stating that Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), “left undisturbed *465 the holding in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), that the admission of a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violated the Eighth Amendment”
How later courts described this case
- stating that Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), “left undisturbed *465 the holding in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), that the admission of a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violated the Eighth Amendment”
- stating that Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), "left undisturbed the holding in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), that the admission of a victim's family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence violated the Eighth Amendment"
- holding that "the court’s directive to jurors that they balance the victim’s 14 HUMPHRIES v. OZMINT background against that of defendant was akin to asking the jury to compare the worth of each person," which is "inherently prejudicial" and "might prompt jurors to impose the death penalty arbitrarily"
- holding that “the court’s directive to jurors that they balance the victim’s background against that of defendant was akin to asking the jury to compare the worth of each person,” which is “inherently prejudicial” and “might prompt jurors to impose the death penalty arbitrarily”
Written by the judges who cited it.
The opinion
STEIN, J.,
concurring in part and dissenting in part.
I join in all but one aspect of the Court’s comprehensive and well-reasoned opinion. I dissent in part because in my view the victim impact statement submitted by Loretta Giordano, the victim’s mother, goes beyond the limitations we set forth in State v. Muhammad, 145 N.J. 23, 35-59 , 678 A.2d 164 (1996).
In Muhammad , we upheld the constitutionality of N.J.S.A. 2C:11-3(c)(6), the “victim impact statute,” which allows the prosecution to rebut character evidence offered by the defense with “evidence of the murder victim’s character and background and of the impact of the murder on the victim’s survivors.” In doing so, however, we placed critical limits on the use of that evidence, in order to “effectively harmonize[ ] the victim’s constitutional right to have victim impact evidence introduced with the defendant’s due process rights.” Id. at 44 , 678 A.2d 164 . We noted that victim impact statements
should be limited to statements designed to show the impact of the crime on the victim’s family and to statements that demonstrate that the victim was not a faceless stranger, but was a unique individual human being____[S]tatements that are grossly inflammatory, unduly prejudicial, or extremely likely to divert the jury from its focus on the aggravating and mitigating factors should be excluded.
[Id. at 48, 678 A.2d 164 .]
The parameters set forth in Muhammad are critical to its holding. The crossing of those boundaries imply concerns of constitutional magnitude. I believe that Mrs. Giordano’s statement exceeded in several respects the limitations imposed by the Court in Muhammad , and in doing so deprived Koskovich of his constitutional right to a fair trial.
On the second page of her statement, Mrs. Giordano states that her husband’s job status was affected by the death of the victim, and indicates that “[n]ow, instead of traveling only a few miles *562 down the road, [her husband] has a long drive five days a week.... He runs the risk of accidents while traveling in major highways like Rt. 80.” We emphasized in Muhammad that the admission of victim impact evidence “requires a balancing of the probative value of the proffered evidence against the risk that its admission may pose the danger of undue prejudice or confusion to the jury.” Muhammad, supra, 145 N.J. at 48 , 678 A.2d 164 . The link between the potential of the victim’s father suffering a car accident on U.S. Interstate 80 and the victim’s murder is extremely attenuated. Suggesting that the defendant will bear the responsibility for future harms that may befall the victim’s family is, in my view, the sort of speculation that lies well beyond the appropriate boundaries of victim impact statements.
On page six of her statement, Mrs. Giordano states that the day the victim was born, “he cried in the delivery room and I looked over to him and said, ‘Jeremy, stop crying. Mommy is here with you.’ ” The emotional impact of that statement needs no elaboration, but it is precisely that impact that is cause for concern. Because I discern no purpose for that statement other than to appeal to the emotions of the jury, I find the statements respecting the birth of the victim to be unduly prejudicial and of little probative value in assisting the jury in its deliberations.
For substantially the same reasons, I believe it was error for the trial court to permit Mrs. Giordano to read a poem to the jury. The poem, which is quoted in its entirety by the majority, ante at 500, 776 A.2d at 176, does not offer any evidence to the jury that is not provided elsewhere in the statement. Mrs. Giordano’s poem does not, in my judgment, serve the purpose of demonstrating “the impact of the crime on the victim’s family” or that the victim “was a unique human being.” Muhammad, supra, 145 N.J. at 48 , 678 A.2d 164 . Its inclusion in the victim impact statement was primarily for its emotional effect, and in my view it should have been excluded.
I dissented in Muhammad and I continue to believe that N.J.S.A. 2C:11-3(c)(6) is unconstitutional. See Muhammad, su *563 pro, 145 N.J. at 106-12 , 678 A.2d 164 (Stein, J., dissenting). The majority in Muhammad was cognizant of the concerns expressed by myself, by Chief Justice Wilentz, and by Justices O’Hern and Handler in their separate opinions in that case, and it responded to those concerns by striking a careful balance between the rights of victims and the protections afforded to defendants under the United States and New Jersey Constitutions. That balance is upset when victim impact statements are permitted to contain poetry and other comments intended to appeal primarily to the jury’s emotions.
I join Justice Verniero’s majority opinion in all other respects.