SUBCHAPTER XV. CAPITAL PUNISHMENT.
 Article 100.
 Capital Punishment.
§ 15A-2000. Sentence of death or life imprisonment for
 capital felonies; further proceedings to determine
 sentence.
 (a)Separate Proceedings on Issue of Penalty. -
 (1) Except as provided in G.S. 15A-2004, upon
 conviction or adjudication of guilt of a defendant
 of a capital felony in which the State has given
 notice of its intent to seek the death penalty, the
 court shall conduct a separate sentencing
 proceeding to determine whether the defendant
 should be sentenced to death or life imprisonment.
 A capital felony is one which may be punishable by
 death.
 (2) The proceeding shall be conducted by the trial
 judge before the trial jury as soon as practicable
 after the guilty verdict is returned. If prior to
 the time that the trial jury begins its
 deliberations on the issue of penalty, any juror
 dies, becomes incapacitated or disqualified, or is
 discharged for any reason, an alternate juror shall
 become a part of the jury and serve in all respects
 as those selected on the regular trial panel. An
 alternate juror shall become a part of the jury in
 the order in which he was selected. If the trial
 jury is unable to reconvene for a hearing on the
  issue of penalty after having determined the guilt
 of the accused, the trial judge shall impanel a new
 jury to determine the issue of the punishment. If
 the defendant pleads guilty, the sentencing
 proceeding shall be conducted before a jury
 impaneled for that purpose. A jury selected for the
 purpose of determining punishment in a capital case
 shall be selected in the same manner as juries are
 selected for the trial of capital cases.
 (3) In the proceeding there shall not be any
 requirement to resubmit evidence presented during
 the guilt determination phase of the case, unless a
 new jury is impaneled, but all such evidence is
 competent for the jury's consideration in passing
 on punishment. Evidence may be presented as to any
 matter that the court deems relevant to sentence,
 and may include matters relating to any of the
  aggravating or mitigating circumstances enumerated
 in subsections (e) and (f) of this section. Any
 evidence which the court deems to have probative
 value may be received.
 (4) The State and the defendant or his counsel shall be
 permitted to present argument for or against
 sentence of death. The defendant or defendant's
 counsel shall have the right to the last argument.
 (b) Sentence Recommendation by the Jury. - Instructions
determined by the trial judge to be warranted by the evidence
shall be given by the court in its charge to the jury prior to
its deliberation in determining sentence. The court shall give
appropriate instructions in those cases in which evidence of the
defendant's mental retardation requires the consideration by the
jury of the provisions of G.S. 15A-2005. In all cases in which
the death penalty may be authorized, the judge shall include in
his instructions to the jury that it must consider any
aggravating circumstance or circumstances or mitigating
circumstance or circumstances from the lists provided in
subsections (e) and (f) which may be supported by the evidence,
and shall furnish to the jury a written list of issues relating
to such aggravating or mitigating circumstance or circumstances.
 After hearing the evidence, argument of counsel, and
instructions of the court, the jury shall deliberate and render
a sentence recommendation to the court, based upon the following
matters:
 (1) Whether any sufficient aggravating circumstance or
 circumstances as enumerated in subsection (e)
 exist;
 (2) Whether any sufficient mitigating circumstance or
 circumstances as enumerated in subsection (f),
 which outweigh the aggravating circumstance or
 circumstances found, exist; and
 (3) Based on these considerations, whether the
 defendant should be sentenced to death or to
 imprisonment in the State's prison for life.
 The sentence recommendation must be agreed upon by a
unanimous vote of the 12 jurors. Upon delivery of the sentence
recommendation by the foreman of the jury, the jury shall be
individually polled to establish whether each juror concurs and
agrees to the sentence recommendation returned.
 If the jury cannot, within a reasonable time, unanimously
agree to its sentence recommendation, the judge shall impose a
sentence of life imprisonment; provided, however, that the judge
shall in no instance impose the death penalty when the jury
cannot agree unanimously to its sentence recommendation.
 (c) Findings in Support of Sentence of Death. - When the jury
recommends a sentence of death, the foreman of the jury shall
sign a writing on behalf of the jury which writing shall show:
 (1) The statutory aggravating circumstance or
 circumstances which the jury finds beyond a
 reasonable doubt; and
 (2) That the statutory aggravating circumstance or
 circumstances found by the jury are sufficiently
 substantial to call for the imposition of the death
 penalty; and,
 (3) That the mitigating circumstance or circumstances
 are insufficient to outweigh the aggravating
 circumstance or circumstances found.
 (d) Review of Judgment and Sentence. -
 (1) The judgment of conviction and sentence of death
 shall be subject to automatic review by the Supreme
 Court of North Carolina pursuant to procedures
  established by the Rules of Appellate Procedure. In
 its review, the Supreme Court shall consider the
 punishment imposed as well as any errors assigned
 on appeal.
 (2) The sentence of death shall be overturned and a
 sentence of life imprisonment imposed in lieu
 thereof by the Supreme Court upon a finding that
 the record does not support the jury's findings of
 any aggravating circumstance or circumstances upon
 which the sentencing court based its sentence of
 death, or upon a finding that the sentence of death
 was imposed under the influence of passion,
 prejudice, or any other arbitrary factor, or upon a
  finding that the sentence of death is excessive or
 disproportionate to the penalty imposed in similar
 cases, considering both the crime and the
 defendant. The Supreme Court may suspend
 consideration of death penalty cases until such
 time as the court determines it is prepared to make
 the comparisons required under the provisions of
 this section.
 (3) If the sentence of death and the judgment of the
 trial court are reversed on appeal for error in the
 post-verdict sentencing proceeding, the Supreme
 Court shall order that a new sentencing hearing be
 conducted in conformity with the procedures of this
 Article.
 (e) Aggravating Circumstances. - Aggravating circumstances
which may be considered shall be limited to the following:
 (1) The capital felony was committed by a person
 lawfully incarcerated.
 (2) The defendant had been previously convicted of
 another capital felony or had been previously
 adjudicated delinquent in a juvenile proceeding for
 committing an offense that would be a capital
 felony if committed by an adult.
 (3) The defendant had been previously convicted of a
 felony involving the use or threat of violence to
 the person or had been previously adjudicated
 delinquent in a juvenile proceeding for committing
 an offense that would be a Class A, B1, B2, C, D,
 or E felony involving the use or threat of violence
 to the person if the offense had been committed by
 an adult.
 (4) The capital felony was committed for the purpose of
  avoiding or preventing a lawful arrest or effecting
 an escape from custody.
 (5) The capital felony was committed while the
 defendant was engaged, or was an aider or abettor,
 in the commission of, or an attempt to commit, or
 flight after committing or attempting to commit,
 any homicide, robbery, rape or a sex offense,
 arson, burglary, kidnapping, or aircraft piracy or
 the unlawful throwing, placing, or discharging of a
 destructive device or bomb.
 (6) The capital felony was committed for pecuniary
 gain.
 (7) The capital felony was committed to disrupt or
 hinder the lawful exercise of any governmental
 function or the enforcement of laws.
 (8) The capital felony was committed against a
 law-enforcement officer, employee of the Department
 of Correction, jailer, fireman, judge or justice,
 former judge or justice, prosecutor or former
 prosecutor, juror or former juror, or witness or
 former witness against the defendant, while engaged
 in the performance of his official duties or
 because of the exercise of his official duty.
 (9) The capital felony was especially heinous,
 atrocious, or cruel.
 (10) The defendant knowingly created a great risk of
 death to more than one person by means of a weapon
 or device which would normally be hazardous to the
 lives of more than one person.
 (11) The murder for which the defendant stands convicted
 was part of a course of conduct in which the
 defendant engaged and which included the commission
  by the defendant of other crimes of violence
 against another person or persons.
 (f) Mitigating Circumstances. - Mitigating circumstances
which may be considered shall include, but not be limited to,
the following:
 (1) The defendant has no significant history of prior
 criminal activity.
 (2) The capital felony was committed while the
 defendant was under the influence of mental or
 emotional disturbance.
 (3) The victim was a voluntary participant in the
 defendant's homicidal conduct or consented to the
 homicidal act.
 (4) The defendant was an accomplice in or accessory to
 the capital felony committed by another person and
 his participation was relatively minor.
 (5) The defendant acted under duress or under the
 domination of another person.
 (6) The capacity of the defendant to appreciate the
 criminality of his conduct or to conform his
  conduct to the requirements of law was impaired.
 (7) The age of the defendant at the time of the crime.
 (8) The defendant aided in the apprehension of another
 capital felon or testified truthfully on behalf of
 the prosecution in another prosecution of a felony.
 (9) Any other circumstance arising from the evidence
 which the jury deems to have mitigating value.
 (1977, c. 406, s. 2; 1979, c. 565, s. 1; c. 682, s.
 9; 1981, c. 652, s. 1; 1994, Ex. Sess., c. 7, s. 5;
 1995, c. 509, s. 14; 2001-81, s. 1; 2001-346, s.
 2.)
 
 
§ 15A-2001. Capital offenses; plea of guilty.
 (a)Any defendant who has been indicted for an offense
punishable by death may enter a plea of guilty at any time after
the indictment.
 (b) If the defendant enters a guilty plea to first degree
murder and the State has not given notice of intent to seek the
death penalty as provided in G.S. 15A-2004 or the State has
agreed to accept a sentence of life imprisonment where it
initially gave notice of intent to seek the death penalty, then
the court shall sentence the person to life imprisonment. The
defendant may plead guilty to first degree murder and the State
may agree to accept a sentence of life imprisonment, even if
evidence of an aggravating circumstance exists.
 (c) If the defendant enters a guilty plea to first degree
murder and the State has given notice of its intent to seek the
death penalty, then the court may sentence the defendant to life
imprisonment or to death pursuant to the procedures of G.S.
15A-2000. Before sentencing the defendant in a case in which the
State has given notice of its intent to seek the death penalty,
the presiding judge shall impanel a jury for the limited purpose
of hearing evidence and determining a sentence recommendation as
to the appropriate sentence pursuant to G.S. 15A-2000. The
jury's sentence recommendation in cases where the defendant
pleads guilty and the State has given notice of its intent to
seek the death penalty shall be determined under the same
procedure of G.S. 15A-2000 applicable to defendants who have
been tried and found guilty by a jury. (1977, c. 406, s. 2;
2001-81, s. 2.)
 
§ 15A-2002. Capital offenses; jury verdict and sentence.
 If the recommendation of the jury is that the defendant
be sentenced to death, the judge shall impose a sentence of
death in accordance with the provisions of Chapter 15, Article
19 of the General Statutes. If the recommendation of the jury
is that the defendant be imprisoned for life in the State's
prison, the judge shall impose a sentence of imprisonment for
life in the State's prison, without parole.
 The judge shall instruct the jury, in words substantially
equivalent to those of this section, that a sentence of life
imprisonment means a sentence of life without parole. (1977, c.
406, s. 2; 1993, c. 538, s. 29; 1994, Ex. Sess., c. 21, s. 5; c.
24, s. 14(b).)
 
§ 15A-2003. Disability of trial judge.
 In the event that the trial judge shall become disabled
or unable to conduct the sentencing proceeding provided in this
Article, the Chief Justice shall designate a judge to conduct
such proceeding. (1977, c. 406, s. 2.)
 
§ 15A-2004. Prosecutorial discretion.
 (a)The State, in its discretion, may elect to try a
defendant capitally or noncapitally for first degree murder,
even if evidence of an aggravating circumstance exists. The
State may agree to accept a sentence of life imprisonment for a
defendant at any point in the prosecution of a capital felony,
even if evidence of an aggravating circumstance exists.
 (b) A sentence of death may not be imposed upon a defendant
convicted of a capital felony unless the State has given notice
of its intent to seek the death penalty. Notice of intent to
seek the death penalty shall be given to the defendant and filed
with the court on or before the date of the pretrial conference
in capital cases required by Rule 24 of the General Rules of
Practice for the Superior and District Courts, or the
arraignment, whichever is later.
 (c) If the State has not given notice of its intent to seek
the death penalty prior to trial, the trial shall be conducted
as a noncapital proceeding, and the court, upon adjudication of
the defendant's guilt of first degree murder, shall impose a
sentence of life imprisonment.
 (d) Notwithstanding any other provision of Article 100 of
Chapter 15A of the General Statutes, the State may agree to
accept a sentence of life imprisonment for a defendant upon
remand from the Supreme Court of North Carolina of a capital
case for resentencing or upon an order of resentencing by a
court in a State or federal post-conviction proceeding. If the
State exercises its discretion and does agree to accept a
sentence of life imprisonment for the defendant, then the court
shall impose a sentence of life imprisonment. (2001-81, s. 3.)
 
§ 15A-2005. Mentally retarded defendants; death sentence
 prohibited.
 (a) (1) The following definitions apply in this
 section:
 a. Mentally retarded. - Significantly subaverage
 general intellectual functioning, existing
 concurrently with significant limitations in
 adaptive functioning, both of which were
 manifested before the age of 18.
 b. Significant limitations in adaptive
 functioning. - Significant limitations in two
 or more of the following adaptive skill areas:
 communication, self-care, home living, social
 skills, community use, self-direction, health
 and safety, functional academics, leisure
 skills and work skills.
 c. Significantly subaverage general intellectual
 functioning. - An intelligence quotient of 70
 or below.
 (2) The defendant has the burden of proving
 significantly subaverage general intellectual
 functioning, significant limitations in adaptive
 functioning, and that mental retardation was
 manifested before the age of 18. An intelligence
 quotient of 70 or below on an individually
 administered, scientifically recognized
 standardized intelligence quotient test
  administered by a licensed psychiatrist or
 psychologist is evidence of significantly
 subaverage general intellectual functioning;
 however, it is not sufficient, without evidence of
 significant limitations in adaptive functioning and
 without evidence of manifestation before the age of
 18, to establish that the defendant is mentally
 retarded.
 (b) Notwithstanding any provision of law to the contrary, no
defendant who is mentally retarded shall be sentenced to death.
 (c) Upon motion of the defendant, supported by appropriate
affidavits, the court may order a pretrial hearing to determine
if the defendant is mentally retarded. The court shall order
such a hearing with the consent of the State. The defendant has
the burden of production and persuasion to demonstrate mental
retardation by clear and convincing evidence. If the court
determines the defendant to be mentally retarded, the court
shall declare the case noncapital, and the State may not seek
the death penalty against the defendant.
 (d) The pretrial determination of the court shall not
preclude the defendant from raising any legal defense during the
trial.
 (e) If the court does not find the defendant to be mentally
retarded in the pretrial proceeding, upon the introduction of
evidence of the defendant's mental retardation during the
sentencing hearing, the court shall submit a special issue to
the jury as to whether the defendant is mentally retarded as
defined in this section. This special issue shall be considered
and answered by the jury prior to the consideration of
aggravating or mitigating factors and the determination of
sentence. If the jury determines the defendant to be mentally
retarded, the court shall declare the case noncapital and the
defendant shall be sentenced to life imprisonment.
 (f) The defendant has the burden of production and persuasion
to demonstrate mental retardation to the jury by a preponderance
of the evidence.
 (g) If the jury determines that the defendant is not mentally
retarded as defined by this section, the jury may consider any
evidence of mental retardation presented during the sentencing
hearing when determining aggravating or mitigating factors and
the defendant's sentence.
 (h) The provisions of this section do not preclude the
sentencing of a mentally retarded offender to any other sentence
authorized by G.S. 14-17 for the crime of murder in the first
degree. (2001-346, s. 1.)
 
§ 15A-2006: Expired pursuant to Session Laws 2001-346, s.
 3, effective October 1, 2002.