44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO CAPITAL FELONY SENTENCING; ESTABLISHING THREE LEVELS OF PUNISHMENT FOR CONVICTED CAPITAL FELONY OFFENDERS; AMENDING SECTIONS OF THE NMSA 1978.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 31-20A-1 NMSA 1978 (being Laws 1979,

Chapter 150, Section 2) is amended to read:

"31-20A-1. CAPITAL FELONY--SENTENCING PROCEDURE.--

A. At the conclusion of all capital felony cases heard by jury, and after proper charge from the court and argument of counsel, the jury shall retire to consider a verdict of guilty or not guilty without any consideration of punishment. In nonjury capital felony cases, the judge shall first consider a finding of guilty or not guilty without any consideration of punishment.

B. Upon a verdict by the jury or judge that the defendant is guilty of a capital felony, or upon a plea of guilty to a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death, life imprisonment without possibility of release or parole or life imprisonment [as authorized herein]. In a jury trial, the sentencing proceeding shall be conducted as soon as practicable by the original trial judge before the original trial jury. In a nonjury trial, the sentencing proceeding shall be conducted as soon as practicable by the original trial judge. In the case of a plea of guilty to a capital felony, the sentencing proceeding shall be conducted as soon as practicable by the original trial judge or by a jury upon demand of a party.

C. In the sentencing proceeding, all evidence admitted at the trial shall be considered, and additional evidence may be presented as to the circumstances of the crime and as to any aggravating or mitigating circumstances pursuant to Sections [6 and 7 of this act] 31-20A-5 and 31-20A-6 NMSA 1978.

D. In a jury sentencing proceeding, the judge shall give appropriate instructions and allow argument, and the jury shall retire to determine the punishment to be imposed. In a nonjury sentencing proceeding, or upon a plea of guilty, where no jury has been demanded, the judge shall allow argument and determine the punishment to be imposed."

Section 2. Section 31-20A-2 NMSA 1978 (being Laws 1979, Chapter 150, Section 3) is amended to read:

"31-20A-2. DETERMINATION OF SENTENCE.--

A. Capital sentencing deliberations shall be guided by the following considerations:

(1) whether aggravating circumstances exist as enumerated in Section [6 of this act] 31-20A-5 NMSA 1978;

(2) whether mitigating circumstances exist as enumerated in Section [7 of this act] 31-20A-6 NMSA 1978; and

(3) whether other mitigating circumstances exist.

B. After weighing the aggravating circumstances and the mitigating circumstances, weighing them against each other, and considering both the defendant and the crime, the jury or judge shall determine whether the defendant should be sentenced to death, life imprisonment without possibility of release or parole or life imprisonment."

Section 3. Section 31-20A-3 NMSA 1978 (being Laws 1979, Chapter 150, Section 4) is amended to read:

"31-20A-3. COURT SENTENCING.--

A. In a jury sentencing proceeding in which the jury unanimously finds beyond a reasonable doubt and specifies at least [one] two of the aggravating circumstances enumerated in Section [6 of this act] 31-20A-5 NMSA 1978, and unanimously specifies the sentence of death pursuant to Section [3 of this act] 31-20A-2 NMSA 1978, the court shall sentence the defendant to death.

[Where] B. When a sentence of death is not unanimously specified, or the jury does not make the required finding, or the jury is unable to reach a unanimous verdict, the court shall sentence the defendant to life imprisonment.

C. In a jury sentencing proceeding in which the jury unanimously finds beyond a reasonable doubt and specifies one of the aggravating circumstances enumerated in Section 31-20A-5 NMSA 1978, and unanimously specifies the sentence of life imprisonment without possibility of release or parole pursuant to Section 31-20A-2 NMSA 1978, the court shall sentence the defendant to life imprisonment without possibility of release or parole.

D. When a sentence of life imprisonment without possibility of release or parole is not unanimously specified, or the jury does not make the required finding, or the jury is unable to reach a unanimous verdict, the court shall sentence the defendant to life imprisonment.

E. In a nonjury sentencing proceeding and in cases involving a plea of guilty, where no jury has been demanded, the judge shall determine and impose the sentence, but he shall not impose the sentence of death except upon a finding beyond a reasonable doubt and specification of at least [one] two of the aggravating circumstances enumerated in Section [6 of this act] 31-20A-5 NMSA 1978.

F. In a nonjury sentencing proceeding and in cases involving a plea of guilty, where no jury has been demanded, the judge shall determine and impose the sentence, but he shall not impose the sentence of life imprisonment without possibility of release or parole except upon a finding beyond a reasonable doubt and specification of one of the aggravating circumstances enumerated in Section 31-20A-5 NMSA 1978."

Section 4. Section 31-20A-4 NMSA 1978 (being Laws 1979, Chapter 150, Section 5) is amended to read:

"31-20A-4. REVIEW OF JUDGMENT AND SENTENCE.--

A. The judgment of conviction and sentence of death shall be automatically reviewed by the supreme court of the state of New Mexico. [B.] In addition to the other matters on appeal, the supreme court shall rule on the validity of the death sentence.

[C.] B. The death penalty shall not be imposed if:

(1) the evidence does not support the finding of [a] at least two of the statutory aggravating [circumstance] circumstances;

(2) the evidence supports a finding that the mitigating circumstances outweigh the aggravating circumstances;

(3) the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; or

(4) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

C. The judgment of conviction and sentence of life imprisonment without possibility of release or parole shall be automatically reviewed by the supreme court of the state of New Mexico. In addition to the other matters on appeal, the supreme court shall rule on the validity of the sentence of life imprisonment without possibility of release or parole.

D. The sentence of life imprisonment without possibility of release or parole shall not be imposed if:

(1) the evidence does not support the finding of one statutory aggravating circumstance;

(2) the evidence supports a finding that the mitigating circumstances outweigh the aggravating circumstances;

(3) the sentence of life imprisonment without possibility of release or parole was imposed under the influence of passion, prejudice or any other arbitrary factor; or

(4) the sentence of life imprisonment without possibility of release or parole is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

[D.] E. No error in the sentencing proceeding shall result in the reversal of the conviction of a capital felony. If the trial court is reversed on appeal because of error only in the sentencing proceeding, the supreme court shall remand solely for a new sentencing proceeding. The new sentencing proceeding ordered and mandated shall apply only to the issue of punishment.

[E.] F. In cases of remand for a new sentencing proceeding, all exhibits and a transcript of all testimony and other evidence admitted in the prior trial and sentencing proceeding shall be admissible in the new sentencing proceeding, and:

(1) if the sentencing proceeding was before a jury, a new jury shall be impaneled for the new sentencing proceeding;

(2) if the sentencing proceeding was before a judge, the original trial judge shall conduct the new sentencing proceeding; or

(3) if the sentencing proceeding was before a judge and the original trial judge is unable or unavailable to conduct a new sentencing proceeding, then another judge shall be designated to conduct the new sentencing proceeding, and the parties are entitled to disqualify the new judge on the grounds set forth in Section 38-3-9 NMSA 1978 before the newly designated judge exercises any discretion."

Section 5. Section 31-20A-5 NMSA 1978 (being Laws 1979, Chapter 150, Section 6, as amended) is amended to read:

"31-20A-5. AGGRAVATING CIRCUMSTANCES.--The aggravating circumstances to be considered by the sentencing court or jury pursuant to the provisions of Section 31-20A-2 NMSA 1978 are limited to the following:

A. the [victim was] defendant, with the deliberate intent to kill, murdered a peace officer who was acting in the lawful discharge of an official duty when he was murdered;

B. the murder was committed with the deliberate intent to kill in the commission of or attempt to commit [kidnaping] kidnapping, criminal sexual contact of a minor or criminal sexual penetration;

C. the murder was committed with the deliberate intent to kill by the defendant while attempting to escape from a penal institution of New Mexico;

D. while incarcerated in a penal institution in New Mexico, the defendant, with the deliberate intent to kill, murdered a person who was at the time incarcerated in or lawfully on the premises of a penal institution in New Mexico. As used in this subsection, "penal institution" includes facilities under the jurisdiction of the corrections [and criminal rehabilitation] department and county and municipal jails;

E. while incarcerated in a penal institution in New Mexico, the defendant, with the deliberate intent to kill, murdered an employee of the corrections [and criminal rehabilitation] department;

F. the capital felony, with the deliberate intent to kill, was committed for hire; [and]

G. the capital felony, with the deliberate intent to kill, was murder of a witness to a crime or any person likely to become a witness to a crime, for the purpose of preventing report of the crime or testimony in any criminal proceeding or for retaliation for the victim having testified in any criminal proceeding;

H. the defendant, with the deliberate intent to kill, murdered a child less than thirteen years of age;

I. the defendant, with the deliberate intent to kill, committed two or more murders during the same transaction or occurrence; and

J. the defendant, with the deliberate intent to kill, committed multiple murders within a twenty-four hour period."

Section 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 1999.