Legislature(2003 - 2004)
04/15/2003 05:10 PM Senate JUD
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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
is.
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
proposing.
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
confess.
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
decision.
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
law.
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
decision.
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
investigate.
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
now.
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
prosecution.
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
trial.
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
days.
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
defendant.
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
crazy.
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
self-defense.
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.
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