(1) (a) Upon conviction of guilt of a defendant of a class 1 felony, the trial court shall conduct a separate sentencing hearing to determine whether the defendant should be sentenced to death or life imprisonment, unless the defendant was under the age of eighteen years at the time of the commission of the offense, in which case the defendant shall be sentenced to life imprisonment. The hearing shall be conducted by the trial judge before the trial jury as soon as practicable. Alternate jurors shall not be excused from the case prior to submission of the issue of guilt to the trial jury and shall remain separately sequestered until a verdict is entered by the trial jury. If the verdict of the trial jury is that the defendant is guilty of a class 1 felony, the alternate jurors shall sit as alternate jurors on the issue of punishment. If, for any reason satisfactory to the court, any member or members of the trial jury are excused from participation in the sentencing hearing, the trial judge shall replace such juror or jurors with an alternate juror or jurors. If a trial jury was waived or if the defendant pleaded guilty, the hearing shall be conducted before the trial judge.
All admissible evidence presented by either the prosecuting attorney or the defendantthat the court deems relevant to the nature of the crime, and the character, background, and history of the defendant, including any evidence presented in the guilt phase of the trial, and any matters relating to any of the aggravating or mitigating factors enumerated in subsections (4) and (5) of this section may be presented. Any such evidence which the court deems to have probative value may be received, as long as each party is given an opportunity to rebut such evidence. The prosecuting attorney and the defendant or the defendant's counsel shall be permitted to present arguments for or against a sentence of death. For offenses committed before July 1, 1985, the jury shall be instructed that life imprisonment means life without the possibility of parole for twenty calendar years. For offenses committed on or after July 1, 1985, the jury shall be instructed that life imprisonment means life without the possibility of parole for forty calendar years.
Both the prosecuting attorney and the defense shall notify each other of the namesand addresses of any witnesses to be called in the sentencing hearing and the subject matter of such testimony. Such discovery shall be provided within a reasonable amount of time as determined by order of the court and shall be provided not less than twenty-four hours prior to the commencement of the sentencing hearing. Unless good cause is shown, noncompliance with this paragraph (c) shall result in the exclusion of such evidence without further sanction.
The burden of proof as to the aggravating factors enumerated in subsection (5) of thissection shall be beyond a reasonable doubt. There shall be no burden of proof as to proving or disproving mitigating factors.
(2) (a) After hearing all the evidence and arguments of the prosecuting attorney and the defendant, the jury shall deliberate and render a verdict based upon the following considerations:
Whether at least one aggravating factor has been proved as enumerated in subsection(5) of this section;
Whether sufficient mitigating factors exist which outweigh any aggravating factor orfactors found to exist; and
Based on the considerations in subparagraphs (I) and (II) of this paragraph (a), whether the defendant should be sentenced to death or life imprisonment.
(b) (I) In the event that no aggravating factors are found to exist as enumerated in subsection (5) of this section, the jury shall render a verdict of life imprisonment, and the court shall sentence the defendant to life imprisonment.
(II) The jury shall not render a verdict of death unless it finds and specifies in writing that:
At least one aggravating factor has been proved; and
There are insufficient mitigating factors to outweigh the aggravating factor or factorsthat were proved.
In the event that the jury's verdict is to sentence to death, such verdict shall be unanimous and shall be binding upon the court unless the court determines, and sets forth in writing the basis and reasons for such determination, that the verdict of the jury is clearly erroneous as contrary to the weight of the evidence, in which case the court shall sentence the defendant to life imprisonment.
If the jury's verdict is not unanimous, the jury shall be discharged, and the court shallsentence the defendant to life imprisonment.
In all cases where the sentencing hearing is held before the court alone, the courtshall determine whether the defendant should be sentenced to death or life imprisonment in the same manner in which a jury determines its verdict under paragraphs (a) and (b) of subsection (2) of this section. The sentence of the court shall be supported by specific written findings of fact based upon the circumstances as set forth in subsections (4) and (5) of this section and upon the records of the trial and the sentencing hearing.
For purposes of this section, mitigating factors shall be the following factors:
The age of the defendant at the time of the crime; or
The defendant's capacity to appreciate wrongfulness of the defendant's conduct or toconform the defendant's conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution; or
The defendant was under unusual and substantial duress, although not such duress asto constitute a defense to prosecution; or
The defendant was a principal in the offense which was committed by another, butthe defendant's participation was relatively minor, although not so minor as to constitute a defense to prosecution; or
The defendant could not reasonably have foreseen that the defendant's conduct in thecourse of the commission of the offense for which the defendant was convicted would cause, or would create a grave risk of causing, death to another person; or
The emotional state of the defendant at the time the crime was committed; or
The absence of any significant prior conviction; or
The extent of the defendant's cooperation with law enforcement officers or agenciesand with the office of the prosecuting district attorney; or
The influence of drugs or alcohol; or
The good faith, although mistaken, belief by the defendant that circumstances existedwhich constituted a moral justification for the defendant's conduct; or
The defendant is not a continuing threat to society; or
Any other evidence which in the court's opinion bears on the question of mitigation.
(5) For purposes of this section, aggravating factors shall be the following factors:
The class 1 felony was committed by a person under sentence of imprisonment for aclass 1, 2, or 3 felony as defined by Colorado law or United States law, or for a crime committed against another state or the United States which would constitute a class 1, 2, or 3 felony as defined by Colorado law; or
The defendant was previously convicted in this state of a class 1 or 2 felony involving violence as specified in section 18-1.3-406, or was previously convicted by another state or the United States of an offense which would constitute a class 1 or 2 felony involving violence as defined by Colorado law in section 18-1.3-406; or
The defendant intentionally killed any of the following persons while such personwas engaged in the course of the performance of such person's official duties, and the defendant knew or reasonably should have known that such victim was such a person engaged in the performance of such person's official duties, or the victim was intentionally killed in retaliation for the performance of the victim's official duties:
A peace officer or former peace officer as described in section 16-2.5-101, C.R.S.; or
A firefighter as defined in section 24-33.5-1202 (4), C.R.S.; or
A judge, referee, or former judge or referee of any court of record in the state orfederal system or in any other state court system or a judge or former judge in any municipal court in this state or in any other state. For purposes of this subparagraph (III), the term "referee" shall include a hearing officer or any other officer who exercises judicial functions.
An elected state, county, or municipal official; or
A federal law enforcement officer or agent or former federal law enforcement officer or agent; or
The defendant intentionally killed a person kidnapped or being held as a hostage bythe defendant or by anyone associated with the defendant; or
The defendant has been a party to an agreement to kill another person in furtheranceof which a person has been intentionally killed; or
The defendant committed the offense while lying in wait, from ambush, or by use ofan explosive or incendiary device. As used in this paragraph (f), "explosive or incendiary device" means:
Dynamite and all other forms of high explosives; or
Any explosive bomb, grenade, missile, or similar device; or
Any incendiary bomb or grenade, fire bomb, or similar device, including any devicewhich consists of or includes a breakable container including a flammable liquid or compound, and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound, and can be carried or thrown by one individual acting alone.
The defendant committed or attempted to commit a class 1, 2, or 3 felony and, in thecourse of or in furtherance of such or immediate flight therefrom, the defendant intentionally caused the death of a person other than one of the participants; or
The class 1 felony was committed for pecuniary gain; or
In the commission of the offense, the defendant knowingly created a grave risk ofdeath to another person in addition to the victim of the offense; or
The defendant committed the offense in an especially heinous, cruel, or depravedmanner; or
The class 1 felony was committed for the purpose of avoiding or preventing a lawfularrest or prosecution or effecting an escape from custody. This factor shall include the intentional killing of a witness to a criminal offense.
(6) (a) Whenever a sentence of death is imposed upon a person pursuant to the provisions of this section, the supreme court shall review the propriety of that sentence, having regard to the nature of the offense, the character and record of the offender, the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based. The procedures to be employed in the review shall be as provided by supreme court rule. The supreme court shall combine its review pursuant to this subsection (6) with consideration of any appeal that may be filed pursuant to part 2 of article 12 of title 16, C.R.S.
(b) A sentence of death shall not be imposed pursuant to this section if the supreme court determines that the sentence was imposed under the influence of passion or prejudice or any other arbitrary factor or that the evidence presented does not support the finding of statutory aggravating circumstances.
(7) (a) If any provision of this section or the application thereof to any person or circumstances is held invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this section, which can be given effect without the invalid or unconstitutional provision or application, and to this end the provisions of this section are declared to be severable.
(b) If any death sentence imposed upon a defendant pursuant to the provisions of this section and the imposition of such death sentence upon such defendant is held invalid or unconstitutional, said defendant shall be returned to the trial court and shall then be sentenced to life imprisonment.
(8) This section applies only to offenses charged prior to July 1, 2020.
Source: L. 2002: Entire article added with relocations, p. 1455, § 2, effective October 1. L. 2004: (5)(c)(I) amended, p. 1198, § 50, effective August 4. L. 2020: (8) added, (SB 20-100), ch. 61, p. 212, § 13, effective March 23.
Editor's note: This section is similar to former § 16-11-802 as it existed prior to 2002.