2012 -- H 7206

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LC00536

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO CRIMINAL PROCEDURE - SENTENCE OF DEATH FOR CERTAIN

FELONIES

     Introduced By: Representatives Petrarca, and Corvese

     Date Introduced: January 19, 2012

     Referred To: House Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 12 of the General Laws entitled "CRIMINAL PROCEDURE" is

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hereby amended by adding thereto the following chapter:

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     CHAPTER 19.4

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SENTENCE OF DEATH FOR CERTAIN FELONIES

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     12-19.4-1. Sentence of Death. – Trial by jury – In all cases tried by jury in which the

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penalty of death may be imposed pursuant to section 11-23-2.1, and in which the attorney general

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has recommended to the court that such a sentence be imposed, the court shall, upon return of a

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verdict of guilty of murder in the first degree by the jury, instruct the jury to determine whether it

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has been proven beyond a reasonable doubt that the murder committed by the defendant involved

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one of the circumstances enumerated in section 11-23-2 or 11-23-2.1 as the basis for imposition

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of a sentence of life imprisonment without parole. If after deliberation, the jury finds that one or

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more of the enumerated circumstances was present, it shall state in writing, signed by the

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foreperson of the jury, which circumstance or circumstances it found beyond a reasonable doubt.

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Upon return of an affirmative verdict, the court shall conduct a presentence hearing. At the

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hearing, the court shall permit the attorney general and the defense to present additional evidence

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relevant to a determination of the sentence to be imposed as provided for in section 12-19.2-4.

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After hearing evidence and argument relating to the presence or absence of aggravating and

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mitigating factors, the court shall, in its discretion, sentence the defendant to death. If the trial

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court is reversed on appeal because of error only in the presentence hearing, the new proceedings

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before the trial court which may be ordered shall pertain only to the issue of sentencing.

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     12-19.4-2. Consideration of aggravating and mitigating circumstances – At the

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presentence hearing, following a finding that one or more of the circumstances enumerated in

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sections 11-23-2 or 11-23-2.1 as the basis for imposition of a sentence of death or life

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imprisonment without parole was involved in the first degree murder of which the defendant has

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been convicted, the court shall consider evidence regarding the nature and circumstances of the

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offense and the personal history, character, record, and propensities of the defendant which are

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relevant to the sentencing determination. After hearing evidence and argument regarding the

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aggravating and mitigating circumstances relating to the offense and the defendant, the court

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shall, in its discretion, sentence the defendant to death or life imprisonment without parole or to

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life imprisonment. The court shall state on the record its reasons for imposing its sentence.

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     12-19.4-3. Imposition of death sentence upon defendant with a mental disability

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prohibited – (a) As used in this section, the term “a mental disability” means significantly sub-

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average general intellectual functioning existing concurrently with deficits in adaptive behavior

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and manifested during the period from conception to eighteen (18). The term “significantly sub-

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average general intellectual functioning,” for the purpose of this section, means performance that

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is two (2) or more standard deviations from the mean score on a standardized intelligence test

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specified in the rules of the department of developmental disabilities behavioral healthcare and

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hospitals (BHDDH). The term “adaptive behavior”, for the purpose of this definition, means the

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effectiveness or degree with which an individual meets the standards of personal independence

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and social responsibility expected of his or her age, cultural group, and community. The

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department of developmental disabilities behavioral healthcare and hospitals (BHDDH) shall

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adopt rules to specify the standardized intelligence tests as provided in this subsection.

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     (b) A sentence of death may not be imposed upon a defendant convicted of a felony

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punishable by death if it is determined in accordance with this section that the defendant has a

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mental disability.

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     (c) A defendant charged with a felony punishable by death who intends to raise a mental

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disability as a bar to the death sentence must give notice of such intention in accordance with the

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rules of court governing notices of intent to offer expert testimony regarding mental health

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mitigation during the penalty phase of a capital trial.

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     (d) After a defendant who has given notice of his or her intention to raise a mental

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disability as a bar to the death sentence is convicted of a felony punishable by death and an

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advisory jury has returned a recommended sentence of death, the defendant may file a motion to

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determine whether the defendant has a mental disability. Upon receipt of the motion, the court

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shall appoint two (2) experts in the field of a mental disability who shall evaluate the defendant

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and report their findings to the court and all interested parties prior to the final sentencing hearing

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which shall be held without a jury. At the final sentencing hearing, the court shall consider the

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findings of the court-appointed experts and consider the findings of any other expert which is

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offered by the state or the defense on the issue of whether the defendant has a mental disability. If

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the court finds, by clear and convincing evidence, that the defendant has a mental disability as

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defined in subsection (a), the court may not impose a sentence of death and shall enter a written

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order that sets forth with specificity the findings in support of the determination.

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     (e) If a defendant waives his or her right to a recommended sentence by an advisory jury

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following a plea of guilty or nolo contendere to a capital felony and adjudication of guilt by the

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court, or following a jury finding of guilt of a felony punishable by death, upon acceptance of the

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waiver by the court, a defendant who has given notice as required in subsection (c) may file a

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motion for a determination of a mental disability. Upon granting the motion, the court shall

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proceed as provided in subsection (d).

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     (f) If, following a recommendation by an advisory jury that the defendant be sentenced to

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life imprisonment, the state intends to request the court to order that the defendant be sentenced to

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death, the state must inform the defendant of such request if the defendant has notified the court

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of his or her intent to raise a mental disability as a bar to the death sentence. After receipt of the

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notice from the state, the defendant may file a motion requesting a determination by the court of

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whether the defendant has a mental disability. Upon granting the motion, the court shall proceed

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as provided as provided in subsection (d).

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     (g) The state may appeal a determination of a mental disability made under subsection

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(4).

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     (h) This section does not apply to a defendant who was sentenced to death prior to the

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effective date of this act.

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     SECTION 2. Sections 11-23-2 and 11-23-2.1 of the General Laws in Chapter 11-23

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entitled "Homicide" are hereby amended to read as follows:

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     11-23-2. Penalties for murder. -- Every person guilty of murder in the first degree shall

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be imprisoned for life or punished by death pursuant to chapter 12-19.4. Every person guilty of

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murder in the first degree: (1) committed intentionally while engaged in the commission of

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another capital offense or other felony for which life imprisonment may be imposed; (2)

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committed in a manner creating a great risk of death to more than one person by means of a

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weapon or device or substance which would normally be hazardous to the life of more than one

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person; (3) committed at the direction of another person in return for money or any other thing of

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monetary value from that person; (4) committed in a manner involving torture or an aggravated

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battery to the victim; (5) committed against any member of the judiciary, law enforcement

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officer, corrections employee, assistant attorney general or special assistant attorney general, or

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firefighter arising from the lawful performance of his or her official duties; (6) committed by a

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person who at the time of the murder was committed to confinement in the adult correctional

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institutions or the state reformatory for women upon conviction of a felony; or (7) committed

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during the course of the perpetration or attempted perpetration of felony manufacture, sale,

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delivery or other distribution of a controlled substance otherwise prohibited by the provisions of

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chapter 28 of title 21; shall be punished by death pursuant to chapter 12-19.4 or imprisoned for

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life and if ordered by the court pursuant to chapter 19.2 of title 12 that person shall not be eligible

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for parole from imprisonment. Every person guilty of murder in the second degree shall be

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imprisoned for not less than ten (10) years and may be imprisoned for life.

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     11-23-2.1. Penalty for murder of a kidnapped person under the age of eighteen (18).

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-- If any person under the age of eighteen (18) who is kidnapped in violation of section 11-26-1

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by a person other than his or her natural or adopted parent dies as a direct result of the

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kidnapping, then the person convicted of the offense shall be guilty of murder in the first degree

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and shall be punished by death pursuant to chapter 12-19.4 or imprisonment for life, and the

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court may, pursuant to chapter 19.2 of title 12, order that that person not be eligible for parole.

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     SECTION 3. This act shall take effect upon passage.

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LC00536

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO CRIMINAL PROCEDURE - SENTENCE OF DEATH FOR CERTAIN

FELONIES

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     This act would permit the death penalty in certain circumstances.

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     This act would take effect upon passage.

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LC00536

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