Assembly Bill No. 15–Committee on Judiciary

 

CHAPTER..........

 

AN ACT relating to crimes; prohibiting a sentence of death for a person who is mentally retarded; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

    Section 1. Chapter 174 of NRS is hereby amended by adding

thereto a new section to read as follows:

    1.  A defendant who is charged with murder of the first degree

in a case in which the death penalty is sought may, not less than

10 days before the date set for trial, file a motion to declare that he

is mentally retarded.

    2.  If a defendant files a motion pursuant to this section, the

court must:

    (a) Stay the proceedings pending a decision on the issue of

mental retardation; and

    (b) Hold a hearing within a reasonable time before the trial to

determine whether the defendant is mentally retarded.

    3.  The court shall order the defendant to:

    (a) Provide evidence which demonstrates that the defendant is

mentally retarded not less than 30 days before the date set for a

hearing conducted pursuant to subsection 2; and

    (b) Undergo an examination by an expert selected by the

prosecution on the issue of whether the defendant is mentally

retarded at least 15 days before the date set for a hearing pursuant

to subsection 2.

    4.  For the purpose of the hearing conducted pursuant to

subsection 2, there is no privilege for any information or evidence

provided to the prosecution or obtained by the prosecution

pursuant to subsection 3.

    5.  At a hearing conducted pursuant to subsection 2:

    (a) The court must allow the defendant and the prosecution to

present evidence and conduct a cross-examination of any witness

concerning whether the defendant is mentally retarded; and

    (b) The defendant has the burden of proving by a

preponderance of the evidence that he is mentally retarded.

    6.  If the court determines based on the evidence presented at

a hearing conducted pursuant to subsection 2 that the defendant is

mentally retarded, the court must make such a finding in the

record and strike the notice of intent to seek the death penalty.

Such a finding may be appealed to the Supreme Court pursuant to

NRS 177.015.

    7.  For the purposes of this section, “mentally retarded”

means significant subaverage general intellectual functioning

which exists concurrently with deficits in adaptive behavior and

manifested during the developmental period.

    Sec. 2.  NRS 175.552 is hereby amended to read as follows:

    175.552  1.  Except as otherwise provided in subsection 2, in

every case in which there is a finding that a defendant is guilty of

murder of the first degree, whether or not the death penalty is

sought, the court shall conduct a separate penalty hearing. The

separate penalty hearing must be conducted as follows:

    (a) If the finding is made by a jury, the separate penalty hearing

must be conducted in the trial court before the trial jury, as soon as

practicable.

    (b) If the finding is made upon a plea of guilty or guilty but

mentally ill or a trial without a jury and the death penalty is sought,

the separate penalty hearing must be conducted before a panel of

three district judges, as soon as practicable.

    (c) If the finding is made upon a plea of guilty or guilty but

mentally ill or a trial without a jury and the death penalty is not

sought, the separate penalty hearing must be conducted before the

judge who conducted the trial or who accepted the plea, as soon as

practicable.

    2.  In a case in which the death penalty is not sought[,] or in

which a court has made a finding that the defendant is mentally

retarded and has stricken the notice of intent to seek the death

penalty pursuant to section 1 of this act, the parties may by

stipulation waive the separate penalty hearing required in subsection

1. When stipulating to such a waiver, the parties may also include an

agreement to have the sentence, if any, imposed by the trial judge.

Any stipulation pursuant to this subsection must be in writing and

signed by the defendant, his attorney, if any, and the prosecuting

attorney.

    3.  [In] During the hearing, evidence may be presented

concerning aggravating and mitigating circumstances relative to the

offense, defendant or victim and on any other matter which the court

deems relevant to sentence, whether or not the evidence is ordinarily

admissible. Evidence may be offered to refute hearsay matters. No

evidence which was secured in violation of the Constitution of the

United States or the Constitution of the State of Nevada may be

introduced. The State may introduce evidence of additional

aggravating circumstances as set forth in NRS 200.033, other than

the aggravated nature of the offense itself, only if it has been

disclosed to the defendant before the commencement of the penalty

hearing.

    4.  In a case in which the death penalty is not sought[,] or in

which a court has found the defendant to be mentally retarded and

has stricken the notice of intent to seek the death penalty pursuant

to section 1 of this act, the jury or the trial judge shall determine

whether the defendant should be sentenced to life with the

possibility of parole or life without the possibility of parole.

    Sec. 3.  NRS 175.554 is hereby amended to read as follows:

    175.554 In cases in which the death penalty is sought:

    1.  If the penalty hearing is conducted before a jury, the court

shall instruct the jury at the end of the hearing, and shall include in

its instructions the aggravating circumstances alleged by the

prosecution upon which evidence has been presented during the trial

or at the hearing. The court shall also instruct the jury as to the

mitigating circumstances alleged by the defense upon which

evidence has been presented during the trial or at the hearing.

    2.  The jury or the panel of judges shall determine:

    (a) Whether an aggravating circumstance or circumstances are

found to exist;

    (b) Whether a mitigating circumstance or circumstances are

found to exist; and

    (c) Based upon these findings, whether the defendant should be

sentenced to life imprisonment with the possibility of parole, life

imprisonment without the possibility of parole or death.

    3.  The jury or the panel of judges may impose a sentence of

death only if it finds at least one aggravating circumstance and

further finds that there are no mitigating circumstances sufficient to

outweigh the aggravating circumstance or circumstances found.

    4.  If a jury or a panel of judges imposes a sentence of death,

the court shall enter its finding in the record, or the jury shall render

a written verdict signed by the foreman. The finding or verdict must

designate the aggravating circumstance or circumstances which

were found beyond a reasonable doubt, and must state that there are

no mitigating circumstances sufficient to outweigh the aggravating

circumstance or circumstances found.

    5.  If a sentence of death is imposed and a prior determination

regarding mental retardation has not been made pursuant to

section 1 of this act, the defendant may file a motion to set aside

the penalty on the grounds that the defendant is mentally retarded.

If such a motion is filed, the court shall conduct a hearing on that

issue in the manner set forth in section 1 of this act. If the court

determines pursuant to such a hearing that the defendant is

mentally retarded, it shall set aside the sentence of death and order

a new penalty hearing to be conducted. Either party may appeal

such a determination to the Supreme Court pursuant to

NRS 177.015.

    Sec. 4.  NRS 176.415 is hereby amended to read as follows:

    176.415  The execution of a judgment of death must be stayed

only:

    1.  By the State Board of Pardons Commissioners as authorized

in Sections 13 and 14 of Article 5 of the Constitution of the State of

Nevada;

    2.  When a direct appeal from the judgment of conviction and

sentence is taken to the Supreme Court;

    3.  By a judge of the district court of the county in which the

state prison is situated, for the purpose of an investigation of sanity

or pregnancy as provided in NRS 176.425 to 176.485, inclusive;

[or]

    4.  By a judge of the district court in which a motion is filed

pursuant to subsection 5 of NRS 175.554, for the purpose of

determining whether the defendant is mentally retarded; or

    5.  Pursuant to the provisions of NRS 176.486 to 176.492,

inclusive.

    Sec. 5.  NRS 177.015 is hereby amended to read as follows:

    177.015  The party aggrieved in a criminal action may appeal

only as follows:

    1.  Whether that party is the State or the defendant:

    (a) To the district court of the county from a final judgment of

the justice’s court.

    (b) To the Supreme Court from an order of the district court

granting a motion to dismiss, a motion for acquittal or a motion in

arrest of judgment, or granting or refusing a new trial.

    (c) To the Supreme Court from a determination of the district

court about whether a defendant is mentally retarded that is made

as a result of a hearing held pursuant to section 1 of this act. If the

Supreme Court entertains the appeal, it shall enter an order

staying the criminal proceedings against the defendant for such

time as may be required.

    2.  The State may, upon good cause shown, appeal to the

Supreme Court from a pretrial order of the district court granting or

denying a motion to suppress evidence made pursuant to NRS

174.125. Notice of the appeal must be filed with the clerk of the

district court within 2 judicial days and with the Clerk of the

Supreme Court within 5 judicial days after the ruling by the district

court. The clerk of the district court shall notify counsel for the

defendant or, in the case of a defendant without counsel, the

defendant within 2 judicial days after the filing of the notice of

appeal. The Supreme Court may establish such procedures as it

determines proper in requiring the appellant to make a preliminary

showing of the propriety of the appeal and whether there may be a

miscarriage of justice if the appeal is not entertained. If the Supreme

Court entertains the appeal, or if it otherwise appears necessary, it

may enter an order staying the trial for such time as may be

required.

    3.  The defendant only may appeal from a final judgment or

verdict in a criminal case.

    4.  Except as otherwise provided in subsection 3 of NRS

174.035, the defendant in a criminal case shall not appeal a final

judgment or verdict resulting from a plea of guilty, guilty but

mentally ill or nolo contendere that the defendant entered into

voluntarily and with a full understanding of the nature of the charge

and the consequences of the plea, unless the appeal is based upon

reasonable constitutional, jurisdictional or other grounds that

challenge the legality of the proceedings. The Supreme Court may

establish procedures to require the defendant to make a preliminary

showing of the propriety of the appeal.

    Sec. 6.  NRS 177.055 is hereby amended to read as follows:

    177.055  1.  When upon a plea of not guilty a judgment of

death is entered, an appeal is deemed automatically taken by the

defendant without any action by him or his counsel, unless the

defendant or his counsel affirmatively waives the appeal within 30

days after the rendition of the judgment.

    2.  Whether or not the defendant or his counsel affirmatively

waives the appeal, the sentence must be reviewed on the record by

the Supreme Court, which shall consider, in a single proceeding , if

an appeal is taken:

    (a) Any errors enumerated by way of appeal;

    (b) If a court determined that the defendant is not mentally

retarded during a hearing held pursuant to section 1 of this act,

whether that determination was correct;

    (c) Whether the evidence supports the finding of an aggravating

circumstance or circumstances;

    [(c)] (d) Whether the sentence of death was imposed under the

influence of passion, prejudice or any arbitrary factor; and

    [(d)] (e) Whether the sentence of death is excessive, considering

both the crime and the defendant.

    3.  The Supreme Court, when reviewing a death sentence, may:

    (a) Affirm the sentence of death;

    (b) Set the sentence aside and remand the case for a new penalty

hearing:

        (1) If the original penalty hearing was before a jury, before a

newly impaneled jury; or

        (2) If the original penalty hearing was before a panel of

judges, before a panel of three district judges which must consist,

insofar as possible, of the members of the original panel; or

    (c) Set aside the sentence of death and impose the sentence of

imprisonment for life without possibility of parole.

    Sec. 7.  NRS 200.030 is hereby amended to read as follows:

    200.030  1.  Murder of the first degree is murder which is:

    (a) Perpetrated by means of poison, lying in wait or torture, or

by any other kind of willful, deliberate and premeditated killing;

    (b) Committed in the perpetration or attempted perpetration of

sexual assault, kidnapping, arson, robbery, burglary, invasion of the

home, sexual abuse of a child, sexual molestation of a child under

the age of 14 years or child abuse;

    (c) Committed to avoid or prevent the lawful arrest of any

person by a peace officer or to effect the escape of any person from

legal custody; or

    (d) Committed on the property of a public or private school, at

an activity sponsored by a public or private school or on a school

bus while the bus was engaged in its official duties by a person who

intended to create a great risk of death or substantial bodily harm to

more than one person by means of a weapon, device or course of

action that would normally be hazardous to the lives of more than

one person.

    2.  Murder of the second degree is all other kinds of murder.

    3.  The jury before whom any person indicted for murder is

tried shall, if they find him guilty thereof, designate by their verdict

whether he is guilty of murder of the first or second degree.

    4.  A person convicted of murder of the first degree is guilty of

a category A felony and shall be punished:

    (a) By death, only if one or more aggravating circumstances are

found and any mitigating circumstance or circumstances which are

found do not outweigh the aggravating circumstance or

circumstances[;] , unless a court has made a finding pursuant to

section 1 of this act that the defendant is mentally retarded and

has stricken the notice of intent to seek the death penalty; or

    (b) By imprisonment in the state prison:

        (1) For life without the possibility of parole;

        (2) For life with the possibility of parole, with eligibility for

parole beginning when a minimum of 20 years has been served; or

        (3) For a definite term of 50 years, with eligibility for parole

beginning when a minimum of 20 years has been served.

A determination of whether aggravating circumstances exist is not

necessary to fix the penalty at imprisonment for life with or without

the possibility of parole.

    5.  A person convicted of murder of the second degree is guilty

of a category A felony and shall be punished by imprisonment in the

state prison:

    (a) For life with the possibility of parole, with eligibility for

parole beginning when a minimum of 10 years has been served; or

    (b) For a definite term of 25 years, with eligibility for parole

beginning when a minimum of 10 years has been served.

    6.  As used in this section:

    (a) “Child abuse” means physical injury of a nonaccidental

nature to a child under the age of 18 years;

    (b) “School bus” has the meaning ascribed to it in NRS 483.160;

    (c) “Sexual abuse of a child” means any of the acts described in

NRS 432B.100; and

    (d) “Sexual molestation” means any willful and lewd or

lascivious act, other than acts constituting the crime of sexual

assault, upon or with the body, or any part or member thereof, of a

child under the age of 14 years, with the intent of arousing,

appealing to, or gratifying the lust, passions or sexual desires of the

perpetrator or of the child.

 

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