Session of 1999
         
SENATE BILL No. 166
         
By Committee on Judiciary
          
1-28
          
  9             AN  ACT concerning crimes, criminal procedure and punishment; relat-
10             ing to sentencing upon conviction of capital murder; victim impact
11             evidence; amending K.S.A. 21-4624 and repealing the existing section.
12      
13       Be it enacted by the Legislature of the State of Kansas:
14             Section  1. K.S.A. 21-4624 is hereby amended to read as follows: 21-
15       4624. (a) If a defendant is charged with capital murder, the county or
16       district attorney shall file written notice if such attorney intends, upon
17       conviction of the defendant, to request a separate sentencing proceeding
18       to determine whether the defendant should be sentenced to death. Such
19       notice shall be filed with the court and served on the defendant or the
20       defendant's attorney not later than five days after the time of arraignment.
21       If such notice is not filed and served as required by this subsection, the
22       county or district attorney may not request such a sentencing proceeding
23       and the defendant, if convicted of capital murder, shall be sentenced as
24       otherwise provided by law, and no sentence of death shall be imposed
25       hereunder.
26             (b) Except as provided in K.S.A. 21-4622 and 21-4623, and amend-
27       ments thereto, upon conviction of a defendant of capital murder, the
28       court, upon motion of the county or district attorney, shall conduct a
29       separate sentencing proceeding to determine whether the defendant shall
30       be sentenced to death. The proceeding shall be conducted by the trial
31       judge before the trial jury as soon as practicable. If any person who served
32       on the trial jury is unable to serve on the jury for the sentencing pro-
33       ceeding, the court shall substitute an alternate juror who has been im-
34       paneled for the trial jury. If there are insufficient alternate jurors to re-
35       place trial jurors who are unable to serve at the sentencing proceeding,
36       the trial judge may summon a special jury of 12 persons which shall
37       determine the question of whether a sentence of death shall be imposed.
38       Jury selection procedures, qualifications of jurors and grounds for ex-
39       emption or challenge of prospective jurors in criminal trials shall be ap-
40       plicable to the selection of such special jury. The jury at the sentencing
41       proceeding may be waived in the manner provided by K.S.A. 22-3403
42       and amendments thereto for waiver of a trial jury. If the jury at the sen-
43       tencing proceeding has been waived or the trial jury has been waived, the

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  1       sentencing proceeding shall be conducted by the court.
  2             (c) In the sentencing proceeding, evidence may be presented con-
  3       cerning any matter that the court deems relevant to the question of sen-
  4       tence and shall include matters relating to any of the aggravating circum-
  5       stances enumerated in K.S.A. 21-4625 and amendments thereto and any
  6       mitigating circumstances. If the defendant presents as evidence mitigating
  7       circumstances of any factor which relates to the defendant's character or
  8       record or to the circumstances of the offense, the state may present evi-
  9       dence of the murder victim's character and background and of the impact
10       of the murder on the victim's survivors. Any such evidence which the
11       court deems to have probative value may be received regardless of its
12       admissibility under the rules of evidence, provided that the defendant is
13       accorded a fair opportunity to rebut any hearsay statements. Only such
14       evidence of aggravating circumstances as the state has made known to
15       the defendant prior to the sentencing proceeding shall be admissible, and
16       no evidence secured in violation of the constitution of the United States
17       or of the state of Kansas shall be admissible. No testimony by the de-
18       fendant at the sentencing proceeding shall be admissible against the de-
19       fendant at any subsequent criminal proceeding. At the conclusion of the
20       evidentiary presentation, the court shall allow the parties a reasonable
21       period of time in which to present oral argument.
22             (d) At the conclusion of the evidentiary portion of the sentencing
23       proceeding, the court shall provide oral and written instructions to the
24       jury to guide its deliberations.
25             (e) If, by unanimous vote, the jury finds beyond a reasonable doubt
26       that one or more of the aggravating circumstances enumerated in K.S.A.
27       21-4625 and amendments thereto exist and, further, that the existence of
28       such aggravating circumstances is not outweighed by any mitigating cir-
29       cumstances which are found to exist, the defendant shall be sentenced to
30       death; otherwise, the defendant shall be sentenced as provided by law. If
31       the jury finds the existence of a mitigating factor is the defendant's char-
32       acter or record or the circumstances of the offense, the jury may consider
33       the victim and impact to the victim's survivors evidence presented by the
34       state pursuant to subsection (c) in determining the appropriate weight to
35       be given to the evidence of mitigating circumstances presented by the
36       defendant which relates to the defendant's character or record or the
37       circumstances of the offense. The jury, if its verdict is a unanimous rec-
38       ommendation of a sentence of death, shall designate in writing, signed
39       by the foreman of the jury, the statutory aggravating circumstances which
40       it found beyond a reasonable doubt. If, after a reasonable time for delib-
41       eration, the jury is unable to reach a verdict, the judge shall dismiss the
42       jury and impose a sentence of imprisonment as provided by law and shall
43       commit the defendant to the custody of the secretary of corrections. In

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  1       nonjury cases, the court shall follow the requirements of this subsection
  2       in determining the sentence to be imposed.
  3             (f) Notwithstanding the verdict of the jury, the trial court shall review
  4       any jury verdict imposing a sentence of death hereunder to ascertain
  5       whether the imposition of such sentence is supported by the evidence. If
  6       the court determines that the imposition of such a sentence is not sup-
  7       ported by the evidence, the court shall modify the sentence and sentence
  8       the defendant as otherwise provided by law, and no sentence of death
  9       shall be imposed hereunder. Whenever the court enters a judgment mod-
10       ifying the sentencing verdict of the jury, the court shall set forth its rea-
11       sons for so doing in a written memorandum which shall become part of
12       the record. 
13       Sec.  2. K.S.A. 21-4624 is hereby repealed.
14        Sec.  3. This act shall take effect and be in force from and after its
15       publication in the statute book.