0001| HOUSE BILL 812 | 0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0003| INTRODUCED BY | 0004| R. DAVID PEDERSON | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| AN ACT | 0011| RELATING TO CAPITAL FELONY SENTENCING; PROVIDING FOR THE | 0012| IMPOSITION OF A SENTENCE OF LIFE IMPRISONMENT WITHOUT | 0013| POSSIBILITY OF RELEASE OR PAROLE; AMENDING SECTIONS OF THE NMSA | 0014| 1978. | 0015| | 0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0017| Section 1. Section 31-20A-1 NMSA 1978 (being Laws 1979, | 0018| Chapter 150, Section 2) is amended to read: | 0019| "31-20A-1. CAPITAL FELONY--SENTENCING PROCEDURE.-- | 0020| A. At the conclusion of all capital felony cases | 0021| heard by jury, and after proper charge from the court and | 0022| argument of counsel, the jury shall retire to consider a | 0023| verdict of guilty or not guilty without any consideration of | 0024| punishment. In nonjury capital felony cases, the judge shall | 0025| first consider a finding of guilty or not guilty without any | 0001| consideration of punishment. | 0002| B. Upon a verdict by the jury or judge that the | 0003| defendant is guilty of a capital felony, or upon a plea of | 0004| guilty to a capital felony, the court shall conduct a separate | 0005| sentencing proceeding to determine whether the defendant should | 0006| be sentenced to death, life imprisonment without possibility | 0007| of release or parole or life imprisonment ~~[as authorized~~ | 0008| ~~herein]~~. In a jury trial, the sentencing proceeding shall be | 0009| conducted as soon as practicable by the original trial judge | 0010| before the original trial jury. In a nonjury trial, the | 0011| sentencing proceeding shall be conducted as soon as practicable | 0012| by the original trial judge. In the case of a plea of guilty | 0013| to a capital felony, the sentencing proceeding shall be | 0014| conducted as soon as practicable by the original trial judge or | 0015| by a jury upon demand of a party. | 0016| C. In the sentencing proceeding, all evidence | 0017| admitted at the trial shall be considered, and additional | 0018| evidence may be presented as to the circumstances of the crime | 0019| and as to any aggravating or mitigating circumstances pursuant | 0020| to Sections ~~[6 and 7 of this act]~~ 31-20A-5 and 31-20A-6 NMSA | 0021| 1978. | 0022| D. In a jury sentencing proceeding, the judge shall | 0023| give appropriate instructions and allow argument, and the jury | 0024| shall retire to determine the punishment to be imposed. In a | 0025| nonjury sentencing proceeding, or upon a plea of guilty, where | 0001| no jury has been demanded, the judge shall allow argument and | 0002| determine the punishment to be imposed." | 0003| Section 2. Section 31-20A-2 NMSA 1978 (being Laws 1979, | 0004| Chapter 150, Section 3) is amended to read: | 0005| "31-20A-2. DETERMINATION OF SENTENCE.-- | 0006| A. Capital sentencing deliberations shall be guided | 0007| by the following considerations: | 0008| (1) whether aggravating circumstances exist as | 0009| enumerated in Section ~~[6 of this act]~~ 31-20A-5 NMSA 1978; | 0010| (2) whether mitigating circumstances exist as | 0011| enumerated in Section ~~[7 of this act]~~ 31-20A-6 NMSA 1978; | 0012| and | 0013| (3) whether other mitigating circumstances | 0014| exist. | 0015| B. After weighing the aggravating circumstances and | 0016| the mitigating circumstances, weighing them against each other | 0017| and considering both the defendant and the crime, the jury or | 0018| judge shall determine whether the defendant should be sentenced | 0019| to death, life imprisonment without possibility of release or | 0020| parole or life imprisonment." | 0021| Section 3. Section 31-20A-3 NMSA 1978 (being Laws 1979, | 0022| Chapter 150, Section 4) is amended to read: | 0023| "31-20A-3. COURT SENTENCING.-- | 0024| A. In a jury sentencing proceeding in which the | 0025| jury unanimously finds beyond a reasonable doubt and specifies | 0001| at least ~~[one]~~ two of the aggravating circumstances | 0002| enumerated in Section ~~[6 of this act]~~ 31-20A-5 NMSA 1978, | 0003| and unanimously specifies the sentence of death pursuant to | 0004| Section ~~[3 of this act]~~ 31-20A-2 NMSA 1978, the court shall | 0005| sentence the defendant to death. | 0006| B. In a jury sentencing proceeding in which the | 0007| jury unanimously finds beyond a reasonable doubt and specifies | 0008| one of the aggravating circumstances enumerated in Section | 0009| 31-20A-5 NMSA 1978, and unanimously specifies the sentence of | 0010| life imprisonment without possibility of release or parole | 0011| pursuant to Section 31-20A-2 NMSA 1978, the court shall | 0012| sentence the defendant to life imprisonment without possibility | 0013| of release or parole. | 0014| C. Where a sentence of death is not unanimously | 0015| specified, or the jury does not make the required finding, or | 0016| the jury is unable to reach a unanimous verdict, the court | 0017| shall sentence the defendant to life imprisonment. | 0018| D. In a nonjury sentencing proceeding and in | 0019| cases involving a plea of guilty, where no jury has been | 0020| demanded, the judge shall determine and impose the sentence, | 0021| but he shall not impose the sentence of death except upon a | 0022| finding beyond a reasonable doubt and specification of at least | 0023| ~~[one]~~ two of the aggravating circumstances enumerated in | 0024| Section ~~[6 of this act]~~ 31-20A-5 NMSA 1978. | 0025| E. In a nonjury sentencing proceeding and in cases | 0001| involving a plea of guilty, where no jury has been demanded, | 0002| the judge shall determine and impose the sentence, but he shall | 0003| not impose the sentence of life imprisonment without | 0004| possibility of release or parole except upon a finding beyond a | 0005| reasonable doubt and specification of one of the aggravating | 0006| circumstances enumerated in Section 31-20A-5 NMSA 1978." | 0007| Section 4. Section 31-20A-4 NMSA 1978 (being Laws 1979, | 0008| Chapter 150, Section 5) is amended to read: | 0009| "31-20A-4. REVIEW OF JUDGMENT AND SENTENCE.-- | 0010| A. The judgment of conviction and sentence of death | 0011| shall be automatically reviewed by the supreme court of the | 0012| state of New Mexico. | 0013| B. In addition to the other matters on appeal, the | 0014| supreme court shall rule on the validity of the death sentence. | 0015| C. The death penalty shall not be imposed if: | 0016| (1) the evidence does not support the finding | 0017| of ~~[a]~~ at least two of the statutory aggravating | 0018| ~~[circumstance]~~ circumstances; | 0019| (2) the evidence supports a finding that the | 0020| mitigating circumstances outweigh the aggravating | 0021| circumstances; | 0022| (3) the sentence of death was imposed under | 0023| the influence of passion, prejudice or any other arbitrary | 0024| factor; or | 0025| (4) the sentence of death is excessive or | 0001| disproportionate to the penalty imposed in similar cases, | 0002| considering both the crime and the defendant. | 0003| D. The sentence of life imprisonment without | 0004| possibility of release or parole shall not be imposed if: | 0005| (1) the evidence does not support the finding | 0006| of one statutory aggravating circumstance; | 0007| (2) the evidence supports a finding that the | 0008| mitigating circumstances outweigh the aggravating | 0009| circumstances; | 0010| (3) the sentence of life imprisonment without | 0011| possibility of release or parole was imposed under the | 0012| influence of passion, prejudice or any other arbitrary factor; | 0013| or | 0014| (4) the sentence of life imprisonment without | 0015| possibility of release or parole is excessive or | 0016| disproportionate to the penalty imposed in similar cases, | 0017| considering both the crime and the defendant. | 0018| ~~[D.]~~ E. No error in the sentencing proceeding | 0019| shall result in the reversal of the conviction of a capital | 0020| felony. If the trial court is reversed on appeal because of | 0021| error only in the sentencing proceeding, the supreme court | 0022| shall remand solely for a new sentencing proceeding. The new | 0023| sentencing proceeding ordered and mandated shall apply only to | 0024| the issue of punishment. | 0025| ~~[E.]~~ F. In cases of remand for a new sentencing | 0001| proceeding, all exhibits and a transcript of all testimony and | 0002| other evidence admitted in the prior trial and sentencing | 0003| proceeding shall be admissible in the new sentencing | 0004| proceeding, and: | 0005| (1) if the sentencing proceeding was before a | 0006| jury, a new jury shall be impaneled for the new sentencing | 0007| proceeding; | 0008| (2) if the sentencing proceeding was before a | 0009| judge, the original trial judge shall conduct the new | 0010| sentencing proceeding; or | 0011| (3) if the sentencing proceeding was before a | 0012| judge and the original trial judge is unable or unavailable to | 0013| conduct a new sentencing proceeding, then another judge shall | 0014| be designated to conduct the new sentencing proceeding, and the | 0015| parties are entitled to disqualify the new judge on the grounds | 0016| set forth in Section 38-3-9 NMSA 1978 before the newly | 0017| designated judge exercises any discretion." | 0018| Section 5. Section 31-20A-5 NMSA 1978 (being Laws 1979, | 0019| Chapter 150, Section 6, as amended) is amended to read: | 0020| "31-20A-5. AGGRAVATING CIRCUMSTANCES.--The aggravating | 0021| circumstances to be considered by the sentencing court or jury | 0022| pursuant to the provisions of Section 31-20A-2 NMSA 1978 are | 0023| limited to the following: | 0024| A. the victim was a peace officer who was acting in | 0025| the lawful discharge of an official duty when he was murdered; | 0001| B. the murder was committed with intent to kill in | 0002| the commission of or attempt to commit ~~[kidnaping]~~ | 0003| kidnapping, criminal sexual contact of a minor or criminal | 0004| sexual penetration; | 0005| C. the murder was committed with the intent to kill | 0006| by the defendant while attempting to escape from a penal | 0007| institution of New Mexico; | 0008| D. while incarcerated in a penal institution in New | 0009| Mexico, the defendant, with the intent to kill, murdered a | 0010| person who was at the time incarcerated in or lawfully on the | 0011| premises of a penal institution in New Mexico. As used in this | 0012| subsection, "penal institution" includes facilities under the | 0013| jurisdiction of the corrections ~~[and criminal rehabilitation]~~ | 0014| department and county and municipal jails; | 0015| E. while incarcerated in a penal institution in New | 0016| Mexico, the defendant, with the intent to kill, murdered an | 0017| employee of the corrections ~~[and criminal rehabilitation]~~ | 0018| department; | 0019| F. the capital felony was committed for hire; | 0020| ~~[and]~~ | 0021| G. the capital felony was murder of a witness to a | 0022| crime or any person likely to become a witness to a crime, for | 0023| the purpose of preventing report of the crime or testimony in | 0024| any criminal proceeding or for retaliation for the victim | 0025| having testified in any criminal proceeding; | 0001| H. the victim was a child less than thirteen years | 0002| of age; | 0003| I. the defendant committed two or more murders | 0004| during the same transaction or occurrence; and | 0005| J. the defendant committed multiple murders within | 0006| a twenty-four hour period of time." | 0007| Section 6. EFFECTIVE DATE.--The effective date of the | 0008| provisions of this act is July 1, 1997. | 0009| | 0010| State of New Mexico | 0011| House of Representatives | 0012| | 0013| FORTY-THIRD LEGISLATURE | 0014| FIRST SESSION, 1997 | 0015| | 0016| | 0017| March 10, 1997 | 0018| | 0019| | 0020| Mr. Speaker: | 0021| | 0022| Your JUDICIARY COMMITTEE, to whom has been referred | 0023| | 0024| HOUSE BILL 812 | 0025| | 0001| has had it under consideration and reports same with | 0002| recommendation that it DO PASS, amended as follows: | 0003| | 0004| 1. Page 8, line 21, before "the" insert "the murder was | 0005| committed with intent to kill and the defendant knew or should | 0006| have known that". | 0007| | 0008| 2. Page 8, line 24, strike "; and" and insert in lieu | 0009| thereof a period and a closing quotation mark. | 0010| | 0011| 3. On page 8, line 25, strike the entire line. | 0012| | 0013| 4. On page 9, line 1, strike the entire line., | 0014| | 0015| and thence referred to the APPROPRIATIONS AND FINANCE | 0016| COMMITTEE. | 0017| | 0018| Respectfully submitted, | 0019| | 0020| | 0021| | 0022| | 0023| | 0024| Thomas P. Foy, Chairman | 0025| | 0001| | 0002| Adopted Not Adopted | 0003| | 0004| (Chief Clerk) (Chief Clerk) | 0005| | 0006| Date | 0007| | 0008| The roll call vote was 11 For 0 Against | 0009| Yes: 11 | 0010| Excused: King, Rios | 0011| Absent: None | 0012| | 0013| | 0014| | 0015| G:\BILLTEXT\BILLW_97\H0812 State of New Mexico | 0016| House of Representatives | 0017| | 0018| FORTY-THIRD LEGISLATURE | 0019| FIRST SESSION, 1997 | 0020| | 0021| | 0022| March 12, 1997 | 0023| | 0024| | 0025| Mr. Speaker: | 0001| | 0002| Your APPROPRIATIONS AND FINANCE COMMITTEE, to | 0003| whom has been referred | 0004| | 0005| HOUSE BILL 812, as amended | 0006| | 0007| has had it under consideration and reports same with | 0008| recommendation that it DO PASS. | 0009| | 0010| Respectfully submitted, | 0011| | 0012| | 0013| | 0014| | 0015| | 0016| Max Coll, Chairman | 0017| | 0018| | 0019| Adopted Not Adopted | 0020| | 0021| (Chief Clerk) (Chief Clerk) | 0022| | 0023| Date | 0024| | 0025| The roll call vote was 12 For 0 Against | 0001| Yes: 12 | 0002| Excused: Buffett, Garcia,M.H., Marquardt, Picraux, Salazar | 0003| Absent: None | 0004| | 0005| | 0006| G:\BILLTEXT\BILLW_97\H0812 |