Assembly Bill No. 353–Assemblymen Leslie, Anderson, Giunchigliani, Arberry and Williams

 

March 14, 2001

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Joint Sponsor: Senator Neal

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Referred to Committee on Judiciary

 

SUMMARY—Prohibits sentence of death for person who is mentally retarded. (BDR 14‑801)

 

FISCAL NOTE:            Effect on Local Government: No.

                                    Effect on the State: Yes.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to crimes; prohibiting a sentence of death for a person who is mentally retarded; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1    Section 1. Chapter 174 of NRS is hereby amended by adding thereto a

1-2  new section to read as follows:

1-3    1.  A defendant who is charged with murder of the first degree may,

1-4  before his trial, file a motion to declare that he is mentally retarded.

1-5    2.  If a defendant files a motion pursuant to this section the court

1-6  shall hold a hearing within a reasonable time before the trial to

1-7  determine whether the defendant is mentally retarded.

1-8    3.  At a hearing conducted pursuant to this section:

1-9    (a) The court shall allow the defendant and the prosecution to present

1-10  evidence concerning the motion;

1-11    (b) The defendant has the burden of proving by a preponderance of

1-12  the evidence that he is mentally retarded; and

1-13    (c) There is a rebuttable presumption that the defendant is mentally

1-14  retarded if the results of a reliably administered intelligence quotient test

1-15  indicate that his intelligence quotient is 70 or below.

1-16    4.  If the court concludes based on the evidence presented at a

1-17  hearing conducted pursuant to this section that the defendant is mentally

1-18  retarded, it shall make a finding that the defendant may not receive a

1-19  sentence of death.

2-1    5.  For the purposes of this section, a person is “mentally retarded” if

2-2  before the age of 18 years he manifests:

2-3    (a) Intellectual functioning that is significantly substandard; and

2-4    (b) Substantial impairment of his adaptive behavior.

2-5    Sec. 2.  NRS 175.552 is hereby amended to read as follows:

2-6    175.552  1.  Except as otherwise provided in subsection 2, in every

2-7  case in which there is a finding that a defendant is guilty of murder of the

2-8  first degree, whether or not the death penalty is sought, the court shall

2-9  conduct a separate penalty hearing.The separate penalty hearing must be

2-10  conducted as follows:

2-11    (a) If the finding is made by a jury, the separate penalty hearing must be

2-12  conducted in the trial court before the trial jury, as soon as practicable.

2-13    (b) If the finding is made upon a plea of guilty or guilty but mentally ill

2-14  or a trial without a jury and the death penalty is sought, the separate

2-15  penalty hearing must be conducted before a panel of three district judges,

2-16  as soon as practicable.

2-17    (c) If the finding is made upon a plea of guilty or guilty but mentally ill

2-18  or a trial without a jury and the death penalty is not sought, the separate

2-19  penalty hearing must be conducted before the judge who conducted the

2-20  trial or who accepted the plea, as soon as practicable.

2-21    2.  In a case in which the death penalty is not sought[,] or in which a

2-22  court has found pursuant to section 1 of this act that the defendant may

2-23  not receive a sentence of death, the parties may by stipulation waive the

2-24  separate penalty hearing required in subsection 1. When stipulating to such

2-25  a waiver, the parties may also include an agreement to have the sentence, if

2-26  any, imposed by the trial judge. Any stipulation pursuant to this subsection

2-27  must be in writing and signed by the defendant, his attorney, if any, and the

2-28  prosecuting attorney.

2-29    3.  In the hearing, evidence may be presented concerning aggravating

2-30  and mitigating circumstances relative to the offense, defendant or victim

2-31  and on any other matter which the court deems relevant to sentence,

2-32  whether or not the evidence is ordinarily admissible. Evidence may be

2-33  offered to refute hearsay matters. No evidence which was secured in

2-34  violation of the Constitution of the United States or the constitution of the

2-35  State of Nevada may be introduced. The state may introduce evidence of

2-36  additional aggravating circumstances as set forth in NRS 200.033, other

2-37  than the aggravated nature of the offense itself, only if it has been disclosed

2-38  to the defendant before the commencement of the penalty hearing.

2-39    4.  In a case in which the death penalty is not sought[,] or in which a

2-40  court has found pursuant to section 1 of this act that the defendant may

2-41  not receive a sentence of death, the jury or the trial judge shall determine

2-42  whether the defendant should be sentenced to life with the possibility of

2-43  parole or life without the possibility of parole.

2-44    Sec. 3.  NRS 177.055 is hereby amended to read as follows:

2-45    177.055  1.  When upon a plea of not guilty a judgment of death is

2-46  entered, an appeal is deemed automatically taken by the defendant without

2-47  any action by him or his counsel, unless the defendant or his counsel

2-48  affirmatively waives the appeal within 30 days after the rendition of the

2-49  judgment.

3-1    2.  Whether or not the defendant or his counsel affirmatively waives the

3-2  appeal, the sentence must be reviewed on the record by the supreme court,

3-3  which shall consider, in a single proceeding if an appeal is taken:

3-4    (a) Any errors enumerated by way of appeal;

3-5    (b) If a court concluded at a hearing held pursuant to section 1 of this

3-6  act that the defendant was not mentally retarded, whether that

3-7  conclusion of the court was correct;

3-8    (c) Whether the evidence supports the finding of an aggravating

3-9  circumstance or circumstances;

3-10    [(c)] (d) Whether the sentence of death was imposed under the

3-11  influence of passion, prejudice or any arbitrary factor; and

3-12    [(d)] (e) Whether the sentence of death is excessive, considering both

3-13  the crime and the defendant.

3-14    3.  The supreme court, when reviewing a death sentence, may:

3-15    (a) Affirm the sentence of death;

3-16    (b) Set the sentence aside and remand the case for a new penalty

3-17  hearing:

3-18      (1) If the original penalty hearing was before a jury, before a newly

3-19  impaneled jury; or

3-20      (2) If the original penalty hearing was before a panel of judges,

3-21  before a panel of three district judges which must consist, insofar as

3-22  possible, of the members of the original panel; or

3-23    (c) Set aside the sentence of death and impose the sentence of

3-24  imprisonment for life without possibility of parole.

3-25    Sec. 4.  NRS 200.030 is hereby amended to read as follows:

3-26    200.030  1.  Murder of the first degree is murder which is:

3-27    (a) Perpetrated by means of poison, lying in wait or torture, or by any

3-28  other kind of willful, deliberate and premeditated killing;

3-29    (b) Committed in the perpetration or attempted perpetration of sexual

3-30  assault, kidnapping, arson, robbery, burglary, invasion of the home, sexual

3-31  abuse of a child, sexual molestation of a child under the age of 14 years or

3-32  child abuse;

3-33    (c) Committed to avoid or prevent the lawful arrest of any person by a

3-34  peace officer or to effect the escape of any person from legal custody; or

3-35    (d) Committed on the property of a public or private school, at an

3-36  activity sponsored by a public or private school or on a school bus while

3-37  the bus was engaged in its official duties by a person who intended to

3-38  create a great risk of death or substantial bodily harm to more than one

3-39  person by means of a weapon, device or course of action that would

3-40  normally be hazardous to the lives of more than one person.

3-41    2.  Murder of the second degree is all other kinds of murder.

3-42    3.  The jury before whom any person indicted for murder is tried shall,

3-43  if they find him guilty thereof, designate by their verdict whether he is

3-44  guilty of murder of the first or second degree.

3-45    4.  A person convicted of murder of the first degree is guilty of a

3-46  category A felony and shall be punished:

3-47    (a) By death, only if one or more aggravating circumstances are found

3-48  and any mitigating circumstance or circumstances which are found do not

3-49  outweigh the aggravating circumstance or circumstances[;] , unless a

4-1  court has found pursuant to section 1 of this act that the defendant may

4-2  not receive a sentence of death; or

4-3    (b) By imprisonment in the state prison:

4-4       (1) For life without the possibility of parole;

4-5       (2) For life with the possibility of parole, with eligibility for parole

4-6  beginning when a minimum of 20 years has been served; or

4-7       (3) For a definite term of 50 years, with eligibility for parole

4-8  beginning when a minimum of 20 years has been served.

4-9  A determination of whether aggravating circumstances exist is not

4-10  necessary to fix the penalty at imprisonment for life with or without the

4-11  possibility of parole.

4-12    5.  A person convicted of murder of the second degree is guilty of a

4-13  category A felony and shall be punished by imprisonment in the state

4-14  prison:

4-15    (a) For life with the possibility of parole, with eligibility for parole

4-16  beginning when a minimum of 10 years has been served; or

4-17    (b) For a definite term of 25 years, with eligibility for parole beginning

4-18  when a minimum of 10 years has been served.

4-19    6.  As used in this section:

4-20    (a) “Child abuse” means physical injury of a nonaccidental nature to a

4-21  child under the age of 18 years;

4-22    (b) “School bus” has the meaning ascribed to it in NRS 483.160;

4-23    (c) “Sexual abuse of a child” means any of the acts described in NRS

4-24  432B.100; and

4-25    (d) “Sexual molestation” means any willful and lewd or lascivious act,

4-26  other than acts constituting the crime of sexual assault, upon or with the

4-27  body, or any part or member thereof, of a child under the age of 14 years,

4-28  with the intent of arousing, appealing to, or gratifying the lust, passions or

4-29  sexual desires of the perpetrator or of the child.

4-30    Sec. 5.  The amendatory provisions of this act do not apply to offenses

4-31  committed before October 1, 2001.

 

4-32  H