noting that hearsay statements outside of recognized exceptions are "just as inadmissible in a victim impact statement as [they are] in any other form of evidence presented at trial"
How later courts described this case
- noting that hearsay statements outside of recognized exceptions are "just as inadmissible in a victim impact statement as [they are] in any other form of evidence presented at trial"
- recognizing Oklahoma's legislative authorization of victim sentencing recommendations and finding no general constitutional ban to such testimony
- remanding for new capital sentencing based upon admission of improper victim impact evidence, "as we cannot say the introduction of the evidence in this particular case was harmless beyond a reasonable doubt"
- "Payne also implicitly overruled 'that portion of Booth regarding characterizations of the defendant and opinions of the sentence."
Written by the judges who cited it.
The opinion
LANE, Judge,
concurring in results:
The majority fails to distinguish properly between the form, content, and use of victim impact evidence authorized by Title 21 O.S. Supp.1992, § 701.10, and victim impact statements authorized by Title 22 O.S. Supp. 1992, §§ 984 and 984.1. Once it takes this wrong turn, it attempts to correct its own mistake by gutting the content of victim impact statements. This unnecessary surgery violates both legislative intent and principled statutory construction.
I have been troubled for some time by this Court’s treatment of victim impact evidence and victim impact statements. See, Charm v. State, 924 P.2d 754 (Okl.Cr.1996)(J. Lane dissenting); Cargle v. State, 909 P.2d 806 (Okl.Cr.1996) (J. Lane concurring specially). I have stated publicly my belief that this type of information is ripe for abuse, and I am *903 concerned as well that we as a Court have approved a procedure for its use which is not authorized by statute. The majority opinion beautifully illustrates both of these problems.
In the sentencing stage of a capítol murder trial the legislature has authorized the State to present victim impact evidence to the jury about the victim and the impact of the murder on the family of the victim. 21 O.S. Supp.1992, § 701.10[C]. This evidence is sworn, is subject to all the statutory and constitutional rules of evidence and criminal trial procedure, and is limited in scope to information about the victim and the impact of the murder on the victim’s family. The authorized scope does not include circumstances surrounding the crime and the manner in which the crime was committed. Because this evidence is subject to all the rules of evidence, the trial court must guard against the admission of material which, even though within the authorized scope, is substantially more prejudicial than probative.
The majority errs twice when it constructs a convoluted analysis to decide whether the statement read by the victim’s brother and the opinions expressed by him should have been admitted into evidence. In the first place the statement was not sworn and it was therefore not evidence. There is no statutory authority for the presentation of such a statement to the jury in the second stage of a capítol murder trial. In the second place, the content went beyond the authorized scope and addressed the circumstances surrounding the crime and the way it was committed. No balancing is necessary here, for under no circumstance is it admissible to the jury in the second stage of a capital trial.
There is a place in the criminal trial process for unsworn statements by family members about the victim of violent crime, the circumstances surrounding the crime, the manner the crime was committed, and the speaker’s opinion of the sentence which has been recommended. These statements, unfettered by the rules of evidence, may be presented to the sentencing judge at the sentencing proceeding. See 22 O.S. Supp. 1992, § 984.1(A). The majority misinterprets Section 984(1) to permit a victim to make a sentence recommendation to the jury, when the section clearly allows “... the victim’s opinion of a recommended sentence”. The sentence may have been recommended by the jury, the district attorney, the judge, or any other proper source. Applying the plain language of the statute, the family member does not recommend a sentence.
The majority compounds its mistakes when it attempts to harmonize the authorization of victim impact statements in Title 22 and victim impact evidence in Title 21. Instead of giving force and effect to both kinds of victim impact information, the majority distorts the definition of victim impact statements found in Title 22 and finds the opinion of the victim’s brother that this killing was a selfish and brutal butchering is not a statement concerning the circumstances of the crime or the way it was committed. Of course it is. The constitutional problems arise in this case because we have failed to recognize these victim opinions were never intended to be admitted into evidence and placed before the jury. They are akin to the defendant’s right of allocution and are to be presented only to the sentencing judge at the sentencing proceeding. See Duckett v. State, 919 P.2d 7,19 (Okl.Cr.1995)(there is no statutory, common-law or constitutional right for a defendant to make a plea for mercy or otherwise address the sentencing jury); Mitchell v. State, 884 P.2d 1186, 1205 (Okl.Cr.1994)(defendant’s right of allocution is satisfied when the defendant is given the opportunity to address the court at formal sentencing). The compelling; simplicity of this solution is amply supported by the statutory language.