HOUSE JOINT RESOLUTION NO. 9
(By Delegates Overington, Dalton,
Faircloth, Webb and Modesitt)
(Introduced January 18, 1999; referred to the Committee on
Constitutional Revision then the Judiciary.]
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 two thousand, 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 in the first degree.
Murder in the first degree shall be punished by death if any
one or more of the aggravating circumstances enumerated in section three of this article has 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 be
punished by confinement in the correctional facility for life
without probation or parole.
§2. 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 three and four of
this article. Evidence of aggravating circumstances shall be
limited to those circumstances specified in sections three and
four 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 judge
shall 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
presented;
(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
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.
§3. Aggravating circumstances for imposition of capital
punishment.
Aggravating circumstances, for purposes of this article, are
limited to the following:
(1) 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;
(2) 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;
(3) The murder was especially heinous, atrocious or cruel,
manifesting exceptional depravity;
(4) The defendant has a significant history of felony
convictions involving the use or threat of violence to the
person;
(5) 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.
§4. Mitigating circumstances for imposition of capital
punishment.
Mitigating circumstances, for purposes of this article,
including the following:
(1) The defendant has no significant history of prior
criminal convictions;
(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 the character
and record of the defendant and the circumstances of his offense.
§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 life
imprisonment.
§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 lethal injection.
§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 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 court 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 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
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 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
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 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 injection. The punishment shall be executed
within the walls of Mount Olive Correctional Facility, which
shall be properly equipped for such purpose, and not elsewhere,
and with an enclosure to be prepared for that purpose, under the
direction of the warden and the authorities in control thereof,
which enclosure shall be so constructed as to exclude public
view. The warden of Mount Olive Correctional Facility, 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 the execution 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 correctional facility;
persons present at lethal injection.
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 facility. The clerk of the
court shall also forthwith transmit to the warden of the 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 person to the 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 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 correctional
facility.
Resolved further, 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 the
proposed amendment is summarized as follows: "To provide a
procedure for imposing the death penalty under certain conditions
for the crime of murder in 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 in the first degree.
Procedures for carrying out the death sentence are established.
This article is new; therefore, strike-throughs and
underscoring have been omitted.