532.025 Presentence hearings -- Use of juvenile court records -- Aggravating or mitigating circumstances -- Instructions to jury

532.025 Presentence hearings -- Use of juvenile court records -- Aggravating or

mitigating circumstances -- Instructions to jury.

(1) (a) Upon conviction of a defendant in cases where the death penalty may be

imposed, a hearing shall be conducted. In such hearing, the judge shall hear

additional evidence in extenuation, mitigation, and aggravation of

punishment, including the record of any prior criminal convictions and pleas

of guilty or pleas of nolo contendere of the defendant, or the absence of any

prior conviction and pleas; provided, however, that only such evidence in

aggravation as the state has made known to the defendant prior to his or her

trial shall be admissible. Subject to the Kentucky Rules of Evidence, juvenile

court records of adjudications of guilt of a child for an offense that would be a

felony if committed by an adult shall be admissible in court at any time the

child is tried as an adult, or after the child becomes an adult, at any

subsequent criminal trial relating to that same person. Juvenile court records

made available pursuant to this section may be used for impeachment

purposes during a criminal trial and may be used during the sentencing phase

of a criminal trial; however, the fact that a juvenile has been adjudicated

delinquent of an offense that would be a felony if the child had been an adult

shall not be used in finding the child to be a persistent felony offender based

upon that adjudication. Release of the child's treatment, medical, mental, or

psychological records is prohibited unless presented as evidence in Circuit

Court. Release of any records resulting from the child's prior abuse and

neglect under Title IV-E or IV-B of the Federal Social Security Act is also

prohibited. The judge shall also hear argument by the defendant or his or her

counsel and the prosecuting attorney, as provided by law, regarding the

punishment to be imposed. The prosecuting attorney shall open and the

defendant shall conclude the argument. In cases in which the death penalty

may be imposed, the judge when sitting without a jury shall follow the

additional procedure provided in subsection (2) of this section. Upon the

conclusion of the evidence and arguments, the judge shall impose the sentence

or shall recess the trial for the purpose of taking the sentence within the limits

prescribed by law. If the trial court is reversed on appeal because of error only

in the presentence hearing, the new trial which may be ordered shall apply

only to the issue of punishment.

(b) In all cases in which the death penalty may be imposed and which are tried by

a jury, upon a return of a verdict of guilty by the jury, the court shall resume

the trial and conduct a presentence hearing before the jury. Such hearing shall

be conducted in the same manner as presentence hearings conducted before

the judge as provided in paragraph (a) of this subsection, including the record

of any prior criminal convictions and pleas of guilty or pleas of nolo

contendere of the defendant. Upon the conclusion of the evidence and

arguments, the judge shall give the jury appropriate instructions, and the jury

shall retire to determine whether any mitigating or aggravating circumstances,

as defined in subsection (2) of this section, exist and to recommend a sentence

for the defendant. Upon the findings of the jury, the judge shall fix a sentence

within the limits prescribed by law.

(2) In all cases of offenses for which the death penalty may be authorized, the judge

shall consider, or include in his or her instructions to the jury for it to consider, any

mitigating circumstances or aggravating circumstances otherwise authorized by law

and any of the following statutory aggravating or mitigating circumstances which

may be supported by the evidence:

its prescribed by law.

(2) In all cases of offenses for which the death penalty may be authorized, the judge

shall consider, or include in his or her instructions to the jury for it to consider, any

mitigating circumstances or aggravating circumstances otherwise authorized by law

and any of the following statutory aggravating or mitigating circumstances which

may be supported by the evidence:

(a) Aggravating circumstances:

1. The offense of murder or kidnapping was committed by a person with a

prior record of conviction for a capital offense, or the offense of murder

was committed by a person who has a substantial history of serious

assaultive criminal convictions;

2. The offense of murder or kidnapping was committed while the offender

was engaged in the commission of arson in the first degree, robbery in

the first degree, burglary in the first degree, rape in the first degree, or

sodomy in the first degree;

3. The offender by his or her act of murder, armed robbery, or kidnapping

knowingly created a great risk of death to more than one (1) person in a

public place by means of a weapon of mass destruction, weapon, or

other device which would normally be hazardous to the lives of more

than one (1) person;

4. The offender committed the offense of murder for himself, herself, or

another, for the purpose of receiving money or any other thing of

monetary value, or for other profit;

5. The offense of murder was committed by a person who was a prisoner

and the victim was a prison employee engaged at the time of the act in

the performance of his or her duties;

6. The offender's act or acts of killing were intentional and resulted in

multiple deaths;

7. The offender's act of killing was intentional and the victim was:

a. A state or local public official; or

b. A first responder, as defined in KRS 507.070;

8. The offender murdered the victim when an emergency protective order

or a domestic violence order was in effect, or when any other order

designed to protect the victim from the offender, such as an order issued

as a condition of a bond, conditional release, probation, parole, or

pretrial diversion, was in effect; and

9. The offender's act of killing was intentional and resulted in the death of

a child under twelve (12) years old.

(b) Mitigating circumstances:

1. The defendant has no significant history of prior criminal activity;

2. The capital offense was committed while the defendant was under the

influence of extreme mental or emotional disturbance even though the

influence of extreme mental or emotional disturbance is not sufficient to

constitute a defense to the crime;

3. The victim was a participant in the defendant's criminal conduct or

consented to the criminal act;

4. The capital offense was committed under circumstances which the

defendant believed to provide a moral justification or extenuation for his

or her conduct even though the circumstances which the defendant

believed to provide a moral justification or extenuation for his or her

conduct are not sufficient to constitute a defense to the crime;

5. The defendant was an accomplice in a capital offense committed by

another person and his or her participation in the capital offense was

relatively minor;

6. The defendant acted under duress or under the domination of another

person even though the duress or the domination of another person is not

sufficient to constitute a defense to the crime;

7. At the time of the capital offense, the capacity of the defendant to

appreciate the criminality of his or her conduct to the requirements of

law was impaired as a result of mental illness or an intellectual disability

or intoxication even though the impairment of the capacity of the

defendant to appreciate the criminality of his or her conduct or to

conform the conduct to the requirements of law is insufficient to

constitute a defense to the crime; and

8. The youth of the defendant at the time of the crime.

to the requirements of

law was impaired as a result of mental illness or an intellectual disability

or intoxication even though the impairment of the capacity of the

defendant to appreciate the criminality of his or her conduct or to

conform the conduct to the requirements of law is insufficient to

constitute a defense to the crime; and

8. The youth of the defendant at the time of the crime.

(3) The instructions as determined by the trial judge to be warranted by the evidence or

as required by KRS 532.030(4) shall be given in charge and in writing to the jury

for its deliberation. The jury, if its verdict be a recommendation of death, or

imprisonment for life without benefit of probation or parole, or imprisonment for

life without benefit of probation or parole until the defendant has served a minimum

of twenty-five (25) years of his or her sentence, shall designate in writing, signed by

the foreman of the jury, the aggravating circumstance or circumstances which it

found beyond a reasonable doubt. In nonjury cases, the judge shall make such

designation. In all cases unless at least one (1) of the statutory aggravating

circumstances enumerated in subsection (2) of this section is so found, the death

penalty, or imprisonment for life without benefit of probation or parole, or the

sentence to imprisonment for life without benefit of probation or parole until the

defendant has served a minimum of twenty-five (25) years of his or her sentence,

shall not be imposed.