief or whoever and telling them what he
heard.
MS. SIMONIAN replied there are some potential issues there, but
she believes the change to the law is that what is said in that
room can't be used against the witness. It doesn't mean that it
can't be developed and charged independently.
SENATOR OGAN asked if disciplinary action could be taken if the
prosecutor leaked that information to someone who would develop
the case.
MS. SIMONIAN replied it isn't black and white ethically, because
of the way the statute reads.
Section 21 deals with the defense causing delays by giving late
notice of defenses. The rule currently requires defendants to
give notice of an affirmative defense 10 days before the trial
begins. The change would make it 30 days, which she doesn't have
a problem with. However, the problem is that the language
precludes a defense if it is given less than seven days before
trial.
That has constitutional problems in and of itself
because it's taking away from a defendant a right to a
defense presumably because their attorney didn't get
it together in enough time to give notice of the
defense on time. When you look at court rules, there's
no other absolute preclusion rule. When you deal with
a discovery violation...it's often perpetrated by the
prosecutors. Your remedy is usually a continuance and
the judge gets to decide if this behavior is so bad
that it requires a preclusion or a continuance....
This is the strongest remedy and it only applies to
defendants. This isn't a remedy a defendant can use
against the state when the state violates the
discovery rules that are in a different subsection of
the same rule and it implicates their right to defend
themselves, which is fundamental.
Section 24 deals with domestic violence and adds a new exception
to the hearsay provision. The stated reason is this will allow
the state to paint a full picture in domestic violence cases for
hearsay.
The hearsay evidence rule allows exceptions and
there's a big long list of them, but the reason that
there's exceptions in the book is because there is
some other reliable [indisc] about them, because it's
a business record and it's always kept that way. It's
not a court statement and that makes it hearsay, but
nobody is making up this record because it's done this
way every day in this business in order to help this
litigation. Or an excited utterance - because you are
saying something in such an upset state of mind that
it has an additional [indisc] that you wouldn't be
making this up, because it's done in that context.
She can understand why domestic violence cases are difficult to
prosecute, because there is a lot of abuse of the system in
those cases. This rule would allow anybody to say anything that
was said either 24 hours before or 24 hours after the alleged
domestic violence.
One of the fundamental tenets of our criminal justice
system is you have a right to confront the witnesses
against you and this rule effectively takes that
away.... That's very problematic because of the
constitution and it's very problematic because of
messiness that's involved in these cases on both sides
of the tables.
MS. SIMONIAN said she doesn't think this bill is to correct
injustices with the exception of the consecutive and concurrent
sentences provision, which she thought is a disputed and gray
area.
SENATORS OGAN AND FRENCH said they appreciated her testimony.
MS. LINDA WILSON, Deputy Director, Alaska Public Defender
Agency, said that their questions are very insightful and they
are right on target with all of the issues in the bill. She
noted that the proponents of the bill spent two or three hours
and she had an hour of testimony. It is a huge bill that needs
long and careful consideration.
5:35 p.m. - 5:38 p.m. - at ease
CHAIR SEEKINS thanked Ms. Wilson for agreeing to deliver her
testimony at another time.
MS. LUCILLE FREY, Mat-Su Property Owners, supported the
testimony of Meg Simonian and encouraged them not to pass this
bill.
MR. NOEL WOODS, Matanuska Valley Sportsmen, said he has very
serious concerns with this bill, particularly with the way it
would affect the 99 percent of Alaskans who are law-abiding
citizens and have concealed carry permits. He endorsed the
comments of Mr. McComas and Ms. Simonian.
MR. VERN RUPRIGHT, Wasilla resident, said this bill is stripping
away defenses that people enjoy as members of a free society.
People expect to be able to protect themselves from third
persons.
TAPE 03-29, SIDE A
5:46 p.m.
MR. RUPRIGHT said this would change the entire concept of a
citizen's right to defend themselves and their family in their
home. Regarding a person invoking the Fifth Amendment and
allowing the prosecutor to hear the testimony, he thought that
would also be a tremendous waste of the state's resources.
Senator Ogan's question about how this change would affect the
younger defendant who was talking to the police was also a good
point.
MS. CARMEN GUTIERREZ said she has been a practicing criminal
defense attorney for the last 22 years. The reason she's
testifying is that Mr. Novak is using the case of State of
Alaska versus Bosco Villa as an example of why the self-defense
laws need to be changed. She was Mr. Villa's attorney during the
trial that took place in Anchorage before Judge Milton Sudor in
1997. She stated that Mr. Novak misrepresented the facts of the
case in four important respects.
First, Mr. Villa was not a member of a gang. Secondly,
Mr. Villa did not seek out the decedent and force a
confrontation. Third, Mr. Villa was not in a car at
the time of the shooting. Lastly, Mr. Villa was armed
with a weapon, but he was armed with a weapon because
for two years prior to this incident, he had been the
victim, as well as his family and a close friend, of
basically a campaign of terror that had been committed
by this group against Mr. Villa, his family and his
close friends.
The evidence in this case was submitted during a trial and the
jury heard the following testimony.
Mr. Villa was a graduate of East Anchorage High
School; he was on the honor roll at the time he
graduated. He had absolutely no criminal history as a
juvenile or as an adult. Upon his graduation, he went
to work and about a year and a half after he graduated
from high school, his brother had an encounter with a
group of young men who considered themselves to be a
member of a gang, which is called "Down To Kill."
There was an encounter at a grocery store in Anchorage where
words were exchanged between the brother and the group. Mr.
Villa's brother went outside the grocery and was followed by his
friend. One of the members of the gang shot and killed his
friend. As a result of his relationship with his brother, a
group victimized him and his family, his parents, his
girlfriend, his child, and a close friend for two years. Before
the shooting took place in 1996, a member of the group again
threatened Mr. Villa at gunpoint. Mr. Villa and his family were
the victims of a drive-by shooting that was related to the gang
and a bullet was lodged in his baby girl's room. A member of the
gang fired a gun at Mr. Villa several months later while he was
at a movie theatre. All the incidents were reported to the
police.
Finally, the police took action and arrested two members of the
gang after his friend, Franco, was shot seven times while in the
driveway of his home. Six months later, one of them fled the
state and was never brought to justice and the other man who is
actually the decedent in the case referred to by the state was
arrested and released on bail. His sentence was pending when he
was shot by Mr. Villa in July 1996. Because Mr. Villa had no
faith at all that the system could guarantee his safety, he
bought a handgun and he was not in a car, but rather in a
neighborhood in Mountain View with some friends playing with a
dog when a gang member drove up to him. He tried to run away and
they followed him. When he heard one of the individuals in the
car say words to the effect of get your guns, Mr. Villa, who had
his weapon on him, turned and fired 14 - 15 shots in the car.
This incident took place because Mr. Villa felt at
that point, given the two-year history of violence
that he had personally witnessed, and heard and seen
his friends and family witness, felt he had no other
recourse, but to defend himself.
She said those are the actual facts of the case.
When the state uses this case as an actual example of
the 16 cases where it claimed the law as it stands now
has resulted in an injustice, if the Villa case is one
of its best examples, I would encourage the committee
to examine the 16 other cases.
CHAIR SEEKINS thanked her for her testimony and said they would
hold the bill for further work. There being no further business
to come before the committee, he adjourned the meeting at 6:00
p.m.
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