Report Title:

Capital Punishment; Sexual Assault and Murder of Minor

Description:

Provides for a sentence of death or life imprisonment without possibility of parole upon conviction of a defendant for the sexual assault and murder of a minor. Requires separate sentencing proceeding after conviction before a jury. Establishes aggravating and mitigating circumstances.

THE SENATE

S.B. NO.

404

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO CAPITAL PUNISHMENT.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that there is a need to provide for the imposition of the death penalty to address one of the most serious offenses that can be committed, namely, the sexual assault and murder of a minor. The use of capital punishment in this circumstance is intended both to punish the perpetrator and to deter others from committing this type of crime.

The legislature further finds that this Act is in compliance with the United States Supreme Court's decision in Ring v. Arizona (June 24, 2002), in which the Court ruled that a jury, rather than a judge, must make a finding of aggravating factors when those factors underlie a judge's choice to impose the death penalty rather than a lesser, statutory punishment. Because Arizona's enumerated aggravating factors operated as the "functional equivalent of an element of a greater offense", the Sixth Amendment to the United States Constitution required that they be found by a jury.

The legislature finds that this Act complies with this case, which has affected Arizona and other states' capital punishment statutes. This Act requires that the jury deliberate and recommend to the court whether the defendant should be sentenced to death or to life imprisonment without the possibility of parole. A recommendation of death requires the unanimous vote of the entire membership of the jury, and must be based on a written finding that there are insufficient mitigating circumstances to overcome the circumstances of the murder, and a listing of any aggravating circumstances.

In particular, the jury must find that there must exist at least one aggravating circumstance that justifies the death penalty, and there must be no mitigating circumstances or insufficient mitigating circumstances considered as a whole to outweigh each aggravating circumstance considered separately. Notwithstanding the recommendation of the jury, the court may enter a sentence of death only upon the recommendation of the jury, but has full discretion to not issue such a sentence.

Finally, this Act prohibits the use of capital punishment for persons under the age of eighteen years, and for those who, as a result of a physical or mental disease, disorder, or defect, lack the capacity to understand the proceedings against them or to assist in their own defense, so long as the incapacity endures.

The legislature finds that this Act is necessary for the health, safety, and welfare of all of the people of this State, and particularly for the protection of Hawaii's children.

SECTION 2. Chapter 706, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"706- Capital punishment; sexual assault and murder of a minor. (1) This section shall apply only to a defendant who has been convicted of the following offenses against the same victim:

(a) Sexual assault in the first, second, or third degree, under section 707-731, 707-732, 707-733, or 707-733.5, respectively; and

(b) Murder in first degree under section 707-701 or murder in the second degree under section 707-701.5;

in which the victim was under the age of eighteen and was under the domination and control of the defendant during the entire, continuous period of time in which the offenses under paragraphs (a) and (b) were committed.

(2) Upon conviction of a defendant for the offenses specified in subsection (1), the court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or to life imprisonment without possibility of parole; provided that no person shall be sentenced to death under this section who:

(a) Is under the age of eighteen years; or

(b) As a result of a physical or mental disease, disorder, or defect lacks capacity to understand the proceedings against the person or to assist in the person's own defense, so long as the incapacity endures.

The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If the trial jury has been waived or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury empaneled for that purpose, unless waived by the defendant. In the proceeding, evidence shall be presented regarding any of the aggravating circumstances listed in subsection (4) and the mitigating circumstances listed in subsection (5), and evidence may be presented as to any other matter that the court deems relevant to the sentence. Any evidence that the court deems to have probative value may be received; provided that this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State. The defendant and the State shall be permitted to present arguments for or against the sentence of death.

(3) After hearing all of the evidence, the jury shall deliberate and recommend to the court whether the defendant should be sentenced to death or to life imprisonment without the possibility of parole. A recommendation of death shall require a unanimous vote of the entire membership of the jury and shall be based on a written finding that there are insufficient mitigating circumstances to overcome the circumstances of the sexual assault and murder, and a listing of any aggravating circumstances:

(a) The jury finds that there exists at least one aggravating circumstance under subsection (4) that justifies the death penalty; and

(b) The jury finds that there are no mitigating circumstances or there are insufficient mitigating circumstances considered as a whole, as listed in subsection (5), to outweigh each aggravating circumstance considered separately.

(4) In making its recommendation, the jury shall consider the following as aggravating circumstances:

(a) The sexual assault and murder were committed while the defendant was confined in a correctional facility, regardless of whether that confinement was legal;

(b) The defendant committed another sexual assault or murder at the time of the sexual assault and murder in issue;

(c) The defendant knowingly created a substantial risk of death to a person other than the victim or the defendant;

(d) The sexual assault and murder were committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any felony;

(e) The murder was committed for the defendant's pecuniary or other personal gain or as a murder for hire;

(f) The defendant has a prior conviction for sexual assault in any degree or murder in any degree;

(g) The murder was committed for the purpose of preventing a witness from testifying, or a person from providing evidence, or a person from participating in any legal proceedings or official investigation;

(i) The murder was committed by the unlawful and malicious use or detonation of any explosive; and

(j) The sexual assault or murder included the deliberate torture of the victim.

(5) In making its recommendation, the jury shall consider the following mitigating circumstances, if they apply:

(a) The defendant has no significant history of prior criminal activity;

(b) The sexual assault and murder were committed while the defendant was under the influence of extreme mental or emotional disturbance;

(c) The defendant acted against the defendant's will, under extreme duress, or under the substantial domination of another person, a finding of which shall eliminate the possible imposition of the death penalty;

(d) At the time of the sexual assault and murder, the capacity of the defendant to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was substantially impaired by something other than the defendant's voluntary and knowing ingestion of intoxicating substances;

(e) The age of the defendant at the time of the sexual assault and murder; and

(f) The defendant was an accomplice in the sexual assault and murder committed by another person and the defendant's participation was relatively minor, a finding of which shall eliminate the possible imposition of the death penalty.

(6) Notwithstanding the recommendation of the jury, the court may enter a sentence of death only upon the recommendation of the jury but shall have full discretion to not issue such a sentence.

The court shall set forth in writing its findings upon which the sentence of death is based, including the finding required of the jury in subsection (3). If the court does not make the findings required to impose the death sentence, the court shall impose a sentence of life imprisonment without the possibility of parole.

(7) The judgment of conviction and sentence of death shall be subject to automatic review by the supreme court within sixty days after certification by the sentencing court of the entire record unless time is extended by the supreme court for an additional period, not to exceed thirty days, for good cause shown. The review by the supreme court shall have priority over all other cases before the supreme court and shall be heard in accordance with rules adopted by the supreme court. The supreme court shall determine whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, whether the evidence supports the finding of a statutory aggravating circumstance, and whether the sentence is disproportionate as compared to other cases of a similar nature. If the sentence is affirmed, the supreme court's findings shall include a reference to other cases of a similar nature that the court considered in affirming the sentence.

(8) A person sentenced to death under this section shall be executed by the administration of lethal injection at a place and time to be determined by the sentencing court, which may delegate the decision to the director of public safety; provided that the death penalty shall be stayed, if imposed on a pregnant woman, until after the woman has given birth.

(9) In the event the death penalty in this section is held to be unconstitutional by the supreme court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death shall cause the person to be brought before the court, and the court shall sentence the person to life imprisonment without possibility of parole.

(10) As part of the sentence imposed under this section, the court shall order the director of public safety and the Hawaii paroling authority to prepare an application for the governor to commute a sentence of death to life imprisonment without the possibility of parole.

(11) Any DNA samples or evidence that have been collected from:

(a) The defendant's blood as provided in section 706-603(3), (4), or (5), as applicable, which has been withdrawn and the results recorded, preserved, and disseminated as provided in section 706-603(7); or

(b) The victim, the scene of the offense, or from any other person or place relevant to any of the offenses in question,

shall be further preserved for evidentiary purposes by the appropriate law enforcement agency to allow the defendant the opportunity to introduce that DNA evidence at any hearing, the purpose of which in whole or in part is to exonerate the defendant from guilt. The DNA evidence shall be preserved until either the defendant has been exonerated or executed pursuant to this section."

SECTION 3. Section 706-656, Hawaii Revised Statutes, is amended to read as follows:

"706-656 Terms of imprisonment for first and second degree murder and attempted first and second degree murder. (1) [Persons] Except as provided in section 706- , persons convicted of first degree murder or first degree attempted murder shall be sentenced to life imprisonment without possibility of parole.

As part of such sentence the court shall order the director of public safety and the Hawaii paroling authority to prepare an application for the governor to commute the sentence to life imprisonment with parole at the end of twenty years of imprisonment; provided that persons who are repeat offenders under section 706-606.5 shall serve at least the applicable mandatory minimum term of imprisonment.

(2) Except as provided in section 706- or 706-657, [pertaining to enhanced sentence for second degree murder,] persons convicted of second degree murder and attempted second degree murder shall be sentenced to life imprisonment with possibility of parole. The minimum length of imprisonment shall be determined by the Hawaii paroling authority; provided that persons who are repeat offenders under section 706-606.5 shall serve at least the applicable mandatory minimum term of imprisonment.

If the court imposes a sentence of life imprisonment without possibility of parole pursuant to section 706-657, as part of that sentence, the court shall order the director of public safety and the Hawaii paroling authority to prepare an application for the governor to commute the sentence to life imprisonment with parole at the end of twenty years of imprisonment; provided that persons who are repeat offenders under section 706-606.5 shall serve at least the applicable mandatory minimum term of imprisonment."

SECTION 4. Section 706-660.1, Hawaii Revised Statutes, is amended by amending subsections (1), (2), and (3) to read as follows:

"(1) [A] Except as provided in section 706- , a person convicted of a felony, where the person had a firearm in the person's possession or threatened its use or used the firearm while engaged in the commission of the felony, whether the firearm was loaded or not, and whether operable or not, may in addition to the indeterminate term of imprisonment provided for the grade of offense be sentenced to a mandatory minimum term of imprisonment without possibility of parole or probation the length of which shall be as follows:

(a) For murder in the second degree and attempted murder in the second degree--up to fifteen years;

(b) For a class A felony--up to ten years;

(c) For a class B felony--up to five years; and

(d) For a class C felony--up to three years.

The sentence of imprisonment for a felony involving the use of a firearm as provided in this subsection shall not be subject to the procedure for determining a minimum term of imprisonment prescribed under section 706-669[; provided further that a]. A person who is imprisoned in a correctional institution as provided in this subsection shall become subject to the parole procedure as prescribed in section 706-670 only upon the expiration of the term of mandatory imprisonment fixed under paragraph (a), (b), (c), or (d).

(2) [A] Except as provided in section 706- , a person convicted of a second firearm felony offense as provided in subsection (1) where the person had a firearm in the person's possession or threatened its use or used the firearm while engaged in the commission of the felony, whether the firearm was loaded or not, and whether operable or not, shall in addition to the indeterminate term of imprisonment provided for the grade of offense be sentenced to a mandatory minimum term of imprisonment without possibility of parole or probation the length of which shall be as follows:

(a) For murder in the second degree and attempted murder in the second degree--twenty years;

(b) For a class A felony--thirteen years, four months;

(c) For a class B felony--six years, eight months; and

(d) For a class C felony--three years, four months.

The sentence of imprisonment for a second felony offense involving the use of a firearm as provided in this subsection shall not be subject to the procedure for determining a minimum term of imprisonment prescribed under section 706-669[; provided further that a]. A person who is imprisoned in a correctional institution as provided in this subsection shall become subject to the parole procedure as prescribed in section 706-670 only upon expiration of the term of mandatory imprisonment fixed under paragraph (a), (b), (c), or (d).

(3) [A] Except as provided in section 706- , a person convicted of a felony, where the person had a semiautomatic firearm or automatic firearm in the person's possession or used or threatened its use while engaged in the commission of the felony, whether the semiautomatic firearm or automatic firearm was loaded or not, and whether operable or not, shall in addition to the indeterminate term of imprisonment provided for the grade of offense be sentenced to a mandatory minimum term of imprisonment without possibility of parole or probation the length of which shall be as follows:

(a) For murder in the second degree and attempted murder in the second degree--twenty years;

(b) For a class A felony--fifteen years;

(c) For a class B felony--ten years; and

(d) For a class C felony--five years.

The sentence of imprisonment for a felony involving the use of a semiautomatic firearm or automatic firearm as provided in this subsection shall not be subject to the procedure for determining a minimum term of imprisonment prescribed under section 706-669[; provided further that a]. A person who is imprisoned in a correctional institution as provided in this subsection shall become subject to the parole procedure as prescribed in section 706-670 only upon expiration of the term of mandatory imprisonment fixed under paragraph (a), (b), (c), or (d)."

SECTION 5. Section 706-660.2, Hawaii Revised Statutes, is amended to read as follows:

"706-660.2 Sentence of imprisonment for offenses against children, elder persons, or handicapped persons. [Notwithstanding] (1) Except as provided in section 706- , and notwithstanding section 706-669, a person who, in the course of committing or attempting to commit a felony, causes the death or inflicts serious or substantial bodily injury upon a person who is:

[(1)] (a) Sixty years of age or older;

[(2)] (b) Blind, a paraplegic, or a quadriplegic; or

[(3)] (c) Eight years of age or younger;

and such disability is known or reasonably should be known to the defendant, [shall,] if not subjected to an extended term of imprisonment pursuant to section 706-662, shall be sentenced to a mandatory minimum term of imprisonment without possibility of parole as [follows:] provided in subsection (2).

(2) A person who meets the criteria under subsection (1) shall be sentenced as follows:

[(1)] (a) For murder in the second degree--fifteen years;

[(2)] (b) For a class A felony--six years, eight months;

[(3)] (c) For a class B felony--three years, four months;

[(4)] (d) For a class C felony--one year, eight months."

SECTION 6. Section 706-661, Hawaii Revised Statutes, is amended to read as follows:

"706-661 Sentence of imprisonment for felony; extended terms. [In] Except as provided in section 706- , in the cases designated in section 706-662, a person who has been convicted of a felony may be sentenced to an extended indeterminate term of imprisonment. When ordering such a sentence, the court shall impose the maximum length of imprisonment which shall be as follows:

(1) For murder in the second degree--life without the possibility of parole;

(2) For a class A felony--indeterminate life term of imprisonment;

(3) For a class B felony--indeterminate twenty-year term of imprisonment; and

(4) For a class C felony--indeterminate ten-year term of imprisonment.

The minimum length of imprisonment for [[]paragraphs[]] (2), (3), and (4) shall be determined by the Hawaii paroling authority in accordance with section 706-669."

SECTION 7. Section 706-662, Hawaii Revised Statutes, is amended to read as follows:

"706-662 Criteria for extended terms of imprisonment. [A] Except as provided in section 706- , a convicted defendant may be subject to an extended term of imprisonment under section 706-661, if the convicted defendant satisfies one or more of the following criteria:

(1) The defendant is a persistent offender whose imprisonment for an extended term is necessary for protection of the public. The court shall not make this finding unless the defendant has previously been convicted of two felonies committed at different times when the defendant was eighteen years of age or older.

(2) The defendant is a professional criminal whose imprisonment for an extended term is necessary for protection of the public. The court shall not make this finding unless:

(a) The circumstances of the crime show that the defendant has knowingly engaged in criminal activity as a major source of livelihood; or

(b) The defendant has substantial income or resources not explained to be derived from a source other than criminal activity.

(3) The defendant is a dangerous person whose imprisonment for an extended term is necessary for protection of the public. The court shall not make this finding unless the defendant has been subjected to a psychiatric or psychological evaluation that documents a significant history of dangerousness to others resulting in criminally violent conduct, and this history makes the defendant a serious danger to others. Nothing in this section precludes the introduction of victim-related data in order to establish dangerousness in accord with the Hawaii rules of evidence.

(4) The defendant is a multiple offender whose criminal actions were so extensive that a sentence of imprisonment for an extended term is necessary for protection of the public. The court shall not make this finding unless:

(a) The defendant is being sentenced for two or more felonies or is already under sentence of imprisonment for felony; or

(b) The maximum terms of imprisonment authorized for each of the defendant's crimes, if made to run consecutively would equal or exceed in length the maximum of the extended term imposed, or would equal or exceed forty years if the extended term imposed is for a class A felony.

(5) The defendant is an offender against the elderly, handicapped, or a minor under the age of eight, whose imprisonment for an extended term is necessary for the protection of the public. The court shall not make this finding unless:

(a) The defendant attempts or commits any of the following crimes: murder, manslaughter, a sexual offense that constitutes a felony under chapter 707, robbery, felonious assault, burglary, or kidnapping; and

(b) The defendant, in the course of committing or attempting to commit the crime, inflicts serious or substantial bodily injury upon a person who is:

(i) Sixty years of age or older;

(ii) Blind, a paraplegic, or a quadriplegic; or

(iii) Eight years of age or younger; and

(c) Such disability is known or reasonably should be known to the defendant.

(6) The defendant is a hate crime offender whose imprisonment for an extended term is necessary for the protection of the public. The court shall not make this finding unless:

(a) The defendant is convicted of a crime under chapter 707, 708, or 711; and

(b) The defendant intentionally selected a victim, or in the case of a property crime, the property that was the object of a crime, because of hostility toward the actual or perceived race, religion, disability, ethnicity, national origin, or sexual orientation of any person."

SECTION 8. Section 707-701, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:

"(2) Murder in the first degree is a felony for which the defendant shall be sentenced [to imprisonment] as provided in section 706- or 706-656[.], as applicable."

SECTION 9. Section 707-701.5, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:

"(2) Murder in the second degree is a felony for which the defendant shall be sentenced [to imprisonment] as provided in section 706- or 706-656[.], as applicable."

SECTION 10. Section 707-730, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:

"(2) [Sexual] Except as provided in section 706- , sexual assault in the first degree is a class A felony."

SECTION 11. Section 707-731, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:

"(2) [Sexual] Except as provided in section 706- , sexual assault in the second degree is a class B felony."

SECTION 12. Section 707-732, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:

"(2) [Sexual] Except as provided in section 706- , sexual assault in the third degree is a class C felony."

SECTION 13. Section 707-733.5, Hawaii Revised Statutes, is amended by amending subsection (4) to read as follows:

"(4) [Continuous] Except as provided in section 706-   , continuous sexual assault of a minor under the age of fourteen years is a class A felony."

SECTION 14. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 15. Statutory material to be repealed is bracketed. New statutory material is underscored.

SECTION 16. This Act shall take effect on July 1, 2003.

INTRODUCED BY:

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