§706-657  Enhanced sentence for second
degree murder.  The court may sentence a person who has been convicted of
murder in the second degree to life imprisonment without possibility of parole
under section 706-656 if the court finds that the murder was especially
heinous, atrocious, or cruel, manifesting exceptional depravity or that the
person was previously convicted of the offense of murder in the first degree or
murder in the second degree in this State or was previously convicted in
another jurisdiction of an offense that would constitute murder in the first
degree or murder in the second degree in this State.  As used in this section,
the phrase "especially heinous, atrocious, or cruel, manifesting
exceptional depravity" means a conscienceless or pitiless crime which is
unnecessarily torturous to a victim and "previously convicted" means
a sentence imposed at the same time or a sentence previously imposed which has
not been set aside, reversed, or vacated.



Hearings to determine the grounds for imposing
an enhanced sentence for second degree murder may be initiated by the
prosecutor or by the court on its own motion.  The court shall not impose an
enhanced term unless the ground therefor has been established at a hearing
after the conviction of the defendant and on written notice to the defendant of
the ground proposed.  Subject to the provision of section 706-604, the
defendant shall have the right to hear and controvert the evidence against the
defendant and to offer evidence upon the issue.



The provisions pertaining to commutation in
section 706-656(2), shall apply to persons sentenced pursuant to this section.
[L 1993, c 271, §1; am L 1996, c 15, §2]



 



COMMENTARY ON §706-657



 



  Act 271, Session Laws 1993, added this section to give
discretion to the court to sentence an individual, in a second degree murder
case evidencing exceptional depravity, to life imprisonment without possibility
of parole under §706-656.  The legislature felt that this discretion should be
limited to those situations in which the circumstances demonstrate that the
individual who committed the crime is exceptionally depraved, and therefore
should receive the enhanced sentence.  House Standing Committee Report No.
1171, Senate Standing Committee Report No. 689.



  Act 15, Session Laws 1996, amended this section to provide
that a court may sentence a person convicted of murder in the second degree to
life imprisonment without the possibility of parole, if the person had a prior
conviction for murder.  The Act addressed the problem encountered by the
prosecution in Briones v. State, 74 H. 442 (1993), in attempting to obtain a
conviction of the defendant for murder in the first degree for killing two
persons.  The supreme court held in Briones v. State that the defendant must
have had the prior intent or state of mind to kill two persons before the
defendant killed the first person, for a conviction for murder in the first
degree, which has a sentence of life imprisonment without parole.  The
legislature's intent was to permit a court to sentence a defendant to life
imprisonment without the possibility of parole when the defendant commits two
or more murders.  Senate Standing Committee Report No. 2592, House Standing
Committee Report No. 221-96.



 



Case Notes



 



  The findings necessary to impose an enhanced sentence under
this section must be made by the trier of fact; if the prosecution elects to
seek an enhanced sentence pursuant to this section, it must be alleged in the
complaint.  92 H. 19, 986 P.2d 306.



  Section requires State to prove, beyond a reasonable doubt,
that the victim suffered unnecessary torture and that the defendant
intentionally or knowingly inflicted unnecessary torture upon the victim;
"unnecessary torture" means the infliction of extreme physical or
mental suffering, beyond that which necessarily accompanies the underlying
killing.  93 H. 224, 999 P.2d 230.



  Trial court erred in imposing enhanced sentence under this
section where court's findings of fact regarding whether victim screamed or
incurred defensive wounds were clearly erroneous and there was no substantial
evidence that victim suffered unnecessary torture.  93 H. 224, 999 P.2d 230.



  Jury's findings whether murder was "especially heinous,
atrocious, or cruel, manifesting exceptional depravity"; unanimity requirement
clarified.  95 H. 1, 18 P.3d 203.



  Section not unconstitutionally vague as section provides
adequate guidance to a fact-finder charged with determining whether a murder
was "especially heinous, atrocious, or cruel, manifesting exceptional
depravity" and provides adequate notice to the person of ordinary
intelligence that an enhanced sentence may be imposed if he or she
intentionally or knowingly inflicts unnecessary torture on the murder victim
and the victim in fact suffers unnecessary torture.  95 H. 1, 18 P.3d 203.



  Sentence for murder not an extended term.  6 H. App. 409, 723
P.2d 186.