Senate Bill No. 852
               Senate Bill No. 852

               PUBLIC ACT NO. 95-19

AN ACT CONCERNING THE DEATH PENALTY.


    Section  1.  Section  53a-46a  of  the general
statutes  is  repealed  and   the   following   is
substituted in lieu thereof:
    (a)   A  person  shall  be  subjected  to  the
penalty of death for a capital felony  only  if  a
hearing  is held in accordance with the provisions
of this section.
    (b)   For   the  purpose  of  determining  the
sentence  to  be  imposed  when  a  defendant   is
convicted of or pleads guilty to a capital felony,
the judge or judges who presided at the  trial  or
before  whom  the  guilty  plea  was entered shall
conduct  a  separate  hearing  to  determine   the
existence  of any mitigating factor concerning the
defendant's character, background and history,  or
the   nature   and  circumstances  of  the  crime,
[including any  mitigating  factor  set  forth  in
subsection  (g),]  and  any aggravating factor set
forth in subsection [(h)] (i). Such hearing  shall
not  be  held if the state stipulates that none of
the aggravating factors set  forth  in  subsection
[(h)]  (i)  of this section exists or that [one or
more mitigating  factors  exist]  ANY  FACTOR  SET
FORTH IN SUBSECTION (h) EXISTS. Such hearing shall
be conducted (1) before the jury which  determined
the  defendant's  guilt,  or  (2)  before  a  jury
impaneled for the purpose of such hearing  if  (A)
the defendant was convicted upon a plea of guilty;
(B) the defendant  was  convicted  after  a  trial
before  three judges as provided in subsection (b)
of section  53a-45;  or  (C)  if  the  jury  which
determined   the   defendant's   guilt   has  been
discharged by the court for good cause, or [,] (3)
before  the  court, on motion of the defendant and
with the approval of the court and the consent  of
the state.
    (c)  In  such hearing the court shall disclose
to the  defendant  or  his  counsel  all  material
contained in any presentence report which may have
been prepared. No presentence information withheld
from   the   defendant   shall  be  considered  in
determining the existence  of  any  mitigating  or
aggravating  factor.  Any  information relevant to
any mitigating factor may be presented  by  either
the  state  or  the  defendant,  regardless of its
admissibility under the rules governing  admission
of evidence in trials of criminal matters, but the
admissibility of information relevant  to  any  of
the  aggravating  factors  set forth in subsection
[(h)] (i) shall be governed by the rules governing
the  admission  of  evidence  in  such trials. The
state and the  defendant  shall  be  permitted  to
rebut  any information received at the hearing and
shall  be  given  fair  opportunity   to   present
argument  as to the adequacy of the information to
establish  the  existence  of  any  mitigating  or
aggravating factor. The burden of establishing any
of the AGGRAVATING factors set forth in subsection
[(h)]  (i)  shall  be  on the state. The burden of
establishing any mitigating factor shall be on the
defendant.
    (d)   In   determining  whether  a  mitigating
factor   exists   concerning    the    defendant's
character,  background  or  history, or the nature
and  circumstances  of  the  crime,  pursuant   to
subsection  (b)  of  this section, the jury or, if
there is no jury, the court shall first  determine
whether   a   particular   factor  concerning  the
defendant's character, background or  history,  or
the  nature  and  circumstances  of the crime, has
been  established  by  the  evidence,  and   shall
determine   further   whether   that   factor   is
mitigating in nature, considering  all  the  facts
and  circumstances of the case. Mitigating factors
are such as do not constitute a defense or  excuse
for  the capital felony of which the defendant has
been convicted, but which, in fairness and  mercy,
may  be  considered as tending either to extenuate
or reduce the degree of his culpability  or  blame
for the offense or to otherwise constitute a basis
for a sentence less than death.
    (e) The jury  or,  if  there  is  no jury, the
court shall return a special verdict setting forth
its  findings  as   to   the   existence   of  any
[aggravating or mitigating]  factor  SET  FORTH IN
SUBSECTION (h), THE  EXISTENCE  OF ANY AGGRAVATING
FACTOR OR FACTORS  SET FORTH IN SUBSECTION (i) AND
WHETHER ANY AGGRAVATING FACTOR OR FACTORS OUTWEIGH
ANY MITIGATING FACTOR  OR  FACTORS  FOUND TO EXIST
PURSUANT TO SUBSECTION (d).
    (f)  If  the jury or, if there is no jury, the
court finds that (1) NONE OF THE FACTORS SET FORTH
IN  SUBSECTION  (h)  EXIST, (2) one or more of the
AGGRAVATING factors set forth in subsection  [(h)]
(i)  exist and [that] (3) (A) no mitigating factor
exists OR (B) ONE OR MORE MITIGATING FACTORS EXIST
BUT  ARE  OUTWEIGHED  BY  ONE  OR MORE AGGRAVATING
FACTORS SET FORTH IN  SUBSECTION  (i),  the  court
shall sentence the defendant to death.
    (g)  If  the jury or, if there is no jury, the
court finds that (1) ANY OF THE FACTORS SET  FORTH
IN  SUBSECTION  (h)  EXIST,  OR  (2)  none  of the
AGGRAVATING factors set forth in subsection  [(h)]
(i)  exists  or  [that]  (3)  ONE  OR  MORE OF THE
AGGRAVATING FACTORS SET FORTH  IN  SUBSECTION  (i)
EXIST  AND  ONE  OR MORE MITIGATING FACTORS EXIST,
BUT THE ONE OR MORE AGGRAVATING FACTORS SET  FORTH
IN  SUBSECTION (i) DO NOT OUTWEIGH THE one or more
mitigating  factors,  [exist,]  the  court   shall
impose a sentence of life imprisonment without the
possibility of release.
    [(g)]  (h)  The  court  shall  not  impose the
sentence of death on the defendant if the jury or,
if  there is no jury, the court finds by a special
verdict, as provided in subsection (e), that  [any
mitigating  factor  exists. The mitigating factors
to be considered concerning  the  defendant  shall
include,  but  are  not limited to, the following:
That] at the time of the offense (1) he was  under
the  age  of  eighteen  YEARS  or  (2)  his mental
capacity was significantly impaired or his ability
to  conform his conduct to the requirements of law
was significantly impaired but not so impaired  in
either   case   as  to  constitute  a  defense  to
prosecution or  [(3)  he  was  under  unusual  and
substantial duress, although not such duress as to
constitute a defense to prosecution or (4)] (3) he
was  criminally liable under sections 53a-8, 53a-9
and 53a-10 for the offense, which was committed by
another, but his participation in such offense was
relatively minor, although  not  so  minor  as  to
constitute  a  defense to prosecution or [(5)] (4)
he could not reasonably  have  foreseen  that  his
conduct in the course of commission of the offense
of which he was convicted would  cause,  or  would
create  a  grave risk of causing, death to another
person.
    [(h)  If  no mitigating factor is present, the
court shall impose the sentence of  death  on  the
defendant if the jury or, if there is no jury, the
court finds by a special verdict  as  provided  in
subsection (e) that (1) the]
    (i)  THE  AGGRAVATING FACTORS TO BE CONSIDERED
SHALL  BE  LIMITED  TO  THE  FOLLOWING:  (1)   THE
defendant   committed   the   offense  during  the
commission or attempted commission of,  or  during
the   immediate  flight  from  the  commission  or
attempted commission  of,  a  felony  and  he  had
previously  been  convicted of the same felony; or
(2) the  defendant  committed  the  offense  after
having   been  convicted  of  two  or  more  state
offenses or two or more federal offenses or of one
or  more  state  offenses  and one or more federal
offenses for each of which a penalty of more  than
one   year  imprisonment  may  be  imposed,  which
offenses were committed on different occasions and
which  involved  the  infliction of serious bodily
injury upon another person; or (3)  the  defendant
committed  the  offense  and  in  such  commission
knowingly created a grave risk of death to another
person  in  addition to the victim of the offense;
or (4) the defendant committed the offense  in  an
especially  heinous,  cruel or depraved manner; or
(5) the defendant procured the commission  of  the
offense  by  payment,  or  promise  of payment, of
anything of pecuniary value; or (6) the  defendant
committed  the  offense  as  consideration for the
receipt, or in  expectation  of  the  receipt,  of
anything  of pecuniary value; or (7) the defendant
committed the offense with an assault  weapon,  as
defined in section 53-202a.
    Sec.   2.   Section  53a-35b  of  the  general
statutes  is  repealed  and   the   following   is
substituted in lieu thereof:
    A  sentence  of  imprisonment  for  life shall
mean a definite sentence of  sixty  years,  unless
the  sentence  is  life  imprisonment  without the
possibility  of  release,  imposed   pursuant   to
subsection   [(f)]  (g)  of  section  53a-46a,  AS
AMENDED BY SECTION 1 OF THIS ACT,  in  which  case
the   sentence   shall  be  imprisonment  for  the
remainder of the defendant's natural life.
    Sec.   3.   Section  53a-46b  of  the  general
statutes  is  repealed  and   the   following   is
substituted in lieu thereof:
    (a)   Any   sentence   of   death  imposed  in
accordance with the provisions of section 53a-46a,
AS  AMENDED  BY  SECTION  1  OF THIS ACT, shall be
reviewed by the  supreme  court  pursuant  to  its
rules.  In  addition  to  its authority to correct
errors at trial, the supreme  court  shall  either
affirm  the  sentence  of  death  or  vacate  said
sentence and remand for imposition of  a  sentence
in  accordance  with  subdivision  (1)  of section
53a-35a.
    (b)   The   supreme  court  shall  affirm  the
sentence of death unless it determines  that:  (1)
The sentence was the product of passion, prejudice
or any other arbitrary factor;  (2)  the  evidence
fails  to  support  the  finding of an aggravating
factor  specified  in  subsection  [(h)]  (i)   of
section  53a-46a,  AS AMENDED BY SECTION 1 OF THIS
ACT;  or  (3)  the  sentence   is   excessive   or
disproportionate to the penalty imposed in similar
cases, considering both the circumstances  of  the
crime   and   the  character  and  record  of  the
defendant.
    (c)  The  sentence review shall be in addition
to direct appeal and, if an appeal is  taken,  the
review   and  appeal  shall  be  consolidated  for
consideration. The court  shall  then  render  its
decision  on  the  legal  errors  claimed  and the
validity of the sentence.