(By Delegates Overington, Schadler, Wakim,
Blair, Stevens, Porter and Barker)
[Introduced February 23, 2005; referred to the
Committee on the Judiciary then Finance.]
A BILL to repeal §61-11-2 of the Code of West Virginia, 1931, as
amended; to repeal §62-3-15
of said code; to amend and reenact
§61-2-2 of said code; to further amend said code by adding
thereto seven new sections, designated §61-2-2
f and §61-2-2
g; and to
further amend said code by adding thereto four new sections,
designated §62-7-4, §62-7-5
relating to death penalty for first degree murder; procedures,
standards and findings applicable to imposition thereof in
certain instances including aggravating and mitigating
circumstances; sentencing; providing for automatic review of
the death penalty by the Supreme Court of Appeals; providing
forensic deoxyribonucleic acid ("DNA") testing of
biological material in death penalty cases;
execution of the death sentence by lethal injection; providing
for delivery of sentence of death to officer retaining custody of person so sentenced; providing for transmission of
indictment, order of conviction, sentence and judgment entered
thereon to the warden of the state correctional facility;
transfer of person sentenced to death to the state
correctional facility; execution; providing presence of
certain persons be requested for the execution; providing for
certification that sentence of death has been executed; and
providing for disposition of the body.
Be it enacted by the Legislature of West Virginia:
of the Code of West Virginia, 1931, as amended,
be repealed; that §62-3-15
of said code be repealed; that §61-2-2
of said code be amended and reenacted; that said code be further
amended by adding thereto seven new sections, designated §61-2-2
f and §61-2-2
that said code be further amended by adding thereto four new
sections, designated §62-7-4, §62-7-5
, all to
read as follows:
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-2. Penalty for murder in first degree.
Any person convicted of murder
of in the first degree shall
be punished by sentenced to confinement in the penitentiary for
life death if any one or more of the aggravating circumstances
enumerated in section two-b of this article have been charged and found to be true without a finding of any one or more of the
mitigating circumstances enumerated in section two-c of this
article. Any person otherwise convicted of murder in the first
degree shall be sentenced to confinement in the state correctional
facility for life without probation or parole.
§61-2-2a. Sentencing procedures for murder in the first degree.
(a) Procedure in jury trials. --
After a verdict of murder in the first degree is recorded and
before the jury is discharged, the court shall conduct a separate
sentencing hearing in which the jury shall determine whether the
defendant shall be sentenced to death or life imprisonment. In the
sentencing hearing, evidence may be presented as to any matter that
the court determines relevant and admissible on the question of the
sentence to be imposed, including evidence relating to any of the
aggravating or mitigating circumstances specified in sections two-b
and two-c of this article. Evidence of aggravating circumstances
shall be limited to those circumstances specified in section two-b
of this article. After the presentation of evidence, the court
shall permit counsel to present argument for and against the
sentence of death. The court shall then instruct the jury in
accordance with subsection (c) of this section. Failure of the
jury to unanimously agree upon a sentence does not impeach or in
any way affect the guilty verdict previously recorded.
(b) Procedure in nonjury trials and guilty pleas. --
If the defendant waives a jury trial or pleads guilty, the
sentencing proceeding shall be conducted before a jury impaneled
for that purpose unless waived by the defendant with the consent of
the State, in which latter case the trial judge shall hear the
evidence and determine the penalty in the same manner as would a
(c) Instructions to jury. --
Before retiring to determine the imposition of sentence, the
jury shall be instructed by the court as to the following:
(1) The aggravating circumstances specified in section two-b
of this article for which any evidence has been presented;
(2) Mitigating circumstances, including those specified in
section two-c of this article, for which any evidence has been
(3) Aggravating circumstances must be proved by the State
beyond a reasonable doubt. Mitigating circumstances must be proved
by the defendant by a preponderance of the evidence;
(4) The sentence shall be a sentence of death if the jury
unanimously finds at least one aggravating circumstance specified
in section two-b of this article and no mitigating circumstance or
if the jury unanimously finds one or more aggravating circumstances
which outweigh all mitigating circumstances. The sentence shall be
life imprisonment without probation or parole in all other cases;
(5) The court may, in its discretion, discharge the jury if it is of the opinion that further deliberation will not result in a
unanimous agreement as to the sentence, in which case the court
shall sentence the defendant to life imprisonment; and
(6) The court shall instruct the jury on any other matter that
may be just and proper under the circumstances.
§61-2-2b. Aggravating circumstances for imposition of capital
When a defendant is convicted of murder in the first degree,
aggravating circumstances shall be limited to the following:
(a) The murder occurred when the defendant was incarcerated,
or under order of incarceration in a municipal, county or state
correctional institution, or if the murder occurred while defendant
was an escaped convict;
(b) The victim was a fireman, peace officer, correctional
officer, parole officer, judicial officer or any individual who was
killed in the performance of his or her duty;
(c) The defendant paid, or was paid by, another person or had
contracted to pay, or to be paid by, another person or had
conspired to pay, or to be paid by, another person to kill the
(d) The victim was being held by the defendant for ransom or
reward or as a shield or hostage;
(e) The death of the victim occurred while the defendant was
engaged in the hijacking of an aircraft;
(f) The victim was a prosecution witness to a murder or other
felony committed by the defendant and was killed for the purpose of
preventing his or her testimony against the defendant in any grand
jury or court proceedings;
(g) The defendant committed the murder while in the commission
of a felony;
(h) In the commission of the offense the defendant knowingly
created a grave risk of death to another person in addition to the
victim of the offense;
(i) The murder was especially heinous, atrocious or cruel,
manifesting exceptional depravity;
(j) The murder was the result of or was contributed to by the
defendant's use of a controlled substance;
(k) The defendant has a significant history of felony
convictions involving the use or threat of violence to the person;
(l) The defendant has been convicted of another federal or
state offense, committed either before or at the time of the murder
at issue, for which a sentence of life imprisonment or death could
be imposed, or the defendant was serving a sentence of life
imprisonment for any reason at the time of the commission of the
(m) The defendant has been convicted of another crime under
the provisions of chapter sixty-a of this code at the time of the
commission of the murder at issue.
§61-2-2c. Mitigating circumstances for imposition of capital
When a defendant is convicted of murder in the first degree,
mitigating circumstances shall include the following:
(a) The defendant has no significant history of prior criminal
(b) The defendant was under the influence of extreme mental or
emotional disturbance at the time of the commission of the murder
(c) The capacity of the defendant to appreciate the
criminality of his or her conduct or to conform his or her conduct
to the requirements of the law was substantially impaired at the
time of the commission of the murder at issue;
(d) The age of the defendant at the time of the murder at
(e) The defendant acted under extreme duress, or acted under
the substantial domination of another person at the time of the
commission of the murder at issue;
(f) The victim was a participant in the defendant's murderous
conduct or consented to the murderous acts;
(g) The defendant's participation in the murder at issue was
relatively minor; and
(h) Any other evidence of mitigation concerning the character
and record of the defendant and the circumstances of the murder.
§61-2-2d. Sentencing verdict by the jury.
After hearing all the evidence and arguments by counsel and
after receiving the instructions from the court, the jury shall
deliberate and render a sentencing verdict. In rendering the
verdict, the jury shall set forth in writing the findings upon
which the sentence is based. Based upon these findings, the jury
shall set forth in writing whether the sentence is death or life
imprisonment without probation or parole.
§61-2-2e. Recording sentencing verdict; imposing sentence.
Whenever the jury agrees upon a sentencing verdict, it shall
be received and recorded by the court. The court shall thereafter
impose upon the defendant the sentence fixed by the jury. In any
case in which the death penalty is imposed, execution shall be by
§61-2-2f. Review of death sentence.
(a) Whenever the death penalty is imposed, and upon the
judgment becoming final in the circuit court, the sentence shall
automatically be reviewed on the record by the Supreme Court of
Appeals. The clerk of the circuit court, within ten days after
receiving the transcript, shall transmit the entire record and
transcript to the Supreme Court of Appeals together with a notice
prepared by the clerk and a report prepared by the circuit judge.
The notice shall set forth the title and docket number of the case,
the name of the defendant and the name and address of his or her attorney, a narrative statement of the judgment, the offense and
the punishment prescribed. The report shall be in a standard form
prepared and supplied by the Supreme Court of Appeals.
(b) The Supreme Court of Appeals shall consider the punishment
as well as any errors enumerated by way of appeal.
(c) With regard to the sentence, the Supreme Court of Appeals
(1) Whether the sentence of death was imposed under the
influence of passion, prejudice or any other arbitrary factor;
(2) Whether the evidence supports the jury's or judge's
finding of a statutory aggravating circumstance; and
(3) Whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.
(d) Both the defendant and the State shall have the right to
submit briefs within the time limitations set forth in the rules by
the Supreme Court of Appeals, and to present oral argument to the
Supreme Court of Appeals.
(e) The Supreme Court of Appeals shall render a written
decision which shall include a reference to those similar cases
which it took into consideration. The Supreme Court of Appeals,
with regard to review of death sentences, shall:
(1) Affirm the sentence of death; or
(2) Set the sentence aside and remand the case for resentencing by the circuit judge based on the record and argument
of counsel. The records of those similar cases referred to by the
Supreme Court of Appeals in its written decision shall be provided
to the resentencing judge for his or her consideration.
(f) The Supreme Court of Appeals may employ an appropriate
staff and establish methods to compile any cases or information
considered by the chief justice to be appropriate and relevant to
the statutory questions concerning the validity of the sentence.
(g) The sentence review shall be in addition to direct appeal,
if taken, and the review and appeal shall be consolidated for
consideration. The Supreme Court of Appeals shall render its
decision on legal errors enumerated, the factual substantiation of
the verdict and the validity of the sentence.
§61-2-2g. DNA testing in death penalty cases.
(a) Notwithstanding any other provision of law to the
contrary, a person in custody pursuant to the judgment of a court
of this State in which the death penalty has been imposed may, at
any time after conviction, apply to the court that entered the
judgment for forensic deoxyribonucleic acid ("DNA") testing of any
biological material that:
(1) Is related to the investigation or prosecution that
resulted in the judgment;
(2) Is in the actual or constructive possession of the State;
(3) Was not previously subjected to DNA testing, or can be
subjected to retesting with new DNA techniques that provide a
reasonable likelihood of more accurate and probative results.
(b) The court shall notify the State of an application made
under subsection (a) of this section and shall afford the State an
opportunity to respond.
(c) Upon receiving notice of an application made under
subsection (a) of this section
, the State shall take such steps as
are necessary to ensure that any remaining biological material that
was secured in connection with the case is preserved pending the
completion of proceedings under this section.
(d) The court shall order DNA testing pursuant to an
application made under subsection (a) of this section upon a
determination that testing may produce noncumulative, exculpatory
evidence relevant to the claim of the applicant that the applicant
was wrongfully convicted or sentenced.
(e) The cost of DNA testing ordered under subsection (d) of
this section shall be borne by the State or the applicant, as the
court may order in the interests of justice, if it is shown that
the applicant is not indigent and possesses the means to pay.
(f) The court may at any time appoint counsel for an indigent
applicant under this section.
(g) If the results of DNA testing conducted under this section
are unfavorable to the applicant, the court:
(1) Shall dismiss the application; and
(2) In the case of an applicant who is not indigent, may
assess the applicant for the cost of such testing.
(h) If the results of DNA testing conducted under this section
are favorable to the applicant, the court shall:
(1) Order a hearing, notwithstanding any provision of law that
would bar such a hearing; and
(2) Enter any order that serves the interests of justice,
including an order:
(A) Vacating and setting aside the judgment;
(B) Discharging the applicant if the applicant is in custody;
(C) Resentencing the applicant; or
(D) Granting a new trial.
(i) Nothing in this section shall be construed to limit the
circumstances under which a person may obtain DNA testing or other
postconviction relief under any other provision of law.
(j) Notwithstanding any other provision of law, the State
shall preserve any biological material secured in connection with
a death penalty case for such period of time as a person remains
incarcerated awaiting execution under a death penalty sentence.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 7. EXECUTION OF SENTENCES; STAYS.
§62-7-4. Execution of death sentence.
Sentence of death, except for insurrection or rebellion, may not be executed sooner than three months after the sentence is
pronounced. The sentence of death shall, in every case, be
executed by lethal injection. The sentence shall be executed
within the walls of a state correctional facility within an
enclosure prepared for that purpose and constructed so as to
exclude public view. The execution shall be performed under the
direction of the warden of the state correctional facility and the
authorities in control thereof. The warden of the State
correctional facility or, in the case of his or her death, absence
or inability to act, the commissioner of corrections shall be the
executioner. In carrying out the execution of sentence, the warden
or the commissioner of corrections may secure the services and
advice of any person or persons either considers appropriate.
§62-7-5. Certificate of death sentence and indictment to be sent
to warden; transfer of convict to a state correctional
facility; persons present at execution.
The clerk of the court which pronounces the sentence of death
shall, as soon as possible after sentence, deliver a certified copy
of the sentence to the sheriff, who shall retain the custody of the
convict sentenced to death until he or she is delivered to a
properly authorized guard sent by the warden for the removal of the
convict to the state correctional facility. The clerk of the court
shall also forthwith transmit to the warden of the state
correctional facility a copy of the indictment, order of conviction and the sentence and judgment entered thereon. As soon as possible
after receipt of the copies the warden shall send a guard or guards
to remove the convict to the state correctional facility. Unless
a suspension of execution is ordered, the execution shall take
place at the time and in the manner prescribed in the sentencing
order. At the execution there may be present those officers,
guards and assistants as the warden or commissioner of corrections
considers appropriate. The warden or the commissioner, as the case
may be, shall request the presence of the prosecuting attorney of
the county wherein the conviction occurred, the clerk of the
circuit court thereof, twelve respectable citizens, including a
physician and representatives of the press as may be considered
appropriate. The counsel of the convict, or any clergymen the
convict may desire and any of the convict's relations may be
permitted to attend.
§62-7-6. Record of execution.
The warden or commissioner of corrections who executes the
sentence of death shall certify to the clerk of the circuit court,
by which the sentence was imposed, that the sentence has been
executed. The clerk of the circuit court shall file the
certificate with the papers of the case and enter the certificate
and papers upon the records of the court.
§62-7-6a. Disposition of body of executed convict.
If the friends or relatives of the convict make a request in writing to the warden at any time within two days after the
sentence of death has been executed, the body of the convict shall
be returned to the friends or relatives, in any county in the
State, for burial. The warden may draw his or her order on the
Auditor of the State for whatever sum is necessary to pay for
transportation of the body, to be paid out of funds appropriated to
the Division of Corrections. If no request is made by friends or
relatives, the body shall be disposed of as provided for other
convicts who die within the state correctional facility.
NOTE: The purpose of this bill is to provide for a death
penalty and procedures and standards applicable thereto, and
automatic review of such penalty, for commission of murder in the
first degree. Procedures for carrying out the death sentence are
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
§§61-2-2a, 2b, 2c, 2d, 2e, 2f and 2g; and §§62-7-4, 5, 6 and
6a are new; therefore, strike-throughs and underscoring have been