January 9, 2003, read first time and referred to Committee on Criminal, Civil and Public
First Regular Session 113th General Assembly (2003)
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SENATE BILL No. 235
A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
Be it enacted by the General Assembly of the State of Indiana:
, AS AMENDED BY P.L.117-2002,
SECTION 2, IS AMENDED AND CORRECTED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2003]: 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
(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).
(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).
(I) Criminal gang activity (IC 35-45-9-3).
(J) Dealing in cocaine or a narcotic drug (IC 35-48-4-1).
(2) The defendant committed the murder by the unlawful
detonation of an explosive with intent to injure person or damage
(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
(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
(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 burned, mutilated, or tortured the victim while
the victim was alive.
(12) The victim of the murder was less than twelve (12) years of
(13) The victim was a victim of any of the following offenses for
which the defendant was convicted:
(A) Battery as a Class D felony or as a Class C felony under
(B) Kidnapping (IC 35-42-3-2).
(C) Criminal confinement (IC 35-42-3-3).
(D) A sex crime under
(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
(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
(17) At the time of the murder, the defendant was the subject
of any of the following orders:
(A) A foreign protection order or order for protection that
ordered the defendant to refrain from abusing, harassing,
or disturbing the peace of the victim.
(B) A temporary restraining order that ordered the
defendant to refrain from abusing, harassing, or disturbing
the peace of the victim.
(C) A judicial order that ordered the defendant to refrain
from direct or indirect contact with the victim.
(c) The mitigating circumstances that may be considered under this
section are as follows:
(1) The defendant has no significant history of prior criminal
(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
(4) The defendant was an accomplice in a murder committed by
another person, and the defendant's participation was relatively
(5) The defendant acted under the substantial domination of
(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 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 (k) and shall provide a special verdict form for
each aggravating circumstance alleged. The:
defendant may present any additional evidence relevant to:
the aggravating circumstances alleged; or
any of the mitigating circumstances listed in subsection
(2) state may present additional evidence of the defendant's
history of delinquency or criminality.
(e) For a defendant sentenced after June 30, 2002, except as
, 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
(1) the death penalty; or
(2) life imprisonment without parole;
only if it makes the findings described in subsection (k). 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
(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
, 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 (k).
(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
(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
(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) 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.