The Vermont Statutes Online

Title 13: Crimes and Criminal Procedure

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. (Amended 1983, No. 28, § 1.)

§ 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 first and second degree murder

(a)(1) The punishment for murder in the first degree shall be imprisonment for:

(A) a minimum term of not less than 35 years and a maximum term of life; or

(B) life without the possibility of parole.

(2) The punishment for murder in the second degree shall be imprisonment for:

(A) a minimum term of not less than 20 years and a maximum term of life; or

(B) life without the possibility of parole.

(3) Notwithstanding any other provision of law, this subsection shall apply only if the murder was committed on or after the effective date of this act.

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

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

(d)(1)(A) Before the court sentences a defendant for first or second degree murder, a jury shall consider the aggravating and mitigating factors set forth in subsections (e) and (f) of this section. The court shall allow the parties to present evidence and argument concerning the aggravating and mitigating factors and may empanel a new jury to consider them or conduct the hearing before the same jury that considered the guilt of the defendant.

(B) The parties shall file notice of intent to present evidence regarding specific aggravating and mitigating factors about which the parties have knowledge not less than 60 days before the hearing. A party may not present evidence on the presence of that aggravating or mitigating factor unless notice has been provided as required by this subdivision.

(C) The jury shall make findings concerning aggravating and mitigating factors and determine whether the aggravating factors outweigh the mitigating factors or the mitigating factors outweigh the aggravating factors. The findings shall be based on the evidence on the criminal charges presented to the jury at the sentencing hearing and at the trial.

(D) The burden shall be on the state to prove beyond a reasonable doubt the presence of aggravating factors or the absence of mitigating factors and to prove beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors.

(2) After the jury renders a verdict on the aggravating and mitigating factors, the court shall allow the parties to present arguments concerning sentencing recommendations. The court shall make written findings of fact summarizing the offense and the defendant's participation in it. The findings shall be based on the evidence taken at trial, the evidence presented on aggravating and mitigating factors at the sentencing hearing, and information from the presentence report. The court shall impose a sentence consistent with subsection (b) or (c) of this subsection and with the jury's findings concerning aggravating and mitigating factors.

(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.

(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.

(g) Subsections (b)-(f) of this section shall apply only if the murder was committed before the effective date of this act, and:

(1) the defendant was not sentenced before the effective date of this act; or

(2) the defendant's sentence was stricken and remanded for resentencing pursuant to the Vermont supreme court's decision in State v. Provost, 2005 VT 134 (2005). (Amended 1965, No. 30; 1971, No. 199, § 15; 1979, No. 175 (Adj. Sess.), § 1, eff. April 29, 1980; 1981, No. 223 (Adj. Sess.) § 20; 1987, No. 60, § 2, eff. May 16, 1987; 2005, No. 119 (Adj. Sess.), § 2, eff. May 1, 2006.)

§ 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. (Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 205 (Adj. Sess.), § 3.)

§ 2305. Justifiable homicide

If a person kills or wounds another under any of the circumstances enumerated below, he or she 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. (Amended 1983, No. 23, § 2.)

§ 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 20 years. (Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 3.)

§ 2307. Repealed. 1995, No. 170 (Adj. Sess.), § 32, eff. May 15, 1996.

§ 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.

§ 2309. Repealed. 1973, No. 118, § 25, eff. Oct. 1, 1973.

§ 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 subsection 4501(b) of this title for the crime of manslaughter shall not bar a conviction under this section. (Amended 1987, No. 60, § 4, eff. May 16, 1987; 1995, No. 27, § 2.)

§ 2311. Aggravated murder defined

(a) A person is guilty of aggravated 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.

(b) In a prosecution for aggravated 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 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. (Added 1987, No. 60, § 1, eff. May 16, 1987.)