CHAPTER 41

FORMERLY

SENATE BILL NO. 28

AS AMENDED BY

SENATE AMENDMENTS NO. 1, 2, 9 AND

HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 42 OF TITLE 11, DELAWARE CODE, RELATING TO THE METHOD: PUNISHMENT, AND REVIEW OF PUNISHMENT FOR FIRST DEGREE MURDER.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Section 4209 of Chapter 42, Title 11, Delaware Code, by striking said section in its entirety and substituting in lieu thereof a new Section 4209 to read as follows:

"§4209. Punishment, procedure for determining punishment, review of punishment, method of punishment for first degree murder

(a) Punishment for First Degree Murder. Any person who is convicted of first degree murder shall be punished by death or by imprisonment for the remainder of his or her natural life without benefit of probation or parole or any other reduction, said penalty to be determined in accordance with the provisions of this section.

(b) Separate Hearing on the Issue of Punishment for First Degree Murder. Upon a conviction of guilt of a defendant of first degree murder, the Superior Court shall conduct a separate hearing to determine whether the defendant should be sentenced to death or to life imprisonment without benefit of probation or parole as authorized by subsection (a) of this section. If the defendant was convicted of first degree murder by a jury, this hearing shall be conducted by the trial judge before that jury as soon as practicable after the return of the verdict of guilty. Alternate jurors shall not be excused from the case prior to submission of the issue of guilt to the trial jury and shall remain separately sequestered until a verdict on guilt is entered. If the verdict of the trial jury is guilty of first degree murder said alternates shall sit as alternate jurors on the issue of punishment. If, for any reason satisfactory to the Court, any member of the trial jury is excused from participation in the hearing on punishment, the trial judge shall replace said member(s) with said alternate(s). If a jury of twelve jurors cannot participate in said hearing a separate and new jury, plus alternates, shall be selected for said hearing in accordance with the applicable rules of the Superior Court and laws of Delaware, unless the defendant(s) and the State

stipulate to the use of a lesser number of said jurors.

If the defendant was convicted of first degree murder by the Court, after a trial and waiver of a jury trial or after a plea of guilty or nolo contendere, this hearing shall be conducted by the trial judge before a jury, plus alternates, empaneled for that purpose and selected in accordance with the applicable rules of the Superior Court and laws of Delaware, unless said jury is waived by the State and the defendant in which case the hearing shall be conducted, if possible, by and before the trial judge who entered the finding of guilty or accepted the plea of guilt or nolo contendere.

(c) Procedure at the Punishment Hearing. The sole determination for the jury or judge at the hearing provided for by this section shall be the penalty to be imposed upon the defendant for the conviction of first degree murder. At the hearing, evidence may be presented as to any matter that the Court deems relevant and admissible to the penalty to be imposed. Said evidence shall include matters relating to any mitigating circumstance and to any aggravating circumstance, including, but not limited to, those aggravating circumstances enumerated in subsection (e) below. Provided that notice in writing of any aggravating circumstances and any mitigating circumstances shall be given to the other side by the party seeking to introduce evidence of such circumstances prior to the punishment hearing, and after the verdict on guilt, unless in the discretion of the Court such advance notice is impracticable. The record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant or the absence of any such prior criminal convictions and pleas shall also be admissible in evidence.

At said hearing the Court shall permit argument by the State, the defendant and/or his counsel, on the punishment to be imposed. Said argument shall consist of opening statements by each, unless waived, opening summation by the State, rebuttal summation by the defendant and/or his counsel and closing summation by the State.

Upon the conclusion of the evidence and arguments the judge shall give the jury appropriate instructions and the jury shall retire to determine the punishment to be imposed.

In the instructions to the jury the Court shall include instructions for it to weigh and consider any mitigating circumstances or aggravating circumstances and any of the statutory aggravating circumstances set forth in subsection (e) of this section which may be raised by the evidence.

The jury shall be instructed to weigh any mitigating factors against the aggravating factors.

(d) Determination of Sentence. A sentence of death shall not be imposed unless the jury or judge, where appropriate, finds:

(1) beyond a reasonable doubt at least one statutory aggravating circumstance; and

(2) unanimously recommends, after weighing all relevant evidence in aggravation or mitigation which bears upon the particular circumstances or details of the commission of the offense and the character and propensities of the offender, that a sentence of death be imposed. Where the jury, or judge when applicable, submits such a finding and recommendation, the Court shall sentence the defendant to death as provided by subsection (f) below. A finding by the jury of a statutory aggravating circumstance, and a consequent recommendation of death, supported by the evidence, shall be binding on the Court.

Refusal or failure of the Court to follow the jury's recommendation for any reason shall be appealable by the State as of right to the Supreme Court within thirty days after imposition of sentence.

If the jury, or judge when applicable, cannot unanimously find that at least one statutory aggravating circumstance exists and cannot unanimously recommend death, the Court shall sentence the defendant to life imprisonment without benefit of probation or parole.

(e) Aggravating Circumstances. In order for a sentence of death to be imposed, the jury, unanimously, or judge when applicable, must find that the evidence established beyond a reasonable doubt the existence of at least one of the following aggravating circumstances which shall apply with equal force to accomplices convicted of such murder:

(I) The murder was committed by a person in, or who has escaped from, the custody of a law enforcement officer or place of confinement.

(2) The murder was committed for the purpose of avoiding or preventing an arrest or for the purpose of effecting an escape from custody.

(3) The murder was committed against any law enforcement officer, corrections employee or fireman, while such victim was engaged in the performance of his official duties.

(4) The murder was committed against a judicial officer, a former judicial officer, Attorney General, former Attorney General, assistant or deputy attorney general or former assistant or deputy attorney general, State Detective or former State Detective, Special Investigator or former Special Investigator, during, or because of, the exercise of his official duty.

(5) The murder was committed against a person who was held or otherwise detained as a shield or hostage.

(6) The murder was committed against a person who was held or detained by the defendant for ransom or reward.

(7) The murder was committed against a person who was a witness to a crime and who was killed for the purpose of preventing his appearance or testimony in any grand jury, criminal or civil proceeding involving such crime.

(8) The defendant paid or was paid by another person or had agreed to pay or be paid by another person or had conspired to pay or be paid by another person for the killing of the victim.

(9) The defendant was previously convicted of another murder or manslaughter or of a felony involving the use of, or threat of, force or violence upon another person.

(10) The murder was committed while the defendant was engaged in the commission of, or attempt to commit, or flight after committing or attempting to commit any degree of rape, arson, kidnapping, robbery, sodomy or burglary.

(11) The defendant's course of conduct resulted in the deaths of two or more persons where the deaths are a probable consequence of the defendant's conduct.

(12) The murder was committed by means of torture, use of an explosive device or poison, or the defendant used such means on the victim prior to murdering him.

(13) The defendant caused or directed another to commit murder or committed murder as an agent or employee of another person.

(14) The murder was outrageously or wantonly vile, horrible or inhuman.

(15) The defendant was under a sentence of life imprisonment, whether for natural life or otherwise, at the time of the commission of the murder.

(16) The murder was committed for pecuniary gain.

(17) The victim was pregnant.

(18) The victim was severely handicapped, severely disabled or elderly.

(19) The victim was defenseless.

In any case where the defendant has been convicted of murder in the first degree in violation of any provision of 11 Del. C. §636 (a)(2)-(7), that conviction shall establish the existence of a statutory aggravating circumstance and

the jury, or judge where appropriate, shall be so instructed. This provision shall not preclude the jury, or judge where applicable, from considering and finding the statutory aggravating circumstances listed in this subsection and any other aggravating circumstances established by the evidence.

(f) Method and Imposition of the Sentence of Death. The imposition of a sentence of death shall be upon such terms and conditions as the trial court may impose in its sentence, including the place, the number of witnesses and conditions of privacy. Punishment of death shall, in all cases, be inflicted by hanging by the neck and the carrying out of such sentence may not be carried out until final review of such sentence is had by the Delaware Supreme Court as provided for in subsection (g) of this section. The Court or the Governor may suspend the execution of the sentence until a later date to be specified, solely to permit completion of the process of judicial review of said conviction.

(g) Automatic Review of the Death Penalty by the Delaware Supreme Court.

(1) Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the recommendation on and imposition of that penalty shall be reviewed on the record by the Delaware Supreme Court. Absent an appeal having been taken by the defendant upon the expiration of thirty (30) days after the sentence of death has been imposed, the Clerk of the Superior Court shall require a complete transcript of the punishment hearing be prepared promptly and within ten (10) days after receipt of that transcript he shall transmit the transcript, together with a notice prepared by him, to the Delaware Supreme Court. The notice shall set forth the title and docket number of the case, the name of the defendant, the name and address of any attorney, a narrative statement of the judgment, the offense, and thb punishment prescribed. The Court shall, if necessary, appoint counsel to respond to the State's positions in the review proceedings.

(2) The Supreme Court shall limit its review under this section to the recommendation on and imposition of the penalty of death and shall determine:

(a) whether, considering the totality of evidence in aggravation and mitigation which bears upon the particular circumstances or details of the offense and the character and propensities of the offender, the death penalty was either arbitrarily or capriciously imposed or recommended, or disproportionate to the penalty recommended or imposed in similar cases arising under this Act;

(b) whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in subsection (e) of this section and, where applicable, 11 Del. C. §636 (a)(2)-(7).

(3) The Supreme Court shall permit the defendant and the State to submit briefs within the time provided by the Court, and permit them to present oral argument to the Court.

(4) With regard to review of the sentence in accordance with this subsection, the Court shall:

(a) affirm the sentence of death, or

(b) in cases where the trial court erroneously rejected the jury's recommendation of that sentence, remand with directions to reinstate the jury's recommendation and to impose the penalty of death;

(c) set aside the sentence of death and remand for correction of any errors in said hearing and for imposition of the appropriate penalty. Said errors shall not affect the determination of guilt and shall not preclude the reimposition of death where appropriately determined after a new hearing on punishment;

(d) set forth its findings as to the reasons for its actions.

(h) Ordinary Review not Affected by this Statute.

Any error in the guilt phase of the trial may be raised as provided by law and rules of Court and shall be in addition to the review of punishment provided by this section."

Section 2. All offenses committed and all prosecutions commenced under the provisions of this Act prior to the effective date of this Act shall remain punishable and shall be prosecuted as previously provided and this Act shall not affect any rights or liabilities accrued, penalties incurred, or proceedings begun prior to the effective date of this Act.

Section 3. If any provision of this Act or the application thereof to any person or circumstance, including any one or more of the enumerated instances which constitute first degree murder is held unconstitutional or otherwise invalid, such unconstitutionality or invalidity shall not affect any other provision or application of this Act, and to that end the provisions of this Act are declared to be severable.

Section 4. This Act shall become effective upon the signature of the Governor.

Approved May 14, 1977.