TITLE FOUR — SENTENCING
Rule 28.3. Capital Sentencing; Warrant of Execution
When a Sentence of Death May Be Imposed.
Adjudication Required. No sentence of death shall be issued for an offence, except where a defendant is sentenced to such as a result of an adjudication of guilt in a court of law. 6 R. Stat. § 131.401. The adjudication shall be entered as Rule 28(a) provides.
Eligible Offences. A sentence of death shall be permitted only in cases of treason, felony murder, first-degree murder, and second-degree murder. 6 R. Stat. § 131.402. The court shall not impose a sentence of death upon a conviction of any other offence.
Count of Conviction. The court shall state upon the record the count of conviction and the offence upon which the sentence of death is imposed, and shall identify it as an offence enumerated in 6 R. Stat. § 131.402.
Notice of Intent to Seek a Sentence of Death.
Requirement. The State shall not seek a sentence of death unless it has filed a notice of intent to do so.
Contents. The notice shall identify the count upon which a sentence of death is sought, shall identify the enumerated offence under 6 R. Stat. § 131.402 to which that count corresponds, and shall state the matters in aggravation the State intends to offer at the sentencing phase.
Time. The notice shall be filed under Rule 32 and stated upon the record not later than the conclusion of the pretrial hearing under Rule 11(b), and in no event later than twenty-four (24) hours before the commencement of trial. The court may for good cause shown permit a later notice, in which case the court shall grant the defendant a continuance under Rule 10 sufficient to meet it.
Withdrawal. The State may abandon its intent to seek a sentence of death by stating the abandonment upon the record. A notice once filed cannot be withdrawn in the electronic filing system; the statement upon the record governs.
Effect of Absence. Where no notice has been filed and received, the court shall not conduct a sentencing phase under Rule 28.3(c) and shall not impose a sentence of death.
The Sentencing Phase.
Separate Proceeding. Where the defendant has been adjudicated guilty of an offence enumerated in 6 R. Stat. § 131.402 and the State has given notice under Rule 28.3(b), the court shall conduct a separate sentencing phase before determining the sentence.
By the Court. The sentence shall be determined by the court. Where the trial was to a jury under Rule 24.1, the jury shall be discharged upon the reception of the verdict and shall take no part in the determination of the sentence.
Presence. The defendant shall be present throughout the sentencing phase. No sentencing phase shall be conducted, and no sentence of death shall be imposed, in the defendant’s absence. Neither an express waiver of presence under Rule 18(c) nor an absentia authorization entered under Rule 18.3 extends to the sentencing phase. Where the defendant is convicted in absentia of an offence enumerated in 6 R. Stat. § 131.402, the court shall defer the sentencing phase until the defendant is produced, as Rule 18(j)(3) requires. Rule 18(a)(1); Rule 18(c)(6); Rule 18(j)(3); Rule 18.3(i); 6 R. Stat. § 131.501.
Counsel. The defendant shall be represented by counsel throughout the sentencing phase. Where the defendant has waived counsel under Rule 8.1, the court shall renew the inquiry required by that rule before the sentencing phase begins.
Evidence. Each party may offer evidence in aggravation and in mitigation. Evidence in aggravation shall be limited to the matters stated in the notice filed under Rule 28.3(b)(2). Evidence in mitigation shall not be limited. Rule 28.1(a)(4) governs the receipt of information at a sentencing hearing.
Argument. The State shall argue first and the defendant last. The court shall fix the time allowed to each party and shall state it upon the record before argument begins.
Allocution. The defendant shall be afforded allocution as Rule 28(b)(4) provides, after the conclusion of argument and before the court determines the sentence.
Presentence Report. The court shall order a presentence investigation and report under Rule 28(d) in every case in which a sentence of death is sought, and shall not waive the report.
Findings and Determination.
Required Findings. Before imposing a sentence of death the court shall state upon the record, and shall enter in the judgment, findings that:
the defendant has been adjudicated guilty in a court of law of the count identified under Rule 28.3(a)(3);
the offence of that count is one of those enumerated in 6 R. Stat. § 131.402;
the State filed the notice required by Rule 28.3(b) and proved the matters in aggravation upon which it relies;
the court considered every matter offered in mitigation; and
the sentence does not exceed a limit imposed by 6 R. Stat. § 131.310.
Reasons. The court shall state its reasons for imposing a sentence of death, and shall address each matter offered in mitigation.
Alternative Sentence. Where the court does not impose a sentence of death, it shall impose sentence upon the count of conviction as Rule 28.1 provides.
Pre-Execution Imprisonment. The judgment shall state the allotted time of pre-execution imprisonment determined during sentencing. 6 R. Stat. § 131.406.
Review.
Right of Appeal. A judgment of death is subject to direct appeal as a matter of right. 6 R. Stat. § 131.801. The court shall give the advice required by Rule 28(c) immediately upon the imposition of the sentence, and shall inquire upon the record whether the defendant intends to appeal.
Counsel. The court shall assign counsel for the appeal where the defendant is indigent or indigent but able to contribute, and shall enter the assignment upon the record.
Transmission of the Record. Upon the entry of a judgment of death the Clerk shall forthwith assemble the record of the case and transmit it to the Clerk of the Supreme Court, together with a statement of the date of entry of the judgment and of any notice given under Rule 28.3(f).
Notice to the Governor; Warrant of Execution.
Notice. Where a person is sentenced to death, the Clerk of the Superior Court shall inform the Governor that a person has been sentenced to death and shall allow thirty (30) days for the Governor to issue a warrant of execution. 6 R. Stat. § 131.403. The Clerk shall give the notice upon the entry of the judgment and shall enter upon the docket the date and time at which the notice was given.
Contents of the Notice. The notice shall state the case number, the username of the person sentenced, the count and offence of conviction, the date of entry of the judgment, the allotted time of pre-execution imprisonment stated under Rule 28.3(d)(4), and the status of any appeal and of any stay entered under Rule 31.
Entry of the Warrant. The Clerk shall enter upon the docket the date of any warrant of execution issued by the Governor and shall record the warrant with the papers of the case.
Stay by the Governor. The execution of a death sentence may be stayed by the Governor. 6 R. Stat. § 131.404. The Clerk shall enter upon the docket any stay of which the court is informed, and its terms.
Clemency. The Governor may grant reprieves in a case of treason, but may not pardon in such a case until after the end of the next session of the Senate. Const. art. IV, § 1. Executive clemency is not an expungement of a criminal offence. 6 R. Stat. § 131.609(a). Rule 38.1 governs clemency and the restoration of rights.
Execution of the Sentence.
Manner. A death sentence shall be executed by firing squad to be carried out in accordance with the warrant of execution. The warrant of execution may be administered at any point in time during or after pre-execution imprisonment. 6 R. Stat. § 131.405.
Custody. The sheriff shall deliver a person sentenced to death to a jail or prison facility for the allotted time determined during sentencing. 6 R. Stat. § 131.406. The Clerk shall transmit a copy of the judgment to the sheriff and to the Department of Corrections.
Return. The officer who carries out the warrant of execution shall make a return to the court, which the Clerk shall enter upon the docket.
Record. The Clerk shall enter upon the docket the notice filed under Rule 28.3(b), the commencement and conclusion of the sentencing phase, the findings entered under Rule 28.3(d), the judgment, the notice given to the Governor, any warrant of execution, any stay, the transmission of the record to the Supreme Court, and the return made under Rule 28.3(g)(3).