Mitigating/Aggravating Factors
This is a direct copy, an excerpt from the Appellant Brief, from the Arguments Section, regarding the mitigating and aggravating factors conferred in this trial.
APPENDIX A
16-11-103.
Imposition of sentence in class 1 felonies. (1)
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. The hearing shall
be conducted by the trial judge before the trial jury as
soon as practicable. If a trial jury was waived or if the
defendant pleaded guilty, the hearing shall be conducted
before the trial judge.
(2)
In the sentencing hearing any information relevant to
any of the aggravating or mitigating factors set forth in
subsection (5) or (6)
of this section may be presented by either the people
or the defendant, subject to the rules governing admission
of evidence at criminal trials. The people and the defendant
shall be permitted to rebut any evidence received at the
hearing and shall be given fair opportunity to present
argument as to the adequacy of the evidence to establish the
existence of any of the factors set forth in subsection (5)
or (6) of this
section.
(3)
After hearing all the evidence, the jury shall
deliberate and render a verdict, or if there is no jury the
judge shall make a finding, as to the existence or
nonexistence of each of the factors set forth in subsections
(5) and (6)
of this section.
(4)
If the sentencing hearing results in a verdict or
finding that none of the factors set forth in subsection (5)
of this section exist and that one or more of the
factors set forth in subsection (6)
of this section do exist, the court shall sentence
the defendant to death. If the sentencing hearing results in
a verdict or finding that none of the aggravating factors
set forth in subsection (6) of this section exist or that one or more of
the mitigating factors set forth in subsection (5)
of this section do exist, the court shall sentence
the defendant to life imprisonment. If the sentencing
hearing is before a jury and the verdict is not unanimous,
the jury shall be discharged, and the court shall sentence
the defendant to life imprisonment.
(5)
The court shall not impose the sentence of death on
the defendant if the sentencing hearing results in a
verdict or finding that at the time of the offense:
(a)
He was under the age of eighteen; or
(b)
His capacity to appreciate wrongfulness of his
conduct or to conform his conduct to the requirements of law
was significantly impaired, but not so impaired as to
constitute a defense to prosecution; or
(c)
He was under unusual and substantial duress, although
not such duress as to constitute a defense to prosecution;
or
(d)
He was a principal in the offense, which was
committed by another, but his participation was relatively
minor, although not so minor as to constitute a defense to
prosecution; or
(e)
He could not reasonably have foreseen that his
conduct in the course of the commission of the offense for
which he was convicted would cause, or would create a grave
risk of causing, death to another person.
(6)
If no factor set forth in subsection (5)
of this section is present, the court shall sentence
the defendant to death if the sentencing hearing results in
a verdict or finding that:
(a)
The defendant has previously been convicted by a
court of this or any other state, or of the United States,
of an offense for which a sentence of life imprisonment or
death was imposed under the laws of this state or could have
been imposed under the laws of this state if such offense
had occurred within this state; or
(b)
He killed his intended victim or another, at any
place within or without the confines of a penal or
correctional institution, and such killing occurred
subsequent to his conviction of a class 1, 2, or 3 felony
and while serving a sentence imposed upon him pursuant
thereto; or
(c)
He intentionally killed a person he knew to be a
peace officer, fireman, or correctional official. The term
"peace officer" as used in this section means only
a regularly appointed police officer of a city, marshal of a
town, sheriff, undersheriff, or deputy sheriff of a county,
state patrol officer, or agent of the Colorado bureau of
investigation; or
(d)
He intentionally killed a person kidnapped or being
held as a hostage by him or by anyone associated with him;
or
(e)
He has been a party to an agreement in furtherance of
which a person has been intentionally killed; or
(f)
He committed the offense while lying in wait, from
ambush, or by use of an explosive or incendiary device. As
used in this paragraph (f), explosive or incendiary device
means:
(I)
Dynamite and all other forms of high explosives;
(II)
Any explosive bomb, grenade, missile, or similar
device; or
(IE)
Any incendiary bomb or grenade, fire bomb, or similar
device, including any device which 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; or
(g)
He committed, a class 1, 2, or 3 felony and, in the
course of or in furtherance of such or immediate flight
therefrom, he intentionally caused the death of a person
other than one of the participants; or
(h)
In the commission of the offense, he knowingly
created a grave risk of death to another person in addition
to the victim of the offense; or
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