CHAPTER 423

FORMERLY

SENATE BILL NO. 449

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO THE DEATH PENALTY.

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

Section 1. Amend Section 4209(c)(3)a. of Title 11 of the Delaware Code by striking the phrase "and recommend" as it appears in the first sentence thereof, and by substituting in lieu thereof the phrase "and report".

Section 2. Amend Section 4209(c)(3)b. by striking said subparagraph in its entirety, and by substituting in lieu thereof the following:

"(c)(3)b.1. The jury shall report to the Court its finding on the question of the existence of statutory aggravating circumstances as enumerated in subsection (e) of this section. In order to find the existence of a statutory aggravating circumstance as enumerated in subsection (e) of this section beyond a reasonable doubt, the jury must be unanimous as to the existence of that statutory aggravating circumstance. As to any statutory aggravating circumstances enumerated in subsection (e) of this section which were alleged but for which the jury is not unanimous, the jury shall report the number of the affirmative and negative votes on each such circumstance.

2. The jury shall report to the Court by the number of the affirmative and negative votes its recommendation on the question as to whether, by a preponderance of the evidence, after weighing all relevant evidence in aggravation or mitigation which bear upon the particular circumstances or details of the commission of the offense and the character and propensities of the offender, the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist."

Section 3. Amend Section 4209(d)(1) of Title 11 of the Delaware Code by striking said paragraph in its entirety, and by substituting in lieu thereof the following:

"(d)(1) Determination of sentence. -- (1) If a jury is impaneled, the Court shall discharge that jury after it has reported its findings and recommendation to the Court. A sentence of death shall not be imposed unless the jury, if a jury is impaneled, first finds unanimously and beyond a reasonable doubt the existence of at least one statutory aggravating circumstance as enumerated in subsection (e) of this section. If a jury is not impaneled, a sentence of death shall not be imposed unless the Court finds beyond a reasonable doubt the existence of at least one statutory aggravating circumstance as enumerated in subsection (e) of this section. If a jury has been impaneled and if the existence of at least one statutory aggravating circumstance as enumerated in subsection (e) of this section has been found beyond a reasonable doubt by the jury, the Court, after considering the findings and recommendation of the jury and without hearing or reviewing any additional evidence, shall impose a sentence of death if the Court finds by a preponderance of the evidence, 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 the aggravating circumstances found by the Court to exist outweigh the mitigating circumstances found by the Court to exist. If a jury has not been impaneled and if the existence of at least one statutory aggravating circumstance as enumerated in subsection (e) of this section has been found beyond a reasonable doubt by the Court, it shall impose a sentence of death if the Court finds by a preponderance of the evidence, 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 the aggravating circumstances found by the Court to exist outweigh the mitigating circumstances found by the Court to

exist."

Section 4. Amend Section 4209(e)(1) by striking the phrase "the judge must find that the evidence established beyond a reasonable doubt" as it appears in the first sentence of said paragraph, and by substituting in lieu thereof the following:

"the jury, unanimously, or the judge where applicable, must find that the evidence established beyond a reasonable doubt".

Section 5. Amend Section 4209(g)(2)b. of Title 11 of the Delaware Code by inserting between the phrases "supports the" and "judge's finding" as they appear in said subparagraph the phrase "jury's or the".

Section 6. This Act shall apply to all defendants tried, re-tried, sentenced or re-sentenced after its effective date. This Act shall not apply to any defendant sentenced prior to its effective date unless a new trial or new sentencing hearing is ordered in the case.

Section 7. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Approved July 22, 2002