Legislature(2003 - 2004)
03/31/2004 01:07 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 31, 2004
1:07 p.m.
TAPE(S) 04-30,31
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 COMMITTEE ACTION
BILL: SB 170
SHORT TITLE: CRIMINAL LAW/SENTENCING/ PROBATION/PAROLE
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
04/04/03 (S) READ THE FIRST TIME - REFERRALS
04/04/03 (S) JUD, FIN
04/11/03 (S) JUD AT 1:30 PM BELTZ 211
04/11/03 (S) <Bill Hearing Postponed to 4/14/03>
04/14/03 (H) JUD AT 1:00 PM CAPITOL 120
04/14/03 (S) Scheduled But Not Heard
04/15/03 (S) JUD AT 5:00 PM BELTZ 211
04/15/03 (S) Heard & Held
04/15/03 (S) MINUTE(JUD)
04/24/03 (S) JUD AT 4:00 PM BUTROVICH 205
04/24/03 (S) Heard & Held
04/24/03 (S) MINUTE(JUD)
05/14/03 (S) JUD AT 0:00 AM BELTZ 211
05/14/03 (S) -- Meeting Postponed to 5/15/03 --
05/15/03 (S) JUD AT 8:45 AM BELTZ 211
05/15/03 (S) -- Meeting Rescheduled from 5/14/03 --
05/16/03 (S) JUD AT 1:00 PM BELTZ 211
05/16/03 (S) <Above Item Removed from Agenda>
05/16/03 (S) MINUTE(JUD)
03/05/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/05/04 (S) <Bill Hearing Postponed>
03/10/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/10/04 (S) Heard & Held
03/10/04 (S) MINUTE(JUD)
03/12/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/12/04 (S) Heard & Held
03/12/04 (S) MINUTE(JUD)
03/24/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/24/04 (S) Heard & Held
03/24/04 (S) MINUTE(JUD)
03/29/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/29/04 (S) -- Meeting Canceled --
03/31/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/31/04 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
Ms. Susan Parkes
Department of Law
310 K St., Suite 507
Anchorage, AK 99501
POSITION STATEMENT: Answered questions about the sections of SB
170
Ms. Linda Wilson
Public Defender Agency
Department of Administration
th
900 W 5 Ave., Suite 200
Anchorage, AK 99501-2090
POSITION STATEMENT: Expressed concerns about Sections 7, 17 and
19 and Amendment 5
Lt. Al Storey
Division of Alaska State Troopers
Department of Public Safety
3700 East Tudor Road
Anchorage, Alaska 99507
POSITION STATEMENT: Answered questions pertaining to Section 11
Ms. Patricia Ware
Division of Juvenile Justice
Department of Health &
Social Services
PO Box 110601
Juneau, AK 99801-0601
POSITION STATEMENT: Testified on Amendment 8
ACTION NARRATIVE
TAPE 04-30, SIDE A
SB 170-CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
CHAIR RALPH SEEKINS reconvened the Senate Judiciary Standing
Committee meeting to order at 1:07 p.m. for the purpose of
considering SB 170. Senators Ogan, Ellis, French and Seekins
were present. Chair Seekins said members would hear a sectional
review of the bill and asked Ms. Wilson and Lt. Storey, who were
listening on-line, to interrupt to ask questions when necessary.
The committee took a brief at-ease.
CHAIR SEEKINS provided the following sectional review.
Regarding Section 1, CHAIR SEEKINS said he checked to find out
whether or not an established village, which is not a
municipality, has a constitutional right to be able to adopt a
more restrictive option. He was attempting to answer the
question of whether groups of people, who are not an
incorporated subdivision of the state, can establish the level
of importation that would constitute a felony. He said at this
point, he is satisfied that this provision is okay but deserves
additional work down the road. He opined that in terms of
defense, there would be a legitimate question if a person were
charged.
Section 2 contains definitions. CHAIR SEEKINS asked if anyone
found problems in Section 2. [No one did.]
Section 3 addresses adopting a lower amount [of alcoholic
beverages]. CHAIR SEEKINS asked if anyone had problems with
Section 3. [No one did.]
Section 4 enforces the lower limits of alcohol adopted by the
locality. CHAIR SEEKINS asked if anyone had problems with
Section 4. [No one did.]
Section 5 addresses overlapping local enforcement areas. CHAIR
SEEKINS asked if anyone had problems with Section 5. [No one
did.]
Section 6 again addresses overlapping local enforcement areas.
CHAIR SEEKINS asked if anyone had problems with Section 6. [No
one did.]
Section 7 makes the act of providing alcohol to a minor a class
C felony. CHAIR SEEKINS asked if anyone had problems with
Section 7. [No one did.]
Section 8 addresses forfeiture and adds cash, securities,
negotiable instruments or other things of value used in
financial transactions.
SENATOR OGAN asked if forfeiture would take place after
adjudication.
MS. SUSAN PARKES, Deputy Attorney General, Criminal Division,
Department of Law (DOL), replied, "Yes...There would be a
hearing where a judge would make a finding that there was a
nexus between the crime and the money, in order to forfeit it.
Those sections just aren't in this bill but there are sections
that cover that."
CHAIR SEEKINS noted no further questions or objections to
Section 8.
Section 9 exempts certain things from forfeiture. [No questions
or objections were heard.]
CHAIR SEEKINS asked Lt. Storey and Ms. Wilson to address Section
10.
MS. LINDA WILSON, Deputy Director, Public Defender Agency,
Department of Administration (DOA), asked to comment on Section
7, which raises the crime of furnishing alcohol to a minor in a
local option area to a class C felony. She said her concern is
that furnishing alcohol to a minor anywhere in the state is a
misdemeanor. She continued:
The fact that it's in a local option area - it's just
as bad here in Anchorage when somebody furnishes
alcohol to a minor as it is in a local option area
that's dry and I could see maybe an older brother or
somebody giving it to a relative and they're going to
be hit with a class C felony for this. One consequence
I can see from this is that you are going to have a
lot of Native people perhaps getting a C felony for
the first time they've ever done something like this.
In the other parts of the statute, it doesn't become a
C felony unless you've got a prior violation. So I'm
worried about [the] effect [this] is going to have on
the Bush community.
MS. PARKES responded that DOL spoke with the head of the Bush
caucus about the issue that this provision will put more Native
people in jail. The Bush caucus is concerned about that
possibility, however it supports this provision because alcohol
is such a problem in the villages, which is why they go damp or
dry.
SENATOR OGAN questioned whether Section 7 raises equal
protection issues by treating people differently based on where
they live.
CHAIR SEEKINS said he would agree to raise the crime to a C
felony everywhere.
SENATOR FRENCH commented that another piece of legislation went
through the Senate that treats parts of the state differently
with respect to what vote is necessary to elect a mayor. He did
not believe Section 7 would pose an equal protection problem
because the first question that would be applied is whether that
section is aimed at a certain race, and it is not. The next
question is whether there is a rational basis for the law and
the rational basis is that that particular part of the state
voted to go dry. He said he believes there is a reason to punish
someone more severely for furnishing a minor with alcohol in a
dry area than in a wet area.
CHAIR SEEKINS asked Lt. Storey to describe his job with the
Alaska State Troopers (AST).
LT. AL STOREY, AST, explained that he is currently working on
the director's staff on legislative matters but he was the
commander of the AST's drug and alcohol enforcement unit in the
past.
SENATOR OGAN thanked Senator French for his counsel on the
rational basis test.
CHAIR SEEKINS continued with the sectional analysis and
explained that Section 11 applies to items of innocent parties
that are subject to forfeiture. He noted he questioned whether
or not the state could remand any portion of what has been
forfeited to a municipal law enforcement agency rather than to
the overriding local government, but his question has gone
unanswered.
MS. PARKES noted that subsection (k) speaks to forfeited items
being given to municipal law enforcement agencies.
CHAIR SEEKINS asked if accepting funds or items is allowable
within the charters of local municipalities [for law enforcement
agencies] versus giving those funds or items to the overriding
government.
MS. PARKES deferred to Lt. Storey for an answer but noted that
subsection (k) is identical to the provision in the current law
under the drug forfeiture statute.
LT. STOREY affirmed that option is currently available to state
troopers under the drug forfeiture law and is exercised
frequently with the agencies that cooperate with the AST in drug
investigations. The AST has not found any local agencies that
are unable to receive forfeited funds but it has had discussions
with the heads of those agencies to ensure that city ordinances
do not require those funds be deposited into a general fund
rather than be used for law enforcement efforts. He repeated
that the AST has never had a problem with that and has found the
locals to be very willing to receive those funds and use them
for law enforcement purposes.
CHAIR SEEKINS noted there were no further questions or comments
about Section 11.
Regarding Section 12, SENATOR OGAN asked if that section
basically adds an "a" and an "and". He asked for an explanation
of the effect of those additions.
MS. PARKES told members that Section 12 is a conforming section
to DOL's proposal to make the violation of third party custodian
duties a crime. Right now, DOL can go after a third party
custodian for criminal contempt. Section 12 removes the criminal
contempt option, as it would no longer be necessary, assuming
DOL's proposal is accepted.
SENATOR OGAN asked if that is tied to Section 17.
MS. PARKES affirmed that is correct.
SENATOR OGAN clarified that Section 12 does away with the
criminal contempt charge, while Section 17 makes those
violations class A or class B misdemeanors.
MS. PARKES agreed.
SENATOR OGAN asked for a description of the punishments for
criminal contempt and class A and B misdemeanors.
MS. PARKES said criminal contempt is punishable by up to six
months in jail and a $300 fine. She continued:
So by changing it to a class A misdemeanor, B
misdemeanor actually, upping the penalties in some
situations, lowering the potential penalty in others,
what we're really trying to do is create a cleaner way
to prosecute these cases. The criminal contempt
statute, you have to reference Section 9, which is an
unusual section to prosecute under and we don't
believe that the elements of the offense are as
cleanly laid out as making it a clear Title 11
offense, which prosecutors are used to dealing with.
Also, when you charge someone with criminal contempt,
years later if you look at their criminal printout,
and you see criminal contempt, it's not clear. There
[are] lots of kinds of criminal contempt, what the
actual violation was. And what we're trying to do is
have something where it will also be clear if years
later someone proposes themselves as a third party
custodian, if that's on their criminal history, we'll
know they obviously didn't do their job in a prior
case and that would be helpful for law enforcement.
SENATOR OGAN expressed concern about the change in Section 17
because he believes it might create a major disincentive to
signing up as a third party custodian. He said sometimes it is
better to get a person who has committed a minor crime into a
more positive and structured environment, such as a family
environment. In addition, it is a lot less expensive than
keeping people in jail, an environment that is not conducive to
rehabilitation. He noted that not all "bad" guys are evil and
that sometimes, good people do bad things.
MS. PARKES said the court already warns potential custodians
that they are subject to criminal prosecution under the criminal
contempt statute and the third party custodian agrees to report
violations immediately. In that sense, SB 170 does not require
anything new of third party custodians. DOL's position is that
the change to a class A or B misdemeanor should not discourage
anyone from becoming a third party custodian, unless that person
does not intend to carry out his or her duties.
1:30 p.m.
SENATOR FRENCH echoed Ms. Parkes' remarks and pointed out that a
third party custodian who neglects his or her duties is posing a
fairly significant public safety risk. He said it is extremely
frustrating to find a third party custodian who is not
fulfilling his or her duties because there has to be a "hammer"
to use when dealing with folks who have been charged with crimes
such as sexual abuse of a minor or a DUI. He said the
misdemeanor approach is the right approach because no one will
go to jail for a first offense. However, it gives the court, law
enforcement, and the district attorney some leverage.
CHAIR SEEKINS agreed the new criminal penalty might act as a
deterrent to serving as a custodian, but he prefers to err on
the side of creating a larger deterrent for people who do not
live up to their responsibilities as third party custodians.
MS. WILSON told members that violating a third party custodial
duty is currently a crime. It is very difficult to find people
to agree to be third party custodians, and most of them take the
job very seriously. She does not believe there is a need to
increase the punishment because of the threat of a criminal
contempt charge. She noted that a penalty of a $10,000 fine and
one year in jail would dissuade many people who were reluctant
to become third party custodians in the past.
MS. WILSON said that Ms. Parke's testimony about clarifying the
contempt conviction in the criminal records computer system was
the first she heard of that concern. She said a less onerous way
to address that concern is to make the violation a class B
misdemeanor. That would expose the violator to a $2,000 fine and
90 days in jail, which will encourage people to report
violations but not dissuade them from becoming third party
custodians. She noted that the Judicial Council did a recent
study and reviewed over 2,000 felonies committed in 1999. It
found that one of the most significant factors in the number of
days a person spent in jail was having, as a bail condition, a
third party custodian requirement. Therefore, lack of third
party custodians already keeps many more people in jail now, so
making it harder to get a third party custodian will keep people
in jail a lot longer. She suggested making a third party
custodian violation a B misdemeanor and removing it from the
criminal contempt world. That would provide a higher fine and
clarify the criminal record but will not deter people from
becoming a third party custodian.
CHAIR SEEKINS asked if anyone had a proposed amendment to
Section 17. He said his opinion is that the offense should not
be less than a class B misdemeanor.
SENATOR FRENCH thought DOL did a good job of splitting the
offense out to an A misdemeanor if the person in custody is a
felon and a B misdemeanor if the person in custody is a
misdemeanant. He felt that Section 17 will not deter good third
party custodians but may deter people who do not intend to do a
good job.
MS. WILSON suggested another possible amendment to target those
people who do not plan to take their custodial duties seriously,
that being to add the word "intentionally" before the word
"failed" on page 10, line 11.
CHAIR SEEKINS thought that would be difficult to prove.
SENATOR OGAN moved to adopt Ms. Wilson's suggested amendment
[Amendment 4] for the purpose of discussion. Amendment 4 reads
as follows:
A M E N D M E N T 4
TO: SB 170
On page 10, line 11, insert the word "knowingly"
before the word "fails"
SENATOR OGAN felt Amendment 4 will make the culpable mental
state unambiguous.
CHAIR SEEKINS questioned whether one can ever negligently
violate a condition set out by the court. He wondered if a
custodian chose not to report the disappearance of a person in
custody that would be negligent rather than intentional.
MS. PARKES said that an Alaska statute says if the mental state
is not specified, it is knowingly. She thought that is the
appropriate mental state for Section 17. That way, if a
custodian is asleep while the person in custody leaves, the
custodian cannot report because he or she is unaware of it. What
DOL is attempting to do is clarify that people are knowingly
failing to act. She expressed concern that changing the mental
state to intentionally will take it up a notch and be very hard
to prove.
SENATOR FRENCH clarified that the mental state of "knowingly" is
only one rung lower than "intentionally" so it's not as though
the bar will be set much lower. He felt "knowingly" is the right
standard.
SENATOR OGAN moved to amend Amendment 4 by replacing the word
"intentionally" with the word "knowingly."
CHAIR SEEKINS announced that without objection, Section 17 would
be amended to insert the word "knowingly" between the words
"person" and "fails" on page 10, line 11.
CHAIR SEEKINS continued with his sectional analysis and reminded
members that the committee had an extensive discussion about
Section 13.
SENATOR FRENCH thought that Section 13 would make a good change
to the law.
Regarding Section 14, SENATOR OGAN said he is concerned about
the term "dangerous instrument" and moved to change that term to
"deadly weapon" on page 9, line 16 [Amendment 5]. He noted that
he had a lengthy discussion with Ms. Wilson about that change
and is concerned that a person who had one drink could be
charged with criminal negligence or other similar scenarios.
CHAIR SEEKINS asked if the term "deadly weapon" includes a
specific list of weapons.
MS. PARKES told members that under AS 11.81, "deadly weapon" is
defined as any firearm or anything designed for and capable of
causing death or serious physical injury, including a knife, an
axe, a club, metal knuckles or an explosive. She then pointed
out that a "dangerous instrument" includes deadly weapons and
any thing that, under the circumstances in which it is used,
attempted to be used, or threatened to be used, is capable of
causing death or serious physical injury.
CHAIR SEEKINS asked if "dangerous instrument" is limited to the
logical extension of the definition.
MS. PARKES said that is correct.
CHAIR SEEKINS said a car would not be included.
SENATOR FRENCH noted that a car is not designed to cause death.
CHAIR SEEKINS asked if a drunk who killed or seriously injured
someone while driving a car would fall under this statute.
SENATOR FRENCH said a drunk driver who killed or seriously
injured a person could be prosecuted under, "murder, murder 2,
assault 1 and 2."
MS. PARKES explained the difference is that a person who is
legally intoxicated is acting recklessly. Section 14 is one
notch lower. Regarding Amendment 5, she said DOL's intent is to
close a loophole in the law. All current assault statutes refer
to dangerous instruments; none are limited to deadly weapons.
She explained:
Right now we have an assault in the fourth degree that
says if someone commits assault in the fourth degree -
if with criminal negligence that person causes
physical injury to another person by means of a
dangerous instrument. We have criminally negligent
homicide but we have no criminally negligent assault
statute where serious physical injury is caused and
that's what this amendment is intended to close that
gap.
SENATOR OGAN asked how Section 14 would apply to a person who
violated a traffic ordinance and caused a serious physical
injury.
MS. PARKES said a simple violation of a traffic law would not
raise the offense to criminal negligence. According to the
statute, a person acts with criminal negligence when the person
fails to perceive a substantial and unjustifiable risk that the
result will occur or that the circumstance exists. She read,
"The risk must be of such a nature and degree that the failure
to perceive it constitutes a gross deviation from the standard
of care that a reasonable person would observe." She pointed out
that would not apply to a person who was momentarily distracted
and swerved in the road.
CHAIR SEEKINS asked if driving impaired would be criminal
negligence.
MS. PARKES thought driving impaired would be considered as
reckless behavior. She said she understands members' concerns,
but explained that DOL proposed this change because prosecutors
have been unable to prove recklessness where someone is not
legally impaired but has drugs or alcohol on board. She said in
those cases, when someone is injured, the factors do not add up
to recklessness, but DOL believes they add up to a gross
deviation. She noted that Alaska does not have a situation that
fits that scenario.
1:50 p.m.
SENATOR FRENCH remarked that he has seen a lot of fourth degree
prosecutions but never used the criminal negligence part of it.
He questioned when it would get used.
MS. PARKES said the only time DOL looked at using it was for
situations in which a vehicular collision occurred but the
driver wasn't legally impaired but was involved in bad driving
or bad behavior. She said DOL was distressed to find that
although sometimes people were seriously injured, the driver
could only be charged with a misdemeanor. She admitted it is
rare that DOL uses it.
SENATOR FRENCH maintained, "The more outrageous the driving, the
easier it is to prove recklessness and then you just go with
that statute...."
MS. PARKES agreed but said this will also allow the prosecution
to offer a lesser included to the jury. If the prosecutor
believes it is a borderline case of recklessness, this will give
the jury the option to say the person was not reckless but was
perhaps criminally negligent, rather than drop the charge to a
misdemeanor if a person was injured seriously.
The committee took a brief at-ease.
TAPE 04-30, SIDE B
CHAIR SEEKINS informed members that Linda Wilson, Lt. Al Storey,
Bill Miller of the Anchorage Police Department (APD), and Donna
Garner from the Victims for Justice were on-line and
participating in an "open mike" arrangement. He told Mr. Miller
and Ms. Garner that his intent during this hearing is to allow
for brief discussion on the sections of this bill. He asked them
to comment on any section they had concerns with.
CHAIR SEEKINS asked if a person who had an accident because he
or she fell asleep at the wheel would be charged with criminal
negligence.
MS. PARKES said the question gets back to whether the behavior
was a gross deviation. In such cases in Anchorage, DOL never
charged those drivers because DOL did not believe it could prove
gross deviation just based on falling asleep. She noted if the
sleep was coupled with alcohol or drug use, that might occur
but, again, it would get down to the mental state and whether it
could be proved beyond a reasonable doubt.
SENATOR OGAN commented that he has heard that people who use
cell phones while driving are as dangerous as drivers with a
blood alcohol level over .08.
CHAIR SEEKINS stated that if he supports this section it is with
the intention that it not include anything but a gross deviation
and not "a secretary on her way to work putting her make-up on
and distracted for a moment or someone whose driving, trying to
get back and snoozes, or someone who is using their cell phone,
Senator Ogan...."
SENATOR OGAN said he has driven behind teenagers who were
engaged in very distracting activity, to the point where he
couldn't tell who was driving.
MS. PARKES declined to comment.
CHAIR SEEKINS asked if there was further discussion about
Amendment 5 [changing "dangerous instrument" to "deadly
weapon"].
SENATOR FRENCH said the fact that there has been a statute on
the books that parallels this provision, with the exception of
serious physical injury, tells him this will not be subject to
abuse. This provision will only put serious physical injury into
the equation and is not an extravagant expansion of the law.
MS. WILSON said her concern is that she is hearing the message,
"Trust the prosecutor, trust the prosecutor, they're not going
to do this." However, she guarantees this provision will leave
the door open for abuse. Reckless behavior can be charged as
assault 1. Using criminal negligence will open the door "to the
make-up, to the cell phone, to the - any consumption of alcohol
and I think there could be an argument made that that's gross
deviation...." She submitted that this provision will leave the
door open to abuse.
CHAIR SEEKINS asked for a roll call vote. Amendment 5 failed
with Senator Ogan in favor and Senators Ellis, French and
Seekins opposed.
CHAIR SEEKINS moved on to Section 15. No committee members or
members of the public expressed problems with that section.
CHAIR SEEKINS asked if anyone had concerns with Section 16. [No
one did.]
CHAIR SEEKINS reminded members they already discussed Section 17
so moved on to Section 18 and informed members that Section 18
was amended.
SENATOR FRENCH asked if the committee was looking at an updated
version that included those amendments.
CHAIR SEEKINS said the amendments adopted at the previous
meeting have not yet been incorporated into version H. He noted
that the committee had adopted four amendments at a previous
meeting [on March 24].
MS. PARKES clarified that the first amendment was amended (on
page 10, lines 29-31) and changed "dangerous instrument" to
"deadly weapon."
CHAIR SEEKINS moved on to Section 19.
MS. WILSON commented:
...I don't think we need to have this section in
there. I think that the 'some evidence' test is just
fine the way it is. I think you're taking away from
the jury. Their decision on the credibility or the
plausibility of the self-defense claim, and that's
where it should be left, is with the jury. If there's
evidence to support self-defense, it should go to the
jury. It shouldn't be kept from the jury by the judge
who then is now going to decide plausibility and
credibility. That's not the judge's function; it
should be left to the jury. So, I just wanted to throw
that comment in, you know, that we still have some
concerns about that section.
SENATOR OGAN recalled some discussion about what evidence would
be considered as "plausible" and asked if a statutory definition
exists.
MS. WILSON said there is no statutory definition of "plausible
evidence." She explained that Section 19 will make the judge
decide the plausibility or the credibility of the evidence. If
the judge thinks the evidence presented does not constitute a
convincing self-defense claim, the judge will not give it to the
jury when it is actually the jury's function to decide the issue
of factual determination. He said allowing the judge to
determine plausibility will show distrust of the jury because if
the judge can't be convinced, the information will not go to the
jury.
SENATOR OGAN asked how the current system works.
MS. WILSON said if a defendant can present some evidence to
support a self-defense claim, which means any evidence that is
put before the judge, the jury decides whether to buy that
claim. Section 19 will make it harder to get the evidence to the
jury because the judge will have to be convinced of its
plausibility first.
SENATOR FRENCH commented that Section 19 raises the bar for a
self-defense claim "one smidgeon." He is convinced the judges
will construe Section 19 as narrowly as possible because no
judge wants to preside over a trial in which a defendant does
not get to present any plausible evidence. It is the judge's
role to control the flow of evidence to a jury so that a trial
does not become a free-for-all. He advised that self-defense
claims come with a whole host of issues, including the character
of the people involved, so there is reason to be careful about
letting such claims in. He believes that Section 19 is not a
major change to current law but it does move the bar a little
bit higher than "any" evidence.
CHAIR SEEKINS asked if Section 19 says the judge can instruct
the jury if the judge finds some plausible evidence to warrant
that a reasonable jury could find justification for the elements
of self-defense.
SENATOR FRENCH said that is correct. He explained that a person
on trial for murder may claim self-defense. The judge would ask
for an explanation. If the judge finds that the explanation
contained some plausible evidence of self-defense, the judge
would allow the defendant to argue the self-defense claim before
the jury. He pointed out that moreover, the prosecution would
have to disprove the self-defense claim beyond a reasonable
doubt.
CHAIR SEEKINS asked if that would preclude the defendant from
being able to present the elements of self-defense, or whether
it would go to the instructions to the jury.
SENATOR FRENCH said both. The judge would prevent the defense
attorney from arguing that the defendant was acting in self-
defense if there was no plausible evidence. The judge would act
as the gatekeeper of information and the rule maker.
MS. WILSON responded that if the judge believes the evidence is
insufficient or not plausible, then no evidence of self-defense
can come before the jury and no instruction goes before the
jury.
SENATOR OGAN said if someone is charged with a crime, the police
and prosecutor have already decided that no plausible evidence
of self-defense exists or the person would not be charged. He
recalled the case at Big Lake and said he believes the right of
self-defense is an unalienable right. He then moved to strike
Section 19 in its entirety [Amendment 6].
SENATOR FRENCH objected and said he agrees that self-defense is
an unalienable right but Section 19 will not change that. It
simply says that when a person is on trial, that person must
provide some evidence. He added:
I think the Big Lake case is a perfect example. There
is no way a judge is ever going to keep that self-
defense claim away from a jury if it happened inside
the place where a person lives, there's intruders in
there, it's dark at night, and there's just no way
under that [circumstance] and all that guy has to say
is I was afraid and I thought they were armed and
BOOM, you're going to the jury 'cause of the darkness.
But to change the situation a little bit and make it
into a Wal-Mart parking lot, it's bright daylight, the
guys wearing a T-shirt and a pair of shorts and
someone else shoots him to death, and he says well it
was self-defense, he was walking toward me. Well,
that's just out of the bounds of reality and you don't
get to confuse the jury with a self-defense claim. So,
I see the system working pretty well right now and
this is just raising it a smidgeon.
CHAIR SEEKINS said he has a problem with affirmative defense and
this moves a bit toward this but it is not outside the
boundaries of his comfort level.
SENATOR OGAN said his point is that Section 19 lets the judge
make that determination rather than the jury. He stated, "I
guess I'm a sucker for erring on the side of caution when it
comes to self-defense."
CHAIR SEEKINS asked for a roll call vote. The motion to strike
Section 19 [Amendment 6] carried with Senators Ellis, Ogan, and
Seekins voting yes, and Senator French voting no.
CHAIR SEEKINS asked for comments on Section 20. There being
none, he moved to Section 21.
SENATOR FRENCH said he finds Section 21 to be troublesome. He
read the Gonzales case and a few other Supreme Court cases
related to self-incrimination after Mr. Ray Brown testified on
this section, and became convinced that allowing the judge to
disclose to a prosecutor what level of crime the witness is
being given immunity for could become a "link in the chain" to
prosecuting the witness. For that reason, he proposed an
amendment to subsection (i) of Section 21 to read:
A M E N D M E N T 7
On page 12, lines 22-24, insert a period after the
word "finding" and strike the remainder of the
paragraph.
He explained that the purpose of Amendment 7 is to not allow the
judge to inform the prosecution of the category of offense.
CHAIR SEEKINS objected for the purpose of discussion.
SENATOR FRENCH pointed out that many states have struggled with
this issue and one of the more interesting cases he read on this
issue was the Oliver North case. Mr. North was compelled to
testify before Congress about the Iran Contra affair and given
immunity but was later prosecuted.
SENATOR FRENCH noted that his point is that under the Alaska
Constitution, a person cannot be compelled to give testimony
unless the state has taken measures to remove the hazard of
incrimination, which means testimony can only be compelled after
immunity has been granted. He furthered:
And an individual faces a hazard of incrimination
whenever the answers elicited for a conviction might
furnish a link in the chain of evidence. Now
frequently what we're talking about here is kind of
non-testimonial - or non-evidentiary - use of
compelled testimony. He's not going to be put on the
stand to testify but he's going to be pulled back into
the judge's chambers and be forced to tell the judge
what he knows about the crime and then that
information is conveyed to the prosecutors - the level
of crime. And so I would call that non-evidentiary use
of compelled testimony and Gonzales says non-
evidentiary use includes assistance in focusing the
investigation, deciding to initiate prosecution,
interpreting evidence, and otherwise planning trial
strategy.
And let me just give you a real short hypothetical
about how I think this could be misused. It involves
murder inside a drug house - three people inside the
drug house - four people, one gets shot to death. So
there are three people alive. There's a 911 call from
the neighbor's house and they say I just heard a
shooting next door, you better come quick. The
neighbor watches the door, nobody comes or goes in
between the time the cops get there and the cops show
up and there [are] three people inside. And let's say
there's a bag of marijuana in one corner and let's say
there's a bloody gun underneath the bed and the bag of
marijuana's got some fingerprints on it and the bloody
gun's got two sets of prints on it. And they run all
of the prints and they realize the prints belong to
defendant A on the marijuana bag and then the bloody
gun's got two sets of prints on it. So you put
defendant A on trial for marijuana possession and you
call the other two people inside the house as
witnesses to find out what he was doing with the
marijuana. And when you call them as witnesses, of
course they take the Fifth Amendment. And then they're
going to go back to the judge's chambers and the judge
is going to say well what did you do and one will tell
him I murdered the guy. Then he brings the other guy
and he says what did you do? And he says well I just
took the gun and threw it underneath the bed. So the
judge comes back out after having talked to these guys
and says this guy over here, he's got immunity for a
high level felony. This guy over here, he's got
immunity for a low level felony. The prosecutor goes
oh, okay, that guy's the murderer, he's the shooter,
and that guy there just threw the gun underneath the
bed and away we go. Neither one gets immunity and they
both get prosecuted.
That's, you know, a good person could shoot holes in a
hypothetical but it's an example, I think, of how this
law could be used to prosecute someone based on their
own testimony.
MS. PARKES disagreed with Senator French and Mr. Brown's
analysis of the Gonzales case. The court found, in the Gonzales
case, the state's use derivative use immunity was
unconstitutional and said the state must give transactional
immunity. The court opinion contained strong language that said
bad things could flow from forcing someone to testify by giving
that person transactional immunity. Therefore, a person cannot
be prosecuted for the crime he or she is given immunity for
using anything that person says while testifying - period. In
Section 21, DOL is asking for very minor information about the
level of offense the prosecution would be granting immunity for
to get, what is often, very important evidence in a case.
Regarding the scenario that Senator French described, she noted
that every law can be misused so such a scenario of misuse could
be devised for any statute on the books. In that example, she
said that the prosecutor would already know that of the two sets
of fingerprints on the gun, one set belongs to the killer. The
police would have been investigating that. If a judge tells the
prosecutor one witness has immunity for a high level felony that
is not evidence that can be used at a trial. She thought the
"link in the chain" argument is very tenuous and pointed out
that a witness may be concerned about being cross examined about
drug use while on the witness stand.
She thought from a policy point of view, it is irresponsible
that prosecutors are expected to be able to make decisions about
whether or not to grant immunity with absolutely no information.
Because of that, prosecutors do not give immunity because a
person who is given immunity could take the stand and confess to
a homicide and that person could not be prosecuted. For victims,
that means important evidence is not introduced at trial. She
believes that not allowing prosecutors to know the level of
crime when granting immunity is a disservice to victims and to
the state.
SENATOR FRENCH said if he believed every district attorney in
the state was of Ms. Parkes' caliber, he would not be worried,
but he knows the Supreme Court will look at that provision and
strike it down. He said he wants to vote for this bill on the
Senate floor but does not want to have to do so when it contains
a provision he has reservations about.
CHAIR SEEKINS asked Ms. Parkes' if there is any other way to
disclose information about the level of offense that is less
definitive.
MS. PARKES' said under the analysis laid out by Senator French,
no information could be given.
SENATOR OGAN expressed regret that this one subject is not a
separate bill because the committee could spend a lot of time
discussing that one issue alone.
CHAIR SEEKINS said he has no problem with it if DOL believes it
is constitutional.
SENATOR OGAN said his point was that legislators have a duty to
put a constitutional litmus test on the laws of the state,
rather than giving the courts the arduous duty of undoing a job
done poorly.
CHAIR SEEKINS agreed but said he tends to believe that Section
21 may be constitutional. He then asked for a roll call on
adopting Amendment 7. The motion to adopt Amendment 7 carried
with Senators Ellis, French, and Ogan in favor, and Senator
Seekins opposed.
CHAIR SEEKINS brought up Section 23 but there was no comment. He
then explained that Section 24 deals with consecutive
sentencing.
SENATOR FRENCH asked if that applies to each count or each
victim and whether this entire section is new.
MS. PARKES reminded members that Section 24 is identical to what
was in last year's crime bill. Her understanding is that the
consecutive sentence is for each additional offense.
SENATOR FRENCH said he had no further concerns with Section 24.
No members had concerns with Section 25.
Regarding Section 26, SENATOR FRENCH commented that this section
says once a person has been convicted of a C felony for DWI, the
next DWI conviction would automatically be a felony, no matter
how much time lapsed between the two. He said he has given this
section a lot of thought and is aware of teenagers who have been
convicted of 3 DWIs before they become adults, but he decided
the bottom line is that the core behavior must stop and that the
need for public safety overrides the offender being kept on the
hook for future DWIs.
SENATOR OGAN recounted a scenario in which a respectable, hard
working type guy was pulled over for a minor traffic offense
after attending a reception. He had been convicted of a DWI 20
years ago so would be looking at another felony, even though his
blood alcohol level (BAC) was .08.
SENATOR FRENCH said the Anchorage Police Department (APD) gives
a class to teach cadets how to detect alcohol consumption in
people, which he attended once. He guaranteed Senator Ogan that
a BAC of .08 would require a person to drink five or six drinks,
which is not having one or two drinks at a reception. He felt if
a person had a felony DWI as a young person, it should be that
person's lifetime commitment to not drink and drive. He repeated
that he prefers to err on the side of public safety.
CHAIR SEEKINS said he is aware of cases similar to the one
Senator Ogan described and, in both cases, the offender pled to
lesser offenses.
SENATOR OGAN asked if a person could plead to a lesser offense
under Section 26.
MS. PARKES said that is always possible but the prosecutor could
not let that person plead to a misdemeanor DWI. Often the
reduction is to a reckless driving offense.
SENATOR OGAN indicated that he is not soft on habitual alcohol
users in any way.
CHAIR SEEKINS echoed Senator Ogan's remarks.
MS. PARKES reminded members that they adopted Amendment 4
because Section 27 was drafted too broadly.
SENATOR FRENCH expressed concern that the committee's intent may
not be reflected in that language. He questioned whether anyone
can attack the intoxication test. He said he totally supports
the intent of the amendment, that being to keep someone from
saying they had four shots of whiskey and drove home before the
alcohol had any effect.
SENATOR OGAN asked what Section 29 does.
TAPE 04-31, SIDE A
MS. PARKES said Section 29 contains conforming language to
Amendment 4. It references subsection (s) to indicate that
except for that subsection, the rest of the statute is not to be
construed to limit the introduction of any other competent
evidence because subsection (s) does limit it to a degree.
Members had no questions about Sections 30 or 31.
SENATOR FRENCH asked if Section 32 was amended.
MS. PARKES said it was but the Department of Health and Social
Services (DHSS) has another amendment to address a concern about
whether regulations would be drafted to determine what
information state or municipal authorized employees could
release.
CHAIR SEEKINS numbered the DOL proposal as Amendment 8, which
reads as follows:
A M E N D M E N T 8
Page 18, lines 5-31, and page 19, lines 1-17:
Delete all material and insert:
"Sec.32. AS 47.12.310(c) is amended to read:
(c) A state or municipal law enforcement agency
(1) shall disclose information
regarding a case that is
needed by the person or
agency charged with making a
preliminary investigation for
the information of the court
under this chapter;
(2) may disclose to the public
information regarding a
criminal offense in which a
minor is a suspect, victim,
or witness if the minor is
not identified by the
disclosure;
(3) may disclose to school
officials information
regarding a case as may be
necessary to protect the
safety of school students and
staff or to enable the school
to provide appropriate
counseling and supportive
services to meet the needs of
a minor about whom
information is disclosed.
(4) Or a state or municipal
agency or authorized employee
may disclose to the public
information regarding a case
as may be necessary to
protect the safety of the
public; and
(5) May disclose to a victim or
to the victim's insurance
company information,
including copies of reports,
as necessary for civil
litigation or insurance
claims pursued by or against
the victim.
CHAIR SEEKINS moved Amendment 8 for the purpose of discussion.
MS. PATTY WARE, Director of the Division of Juvenile Justice,
DHSS, introduced herself.
MS. PARKES explained to members that Amendment 8 was drafted to
say that this provision would not apply until regulations were
drafted and that only a state or municipal agency or authorized
employee could release the information to indicate "it couldn't
just be any employee willy-nilly letting information out may
disclose to the public information...." That is a little broader
than originally drafted, but it is not much of an extension of
what DHSS can currently do.
MS. WARE pointed out that under AS 47.12.315, DHSS can already
release a fair amount of information on juveniles who have
committed certain offenses. Amendment 8 does not broaden the
scope of information; it only allows other DHSS employees, who
are not currently authorized, to release that information when
there are concerns about public safety.
SENATOR FRENCH asked for examples of when information would and
would not be released.
CHAIR SEEKINS interjected to say that Amendment 8 is intended to
replace Amendment 2.
MS. WARE told members that the Division of Juvenile Justice
(DJJ) used to be part of what is now the Office of Children's
Services (OCS). When there were concerns about child protection
and both agencies were combined, the information could be
released. She said one good example of the intent of Amendment 8
is that it will allow OCS social workers that have concerns
about protection of the public to release information that can
already be publicly disclosed through a DJJ employee.
SENATOR FRENCH asked to whom, specifically, the information
would be released.
MS. WARE said the specifics will be put in regulation. DHSS will
be very careful about who can release the information and will
make sure the regulations are consistent with existing statute.
She noted that under AS 47.12.315 now, information can only be
released if the offender is 13 years or older and committed
certain crimes. In that case, the name, the nature of the
offense, and what will be done about that offense can be
released to the public. Those parameters would remain in place
as DHSS is committed to making sure it is maintaining
appropriate confidentiality.
SENATOR FRENCH maintained that Amendment 8 will not necessarily
broaden the disclosure provision; it will merely move the
responsibility from one agency to another.
MS. WARE said that is correct.
CHAIR SEEKINS asked if it already applies to municipal laws
under current law.
MS. WARE said the current law refers to "a state or municipal
law enforcement agency" so Amendment 8 basically removes "law
enforcement" and broadens the authorization to other employees.
MS. WILSON said she supports Amendment 8 in the sense that
requiring department regulations to be promulgated tightens it
up but she still has some concerns. She noted that it originally
addressed sexual assault and sexual abuse cases. Now, it applies
to any case. Right now under AS 47.12.310, only state and
municipal law enforcement agencies can release the information
for the purpose of protecting the public. Amendment 8 will
expand that ability to OCS and no longer limits disclosure to
serious offenses. She appreciates the requirement for
regulations but would feel more comfortable if it didn't
authorize release of information on any case.
CHAIR SEEKINS noted without further objection to Amendment 8, it
was adopted.
Members had no concerns with Sections 32.
MS. PARKES told members that Section 33 contains conforming
language for the sentencing provisions.
CHAIR SEEKINS noted that Section 34 contains conforming language
and Section 35 contains the effective date.
There being no additional comments, CHAIR SEEKINS announced his
intent to have a final work draft that incorporates all of the
amendments prepared and distributed to members and that he would
bring SB 170 up on Friday for final consideration. He thanked
all members and adjourned the meeting at 2:55 p.m.
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