§ 35-50-2-9 — Death penalty sentencing procedure

Indiana § 35-50-2-9

• Jurisdiction: Indiana
• Art. 50: SENTENCES
• Ch. 2: Death Sentence and Sentences for Felonies and Habitual

Text

(a) The state may seek either a death sentence
or a sentence of life imprisonment without parole for murder by
alleging, on a page separate from the rest of the charging instrument,
the existence of at least one (1) of the aggravating circumstances listed
in subsection (b). In the sentencing hearing after a person is convicted
of murder, the state must prove beyond a reasonable doubt the
existence of at least one (1) of the aggravating circumstances alleged.
However, the state may not proceed against a defendant under this
section if a court determines at a pretrial hearing under IC 35-36-9 that
the defendant is an individual with an intellectual disability.
(b) The aggravating circumstances are as follows:
(1) The defendant committed the murder by intentionally killing
the victim while committing or attempting to commit any of the
following:
(A) Arson (IC 35-43-1-1).
(B) Burglary (IC 35-43-2-1).
(C) Child molesting (IC 35-42-4-3).
(D) Criminal deviate conduct (IC 35-42-4-2) (before its repeal).
(E) Kidnapping (IC 35-42-3-2).
(F) Rape (IC 35-42-4-1).
(G) Robbery (IC 35-42-5-1).
(H) Carjacking (IC 35-42-5-2) (before its repeal).
(I) Criminal organization activity (IC 35-45-9-3).
(J) Dealing in cocaine or a narcotic drug (IC 35-48-4-1).
(K) Criminal confinement (IC 35-42-3-3).
(2) The defendant committed the murder by the unlawful
detonation of an explosive with intent to injure a person or
damage property.
(3) The defendant committed the murder by lying in wait.
(4) The defendant who committed the murder was hired to kill.
(5) The defendant committed the murder by hiring another person
to kill.
(6) The victim of the murder was a corrections employee,
probation officer, parole officer, community corrections worker,
home detention officer, fireman, judge, or law enforcement
officer, and either:
(A) the victim was acting in the course of duty; or
(B) the murder was motivated by an act the victim performed
while acting in the course of duty.
(7) The defendant has been convicted of another murder.
(8) The defendant has committed another murder, at any time,
regardless of whether the defendant has been convicted of that
other murder.
(9) The defendant was:
(A) under the custody of the department of correction;
(B) under the custody of a county sheriff;
(C) on probation after receiving a sentence for the commission
of a felony; or
(D) on parole;
at the time the murder was committed.
(10) The defendant dismembered the victim.
(11) The defendant:
(A) burned, mutilated, or tortured the victim; or
(B) decapitated or attempted to decapitate the victim;
while the victim was alive.
(12) The victim of the murder was less than twelve (12) years of
age.
(13) The victim was a victim of any of the following offenses for
which the defendant was convicted:
(A) A battery offense included in IC 35-42-2 committed before
July 1, 2014, as a Class D felony or as a Class C felony, or a
battery offense included in IC 35-42-2 committed after June 30,
2014, as a Level 6 felony, a Level 5 felony, a Level 4 felony, or
a Level 3 felony.
(B) Kidnapping (IC 35-42-3-2).
(C) Criminal confinement (IC 35-42-3-3).
(D) A sex crime under IC 35-42-4.
(14) The victim of the murder was listed by the state or known by
the defendant to be a witness against the defendant and the
defendant committed the murder with the intent to prevent the
person from testifying.
(15) The defendant committed the murder by intentionally
discharging a firearm (as defined in IC 35-47-1-5):
(A) into an inhabited dwelling; or
(B) from a vehicle.
(16) The victim of the murder was pregnant and the murder
resulted in the intentional killing of a fetus that has attained
viability (as defined in IC 16-18-2-365).
(17) The defendant knowingly or intentionally:
(A) committed the murder:
(i) in a building primarily used for an educational purpose;
(ii) on school property; and
(iii) when students are present; or
(B) committed the murder:
(i) in a building or other structure owned or rented by a state
educational institution or any other public or private
postsecondary educational institution and primarily used for
an educational purpose; and
(ii) at a time when classes are in session.
(18) The murder is committed:
(A) in a building that is primarily used for religious worship;
and
(B) at a time when persons are present for religious worship or
education.
(c) The mitigating circumstances that may be considered under this
section are as follows:
(1) The defendant has no significant history of prior criminal
conduct.
(2) The defendant was under the influence of extreme mental or
emotional disturbance when the murder was committed.
(3) The victim was a participant in or consented to the defendant's
conduct.
(4) The defendant was an accomplice in a murder committed by
another person, and the defendant's participation was relatively
minor.
(5) The defendant acted under the substantial domination of
another person.
(6) The defendant's capacity to appreciate the criminality of the
defendant's conduct or to conform that conduct to the
requirements of law was substantially impaired as a result of
mental disease or defect or of intoxication.
(7) The defendant was less than eighteen (18) years of age at the
time the murder was committed.
(8) Any other circumstances appropriate for consideration.
(d) If the defendant was convicted of murder in a jury trial, the jury
shall reconvene for the sentencing hearing. If the trial was to the court,
or the judgment was entered on a guilty plea, the court alone shall
conduct the sentencing hearing. The jury or the court may consider all
the evidence introduced at the trial stage of the proceedings, together
with new evidence presented at the sentencing hearing. The court shall
instruct the jury concerning the statutory penalties for murder and any
other offenses for which the defendant was convicted, the potential for
consecutive or concurrent sentencing, and the availability of
educational credit, good time credit, and clemency. The court shall
instruct the jury that, in order for the jury to recommend to the court
that the death penalty or life imprisonment without parole should be
imposed, the jury must find at least one (1) aggravating circumstance
beyond a reasonable doubt as described in subsection (l) and shall
provide a special verdict form for each aggravating circumstance
alleged. The defendant may present any additional evidence relevant
to:
(1) the aggravating circumstances alleged; or
(2) any of the mitigating circumstances listed in subsection (c).
(e) For a defendant sentenced after June 30, 2002, except as
provided by IC 35-36-9, if the hearing is by jury, the jury shall
recommend to the court whether the death penalty or life imprisonment
without parole, or neither, should be imposed. The jury may
recommend:
(1) the death penalty; or
(2) life imprisonment without parole;
only if it makes the findings described in subsection (l). If the jury
reaches a sentencing recommendation, the court shall sentence the
defendant accordingly. After a court pronounces sentence, a
representative of the victim's family and friends may present a
statement regarding the impact of the crime on family and friends. The
impact statement may be submitted in writing or given orally by the
representative. The statement shall be given in the presence of the
defendant.
(f) If a jury is unable to agree on a sentence recommendation after
reasonable deliberations, the court shall discharge the jury and proceed
as if the hearing had been to the court alone.
(g) If the hearing is to the court alone, except as provided by IC 35-36-9, the court shall:
(1) sentence the defendant to death; or
(2) impose a term of life imprisonment without parole;
only if it makes the findings described in subsection (l).
(h) If a court sentences a defendant to death, the court shall order
the defendant's execution to be carried out not later than one (1) year
and one (1) day after the date the defendant was convicted. The
supreme court has exclusive jurisdiction to stay the execution of a
death sentence. If the supreme court stays the execution of a death
sentence, the supreme court shall order a new date for the defendant's
execution.
(i) If a person sentenced to death by a court files a petition for
post-conviction relief, the court, not later than ninety (90) days after the
date the petition is filed, shall set a date to hold a hearing to consider
the petition. If a court does not, within the ninety (90) day period, set
the date to hold the hearing to consider the petition, the court's failure
to set the hearing date is not a basis for additional post-conviction
relief. The attorney general shall answer the petition for post-conviction
relief on behalf of the state. At the request of the attorney general, a
prosecuting attorney shall assist the attorney general. The court shall
enter written findings of fact and conclusions of law concerning the
petition not later than ninety (90) days after the date the hearing
concludes. However, if the court determines that the petition is without
merit, the court may dismiss the petition within ninety (90) days
without conducting a hearing under this subsection.
(j) A death sentence is subject to automatic review by the supreme
court. The review, which shall be heard under rules adopted by the
supreme court, shall be given priority over all other cases. The supreme
court's review must take into consideration all claims that the:
(1) conviction or sentence was in violation of the:
(A) Constitution of the State of Indiana; or
(B) Constitution of the United States;
(2) sentencing court was without jurisdiction to impose a
sentence; and
(3) sentence:
(A) exceeds the maximum sentence authorized by law; or
(B) is otherwise erroneous.
If the supreme court cannot complete its review by the date set by the
sentencing court for the defendant's execution under subsection (h), the
supreme court shall stay the execution of the death sentence and set a
new date to carry out the defendant's execution.
(k) A person who has been sentenced to death and who has
completed state post-conviction review proceedings may file a written
petition with the supreme court seeking to present new evidence
challenging the person's guilt or the appropriateness of the death
sentence if the person serves notice on the attorney general. The
supreme court shall determine, with or without a hearing, whether the
person has presented previously undiscovered evidence that
undermines confidence in the conviction or the death sentence. If
necessary, the supreme court may remand the case to the trial court for
an evidentiary hearing to consider the new evidence and its effect on
the person's conviction and death sentence. The supreme court may not
make a determination in the person's favor nor make a decision to
remand the case to the trial court for an evidentiary hearing without
first providing the attorney general with an opportunity to be heard on
the matter.
(l) Before a sentence may be imposed under this section, the jury,
in a proceeding under subsection (e), or the court, in a proceeding
under subsection (g), must find that:
(1) the state has proved beyond a reasonable doubt that at least
one (1) of the aggravating circumstances listed in subsection (b)
exists; and
(2) any mitigating circumstances that exist are outweighed by the
aggravating circumstance or circumstances.
As added by Acts 1977, P.L.340, SEC.122. Amended by
P.L.336-1983, SEC.1; P.L.212-1986, SEC.1; P.L.332-1987, SEC.2;
P.L.320-1987, SEC.2; P.L.296-1989, SEC.2; P.L.138-1989, SEC.6;
P.L.1-1990, SEC.354; P.L.230-1993, SEC.5; P.L.250-1993, SEC.2;
P.L.158-1994, SEC.7; P.L.306-1995, SEC.1; P.L.228-1996, SEC.1;
P.L.216-1996, SEC.25; P.L.261-1997, SEC.7; P.L.80-2002, SEC.1;
P.L.117-2002, SEC.2; P.L.1-2003, SEC.97; P.L.147-2003, SEC.1;
P.L.1-2006, SEC.550; P.L.99-2007, SEC.213; P.L.158-2013, SEC.663;
P.L.214-2013, SEC.45; P.L.168-2014, SEC.119; P.L.74-2015, SEC.29;
P.L.117-2015, SEC.57; P.L.198-2015, SEC.1; P.L.187-2015, SEC.50;
P.L.25-2016, SEC.28; P.L.65-2016, SEC.40.