2013 Maryland Code
CRIMINAL LAW
§ 2-303 - First degree murder -- Sentencing procedure -- Death penalty

§2-303.

(a) (1) In this section the following words have the meanings indicated.

(2) (i) “Correctional facility” has the meaning stated in § 1-101 of this article.

(ii) “Correctional facility” includes:

1. an institution for the confinement or detention of juveniles charged with or adjudicated as being delinquent; and

2. a hospital in which a person is confined under an order of a court exercising criminal jurisdiction.

(3) (i) “Law enforcement officer” means a law enforcement officer as defined under the Law Enforcement Officers’ Bill of Rights, § 3-101 of the Public Safety Article.

(ii) “Law enforcement officer” includes:

1. a law enforcement officer of a jurisdiction outside of the State;

2. an officer serving in a probationary status;

3. a parole and probation officer; and

4. a law enforcement officer while privately employed as a security officer or special police officer under Title 3, Subtitle 3 of the Public Safety Article if the law enforcement officer is wearing the uniform worn while acting in an official capacity or is displaying prominently the officer’s official badge or other insignia of office.

(b) If the State gave notice under § 2-202(a)(1) of this title, a separate sentencing proceeding shall be held as soon as practicable after a defendant is found guilty of murder in the first degree to determine whether the defendant shall be sentenced to death.

(c) The sentencing proceeding under subsection (b) of this section shall be conducted:

(1) before the jury that determined the defendant’s guilt;

(2) before a jury impaneled for purposes of the proceeding if:

(i) the defendant was convicted based on a guilty plea;

(ii) the defendant was convicted after a trial by a court sitting without a jury;

(iii) the court, for good cause, discharged the jury that convicted the defendant; or

(iv) a court of competent jurisdiction remanded the case for resentencing following a review of the original sentence of death; or

(3) before the court, if the defendant waives a jury sentencing proceeding.

(d) (1) A judge shall appoint at least two alternate jurors when impaneling a jury for any proceeding:

(i) in which the defendant is being tried for a crime for which the death penalty may be imposed; or

(ii) that is held under this section.

(2) The alternate jurors shall be retained throughout the proceedings under any restrictions that the judge imposes.

(3) Subject to paragraph (4) of this subsection, if a juror dies, is disqualified, becomes incapacitated, or is discharged for any other reason before the jury begins its deliberations on sentencing, an alternate juror becomes a juror in the order selected, and serves in all respects as a juror selected on the regular trial panel.

(4) An alternate juror may not replace a juror who is discharged during the actual deliberations of the jury on the guilt or innocence of the defendant or on sentencing.

(e) (1) The following type of evidence is admissible in a sentencing proceeding:

(i) evidence relating to a mitigating circumstance that is listed under subsection (h) of this section;

(ii) evidence relating to an aggravating circumstance:

1. that is listed under subsection (g) of this section; and

2. of which the State provided notice under § 2-202(a)(1)(ii) of this title;

(iii) evidence of a prior criminal conviction, guilty plea, plea of nolo contendere, or the absence of any prior convictions or pleas, to the same extent that the evidence would be admissible in other sentencing procedures;

(iv) subject to paragraph (2) of this subsection, any presentence investigation report; and

(v) any other evidence the court finds to have probative value and relevance to sentencing, if the defendant has a fair opportunity to rebut any statement.

(2) A recommendation in a presentence investigation report as to a sentence is not admissible in a sentencing proceeding.

(3) The State and the defendant or counsel for the defendant may present argument for or against the sentence of death.

(f) (1) After the evidence is presented to the jury in the sentencing proceeding, the court shall:

(i) give any appropriate instructions allowed by law; and

(ii) instruct the jury as to:

1. the findings that the jury must make to determine whether the defendant shall be sentenced to death, imprisonment for life without the possibility of parole, or imprisonment for life; and

2. the burden of proof applicable to the findings under subsection (g)(2) or (i)(1) and (2) of this section.

(2) The court may not instruct the jury that the jury is to assume that a sentence of life imprisonment is for the natural life of the defendant.

(g) (1) In determining a sentence under subsection (b) of this section, the court or jury first shall consider whether any of the following aggravating circumstances exists beyond a reasonable doubt:

(i) one or more persons committed the murder of a law enforcement officer while the officer was performing the officer’s duties;

(ii) the defendant committed the murder while confined in a correctional facility;

(iii) the defendant committed the murder in furtherance of an escape from, an attempt to escape from, or an attempt to evade lawful arrest, custody, or detention by:

1. a guard or officer of a correctional facility; or

2. a law enforcement officer;

(iv) the victim was taken or attempted to be taken in the course of an abduction, kidnapping, or an attempt to abduct or kidnap;

(v) the victim was a child abducted in violation of § 3-503(a)(1) of this article;

(vi) the defendant committed the murder under an agreement or contract for remuneration or promise of remuneration to commit the murder;

(vii) the defendant employed or engaged another to commit the murder and the murder was committed under an agreement or contract for remuneration or promise of remuneration;

(viii) the defendant committed the murder while under a sentence of death or imprisonment for life;

(ix) the defendant committed more than one murder in the first degree arising out of the same incident; or

(x) the defendant committed the murder while committing, or attempting to commit:

1. arson in the first degree;

2. carjacking or armed carjacking;

3. rape in the first degree;

4. robbery under § 3-402 or § 3-403 of this article; or

5. sexual offense in the first degree.

(2) If the court or jury does not find that one or more of the aggravating circumstances exist beyond a reasonable doubt:

(i) it shall state that conclusion in writing; and

(ii) a death sentence may not be imposed.

(h) (1) In this subsection, “crime of violence” means:

(i) abduction;

(ii) arson in the first degree;

(iii) carjacking or armed carjacking;

(iv) escape in the first degree;

(v) kidnapping;

(vi) mayhem;

(vii) murder;

(viii) rape in the first or second degree;

(ix) robbery under § 3-402 or § 3-403 of this article;

(x) sexual offense in the first or second degree;

(xi) manslaughter other than involuntary manslaughter;

(xii) an attempt to commit any crime listed in items (i) through (xi) of this paragraph; or

(xiii) the use of a handgun in the commission of a felony or other crime of violence.

(2) If the court or jury finds beyond a reasonable doubt that one or more of the aggravating circumstances under subsection (g) of this section exists, it then shall consider whether any of the following mitigating circumstances exists based on a preponderance of the evidence:

(i) the defendant previously has not:

1. been found guilty of a crime of violence;

2. entered a guilty plea or a plea of nolo contendere to a charge of a crime of violence; or

3. received probation before judgment for a crime of violence;

(ii) the victim was a participant in the conduct of the defendant or consented to the act that caused the victim’s death;

(iii) the defendant acted under substantial duress, domination, or provocation of another, but not so substantial as to constitute a complete defense to the prosecution;

(iv) the murder was committed while the capacity of the defendant to appreciate the criminality of the defendant’s conduct or to conform that conduct to the requirements of law was substantially impaired due to emotional disturbance, mental disorder, or mental incapacity;

(v) the defendant was of a youthful age at the time of the murder;

(vi) the act of the defendant was not the sole proximate cause of the victim’s death;

(vii) it is unlikely that the defendant will engage in further criminal activity that would be a continuing threat to society; or

(viii) any other fact that the court or jury specifically sets forth in writing as a mitigating circumstance in the case.

(i) (1) If the court or jury finds that one or more of the mitigating circumstances under subsection (h) of this section exists, it shall determine by a preponderance of the evidence whether the aggravating circumstances under subsection (g) of this section outweigh the mitigating circumstances.

(2) If the court or jury finds that the aggravating circumstances:

(i) outweigh the mitigating circumstances, a death sentence shall be imposed; or

(ii) do not outweigh the mitigating circumstances, a death sentence may not be imposed.

(3) If the determination is by a jury, a decision to impose a death sentence must be unanimous and shall be signed by the jury foreperson.

(4) A court or jury shall put its determination in writing and shall state specifically:

(i) each aggravating circumstance found;

(ii) each mitigating circumstance found;

(iii) whether any aggravating circumstances found under subsection (g) of this section outweigh the mitigating circumstances found under subsection (h) of this section;

(iv) whether the aggravating circumstances found under subsection (g) of this section do not outweigh the mitigating circumstances found under subsection (h) of this section; and

(v) the sentence determined under subsection (g)(2) of this section or paragraphs (1) and (2) of this subsection.

(j) (1) If a jury determines that a death sentence shall be imposed under the provisions of this section, the court shall impose a death sentence.

(2) If, within a reasonable time, the jury is unable to agree as to whether a death sentence shall be imposed, the court may not impose a death sentence.

(3) If the sentencing proceeding is conducted before a court without a jury, the court shall determine whether a death sentence shall be imposed under the provisions of this section.

(4) If the court or jury determines that a death sentence may not be imposed and the State gave notice under § 2-203(1) of this title, a determination shall be made concerning imprisonment for life without the possibility of parole under § 2-304 of this subtitle.

(5) If the court or jury determines that a death sentence may not be imposed and if the State did not give notice under § 2-203(1) of this title, the court shall impose a sentence of imprisonment for life.

(k) (1) Immediately after the imposition of a death sentence:

(i) the clerk of the court in which sentence is imposed, if different from the court where the indictment or information was filed, shall certify the proceedings to the clerk of the court where the indictment or information was filed; and

(ii) the clerk of the court where the indictment or information was filed shall copy the docket entries in the inmate’s case, sign the copies, and deliver them to the Governor.

(2) The docket entries shall show fully the sentence of the court and the date that the sentence was entered.

(l) If the defendant is sentenced to death, the court before which the defendant is tried and convicted shall sentence the defendant to death by intravenous administration of a lethal quantity of an ultrashort-acting barbiturate or other similar drug in combination with a chemical paralytic agent.