H1666

	SECTION 1.   Chapter 265 of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by inserting after section 1 the following section:-
	Section 1A.  (a) Whoever, having reached 18 years of age or older, murders a law enforcement officer, as defined in this section, either knowing that the victim was a law enforcement officer engaged in the performance of his or her duties or in retaliation for performance of his or her duties, or both, and: (i) intentionally kills the victim; (ii) intentionally inflicts serious bodily injury that resulted in the death of the victim; (iii) intentionally participates in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim dies as a direct result of the act; or (iv) intentionally and specifically engages in an act of violence, knowing that the act creates a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constitutes a reckless disregard for human life and the victim dies as a direct result of the act, is guilty of capital murder and shall be punished by death or imprisonment in the state prison for life and shall not be eligible for parole pursuant to section 133A of chapter 127 following a presentence hearing conducted under chapter 279.  
	(b) For purposes of this section, “law enforcement officer” shall mean a correction officer or a person exercising the authority of a police officer, sheriff, or deputy sheriff.
	SECTION 2.   Chapter 279  of the General Laws, as so appearing, is hereby amended by striking out section 68 and inserting in place thereof the following section:-
	Section 68. (a) Upon a verdict or plea of guilty to the offense of capital murder set forth in section 1A of chapter 265, a presentence hearing shall be conducted. If the case was tried before a jury, the hearing shall be conducted before such jury.    
	(b) The presentence hearing may be conducted before the court alone if the defendant and the commonwealth stipulate to a court hearing.  In that event the court shall consider the aggravating and mitigating circumstances and decide the sentence in the same manner as is provided in this section for the jury.
	(c) During the presentence hearing, the only issue shall be the determination of the punishment to be imposed. During such hearing the jury shall hear all additional relevant evidence presented by either the commonwealth or defendant in mitigation of punishment regardless of its admissibility under the law governing the admission of evidence at criminal trials. During such hearing, the jury shall also hear such evidence in aggravation of punishment as is relevant to the aggravating circumstances as defined in subsection (a) of section 69; provided, however, that only such evidence in aggravation of punishment as the commonwealth has made known to the defendant prior to his trial or that is introduced as rebuttal to the defendant’s evidence shall be admissible. The jury shall also hear arguments by the defendant or his or her counsel or both and by the commonwealth regarding the punishment to be imposed. The commonwealth and the defendant or his or her counsel shall be allowed to make opening statements and closing arguments at the presentence hearing. The order of those statements and arguments and the order of presentation of evidence shall be the same as at trial. 
	(d) Upon the conclusion of evidence and arguments at the presentence hearing, the court shall instruct the jury orally and shall provide to the jury in writing the aggravating and mitigating circumstances as determined by the court to be warranted by the evidence. The judge shall also instruct the jury to consider any other relevant mitigating circumstance or mitigating circumstances. The burden of establishing the existence of any aggravating factor is on the commonwealth, and is not satisfied unless the existence of such a factor is established beyond a reasonable doubt.  The burden of establishing the existence of any mitigating factor is on the defendant, and is not satisfied unless the existence of such a factor is established by a preponderance of the evidence. 
	(e)  The jury shall return special findings identifying the aggravating and mitigating circumstances found to exist.  An aggravating circumstance may be found only if the jury is unanimous.  A finding with respect to a mitigating circumstance may be made by 1 or more members of the jury, and any member of the jury who finds the existence of a mitigating circumstance may consider such circumstance established for purposes of this section regardless of the number of jurors who concur that the circumstance has been established.  The jury’s findings shall indicate how many jurors found each mitigating circumstance to have been established.
	(f) The jury shall further determine whether the aggravating circumstances outweigh the mitigating circumstances. Based upon this consideration, the jury by unanimous vote shall return a verdict whether the defendant should be sentenced to death or to life imprisonment without the possibility of parole. The process of weighing the aggravating circumstances and mitigating circumstances to determine the sentence shall not be a mere tallying of circumstances for the purpose of numerical comparison. Instead, it shall be a process by which the aggravating circumstances and mitigating circumstances relevant to sentence are considered for the purpose of determining whether the sentence, in view of all the relevant circumstances in an individual case, shall be life imprisonment without parole, or death. 
	(g) If the jury reaches a unanimous verdict as to sentence, the court shall set a sentence in accordance with section 70.  If the jury is unable to reach a unanimous verdict, the court shall sentence the defendant to imprisonment in the state prison for life, and the defendant shall not be eligible for parole pursuant to section 133A of chapter 127.
	(h) The declaration of a mistrial during the course of the presentence hearing or any error in the presentence hearing determined on final appeal or otherwise shall not affect the validity of the conviction. 
	SECTION 3.   Said chapter 279, as so appearing, is hereby amended by striking out section 69 and inserting in place thereof the following section:-
	Section 69. (a) In all cases in which the death penalty may be authorized, the sentencer shall consider the following aggravating circumstances: 
	(1) the murder was committed on a victim who was killed while serving in the performance of his or her official duties as a law enforcement officer as defined in subsection (b) of section 1A of chapter 265.
	(2) the murder was committed by a defendant who was at the time incarcerated in a jail, house of correction, prison, state prison or a correctional or penal institution or a facility used for the housing or treatment or housing and treatment of prisoners or following escape from any of those facilities; 
	(3) the murder was committed by a defendant who had previously been convicted of any crime of violence; 
	(4) the murder was committed by the defendant pursuant to a contract, agreement or understanding by which the defendant was to receive money or anything of value in return for committing the murder; 
	(5) the murder was committed by the defendant for the purpose of avoiding, interfering with, or preventing a lawful arrest of the defendant or another, or the murder was committed by the defendant for the purpose of effectuating an escape or attempting to effectuate an escape of the defendant or another from custody in a place of lawful confinement; 
	(6) the murder involved torture to the victim or the intentional infliction of extreme pain prior to death demonstrating a total disregard to the suffering of the victim; 
	(7) the murder was committed as part of a course of conduct involving the killing of or causing serious bodily injury to or the attempted killing of or the attempted causing of serious bodily injury to more than 1 person by the defendant; 
	(8) the murder was committed by means of a destructive device, bomb, or explosive planted, hidden, mailed, delivered, or concealed in any place, area, dwelling, building, or structure by the defendant or the murder was committed by means such that the defendant knew or reasonably should have known that his or her act or acts would create a grave risk of death or serious bodily injury to more than 1 person; 
	(9) the murder was committed by the defendant and occurred during the commission or attempted commission or flight after committing or flight after attempting to commit aggravated rape, rape, rape of a child, indecent assault and battery on a child under14 years of age, assault with intent to rape, assault on a child under 16 years of age with intent to rape, kidnapping for ransom, kidnapping, armed robbery, unarmed robbery, breaking and entering with intent to commit a felony, armed assault in a dwelling, arson, confining or putting in fear or otherwise harming another for the purpose of stealing from depositories, or the murder occurred while the defendant was in possession of a sawed-off shotgun or a machine gun; and
	(10) any other circumstances of the crime, previous offenses by the defendant, or the impact of the crime on the victim or the victim’s family that the commonwealth proffers and for which the requirements of paragraph (c) of section 68 are met.  
	(b) In all cases in which the death penalty may be authorized, the sentencer shall consider the following mitigating circumstances: 
	(1) the defendant has no significant history of prior criminal convictions; 
	(2) the victim was a participant in the defendant's conduct or had consented to it; 
	(3) the murder was committed while the defendant was under extreme duress or under the domination or control of another; 
	(4) the offense was committed while the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired as a result of a mental disease or defect, organic brain damage, emotional illness brought on by stress or prescribed medication, intoxication, or legal or illegal drug use by the defendant which was insufficient to establish a defense to the murder but which substantially affected his or her judgment; 
	(5) the defendant was over the age of 75 at the time of the murder, or any other relevant consideration regarding the age of the defendant at the time of the murder; 
	(6) the defendant was battered or otherwise physically, sexually, or mentally abused by the victim in connection with or immediately prior to the murder for which the defendant was convicted; 
	(7) the defendant was experiencing post-traumatic stress syndrome caused by military service during a declared or undeclared war; and
	(8) other factors in the defendant’s background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence.