# Noel v. State

> Supreme Court of Arkansas · January 15, 1998 · 331 Ark. 79

URL: https://www.frixlaw.com/law-library/cases/9770731

## Case

- **Full name:** Riley Dobi NOEL v. STATE of Arkansas
- **Court:** Supreme Court of Arkansas
- **Decided:** January 15, 1998
- **Citations:** 331 Ark. 79; 960 S.W.2d 439; 1998 Ark. LEXIS 22
- **Precedential status:** Published
- **Opinion:** Concurring in part by Newbern
- **Judges:** Brown, Newbern, Imber, Thornton
- **Cited by:** 51 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9770731

## Opinion text

David Newbern, Justice, concurring in part; dissenting in part. In various oral and written motions filed prior to trial, Mr. Noel sought to exclude or limit the admission of victim-impact evidence during the sentencing phase of his trial. He argued that the sentencing phase is devoted only to the weighing of aggravating and mitigating circumstances and that victim-impact evidence has no bearing on these issues and thus “falls outside the mandate of the weighing scheme.” The Trial Court denied some of the motions relating to victim-impact evidence and ruled that others were moot. Mr. Noel renewed his objection to the use of victim-impact evidence during the trial, and the objection was overruled.
The essence of Mr. Noel’s argument to the Trial Court, and to this Court, is that victim-impact evidence should not be admissible in a capital-sentencing proceeding if it is irrelevant to any of the issues that are properly before the jury in that part of the trial.
Mr. Noel’s argument has merit. Under our death-penalty statutes, the only issues that are before the jury during the sentencing phase are (1) whether aggravating circumstances exist beyond a reasonable doubt; (2) whether aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and (3) whether aggravating circumstances justify a sentence of death beyond a reasonable doubt. Ark. Code Ann. § 5-4-603 (Repl. 1997). Thus, considering that “the evidence offered must be probative of some issue to be properly considered in the penalty phase,” Hendrickson v. State, 285 Ark. 462, 466 , 688 S.W.2d 295, 298 (1985), it follows that, for evidence to be admissible during the penalty phase of a capital case, it should be directly relevant to the questions posed by Ark. Code Ann. § 5-4-603 (Repl. 1997). See Lee v. State, 327 Ark. 692, 706-15 , 942 S.W.2d 231, 238-43 (1997)(Newbern, J., concurring). Ms. Russian’s testimony was irrelevant to the issues that were before the jury during Mr. Noel’s sentencing phase, and thus it should have been excluded.
In Payne v. Tennessee, 501 U.S. 808 (1991), it was held that the Eighth Amendment does not prohibit the admission of certain forms of victim-impact evidence during a capital-sentencing proceeding. The Court observed that the states “may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed.” Id. at 827 . However, as Justice O’Connor observed in a concurring opinion, the Court in Payne did not hold “that victim impact evidence must be admitted, or even that it should be admitted.” Id. at 831 (O’Connor, J., joined by White and Kennedy, JJ., concurring) (emphasis added). The Payne decision simply removed the per se bar that prior cases had imposed, under the Eighth Amendment, on the admission of victim-impact evidence and left it to the states to decide for themselves, subject to the constraints of the Due Process Clause, whether and how to use victim-impact evidence in death-penalty cases.
In Nooner v. State, 322 Ark. 87 , 907 S.W.2d 677 (1995), we were concerned with whether Ark. Code Ann. § 5-4-602 (4) (Repl. 1997) should be applied retroactively. Although we discussed the Payne decision and recited from it, our holding was limited to our conclusion that “permitting this testimony . . . did not constitute an ex post facto law.” 322 Ark. at 109 , 907 S.W.2d at 689 .
In Kemp v. State, 324 Ark. 178 , 919 S.W.2d 943 (1996), we again discussed § 5-4-602(4) and dealt with three objections to the admissibility of victim-impact evidence. We held the statute was (1) not void for vagueness, (2) not violative of the Eighth Amendment, citing the Payne decision, and (3) not violative of Ark. Const, art. 2, § 9. We added our conclusion that the admission of the evidence was not, in that instance, so prejudicial as to be violative of Mr. Kemp’s right to due process of law. Mr. Kemp’s argument concerning the conflict between the statute providing the procedure for weighing aggravating and mitigating circumstances was part of his constitutional argument. Here is what we said about it:
He [Kemp] further contends that, because there is no place in the Arkansas statutory weighing process for the jury to consider victim-impact evidence, our victim-impact statute is violative of the Eighth and Fourteenth Amendments to the United States Constitution and Ark. Const. art. 2, § 9. Particularly, appellant contends that the victim-impact statute conflicts with Ark. Code Ann. § 5-4-603 and -604 (Repl. 1993), which direct the jury to determine whether aggravating circumstances exist, to weigh any aggravating circumstances against any mitigating circumstances, and to determine whether the aggravating circumstances justify a death sentence beyond a reasonable doubt. Again, we find appellant’s argument unpersuasive.
324 Ark. at 204 ; 919 S.W.2d at 956 . We said nothing more about the statutory conflict but proceeded to discuss the constitutional arguments at some length. We did not further address the issue whether victim-impact evidence was relevant to the statutory aggravating circumstances or should have been admissible in the sentencing phase of a capital-murder trial sought so carefully to be controlled by §§ 5-4-603 and 5-4-604.
No doubt we rejected Mr. Kemp’s constitutional arguments because they were foreclosed by the Payne decision. If, as the majority opinion in the case now before us suggests, we rejected the basic statutory conflict argument at all, it was because the argument presented by Mr. Kemp was “unpersuasive.” That hardly means that an argument that is persuasive may not be considered in this case.
In Lee v. State, 327 Ark. 692 , 942 S.W.2d 231 (1997), we dealt only with a due process challenge to the victim-impact evidence statute. There was no objection to the evidence on the basis that it was not relevant to the aggravating circumstances presented at the trial.
In this case, the objection raising the issue of the statutory conflict was made on Mr. Noel’s behalf. The contention that the basic capital-punishment procedure is violated by the admission of victim-impact evidence is before us, not as a part of an Eighth Amendment or other constitutional argument, but on its own, as a purely statutory argument. The question is one we have not addressed directly, and we are confronted with an argument on the point that is persuasive.
What, then, is the extent to which our General Assembly has provided for the admission of victim-impact evidence in capital sentencing proceedings and rendered “victim impact” a relevant sentencing factor?
Following the Payne decision, the General Assembly enacted Ark. Code Ann. § 5-4-602 (4) (Repl. 1997), which provides in part that
“[i]n determining sentence, evidence may be presented to the jury as to any matters relating to aggravating circumstances enumerated in § 5-4-604, any mitigating circumstances, or any other matter relevant to punishment, including, but not limited to, victim impact evidence ....
The Act also contained the following language: “It is the express intention of this act to permit the prosecution to introduce victim impact evidence as permitted by the United States Supreme Court in Payne v. Tennessee . . . .”
Section 5-4-602(4) limits the evidence to be presented in determining sentence to “any matters relating to aggravating circumstances enumerated in § 5-4-604, any mitigating circumstances, or any other matter relevant to punishment, including, but not limited to victim impact evidence. ...” Evidence of victim impact, therefore, must be relevant to aggravating circumstances or mitigating circumstances, or it must be “relevant to punishment.” The death-penalty punishment scheme appears in § 5-4-603 (a) as follows:
The jury shall impose a sentence of death if it unanimously returns written findings that:
(1) Aggravating circumstances exist beyond a reasonable doubt; and
(2) Aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and
(3) Aggravating circumstances justify a sentence of death beyond a reasonable doubt.
The statutory aggravating circumstances at the time of the trial were those now stated in Ark. Code Ann. § 5-4-604 (1) through (9) (Repl. 1997). (A tenth aggravating circumstance, not relevant here, was added in 1997.) They are as follows:
(1) The capital murder was committed by a person imprisoned as a result of a felony conviction;
(2) The capital murder was committed by a person unlawfully at liberty after being sentenced to imprisonment as a result of a felony conviction;
(3) The person previously committed another felony, an element of which was the use or threat of violence to another person or the creation of a substantial risk of death or serious physical injury to another person;
(4) The person in the commission of the capital murder knowingly created a great risk of death to a person other than the victim or caused the death of more than one (1) person in the same criminal episode;
(5) The capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody;
(6) The capital murder was committed for pecuniary gain;
(7) The capital murder was committed for the purpose of disrupting or hindering the lawful exercise of any government or political function;
(8) (A) The capital murder was committed in an especially cruel or depraved manner.
(B) For purposes of this subdivision (8), a capital murder is committed in an especially cruel manner when, as part of a course of conduct intended to inflict mental anguish, serious physical abuse, or torture upon the victim prior to the victim’s death, mental anguish, serious physical abuse, or torture is inflicted. “Mental anguish” is defined as the victim’s uncertainty as to his ultimate fate. “Serious physical abuse” is defined as physical abuse that creates a substantial risk of death or that causes protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. “Torture” is defined as the infliction of extreme physical pain for a prolonged period of time prior to the victim’s death.
(C) For purposes of this subdivision (8), a capital murder is committed in an especially depraved manner when the person relishes the murder, evidencing debasement or perversion, or shows an indifference to the suffering of the victim and evidences a sense of pleasure in committing the murder; or
(9) The capital murder was committed by means of a destructive device, bomb, explosive, or similar device which the person planted, hid, or concealed in any place, area, dwelling, building, or structure, or mailed or delivered, or caused to be planted, hidden, concealed, mailed, or delivered, and the person knew that his act or acts would create a great risk of death to human life.
The victim-impact evidence in this case was not “relevant to punishment” because the decision to “punish” a defendant with the death penalty must be the result of the weighing procedure set forth in § 5-4-603. The question thus becomes whether the victim-impact evidence is relevant to the aggravating circumstances contained in § 5-4-604 or mitigating circumstances. The statutory aggravating circumstances are obviously and appropriately limited to evidence of what the defendant did or did not do. The victim-impact evidence in this case clearly had nothing to do with any of them; nor was it related in any way to any facts presented as mitigating evidence.
In State v. Gusek, 906 P.2d 272 (Or. 1995), the Supreme Court of Oregon confronted the problem created by a victim-impact evidence law that had been adopted as an initiated act. The law in Oregon, as our § 5-4-603, required unanimous jury determination of the existence of one or more specified aggravating circumstances as a prerequisite to levying the death sentence. The Supreme Court of Oregon held the victim-impact evidence was inadmissible due to its irrelevancy to the aggravating factors stated in the law. The Court said,
The statutory requirement that the state must prove beyond a reasonable doubt the issues concerning aggravation . . . indicates that the legislature intended that the death penalty would be imposed only on the basis of the enumerated statutory aggravating factors that the state establishes beyond a reasonable doubt .... Interpreting the “fourth question,” on which neither party has the burden of proof, to allow proof of nonenumerated aggravating factors would allow the imposition of the death penalty on the basis of non-enumerated aggravating factors that were not established beyond a reasonable doubt. Such an interpretation would be inconsistent with the legislature’s intent to require proof beyond a reasonable doubt of the enumerated aggravating circumstances.
906 P.2d at 279 (emphasis original). The “fourth question” in the Oregon death penalty sentencing law is the general one asking the jurors ultimately whether the death penalty should be imposed.
Although § 5-4-602(4) purports to sanction the use of victim-impact evidence in capital cases if it is merely “relevant to punishment,” § 5-4-603 has not been amended to make “victim impact” a relevant sentencing or “punishment” factor. As the Oregon Court found to be the case of the law enacted by the voters in that State, nothing that our General Assembly has done in the wake of the Payne decision has altered the basic framework of § 5-4-603. The jury’s decision whether to impose the death penalty still depends entirely on the weighing of statutorily defined aggravating factors and any relevant mitigating factors. See Ark. Code Ann. §§ 5-4-604 , 5-4-605. Thus, insofar as § 5-4-602(4) permits the introduction of victim-impact evidence, § 5-4-603 must be viewed as limiting the admissibility of such evidence. Section 5-4-603 requires that victim-impact evidence, before it can be admitted in a capital sentencing proceeding, must be direcdy relevant to the question whether aggravating or mitigating circumstances exist in the case at hand.
In addition to the Supreme Court of Oregon, courts in other states have reached similar conclusions. See, e.g., Commonwealth v. Fisher, 681 A.2d 130 (Pa. 1996); Lambert v. State, 675 N.E.2d 1060 (Ind. 1996); State v. Carter, 888 P.2d 629 (Utah 1995); Bivins v. State, 642 N.E.2d 928 (Ind. 1994). The majority opinion criticizes the reference to these cases on the ground that the states in which they were rendered had not enacted statutes making victim-impact evidence “relevant.” As noted above, our General Assembly has not simply said that victim-impact evidence is “relevant.” Rather, it provided in § 5-4-602(4) that “. . . any other matter relevant to punishment, including, but not limited to victim impact evidence” may be presented. Again, the point here is that the victim-impact evidence in this case was not related to any aggravating factor or mitigating evidence presented and thus cannot be relevant to “punishment,” which is controlled by §§ 5-4-603 and 5-4-604.
In the case at bar, Ms. Hussian’s testimony describing the impact of Mr. Noel’s crimes on her life and on the life of her family did nothing to establish the existence or non-existence of any aggravating or mitigating circumstances. Her testimony was thus erroneously admitted, and it was most assuredly not harmless beyond a reasonable doubt. The case should be remanded for a new sentencing proceeding.
I respectfully dissent.
Imber and Thornton, JJ., join in this opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9770731. Public record. Not legal advice.