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.