2017 -- H 5208

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LC000270

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2017

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A N   A C T

RELATING TO CRIMINAL OFFENSES - HOMICIDE

     Introduced By: Representatives O'Brien, Corvese, McKiernan, Johnston, and Lima

     Date Introduced: January 26, 2017

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Chapter 11-23 of the General Laws entitled "Homicide" is hereby amended

by adding thereto the following section:

     11-23-2.3. Penalty for an ambush murder of a first responder.

     (a) For the purpose of this section, the term "first responder" means any member of any

police force or fire department or fire district of the state or any city or town, investigators of the

department of attorney general appointed pursuant to §42-9-8.1, inspectors and agents of the

Rhode Island state fugitive task force, or any person acting in the capacity of a rescue attendant or

member of a rescue squad, and any officer or member in active service in any incorporated

protective department cooperating with fire departments, and any person performing the duties of

a firefighter in a town or city, and any member of any volunteer fire company or volunteer rescue

squad or member of any voluntary ambulance association, whether the company or squad is

incorporated or not.

     (b) Every person guilty of murder in the first degree of a first responder who the court

finds was murdered while in the performance of the first responder's official duties and who the

court finds was murdered in an manner involving ambush whereby the victim was unsuspectingly

lured to a location and murdered deliberately without provocation, shall be eligible for

punishment by death.

     (c) Separate proceedings on issue of penalty. - Upon conviction or adjudication of guilt of

a defendant of the murder in the first degree of a first responder, the court shall conduct a separate

sentencing proceeding to determine whether the defendant should be sentenced to death or life

imprisonment. The proceeding shall be conducted by the trial judge before the trial jury as soon

as practicable. If, through impossibility or inability, the trial jury is unable to reconvene for a

hearing on the issue of penalty, having determined the guilt of the accused, the trial judge may

summon a special jury to determine the issue of the imposition of the penalty. If the trial jury has

been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted

before a jury impaneled for that purpose, unless waived by the defendant. In the proceeding,

evidence may be presented as to any matter that the court deems relevant to the nature of the

crime and the character of the defendant and shall include matters relating to the aggravating

factor enumerated in subsection (h) of this section and which notice has been properly provided

or mitigating circumstances enumerated in subsection (i) of this section. Any such evidence that

the court deems to have probative value may be received, regardless of its admissibility under the

exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any

hearsay statements. However, this subsection shall not be construed to authorize the introduction

of any evidence secured in violation of the Constitution of the United States or the Constitution of

the State of Rhode Island. The state and the defendant or the defendant's counsel shall be

permitted to present argument for or against sentence of death.

     (d) Findings and recommended sentence by the jury. This subsection applies only if the

defendant has not waived their right to a sentencing proceeding by a jury.

     (1) After hearing all of the evidence presented regarding the existence of the aggravating

factor and any mitigating circumstances, the jury shall deliberate and determine if the state has

proven, beyond a reasonable doubt, the existence of an aggravating factor set forth in subsection

(g) of this section.

     (2) The jury shall return findings identifying whether or not the aggravating factor had

been found to exist. A finding that the aggravating factor exists must be unanimous. If the jury:

     (i) Does not unanimously find the existence of the aggravating factor, the defendant is

ineligible for a sentence of death;

     (ii) Unanimously finds that the aggravating factor exists, the defendant is eligible for a

sentence of death and the jury shall make a recommendation to the court as to whether the

defendant shall be sentenced to life imprisonment without the possibility of parole or to death.

The recommendation shall be based on a weighing of all of the following:

     (A) The aggravating factor which exists;

     (B) Whether the aggravating factor outweighs the mitigating circumstances found to

exist;

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     (C) Based on the considerations in subsections (d)(2)(ii)(A) and (d)(2)(ii)(B) of this

section, whether the defendant should be sentenced to life imprisonment without the possibility of

parole or to death.

     (3) Only if all twelve (12) jurors shall determine that the defendant should be sentenced

to death, the jury's recommendation to the court shall be a sentence of death. If fewer than twelve

(12) jurors determine that the defendant should be sentenced to death, the jury's recommendation

to the court shall be a sentence of life imprisonment without the possibility of parole.

     (e) Imposition of sentence of life imprisonment or death.

     (1) If the jury has recommended a sentence of:

     (i) Life imprisonment without the possibility of parole, the court shall impose the

recommended sentence;

     (ii) Death, the court, after considering the circumstances relating to the aggravating factor

found by the jury and all mitigating circumstances, may impose a sentence of life imprisonment

without the possibility of parole or a sentence of death.

     (2) If the defendant waived their right to a sentencing proceeding by a jury, the court,

after considering the existence of the aggravating factor and mitigating circumstances, may

impose a sentence of life imprisonment without the possibility of parole or a sentence of death.

The court may impose a sentence of death only if the court finds that the aggravating factor has

been proven to exist beyond a reasonable doubt.

     (f) Order of the court in support of sentence of death. In each case in which the court

imposes a sentence of death, the court shall, considering the records of the trial and the sentencing

proceedings, enter a written order addressing the aggravating factor set forth in subsection (h) of

this section found to exist, the mitigating circumstances in subsection (i) of this section

reasonably established by the evidence, whether there is sufficient evidence of the aggravating

factor to warrant the death penalty, and whether the aggravating factor outweighs the mitigating

circumstances reasonably established by the evidence. If the court does not issue its order

requiring the death sentence within thirty (30) days after the rendition of the judgment and

sentence, the court shall impose a sentence of life imprisonment without the possibility of parole.

     (g) Review of judgment and sentence. The judgment of conviction and sentence of death

shall be subject to automatic review by the Rhode Island supreme court and disposition rendered

within two (2) years after the filing of a notice of appeal. 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.

     (h) Aggravating factor. The aggravating factor shall be limited to the following:

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     (1) The victim of the murder was a first responder, as defined herein, who was engaged in

the performance of their official duties and who was unsuspectingly lured to a location and

murdered deliberately and without provocation.

     (i) Mitigating circumstances. Mitigating circumstances shall consist of any of the

following:

     (1) The defendant has no significant history of prior criminal activity;

     (2) The murder was committed while the defendant was under the influence of extreme

mental or emotional disturbance;

     (3) The defendant was an accomplice in the murder committed by another person and

their participation was relatively minor;

     (4) The defendant acted under extreme duress or under the substantial domination of

another person;

     (5) The capacity of the defendant to appreciate the criminality of their conduct or to

conform their conduct to the requirements of law was substantially impaired;

     (6) The age of the defendant at the time of the crime; and

     (7) The existence of any other factors in the defendant's background that would mitigate

against imposition of the death penalty.

     (j) Punishment of death under this section shall be administered by the method of lethal

injection.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO CRIMINAL OFFENSES - HOMICIDE

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     This act would provide for the death penalty in situations where first responders are

murdered by way of ambush.

     This act would take effect upon passage.

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