2005 Regular Session

To: Judiciary En Banc

By: Representative Fleming

House Bill 253



     SECTION 1.  If defense counsel has a good faith belief that the defendant in a capital case has mental retardation, counsel shall file a motion with the court, requesting a finding that the defendant is not death eligible because of mental retardation.  Such a motion shall be filed within ten (10) days after the prosecution files notice of intent to seek the death penalty, unless the information in support of the motion came to counsel's attention at a later date.

     Upon receipt of such a motion, the trial court shall conduct a hearing for the presentation of evidence regarding the defendant's possible mental retardation.  Both the defense and the prosecution shall have the opportunity to present evidence, including expert testimony.  After considering the evidence, the court shall find the defendant is not death eligible if it finds, by a preponderance of the evidence, that the defendant has mental retardation.  If the defendant is not death eligible because of mental retardation, the trial may proceed as a noncapital trial, and, if convicted, the defendant may be sentenced to any penalty available under state law, other than death.

     If the court finds that the defendant is death eligible, the case may proceed as a capital trial.  The jury shall not be informed of the prior proceedings or the judge's findings concerning the defendant's claim of mental retardation.

     If the capital trial results in a verdict of guilty to a capital charge, the parties shall be entitled to present evidence to the jury on the issue of whether the defendant has mental retardation.  Having heard the evidence and arguments, the jury shall be asked to render a special verdict on the issue of mental retardation.  The special verdict shall ask the jury to answer the following question:  "Do you unanimously find, beyond a reasonable doubt, that the defendant does not have mental retardation?"  If the jury answers "yes," the case shall proceed to a penalty phase under Section 99-19-101.  If the jury answers the question "no," the defendant may be sentenced to any penalty available under state law, other than death.

     SECTION 2.  Section 99-19-101, Mississippi Code of 1972, is amended as follows:

     99-19-101.  (1)  Except for those who are determined mentally retarded or mentally challenged as provided in Section 1, House Bill No. 253, 2005 Regular Session, upon conviction or adjudication of guilt of a defendant of capital murder or other capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death, life imprisonment without eligibility for parole, or life imprisonment.  The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable.  If, through impossibility or inability, the trial jury is unable to reconvene for a hearing on the issue of penalty, having determined the guilt of the accused, the trial judge may summon a jury to determine the issue of the imposition of the penalty.  If the trial jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose or may be conducted before the trial judge sitting without a jury if both the State of Mississippi and the defendant agree thereto in writing.  In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances.  However, 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 of Mississippi.  The state and the defendant and/or his counsel shall be permitted to present arguments for or against the sentence of death.

     (2)  After hearing all the evidence, the jury shall deliberate on the following matters:

          (a)  Whether sufficient factors exist as enumerated in subsection (7) of this section;

          (b)  Whether sufficient aggravating circumstances exist as enumerated in subsection (5) of this section;

          (c)  Whether sufficient mitigating circumstances exist as enumerated in subsection (6) of this section, which outweigh the aggravating circumstances found to exist; and

          (d)  Based on these considerations, whether the defendant should be sentenced to life imprisonment, life imprisonment without eligibility for parole, or death.

     (3)  For the jury to impose a sentence of death, it must unanimously find in writing the following:

          (a)  That sufficient factors exist as enumerated in subsection (7) of this section;

          (b)  That sufficient aggravating circumstances exist as enumerated in subsection (5) of this section; and

          (c)  That there are insufficient mitigating circumstances, as enumerated in subsection (6), to outweigh the aggravating circumstances.

     In each case in which the jury imposes the death sentence, the determination of the jury shall be supported by specific written findings of fact based upon the circumstances in subsections (5) and (6) of this section and upon the records of the trial and the sentencing proceedings.  If, after the trial of the penalty phase, the jury does not make the findings requiring the death sentence or life imprisonment without eligibility for parole, or is unable to reach a decision, the court shall impose a sentence of life imprisonment.

     (4)  The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Mississippi within sixty (60) days after certification by the sentencing court of entire record, unless the time is extended for an additional period by the Supreme Court for good cause shown.  Such review by the Supreme Court shall have priority over all other cases and shall be heard in accordance with rules promulgated by the Supreme Court.

     (5)  Aggravating circumstances shall be limited to the following:

          (a)  The capital offense was committed by a person under sentence of imprisonment.

          (b)  The defendant was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person.

          (c)  The defendant knowingly created a great risk of death to many persons.

          (d)  The capital offense was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, aircraft piracy, 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, Mississippi Code of 1972, or the unlawful use or detonation of a bomb or explosive device.

          (e)  The capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.

          (f)  The capital offense was committed for pecuniary gain.

          (g)  The capital offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.

          (h)  The capital offense was especially heinous, atrocious or cruel.

     (6)  Mitigating circumstances shall be the following:

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

          (b)  The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

          (c)  The victim was a participant in the defendant's conduct or consented to the act.

          (d)  The defendant was an accomplice in the capital offense committed by another person and his participation was relatively minor.

          (e)  The defendant acted under extreme duress or under the substantial domination of another person.

          (f)  The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

          (g)  The age of the defendant at the time of the crime.

          (h)  The defendant is mentally retarded, which is defined as substantial limitations in present functioning characterized by significantly subaverage intellectual functioning existing concurrently with related limitations in two (2) or more of the following applicable adaptive skill areas:  communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work.

     (7)  In order to return and impose a sentence of death the jury must make a written finding of one or more of the following:

          (a)  The defendant actually killed;

          (b)  The defendant attempted to kill;

          (c)  The defendant intended that a killing take place;

          (d)  The defendant contemplated that lethal force would be employed.

     SECTION 3.  Section 1 of this act shall be codified as a separate code section in Chapter 19, Title 99, Mississippi Code of 1972.

     SECTION 4.  This act shall take effect and be in force from and after July 1, 2005.