FIRST REGULAR SESSION
SENATE BILL NO. 39
90TH GENERAL ASSEMBLY
INTRODUCED BY SENATOR CLAY.
Pre-filed December 1, 1998, and 1,000 copies ordered printed.
TERRY L. SPIELER, Secretary.
S0500.01I
AN ACT
To repeal sections 565.020 and 565.030, RSMo 1994, relating to certain crimes, and to enact in lieu thereof two new sections relating to the same subject, with penalty provisions.
Section A. Sections 565.020 and 565.030, RSMo 1994, are repealed and two new sections enacted in lieu thereof, to be known as sections 565.020 and 565.030, to read as follows:
565.020. 1. A person commits the crime of murder in the first degree if he knowingly causes the death of another person after deliberation upon the matter.
2. Murder in the first degree is a class A felony, and the punishment shall be either death or imprisonment for life without eligibility for probation or parole, or release except by act of the governor; except that, if a person has not reached his sixteenth birthday at the time of the commission of the crime or the court determines that prior to the commission of the crime the person was mentally retarded as defined in subsection 3 of this section, the punishment shall be imprisonment for life without eligibility for probation or parole, or release except by act of the governor.
3. For purposes of this section, a person shall be considered mentally retarded if the court determines that the person meets each of the following standards:
(1) Significantly subaverage intellectual functioning as determined by intelligence tests, special education records and/or other measures of intelligence accepted by mental retardation professionals which places the person in the bottom three percent of the general population in intelligence. An intelligence quotient of seventy or below on a reliably administered intelligence quotient test shall be prima facie evidence that the person meets the standard of this subdivision;
(2) Significant impairments in adaptive behavior which have a demonstrable handicapping effect on the person's functioning in society; and
(3) The retardation manifests itself before age eighteen.
565.030. 1. Where murder in the first degree is charged but not submitted or where the state waives the death penalty, the submission to the trier and all subsequent proceedings in the case shall proceed as in all other criminal cases with a single stage trial in which guilt and punishment are submitted together.
2. Where murder in the first degree is submitted to the trier without a waiver of the death penalty, the trial shall proceed in two stages before the same trier. At the first stage the trier shall decide only whether the defendant is guilty or not guilty of any submitted offense. The issue of punishment shall not be submitted to the trier at the first stage. If an offense is charged other than murder in the first degree in a count together with a count of murder in the first degree, the trial judge shall assess punishment on any such offense according to law, after the defendant is found guilty of such offense and after he finds the defendant to be a prior offender pursuant to chapter 558, RSMo.
3. If murder in the first degree is submitted and the death penalty was not waived but the trier finds the defendant guilty of a lesser homicide, a second stage of the trial shall proceed at which the only issue shall be the punishment to be assessed and declared. No further evidence shall be received. If the trier is a jury it shall be instructed on the law. The attorneys may then argue as in other criminal cases the issue of punishment, after which the trier shall assess and declare the punishment as in all other criminal cases.
4. If the trier at the first stage of a trial where the death penalty was not waived finds the defendant guilty of murder in the first degree, a second stage of the trial shall proceed at which the only issue shall be the punishment to be assessed and declared. Evidence in aggravation and mitigation of punishment, including but not limited to evidence supporting any of the aggravating or mitigating circumstances listed in subsection 2 or 3 of section 565.032, may be presented subject to the rules of evidence at criminal trials. Such evidence may include, within the discretion of the court, evidence concerning the murder victim and the impact of the crime upon the family of the victim and others. Rebuttal and surrebuttal evidence may be presented. The state shall be the first to proceed. If the trier is a jury it shall be instructed on the law. The attorneys may then argue the issue of punishment to the jury, and the state shall have the right to open and close the argument. The trier shall assess and declare the punishment at life imprisonment without eligibility for probation, parole, or release except by act of the governor:
(1) If the trier does not find beyond a reasonable doubt at least one of the statutory aggravating circumstances set out in subsection 2 of section 565.032; or
(2) If the trier does not find that the evidence in aggravation of punishment, including but not limited to evidence supporting the statutory aggravating circumstances listed in subsection 2 of section 565.032, warrants imposing the death sentence; or
(3) If the trier concludes that there is evidence in mitigation of punishment, including but not limited to evidence supporting the statutory mitigating circumstances listed in subsection 3 of section 565.032, which is sufficient to outweigh the evidence in aggravation of punishment found by the trier; or
(4) If the trier decides under all of the circumstances not to assess and declare the punishment at death.
If the trier is a jury it shall be so instructed. If the trier assesses and declares the punishment at death it shall, in its findings or verdict, set out in writing the aggravating circumstance or circumstances listed in subsection 2 of section 565.032 which it found beyond a reasonable doubt. If the trier is a jury it shall be instructed before the case is submitted that if it is unable to decide or agree upon the punishment the court shall assess and declare the punishment at life imprisonment without eligibility for probation, parole, or release except by act of the governor [or death. The court shall follow the same procedure as set out in this section whenever it is required to determine punishment for murder in the first degree].