§ 5-4-616 - Procedures following remand of capital case after vacation of death sentence -- Retroactive application.
               	 		
5-4-616.    Procedures following remand of capital case after vacation of death sentence -- Retroactive application.
    (a)  Notwithstanding     5-4-602(3) that requires that the same jury sit in the sentencing  phase of a capital murder trial, the following shall apply:
      (1)    (A)  Upon  any appeal by the defendant when the sentence is of death, if the  appellate court finds prejudicial error in the sentencing proceeding  only, the appellate court may set aside the sentence of death and remand  the case to the trial court in the jurisdiction in which the defendant  was originally sentenced.
            (B)  No error in the sentencing proceeding shall result in the reversal of the conviction for a capital felony.
            (C)  When a capital case is remanded after vacation of a death sentence, the prosecutor may move the trial court to:
                  (i)  Impose  a sentence of life without parole, and the trial court may impose the  sentence of life without parole without a hearing; or
                  (ii)  Impanel a new sentencing jury;
      (2)  If  the prosecutor elects subdivision (a)(1)(C)(ii) of this section the  trial court shall impanel a new jury for the purpose of conducting a new  sentencing proceeding;
      (3)  A new sentencing proceeding is governed by the provisions of      5-4-602(4) and (5) and 5-4-603 -- 5-4-605;
      (4)    (A)  Any  exhibit and a transcript of any testimony or other evidence properly  admitted in the prior trial and sentencing is admissible in the new  sentencing proceeding.
            (B)  Additional relevant evidence may be admitted including testimony of a witness who testified at the previous trial; and
      (5)  The provisions of this section:
            (A)  Are procedural; and
            (B)  Apply retroactively to any defendant sentenced to death after January 1, 1974.
(b)  This  section shall not be construed to amend a provision of    5-4-602  requiring the same jury to sit in both the guilt and sentencing phases  of the original trial.