0001| HOUSE BILL 556
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| BOBBIE K. MALLORY
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO CRIMINAL SENTENCING; PROVIDING THAT A MAJORITY OF
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0012| JURORS IN A CAPITAL FELONY PROCEEDING MAY SENTENCE THE
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0013| DEFENDANT TO DEATH; PROVIDING ADDITIONAL AGGRAVATING
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0014| CIRCUMSTANCES FOR CONSIDERATION IN CAPITAL FELONY PROCEEDINGS;
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0015| AMENDING SECTIONS OF THE NMSA 1978.
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0016|
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0017| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0018| Section 1. Section 31-20A-3 NMSA 1978 (being Laws 1979,
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0019| Chapter 150, Section 4) is amended to read:
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0020| "31-20A-3. COURT SENTENCING.--In a jury sentencing
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0021| proceeding in which a majority of the jury [unanimously]
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0022| finds beyond a reasonable doubt and specifies at least one of
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0023| the aggravating circumstances enumerated in Section [6 of this
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act] 31-20A-5 NMSA 1978, and [unanimously] by a majority
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0025| specifies the sentence of death pursuant to Section [3 of this
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act] 31-20A-2 NMSA 1978, the court shall sentence the
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0002| defendant to death. Where a sentence of death is not
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0003| [unanimously] specified by a majority, or the jury does not
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0004| make the required finding, or the jury is unable to reach a
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0005| [unanimous] majority verdict, the court shall sentence the
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0006| defendant to life imprisonment. In a nonjury sentencing
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0007| proceeding and in cases involving a plea of guilty, where no
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0008| jury has been demanded, the judge shall determine and impose
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0009| the sentence, but he shall not impose the sentence of death
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0010| except upon a finding beyond a reasonable doubt and
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0011| specification of at least one of the aggravating circumstances
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0012| enumerated in Section [6 of this act] 31-20A-5 NMSA 1978."
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0013| Section 2. Section 31-20A-4 NMSA 1978 (being Laws 1979,
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0014| Chapter 150, Section 5) is amended to read:
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0015| "31-20A-4. REVIEW OF JUDGMENT AND SENTENCE.--
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0016| A. The judgment of conviction and sentence of death
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0017| shall be automatically reviewed by the supreme court of the
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0018| state of New Mexico and disposition shall be rendered within
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0019| two years of the filing of the notice of appeal.
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0020| B. In addition to the other matters on appeal, the
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0021| supreme court shall rule on the validity of the death sentence.
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0022| C. The death penalty shall not be imposed if:
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0023| (1) the evidence does not support the finding
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0024| of a statutory aggravating circumstance;
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0025| (2) the evidence supports a finding that the
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0001| mitigating circumstances outweigh the aggravating
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0002| circumstances;
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0003| (3) the sentence of death was imposed under
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0004| the influence of passion, prejudice or any other arbitrary
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0005| factor; or
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0006| (4) the sentence of death is excessive or
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0007| disproportionate to the penalty imposed in similar cases,
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0008| considering both the crime and the defendant.
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0009| D. No error in the sentencing proceeding shall
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0010| result in the reversal of the conviction of a capital felony.
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0011| If the trial court is reversed on appeal because of error only
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0012| in the sentencing proceeding, the supreme court shall remand
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0013| solely for a new sentencing proceeding. The new sentencing
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0014| proceeding ordered and mandated shall apply only to the issue
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0015| of punishment.
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0016| E. In cases of remand for a new sentencing
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0017| proceeding, all exhibits and a transcript of all testimony and
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0018| other evidence admitted in the prior trial and sentencing
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0019| proceeding shall be admissible in the new sentencing
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0020| proceeding, and:
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0021| (1) if the sentencing proceeding was before a
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0022| jury, a new jury shall be impaneled for the new sentencing
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0023| proceeding;
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0024| (2) if the sentencing proceeding was before a
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0025| judge, the original trial judge shall conduct the new
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0001| sentencing proceeding; or
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0002| (3) if the sentencing proceeding was before a
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0003| judge and the original trial judge is unable or unavailable to
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0004| conduct a new sentencing proceeding, then another judge shall
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0005| be designated to conduct the new sentencing proceeding, and the
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0006| parties are entitled to disqualify the new judge on the grounds
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0007| set forth in Section 38-3-9 NMSA 1978 before the newly
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0008| designated judge exercises any discretion."
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0009| Section 3. Section 31-20A-5 NMSA 1978 (being Laws 1979,
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0010| Chapter 150, Section 6, as amended) is amended to read:
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0011| "31-20A-5. AGGRAVATING CIRCUMSTANCES.--The aggravating
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0012| circumstances to be considered by the sentencing court or jury
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0013| pursuant to the provisions of Section 31-20A-2 NMSA 1978 are
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0014| limited to the following:
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0015| A. the victim was a peace officer who was acting in
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0016| the lawful discharge of an official duty when he was murdered;
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0017| B. the murder was committed with intent to kill in
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0018| the commission of or attempt to commit [kidnaping]
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0019| kidnapping, criminal sexual contact of a minor, [or]
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0020| criminal sexual penetration, shooting at a dwelling or
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0021| occupied building, shooting at or from a motor vehicle or any
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0022| other inherently dangerous felony;
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0023| C. the murder was committed with the intent to kill
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0024| by the defendant while attempting to escape from a penal
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0025| institution of New Mexico;
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0001| D. while incarcerated in a penal institution in New
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0002| Mexico, the defendant, with the intent to kill, murdered a
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0003| person who was at the time incarcerated in or lawfully on the
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0004| premises of a penal institution in New Mexico. As used in this
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0005| subsection, "penal institution" includes facilities under the
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0006| jurisdiction of the corrections [and criminal rehabilitation]
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0007| department and county and municipal jails;
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0008| E. while incarcerated in a penal institution in New
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0009| Mexico, the defendant, with the intent to kill, murdered an
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0010| employee of the corrections [and criminal rehabilitation]
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0011| department;
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0012| F. the capital felony was committed for hire;
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0013| [and]
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0014| G. the capital felony was murder of a witness to a
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0015| crime or any person likely to become a witness to a crime, for
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0016| the purpose of preventing report of the crime, arrest for the
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0017| crime or testimony in any criminal proceeding or for
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0018| retaliation for the victim having testified in any criminal
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0019| proceeding;
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0020| H. the capital felony was committed by a person
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0021| previously convicted of a felony and under sentence of
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0022| imprisonment, or placed on felony probation;
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0023| I. the defendant was previously convicted of
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0024| another capital felony or of a felony involving the use or
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0025| attempted use of violence against a person;
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0001| J. the defendant knowingly created a great risk of
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0002| death to many persons or committed multiple first degree
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0003| murders;
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0004| K. the capital felony was especially heinous,
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0005| atrocious or cruel;
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0006| L. the capital felony was a homicide and was
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0007| committed in a cold, calculated and premeditated manner without
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0008| any pretense of moral or legal justification;
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0009| M. the victim of the capital felony was a person
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0010| less than twelve years of age; and
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0011| N. the victim of the capital felony was
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0012| particularly vulnerable due to advanced age or disability, or
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0013| because the defendant stood in a position of familial or
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0014| custodial authority over the victim."
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0015| Section 4. SEVERABILITY.--If any part or application of
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0016| this act is held invalid, the remainder or its application to
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0017| other situations or persons shall not be affected.
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0018| Section 5. EFFECTIVE DATE.--The effective date of the
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0019| provisions of this act is July 1, 1997.
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0020|
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