Legislature(2003 - 2004)

2003-04-04 House Journal

Full Journal pdf

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HB 244                                                                                            
HOUSE BILL NO. 244 by the House Rules Committee by request of                                       
the Governor, entitled:                                                                             
                                                                                                    

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     "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."                                                
                                                                                                    
was read the first time and referred to the Judiciary and Finance                                   
Committees.                                                                                         
                                                                                                    
The following fiscal note(s) apply:                                                                 
                                                                                                    
1.  Zero, Dept. of Law                                                                              
2.  Fiscal, Dept. of Corrections                                                                    
                                                                                                    
The Governor's transmittal letter dated April 3, 2003, follows:                                     
                                                                                                    
"Dear Speaker Kott:                                                                                 
                                                                                                    
Under the authority of art. III, sec. 18, of the Alaska Constitution, I am                          
transmitting a bill making changes to criminal procedures that would                                
allow for more straightforward and fair prosecution of crime in                                     
Alaska.  Additionally, the bill would improve the criminal law                                      
regarding sentences.                                                                                
                                                                                                    
The bill proposes the following changes in criminal procedures:                                     
                                                                                                    
Deterring Those Who Take Deadly Weapons to a Fight.  We have to                                   
cut down on the violence on our streets.  There are too many drug                                   
dealers, gang members, and violent people who bring guns to                                         
situations where they know they will get into fights; they then claim                               
self-defense when they use the gun.  Too many innocent people die,                                  
and prosecution is too difficult.  We need to put a stop to this.  If you                           
bring a gun to a fight, you should be responsible for the consequences.                             
Self-defense should not excuse a killing if the defendant brought a                                 
deadly weapon to a confrontation with reason to believe that combat                                 
would result.  The Alaska Supreme Court long ago declared in Bangs                                  

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v. State, 608 P.2d 1 (Alaska 1980), that a person who brings a deadly                               
weapon to a confrontation, having reason to know that the encounter                                 
will likely result in combat, should not be entitled to self-defense                                
protection.  But trial judges have become too loose in enforcing the                                
Alaska Supreme Court's admonition.  A defendant who brings a gun to                                 
an encounter and uses it to finish a fight should not be able to claim                              
self-defense.                                                                                       
                                                                                                    
Improving the Law of Self-Defense, Deadly Force In Self-Defense,                                  
Heat Of Passion, And Other Defenses.  A related change is also                                    
necessary in the law of self-defense and "heat of passion."  The                                    
prosecution always bears the burden of proving the essential elements                               
of an offense, but if the defendant is going to raise a defense of which                            
the defendant has exclusive knowledge, the defendant should have the                                
burden to prove the defense by a preponderance of the evidence.  This                               
is called an affirmative defense, and the legislature has already created                           
many examples in the Alaska Statutes.  For example, duress is an                                    
affirmative defense.  To establish duress, the defendant must prove                                 
that the defendant was coerced to commit a crime by a threat of                                     
imminent harm.  The burden is correctly on the defendant, because                                   
only the defendant knows the effect of the threat.                                                  
                                                                                                    
The bill would change several similar defenses -- heat of passion, self-                            
defense, the use of deadly force in self-defense, and defense of a third                            
person -- to affirmative defenses.  Currently, prosecutors must prove a                             
negative.  For example, if the defendant claims heat of passion (a                                  
defense to intentional murder in the first and second degrees), the state                           
would have to disprove that the victim, who is dead, acted in a way to                              
arouse the passion of the defendant.  The bill provides that the                                    
defendant, who is often the only eyewitness still alive at trial, would                             
be required to prove that "heat of passion" was aroused because of                                  
provocation by the victim.  Citizens who defend themselves in their                                 
own homes and must use force to protect their families are not affected                             
by this change.  If the person acting in self-defense is a peace officer,                           
or is on the person's own premises and is not assaulting a household                                
member, this bill leaves the current law on self-defense intact, and                                
requires that the prosecution disprove self-defense.                                                
                                                                                                    
Right of Arrested Person.  The bill would clarify that a person who is                            
arrested has the right to a telephone call or visit from a friend, relative,                        

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or attorney.  However, the right belongs to the person arrested, to                                 
exercise at his or her discretion.                                                                  
                                                                                                    
Limiting Collateral Attacks on Prior Convictions.  When an habitual                               
criminal commits a new crime, the punishment is often greater                                       
because of the person's prior convictions.  But it is now a common                                  
tactic in the new criminal case to attack the old convictions on                                    
technicalities.  This means that before the prosecutor can even begin to                            
prove the new crime, the prosecutor is forced to validate what                                      
happened in an old conviction, which is often from another state.  This                             
is generally a fruitless inquiry.  The law already provides many                                    
avenues by which offenders can have their convictions reviewed.                                     
Unless a conviction was invalid because the defendant was denied the                                
right to counsel or to a jury trial, the state should be able to rely on                            
those convictions in prosecuting repeat criminals.                                                  
                                                                                                    
Admissibility of Prior Convictions.  In the criminal code, the                                    
conviction of a prior crime is, in a few cases, an element of another                               
offense.  For example, having two prior drunk driving convictions                                   
within a certain period of time is an element of felony drunk driving.                              
The bill would clarify that in these circumstances, evidence of prior                               
convictions is admissible in order to prove all the elements of the                                 
charged offense.  Although generally courts do not admit this                                       
evidence, the legislature has the authority to allow it.  The bill also                             
would overrule Ostlund v. State, 51 P.2d 938 (Alaska App. 2002),                                    
which requires a bifurcated trial, by allowing, at any time in the                                  
prosecution, evidence of prior convictions in the state's case if the                               
prior conviction is an element of the current crime.                                                
                                                                                                    
Grants of Immunity.  The bill would give prosecutors the information                              
needed to decide whether to grant immunity to a witness.  If a witness                              
claims a privilege against self-incrimination and refuses to testify, the                           
only way to obtain that testimony under the Alaska Constitution is to                               
give the person complete immunity for any crime the person may                                      
testify about.  This makes it critical for the state to know what crimes                            
will be immunized before offering immunity, but that is impossible                                  
under current procedures used by the courts.  The current practice is                               
for the judge to decide whether the witness is entitled to immunity in a                            
closed hearing in which the prosecution is not allowed to be present.                               
The prosecutor thus does not know what crimes require immunity.  A                                  

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homicide prosecution that currently is awaiting trial is a good                                     
example.  The defendant, while in jail, allegedly tried to arrange for                              
the killing of the trooper transporting him to court, so the defendant                              
could escape.  A cellmate notified the police, but will not testify                                 
without immunity.  The judge held a hearing without the prosecutor,                                 
and ruled that the cellmate had a privilege against self-incrimination,                             
but wouldn't reveal how the cellmate's testimony would incriminate                                  
him -- or even whether the cellmate feared prosecution for a felony or                              
a misdemeanor.  Unwilling to grant immunity blindfolded, the                                        
prosecutor must forego this powerful evidence of consciousness of                                   
guilt of the defendant.                                                                             
                                                                                                    
The bill would give guidance to the court for evaluating a claim of                                 
privilege, and would allow the prosecutor to obtain necessary                                       
information and to be present at any hearings on the matter.  Judges                                
thus would no longer decide these issues without hearing both sides,                                
and the prosecutor can make an informed decision about immunity.                                    
                                                                                                    
Consecutive sentences.  This bill also would strengthen and clarify the                           
law regarding consecutive sentences for conviction of more than one                                 
crime.  In 1982, AS 12.55.025(e) and (g), which mandated full                                       
consecutive sentences for each count of homicide, assault, and sexual                               
offense, were enacted.  But because of imprecise drafting, this clear                               
expression of legislative intent was instead interpreted to be merely a                             
"legislative preference" for consecutive sentences that courts were free                            
to ignore.  State v. Andrews, 707 P.2d 900 (Alaska App. 1985), aff'd.                               
723 P.2d 85 (Alaska 1986).  Later, in 1988, the legislature mandated                                
consecutive sentences for assaults against children, but the provision                              
that was finally enacted provided no firm guidance to the courts,                                   
especially in the most serious sexual assaults.  AS 12.55.025(h).                                   
                                                                                                    
As a result of the interpretations of the courts, trial judges ignore or                            
pay only nominal recognition to the legislature's preference for                                    
consecutive sentences.  For example, in the recent case of State v.                                 
Glaser, the defendant was convicted of two counts of second degree                                  
murder and one count of first degree assault.  The sentence imposed                                 
by the superior court treated the drunk driving killing of two people                               
and the serious physical injury of a third person as if only one victim                             
had been affected by the crime, and imposed a sentence only slightly                                
longer than the mandatory minimum sentence for a single count of                                    
second degree murder.                                                                               
                                                                                                    

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This bill would adopt minimum requirements for consecutive                                          
sentencing in cases involving multiple counts of homicide,                                          
kidnapping, first degree sexual assault, and first degree sexual abuse of                           
a minor (sexual penetration).  Although this bill does not go so far as                             
the fully consecutive sentencing reflected in the 1982 legislation, it                              
does provide more specific guidance than exists in current law.  In a                               
second degree murder case such as State v. Glaser, for example, the                                 
bill would require that imprisonment for at least 10 consecutive years                              
be imposed for the second conviction of second degree murder, and                                   
some additional consecutive term of imprisonment be imposed for the                                 
assault on the third victim.                                                                        
                                                                                                    
Better Notice of Expert Witnesses And Defenses.  Delay, confusion,                                
and other problems often result from the inefficient exchange of                                    
information about defenses and expert witnesses in criminal                                         
prosecutions.  The discovery rules are supposed to make pretrial                                    
procedure orderly and avoid surprises at trial.  However, our                                       
prosecutors report that at times attorneys who give late notice or no                               
notice rarely suffer adverse consequences from the court, which                                     
encourages further disregard of the rules.  The bill would adopt                                    
procedures for a more orderly exchange of expert witness information,                               
and it also would adopt firm sanctions for violation of the rules.  If a                            
party does not provide notice of an expert in the time set out in the                               
rule, the person may not use the expert testimony.  The bill also would                             
require that notice of certain defenses be made as required by the rules                            
or the offering of that defense could be forfeited.                                                 
                                                                                                    
Expanding Impeachment of Testimony.  The bill also would amend                                    
several provisions in the Alaska Rules of Evidence.  Under the current                              
rules, a statement obtained from a defendant that was not preceded by                               
the warnings required in Miranda v. Arizona, 384 U.S. 436 (1966), is                                
not admissible except in a prosecution for perjury.  That is, although                              
the statement may not be used against the person for the underlying                                 
offense, it may be used in a subsequent perjury prosecution if the                                  
person testifies falsely at trial.  The bill would expand this exception to                         
allow the statement to be used for impeachment if the person testifies                              
falsely.  Under the current court rule, a defendant in a murder case                                
whose statements to police were suppressed could lie with impunity on                               
the stand, knowing that at most the defendant faced a later prosecution                             
for perjury.  The bill's change to the court rule would, however, allow                             

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the defendant's statement to be used to contradict the defendant's                                  
testimony in the murder trial if the defendant lied.                                                
                                                                                                    
A similar court rule limits the use of evidence obtained with an invalid                            
search warrant or if the police make a mistake in the technical rules                               
governing search and seizure.  Such evidence is not admissible for the                              
underlying prosecution, and can only be used in a subsequent perjury                                
case.  This bill would allow this evidence to be used to impeach the                                
defendant or other witness on cross-examination.  The exclusionary                                  
rule discourages careless law enforcement by excluding illegally                                    
obtained evidence.  It should not give witnesses a chance to testify                                
falsely at trial.                                                                                   
                                                                                                    
Current rules also allow a witness's credibility to be impeached by a                               
prior conviction for a crime involving dishonesty or false statement                                
(for example, theft, robbery, burglary, perjury) if the conviction                                  
occurred within five years of the testimony.  However, in many                                      
instances, the five-year period is over before the person is even out of                            
jail, so juries never find out that the person has a conviction for                                 
dishonesty.  This bill would amend the court rule to allow juries to be                             
told of such convictions if less than five years has elapsed from the                               
person's unconditional discharge from probation or parole.                                          
                                                                                                    
Giving Juries the Full Picture in Domestic Violence Cases.  Domestic                              
abusers often succeed in pressuring their domestic partners into not                                
testifying against the abuser.  In order to prosecute such cases, the                               
prosecutor must be able to introduce evidence from other persons to                                 
tell the jury the whole story.  But if the jury isn't allowed to know what                          
was said immediately after the assault, the jury only gets part of the                              
story.  We can change this, and provide more perpetrators with the                                  
help they need to stop abusing.  Victims of domestic violence are often                             
unavailable to testify at trial -- often for compelling reasons                                     
concerning their safety and the safety of their children.  Under current                            
court rules, if the victim is not present, the statements of the victim are                         
admissible only if the statements qualify under the narrow rule for                                 
"excited utterances."                                                                               
                                                                                                    
This bill would expand that rule in domestic violence cases, so that a                              
jury can learn about all statements made within 24 hours of the crime,                              
if there are other indications of reliability.  This hearsay exception                              

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would apply to statements that an assault occurred, and also if the                                 
victim recanted and denied that an assault occurred.                                                
                                                                                                    
New Mitigating Factor for Defendants Who Show Concern for                                         
Victims of Sexual Offenses.  Victims of sexual offenses, more so than                             
any other crime, dread testifying in open court and often view giving                               
testimony as being victimized again.  They must not only testify in                                 
front of a jury of citizens and the defendant who violated them, but it                             
must be done in public and often in cases that gain press attention.                                
This is very traumatic for the victim.  Sex offenders who have genuine                              
remorse for their crimes do not want to put the victim through this                                 
crucible.  For those sex offenders who quickly plead guilty, thus                                   
sparing their victims the ordeal of public testimony, this bill would                               
provide a statutory "mitigating factor" that the judge may take into                                
consideration in reducing the person's sentence.                                                    
                                                                                                    
I urge your prompt and favorable consideration of this bill.                                        
                                                                                                    
                                 Sincerely,                                                        
                                 /s/                                                                
                                 Frank H. Murkowski                                                 
                                  Governor"