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House | June 26, 2014 | Committee Room | Appropriations

Full MP3 Audio File

The committee will come to order. Members will take their seats. Guests and visitors will please silence all cell phones and silence any conversations, if you’ve got a conversation please take it outside. We have a limited amount of time. We have one bill before us. We have a limited amount of time so we want to be able to move forward on this in an expeditious and appropriate fashion. Pages that we have with us, our same group of pages from yesterday, our same group of sergeant at arms from yesterday. Our first bill, our only bill that we have is a proposed committee substitute to Senate bill 594. Motion that Representative Horne moves that the PCS be properly before the committee. All in favor say aye. [SPEAKER CHANGES] Aye. [SPEAKER CHANGES] Opposed no. The PCS is properly before the committee, and Representative Burr is recognized to explain the proposed committee substitute. [SPEAKER CHANGES] Thank you, Mr. Chairman. This is a bill that was referred to appropriations after being heard in judiciary C, I believe last week or the week before. There are a few changes with this PCS from what was heard in JC, a number of which were two reduce the costs that you have the fiscal note in front of you and the fiscal note, the fiscal impact to the state is substantially less than what was heard in JC. So we seek to address those issues and concerns, and then the bill also removes several provisions including the Venus Flytrap provision that was in here, one or two items that we had helped Mr. Pell go over and it also includes the transfer of the SBI and the consolidation of the SBI and the ALE and also authorizes for the funding for the child sex crimes division to handle the online predator issues and to beef up that staff as was included in the House budget, so that they can get to work there and they’re not waiting on the budget to be passed. So whenever that time may come and we can start the process of allowing this transition to happen and let the agents focus on their jobs and certainly beef up the staff there. And we also have one other change with that section. At the request of the Department of Justice, just to make sure that they’re keeping positions that are needed as you’ll see starting on page 23 over to page 24, making sure that positions for the crime lab are staying within the Department of Justice and are not transferred so we’re making sure that that’s very clear that those positions are and work with them to get that provision put in there and be happy if members would like for Mr. Pell to run through the different provisions in the bill. Otherwise happy to take any questions and will once staff completes, have one additional amendment, Mr. Chair, that we’ll be running at the request of Department of Justice that will assist with remote testimony, something Representative Glazier that was heard in our Judicial Efficiency bill that they’ve requested, Judge John has requested, and waiting on that to be finalized. But in the meantime, happy to take any questions or have Mr. Pell run through the bill. [SPEAKER CHANGES] Let’s have staff briefly run through the bill. [SPEAKER CHANGES] Mr. Chair, members of the committee, first section of the bill carrying concealed weapons. It increases the penalty for carrying a concealed handgun. Excuse me, that’s the second section. The first section of the bill provides additional authority for persons to carry concealed. This is by authority of the Department of Public Safety. If they have a concealed handgun permit, and written proof of that permission, then they have the same authority to have that handgun in places that currently the district attorney and others have to carry it. Part two increases the penalty for selling a cell phone to an inmate, or makes it unlawful for a state inmate to possess a cell phone. Currently there’s no penalty for an inmate

00:00 to actually a state inmate to possess a cellphone it only applies to local government inmates this also increases the penalty for transferring a cellphone to a local government inmate or a state inmate, the part three of the bill creates a new offense for assaulting a person as retaliation against any legislative officer, executive officer, a court officer because of the exercise of that officer's duties currently it's an offense to assault those officers but it is not an offense to assault someone else due to the exercise of the duties by that officer the penalty remains the same for both offenses. The section 3.3 of the bill on page 3 does create a new offense provides that a person who's committed or confined in a state institution that solicits another person to commit a felony that is outside of the institution is guilty of a felony that is one class lower than the felony committed under current law the solicitation offense normally is two classes lower than the offense this would make a in the circumstance of a prison inmate doing this it would be one felony grade lower, section four increases the penalties for certain offenses and violations of the amusement device, a section of the labor statutes chapter 95 over on page 4 as noted in the bill varies increases in the amounts of penalties for those offences, the provision that [??] page 4 provides that any person who willfully violates the provision and causes serious injury or death is guilty of a class E felony this would be a new criminal offense in the statutes and also [??] to a fine of not more than fifty thousand dollars, part five is part technical part clarification there's a current problem with people that get expunsions under the statutes that was passed last session if they qualified and were granted an expunsion they were background checks being run and because that bill had put the term fingerprints in the statute the record had been attached to those and even though they had had an offense expunged the background check was coming up that they had been convicted of an offense this merely deletes that provision and makes it consistent with the other expunsion statutes that we already have, part six I would probably defer to fiscal staff on that and I'll just skip to part seven, part seven adds retired qualified correctional officers to the safety training course requirement for a concealed carry permanent, that is just currently those correctional officers are not included in the list which'll include [??] enforcement officers, former law enforcement officers, and retired probation and payroll officers if they are meet the definition of qualified that's on pages 25 to 26 then they for that period would not have to take the training course part eight conforms our law with a very recent US supreme court ruling in holoby Florida this changes the term from mentally retarded defendants to intellectual disability which is the commonly now accepted term in holoby Florida the supreme court said that you cannot use a straight 70 score for a IQ test to differench between somebody that is intellectually disabled or not this imposes or requires a consideration of the standard error of measurement to that requirement and includes language from the US supreme court case and then in that case our statute will conform with that supreme court decision part nine is to increase the penalty for graffiti vandalism that section would be a new section in the criminal statutes it would be a class one [??] however a person who does commit the offense shall be guilty of a class I felony if either of the following apply and this is on page 27 lines 46 through 48 cost of repair is a thousand dollars and excess of thousand dollars or they have two or more prior convictions for violation the last part ten is unfair use of criminal record information this is relates to the mug shots you may have heard about. 05:00

… are being published on the internet, the person much do both of the following. On page 28, lines 19 through 23, they must engage in publishing or in disseminating in print or over the internet the photographs, and also must solicit or accept payment of a fee to remove the individual’s photograph. If there are any questions ?? [SPEAKER CHANGES] Thank you. Representative Michaux. [SPEAKER CHANGES] This is the time for questions, Mr. Chairman? [SPEAKER CHANGES] We will take questions or we can dispense with the amendment. Why don’t we dispense with the amendment? [SPEAKER CHANGES] Well your pleasure; whatever you want to do. [SPEAKER CHANGES] There’s some time delay. Go ahead. Proceed with your inquiry. [SPEAKER CHANGES] My question is in looking at this bill, this bill basically, the major portion of this bill involves the transfer of the SBI, something that was a matter that was included in both the Senate and the House. Am I correct on that? [SPEAKER CHANGES] Representative Michaux, you are correct. It’s an item that’s not in controversy in the House and Senate budget, and as the conferees continue to iron out differences of the budget, this is one that ultimately will be in whatever’s finally produced, but this is an effort to make sure that this transition can start in a timely fashion and not have to wait on the General Assembly to start. [SPEAKER CHANGES] Follow-up, Mr. Chair? [SPEAKER CHANGES] Follow-up. [SPEAKER CHANGES] I keep wondering why we are doing this. If this is a matter that has been agreed upon by both parties, why are we coming back and introducing pieces of legislation to put this into effect? Is it that we’re not going to use our conference committee to iron out the differences, or just what’s the situation going on here? [SPEAKER CHANGES] Further questions? If not, we have an amendment that is offered by Representative Stam. [SPEAKER CHANGES] Wait, he didn’t answer my question. He didn’t answer my question. I asked a question. [SPEAKER CHANGES] It sounded like a statement. [SPEAKER CHANGES] No, I asked a question. That was a question. [SPEAKER CHANGES] The gentleman may respond if he wishes. [SPEAKER CHANGES] Representative Michaux, I’m happy to address your question. I think at the end of the day the Conference Committee will produce a budget, but I think in the meantime there were a number of items in here that were included in the Senate budget that we’re taken out and we wanted to run them through the appropriate committees. We’re doing that but we’re also including a provision that transfers the SBI to go ahead and allow that to take place and not have to hold off, so we’re trying to move that process along for this piece of it. [SPEAKER CHANGES] Representative Stam is recognized. [SPEAKER CHANGES] Thanks. I will have an amendment on page 3, section 3.3, and it hasn’t been passed out yet but I can explain it. [SPEAKER CHANGES] The members should have it. We have an amendment. The Chair is in possession of Amendment ALU-39 V2. [SPEAKER CHANGES] But I could explain it because it just deletes a section. [SPEAKER CHANGES] If the Sergeant-At-Arms could pass out that amendment. The committee will be at ease for a moment. Members in possession of that amendment? Representative Stam is recognized. [SPEAKER CHANGES] Mr. Chairman, I’m going to move to delete section 3.3, and it’s not because I’m soft on crime. On the back of your amendment is the existing law where a solicitation is two grades lower than the underlying felony for crimes… they’re called inchoate crimes that haven’t happened, where the actual bad thing hasn’t happened yet but where you’re working up to it. Conspiracy, solicitation, attempt, and then the actual bad deed. If you have these inchoate crimes so close to the punishment for the underlying crime, then the effect is to make the murdering somebody sort of cost free, or robbing them or beating their kneecaps out, so to me, this is for the safety of the victims, that you not have the penalties so close, and the policy for that is the same for all crimes, and it really doesn’t matter whether it’s for an inmate in prison or not. It’s good policy to have enough difference, so I hope you’ll vote for that amendment. It may safe somebody’s life.

I will, if someone from the department can, or prisons is prepared to speak on this amendment, I will take Representative Glazier’s comments and then I want to hear from the department on this one. Representative Glazier. [SPEAKER CHANGES] Thank you very much, Mr. Chair. And I agree completely with Representative Stam. It is a ?? crime and the other part of it is that solicitation is actually the least of the ?? crimes, it’s actually worse going up the chain to conspire with others and to attempt. And so you do want as a matter of safety to have some limitation, otherwise what’s going to happen is it’s going to be the criminal involved will have no reason not to follow through to eliminate the witness. Because there’s no differentiation in the penalty. So you effectively create almost the same penalty for the murder or whatever it may be, as you do for the solicitation and so I think for pure safety reasons he’s absolutely correct. [SPEAKER CHANGES] It’s my, well I shouldn’t really be commenting from the Chair, but I would observe one thing, that what happens in prisons, they don’t go back and make those kinds of calculations and I think you all realize that. And the other thing is I would like to hear from the department because it was my understanding this was a provision they had an interest in, if someone from the department of public safety is here, and wishes to comment? If not? And I understand the conference of DAs has a comment on this. If you will state your, I think I know who you are. If you will state [SPEAKER CHANGES] You may recognize me. I’m Laurie Dollar, chief operating officer with the department of public safety. One of the issues that the department is trying to address with this is, in many instances it is apparent that the person that is doing the solicitation may have more leverage over the person that actually perpetrates the criminal offense. We have come to learn in a number of instances that quite often those people that are engaged to commit offenses on behalf of someone that’s engaged in a criminal enterprise may not necessarily be participating in that offense for reasons of personal gain other than maintaining security over their family members or their person. So one of the issues that we had to confront in looking at this is trying to make a determination, what do you do in the situations where the actual person that perpetrates the offense is less culpable, and then what do you do in the situations where the person is more culpable? [NOISE] Hopefully this is, okay. So the other concern that the department has in this area is in many instances the person that is perpetrating the actual offense is in fact a member of the criminal enterprise who is outside the four walls of our prison facility and they are equally or more culpable for the activity that takes place, so what we think is that there needs to be flexibility with this and by allowing the greater level to be a matter to be charged that just because the person planning something may be the actual one that puts something in motion, they’re not necessarily always the individual responsible for the direct action and so that’s one reason the department thought it was significant to have the flexibility in the hands of the district attorneys out there to make a determination based on what the criminal investigation is going to lead them to conclude, about who may be more responsible for the criminal act. [SPEAKER CHANGES] Thank you, and I understand that the conference of district attorneys is prepared to comment on this. [SPEAKER CHANGES] I’m Peg Dorr with the conference of district attorneys. This is of course the assaults and the threats and the cell phone issues are direct response from the kidnaping of the prosecutor’s father that happened in Wake County. We are very interested in seeing all of these things passed, however we certainly defer to the wisdom of the committee members on the issue of the threats.

...we're fine with that. [SPEAKER CHANGES] Representative Blackwell? [SPEAKER CHANGES] I have a question, if I may, for Ms. Fowler. [SPEAKER CHANGES] Ms. Fowler, if you would approach the microphone. In the interest of time, Senator... [SPEAKER CHANGES] I can go ahead and ask the question while she's walking up. This is not an area that I claim to have practiced in or to know much about it except I was told at church as recently as two weekends ago about an incident, which I understand involved the execution of an employee who I believe, I don't know all the facts, Ms. Dollar, and that's why I'm asking this question, hoping maybe you can enlighten me. But it was an execution which I was led to believe by a member, a fellow who works for DOC, related two incidents at, I believe, is it Landsdown Prison? [SPEAKER CHANGES] Lanesboro. [SPEAKER CHANGES] That an inmate who was upset with the enforcement, I believe, of the restrictions on cell phones ordered a hit on an individual who had either reported the cell phone. I think it may have been one of our guards. And that they forced that individual, people on the outside of the prison in response to what was described to me as an ordered hit, accosted the individual that they were going to hit. Had them kneel and basically executed them on the spot. I'm wondering if this is in part, I don't know whether that's factual and maybe you do, but I'm wondering if it's that kind of incident that this provision is designed to address more effectively than the existing statutory provision. [SPEAKER CHANGES] Thank you for that question, Representative Blackwell. I'm not really at liberty to speak about the merits of the circumstances that you've described. But I will tell this committee that we deal with things everyday within the Department of Public Safety that frequently span the breadth of our department and the breadth of this state in terms of the kind of criminal enterprise that's going on state wide and sometimes I feel like we need a scorecard to figure out which side different people are on. We do have issues of retaliation against our staff, both inside the prison facilities and outside the prison facilities and I think the recent incident with Assistant District Attorney Janson and her family clearly exemplifies the kind of circumstances that all the citizens in the state of North Carolina are dealing with at this point in time. And we are looking to add another potential tool out there for the district attorneys and for local law enforcement in giving them measures that might more appropriately deal with the circumstances that they're being confronted with. [SPEAKER CHANGES] Further questions from members of the committee? Representative Stam. [SPEAKER CHANGES] Speak a second time. This amendment is not for the comfort or convenience of the criminal. It's for the safety of potential victims. Do criminals calculate what's going to happen to them? Most don't, some do. So if it has deterrent effect, that assumes they calculate. If they don't calculate, raising this penalty has no deterrent effect. But if they go beyond solicitation, where they're actually planning, they may be an aider and abettor or if they actually agree with somebody they're a conspirator, or if they're actually part of the attempt. I believe attempt is one grade lower than the underlying felony, but this is talking about pure solicitation and you don't want people to go beyond the solicitation because they are already punished so much that there's not incentive to desist. So I encourage you to vote for the amendment. [SPEAKER CHANGES] You've heard from both sides on this amendment. All those in favor of the amendment, say aye. All opposed say no. Chair is unable to determine. All those in favor of the amendment, please raise your hand. ?? will count.

All those opposed. OK. The Chair is able to determine the ayes have it and the amendment is agreed to. There is another amendment that has been passed out. It is ALL-98V2, ALL-98V2 and I believe it's offered by Chairman Burr. [SPEAKER CHANGES] Thank you, Mr. Chair. I briefly explained it awhile ago. This is an amendment to add in a section that came out of the Judicial Efficiency Committee and was also requested to be added in here by Judge John and Department of Justice so we are doing just that with this amendment. I would ask for your support. [SPEAKER CHANGES] One question, Mr. Chairman. [SPEAKER CHANGES] Representative Stam's recognized. [SPEAKER CHANGES] I totally support this amendment. It's probably the greatest thing in this bill if it passes. The effective date December 1, we usually do that for new crimes to give criminals plenty of notice of what not to do. But wouldn't this be one that should go into effect just as soon as possible, if you'd be amenable to a sooner effective date? [SPEAKER CHANGES] We have a very limited amount of time, you know, that is something that could probably be taken up in technical corrections later. [SPEAKER CHANGES] Further comment on the amendment? Representative Michaux? [SPEAKER CHANGES] Yeah, I want to be sure that the authority, the defendant or his attorney, can request that that scientist be there in person. Is that still in here or did you take that out? [SPEAKER CHANGES] I believe it's still in there, if I'm not mistaken, it's still in there but I'll leave, glad to, how tell. Representative Glazier can even answer that if that's alright with the Chair. [SPEAKER CHANGES] He's sitting next to me so I trust him. [SPEAKER CHANGES] All right. [SPEAKER CHANGES] OK. I think we settled that. Further questions on the amendment? Seeing none, all those in favor of the amendment please signify by saying aye, opposed no. The ayes have it and the amendment is agreed to. There is, I believe, a final amendment being passed out. Offered by Representative Floyd. I believe this is a hand done amendment. Committee will be at ease for just a brief moment while the Sergeant-at-Arms finishes passing this amendment out. And the Chair stands corrected. There are also two additional amendments that are being worked on. These will be the final two, following the Floyd amendment, those two amendments will be the final two that we will take up here in committee before we vote. Representative Floyd is recognized to explain his amendment. [SPEAKER CHANGES] Mr. Chair, this is a very simple amendment. During the final moments, many people are put to rest. And some time when the family goes back and visits their resting place, they find that the tombstone has been turned over, kicked over, or broken and those kinds of things and it's a very sad moment. We had such two incidents and ?? over the last five years. So that's why, you know, I send forth this amendments. [SPEAKER CHANGES] I'm see...