0001| SENATE BILL 172 | 0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998 | 0003| INTRODUCED BY | 0004| SUE F. WILSON | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| AN ACT | 0011| RELATING TO CRIMINAL SENTENCING; PROVIDING THAT THE SUPREME | 0012| COURT SHALL ISSUE A FINAL ADJUDICATION WITHIN TWO YEARS OF THE | 0013| FILING OF A NOTICE OF APPEAL IN A CAPITAL FELONY CASE; | 0014| PROVIDING ADDITIONAL AGGRAVATING CIRCUMSTANCES FOR | 0015| CONSIDERATION IN CAPITAL FELONY PROCEEDINGS; AMENDING SECTIONS | 0016| OF THE NMSA 1978. | 0017| | 0018| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0019| Section 1. Section 31-20A-4 NMSA 1978 (being Laws 1979, | 0020| Chapter 150, Section 5) is amended to read: | 0021| "31-20A-4. REVIEW OF JUDGMENT AND SENTENCE.-- | 0022| A. The judgment of conviction and sentence of | 0023| death shall be automatically reviewed by the supreme court of | 0024| the state of New Mexico and within two years of the filing of | 0025| the notice of appeal the supreme court shall issue a final | - 1 - 0001| adjudication. | 0002| B. In addition to the other matters on appeal, the | 0003| supreme court shall rule on the validity of the death | 0004| sentence. | 0005| C. The death penalty shall not be imposed if: | 0006| (1) the evidence does not support the finding | 0007| of a statutory aggravating circumstance; | 0008| (2) the evidence supports a finding that the | 0009| mitigating circumstances outweigh the aggravating | 0010| circumstances; | 0011| (3) the sentence of death was imposed under | 0012| the influence of passion, prejudice or any other arbitrary | 0013| factor; or | 0014| (4) the sentence of death is excessive or | 0015| disproportionate to the penalty imposed in similar cases, | 0016| considering both the crime and the defendant. | 0017| D. No error in the sentencing proceeding shall | 0018| result in the reversal of the conviction of a capital felony. | 0019| If the trial court is reversed on appeal because of error only | 0020| in the sentencing proceeding, the supreme court shall remand | 0021| solely for a new sentencing proceeding. The new sentencing | 0022| proceeding ordered and mandated shall apply only to the issue | 0023| of punishment. | 0024| E. In cases of remand for a new sentencing | 0025| proceeding, all exhibits and a transcript of all testimony and | - 2 - 0001| other evidence admitted in the prior trial and sentencing | 0002| proceeding shall be admissible in the new sentencing | 0003| proceeding, and: | 0004| (1) if the sentencing proceeding was before a | 0005| jury, a new jury shall be impaneled for the new sentencing | 0006| proceeding; | 0007| (2) if the sentencing proceeding was before a | 0008| judge, the original trial judge shall conduct the new | 0009| sentencing proceeding; or | 0010| (3) if the sentencing proceeding was before a | 0011| judge and the original trial judge is unable or unavailable to | 0012| conduct a new sentencing proceeding, then another judge shall | 0013| be designated to conduct the new sentencing proceeding, and | 0014| the parties are entitled to disqualify the new judge on the | 0015| grounds set forth in Section 38-3-9 NMSA 1978 before the newly | 0016| designated judge exercises any discretion." | 0017| Section 2. Section 31-20A-5 NMSA 1978 (being Laws 1979, | 0018| Chapter 150, Section 6, as amended) is amended to read: | 0019| "31-20A-5. AGGRAVATING CIRCUMSTANCES.--The aggravating | 0020| circumstances to be considered by the sentencing court or jury | 0021| pursuant to the provisions of Section 31-20A-2 NMSA 1978 are | 0022| limited to the following: | 0023| A. the victim was a peace officer who was acting | 0024| in the lawful discharge of an official duty when he was | 0025| murdered; | - 3 - 0001| B. the murder was committed with intent to kill in | 0002| the commission of or attempt to commit ~~[kidnaping]~~ | 0003| kidnapping, criminal sexual contact of a minor or criminal | 0004| sexual penetration; | 0005| C. the murder was committed with the intent to | 0006| kill by the defendant while attempting to escape from a penal | 0007| institution of New Mexico; | 0008| D. while incarcerated in a penal institution in | 0009| New Mexico, the defendant, with the intent to kill, murdered a | 0010| person who was at the time incarcerated in or lawfully on the | 0011| premises of a penal institution in New Mexico. As used in | 0012| this subsection, "penal institution" includes facilities under | 0013| the jurisdiction of the corrections ~~[and criminal~~ | 0014| ~~rehabilitation]~~ department and county and municipal jails; | 0015| E. while incarcerated in a penal institution in | 0016| New Mexico, the defendant, with the intent to kill, murdered | 0017| an employee of the corrections ~~[and criminal rehabilitation]~~ | 0018| department; | 0019| F. the capital felony was committed for hire; | 0020| ~~[and]~~ | 0021| G. the capital felony was murder of a witness to a | 0022| crime or any person likely to become a witness to a crime, for | 0023| the purpose of preventing report of the crime or testimony in | 0024| any criminal proceeding or for retaliation for the victim | 0025| having testified in any criminal proceeding; | - 4 - 0001| H. the defendant committed multiple murders; and | 0002| I. the victim of the capital felony was a person | 0003| less than ten years of age." | 0004| Section 3. SEVERABILITY.--If any part or application of | 0005| this act is held invalid, the remainder or its application to | 0006| other situations or persons shall not be affected. | 0007| Section 4. EFFECTIVE DATE.--The effective date of the | 0008| provisions of this act is July 1, 1998. | 0009| |