(1)Except as provided in section 19-2515A, Idaho Code, a person convicted of murder in the first degree or aggravated lewd conduct with a minor child twelve (12) years of age or under shall be liable for the imposition of the penalty of death if such person killed, intended a killing, or acted with reckless indifference to human life, irrespective of whether such person directly committed the acts that caused death or the aggravated lewd conduct.
(2)Where a person is sentenced to serve a term in the penitentiary, after conviction of a crime which falls within the provisions of section 20-1005, Idaho Code, except in cases where the court retains jurisdiction, the comments and arguments of the counsel for the state and the defendant relative to the sentencing and the comments of the judge
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(1) Except as provided in section 19-2515A, Idaho Code, a person convicted of murder in the first degree or aggravated lewd conduct with a minor child twelve (12) years of age or under shall be liable for the imposition of the penalty of death if such person killed, intended a killing, or acted with reckless indifference to human life, irrespective of whether such person directly committed the acts that caused death or the aggravated lewd conduct.
(2) Where a person is sentenced to serve a term in the penitentiary, after conviction of a crime which falls within the provisions of section 20-1005, Idaho Code, except in cases where the court retains jurisdiction, the comments and arguments of the counsel for the state and the defendant relative to the sentencing and the comments of the judge relative to the sentencing shall be recorded. If the comments are recorded electronically, they need not be transcribed. Otherwise, they shall be transcribed by the court reporter.
(3) Where a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless:
(a) A notice of intent to seek the death penalty was filed and served as provided in section 18-4004A, Idaho Code; and
(b) The jury, or the court if a jury is waived, finds beyond a reasonable doubt at least one (1) statutory aggravating circumstance for murder and at least three (3) statutory aggravating circumstances, as listed in subsection (10) of this section, for aggravated lewd conduct with a minor child twelve (12) years of age or under. Where a statutory aggravating circumstance is found, the defendant shall be sentenced to death unless mitigating circumstances which may be presented are found to be sufficiently compelling that the death penalty would be unjust. The jury shall not direct imposition of a sentence of death unless it unanimously finds at least one (1) statutory aggravating circumstance and unanimously determines that the penalty of death should be imposed.
(4) Notwithstanding any court rule to the contrary, when a defendant is adjudicated guilty of murder in the first degree or aggravated lewd conduct with a minor child twelve (12) years of age or under, whether by acceptance of a plea of guilty, by verdict of a jury, or by decision of the trial court sitting without a jury, no presentence investigation shall be conducted; provided however, that if a special sentencing proceeding is not held or if a special sentencing proceeding is held but no statutory aggravating circumstance has been proven beyond a reasonable doubt, the court may order that a presentence investigation be conducted.
(5)(a) If a person is adjudicated guilty of murder in the first degree or aggravated lewd conduct with a minor child twelve (12) years of age or under, whether by acceptance of a plea of guilty, by verdict of a jury, or by decision of the trial court sitting without a jury, and a notice of intent to seek the death penalty was filed and served as provided in section 18-4004A, Idaho Code, a special sentencing proceeding shall be held promptly for the purpose of hearing all relevant evidence and arguments of counsel in aggravation and mitigation of the offense. Information concerning the victim and the impact that the death or aggravated lewd conduct of the victim has had on the victim’s family is relevant and admissible. Such information shall be designed to demonstrate the victim’s uniqueness as an individual human being and the resultant loss to the community or impact caused by the victim’s death or lewd conduct of the victim. Characterizations and opinions about the crime, the defendant and the appropriate sentence shall not be permitted as part of any victim impact information. The special sentencing proceeding shall be conducted before a jury unless a jury is waived by the defendant with the consent of the prosecuting attorney.
(b) If the defendant’s guilt was determined by a jury verdict, the same jury shall hear the special sentencing proceeding; provided however, that if it is impracticable to reconvene the same jury to hear the special sentencing proceeding due to an insufficient number of jurors, the trial court may dismiss that jury and convene a new jury of twelve (12) persons, plus alternate jurors as the trial court deems necessary pursuant to section 19-1904, Idaho Code.
(c) If the defendant’s guilt was determined by a plea of guilty or by a decision of the trial court sitting without a jury, or if a retrial of the special sentencing proceeding is necessary for any reason including, but not limited to, a mistrial in a previous special sentencing proceeding or as a consequence of a remand from an appellate court, the trial court shall impanel a jury of twelve (12) persons, plus alternate jurors as the trial court deems necessary pursuant to section 19-1904, Idaho Code, unless such jury is waived.
(d) If a special sentencing proceeding is conducted before a newly impaneled jury pursuant to the provisions of subsection (5)(b) or (5)(c) of this section, the state and the defense may present evidence to inform the jury of the nature and circumstances of the murder or aggravated lewd conduct for which the defendant was convicted. The newly impaneled jury shall be instructed that the defendant has previously been found guilty of first-degree murder or aggravated lewd conduct with a minor child twelve (12) years of age or under and that the jury’s purpose is limited to making findings relevant for sentencing.
(6) At the special sentencing proceeding, the state and the defendant shall be entitled to present all relevant evidence in aggravation and mitigation. Disclosure of evidence to be relied on in the sentencing proceeding shall be made in accordance with Idaho criminal rule 16. Evidence admitted at trial shall be considered and need not be repeated at the sentencing hearing.
(7) The jury shall be informed as follows:
(a) If the jury finds that a statutory aggravating circumstance exists and no mitigating circumstances exist which would make the imposition of the death penalty unjust, the defendant will be sentenced to death by the court.
(b) If the jury finds the existence of a statutory aggravating circumstance but finds that the existence of mitigating circumstances makes the imposition of the death penalty unjust or the jury cannot unanimously agree on whether the existence of mitigating circumstances makes the imposition of the death penalty unjust, the defendant will be sentenced to a term of life imprisonment without the possibility of parole; and
(c) If the jury does not find the existence of a statutory aggravating circumstance or if the jury cannot unanimously agree on the existence of a statutory aggravating circumstance, the defendant will be sentenced by the court to a term of life imprisonment with a fixed term of not less than ten (10) years for first-degree murder or thirty (30) years for aggravated lewd conduct with a minor child twelve (12) years of age or under.
(8) Upon the conclusion of the evidence and arguments in mitigation and aggravation:
(a) With regard to each statutory aggravating circumstance alleged by the state, the jury shall return a special verdict stating:
(i) Whether the statutory aggravating circumstance has been proven beyond a reasonable doubt; and
(ii) If the statutory aggravating circumstance has been proven beyond a reasonable doubt, whether all mitigating circumstances, when weighed against the aggravating circumstance, are sufficiently compelling that the death penalty would be unjust.
(b) If a jury has been waived, the court shall:
(i) Make written findings setting forth any statutory aggravating circumstance found beyond a reasonable doubt;
(ii) Set forth in writing any mitigating circumstances considered; and
(iii) Upon weighing all mitigating circumstances against each statutory aggravating circumstance separately, determine whether mitigating circumstances are found to be sufficiently compelling that the death penalty would be unjust and detail in writing its reasons for so finding.
(9) The following are statutory aggravating circumstances, at least one (1) of which must be found to exist beyond a reasonable doubt before a sentence of death can be imposed for murder in the first degree:
(a) The defendant was previously convicted of another murder.
(b) At the time the murder was committed the defendant also committed another murder.
(c) The defendant knowingly created a great risk of death to many persons.
(d) The murder was committed for remuneration or the promise of remuneration or the defendant employed another to commit the murder for remuneration or the promise of remuneration.
(e) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.
(f) By the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life.
(g) The murder was committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, kidnapping or mayhem and the defendant killed, intended a killing, or acted with reckless indifference to human life.
(h) The murder was committed in the perpetration of, or attempt to perpetrate, lewd and lascivious conduct with a minor, sexual abuse of a child under sixteen (16) years of age, ritualized abuse of a child, sexual exploitation of a child, sexual battery of a minor child sixteen (16) or seventeen (17) years of age, or forcible sexual penetration by use of a foreign object, and the defendant killed, intended a killing, or acted with reckless indifference to human life.
(i) The defendant, by his conduct, whether such conduct was before, during or after the commission of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society.
(j) The murder was committed against a former or present peace officer, executive officer, officer of the court, judicial officer or prosecuting attorney because of the exercise of official duty or because of the victim’s former or present official status.
(k) The murder was committed against a witness or potential witness in a criminal or civil legal proceeding because of such proceeding.
(10) The following are statutory aggravating circumstances, at least three (3) of which must be found to have existed during the commission of or to accomplish the lewd conduct beyond a reasonable doubt before a sentence of death can be imposed for aggravated lewd conduct with a minor child twelve (12) years of age or under, as provided in section 18-1508C, Idaho Code:
(a) The defendant engaged in three (3) or more incidents of lewd conduct of a child involving the same victim on separate occasions;
(b) The defendant penetrated, however slight, the oral, anal, or vaginal opening of the victim with a penis;
(c) The victim was kidnapped as defined in section 18-4501, Idaho Code;
(d) The defendant committed the crime of human trafficking, as defined in section 18-8602, Idaho Code, against the victim;
(e) The defendant has been found guilty of or has plead guilty to any offense requiring sex offender registration as set forth in section 18-8304, Idaho Code;
(f) The defendant was, at the time of the offense, in a position of trust, or had supervisory or disciplinary power over the victim by virtue of the defendant’s legal, professional, or occupational status and used the position of trust or power to accomplish the lewd conduct; or the defendant had, at the time of the offense, parental or custodial authority over the victim and used the authority to accomplish the lewd conduct;
(g) The defendant tortured the victim by the intentional infliction of extreme and prolonged pain with the intent to cause suffering or by the infliction of extreme and prolonged acts of brutality irrespective of proof of intent to cause suffering;
(h) The defendant used force or coercion;
(i) The defendant was armed with a weapon or any article used or fashioned in a manner to lead the victim reasonably to believe it to be a weapon;
(j) The defendant caused great bodily injury, as defined in section 19-2520B, Idaho Code, or mutilation to the victim;
(k) The defendant’s commission of the offense involved more than one (1) victim;
(l) The defendant’s commission of the offense involved more than one (1) perpetrator;
(m) The victim contracted a sexually transmitted disease as a result of the lewd conduct;
(n) The victim was impregnated as a result of the lewd conduct;
(o) The defendant willfully and unlawfully choked or attempted to strangle the victim during the commission of the lewd conduct;
(p) The defendant provided alcohol, drugs, or other intoxicating substances to the victim; or
(q) The defendant knew or had reason to know that the victim had a developmental disability as defined in section 66-402 (5), Idaho Code.