HOUSE JOINT RESOLUTION NO. 9
(By Delegates Overington, Sprouse, Ellis,
Pulliam, Ryan, Calvert and Osborne)
[Introduced January 31, 1995; referred to the
Committee on Constitutional Revision.]
Proposing an amendment to the Constitution of the State of West
Virginia, by adding thereto a new article, designated
article fifteen, relating to imposing the death penalty for
the crime of first degree murder; numbering and designating
such proposed amendment; and providing a summarized
statement of the purpose of such proposed amendment.
Resolved by the Legislature of West Virginia, two thirds of
the members elected to each House agreeing thereto:
That the question of ratification or rejection of an
amendment to the Constitution of the State of West Virginia be
submitted to the voters of the State at the next general election
to be held in the year one thousand nine hundred ninety-six,
which proposed amendment is that a new article be added thereto,
designated article fifteen, to read as follows:
ARTICLE. XV. CAPITAL PUNISHMENT.
§1. Penalty for murder of first degree.
Murder of the first degree shall be punished by death if any
one or more of the aggravating circumstances enumerated in
section three 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 four of this article. Any
person otherwise guilty of murder in the first degree shall bepunished by confinement in the penitentiary for life without
probation or parole.
§2. Sentencing procedures for murder of the first degree.
(a) Procedure in jury trials.
After a verdict of murder of 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 deems 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 three and four of
this article. Evidence of aggravating circumstances shall be
limited to those circumstances specified in section three of this
article. After the presentation of evidence, the court shall
permit counsel to present argument for or 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 shall not impeach or in any way
affect the guilty verdict previously recorded.
(b) Procedure in nonjury trials and guilty pleas.
If the defendant has waived a jury trial or pleaded 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 judgeshall hear the evidence and determine the penalty in the same
manner as would a jury.
(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 three
of this article for which any evidence has been presented;
(2) Mitigating circumstances, including those specified in
section four 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 death if the jury unanimously
finds at least one aggravating circumstance specified in section
three 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
(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.
§3. Aggravating circumstances for imposition of capital
Aggravating circumstances, for purposes of this article,
are limited to the following:
(1) The victim was a law-enforcement officer who was
killed in the performance of his or her duties;
(2) The victim was under the age of eighteen years.
§4. Mitigating circumstances for imposition of capital
Mitigating circumstances, for purposes of this article,
including the following:
(1) The defendant has no significant history of prior
(2) The defendant was under the influence of extreme
mental or emotional disturbance;
(3) 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 law was substantially impaired;
(4) The age of the defendant at the time of the crime;
(5) The defendant acted under extreme duress, or acted
under the substantial domination of another person;
(6) The victim was a participant in the defendant's
murderous conduct or consented to the murderous acts;
(7) The defendant's participation in the murderous act was
relatively minor; and
(8) Any other evidence of mitigation concerning thecharacter and record of the defendant and the circumstances of
§5. 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
§6. 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 electrocution.
§7. 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 hisor 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
(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 court shall
(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 as set forth in the
rules by the supreme court of appeals, and to present oral
argument to the court.
(e) The court shall render a written decision which shall
include a reference to those similar cases which it took into
consideration. The court, with regard to review of death
(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 andargument 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 consideration.
(f) The court shall be authorized to employ an appropriate
staff and to establish methods to compile any cases or
information deemed by the chief justice to be appropriate and
relevant to the statutory questions concerning the validity of
(g) The sentence review shall be in addition to direct
appeal, if taken, and the review and appeal shall be consolidated
for consideration. The court shall render its decision on legal
errors enumerated, the factual substantiation of the verdict and
the validity of the sentence.
§8. Execution of death sentence.
Sentence of death, except for insurrection or rebellion,
shall not be executed sooner than three months after the sentence
is pronounced. The sentence of death shall, in every case, be
executed by lethal electrocution. The punishment shall be
executed within the walls of the West Virginia Penitentiary and
not elsewhere, and with an enclosure to be prepared for that
purpose, under the direction of the warden of the penitentiary
and the authorities in control thereof, which enclosure shall be
so constructed as to exclude public view. The warden of the West
Virginia Penitentiary, or, in case of his or her death, absence
or inability to act, the commissioner of the division of
corrections shall be the executioner. In carrying out theexecution of sentence, the warden and the commissioner of the
division of corrections are hereby authorized to secure the
services and advice of any person or persons they or either of
them shall deem appropriate.
§9. Certificate of death sentence and indictment to be sent to
warden; transfer of convict to penitentiary; persons
present at electrocution.
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 person sentenced to death until he or she is
delivered to a properly authorized guard sent by the warden for
the removal of the person to the penitentiary. The clerk of the
court shall also forthwith transmit to the warden of the
penitentiary 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 person to the penitentiary. 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 shall see fit. 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
deemed appropriate. The counsel of the convict, or any clergymen
the convict may desire and any of the convict's relatives may be
permitted to attend.
§10. Record of execution.
The warden or commissioner of corrections executing the
sentence of death shall certify that the sentence has been
executed to the clerk of the circuit court by which the sentence
was imposed, who shall file such certificate with the papers of
the case and enter the same upon the records of the court.
§11. 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 person
executed 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 dying within the penitentiary.
Further Resolved, That in accordance with the provisions
of article eleven, chapter three of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, such proposed
amendment is hereby numbered "Amendment No. 1" and designated as
the "Capital Punishment Amendment" and the purpose of theproposed amendment is summarized as follows: "To provide a
procedure for imposing the death penalty under certain conditions
for the crime of murder of the first degree."
NOTE: The purpose of this resolution is to amend the
Constitution to provide for a death penalty and procedures and
standards applicable thereto, and automatic review of such
penalty, for commission of murder of the first degree.
Procedures for carrying out the death sentence are established.
This article is new; therefore, strike-throughs and
underscoring have been omitted.