H. B. 2603
(By Delegate Overington)
[Introduced March 16, 1993; referred to the
Committee on the Judiciary.]
A BILL to repeal section two, article eleven, chapter sixty-one,
and section fifteen, article three, chapter sixty-two of the
code of West Virginia, one thousand nine hundred thirty-one,
as amended; to amend and reenact section two, article two,
chapter sixty-one of said code; to further amend said
article two by adding thereto six new sections, designated
sections two-a, two-b, two-c, two-d, two-e and two-f; and to
amend article seven, chapter sixty-two of said code by
adding thereto four new sections, designated sections four,
five, six and six-a, all relating to death penalty for first
degree murder; procedures, standards and findings applicable
to imposition thereof in certain instances including
aggravating and mitigating circumstances; sentencing;
providing for automatic review of the death penalty by the
supreme court of appeals; providing for execution of the
death sentence by lethal injection; providing for delivery
of sentence of death to officer retaining custody of person
so sentenced; providing for transmission of indictment,
order of conviction, sentence and judgment entered thereon
to the warden of the penitentiary; transfer of person
sentenced to death to penitentiary; execution; providing
presence of certain persons be requested for the execution;
providing for certification that sentence of death has been
executed; and providing for disposition of the body.
Be it enacted by the Legislature of West Virginia:
That section two, article eleven, chapter sixty-one, and
section fifteen, article three, chapter sixty-two of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be repealed; that section two, article two, chapter sixty-one of
said code be amended and reenacted; that said article two be
further amended by adding thereto six new sections, designated
sections two-a, two-b, two-c, two-d, two-e and two-f; and that
article seven, chapter sixty-two of said code be amended by
adding thereto four new sections, designated sections four, five,
six and six-a, all to read as follows:
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-2. Penalty for murder of first degree.
Murder of the first degree shall be punished by
confinement
in the penitentiary for life death if any one or more of the
aggravating circumstances enumerated in section two-b of this
article have been charged and found to be true without a finding
of any one or more of the mitigating circumstances enumerated insection two-c of this article. Any person otherwise guilty of
murder in the first degree shall be punished by confinement in
the penitentiary for life without probation or parole.
§61-2-2a. Sentencing procedures for murder of the first degree.
(a)
Procedure in jury trials.
After a verdict of murder of the first degree is recorded
and before the jury is discharged, the court shall conduct a
separate sentencing hearing in which the jury shall determine
whether the defendant shall be sentenced to death or life
imprisonment. In the sentencing hearing, evidence may be
presented as to any matter that the court deems relevant and
admissible on the question of the sentence to be imposed,
including evidence relating to any of the aggravating or
mitigating circumstances specified in sections two-b and two-c of
this article. Evidence of aggravating circumstances shall be
limited to those circumstances specified in section two-b of this
article. After the presentation of evidence, the court shall
permit counsel to present argument for or against the sentence of
death. The court shall then instruct the jury in accordance with
subsection (c) of this section. Failure of the jury to
unanimously agree upon a sentence does not impeach or in any way
affect the guilty verdict previously recorded.
(b)
Procedure in nonjury trials and guilty pleas.
If the defendant has waived a jury trial or pleaded guilty,
the sentencing proceeding shall be conducted before a jury
impaneled for that purpose unless waived by the defendant withthe consent of the state, in which latter case the trial judge
shall hear the evidence and determine the penalty in the same
manner as would a jury.
(c)
Instructions to jury.
Before retiring to determine the imposition of sentence, the
jury shall be instructed by the court as to the following:
(1) The aggravating circumstances specified in section two-b
of this article for which any evidence has been presented;
(2) Mitigating circumstances, including those specified in
section two-c of this article, for which any evidence has been
presented;
(3) Aggravating circumstances must be proved by the state
beyond a reasonable doubt. Mitigating circumstances must be
proved by the defendant by a preponderance of the evidence;
(4) The sentence shall be a sentence of death if the jury
unanimously finds at least one aggravating circumstance specified
in section two-b of this article and no mitigating circumstance
or if the jury unanimously finds one or more aggravating
circumstances which outweigh all mitigating circumstances. The
sentence shall be life imprisonment without probation or parole
in all other cases;
(5) The court may, in its discretion, discharge the jury if
it is of the opinion that further deliberation will not result in
a unanimous agreement as to the sentence, in which case the court
shall sentence the defendant to life imprisonment; and
(6) The court shall instruct the jury on any other matterthat may be just and proper under the circumstances.
§61-2-2b. Aggravating circumstances for imposition of capital
punishment.
Aggravating circumstances are limited to the following:
(1) When a defendant is convicted of murder in the first
degree and such murder occurred when the defendant was
incarcerated, or under order of incarceration, in a municipal,
county or state correctional institution, or if such murder
occurred while defendant was an escaped convict;
(2) The victim was a fireman, peace officer, correctional
officer, parole officer, judicial officer or any individual who
was killed, in the performance of his duty;
(3) The defendant paid, or was paid by, another person or
had contracted to pay, or to be paid by, another person or had
conspired to pay, or to be paid by, another person for the
killing of the victim;
(4) The victim was being held by the defendant for ransom or
reward or as a shield or hostage;
(5) The death of the victim occurred while the defendant was
engaged in the hijacking of an aircraft;
(6) The victim was a prosecution witness to a murder or
other felony committed by the defendant and was killed for the
purpose of preventing his or her testimony against the defendant
in any grand jury or court proceedings;
(7) The defendant committed a murder while in the commission
of a felony;
(8) In the commission of the offense the defendant knowingly
created a grave risk of death to another person in addition to
the victim of the offense;
(9) The murder was especially heinous, atrocious or cruel,
manifesting exceptional depravity, or was the result of or was
contributed to by the defendant's use of a controlled substance;
(10) The defendant has a significant history of felony
convictions involving the use or threat of violence to the
person;
(11) The defendant has been convicted of another federal or
state offense, committed either before or at the time of the
offense at issue, for which a sentence of life imprisonment or
death could be imposed, or the defendant was serving a sentence
of life imprisonment for any reason at the time of the commission
of the offense; and
(12) The defendant has been convicted of another crime under
the provisions of chapter sixty-a of this code committed at the
time of the offense at issue.
§61-2-2c. Mitigating circumstances for imposition of capital
punishment.
Mitigating circumstances include the following:
(1) The defendant has no significant history of prior
criminal convictions;
(2) The defendant was under the influence of extreme mental
or emotional disturbance;
(3) The capacity of the defendant to appreciate thecriminality of his conduct or to conform his conduct to the
requirements of law was substantially impaired;
(4) The age of the defendant at the time of the crime;
(5) The defendant acted under extreme duress, or acted under
the substantial domination of another person;
(6) The victim was a participant in the defendant's
murderous conduct or consented to the murderous acts;
(7) The defendant's participation in the murderous act was
relatively minor; and
(8) Any other evidence of mitigation concerning the
character and record of the defendant and the circumstances of
his offense.
§61-2-2d. Sentencing verdict by the jury.
After hearing all the evidence and arguments by counsel and
after receiving the instructions from the court, the jury shall
deliberate and render a sentencing verdict. In rendering the
verdict, the jury shall set forth in writing the findings upon
which the sentence is based. Based upon these findings, the jury
shall set forth in writing whether the sentence is death or life
imprisonment without probation or parole.
§61-2-2e. Recording sentencing verdict; imposing sentence.
Whenever the jury agrees upon a sentencing verdict, it shall
be received and recorded by the court. The court shall
thereafter impose upon the defendant the sentence fixed by the
jury. In any case in which the death penalty is imposed,
execution shall be by lethal injection.
§61-2-2f. Review of death sentence.
(a) Whenever the death penalty is imposed, and upon the
judgment becoming final in the circuit court, the sentence shall
automatically be reviewed on the record by the supreme court of
appeals. The clerk of the circuit court, within ten days after
receiving the transcript, shall transmit the entire record and
transcript to the supreme court of appeals together with a notice
prepared by the clerk and a report prepared by the circuit judge.
The notice shall set forth the title and docket number of the
case, the name of the defendant and the name and address of his
attorney, a narrative statement of the judgment, the offense and
the punishment prescribed. The report shall be in a standard
form prepared and supplied by the supreme court of appeals.
(b) The supreme court of appeals shall consider the
punishment as well as any errors enumerated by way of appeal.
(c) With regard to the sentence, the court shall determine:
(1) Whether the sentence of death was imposed under the
influence of passion, prejudice or any other arbitrary factor;
(2) Whether the evidence supports the jury's or judge's
finding of a statutory aggravating circumstance; and
(3) Whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.
(d) Both the defendant and the state shall have the right to
submit briefs within the time limitations set forth in the rules
by the supreme court of appeals, and to present oral argument tothe court.
(e) The court shall render a written decision which shall
include a reference to those similar cases which it took into
consideration. The court, with regard to review of death
sentences, shall:
(1) Affirm the sentence of death; or
(2) Set the sentence aside and remand the case for
resentencing by the circuit judge based on the record and
argument of counsel. The records of those similar cases referred
to by the supreme court of appeals in its written decision shall
be provided to the resentencing judge for his consideration.
(f) The court may employ an appropriate staff and establish
methods to compile any cases or information considered by the
chief justice to be appropriate and relevant to the statutory
questions concerning the validity of the sentence.
(g) The sentence review shall be in addition to direct
appeal, if taken, and the review and appeal shall be consolidated
for consideration. The court shall render its decision on legal
errors enumerated, the factual substantiation of the verdict and
the validity of the sentence.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 7. EXECUTION OF SENTENCES; STAYS.
§62-7-4. Execution of death sentence.
Sentence of death, except for insurrection or rebellion,
shall not be executed sooner than three months after the sentence
is pronounced. The sentence of death shall, in every case, beexecuted by lethal injection. The punishment shall be executed
within the walls of the West Virginia penitentiary within an
enclosure prepared for that purpose, under the direction of the
warden of the penitentiary and the authorities in control
thereof, which enclosure shall be so constructed as to exclude
public view. The warden of the West Virginia penitentiary, or,
in the case of his death, absence or inability to act, the
commissioner of corrections shall be the executioner. In
carrying out the execution of sentence, the warden or the
commissioner of corrections may secure the services and advice of
any person or persons either considers appropriate.
§62-7-5. Certificate of death sentence and indictment to be sent
to warden; transfer of convict to penitentiary; persons
present at electrocution.
The clerk of the court which pronounces the sentence of
death shall, as soon as possible after sentence, deliver a
certified copy of the sentence to the sheriff, who shall retain
the custody of the person sentenced to death until he is
delivered to a properly authorized guard sent by the warden for
the removal of the person to the penitentiary. The clerk of the
court shall also forthwith transmit to the warden of the
penitentiary a copy of the indictment, order of conviction and
the sentence and judgment entered thereon. As soon as possible
after receipt of the copies the warden shall send a guard or
guards to remove the person to the penitentiary. Unless a
suspension of execution is ordered, the execution shall takeplace at the time and in the manner prescribed in the sentencing
order. At the execution there may be present those officers,
guards and assistants as the warden or commissioner of
corrections considers appropriate. The warden or the
commissioner, as the case may be, shall request the presence of
the prosecuting attorney of the county wherein the conviction
occurred, the clerk of the circuit court thereof, twelve
respectable citizens, including a physician and representatives
of the press as may be considered appropriate. The counsel of
the convict, or any clergymen the convict may desire and any of
the convict's relations may be permitted to attend.
§62-7-6. Record of execution.
The warden or commissioner of corrections executing the
sentence of death shall certify that the sentence has been
executed to the clerk of the circuit court, by which the sentence
was imposed, who shall file such certificate with the papers of
the case and enter the same upon the records of the court.
§62-7-6a. Disposition of body of executed convict.
If the friends or relatives of the convict make a request in
writing to the warden at any time within two days after the
sentence of death has been executed, the body of the person
executed shall be returned to the friends or relatives, in any
county in the state, for burial. The warden may draw his order
on the auditor of the state for whatever sum is necessary to pay
for transportation of the body, to be paid out of funds
appropriated to the department of corrections. If no request ismade by friends or relatives, the body shall be disposed of as
provided for other convicts dying within the penitentiary.
NOTE: The purpose of this bill is to provide for a death
penalty and procedures and standards applicable thereto, and
automatic review of such penalty, for commission of murder of the
first degree. Procedures for carrying out the death sentence are
established.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§§61-2-2a, 2b, 2c, 2d, 2e and 2f, and §§62-7-4, 5, 6 and 6a
are new; therefore, strike-throughs and underscoring have been
omitted.
Email
Webmaster | © 2024 West Virginia Legislature **
