71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
House Bill 2340
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Judiciary
Committee for Judicial Department)
CHAPTER ................
AN ACT
Relating to criminal procedure; amending ORS 138.012 and 163.150.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 163.150 is amended to read:
163.150. (1)(a) Upon a finding that the defendant is guilty of
aggravated murder, the court, except as otherwise provided in
subsection (3) of this section, shall conduct a separate
sentencing proceeding to determine whether the defendant shall be
sentenced to life imprisonment, as described in ORS 163.105
(1)(c), life imprisonment without the possibility of release or
parole, as described in ORS 163.105 (1)(b), or death. The
proceeding shall be conducted in the trial court before the trial
jury as soon as practicable. If a juror for any reason is unable
to perform the function of a juror, the juror shall be dismissed
from the sentencing proceeding. The court shall cause to be drawn
the name of one of the alternate jurors, who shall then become a
member of the jury for the sentencing proceeding notwithstanding
the fact that the alternate juror did not deliberate on the issue
of guilt. The substitution of an alternate juror shall be allowed
only if the jury has not begun to deliberate on the issue of the
sentence. If the defendant has pleaded guilty, the sentencing
proceeding shall be conducted before a jury impaneled for that
purpose. In the proceeding, evidence may be presented as to any
matter that the court deems relevant to sentence including, but
not limited to, victim impact evidence relating to the personal
characteristics of the victim or the impact of the crime on the
victim's family and any aggravating or mitigating evidence
relevant to the issue in paragraph (b)(D) of this subsection;
however, neither the state nor the defendant shall be allowed to
introduce repetitive evidence that has previously been offered
and received during the trial on the issue of guilt. The court
shall instruct the jury that all evidence previously offered and
received may be considered for purposes of the sentencing
hearing. 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 Oregon. The
state and the defendant or the counsel of the defendant shall be
permitted to present arguments for or against a sentence of death
and for or against a sentence of life imprisonment with or
without the possibility of release or parole.
Enrolled House Bill 2340 (HB 2340-INTRO) Page 1
(b) Upon the conclusion of the presentation of the evidence,
the court shall submit the following issues to the jury:
(A) Whether the conduct of the defendant that caused the death
of the deceased was committed deliberately and with the
reasonable expectation that death of the deceased or another
would result;
(B) Whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a
continuing threat to society;
(C) If raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable in response to
the provocation, if any, by the deceased; and
(D) Whether the defendant should receive a death sentence.
(c)(A) The court shall instruct the jury to consider, in
determining the issues in paragraph (b) of this subsection, any
mitigating circumstances offered in evidence, including but not
limited to the defendant's age, the extent and severity of the
defendant's prior criminal conduct and the extent of the mental
and emotional pressure under which the defendant was acting at
the time the offense was committed.
(B) The court shall instruct the jury to answer the question in
paragraph (b)(D) of this subsection 'no' if, after considering
any aggravating evidence and any mitigating evidence concerning
any aspect of the defendant's character or background, or any
circumstances of the offense and any victim impact evidence as
described in subsection (1)(a) of this section, one or more of
the jurors believe that the defendant should not receive a death
sentence.
(d) The state must prove each issue submitted under paragraph
(b)(A) to (C) of this subsection beyond a reasonable doubt, and
the jury shall return a special verdict of 'yes' or 'no' on each
issue considered.
(e) The court shall charge the jury that it may not answer any
issue 'yes,' under paragraph (b) of this subsection unless it
agrees unanimously.
(f) If the jury returns an affirmative finding on each issue
considered under paragraph (b) of this subsection, the trial
judge shall sentence the defendant to death.
(2)(a) Upon the conclusion of the presentation of the evidence,
the court shall also instruct the jury that if it reaches a
negative finding on any issue under subsection (1)(b) of this
section, the trial court shall sentence the defendant to life
imprisonment without the possibility of release or parole, as
described in ORS 163.105 (1)(b), unless 10 or more members of the
jury further find that there are sufficient mitigating
circumstances to warrant life imprisonment, in which case the
trial court shall sentence the defendant to life imprisonment as
described in ORS 163.105 (1)(c).
(b) If the jury returns a negative finding on any issue under
subsection (1)(b) of this section and further finds that there
are sufficient mitigating circumstances to warrant life
imprisonment, the trial court shall sentence the defendant to
life imprisonment in the custody of the Department of Corrections
as provided in ORS 163.105 (1)(c).
(3)(a) When the defendant is found guilty of aggravated murder,
and { + ORS 137.707 (2) applies or + } the state advises the
court on the record that the state declines to present evidence
for purposes of sentencing the defendant to death, the court:
Enrolled House Bill 2340 (HB 2340-INTRO) Page 2
(A) Shall not conduct a sentencing proceeding as described in
subsection (1) of this section, and a sentence of death shall not
be ordered.
(B) Shall conduct a sentencing proceeding to determine whether
the defendant shall be sentenced to life imprisonment without the
possibility of release or parole as described in ORS 163.105
(1)(b) or life imprisonment as described in ORS 163.105 (1)(c).
If the defendant waives all rights to a jury sentencing
proceeding, the court shall conduct the sentencing proceeding as
the trier of fact. The procedure for the sentencing proceeding,
whether before a court or a jury, shall follow the procedure of
subsection (1)(a) { - and subsection (2) - } of this section,
as modified by this subsection { - which prohibits a sentence
of death when the state declines to present evidence - } .
{ + (b) Following the presentation of evidence and argument
under paragraph (a) of this subsection, the court shall instruct
the jury that the trial court shall sentence the defendant to
life imprisonment without the possibility of release or parole as
described in ORS 163.105 (1)(b), unless after considering all of
the evidence submitted, 10 or more members of the jury find there
are sufficient mitigating circumstances to warrant life
imprisonment with the possibility of parole as described in ORS
163.105 (1)(c). If 10 or more members of the jury find there are
sufficient mitigating circumstances to warrant life imprisonment
with the possibility of parole, the trial court shall sentence
the defendant to life imprisonment as described in ORS 163.105
(1)(c). + }
{ - (b) - } { + (c) + } Nothing in this subsection shall
preclude the court from sentencing the defendant to life
imprisonment, as described in ORS 163.105 (1)(c), or life
imprisonment without the possibility of release or parole, as
described in ORS 163.105 (1)(b), pursuant to a stipulation of
sentence or stipulation of sentencing facts agreed to and offered
by both parties if the defendant waives all rights to a jury
sentencing proceeding.
(4) If any part of subsection (2) of this section is held
invalid and as a result thereof a defendant who has been
sentenced to life imprisonment without possibility of release or
parole will instead be sentenced to life imprisonment in the
custody of the Department of Corrections as provided in ORS
163.105 (2), the defendant shall be confined for a minimum of 30
years without possibility of parole, release on work release or
any form of temporary leave or employment at a forest or work
camp. Subsection (2) of this section shall apply only to trials
commencing on or after July 19, 1989.
(5) Notwithstanding subsection (1)(a) of this section, if the
trial court grants a mistrial during the sentencing proceeding,
the trial court, at the election of the state, shall either:
(a) Sentence the defendant to imprisonment for life in the
custody of the Department of Corrections as provided in ORS
163.105 (1)(c); or
(b) Impanel a new sentencing jury for the purpose of conducting
a new sentencing proceeding to determine if the defendant should
be sentenced to:
(A) Death;
(B) Imprisonment for life without the possibility of release or
parole as provided in ORS 163.105 (1)(b); or
(C) Imprisonment for life in the custody of the Department of
Corrections as provided in ORS 163.105 (1)(c).
SECTION 2. ORS 138.012 is amended to read:
Enrolled House Bill 2340 (HB 2340-INTRO) Page 3
138.012. (1) The judgment of conviction and sentence of death
entered under ORS 163.150 (1)(f) is subject to automatic and
direct review by the Supreme Court. The review by the Supreme
Court has priority over all other cases and shall be heard in
accordance with rules adopted by the Supreme Court.
(2) Notwithstanding ORS 163.150 (1)(a), after automatic and
direct review of a conviction and sentence of death the following
apply:
(a) If a reviewing court finds prejudicial error in the
sentencing proceeding only, the court may set aside the sentence
of death and remand the case to the trial court. No error in the
sentencing proceeding results in reversal of the defendant's
conviction for aggravated murder. Upon remand and at the election
of the state, the trial court shall either:
(A) Sentence the defendant to imprisonment for life in the
custody of the Department of Corrections as provided in ORS
163.105 (1)(c); or
(B) Impanel a new sentencing jury for the purpose of conducting
a new sentencing proceeding to determine if the defendant should
be sentenced to:
(i) Death;
(ii) Imprisonment for life without the possibility of release
or parole as provided in ORS 163.105 (1)(b); or
(iii) Imprisonment for life in the custody of the Department of
Corrections as provided in ORS 163.105 (1)(c).
(b) The new sentencing proceeding is governed by the provisions
of ORS 163.150 (1), (2), { - (3)(b) - } { + (3) + } and (5).
A transcript of all testimony and all exhibits and other evidence
properly admitted in the prior trial and sentencing proceeding
are admissible in the new sentencing proceeding. Either party may
recall any witness who testified at the prior trial or sentencing
proceeding and may present additional relevant evidence.
(c) The provisions of this subsection are procedural and apply
to any defendant sentenced to death after December 6, 1984.
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Passed by House February 15, 2001
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate May 18, 2001
...........................................................
President of Senate
Enrolled House Bill 2340 (HB 2340-INTRO) Page 4
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled House Bill 2340 (HB 2340-INTRO) Page 5