SENATE BILL NO. 503

INTRODUCED BY J. ELLINGSON, S. GALLUS, S. BARTLETT, S. DOHERTY, L. GROSFIELD,

M. HALLIGAN, J. HURDLE, W. MCNUTT, C. WILLIAMS, D. WYATT

A BILL FOR AN ACT ENTITLED: "AN ACT PROVIDING THAT IF THERE IS A JURY TRIAL IN A CASE IN WHICH THE DEATH PENALTY MAY BE IMPOSED, THE JUDGE MAY IMPOSE THE DEATH PENALTY ONLY IF THE JURY HAS UNANIMOUSLY RECOMMENDED THE IMPOSITION OF THE DEATH PENALTY; AMENDING SECTIONS 46-18-301, 46-18-302, 46-18-304, 46-18-305, 46-18-306, AND 46-18-310, MCA; AND PROVIDING AN APPLICABILITY DATE."

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

Section 1. Section 46-18-301, MCA, is amended to read:

"46-18-301. Hearing on imposition of death penalty. (1) When a defendant is found guilty of or pleads guilty to an offense for which the sentence of death may be imposed, the judge who presided at the trial or before whom the guilty plea was entered shall conduct a separate sentencing hearing to determine the existence or nonexistence of the circumstances set forth in 46-18-303 and 46-18-304 for the purpose of determining the sentence to be imposed. The hearing must be conducted before the judge, and if there was a jury trial, before the judge and jury together.

(2) (a) Subject to subsection (2)(b), if the trial was before the judge without a jury, the sentence must be pronounced and judgment rendered within 120 days after the defendant is found guilty or pleads guilty or within 120 days after the Montana supreme court enters a final decision on appeal. If the trial was before a jury, the sentence must be pronounced and judgment rendered within 120 days after the end of the hearing provided for in this part.

(b) If the trial was before the judge without a jury, the judge may allow not more than one extension of up to 60 days after entering findings of fact that the extension is necessary to prevent undue hardship to a party."

Section 2. Section 46-18-302, MCA, is amended to read:

"46-18-302. Evidence that may be received. In the sentencing hearing, evidence may be presented as to any matter the judge considers relevant to the sentence, including but not limited to the nature and circumstances of the crime; the defendant's character, background, history, and mental and physical condition; the harm caused to the victim and the victim's family as a result of the offense; and any other facts in aggravation or mitigation of the penalty. Any evidence that the judge considers to have probative force may be received regardless of its admissibility under the rules governing admission of evidence at criminal trials. Evidence admitted at the trial relating to aggravating or mitigating circumstances must be considered without reintroducing it at the sentencing proceeding. The state and the defendant or the defendant's counsel must be permitted to present argument for or against a sentence of death."

Section 3. Section 46-18-304, MCA, is amended to read:

"46-18-304. Mitigating circumstances. (1) Mitigating circumstances are any of the following:

(a) The defendant has no significant history of prior criminal activity.

(b) The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(c) The defendant acted under extreme duress or under the substantial domination of another person.

(d) The capacity of the defendant to appreciate the criminality of the defendant's conduct or to conform the defendant's conduct to the requirements of law was substantially impaired.

(e) The victim was a participant in the defendant's conduct or consented to the act.

(f) The defendant was an accomplice in an offense committed by another person, and the defendant's participation was relatively minor.

(g) The defendant, at the time of the commission of the crime, was less than 18 years of age.

(2) The judge and, if there was a jury trial, the jury may consider any other fact that exists in mitigation of the penalty."

Section 4. Section 46-18-305, MCA, is amended to read:

"46-18-305. Effect of aggravating and mitigating circumstances. In determining whether a sentence of death or imprisonment should be imposed, the judge and, if there was a jury trial, the jury shall take into account the aggravating and mitigating circumstances enumerated in 46-18-303 and 46-18-304. If there was a jury trial, the jury may unanimously recommend that the judge impose a sentence of death if the jury finds one or more of the aggravating circumstances and finds that there are no mitigating circumstances sufficiently substantial to call for leniency. The judge may impose a sentence of death only if the judge finds one or more of the aggravating circumstances and finds that there are no mitigating circumstances sufficiently substantial to call for leniency and, if there was a jury trial, the jury unanimously recommended a sentence of death. If the judge does not impose a sentence of death and one of the aggravating circumstances listed in 46-18-303 exists, the judge may impose a sentence of imprisonment for life or for any term authorized by the statute defining the offense."

Section 5. Section 46-18-306, MCA, is amended to read:

"46-18-306. Specific written findings of fact. In each case in which the judge has imposed the death sentence and the jury, if there was a jury trial, recommended that the judge impose the death sentence, the determination of the judge and the recommendation of the jury must be supported by specific written findings of fact as to the existence or nonexistence of each of the circumstances set forth in 46-18-303 and 46-18-304. The written findings of fact must be substantiated by the records of the trial and the sentencing proceeding."

Section 6. Section 46-18-310, MCA, is amended to read:

"46-18-310. Supreme court's determination as to the sentence. (1) The supreme court shall consider the punishment as well as any errors enumerated by way of appeal. With regard to the sentence, the court shall determine:

(a) whether the sentence of death was recommended by the jury, if there was a jury trial, or imposed by the judge under the influence of passion, prejudice, or any other arbitrary factor;

(b) whether the evidence supports the jury's finding, if there was a jury trial, and the judge's finding of the existence or nonexistence of the aggravating or mitigating circumstances enumerated in 46-18-303 and 46-18-304; and

(c) whether the sentence of death is excessive or disproportionate to the penalty imposed or recommended and imposed in other cases in which a sentencing hearing was held pursuant to 46-18-301, whether the sentence imposed or recommended and imposed was death or a sentence other than death, considering both the crime and the defendant. The court shall include in its decision a reference to those other cases it took into consideration.

(2) The supreme court shall uphold the jury's findings of fact, if there was a jury trial, and the judge's findings of fact issued pursuant to 46-18-306 unless those findings are clearly erroneous. The supreme court may not substitute its judgment for that of the jury, if there was a jury trial, or of the judge in assessing the credibility of witnesses; drawing inferences from testimonial, physical, documentary, or other evidence; or resolving conflicts in the evidence presented at the sentencing hearing or considered by the jury, if there was a jury trial, or by the sentencing judge."

NEW SECTION. Section 7. Applicability. [This act] applies to criminal offenses committed after [the effective date of this act].

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