Senate Bill No. 431

(By Senator Grubb)

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[Introduced February 19, 1996; referred to the Committee on the Judiciary.]

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A BILL to amend and reenact section fifteen, article three, chapter sixty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto a new section, designated section fifteen-a, all relating to providing for a separate sentencing hearing when a jury or court finds an individual guilty of murder in the first degree.

Be it enacted by the Legislature of West Virginia:
That section fifteen, article three, chapter sixty-two of said code be amended and reenacted; and that said article be further amended by adding thereto a new section, designated section fifteen-a, all to read as follows:
§62-3-15. Verdict and sentence in murder cases.

If a person indicted for murder be found by the jury guilty thereof, they shall in their verdict find whether he or she is guilty of murder of the first degree or second degree. If the person indicted for murder is found by the jury guilty thereof, and if the jury find in their verdict that he or she is guilty of murder of the first degree, or if a person indicted for murder pleads guilty of murder of the first degree, he or she shall be punished by imprisonment in the penitentiary for life, and he or she, notwithstanding the provisions of article twelve, chapter sixty-two of this code, shall not be eligible for parole: Provided, That the jury may, and if there is no jury, the judge may recommend mercy, following the completion of the sentencing hearing as set out in section fifteen-a of this article, such person shall be eligible for parole in accordance with the provisions of said article twelve, except that, notwithstanding any other provision of this code to the contrary, such person shall not be eligible for parole until he or she has served fifteen years: Provided, however, That if the accused pleads guilty of murder of the first degree, the court may, following the completion of the sentencing hearing as set out in section fifteen-a of this article, in its discretion, provide that such person shall be eligible for parole in accordance with the provisions of said article twelve, and, if the court so provides, such person shall be eligible for parole in accordance with the provisions of said article twelve in the same manner and with like effect as if such person had been found guilty by the verdict of a jury and the jury had recommended mercy, except that, notwithstanding any provision of said article twelve or any other provision of this code to the contrary, such person shall not be eligible for parole until he or she has served fifteen years.
§62-3-15a. Sentencing hearing by jury or court as to eligibility for release when first degree murder sentence is imposed.
(a) Upon conviction or adjudication of the guilt of a defendant for murder of the first degree, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to the penitentiary for life with or without mercy. With a jury-wived trial or with a guilty plea without trial, the judge shall consider, and with a jury trial, the jury shall consider, all relevant aggravating and mitigating circumstances as delineated in subsections (d) and (e) of this section in making a sentencing recommendation. If for any reason the trial jury is unable to serve as the sentencing jury, a new jury will be selected for the purpose of making a sentencing recommendation.
(b) In the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances as provided for in subsections (d) and (e) of this section. The defendant will be provided the opportunity to rebut any hearsay statements. This provision is not to be construed to allow the introduction of any evidence obtained in violation of the Constitutions of the United States or the State of West Virginia.
(c) The jury or, if there is no jury, the court shall return a special verdict setting forth its findings as to the existence of any aggravating or mitigating factors with a sentencing recommendation. The special verdict and recommendation shall be the basis of the sentencing judge's determination whether mercy be granted on the defendant's life sentence.
(d) Mitigating factors for the conviction of murder in the first degree include:
(1) Mental capacity and condition of the defendant at the time of the crime;
(2) Lack of significant criminal history of defendant at the time of the crime;
(3) The defendant acted under duress or substantial domination of another person;
(4) The age of the defendant at the time of the crime;
(5) The murdered individual was participating with the defendant in the commission of a crime;
(6) Under a felony murder conviction, the defendant was not present or did not participated in the murder.
(e) Aggravating factors include:
(1) The defendant's convictions of prior felonies;
(2) The defendant's act knowingly created a great risk of death to many persons;
(3) The act was committed for pecuniary gain;
(4) The act was especially heinous, atrocious, or cruel;
(5) The act was committed against a law enforcement or corrections officer engaged in the performance of his duties.
(6) The murder victim was under the age of twelve.
(7) The murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification;
(8) The murder was committed while the defendant was imprisoned, or to avoid arrest, or to escape custody.


NOTE: The purpose of this bill is to provide for separate sentencing hearing for the crime of murder in the first degree. This allows the judge or jury to make a sentencing recommendation based on evidence and factors not available at trial.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.