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H.830

Introduced by   Representative Kilmartin of Newport City

Referred to Committee on

Date:

Subject:  Criminal procedures; capital punishment; innocence protection

Statement of purpose:  This bill proposes to reinstitute capital punishment and permit a jury to impose the death penalty for murder committed under certain circumstances.

AN ACT RELATING TO CAPITAL PUNISHMENT AND PREVENTING CONVICTION OF INNOCENT PERSONS

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  13 V.S.A. chapter 53 is amended to read:

CHAPTER 53.  HOMICIDE

§ 2301.  MURDER-DEGREES DEFINED

Murder committed by means of poison, or by lying in wait, or by wilful, deliberate, and premeditated killing, or committed in perpetrating or attempting to perpetrate arson, sexual assault, aggravated sexual assault, robbery, or burglary, shall be murder in the first degree.  All other kinds of murder shall be murder in the second degree.

§ 2302.  -DETERMINATION OF DEGREE

The jury by whom a person is tried for murder, if it finds such person guilty thereof, shall state in its verdict whether it is murder in the first or in the second degree.  If such person is convicted on confession in open court, the court, by examination of witnesses, shall determine the degree of the crime and give sentence accordingly.

§ 2303.  PENALTIES FOR CAPITAL MURDER AND FOR FIRST AND                            SECOND DEGREE MURDER

(a)  The punishment for capital murder as defined in subsection 2311(a) of this title shall be the death penalty.

(b)  The punishment for murder in the first degree shall be imprisonment for life and for a minimum term of 35 years unless the court finds that there are aggravating or mitigating factors which justify a different minimum term.  If the court finds that the aggravating factors outweigh any mitigating factors, the minimum term may be longer than 35 years, up to and including life without parole.  If the court finds that the mitigating factors outweigh any aggravating factors the minimum term may be set at less than 35 years but not less than 15 years.

(b)(c)  The punishment for murder in the second degree shall be imprisonment for life and for a minimum term of 20 years unless the court finds that there are aggravating or mitigating factors which justify a different minimum term.  If the court finds that the aggravating factors outweigh any mitigating factors, the minimum term may be longer than 20 years, up to and including life without parole.  If the court finds that the mitigating factors outweigh any aggravating factors, the minimum term may be set at less than 20 years but not less than 10 years.

(c)(d)  Before sentencing a defendant for first or second degree murder, the court shall allow the parties to present arguments concerning aggravating and mitigating factors and sentence recommendations.  The court shall enter written findings of fact, summarizing the offense and the defendant's participation in it.  The court shall also enter specific written findings concerning aggravating and mitigating factors.  These findings shall be based on the evidence taken at trial and at the sentence hearing, and on information from the presentence investigation report.

(d)(e)  Aggravating factors shall include the following:

(1)  The murder was committed while the defendant was in custody under sentence of imprisonment.

(2)  The defendant was previously convicted of a felony involving the use of violence to a person.

(3)  The murder was committed while the defendant was engaged in the commission of, or in an attempt to commit, or in immediate flight after committing a felony.

(4)  The victim of the murder was particularly weak, vulnerable, or helpless.

(5)  The murder was particularly severe, brutal, or cruel.

(6)  The murder involved multiple victims.

(7)  The murder was random, predatory, or arbitrary in nature.

(8)  Any other factor that the state offers in support of a greater minimum sentence.

(e)(f)  Mitigating factors shall include the following:

(1)  The defendant had no significant history of prior criminal activity before sentencing.

(2)  The defendant was suffering from a mental or physical disability or condition that significantly reduced his or her culpability for the murder.

(3)  The defendant was an accomplice in the murder committed by another person and his or her participation was relatively minor.

(4)  The defendant, because of youth or old age, lacked substantial judgment in committing the murder.

(5)  The defendant acted under duress, coercion, threat, or compulsion insufficient to constitute a defense but which significantly affected his or her conduct.

(6)  The victim was a participant in the defendant's conduct or consented to it.

(7)  Any other factor that the defendant offers in support of a lesser minimum sentence.

§ 2304.  MANSLAUGHTER-PENALTIES

A person who commits manslaughter shall be fined not more than $3,000.00, or imprisoned for not less than one year nor more than 15 years, or both.

§ 2305.  JUSTIFIABLE HOMICIDE

If a person kills or wounds another under any of the circumstances enumerated below, he the person shall be guiltless:

(1)  In the just and necessary defense of his or her own life or the life of his or her husband, wife, parent, child, brother, sister, master, mistress, servant, guardian, or ward; or

(2)  In the suppression of a person attempting to commit murder, sexual assault, aggravated sexual assault, burglary, or robbery, with force or violence; or

(3)  In the case of a civil officer; or a military officer or private soldier when lawfully called out to suppress riot or rebellion, or to prevent or suppress invasion, or to assist in serving legal process, in suppressing opposition against him or her in the just and necessary discharge of his or her duty.

§ 2306.  POISONING FOOD, DRINK, MEDICINE OR WATER

A person who mingles poison with food, drink, or medicine, with intent to injure another person, or who, with a like intent, wilfully poisons a spring, well, or reservoir of water shall be imprisoned not more than twenty 20 years.

§ 2308.  FALSE TESTIMONY WITH INTENT TO CAUSE DEATH

A person who wilfully and corruptly bears false testimony with intent to take away the life of a person and thereby causes the life of such person to be taken, shall be guilty of murder in the first degree.

§ 2310.  CONVICTION OF LESSER OFFENSE

(a)  Upon indictment or information for an offense under this chapter, a person may be convicted of a lesser included offense, as the case may be, upon the proofs.

(b)  The time limitation created by section subsection 4501(b) of this title for the crime of manslaughter shall not bar a conviction under this section.

§ 2311.  AGGRAVATED CAPITAL MURDER DEFINED

(a)  A person is guilty of aggravated capital murder if he or she commits a first or second degree murder, as defined in section 2301 of this title, and at the time of his or her actions, one or more of the following circumstances was in fact present:

(1)  The murder was committed while the defendant was in custody under sentence for murder or aggravated murder.

(2)  The defendant had, prior to commencement of the trial for aggravated murder, been convicted of another aggravated murder or murder in any jurisdiction in the United States and territories.

(3)  At the time of the murder, the defendant also committed another murder.

(4)  At the time of the murder, the defendant knowingly created a great risk of death to another person or persons.

(5)  The murder was committed for the purpose of avoiding or preventing lawful arrest by a law enforcement officer of any person, or effecting an escape by any person from lawful custody of a law enforcement officer.

(6)  The murder was committed by a person hired for such purpose in return for anything of value.  Both the person hired and the person hiring him or her are guilty of aggravated murder.

(7)  The victim of the murder was known by the person to be a person employed in any capacity in or about a correctional facility or a law enforcement officer, and was performing his or her official duties.

(8)  The murder was committed in perpetrating or attempting to perpetrate sexual assault or aggravated sexual assault.

(9)  The murder was committed in perpetrating or attempting to perpetrate kidnapping as defined in section 2405 of this title.

(10)  The victim of the murder was a law enforcement officer who was at the time of the killing engaged in his or her official duties, and the defendant knew or reasonably should have known that the intended victim was a law enforcement officer.

(b)  In a prosecution for aggravated capital murder, the state shall allege and prove beyond a reasonable doubt one or more of the circumstances enumerated in subsection (a) of this section.

(c)  The punishment for aggravated capital murder shall be imprisonment for life and for no lesser term.  The court shall not place on probation or suspend or defer the sentence of any person convicted of aggravated murder.  A person sentenced under this section shall not be eligible for parole during the term of imprisonment imposed herein and shall not be eligible for work-release or noncustodial furlough except when serious medical services make custodial furlough inappropriate the death penalty.

§ 2312.  NOTICE OF INTENT TO SEEK DEATH PENALTY

(a)  Whenever the state intends to seek the death penalty for the crime of capital murder, the attorney for the state, before trial or acceptance by the court of a plea of guilty, shall file with the court and serve upon the defendant a notice that:

(1)  the state, in the event of a conviction, will seek the death penalty; and

(2)  sets forth the punishment for the crime in subsection 2311(a) of this title as the basis for the death penalty.

(b)  A notice of intent to seek the death penalty may be withdrawn at any time by a written notice of withdrawal filed with the court and served upon the defendant.  Once withdrawn, the notice of intent to seek the death penalty may not be refiled.

§ 2313.  SENTENCING HEARING

(a)  When the attorney for the state has filed a notice as required under section 2312 of this title and the defendant is found guilty or pleads guilty to the offense of capital murder, the judge who presided at the trial or before whom the guilty plea was entered or any other judge if the judge who presided at the trial or before whom the guilty plea was entered is unavailable shall conduct a separate sentencing hearing to determine the punishment to be imposed.  The hearing shall be conducted:

(1)  before the jury which determined the defendant’s guilt;

(2)  before a jury impaneled for the purpose of the hearing if:

(A)  the defendant was convicted upon a plea of guilty; or

(B)  the jury which determined the defendant’s guilt has been discharged for good cause.

(b)  A jury impaneled under this section shall consist of 12 members, unless at any time before the conclusion of the hearing, the parties stipulate with the approval of the court that it shall consist of any number less than 12.

(c)  When a defendant is found guilty of or pleads guilty to the offense of capital murder, no presentence report shall be prepared.

(d)  In the sentencing hearing, information may be presented as to matters relating to the aggravating factors in subsection 2303(d) of this title or any mitigating factors under subsection 2303(e).  Information presented may include:

(1)  the trial transcript;

(2)  exhibits if the hearing is held before a jury or judge not present during the trial, or at the trial judge’s discretion; and

(3)  any other information relevant to such aggravating or mitigating factors presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence at criminal trials, except that information may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

(e)  The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present an argument as to the adequacy of the information to establish the existence of the aggravating or mitigating factors and as to the appropriateness in that case of imposing a sentence of death.  The burden of establishing any aggravating factor is on the state and is not satisfied unless established beyond a reasonable doubt.  The burden of establishing the existence of any mitigating factor is on the defendant and is not satisfied unless established by a preponderance of the evidence.

(f)  If an aggravating factor set forth in subsection 2303(d) of this title is not found to exist, the court shall impose a sentence of life imprisonment without the possibility of parole.  If an aggravating factor is found to exist, the jury shall consider whether the aggravating factor found to exist sufficiently outweighs any mitigating factor or factors found to exist or in the absence of mitigating factors, whether the aggravating factor is sufficient to justify a sentence of death.  Based upon this consideration, if the jury concludes that the aggravating factors outweigh the mitigating factors or that the aggravating factors, in the absence of any mitigating factors, are sufficient to justify a death sentence, the jury, by unanimous vote only, may recommend that a sentence of death be imposed rather than a sentence of life imprisonment without possibility of parole.  The jury, regardless of its findings with respect to the aggravating and mitigating factors, is never required to impose a death sentence, and the jury shall be so instructed.

(g)  Upon the recommendation that the death penalty be imposed, the court shall sentence the defendant to death.  Otherwise, the court shall impose a sentence of life imprisonment without possibility of parole.

(h)  In determining whether the death penalty is to be imposed upon a defendant, the jury shall consider aggravating and mitigating factors in subsections 2303(d) and (e) of this title.  In addition, the court shall consider any other factor that the defendant offers against imposition of the death penalty.

(i)  If the jury cannot agree on the punishment within a reasonable time, the judge shall impose the sentence of life imprisonment without the possibility of parole.  If the case is reversed on appeal because of error only in the presentence hearing, the new trial which may be ordered shall apply only to the issue of punishment.

§ 2314.  AUTOMATIC REVIEW BY SUPREME COURT

(a)  In all cases in which the death penalty is imposed, the judgment of the conviction and the sentence of death shall be subject to automatic review by the supreme court within 60 days after certification by the sentencing court of the entire record unless time is extended for an additional period not to exceed 30 days by the supreme court for good cause shown.  Such review by the supreme court shall have priority over all other cases and shall be heard in accordance with rules adopted by the supreme court.

(b)  The supreme 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 finding of the existence of any aggravating factor in subsection 2303(d) of this title;

(3)  whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

(c)  In addition to its authority regarding correction of errors, the supreme court, with regard to review of death sentences, shall be authorized to:

(1)  affirm the sentence of death; or

(2)  set the sentence aside and remand the case for resentencing.

§ 2315.  PROCEDURE TO CARRY OUT THE SENTENCE AFTER

              REVIEW

(a)  When the death penalty is imposed, the sentence shall be that the defendant is imprisoned in a state correctional facility until the day appointed for his or her execution, which shall not be less than one year from the day the sentence is passed.  The procedure to be used in carrying out the sentence of death is by lethal injection.  A continuous, intravenous lethal quantity of an ultrashort‑acting barbiturate in combination with a chemical paralytic agent is to be administered to the defendant until death is pronounced by a licensed physician or registered nurse according to accepted standards of medical practice.

(b)  An execution carried out by lethal injection shall be performed by a person selected by the commissioner of corrections and trained to administer the injection.  The person administering the injection shall be a licensed physician or registered nurse under the laws of the state.

(c)  The governor or his or her designee shall determine the time of performing the execution and shall be responsible for providing facilities for the implementation thereof.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us