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  in a case in which the death penalty is sought may, not less than

1-5  10 days before the date set for trial, file a motion to declare that he

1-6  is mentally retarded.

1-7  2.  If a defendant files a motion pursuant to this section, the

1-8  court must:

1-9  (a) Stay the proceedings pending a decision on the issue of

1-10  mental retardation; and

1-11      (b) Hold a hearing within a reasonable time before the trial to

1-12  determine whether the defendant is mentally retarded.

1-13      3.  The court shall order the defendant to:

2-1  (a) Provide evidence which demonstrates that the defendant is

2-2  mentally retarded not less than 30 days before the date set for a

2-3  hearing conducted pursuant to subsection 2; and

2-4  (b) Undergo an examination by an expert selected by the

2-5  prosecution on the issue of whether the defendant is mentally

2-6  retarded at least 15 days before the date set for a hearing pursuant

2-7  to subsection 2.

2-8  4.  For the purpose of the hearing conducted pursuant to

2-9  subsection 2, there is no privilege for any information or evidence

2-10  provided to the prosecution or obtained by the prosecution

2-11  pursuant to subsection 3.

2-12      5.  At a hearing conducted pursuant to subsection 2:

2-13      (a) The court must allow the defendant and the prosecution to

2-14  present evidence and conduct a cross-examination of any witness

2-15  concerning whether the defendant is mentally retarded; and

2-16      (b) The defendant has the burden of proving by a

2-17  preponderance of the evidence that he is mentally retarded.

2-18      6.  If the court determines based on the evidence presented at

2-19  a hearing conducted pursuant to subsection 2 that the defendant is

2-20  mentally retarded, the court must make such a finding in the

2-21  record and strike the notice of intent to seek the death penalty.

2-22  Such a finding may be appealed to the Supreme Court pursuant to

2-23  NRS 177.015.

2-24      7.  For the purposes of this section, “mentally retarded”

2-25  means significant subaverage general intellectual functioning

2-26  which exists concurrently with deficits in adaptive behavior and

2-27  manifested during the developmental period.

2-28      Sec. 2.  NRS 175.552 is hereby amended to read as follows:

2-29      175.552  1.  Except as otherwise provided in subsection 2, in

2-30  every case in which there is a finding that a defendant is guilty of

2-31  murder of the first degree, whether or not the death penalty is

2-32  sought, the court shall conduct a separate penalty hearing. The

2-33  separate penalty hearing must be conducted as follows:

2-34      (a) If the finding is made by a jury, the separate penalty hearing

2-35  must be conducted in the trial court before the trial jury, as soon as

2-36  practicable.

2-37      (b) If the finding is made upon a plea of guilty or guilty but

2-38  mentally ill or a trial without a jury and the death penalty is sought,

2-39  the separate penalty hearing must be conducted before a panel of

2-40  three district judges, as soon as practicable.

2-41      (c) If the finding is made upon a plea of guilty or guilty but

2-42  mentally ill or a trial without a jury and the death penalty is not

2-43  sought, the separate penalty hearing must be conducted before the

2-44  judge who conducted the trial or who accepted the plea, as soon as

2-45  practicable.

3-1  2.  In a case in which the death penalty is not sought[,] or in

3-2  which a court has made a finding that the defendant is mentally

3-3  retarded and has stricken the notice of intent to seek the death

3-4  penalty pursuant to section 1 of this act, the parties may by

3-5  stipulation waive the separate penalty hearing required in subsection

3-6  1. When stipulating to such a waiver, the parties may also include an

3-7  agreement to have the sentence, if any, imposed by the trial judge.

3-8  Any stipulation pursuant to this subsection must be in writing and

3-9  signed by the defendant, his attorney, if any, and the prosecuting

3-10  attorney.

3-11      3.  [In] During the hearing, evidence may be presented

3-12  concerning aggravating and mitigating circumstances relative to the

3-13  offense, defendant or victim and on any other matter which the court

3-14  deems relevant to sentence, whether or not the evidence is ordinarily

3-15  admissible. Evidence may be offered to refute hearsay matters. No

3-16  evidence which was secured in violation of the Constitution of the

3-17  United States or the Constitution of the State of Nevada may be

3-18  introduced. The State may introduce evidence of additional

3-19  aggravating circumstances as set forth in NRS 200.033, other than

3-20  the aggravated nature of the offense itself, only if it has been

3-21  disclosed to the defendant before the commencement of the penalty

3-22  hearing.

3-23      4.  In a case in which the death penalty is not sought[,] or in

3-24  which a court has found the defendant to be mentally retarded and

3-25  has stricken the notice of intent to seek the death penalty pursuant

3-26  to section 1 of this act, the jury or the trial judge shall determine

3-27  whether the defendant should be sentenced to life with the

3-28  possibility of parole or life without the possibility of parole.

3-29      Sec. 3.  NRS 175.554 is hereby amended to read as follows:

3-30      175.554 In cases in which the death penalty is sought:

3-31      1.  If the penalty hearing is conducted before a jury, the court

3-32  shall instruct the jury at the end of the hearing, and shall include in

3-33  its instructions the aggravating circumstances alleged by the

3-34  prosecution upon which evidence has been presented during the trial

3-35  or at the hearing. The court shall also instruct the jury as to the

3-36  mitigating circumstances alleged by the defense upon which

3-37  evidence has been presented during the trial or at the hearing.

3-38      2.  The jury or the panel of judges shall determine:

3-39      (a) Whether an aggravating circumstance or circumstances are

3-40  found to exist;

3-41      (b) Whether a mitigating circumstance or circumstances are

3-42  found to exist; and

3-43      (c) Based upon these findings, whether the defendant should be

3-44  sentenced to life imprisonment with the possibility of parole, life

3-45  imprisonment without the possibility of parole or death.

4-1  3.  The jury or the panel of judges may impose a sentence of

4-2  death only if it finds at least one aggravating circumstance and

4-3  further finds that there are no mitigating circumstances sufficient to

4-4  outweigh the aggravating circumstance or circumstances found.

4-5  4.  If a jury or a panel of judges imposes a sentence of death,

4-6  the court shall enter its finding in the record, or the jury shall render

4-7  a written verdict signed by the foreman. The finding or verdict must

4-8  designate the aggravating circumstance or circumstances which

4-9  were found beyond a reasonable doubt, and must state that there are

4-10  no mitigating circumstances sufficient to outweigh the aggravating

4-11  circumstance or circumstances found.

4-12      5.  If a sentence of death is imposed and a prior determination

4-13  regarding mental retardation has not been made pursuant to

4-14  section 1 of this act, the defendant may file a motion to set aside

4-15  the penalty on the grounds that the defendant is mentally retarded.

4-16  If such a motion is filed, the court shall conduct a hearing on that

4-17  issue in the manner set forth in section 1 of this act. If the court

4-18  determines pursuant to such a hearing that the defendant is

4-19  mentally retarded, it shall set aside the sentence of death and order

4-20  a new penalty hearing to be conducted. Either party may appeal

4-21  such a determination to the Supreme Court pursuant to

4-22  NRS 177.015.

4-23      Sec. 4.  NRS 176.415 is hereby amended to read as follows:

4-24      176.415  The execution of a judgment of death must be stayed

4-25  only:

4-26      1.  By the State Board of Pardons Commissioners as authorized

4-27  in Sections 13 and 14 of Article 5 of the Constitution of the State of

4-28  Nevada;

4-29      2.  When a direct appeal from the judgment of conviction and

4-30  sentence is taken to the Supreme Court;

4-31      3.  By a judge of the district court of the county in which the

4-32  state prison is situated, for the purpose of an investigation of sanity

4-33  or pregnancy as provided in NRS 176.425 to 176.485, inclusive;

4-34  [or]

4-35      4.  By a judge of the district court in which a motion is filed

4-36  pursuant to subsection 5 of NRS 175.554, for the purpose of

4-37  determining whether the defendant is mentally retarded; or

4-38      5.  Pursuant to the provisions of NRS 176.486 to 176.492,

4-39  inclusive.

4-40      Sec. 5.  NRS 177.015 is hereby amended to read as follows:

4-41      177.015  The party aggrieved in a criminal action may appeal

4-42  only as follows:

4-43      1.  Whether that party is the State or the defendant:

4-44      (a) To the district court of the county from a final judgment of

4-45  the justice’s court.

5-1  (b) To the Supreme Court from an order of the district court

5-2  granting a motion to dismiss, a motion for acquittal or a motion in

5-3  arrest of judgment, or granting or refusing a new trial.

5-4  (c) To the Supreme Court from a determination of the district

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

5-6  as a result of a hearing held pursuant to section 1 of this act. If the

5-7  Supreme Court entertains the appeal, it shall enter an order

5-8  staying the criminal proceedings against the defendant for such

5-9  time as may be required.

5-10      2.  The State may, upon good cause shown, appeal to the

5-11  Supreme Court from a pretrial order of the district court granting or

5-12  denying a motion to suppress evidence made pursuant to NRS

5-13  174.125. Notice of the appeal must be filed with the clerk of the

5-14  district court within 2 judicial days and with the Clerk of the

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

5-16  court. The clerk of the district court shall notify counsel for the

5-17  defendant or, in the case of a defendant without counsel, the

5-18  defendant within 2 judicial days after the filing of the notice of

5-19  appeal. The Supreme Court may establish such procedures as it

5-20  determines proper in requiring the appellant to make a preliminary

5-21  showing of the propriety of the appeal and whether there may be a

5-22  miscarriage of justice if the appeal is not entertained. If the Supreme

5-23  Court entertains the appeal, or if it otherwise appears necessary, it

5-24  may enter an order staying the trial for such time as may be

5-25  required.

5-26      3.  The defendant only may appeal from a final judgment or

5-27  verdict in a criminal case.

5-28      4.  Except as otherwise provided in subsection 3 of NRS

5-29  174.035, the defendant in a criminal case shall not appeal a final

5-30  judgment or verdict resulting from a plea of guilty, guilty but

5-31  mentally ill or nolo contendere that the defendant entered into

5-32  voluntarily and with a full understanding of the nature of the charge

5-33  and the consequences of the plea, unless the appeal is based upon

5-34  reasonable constitutional, jurisdictional or other grounds that

5-35  challenge the legality of the proceedings. The Supreme Court may

5-36  establish procedures to require the defendant to make a preliminary

5-37  showing of the propriety of the appeal.

5-38      Sec. 6.  NRS 177.055 is hereby amended to read as follows:

5-39      177.055  1.  When upon a plea of not guilty a judgment of

5-40  death is entered, an appeal is deemed automatically taken by the

5-41  defendant without any action by him or his counsel, unless the

5-42  defendant or his counsel affirmatively waives the appeal within 30

5-43  days after the rendition of the judgment.

5-44      2.  Whether or not the defendant or his counsel affirmatively

5-45  waives the appeal, the sentence must be reviewed on the record by

6-1  the Supreme Court, which shall consider, in a single proceeding , if

6-2  an appeal is taken:

6-3  (a) Any errors enumerated by way of appeal;

6-4  (b) If a court determined that the defendant is not mentally

6-5  retarded during a hearing held pursuant to section 1 of this act,

6-6  whether that determination was correct;

6-7  (c) Whether the evidence supports the finding of an aggravating

6-8  circumstance or circumstances;

6-9  [(c)] (d) Whether the sentence of death was imposed under the

6-10  influence of passion, prejudice or any arbitrary factor; and

6-11      [(d)] (e) Whether the sentence of death is excessive, considering

6-12  both the crime and the defendant.

6-13      3.  The Supreme Court, when reviewing a death sentence, may:

6-14      (a) Affirm the sentence of death;

6-15      (b) Set the sentence aside and remand the case for a new penalty

6-16  hearing:

6-17          (1) If the original penalty hearing was before a jury, before a

6-18  newly impaneled jury; or

6-19          (2) If the original penalty hearing was before a panel of

6-20  judges, before a panel of three district judges which must consist,

6-21  insofar as possible, of the members of the original panel; or

6-22      (c) Set aside the sentence of death and impose the sentence of

6-23  imprisonment for life without possibility of parole.

6-24      Sec. 7.  NRS 200.030 is hereby amended to read as follows:

6-25      200.030  1.  Murder of the first degree is murder which is:

6-26      (a) Perpetrated by means of poison, lying in wait or torture, or

6-27  by any other kind of willful, deliberate and premeditated killing;

6-28      (b) Committed in the perpetration or attempted perpetration of

6-29  sexual assault, kidnapping, arson, robbery, burglary, invasion of the

6-30  home, sexual abuse of a child, sexual molestation of a child under

6-31  the age of 14 years or child abuse;

6-32      (c) Committed to avoid or prevent the lawful arrest of any

6-33  person by a peace officer or to effect the escape of any person from

6-34  legal custody; or

6-35      (d) Committed on the property of a public or private school, at

6-36  an activity sponsored by a public or private school or on a school

6-37  bus while the bus was engaged in its official duties by a person who

6-38  intended to create a great risk of death or substantial bodily harm to

6-39  more than one person by means of a weapon, device or course of

6-40  action that would normally be hazardous to the lives of more than

6-41  one person.

6-42      2.  Murder of the second degree is all other kinds of murder.

6-43      3.  The jury before whom any person indicted for murder is

6-44  tried shall, if they find him guilty thereof, designate by their verdict

6-45  whether he is guilty of murder of the first or second degree.

7-1  4.  A person convicted of murder of the first degree is guilty of

7-2  a category A felony and shall be punished:

7-3  (a) By death, only if one or more aggravating circumstances are

7-4  found and any mitigating circumstance or circumstances which are

7-5  found do not outweigh the aggravating circumstance or

7-6  circumstances[;] , unless a court has made a finding pursuant to

7-7  section 1 of this act that the defendant is mentally retarded and

7-8  has stricken the notice of intent to seek the death penalty; or

7-9  (b) By imprisonment in the state prison:

7-10          (1) For life without the possibility of parole;

7-11          (2) For life with the possibility of parole, with eligibility for

7-12  parole beginning when a minimum of 20 years has been served; or

7-13          (3) For a definite term of 50 years, with eligibility for parole

7-14  beginning when a minimum of 20 years has been served.

7-15  A determination of whether aggravating circumstances exist is not

7-16  necessary to fix the penalty at imprisonment for life with or without

7-17  the possibility of parole.

7-18      5.  A person convicted of murder of the second degree is guilty

7-19  of a category A felony and shall be punished by imprisonment in the

7-20  state prison:

7-21      (a) For life with the possibility of parole, with eligibility for

7-22  parole beginning when a minimum of 10 years has been served; or

7-23      (b) For a definite term of 25 years, with eligibility for parole

7-24  beginning when a minimum of 10 years has been served.

7-25      6.  As used in this section:

7-26      (a) “Child abuse” means physical injury of a nonaccidental

7-27  nature to a child under the age of 18 years;

7-28      (b) “School bus” has the meaning ascribed to it in NRS 483.160;

7-29      (c) “Sexual abuse of a child” means any of the acts described in

7-30  NRS 432B.100; and

7-31      (d) “Sexual molestation” means any willful and lewd or

7-32  lascivious act, other than acts constituting the crime of sexual

7-33  assault, upon or with the body, or any part or member thereof, of a

7-34  child under the age of 14 years, with the intent of arousing,

7-35  appealing to, or gratifying the lust, passions or sexual desires of the

7-36  perpetrator or of the child.

 

7-37  H