H.B. 48

1

AMENDMENTS TO CAPITAL SENTENCING
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: David Ure
5 AN ACT RELATING TO THE CRIMINAL CODE; AMENDING THE PROCEDURES FOR
6 CAPITAL SENTENCING; CREATING NEW STANDARDS FOR THE IMPOSITION OF
7 THE DEATH PENALTY AND LIFE IN PRISON WITHOUT THE POSSIBILITY OF
8 PAROLE; AND PROVIDING THAT IN JURY PROCEEDINGS TEN OR MORE JURORS
9 MUST AGREE TO IMPOSE A PUNISHMENT OF LIFE IN PRISON WITHOUT THE
10 POSSIBILITY OF PAROLE.
11 This act affects sections of Utah Code Annotated 1953 as follows:
12 AMENDS:
13 76-3-207, as last amended by Chapter 352, Laws of Utah 1995
14 Be it enacted by the Legislature of the state of Utah:
15 Section 1. Section 76-3-207 is amended to read:
16 76-3-207. Capital felony -- Sentencing proceeding.
17 (1) When a defendant has pled guilty to or been found guilty of a capital felony, there shall
18 be further proceedings before the court or jury on the issue of sentence. In the case of a plea of
19 guilty to a capital felony, the sentencing proceedings shall be conducted by the court which
20 accepted the plea or by a jury upon request of the defendant. When a defendant has been found
21 guilty of a capital felony, the proceedings shall be conducted before the court or jury which found
22 the defendant guilty, provided the defendant may waive hearing before the jury, in which event
23 the hearing shall be before the court. If, however, circumstances make it impossible or impractical
24 to reconvene the same jury for the sentencing proceedings, the court may dismiss that jury and
25 convene a new jury for such proceedings. If a retrial of the sentencing proceedings is necessary
26 as a consequence of a remand from an appellate court, the sentencing authority shall be determined
27 as provided in Subsection (4).

1 (2) (a) In capital sentencing proceedings, evidence may be presented on:
2 (i) the nature and circumstances of the crime;
3 (ii) the defendant's character, background, history, mental and physical condition;
4 (iii) the victim and the impact of the crime on the victim's family and community without
5 comparison to other persons or victims; and
6 (iv) any other facts in aggravation or mitigation of the penalty that the court considers
7 relevant to the sentence.
8 (b) Any evidence the court considers to have probative force may be received regardless
9 of its admissibility under the exclusionary rules of evidence. The state's attorney and the defendant
10 shall be permitted to present argument for or against the sentence of death.
11 (3) Aggravating circumstances shall include those outlined in Section 76-5-202.
12 Mitigating circumstances shall include:
13 (a) the defendant has no significant history of prior criminal activity;
14 (b) the homicide was committed while the defendant was under the influence of [extreme]
15 mental or emotional disturbance;
16 (c) the defendant acted under [extreme] duress or under the [substantial] domination of
17 another person;
18 (d) at the time of the homicide, the capacity of the defendant to appreciate the
19 wrongfulness of his conduct or to conform his conduct to the requirement of law was
20 [substantially] impaired as a result of mental disease, intoxication, or influence of drugs;
21 (e) the youth of the defendant at the time of the crime;
22 (f) the defendant was an accomplice in the homicide committed by another person and
23 [his] the defendant's participation was relatively minor; and
24 (g) any other fact in mitigation of the penalty.
25 (4) The court or jury, as the case may be, shall retire to consider the penalty. [In] Except
26 as provided in Subsection 76-3-207.5(2), in all proceedings before a jury, under this section, it
27 shall be instructed as to the punishment to be imposed upon a unanimous h [verdict ] DECISION h
27a for death and that
28 the penalty of either life in prison or [with regard to sentences to be imposed on or after April 27,
29 1992,] life in prison without parole, shall be imposed if a unanimous h [verdict ] DECISION h for
29a death is not found.
30 The death penalty shall only be imposed if, after considering the totality of the aggravating and
31 mitigating circumstances, the jury is persuaded beyond a reasonable doubt that total aggravation

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1 outweighs total mitigation, and is further persuaded, beyond a reasonable doubt, that the
2 imposition of the death penalty is justified and appropriate in the circumstances. If the jury reports
3 unanimous agreement to impose the sentence of death, the court shall discharge the jury and shall
4 impose the sentence of death. If the jury is unable to reach a unanimous h [verdict ] DECISION h
4a imposing the
5 sentence of death, [with regard to sentences to be imposed on or after April 27, 1992, the court
6 shall instruct] except as provided in Subsection 76-3-207.5(2), the jury [to] shall then determine
7 [by a unanimous vote] whether the penalty of life in prison without parole shall be imposed. The
8 penalty of life in prison without parole shall only be imposed if the jury h [is clearly convinced ]
8a DETERMINES h that
9 the sentence of life in prison without parole is appropriate. If the jury reports agreement by ten
10 jurors or more to impose the sentence of life in prison without parole, the court shall discharge the
11 jury and shall impose the sentence of life in prison without parole. If [the jury is unable to reach
12 a verdict] ten jurors or more do not agree upon a sentence of life in prison without parole, the court
13 shall discharge the jury and impose the sentence of life imprisonment with the possibility of
14 parole. If the defendant waives hearing before the jury as to sentencing, the court shall determine
15 the appropriate penalty according to the standards of this subsection.
16 (5) Upon any appeal by the defendant where the sentence is of death, the appellate court,
17 if it finds prejudicial error in the sentencing proceeding only, may set aside the sentence of death
18 and remand the case to the trial court for new sentencing proceedings to the extent necessary to
19 correct the error or errors. No error in the sentencing proceedings shall result in the reversal of the
20 conviction of a capital felony. In cases of remand for new sentencing proceedings, all exhibits and
21 a transcript of all testimony and other evidence properly admitted in the prior trial and sentencing
22 proceedings shall be admissible in the new sentencing proceedings, and if the sentencing
23 proceeding was before a:
24 (a) jury, a new jury shall be impaneled for the new sentencing proceeding;
25 (b) judge, the original trial judge shall conduct the new sentencing proceeding; or
26 (c) judge, and the original trial judge is unable or unavailable to conduct a new sentencing
27 proceeding, then another judge shall be designated to conduct the new sentencing proceeding.
28 (6) In the event the death penalty is held to be unconstitutional by the Utah Supreme Court
29 or the United States Supreme Court, the court having jurisdiction over a person previously
30 sentenced to death for a capital felony shall cause [such] the person to be brought before the court,
31 and the court shall sentence the person to life in prison, if the death penalty is held unconstitutional

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1 prior to April 27, 1992, or life in prison without parole if the death penalty is held unconstitutional
2 on or after April 27, 1992, and any person who is thereafter convicted of a capital felony shall be
3 sentenced to life in prison or life in prison without parole.




Legislative Review Note
as of 12-10-96 1:32 PM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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