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.