Death penalty sentencing procedure
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 under
IC 35-36-9 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).
(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 property.
(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 to kill.
(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
other murder.
(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 age.
(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
IC 35-42-2-1.
(B) Kidnapping (IC 35-42-3-2).
(C) Criminal confinement (IC 35-42-3-3).
(D) A sex crime under IC 35-42-4.
(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 IC 35-47-1-5):
(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 IC 16-18-2-365).
(c) The mitigating circumstances that may be considered under
this section are as follows:
(1) The defendant has no significant history of prior criminal
conduct.
(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 conduct.
(4) The defendant was an accomplice in a murder committed by
another person, and the defendant's participation was relatively
minor.
(5) The defendant acted under the substantial domination of
another person.
(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:
(1) the aggravating circumstances alleged; or
(2) any of the mitigating circumstances listed in subsection (c).
(e) For a defendant sentenced after June 30, 2002, 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 (l). 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
defendant.
(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 (l).
(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 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
(3) sentence:
(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) A person who has been sentenced to death and who has
completed state post-conviction review proceedings may file a
written petition with the supreme court seeking to present new
evidence challenging the person's guilt or the appropriateness of the
death sentence if the person serves notice on the attorney general.
The supreme court shall determine, with or without a hearing,
whether the person has presented previously undiscovered evidence
that undermines confidence in the conviction or the death sentence.
If necessary, the supreme court may remand the case to the trial court
for an evidentiary hearing to consider the new evidence and its effect
on the person's conviction and death sentence. The supreme court
may not make a determination in the person's favor nor make a
decision to remand the case to the trial court for an evidentiary
hearing without first providing the attorney general with an
opportunity to be heard on the matter.
(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)
exists; and
(2) any mitigating circumstances that exist are outweighed by
the aggravating circumstance or circumstances.
As added by Acts 1977, P.L.340, SEC.122. Amended by
P.L.336-1983, SEC.1; P.L.212-1986, SEC.1; P.L.332-1987, SEC.2;
P.L.320-1987, SEC.2; P.L.296-1989, SEC.2; P.L.138-1989, SEC.6;
P.L.1-1990, SEC.354; P.L.230-1993, SEC.5; P.L.250-1993, SEC.2;
P.L.158-1994, SEC.7; P.L.306-1995, SEC.1; P.L.228-1996, SEC.1;
P.L.216-1996, SEC.25; P.L.261-1997, SEC.7; P.L.80-2002, SEC.1;
P.L.117-2002, SEC.2; P.L.1-2003, SEC.97; P.L.147-2003, SEC.1.
Last modified: May 24, 2006