Stricken language would be deleted from and underlined language would be added to present law.
Act 695 of the Regular Session
1 State of Arkansas As Engrossed: H3/22/21
2 93rd General Assembly A Bill
3 Regular Session, 2021 HOUSE BILL 1731
4
5 By: Representatives Underwood, Pilkington
6 By: Senator Hester
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8 For An Act To Be Entitled
9 AN ACT CONCERNING THE SENTENCING PROCEDURE DURING A
10 CAPITAL MURDER TRIAL IN THE EVENT OF ERROR OCCURRING
11 DURING THE SENTENCING PHASE OF THE TRIAL; AND FOR
12 OTHER PURPOSES.
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15 Subtitle
16 CONCERNING THE SENTENCING PROCEDURE
17 DURING A CAPITAL MURDER TRIAL IN THE
18 EVENT OF ERROR OCCURRING DURING THE
19 SENTENCING PHASE OF THE TRIAL.
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22 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
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24 SECTION 1. Arkansas Code 5-4-602 is amended to read as follows:
25 5-4-602. Capital murder felony charge Trial procedure.
26 The following procedures govern a trial of a person charged with a
27 capital murder felony:
28 (1) The jury shall first hear all evidence relevant to the
29 charge and shall then retire to reach a verdict of guilt or innocence;
30 (2) If the defendant is found not guilty of the capital offense
31 charged but guilty of a lesser included offense, the sentence shall be
32 determined and imposed as provided by law;
33 (3)(A) If the defendant is found guilty of a capital murder
34 felony, the same jury shall sit again, except as provided in 5-4-616, in
35 order to:
36 (i) Hear additional evidence as provided by
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1 subdivisions (4) and (5) of this section; and
2 (ii) Determine the sentence in the manner provided
3 by 5-4-603.
4 (B) However, if the state waives the death penalty,
5 stipulates that no aggravating circumstance exists, or stipulates that
6 mitigating circumstances outweigh aggravating circumstances, then:
7 (i) A hearing under subdivision (3)(A) of this
8 section is not required; and
9 (ii) The trial court shall sentence the defendant to
10 life imprisonment without parole.
11 (C) If the defendant was less than eighteen (18) years of
12 age at the time of the offense, then a hearing under subdivision (3)(A) of
13 this section is not required;
14 (4)(A) If the defendant and the state are accorded an
15 opportunity to rebut the evidence, in determining the sentence evidence may
16 be presented to the jury as to any:
17 (i) Matter relating to an aggravating circumstance
18 enumerated in 5-4-604;
19 (ii) Mitigating circumstance; or
20 (iii) Other matter relevant to punishment,
21 including, but not limited to, victim impact evidence.
22 (B)(i) Evidence as to any mitigating circumstance may be
23 presented by either the state or the defendant regardless of the evidence's
24 admissibility under the rules governing admission of evidence in a trial of a
25 criminal matter.
26 (ii) However, mitigating circumstance evidence shall
27 be relevant to the issue of punishment, including, but not limited to, the
28 nature and circumstances of the crime, and the defendant's character,
29 background, history, and mental and physical condition as set forth in 5-4-
30 605.
31 (C) The admissibility of evidence relevant to an
32 aggravating circumstance set forth in 5-4-604 is governed by the rules
33 governing the admission of evidence in a trial of a criminal matter.
34 (D) Any evidence admitted at the trial relevant to
35 punishment may be considered by the jury without the necessity of
36 reintroducing the evidence at the sentencing proceeding; and
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1 (5) The state and the defendant or his or her counsel are
2 permitted to present argument respecting sentencing:
3 (A) The state shall open the argument;
4 (B) The defendant is permitted to reply; and
5 (C) The state is then permitted to reply in rebuttal.
6
7 SECTION 2. Arkansas Code 5-4-616 is amended to read as follows:
8 5-4-616. Procedures following remand or mistrial of capital case after
9 vacation of death sentence Retroactive application.
10 (a) Notwithstanding 5-4-602(3) that requires that the same jury sit
11 in the sentencing phase of a capital murder felony trial, the following shall
12 apply:
13 (1)(A) Upon any appeal by the defendant when the sentence is of
14 death, if the appellate court finds prejudicial error in the sentencing
15 proceeding only, the appellate court may set aside the sentence of death and
16 remand the case to the trial court in the jurisdiction in which the defendant
17 was originally sentenced.
18 (B) No error in the sentencing proceeding shall result in
19 the reversal of the conviction for a capital felony.
20 (C) When a capital case is remanded after vacation of a
21 death sentence, the prosecutor prosecuting attorney may move the trial court
22 to:
23 (i) Impose a sentence of life without parole, and
24 the trial court may impose the sentence of life without parole without a
25 hearing; or
26 (ii) Impanel a new sentencing jury;
27 (2)(A) Upon the declaration of a mistrial during the sentencing
28 proceeding, the prosecuting attorney may move the trial court to:
29 (i) Impose a sentence of life without parole, and
30 the trial court may impose the sentence of life without parole without a
31 hearing; or
32 (ii) Impanel a new sentencing jury.
33 (B) A mistrial during the sentencing proceeding shall not
34 result in the invalidation of the finding of guilt for a capital felony;
35 (2)(3) If the prosecutor prosecuting attorney elects subdivision
36 (a)(1)(C)(ii) (1)(C)(ii) or subdivision (2)(A)(ii) of this section the trial
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1 court shall impanel a new jury for the purpose of conducting a new sentencing
2 proceeding;
3 (3)(4) A new sentencing proceeding is governed by the provisions
4 of 5-4-602(4) and (5) and 5-4-603 5-4-605;
5 (4)(A)(5)(A) Any exhibit and a transcript of any testimony or
6 other evidence properly admitted in the prior trial or preceding guilt phase
7 of the trial and sentencing is admissible in the new sentencing proceeding.
8 (B) Additional relevant evidence may be admitted including
9 testimony of a witness who testified at the previous trial; and or preceding
10 guilt phase of the trial and sentencing; and
11 (5)(6) The provisions of this section:
12 (A) Are procedural; and
13 (B) Apply retroactively to any defendant sentenced to
14 death after January 1, 1974.
15 (b) This section shall not be construed to amend a provision of 5-4-
16 602 requiring the same jury to sit in both the guilt and sentencing phases of
17 the original trial.
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19 /s/Underwood
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22 APPROVED: 4/13/21
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