2023 Tennessee Code › Title 39 - CRIMINAL OFFENSES (§§ 39-1-101 — 39-17-1812) › Chapter 13 - OFFENSES AGAINST PERSON (§§ 39-13-NEW — 39-13-1004) › Part 2 - CRIMINAL HOMICIDE (§§ 39-13-201 — 39-13-219) › Section 39-13-204 - Sentencing for first degree murder or grave torture

(a)
Upon a trial for an offense punishable by death, if the jury finds the defendant guilty of an offense punishable by death, then the jury shall not fix punishment as part of the verdict, but the jury shall fix the punishment in a separate sentencing hearing to determine whether the defendant shall be sentenced to death, to imprisonment for life without possibility of parole, or, if applicable, to imprisonment for life. The separate sentencing hearing must be conducted as soon as practicable before the same jury that determined guilt, subject to the provisions of subsection (k) relating to certain retrials on punishment.
(b)
In the sentencing proceeding, the attorney for the state shall be allowed to make an opening statement to the jury and then the attorney for the defendant shall also be allowed such statement; provided, that the waiver of opening statement by one party shall not preclude the opening statement by the other party.
(c)
In the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant to the punishment, and may include, but not be limited to, the nature and circumstances of the crime; the defendant's character, background history, and physical condition; any evidence tending to establish or rebut the aggravating circumstances enumerated in subsection (i); and any evidence tending to establish or rebut any mitigating factors. Any such evidence that the court deems to have probative value on the issue of punishment may be received, regardless of its admissibility under the rules of evidence; provided, that the defendant is accorded a fair opportunity to rebut any hearsay statements so admitted. However, this subsection (c) shall not be construed to authorize the introduction of any evidence secured in violation of the constitution of the United States or the constitution of Tennessee. In all cases where the state relies upon the aggravating factor that the defendant was previously convicted of one (1) or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person, either party shall be permitted to introduce evidence concerning the facts and circumstances of the prior conviction. Such evidence shall not be construed to pose a danger of creating unfair prejudice, confusing the issues, or misleading the jury and shall not be subject to exclusion on the ground that the probative value of the evidence is outweighed by prejudice to either party. Such evidence shall be used by the jury in determining the weight to be accorded the aggravating factor. The court shall permit a member or members, or a representative or representatives of the victim's family to testify at the sentencing hearing about the victim and about the impact of the offense on the family of the victim and other relevant persons. The evidence may be considered by the jury in determining which sentence to impose. The court shall permit members or representatives of the victim's family to attend the trial, and those persons shall not be excluded because the person or persons shall testify during the sentencing proceeding as to the impact of the offense.
(d)
In the sentencing proceeding, the state shall be allowed to make a closing argument to the jury; and then the attorney for the defendant shall also be allowed such argument, with the state having the right of closing.
(e)
(1)
After closing arguments in the sentencing hearing, the trial judge shall include instructions for the jury to weigh and consider any of the statutory aggravating circumstances set forth in subsection (i), which may be raised by the evidence at either the guilt or sentencing hearing, or both. The trial judge shall also include instructions for the jury to weigh and consider any mitigating circumstances raised by the evidence at either the guilt or sentencing hearing, or both, which shall include, but not be limited to, those circumstances set forth in subsection (j). These instructions and the manner of arriving at a sentence shall be given in the oral charge and in writing to the jury for its deliberations. However, a reviewing court shall not set aside a sentence of death or of imprisonment for life without the possibility of parole on the ground that the trial court did not specifically instruct the jury as to a requested mitigating factor that is not enumerated in subsection (j).
(2)
The trial judge shall provide the jury separate verdict forms, as specified by subdivisions (f)(1), (f)(2), and (g)(2)(B). If the defendant has been found guilty of first degree murder as described in §
39-13-202(c)(1)
or rape of a child, then the jury shall be instructed that a defendant who receives a sentence of imprisonment for life shall not be eligible for parole consideration until the defendant has served at least fifty-one (51) full calendar years of the sentence. The jury shall also be instructed that a defendant who receives a sentence of imprisonment for life without possibility of parole shall never be eligible for release on parole.
(f)
(1)
If the defendant has been found guilty of first degree murder as described in §
39-13-202(c)(1)
or rape of a child and the jury unanimously determines that no statutory aggravating circumstance has been proven by the state beyond a reasonable doubt, the sentence shall be imprisonment for life. The jury shall then return its verdict to the judge upon a form provided by the court, which may appear substantially as follows:
PUNISHMENT OF IMPRISONMENT FOR LIFE
We, the jury, unanimously determine that no statutory aggravating circumstance has been proven by the state beyond a reasonable doubt. We, the jury, therefore find that the sentence shall be imprisonment for life.
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Jury Foreperson
Juror
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Juror
Juror
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Juror
Juror
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(2)
(A)
Except as provided in subdivision (f)(2)(B), if the jury unanimously determines that a statutory aggravating circumstance or circumstances have been proven by the state beyond a reasonable doubt, but that such circumstance or circumstances have not been proven by the state to outweigh any mitigating circumstance or circumstances beyond a reasonable doubt, the jury shall, in its considered discretion, sentence the defendant either to imprisonment for life without possibility of parole or to imprisonment for life. The trial judge shall instruct the jury that, in choosing between the sentences of imprisonment for life without possibility of parole and imprisonment for life, the jury shall weigh and consider the statutory aggravating circumstance or circumstances proven by the state beyond a reasonable doubt and any mitigating circumstance or circumstances. In its verdict, the jury shall specify the statutory aggravating circumstance or circumstances proven by the state beyond a reasonable doubt and shall return its verdict to the judge upon a form provided by the court, which may appear substantially as follows:
PUNISHMENT OF IMPRISONMENT FOR LIFE WITHOUT POSSIBILITY OF PAROLE OR IMPRISONMENT FOR LIFE
We, the jury, unanimously find that the state has proven the following listed statutory aggravating circumstance or circumstances beyond a reasonable doubt:
[Here list the statutory aggravating circumstance or circumstances so found.]
We, the jury, unanimously find that such statutory aggravating circumstance or circumstances do not outweigh any mitigating circumstance or circumstances beyond a reasonable doubt; therefore:
CHECK ONE (1) BOX ONLY
[ ] We, the jury, unanimously agree that the defendant shall be sentenced to imprisonment for life without possibility of parole; or
[ ] We, the jury, unanimously agree that the defendant shall be sentenced to imprisonment for life.
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Jury Foreperson
Juror
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Juror
Juror
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Juror
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Juror
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(B)
(i)
If the defendant has been found guilty of first degree murder as described in §
39-13-202(c)(2)
or aggravated rape of a child or grave torture, and the jury unanimously determines that no statutory aggravating circumstance has been proven by the state beyond a reasonable doubt, or that a statutory aggravating circumstance or circumstances have been proven by the state beyond a reasonable doubt, but that the circumstance or circumstances have not been proven by the state to outweigh a mitigating circumstance or circumstances beyond a reasonable doubt, then the sentence must be imprisonment for life without possibility of parole.
(ii)
If imprisonment for life without possibility of parole is the sentence of the jury, then the jury shall reduce to writing the finding that no statutory aggravating circumstance or circumstances have been proven by the state beyond a reasonable doubt, or that a statutory aggravating circumstance or circumstances have been proven by the state beyond a reasonable doubt, but that such circumstance or circumstances have not been proven by the state to outweigh any mitigating circumstance or circumstances beyond a reasonable doubt.
(iii)
These findings and verdict must be returned to the judge upon a form provided by the court, which may appear substantially as follows:
PUNISHMENT OF IMPRISONMENT FOR LIFE WITHOUT POSSIBILITY OF PAROLE
[ ] We, the jury, unanimously agree that no statutory aggravating circumstance or circumstances have been proven by the state beyond a reasonable doubt and that the defendant shall be sentenced to imprisonment for life without possibility of parole.
[ ] We, the jury, unanimously agree that a statutory aggravating circumstance or circumstances have been proven by the state beyond a reasonable doubt, but that such circumstance or circumstances have not been proven by the state to outweigh any mitigating circumstance or circumstances beyond a reasonable doubt and that the defendant shall be sentenced to imprisonment for life without possibility of parole.
/s/_________________
/s/_________________
Jury Foreperson
Juror
/s/_________________
/s/_________________
Juror
Juror
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/s/_________________
Juror
Juror
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Juror
Juror
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Juror
Juror
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Juror
Juror
(g)
(1)
The sentence shall be death, if the jury unanimously determines that:
(A)
At least one (1) statutory aggravating circumstance or several statutory aggravating circumstances have been proven by the state beyond a reasonable doubt; and
(B)
Such circumstance or circumstances have been proven by the state to outweigh any mitigating circumstances beyond a reasonable doubt.
(2)
(A)
If the death penalty is the sentence of the jury, the jury shall:
(i)
Reduce to writing the statutory aggravating circumstance or statutory aggravating circumstances so found; and
(ii)
Signify that the state has proven beyond a reasonable doubt that the statutory aggravating circumstance or circumstances outweigh any mitigating circumstances.
(B)
These findings and verdict shall be returned to the judge upon a form provided by the court, which may appear substantially as follows:
PUNISHMENT OF DEATH
We, the jury, unanimously find the following listed statutory aggravating circumstance or circumstances:
[Here list the statutory aggravating circumstance or circumstances so found.]
We, the jury, unanimously find that the state has proven beyond a reasonable doubt that the statutory aggravating circumstance or circumstances outweigh any mitigating circumstances.
Therefore, we, the jury, unanimously find that the punishment shall be death.
/s/_________________
/s/_________________
Jury Foreperson
Juror
/s/_________________
/s/_________________
Juror
Juror
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/s/_________________
Juror
Juror
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Juror
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Juror
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Juror
Juror
(h)
(1)
Except as provided in subdivision (h)(2), if the jury cannot ultimately agree on punishment, the trial judge shall inquire of the foreperson of the jury whether the jury is divided over imposing a sentence of death. If the jury is divided over imposing a sentence of death, the judge shall instruct the jury that in further deliberations, the jury shall only consider the sentences of imprisonment for life without possibility of parole and imprisonment for life. If, after further deliberations, the jury still cannot agree as to sentence, the trial judge shall dismiss the jury and the judge shall impose a sentence of imprisonment for life. The judge shall not instruct the jury, nor shall the attorneys be permitted to comment at any time to the jury, on the effect of the jury's failure to agree on a punishment.
(2)
If the defendant has been found guilty of first degree murder as described in §
39-13-202(c)(2)
or aggravated rape of a child or grave torture, but the jury cannot ultimately agree on punishment, then the trial judge shall inquire of the foreperson of the jury whether the jury is divided over imposing a sentence of death. If the jury is divided over imposing a sentence of death, then the judge shall dismiss the jury and the judge shall impose a sentence of imprisonment for life without possibility of parole. The judge shall not instruct the jury, nor shall the attorneys be permitted to comment at any time to the jury, on the effect of the jury's failure to agree on a punishment.
(i)
Except as provided in subdivisions (f)(2)(B) and (h)(2), no death penalty or sentence of imprisonment for life without possibility of parole shall be imposed, except upon a unanimous finding that the state has proven beyond a reasonable doubt the existence of one (1) or more of the statutory aggravating circumstances, which are limited to the following:
(1)
The defendant committed murder against a person less than twelve (12) years of age and the defendant was eighteen (18) years of age or older;
(2)
The defendant was previously convicted of one (1) or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person;
(3)
The defendant knowingly created a great risk of death to two (2) or more persons, other than the victim of the offense, during the offense;
(4)
The defendant committed the offense for remuneration or the promise of remuneration, or employed another to commit the offense for remuneration or the promise of remuneration;
(5)
The offense was especially heinous, atrocious, or cruel, in that it involved torture or serious physical abuse beyond that necessary to produce death;
(6)
The offense was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another;
(7)
The offense was knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a substantial role in committing or attempting to commit, or was fleeing after having a substantial role in committing or attempting to commit, any first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child, aggravated rape of a child, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb;
(8)
The offense was committed by the defendant while the defendant was in lawful custody or in a place of lawful confinement or during the defendant's escape from lawful custody or from a place of lawful confinement;
(9)
The offense was committed against any law enforcement officer, corrections official, corrections employee, probation and parole officer, emergency medical or rescue worker, emergency medical technician, paramedic, or firefighter, who was engaged in the performance of official duties, and the defendant knew or reasonably should have known that the victim was a law enforcement officer, corrections official, corrections employee, probation and parole officer, emergency medical or rescue worker, emergency medical technician, paramedic, or firefighter engaged in the performance of official duties;
(10)
The offense was committed against any present or former judge, district attorney general or state attorney general, assistant district attorney general or assistant state attorney general, due to or because of the exercise of the victim's official duty or status and the defendant knew that the victim occupied such office;
(11)
The offense was committed against a national, state, or local popularly elected official, due to or because of the official's lawful duties or status, and the defendant knew that the victim was such an official;
(12)
The defendant committed "mass murder," which is defined as the murder of three (3) or more persons, whether committed during a single criminal episode or at different times within a forty-eight-month period;
(13)
The defendant knowingly mutilated the body of the victim;
(14)
The victim of the offense was seventy (70) years of age or older; or the victim was particularly vulnerable due to a significant disability, whether mental or physical, and at the time of the offense, the defendant knew or reasonably should have known of such disability;
(15)
The offense was committed in the course of an act of terrorism;
(16)
The offense was committed against a pregnant woman, and the defendant intentionally committed the offense against the victim, knowing that she was pregnant;
(17)
The offense was committed at random and the reasons for the offense are not obvious or easily understood;
(18)
The defendant knowingly sold or distributed a substance containing fentanyl, carfentanil, or any other opiate listed in § 39-17-408(c) with the intent and premeditation to commit murder; or
(19)
The victim of the offense was acting as a Good Samaritan at the time of the offense and the defendant knew that the person was acting as a Good Samaritan. For purposes of this subdivision (i)(19), "Good Samaritan" means a person who helps, defends, protects, or renders emergency care to a person in need without compensation.
(j)
In arriving at the punishment, the jury shall consider, pursuant to this section, any mitigating circumstances, which shall include, but are not limited to, the following:
(1)
The defendant has no significant history of prior criminal activity;
(2)
The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance;
(3)
The victim was a participant in the defendant's conduct or consented to the act;
(4)
The offense was committed under circumstances that the defendant reasonably believed to provide a moral justification for the defendant's conduct;
(5)
The defendant was an accomplice in the offense committed by another person and the defendant's participation was relatively minor;
(6)
The defendant acted under extreme duress or under the substantial domination of another person;
(7)
The youth or advanced age of the defendant at the time of the crime;
(8)
The capacity of the defendant to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of the law was substantially impaired as a result of mental disease or defect or intoxication, which was insufficient to establish a defense to the crime but which substantially affected the defendant's judgment; and
(9)
Any other mitigating factor that is raised by the evidence produced by either the prosecution or defense, at either the guilt or sentencing hearing.
(k)
Upon motion for a new trial, after a conviction for an offense that is punishable by death, if the court finds error in the trial determining guilt, then a new trial on both guilt and sentencing must be held; but if the court finds error alone in the trial determining punishment, then a new trial on the issue of punishment alone must be held by a new jury empaneled for that purpose. If the trial court, or another court with jurisdiction to do so, orders that a defendant convicted of an offense that is punishable by death, whether the sentence is death, imprisonment for life without possibility of parole, or, if applicable, imprisonment for life, be granted a new trial, either as to guilt or punishment, or both, then the new trial must include the possible punishments of death, imprisonment for life without possibility of parole, or, unless the defendant is convicted of first degree murder as described in § 39-13-202(c)(2), aggravated rape of a child, or grave torture, imprisonment for life.
(l)
If the jury has imposed a sentence of death, then the jury may determine whether the defendant's sentence must be expedited pursuant to this subsection (l), and, if the jury unanimously determines that an expediated sentence is required, return such findings to the judge upon a form provided by the court. A defendant's sentence may be expedited if the jury finds that:
(1)
(A)
The offense involved the death of three (3) or more victims whom the defendant killed using one (1) or more deadly weapons;
(B)
The defendant committed the offense by using one (1) or more deadly weapons on the grounds of a public or private elementary, secondary, or postsecondary school; or
(C)
The defendant committed the offense by killing a first responder, as defined in §
39-13-116
, who was acting in the course of the first responder's employment at the time of the offense; and
(2)
The evidence presented at trial proving the defendant's guilt was incontestable, which may include, but is not limited to:
(A)
Video evidence depicting the defendant committing the offense; or
(B)
Deoxyribonucleic acid evidence linking the defendant to the offense.
Amended by 2024 Tenn. Acts, ch. 951,s 18, eff. 7/1/2024.
Amended by 2024 Tenn. Acts, ch. 951,s 17, eff. 7/1/2024.
Amended by 2024 Tenn. Acts, ch. 951,s 7, eff. 7/1/2024.
Amended by 2024 Tenn. Acts, ch. 951,s 16, eff. 7/1/2024.
Amended by 2024 Tenn. Acts, ch. 951,s 15, eff. 7/1/2024.
Amended by 2024 Tenn. Acts, ch. 951,s 13, eff. 7/1/2024.
Amended by 2024 Tenn. Acts, ch. 951,s 12, eff. 7/1/2024.
Amended by 2024 Tenn. Acts, ch. 951,s 11, eff. 7/1/2024.
Amended by 2024 Tenn. Acts, ch. 951,s 10, eff. 7/1/2024.
Amended by 2024 Tenn. Acts, ch. 951,s 9, eff. 7/1/2024.
Amended by 2024 Tenn. Acts, ch. 951,s 8, eff. 7/1/2024.
Amended by 2022 Tenn. Acts, ch. 1062, Secs.s 4, s 5, s 6, s 7eff. on the thirtieth day following the occurrence of either : (1) The issuance of the judgment in a decision of the United States supreme court overruling, in whole or in relevant part, Kennedy v. Louisiana, 554 U.S. 407 (2008); or (2) The ratification of an amendment to the Constitution of the United States approving the use of the death penalty as punishment for the conviction of an offense involving the infliction of severe physical and mental pain and suffering upon the victim with the intent to perpetrate first degree murder that does not result in the death of the victim.
Amended by 2023 Tenn. Acts, ch. 375, s 1, eff. 7/1/2023.
Amended by 2021 Tenn. Acts, ch. 528, s 5, eff. 7/1/2021.
Amended by 2021 Tenn. Acts, ch. 528, Secs.s 6, s 7, s 8, s 9, s 10, s 11, s 12 eff. 7/1/2021.
Amended by 2021 Tenn. Acts, ch. 215, s 2, eff. 7/1/2021.
Amended by 2019 Tenn. Acts, ch. 231, s 1, eff. 7/1/2019.
Acts 1989, ch. 591, § 1; T.C.A., §
39-13-203
; Acts 1990, ch. 1038, § 3; 1993, ch. 473, §§ 2, 4-6, 13, 14; 1995, ch. 356, § 1; 1995, ch. 377, § 1; 1996, ch. 830, § 2; 1997 , ch. 139, § 1; 1997 , ch. 358, § 1; 1997 , ch. 491, § 1; 1998, ch. 712, § 1; 1998, ch. 915, § 1; 1998, ch. 916, § 1; 1999, ch. 504, § 1; 2002, ch. 849, § 2b; 2008 , ch. 829, § 1; 2009 , ch. 582, § 1; 2010 , ch. 1058, § 1; 2011 , ch. 47, § 30; 2011 , ch. 489, § 1.