84th Legislative Session _ 2009

Committee: House Judiciary
Monday, February 23, 2009

                                            P - Present
                                            E - Excused
                                            A - Absent

Roll Call
P    Engels
P    Feinstein
P    Gibson
P    Gosch
P    Hamiel
P    Hoffman
P    Hunt, Vice-Chair
P    Killer
P    Lust
P    Moser
P    Schlekeway
P    Turbiville
P    Cutler, Chair

OTHERS PRESENT: See Original Minutes

The meeting was called to order by Representative Joni Cutler, Chair.

MOTION:     TO APPROVE THE REVISED MINUTES OF FRIDAY, FEBRUARY 20, 2009.

Moved by:    Turbiville
Second by:    Gosch
Action:    Prevailed by voice vote.

         HB 1166: provide for DNA testing for certain inmates for the purposes of determining whether they may have been wrongfully convicted.

         *Prior hearing held on February 11, 2009.
        
Presented by:    Representative Thomas Deadrick

Proponents:    Scott Swier, Office of Attorney General
        Chuck Schroyer, States Attorneys Association

MOTION:     AMEND HB 1166

1166jc

     On amendment (1166jb), in Section 16, delete "regardless of whether such evidence was introduced at trial,".

Moved by:    Hunt
Second by:    Lust
Action:    Prevailed by voice vote.

 MOTION:     AMEND HB 1166

1166jd

     On the printed bill, delete everything after the enacting clause and insert:

     "      Section 1. Upon a written motion by any person who has been convicted of a felony offense, the court that entered the judgment of conviction for the felony offense shall order DNA testing of specific evidence if the court finds that all of the following apply:

             (1)    The petitioner asserts, under penalty of perjury, that the petitioner is actually innocent of the felony offense for which the petitioner is under a sentence of imprisonment or death;

             (2)    The petitioner's conviction is final under chapter 23A-32;

             (3)    The petitioner has exhausted any claim for relief under chapter 21-27 or 28 U.S.C. §  2254;

             (4)    The specific evidence to be tested was secured in relation to the investigation or prosecution of the felony offense for which the petitioner was convicted;

             (5)    The specific evidence was either:

             (a)    Not previously subjected to DNA testing and the petitioner did not:

             (i)    Knowingly and voluntarily waive the right to request DNA testing of that evidence in a court proceeding after the date of enactment of this Act; or

             (ii)    Knowingly fail to request DNA testing of that evidence in a prior petition for relief under chapter 21-27 or 28 U.S.C. § 2254; or

             (b)    Previously subjected to DNA testing and the petitioner is requesting DNA testing using a new method or technology that is substantially more probative than the prior DNA testing;

             (6)    The petitioner shows good cause for the failure to request DNA testing of the specific evidence at the time of trial;

             (7)    The specific evidence to be tested exists, is in the possession of the state, and has been subject to a chain of custody and retained under conditions sufficient to ensure that such evidence has not been substituted, contaminated, tampered with, replaced, or altered in any respect material to the proposed DNA testing;

             (8)    The proposed DNA testing is reasonable in scope, uses scientifically sound methods, and is consistent with accepted forensic practices;

             (9)    The petitioner identifies a theory of defense that:

             (a)    Is consistent with an affirmative defense presented at trial; or

             (b)    Would establish the actual innocence of the petitioner of the felony offense referenced in the petitioner's assertion under subdivision (1); and

             (10)    If the petitioner was convicted following a trial, the identity of the perpetrator was at issue in the trial.

     Section 2. Upon the receipt of the petitioner's written motion filed under section 1 of this Act, the court shall:

             (1)    Notify the attorney general and the state's attorney who prosecuted the case resulting in the petitioner's conviction; and

             (2)    Allow the state twenty days from the receipt of notice to respond to the motion.

     Section 3. The court may not appoint counsel for an indigent petitioner under this Act. However, the court may refer requests for DNA testing to the Innocence Project in South Dakota or such volunteer attorney as the State Bar of South Dakota may designate.

     Section 4. Nothing in this Act precludes a petitioner from proceeding with privately retained counsel.


     Section 5. Upon receiving notice from the court that a written motion has been made, the attorney general or the state's attorney who prosecuted the case, shall take all reasonable actions necessary to ensure that all evidence which was collected in connection with the investigation or prosecution of the case, and which remains in the actual or constructive custody of the state or any of its political subdivisions, is preserved pending completion of the proceedings under this Act.

     Section 6. The court shall direct that any DNA testing ordered pursuant to section 1 of this Act be carried out by the South Dakota Division of Criminal Investigation. However, the court may order DNA testing by another qualified laboratory if the court makes all necessary orders to ensure the integrity of the specific evidence and the reliability of the testing process and test results.

     Section 7. Nothing in this Act prohibits a convicted person and the state from consenting to and conducting post-conviction DNA testing by agreement of the parties, without filing a motion for post-conviction DNA testing pursuant to this Act.

     Section 8. The results of any DNA testing ordered pursuant to section 1 of this Act shall be disclosed to the court, the petitioner, and the state.

     Section 9. The state shall submit any test results relating to the DNA of the petitioner to the State DNA Database.

     Section 10. If the DNA test results obtained pursuant to this Act are inconclusive or show that the petitioner was the source of the DNA evidence, the DNA sample of the petitioner shall be retained in the State DNA Database.

     Section 11. If the DNA test results obtained pursuant to this Act exclude the petitioner as the source of the DNA evidence, and a comparison of the DNA sample of the petitioner results in a match between the DNA sample of the petitioner and another offense, the attorney general shall notify the appropriate agency and preserve the DNA sample of the petitioner.

     Section 12. If DNA test results obtained pursuant to this Act are inconclusive, the circuit court shall deny the petitioner relief.

     Section 13. If DNA test results obtained pursuant to this Act show that the petitioner was the source of the DNA evidence, the court shall:

             (1)    Deny the petitioner relief; and

             (2)    On motion of the state:

             (a)    Assess the petitioner the cost of any DNA testing carried out pursuant to this Act; and

             (b)    Order that the finding be forwarded to the South Dakota Board of Pardons and Paroles so that the board may consider the finding in reviewing any subsequent parole application submitted by the petitioner.

     Section 14. In any prosecution of the petitioner pursuant to this Act for false assertions or other conduct in proceedings pursuant to this Act, the court, upon conviction of the petitioner, shall sentence the petitioner to a sentence that runs consecutively to any other term of imprisonment the petitioner is serving.

     Section 15. If DNA test results obtained pursuant to this Act exclude the petitioner as the source of the DNA evidence, the petitioner may file a motion for a new trial. The court shall establish a reasonable schedule for the petitioner to file such motion for a new trial and for the state to respond to the motion for a new trial.

     Section 16. The court shall grant the motion of the petitioner for a new trial if the DNA test results, when considered with all other evidence in the case, establish by compelling evidence that a new trial would result in the acquittal of the felony offense, as referenced in section 1 of this Act, for which the petitioner is under a sentence of imprisonment.

     Section 17. Nothing in this Act provides a basis for relief in any state or federal habeas corpus proceeding."



Moved by:    Hunt
Second by:    Gibson
Action:    Prevailed by roll call vote. (12-1-0-0)

Voting Yes:    Engels, Feinstein, Gibson, Gosch, Hamiel, Hoffman, Hunt, Killer, Moser, Schlekeway, Turbiville, Cutler

Voting No:    Lust

 MOTION:     DO PASS HB 1166 AS AMENDED

Moved by:    Hunt
Second by:    Moser
Action:    Prevailed by roll call vote. (12-1-0-0)

Voting Yes:    Engels, Feinstein, Gibson, Gosch, Hamiel, Hoffman, Hunt, Killer, Moser, Schlekeway, Turbiville, Cutler

Voting No:    Lust

The gavel was passed to Representative Roger Hunt, Vice-Chair.

         HB 1153: revise the elements of the crime of indecent exposure involving a child and to revise the elements of the crime of indecent exposure.

Presented by:    Representative Joni Cutler
Proponents:    Chuck Schroyer, States Attorneys Association
        Hope Matchan, Minnehaha County States Attorney's Office
        Susan Randall, Voices For Children

MOTION:     DO PASS HB 1153

Moved by:    Lust
Second by:    Moser
Action:    Prevailed by roll call vote. (13-0-0-0)

Voting Yes:    Engels, Feinstein, Gibson, Gosch, Hamiel, Hoffman, Hunt, Killer, Lust, Moser, Schlekeway, Turbiville, Cutler

The gavel was returned to the Chair.

         HB 1262: revise certain provisions regarding paternity and termination of parental rights.

Presented by:    Representative Roger Hunt
Proponents:    John Hughes, Self, Sioux Falls
        Mary Beck, Self, Columbia, Mo.
        Jennifer Jerke, Self, Mitchell
        Coleen Globke, Self, Marion
        Chris Hupke, Family Policy Council
        Jodi Owen, Self, Pierre
Opponents:    Dan Todd, Department of Social Services
        Doneen Hollingsworth, Department of Health

MOTION:     DO PASS HB 1262

Moved by:    Moser
Second by:    Hunt
Action:    Prevailed by roll call vote. (7-6-0-0)

Voting Yes:    Hamiel, Hoffman, Hunt, Lust, Moser, Schlekeway, Turbiville

Voting No:    Engels, Feinstein, Gibson, Gosch, Killer, Cutler

        THE CHAIR DEFERRED SB 6 AND SB 7 UNTIL WEDNESDAY, FEBRUARY 25, 2009.

The gavel was passed to Representative Roger Hunt, Vice-Chair.

         SB 123: revise certain evidentiary rules relating to the statements of children.

Proponents:    Chuck Schroyer, States Attorneys Association
        Bonnie Costain, Minnehaha County States Attorneys Office
        Dan Todd, Department of Social Services

MOTION:     DO PASS SB 123

Moved by:    Engels
Second by:    Gibson
Action:    Prevailed by roll call vote. (12-0-1-0)

Voting Yes:    Engels, Gibson, Gosch, Hamiel, Hoffman, Hunt, Killer, Lust, Moser, Schlekeway, Turbiville, Cutler

Excused:    Feinstein

MOTION:     PLACE SB 123 ON CONSENT CALENDAR

Moved by:    Turbiville
Second by:    Gosch
Action:    Prevailed by voice vote.

The gavel was returned to the Chair.

         SB 71: broaden the application of the public indecency and indecent exposure statutes.

Presented by:    Senator Sandy Jerstad
Proponents:    Tammy Vink, Self, Tea
        Troy Vink, Self, Tea
        Fran Anderson, Self, Sioux Falls
        Char Wollan, Self, Sioux Falls
        Debra Poss, Self, Sioux Falls
        Jodi Owen, Self, Pierre

MOTION:     DEFER SB 71 TO THE 41ST LEGISLATIVE DAY

Moved by:    Turbiville
Second by:    Moser
Action:    Prevailed by roll call vote. (8-4-1-0)

Voting Yes:    Gosch, Hamiel, Hunt, Lust, Moser, Schlekeway, Turbiville, Cutler

Voting No:    Engels, Gibson, Hoffman, Killer

Excused:    Feinstein


MOTION:     ADJOURN

Moved by:    Hunt
Second by:    Gibson
Action:    Prevailed by voice vote.

Linda Daugaard

____________________________

Committee Secretary
Joni M. Cutler, Chair