The opinion
IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
(HEARD AT NASHVILLE)
STATE OF TENNESSEE, )
)
FILED
Appellee, ) Hamblen County May 17, 1999
)
v. ) Hon. Lynn W. Brown, Judge
) Cecil Crowson, Jr.
LEONARD EDWARD SMITH, ) Supreme Court Appellate Court Clerk
) No. 03-S-01-9710-CC-00129
Appellant. )
DISSENTING OPINION
I respectfully dissent from that portion of the majority
opinion which approves of the admission of victim impact evidence
during the sentencing phase of the trial. Acknowledging the
precedent established in Payne v. Tennessee, 501 U.S. 808, 827, 111
S. Ct. 2597, 2609, 115 L. Ed. 2d 720 (1991) that the admission of
victim impact evidence does not per se violate the Eighth Amendment
to the United States Constitution, I stated in dissent in State v.
Nesbit, 978 S.W.2d 872, 903 (Tenn. 1998), cert. denied, ___ U.S.
___, 119 S. Ct. 1359 (1999), that
Payne v. Tennessee, 501 U.S.
808, 111 S. Ct. 2597, 115 L. Ed.2d
720 (1991), controls, I agree with
the majority’s statement that victim
impact evidence is admissible if
adduced within the constraints of
due process and Tenn. R. Evid. 403.
For the reasons stated below, I would hold that Article I, Section
8 of the Tennessee Constitution1 affords a greater measure of
1
Tennessee Constitution, Article I, section 8, provides:
“[t]hat no man shall be taken or imprisoned, or disseized of his
protection than the Eighth Amendment in this regard, and I am now
of the opinion that the admission of victim impact evidence is
unconstitutional unless its admission is thoughtfully controlled
and carefully restricted. Accordingly, I would overrule State v.
Payne, 791 S.W.2d 10 (Tenn. 1990), to the extent that it permits
the unlimited (or vaguely limited) admission of victim impact
evidence. In its place, I would impose narrow, definitive criteria
similar to those established by New Jersey in State v. Muhammad,
678 A.2d 164 (N.J. 1996). Thus, Tenn. Code Ann. § 39-13-
204(c)(Supp. 1998)2 remains constitutional so long as applied to
carefully control and thoughtfully restrict the admission of victim
impact evidence as herein outlined.
It is indisputable among civilized societies that every
death includes the potential to devastate those left behind--be
they relatives, friends, or acquaintances. This has even more
emphasis when human life is snuffed out by means of criminal
conduct. And every person has value; every person’s death
freehold, liberties or privileges, or outlawed, or exiled, or in
any manner destroyed or deprived of his life, liberty or property,
but by the judgment of his peers or the law of the land.”
2
Tenn. Code Ann. § 39-13-204(c)(Supp. 1998) states that:
“[t]he court may permit a member or members, or a representative
or representatives of the victim’s family to testify at the
sentencing hearing about the victim and about the impact of the
murder on the family of the victim and other relevant persons.
Such evidence may be considered by the jury in determining which
sentence to impose. The court shall permit members or
representatives of the victim’s family to attend the trial, and
those persons shall not be excluded because the person or persons
shall testify during the sentencing proceeding as to the impact of
the offense.”
2
diminishes mankind.3 But as devastating as one’s death is to
family, friends, and society, that effect should not be considered
in the determination of the sentence to be imposed upon the
perpetrator. Thus, to place emphasis on the merit and
characteristics of the victim and his or her friends and family
serves only to invert the traditional statutory function that
jurors perform in the sentencing process, violates evidentiary
rules of relevance, and runs counter to fundamental goals of
punishment.
The General Assembly, in enacting Tenn. Code Ann. § 39-
13-204(i)(1997 & Supp. 1998), has provided ample criteria for the
determination of punishment. A careful review of the juror’s role
in the capital sentencing scheme underscores the uncertainty that
victim impact evidence insinuates into the previously refined
statutory sentencing process.
Absent the admission of victim impact testimony, the
jury’s sentencing decision is controlled by the statutory
aggravating and mitigating factors. If the jury determines that
the State has proven beyond a reasonable doubt that the relevant
aggravating factors outweigh any mitigating factors, then “the
sentence shall be death.” Tenn. Code Ann. § 39-13-204(g)(1)(Supp.
1998)(emphasis added). But if the jury determines that the State
has not proven that the relevant aggravating factors outweigh any
mitigating factors, then “the jury shall, in its considered
3
This thought was expressed by John Donne in Devotions Upon
Emergent Occasions, Meditation XVII (1624).
3
discretion, sentence the defendant either to imprisonment for life
without possibility of parole or imprisonment for life.” Tenn.
Code Ann. § 39-13-204(f)(2)(Supp. 1998)(emphasis added). Thus, the
jury’s role in capital sentencing is expressly limited to
considering whether or not the aggravating factors outweigh any
mitigating factors. That is why “evidence is relevant to the
punishment, and thus admissible, only if it is relevant to an
aggravating circumstance, or to a mitigating factor raised by the
defendant.” Cozzolino v. State, 584 S.W.2d 765, 768 (Tenn. 1979).
The particular “value” of the victim and the amount of
emotional damage and loss suffered by surviving family and friends
are not statutory aggravating factors under Tenn. Code Ann. § 39-
13-204(i).4 Additionally, one cannot even suggest that they are
implicitly included in the list. None of the statutory aggravating
factors differentiates between the appropriateness or
inappropriateness of the death penalty based on the perceived value
of the victim’s life as reflected in the testimony of the surviving
friends or relatives. Thus, under our statutory scheme, how can we
say that victim impact evidence is relevant to the issue of
punishment? We cannot. We should not.
And yet, in apparent acknowledgment that victim impact
evidence bears no relevance to any aggravating factor, the majority
has heretofore condoned its admission as evidencing the “nature and
4
As a review of Tenn. Code Ann. § 39-13-204(i) demonstrates,
the statutory aggravating factors focus on the defendant’s criminal
history as well as the particular circumstances of the crime at
issue.
4
circumstances of the crime.” See State v. Nesbit, 978 S.W.2d at
890. The majority attempts to limit the victim impact evidence to
information which could fall within this characterization.
Majority Opinion at ___ [slip. op. at 17]; see also, State v.
Nesbit, 978 S.W.2d at 891 (discussing those limits). But, even as
limited by the majority, the type of evidence admissible remains
wholly undefined, amorphous, and unduly prejudicial, a result
prohibited by Article I, section 8 of the Tennessee Constitution.
I fully understand the motivation of those who espouse
the admission of victim impact evidence in capital sentencing
hearings and feel much sensitivity to the pain caused to those
whose loved ones are lost in senseless killings. But in my view,
because victim impact evidence is not relevant to any of the
aggravating factors, or to the nature and circumstances of the
crime, its use during the sentencing hearing can only serve to
divert the jury’s attention from its primary role--to determine the
defendant’s punishment for the crime committed considering factors
of aggravation and mitigation. Such diversion demeans our capital
sentencing scheme and causes it to be unreliable, inaccurate, and
arbitrary, and thereby unconstitutional. See Saffle v. Parks, 494
U.S. 484, 493, 110 S. Ct. 1257, 1263, 108 L. Ed. 2d 415 (1990). As
I stated in Nesbit,
Generally, victim impact evidence is
unsettling because its use
encourages the jury to quantify the
value of the victim’s life and urges
the finding that murder is more
reprehensible if the victim is
survived by a bereaved family than
if the victim had no family at all.
5
State v. Nesbit, 978 S.W.2d at 903. This shift in focus from the
crime and the defendant to the surviving family and the victim is
the main criticism leveled at victim impact evidence.
By displaying grieving friends or family members (or
noting their absence) to jurors, victim impact evidence invites
jurors to deem it a greater crime (and thereby deserving of greater
punishment) to kill someone whose friends or family, or both, are
willing and able to testify during the sentencing phase about their
grief.
Furthermore, the use of victim impact evidence tempts
jurors to become mesmerized by the concept of “victimology.”
Through this concept, the issue of the deceased victim’s
“innocence” is silently woven into the sentencing equation.
Professor Lynne N. Henderson’s description of “victimhood” is
appropriate.
[T]he word “victim” has come to mean
those who are preyed upon by
strangers: “Victim” suggests a
nonprovoking individual hit with the
violence of “street crime” by a
stranger. The image created is that
of an elderly person robbed of her
life savings, an “innocent by-
stander” injured or killed during a
holdup, or a brutally ravaged rape
victim. “Victims” are not
prostitutes beaten senseless by
pimps or “johns,” drug addicts
mugged and robbed of their fixes,
gang members killed during a feud,
or misdemeanants raped by cellmates.
. . . In short, the image of the
“victim” has become a blameless,
pure stereotype, with whom all can
identify.
6
“The Wrongs of Victim’s Rights,” 37 Stan. L. Rev. 937, 951 (1985).
Thus, as an extra-legal consideration, jurors are lured
into determining whether the victim and his or her family fit the
stereotype of “innocent victims.” If they do, this concept entices
jurors to vary punishment according to the perceived “innocence” of
the victim. Thus, rather than orienting punishment to the
perpetrator, punishment is oriented toward the victim.
In the same vein, victim impact evidence informs the
jurors about characteristics of the victim which easily translate
into “value of life” assessments, driven by evidence of the
victim’s accomplishments, support of family, civic endeavors, and
unfulfilled dreams. These allusions to the victim’s financial
condition or social attainment are simply inappropriate for the
jury to consider in determining the sentence.
And finally, it has been suggested that the admission of
victim impact evidence runs counter to the theory underlying the
principles of punishment. Victim impact evidence provides jurors
with the opportunity to vary punishment according to the degree of
vengeance sought by family or friends. And yet under our statute,
the purpose of punishment is “to prevent crime and promote respect
for the law.” Tenn. Code Ann. § 40-35-102(3)(1997). Accordingly,
vengeance has no place in the determination of the appropriate
sentence. Indeed, vengeance in the sentencing process breeds
disparity, and disparity is an unwelcome intruder into that
meticulous process.
7
The Supreme Court of New Jersey has devised a protocol
intended to reduce the possibility that jurors will misuse victim
impact evidence. State v. Muhammed, 678 A.2d at 179. Under this
protocol, before victim impact evidence is deemed admissible, the
following must be accomplished:
The defendant should be
notified prior to the commencement
of the penalty phase that the State
plans to introduce victim impact
evidence if the defendant asserts
the catch-all factor.5 The State
shall also provide the defendant
with the names of the victim impact
witnesses that it plans to call so
that defense counsel will have an
opportunity to interview the
witnesses prior to their testimony.
The greater the number of survivors
who are permitted to present victim
impact evidence, the greater the po-
tential for the victim impact
evidence to unduly prejudice the
jury against the defendant. Thus,
absent special circumstances, we
expect that the victim impact
testimony of one survivor will be
adequate to provide the jury with a
glimpse of each victim's uniqueness
as a human being and to help the
jurors make an informed assessment
of the defendant's moral culpability
and blameworthiness. Further,
minors should not be permitted to
present victim impact evidence
except under circumstances where
there are no suitable adult
survivors and thus the child is the
closest living relative.
Before a family member is
allowed to make a victim impact
statement, the trial court should
5
Under the New Jersey statute, the defendant may introduce
evidence concerning statutory mitigating factors, including what
the court refers to as a “catch-all factor” which is “[a]ny other
factor which is relevant to the defendant’s character or record or
to the circumstances of the offense.” N.J. Stat. Ann. § 2C:11-
3(b)(5)(h) (Supp. 1998).
8
ordinarily conduct a Rule 104
(formerly Rule 8) hearing, outside
the presence of the jury, to make a
preliminary determination as to the
admissibility of the State's
proffered victim impact evidence.
The witness's testimony should be
reduced to writing to enable the
trial court to review the proposed
statement to avoid any prejudicial
content. The testimony can provide
a general factual profile of the
victim, including information about
the victim's family, employment,
education, and interests. The
testimony can describe generally the
impact of the victim's death on his
or her immediate family. The
testimony should be factual, not
emotional, and should be free of
inflammatory comments or references.
. . . During the preliminary
hearing, the trial court should
inform the victim's family that the
court will not allow a witness to
testify if the person is unable to
control his or her emotions. That
concern should be alleviated by our
requirement that the witness be
permitted only to read his or her
previously approved testimony.
Finally, the court should also take
the opportunity to remind the
victim's family that the court will
not permit any testimony concerning
the victim's family members'
characterizations and opinions about
the defendant, the crime, or the
appropriate sentence. Finally, the
trial court should inform the
prosecutor that any comments about
victim impact evidence in his or her
summation should be strictly limited
to the previously approved testimony
of the witness.
I d . a t 1 8 0 .
9
These clear rules stand in sharp contrast to the thin
limitations on admissibility imposed in Nesbit. In Nesbit, the
Court stated as follows:
Generally, victim impact
evidence should be limited to
information designed to show those
unique characteristics which provide
a brief glimpse into the life of the
individual who has been killed, the
contemporaneous and prospective
circumstances surrounding the
individual's death, and how those
circumstances financially,
emotionally, psychologically or
physically impacted upon members of
the victim's immediate family. . . .
Of these types of proof, evidence
regarding the emotional impact of
the murder on the victim's family
should be most closely scrutinized
because it poses the greatest threat
to due process and risk of undue
prejudice, particularly if no proof
is offered on the other types of
victim impact. . . . ("It would be
very difficult to reconcile a rule
allowing the fate of a defendant to
turn on the vagaries of particular
jurors' emotional sensitivities with
our longstanding recognition that,
above all, capital sentencing must
be reliable, accurate, and
nonarbitrary.") However, there is
no bright-line test, and the
admissibility of specific types of
victim impact evidence must be
determined on a case-by-case basis.
State v. Nesbit, 978 S.W.2d 872, 891 (Tenn. 1998)(footnotes &
citations omitted). Unlike New Jersey, this Court has not limited
the number of victim impact witnesses allowed to testify; nor has
it furnished guidance for using witnesses who are minors. Unlike
New Jersey, this Court has not limited the victim impact testimony
to factual rather than emotional information; to the contrary, it
specifically allows evidence of the “emotional impact of the
10
murder.” The mere suggestion that the trial court “closely
scrutinize” emotional testimony in no way guides trial courts in
implementing this suggestion. And finally, unlike New Jersey, this
Court does not require that the victim impact evidence be reduced
to writing and read by the witness at trial, a procedure which
would go far to prevent that unconstitutional result noted in
Nesbit--“allowing the fate of a defendant to turn on the vagaries
of particular jurors’ emotional sensitivities.”
I would hold that the admission of victim impact evidence
during the sentencing phase of a capital punishment trial is
unconstitutional under Tennessee law unless admitted with precise
definition and clear limitation. As heretofore stated, the
adoption of procedures such as those used by the State of New
Jersey would provide such definition and limitation as would ensure
the constitutionality of victim impact evidence in Tennessee.
I would further hold that victim impact testimony, when
admitted outside of the procedure herein espoused, requires a
strict harmless error review. It is a simple matter, especially in
cases with heinous facts such as the one under submission, to give
short shrift to the harmless error analysis and find, based on
those facts, that the error was harmless. This is easily
illustrated by the language in Payne.
Once [the perpetrator’s] identity
was established by the jury’s
verdict, the death penalty was the
only rational punishment available.
Thus, the State’s argument was
harmless beyond a reasonable doubt.
(emphasis added.)
11
State v. Payne, 791 S.W.2d at 19. On the contrary, the imposition
of punishment as well as any harmless error analysis should, in my
view, include a painstaking, intensely thorough scrutinization of
the facts and law.
In the case at bar, the victim’s daughter was allowed to
testify not only about her parents’ background, but also about the
suffering of her father, the fact that the murder had caused her
family “problems for eleven years,” and that she would “go to [her]
grave with it.” Considering this evidence, I conclude that the
error more probably than not affected the judgment and prejudiced
the judicial process. See Tenn. R. App. P. 36(b). To be sure, I
draw no conclusions regarding the penalty imposed in this case; I
would hold only that a jury should be allowed to reconsider the
penalty after the procedures herein suggested have been
implemented. Only by such strict limitation of this testimony can
we avoid transgressing on a defendant’s constitutional right to a
fair determination of punishment based on the relevant aggravating
factors.
Accordingly, I would remand this case for a new
sentencing hearing conducted in a manner consistent with the
discussion herein contained.
______________________________
Adolpho A. Birch, Jr., Justice
12