WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
Introduced
Senate Bill 307
By Senators Phillips, Deeds, Hamilton, Jeffries, and
Woodrum
[Introduced January 12, 2024; referred
to the Committee on the Judiciary; and then to the
Committee on Finance]
FISCAL
NOTE
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A BILL to amend and reenact §61-2-2 of the Code of West Virginia, 1931, as amended; to amend
said code by adding thereto seven new sections, designated §61-2-2a, §61-2-2b, §61-2-
2c, §61-2-2d, §61-2-2e, §61-2-2f, and §61-2-2g; to repeal §61-11-2 of said code; to amend
said code by adding thereto four new sections; designated §62-7-4, §62-7-5, §62-7-6, and
§62-7-6a, and to repeal §62-3-15 of said code; all relating to the Patrolman Cassie Marie
Johnson Memorial Act and the death penalty for first degree murder; providing for
procedures, standards, and findings applicable to imposition thereof in certain instances
including aggravating and mitigating circumstances; sentencing; providing automatic
review of the death penalty by the Supreme Court of Appeals; providing for forensic
deoxyribonucleic acid testing of biological material in death penalty cases; providing for
execution of the death sentence by lethal injection; providing for delivery of sentence of
death to officer retaining custody of person so sentenced; providing for transmission of
indictment, order of conviction, sentence, and judgment entered thereon to the warden of
the state correctional facility; transferring of person sentenced to death to the state
correctional facility; execution; providing presence of certain persons be requested for the
execution; providing for certification that sentence of death has been executed; and
providing for disposition of the body.
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PREAMBLE: THIS LAW SHALL BE DESIGNATED AS THE PATROLMAN CASSIE MARIE
JOHNSON MEMORIAL ACT
Be it enacted by the Legislature of West Virginia:
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-2. Penalty for murder in first degree.
Any person convicted of murder of in the first degree shall be punished by confinement in
the penitentiary for life sentenced to death if any one or more of the aggravating circumstances
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enumerated in §61-2-2b of this code have been charged and found to be true without a finding of
any one or more of the mitigating circumstances enumerated in §61-2-2c of this code. Any person
otherwise convicted of murder in the first degree is sentenced to confinement in a state
correctional facility for life without probation or parole.
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§61-2-2a. Sentencing procedures for murder in the first degree.
(a) Procedure in jury trials. --
After a verdict of murder in the first degree is recorded and before the jury is discharged,
the court shall conduct a separate sentencing hearing in which the jury shall determine whether
the defendant shall be sentenced to death or life imprisonment. In the sentencing hearing,
evidence may be presented as to any matter that the court determines relevant and admissible on
the question of the sentence to be imposed, including evidence relating to any of the aggravating
or mitigating circumstances specified in §61-2-2b and §61-2-2c of this code. Evidence of
aggravating circumstances shall be limited to those circumstances specified in §61-2-2b of this
code. After the presentation of evidence, the court shall permit counsel to present argument for
and against the sentence of death. The court shall then instruct the jury in accordance with
subsection (c) of this section. Failure of the jury to unanimously agree upon a sentence does not
impeach or in any way affect the guilty verdict previously recorded.
(b) Procedure in nonjury trials and guilty pleas. --
If the defendant waives a jury trial or pleads guilty, the sentencing proceeding shall be
conducted before a jury impaneled for that purpose unless waived by the defendant with the
consent of the state, in which latter case the trial judge shall hear the evidence and determine the
penalty in the same manner as would a jury.
(c) Instructions to jury. --
Before retiring to determine the imposition of sentence, the jury shall be instructed by the
court as to the following:
(1) The aggravating circumstances specified in §61-2-2b of this code for which any
evidence has been presented;
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(2) Mitigating circumstances, including those specified in §61-2-2c of this code, for which
any evidence has been presented;
(3) Aggravating circumstances must be proved by the state beyond a reasonable doubt.
Mitigating circumstances must be proved by the defendant by a preponderance of the evidence;
(4) The sentence shall be a sentence of death if the jury unanimously finds at least one
aggravating circumstance specified in §61-2-2b of this code and no mitigating circumstance or if
the jury unanimously finds one or more aggravating circumstances which outweigh all mitigating
circumstances. The sentence shall be life imprisonment without probation or parole in all other
cases;
(5) The court may discharge the jury if it is of the opinion that further deliberation will not
result in a unanimous agreement as to the sentence, in which case the court shall sentence the
defendant to life imprisonment; and
(6) The court shall instruct the jury on any other matter that may be just and proper under
the circumstances.
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§61-2-2b. Aggravating circumstances for imposition of capital punishment.
(a) When a defendant is convicted of murder in the first degree, aggravating circumstances
shall be limited to the following:
(1) The murder occurred when the defendant was incarcerated, or under order of
incarceration in a municipal, county or state correctional institution, or if the murder occurred while
defendant was an escaped convict;
(2) The victim was a fireman, law-enforcement officer, correctional officer, parole officer,
judicial officer or any other public servant killed while in the performance of his or her official duty;
(3) The defendant paid, or was paid by, another person or had contracted to pay, or to be
paid by, another person or had conspired to pay, or to be paid by, another person to kill the victim;
(4) The victim was being held by the defendant for ransom or reward or as a shield or
hostage;
(5) The death of the victim occurred while the defendant was engaged in the hijacking of an
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aircraft;
(6) The victim was a prosecution witness to a murder or other felony committed by the
defendant and was killed for the purpose of preventing his or her testimony against the defendant
in any grand jury or court proceedings;
(7) The defendant committed the murder while in the commission of a felony;
(8) In the commission of the offense the defendant knowingly created a grave risk of death
to another person in addition to the victim of the offense;
(9) The murder was especially heinous, atrocious or cruel, manifesting exceptional
depravity;
(10) The murder was the result of or was contributed to by the defendant’s use of a
controlled substance;
(11) The defendant has a significant history of felony convictions involving the use or threat
of violence to the person;
(12) The defendant has been convicted of another federal or state offense, committed
either before or at the time of the murder at issue, for which a sentence of life imprisonment or
death could be imposed, or the defendant was serving a sentence of life imprisonment for any
reason at the time of the commission of the murder; and
(13) The defendant has been convicted of another crime under the provisions of chapter
60A of this code at the time of the commission of the murder at issue.
(b) A finding of aggravated circumstances may not be based on circumstantial evidence
but requires some physical evidence, such as forensic DNA evidence, or an uncoerced
confession.
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§61-2-2c. Mitigating circumstances for imposition of capital punishment.
When a defendant is convicted of murder in the first degree, mitigating circumstances
include the following:
(1) The defendant has no significant history of prior criminal convictions;
(2) The defendant was under the influence of extreme mental or emotional disturbance at
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the time of the commission of the murder at issue;
(3) The capacity of the defendant to appreciate the criminality of his or her conduct or to
conform his or her conduct to the requirements of the law was substantially impaired at the time of
the commission of the murder at issue;
(4) The age of the defendant at the time of the murder at issue;
(5) The defendant acted under extreme duress, or acted under the substantial domination
of another person at the time of the commission of the murder at issue;
(6) The victim was a participant in the defendant's murderous conduct or consented to the
murderous acts;
(7) The defendant's participation in the murder at issue was relatively minor; and
(8) Any other evidence of mitigation concerning the character and record of the defendant
and the circumstances of the murder.
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§61-2-2d. Sentencing verdict by the jury.
After hearing all the evidence and arguments by counsel and after receiving the
instructions from the court, the jury shall deliberate and render a sentencing verdict. In rendering
the verdict, the jury shall set forth in writing the findings upon which the sentence is based. Based
upon these findings, the jury shall set forth in writing whether the sentence is death or life
imprisonment without probation or parole.
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§61-2-2e. Recording sentencing verdict; imposing sentence.
Whenever the jury agrees upon a sentencing verdict, it shall be received and recorded by
the court. The court shall thereafter impose upon the defendant the sentence fixed by the jury. In
any case in which the death penalty is imposed, execution shall be by lethal injection.
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§61-2-2f. Review of death sentence.
(a) Whenever the death penalty is imposed and upon the judgment becoming final in the
circuit court, the sentence shall automatically be reviewed on the record by the Supreme Court of
Appeals. The clerk of the circuit court, within 10 days after receiving the transcript, shall transmit
the entire record and transcript to the Supreme Court of Appeals together with a notice prepared
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by the clerk and a report prepared by the circuit judge. The notice shall set forth the title and docket
number of the case, the name of the defendant and the name and address of his or her attorney, a
narrative statement of the judgment, the offense and the punishment prescribed. The report shall
be in a standard form prepared and supplied by the Supreme Court of Appeals.
(b) The Supreme Court of Appeals shall consider the punishment as well as any errors
enumerated by way of appeal.
(c) With regard to the sentence, the Supreme Court of Appeals shall determine:
(1) Whether the sentence of death was imposed under the influence of passion, prejudice
or any other arbitrary factor;
(2) Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating
circumstance; and
(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed
in similar cases, considering both the crime and the defendant.
(d) Both the defendant and the state shall have the right to submit briefs within the time
limitations set forth in the rules by the Supreme Court of Appeals, and to present oral argument to
the Supreme Court of Appeals.
(e) The Supreme Court of Appeals shall render a written decision which shall include a
reference to those similar cases which it took into consideration. The Supreme Court of Appeals,
with regard to review of death sentences, shall:
(1) Affirm the sentence of death; or
(2) Set the sentence aside and remand the case for resentencing by the circuit judge
based on the record and argument of counsel. The records of those similar cases referred to by
the Supreme Court of Appeals in its written decision shall be provided to the resentencing judge
for his or her consideration.
(f) The Supreme Court of Appeals may employ an appropriate staff and establish methods
to compile any cases or information considered by the chief justice to be appropriate and relevant
to the statutory questions concerning the validity of the sentence.
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(g) The sentence review shall be in addition to direct appeal, if taken, and the review and
appeal shall be consolidated for consideration. The Supreme Court of Appeals shall render its
decision on legal errors enumerated, the factual substantiation of the verdict and the validity of the
sentence.
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§61-2-2g. DNA testing in death penalty cases.
(a) Notwithstanding any other provision of law to the contrary, a person in custody pursuant
to the judgment of a court of this state in which the death penalty has been imposed may, at any
time after conviction, apply to the court that entered the judgment for forensic deoxyribonucleic
acid ("DNA") testing of any biological material that:
(1) Is related to the investigation or prosecution that resulted in the judgment;
(2) Is in the actual or constructive possession of the state; and
(3) Was not previously subjected to DNA testing, or can be subjected to retesting with new
DNA techniques that provide a reasonable likelihood of more accurate and probative results.
(b) The court shall notify the state of an application made under subsection (a) of this
section and shall afford the state an opportunity to respond.
(c) Upon receiving notice of an application made under subsection (a) of this section, the
state shall take such steps as are necessary to ensure that any remaining biological material that
was secured in connection with the case is preserved pending the completion of proceedings
under this section.
(d) The court shall order DNA testing pursuant to an application made under subsection (a)
of this section upon a determination that testing may produce noncumulative, exculpatory
evidence relevant to the claim of the applicant that the applicant was wrongfully convicted or
sentenced.
(e) The cost of DNA testing ordered under subsection (d) of this section shall be borne by
the state or the applicant, as the court may order in the interests of justice, if it is shown that the
applicant is not indigent and possesses the means to pay.
(f) The court may at any time appoint counsel for an indigent applicant under this section.
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(g) If the results of DNA testing conducted under this section are unfavorable to the
applicant, the court:
(1) Shall dismiss the application; and
(2) In the case of an applicant who is not indigent, may assess the applicant for the cost of
such testing.
(h) If the results of DNA testing conducted under this section are favorable to the applicant,
the court shall:
(1) Order a hearing, notwithstanding any provision of law that would bar such a hearing;
and
(2) Enter any order that serves the interests of justice, including an order:
(A) Vacating and setting aside the judgment;
(B) Discharging the applicant if the applicant is in custody;
(C) Resentencing the applicant; or
(D) Granting a new trial.
(i) Nothing in this section may be construed to limit the circumstances under which a
person may obtain DNA testing or other post-conviction relief under any other provision of law.
(j) Notwithstanding any other provision of law, the state shall preserve any biological
material secured in connection with a death penalty case for such period of time as a person
remains incarcerated awaiting execution under a death penalty sentence.
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
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§61-11-2. Capital punishment abolished.
[Repealed.]1
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 3. TRIAL OF CRIMINAL CASES.
§62-3-15. Verdict and sentence in murder cases.
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[Repealed.]1
ARTICLE 7. EXECUTION OF SENTENCES; STAYS.
§62-7-4. Execution of death sentence.
Sentence of death, except for insurrection or rebellion, may not be executed sooner than
three months after the sentence is pronounced. The sentence of death shall, in every case, be
executed by lethal injection. The sentence shall be executed within the walls of a state correctional
facility within an enclosure prepared for that purpose and constructed so as to exclude public view.
The execution shall be performed under the direction of the warden of the state correctional facility
and the authorities in control thereof. The warden of the state correctional facility or, in the case of
his or her death, absence or inability to act, the Commissioner of Corrections shall be the
executioner. In carrying out the execution of sentence, the warden or the Commissioner of
Corrections may secure the services and advice of any person or persons either considers
appropriate.
§62-7-5. Certificate of death sentence and indictment to be sent to warden; transfer of
convict to a state correctional facility; persons present at execution.
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The clerk of the court which pronounces the sentence of death shall, as soon as possible
after sentence, deliver a certified copy of the sentence to the sheriff, who shall retain the custody of
the convict sentenced to death until he or she is delivered to a properly authorized guard sent by
the warden for the removal of the convict to the state correctional facility. The clerk of the court
shall also forthwith transmit to the warden of the state correctional facility a copy of the indictment,
order of conviction and the sentence and judgment entered thereon. As soon as possible after
receipt of the copies the warden shall send a guard or guards to remove the convict to the state
correctional facility. Unless a suspension of execution is ordered, the execution shall take place at
the time and in the manner prescribed in the sentencing order. At the execution there may be
present those officers, guards and assistants as the warden or Commissioner of Corrections
considers appropriate. The warden or the commissioner, as the case may be, shall request the
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presence of the prosecuting attorney of the county wherein the conviction occurred, the clerk of
the circuit court thereof, 12 respectable citizens, including a physician and representatives of the
press as may be considered appropriate. The counsel of the convict, or any clergymen the convict
may desire and any of the convict’s relations may be permitted to attend.
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§62-7-6. Record of execution.
The warden or Commissioner of Corrections who executes the sentence of death shall
certify to the clerk of the circuit court, by which the sentence was imposed, that the sentence has
been executed. The clerk of the circuit court shall file the certificate with the papers of the case and
enter the certificate and papers upon the records of the court.
§62-7-6a. Disposition of body of executed convict.
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If the friends or relatives of the convict make a request in writing to the warden at any time
within two days after the sentence of death has been executed, the body of the convict shall be
returned to the friends or relatives, in any county in the state, for burial. The warden may draw his
or her order on the Auditor of the state for whatever sum is necessary to pay for transportation of
the body, to be paid out of funds appropriated to the Division of Corrections. If no request is made
by friends or relatives, the body shall be disposed of as provided for other convicts who die within a
state correctional facility.
NOTE: The purpose of this bill is to create the Patrolman Cassie Marie Johnson Memorial
Act and to provide for a death penalty; the bill provides for procedures and standards
applicable thereto, and automatic review of the penalty, for commission of murder in the first
degree. Procedures for carrying out the death sentence are established.
Strike-throughs indicate language that would be stricken from a heading or the present law
and underscoring indicates new language that would be added.
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