Victim Impact Evidence (PDF)

CAPITAL PUNISHMENT:RACE, POVERTY & DISADVANTAGE

Yale UniversityProfessor Stephen B. Bright

Class Four - Part Two

VICTIM IMPACT

EVIDENCE

John BOOTH, Petitionerv.

MARYLAND.

Supreme Court of the United States482 U.S. 496, 107 S.Ct. 2529 (1987)

Powell, J., announced the opinion of the Court.White, J., filed a dissenting opinion in whichRehnquist, C.J., O’Connor, and Scalia, JJ., joined.Scalia, J., filed a dissenting opinion in which withwhom Rehnquist, C.J., White and O’Connor, JJ.,joined.

Justice POWELL delivered the opinion ofthe Court.

The question presented is whether theConstitution prohibits a jury from considering a“victim impact statement” during the sentencingphase of a capital murder trial.

I.In 1983, Irvin Bronstein, 78, and his wife Rose,

75, were robbed and murdered in their WestBaltimore home. The murderers, John Booth andWillie Reid, entered the victims’ home for theapparent purpose of stealing money to buy heroin.Booth, a neighbor of the Bronsteins, knew that theelderly couple could identify him. The victimswere bound and gagged, and then stabbedrepeatedly in the chest with a kitchen knife. Thebodies were discovered two days later by theBronsteins’ son.

A jury found Booth guilty of two counts offirst-degree murder, two counts of robbery, andconspiracy to commit robbery. The prosecutionrequested the death penalty, and Booth elected tohave his sentence determined by the jury insteadof the judge. Before the sentencing phase began,the State Division of Parole and Probation (DPP)compiled a presentence report that describedBooth’s background, education and employmenthistory, and criminal record. Under a Marylandstatute, the presentence report in all felony casesalso must include a victim impact statement (VIS),describing the effect of the crime on the victimand his family. Specifically, the report shall:

(i) Identify the victim of the offense;

(ii) Itemize any economic loss suffered by thevictim as a result of the offense;

(iii) Identify any physical injury suffered bythe victim as a result of the offense along withits seriousness and permanence;

(iv) Describe any change in the victim’spersonal welfare or familial relationships as aresult of the offense;

(v) Identify any request for psychologicalservices initiated by the victim or the victim’sfamily as a result of the offense; and

(vi) Contain any other information related tothe impact of the offense upon the victim orthe victim’s family that the trial courtrequires.

Although the VIS is compiled by the DPP, theinformation is supplied by the victim or the

Class 4 - Part 2 Victim Impact 1 Prof. Bright - Capital Punishment

victim’s family. The VIS may be read to the juryduring the sentencing phase, or the familymembers may be called to testify as to theinformation.

The VIS in Booth’s case was based oninterviews with the Bronsteins’ son, daughter,son-in-law, and granddaughter. Many of theircomments emphasized the victims’ outstandingpersonal qualities, and noted how deeply theBronsteins would be missed. Other parts of theVIS described the emotional and personalproblems the family members have faced as aresult of the crimes. The son, for example, saidthat he suffers from lack of sleep and depression,and is “fearful for the first time in his life.” Hesaid that in his opinion, his parents were“butchered like animals.” The daughter said shealso suffers from lack of sleep, and that since themurders she has become withdrawn anddistrustful. She stated that she can no longerwatch violent movies or look at kitchen kniveswithout being reminded of the murders. Thedaughter concluded that she could not forgive themurderer, and that such a person could “[n]everbe rehabilitated.” Finally, the granddaughterdescribed how the deaths had ruined the weddingof another close family member that took place afew days after the bodies were discovered. Boththe ceremony and the reception were sad affairs,and instead of leaving for her honeymoon, thebride attended the victims’ funeral. The VIS alsonoted that the granddaughter had receivedcounseling for several months after the incident,but eventually had stopped because she concludedthat “no one could help her.”

* * *

Defense counsel moved to suppress the VIS onthe ground that this information was bothirrelevant and unduly inflammatory, and thattherefore its use in a capital case violated theEighth Amendment of the Federal Constitution.The Maryland trial court denied the motion * * *.Booth’s lawyer then requested that the prosecutorsimply read the VIS to the jury rather than call thefamily members to testify before the jury. * * *The prosecutor agreed to this arrangement.

The jury sentenced Booth to death for themurder of Mr. Bronstein and to life imprisonmentfor the murder of Mrs. Bronstein. * * *

II* * * Although this Court normally will defer to

a state legislature’s determination of what factorsare relevant to the sentencing decision, theConstitution places some limits on this discretion.Specifically, we have said that a jury must makean “individualized determination” whether thedefendant in question should be executed, basedon “the character of the individual and thecircumstances of the crime.” * * * [A] state statutethat requires consideration of other factors mustbe scrutinized to ensure that the evidence hassome bearing on the defendant’s “personalresponsibility and moral guilt.” To do otherwisewould create the risk that a death sentence will bebased on considerations that are “constitutionallyimpermissible or totally irrelevant to thesentencing process.”

The VIS in this case provided the jury with twotypes of information. First, it described thepersonal characteristics of the victims and theemotional impact of the crimes on the family.Second, it set forth the family members’ opinionsand characterizations of the crimes and thedefendant. For the reasons stated below, we findthat this information is irrelevant to a capitalsentencing decision, and that its admission createsa constitutionally unacceptable risk that the jurymay impose the death penalty in an arbitrary andcapricious manner.

A* * *

While the full range of foreseeableconsequences of a defendant’s actions may berelevant in other criminal and civil contexts, wecannot agree that it is relevant in the uniquecircumstance of a capital sentencing hearing. Insuch a case, it is the function of the sentencingjury to “express the conscience of the communityon the ultimate question of life or death.” Whencarrying out this task the jury is required to focuson the defendant as a “uniquely individual human


bein[g].” The focus of a VIS, however, is not onthe defendant, but on the character and reputationof the victim and the effect on his family. Thesefactors may be wholly unrelated to theblameworthiness of a particular defendant. As ourcases have shown, the defendant often will notknow the victim, and therefore will have noknowledge about the existence or characteristicsof the victim’s family. Moreover, defendantsrarely select their victims based on whether themurder will have an effect on anyone other thanthe person murdered. Allowing the jury to rely ona VIS therefore could result in imposing the deathsentence because of factors about which thedefendant was unaware, and that were irrelevantto the decision to kill. This evidence thus coulddivert the jury’s attention away from thedefendant’s background and record, and thecircumstances of the crime.

It is true that in certain cases some of theinformation contained in a VIS will have beenknown to the defendant before he committed theoffense. As we have recognized, a defendant’sdegree of knowledge of the probableconsequences of his actions may increase hismoral culpability in a constitutionally significantmanner. We nevertheless find that because of thenature of the information contained in a VIS, itcreates an impermissible risk that the capitalsentencing decision will be made in an arbitrarymanner.

As evidenced by the full text of the VIS in thiscase the family members were articulate andpersuasive in expressing their grief and the extentof their loss. But in some cases the victim will notleave behind a family, or the family members maybe less articulate in describing their feelings eventhough their sense of loss is equally severe. Thefact that the imposition of the death sentence mayturn on such distinctions illustrates the danger ofallowing juries to consider this information.Certainly the degree to which a family is willingand able to express its grief is irrelevant to thedecision whether a defendant, who may merit thedeath penalty, should live or die.

Nor is there any justification for permitting such

a decision to turn on the perception that the victimwas a sterling member of the community ratherthan someone of questionable character. * * *8

We also note that it would be difficult – if notimpossible – to provide a fair opportunity to rebutsuch evidence without shifting the focus of thesentencing hearing away from the defendant. * ** Moreover, if the state is permitted to introduceevidence of the victim’s personal qualities, itcannot be doubted that the defendant also must begiven the chance to rebut this evidence. Puttingaside the strategic risks of attacking the victim’scharacter before the jury, in appropriate cases thedefendant presumably would be permitted to puton evidence that the victim was of dubious moralcharacter, was unpopular, or was ostracized fromhis family. The prospect of a “mini-trial” on thevictim’s character is more than simplyunappealing; it could well distract the sentencingjury from its constitutionally required task –determining whether the death penalty isappropriate in light of the background and recordof the accused and the particular circumstances ofthe crime. We thus reject the contention that thepresence or absence of emotional distress of thevictim’s family, or the victim’s personalcharacteristics, are proper sentencingconsiderations in a capital case.

BThe second type of information presented to the

jury in the VIS was the family members’ opinionsand characterizations of the crimes. * * *

* * *

One can understand the grief and anger of thefamily caused by the brutal murders in this case,and there is no doubt that jurors generally areaware of these feelings. But the formalpresentation of this information by the State canserve no other purpose than to inflame the jury

8. We are troubled by the implication that defendants

whose victims were assets to their community are more

deserving of punishment than those whose victims are

perceived to be less worthy. Of course, our system of

justice does not tolerate such distinctions.


and divert it from deciding the case on therelevant evidence concerning the crime and thedefendant. * * * The admission of theseemotionally charged opinions as to whatconclusions the jury should draw from theevidence clearly is inconsistent with the reasoneddecisionmaking we require in capital cases.

III We conclude that the introduction of a VIS at thesentencing phase of a capital murder trial violatesthe Eighth Amendment, and therefore theMaryland statute is invalid to the extent it requiresconsideration of this information. * * *

Justice WHITE, with whom THE CHIEFJUSTICE, Justice O’CONNOR, and JusticeSCALIA join, dissenting.

* * * Maryland’s legislature has decided that thejury should have the testimony of the victim’sfamily in order to assist it in weighing the degreeof harm that the defendant has caused and thecorresponding degree of punishment that shouldbe inflicted. This judgment is entitled to particulardeference; determinations of appropriatesentencing considerations are “‘peculiarlyquestions of legislative policy,’” and the Courtshould recognize that “‘[i]n a democratic societylegislatures, not courts, are constituted to respondto the will and consequently the moral values ofthe people,’” I cannot agree that there wasanything “cruel or unusual” or otherwiseunconstitutional about the legislature’s decision touse victim impact statements in capital sentencinghearings.

The Court’s judgment is based on the premisesthat the harm that a murderer causes a victim’sfamily does not in general reflect on hisblameworthiness, and that only evidence going toblameworthiness is relevant to the capitalsentencing decision. Many if not most jurors,however, will look less favorably on a capitaldefendant when they appreciate the full extent ofthe harm he caused, including the harm to thevictim’s family. There is nothing aberrant in ajuror’s inclination to hold a murderer accountablenot only for his internal disposition in committing

the crime but also for the full extent of the harmhe caused; many if not most persons would alsoagree, for example, that someone who drove hiscar recklessly through a stoplight andunintentionally killed a pedestrian meritssignificantly more punishment than someone whodrove his car recklessly through the same stoplightat a time when no pedestrian was there to be hit.* * * I would think that victim impact statementsare particularly appropriate evidence in capitalsentencing hearings: the State has a legitimateinterest in counteracting the mitigating evidencewhich the defendant is entitled to put in, byreminding the sentencer that just as the murderershould be considered as an individual, so too thevictim is an individual whose death represents aunique loss to society and in particular to hisfamily.

* * *

The Court’s reliance on the alleged arbitrarinessthat can result from the differing ability ofvictims’ families to articulate their sense of loss isa makeweight consideration: No two prosecutorshave exactly the same ability to present theirarguments to the jury; no two witnesses haveexactly the same ability to communicate the facts;but there is no requirement in capital cases thatthe evidence and argument be reduced to thelowest common denominator. * * *

* * *

Justice SCALIA, with whom THE CHIEFJUSTICE, Justice WHITE, and JusticeO’CONNOR join, dissenting.

* * * It seems to me * * * – and, I think, to mostof mankind – that the amount of harm one causesdoes bear upon the extent of his “personalresponsibility.” We may take away the license ofa driver who goes 60 miles an hour on aresidential street; but we will put him in jail formanslaughter if, though his moral guilt is nogreater, he is unlucky enough to kill someoneduring the escapade.

Nor, despite what the Court says today, do we


depart from this principle where capitalpunishment is concerned. The Court’s opiniondoes not explain why a defendant’s eligibility forthe death sentence can (and always does) turnupon considerations not relevant to his moralguilt. If a bank robber aims his gun at a guard,pulls the trigger, and kills his target, he may beput to death. If the gun unexpectedly misfires, hemay not. His moral guilt in both cases is identical,but his responsibility in the former is greater. * **

Recent years have seen an outpouring ofpopular concern for what has come to be knownas “victims’ rights” – a phrase that describes whatits proponents feel is the failure of courts ofjustice to take into account in their sentencingdecisions not only the factors mitigating thedefendant’s moral guilt, but also the amount ofharm he has caused to innocent members ofsociety. * * *

* * *

South Carolina v. Gathers and the

Change in the Makeup of the Court

The Court reaffirmed Booth in South Carolinav. Gathers, 490 U.S. 805 (1989). In an opinion byJustice Brennan, the Court held, 5-4, that thereading of a prayer found in the victim’spossessions and arguments about the personalcharacteristics of the victim by the prosecutor inclosing argument violated the Court’s holding inBooth.

At the time Gathers was decided, JusticePowell, the author of the 5-4 opinion in Booth,had retired from the Court and been replaced byAnthony Kennedy. Although Justice Byron Whitewas one of the four dissenters in Booth, he issueda brief concurring opinion in Gathers saying thatuntil Booth was overruled, it required reversal ofGathers’ sentence.

Justice William Brennan retired from the Courtin 1990. His successor, David Souter, was swornin on October 9, 1990. The following February,

the Court, over the dissents of Justices Stevens,Marshall and Blackmun, granted certiorari in thecase of Payne v. Tennessee, in which theTennessee Supreme Court has affirmed a deathsentence in which victim impact evidence hadbeen received, to consider overruling Booth andGathers. The Court ordered expedited briefingand set oral argument for April. Its 6-3 decisionwas rendered on the final day of the term, June 27,1991.

Pervis Tyrone PAYNEv.

TENNESSEE.

Supreme Court of the United States501 U.S. 808, 111 S.Ct. 2597 (1991)

Rehnquist, C.J., delivered the opinion of theCourt. O’Connor, J., filed a concurring opinion inwhich White and Kennedy, JJ., joined. Scalia, J.,filed a concurring opinion in which O’Connor andKennedy, JJ., joined as to Part II. Souter, J., fileda concurring opinion in which Kennedy, J.,joined. Marshall, J., filed a dissenting opinion inwhich Blackmun, J., joined. Stevens, J., filed adissenting opinion in which Blackmun, J., joined.

Chief Justice REHNQUIST delivered theopinion of the Court.

In this case we reconsider our holdings in Boothv. Maryland, and South Carolina v. Gathers, thatthe Eighth Amendment bars the admission ofvictim impact evidence during the penalty phaseof a capital trial.

The petitioner, Pervis Tyrone Payne, wasconvicted by a jury on two counts of first-degreemurder and one count of assault with intent tocommit murder in the first degree. He wassentenced to death for each of the murders, and to30 years in prison for the assault.

The victims of Payne’s offenses were28-year-old Charisse Christopher, her 2-year-olddaughter Lacie, and her 3-year-old son Nicholas.The three lived together in an apartment in


Millington, Tennessee, across the hall fromPayne’s girlfriend, Bobbie Thomas. * * *

* * * Sometime around 3 p.m., Payne [went] tothe apartment complex, entered the Christophers’apartment, and began making sexual advancestowards Charisse. Charisse resisted and Paynebecame violent. A neighbor who resided in theapartment directly beneath the Christophers, heardCharisse screaming, “`Get out, get out,’ as if shewere telling the children to leave.” The noisebriefly subsided and then began, “‘horribly loud.’”The neighbor called the police after she heard a“blood curdling scream” from the Christopherapartment.

* * *

Inside the apartment, the police encountered ahorrifying scene. Blood covered the walls andfloor throughout the unit. Charisse and herchildren were lying on the floor in the kitchen.Nicholas, despite several wounds inflicted by abutcher knife that completely penetrated throughhis body from front to back, was still breathing.Miraculously, he survived, but not until afterundergoing seven hours of surgery and atransfusion of 1700 cc’s of blood – 400 to 500cc’s more than his estimated normal bloodvolume. Charisse and Lacie were dead.

Charisse’s body was found on the kitchen flooron her back, her legs fully extended. She hadsustained 42 direct knife wounds and 42 defensivewounds on her arms and hands. The wounds werecaused by 41 separate thrusts of a butcher knife.None of the 84 wounds inflicted by Payne wereindividually fatal; rather, the cause of death wasmost likely bleeding from all of the wounds.

Lacie’s body was on the kitchen floor near hermother. She had suffered stab wounds to thechest, abdomen, back, and head. The murderweapon, a butcher knife, was found at her feet.Payne’s baseball cap was snapped on her arm nearher elbow. * * *

* * *

During the sentencing phase of the trial, Paynepresented the testimony of four witnesses: hismother and father, Bobbie Thomas, and Dr. JohnT. Huston, a clinical psychologist specializing incriminal court evaluation work. Bobbie Thomastestified that she met Payne at church, during atime when she was being abused by her husband.She stated that Payne was a very caring person,and that he devoted much time and attention to herthree children, who were being affected by hermarital difficulties. She said that the children hadcome to love him very much and would miss him,and that he “behaved just like a father that lovedhis kids.” * * *

Dr. Huston testified that based on Payne’s lowscore on an IQ test, Payne was “mentallyhandicapped.” * * * Payne was the most politeprisoner he had ever met. Payne’s parents testifiedthat their son had no prior criminal record and hadnever been arrested. They also stated that Paynehad no history of alcohol or drug abuse, heworked with his father as a painter, he was goodwith children, and that he was a good son.

The State presented the testimony of Charisse’smother, Mary Zvolanek. When asked howNicholas had been affected by the murders of hismother and sister, she responded:

He cries for his mom. He doesn’t seem tounderstand why she doesn’t come home. And hecries for his sister Lacie. He comes to me manytimes during the week and asks me,Grandmama, do you miss my Lacie. And I tellhim yes. He says, I’m worried about my Lacie.

In arguing for the death penalty during closingargument, the prosecutor commented on thecontinuing effects of Nicholas’ experience,stating:

But we do know that Nicholas was alive.And Nicholas was in the same room. Nicholaswas still conscious. His eyes were open. Heresponded to the paramedics. He was able tofollow their directions. He was able to hold hisintestines in as he was carried to the ambulance.So he knew what happened to his mother and


baby sister.

There is nothing you can do to ease the painof any of the families involved in this case.There is nothing you can do to ease the pain ofBernice or Carl Payne, and that’s a tragedy.There is nothing you can do basically to easethe pain of Mr. and Mrs. Zvolanek, and that’s atragedy. They will have to live with it the rest oftheir lives. There is obviously nothing you cando for Charisse and Lacie Jo. But there issomething that you can do for Nicholas.

Somewhere down the road Nicholas is goingto grow up, hopefully. He’s going to want toknow what happened. And he is going to knowwhat happened to his baby sister and hismother. He is going to want to know what typeof justice was done. He is going to want toknow what happened. With your verdict, youwill provide the answer.

In the rebuttal to Payne’s closing argument, theprosecutor stated:

You saw the videotape this morning. Yousaw what Nicholas Christopher will carry in hismind forever. When you talk about cruel, whenyou talk about atrocious, and when you talkabout heinous, that picture will always comeinto your mind, probably throughout the rest ofyour lives.

. . . . .

. . . No one will ever know about Lacie Jobecause she never had the chance to grow up.Her life was taken from her at the age of twoyears old. So, no there won’t be a high schoolprincipal to talk about Lacie Jo Christopher, andthere won’t be anybody to take her to her highschool prom. And there won’t be anybody there– there won’t be her mother there or Nicholas’mother there to kiss him at night. His motherwill never kiss him good night or pat him as hegoes off to bed, or hold him and sing him alullaby.

. . . . .

[Petitioner’s attorney] wants you to thinkabout a good reputation, people who love thedefendant and things about him. He doesn’twant you to think about the people who loveCharisse Christopher, her mother and daddywho loved her. The people who loved littleLacie Jo, the grandparents who are still here.The brother who mourns for her every singleday and wants to know where his best littleplaymate is. He doesn’t have anybody to watchcartoons with him, a little one. These are thethings that go into why it is especially cruel,heinous, and atrocious, the burden that thatchild will carry forever.”

The jury sentenced Payne to death on each ofthe murder counts.

* * *

Booth and Gathers were based on twopremises: that evidence relating to a particularvictim or to the harm that a capital defendantcauses a victim’s family do not in general reflecton the defendant’s “blameworthiness,” and thatonly evidence relating to “blameworthiness” isrelevant to the capital sentencing decision.However, the assessment of harm caused by thedefendant as a result of the crime charged hasunderstandably been an important concern of thecriminal law, both in determining the elements ofthe offense and in determining the appropriatepunishment. Thus, two equally blameworthycriminal defendants may be guilty of differentoffenses solely because their acts cause differingamounts of harm. “If a bank robber aims his gunat a guard, pulls the trigger, and kills his target, hemay be put to death. If the gun unexpectedlymisfires, he may not. His moral guilt in both casesis identical, but his responsibility in the former isgreater.” Booth, 482 U.S., at 519 (SCALIA, J.,dissenting). The same is true with respect to twodefendants, each of whom participates in arobbery, and each of whom acts with recklessdisregard for human life; if the robbery in whichthe first defendant participated results in the deathof a victim, he may be subjected to the deathpenalty, but if the robbery in which the seconddefendant participates does not result in the death


of a victim, the death penalty may not be imposed.* * *

* * *

* * * While the admission of [victim impact]evidence – designed to portray for the sentencingauthority the actual harm caused by a particularcrime – is of recent origin, this fact hardly rendersit unconstitutional.

* * *

Payne echoes the concern voiced in Booth’scase that the admission of victim impact evidencepermits a jury to find that defendants whosevictims were assets to their community are moredeserving of punishment than those whose victimsare perceived to be less worthy. As a generalmatter, however, victim impact evidence is notoffered to encourage comparative judgments ofthis kind – for instance, that the killer of ahardworking, devoted parent deserves the deathpenalty, but that the murderer of a reprobate doesnot. It is designed to show instead each victim’s“uniqueness as an individual human being,”whatever the jury might think the loss to thecommunity resulting from his death might be. Thefacts of Gathers are an excellent illustration ofthis: the evidence showed that the victim was anout of work, mentally handicapped individual,perhaps not, in the eyes of most, a significantcontributor to society, but nonetheless a murderedhuman being.

Under our constitutional system, the primaryresponsibility for defining crimes against statelaw, fixing punishments for the commission ofthese crimes, and establishing procedures forcriminal trials rests with the States. The state lawsrespecting crimes, punishments, and criminalprocedure are of course subject to the overridingprovisions of the United States Constitution. * **

* * * The States remain free, in capital cases,as well as others, to devise new procedures andnew remedies to meet felt needs. Victim impactevidence is simply another form or method of

informing the sentencing authority about thespecific harm caused by the crime in question,evidence of a general type long considered bysentencing authorities. We think the Booth Courtwas wrong in stating that this kind of evidenceleads to the arbitrary imposition of the deathpenalty. In the majority of cases, and in this case,victim impact evidence serves entirely legitimatepurposes. In the event that evidence is introducedthat is so unduly prejudicial that it renders the trialfundamentally unfair, the Due Process Clause ofthe Fourteenth Amendment provides a mechanismfor relief. Courts have always taken intoconsideration the harm done by the defendant inimposing sentence, and the evidence adduced inthis case was illustrative of the harm caused byPayne’s double murder.

* * * “[T]he State has a legitimate interest incounteracting the mitigating evidence which thedefendant is entitled to put in, by reminding thesentencer that just as the murderer should beconsidered as an individual, so too the victim is anindividual whose death represents a unique loss tosociety and in particular to his family.” By turningthe victim into a “faceless stranger at the penaltyphase of a capital trial,” Booth deprives the Stateof the full moral force of its evidence and mayprevent the jury from having before it all theinformation necessary to determine the properpunishment for a first-degree murder.

* * * [W]e now reject the view * * * that aState may not permit the prosecutor to similarlyargue to the jury the human cost of the crime ofwhich the defendant stands convicted. Wereaffirm the view expressed by Justice Cardozo:“justice, though due to the accused, is due to theaccuser also. The concept of fairness must not bestrained till it is narrowed to a filament. We are tokeep the balance true.”

We thus hold that if the State chooses to permitthe admission of victim impact evidence andprosecutorial argument on that subject, the EighthAmendment erects no per se bar. * * * There is noreason to treat such evidence differently thanother relevant evidence is treated.


* * *

Justice O’CONNOR, with whom JusticeWHITE and Justice KENNEDY join, concurring.

In my view, a State may legitimately determinethat victim impact evidence is relevant to a capitalsentencing proceeding. A State may decide thatthe jury, before determining whether a convictedmurderer should receive the death penalty, shouldknow the full extent of the harm caused by thecrime, including its impact on the victim’s familyand community. A State may decide also that thejury should see “a quick glimpse of the lifepetitioner chose to extinguish,” Mills v. Maryland,486 U.S. 367, 397 (1988) (REHNQUIST, C.J.,dissenting), to remind the jury that the personwhose life was taken was a unique human being.

* * *

We do not hold today that victim impactevidence must be admitted, or even that it shouldbe admitted. We hold merely that if a Statedecides to permit consideration of this evidence,“the Eighth Amendment erects no per se bar.” If,in a particular case, a witness’ testimony or aprosecutor’s remark so infects the sentencingproceeding as to render it fundamentally unfair,the defendant may seek appropriate relief underthe Due Process Clause of the FourteenthAmendment.

* * *

Justice SCALIA, with whom JusticeO’CONNOR and Justice KENNEDY join as toPart II, concurring.

* * * True enough, the Eighth Amendmentpermits parity between mitigating and aggravatingfactors. But more broadly and fundamentally still,it permits the People to decide (within the limitsof other constitutional guarantees) what is a crimeand what constitutes aggravation and mitigation ofa crime.

* * *

* * * Booth’s stunning ipse dixit, that a crime’sunanticipated consequences must be deemed“irrelevant” to the sentence, conflicts with apublic sense of justice keen enough that it hasfound voice in a nationwide “victim’s rights”movement.

Justice SOUTER, with whom JusticeKENNEDY joins, concurring.

* * *

Evidence about the victim and survivors, andany jury argument predicated on it, can of coursebe so inflammatory as to risk a verdictimpermissibly based on passion, not deliberation.* * * But this is just as true when the defendantknew of the specific facts as when he wasignorant of their details, and in each case there isa traditional guard against the inflammatory risk,in the trial judge’s authority and responsibility tocontrol the proceedings consistently with dueprocess, on which ground defendants may objectand, if necessary, appeal. * * *

* * *

* * * While a defendant’s anticipation ofspecific consequences to the victims of hisintended act is relevant to sentencing, suchdetailed foreknowledge does not exhaust thecategory of morally relevant fact. * * * Murderhas foreseeable consequences. When it happens,it is always to distinct individuals, and after ithappens other victims are left behind. Everydefendant knows, if endowed with the mentalcompetence for criminal responsibility, that thelife he will take by his homicidal behavior is thatof a unique person, like himself, and that theperson to be killed probably has close associates,“survivors,” who will suffer harms anddeprivations from the victim’s death. Just asdefendants know that they are not faceless humanciphers, they know that their victims are notvalueless fungibles, and just as defendantsappreciate the web of relationships anddependencies in which they live, they know thattheir victims are not human islands, butindividuals with parents or children, spouses or


friends or dependents. Thus, when a defendantchooses to kill, or to raise the risk of a victim’sdeath, this choice necessarily relates to a wholehuman being and threatens an association ofothers, who may be distinctly hurt. The fact thatthe defendant may not know the details of avictim’s life and characteristics, or the exactidentities and needs of those who may survive,should not in any way obscure the further factsthat death is always to a “unique” individual, andharm to some group of survivors is a consequenceof a successful homicidal act so foreseeable as tobe virtually inevitable.

That foreseeability of the killing’sconsequences imbues them with direct moralrelevance, and evidence of the specific harmcaused when a homicidal risk is realized isnothing more than evidence of the risk that thedefendant originally chose to run despite the kindsof consequences that were obviously foreseeable.* * * Indeed, given a defendant’s option tointroduce relevant evidence in mitigation,sentencing without such evidence of victimimpact may be seen as a significantly imbalancedprocess.

* * *

* * * I * * * rely as well on my further viewthat Booth sets an unworkable standard ofconstitutional relevance that threatens, on its ownterms, to produce such arbitrary consequences anduncertainty of application as virtually to guaranteea result far diminished from the case’s promise ofappropriately individualized sentencing for capitaldefendants. These conclusions will be seen toresult from the interaction of three facts. First,although Booth was prompted by the introductionof a systematically prepared “victim impactstatement” at the sentencing phase of the trial,Booth’s restriction of relevant facts to what thedefendant knew and considered in deciding to killapplies to any evidence, however derived orpresented. Second, details of which the defendantwas unaware, about the victim and survivors, willcustomarily be disclosed by the evidenceintroduced at the guilt phase of the trial. Third, thejury that determines guilt will usually determine,

or make recommendations about, the impositionof capital punishment.

A hypothetical case will illustrate these facts[.]* * * Assume that a minister, unidentified as suchand wearing no clerical collar, walks down astreet to his church office on a brief errand, whilehis wife and adolescent daughter wait for him ina parked car. He is robbed and killed by astranger, and his survivors witness his death.What are the circumstances of the crime that canbe considered at the sentencing phase underBooth? The defendant did not know his victimwas a minister, or that he had a wife and child, letalone that they were watching. Under Booth, thesefacts were irrelevant to his decision to kill, andthey should be barred from consideration atsentencing. Yet evidence of them will surely beadmitted at the guilt phase of the trial. The widowwill testify to what she saw, and in so doing shewill not be asked to pretend that she was a merebystander. She could not succeed at that if shetried. The daughter may well testify too. The jurywill not be kept from knowing that the victim wasa minister, with a wife and child, on an errand tohis church. * * * No one claims that jurors in acapital case should be deprived of such commoncontextual evidence, even though the defendantknew nothing about the errand, the victim’soccupation or his family. And yet, if these factsare not kept from the jury at the guilt stage, theywill be in the jurors’ minds at the sentencingstage.

* * * If * * * we are to leave the rules of trialevidence alone, Booth’s objective will not beattained without requiring a separate sentencingjury to be empaneled [in a case such as thehypothetical]. * * *

* * * Resting a decision about the admissionof impact evidence on [whether the survivorstestify at the guilt phase] is arbitrary.

* * *

Justice MARSHALL, with whom JusticeBLACKMUN joins, dissenting.


Power, not reason, is the new currency of thisCourt’s decisionmaking. Four Terms ago, afive-Justice majority of this Court held that“victim impact” evidence of the type at issue inthis case could not constitutionally be introducedduring the penalty phase of a capital trial. Byanother 5-4 vote, a majority of this Court rebuffedan attack upon this ruling just two Terms ago.South Carolina v. Gathers. Nevertheless, havingexpressly invited respondent to renew the attack,today’s majority overrules Booth and Gathers andcredits the dissenting views expressed in thosecases. Neither the law nor the facts supportingBooth and Gathers underwent any change in thelast four years. Only the personnel of this Courtdid.

* * *

Carried to its logical conclusion, the majority’sdebilitated conception of stare decisis woulddestroy the Court’s very capacity to resolveauthoritatively the abiding conflicts between thosewith power and those without. If this Court showsso little respect for its own precedents, it canhardly expect them to be treated more respectfullyby the state actors whom these decisions aresupposed to bind. * * * [T]he majority invitesstate actors to renew the very policies deemedunconstitutional in the hope that this Court maynow reverse course, even if it has only recentlyreaffirmed the constitutional liberty in question.

Indeed, the majority’s disposition of this casenicely illustrates the rewards of such a strategy ofdefiance. The Tennessee Supreme Court didnothing in this case to disguise its contempt forthis Court’s decisions in Booth and Gathers.Summing up its reaction to those cases, itconcluded: “It is an affront to the civilizedmembers of the human race to say that atsentencing in a capital case, a parade of witnessesmay praise the background, character and gooddeeds of Defendant (as was done in this case),without limitation as to relevancy, but nothingmay be said that bears upon the character of, orharm imposed, upon the victims.” Offering noexplanation for how this case could possibly bedistinguished from Booth and Gathers – for

obviously, there is none to offer – the courtperfunctorily declared that the victim-impactevidence and the prosecutor’s argument based onthis evidence “did not violate either [of thosedecisions].” It cannot be clearer that the courtsimply declined to be bound by this Court’sprecedents.

Far from condemning this blatant disregard forthe rule of law, the majority applauds it. * * * It ishard to imagine a more complete abdication ofthis Court’s historic commitment to defending thesupremacy of its own pronouncements on issuesof constitutional liberty. * * *

* * *

Justice STEVENS, with whom JusticeBLACKMUN joins, dissenting.

* * * [E]ven if Booth and Gathers had not beendecided, today’s decision would represent a sharpbreak with past decisions. Our cases provide nosupport whatsoever for the majority’s conclusionthat the prosecutor may introduce evidence thatsheds no light on the defendant’s guilt or moralculpability, and thus serves no purpose other thanto encourage jurors to decide in favor of deathrather than life on the basis of their emotionsrather than their reason.

Until today our capital punishmentjurisprudence has required that any decision toimpose the death penalty be based solely onevidence that tends to inform the jury about thecharacter of the offense and the character of thedefendant. Evidence that serves no purpose otherthan to appeal to the sympathies or emotions ofthe jurors has never been considered admissible.Thus, if a defendant, who had murdered aconvenience store clerk in cold blood in thecourse of an armed robbery, offered evidenceunknown to him at the time of the crime about theimmoral character of his victim, all wouldrecognize immediately that the evidence wasirrelevant and inadmissible. Evenhanded justicerequires that the same constraint be imposed onthe advocate of the death penalty.


IIn Williams v. New York, 337 U.S. 241 (1949),

this Court considered the scope of the inquiry thatshould precede the imposition of a death sentence.Relying on practices that had developed “bothbefore and since the American colonies became anation,” Justice Black described the wide latitudethat had been accorded judges in considering thesource and type of evidence that is relevant to thesentencing determination. Notably, that opinionrefers not only to the relevance of evidenceestablishing the defendant’s guilt, but also to therelevance of “the fullest information possibleconcerning the defendant’s life andcharacteristics.” “Victim impact” evidence,however, was unheard of when Williams wasdecided. The relevant evidence of harm to societyconsisted of proof that the defendant was guilty ofthe offense charged in the indictment.

* * *

As the Court acknowledges today, the use ofvictim impact evidence “is of recent origin.”Insofar as the Court’s jurisprudence is concerned,this type of evidence made its first appearance in1987 in Booth v. Maryland. * * *

Our decision in Booth was entirely consistentwith the practices that had been followed “bothbefore and since the American colonies became anation.” * * * The dissenting opinions in Boothand in Gathers can be searched in vain for anyjudicial precedent sanctioning the use of evidenceunrelated to the character of the offense or thecharacter of the offender in the sentencingprocess. Today, however, relying on nothing morethan those dissenting opinions, the Courtabandons rules of relevance that are older than theNation itself, and ventures into uncharted seas ofirrelevance.

IIToday’s majority has obviously been moved by

an argument that has strong political appeal but noproper place in a reasoned judicial opinion.Because our decision in Lockett [v. Ohio]recognizes the defendant’s right to introduce allmitigating evidence that may inform the jury

about his character, the Court suggests thatfairness requires that the State be allowed torespond with similar evidence about the victim.This argument is a classic non sequitur: Thevictim is not on trial; her character, whether goodor bad, cannot therefore constitute either anaggravating or mitigating circumstance.

* * *

* * * The Constitution grants certain rights tothe criminal defendant and imposes speciallimitations on the State designed to protect theindividual from overreaching by the dispro-portionately powerful State. Thus, the State mustprove a defendant’s guilt beyond a reasonabledoubt. * * * Even if balance were required ordesirable, today’s decision, by permitting both thedefendant and the State to introduce irrelevantevidence for the sentencer’s consideration withoutany guidance, surely does nothing to enhanceparity in the sentencing process.

IIIVictim impact evidence, as used in this case,

has two flaws, both related to the EighthAmendment’s command that the punishment ofdeath may not be meted out arbitrarily orcapriciously. First, aspects of the character of thevictim unforeseeable to the defendant at the timeof his crime are irrelevant to the defendant’s“personal responsibility and moral guilt” andtherefore cannot justify a death sentence. * * *

Second, the quantity and quality of victimimpact evidence sufficient to turn a verdict of lifein prison into a verdict of death is not defineduntil after the crime has been committed andtherefore cannot possibly be applied consistentlyin different cases. * * * Open-ended reliance by acapital sentencer on victim impact evidencesimply does not provide a “principled way todistinguish [cases], in which the death penalty [i]simposed, from the many cases in which it [i]snot.”

* * * [A]n evaluation of the harm caused bydifferent kinds of wrongful conduct is a criticalaspect in legislative definitions of offenses and


determinations concerning sentencing guidelines.There is a rational correlation between moralculpability and the foreseeable harm caused bycriminal conduct. Moreover, in the capitalsentencing area, legislative identification of thespecial aggravating factors that may justify theimposition of the death penalty is entirelyappropriate. But the majority cites no authority9

for the suggestion that unforeseeable and indirectharms to a victim’s family are properly consideredas aggravating evidence on a case-by-case basis.

* * * [T]he majority today offer[s] only therecent decision in Tison v. Arizona, and twolegislative examples to support their contentionthat harm to the victim has traditionallyinfluenced sentencing discretion. Tison held thatthe death penalty may be imposed on a felon whoacts with reckless disregard for human life if adeath occurs in the course of the felony, eventhough capital punishment cannot be imposed ifno one dies as a result of the crime. The firstlegislative example is that attempted murder andmurder are classified as two different offensessubject to different punishments. The secondlegislative example is that a person who driveswhile intoxicated is guilty of vehicular homicideif his actions result in a death but is not guilty ofthis offense if he has the good fortune to make ithome without killing anyone.

These three scenarios, however, are fullyconsistent with the Eighth Amendmentjurisprudence reflected in Booth and Gathers anddo not demonstrate that harm to the victim may beconsidered by a capital sentencer in the ad hocand post hoc manner authorized by today’smajority. The majority’s examples demonstrate

only that harm to the victim may justify enhancedpunishment if the harm is both foreseeable to thedefendant and clearly identified in advance of thecrime by the legislature as a class of harm thatshould in every case result in more severepunishment.

In each scenario, the defendants couldreasonably foresee that their acts might result inloss of human life. In addition, in each, thedecision that the defendants should be treateddifferently was made prior to the crime by thelegislature, the decision of which is subject toscrutiny for basic rationality. Finally, in eachscenario, every defendant who causes the well-defined harm of destroying a human life will besubject to the determination that his conductshould be punished more severely. * * *

* * * Irrelevant victim impact evidence thatdistracts the sentencer from the proper focus ofsentencing and encourages reliance on emotionand other arbitrary factors necessarily prejudicesthe defendant.

The majority’s apparent inability to understandthis fact is highlighted by its misunderstanding ofJustice Powell’s argument in Booth that admissionof victim impact evidence is undesirable becauseit risks shifting the focus of the sentencing hearingaway from the defendant and the circumstances ofthe crime and creating a “‘mini-trial’ on thevictim’s character.” Booth found this riskinsupportable not, as today’s majority suggests,because it creates a “tactical” “dilemma” for thedefendant, but because it allows the possibilitythat the jury will be so distracted by prejudicialand irrelevant considerations that it will base itslife-or-death decision on whim or caprice.

IVThe majority * * * allows a jury to hold a

defendant responsible for a whole array of harmsthat he could not foresee and for which he istherefore not blameworthy. * * *

* * *

* * * [A]s long as the contours of relevance at

9. Thus, it is entirely consistent with the Eighth

Amendment principles underlying Booth and Gathers

to authorize the death sentence for the assassination of

the President or Vice President, see 18 U.S.C. §§ 1751,

1111, a Congressman, Cabinet official, Supreme Court

Justice, or the head of an executive department, § 351,

or the murder of a policeman on active duty. Such

statutory provisions give the potential offender notice of

the special consequences of his crime and ensure that

the legislatively determined punishment will be applied

consistently to all defendants.


sentencing hearings have been limited to evidenceconcerning the character of the offense and thecharacter of the offender, the law has alsorecognized that evidence that is admissible for aproper purpose may not be excluded because it isinadmissible for other purposes and mayindirectly prejudice the jury. * * *

In reaching our decision today, however, weshould not be concerned with the cases in whichvictim impact evidence will not make a difference.We should be concerned instead with the cases inwhich it will make a difference. In those cases,defendants will be sentenced arbitrarily to deathon the basis of evidence that would not otherwisebe admissible because it is irrelevant to thedefendants’ moral culpability. * * *

V* * * The fact that each of us is unique is a

proposition so obvious that it surely requires noevidentiary support. What is not obvious,however, is the way in which the character orreputation in one case may differ from that ofother possible victims. Evidence offered to provesuch differences can only be intended to identifysome victims as more worthy of protection thanothers. Such proof risks decisions based on thesame invidious motives as a prosecutor’s decisionto seek the death penalty if a victim is white but toaccept a plea bargain if the victim is black.

Given the current popularity of capitalpunishment in a crime-ridden society, the politicalappeal of arguments that assume that increasingthe severity of sentences is the best cure for thecancer of crime, and the political strength of the“victims’ rights” movement, I recognize thattoday’s decision will be greeted with enthusiasmby a large number of concerned and thoughtfulcitizens. The great tragedy of the decision,however, is the danger that the “hydraulicpressure” of public opinion that Justice Holmesonce described, – and that properly influences thedeliberations of democratic legislatures – hasplayed a role not only in the Court’s decision tohear this case, and in its decision to reach theconstitutional question without pausing toconsider affirming on the basis of the Tennessee

Supreme Court’s rationale [that the error washarmless], but even in its resolution of theconstitutional issue involved. Today is a sad dayfor a great institution.

.GEORGIA’S VICTIM IMPACT STATUTE

Ga. Code Ann. § 17-10-1.2. Admissibility ofcertain evidence subsequent to adjudication ofguilt.

(a)(1) In all cases in which the death penalty maybe imposed, subsequent to an adjudication of guilt* * *, the court shall allow evidence from thefamily of the victim, or such other witness havingpersonal knowledge of the victim’s personalcharacteristics and the emotional impact of thecrime on the victim, the victim’s family, or thecommunity. Except as provided in paragraph (4)of this subsection, such evidence shall be given inthe presence of the defendant and of the jury andshall be subject to cross-examination.

(2) The admissibility of the evidence described inparagraph (1) of this subsection and the number ofwitnesses other than immediate family who maytestify shall be in the sole discretion of the judgeand in any event shall be permitted only in such amanner and to such a degree as not to inflame orunduly prejudice the jury. As used in thisparagraph, the term “immediate family” means thevictim’s spouse, child, parent, stepparent,grandparent, grandchild, sibling, stepbrother,stepsister, mother-in-law, father-in-law,sister-in-law, or brother-in-law and the spouses ofany such individuals.

* * *

(4) Upon a finding by the court specific to thecase and the witness that the witness would not beable to testify in person without showing undueemotion or that testifying in person will cause thewitness severe physical or emotional distress ortrauma, evidence presented pursuant to thissubsection may be in the form of, but not limitedto, a written statement or a prerecorded audio orvideo statement, provided that such witness is


subject to cross-examination and the evidenceitself will not be available to the jury duringdeliberations. Photographs of the victim may beincluded with any evidence presented pursuant tothis subsection.

LIVINGSTONv.

The STATE

Supreme Court of Georgia.444 S.E.2d 748 (1994).

SEARS-COLLINS, Justice.

* * *

Livingston argues that the trial court erred indenying his motion to prohibit the state fromoffering victim impact evidence at the sentencingphase of trial * * *

We agree with the United States SupremeCourt’s assessment in Payne that the EighthAmendment prohibition against cruel and unusualpunishment does not erect a per se bar to theintroduction of all victim impact evidence, andwith that Court’s determination that victim impactevidence can be admissible. However, we alsorecognize that under certain circumstances victimimpact evidence could render a defendant’s trialfundamentally unfair and could lead to thearbitrary imposition of the death penalty.

* * *

[W]e nevertheless uphold the constitutionalityof [Georgia’s victim impact statute]. We do sobecause our legislature has employed sufficientsafeguards within the statute to ensure that victimimpact evidence will not be admitted whichreflects on factors which this court has foundconstitutionally irrelevant to death penaltysentencing, and which could result in the arbitraryand unconstitutional imposition of the deathpenalty. As precautionary measures, for example,the statute gives a trial court the discretion toexclude victim impact evidence altogether, limits

evidence related to the impact of the offense uponthe victim’s family or community to that which isinquired of by the court, and states that victimimpact evidence “shall be permitted only in sucha manner and to such a degree as not to inflame orunduly prejudice the jury.” Obviously, victimimpact evidence relating to constitutionallyimpermissible factors would “unduly prejudice” ajury. Thus, a trial court would abuse the unusuallybroad discretion granted by the statute inadmitting such evidence. * * *

To help ensure that victim impact evidencedoes not result in the arbitrary imposition of thedeath penalty, we hold that the trial court musthear and rule prior to trial on the admissibility ofvictim impact evidence sought to be offered. Thiswill, of course, necessitate that the state notify thedefendant of victim impact evidence which itintends to offer, and will require the trial court tonotify the defendant of the questions, if any, itintends to ask of the state’s prospective witnessesat least ten days prior to trial. At the conclusion ofthe guilt-innocence phase of the trial, the trialcourt may reconsider any pre-trial decisionregarding the admissibility of victim impactevidence.

* * *

[Concurring opinions omitted.]

BENHAM, Presiding Justice, dissenting.

* * *

I would hold that [the statute] isunconstitutionally overbroad, advancing farbeyond the presentation of evidence whichenables the jury to see the victim’s “uniqueness asan individual human being.” Rather than focusingon evidence which would define the victim’spersonal characteristics while in life, the statutepermits evidence of the ripple-effect of thevictim’s death on both the victim’s family and thevictim’s community. Such evidence is irrelevantto the state’s portrayal of the victim as a humanbeing and infuses the sentencing trial witharbitrary factors on which the jury may determine


to impose the death penalty.

Further, admission of victim impact evidenceshifts the focus of the sentencing trial from thedefendant and the nature of the crime to the valuethe victim’s family and community place on thevictim’s life. The state “cannot make the existenceof . . . an identifiable characteristic of the . . .victim an issue per se and justification for a deathsentence.” More insidious is the statutorypermission given the trial court to invite a detailednarration of the emotional and economicsufferings of the victim’s family and members ofthe victim’s community resulting from thevictim’s death. These inflammatory factors cannotbut infect the jury’s decision-making process,rendering the sentencing trial fundamentallyunfair and denying the due process of lawguaranteed in the Georgia Constitution.

On previous occasions I have raised the issueof the equal treatment of all who come before thecourts of this state. In considering the juryselection process, I cautioned against the unequaltreatment of prospective jurors. In [another case]I warned against creating a system wheredefendants will engage in character assassinationof the victim. I [also] cautioned against thecreation of a “‘throw-away’ class of workers.”Here, I caution against the creation of athrow-away class of victims by use of the VictimImpact Statement and the revictimization of therelatives of victims by inquiry into theirbackgrounds and that of their deceased loved one.

* * * [T]he unchanneled scope of victimimpact evidence which is admissible under thestatute creates a grave risk that the jury mayconclude that it is permissible for its decision toimpose the death penalty to be based on suchconstitutionally impermissible factors as race,religion, class, or wealth.

* * *

In the trial of capital offenses in the past, wehave focused on the conduct of the defendant andwe have looked to matters of defendantculpability, rather than the background of the

victim or the impact on the survivors, indetermining what punishment should be metedout. That is not to say that we have had aprohibition against humanizing the victim. Thatcan and should be done, however, without makingthe victim the focus of the inquiry. The statuteupheld by the majority opinion, however, not onlymakes the victim the focus of the inquiry, butinvites the social status of the victim to be thedeciding factor in determining whether adefendant should live or die. To suggest that sucha statute does not make social status its subject isto ignore reality.

* * *

* * * The value of a rich man’s life is just asimportant to society as that of a poor man. Lifegains its value not from one’s status but fromone’s existence and the State should never be inthe position of passing on the value of one’s lifeto society in general.

With the Victim Impact Statement statute, wewill begin a journey down the treacherous path ofdetermining the relative worth of citizens inseeking the death penalty for the accused. We willforce prosecutors to consider matters of race,education, economics, religion and ethnicity of thevictims and their survivors in deciding whether toseek imposition of the death penalty on theaccused. Not only will due process suffer but theimage of justice will be permanently scarred.

* * *

* * * No matter how good and noble theintentions of the legislature in enacting the statute,its attempt to show the uniqueness of theindividual victim will inevitably encouragesentencing juries to discriminate among victimsand thereby aggravate already festering sores ofrace, ethnicity and class.

* * *


OKLAHOMA’S VICTIM IMPACT STATUTE

Okla. Statutes, Title 21 § 701.10. Sentencingproceeding – Murder in the first degree

* * *

C. In the sentencing proceeding, evidence maybe presented as to any mitigating circumstances oras to any of the aggravating circumstancesenumerated in Section 701.7 et seq. of this title.Only such evidence in aggravation as the state hasmade known to the defendant prior to his trialshall be admissible. In addition, the state mayintroduce evidence about the victim and about theimpact of the murder on the family of the victim.

* * *

Title 22, Chapter 16 § 984. Definitions

As used in this act:

1. “Victim impact statements” meansinformation about the financial, emotional,psychological, and physical effects of a violentcrime on each victim and members of theirimmediate family, or person designated by thevictim or by family members of the victim andincludes information about the victim,circumstances surrounding the crime, the mannerin which the crime was perpetrated, and thevictim’s opinion of a recommended sentence;

2. “Members of the immediate family” meansthe spouse, a child by birth or adoption, astepchild, a parent, or a sibling of each victim; and

* * *

OKLAHOMA VICTIM IMPACT JURY INSTRUCTION

In Cargle v. State, 909 P.2d 806 (Okla.Crim. App. 1995), the Oklahoma Court ofCriminal Appeals set out the following instructionout and required that it be given at the sentencingphase of capital trials:

The prosecution has introduced what isknown as victim impact evidence. Thisevidence has been introduced to show thefinancial, emotional, psychological, or physicaleffects of the victim’s death on the members ofthe victim’s immediate family. It is intended toremind you as the sentencer that just as thedefendant should be considered as anindividual, so too the victim is an individualwhose death may represent a unique loss tosociety and the family.

This evidence is simply another method ofinforming you about the specific harm causedby the crime in question. You may considerthis evidence in determining an appropriatepunishment. However, your consideration mustbe limited to a moral inquiry into theculpability of the defendant, not an emotionalresponse to the evidence.

As it relates to the death penalty: Victimimpact evidence is not the same as anaggravating circumstance. Proof of an adverseimpact on the victim’s family is not proof of anaggravating circumstance. Introduction of thisvictim impact evidence in no way relieves theState of its burden to prove beyond areasonable doubt at least one aggravatingcircumstance which has been alleged. You mayconsider this victim impact evidence indetermining the appropriateness of the deathpenalty only if you first find that the existenceof one or more aggravating circumstance hasbeen proven beyond a reasonable doubt byevidence independent from the victim impactevidence, and find that the aggravatingcircumstance(s) found outweigh the finding ofone or more mitigating circumstances.

As it relates to the other sentencing options:You may consider this victim impact evidencein determining the appropriate punishment aswarranted under the law and facts in the case.


Claudie Delbert CONOVER, Appellant,v.

STATE of Oklahoma, Appellee.

Oklahoma Court of Criminal Appeals933 P.2d 904 (Oka. Crim. App. 1997).

LUMPKIN, Judge:

Appellant Claudie Delbert Conover was triedby jury and convicted of First Degree Murder inthe District Court of Ottawa County. The juryfound the existence of three aggravatingcircumstances and recommended the punishmentof death. The trial court sentenced accordingly. ** *

Appellant and co-defendant Gary Welch were2

convicted of the first degree murder of RobertHardcastle. On August 25, 1994, Appellant visitedLarry Davis and his wife, Lynn, in Miami,Oklahoma. Davis lived in a duplex and the victimoccupied the opposite half. When Davis admittedAppellant to his home at approximately 5:00 p.m.,Davis observed Welch’s car parked in front of theduplex. While dinner was being prepared, Davisheard “banging” noises coming from the victim’shalf of the duplex. Davis commented to his wifeand Appellant that he hoped the victim was“winning his wrestling match.” Appellant saidsomething to the effect that “someone’s getting aspanking over a deal.”

Less than five minutes later, the victim ran byDavis’ window. As he passed by, the victim wasoverheard to say “I didn’t do it,” or “I didn’t doanything.” When the victim reached Davis’ porch,Davis could see he was covered in blood. * * *Appellant went through the door first, pushing thevictim away. Davis remained inside the house andclosed the door.

The victim ran across the street to a ditch withAppellant and Welch chasing after him. Passersbysaw the victim crouched in a fetal position in the

ditch with Appellant holding him and punchinghim and Welch stabbing him. * * * Appellantturned the victim over and repeatedly struck himin the face and upper body while Welch continuedto stab and hit him. When a passerby stopped tolook at what was going on, Appellant yelled athim to get out of there. * * *

Welch * * * picked up a bottle from theground, broke it on the street and stabbed andslashed the victim with the broken bottle.Appellant drove over to the scene, Welch jumpedin the car and the two men drove off.

* * * A police officer who had been notified ofthe altercation arrived at the scene. The victim,wearing only a pair of shorts twisted around oneankle, leaned up on one arm and told the officerthat Gary Welch had done that to him. The victimtold the officer to get Gary Welch. The victimasked for a drink of water several times and thencollapsed. The victim died on the scene.

* * * Shortly thereafter, Appellant and Welchwere spotted just north of Miami. Upon seeing amarked police car behind them, the men threw aknife out of the passenger window of the car andthen pulled over. Appellant exited from thedriver’s side while Welch occupied the passengerseat. Both men were covered in blood. Appellantalso had a few abrasions and contusions about hisupper body and face. * * *

* * *

* * * Appellant complains the trial courtimproperly admitted victim impact evidencewhich rendered his death sentenceunconstitutional. Specifically, Appellant findserror in the following: 1) admission of testimonyconcerning the victim’s family members’characterizations and opinions about the crime,the defendant and the appropriate sentence; 2)admission of victim impact evidence replete withhearsay; 3) the jury’s use of victim impactevidence without appropriate instructions; and 4)the trial court’s denial of Appellant’scross-examination of the victim’s family andprohibition of rebuttal evidence.

2. Welch was tried separately, convicted of First

Degree Murder and sentenced to death. He appeals

separately.


The State presented the testimony of threewitnesses, the victim’s mother, father and brother.Each read from a prepared statement detailing theeffect of the victim’s death on their family.

[The Court set out the following testimony in afootnote:]

Ed Hardcastle, the victim’s father testified tothe following:

It’s very difficult to put into words the lossof a child by a father. I am completelydevastated and the complete loss in my lifewill always be there. I have loving memories ofmy son as a baby in my arms, as a loving child,his years of growing up into manhood with myhopes and dreams for him, his bringing into mylife two beautiful grandsons, the twins. Butthese, all the memories, will always beovershadowed by the horrible and inhumaneway his life was ended.

My wife and I will never be the samebecause of this tragedy. It is a part of each ofus it [sic] has been violently jerked away fromus. I speak, in one sense, for my twingrandsons and the loss that they’re going tosuffer, having to grow up without a father,without knowing him, without sharing his love.I’ll never stop thinking of the pain and thestark terror * * * my son must have felt asthese two men butchered him. I have never andhope to never see again such cruelty anddisregard of human life. Like blood thirstyanimals, these men chased my son down andbutchered him with a knife, showing no pity,humanity or mercy. They had chances to stop,but they wouldn’t. It’s not justice that my sonlies in a cold grave and these men should live.And I believe that this man should die for whathe did.

When asked by the prosecutor his opinionof the recommended sentence, Mr. Hardcastleanswered the “death penalty.”.

Gayle Hardcastle, the victim’s mother stated:

On July the 17th of 1959, God gave us aprecious life, our son, Robert Hardcastle. OnAugust the 25th, 1994, his life was taken fromus, from his three year old twin sons, from afamily who loved him dearly, taken by a brutalneedless murder.

We had no choice. We couldn’t say,“good-bye, son; we love you,” to touch hishand to let him know we were with him,nothing. We had no choice.

Words cannot explain the pain it has put inour lives, the agony we are enduring. The dailythoughts of the brutal day, the scene where hedied, how he died. And not one night since hisdeath have I gone to bed without dreaming ofwhat he must have gone through, seeing hisbutchered body, knowing that he was cryingout for help.

* * *

Needless to say, the pain has never let up.Ten months later we cry and we ache each day.We go to the cemetery to find comfort orcloseness, and look at a cold plot of dirt. Wego home and pray for God – to God for reliefand understanding.

If you have ever tried to explain to threeyear old babies that their daddy – he is nevercoming back because he’s dead, maybe thenyou could have a real idea of what pain is.We’ve had to answer questions like, “why isdaddy dead? Why did the mean men hurtdaddy? Will daddy come back and take us ona vacation when our piggy bank is full? Isdaddy going to be back to Christmas? Candaddy see us from heaven? And does he loveus?” The list goes on and on.

We’ve nursed them through nightmares and

know the hurt and pain they are having. Thesetwo little boys loved their daddy. But now,because of two murderous animals, they willhave to face life without him. * * *

* * *


No human being deserves to die the deathhe did. It was violent, it was brutal andneedless. And two men will be on trial for hismurder and there is no doubt that they’re theones who killed him. They planned it. Thewent to his home in broad daylight. Theycompleted in a very brutal way what theyintended to do. And they sit in our courtroomsmug, uncaring. They have never showed onesign of remorse. Their wives and girlfriendsvisit and are allowed to hug them, kiss them,touch them, visit with them weekly in theCourt. And we can’t even say good-bye.

Sometimes my husband and I can’t evencommunicate because of this murder. A part ofour lives is just one big void. It can’t be filledor changed or ever replaced. Our hopes anddreams have been shattered forever. And notonly has this been a vast emotional trauma forus, it’s placed a number of different loads onus that we don’t know how we’re going to dealwith.

And I would beg this Court and this jury tosee that justice be done. And justice to us is noless than the death penalty. Both Mr. Welchand Mr. Conover have a very long and vividhistory of crime and brutality and, yes, murderfor which Mr. Conover only served a few yearsfor, when he shot a young woman just forsaying something that he didn’t like. Pleasedon’t let this happen to another family. We canonly put our faith first in God and our courts tofind peace in this life.

James Hardcastle, the victim’s brother,testified:

* * *

* * * I’ve always leaned towards theideology of live and let live, but there has to bea point where we, as a society, have to sayenough is enough.

There are people in the world who areparasites that feed on the common decedent[sic] people who work, live and conduct

themselves in a decent and responsible mannerand who do not deserve to be violated bypeople that have no sense of right or wrong orjust do not care.

In this instance I tend to cry for revenge orvengeance. Sometimes it is hard to tell thedifference. In the end I hope and pray thatjustice will be served. Justice in this casewould be for the jury to find the Defendantworthy of the death penalty.

[End of footnote.]

* * * Victim impact evidence is constitu-tionally acceptable so long as it is not “so undulyprejudicial that it renders the trial fundamentallyunfair.”

* * *

One year after the Payne decision, theOklahoma Legislature specifically provided forthe admission of victim impact evidence insentencing considerations. * * *

The provisions allowing information about themanner in which the crime was perpetrated andthe witnesses’ opinion of the appropriate sentencedo not violate Payne and the Eighth Amendmentto the United States Constitution.

Finding this type of victim impact evidencegenerally admissible does not end our analysis. ** * “Although it does not violate the EighthAmendment, evidence may be introduced ‘that isso unduly prejudicial that it renders the trialfundamentally unfair,’ thus implicating the DueProcess Clause of the Fourteenth Amendment.” ** * [T]he Supreme Court in Payne seemed torequire a balancing to keep the scales of a capitaltrial from being “unfairly weighted” in favor ofone side or the other.

The victim impact evidence in this case didweigh the scales too far in favor of theprosecution. Statements that the victim was“butchered like an animal”, that two men“butchered him” have no place in a victim impact


statement. Assuming statements like this are notprohibited under the rules of hearsay, such7

statements are inflammatory descriptions designedto invoke an emotional response by the jury. Suchcomments do not fall under the statutory provisionpermitting statements on the manner in which thecrime was perpetrated. These type of statementsare emotionally charged personal opinions whichare more prejudicial than probative.

Victim impact evidence is to provide a “quickglimpse of the life” which the defendant “chose toextinguish”. Payne, 501 U.S. at 822. Our statutorylanguage is clear, the evidence in a victim impactstatement is to be limited to the “financial,emotional, psychological, and physical effects,” orimpact, of the crime itself on the victim’ssurvivors; as well as some personal characteristicsof the victim. Statements that the defendant acted“like blood thirsty animal[s]”, that he was a“parasite”, and a “murderous animal” do not shedany light on the victim’s life or the impact of theloss of the victim to his family.

* * * The more a jury is exposed to theemotional aspects of a victim’s death, the lesslikely their verdict will be a “reasoned moralresponse” to the question whether a defendantdeserves to die; and the greater the risk adefendant will be deprived of Due Process.

This is not to say that the emotional aspect ofa victim’s loss is irrelevant or inadmissible; wesimply state that in admitting evidence ofemotional impact, especially to the exclusion ofthe other factors, a trial court runs a much greaterrisk of having its decision questioned on appeal.Here, several of the statements included in thevictim impact evidence were improperly admitted,as the probative value of that evidence wassubstantially outweighed by its prejudicial effect.* * *

In her prepared statement, Mrs. Hardcastle told

of taking care of the victim’s twin grandsons,nursing them through nightmares and answeringtheir questions about their father. This evidence isrelevant to show the emotional, psychological,and physical impact of the victim’s death. This isthe type of victim impact evidence contemplatedby our state statutes.

Opinion evidence by victim impact witnessesthat the defendant deserves death is admissible butwill be viewed by this Court with a heighteneddegree of scrutiny.* * *

There was nothing improper in the opinionsgiven by the three witnesses in this case that thedeath penalty was the appropriate sentence. * * *However, this type of evidence should be limitedto a simple statement of the recommendedsentence without amplification. Any statementsoutside those parameters will be examined incontext to determine if its probative value issubstantially outweighed by the danger of unfairprejudice. Any statements found more prejudicialthan probative will be examined in light of anyother errors committed at the trial to determinewhether or not their admission was harmless error.

Appellant also complains that the victimimpact evidence was replete with hearsay and thewitnesses testified to things of which they had nopersonal knowledge. Specifically, Appellantdirects us to a reference made by Mrs. Hardcastleregarding Appellant’s prior conviction that “heshot a young woman just for saying somethingthat he didn’t like”.

The Evidence Code prohibition of hearsayapplies in second stage proceedings in capitalcases. Unless a hearsay statement falls within oneof the recognized exceptions to the hearsay rule,it is not admissible in second stage proceedings.Therefore, victim impact witnesses are to testifyonly to matters within their own personalknowledge. If Mrs. Hardcastle did not personallyknow the circumstances surrounding Appellant’sprior conviction, it would be improper to allowher statement at trial.

Further, whether or not Mrs. Hardcastle had

7. Such a remark was probably not offered for the

truth of the matter asserted, that the victim was in fact

butchered, but to show that he died a horrible death.

Therefore, it would not constitute hearsay.


any personal knowledge of the circumstancessurrounding Appellant’s prior conviction, such astatement does not show the financial, emotional,psychological, and physical effects of the victim’sdeath nor is it relevant to the circumstancessurrounding the victim’s death. The admission ofMrs. Hardcastle’s statement about thecircumstances surrounding Appellant’s priorconviction was error.

* * *

Finally, Appellant finds error in the trialcourt’s refusal to allow cross-examination of thevictim’s family into any aspect of the victim’sdrug involvement and to allow any rebuttalevidence on the subject. The record reflectsAppellant was given the opportunity tocross-examine the witnesses, except as to thevictim’s drug involvement. Additionally,Appellant sought to present the testimony of apolice officer who searched the victim’s home atthe time of the homicide and found quantities ofillegal drugs and drug paraphernalia.

In a rare glimpse into the legislative historybehind the victim impact legislation, the author ofthe legislation has stated:

The important issue in sentencing is that thejury be given a clear picture of the entire crime.Information about the victim must be seen asrelevant in order to accomplish this task. Thatthe victim is a drug dealer or has a history ofcausing harm to others is as important for thejury to know as if the victim were a minister.Senator Brooks Douglass, Oklahoma’s VictimImpact Legislation: A New Voice for Victimsand Their Families: A Response to ProfessorCoyne, 46 OKLA. L. REV. 283 (1993).

Based upon the above, the fact that the victimin the present case was involved in illegal drugactivity was relevant in giving the jury a completepicture of the entire crime and the uniqueness ofthe victim as a human being, providing a “quickglimpse of the life” the defendant “chose toextinguish”. Payne, 501 U.S. at 822. Therefore,such evidence may properly be presented to the

jury. Denying the defendant the opportunity tocross-examine on the issue of the victim’s illegaldrug activities was a denial of his right to confrontthe witnesses against him.

* * * Upon review of the record, we find theerror was not harmless beyond a reasonable doubt.When viewed along with the improperly admittedvictim impact evidence discussed above, wecannot say that exclusion of evidence of thevictim’s involvement with illegal drugs did notaffect the reliability of the sentencing proceeding.Accordingly, we must remand the case to theDistrict Court for resentencing.

Chapel, P.J., and Johnson, J., concur. Lane, J,concurred in the results in an opinion in whichVice Presiding Judge Strubhar joined. Thatopinion is omitted.

Note – Willingham v. State

Later the same year, the Oklahoma Court ofCriminal Appeals upheld a death sentence in acase in which the victim impact testimonyincluded testimony of the victim’s husband that a“cur” or “stray dog” should not die the way hiswife had; and testimony by the victim’s daughtercharacterizing the defendant as a “piece of trash”and continuing:

I think the only fair punishment for him ishe should be confined in a small area, someonethree or four times his size should come intothat confined area and beat him, cause himpain.

I think he should have to beg for his life. Ithink he should have to choke on his ownblood.

I think he should have to crawl, try to getaway from his attacker.

I think he should suffer, suffer, suffer, butyou know, even if he’s put to death, he won’tsuffer, you know he will have a painless death.We can’t do anything to him that will causehim the kind of pain that has been caused to


our mother and to us . . .

Mom has raised us to be kind and forgiving,but we can’t forgive this and we want himkilled.

No contemporaneous objection was made bydefense counsel to these statements. TheOklahoma Court of Criminal Appeals reviewedthem under a plain error standard and upheld theiradmission. Willingham v. State, 947 P.2d 1074(Okla Cr. App. 1997).

Ex parte Esaw JACKSON

Supreme Court of Alabama.68 So.3d 211(2010).

WOODALL, Justice.

Esaw Jackson was convicted of three counts ofcapital murder for (1) killing Pamela Montgomeryby shooting her with a rifle fired from a vehicle;(2) killing Milton Poole III by shooting him witha rifle fired from a vehicle; and (3) killingMontgomery and Poole during one act or pursuantto one scheme or course of conduct. He was alsoconvicted of two counts of attempted murder forshooting Denaris Montgomery and ShanieceMontgomery.

The jury recommended, by a vote of 10-2, thatJackson be sentenced to death [and] * * * the trialcourt sentenced Jackson to death. * * *

The Court of Criminal Appeals affirmedJackson’s convictions and sentences. Jackson[‘scourt-appointed lawyer] raised only two issues onappeal to the Court of Criminal Appeals[.] * * *The Court of Criminal Appeals rejected hisargument “that the penalty of death by lethalinjection is cruel and unusual punishment inviolation of the Eighth Amendment of the UnitedStates Constitution.” That court also rejected hisargument “that charging him with three counts ofcapital murder was multiplicitous and that hisresulting convictions and sentence of death for allthree counts violated principles of doublejeopardy.” * * * Jackson, through new counsel,petitioned this Court for certiorari review of the

capital-murder convictions and sentences of deaththat the Court of Criminal Appeals affirmed.

* * * In his petition for certiorari review,Jackson presents several issues that, according tohim, warrant plain-error review. See Rule39(a)(2)(B), Ala. R.App. P. We granted hispetition to consider four of those issues.

* * * “Plain error is ‘error so obvious that thefailure to notice it would seriously affect thefairness or integrity of the judicial proceedings.’“ Ex parte Walker, 972 So.2d 737, 742(Ala.2007). “To rise to the level of plain error, theclaimed error must not only seriously affect adefendant’s ‘substantial rights,’ but it must alsohave an unfair prejudicial impact on the jury’sdeliberations.” Plain-error review “is to be ‘usedsparingly, solely in those circumstances in whicha miscarriage of justice would otherwise result.’”United States v. Young, 470 U.S. 1 (1985)(quoting United States v. Frady, 456 U.S. 152,163 n. 14,(1982)). “Although the failure to objectwill not preclude [plain-error] review, it willweigh against any claim of prejudice.” Sale v.State, 8 So.3d 330, 345 (Ala.Crim.App.2008).

* * * On February 1, 2006, PamelaMontgomery was operating her automobile; in thevehicle with her were her children, 17-year-oldDenaris and 21-year-old Shaniece, as well as16-year-old Milton Poole III, a family friend.While Pamela was stopped at an intersection,someone fired many rounds from an assault rifleinto her vehicle, killing Pamela and Milton andinjuring Denaris and Shaniece. Denaris testifiedthat he had seen Jackson drive up beside hismother’s car and open fire. Shaniece was not ableto identify a shooter. Brandon Carter, a defensewitness, testified that he was in Jackson’s vehicleat the time of the shooting and that the shots werefired from another vehicle, not by Jackson.

Milton’s mother was Loretta Poole. She wasacquainted with Jackson, who lived in the samearea she lived in. Loretta testified, as stated * * *that, approximately two weeks before theshooting, Jackson had told her that he did not likeher and that he was going to make her move from


the area by “hurt[ing][her] so bad” that she “ain’tgoing to have no choice but to move.” * * *

During the guilt phase of Jackson’s trial,Loretta, on direct examination, gave the followingtestimony:

* * *

A. [LORETTA:] But I thought he was talkingabout doing something to “me.” I asked still,“What you going to do?” He said, “Never f___mind what I’m going to do.” He said, “Becausewhat I’m going to do,” he said, “you know, youain’t going to be able to take it.”

Q. Okay.

A. And he don’t lie. He didn’t lie. I ain’t ableto take it. (witness crying)

Q. Okay.

A. He killed my child.

Q. Okay. Hang on. Hang on. Hang on. Just takea minute. Take a minute. Take a minute.

A. Oh, God help me.

Q. Take an easy breath.

A. Help me, Jesus. Help me, God.

Q. Breathe.

A. Help me, Lord Jesus, Jehovah; please helpme.

Q. Ma’am – okay?

A. Thank you, Jesus.

Q. Let me ask you a question. You okay? Youokay?

A. I never be okay anymore.

Q. All right. Well, let me ask you one more

question, and I will be done. Okay?

A. Okay.

Q. Okay?

A. Go ahead.

Q. All right. About how long before [Milton]was killed did that conversation take place?

A. Within a week or two, no longer; wasn’tquite two weeks.

Q. Okay.

A. It was early one morning. I won’t forget it.

Q. Okay.

A. He was riding along the side, and he startedcoming by the house and stuff, flashing awhole lot of 1’s in the windows, and youknow, we be out in the yard, and he just comeback peeking (sic), doing the peeking things(sic), you know.

Q. Okay.

A. Peeking things. And I paid no attention. Ithought he was talking about doing somethingto me. But then when he said I wasn’t going tobe able to take it, I didn’t have no idea he wastalking about killing my child, until the nighthe did it, when my child told me-

[DEFENSE COUNSEL]: We are going toobject to this, non-responsive; not been aquestion asked in fifteen minutes.

[PROSECUTOR]: Hold on.

THE WITNESS: Because it wasn’t your childkilled. It wasn’t your child killed. (witnesscrying)

THE COURT: Hang on, ma‘am. Listen to thequestion.


THE WITNESS: Oh, it hurts so bad.

THE COURT: I know it does. Just hang on justfor a second. Just close your eyes and thinkabout Jesus for a second. Just hang on just asecond.

[Emphasis added; parenthetical languageoriginal.] This emotional, mostly nonresponsivetestimony forms the basis for some of Jackson’sclaims of plain error.

Jackson correctly observes that “Loretta Poole... was permitted to provide extremely emotionaltestimony regarding her opinion of [Jackson’s]guilt, despite the fact that she had no personalknowledge of the identity of the shooters.” Lorettawas not at the scene of the shooting; nevertheless,she twice expressed her opinion that Jackson hadkilled her son. Such testimony from a lay witnesswas clearly inadmissible. Rule 701, Ala. R. Evid.,provides, in pertinent part, that a lay “witness’stestimony in the form of opinions or inferences islimited to those opinions and inferences which are... rationally based on the perception of thewitness.” “The Advisory Committee’s Notes on[this] portion of Rule 701 ... indicate that ‘[t]his isno more than a restatement of the “firsthandknowledge rule,” found in Ala. R. Evid. 602,tailored to opinions. No lay witness may give anopinion based upon facts that the witness did notactually observe.’” Musgrove Constr., Inc. v.Malley, 912 So.2d 227, 239-40 (Ala. Civ. App.2003). * * *

Jackson argues that Loretta’s “extraordinarilyprejudicial testimony was improper because itwent to the ultimate issue in this case-whether[he] had shot ... Milton and the others in the carwith him.” Although the only disputed issue attrial was whether Jackson had fired a weapon intothe vehicle occupied by the victims, Loretta’sstatements were inadmissible, regardless ofwhether they are properly characterized as goingto the ultimate issue to be decided by the jury.Rule 704, Ala. R. Evid., states: “Testimony in theform of an opinion or inference otherwiseadmissible is to be excluded if it embraces anultimate issue to be decided by the trier of fact.”

(Emphasis added.) * * * Loretta, who was notpresent at the crime scene, should not have beenallowed to testify that it was Jackson who hadkilled her son. Under the facts of this case, thesignificance of the issue embraced withinLoretta’s opinions is relevant to whether asubstantial right of Jackson’s has been affected,but not to the admissibility of the opinion.

According to the State, “[t]here cannot be aserious argument that the jury would haveperceived [Loretta’s] emotional outburst aspreempting [its] role as fact finder.” However,during his guilt-phase closing argument, theprosecutor sought to benefit from Loretta’sinadmissible conclusions. He stated: “LorettaPoole knows that Esaw Jackson did it. I guaranteeyou she’s convinced beyond a reasonable doubtthat man killed her son. I guarantee she isconvinced beyond a reasonable doubt that EsawJackson killed Pam Montgomery.” It was, ofcourse, the jury’s responsibility to determinewhether the State had carried its burden to provethat Jackson had intentionally killed the victims,and Loretta’s inadmissible opinion testimonyconcerning that issue should not have been beforethe jury as it fulfilled that responsibility. Indeed,“[t]he admission of these emotionally chargedopinions as to what conclusions the jury shoulddraw from the evidence clearly is inconsistentwith the reasoned decisionmaking we require incapital cases.” Booth v. Maryland, 482 U.S. 496,508-09 (1987), overruled in nonrelevant part,Payne v. Tennessee, 501 U.S. 808 (1991).

The State argues that any error in admittingLoretta’s testimony giving her opinion thatJackson killed her son “was harmless error giventhe overwhelming evidence of guilt presented atJackson’s trial.” However, “the proper inquiryhere is not whether evidence of the defendant’sguilt is overwhelming but, instead, whether asubstantial right of the defendant has or probablyhas been adversely affected.” Ex parte Lowe, 514So.2d 1049, 1050 (Ala.1987). At any rate, theevidence of Jackson’s guilt was far short ofoverwhelming. Indeed, during his closingargument, the prosecutor acknowledged that the“whole case, quite honestly, boils down to


Denaris,” the only eyewitness to identify Jacksonas the shooter. There was no physical evidence toconnect Jackson to the shooting, and the Statenever found the murder weapon.3

* * *

In her testimony, Loretta did more that simplyexpress her opinion as to Jackson’s guilt. Shealso, while crying, described how badly her son’sdeath had affected her: “I ain’t able to take it”; “Inever be okay anymore”; “it hurts so bad.” * * *

* * *

* * * [G]iven the highly emotional nature ofLoretta’s testimony, as well as the prosecutor’s“guarantee [to the jury] that [Loretta was]convinced beyond a reasonable doubt” thatJackson committed the murders, we cannot saythat “the record conclusively shows that theadmission of the victim impact evidence ... did notaffect the outcome of the trial or otherwiseprejudice a substantial right of the defendant.”

[W]e conclude that Loretta’s expression ofanguish and the inseparable inadmissible opinionand victim-impact testimony therebycommunicated to the jury rise to the level of plainerror, because the errors reflected by theadmission of that testimony affected Jackson’ssubstantial rights and likely had an unfairprejudicial impact on the jury’s deliberations.Therefore, the judgment of the Court of CriminalAppeals is reversed and the case is remanded forfurther proceedings consistent with this opinion.

Cobb, C.J., and Lyons, Stuart, Smith, Parker,Murdock, and Shaw, JJ., concur. Bolin, J.,concurs in the result.

Jackson’s case illustrates the differencelawyers make in the outcome of cases. Hereceived grossly incompetent representation onhis appeal to the Alabama Court of CriminalAppeals. His court-appointed lawyer raised onlytwo frivolous issues and did not recognize andraise the victim impact issue that was the basis forreversal by the Alabama Supreme Court. TheEqual Justice Initiative (EJI) of Montgomeryrepresented Jackson in petitioning the AlabamaSupreme Court to review the case and filed acomprehensive brief. Had EJI not taken his caseand the same lawyers represented him before theAlabama Supreme Court, Jackson’s convictionand death sentence would have been upheld andhe almost certainly would have been executed.Instead, when Jackson’s case returned toBirmingham, the judge ordered an evaluation ofJackson which determined Jackson had an IQ of56, well below 70, the prime indicator ofintellectual disability. On December 31, 2012,the court found “that Jackson is mentally retardedor otherwise intellectually disabled and that U.S.Supreme Court precedent mandates that hecannot be executed.”

Testimony of Prison Guardsand Decision of the Courtin United States v. Battle

Anthony George Battle was convicted ofmurdering a correctional officer while a federalprisoner serving a life sentence at the U.S.Penitentiary in Atlanta (USP-A). At the penaltyphase of his trial, the prosecution presented thefollowing testimony from correctional officers,which was appended to the decision of the Courtof Appeals in United States v. Battle, 173 F.3d1343 (11th Cir. 1999).

Officer SchealeyQ. Officer Schealey . . . did you see an effect onthe inmates at USP Atlanta following [OfficerWashington’s] death?

3. Bullet fragments removed from the bodies of

Pamela Montgomery and Milton Poole were

determined to have been fired from an AK-47 or a SKS

(the semiautomatic version of an AK-47) assault rifle.

The State argues that “[t]here was evidence that

Jackson was in possession of an assault rifle on the day

of the shooting.” However, our review of the record

finds no support for this statement. * * * [A]s Jackson

points out, “the only evidence that anyone ever

possessed an assault rifle was testimony that Mr.

Jackson’s cousin, not Mr. Jackson, had said he bought

a ‘SK’ a couple weeks before the incident, not the same

day.”


A. Yes.

Q. And what kind of effect was that?

A. Everybody is walking around smiling now, andif an officer tells an inmate to do something, hewould said, “He need to leave me alone, or I’ll geta hammer after you.” You see people walkingaround saying, “hammer time, hammer time.”

Q. Do you think the murder of OfficerWashington would have improved inmate Battle’sstatus within the prison among inmates? . . . .

A. Yes. Everybody been talking about the incidentever since it happened. So, they talk about theinmate also.

Q. And they would refer to Mr. Battle himself?

A. Yes. . . . .

Q. How would the effect of the death penaltybeing rendered as a verdict in this case or as asentence in this case affect the correctionalofficers at USP Atlanta and BOP?

A. Well, it would just let us know if the inmatewant to assault a staff member or kill a staffmember, he know he going to get a death penaltytrial.

Q. How would you think it would affect theinmates?

A. It would have them thinking twice before theyassault an officer or a staff member.

Q. And in the event that a life sentence wereimposed, how do you think that would affectcorrectional officers?

A. It would have a hard setting on the staffmembers because we know an inmate doing 99years, and he know if he kill an officer, what is hegoing to get? Another 99 years, but what is that tohim? And it have an impact on the officers. We

got to realize we got to work in this kind ofenvironment, and if an inmate is going to assaultus, he’s not going to get but just another 99 yearsplus the 99 he already have.

Officer Layfield Q. If the sentence that the jury renders [in thiscase] is a life without parole sentence, how do youthink that would affect the inmates in theinstitution?

A. The inmates already have an attitude. Oncethey receive a lengthy sentence or lifeimprisonment, that’s all that can happen to them.So, I believe the situation would worsen. Withoutthe death penalty, all prisoners, they believe thereis nothing else that can happen to them.

Q. Are there a lot of people doing life sentences atUSP Atlanta or lengthy sentences that areessentially a life sentence?

A. Yes, Ma’am.

Q. Did you see a change among the inmates after[Officer Washington] was killed?

A. Of course, yes, Ma’am.

Q. What kind of change?

A. When you went to enforce policy, they wouldbe walking around saying things like, “hammertime,” or, “Don’t forget I got 20 years. I’ll be hereevery day with you.” Basically it was threatstoward staff members. . . . .

Q. How do you think rendering a death penaltyverdict sentence would impact the institution, theinmates, and the correctional officers?

A. I believe the staff at the penitentiary already actin a very professional manner. I believe theinmates would think several times before theycontinue with the same attitude that they have.


Officer HawkinsQ. What kind of reaction did you get from [theinmates] in regard to [Officer Washington’s]murder?

A. At that particular time I believe I was workingin the special housing unit, which is whereinmates are housed that have committedinfractions against the Bureau of Prisons, andsome inmates would like taunt us about him beingkilled. If they didn’t like something we weretelling them to do, they would say something likebetter watch it. I’m going to get that hammer.There were very cruel, ugly things about his deaththat they would throw back up in our face.

Q. If the jury were to impose the death penalty inthis case, do you have an opinion about whatimpact that would have on ... the operation of USPAtlanta in terms of the staff and the security issuesthat you have there?

A. I believe that this would send a very clearsignal to the inmates and staff members as wellthat you cannot commit this type of infraction.You cannot kill a staff member and just absolutelynothing be done about it.

Q. Do you have an opinion about what impact theimposition of a life sentence would have on ... theissue of security, and the relationship to the staff,and dealing with the inmates at the institution?

A. If a person is already serving a life sentence,what is giving them another life sentence going todo? You can kill a staff member, and nothing isgoing to happen except you are going to remain injail. You are going to do that anyway. Most of theinmates we have housed there are never gettingout of there. So, they figure, well, if I kill a staffmember and all I have to do is stay in jail, what’sto prevent me from doing it again? Nothing.

Decision of the Court

The Court upheld the admission of thetestimony. Judge Edmondson, writing for aunanimous panel, explained:

This testimony, Battle contends, was victim

impact testimony introduced in violation ofBooth v. Maryland, overruled in part by Paynev. Tennessee, In addition, Battle says the law ofthis circuit does not permit “deterrence”evidence and to hold otherwise would open thefloodgates: every future capital case wouldinclude a trial on whether or not the deathpenalty deters criminal conduct. Moreover, ifthis evidence is permissible, Battle argues, theGovernment deliberately misled him about thenature of the testimony and allowed him notime to find, and to respond with, witnesses ofhis own.

We cannot say the district court erred here.The guards’ victim impact testimony wasrelevant and permissible. The heart of theirtestimony was to describe the harm caused atthe Atlanta prison by the murder of acorrectional officer who was killed justbecause he was a correctional officer.6

These prison guard witnesses are not familymembers of the slain officer; these are prisonofficials specifically contemplated andprotected by the pertinent statute. Furthermore,their testimony, unlike the victim impacttest imony in Booth , was neither“inflammatory” nor “emotionally charged.”The testimony in question here * * * consistedof short, matter-of-fact descriptions of theeffect Officer Washington’s murder had andthe effect the sentence in this case would haveon the prison population and guards at thisparticular prison (USP-A); no prison officialdescribed Battle as a beast who must be killed(as was the case in Booth); no officialconveyed hatred toward Battle or theviciousness of his crimes (as was the case inBooth); in short, no prison official could have

6. Briefly stated, the guards’ testimony told the jury

that the harm caused by Battle’s killing Officer

Washington was not simply to take a life, but also to

embolden other prisoners, to increase the harassment of

guards by prisoners, and to increase the stresses on the

prison staff (making them feel less safe) in the peculiar

environment of a prison in which many inmates are

already serving life sentences or long sentences.


been said to have inflamed the jury.7

For Battle’s * * * argument * * * thatdeterrence evidence is inadmissible ismisplaced. The evidence in this case was notabout deterrence as deterrence is normallydiscussed in our cases. * * * The evidence inthis case was not about the power of the deathpenalty to deter future crimes in some generalor abstract sense. No studies were shown; nodata was introduced; no professors spoke. * **

This case was one where three prisonofficers briefly discussed a crime committedagainst a fellow officer (just because he was anofficer) and the harmful ripple effects thecrime had had on USP-A. Whether or not thedeath penalty deters murder as a general matteris a legislative judgment: not a question forjuries. But, the harmful effects of a murder ofa correctional officer (on account of hisofficial capacity) at the specific prison inwhich he worked is a different and morenarrow matter. This kind of specific andparticularized testimony about the nature of theactual act being prosecuted and about itsconsequences for the prison’s staff is notbarred by the law. If deterrence was touched onin a local context, that circumstance does notalter the substance of the testimony. The8

testimony was, at root, about harm to theAtlanta prison staff – how the murder of acoworker and the resulting sentence for hiskiller would affect them – and not much aboutactually deterring murders in the future.

Moreover, even if the prison-guardtestimony here reached the impermissible point(which we think it did not), it was notreversible error. “Admission of [victim impact]evidence will only be deemed unconstitutionalif it is so unduly prejudicial that it renders thesentence fundamentally unfair.” Gretzler v.Stewart, 112 F.3d 992, 1009 (9th Cir.1997).The evidence was not unduly prejudicial in thiscase because the testimony was a small portionof a week-long sentencing hearing where theGovernment proved many statutoryaggravators.

On the notice question, Battle is right to saythat the Government was misleading about thenature of the guards’ testimony. The pretrialletter from the prosecutor to Battle’s counseldescribed the three officers as “personalfriends of Officer Washington’s who maytestify at the sentencing hearing regarding whatkind of person Officer Washington was.”

The first time Battle’s counsel heardanything to the contrary was in a conference inthe judge’s chambers on the first day of thesentencing proceedings. While that is shortnotice to find and to prepare rebuttal witnesses,the burden was on defense counsel – if hethought he might find and use such witnesses– to move for a continuance. If not at that verymoment, then later in court when the nature ofthe testimony was clear, defense counselneeded to do more than object to the guards’evidence; counsel – if he seriously thoughtmore time would help him – needed to move todelay the proceedings. * * *

7. By the way, footnote ten in Booth, to the extent this

portion of Booth survived Payne, says the Court does

not disapprove of all victim impact testimony: “Similar

types of information may well be admissible because

they relate directly to the circumstances of the crime.”

Here we might have such information: spotlighting the

vulnerability of prison guards, like Officer Washington,

to fatal attacks like the one in this case, where the

victim was selected simply because he was a guard.

8. Battle’s cases are also inapposite because they

speak to a different question of whether a defendant’s

proffered testimony on lack of deterrence constitutes

relevant mitigating evidence about a defendant’s

character or circumstances of the offense which, under

Lockett, must constitutionally be considered by the trier

of fact. Those cases did not decide whether deterrence

testimony is altogether impermissible.


Testimony of J. Michael Luttig in State v. Beazley

Napolean Beazley, an African-American, wasconvicted 114th Judicial District Court in Tyler,Texas by an all-white jury in 1995 of the 1994murder of John Luttig, a white businessman andthe father of J. Michael Luttig, who was then ajudge of the United States Court of Appeals forthe Fourth Circuit. The following is the testimonyof Judge Luttig at the sentencing phase of thetrial.

Direct examination by the prosecutor Q. Mr. Luttig, can you tell this jury where youlive.

A. My wife and I live in Vienna, Virginia. It’sa suburb of Washington, D.C.

Q. Was that your wife that just testified,Elizabeth Luttig?

A. It was.

Q. Who is Suzanne Luttig Easterling?

A. That’s my sister.

Q. Are you the oldest child to John and BobbieLuttig?

A. Yes.

Q. Do you see Bobbie Luttig seated out here inthe courtroom?

A. I do.

Q. And who is she?

A. That’s my mother.

Q. You’ve heard your wife describe therelationship that you had with your father. Canyou tell this jury, in your own words, how closeyou were to your father?

A. There really aren’t words for it, but my dad

was my hero. My dad still is my hero. I worshipedthe ground he walked on, and I still do. As mywife said, we did everything together. My dad wasan extraordinary man. He was a man of – of greatintegrity. He was a man of – of great discipline.

[DEFENSE COUNSEL:] Excuse me, Mr.Luttig. May we approach the bench, your Honor?

THE COURT: Yes, you may.

(The following proceedings were had at thebench, outside the hearing of the jury:)

[DEFENSE COUNSEL:] Judge, I don’t wantto have to be put in a position of objecting, but – in front of the jury, but I’ve got to. I mean, this is– this has got character evidence, and it’s notadmissible.

THE COURT: If it is going to his testimony ofhow this affected him, then he may testify, but I’mnot going to let him get carried away with it, allright? In a directed manner as to what is relevantto the special issues.

(End of bench conference.)

Q. Can you tell the jury how close you were toyour father?

A. As I was saying, he was my best friendthroughout life. I suppose that – that we were asclose as father and son – as even a father and soncan be.

From as long ago as I can remember, there wasnever a word passed between us that was – thatwas mean or mean-spirited, although my fatherwas a strict disciplinarian. But he believed in rightand wrong, and he tried his best to inculcate thatin me, and there was a communication betweenus.

I understood why he did what he did in termsof discipline, but I also understood at the sametime that he did it because he loved me, and Iunderstood that the lessons that he taught me were– were lessons that were in my best interest, and


I took them as such.

As I grew older, the relationship became evencloser, despite the fact that – that we moved awayfrom Tyler and indeed moved across the country.He took a – a continuing interest in what I did, inthe few achievements I had, in the direction that Iwas headed in my own life, and we continued tobe close, literally up until he day that he wasmurdered.

Q. Can you tell the jury basically what theeffect of this crime has been from the period oftime that you were first told that your father diedthrough the – the short period of time after youwere notified?

A. Again, it’s almost embarrassing to explainto anyone what has occurred and the effect it’shad. And that’s one of the tragedies itself.

The night I learned that my dad had beenkilled, it was approximately one o’clock in themorning in Washington, and there was a knock atthe door, and – a continued knocking. And,frankly, I was scared. And I called the police – orI asked my wife to call the police, which she did.The knocking continued and then the doorbellcontinued ringing, just repeatedly, repeatedly.

Finally, I leaned out the second-story windowof our house, and I said, “Who is it? Who is downthere?” And a friend identified himself. And itwas one o’clock in the morning, and this person isbanging on the door.

So I went down and – and I was still nervous,even though I recognized the person. And Iopened the door and braced myself against thedoor, because it – it was just so unusual thatsomeone would be at the door at that time of thenight.

I opened the door slightly and saw the person,and I asked him, “Do you want me to open thedoor?” Because I felt as if something was – waswrong. And he said, “Yes.” and I did.

And at that point, the person looked down,

unable to meet my eyes with his and said, “I neverthought I would have to do this in life, and I don’tknow how to do it better than to just say that yourfather was just murdered in the driveway of hisown home, and your mother just called to tell meand asked me to come over.” That’s when itbegan.

And from that day until today, it has been justone of the most horrible experiences that I thinkanyone should have to go through in life formyself and for my family.

Immediately after that, we called home, and mymother answered, and I said that my friend wasthere and told me what had happened. She said – she said, “Yes, your dad has been killed. You hadbetter come home.”

It was at that point that I really began tobelieve it, because I had heard it from Mom.

We stayed up all night, of course, and then leftfor – left for Dallas and then to Tyler the nextmorning.

When I arrived home here in Tyler with mywife, the house was cordoned off. There werepolice investigators in the driveway and in thegarage. There were ballistics experts in the garageand around the house and in the backyard. Therewere people trying to re-enact the crime scene andwhat had occurred.

I was met by television cameras in the frontyard. I was asked questions by reporters before Ihad even seen my mother, all as if we were on theset of a – of a television show or a movie. It waspetrifying.

Things were moving so quickly at that point intime, that – that – again, the words can’t captureit. But within moments of – certainly within sayminutes of arriving home – it was midday – mymother said that what we needed to do was – wasgo down to – to Joyner Fry to buy some clothesfor Dad to be buried in, said we’d need a shirt anda tie that would go with the suit that he had.


It’s not just going to buy the clothes that yourdad is going to be buried in, it’s hearing yourmother – hearing your mother ask you if you’ll gowith her to buy the clothes that your dad is going tobe buried in.

At that point, as best I can recall, I had beenunable to ask even my mother where my dad hadbeen shot, that is, where on his physical person,because your mind is racing, and you fear theworst. Somewhere within those moments, I did askone of the officers, I said, “Where was my dadshot?” And he said, “He was shot in the head.”

My mother and I went down to Joyner Fry, andwe picked out clothes for my dad to be buried in.And then my mom said, “They’ve called from thefuneral home, and we need to go view the body.”And I said, “Well, let’s go home first.”

At home, I either called the funeral home orthey called me – I don’t recall which – and thefuneral home director or the person responsible formy father was someone I had known from highschool, and he said to – I asked him in ratheroblique terms, but terms that he understood, “Is thissomething we should do as a family? ShouldMother and – and Suzie and my wife come down tothe funeral home to view the body?” And he said –he said, “Perhaps not.” And I said, “Is it somethingthat – that we can take?” And he said he wouldhave to leave it up to you – to me, but perhaps itwould be best if the women didn’t come.

So I talked to my mother and my sister and mywife, and I said – I said, “You probably shouldn’tgo,” and they all insisted that they go, which wedid. We went down to the funeral home together,and – to view the body. I walked in first and wastaken back. That was the first time I had seen mydad since he had been murdered. Immediately after me came my mother, mysister and wife. My sister cried out in – in thelobby, “That just can’t be him. It just cannot behim.” But it was. And we stood there and viewedthe body and paid what were, in effect, our lastrespects and then left.

These are the kind of administrative things thatattend any death, but obviously as they relate to amurder of this kind, they’re all the moretraumatic.

In the days that followed, we – we really – wepacked up a lifetime. We went through the housewhere my parents had lived for years. We packedup every item, every memory, every picture. Wetook from the walls, we took from the desk, wetook from the dressers, so that at leastmomentarily there would be no memory of myfather, because none of us thought that we could– could stomach that.

I packed up my dad’s clothes. I cleaned out hissock drawer. I packed his ties. I packed his suits,his underwear. Then I packed up my mom’sthings, with the help of my wife and my sister.And we moved out of the house that had beentheir home, never stayed there again.

I then went down and I packed up my dad’soffice, cleaned out the drawers, the pens, thepencils, the paper, the books – all of thememorabilia off the shelves. I packed them away.

During the course of – of packing up my dad’soffice and in the course of going through whatwas his safe deposit box, I saw a lot of letters andcorrespondence from all of us over the years. Andas I – as I remarked to others, you know, theinteresting, but not surprising fact was that mydad had kept so much of what we had sent him.He kept the letters when we said “thank you.” Heespecially kept the letters when we said “I loveyou.” And he kept all of the – all of the specialthank you letters that we sent to him as our dad.

As my wife alluded to, this case was notbroken for six weeks. During that time, we livedin absolute terror as a family. It is indescribable.It is indescribable what this family went throughfor the six weeks before this case was broken.

We had no place to live, so we would stay infriends’ houses. And there was not a member ofmy family that slept even an hour during the night.I would lie awake watching the – for silhouettes


on the sliding glass doors in the bedroom where Istayed for fear that whoever had done this wouldcome back. They would come back to finish off mymother or they would come to finish off the family.And we lived like that for six weeks.

I have never experienced such fear in my entirelife. There is not a human being on the face of thisearth who should ever, ever have to experiencethat.

Our family was physically sick for six weeks.After that time period, we were back inWashington with my mother. Eventually the callcame from someone at the Federal Bureau ofInvestigation. He said, “Last night, three peoplewere arrested in connection with your dad’smurder.” I was shaving at the time, and I startedshaking. I knew I had to tell my mother, but I didn’tnow what the reaction would be.

I went downstairs – this has been six weeks,seven weeks since this has happened. I went down,and my mother was sitting at the breakfast table.And I said, “I guess it’s over. They’ve arrestedthree people. And I guess the – it’s true, as theythought, that this was all done for a car.”

My mother collapsed on the floor of the kitchen.It was a writhing kind of pain that I had never seenin my life. And I went down on my knees tocomfort her, and she cried. And I said to her, “Nomatter how bad this is, it would be worse if we hadnot found them.”

I thought my mother was having either a strokeor an attack, but all she was doing was coming togrips for the first time with the fact that this wasreally done for a car, for a ten-year-old car.

At that point, you begin preparing yourself forthe trial. As you know, the trial was – was long incoming, at least for us. During the – the monthsleading up to the trial, you start to – to experiencethe loss.

You sit at Thanksgiving dinner, the dinner thatyour wife has prepared that at all other times wouldbe a feast. You sit there with your mother and your

wife and your daughter, and no one says a word,not a single word. There is only one thought in allfour of your minds and that is that your dad’s notthere, and he never will be again.

You make small talk. You pretend like nothinghas happened and that there is nothing else onyour mind. You tell your wife that the – the mealtastes great when you can hardly even keep itdown, and then you get up and you go do thedishes so that they won’t see you crying.

Then Christmas comes. It’s the first Christmasin your life that you wished would never come,never come, Christmas. But it does.

What do you do? You try to find a gift for yourmom that your dad would have bought for yourmom, and, of course, you can’t.

Christmas Day approached, and your father isburied 100 miles away. What do you do?

Well, you go down to be with him onChristmas so that he won’t be alone on his firstChristmas. This is after you’ve designed hisgravestone – grave marker. This is after you’vedriven down and – when the marker was placed,cupping your hands and pulling the dirt up aroundthe marker so it will be perfect, so it will besituated the way it’s supposed to be, so it will beperfect in the way that he always wanted thingsfor you. And then you sit there. You sit there forhours. Wait till the sun goes down, and it’s coldand you sit there until finally you can’t, and youget up and leave. And you say “Merry Christmas.”

You go home. The next morning is Christmas.There’s no happiness. With a three-year-olddaughter, there’s no happiness. My motherwouldn’t even come into the room Christmasmorning. My wife and I had Christmas morningfor Morgan and quickly went on with the rest ofthe day’s events.

Then you begin to prepare yourself for the trial– you know, the inevitability of the trial.

Then the day arrives, and the trial begins, and


you – you listen to your mom – you listen to yourmom talk about how she crawled on the floor in thefilth and the grease of the garage of her own hometo keep from being murdered by the people that hadjust murdered her husband. You listen to hertestimony about how the only thing she had on hermind was what it was like to be shot in the back ofthe head. You listen to – to the pain, and you watchher face. This is your mother.

Then you listen to the – to the autopsy. It has tobe done. You hear how one bullet grazed the sideof your dad’s head, but it left him conscious. Youhear how someone comes up in pointblank rangethen and shoots him through the head, through thebrain, through the shoulder and out the arm as helays in the garage, in the driveway with bloodflowing down.

You listen to testimony from the witness thatsaid – who said that the blood sounded like runningwater.

You listen to testimony from witnesses who saythat your dad’s eyes were bulging out of his head.

You listen to testimony about how the gun wasso close to his hand that it scorched his skin.

And then you listen to testimony about theperson who did it, who said before, he wanted tosee what it was like or feel what it was like to killsomebody, and that it was a trip to do it.

The – there are no words for it. You know, theidea of this elegant woman, my mother, crawlingon the garage floor to keep from being murdered,that’s something that you have to live with the restof your life. And that’s something that my motherhas to live with rest of her life. She’ll never getover that.

Q. Let me ask you, Mr. Luttig: Have you beenable to observe your mother as she’s gone throughthe days since the event and after the arrest leadingup to the trial and indeed during the few weeks thatwe’ve been here in trial?

A. Yes.

I guess my mother and father had what youmight call a conventional relationship. My motherdepended upon my dad, and my dad took care ofmy mom. The only thing that – that my dad fearedin life was that my mother would be left in thesituation that she’s in now. I think she’s probablydone better than even my dad would haveexpected, but it’s not without its costs.

There is a – there is almost a – a false strengthto my mom right now, because she’s trying topretend that she can make it. I think she can, butI’m not sure of it. But she’s never confrontedanything like this in her whole life. As my wifesaid, my mother literally could not sleep alone inher bed for weeks. She shook and shook andshook night after night.

Now, a year later, if there is any sound in thehouse, if there is any sound in the hotel room, mymother bolts out of bed.

One night the alarm went off in my house bymistake. I jumped up to run down the stairs. Mymother grabbed me and threw me back against thestairs and went first. Never again – never againwill this happen.

As I watch her today, as I watch her in thecourtroom, I can’t begin to experience what she isgoing through having watched her husbandmurdered. I have watched her, and it’s a womanof impeccable strength. But it turns my stomach.

Q. Judge Luttig, can you tell the jury just alittle bit about the effect of this on Suzanne, yoursister, as you’ve been able to observe this?

A. A lot of this is very personal. We don’t talkabout it much. In fact, a lot of what I’ve said todaywe don’t talk about and never have. But I think formy sister, my dad was the balance. My dad kepteverything in perspective for my sister. She toldhim everything would be all right, and he stoodthere to take care of her.

The problem that she mentioned since thisoccurred, you know, are the result of theelimination of that relationship. My sister, like my


mother, was strong, very strong. But you have tobelieve me, this is the kind of event that triespeople to their fullest, and I don’t know – I don’tknow how my sister will be.

Q. Mr. Luttig, what is the effect of this on youpersonally as you’ve sat through this trial and inthe months, years to come?

A. I do not know. And I would be less thancandid if I said that I did. I think that all of us, evenafter a period of a year, are still in some shock. Iguess for me, the effect is – is – is more indirect –or direct in a more profound way. I’m not surewhich.

Like my father, I was the kind of person thatloved life, loved people, had a passion for life.People like that, they attack every day. You jumpout of bed – you jump out of bed just to go to work,because you enjoy it, you enjoy people, you enjoylife. Part of that is – is that – that you have no fear.

I guess now – I guess I do have fear now. Andwhat this has shown is that this can happen toanybody in the world just like that (snaps fingers),and that changes the way you look at life.

Q. Thank you, Mr. Luttig.

THE COURT: Cross-examination.

[DEFENSE COUNSEL:] No, your Honor. Noquestions.

The jury imposed the death penalty. Texasexecuted Napoleon Beazley, who was 17 at the timeof the crime, by lethal injection by on May 28,2002.

Statement of Homer Black in State v. Simpson

Ivan Simpson broke into the home of PatriciaAnn Nuckles in Atlanta and raped and murderedher on November 21, 2000. Pursuant to a pleaagreement, he plead guilty and was sentenced tolife imprisonment without the possibility of parole.

The following is the statement of Hector Black,made in the Superior Court of Fulton Count, inAtlanta, Georgia, on January 14, 2002, before thejudge imposed sentence.

My name is Hector Black. This is my wife,Susie. We first met Patricia Ann Nuckles whenshe was a thin and neglected child of eightliving with her mother and younger sister invine city. We moved to Vine City in 1965,working in a tutoring program established bythe Atlanta Friends meeting [Quakers].Although Patricia was not our child by anyclaims of birth, she was our child by the everyclaim of love .

She lived with us and became a much lovedpart of our family. She was one year older thanthe oldest of our three girls. Because my wifeis handicapped and mostly confined to awheelchair, our children all learned to help herwith basic chores. Trisha also took her turn - itsomehow put her on an equal footing with ourother children. I can still hear her scolding hersisters when they tried to avoid helping.

Trish always took her responsibilitiesseriously. She became our daughter, ourchildren’s sister. We watched for 35 years asshe grew into a beautiful woman – beautiful inevery way. We thought we were helping her,but as can happen when we give, we receivedfar more from her than we gave. She wasGod’s gift to our family.

She was not ashamed of her background.Rather, she used this experience to help others,especially children, in the Emmaus HouseProgram on Hank Aaron Drive, and in thepublic library in Kirkwood where she workedwith children such as she had been. Shewanted to make the world a better place. Andshe did.

November 21,2000 was the darkest day ourfamily has ever experienced. Our lives; mineand the lives of my wife and three daughterswere changed forever as we learned piece bypiece what had happened to Patricia, our


daughter, our children’s beloved sister. Everyday we struggled to try to remember thebeautiful and loving person she was, and driveout the horrible thoughts and visions of how shedied.

Many times it seemed as though the darknesswas stronger than we were, that this terribledeed was so burned into our lives that we wouldnever be able to celebrate who Patricia was,how much we loved her and how much sheloved us. I thought God had abandoned me.

About three months after Trish was killed Iremember looking at the table we had set outwith photographs of her from different periodsof her life. The one that caught my eye was apicture of her at about nine years of age lookingback over her shoulder with such a sweetexpression on her face, and I smiled for the firsttime remembering her as a child. It was the firsttime I had looked at those photos without a stabof pain.

We were not abandoned. The love of familyand friends surrounded us, and God workedthrough them. I knew that I could not live in thisdarkness. A friend had given us a book ofwritings for people who have suffered loss.Among them was the saying, “all the darknessin the world cannot extinguish the light of asingle candle.” Those words helped us. They arewritten on her headstone in the little graveyardon our farm where Trish is buried, where mywife and I hope to be buried.

I know that love does not seek revenge. Wedo not want a life for a life. Love seeks healing,peace and wholeness. Hatred can neverovercome hatred. Only love can overcomehatred and violence. Love is that light. It is thatcandle that cannot be extinguished by all thedarkness and hatred in the world.

Judge Goger, that is the reason we are notasking for the death penalty. I know that“forgive us our trespasses as we forgive thosewho trespass against us.” was not meant to beempty words. I don’t know if I have forgiven

you, Ivan Christopher Simpson, for what youdid. All I do know is that I don’t hate you, butI hate with all my soul what you did to Patricia.

My wish from my heart for all of us whowere so terribly wounded by this murder,including you, Ivan Christopher Simpson, isthat God would grant us peace.

Shooting Victim Tries to PreventExecution of Man Who Shot Him

Rais Bhuiyan, 37, a former Air Force pilotfrom Bangladesh, survived after being shot him inthe face at close range by Mark Anthony Stroman,41, a stonecutter from Dallas, who said he shotpeople he believed were Arabs because he wasenraged by the terrorist attacks of Sept. 11, 2001.Stroman killed at least two: Vasudev Patel, anIndian immigrant who was Hindu, and WaqarHasan, a Muslim born in Pakistan.

Stroman admitted to the shootings and wassentenced to death on April 4, 2002 for the murderof Patel. His execution was later scheduled forJuly 20, 2011. Despite receiving 38 pellets in hisface and being partly blinded in his right eye,Bhuiyan, spent the several months before theexecution meeting with officials in Texas to try topersuade them not to execute Stroman. He alsocreated a web site with a petition to spareStroman.

He explained his reasons in an interview witha reporter from the New York Times:

I was raised very well by my parents andteachers. They raised me with good morals andstrong faith. They taught me to put yourself inothers’ shoes. Even if they hurt you, don’t takerevenge. Forgive them. Move on. It will bringsomething good to you and them. My Islamicfaith teaches me this too. He said he did this asan act of war and a lot of Americans wanted todo it but he had the courage to do it – to shootMuslims. After it happened I was just simplystruggling to survive in this country. I decidedthat forgiveness was not enough. That what he


did was out of ignorance. I decided I had to dosomething to save this person’s life. That killingsomeone in Dallas is not an answer for whathappened on Sept. 11.

Timothy Williams, The Hated and the Hater, BothTouched by Crime, N.Y. TIMES, July 18, 2011.Bhuiyan’s website, World Without Hate, is atwww.worldwithouthate.org. Texas executed MarkStroman by lethal injection, as scheduled, on July20, 2011.

Douglas Oliver KELLY, Petitioner,v.

CALIFORNIA; Samuel Zamudiov.

California.

Supreme Court of the United States555 U.S. 1020, 129 S.Ct. 564 (2008).

The petitions for writs of certiorari are denied.Justice SOUTER would grant the petition for a writof certiorari in No. 07-11073.

Statement of Justice STEVENS respecting thedenial of the petitions for writs of certiorari.

These two capital cases raise questionsconcerning the admissibility of so-called “victimimpact evidence” during the penalty phase of acapital trial. The term is a misnomer in capitalcases because the evidence does not describe theimpact of the crime on the victim – his or her deathis always an element of the offense itself. Rather,it describes the impact of the victim’s death onthird parties, usually members of the victim’sfamily.

In the first of these cases, petitioner DouglasKelly was convicted of murdering 19-year-old SaraWeir. The prosecution played a 20-minute videoconsisting of a montage of still photographs andvideo footage documenting Weir’s life from herinfancy until shortly before she was killed. Thevideo was narrated by the victim’s mother with softmusic playing in the background, and it showedscenes of her swimming, horseback riding, and

attending school and social functions with herfamily and friends. The video ended with a viewof her grave marker and footage of people ridinghorseback in Alberta, Canada – the “‘kind ofheaven’” in which her mother said she belonged.1

In the second case, petitioner Samuel Zamudiowas convicted of robbing and murdering Elmerand Gladys Benson. Two of the victims’daughters and two of their grandchildren testifiedabout the effects of the murders on themselvesand their families. During one daughter’stestimony the prosecution played a videocontaining 118 photographs of the victims atvarious stages of their lives, including theirchildhood and early years of marriage. Thephotographs showed the couple raising theirchildren, serving in the military, hunting, fishing,vacationing, bowling, celebrating holidays andfamily events, and attending recognition dinnersfor Gladys’s community service. “The last threephotographs in the montage showed, in order,Gladys’ grave marker with the inscriptionreadable, Elmer’s grave marker with theinscription readable, and both grave markers froma distance, each accompanied by a vase offlowers.”

In both cases the California Supreme Courtupheld the admissibility of the videos. The courtexplained that the video admitted during Kelly’ssentencing “expressed no outrage” and containedno “clarion call for vengeance,” but “just impliedsadness.” Similarly, the court held that the videoshown during Zamudio’s penalty phaseproceedings was “‘not unduly emotional.’” Onlyone dissenting justice expressed any concern thatthe evidence had the potential to “imbue theproceedings with ‘a legally impermissible level ofemotion.’” No member of the court suggested thatthe evidence shed any light on the character of theoffense, the character of the offender, or thedefendant’s moral culpability.

1. The full video is available online at

http://www.supremecourt.gov/opinions/video/kelly_v

_california.aspx and in Clerk of Court’s case file.


%20http://www.nytimes.com/2011/07/19/us/19questions.html?pagewanted=all

%20http://www.nytimes.com/2011/07/19/us/19questions.html?pagewanted=all

http://www.worldwithouthate.org.

http://www.supremecourt.gov/opinions/video/kelly_v_california.aspx

http://www.supremecourt.gov/opinions/video/kelly_v_california.aspx

I* * *

Throughout the late 1970’s and for much of thefollowing decade, the fact that “death is a differentkind of punishment from any other that may beimposed in this country,” had justified placinglimits on its permissible applications, see, e.g.,Godfrey v. Georgia (plurality opinion), andrequiring special procedural protections for thedefendant, see Lockett [v. Ohio], (pluralityopinion). Our decision in Booth [v. Maryland]flowed naturally from the same principle.

Beginning in the late 1980’s, however, changesin the Court’s capital jurisprudence began toweaken the procedural and substantive safeguardson which we had earlier insisted. In Tison v.Arizona, rather than adhere to the rule announcedin Enmund v. Florida, which prohibited deathsentences for defendants who neither killed norintended to kill a victim, a majority of the Courtheld that felony murder could qualify as a capitaloffense. Soon thereafter, the Court rejected achallenge to a death sentence based on evidencethat a victim’s race enhanced the likelihood that aGeorgia jury would impose the death penalty.McCleskey v. Kemp, 481 U.S. 279 (1987). AsJustice Blackmun presciently observed, the factthat “death is different” was fast becoming ajustification for applying “a lesser standard ofscrutiny” in capital cases. See id., at 347, 348(dissenting opinion).

Confirming that observation, the Court’s 1991opinion in Payne v. Tennessee overruled Booth inshort order, giving prosecutors a powerful newweapon in capital cases. * * *

Given Payne’s sharp retreat from priorprecedent, it is surprising that neither the opinionof the Court nor any of the concurring opinionsmade a serious attempt to define or otherwiseconstrain the category of admissible victim impactevidence. Instead, the Court merely gesturedtoward a standard, noting that, “[i]n the event thatevidence is introduced that is so unduly prejudicialthat it renders the trial fundamentally unfair, theDue Process Clause of the Fourteenth Amendment

provides a mechanism for relief.” That statementrepresents the beginning and end of the guidancewe have given to lower courts considering theadmissibility of victim impact evidence in the firstinstance.

IIIn the years since Payne was decided, this

Court has left state and federal courts unguided intheir efforts to police the hazy boundaries betweenpermissible victim impact evidence and itsimpermissible, “unduly prejudicial” forms.Following Payne’s model, lower courtsthroughout the country have largely failed to placeclear limits on the scope, quantity, or kind ofvictim impact evidence capital juries are permittedto consider. See generally, Logan, Through thePast Darkly: A Survey of the Uses and Abuses ofVictim Impact Evidence in Capital Trials, 41 Ariz.L.Rev. 143 (1999). Not only have courts allowedcapital sentencing juries to hear brief oral orwritten testimony from close family membersregarding victims and the direct impact of theirdeaths; they have also allowed testimony fromfriends, neighbors, and co-workers in the form ofpoems, photographs, hand-crafted items, and – asoccurred in these cases – multimedia videopresentations. See Blume, Ten Years of Payne:Victim Impact Evidence in Capital Cases, 88Cornell L.Rev. 257, 271-272 (2003) (collectingcases).

Victim impact evidence is powerful in anyform. But in each of these cases, the evidence2

2. As one Federal District Judge put it, “I cannot help

but wonder if Payne . . . would have been decided in

the same way if the Supreme Court Justices in the

majority had ever sat as trial judges in a federal death

penalty case and had observed first hand, rather than

through review of a cold record, the unsurpassed

emotional power of victim impact testimony on a jury.

It has now been over four months since I heard this

testimony [in a codefendant’s case] and the juror’s

sobbing during the victim impact testimony still rings in

my ears. This is true even though the federal

prosecutors in [the case] used admirable restraint in

terms of the scope, amount, and length of victim impact

testimony.” United States v. Johnson, 362 F.Supp.2d

1043, 1107 (N.D.Iowa 2005)


was especially prejudicial. Although the videoshown to each jury was emotionally evocative, itwas not probative of the culpability or character ofthe offender or the circumstances of the offense.Nor was the evidence particularly probative of theimpact of the crimes on the victims’ familymembers: The pictures and video footage shown tothe juries portrayed events that occurred longbefore the respective crimes were committed andthat bore no direct relation to the effect of crime onthe victims’ family members.

Equally troubling is the form in which theevidence was presented. As these casesdemonstrate, when victim impact evidence isenhanced with music, photographs, or videofootage, the risk of unfair prejudice quicklybecomes overwhelming. While the video tributes atissue in these cases contained moving portrayals ofthe lives of the victims, their primary, if not sole,effect was to rouse jurors’ sympathy for the victimsand increase jurors’ antipathy for the capitaldefendants. The videos added nothing relevant tothe jury’s deliberations and invited a verdict basedon sentiment, rather than reasoned judgment.

I remain convinced that the views expressed inmy dissent in Payne are sound, and that the per serule announced in Booth is both wiser and morefaithful to the rule of law than the untetheredjurisprudence that has emerged over the past twodecades. Yet even under the rule announced inPayne, the prosecution’s ability to admit suchpowerful and prejudicial evidence is not boundless.

These videos are a far cry from the writtenvictim impact evidence at issue in Booth and thebrief oral testimony condoned in Payne. In theirform, length, and scope, they vastly exceed the“quick glimpse” the Court’s majority contemplatedwhen it overruled Booth in 1991. At the very least,the petitions now before us invite the Court toapply the standard announced in Payne, and toprovide the lower courts with long-overdueguidance on the scope of admissible victim impactevidence. Having decided to tolerate theintroduction of evidence that puts a heavy thumbon the prosecutor’s side of the scale in death cases,the Court has a duty to consider what reasonable

limits should be placed on its use.


Victim Impact Evidence (PDF)

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Transcript of Victim Impact Evidence (PDF)