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H0533aaS.............................by JUDICIARY, RULES AND ADMINISTRATION
DEATH PENALTY - Amends existing law to provide for the death penalty for
murder in the perpetration of certain sexual crimes.
02/02 House intro - 1st rdg - to printing
02/03 Rpt prt - to Jud
02/10 Rpt out - rec d/p - to 2nd rdg
02/13 2nd rdg - to 3rd rdg
02/15 3rd rdg - PASSED - 59-3-8
AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer, Bell,
Bilbao, Block, Boe, Bolz, Brackett, Bradford, Cannon, Chadderdon,
Clark, Collins, Crow, Denney, Edmunson, Ellsworth, Eskridge,
Field(18), Field(23), Garrett, Hart(Jacobson), Harwood, Henbest,
Henderson, Jaquet, Kemp, Lake, Loertscher, Martinez, Mathews,
McGeachin, McKague, Miller, Moyle, Nielsen, Nonini, Pence, Raybould,
Ring, Roberts, Rusche, Rydalch, Sayler, Schaefer, Shepherd(2),
Shepherd(8), Shirley, Skippen, Smith(24), Smylie, Snodgrass, Trail,
Wills, Wood
NAYS -- Pasley-Stuart, Ringo, Smith(30)
Absent and excused -- Bedke, Black, Deal, LeFavour, Mitchell, Sali,
Stevenson, Mr. Speaker
Floor Sponsor - Clark
Title apvd - to Senate
02/16 Senate intro - 1st rdg - to Jud
02/21 Rpt out - to 14th Ord
02/28 Rpt out amen - to 1st rdg as amen
03/01 1st rdg - to 2nd rdg as amen
03/02 2nd rdg - to 3rd rdg as amen
03/07 3rd rdg as amen - PASSED - 34-0-1
AYES -- Andreason, Brandt, Broadsword, Bunderson, Burkett, Cameron,
Coiner, Compton, Corder, Darrington, Davis, Fulcher, Gannon, Geddes,
Goedde, Hill, Jorgenson, Kelly, Keough, Langhorst, Little, Lodge,
Malepeai, Marley, McGee, McKenzie, Pearce, Richardson, Schroeder,
Stegner, Stennett, Sweet, Werk, Williams
NAYS -- None
Absent and excused -- Burtenshaw
Floor Sponsor - Jorgenson
Title apvd - to House
03/08 House concurred in Senate amens - to engros
03/09 Rpt engros - 1st rdg - to 2nd rdg as amen
03/10 2nd rdg - to 3rd rdg as amen
03/13 3rd rdg as amen - PASSED - 64-3-3
AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer,
Bedke, Bell, Bilbao, Black, Boe, Bolz, Brackett, Cannon, Chadderdon,
Clark, Collins, Crow, Denney, Edmunson, Ellsworth, Eskridge,
Field(18), Field(23), Garrett, Hart, Harwood, Henbest, Henderson,
Jaquet, Kemp, Lake, Loertscher, Martinez, Mathews, McGeachin,
McKague, Miller, Mitchell, Moyle, Nielsen, Nonini, Pence, Raybould,
Ring, Roberts, Rusche, Rydalch, Sali, Sayler, Schaefer, Shepherd(2),
Shepherd(8), Shirley, Skippen, Smith(30), Smith(24), Smylie,
Snodgrass, Stevenson, Trail, Wills, Wood, Mr. Speaker
NAYS -- LeFavour, Pasley-Stuart, Ringo
Absent and excused -- Block, Bradford, Deal
Floor Sponsor - Clark
Title apvd - To enrol
03/14 Rpt enrol - Sp signed
03/15 Pres signed
03/16 To Governor
03/22 Governor signed
Session Law Chapter 129
Effective: 03/22/06
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature Second Regular Session - 2006
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 533
BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE
1 AN ACT
2 RELATING TO THE DEATH PENALTY; AMENDING SECTION 19-2515, IDAHO CODE, TO PRO-
3 VIDE ADDITIONAL STATUTORY AGGRAVATING CIRCUMSTANCES; AND AMENDING SECTION
4 19-2515A, IDAHO CODE, TO PROVIDE A CORRECT CODE REFERENCE.
5 Be It Enacted by the Legislature of the State of Idaho:
6 SECTION 1. That Section 19-2515, Idaho Code, be, and the same is hereby
7 amended to read as follows:
8 19-2515. SENTENCE IN CAPITAL CASES -- SPECIAL SENTENCING PROCEEDING --
9 STATUTORY AGGRAVATING CIRCUMSTANCES -- SPECIAL VERDICT OR WRITTEN FINDINGS.
10 (1) Except as provided in section 19-2515A, Idaho Code, a person convicted of
11 murder in the first degree shall be liable for the imposition of the penalty
12 of death if such person killed, intended a killing, or acted with reckless
13 indifference to human life, irrespective of whether such person directly com-
14 mitted the acts that caused death.
15 (2) Where a person is sentenced to serve a term in the penitentiary,
16 after conviction of a crime which falls within the provisions of section
17 20-223, Idaho Code, except in cases where the court retains jurisdiction, the
18 comments and arguments of the counsel for the state and the defendant relative
19 to the sentencing and the comments of the judge relative to the sentencing
20 shall be recorded. If the comments are recorded electronically, they need not
21 be transcribed. Otherwise, they shall be transcribed by the court reporter.
22 (3) Where a person is convicted of an offense which may be punishable by
23 death, a sentence of death shall not be imposed unless:
24 (a) A notice of intent to seek the death penalty was filed and served as
25 provided in section 18-4004A, Idaho Code; and
26 (b) The jury, or the court if a jury is waived, finds beyond a reasonable
27 doubt at least one (1) statutory aggravating circumstance. Where a statu-
28 tory aggravating circumstance is found, the defendant shall be sentenced
29 to death unless mitigating circumstances which may be presented are found
30 to be sufficiently compelling that the death penalty would be unjust. The
31 jury shall not direct imposition of a sentence of death unless it unani-
32 mously finds at least one (1) statutory aggravating circumstance and unan-
33 imously determines that the penalty of death should be imposed.
34 (4) Notwithstanding any court rule to the contrary, when a defendant is
35 adjudicated guilty of murder in the first degree, whether by acceptance of a
36 plea of guilty, by verdict of a jury, or by decision of the trial court sit-
37 ting without a jury, no presentence investigation shall be conducted; provided
38 however, that if a special sentencing proceeding is not held or if a special
39 sentencing proceeding is held but no statutory aggravating circumstance has
40 been proven beyond a reasonable doubt, the court may order that a presentence
41 investigation be conducted.
42 (5) (a) If a person is adjudicated guilty of murder in the first degree,
43 whether by acceptance of a plea of guilty, by verdict of a jury, or by
2
1 decision of the trial court sitting without a jury, and a notice of intent
2 to seek the death penalty was filed and served as provided in section
3 18-4004A, Idaho Code, a special sentencing proceeding shall be held
4 promptly for the purpose of hearing all relevant evidence and arguments of
5 counsel in aggravation and mitigation of the offense. Information concern-
6 ing the victim and the impact that the death of the victim has had on the
7 victim's family is relevant and admissible. Such information shall be
8 designed to demonstrate the victim's uniqueness as an individual human
9 being and the resultant loss to the community by the victim's death.
10 Characterizations and opinions about the crime, the defendant and the
11 appropriate sentence shall not be permitted as part of any victim impact
12 information. The special sentencing proceeding shall be conducted before a
13 jury unless a jury is waived by the defendant with the consent of the
14 prosecuting attorney.
15 (b) If the defendant's guilt was determined by a jury verdict, the same
16 jury shall hear the special sentencing proceeding; provided however, that
17 if it is impracticable to reconvene the same jury to hear the special sen-
18 tencing proceeding due to an insufficient number of jurors, the trial
19 court may dismiss that jury and convene a new jury of twelve (12) persons,
20 plus alternate jurors as the trial court deems necessary pursuant to sec-
21 tion 19-1904, Idaho Code.
22 (c) If the defendant's guilt was determined by a plea of guilty or by a
23 decision of the trial court sitting without a jury, or if a retrial of the
24 special sentencing proceeding is necessary for any reason including, but
25 not limited to, a mistrial in a previous special sentencing proceeding or
26 as a consequence of a remand from an appellate court, the trial court
27 shall impanel a jury of twelve (12) persons, plus alternate jurors as the
28 trial court deems necessary pursuant to section 19-1904, Idaho Code,
29 unless such jury is waived.
30 (d) If a special sentencing proceeding is conducted before a newly impan-
31 eled jury pursuant to the provisions of subsection (5)(b) or (5)(c) of
32 this section, the state and the defense may present evidence to inform the
33 jury of the nature and circumstances of the murder for which the defendant
34 was convicted. The newly impaneled jury shall be instructed that the
35 defendant has previously been found guilty of first-degree murder and that
36 the jury's purpose is limited to making findings relevant for sentencing.
37 (6) At the special sentencing proceeding, the state and the defendant
38 shall be entitled to present all relevant evidence in aggravation and mitiga-
39 tion. Disclosure of evidence to be relied on in the sentencing proceeding
40 shall be made in accordance with Idaho criminal rule 16. Evidence admitted at
41 trial shall be considered and need not be repeated at the sentencing hearing.
42 (7) The jury shall be informed as follows:
43 (a) If the jury finds that a statutory aggravating circumstance exists
44 and no mitigating circumstances exist which would make the imposition of
45 the death penalty unjust, the defendant will be sentenced to death by the
46 court.
47 (b) If the jury finds the existence of a statutory aggravating circum-
48 stance but finds that the existence of mitigating circumstances makes the
49 imposition of the death penalty unjust or the jury cannot unanimously
50 agree on whether the existence of mitigating circumstances makes the impo-
51 sition of the death penalty unjust, the defendant will be sentenced to a
52 term of life imprisonment without the possibility of parole; and
53 (c) If the jury does not find the existence of a statutory aggravating
54 circumstance or if the jury cannot unanimously agree on the existence of a
55 statutory aggravating circumstance, the defendant will be sentenced by the
3
1 court to a term of life imprisonment with a fixed term of not less than
2 ten (10) years.
3 (8) Upon the conclusion of the evidence and arguments in mitigation and
4 aggravation:
5 (a) With regard to each statutory aggravating circumstance alleged by the
6 state, the jury shall return a special verdict stating:
7 (i) Whether the statutory aggravating circumstance has been proven
8 beyond a reasonable doubt; and
9 (ii) If the statutory aggravating circumstance has been proven
10 beyond a reasonable doubt, whether all mitigating circumstances, when
11 weighed against the aggravating circumstance, are sufficiently com-
12 pelling that the death penalty would be unjust.
13 (b) If a jury has been waived, the court shall:
14 (i) Make written findings setting forth any statutory aggravating
15 circumstance found beyond a reasonable doubt;
16 (ii) Set forth in writing any mitigating circumstances considered;
17 and
18 (iii) Upon weighing all mitigating circumstances against each statu-
19 tory aggravating circumstance separately, determine whether mitigat-
20 ing circumstances are found to be sufficiently compelling that the
21 death penalty would be unjust and detail in writing its reasons for
22 so finding.
23 (9) The following are statutory aggravating circumstances, at least one
24 (1) of which must be found to exist beyond a reasonable doubt before a sen-
25 tence of death can be imposed:
26 (a) The defendant was previously convicted of another murder.
27 (b) At the time the murder was committed the defendant also committed
28 another murder.
29 (c) The defendant knowingly created a great risk of death to many per-
30 sons.
31 (d) The murder was committed for remuneration or the promise of remunera-
32 tion or the defendant employed another to commit the murder for remunera-
33 tion or the promise of remuneration.
34 (e) The murder was especially heinous, atrocious or cruel, manifesting
35 exceptional depravity.
36 (f) By the murder, or circumstances surrounding its commission, the
37 defendant exhibited utter disregard for human life.
38 (g) The murder was committed in the perpetration of, or attempt to perpe-
39 trate, arson, rape, robbery, burglary, kidnapping or mayhem and the
40 defendant killed, intended a killing, or acted with reckless indifference
41 to human life.
42 (h) The murder was committed in the perpetration of, or attempt to perpe-
43 trate, an infamous crime against nature, lewd and lascivious conduct with
44 a minor, sexual abuse of a child under sixteen (16) years of age,
45 ritualized abuse of a child, sexual exploitation of a child, sexual bat-
46 tery of a minor child sixteen (16) or seventeen (17) years of age, or
47 forcible sexual penetration by use of a foreign object, and the defendant
48 killed, intended a killing, or acted with reckless indifference to human
49 life.
50 (i) The defendant, by his conduct, whether such conduct was before, dur-
51 ing or after the commission of the murder at hand, has exhibited a propen-
52 sity to commit murder which will probably constitute a continuing threat
53 to society.
54 (ij) The murder was committed against a former or present peace officer,
55 executive officer, officer of the court, judicial officer or prosecuting
4
1 attorney because of the exercise of official duty or because of the
2 victim's former or present official status.
3 (jk) The murder was committed against a witness or potential witness in a
4 criminal or civil legal proceeding because of such proceeding.
5 SECTION 2. That Section 19-2515A, Idaho Code, be, and the same is hereby
6 amended to read as follows:
7 19-2515A. IMPOSITION OF DEATH PENALTY UPON MENTALLY RETARDED PERSON PRO-
8 HIBITED. (1) As used in this section:
9 (a) "Mentally retarded" means significantly subaverage general intellec-
10 tual functioning that is accompanied by significant limitations in adap-
11 tive functioning in at least two (2) of the following skill areas: commu-
12 nication, self-care, home living, social or interpersonal skills, use of
13 community resources, self-direction, functional academic skills, work,
14 leisure, health and safety. The onset of significant subaverage general
15 intelligence functioning and significant limitations in adaptive function-
16 ing must occur before age eighteen (18) years.
17 (b) "Significantly subaverage general intellectual functioning" means an
18 intelligence quotient of seventy (70) or below.
19 (2) In any case in which the state has provided notice of an intent to
20 seek the death penalty pursuant to section 18-4004A, Idaho Code, and where the
21 defendant intends to claim that he is mentally retarded and call expert wit-
22 nesses concerning such issue, the defendant shall give notice to the court and
23 the state of such intention at least ninety (90) days in advance of trial, or
24 such other period as justice may require, and shall apply for an order direct-
25 ing that a mental retardation hearing be conducted. Upon receipt of such
26 application, the court shall promptly conduct a hearing without a jury to
27 determine whether the defendant is mentally retarded; provided however, that
28 no court shall, over the objection of any party, receive the evidence of any
29 expert witness on the issue of mental retardation unless such evidence is
30 fully subject to the adversarial process in at least the following particu-
31 lars:
32 (a) If a defendant fails to provide notice as required in this subsec-
33 tion, an expert witness shall not be permitted to testify until such time
34 as the state has a complete opportunity to consider the substance of such
35 testimony and prepare for rebuttal through such opposing experts as the
36 state may choose.
37 (b) A party who expects to call an expert witness to testify on the issue
38 of mental retardation shall, on a schedule to be set by the court, furnish
39 to the opposing party a written synopsis of the findings of such expert or
40 a copy of a written report. The court may authorize the taking of deposi-
41 tions to inquire further into the substance of such synopsis or report.
42 (c) Raising the issue of mental retardation shall constitute a waiver of
43 any privilege that might otherwise be interposed to bar the production of
44 evidence on the subject and, upon request, the court shall order that the
45 state's experts shall have access to the defendant in such cases for the
46 purpose of having its own experts conduct an examination in preparation
47 for any legal proceeding at which the defendant's mental retardation may
48 be in issue.
49 (d) The court is authorized to appoint at least one (1) expert at public
50 expense upon a showing by an indigent defendant that there is a need to
51 inquire into questions of the defendant's mental retardation. The defend-
52 ant shall pay the costs of examination if he is financially able. The
53 determination of ability to pay shall be made in accordance with chapter
5
1 8, title 19, Idaho Code. The report of the examination shall be filed in
2 triplicate with the clerk of the court, who shall cause copies to be
3 delivered to the prosecuting attorney and to counsel for the defendant.
4 (e) If an examination cannot be conducted by reason of the unwillingness
5 of the defendant to cooperate with either a court-appointed examiner or
6 with any state expert, the examiner or expert shall so advise the court in
7 writing and include, if possible, an opinion as to whether such
8 unwillingness of the defendant was the result of mental retardation. The
9 court may consider the defendant's lack of cooperation for its effect on
10 the credibility of the defendant's mental retardation claim.
11 (3) If the court finds by a preponderance of the evidence that the
12 defendant is mentally retarded, the death penalty shall not be imposed. The
13 jury shall not be informed of the mental retardation hearing or the court's
14 findings concerning the defendant's claim of mental retardation.
15 (4) In the event of a conviction of first-degree murder of a person who
16 has been found to be mentally retarded pursuant to subsections (2) and (3) of
17 this section, a special sentencing proceeding shall be held promptly to deter-
18 mine whether the state has proven beyond a reasonable doubt the existence of
19 any of the statutory aggravating circumstances set forth in subsections
20 19-2515(9)(a) through (jk), Idaho Code.
21 (a) The special sentencing proceeding shall be conducted before a jury
22 unless a jury is waived by the defendant with the consent of the prosecut-
23 ing attorney.
24 (i) If the defendant's guilt was determined by a jury verdict, the
25 same jury shall hear the special sentencing proceeding; provided how-
26 ever, that if it is impracticable to reconvene the same jury to hear
27 the special sentencing proceeding due to an insufficient number of
28 jurors, the trial court may dismiss that jury and convene a new jury
29 of twelve (12) persons, plus alternate jurors as the trial court
30 deems necessary pursuant to section 19-1904, Idaho Code.
31 (ii) If the defendant's guilt was determined by a plea of guilty or
32 by a decision of the trial court sitting without a jury, or if a
33 retrial of the special sentencing proceeding is necessary for any
34 reason including, but not limited to, a mistrial in a previous spe-
35 cial sentencing proceeding or as a consequence of a remand from an
36 appellate court, the trial court shall impanel a jury of twelve (12)
37 persons, plus alternate jurors as the trial court deems necessary
38 pursuant to section 19-1904, Idaho Code, unless such jury is waived.
39 (iii) If a special sentencing proceeding is conducted before a newly
40 impaneled jury, the state and the defense may present evidence to
41 inform the jury of the nature and circumstances of the murder for
42 which the defendant was convicted. The newly impaneled jury shall be
43 instructed that the defendant has previously been found guilty of
44 first-degree murder and that the jury's purpose is limited to making
45 findings relevant for sentencing.
46 (b) At the special sentencing proceeding, the state and the defendant
47 shall be entitled to present all evidence relevant to the determination of
48 whether or not a statutory aggravating circumstance has been proven beyond
49 a reasonable doubt. Disclosure of evidence to be relied on in the sentenc-
50 ing proceeding shall be made in accordance with Idaho criminal rule 16.
51 Evidence admitted at trial shall be considered and need not be repeated at
52 the sentencing hearing.
53 (c) If a unanimous jury, or the court if a jury is waived, finds the
54 existence of a statutory aggravating circumstance beyond a reasonable
55 doubt, the court shall impose a fixed life sentence. If a unanimous jury,
6
1 or the court if a jury is waived, does not find the existence of a statu-
2 tory aggravating circumstance beyond a reasonable doubt, the court shall
3 impose a life sentence with a minimum period of confinement of not less
4 than ten (10) years during which period of confinement the defendant shall
5 not be eligible for parole or discharge or credit or reduction of sentence
6 for good conduct, except for meritorious service.
7 (5) Nothing in this section is intended to alter the application of any
8 rule of evidence or limit or extend the right of any party to assert any claim
9 or defense otherwise available to that party.
10 (6) Any remedy available by post-conviction procedure or habeas corpus
11 shall be pursued according to the procedures and time limits set forth in sec-
12 tion 19-2719, Idaho Code.
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature Second Regular Session - 2006
Moved by Jorgenson
Seconded by Davis
IN THE SENATE
SENATE AMENDMENT TO H.B. NO. 533
1 AMENDMENT TO THE BILL
2 On page 6 of the printed bill, following line 12, insert:
3 "SECTION 3. An emergency existing therefor, which emergency is hereby
4 declared to exist, this act shall be in full force and effect on and after its
5 passage and approval.".
6 CORRECTIONS TO TITLE
7 On page 1, in line 3, delete "AND"; and in line 4, following "REFERENCE"
8 insert: "; AND DECLARING AN EMERGENCY".
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature Second Regular Session - 2006
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 533, As Amended in the Senate
BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE
1 AN ACT
2 RELATING TO THE DEATH PENALTY; AMENDING SECTION 19-2515, IDAHO CODE, TO PRO-
3 VIDE ADDITIONAL STATUTORY AGGRAVATING CIRCUMSTANCES; AMENDING SECTION
4 19-2515A, IDAHO CODE, TO PROVIDE A CORRECT CODE REFERENCE; AND DECLARING
5 AN EMERGENCY.
6 Be It Enacted by the Legislature of the State of Idaho:
7 SECTION 1. That Section 19-2515, Idaho Code, be, and the same is hereby
8 amended to read as follows:
9 19-2515. SENTENCE IN CAPITAL CASES -- SPECIAL SENTENCING PROCEEDING --
10 STATUTORY AGGRAVATING CIRCUMSTANCES -- SPECIAL VERDICT OR WRITTEN FINDINGS.
11 (1) Except as provided in section 19-2515A, Idaho Code, a person convicted of
12 murder in the first degree shall be liable for the imposition of the penalty
13 of death if such person killed, intended a killing, or acted with reckless
14 indifference to human life, irrespective of whether such person directly com-
15 mitted the acts that caused death.
16 (2) Where a person is sentenced to serve a term in the penitentiary,
17 after conviction of a crime which falls within the provisions of section
18 20-223, Idaho Code, except in cases where the court retains jurisdiction, the
19 comments and arguments of the counsel for the state and the defendant relative
20 to the sentencing and the comments of the judge relative to the sentencing
21 shall be recorded. If the comments are recorded electronically, they need not
22 be transcribed. Otherwise, they shall be transcribed by the court reporter.
23 (3) Where a person is convicted of an offense which may be punishable by
24 death, a sentence of death shall not be imposed unless:
25 (a) A notice of intent to seek the death penalty was filed and served as
26 provided in section 18-4004A, Idaho Code; and
27 (b) The jury, or the court if a jury is waived, finds beyond a reasonable
28 doubt at least one (1) statutory aggravating circumstance. Where a statu-
29 tory aggravating circumstance is found, the defendant shall be sentenced
30 to death unless mitigating circumstances which may be presented are found
31 to be sufficiently compelling that the death penalty would be unjust. The
32 jury shall not direct imposition of a sentence of death unless it unani-
33 mously finds at least one (1) statutory aggravating circumstance and unan-
34 imously determines that the penalty of death should be imposed.
35 (4) Notwithstanding any court rule to the contrary, when a defendant is
36 adjudicated guilty of murder in the first degree, whether by acceptance of a
37 plea of guilty, by verdict of a jury, or by decision of the trial court sit-
38 ting without a jury, no presentence investigation shall be conducted; provided
39 however, that if a special sentencing proceeding is not held or if a special
40 sentencing proceeding is held but no statutory aggravating circumstance has
41 been proven beyond a reasonable doubt, the court may order that a presentence
42 investigation be conducted.
43 (5) (a) If a person is adjudicated guilty of murder in the first degree,
2
1 whether by acceptance of a plea of guilty, by verdict of a jury, or by
2 decision of the trial court sitting without a jury, and a notice of intent
3 to seek the death penalty was filed and served as provided in section
4 18-4004A, Idaho Code, a special sentencing proceeding shall be held
5 promptly for the purpose of hearing all relevant evidence and arguments of
6 counsel in aggravation and mitigation of the offense. Information concern-
7 ing the victim and the impact that the death of the victim has had on the
8 victim's family is relevant and admissible. Such information shall be
9 designed to demonstrate the victim's uniqueness as an individual human
10 being and the resultant loss to the community by the victim's death.
11 Characterizations and opinions about the crime, the defendant and the
12 appropriate sentence shall not be permitted as part of any victim impact
13 information. The special sentencing proceeding shall be conducted before a
14 jury unless a jury is waived by the defendant with the consent of the
15 prosecuting attorney.
16 (b) If the defendant's guilt was determined by a jury verdict, the same
17 jury shall hear the special sentencing proceeding; provided however, that
18 if it is impracticable to reconvene the same jury to hear the special sen-
19 tencing proceeding due to an insufficient number of jurors, the trial
20 court may dismiss that jury and convene a new jury of twelve (12) persons,
21 plus alternate jurors as the trial court deems necessary pursuant to sec-
22 tion 19-1904, Idaho Code.
23 (c) If the defendant's guilt was determined by a plea of guilty or by a
24 decision of the trial court sitting without a jury, or if a retrial of the
25 special sentencing proceeding is necessary for any reason including, but
26 not limited to, a mistrial in a previous special sentencing proceeding or
27 as a consequence of a remand from an appellate court, the trial court
28 shall impanel a jury of twelve (12) persons, plus alternate jurors as the
29 trial court deems necessary pursuant to section 19-1904, Idaho Code,
30 unless such jury is waived.
31 (d) If a special sentencing proceeding is conducted before a newly impan-
32 eled jury pursuant to the provisions of subsection (5)(b) or (5)(c) of
33 this section, the state and the defense may present evidence to inform the
34 jury of the nature and circumstances of the murder for which the defendant
35 was convicted. The newly impaneled jury shall be instructed that the
36 defendant has previously been found guilty of first-degree murder and that
37 the jury's purpose is limited to making findings relevant for sentencing.
38 (6) At the special sentencing proceeding, the state and the defendant
39 shall be entitled to present all relevant evidence in aggravation and mitiga-
40 tion. Disclosure of evidence to be relied on in the sentencing proceeding
41 shall be made in accordance with Idaho criminal rule 16. Evidence admitted at
42 trial shall be considered and need not be repeated at the sentencing hearing.
43 (7) The jury shall be informed as follows:
44 (a) If the jury finds that a statutory aggravating circumstance exists
45 and no mitigating circumstances exist which would make the imposition of
46 the death penalty unjust, the defendant will be sentenced to death by the
47 court.
48 (b) If the jury finds the existence of a statutory aggravating circum-
49 stance but finds that the existence of mitigating circumstances makes the
50 imposition of the death penalty unjust or the jury cannot unanimously
51 agree on whether the existence of mitigating circumstances makes the impo-
52 sition of the death penalty unjust, the defendant will be sentenced to a
53 term of life imprisonment without the possibility of parole; and
54 (c) If the jury does not find the existence of a statutory aggravating
55 circumstance or if the jury cannot unanimously agree on the existence of a
3
1 statutory aggravating circumstance, the defendant will be sentenced by the
2 court to a term of life imprisonment with a fixed term of not less than
3 ten (10) years.
4 (8) Upon the conclusion of the evidence and arguments in mitigation and
5 aggravation:
6 (a) With regard to each statutory aggravating circumstance alleged by the
7 state, the jury shall return a special verdict stating:
8 (i) Whether the statutory aggravating circumstance has been proven
9 beyond a reasonable doubt; and
10 (ii) If the statutory aggravating circumstance has been proven
11 beyond a reasonable doubt, whether all mitigating circumstances, when
12 weighed against the aggravating circumstance, are sufficiently com-
13 pelling that the death penalty would be unjust.
14 (b) If a jury has been waived, the court shall:
15 (i) Make written findings setting forth any statutory aggravating
16 circumstance found beyond a reasonable doubt;
17 (ii) Set forth in writing any mitigating circumstances considered;
18 and
19 (iii) Upon weighing all mitigating circumstances against each statu-
20 tory aggravating circumstance separately, determine whether mitigat-
21 ing circumstances are found to be sufficiently compelling that the
22 death penalty would be unjust and detail in writing its reasons for
23 so finding.
24 (9) The following are statutory aggravating circumstances, at least one
25 (1) of which must be found to exist beyond a reasonable doubt before a sen-
26 tence of death can be imposed:
27 (a) The defendant was previously convicted of another murder.
28 (b) At the time the murder was committed the defendant also committed
29 another murder.
30 (c) The defendant knowingly created a great risk of death to many per-
31 sons.
32 (d) The murder was committed for remuneration or the promise of remunera-
33 tion or the defendant employed another to commit the murder for remunera-
34 tion or the promise of remuneration.
35 (e) The murder was especially heinous, atrocious or cruel, manifesting
36 exceptional depravity.
37 (f) By the murder, or circumstances surrounding its commission, the
38 defendant exhibited utter disregard for human life.
39 (g) The murder was committed in the perpetration of, or attempt to perpe-
40 trate, arson, rape, robbery, burglary, kidnapping or mayhem and the
41 defendant killed, intended a killing, or acted with reckless indifference
42 to human life.
43 (h) The murder was committed in the perpetration of, or attempt to perpe-
44 trate, an infamous crime against nature, lewd and lascivious conduct with
45 a minor, sexual abuse of a child under sixteen (16) years of age,
46 ritualized abuse of a child, sexual exploitation of a child, sexual bat-
47 tery of a minor child sixteen (16) or seventeen (17) years of age, or
48 forcible sexual penetration by use of a foreign object, and the defendant
49 killed, intended a killing, or acted with reckless indifference to human
50 life.
51 (i) The defendant, by his conduct, whether such conduct was before, dur-
52 ing or after the commission of the murder at hand, has exhibited a propen-
53 sity to commit murder which will probably constitute a continuing threat
54 to society.
55 (ij) The murder was committed against a former or present peace officer,
4
1 executive officer, officer of the court, judicial officer or prosecuting
2 attorney because of the exercise of official duty or because of the
3 victim's former or present official status.
4 (jk) The murder was committed against a witness or potential witness in a
5 criminal or civil legal proceeding because of such proceeding.
6 SECTION 2. That Section 19-2515A, Idaho Code, be, and the same is hereby
7 amended to read as follows:
8 19-2515A. IMPOSITION OF DEATH PENALTY UPON MENTALLY RETARDED PERSON PRO-
9 HIBITED. (1) As used in this section:
10 (a) "Mentally retarded" means significantly subaverage general intellec-
11 tual functioning that is accompanied by significant limitations in adap-
12 tive functioning in at least two (2) of the following skill areas: commu-
13 nication, self-care, home living, social or interpersonal skills, use of
14 community resources, self-direction, functional academic skills, work,
15 leisure, health and safety. The onset of significant subaverage general
16 intelligence functioning and significant limitations in adaptive function-
17 ing must occur before age eighteen (18) years.
18 (b) "Significantly subaverage general intellectual functioning" means an
19 intelligence quotient of seventy (70) or below.
20 (2) In any case in which the state has provided notice of an intent to
21 seek the death penalty pursuant to section 18-4004A, Idaho Code, and where the
22 defendant intends to claim that he is mentally retarded and call expert wit-
23 nesses concerning such issue, the defendant shall give notice to the court and
24 the state of such intention at least ninety (90) days in advance of trial, or
25 such other period as justice may require, and shall apply for an order direct-
26 ing that a mental retardation hearing be conducted. Upon receipt of such
27 application, the court shall promptly conduct a hearing without a jury to
28 determine whether the defendant is mentally retarded; provided however, that
29 no court shall, over the objection of any party, receive the evidence of any
30 expert witness on the issue of mental retardation unless such evidence is
31 fully subject to the adversarial process in at least the following particu-
32 lars:
33 (a) If a defendant fails to provide notice as required in this subsec-
34 tion, an expert witness shall not be permitted to testify until such time
35 as the state has a complete opportunity to consider the substance of such
36 testimony and prepare for rebuttal through such opposing experts as the
37 state may choose.
38 (b) A party who expects to call an expert witness to testify on the issue
39 of mental retardation shall, on a schedule to be set by the court, furnish
40 to the opposing party a written synopsis of the findings of such expert or
41 a copy of a written report. The court may authorize the taking of deposi-
42 tions to inquire further into the substance of such synopsis or report.
43 (c) Raising the issue of mental retardation shall constitute a waiver of
44 any privilege that might otherwise be interposed to bar the production of
45 evidence on the subject and, upon request, the court shall order that the
46 state's experts shall have access to the defendant in such cases for the
47 purpose of having its own experts conduct an examination in preparation
48 for any legal proceeding at which the defendant's mental retardation may
49 be in issue.
50 (d) The court is authorized to appoint at least one (1) expert at public
51 expense upon a showing by an indigent defendant that there is a need to
52 inquire into questions of the defendant's mental retardation. The defend-
53 ant shall pay the costs of examination if he is financially able. The
5
1 determination of ability to pay shall be made in accordance with chapter
2 8, title 19, Idaho Code. The report of the examination shall be filed in
3 triplicate with the clerk of the court, who shall cause copies to be
4 delivered to the prosecuting attorney and to counsel for the defendant.
5 (e) If an examination cannot be conducted by reason of the unwillingness
6 of the defendant to cooperate with either a court-appointed examiner or
7 with any state expert, the examiner or expert shall so advise the court in
8 writing and include, if possible, an opinion as to whether such
9 unwillingness of the defendant was the result of mental retardation. The
10 court may consider the defendant's lack of cooperation for its effect on
11 the credibility of the defendant's mental retardation claim.
12 (3) If the court finds by a preponderance of the evidence that the
13 defendant is mentally retarded, the death penalty shall not be imposed. The
14 jury shall not be informed of the mental retardation hearing or the court's
15 findings concerning the defendant's claim of mental retardation.
16 (4) In the event of a conviction of first-degree murder of a person who
17 has been found to be mentally retarded pursuant to subsections (2) and (3) of
18 this section, a special sentencing proceeding shall be held promptly to deter-
19 mine whether the state has proven beyond a reasonable doubt the existence of
20 any of the statutory aggravating circumstances set forth in subsections
21 19-2515(9)(a) through (jk), Idaho Code.
22 (a) The special sentencing proceeding shall be conducted before a jury
23 unless a jury is waived by the defendant with the consent of the prosecut-
24 ing attorney.
25 (i) If the defendant's guilt was determined by a jury verdict, the
26 same jury shall hear the special sentencing proceeding; provided how-
27 ever, that if it is impracticable to reconvene the same jury to hear
28 the special sentencing proceeding due to an insufficient number of
29 jurors, the trial court may dismiss that jury and convene a new jury
30 of twelve (12) persons, plus alternate jurors as the trial court
31 deems necessary pursuant to section 19-1904, Idaho Code.
32 (ii) If the defendant's guilt was determined by a plea of guilty or
33 by a decision of the trial court sitting without a jury, or if a
34 retrial of the special sentencing proceeding is necessary for any
35 reason including, but not limited to, a mistrial in a previous spe-
36 cial sentencing proceeding or as a consequence of a remand from an
37 appellate court, the trial court shall impanel a jury of twelve (12)
38 persons, plus alternate jurors as the trial court deems necessary
39 pursuant to section 19-1904, Idaho Code, unless such jury is waived.
40 (iii) If a special sentencing proceeding is conducted before a newly
41 impaneled jury, the state and the defense may present evidence to
42 inform the jury of the nature and circumstances of the murder for
43 which the defendant was convicted. The newly impaneled jury shall be
44 instructed that the defendant has previously been found guilty of
45 first-degree murder and that the jury's purpose is limited to making
46 findings relevant for sentencing.
47 (b) At the special sentencing proceeding, the state and the defendant
48 shall be entitled to present all evidence relevant to the determination of
49 whether or not a statutory aggravating circumstance has been proven beyond
50 a reasonable doubt. Disclosure of evidence to be relied on in the sentenc-
51 ing proceeding shall be made in accordance with Idaho criminal rule 16.
52 Evidence admitted at trial shall be considered and need not be repeated at
53 the sentencing hearing.
54 (c) If a unanimous jury, or the court if a jury is waived, finds the
55 existence of a statutory aggravating circumstance beyond a reasonable
6
1 doubt, the court shall impose a fixed life sentence. If a unanimous jury,
2 or the court if a jury is waived, does not find the existence of a statu-
3 tory aggravating circumstance beyond a reasonable doubt, the court shall
4 impose a life sentence with a minimum period of confinement of not less
5 than ten (10) years during which period of confinement the defendant shall
6 not be eligible for parole or discharge or credit or reduction of sentence
7 for good conduct, except for meritorious service.
8 (5) Nothing in this section is intended to alter the application of any
9 rule of evidence or limit or extend the right of any party to assert any claim
10 or defense otherwise available to that party.
11 (6) Any remedy available by post-conviction procedure or habeas corpus
12 shall be pursued according to the procedures and time limits set forth in sec-
13 tion 19-2719, Idaho Code.
14 SECTION 3. An emergency existing therefor, which emergency is hereby
15 declared to exist, this act shall be in full force and effect on and after its
16 passage and approval.
STATEMENT OF PURPOSE
RS 15537
The purpose of this legislation is to add an additional
aggravating circumstance that links sexual abuse and murder.
FISCAL NOTE
There is no fiscal impact to the General Fund.
Contact
Name: Rep. Jim Clark
Phone: 332-1000
STATEMENT OF PURPOSE/FISCAL NOTE H 533