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7 LONG TITLE
8 General Description:
9 This bill modifies the Utah Criminal Code regarding aggravated murder as a capital
10 felony.
11 Highlighted Provisions:
12 This bill:
13 ▸ provides that on and after May 10, 2016, an offense of aggravated murder
14 committed before May 10, 2016, and for which the death penalty has not been
15 sought, may not be charged as a capital offense; and
16 ▸ provides that an offense of aggravated murder committed on or after May 10, 2016,
17 may not be brought as a capital felony.
18 Money Appropriated in this Bill:
19 None
20 Other Special Clauses:
21 None
22 Utah Code Sections Affected:
23 AMENDS:
24 76-5-202, as last amended by Laws of Utah 2013, Chapter 81
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26 Be it enacted by the Legislature of the state of Utah:
27 Section 1. Section 76-5-202 is amended to read:
28 76-5-202. Aggravated murder.
29 (1) Criminal homicide constitutes aggravated murder if the actor intentionally or
30 knowingly causes the death of another under any of the following circumstances:
31 (a) the homicide was committed by a person who is confined in a jail or other
32 correctional institution;
33 (b) the homicide was committed incident to one act, scheme, course of conduct, or
34 criminal episode during which two or more persons were killed, or during which the actor
35 attempted to kill one or more persons in addition to the victim who was killed;
36 (c) the actor knowingly created a great risk of death to a person other than the victim
37 and the actor;
38 (d) the homicide was committed incident to an act, scheme, course of conduct, or
39 criminal episode during which the actor committed or attempted to commit aggravated robbery,
40 robbery, rape, rape of a child, object rape, object rape of a child, forcible sodomy, sodomy upon
41 a child, forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse of a child, child
42 abuse as defined in Subsection 76-5-109(2)(a), or aggravated sexual assault, aggravated arson,
43 arson, aggravated burglary, burglary, aggravated kidnapping, or kidnapping, or child
44 kidnapping;
45 (e) the homicide was committed incident to one act, scheme, course of conduct, or
46 criminal episode during which the actor committed the crime of abuse or desecration of a dead
47 human body as defined in Subsection 76-9-704(2)(e);
48 (f) the homicide was committed for the purpose of avoiding or preventing an arrest of
49 the defendant or another by a peace officer acting under color of legal authority or for the
50 purpose of effecting the defendant's or another's escape from lawful custody;
51 (g) the homicide was committed for pecuniary gain;
52 (h) the defendant committed, or engaged or employed another person to commit the
53 homicide pursuant to an agreement or contract for remuneration or the promise of remuneration
54 for commission of the homicide;
55 (i) the actor previously committed or was convicted of:
56 (i) aggravated murder under this section;
57 (ii) attempted aggravated murder under this section;
58 (iii) murder, Section 76-5-203;
59 (iv) attempted murder, Section 76-5-203; or
60 (v) an offense committed in another jurisdiction which if committed in this state would
61 be a violation of a crime listed in this Subsection (1)(i);
62 (j) the actor was previously convicted of:
63 (i) aggravated assault, Subsection 76-5-103(2);
64 (ii) mayhem, Section 76-5-105;
65 (iii) kidnapping, Section 76-5-301;
66 (iv) child kidnapping, Section 76-5-301.1;
67 (v) aggravated kidnapping, Section 76-5-302;
68 (vi) rape, Section 76-5-402;
69 (vii) rape of a child, Section 76-5-402.1;
70 (viii) object rape, Section 76-5-402.2;
71 (ix) object rape of a child, Section 76-5-402.3;
72 (x) forcible sodomy, Section 76-5-403;
73 (xi) sodomy on a child, Section 76-5-403.1;
74 (xii) aggravated sexual abuse of a child, Section 76-5-404.1;
75 (xiii) aggravated sexual assault, Section 76-5-405;
76 (xiv) aggravated arson, Section 76-6-103;
77 (xv) aggravated burglary, Section 76-6-203;
78 (xvi) aggravated robbery, Section 76-6-302;
79 (xvii) felony discharge of a firearm, Section 76-10-508.1; or
80 (xviii) an offense committed in another jurisdiction which if committed in this state
81 would be a violation of a crime listed in this Subsection (1)(j);
82 (k) the homicide was committed for the purpose of:
83 (i) preventing a witness from testifying;
84 (ii) preventing a person from providing evidence or participating in any legal
85 proceedings or official investigation;
86 (iii) retaliating against a person for testifying, providing evidence, or participating in
87 any legal proceedings or official investigation; or
88 (iv) disrupting or hindering any lawful governmental function or enforcement of laws;
89 (l) the victim is or has been a local, state, or federal public official, or a candidate for
90 public office, and the homicide is based on, is caused by, or is related to that official position,
91 act, capacity, or candidacy;
92 (m) the victim is or has been a peace officer, law enforcement officer, executive
93 officer, prosecuting officer, jailer, prison official, firefighter, judge or other court official, juror,
94 probation officer, or parole officer, and the victim is either on duty or the homicide is based on,
95 is caused by, or is related to that official position, and the actor knew, or reasonably should
96 have known, that the victim holds or has held that official position;
97 (n) the homicide was committed:
98 (i) by means of a destructive device, bomb, explosive, incendiary device, or similar
99 device which was planted, hidden, or concealed in any place, area, dwelling, building, or
100 structure, or was mailed or delivered; or
101 (ii) by means of any weapon of mass destruction as defined in Section 76-10-401;
102 (o) the homicide was committed during the act of unlawfully assuming control of any
103 aircraft, train, or other public conveyance by use of threats or force with intent to obtain any
104 valuable consideration for the release of the public conveyance or any passenger, crew
105 member, or any other person aboard, or to direct the route or movement of the public
106 conveyance or otherwise exert control over the public conveyance;
107 (p) the homicide was committed by means of the administration of a poison or of any
108 lethal substance or of any substance administered in a lethal amount, dosage, or quantity;
109 (q) the victim was a person held or otherwise detained as a shield, hostage, or for
110 ransom;
111 (r) the homicide was committed in an especially heinous, atrocious, cruel, or
112 exceptionally depraved manner, any of which must be demonstrated by physical torture, serious
113 physical abuse, or serious bodily injury of the victim before death;
114 (s) the actor dismembers, mutilates, or disfigures the victim's body, whether before or
115 after death, in a manner demonstrating the actor's depravity of mind; or
116 (t) the victim, at the time of the death of the victim:
117 (i) was younger than 14 years of age; and
118 (ii) was not an unborn child.
119 (2) Criminal homicide constitutes aggravated murder if the actor, with reckless
120 indifference to human life, causes the death of another incident to an act, scheme, course of
121 conduct, or criminal episode during which the actor is a major participant in the commission or
122 attempted commission of:
123 (a) child abuse, Subsection 76-5-109(2)(a);
124 (b) child kidnapping, Section 76-5-301.1;
125 (c) rape of a child, Section 76-5-402.1;
126 (d) object rape of a child, Section 76-5-402.3;
127 (e) sodomy on a child, Section 76-5-403.1; or
128 (f) sexual abuse or aggravated sexual abuse of a child, Section 76-5-404.1.
129 (3) (a) [
130 has been filed, aggravated murder is a capital felony.
131 (b) If a notice of intent to seek the death penalty has not been filed, aggravated murder
132 is a noncapital first degree felony punishable as provided in Section 76-3-207.7.
133 (c) (i) [
134 defendant, the prosecutor may file notice of intent to seek the death penalty. The notice shall
135 be served on the defendant or defense counsel and filed with the court.
136 (ii) Notice of intent to seek the death penalty may be served and filed more than 60
137 days after the arraignment upon written stipulation of the parties or upon a finding by the court
138 of good cause.
139 (d) Without the consent of the prosecutor, the court may not accept a plea of guilty to
140 noncapital first degree felony aggravated murder during the period in which the prosecutor may
141 file a notice of intent to seek the death penalty under Subsection (3)(c)(i).
142 (e) If the defendant was younger than 18 years of age at the time the offense was
143 committed, aggravated murder is a noncapital first degree felony punishable as provided in
144 Section 76-3-207.7.
145 (f) (i) On and after May 10, 2016, the state may not seek the death penalty for an
146 offense of aggravated murder that was not brought as a capital offense before May 10, 2016.
147 (ii) On and after May 10, 2016, references in this section to a capital felony or the
148 death penalty apply only to an offense of aggravated murder that was brought as a capital
149 offense under this section prior to May 10, 2016.
150 (4) (a) It is an affirmative defense to a charge of aggravated murder or attempted
151 aggravated murder that the defendant caused the death of another or attempted to cause the
152 death of another under a reasonable belief that the circumstances provided a legal justification
153 or excuse for the conduct although the conduct was not legally justifiable or excusable under
154 the existing circumstances.
155 (b) The reasonable belief of the actor under Subsection (4)(a) shall be determined from
156 the viewpoint of a reasonable person under the then existing circumstances.
157 (c) This affirmative defense reduces charges only as follows:
158 (i) aggravated murder to murder; and
159 (ii) attempted aggravated murder to attempted murder.
160 (5) (a) Any aggravating circumstance described in Subsection (1) or (2) that constitutes
161 a separate offense does not merge with the crime of aggravated murder.
162 (b) A person who is convicted of aggravated murder, based on an aggravating
163 circumstance described in Subsection (1) or (2) that constitutes a separate offense, may also be
164 convicted of, and punished for, the separate offense.
Legislative Review Note
Office of Legislative Research and General Counsel