(REPRINTED WITH ADOPTED AMENDMENTS)
FIRST REPRINTA.B. 353
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.
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EXPLANATION
– Matter in bolded italics is new; matter
between brackets [omitted material] is material to be omitted.
Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).
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. Not less than 45 days before the date set for a hearing conducted
1-9 pursuant to subsection 2, the court shall hold an ex parte hearing in
1-10 camera with the defendant and his counsel present to:
1-11 (a) Review the evidence of the defendant concerning whether the
1-12 defendant is mentally retarded, including, without limitation,
1-13 psychological, psychiatric and other reports, records of the defendant
1-14 from school and statements by witnesses; and
1-15 (b) Determine what evidence concerning whether the defendant is
1-16 mentally retarded is material and should be provided to the prosecution.
1-17 4. The court shall order:
2-1 (a) The defendant to provide the evidence that the court determines is
2-2 material pursuant to subsection 3 to the prosecution not less than 30 days
2-3 before the date set for a hearing conducted pursuant to subsection 2; and
2-4 (b) The defendant to be examined, not less than 15 days before the
2-5 date set for a hearing conducted pursuant to subsection 2, by an expert
2-6 selected by the prosecution on the issue of whether the defendant is
2-7 mentally retarded.
2-8 5. For the purpose of the hearing conducted pursuant to subsection
2-9 2, there is no privilege for any information or evidence provided to the
2-10 prosecution or obtained by the prosecution pursuant to subsection 4.
2-11 6. At a hearing conducted pursuant to subsection 2:
2-12 (a) The court shall allow the defendant and the prosecution to present
2-13 evidence concerning the motion;
2-14 (b) The defendant has the burden of proving by a preponderance of
2-15 the evidence that he is mentally retarded; and
2-16 (c) There is a rebuttable presumption that the defendant is mentally
2-17 retarded if the results of a reliably administered intelligence quotient test
2-18 indicate that his intelligence quotient is 70 or below.
2-19 7. If the court concludes based on the evidence presented at a
2-20 hearing conducted pursuant to subsection 2 that the defendant is
2-21 mentally retarded, it shall make a finding that the defendant may not
2-22 receive a sentence of death.
2-23 8. For the purposes of this section, a person is “mentally retarded” if
2-24 before the age of 18 years he manifests:
2-25 (a) Intellectual functioning that is significantly substandard; and
2-26 (b) Substantial impairment of his adaptive behavior.
2-27 Sec. 2. NRS 175.552 is hereby amended to read as follows:
2-28 175.552 1. Except as otherwise provided in subsection 2, in every
2-29 case in which there is a finding that a defendant is guilty of murder of the
2-30 first degree, whether or not the death penalty is sought, the court shall
2-31 conduct a separate penalty hearing.The separate penalty hearing must be
2-32 conducted as follows:
2-33 (a) If the finding is made by a jury, the separate penalty hearing must be
2-34 conducted in the trial court before the trial jury, as soon as practicable.
2-35 (b) If the finding is made upon a plea of guilty or guilty but mentally ill
2-36 or a trial without a jury and the death penalty is sought, the separate
2-37 penalty hearing must be conducted before a panel of three district judges,
2-38 as soon as practicable.
2-39 (c) If the finding is made upon a plea of guilty or guilty but mentally ill
2-40 or a trial without a jury and the death penalty is not sought, the separate
2-41 penalty hearing must be conducted before the judge who conducted the
2-42 trial or who accepted the plea, as soon as practicable.
2-43 2. In a case in which the death penalty is not sought[,] or in which a
2-44 court has found pursuant to section 1 of this act that the defendant may
2-45 not receive a sentence of death, the parties may by stipulation waive the
2-46 separate penalty hearing required in subsection 1. When stipulating to such
2-47 a waiver, the parties may also include an agreement to have the sentence, if
2-48 any, imposed by the trial judge. Any stipulation pursuant to this subsection
3-1 must be in writing and signed by the defendant, his attorney, if any, and the
3-2 prosecuting attorney.
3-3 3. In the hearing, evidence may be presented concerning aggravating
3-4 and mitigating circumstances relative to the offense, defendant or victim
3-5 and on any other matter which the court deems relevant to sentence,
3-6 whether or not the evidence is ordinarily admissible. Evidence may be
3-7 offered to refute hearsay matters. No evidence which was secured in
3-8 violation of the Constitution of the United States or the constitution of the
3-9 State of Nevada may be introduced. The state may introduce evidence of
3-10 additional aggravating circumstances as set forth in NRS 200.033, other
3-11 than the aggravated nature of the offense itself, only if it has been disclosed
3-12 to the defendant before the commencement of the penalty hearing.
3-13 4. In a case in which the death penalty is not sought[,] or in which a
3-14 court has found pursuant to section 1 of this act that the defendant may
3-15 not receive a sentence of death, the jury or the trial judge shall determine
3-16 whether the defendant should be sentenced to life with the possibility of
3-17 parole or life without the possibility of parole.
3-18 Sec. 3. NRS 177.015 is hereby amended to read as follows:
3-19 177.015 The party aggrieved in a criminal action may appeal only as
3-20 follows:
3-21 1. Whether that party is the state or the defendant:
3-22 (a) To the district court of the county from a final judgment of the
3-23 justice’s court.
3-24 (b) To the supreme court from an order of the district court granting a
3-25 motion to dismiss, a motion for acquittal or a motion in arrest of judgment,
3-26 or granting or refusing a new trial.
3-27 (c) To the supreme court from a conclusion of the district court made
3-28 as a result of a hearing held pursuant to subsection 2 of section 1 of this
3-29 act. If the supreme court entertains the appeal, it shall enter an order
3-30 staying the criminal proceedings against the defendant for such time as
3-31 may be required.
3-32 2. The state may, upon good cause shown, appeal to the supreme court
3-33 from a pretrial order of the district court granting or denying a motion to
3-34 suppress evidence made pursuant to NRS 174.125. Notice of the appeal
3-35 must be filed with the clerk of the district court within 2 judicial days and
3-36 with the clerk of the supreme court within 5 judicial days after the ruling
3-37 by the district court. The clerk of the district court shall notify counsel for
3-38 the defendant or, in the case of a defendant without counsel, the defendant
3-39 within 2 judicial days after the filing of the notice of appeal. The supreme
3-40 court may establish such procedures as it determines proper in requiring
3-41 the appellant to make a preliminary showing of the propriety of the appeal
3-42 and whether there may be a miscarriage of justice if the appeal is not
3-43 entertained. If the supreme court entertains the appeal, or if it otherwise
3-44 appears necessary, it may enter an order staying the trial for such time as
3-45 may be required.
3-46 3. The defendant only may appeal from a final judgment or verdict in a
3-47 criminal case.
3-48 4. Except as otherwise provided in subsection 3 of NRS 174.035, the
3-49 defendant in a criminal case shall not appeal a final judgment or verdict
4-1 resulting from a plea of guilty, guilty but mentally ill or nolo contendere
4-2 that the defendant entered into voluntarily and with a full understanding of
4-3 the nature of the charge and the consequences of the plea, unless the appeal
4-4 is based upon reasonable constitutional, jurisdictional or other grounds that
4-5 challenge the legality of the proceedings. The supreme court may establish
4-6 procedures to require the defendant to make a preliminary showing of the
4-7 propriety of the appeal.
4-8 Sec. 4. NRS 177.055 is hereby amended to read as follows:
4-9 177.055 1. When upon a plea of not guilty a judgment of death is
4-10 entered, an appeal is deemed automatically taken by the defendant without
4-11 any action by him or his counsel, unless the defendant or his counsel
4-12 affirmatively waives the appeal within 30 days after the rendition of the
4-13 judgment.
4-14 2. Whether or not the defendant or his counsel affirmatively waives the
4-15 appeal, the sentence must be reviewed on the record by the supreme court,
4-16 which shall consider, in a single proceeding if an appeal is taken:
4-17 (a) Any errors enumerated by way of appeal;
4-18 (b) If a court concluded at a hearing held pursuant to subsection 2 of
4-19 section 1 of this act that the defendant was not mentally retarded,
4-20 whether that conclusion of the court was correct;
4-21 (c) Whether the evidence supports the finding of an aggravating
4-22 circumstance or circumstances;
4-23 [(c)] (d) Whether the sentence of death was imposed under the
4-24 influence of passion, prejudice or any arbitrary factor; and
4-25 [(d)] (e) Whether the sentence of death is excessive, considering both
4-26 the crime and the defendant.
4-27 3. The supreme court, when reviewing a death sentence, may:
4-28 (a) Affirm the sentence of death;
4-29 (b) Set the sentence aside and remand the case for a new penalty
4-30 hearing:
4-31 (1) If the original penalty hearing was before a jury, before a newly
4-32 impaneled jury; or
4-33 (2) If the original penalty hearing was before a panel of judges,
4-34 before a panel of three district judges which must consist, insofar as
4-35 possible, of the members of the original panel; or
4-36 (c) Set aside the sentence of death and impose the sentence of
4-37 imprisonment for life without possibility of parole.
4-38 Sec. 5. NRS 200.030 is hereby amended to read as follows:
4-39 200.030 1. Murder of the first degree is murder which is:
4-40 (a) Perpetrated by means of poison, lying in wait or torture, or by any
4-41 other kind of willful, deliberate and premeditated killing;
4-42 (b) Committed in the perpetration or attempted perpetration of sexual
4-43 assault, kidnapping, arson, robbery, burglary, invasion of the home, sexual
4-44 abuse of a child, sexual molestation of a child under the age of 14 years or
4-45 child abuse;
4-46 (c) Committed to avoid or prevent the lawful arrest of any person by a
4-47 peace officer or to effect the escape of any person from legal custody; or
4-48 (d) Committed on the property of a public or private school, at an
4-49 activity sponsored by a public or private school or on a school bus while
5-1 the bus was engaged in its official duties by a person who intended to
5-2 create a great risk of death or substantial bodily harm to more than one
5-3 person by means of a weapon, device or course of action that would
5-4 normally be hazardous to the lives of more than one person.
5-5 2. Murder of the second degree is all other kinds of murder.
5-6 3. The jury before whom any person indicted for murder is tried shall,
5-7 if they find him guilty thereof, designate by their verdict whether he is
5-8 guilty of murder of the first or second degree.
5-9 4. A person convicted of murder of the first degree is guilty of a
5-10 category A felony and shall be punished:
5-11 (a) By death, only if one or more aggravating circumstances are found
5-12 and any mitigating circumstance or circumstances which are found do not
5-13 outweigh the aggravating circumstance or circumstances[;] , unless a
5-14 court has found pursuant to section 1 of this act that the defendant may
5-15 not receive a sentence of death; or
5-16 (b) By imprisonment in the state prison:
5-17 (1) For life without the possibility of parole;
5-18 (2) For life with the possibility of parole, with eligibility for parole
5-19 beginning when a minimum of 20 years has been served; or
5-20 (3) For a definite term of 50 years, with eligibility for parole
5-21 beginning when a minimum of 20 years has been served.
5-22 A determination of whether aggravating circumstances exist is not
5-23 necessary to fix the penalty at imprisonment for life with or without the
5-24 possibility of parole.
5-25 5. A person convicted of murder of the second degree is guilty of a
5-26 category A felony and shall be punished by imprisonment in the state
5-27 prison:
5-28 (a) For life with the possibility of parole, with eligibility for parole
5-29 beginning when a minimum of 10 years has been served; or
5-30 (b) For a definite term of 25 years, with eligibility for parole beginning
5-31 when a minimum of 10 years has been served.
5-32 6. As used in this section:
5-33 (a) “Child abuse” means physical injury of a nonaccidental nature to a
5-34 child under the age of 18 years;
5-35 (b) “School bus” has the meaning ascribed to it in NRS 483.160;
5-36 (c) “Sexual abuse of a child” means any of the acts described in NRS
5-37 432B.100; and
5-38 (d) “Sexual molestation” means any willful and lewd or lascivious act,
5-39 other than acts constituting the crime of sexual assault, upon or with the
5-40 body, or any part or member thereof, of a child under the age of 14 years,
5-41 with the intent of arousing, appealing to, or gratifying the lust, passions or
5-42 sexual desires of the perpetrator or of the child.
5-43 Sec. 6. The amendatory provisions of this act do not apply to offenses
5-44 committed before October 1, 2001.
5-45 H