Senate Amendments to House Bill No. 202

 

TO THE CLERK OF THE HOUSE:

 

  THIS IS TO INFORM YOU THAT THE SENATE HAS ADOPTED THE AMENDMENTS SET OUT BELOW:

 

 

AMENDMENT NO. 1

 

     Amend by striking all after the enacting clause and inserting in lieu thereof the following:

 


     SECTION 1.  The following shall be codified as Section 97-3-8, Mississippi Code of 1972:

     97-3-8.  A person is guilty of attempted murder if he attempts to kill another human being or attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; and, upon conviction, he shall be punished by imprisonment in the custody of the Department of Corrections for not less than twenty (20) years or by imprisonment for life in the custody of the Department of Corrections, in the discretion of the court.  A person convicted of attempted murder upon a law enforcement officer or fireman while such law enforcement officer or fireman is acting within the scope of his duty and office shall be punished by imprisonment for life in the custody of the Department of Corrections.  Any person convicted of a second or subsequent offense of attempted murder shall be sentenced to imprisonment for life without parole in the custody of the Department of Corrections.

     SECTION 2.  Section 97-3-7, Mississippi Code of 1972, is amended as follows:

     97-3-7.  (1)  A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm; and, upon conviction, he shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both.  However, a person convicted of simple assault (a) upon a statewide elected official, law enforcement officer, fireman, emergency medical personnel, public health personnel, social worker or family protection specialist or family protection worker employed by the Department of Human Services or another agency, superintendent, principal, teacher or other instructional personnel, school attendance officer, school bus driver, or a judge of a circuit, chancery, county, justice, municipal or youth court or a judge of the Court of Appeals or a justice of the Supreme Court, district attorney, legal assistant to a district attorney, county prosecutor, municipal prosecutor, court reporter employed by a court, court administrator, clerk or deputy clerk of the court, or public defender, while such statewide elected official, judge or justice, law enforcement officer, fireman, emergency medical personnel, public health personnel, social worker, family protection specialist, family protection worker, superintendent, principal, teacher or other instructional personnel, school attendance officer, school bus driver, district attorney, legal assistant to a district attorney, county prosecutor, municipal prosecutor, court reporter employed by a court, court administrator, clerk or deputy clerk of the court, or public defender is acting within the scope of his duty, office or employment; * * * (b) upon a legislator while the Legislature is in regular or extraordinary session or while otherwise acting within the scope of his duty, office or employment; or (c) upon a witness in a pending criminal proceeding as those terms are defined in Section 97-3-19, if the person at the time of the offense was a defendant or suspect in the criminal proceeding or was acting at the request of a defendant or suspect in the criminal proceeding or was aiding and abetting or acting in concert with a defendant or suspect, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment for not more than five (5) years, or both.

     (2)  A person is guilty of aggravated assault if he * * * attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life * * * and, upon conviction, he shall be punished by imprisonment in the county jail for not more than one (1) year or in the Penitentiary for not more than twenty (20) years.  However, a person convicted of aggravated assault (a) upon a statewide elected official, law enforcement officer, fireman, emergency medical personnel, public health personnel, social worker, family protection specialist, family protection worker employed by the Department of Human Services or another agency, superintendent, principal, teacher or other instructional personnel, school attendance officer, school bus driver, or a judge of a circuit, chancery, county, justice, municipal or youth court or a judge of the Court of Appeals or a justice of the Supreme Court, district attorney, legal assistant to a district attorney, county prosecutor, municipal prosecutor, court reporter employed by a court, court administrator, clerk or deputy clerk of the court, or public defender, while such statewide elected official, judge or justice, law enforcement officer, fireman, emergency medical personnel, public health personnel, social worker, family protection specialist, family protection worker, superintendent, principal, teacher or other instructional personnel, school attendance officer, school bus driver, district attorney, legal assistant to a district attorney, county prosecutor, municipal prosecutor, court reporter employed by a court, court administrator, clerk or deputy clerk of the court, or public defender is acting within the scope of his duty, office or employment; * * * (b) upon a legislator while the Legislature is in regular or extraordinary session or while otherwise acting within the scope of his duty, office or employment; or (c) upon a witness in a pending criminal proceeding as those terms are defined in Section 97-3-19, if the person at the time of the offense was a defendant or suspect in the criminal proceeding or was acting at the request of a defendant or suspect in the criminal proceeding or was aiding and abetting or acting in concert with a defendant or suspect, shall be punished by a fine of not more than Five Thousand Dollars ($5,000.00) or by imprisonment for not more than thirty (30) years, or both.

     (3)  A person is guilty of simple domestic violence who commits simple assault as described in subsection (1) of this section against a family or household member who resides with the defendant or who formerly resided with the defendant, a current or former spouse, a person who has a current dating relationship with the defendant, or a person with whom the defendant has had a biological or legally adopted child and upon conviction, the defendant shall be punished as provided under subsection (1) of this section; however, upon a third or subsequent conviction of simple domestic violence, whether against the same or another victim and within five (5) years, the defendant shall be guilty of a felony and sentenced to a term of imprisonment not less than five (5) nor more than ten (10) years.  In sentencing, the court shall consider as an aggravating factor whether the crime was committed in the physical presence or hearing of a child under sixteen (16) years of age who was, at the time of the offense, living within either the residence of the victim, the residence of the perpetrator, or the residence where the offense occurred.

     (4)  A person is guilty of aggravated domestic violence who commits aggravated assault as described in subsection (2) of this section against a family or household member who resides with the defendant or who formerly resided with the defendant, or a current or former spouse, a person who has a current dating relationship with the defendant, or a person with whom the defendant has had a biological or legally adopted child and upon conviction, the defendant shall be punished as provided under subsection (2) of this section; however, upon a third or subsequent offense of aggravated domestic violence, whether against the same or another victim and within five (5) years, the defendant shall be guilty of a felony and sentenced to a term of imprisonment of not less than five (5) nor more than twenty (20) years.  In sentencing, the court shall consider as an aggravating factor whether the crime was committed in the physical presence or hearing of a child under sixteen (16) years of age who was, at the time of the offense, living within either the residence of the victim, the residence of the perpetrator, or the residence where the offense occurred.  Reasonable discipline of a child, such as spanking, is not an offense under this subsection (4).

     (5)  "Dating relationship" means a social relationship of a romantic or intimate nature.

     (6)  Every conviction of domestic violence may require as a condition of any suspended sentence that the defendant participate in counseling or treatment to bring about the cessation of domestic abuse.  The defendant may be required to pay all or part of the cost of the counseling or treatment, in the discretion of the court.

     (7)  In any conviction of assault as described in any subsection of this section which arises from an incident of domestic violence, the sentencing order shall include the designation "domestic violence."

     SECTION 3.  Section 97-3-19, Mississippi Code of 1972, is amended as follows:

     97-3-19.  (1)  The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:

          (a)  When done with deliberate design to effect the death of the person killed, or of any human being;

          (b)  When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual;

          (c)  When done without any design to effect death by any person engaged in the commission of any felony other than rape, kidnapping, burglary, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, or in any attempt to commit such felonies;

          (d)  When done with deliberate design to effect the death of an unborn child.

     (2)  The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:

          (a)  Murder which is perpetrated by killing a peace officer or fireman while such officer or fireman is acting in his official capacity or by reason of an act performed in his official capacity, and with knowledge that the victim was a peace officer or fireman.  For purposes of this paragraph, the term "peace officer" means any state or federal law enforcement officer, including, but not limited to, a federal park ranger, the sheriff of or police officer of a city or town, a conservation officer, a parole officer, a judge, senior status judge, special judge, district attorney, legal assistant to a district attorney, county prosecuting attorney or any other court official, an agent of the Alcoholic Beverage Control Division of the State Tax Commission, an agent of the Bureau of Narcotics, personnel of the Mississippi Highway Patrol, and the employees of the Department of Corrections who are designated as peace officers by the Commissioner of Corrections pursuant to Section 47-5-54, and the superintendent and his deputies, guards, officers and other employees of the Mississippi State Penitentiary;

          (b)  Murder which is perpetrated by a person who is under sentence of life imprisonment;

          (c)  Murder which is perpetrated by use or detonation of a bomb or explosive device;

          (d)  Murder which is perpetrated by any person who has been offered or has received anything of value for committing the murder, and all parties to such a murder, are guilty as principals;

          (e)  When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in any attempt to commit such felonies;

          (f)  When done with or without any design to effect death, by any person engaged in the commission of the crime of felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, or in any attempt to commit such felony;

          (g)  Murder which is perpetrated on educational property as defined in Section 97-37-17;

          (h)  Murder which is perpetrated by the killing of any elected official of a county, municipal, state or federal government with knowledge that the victim was such public official;

          (i)  Murder which is perpetrated by the killing of a witness in a pending criminal proceeding by a defendant or suspect in the proceeding or by any other person at the request of a defendant or suspect in the criminal proceeding or by a person who was aiding and abetting or acting in concert with a defendant or suspect in a criminal proceeding.  For purposes of this paragraph, the following terms shall have the meanings ascribed:

              (i)  "Witness" means any person, whether ever subpoenaed or called to testify in a trial or hearing, who has, or is believed to have, knowledge relevant to a criminal proceeding, which knowledge may include, but shall not be limited to, allegedly being present at the time or at the scene of the offense, allegedly possessing documentary or other evidence as to the offense or the person who committed the offense, or allegedly having heard the defendant discussing the offense either before or after the offense occurred, which person is identified in one or more police reports or discovery provided by the prosecution to the defendant or his attorney;

              (ii)  "Pending criminal proceeding" means any felony prosecution that has been commenced by an arrest, indictment or an investigation by a duly authorized law enforcement agency.

     (3)  An indictment for murder or capital murder shall serve as notice to the defendant that the indictment may include any and all lesser included offenses thereof, including, but not limited to, manslaughter.

     SECTION 4.  Section 97-3-53, Mississippi Code of 1972, is amended as follows:

     97-3-53.  Any person who,without lawful authority and with or without intent to secretly confine, shall forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be confined or imprisoned against his or her will, or without lawful authority shall forcibly seize, inveigle or kidnap any child under the age of sixteen (16) years against the will of the parents or guardian or person having the lawful custody of the child, upon conviction, shall be imprisoned for life in the custody of the Department of Corrections if the punishment is so fixed by the jury in its verdict.  If the jury fails to agree on fixing the penalty at imprisonment for life, the court shall fix the penalty at not less than one (1) year nor more than thirty (30) years in the custody of the Department of Corrections; provided, that where the person seized, confined, inveigled or kidnapped in violation of this section is a witness in a pending criminal proceeding as those terms are defined in Section 97-3-19, and the person at the time of the offense was a defendant or suspect in the criminal proceeding or was acting at the request of a defendant or suspect in the criminal proceeding or was aiding and abetting or acting in concert with a defendant or suspect, the court shall fix the penalty at not less than five (5) years nor more than life in prison, with the sentencing determination to be made by the court, sitting without a jury, after a trial or plea.

     This section shall not be held to repeal, modify or amend any other criminal statute of this state.

     SECTION 5.  The following shall be codified as Section 99-7-26, Mississippi Code of 1972:

     99-7-26.  An indictment for kidnapping under Section 97-3-53, wherein the victim is alleged to be a witness in a pending criminal proceeding as defined by Section 97-3-19, shall include such allegation, which shall be treated for all purposes as an element of the crime to be determined by the jury, notwithstanding the power of the court to sentence without involvement of the jury in the sentencing process.

     SECTION 6.  (1)  The Mississippi Witness Protection Program Study Committee is hereby created.  It shall consist of eight (8) members who are to be selected as follows:

          (a)  The Commissioner of Public Safety, who shall chair the study committee.

          (b)  One (1) circuit judge appointed by the Conference of Circuit Judges.

          (c)  One (1) sheriff appointed by the Sheriffs' Association.

          (d)  One (1) police chief appointed by the Police Chiefs' Association.

          (e)  The President of the Mississippi Criminal Defense Lawyers Association shall appoint one (1) member from its membership.

          (f)  Two (2) prosecutors appointed by the Prosecutors' Association, at least one (1) of whom is a District Attorney or employed by a District Attorney.

          (g)  The Chief Justice of the Supreme Court shall appoint one (1) Public Defender.

     Appointments and vacancies on the study committee shall be filled by the respective selecting and appointing authorities.

     (2)  The purpose of the study committee shall be to make recommendations to the Legislature and the Supreme Court as to the need in Mississippi for a state-level Witness Protection Program, including obtaining statistical information with reference to cases in the various courts in Mississippi; conducting research relating to improvement of the administration of justice; the needs of law enforcement agencies in the State of Mississippi; and making a comprehensive study of the potential usefulness to the state of a Witness Protection Program.  In addition, the study committee is charged with the examination of the operational needs, including budget, staffing, and the best placement administratively, of any future Witness Protection Program, and may make such policy recommendations as will promote the administration of justice.

     (3)  (a)  The chairman shall set and give notice of the time, date and place of the initial meeting, at which time the study committee shall elect a vice chairperson from its members and any other officers which it considers necessary to carry out the purpose of the committee.  The chair shall not vote unless necessary to break a tie vote of the committee.  The committee may form any committees from its membership in order to assist the committee in accomplishing its purposes as provided in this act.

          (b)  The committee shall meet at least quarterly and at such other times as meetings may be called by the chair.  A majority of the members shall constitute a quorum at any meeting.  Any final action taken by the study committee shall require the affirmative vote of a majority.

     (4)  The Department of Public Safety shall provide such support of the Mississippi Witness Protection Program Study Committee as is necessary to accomplish the purposes of this act, including, but not limited to, research and clerical assistance.

     (5)  (a)  In addition to the other duties specified, the committee shall file a report with the Legislature not later than December 15, 2007.  The document shall report on the need, if any, for a state-level Witness Protection Program.  The report shall also make specific recommendations for structure of any future Witness Protection Program as well as a projected cost for the program over the first five (5) years of operation, setting forth start-up costs separately from operating costs.

          (b)  The committee is authorized and empowered for the accomplishment of its purposes to undertake any studies, reviews, inquiries, hearings, examinations, surveys or analyses as it may deem pertinent, relevant and justified.  The committee shall propose and prepare in detailed form for the consideration of the Legislature such amendments to existing law, such statutes, and such constitutional amendments as in the judgment of the committee will facilitate the operation of the Witness Protection Program and promote the administration of justice.

     (6)  The committee is authorized to call upon any and all existing courts, agencies, departments, divisions, officers, employees, boards, bureaus, commissions and institutions of the State of Mississippi, or any political subdivision thereof, to furnish such information, data and assistance as will enable it to carry out its powers and duties hereunder and all such agencies, departments, divisions, officers, employees, boards, bureaus, commissions and institutions of the State of Mississippi and its political subdivisions are hereby directed to cooperate with the committee and render such information, data, aid and assistance as may be requested by the committee.

     (7)  The committee shall have the power to enlist the services of any agency, either public or private, or any individual or educational institution, bar association, research organization, foundation or educational or civic organization for assistance in accomplishing the purposes of this act, conducting research studies, gathering information or printing and publishing its reports.  The committee is authorized to make and sign any agreements or contracts to do or perform any actions that may be necessary, desirable or proper to carry out the purposes and objectives of this act.

     (8)  The committee may employ any agents, clerks, researchers, counsel, consultants and other personnel necessary for the performance of the duties of the study committee and fix their respective rates of compensation, all subject to the approval of the State Personnel Board and within the amounts made available by appropriation therefor or received from other sources.

     (9)  Members of the committee shall receive a per diem as provided in Section 25-3-69 for actual attendance upon meetings of the study committee, together with reimbursement for traveling and subsistence expenses incurred as provided in Section 25-3-41, Mississippi Code of 1972, except that members of the study committee whose regular compensation is payable by the state or any political subdivision of the state shall not receive per diem for attendance upon meetings of the study committee.

     (10)  The committee is authorized and empowered to receive and expend any funds appropriated to it by the Legislature and any funds received by it from any other source in carrying out the objectives and purposes of this act.

     SECTION 7.  Sections 1 through 5 of this act shall take effect and be in force from and after July 1, 2007, and the remainder of this act shall take effect and be in force from and after its passage.


     Further, amend by striking the title in its entirety and inserting in lieu thereof the following:

 


     AN ACT TO CREATE A NEW CODE SECTION TO BE CODIFIED AS SECTION 97-3-8, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE CRIMINAL OFFENSE OF ATTEMPTED MURDER AND TO PROVIDE PENALTIES FOR THE COMMISSION OF ATTEMPTED MURDER; TO AMEND SECTIONS 97-3-7, 97-3-19 AND 97-3-53, MISSISSIPPI CODE OF 1972, TO REVISE THE CRIMES OF ASSAULT, MURDER AND KIDNAPPING WHEN COMMITTED AGAINST A WITNESS IN A CRIMINAL PROCEEDING AND TO CONFORM TO ATTEMPTED MURDER; TO CREATE SECTION 99-7-26, MISSISSIPPI CODE OF 1972, TO REVISE INDICTMENT FOR ASSAULT AND KIDNAPPING WHEN THE VICTIM IS A WITNESS IN A CRIMINAL PROCEEDING; TO CREATE THE MISSISSIPPI WITNESS PROTECTION PROGRAM STUDY COMMITTEE; TO SPECIFY THE MEMBERSHIP THEREOF; TO SET FORTH THE PURPOSE OF THE STUDY COMMITTEE; TO PROVIDE FOR THE ELECTION OF A CHAIRPERSON AND OTHER OFFICERS; TO PROVIDE FOR MEETINGS OF THE COMMITTEE; TO REQUIRE THE DEPARTMENT OF PUBLIC SAFETY TO PROVIDE ADMINISTRATIVE SUPPORT TO THE COMMITTEE; TO SET FORTH ADDITIONAL DUTIES AND POWERS OF THE COMMITTEE; TO REQUIRE STATE AND LOCAL GOVERNMENT AGENCIES TO ASSIST THE COMMITTEE; TO AUTHORIZE THE COMMITTEE TO ENLIST THE SERVICE OF OTHER AGENCIES, ASSOCIATIONS AND ORGANIZATIONS TO ASSIST THE COMMITTEE; TO AUTHORIZE THE COMMITTEE TO EMPLOY SUPPORT PERSONNEL; TO AUTHORIZE PER DIEM PAYMENT AND TRAVEL EXPENSES; TO AUTHORIZE EXPENDITURE OF APPROPRIATED FUNDS; AND FOR RELATED PURPOSES.


 

SS26\HB202A.J

 

                                                 John O. Gilbert

                                         Secretary of the Senate