72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 451
House Bill 2062
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Committee on
Judiciary for ARC of Oregon)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Establishes that person convicted of aggravated murder is not
subject to death penalty if person is mentally retarded. Provides
procedure for such determination. Authorizes state to appeal from
order finding defendant to be mentally retarded.
A BILL FOR AN ACT
Relating to death penalty; creating new provisions; and amending
ORS 138.060 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 - } { + paragraph may + } 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.
(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 paragraph (a) of this subsection, 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 { + or the defendant has
been found, under section 2 of this 2003 Act, to be a person with
mental retardation + }, the court:
(A) { - Shall - } { + May + } not conduct a sentencing
proceeding as described in subsection (1) of this section, and a
sentence of death { - shall - } { + may + } 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) of this section, as modified by this
subsection.
(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).
(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) - } { + (1)(c) + }, 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 - } { + applies + } 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 { + life + } 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. { + (1) When a defendant who is charged with
aggravated murder intends to assert mental retardation, as
defined in ORS 427.005, as a bar to the imposition of the death
penalty in the event the defendant is convicted, the defendant
shall notify the court of that intention prior to trial.
(2) Upon being notified as provided in subsection (1) of this
section, the court shall hold a hearing on the issue of whether
the defendant is a person with mental retardation. At the
hearing, the defendant has the burden of proving mental
retardation by a preponderance of the evidence.
(3) If the court finds by a preponderance of the evidence that
the defendant is a person with mental retardation, the court
shall enter an order to that effect. + }
SECTION 3. ORS 138.060 is amended to read:
138.060. (1) The state may take an appeal from the circuit
court to the Court of Appeals from:
(a) An order made prior to trial dismissing or setting aside
the accusatory instrument;
(b) An order arresting the judgment;
(c) An order made prior to trial suppressing evidence;
(d) An order made prior to trial for the return or restoration
of things seized;
(e) A judgment of conviction based on the sentence as provided
in ORS 138.222;
(f) An order in a probation revocation hearing finding that a
defendant who was sentenced to probation under ORS 137.712 has
not violated a condition of probation by committing a new crime;
(g) An order made after a guilty finding dismissing or setting
aside the accusatory instrument;
(h) An order granting a new trial; { - or - }
(i) An order dismissing an accusatory instrument under ORS
136.130 { + ; or
(j) An order finding a defendant to be a person with mental
retardation under section 2 of this 2003 Act + }.
(2) Notwithstanding subsection (1) of this section, when the
state chooses to appeal from an order listed in paragraph (a) or
(b) of this subsection, the state shall take the appeal from the
circuit court to the Supreme Court if the defendant is charged
with murder or aggravated murder. The orders to which this
subsection applies are:
(a) An order made prior to trial suppressing evidence; and
(b) An order made prior to trial dismissing or setting aside
the accusatory instrument.
(3) In an appeal by the state under subsection (2) of this
section, the Supreme Court shall issue its decision no later than
one year after the date of oral argument or, if the appeal is not
orally argued, the date that the State Court Administrator
delivers the briefs to the Supreme Court for decision. Failure of
the Supreme Court to issue a decision within one year is not a
ground for dismissal of the appeal.
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