Legislature(2003 - 2004)

04/15/2003 05:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         April 15, 2003                                                                                         
                           5:10 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Senator Ralph Seekins, Chair                                                                                                    
Senator Scott Ogan, Vice Chair                                                                                                  
Senator Gene Therriault                                                                                                         
Senator Johnny Ellis                                                                                                            
Senator Hollis French                                                                                                           
MEMBERS ABSENT                                                                                                                
All members present                                                                                                             
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 - No previous action to consider.                                                                                        
WITNESS REGISTER                                                                                                              
Mr. John Novak, Chief Assistant District Attorney                                                                               
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT: Commented on SB 170.                                                                                      
Ms. Annie Carpeneti, Atty.                                                                                                      
Criminal Division                                                                                                               
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT: Commented on SB 170.                                                                                      
ACTION NARRATIVE                                                                                                              
TAPE 03-23, SIDE A                                                                                                            
        SB 170-CRIMINAL LAW/SENTENCING/ PROBATION/PAROLE                                                                    
CHAIR  RALPH   SEEKINS  called  the  Senate   Judiciary  Standing                                                             
Committee meeting  to order  at 5:10  p.m. Present  were Senators                                                               
Ogan, Therriault, Ellis, French  and Chair Seekins. [This meeting                                                               
is a  continuation of  the 4/14/03 meeting  that was  recessed at                                                               
3:05 p.m.]                                                                                                                      
MR.  JOHN NOVAK,  Chief Assistant  District  Attorney, said  this                                                               
bill, if it passes, would allow our communities to be safer.                                                                    
Regarding section 6,  he explained that a person  could choose to                                                               
waive their rights  to talk to their parents or  an attorney when                                                               
they talk to the police.                                                                                                        
     What has happened  in the past is that all  of a sudden                                                                    
     I'll be back there with  the police and we'll get paged                                                                    
     - and  an attorney has  shown up  at the front  desk of                                                                    
     the Anchorage Police Department  demanding to go in and                                                                    
     talk with  the person  being interviewed -  despite the                                                                    
     fact   that  the   person   being  interviewed   hasn't                                                                    
     requested an attorney  nor does he or she  want to talk                                                                    
     with an attorney.                                                                                                          
     Current  statute  provides  the  attorney  a  right  to                                                                    
     interrupt that interview. So, it  is a right apart from                                                                    
     the  person being  interviewed....  It  shouldn't be  -                                                                    
     simply because you  are a member of the bar  - give you                                                                    
     the right to intercede  or interrupt a police interview                                                                    
     trying to  find out  what the  truth in  that situation                                                                    
SENATOR ELLIS  asked if  this wasn't really  about the  rights of                                                               
the relatives  who find out  this person is being  questioned and                                                               
called  a  family attorney  to  provide  legal representation  to                                                               
their family member.  It's not really attorneys  wandering in off                                                               
the street interrupting interviews.                                                                                             
MR.  NOVAK replied  that could  be  the context.  He hasn't  been                                                               
involved in the  communications about why the  lawyer gets there.                                                               
However, if Mom  or Dad showed up at the  counter, they would not                                                               
be entitled  to interrupt the interview.  "Simply because someone                                                               
is a lawyer, they have a right to interrupt that interview."                                                                    
SENATOR OGAN  asked what other  states were doing what  Alaska is                                                               
MR.  NOVAK replied  that he  never heard  of a  state that  has a                                                               
statute similar  to Alaska's  - giving an  attorney the  right to                                                               
interrupt  the interview  when it's  not  at the  request of  the                                                               
person being interviewed.                                                                                                       
SENATOR OGAN asked if he knew that for a fact.                                                                                  
MR. NOVAK  replied that he hadn't  researched it, but it  was his                                                               
experience talking to other prosecutors.                                                                                        
SENATOR OGAN  asked if the reason  for having the Miranda  was so                                                               
that a  person could have  representation by an attorney  so they                                                               
are not coerced into making  incriminating statements.  A classic                                                               
technique is the good cop/bad cop routine.                                                                                      
MR. NOVAK  responded that in  order for  a prosecutor to  use any                                                               
statement,  they would  have  to prove  regardless,  that it  was                                                               
voluntary,  knowingly and  intelligent.  "If it  was coerced,  we                                                               
couldn't use that at all."                                                                                                      
He said the interviews are  recorded on videotape and that people                                                               
have a  right not to talk  to the police  and a right to  have an                                                               
attorney  present; people  also have  the  right to  talk and  to                                                               
     I  am not  troubled  by the  fact  that they  exercised                                                                    
     their right  to confess  and admit  things, as  long as                                                                    
     it's truthful...The  purpose of the Miranda  is to tell                                                                    
     them  what  their  rights  are and  then  they  make  a                                                                    
SENATOR OGAN  noted that  Miranda kicks in  only when  the arrest                                                               
happens. Before the  arrest, while they are  being interviewed or                                                               
investigated,  they  don't  have  a right  to  have  an  attorney                                                               
present and what they say can be  used against them in a court of                                                               
MR. NOVAK  agreed and replied  that what triggers the  Miranda is                                                               
when  someone is  in custody  that a  reasonable person  wouldn't                                                               
feel free to  leave. It could be short of  a formal arrest, which                                                               
is when  you are  restrained and  told you  are under  arrest and                                                               
what  you are  charged with.  "General practice  at APD  is, once                                                               
people go to the police station  at the request of the police, to                                                               
advise them of their Miranda rights."                                                                                           
SENATOR  THERRIAULT  said he,  too,  was  interested whether  any                                                               
other  states have  similar  language. He  then  asked about  the                                                               
drafting style.                                                                                                                 
MS.  ANNIE  CARPENETI,  Criminal  Division,  explained  that  the                                                               
styles are optional  and it is an issue of  clarity. However, the                                                               
Department of Law  prefers to show the amendments  so it's easier                                                               
to see what  has changed when it's read. They  did not repeal and                                                               
reenact in this instance.                                                                                                       
SENATOR THERRIAULT said  it seems odd to him that  if he calls to                                                               
tell a friend that the police  picked him up and the friend sends                                                               
an attorney that he wouldn't want to see the attorney.                                                                          
CHAIR  SEEKINS  noted  the bill  gives  the  prisoner  enumerated                                                               
rights that  are outside  of the Miranda  rights and  he wondered                                                               
whether the prisoner is advised of those rights.                                                                                
MR. NOVAK  replied the first  right is to telephone  or otherwise                                                               
communicate with  the prisoner's  attorney and there  is actually                                                               
case law  saying the state does  not have to advise  them of that                                                               
right unless they are a juvenile.  The second one is the right to                                                               
telephone or otherwise communicate with  a friend or relative and                                                               
it's the same.  Miranda would cover the third one  and the fourth                                                               
one would be applicable only to juveniles.                                                                                      
CHAIR SEEKINS asked how someone would know they have the right.                                                                 
MR. NOVAK said that is a  good question, but they might know from                                                               
prior dealings with law enforcement.                                                                                            
CHAIR SEEKINS said hypothetically a  first time arrestee might be                                                               
innocent  and scared  to death.  He thought  they should  know of                                                               
those rights as a matter of justice.                                                                                            
MR. NOVAK  replied that  he wasn't disagreeing,  but that  is how                                                               
the  Miranda warning  came about.  Prior  to that,  there was  no                                                               
requirement to advise of those rights.                                                                                          
CHAIR  SEEKINS  asked  what  is in  statute  that  would  protect                                                               
someone with diminished  mental capacity so they  would know they                                                               
have these rights.                                                                                                              
MR. NOVAK responded  that the prosecutor would  have to establish                                                               
that  any   statement  was  made  knowingly,   intelligently  and                                                               
voluntarily.   A  juvenile  has  extra rights;  they  have to  be                                                               
notified  that they  can call  their parents  before they  make a                                                               
Section  7 is  a  response to  a recent  appellate  case and  the                                                               
context is that the Legislature decided  a couple of years ago to                                                               
create  a  crime  of  felony  DWI. The  elements  are  two  prior                                                               
convictions for DWI  in the last five years and  that the offense                                                               
of drunk  driving is  presently being committed.  The idea  is to                                                               
have the jury hear all  the evidence concerning the elements that                                                               
the state has  to prove. The court has said  that there should be                                                               
two separate trials,  one about the case on  whether he's driving                                                               
drunk now  and a separate  trial on whether  or not he's  got the                                                               
two prior convictions in the previous five years.                                                                               
New  language allows  the  prosecution to  present  the case  and                                                               
allows the jury to know why it is  that 12 of them are sitting in                                                               
what appears to be a misdemeanor  DWI case rather than being kept                                                               
in the dark.                                                                                                                    
SENATOR FRENCH  said he worked with  Mr. Novak for six  years and                                                               
respected  his   service.  Mr.  Novak   mentioned  a   felony  in                                                               
possession and his  experience is that first there is  a trial on                                                               
whether or  not this person possessed  a gun and then  there is a                                                               
trial on whether or not the person is a felon.                                                                                  
MR.  NOVAK explained  that  he was  referring  to the  McLaughlin                                                               
case.  Usually there  is  a  separate trial  if  there are  other                                                               
charges. A  felon with  an assault would  be tried  separately so                                                               
that the  jury would not know  that the person is  a felon first.                                                               
In  the  McLaughlin  case,  the   court  of  appeals  said  there                                                               
shouldn't be separate trials.                                                                                                   
Sections 8, 9,  10, 11, 12 and  17 all deal with  a single issue,                                                               
which  is when  a witness  asserts a  Fifth Amendment  claim that                                                               
they  are  going to  incriminate  themselves  by testifying.  The                                                               
context  is  typically  in  a situation  where  the  attorney  is                                                               
talking to  a witness  ahead of trial  about procedures.  He then                                                               
comes to  court the next day  and announces he's going  to assert                                                               
the Fifth  Amendment privilege  and not  testify. At  that point,                                                               
the jury  is excused  and the  witness gets a  lawyer.   Then the                                                               
witness, with  his lawyer, goes  into the chamber with  the judge                                                               
and no one else. After that, the  judge will say whether he has a                                                               
valid Fifth  Amendment privilege. He  would then have to  ask the                                                               
judge what he  would have to promise not to  prosecute him for to                                                               
compel him  to testify.  The answer  will be,  "I'm not  going to                                                               
tell you that."                                                                                                                 
As a lawyer,  he has no way to  judge what he can do  to have the                                                               
witness testify. His  options are to say the state  will give the                                                               
witness immunity  for anything  he testifies  about. This  is not                                                               
real attractive because  if he's going to testify  that he killed                                                               
somebody  last  week   and  they  don't  know   about  that,  the                                                               
prosecutor would have just given  him immunity from that unsolved                                                               
homicide. This provision of the  law says the prosecutor needs to                                                               
know what  crimes the witness  has a valid Fifth  Amendment claim                                                               
against  so he  can make  an  intelligent decision  to grant  the                                                               
person  immunity for  those  crimes and  compel  them to  testify                                                               
rather than being on a walk  in the dark. At this point, everyone                                                               
would go into the judge's  chambers; the witness's attorney would                                                               
explain to the  judge what the exposure is  for potential crimes;                                                               
the  court would  make a  finding on  whether they  have a  valid                                                               
Fifth Amendment claim and for what  crimes and they would turn to                                                               
the prosecutor and ask if he  is willing to give him immunity for                                                               
possession of cocaine  or whatever. The prosecutor  can then make                                                               
a good  decision. Right now, he  is totally kept in  the dark and                                                               
has no way to evaluate that.                                                                                                    
SENATOR  OGAN said  the Alaska  Constitution says  the government                                                               
must make its  case without requiring the  defendant to cooperate                                                               
as a witness.  The reason for the Fifth Amendment  is so that the                                                               
information can't be used at the  trial, but it might be given to                                                               
the police to investigate.                                                                                                      
MR.  NOVAK   said  the  statute  expressly   provides  that  that                                                               
information  can't be  used  or  passed along  to  the police  to                                                               
SENATOR OGAN asked  what would happen if this bill  passes and he                                                               
decides not to grant immunity because it isn't worth it.                                                                        
MR. NOVAK replied that it really  depends on what the issues are.                                                               
He wouldn't  give immunity for  a greater crime so  someone would                                                               
testify on a lesser case.                                                                                                       
SENATOR  OGAN  wondered what  happens  if  a person  incriminates                                                               
himself without immunity.                                                                                                       
MR.  NOVAK responded  that from  his point  of view  it would  be                                                               
criminal for a defense attorney to allow that to happen.                                                                        
SENATOR FRENCH  said that  prosecutors occupy  a special  role in                                                               
the justice system.  They aren't out to convict  people; they are                                                               
out  to do  justice.  A defense  attorney is  trying  to get  his                                                               
client  off.   It's  a   mismatch  and   the  immunity   area  is                                                               
frustrating. For example, if there is  a witness in a sex assault                                                               
case  who was  at party  and can  give good  evidence, usually  a                                                               
defense attorney gets  to them and scares  them about testifying.                                                               
He pointed out  that Mr. Novak is trying to  do something to make                                                               
more witnesses available  to tell the truth on  the stand without                                                               
fear of  prosecution for  what they  may have seen  or done  in a                                                               
particular situation.                                                                                                           
SENATOR OGAN  said immunity  doesn't seem to  be a  certain thing                                                               
under the new language.                                                                                                         
SENATOR FRENCH  asked Mr.  Novak to  describe how  immunity works                                                               
MR. NOVAK  explained that  he could  lose his  job if  he granted                                                               
immunity  to the  wrong person;  in  other words,  if he  granted                                                               
immunity to the triggerman.                                                                                                     
TAPE 03-23, SIDE B                                                                                                            
Typically, the witness  says he has a  Fifth Amendment privilege,                                                               
but the  prosecutor doesn't know  what it's being applied  to. If                                                               
he  finds out  that the  privilege is  smoking marijuana,  he can                                                               
give  the  witness immunity  for  possession  and consumption  of                                                               
marijuana. In  doing so  the court will  say, "Okay,  having been                                                               
granted immunity  for that,  now you don't  have any  choice. You                                                               
have to testify."                                                                                                               
SENATOR  THERRIAULT added  that with  the changes,  the witness's                                                               
lawyer could say  the client is afraid to disclose  that he had a                                                               
controlled  substance that  night and  the judge  could offer  to                                                               
waive that charge right there.                                                                                                  
SENATOR FRENCH asked how they try to deal with it now.                                                                          
MR. NOVAK replied  they try to have the witness  agree in writing                                                               
that they will testify in  exchange for certain promises. This is                                                               
a  way  to force  someone  to  testify  and still  protect  Fifth                                                               
Amendment privileges.                                                                                                           
SENATOR FRENCH asked if any other states do it this way.                                                                        
MR. NOVAK acknowledged he didn't  know, but very few other states                                                               
have transactional immunity.  In most other states,  all he would                                                               
have to  do is agree  with the witness  that nothing they  say at                                                               
trial will  be used against  them and therefore, they  are forced                                                               
to testify.                                                                                                                     
MR. NOVAK  continued saying  that sections  13 - 14  and 18  - 20                                                               
deal with the concept of  consecutive sentencing, which is adding                                                               
one sentence on top of  another. In 1982, the Legislature enacted                                                               
a  law that  says if  you have  multiple victims  in a  case, the                                                               
sentences should  be consecutive. However, this  legislation does                                                               
not seek  to go back  to 1982.  This legislation would  result in                                                               
people serving  longer sentences  and make the  mandatory minimum                                                               
sentences run consecutively.                                                                                                    
SENATOR  ELLIS  said  he  agrees with  this  provision.  He  read                                                               
through some drunk driving cases  with multiple victims and feels                                                               
that the  sentences were not long  enough. He asked if  this is a                                                               
recommendation the Sentencing Commission had several years ago.                                                                 
MR. NOVAK said he didn't know, but would find out.                                                                              
CHAIR SEEKINS asked if this also made some parole changes.                                                                      
MR. NOVAK replied  yes and that it would make  some difference in                                                               
parole  eligibility,  which  is   dependent  upon  the  mandatory                                                               
sentences. The bottom line is  it will result in longer sentences                                                               
when there are multiple victims.                                                                                                
CHAIR SEEKINS asked about section 15.                                                                                           
MR. NOVAK  said section  15 deals  with situations  where someone                                                               
has a prior  felony conviction and is convicted of  a new felony.                                                               
This triggers presumptive sentencing.                                                                                           
     So, if I've  got a prior felony and I  commit a class C                                                                    
     felony  offense,  what that  says  is  then, the  court                                                                    
     presumptively   should  impose   a  two-year   term  of                                                                    
     incarceration, absent  degrees, and  it can  deviate up                                                                    
     or  down -  mitigators  and  aggravating factors.  What                                                                    
     this does is  limit the ability to  have to re-litigate                                                                    
     that prior conviction.                                                                                                     
This means  if a person  had a right to  jury trial and  right to                                                               
counsel in connection  with that prior conviction,  that won't be                                                               
retried in the new felony offense.                                                                                              
Section 16 is a proposed  mitigating factor. If someone pleads to                                                               
a sexual assault  against a child or adult, this  would allow the                                                               
court the authority to take  that into consideration and "reward"                                                               
that   person  for   not  dragging   the  victims   through  that                                                               
You could look  at this as punishing people  for exercising their                                                               
rights or  as rewarding people  for accepting  responsibility and                                                               
preventing  the state  from having  to drag  little kids  through                                                               
SENATOR FRENCH noted  that AS 11.41.470 is the  definition in the                                                               
sexual assault  statute and Mr.  Novak might want  the definition                                                               
in  AS 11.41.460.  He also  asked  whether Mr.  Novak objects  to                                                               
increasing the 30 days for discovery issues to 45 days.                                                                         
MR. NOVAK  replied he thought 30  days is fairly generous  to the                                                               
defense,  because this  is  post superior  court,  after a  grand                                                               
jury. However, there  isn't a great difference between  30 and 45                                                               
CHAIR  SEEKINS  told Senator  French  that  he could  offer  that                                                               
amendment if he wanted to.                                                                                                      
MR. NOVAK discussed section 21  - 23 dealing with disclosure. The                                                               
state and  defense must  notify each other  ahead of  trial about                                                               
their expert  witnesses and their  defense. The idea is  that the                                                               
criminal  justice system  shouldn't be  a  game; it  should be  a                                                               
search  for the  truth.  This section  imposes  sanctions if  you                                                               
don't comply with disclosure seven  days before trial. He gave an                                                               
example  of  a  murder  case  on  St.  Paul  Island  that  was  a                                                               
logistical nightmare to  prosecute and was made more  so when the                                                               
defense attorney changed the defense  to alcohol blackout the day                                                               
before the trial began.                                                                                                         
Section 24 is  a provision that would bring  Alaska in compliance                                                               
with most  other states  in terms of  allowing someone  to change                                                               
their  story  when  they  are testifying  if  they  haven't  been                                                               
advised  of their  Miranda rights.  Without  this provision,  the                                                               
prosecution would  have to  prove that  the statement  is knowing                                                               
and voluntary and not tricked or coerced.                                                                                       
SENATOR FRENCH  agreed and  said it is  very frustrating  to know                                                               
that someone  can take the stand  and lie. "You have  a statement                                                               
directly to  the contrary in  your trial notebook that  you can't                                                               
use to impeach him with."                                                                                                       
He  noted that  the  section  is written  such  that after  three                                                               
readings he feels that it is about a perjury prosecution.                                                                       
MR.  NOVAK   assured  members  that  an   appellate  court  would                                                               
interpret  the  language  in  a   light  most  favorable  to  the                                                               
CHAIR SEEKINS  told Senator French  that he would  appreciate any                                                               
work he could do to clarify the language.                                                                                       
MR. NOVAK agreed  the section should be redrafted and  went on to                                                               
explain  section  25. Currently,  if  someone  testifies and  has                                                               
prior  convictions of  crimes involving  dishonesty, it  can't be                                                               
used unless the  date of the conviction for that  offense is five                                                               
years or less  prior to the date that  person actually testifies.                                                               
This seeks  to address situations  where a person would  still be                                                               
in  jail serving  a sentence.  It  changes language  to the  date                                                               
after they are released from probation.                                                                                         
Section 26 relates  to domestic violence (DV) cases  and the fact                                                               
that the  perpetrator frequently  continues the violent  cycle if                                                               
the victim doesn't press charges.                                                                                               
Over  time, a  number of  things have  changed. Mandatory  arrest                                                               
laws  have  been  created  and  now  prosecutors  may  use  prior                                                               
instances to  prove that he or  she once again battered  the same                                                               
person. This  section is  another effort  to expand  the evidence                                                               
that would be available to the state at trial.                                                                                  
Currently the  law says that  if a victim  were to call  911 that                                                               
call  is admissible  at  the prosecution.  This  expands that  to                                                               
acknowledge that the victims are sometimes pressured to recant.                                                                 
SENATOR FRENCH asked if this is  an exception to the hearsay rule                                                               
that is traditionally unreliable.                                                                                               
MR. NOVAK replied yes.                                                                                                          
SENATOR FRENCH said the reason  he is concerned about the 24-hour                                                               
rule  is that  by  the time  the  police get  to  the typical  DV                                                               
setting,  the  recanting has  begun.  A  woman who  is  obviously                                                               
bloody will come to  the door and say that she  fell down or that                                                               
no one  is there  yet the  husband is hiding  in the  closet. All                                                               
those  statements would  be  let  in, and  the  defense would  go                                                               
MR. NOVAK agreed and said  typically, the state presents evidence                                                               
including the statement given to  the police and then the defense                                                               
brings  the victim  in to  testify  and she  recants because  the                                                               
defendant and  his family don't want  the case to go  forward. He                                                               
said he believes this would further the search for the truth.                                                                   
He said  the remaining parts  are sections 1  - 5 that  deal with                                                               
6:32 p.m. - 6:35 p.m. - at ease                                                                                                 
CHAIR SEEKINS announced  that sections 1 - 6  would probably take                                                               
as much  time as the other  sections and they would  take them up                                                               
after the Easter break.                                                                                                         
SB 170 was held in committee.                                                                                                   
CHAIR SEEKINS adjourned the meeting at 6:36 p.m.                                                                                

Document Name Date/Time Subjects