ANNE C. WALKER, Chief Clerk
AN ACT
To repeal section 565.030, RSMo 1994, relating to murder, and to enact in lieu thereof three new sections relating to the same subject, with penalty provisions.
Section A. Section 565.030, RSMo 1994, is repealed and three new sections enacted in lieu thereof, to be known as sections 544.681, 565.030 and 565.042, to read as follows:
544.681. 1. Any information, evidence, statement or confession obtained during a custodial interrogation of a person who has mental retardation shall be excluded from introduction at trial as evidence in a criminal trial unless an attorney was present during the custodial interrogation to represent the person who has mental retardation.
2. Any individual who interviews a person with mental retardation for purposes of criminal or abuse investigations shall immediately, prior to any interrogation, make reasonable efforts to notify such person's parent, guardian or designated protector.
3. As used in this section, the term "mental retardation" has the same meaning as that contained in section 565.030, RSMo.
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 finds by a preponderance of the evidence that the defendant is mentally retarded; or
(2) 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)] (3) 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)] (4) 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)] (5) 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.
5. Upon written agreement of the parties and with leave of court, the issue of the defendant's mental retardation may be taken up by the court and decided prior to trial without prejudicing the defendant's right to have this issue submitted to the trier of fact as provided in subsection 4 of this section.
6. As used in this section, the terms mental retardation or mentally retarded refer to a condition involving substantial limitations in general functioning characterized by significantly subaverage intellectual functioning with related deficits and limitations in adaptive behavior such as communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work, which condition is manifested and documented before eighteen years of age.
7. The provisions of this section shall govern offenses committed on or after August 28, 2000.
565.042. 1. A commission on the death penalty is hereby created to consist of nine members: One member from each party of the house of representatives, to be appointed by the speaker of the house of representatives; one member from each party of the senate, to be appointed by the president pro tem of the senate; one member appointed by the state public defender or a designee, one member appointed by the attorney general or a designee, and three citizens of the state appointed by the governor. The members of the commission shall serve without compensation, but the members shall be reimbursed for necessary expenses incurred in the work of the commission, such as travel, food and lodging. The commission shall be appointed and staffed on or before December 1, 2000.
2. The commission on the death penalty shall have an executive director appointed by the commission who shall establish and administer projects and programs for the operation of the commission as well as transmit monthly to the commission a report of the operations of the commission for the preceding calendar month.
3. The commission on the death penalty shall hold public hearings and call before it witnesses to testify on issues relevant to the administration of the death penalty in Missouri. The commission may create an Internet Web site and other means to communicate with the public and invite citizen input.
4. The commission on the death penalty shall have access to all information relating to death penalty cases and first and second degree murder cases maintained by the Missouri supreme court, other state courts, county and state prosecutor offices and the state public defender system. The commission may contract with universities for research assistance in collecting and analyzing information on all aspects of the death penalty as administered in Missouri.
5. The commission shall study all aspects of the death penalty as administered in the state. As part of this study, the commission on the death penalty shall review and analyze all cases in which charges of second degree murder or first degree murder committed on or after January 1, 1977, were filed. Such review and analysis shall examine all available data concerning:
(1) The facts of the offense including mitigating and aggravating circumstances;
(2) The county in which the charges were filed;
(3) The charges originally filed;
(4) The crime for which defendant was convicted or entered a plea of guilty;
(5) The sentence imposed;
(6) The age, race, gender, religious preference, and economic status of the defendant and of the victim;
(7) Whether evidence exists that the defendant was mentally retarded;
(8) The cost per disposition and implementation of sentence;
(9) The identity, number and experience level of defense counsel at trial, appeal and post-conviction;
(10) The identity, number and experience level of trial and appellate prosecutors, including, where appropriate, members of the staff of the attorney general;
(11) The results of any appellate review; and
(12) The results of any post-conviction review in state or federal court.
6. In considering the experience level of attorneys and the adequacy of resources as described in subdivisions (9) and (10) of subsection 5 of this section, the commission shall consider the experience and training levels required by the Missouri supreme court, the experience and training levels required by the courts and legislatures of other jurisdictions in which the death penalty is imposed, and the recommendations of national associations.
7. The review conducted by the commission shall include new criminal homicide charges filed during the study period.
8. The commission shall report its findings and recommendations regarding the death penalty, including remedies for any deficiencies found by the commission, to the governor, members of the legislature, and the Missouri supreme court by January 1, 2003.
9. The commission shall make recommendations for amendments to the statutes and court rules pertaining to cases in which the death penalty is sought or imposed to provide assurances that:
(1) Defendants who are sentenced to death are in fact guilty of first degree murder;
(2) Defendants in cases in which the death penalty is sought are provided adequate and experienced counsel and adequate resources for the defense of their cases at the trial;
(3) Defendants in cases in which the death penalty is imposed are provided adequate and experienced counsel and adequate resources for the defense of their cases at the appellate and post-conviction stages;
(4) Race does not play an impermissible role in determining which defendants are sentenced to death;
(5) Appellate and post-conviction procedures are adequate to provide a fair opportunity for the courts of this state to correct errors and injustices that occurred at trial in cases in which the death penalty is imposed, including but not limited to allowing access to physical evidence for later testing and analysis; and
(6) All prosecutors throughout this state use similar criteria to determine whether to seek the death penalty in a
case involving criminal homicide.
Missouri House of Representatives