Assembly Bill No. 15–Committee on Judiciary

 

(On Behalf of Legislative Committee to Study
Death Penalty and Related DNA Testing
(ACR 3 of the 17th Special Session))

 

Prefiled January 27, 2003

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Prohibits sentence of death for person who is mentally retarded. (BDR 14‑199)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: Yes.

 

~

 

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

1-2  thereto a new section to read as follows:

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

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

1-5  retarded.

1-6  2.  If a defendant files a motion pursuant to this section, the

1-7  court must hold a hearing within a reasonable time before the trial

1-8  to determine whether the defendant is mentally retarded.

1-9  3.  Not less than 45 days before the date set for a hearing

1-10  conducted pursuant to subsection 2, the court shall hold an ex

1-11  parte hearing in camera with the defendant and his counsel

1-12  present to:

 

 

2-1  (a) Review the evidence of the defendant concerning whether

2-2  the defendant is mentally retarded, including, without limitation,

2-3  psychological, psychiatric and other reports, school records of the

2-4  defendant and statements by witnesses; and

2-5  (b) Determine what evidence is material to a determination of

2-6  whether the defendant is mentally retarded and should be provided

2-7  to the prosecution.

2-8  4.  The court shall order the defendant to:

2-9  (a) Provide the evidence declared material pursuant to

2-10  subsection 3 to the prosecution at least 30 days before the date set

2-11  for a hearing conducted pursuant to subsection 2; and

2-12      (b) Undergo an examination by an expert selected by the

2-13  prosecution on the issue of whether the defendant is mentally

2-14  retarded at least 15 days before the date set for a hearing pursuant

2-15  to subsection 2.

2-16      5.  For the purpose of the hearing conducted pursuant to

2-17  subsection 2, there is no privilege for any information or evidence

2-18  provided to the prosecution or obtained by the prosecution

2-19  pursuant to subsection 4.

2-20      6.  At a hearing conducted pursuant to subsection 2:

2-21      (a) The court must allow the defendant and the prosecution to

2-22  present evidence concerning whether the defendant is mentally

2-23  retarded;

2-24      (b) The defendant has the burden of proving by a

2-25  preponderance of the evidence that he is mentally retarded; and

2-26      (c) The results of a reliably administered intelligence quotient

2-27  test indicating that the defendant has quotient of 70 or below

2-28  creates a rebuttable presumption that the defendant is mentally

2-29  retarded.

2-30      7.  If the court determines based on the evidence presented at

2-31  a hearing conducted pursuant to subsection 2 that the defendant is

2-32  mentally retarded, the court must make a finding that a sentence

2-33  of death may not be imposed upon the defendant.

2-34      8.  For the purposes of this section, a person is “mentally

2-35  retarded” if, before the age of 18 years, he manifests:

2-36      (a) Intellectual functioning that is significantly substandard;

2-37  and

2-38      (b) Substantial impairment of his adaptive behavior.

2-39      Sec. 2.  NRS 175.552 is hereby amended to read as follows:

2-40      175.552  1.  Except as otherwise provided in subsection 2, in

2-41  every case in which there is a finding that a defendant is guilty of

2-42  murder of the first degree, whether or not the death penalty is

2-43  sought, the court shall conduct a separate penalty hearing. The

2-44  separate penalty hearing must be conducted as follows:

3-1  (a) If the finding is made by a jury, the separate penalty hearing

3-2  must be conducted in the trial court before the trial jury, as soon as

3-3  practicable.

3-4  (b) If the finding is made upon a plea of guilty or guilty but

3-5  mentally ill or a trial without a jury and the death penalty is sought,

3-6  the separate penalty hearing must be conducted before a panel of

3-7  three district judges, as soon as practicable.

3-8  (c) If the finding is made upon a plea of guilty or guilty but

3-9  mentally ill or a trial without a jury and the death penalty is not

3-10  sought, the separate penalty hearing must be conducted before the

3-11  judge who conducted the trial or who accepted the plea, as soon as

3-12  practicable.

3-13      2.  In a case in which the death penalty is not sought[,] or in

3-14  which a court has made a finding that a sentence of death may not

3-15  be imposed pursuant to section 1 of this act, the parties may by

3-16  stipulation waive the separate penalty hearing required in subsection

3-17  1. When stipulating to such a waiver, the parties may also include an

3-18  agreement to have the sentence, if any, imposed by the trial judge.

3-19  Any stipulation pursuant to this subsection must be in writing and

3-20  signed by the defendant, his attorney, if any, and the prosecuting

3-21  attorney.

3-22      3.  [In] During the hearing, evidence may be presented

3-23  concerning aggravating and mitigating circumstances relative to the

3-24  offense, defendant or victim and on any other matter which the court

3-25  deems relevant to sentence, whether or not the evidence is ordinarily

3-26  admissible. Evidence may be offered to refute hearsay matters. No

3-27  evidence which was secured in violation of the Constitution of the

3-28  United States or the Constitution of the State of Nevada may be

3-29  introduced. The State may introduce evidence of additional

3-30  aggravating circumstances as set forth in NRS 200.033, other than

3-31  the aggravated nature of the offense itself, only if it has been

3-32  disclosed to the defendant before the commencement of the penalty

3-33  hearing.

3-34      4.  In a case in which the death penalty is not sought[,] or in

3-35  which a court has found pursuant to section 1 of this act that the

3-36  defendant may not receive a sentence of death, the jury or the trial

3-37  judge shall determine whether the defendant should be sentenced to

3-38  life with the possibility of parole or life without the possibility of

3-39  parole.

3-40      Sec. 3.  NRS 177.015 is hereby amended to read as follows:

3-41      177.015  The party aggrieved in a criminal action may appeal

3-42  only as follows:

3-43      1.  Whether that party is the State or the defendant:

3-44      (a) To the district court of the county from a final judgment of

3-45  the justice’s court.

4-1  (b) To the Supreme Court from an order of the district court

4-2  granting a motion to dismiss, a motion for acquittal or a motion in

4-3  arrest of judgment, or granting or refusing a new trial.

4-4  (c) To the Supreme Court from a determination of the district

4-5  court about whether a defendant is mentally retarded that is made

4-6  as a result of a hearing held pursuant to section 1 of this act. If the

4-7  Supreme Court entertains the appeal, it shall enter an order

4-8  staying the criminal proceedings against the defendant for such

4-9  time as may be required.

4-10      2.  The State may, upon good cause shown, appeal to the

4-11  Supreme Court from a pretrial order of the district court granting or

4-12  denying a motion to suppress evidence made pursuant to NRS

4-13  174.125. Notice of the appeal must be filed with the clerk of the

4-14  district court within 2 judicial days and with the Clerk of the

4-15  Supreme Court within 5 judicial days after the ruling by the district

4-16  court. The clerk of the district court shall notify counsel for the

4-17  defendant or, in the case of a defendant without counsel, the

4-18  defendant within 2 judicial days after the filing of the notice of

4-19  appeal. The Supreme Court may establish such procedures as it

4-20  determines proper in requiring the appellant to make a preliminary

4-21  showing of the propriety of the appeal and whether there may be a

4-22  miscarriage of justice if the appeal is not entertained. If the Supreme

4-23  Court entertains the appeal, or if it otherwise appears necessary, it

4-24  may enter an order staying the trial for such time as may be

4-25  required.

4-26      3.  The defendant only may appeal from a final judgment or

4-27  verdict in a criminal case.

4-28      4.  Except as otherwise provided in subsection 3 of NRS

4-29  174.035, the defendant in a criminal case shall not appeal a final

4-30  judgment or verdict resulting from a plea of guilty, guilty but

4-31  mentally ill or nolo contendere that the defendant entered into

4-32  voluntarily and with a full understanding of the nature of the charge

4-33  and the consequences of the plea, unless the appeal is based upon

4-34  reasonable constitutional, jurisdictional or other grounds that

4-35  challenge the legality of the proceedings. The Supreme Court may

4-36  establish procedures to require the defendant to make a preliminary

4-37  showing of the propriety of the appeal.

4-38      Sec. 4.  NRS 177.055 is hereby amended to read as follows:

4-39      177.055  1.  When upon a plea of not guilty a judgment of

4-40  death is entered, an appeal is deemed automatically taken by the

4-41  defendant without any action by him or his counsel, unless the

4-42  defendant or his counsel affirmatively waives the appeal within 30

4-43  days after the rendition of the judgment.

 

 

5-1  2.  Whether or not the defendant or his counsel affirmatively

5-2  waives the appeal, the sentence must be reviewed on the record by

5-3  the Supreme Court, which shall consider, in a single proceeding , if

5-4  an appeal is taken:

5-5  (a) Any errors enumerated by way of appeal;

5-6  (b) If a court determined that the defendant is not mentally

5-7  retarded during a hearing held pursuant to section 1 of this act,

5-8  whether that determination was correct;

5-9  (c) Whether the evidence supports the finding of an aggravating

5-10  circumstance or circumstances;

5-11      [(c)] (d) Whether the sentence of death was imposed under the

5-12  influence of passion, prejudice or any arbitrary factor; and

5-13      [(d)] (e) Whether the sentence of death is excessive, considering

5-14  both the crime and the defendant.

5-15      3.  The Supreme Court, when reviewing a death sentence, may:

5-16      (a) Affirm the sentence of death;

5-17      (b) Set the sentence aside and remand the case for a new penalty

5-18  hearing:

5-19          (1) If the original penalty hearing was before a jury, before a

5-20  newly impaneled jury; or

5-21          (2) If the original penalty hearing was before a panel of

5-22  judges, before a panel of three district judges which must consist,

5-23  insofar as possible, of the members of the original panel; or

5-24      (c) Set aside the sentence of death and impose the sentence of

5-25  imprisonment for life without possibility of parole.

5-26      Sec. 5.  NRS 200.030 is hereby amended to read as follows:

5-27      200.030  1.  Murder of the first degree is murder which is:

5-28      (a) Perpetrated by means of poison, lying in wait or torture, or

5-29  by any other kind of willful, deliberate and premeditated killing;

5-30      (b) Committed in the perpetration or attempted perpetration of

5-31  sexual assault, kidnapping, arson, robbery, burglary, invasion of the

5-32  home, sexual abuse of a child, sexual molestation of a child under

5-33  the age of 14 years or child abuse;

5-34      (c) Committed to avoid or prevent the lawful arrest of any

5-35  person by a peace officer or to effect the escape of any person from

5-36  legal custody; or

5-37      (d) Committed on the property of a public or private school, at

5-38  an activity sponsored by a public or private school or on a school

5-39  bus while the bus was engaged in its official duties by a person who

5-40  intended to create a great risk of death or substantial bodily harm to

5-41  more than one person by means of a weapon, device or course of

5-42  action that would normally be hazardous to the lives of more than

5-43  one person.

5-44      2.  Murder of the second degree is all other kinds of murder.

6-1  3.  The jury before whom any person indicted for murder is

6-2  tried shall, if they find him guilty thereof, designate by their verdict

6-3  whether he is guilty of murder of the first or second degree.

6-4  4.  A person convicted of murder of the first degree is guilty of

6-5  a category A felony and shall be punished:

6-6  (a) By death, only if one or more aggravating circumstances are

6-7  found and any mitigating circumstance or circumstances which are

6-8  found do not outweigh the aggravating circumstance or

6-9  circumstances[;] , unless a court has made a finding pursuant to

6-10  section 1 of this act that a sentence of death may not be imposed

6-11  upon the defendant; or

6-12      (b) By imprisonment in the state prison:

6-13          (1) For life without the possibility of parole;

6-14          (2) For life with the possibility of parole, with eligibility for

6-15  parole beginning when a minimum of 20 years has been served; or

6-16          (3) For a definite term of 50 years, with eligibility for parole

6-17  beginning when a minimum of 20 years has been served.

6-18  A determination of whether aggravating circumstances exist is not

6-19  necessary to fix the penalty at imprisonment for life with or without

6-20  the possibility of parole.

6-21      5.  A person convicted of murder of the second degree is guilty

6-22  of a category A felony and shall be punished by imprisonment in the

6-23  state prison:

6-24      (a) For life with the possibility of parole, with eligibility for

6-25  parole beginning when a minimum of 10 years has been served; or

6-26      (b) For a definite term of 25 years, with eligibility for parole

6-27  beginning when a minimum of 10 years has been served.

6-28      6.  As used in this section:

6-29      (a) “Child abuse” means physical injury of a nonaccidental

6-30  nature to a child under the age of 18 years;

6-31      (b) “School bus” has the meaning ascribed to it in NRS 483.160;

6-32      (c) “Sexual abuse of a child” means any of the acts described in

6-33  NRS 432B.100; and

6-34      (d) “Sexual molestation” means any willful and lewd or

6-35  lascivious act, other than acts constituting the crime of sexual

6-36  assault, upon or with the body, or any part or member thereof, of a

6-37  child under the age of 14 years, with the intent of arousing,

6-38  appealing to, or gratifying the lust, passions or sexual desires of the

6-39  perpetrator or of the child.

 

6-40  H