Senate Bill No. 139
(By Senators Kimble and Buckalew)
[Introduced January 14, 1998; referred to the Committee
on the Judiciary.]
A BILL to repeal section two, article eleven, chapter sixty-one
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to repeal section fifteen, article
three, chapter sixty-two of said code; to amend and reenact
section two, article two, chapter sixty-one of said code; to
further amend said article by adding thereto six new
sections, designated sections two-a, two-b, two-c, two-d,
two-e and two-f; and to amend article seven, chapter
sixty-two of said code by adding thereto four new sections,
designated sections four, five, six and six-a, all 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
for 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
penitentiary; transfer of person sentenced to death to
penitentiary; 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:
That section two, article eleven, chapter sixty-one of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that section fifteen, article three,
chapter sixty-two of said code be repealed; that section two,
article two, chapter sixty-one of said code be amended and
reenacted; that said article be further amended by adding thereto
six new sections, designated sections two-a, two-b, two-c, two-d,
two-e and two-f; and that article seven, chapter sixty-two of
said code be amended by adding thereto four new sections,
designated sections four, five, six and six-a, all to read as
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-2. Penalty for murder of 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 penitentiary 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 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 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 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
(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 murder; and
(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
(b) The defendant was under the influence of extreme mental
or emotional disturbance at the time of the commission of the
murder at issue;
(c) The capacity of the defendant to appreciate the
criminality of his conduct or to conform his 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
§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 lethal injection.
§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
(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 shall determine:
(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.
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 the West Virginia Penitentiary 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 penitentiary and the authorities
in control thereof. The warden of the West Virginia
Penitentiary, 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 penitentiary; 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 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 convict 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 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 department 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 penitentiary.
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 be added.
§§61-2-2a, 2b, 2c, 2d, 2e and 2f, and §§62-7-4, 5, 6 and 6a
are new; therefore, strike-throughs and underscoring have been