Petition for Writ of Certiorari — Justin Anderson, Petitioner v. Arkansas

***THIS IS A CAPITAL CASE***

No. __________________________________

In the Supreme Court of the United States

JUSTIN ANDERSON,

Petitioner

v.

STATE OF ARKANSAS

Respondent

On Petition for a Writ of Certiorari to the

Supreme Court of Arkansas

PETITION FOR A WRIT OF CERTIORARI

LISA G. PETERS

FEDERAL PUBLIC DEFENDER

JOHN C. WILLIAMS

Counsel of Record

Ass’t Federal Public Defender

1401 W. Capitol, Ste. 490

Little Rock, AR 72201

(501) 324-6114

john_c_williams@fd.org

Counsel for Petitioner

***THIS IS A CAPITAL CASE***

QUESTIONS PRESENTED

1. Whether the Eighth Amendment permits a State to present victim-impact

evidence arising from a crime other than the murder for which the defendant

is being sentenced.

2. Whether in this case the admission of victim-impact evidence from a prior

offense was so excessive as to violate due process.

i

PARTIES

The caption contains the names of all parties.

ii

DIRECTLY RELATED CASES



State v. Anderson, No. 37CR-00-61, Circuit Court of Lafayette County,

Arkansas, trial proceedings, judgment entered January 31, 2002.



Anderson v. State, No. CR 02-910, Arkansas Supreme Court, direct appeal

from conviction and sentence, judgment entered April 29, 2004.



State v. Anderson, No. 46CR-05-354, Circuit Court of Miller County,

Arkansas, resentencing, judgment entered September 8, 2005.



Anderson v. State, No. CR 06-29, Arkansas Supreme Court, direct appeal

from resentencing, judgment entered November 2, 2006.



Anderson v. Arkansas, No. 06-9889, United States Supreme Court, petition

for writ of certiorari, petition denied June 18, 2007.



Anderson v. State, No. 46-CR-05-354-2, Circuit Court of Miller County,

Arkansas, state postconviction, judgment entered August 20, 2008.



Anderson v. State, No. CR 08-1464, Arkansas Supreme Court, appeal from

denial of state postconviction, judgment entered November 17, 2011.



Anderson v. Kelley, No. 5:12-cv-279, United States District Court for the

Eastern District of Arkansas, federal habeas, judgment entered March 28,

2017.



Anderson v. Kelley, No. 17-2456, United States Court of Appeals for the

Eighth Circuit, appeal from denial of federal habeas, judgment entered

September 11, 2019.



Anderson v. Payne, No. 19-8105, United States Supreme Court, petition for a

writ of certiorari, petition denied October 5, 2020.



Anderson v. State, No. CR 06-29, Arkansas Supreme Court, motion to recall

the mandate, motion denied March 11, 2021.

iii

TABLE OF CONTENTS

Questions Presented ....................................................................................................... i

Parties ............................................................................................................................ ii

Related Proceedings...................................................................................................... iii

Table of Contents .......................................................................................................... iv

Table of Authorities ....................................................................................................... v

Opinions Below .............................................................................................................. 1

Jurisdiction .................................................................................................................... 1

Constitutional and Statutory Provisions Involved ....................................................... 1

Statement of the Case ................................................................................................... 2

Reasons for Granting the Petition ................................................................................ 9

I. Courts are split on whether the Eighth Amendment permits

victim-impact evidence from other crimes .............................................................. 9

II. Anderson would not have a death sentence but for the use

of victim-impact evidence from another offense .................................................. 15

Conclusion .................................................................................................................... 18

APPENDIX

Appendix A – Arkansas Supreme Court order (March 11, 2021)

Appendix B – Arkansas Supreme Court order denying rehearing (May 6, 2021)

Appendix C – Anderson’s motion to recall the mandate

iv

TABLE OF AUTHORITIES

Cases

Page(s)

Anderson v. Kelley,

938 F.3d 949 (8th Cir. 2019), cert. denied, 141 S. Ct. 273 (2020) ........................... 8

Anderson v. Kelley,

No. 12-279, 2017 WL 1160583 (E.D. Ark. Mar. 28, 2017) ................................ 8, 16

Anderson v. State,

163 S.W.3d 333 (Ark. 2004) ..................................................................................... 3

Anderson v. State,

242 S.W.3d 229 (Ark. 2006) ..................................................................................... 7

Anderson v. State,

385 S.W.3d 783 (Ark. 2011) ..................................................................................... 8

Andrews v. Commonwealth,

699 S.E.2d 237 (Va. 2010) ...................................................................................... 14

Belcher v. State,

961 So.2d 239 (Fla. 2007) ....................................................................................... 14

Booth v. Maryland,

482 U.S. 496 (1987) ............................................................................................ 9, 10

Bosse v. Oklahoma,

137 S. Ct. 1 (2016) (per curiam) ............................................................................. 11

Cantu v. State,

939 S.W.2d 627 (Tex. Ct. Crim. App. 1997) ........................................................... 12

Gathers v. South Carolina,

490 U.S. 805 (1989) ................................................................................................ 10

Kaczmarek v. State,

91 P.3d 16 (Nev. 2004) ........................................................................................... 14

Payne v. Tennessee,

501 U.S. 808 (1991) ................................................................................ 2, 10, 12, 15

People v. Adams,

336 P.3d 1223 (Cal. 2014) ...................................................................................... 14

v

People v. Dunlap,

975 P.2d 723 (Colo. 1999) ....................................................................................... 13

People v. Duong,

471 P.3d 352 (Cal. 2020) ........................................................................................ 14

People v. Hope,

702 N.E.2d 1282 (Ill. 1998) .............................................................................. 11, 12

St. Clair v. Commonwealth,

451 S.W.3d 597 (Ky. 2014) ..................................................................................... 12

State v. Bigbee,

885 S.W.2d 797 (Tenn. 1994) ................................................................................. 14

State v. Jacobs,

880 So.2d 1 (La. 2004) ............................................................................................ 13

Wertz v. State,

493 S.W.3d 772 (Ark. 2016) ..................................................................................... 8

Statutes

28 U.S.C. § 1257(a) ........................................................................................................ 1

Ark. Code Ann. § 5-4-603............................................................................................. 17

Ark. Code Ann. § 5-4-604....................................................................................... 16, 17

vi

PETITION FOR A WRIT OF CERTIORARI

Justin Anderson respectfully petitions for a writ of certiorari to review the

judgment of the Supreme Court of Arkansas.

OPINIONS BELOW

The Arkansas Supreme Court’s order denying Anderson’s motion to recall the

mandate is unreported and is set out in Appendix A. The Arkansas Supreme Court’s

order denying Anderson’s petition for rehearing is set out in Appendix B.

JURISDICTION

The Arkansas Supreme Court entered its order denying the motion to recall the

mandate on March 11, 2021. App. A. It denied a timely petition for rehearing on

May 6, 2021. App. B. Per this Court’s order of March 19, 2020, a petition for a writ

of certiorari is due 150 days from the date of an order denying a timely petition for

rehearing. 589 U.S. ___ (2020). That order remains in effect where, as here, the

lower court denied a timely petition for rehearing before July 19, 2021. See Order,

594 U.S. ___ (July 19, 2021). This Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S. Const. amend. VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.

U.S. Const. amend. XIV:

. . . [N]or shall any State deprive any person of life, liberty, or property, without

due process of law . . . .

1

INTRODUCTION

Arkansas has permissibly chosen to allow victim-impact testimony in capital

cases. But the Eighth Amendment does not allow States to wield such evidence in a

freewheeling manner. Consistent with this Court’s limitation of victim-impact

evidence to “evidence about the victim and about the impact of the murder on the

victim’s family,” Payne v. Tennessee, 501 U.S. 808, 827 (1991) (emphasis supplied),

state courts of last resort typically hold that the Eighth Amendment forbids

introduction of victim-impact testimony concerning crimes other than the murder

for which the defendant is being sentenced. The Arkansas Supreme Court departed

from that majority view here, joining the Supreme Courts of California and Florida

in doing so. The Court should grant certiorari to resolve the split of authority on

this important issue in capital sentencing.

STATEMENT OF THE CASE

In October 2000, nineteen-year-old Anderson killed Clara Creech with a single

gunshot as she was gardening in her yard. This offense came six days after

Anderson shot and injured Roger Solvey, an Ohio truck driver who was passing

through Arkansas. The State sought the death penalty for Creech’s murder. The

attempted capital murder of Solvey, for which Anderson was first convicted, served

as the sole aggravating factor.

In 2002, a jury found Anderson guilty of Creech’s capital murder and sentenced

him to death. The Arkansas Supreme Court affirmed the conviction but vacated the

sentence because the verdict forms indicated that the jurors had failed to consider

2

the mitigating evidence Anderson presented. Anderson v. State, 163 S.W.3d 333,

357–60 (Ark. 2004).

Resentencing was held in 2005. The State again sought death and again used

the Solvey attempt as the sole aggravating factor. Before trial, Anderson sought to

exclude testimony from Solvey or his wife, Nancy, “regarding how they have been

impacted by Defendant’s actions.” Tr. 1080. The motion elaborated:

Payne [v. Tennessee, 501 U.S. 808 (1991)] specifically limits victim

impact testimony to the impact of the victim’s death to the victim’s

family and those close to the victim who were profoundly affected by the

victim’s death. Any testimony from Roger or Nancy Solvey regarding

how they have been impacted by Defendant’s actions will be irrelevant

under A.R.E. 402, will have absolutely no probative value in this trial,

and will violate Payne v. Tennessee, the 8th and 14th amendments to the

United States Constitution, and the corresponding Arkansas

constitutional provisions.

Tr. 1080–81. The trial court denied the motion. Tr. 3246–47.

At trial, Solvey testified about the circumstances of the prior offense, but also

went well beyond that topic to establish the long-term troubles the assault had

caused him. He informed the jury that the shooting had led him to have thirty-five

surgeries, that his arm was nearly amputated, that he had since suffered from

short-term memory problems, and that he was no longer able to work as a truck

driver. Tr. 3253–59.

Over Anderson’s renewed objection to evidence concerning “victim impact of

another crime” (Tr. 3271), the State also presented Nancy Solvey’s emotional

description of the suffering that Anderson’s prior crime had caused her family. After

relating her journey from Ohio to Texarkana to care for her husband, crying

3

throughout, Mrs. Solvey offered extensive testimony covering their medical,

financial, and emotional difficulties:

PROSECUTOR:

We were talking a little bit about when you left here and got

back to Ohio. There still was some stuff to deal with with Roger

rehabbing himself and trying, at least, to have some kind of life

after he couldn’t be a truck driver. Correct?

N. SOLVEY:

That’s correct.

PROSECUTOR:

All right. Has he been able to be employed at all since that time?

N. SOLVEY:

No.

PROSECUTOR:

And is he currently disabled?

N. SOLVEY:

Yes.

PROSECUTOR:

All right. And what is his income from Social Security

Disability?

N. SOLVEY:

$900.00 a month.

PROSECUTOR:

All right. Now, your husband testified that he lost the truck

because of this, obviously, because he couldn’t work?

N. SOLVEY:

That’s correct.

PROSECUTOR:

All right. And what about the medical bills? Did he have some

insurance at that time, being a self-employed truck driver? Or

what was his status?

N. SOLVEY:

No, he didn’t. We didn’t have insurance at that time. I just

started working back at a hospital. I’m a registered nurse.

PROSECUTOR:

All right.

N. SOLVEY:

As I was only part time, and he was driving, and we didn’t have

insurance.

PROSECUTOR:

All right. So the burden of the medical came on you? Did he have

some worker’s comp held out?

4

N. SOLVEY:

No. Nothing.

PROSECUTOR:

All right.

N. SOLVEY:

Nothing.

PROSECUTOR:

He was self-employed, so.

N. SOLVEY:

Right.

PROSECUTOR:

All right. All right. And did that cause a financial burden on

your family?

N. SOLVEY:

Yes, it has. We owe Wadley Hospital $75,000.00 (cries) for his

stay down here, and since I started working, just to keep our

home and save everything, uh, we still owe another $20,000.00

in hospital bills in Ohio.

PROSECUTOR:

Okay. And since your husband left Texarkana, how many

surgeries has he had since he left here?

N. SOLVEY:

Thirty-eight.

PROSECUTOR:

All right. And have all of those been on the elbow, or have some

of them been elsewhere?

N. SOLVEY:

All of them was on the elbow, and one was on his chest to

remove the bullet.

PROSECUTOR:

All right. And the bullet finally moved to a location where they

felt they could safely get it?

N. SOLVEY:

Yes.

PROSECUTOR:

And uh, the rest has been on the elbow trying to . . .

N. SOLVEY:

. . . Save his arm.

PROSECUTOR:

Now, since this incident occurred, has Roger had some problems,

I mean, since this incident occurred, has Roger had some

problems with his memory?

N. SOLVEY:

He can’t remember. He has no short term memory at all.

5

PROSECUTOR:

All right. And was he having that problem prior to this incident?

N. SOLVEY:

No, he was not.

PROSECUTOR:

Does he recall this incident in your presence on any occasions?

N. SOLVEY:

He has back flashes all the time. He’s up at night sometimes,

thinking someone is coming to kill him again. (Cries).

PROSECUTOR:

All right. And is he emotional then?

N. SOLVEY:

Oh, yes. Yes.

PROSECUTOR:

Does he need any special care at home now, or is he able to take

care of himself, like you know, as far as bathing and that sort of

thing? Has he learned how to do all of that?

N. SOLVEY:

He’s learned how to do that. I had to help him. My daughter has

also had to help him. This happened when she was only twelve

and so she’s helped him, too. Last year we had a severe

infection. They almost had to take his whole arm off, so we had

to teach her how to give him IVs while I was working so that

we’d save his life, and keep his arm.

PROSECUTOR:

But this condition is ongoing, and requires some care?

N. SOLVEY:

Yes.

PROSECUTOR:

From day to day?

N. SOLVEY:

Yes. They said if he gets those infection [sic] they’ll probably

have to remove his arm.

Tr. 3273–76.

Before jury deliberations on the appropriate sentence, the trial court rejected

Anderson’s proposed instruction that “[e]vidence of victim impact testimony from

Roger Solvey or Nancy Solvey is not to be considered by you for any reason relating

to Justin Anderson’s punishment.” Tr. 3907.

6

In closing, the prosecutor encouraged the jury to count the Solveys’ suffering as

an aggravating circumstance and to weigh it against mitigation:

And I submit to you that the aggravating circumstances that we’ve

presented in this case to you is a, it’s not like somebody pulling a knife

on somebody and threatening them. This is a real, life changing,

aggravating circumstance. It’s one that you saw Mr. Solvey here, who

lost his employment, almost lost his arm. Y’all saw how much of his

elbow is gone and how his arm is shorter. Y’all got to see him in court.

Thirty-five surgeries, in debt with hospital bills, has to stay at home and

can’t work. His wife went to work. Those are life-changing, aggravating

circumstances. No doubt about it, and that’s something when you weigh

that aggravating circumstance in this case, it’s a big circumstance to

weigh against anything, what happened to Mr. Solvey, and that was at

the hands of Mr. Anderson.

Tr. 3993–94.

During deliberations, the jurors requested “clarification for the aggravating

circumstances. Which do we consider, the Roger Solvey circumstance, the Clara

Creech circumstances, or both of them?” Tr. 4073. The court instructed the jury that

it may “consider all of the evidence and give it whatever weight that you believe

appropriate.” Tr. 4097.

After over six hours of deliberations, the jury unanimously found the

aggravating factor and thirty of the thirty-five mitigating circumstances Anderson

proposed. Tr. 1091–1104. It decided that aggravation outweighed mitigation and

justified death. Tr. 1105.

The Arkansas Supreme Court affirmed this death sentence. Anderson v. State,

242 S.W.3d 229 (Ark. 2006). Appellate counsel did not raise the issue of whether the

Solveys’ testimony violated the Eighth Amendment or the Due Process Clause by

introducing victim-impact evidence from crimes apart from the murder for which he

7

was being sentenced. Anderson’s state postconviction counsel did not raise this

issue, either. State postconviction relief was denied and the Arkansas Supreme

Court affirmed. Anderson v. State, 385 S.W.3d 783 (Ark. 2011).

Anderson next filed a federal habeas corpus petition in which he alleged, among

other things, that the Solveys’ testimony violated the Eighth Amendment because it

was impermissible victim-impact evidence from another offense and that it was so

excessive as to violate due process. The district court denied these claims as

procedurally defaulted because they were not fairly presented in state court.

Anderson v. Kelley, No. 12-279, 2017 WL 1160583, at *23 (E.D. Ark. Mar. 28, 2017).

The district court dismissed the petition, and a split panel of the Eighth Circuit

affirmed the dismissal after considering issues unrelated to the Solveys’ testimony.

Anderson v. Kelley, 938 F.3d 949 (8th Cir. 2019), cert. denied, 141 S. Ct. 273 (2020).

Anderson then returned to Arkansas state court to vindicate the other-crimesvictim-impact issue. He did so through an Arkansas procedure called a motion to

recall the mandate. This remedy allows death-sentenced prisoners to reopen their

appeals in situations where there has been a “defect in the appellate process.”

Wertz v. State, 493 S.W.3d 772, 775 (Ark. 2016). Such a defect occurs when the

Arkansas Supreme Court has overlooked an error in its “independent review of

death cases”—an independent review mandated by state procedural rules. Id. at 776

(citing Nooner v. State, 438 S.W.3d 233, 239 (Ark. 2014)). In sum, a motion to recall

the mandate offers Arkansas death-sentenced prisoners a mechanism by which to

present errors of federal law for the first time after the completion of postconviction

8

review—even if the prisoner failed to raise the claim at trial or on appeal as

required by state procedural rules.

As is relevant here, Anderson asked the Arkansas Supreme Court to recall the

mandate to correct the Eighth Amendment error of allowing other-crimes victim

impact or, alternatively, the due-process problem inherent in the excessive othercrimes testimony. App. 3a–33a. These are errors that the Arkansas Supreme Court

should have identified during its independent review of the trial record. The

Arkansas Supreme Court denied the motion to recall the mandate without written

opinion. App. 1a. Three justices would have ordered further briefing. Anderson then

filed a timely motion for reconsideration, which the Arkansas Supreme Court

denied in another unreasoned 4–3 order. App. 2a.

REASONS FOR GRANTING THE PETITION

I.

State courts of last resort are split on whether the Eighth Amendment permits

victim-impact evidence from other crimes.

Statements of the sort the Solveys provided at Anderson’s resentencing are

regulated by a series of opinions in which this Court has outlined the bounds of

victim-impact evidence in capital cases. The proper application of these principles to

victim-impact statements concerning a defendant’s prior crime—as opposed to the

crime for which he is being sentenced—has divided state courts of last resort.

In Booth v. Maryland, 482 U.S. 496 (1987), the Court considered statements

from the family of the victim of the murder for which the defendant was being

sentenced. The Court analyzed the statements in two categories: (1) those

concerning “the personal characteristics of the victims and the emotional impact of

9

the crimes on the family” and (2) those concerning “the family members’ opinions

and characterizations of the crimes and the defendant.” Id. at 502. The Court held

that neither category was permissible under the Eighth Amendment because such

evidence “creates a constitutionally unacceptable risk that the jury may impose the

death penalty in an arbitrary and capricious manner.” Id. at 503.

In Booth, the Court added a caveat that “[s]imilar types of information may well

be admissible because they relate directly to the circumstances of the crime.” Id. at

507 n.10. The Court expanded upon this caveat in Gathers v. South Carolina, 490

U.S. 805 (1989), a case in which the prosecutor seized upon the religious nature of

papers found near the victim’s body to urge the jury that the victim was a religious

person. As the Court concluded, the fact that papers were strewn about the victim’s

body was a relevant circumstance of the crime but the religious nature of the papers

was not, particularly where the prosecutor had not shown that the victim’s religion

had motivated the murder. Id. at 811–12. The sentence thus violated the Eighth

Amendment under Booth’s reasoning.

In Payne v. Tennessee, 501 U.S. 808, 817 (1991), the Court overruled Booth and

Gathers insofar as they prevented States from introducing evidence concerning “the

personal characteristics of the victim and the emotional impact of the crimes on the

victim’s family.” The Court held that a State “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 (emphasis supplied); see also id. at 832–33 (O’Connor, J.,

10

concurring) (“The Eighth Amendment does not prohibit a State from choosing to

admit evidence concerning a murder victim’s personal characteristics or the impact

of the crime on the victim’s family and community.” (emphasis supplied)). As the

Court has explained, Payne’s holding “was expressly ‘limited to’ this particular type

of victim impact testimony” and did not disturb prohibitions on other types, such as

commentary on “the crime, the defendant, and the appropriate sentence.” Bosse v.

Oklahoma, 137 S. Ct. 1, 2 (2016) (per curiam) (quoting Payne, 501 U.S. at 830 n.2).

In situations involving victims of the crime for which the defendant is being

sentenced, Payne sets clear boundaries. However, courts have disagreed on how

Payne applies to statements from victims of a defendant’s other crimes. The

majority view is that Payne does not go so far as to permit a State to introduce

victim-impact evidence from victims of other crimes.

In People v. Hope, 702 N.E.2d 1282, 1286–89 (Ill. 1998), the State sought the

death penalty and alleged the defendant’s prior murder as an aggravating

circumstance. It called the prior murder victim’s widow and a surviving witness to

“testify as to the effects of the [prior] shooting on them and their families.” Id. at

1286. The Illinois Supreme Court rejected this evidence. It held that “Payne clearly

contemplates that victim impact evidence will come only from a survivor of the

murder for which the defendant is presently on trial, not from survivors of offenses

collateral to the crime for which defendant is being tried.” Id. at 1288. The Court

also concluded that the victim-impact evidence was impermissible even if the State

charged the prior offense as an aggravating factor: “While the details of prior crimes

11

are considered relevant aggravation because they illuminate the character and

record of a capital defendant, the unforeseen effects of those prior crimes on their

victims are of no such assistance.” Id. (citations omitted).

In Cantu v. State, 939 S.W.2d 627, 635–37 (Tex. Ct. Crim. App. 1997), the

defendant participated in a double rape-murder but was charged and convicted for

the death of only one victim. At sentencing the State called the mother of the second

victim to testify about her. The appellate court held that the testimony should not

have been admitted because “evidence as to her good character, activities she

enjoyed and the impact of her on her family is not relevant as appellant was not on

trial for her murder and such evidence serves no purpose other than to inflame the

jury.” Id. at 637. The second victim was “not the ‘victim’ for whose death appellant

has been indicted and tried, and Payne does not contemplate admission of such

evidence as permissible under the Eighth Amendment.” Id.

St. Clair v. Commonwealth, 451 S.W.3d 597, 624–29 (Ky. 2014), arose from the

defendant’s resentencing for his sixth murder. The State presented testimony from

the fifth murder victim’s widow about that victim’s work as a youth pastor. The

Kentucky Supreme Court found error because “[t]estimony from a victim of a crime

for which the defendant is not being tried is not relevant to sentencing for the tried

crime.” Id. at 626. Reasoning that the other-crimes victim impact was neither a

“circumstance of the crime” nor “part of the character of the accused,” the court

concluded that the testimony “affected [the defendant’s] Eighth Amendment rights

and would not be permissible under Payne v. Tennessee.” Id. at 629 & n.19.

12

In People v. Dunlap, 975 P.2d 723, 744–46 (Colo. 1999), during sentencing for

the defendant’s quadruple murder, the State introduced evidence concerning the

effect of the defendant’s prior robberies on their victims. The court explained that

“evidence consisting of facts concerning a defendant’s prior convictions is also

relevant in the penalty phase, because it addresses the defendant’s character as

well as the existence of the statutory aggravators and mitigators related to the

defendant’s prior record.” Id. at 745. By contrast, “[e]vidence regarding the impact

of a capital defendant’s prior crimes on the victims of those crimes . . . is not

admissible because it is not relevant to the actual harm caused by the defendant as

a result of the homicide for which he is being sentenced.” Id. (citing Payne, 501 U.S.

at 821). Such evidence is not “sufficiently tied to the jury’s inquiry concerning the

character, background, and history of the defendant, or to any of the aggravating or

mitigating factors.” Id.

The Louisiana Supreme Court has also ordered that the prosecution may not

question prior-crime victims about “the emotional impact those crimes may have

had on their lives” because “it does not ‘inform[] the sentencing authority about the

specific harm caused by the crime in question . . . necessary to determine the proper

punishment for a first degree murder.” State v. Jacobs, 880 So.2d 1 (La. 2004)

(citing Payne, 501 U.S. at 825) (alterations in original).

Other States have reached a similar result, though without holding that it is

required by the Eighth Amendment or Payne. For example, the Nevada Supreme

Court has held that “evidence of the impact to victims of prior crimes alleged as

13

aggravating circumstances is not relevant to the sentencing decision in a firstdegree murder case, and therefore such evidence is inadmissible during the penalty

phase.” Kaczmarek v. State, 91 P.3d 16, 34–35 (Nev. 2004) (citing Sherman v. State,

965 P.2d 903, 914 (Nev. 1998)); see also Andrews v. Commonwealth, 699 S.E.2d 237,

270–72 (Va. 2010); State v. Bigbee, 885 S.W.2d 797, 812 (Tenn. 1994).

In contrast to Colorado, Illinois, Kentucky, Louisiana, Nevada, Tennessee,

Texas, and Virginia, the Supreme Courts of California and Florida have allowed

prosecutors to urge a death sentence based upon the impact of the defendant’s prior

crime on its victim.

In People v. Duong, 471 P.3d 352, 380 & n.20 (Cal. 2020), the California

Supreme Court rejected an Eighth Amendment challenge to testimony from two

victims of uncharged shootings alleged to have been committed by the defendant.

Duong applied the California Supreme Court’s rule that “victim impact evidence

related to a defendant’s uncharged crimes” is impermissible under Payne only when

it is so prejudicial as to render the trial fundamentally unfair—the same standard

that applies when assessing victim-impact evidence concerning the loss caused by

the crime for which the defendant is charged. People v. Adams, 336 P.3d 1223, 1246

(Cal. 2014). Similarly, though not addressing Payne or the Eighth Amendment, the

Florida Supreme Court has held that testimony from the victim of a prior violent

felony is “proper presentation of victim impact evidence.” Belcher v. State, 961 So.2d

239, 256–57 (Fla. 2007).

14

The Court should step in to resolve this disagreement—particularly as it

involves a conflict among the three States that have issued the most death

sentences in the past decade.1 Whereas Defendants in California, Florida, and

Arkansas may be sentenced to death based upon prior-crime victim impact, such

evidence is forbidden other prominent death-penalty jurisdictions such as Texas,

Nevada, and Louisiana. Whether a defendant receives a death sentence should not

depend upon the happenstance of whether he comes from a State that permits the

victims of other crimes to provide emotion-laden testimony, notwithstanding

Payne’s narrow circumscription of victim impact to “evidence about the victim and

about the impact of the murder on the victim’s family.” Payne, 501 U.S. at 827

(emphasis supplied).

II.

Anderson would not have a death sentence but for the use of victim-impact

evidence from another offense.

Certiorari is also warranted because the victim-impact testimony from the

Solveys had a palpable influence on the verdict given the circumstances of this case.

The Eighth Amendment error produced Anderson’s death sentence.

In the litany of murders that unfortunately occur in this country every day,

Anderson’s was not a particularly heinous one, such that it would be almost

impossible to mitigate. While, as the federal habeas court aptly explained, there

1 See Death Penalty Info. Ctr., “Death Sentences in the United States Since 1977,”

available at https://deathpenaltyinfo.org/facts-and-research/sentencing-data/deathsentences-in-the-united-states-from-1977-by-state-and-by-year (showing that from

2010 to 2020, California issued 133 death sentences, Florida issued 110 death

sentences, and Texas issued 68 death sentences).

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was a “randomness about it,” 2017 WL 1160583, at *1, there was no indication that

the victim suffered or that the crime itself was otherwise aggravated. The

aggravation emerged from Anderson’s assault on Solvey six days earlier.

Undoubtedly the facts concerning that assault were relevant to the aggravating

factor, and the prosecutor was entitled to present testimony, including the victim’s,

to prove that Anderson “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.” Ark. Code Ann. § 5-4604(3). However, the testimony here went well beyond that permissible realm into

detailed descriptions of how the Solveys suffered physically, financially, and

emotionally. Nancy Solvey’s testimony, in particular, served no purpose other than

to inject emotion into the trial, as Roger Solvey had already established facts that

went to existence of the aggravating factor.

Against this aggravation, Anderson presented, and the jury unanimously found,

significant mitigating evidence. See Tr. 1092–1104 (verdict form). Anderson’s

mother was intellectually disabled and unable to care for Anderson or his older

brother. Her live-in boyfriend abused her in front of the children and was convicted

of assaulting Anderson when he was very small. Child protective services removed

Anderson from his mother’s custody at the age of five after he came to school with

noticeable welts and bruises on his body. Following a stint in foster care, Anderson

went to live with his father, whom he had not known before. His father was an

alcoholic who would leave Anderson and his brother alone and without food for long

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periods of time. Anderson never had any sort of stable home life before he

committed the murder at age nineteen. Some jurors, but not all, also found that

Anderson was under extreme emotional distress and acting under unusual

pressures or influences at the time of the offense, having heard testimony that

Anderson’s older brother, with whom Anderson had been living at the time, had

recently pressured him to engage in armed robbery. See Tr. 3706–09.

The jury’s task was to weigh this mitigation against the aggravating factor and

to impose death only if it unanimously found that “aggravating circumstances

outweigh beyond a reasonable doubt all mitigating circumstances found to exist”

and that “aggravating circumstances justify a sentence of death beyond a

reasonable doubt.” Ark. Code Ann. § 5-4-603(a)(2)–(3). In Arkansas, aggravating

factors are statutorily limited, see id. § 5-4-604, and the State alleged only one. The

emotional impact of the Solvey’s testimony significantly enhanced the power of the

single aggravating factor. The prosecutor strongly emphasized the Solveys’ victimimpact testimony in his closing appeal for a capital sentence, and the trial court

instructed the jurors to consider that evidence alongside everything else. Under all

the circumstances, it is difficult to conclude otherwise than that the Solveys’

powerful—but constitutionally impermissible—descriptions of their suffering tipped

the scales definitively toward death. At least one juror would have opted for a life

sentence in the absence of that testimony.

CONCLUSION

The Court should grant the petition for a writ of certiorari.

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