§ 6-2-102 — Presentence hearing for murder in the first degree; mitigating and aggravating circumstances; effect of error in hearing

(a) Upon conviction of a person for murder in the first
degree in a case in which the state seeks the death penalty, the
judge shall conduct a separate sentencing hearing to determine
whether the defendant should be sentenced to death, life
imprisonment without parole or life imprisonment. The hearing
shall be conducted before the judge alone if:
(i) The defendant was convicted by a judge sitting
without a jury;
(ii) The defendant has pled guilty; or
(iii) The defendant waives a jury with respect to the
sentence.
(b) In all other cases the sentencing hearing shall be
conducted before the jury which determined the defendant's guilt
or, if the judge for good cause shown discharges that jury, with
a new jury impaneled for that purpose. The jury shall be
instructed that if the jury does not unanimously determine that
the defendant should be sentenced to death, then the defendant
shall be sentenced to life imprisonment without parole or life
imprisonment.
(c) The judge or jury shall hear evidence as to any matter
that the court deems relevant to a determination of the
sentence, and shall include matters relating to any of the
aggravating or mitigating circumstances enumerated in
subsections (h) and (j) of this section. Any evidence which the
court deems to have probative value may be received regardless
of its admissibility under the exclusionary rules of evidence,
provided the defendant is accorded a fair opportunity to rebut
any hearsay statements, and provided further that only such
evidence in aggravation as the state has made known to the
defendant or his counsel prior to his trial shall be admissible.
(d) Upon conclusion of the evidence and arguments the
judge shall give the jury appropriate instructions, including
instructions as to any aggravating or mitigating circumstances,
as defined in subsections (h) and (j) of this section, or
proceed as provided by paragraph (iii) of this subsection:
(i) After hearing all the evidence, the jury shall
deliberate and render a sentence based upon the following:
(A) Whether one (1) or more aggravating
circumstances exist beyond a reasonable doubt as set forth in
subsection (h) of this section;
(B) Whether, by a preponderance of the evidence,
mitigating circumstances exist as set forth in subsection (j) of
this section; and
(C) The mere number of aggravating or mitigating
circumstances found shall have no independent significance.
(ii) The jury shall consider aggravating and
mitigating circumstances unanimously found to exist, and each
individual juror may also consider any mitigating circumstances
found by that juror to exist. If the jury reports unanimous
agreement to impose the sentence of death, the court shall
discharge the jury and shall impose the sentence of death. If
the jury is unable to reach a unanimous verdict imposing the
sentence of death within a reasonable time, the court shall
instruct the jury to determine by a unanimous vote whether the
penalty of life imprisonment without parole shall be imposed. If
the jury is unable to reach a unanimous verdict imposing the
penalty of life imprisonment without parole within a reasonable
time, the court shall discharge the jury and impose the sentence
of life imprisonment;
(iii) In nonjury cases, the judge shall determine if
any aggravating or mitigating circumstances exist and impose
sentence within the limits prescribed by law, based upon the
considerations enumerated in subparagraphs (A), (B) and (C) of
paragraph (i) of this subsection.
(e) The death penalty shall not be imposed unless at least
one (1) of the aggravating circumstances set forth in subsection
(h) of this section is found. In nonjury cases the judge shall
make such designation. The jury, if its verdict is a sentence of
death, shall designate in writing signed by the foreman of the
jury:
(i) The aggravating circumstance or circumstances
which it unanimously found beyond a reasonable doubt;
(ii) The mitigating circumstance or circumstances
which it unanimously found by a preponderance of the evidence;
and
(iii) The mitigating circumstance or circumstances
which any individual juror found by a preponderance of the
evidence.
(f) Repealed By Laws 2001, Ch. 96, § 3.
(g) If the trial court is reversed on appeal because of
error only in the presentence hearing, the new trial which may
be ordered shall apply only to the issue of punishment.
(h) Aggravating circumstances are limited to the
following:
(i) The murder was committed by a person:
(A) Confined in a jail or correctional facility;
(B) On parole or on probation for a felony;
(C) After escaping detention or incarceration;
or
(D) Released on bail pending appeal of his
conviction.
(ii) The defendant was previously convicted of
another murder in the first degree or a felony involving the use
or threat of violence to the person;
(iii) The defendant knowingly created a great risk of
death to two (2) or more persons;
(iv) The murder was committed while the defendant was
engaged, or was an accomplice, in the commission of, or an
attempt to commit, or flight after committing or attempting to
commit, any aircraft piracy or the unlawful throwing, placing or
discharging of a destructive device or bomb;
(v) The murder was committed for the purpose of
avoiding or preventing a lawful arrest or effecting an escape
from custody;
(vi) The murder was committed for compensation, the
collection of insurance benefits or other similar pecuniary
gain;
(vii) The murder was especially atrocious or cruel,
being unnecessarily torturous to the victim;
(viii) The murder of a judicial officer, former
judicial officer, district attorney, former district attorney,
defending attorney, peace officer, juror or witness, during or
because of the exercise of his official duty or because of the
victim's former or present official status;
(ix) The defendant knew or reasonably should have
known the victim was less than seventeen (17) years of age or
older than sixty-five (65) years of age;
(x) The defendant knew or reasonably should have
known the victim was especially vulnerable due to significant
mental or physical disability;
(xi) The defendant poses a substantial and continuing
threat of future dangerousness or is likely to commit continued
acts of criminal violence;
(xii) The defendant killed another human being
purposely and with premeditated malice and while engaged in, or
as an accomplice in the commission of, or an attempt to commit,
or flight after committing or attempting to commit, any robbery,
sexual assault, arson, burglary, kidnapping or abuse of a child
under the age of sixteen (16) years.
(j) Mitigating circumstances shall include the following:
(i) The defendant has no significant history of prior
criminal activity;
(ii) The murder was committed while the defendant was
under the influence of extreme mental or emotional disturbance;
(iii) The victim was a participant in the defendant's
conduct or consented to the act;
(iv) The defendant was an accomplice in a murder
committed by another person and his participation in the
homicidal act was relatively minor;
(v) The defendant acted under extreme duress or under
the substantial domination of another person;
(vi) The capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of law was substantially impaired;
(vii) The age of the defendant at the time of the
crime;
(viii) Any other fact or circumstance of the
defendant's character or prior record or matter surrounding his
offense which serves to mitigate his culpability.