2012 Kentucky Revised Statutes CHAPTER 532 CLASSIFICATION AND DESIGNATION OF OFFENSES -- AUTHORIZED DISPOSITION 532.025 Presentence hearings -- Use of juvenile court records -- Aggravating or mitigating circumstances -- Instruction to jury.
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532.025 Presentence hearings -- Use of juvenile court records -- Aggravating or
mitigating circumstances -- Instruction to jury.
(1)
(a)
(b)
Upon conviction of a defendant in cases where the death penalty may be
imposed, a hearing shall be conducted. In such hearing, the judge shall hear
additional evidence in extenuation, mitigation, and aggravation of
punishment, including the record of any prior criminal convictions and pleas
of guilty or pleas of nolo contendere of the defendant, or the absence of any
prior conviction and pleas; provided, however, that only such evidence in
aggravation as the state has made known to the defendant prior to his trial
shall be admissible. Subject to the Kentucky Rules of Evidence, juvenile court
records of adjudications of guilt of a child for an offense that would be a
felony if committed by an adult shall be admissible in court at any time the
child is tried as an adult, or after the child becomes an adult, at any subsequent
criminal trial relating to that same person. Juvenile court records made
available pursuant to this section may be used for impeachment purposes
during a criminal trial and may be used during the sentencing phase of a
criminal trial; however, the fact that a juvenile has been adjudicated
delinquent of an offense that would be a felony if the child had been an adult
shall not be used in finding the child to be a persistent felony offender based
upon that adjudication. Release of the child's treatment, medical, mental, or
psychological records is prohibited unless presented as evidence in Circuit
Court. Release of any records resulting from the child's prior abuse and
neglect under Title IV-E or IV-B of the Federal Social Security Act is also
prohibited. The judge shall also hear argument by the defendant or his counsel
and the prosecuting attorney, as provided by law, regarding the punishment to
be imposed. The prosecuting attorney shall open and the defendant shall
conclude the argument. In cases in which the death penalty may be imposed,
the judge when sitting without a jury shall follow the additional procedure
provided in subsection (2) of this section. Upon the conclusion of the evidence
and arguments, the judge shall impose the sentence or shall recess the trial for
the purpose of taking the sentence within the limits prescribed by law. If the
trial court is reversed on appeal because of error only in the presentence
hearing, the new trial which may be ordered shall apply only to the issue of
punishment;
In all cases in which the death penalty may be imposed and which are tried by
a jury, upon a return of a verdict of guilty by the jury, the court shall resume
the trial and conduct a presentence hearing before the jury. Such hearing shall
be conducted in the same manner as presentence hearings conducted before
the judge as provided in paragraph (a) of this subsection, including the record
of any prior criminal convictions and pleas of guilty or pleas of nolo
contendere of the defendant. Upon the conclusion of the evidence and
arguments, the judge shall give the jury appropriate instructions, and the jury
shall retire to determine whether any mitigating or aggravating circumstances,
as defined in subsection (2) of this section, exist and to recommend a sentence
for the defendant. Upon the findings of the jury, the judge shall fix a sentence
(2)
within the limits prescribed by law.
In all cases of offenses for which the death penalty may be authorized, the judge
shall consider, or he shall include in his instructions to the jury for it to consider,
any mitigating circumstances or aggravating circumstances otherwise authorized by
law and any of the following statutory aggravating or mitigating circumstances
which may be supported by the evidence:
(a) Aggravating circumstances:
1.
The offense of murder or kidnapping was committed by a person with a
prior record of conviction for a capital offense, or the offense of murder
was committed by a person who has a substantial history of serious
assaultive criminal convictions;
2.
The offense of murder or kidnapping was committed while the offender
was engaged in the commission of arson in the first degree, robbery in
the first degree, burglary in the first degree, rape in the first degree, or
sodomy in the first degree;
3.
The offender by his act of murder, armed robbery, or kidnapping
knowingly created a great risk of death to more than one (1) person in a
public place by means of a weapon of mass destruction, weapon, or
other device which would normally be hazardous to the lives of more
than one (1) person;
4.
The offender committed the offense of murder for himself or another,
for the purpose of receiving money or any other thing of monetary value,
or for other profit;
5.
The offense of murder was committed by a person who was a prisoner
and the victim was a prison employee engaged at the time of the act in
the performance of his duties;
6.
The offender's act or acts of killing were intentional and resulted in
multiple deaths;
7.
The offender's act of killing was intentional and the victim was a state or
local public official or police officer, sheriff, or deputy sheriff engaged
at the time of the act in the lawful performance of his duties; and
8.
The offender murdered the victim when an emergency protective order
or a domestic violence order was in effect, or when any other order
designed to protect the victim from the offender, such as an order issued
as a condition of a bond, conditional release, probation, parole, or
pretrial diversion, was in effect.
(b) Mitigating circumstances:
1.
The defendant has no significant history of prior criminal activity;
2.
The capital offense was committed while the defendant was under the
influence of extreme mental or emotional disturbance even though the
influence of extreme mental or emotional disturbance is not sufficient to
constitute a defense to the crime;
3.
(3)
The victim was a participant in the defendant's criminal conduct or
consented to the criminal act;
4.
The capital offense was committed under circumstances which the
defendant believed to provide a moral justification or extenuation for his
conduct even though the circumstances which the defendant believed to
provide a moral justification or extenuation for his conduct are not
sufficient to constitute a defense to the crime;
5.
The defendant was an accomplice in a capital offense committed by
another person and his participation in the capital offense was relatively
minor;
6.
The defendant acted under duress or under the domination of another
person even though the duress or the domination of another person is not
sufficient to constitute a defense to the crime;
7.
At the time of the capital offense, the capacity of the defendant to
appreciate the criminality of his conduct to the requirements of law was
impaired as a result of mental illness or an intellectual disability or
intoxication even though the impairment of the capacity of the defendant
to appreciate the criminality of his conduct or to conform the conduct to
the requirements of law is insufficient to constitute a defense to the
crime; and
8.
The youth of the defendant at the time of the crime.
The instructions as determined by the trial judge to be warranted by the evidence or
as required by KRS 532.030(4) shall be given in charge and in writing to the jury
for its deliberation. The jury, if its verdict be a recommendation of death, or
imprisonment for life without benefit of probation or parole, or imprisonment for
life without benefit of probation or parole until the defendant has served a minimum
of twenty-five (25) years of his sentence, shall designate in writing, signed by the
foreman of the jury, the aggravating circumstance or circumstances which it found
beyond a reasonable doubt. In nonjury cases, the judge shall make such designation.
In all cases unless at least one (1) of the statutory aggravating circumstances
enumerated in subsection (2) of this section is so found, the death penalty, or
imprisonment for life without benefit of probation or parole, or the sentence to
imprisonment for life without benefit of probation or parole until the defendant has
served a minimum of twenty-five (25) years of his sentence, shall not be imposed.
Effective: July 12, 2012
History: Amended 2012 Ky. Acts ch. 146, sec. 132, effective July 12, 2012. -Amended 2001 Ky. Acts ch. 113, sec. 8, effective June 21, 2001. -- Amended 1998
Ky. Acts ch. 606, sec. 72, effective July 15, 1998. -- Amended 1996 Ky. Acts
ch. 358, sec. 7, effective July 15, 1997. -- Amended 1988 Ky. Acts ch. 283, sec. 16,
effective July 15, 1988. -- Amended 1986 Ky. Acts ch. 358, sec. 3, effective July 15,
1986. -- Amended 1984 Ky. Acts ch. 110, sec. 1, effective July 13, 1984. -- Created
1976 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 2, effective December 22, 1976.
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