As Passed by the Senate 1
122nd General Assembly 4
Regular Session Sub. S. B. No. 193 5
1997-1998 6
SENATORS SUHADOLNIK-WATTS-WHITE-GAETH-SCHAFRATH-CARNES- 8
GARDNER-ZALESKI-SWEENEY-CUPP-LATELL-BLESSING-LATTA- 9
B. JOHNSON-HOWARD-OELSLAGER-RAY 10
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A B I L L
To amend sections 2903.01 and 2929.04 of the Revised 14
Code to expand aggravated murder to also include 15
purposely causing the death of a law enforcement
officer or of a Department of Rehabilitation and 16
Correction employee who is acting within the 17
course and scope of the employee's duties and to
enact a capital punishment aggravating 19
circumstance that includes the killing in
specified circumstances of a Department of 20
Rehabilitation and Correction employee.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 22
Section 1. That sections 2903.01 and 2929.04 of the 24
Revised Code be amended to read as follows: 25
Sec. 2903.01. (A) No person shall purposely, and with 34
prior calculation and design, cause the death of another or the 35
unlawful termination of another's pregnancy. 36
(B) No person shall purposely cause the death of another 38
or the unlawful termination of another's pregnancy while 40
committing or attempting to commit, or while fleeing immediately 41
after committing or attempting to commit kidnapping, rape, 42
aggravated arson or arson, aggravated robbery or robbery,
aggravated burglary or burglary, or escape. 43
(C) No person shall purposely cause the death of another 45
who is under thirteen years of age at the time of the commission 46
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of the offense.
(D) NO PERSON SHALL PURPOSELY CAUSE THE DEATH OF EITHER OF 48
THE FOLLOWING:
(1) A LAW ENFORCEMENT OFFICER; 51
(2) AN EMPLOYEE OF THE DEPARTMENT OF REHABILITATION AND 53
CORRECTION WHO IS ACTING WITHIN THE COURSE AND SCOPE OF THE 54
EMPLOYEE'S DUTIES.
(E) Whoever violates this section is guilty of aggravated 56
murder, and shall be punished as provided in section 2929.02 of 57
the Revised Code. 58
(E)(F) No person shall be convicted of aggravated murder 60
unless the person is specifically found to have intended to cause 61
the death of another or, if the case involves an alleged 62
violation of division (A) or (B) of this section, the unlawful 63
termination of another's pregnancy. In no case shall a jury in 64
an aggravated murder case be instructed in such a manner that it 65
may believe that a person who commits or attempts to commit any 66
offense listed in division (B) of this section is to be 67
conclusively inferred, because the person engaged in a common 68
design with others to commit the offense by force and violence or 69
because the offense and the manner of its commission would be 70
likely to produce death or the unlawful termination of another's 71
pregnancy, to have intended to cause the death of any person who 72
is killed or the unlawful termination of another's pregnancy 73
during the commission of, attempt to commit, or flight from the 75
commission of or attempt to commit, the offense. If a jury in an 76
aggravated murder case is instructed that a person who commits or 77
attempts to commit any offense listed in division (B) of this 78
section may be inferred, because the offender engaged in a common
design with others to commit the offense by force or violence or 79
because the offense and the manner of its commission would be 80
likely to produce death or the unlawful termination of another's 81
pregnancy, to have intended to cause the death of any person who 83
is killed or the unlawful termination of another's pregnancy 84
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during the commission of, attempt to commit, or flight from the 85
commission of or attempt to commit the offense, the jury also 86
shall be instructed that the inference is nonconclusive, that the 87
inference may be considered in determining intent, that it is to 88
consider all evidence introduced by the prosecution to indicate 89
the person's intent and by the person to indicate the person's 90
lack of intent in determining whether the person specifically 92
intended to cause the death of the person killed or the unlawful 93
termination of another's pregnancy, and that the prosecution must 94
prove the specific intent of the person to have caused the death 95
or the unlawful termination of another's pregnancy by proof 96
beyond a reasonable doubt. 97
Sec. 2929.04. (A) Imposition of the death penalty for 108
aggravated murder is precluded unless one or more of the 109
following is specified in the indictment or count in the 110
indictment pursuant to section 2941.14 of the Revised Code and 111
proved beyond a reasonable doubt: 112
(1) The offense was the assassination of the president of 114
the United States or a person in line of succession to the 115
presidency, the governor or lieutenant governor of this state, 117
the president-elect or vice president-elect of the United States, 118
the governor-elect or lieutenant governor-elect of this state, or 119
a candidate for any of the offices described in this division. 120
For purposes of this division, a person is a candidate if the 122
person has been nominated for election according to law, if the 123
person has filed a petition or petitions according to law to have 124
the person's name placed on the ballot in a primary or general 125
election, or if the person campaigns as a write-in candidate in a 126
primary or general election.
(2) The offense was committed for hire. 128
(3) The offense was committed for the purpose of escaping 130
detection, apprehension, trial, or punishment for another offense 131
committed by the offender. 132
(4) The offense was committed while the offender was a 134
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prisoner in a detention facility, as defined in section 2921.01 135
of the Revised Code. 136
(5) Prior to the offense at bar, the offender was 138
convicted of an offense an essential element of which was the 139
purposeful killing of or attempt to kill another, or the offense 140
at bar was part of a course of conduct involving the purposeful 141
killing of or attempt to kill two or more persons by the 142
offender. 143
(6) The victim of the offense was a law enforcement 145
officer, as defined in section 2911.01 of the Revised Code, whom 146
the offender had reasonable cause to know or knew to be a law 147
enforcement officer as so defined, and either the victim, at the 149
time of the commission of the offense, was engaged in the 150
victim's duties, or it was the offender's specific purpose to 151
kill a law enforcement officer as so defined.
(7) The offense was committed while the offender was 153
committing, attempting to commit, or fleeing immediately after 154
committing or attempting to commit kidnapping, rape, aggravated 155
arson, aggravated robbery, or aggravated burglary, and either the 156
offender was the principal offender in the commission of the 157
aggravated murder or, if not the principal offender, committed 158
the aggravated murder with prior calculation and design. 159
(8) The victim of the aggravated murder was a witness to 161
an offense who was purposely killed to prevent the victim's 162
testimony in any criminal proceeding and the aggravated murder 163
was not committed during the commission, attempted commission, or 164
flight immediately after the commission or attempted commission 165
of the offense to which the victim was a witness, or the victim 166
of the aggravated murder was a witness to an offense and was 167
purposely killed in retaliation for the victim's testimony in any 168
criminal proceeding. 169
(9) The offender, in the commission of the offense, 171
purposefully caused the death of another who was under thirteen 172
years of age at the time of the commission of the offense, and 173
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either the offender was the principal offender in the commission 174
of the offense or, if not the principal offender, committed the 175
offense with prior calculation and design. 176
(10) THE VICTIM OF THE OFFENSE WAS AN EMPLOYEE OF THE 179
DEPARTMENT OF REHABILITATION AND CORRECTION, AND EITHER OF THE 180
FOLLOWING APPLIES:
(a) THE VICTIM, AT THE TIME OF THE COMMISSION OF THE 183
OFFENSE, WAS ENGAGED IN THE VICTIM'S DUTIES AS AN EMPLOYEE OF THE 184
DEPARTMENT.
(b) IT WAS THE OFFENDER'S SPECIFIC PURPOSE TO KILL THE 187
VICTIM BECAUSE THE VICTIM WAS AN EMPLOYEE OF THE DEPARTMENT, OR 188
IT WAS THE OFFENDER'S SPECIFIC PURPOSE TO KILL ANY EMPLOYEE OF 189
THE DEPARTMENT.
(B) If one or more of the aggravating circumstances listed 191
in division (A) of this section is specified in the indictment or 192
count in the indictment and proved beyond a reasonable doubt, and 193
if the offender did not raise the matter of age pursuant to 194
section 2929.023 of the Revised Code or if the offender, after 195
raising the matter of age, was found at trial to have been 196
eighteen years of age or older at the time of the commission of 197
the offense, the court, trial jury, or panel of three judges 198
shall consider, and weigh against the aggravating circumstances 199
proved beyond a reasonable doubt, the nature and circumstances of 200
the offense, the history, character, and background of the 201
offender, and all of the following factors: 202
(1) Whether the victim of the offense induced or 204
facilitated it; 205
(2) Whether it is unlikely that the offense would have 207
been committed, but for the fact that the offender was under 208
duress, coercion, or strong provocation; 209
(3) Whether, at the time of committing the offense, the 211
offender, because of a mental disease or defect, lacked 212
substantial capacity to appreciate the criminality of the 213
offender's conduct or to conform the offender's conduct to the 215
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requirements of the law;
(4) The youth of the offender; 217
(5) The offender's lack of a significant history of prior 219
criminal convictions and delinquency adjudications; 220
(6) If the offender was a participant in the offense but 222
not the principal offender, the degree of the offender's 223
participation in the offense and the degree of the offender's 224
participation in the acts that led to the death of the victim; 225
(7) Any other factors that are relevant to the issue of 227
whether the offender should be sentenced to death. 228
(C) The defendant shall be given great latitude in the 230
presentation of evidence of the factors listed in division (B) of 231
this section and of any other factors in mitigation of the 232
imposition of the sentence of death. 233
The existence of any of the mitigating factors listed in 235
division (B) of this section does not preclude the imposition of 236
a sentence of death on the offender but shall be weighed pursuant 238
to divisions (D)(2) and (3) of section 2929.03 of the Revised 239
Code by the trial court, trial jury, or the panel of three judges 240
against the aggravating circumstances the offender was found 241
guilty of committing.
Section 2. That existing sections 2903.01 and 2929.04 of 243
the Revised Code are hereby repealed. 244
Section 3. Section 2929.04 of the Revised Code is 246
presented in this act as a composite of the section as amended by 247
both Sub. H.B. 151 and Am. S.B. 32 of the 122nd General Assembly, 248
with the new language of neither of the acts shown in capital 250
letters. This is in recognition of the principle stated in 251
division (B) of section 1.52 of the Revised Code that such 252
amendments are to be harmonized where not substantively 253
irreconcilable and constitutes a legislative finding that such is 254
the resulting version in effect prior to the effective date of 255
this act.