Legislature(2003 - 2004)
05/14/2003 08:50 AM House FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 244
An Act relating to the Code of Criminal Procedure;
relating to defenses, affirmative defenses, and
justifications to certain criminal acts; relating to
rights of prisoners after arrest; relating to
discovery, immunity from prosecution, notice of
defenses, admissibility of certain evidence, and right
to representation in criminal proceedings; relating to
sentencing, probation, and discretionary parole;
amending Rule 16, Alaska Rules of Criminal Procedure,
and Rules 404, 412, 609, and 803, Alaska Rules of
Evidence; and providing for an effective date.
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW, stated that
HB 244 was legislation resulting from long-time concerns
experienced by prosecutors statewide. The legislation will
address procedural provisions in law. She requested that
Mr. Novak address the provisions of the bill.
JOHN NOVAK, (TESTIFIED VIA TELECONFERENCE), ASSISTANT
ATTORNEY GENERAL, DEPARTMENT OF LAW, ANCHORAGE, summarized
the sectional analysis of changes made to the House
Judiciary Committee version.
· Section 1. He stated that under current law,
lawyers have the right to interrupt and/or
stop the interview. These provisions clarify
the rights of the attorney.
· Section 2. This section is a revision,
complying with the current status of the law.
It corrects the statute to comply with the
directive of the Alaska Supreme Court.
· Sections 3, 4, 6, & 7. These sections deal
with a situation involving multiple victims.
Under current law, the Courts can impose the
same sentence, all at the same time. Under
the proposed bill, it is designed so that the
Courts would have to impose some of the time
consecutively. In a murder context, the
Courts would have to impose a mandatory
minimum sentence consecutively.
· Section 5. This section speaks to proving a
prior conviction, which could trigger
presumptive sentencing. The provision limits
the questions to the prior conviction to two
items, the right to a lawyer and to a jury
trial. Under current law, the defendant
could relitigate the out-of-state conviction.
The new section creates some degree of
finality for not relitigating an out-of-state
conviction within Alaska.
· Sections 8, 9 & 10. These sections deal with
discovery and disclosure to help avoid
delays. The provisions will help to avoid
surprise attacks, moving the deadline from 10
to 30 days, before the trial to give notice.
This action makes it more fair and the
disclosure up-front in order to avoid
situations that continue cases and
surmounting costs.
· Section 11. This section deals with evidence
and its use in the trial. The provision
addresses a specific circumstance of
compliance under waiver. Under current law,
the prosecutor cannot use prior statements.
The new provision allows that if that
scenario should occur, the prosecution could
use the prior statement. The State would
need to prove that the prior statement was
voluntary and not forced. The provision
would also apply to evidence used to impeach
a witness.
· Section 12. This section deals with the
admissibility of conviction to impeach a
witness. Certain sentences can be used from
the date of conviction for five years. The
prosecution could use the prior conviction.
Often times, the person is not out of jail
before the time lapses. The new language
provides that the clock starts running from
the time that they are unconditionally
discharged from the offense.
· Section 13. This section deals with the
context of domestic violence cases. Unless
there is intervention, this type scene could
escalate and someone could be killed in the
head of passion. The proposed legislation is
another step in an effort to affectively
intervene and become involved. It allows for
admission given within 24-hours of the
domestic violence circumstance.
Representative Kerttula inquired about the consecutive and
concurrent sentencing and what the previous statute had
intended. Representative Kerttula questioned how to address
"intent" in that type of case. Mr. Novak responded that in
1982, the Legislature had enacted current law. The intent
of that addressed when there were multiple victims and the
total of consecutive time. He commented that language had
not been drafted well and when the Court interpreted it, it
was most favorable for the defendants, thus giving the
Court's permission to run the time consecutively.
Furthermore, the language expressed legislative preference
for consecutive sentencing.
Mr. Novak noted that regarding the second concern, the
language provides for the mandatory minimum sentence, which
would have to be consecutive for the most serious crimes.
In certain circumstances relating to multiple murders, the
Court would have to impose the mandatory minimum sentence
for each conviction. In the current system, the victim's
families often feel that their victim "did not count". The
proposed language recognizes that each of the persons
included in the multiple murders has value and that the
Court will inflict on the guilty party at least the
mandatory minimum. All victims want the guilty person to be
required to serve consecutive jail time.
Representative Kerttula inquired if that language could
apply if there had been a car crash, classified as an
assault of behavior. She believed that the same "guilt"
could apply in that situation and would run the consecutive
minimum sentencing. Mr. Novak explained that in a car
crash circumstance, if all victims in the car were hurt, but
not necessarily killed, the guilty party would be convicted
for a crime against a person. Then the Alaska Court System
would have to impose at least one day of consecutive time.
The sentence would not be as dramatic as it would be on the
"murder end".
Representative Kerttula acknowledged that was correct unless
of course that person had a previous charge. Mr. Novak
replied that the Alaska Court System could run them
concurrently except for the one-day period until the highest
level of offense was met. The language would not go all the
way back to the Court's original intent.
Representative Kerttula commented that the person would not
be under presumptive sentencing unless it had been under the
more heinous type of crimes. Mr. Novak corrected that the
presumptive sentencing would apply. The Court's would have
to indicate that presumptive sentencing was served with a
consecutive sentence of at least one day.
Representative Kerttula pointed out that it would not be
presumptive for the following sentence but only on the
first. Mr. Novak responded that it would be presumptive but
not necessarily consecutive.
Representative Berkowitz commented that if there are
multiple victims, two years would be charged for each and if
there were four victims, it would total eight years. Under
the proposed scheme, that sentence would be two years and
three days. Mr. Novak agreed that was correct.
Representative Berkowitz referenced Section 5, which states
that the defendant could challenge the validity of the prior
conviction only if the defendant was denied right to
counsel. He pointed out that in many cases, there is newly
discovered evidence or DNA. He asked if there was any other
provision in the law that would allow someone to challenge a
prior conviction. Mr. Novak replied that the idea is that
if there were an out-of-state conviction, the person would
re-litigate that in the state that it occurred. However,
for Alaska prior convictions, the person has the right to
appeal.
Representative Berkowitz asked the mechanism for someone
that had served a term in another state and then came to
Alaska and was convicted for something else. He asked what
would be the forum for them to use to challenge the prior
conviction. Mr. Novak explained that they would have to
challenge it in the state of origin and under the law of
that jurisdiction. In Alaska, there is a provision for the
post conviction relief window of two years.
Representative Berkowitz recommended that section needs a
"trap door" to allow the defendant to contest or challenge
the prior conviction if there is certain evidence made,
which could prevent a "miscarriage of justice". Mr. Novak
explained that if the Department found out that there had
been a wrongful prior conviction, then the prosecutor would
recognize that and undo the situation existing in Alaska.
The concept is that in Alaska, a new conviction would be
discussed. Deciding if everything done previously was
proper would be associated with the previous case.
Representative Berkowitz stated that when in a presumptive
sentencing case, there must be advantages accrued in the
prosecution to raise credible challenges.
Representative Berkowitz referenced Section 8 and asked what
"the defendant would be likely to rely upon for the defense"
mean. Mr. Novak responded that language would relay the
idea and would provide for giving notice to things that you
may later choose not to do and would provide for avoiding
the prospect of disclosure. The term could give incentive
and notice for defenses and place the cards on the table.
Representative Berkowitz referenced Section 8, asking about
the use of "timely" on Page 5, Line 20. He suggested
"timely" could provide enough discretion than the fixed 30-
day rule.
Mr. Novak advised that the idea was to give a clearer
understanding and that giving 30-days provides certainty.
He added that the Court would be able to relax the 30-day
rule through Rule 53 and that in the interest of justice,
the Court could extend the rule. The idea is to provide
certainty regarding what "timely" means.
Vice-Chair Meyer noted that the HB 244 would be HELD in
Committee for further consideration.
HOUSE BILL NO. 244
An Act relating to the Code of Criminal Procedure;
relating to defenses, affirmative defenses, and
justifications to certain criminal acts; relating to
rights of prisoners after arrest; relating to
discovery, immunity from prosecution, notice of
defenses, admissibility of certain evidence, and right
to representation in criminal proceedings; relating to
sentencing, probation, and discretionary parole;
amending Rule 16, Alaska Rules of Criminal Procedure,
and Rules 404, 412, 609, and 803, Alaska Rules of
Evidence; and providing for an effective date.
LINDA WILSON, (TESTIFIED VIA TELECONFERENCE), DEPUTY
DIRECTOR, ALASKA PUBLIC DEFENDER AGENCY, ANCHORAGE, provided
the position of the public defender and highlighted concerns
that remain in the bill.
· Section 1. This section rewrites and
includes numbers regarding the prisoner's
rights after they are arrested. The
controversy has to do with denying the
ability of the prisoner to access their
lawyer unless an attorney is specially
requested. Family or friends could not
retain a lawyer for the prisoner. With the
revision, it would allow for a relative or
family friend to retain an attorney. She
supported that change.
· Section 2. This section draws from the
immunity statute currently on the books.
Section 2 provides a good revision and
corrects the language, making it
constitutional. Historically, Alaska has
required transactional immunity.
Unfortunately, the Alaska Statutes changed a
number of years ago and only granted limited
use of immunity, which was appealed and in a
unanimous decision, it was agreed with the
Court of Appeals that the statute was
unconstitutional. The new language makes the
transactional immunity and the statute
reflect what the constitution requires.
· Section 3. Section 3 is a conforming section
that relates to the next section, which
mandates consecutive terms of imprisonment.
There is a preference for consecutive
sentences. There are certain circumstances
where someone could commit similar types of
crime and because the crimes are in different
judicial districts, there have been various
types of cases. In those concerns, there is
a preference for continuous sentences. The
Court decided from prior immunity in statute
that there should be a concurrent sentence
and not a mandated consecutive sentence. She
commented that the preference and mandate for
consecutive sentencing makes sense. There
must be discretion from the judge. There
could be an easy fix in that section by
adding additional language, clarifying that
if the prior event was committed after the
prior judgment, then the second offense would
be fines.
· Section 4. The Public Defender has concerns
with the language contained in Section 4.
Mandating consecutive sentence without giving
the judge any discretion will place the State
of Alaska into a bad situation.
· Section 5. She noted that Section 5
addresses concerns with challenging the prior
conviction. The burden shifted to the
defendant and to challenge that prior
conviction, there would have to be a right to
cancel or the right to a jury trial. She
suggested that limitation was too narrow.
· Sections 6 & 7. These sections are
conforming amendments that relate back to the
sentencing section.
· Section 8. This section speaks to the notice
of defenses. She stated that the State would
be "treading on dangerous ground" when
demanding preclusion of defense. There are
constitutional rights when faced with a
criminal charge, which is part of the
constitutional system for someone facing
criminal charges. Demanding preclusion of
the defense could violate the person's
rights. The defendant should not be
precluded from presenting their defense. She
voiced concern with the "expert witness"
language. Prohibiting the defense witness
from testifying is extreme. Allowing the
judge to make careful consideration to the
prejudices would be a much better path than
requiring preclusion.
· Section 13. This section would create a new
exception to the hearsay rule and would have
significant constitutional problems. These
cases can be full of emotion, passion and
bias. Removing the constitutional right of
the defendant to cross-examine a witness
would be wrong and not a good idea. Creating
an exception would be best.
Co-Chair Williams advised that the bill had been discussed
in the House Judiciary Committee.
Representative Kerttula requested that Ms. Wilson be
available to answer questions of the Committee at a later
meeting. She noted that she did have many questions
prepared on the issue. Co-Chair Williams stated that he
planned to move the bill as soon as possible.
Representative Kerttula reiterated that she had significant
questions regarding the financial impact of the legislation.
LAURIE HUGONIN, EXECUTIVE DIRECTOR, ALASKA NETWORK ON
DOMESTIC VIOLENCE AND SEXUAL ASSAULT, advised that the
Network supports Section 4 of the bill, the consecutive
sentencing and Section 13, expanding the period of time to
accept the domestic violence report. She added that the
Network did support language from the previous version
regarding prior convictions. Ms. Hugonin understood that
there was an amendment pending in Committee that would add
that language back into the bill.
Co-Chair Williams reiterated that HB 244 had been before the
House Judiciary Committee and had addressed many of the
expressed concerns.
HB 244 was HELD in Committee for further consideration.
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