# People v. Kelly

> California Supreme Court · December 6, 2007 · 68 Cal. Rptr. 3d 531

URL: https://www.frixlaw.com/law-library/cases/9797434

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. DOUGLAS OLIVER KELLY, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** December 6, 2007
- **Citations:** 68 Cal. Rptr. 3d 531; 42 Cal. 4th 763; 171 P.3d 548; 2007 Cal. LEXIS 13795
- **Precedential status:** Published
- **Opinion:** Concurring in part by Moreno
- **Judges:** Chin, Werdegar, Moreno
- **Cited by:** 181 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/9797434

## Opinion text

MORENO, J., Concurring and Dissenting.
“Courts must exercise great caution in permitting the prosecution to present victim-impact evidence in the form of a lengthy videotaped or filmed tribute to the victim. Particularly if the presentation lasts beyond a few moments, or emphasizes the childhood of an adult victim, or is accompanied by stirring music, the medium itself may assist in creating an emotional impact upon the jury that goes beyond what the jury might experience by viewing still photographs of the victim or listening to the victim’s bereaved parents. ... In order to combat this strong possibility, courts must strictly analyze evidence of this type and, if such evidence is admitted, courts must monitor the jurors’ reactions to ensure that the proceedings do not become injected with a legally impermissible level of emotion.” (People v. Prince (2007) 40 Cal.4th 1179, 1289 [ 57 Cal.Rptr.3d 543 , 156 P.3d 1015 ].) In this case, the videotaped eulogy to Sara Weir played for the jury at the penalty phase of defendant’s trial exceeded every limitation that this court unanimously set forth in Prince . For that reason, I disagree with the majority’s conclusion that the videotape was admissible, albeit with “irrelevant aspects.” (Maj. opn., ante, at p. 798.) In my view, the tape was inadmissible in its entirety and it was error for the trial court to have admitted it. I further conclude, however, that the error does not require reversal.
In holding that the Eighth Amendment “erects no per se bar” to the admission of victim impact evidence, the Supreme Court spoke about two types of evidence; evidence that gives the jury “ ‘a quick glimpse of the life’ which a defendant ‘chose to extinguish,’ [citation],” and evidence that “demonstrates] the loss to the victim’s family and to society which has *803 resulted from the defendant’s homicide.” (Payne v. Tennessee (1991) 501 U.S. 808, 827, 822 [ 115 L.Ed.2d 720 , 111 S.Ct. 2597 ].) 1 The videotape in this case did not fall into the latter category. The impact of the victim’s death on her family was presented at length through her mother’s testimony before the videotape was played. Thus, the videotape falls into the second category described by Payne , but it went far beyond providing the jury with the “quick glimpse” of Sara’s life necessary to establish her unique individuality. Rather, it contained material, and was produced in such a fashion, as to potentially imbue the proceedings with a “a legally impermissible level of emotion.” (People v. Prince, supra, 40 Cal.4th at p. 1289 .)
As the majority notes, we discussed the issue of the use of videotape victim impact evidence in Prince where, in response to the defendant’s mitigation evidence, the prosecution introduced a 25-minute videotape of a television interview with one of the defendant’s victims, Holly Tarr. (People v. Prince, supra, 40 Cal.4th at p. 1209 .) In light of the specific characteristics of that videotape, we rejected the defendant’s claim that it went beyond the constitutional limits of permissible victim impact evidence. We noted that the interview was filmed by a local news station that was doing profiles “of certain successful local high school students” a few months before the murder. (Ibid.) “The trial court excluded portions of the videotape depicting Tarr’s musical performances, because it determined that this evidence would be cumulative. The interviewer devoted nearly the entire interview to Tarr’s training and interest in acting and singing, adding a few questions concerning Tarr’s ability to balance school and artistic commitments. The tape recording exhibits a young female interviewer and Tarr, seated in chairs in front of a plain backdrop. There is no music and there are no cuts to other images of Tarr—the interview is a calm, even static, discussion of Tarr’s accomplishments and interests that takes place entirely in a neutral, bland setting. Under ordinary circumstances, the two young women’s discussion would appear unlikely to invite empathy or emotional response.” (Id. at p. 1287.)
We concluded our discussion in Prince with the cautions to which I refer at the outset of this opinion regarding the admission of videotaped victim *804 impact evidence which is, in effect, a “filmed tribute to the victim” that lasts “beyond a few moments,” or “emphasizes the childhood of an adult victim” or is “accompanied by stirring music . . . .” (People v. Prince, supra, 40 Cal.4th at p. 1289 .) In our analysis, we considered and distinguished two other cases in which victim impact videotapes had been excluded or found prejudicial, U.S. v. Sampson (D.Mass. 2004) 335 F.Supp.2d 166 and Salazar v. State (Tex.Crim.App. 2002) 90 S.W.3d 330 .
In U.S. v. Sampson, supra, 335 F.Supp.2d 166 , the district court, in explaining why it excluded a 27-minute videotape containing 200 still photographs of the victim set to evocative contemporary music, including that of the Beatles and James Taylor, explained: “[A]dmission of the video would have been unfairly prejudicial in light of the fact that the jury heard powerful, poignant testimony about Jonathan Rizzo’s full life and the impact of his loss on his family, and saw photographs of him in conjunction with this testimony. The video, given its length and the number of photos displayed, would have constituted an extended emotional appeal to the jury and would have provided much more than a ‘quick glimpse’ of the victim’s life. Together with the evocative accompanying music, the videotape’s images would have inflamed the passion and sympathy of the jury.” (Id. at pp. 192-193.)
In Salazar v. State, supra, 90 S.W.3d 330 , the murder victim was a 20-year-old man, Jonathon Bishop. In rebuttal to mitigation evidence, the victim’s mother testified briefly as to impact of his death. His father also testified, but primarily to lay the foundation for the admission of a “seventeen-minute video montage of photographs depicting the murder victim’s life.” (Id. at p. 332.) According to the Texas Criminal Court of Appeals: “This video is an extraordinarily moving tribute to Jonathon Bishop’s life. It consists of approximately 140 still photographs, arranged in a chronological montage. Music accompanies the entire seventeen-minute video and includes such selections as ‘Storms in Africa’ and ‘River’ by Enya, and concludes with Celine Dion singing, ‘My Heart Will Go On,’ from the movie Titanic. [$] Almost half of the approximately 140 photographs depict the victim’s infancy and early childhood.” (Id. at p. 333.)
In explaining why the tape was inadmissible, the court said: “Nearly half of the photographs showed Jonathon Bishop as an infant, toddler or small child, but appellant murdered an adult, not a child. He extinguished Jonathon Bishop’s future, not his past. The probative value of the vast majority of these ‘infant-growing-into-youth’ photographs is de minimis. However, their prejudicial effect is enormous because the implicit suggestion is that appellant murdered this angelic infant; he killed this laughing, light-hearted child; he snuffed out the life of the first-grade soccer player and of the young boy hugging his blond puppy dog. . . . While the probative value of one or two *805 photographs of an adult murder victim’s childhood might not be substantially outweighed by the risk of unfair prejudice, what the State accurately characterizes as a ‘seventeen-minute montage’ of the victim’s entire life is very prejudicial both because of its ‘sheer volume,’ and because of its undue emphasis upon the adult victim’s halcyon childhood.” (Salazar v. State, supra, 90 S.W.3d at p. 337 .)
The videotape admitted here was in part strikingly similar to the tape found inadmissible in Salazar , and, where it differed, was precisely the kind of tape that we warned against admitting in Prince . First, the parallels: like the victim in Salazar , who was 20 years old, Sara Weir, at age 19 years, was a very young adult, but an adult nonetheless who had left home and was living on her own. However, like the video montage in Salazar , the videotape of Sara’s life is chronological and dwells on her childhood in a series of evocative scenes (swimming, getting ready for Halloween, with her cat, Smokey). Both videos are even set in part to the same type of music, from the performer, Enya.
However, while the video montage of Jonathon Bishop in Salazar consisted of still photographs, the videotape in this case included considerable video footage of scenes from Sara’s life with sound. Thus, at one point, Sara is shown as a young teenager at her junior high school’s talent show singing a solo of the song, “You Light Up My Life.” Finally, after a closeup of Sara’s grave, the videotape ends with what is apparently stock footage, depicting a lone horseman riding against a range of mountains, with the comment by Sara’s mother that this is the kind of heaven in which she imagines her daughter. Thus, this videotape was longer than the videotape found inadmissible in Salazar , contained video footage and not merely still photographs, was accompanied by evocative music more appropriate to a memorial service, and concluded on a frankly religious note.
If the cautions we expressed regarding this type of evidence in Prince have any application at all, they must apply to this case. As the court in Salazar correctly pointed out, “the punishment phase of a criminal trial is not a memorial service for the victim. What may be entirely appropriate eulogies to celebrate the life and accomplishments of a unique individual are not necessarily admissible in a criminal trial.” (Salazar v. State, supra, 90 S W.3d at pp. 335-336.) The videotape in the present case is akin to a eulogy, and should therefore not have been admitted as victim impact evidence.
*806 Having so concluded, however, I further conclude that the error was not prejudicial. Given the extensive and affecting testimony of the victim’s mother, the videotape was, at most, cumulative to that testimony. I cannot say that this additional evidence so inflamed the passions and the sympathy of the jury that the penalty phase was rendered unfair.
Appellant’s petition for a rehearing was denied February 20, 2008, and the opinion was modified to read as printed above.
I am concerned also that in this case defendant did not introduce any mitigating evidence at the penalty phase because an analytic linchpin of the Supreme Court’s analysis in Payne was the premise that the state “ ‘has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.’ ” (Payne v. Tennessee, supra, 501 U.S. at p. 825 ; see People v. Prince, supra, 40 Cal.4th at p. 1286 .) Of course, victim impact evidence is not rendered inadmissible simply because a defendant chooses not to put on evidence in mitigation, but where, as here, the defendant makes clear that he or she is not going to present such evidence, the trial court should exercise greater caution in admitting victim impact evidence so as to avoid the possibility of “piling on” such evidence to the point that it does become unfair.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9797434. Public record. Not legal advice.