Citations Affected: IC 35-50-2-9 .
Synopsis: Newly discovered evidence. Provides that, even after a
defendant's postconviction proceedings have become final, the supreme
court shall consider previously undisclosed exculpatory evidence as
part of its continuing automatic review of capital cases.
Effective: July 1, 2002.
January 10, 2002, read first time and referred to Committee on Judiciary.
A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2002]: Sec. 9. (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
that the defendant is a mentally retarded individual.
(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).
consecutive or concurrent sentencing, and the availability of good time
credit and clemency. 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) 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
(k). (l). The court
shall make the final determination of the sentence, after considering the
jury's recommendation, and the sentence shall be based on the same
standards that the jury was required to consider. The court is not bound
by the jury's recommendation. In making the final determination of the
sentence after receiving the jury's recommendation, the court may
receive evidence of the crime's impact on members of the victim's
(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
(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 continuing 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
(A) exceeds the maximum sentence authorized by law; or
(B) is otherwise erroneous.
In addition, the supreme court shall consider any claim under subsection (k) that a person's conviction or sentence should be set aside due to the existence of previously undisclosed evidence. 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) If a person sentenced to death, at any time after the proceedings on the person's petition for post-conviction relief become final, makes a prima facie showing to the supreme court that:
(1) previously undisclosed evidence exists; and
(2) there is a reasonable likelihood that this evidence would have affected the person's conviction or sentence if disclosed at trial;
the supreme court shall consider this undisclosed evidence as a part of its continuing automatic review of capital cases. The supreme court's review of this evidence shall be conducted under rules adopted by the supreme court.
(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)
(2) any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances.