GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2001

SENATE BILL 173
RATIFIED BILL

AN ACT TO PROVIDE THAT A MENTALLY RETARDED PERSON CONVICTED OF FIRST DEGREE MURDER SHALL NOT BE SENTENCED TO DEATH.    

The General Assembly of North Carolina enacts:

SECTION 1.  Article 100 of Chapter 15A of the General Statutes is amended by adding a new section to read:
"§ 15A-2005.  Mentally retarded defendants; death sentence prohibited.
(a)	(1)	The following definitions apply in this section:
a.	Mentally retarded. – Significantly subaverage general intellectual functioning, existing concurrently with significant limitations in adaptive functioning, both of which were manifested before the age of 18.
b.	Significant limitations in adaptive functioning. – Significant limitations in two or more of the following adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure skills and work skills.
c.	Significantly subaverage general intellectual functioning. – An intelligence quotient of 70 or below.
(2)	The defendant has the burden of proving significantly subaverage general intellectual functioning, significant limitations in adaptive functioning, and that mental retardation was manifested before the age of 18.  An intelligence quotient of 70 or below on an individually administered, scientifically recognized standardized intelligence quotient test administered by a licensed psychiatrist or psychologist is evidence of significantly subaverage general intellectual functioning; however, it is not sufficient, without evidence of significant limitations in adaptive functioning and without evidence of manifestation before the age of 18, to establish that the defendant is mentally retarded.
(b)	Notwithstanding any provision of law to the contrary, no defendant who is mentally retarded shall be sentenced to death.
(c)	Upon motion of the defendant, supported by appropriate affidavits, the court may order a pretrial hearing to determine if the defendant is mentally retarded. The court shall order such a hearing with the consent of the State.  The defendant has the burden of production and persuasion to demonstrate mental retardation by clear and convincing evidence. If the court determines the defendant to be mentally retarded, the court shall declare the case noncapital, and the State may not seek the death penalty against the defendant.
(d)	The pretrial determination of the court shall not preclude the defendant from raising any legal defense during the trial.
(e)	If the court does not find the defendant to be mentally retarded in the pretrial proceeding, upon the introduction of evidence of the defendant's mental retardation during the sentencing hearing, the court shall submit a special issue to the jury as to whether the defendant is mentally retarded as defined in this section. This special issue shall be considered and answered by the jury prior to the consideration of aggravating or mitigating factors and the determination of sentence. If the jury determines the defendant to be mentally retarded, the court shall declare the case noncapital and the defendant shall be sentenced to life imprisonment.
(f)	The defendant has the burden of production and persuasion to demonstrate mental retardation to the jury by a preponderance of the evidence.
(g)	If the jury determines that the defendant is not mentally retarded as defined by this section, the jury may consider any evidence of mental retardation presented during the sentencing hearing when determining aggravating or mitigating factors and the defendant's sentence.
(h)	The provisions of this section do not preclude the sentencing of a mentally retarded offender to any other sentence authorized by G.S. 14-17 for the crime of murder in the first degree."
SECTION 2.  G.S. 15A‑2000(b) reads as rewritten:
"(b)	Sentence Recommendation by the Jury. – Instructions determined by the trial judge to be warranted by the evidence shall be given by the court in its charge to the jury prior to its deliberation in determining sentence. The court shall give appropriate instructions in those cases in which evidence of the defendant's mental retardation requires the consideration by the jury of the provisions of G.S. 15A-2005.  In all cases in which the death penalty may be authorized, the judge shall include in his instructions to the jury that it must consider any aggravating circumstance or circumstances or mitigating circumstance or circumstances from the lists provided in subsections (e) and (f) which may be supported by the evidence, and shall furnish to the jury a written list of issues relating to such aggravating or mitigating circumstance or circumstances.
After hearing the evidence, argument of counsel, and instructions of the court, the jury shall deliberate and render a sentence recommendation to the court, based upon the following matters:
(1)	Whether any sufficient aggravating circumstance or circumstances as enumerated in subsection (e) exist;
(2)	Whether any sufficient mitigating circumstance or circumstances as enumerated in subsection (f), which outweigh the aggravating circumstance or circumstances found, exist; and
(3)	Based on these considerations, whether the defendant should be sentenced to death or to imprisonment in the State's prison for life.
The sentence recommendation must be agreed upon by a unanimous vote of the 12 jurors. Upon delivery of the sentence recommendation by the foreman of the jury, the jury shall be individually polled to establish whether each juror concurs and agrees to the sentence recommendation returned.
If the jury cannot, within a reasonable time, unanimously agree to its sentence recommendation, the judge shall impose a sentence of life imprisonment; provided, however, that the judge shall in no instance impose the death penalty when the jury cannot agree unanimously to its sentence recommendation."
SECTION 3.  Article 100 of Chapter 15A of the General Statutes is amended by adding a new section to read:
"§ 15A-2006. Request for postconviction determination of mental retardation.
In cases in which the defendant has been convicted of first-degree murder, sentenced to death, and is in custody awaiting imposition of the death penalty, the following procedures apply:
(1)	Notwithstanding any other provision or time limitation contained in Article 89 of Chapter 15A, a defendant may seek appropriate relief from the defendant's death sentence upon the ground that the defendant was mentally retarded, as defined in G.S. 15A-2005(a), at the time of the commission of the capital crime.
(2)	A motion seeking appropriate relief from a death sentence on the ground that the defendant is mentally retarded, shall be filed:
a.	On or before January 31, 2002, if the defendant's conviction and sentence of death were entered prior to October 1, 2001.
b.	Within 120 days of the imposition of a sentence of death, if the defendant's trial was in progress on October 1, 2001. For purposes of this section, a trial is considered to be in progress if the process of jury selection has begun.
(3)	The motion, seeking relief from a death sentence upon the ground  that the defendant was mentally retarded, shall comply with the provisions of G.S. 15A-1420.  The procedures and hearing on the motion shall follow and comply with G.S. 15A-1420."
SECTION 4.  Sections 1 and 2 of this act become effective October 1, 2001, and apply to trials docketed to begin on or after that date.  Section 3 of this act becomes effective October 1, 2001, and expires October 1, 2002.  Section 4 of this act is effective when it becomes law.
In the General Assembly read three times and ratified this the 25th day of July, 2001.

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		 Beverly E. Perdue
	 President of the Senate

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		 James B. Black
	 Speaker of the House of Representatives

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		 Michael F. Easley
	 Governor

Approved __________.m. this ______________ day of ___________________, 2001