Petitioners Brief — Payne v. Tennessee
Supreme Court brief1991
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Ti war Sap 1991
No. 90-5721 on
SEE A we etl
IN THE
Supreme Court of the United States
OCTOBER TERM, 1990
PERVIS TYRONE PAYNE,
Petitioner,
V.
TENNESSEE,
Respondent.
On Writ of Certiorari to the Supreme Court of Tennessee
BRIEF OF PETITIONER
J. BROOKE LATHRAM *
LEs JONES
130 North Court Avenue
Memphis, Tennessee 38103
- (901) 523-2311
* Counsel of Record Counsel for Petitioner
QUESTIONS PRESENTED
1. Whether the Court, having twice decided in the last
five years that the use of unforeseeable victim impact
information in a capital sentencing trial violates the
Eighth Amendment, should now overrule its previous
decisions?
2. Whether Petitioner’s death sentence should be
vacated because of the State’s use of information of the
type condemned in Booth v. Maryland, 482 U.S. 496
(1987), and South Carolina v. Gathers, 490 U.S. 805
(1989) ?
(i)
TABLE OF CONTENTS
QUESTIONS PRESENTED ..00222.0.2.2.....-cecesceeeeseeeeeeee
TABLE OF AUTHORITIES .......02.02.22202....2...eeee--e na
OPINION OF THE COURT BELOW ........... scpsapespdincsia
STATEMENT OF JURISDICTION 000000...
CONSTITUTIONAL PROVISIONS 00.
STATEMENT OF THE CASE 000000.
SUMMARY OF ARGUMENT ....0 amsbes
EES EE
I. THE VICTIM IMPACT INFORMATION USED
Il.
ITI.
IV.
IN THIS CASE IS OF THE TYPE CON-
DEMNED IN BOOTH AND GATHERS ..........
ON PRINCIPLES OF STARE DECISIS, THE
COURT SHOULD DECLINE TO OVERRULE
BOOTH AND GATHERS |...
THE COURT’S RULINGS IN BOOTH AND
GATHERS ARE NECESSARY TO PRE-
SERVE FUNDAMENTAL EIGHTH AMEND-
MENT SAFEGUARDS ..022020.0.o.0.eceeeeeeeeeeeee es
A. Booth and Gathers follow logically from the
Court’s earlier decisions ..................................
B. A more detailed examination of the conse-
quences of overruling Booth and Gathers
further demonstrates that these decisions
are necessary to preserve the Eighth Amend-
ment’s safeguards against disproportionate
punishment and arbitrary classifications......
THE JUSTIFICATIONS ADVANCED FOR
OVERRULING BOOTH AND GATHERS
SHOULD BE REJECTED ......... ta
(iii)
11
15
18
18
21
24
iv
TABLE OF CONTENTS—Continued
A. Victim impact information of the type chal-
lenged here not only fails to promote, but
actually undermines, the penological objec-
Lf FE ee
B. That the law, in other contexts, allows pun-
ishment to depend upon the unforeseeable
consequences of the offender’s conduct does
not justify the use of unforeseeable victim
impact information in capital sentencing
| A RINEN WR PEY NED, NODS RANE ond PALA cre ey Se
1. Legislatures, in making distinctions
among punishments for different types
of offenses, often make presumptions
that the harm caused by the offense gen-
erally is indicative of the actor’s intent.
In those instances in which legislatures
make punishment distinctions based
solely on the harm caused by actor’s
conduct, they do so on the basis of the
harm to society in general, and not on
the basis of the harm suffered by indi-
viduals in particular ....................-00--.........
2. The use of unforeseeable victim impact
information in non-capital cases may
often be justified by the information’s
relevance to restitution. Furthermore,
the use of irrelevant information to en-
hance punishment in non-capital cases
seldom, if ever, violates the Eighth
IE cscisnittbnassdinedinntteeseaadeaiienieseeesininine
C. The use of unforeseeable victim impact in-
formation in a capital sentencing trial can-
not be justified on the grounds that it is
relevant to rebut mitigating evidence offered
a Te GET i555 csecietscadecaaieshasnadssiisesontins
V. THE STATE’S USE OF VICTIM IMPACT
EVIDENCE DID NOT CONSTITUTE HARM-
LESS ERROR ........ ids paeveipimianatinee Re Sa OE
ST iicscscasersnininibcisbsisiboatainhiepattioniniaianiaincaiuniiaine on
Page
25
29
29
31
33
34
35
Vv
TABLE OF AUTHORITIES
CASES: Page
Appeal of Portsmouth Savings Bank Corporators,
525 A.2d 671 (N.H. 1987) 2.00. jonas) 17
Arizona v. Rumsey, 467 U.S. 203 (1984) 000000000... 16
Booth v. Maryland, 482 U.S. 496 (1987) .......000..... passim
Caldwell v. Mississippi, 472 U.S. 320 (1985) .......... 19, 32
California v. Brown, 479 U.S. 588 (1987) .......... 20, 24, 28
Chapman v. California, 386 U.S. 18 (1967) ............ 34
Eddings v. Oklahoma, 455 U.S. 104 (1982) ........ 19, 20, 33
Enmund v. Florida, 458 U.S. 782 (1982) 19
Furman v. Georgia, 408 U.S. 238 (1972) ............. 20, 21
Gardner v. Florida, 430 U.S. 349 (1977) ................. 32
Godfrey v. Georgia, 446 U.S. 420 (1980)... 21
Gregg v. Georgia, 428 U.S. 153 (1976)... 25, 26, 27
Henderson v. State, 234 Ga. 827, 218 S.E.2d 612
SEALE SARS RENAE OSE Se tt 22
Lockett v. Ohio, 438 U.S. 586 (1978) ...... at TIE Mes 19, 33
McCleskey v. Kemp, 481 U.S. 279 (1987)... 23
Orozco v. Texas, 394 U.S. 324 (1969) rae 16
Runyon v. McCrary, 427 U.S. 160 (1976) _........... 16
Satterwhite v. Texas, 486 U.S. 249 (1988) ........... 34
Smith v. Allwright, 321 U.S. 649 (1944) 0. 16
South Carolina v. Gathers, 490 U.S. 805 (1989)... passim
State v. Gaskins, 284 S.C. 105, 326 S.E.2d 132,
cert. denied, 471 U.S. 1120 (1985) 000. 22
State v. Oliver, No. 49613 (Ohio Ct. App. Oct. 17,
1985) (LEXIS, states library, Ohio file)... 22
Tennessee v. Payne, 791 S.W.2d 10 (1990) ............ passim
Thompson v. Oklahoma, 487 U.S. 815 (1988)........ 26, 27
Thornburg v. American College of Obstetricians
and Gynecologists, 476 U.S. 747 (1986) ............ 17, 18
Turner v. Murray, 476 U.S. 28 (1986)... 23
Weems v. United States, 217 U.S. 349 (1910)........ 19
Welch v. Texas Department of Highways and Pub-
lic Transportation, 483 U.S. 468 (1987) ............. 16
Zant v. Stephens, 462 U.S. 862 (1983) 0.0... 23
CONSTITUTIONAL PROVISIONS:
United States Constitution:
Eeeees Ampomnews................................-<.-ccceccncces 2
Fourteenth Amendment ............ pe Ads Sa a ES 2
vi
TABLE OF AUTHORITIES—Continued
STATUTES:
ERT EEA NE AE Te SEE
RETIREE ce ad a ee ee
Tenn. Code Ann. § 39-1-203(g) (1987 Supp.) ........
Tenn. Code Ann. § 38-13-204(g)(2)(B) (1990
RATERS IN TICEAL ooh es rie ROP aoe aeT
ARTICLES AND TREATISES:
B. Cardozo, The Nature of the Judicial Process
149 (1921) 20000. SI RE ES eke Se ee ETP
Hillenbrand & Smith, Victims Rights Legislation:
An Assessment of Its Impact on Criminal Jus-
tice Practitioners and Victims, 1989 A.B.A. Sec.
RU i
Schwartz and Wishingrad, The Eighth Amend-
ment, Beccaria, and the Enlightenment: An
Historical Justification for the Weems v. United
States Excessive Punishment Doctrine, 24 Buf-
falo L. Rev. 783 (1975) oo... cee ecccccccccccceeeee
16, 17
31-32
IN THE
Supreme Court of the Nuited States
OCTOBER TERM, 1990
No. 90-5721
PERVIS TYRONE PAYNE,
Petitioner,
v.
TENNESSEE,
Respondent.
On Writ of Certiorari to the Supreme Court of Tennessee
BRIEF OF PETITIONER
OPINION OF THE COURT BELOW
Tennessee v. Payne, 791 8.W.2d 10 (1990).
STATEMENT OF JURISDICTION
The judgment of the Tennessee Supreme Court was
entered on April 16, 1990. Petitioner filed a Petition for
a Writ of Certiorari to the Supreme Court of the State
of Tennessee on September 12, 1990. The Petition for
Writ of Certiorari was granted February 15, 1991. The
Court subsequently entered an amended order on Feb-
ruary 19, 1991. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1257(3).
2
CONSTITUTIONAL PROVISIONS
United States Constitution:
Eighth Amendment
Excessive bail shall not be required, nor exces-
sive fines imposed, nor cruel and unusual pun-
ishment inflicted.
United States Constitution:
Fourteenth Amendment
Section 1. All persons born or naturalized in
the United States, and subject to the jurisdic-
tion thereof, are citizens of the United States
and of the State wherein they reside. No State
shall make or enforce any law which shall
abridee the privileges or immunities of citi-
zens of the United States; nor shall any State
deprive any person of life, liberty, or property,
without due process of law; nor deny to any
person within its jurisdiction the equal protec-
tion of the laws.
STATEMENT OF THE CASE
Pervis Payne, a twenty year old mentally handicapped
black man with no previous criminal record, was con-
victed of the first degree murder of Charisse A. Christo-
pher, a twenty-eight year old white woman, and her two
year old daughter, Lacie Jo Christopher. He was also
convicted of assaulting Charisse Christopher’s three year
old son, Nicholas, with intent to commit murder in the
first degree. Following a separate penalty trial, Payne
was sentenced by the jury to die.
During the guilt phase, the prosecution presented evi-
dence from which the jury could conclude that Payne
had committed the attacks while under the influence of
cocaine.
Payne denied committing the crimes. Testifying on his
own behalf, Payne admitted being in the victim’s apart-
3
ment shortly before the offense, but denied that he had
committed the crimes (T. 1220-29). Payne testified that,
on his way to his girlfriend’s apartment, located on the
same floor as that of the victims, he passed an unidenti-
fied black man descending the steps from the victims’
apartment (T. 1215-16). Payne further testified that he
heard a baby crying inside. (T. 1218). He said that,
when he entered the apartment, he found Charisse Chris-
topher with a knife protruding from her throat (T.
1220).
The only proof offered by the prosecution during the
sentencing phase consisted of victim impact information
of precisely the type that was condemned in Booth v.
Maryland, 482 U.S. 496 (1987), and South Carolina v.
Gathers, 490 U.S. 805 (1989), and a color videotape of
the crime scene that had not been introduced into evidence
during the cuilt phase of the trial.
Mary Zvolanek, the mother and grandmother of the
victims, responding to a question designed to elicit pre-
cisely the type of testimony condemned by Booth, testified
that the deaths of Nicholas’ mother and sister had had
a devastating effect upon the young boy:
9. Ms. Zvolanek, how has the murder of Nicho-
las’s mother and his sister affected him?
A. He cries for his mom. He doesn’t seem to un-
derstand why she doesn’t come home. And he cries
for his sister Lacie. He comes to me many times
during the week and asks me, Grandma, do you miss
my Lacie. And IJ tell him yes. He says, I’m worried
about my Lacie. (J.A. 3).
Ms. Zvolanek’s emotional testimony, of course, also re-
vealed her own grief.
After next showing the videotape, the State rested.
Payne then offered, in mitigation, evidence that he had
no prior record; that he had been a hard and diligent
worker; and that he regularly attended the church where
his father was the minister. (T. 1500, 1568-70). A clin-
4
ical psychologist testified about Payne’s low I[.Q. scores,
which he considered significant (T. 1520, 1528). He re-
frained from describing Payne as retarded, pointing out
that that term is “not commonly used any more” (T.
1520). He instead characterized Payne as “mentally
handicapped” (T. 1531). He also said that Payne was
one of the most polite prisoners that he had ever inter-
viewed (T. 1530).
The prosecution completed its initial closing argument
with the dramatic insistence that the jury should sentence
Payne to death in order to satisfy an anticipated desire
by Nicholas for Payne’s execution:
There is nothing you can do to ease the pain of
any of the families involved in this case. There is
nothing you can do to ease the pain of Bernice or
Carl Payne, and that’s a tragedy. There is nothing
you can do basically to ease the pain of Mr. and
Mrs. Zvolanek, and that’s a tragedy. They will have
to live with it the rest of their lives. There obviously
is nothing you can do for Charisse or Lacie Jo. But
there is something you can do for Nicholas.
Somewhere down the road Nicholas is going to
grow up, hopefully. He’s going to want to know
what happened. And he is going to know what hap-
pened to his baby sister and his mother. He is going
to want to know what type of justice was done. He
is going to want to know what happened. With your
verdict you will provide the answer. (J.A. 12).
In its rebuttal to Payne’s closing argument, the prose-
cution described the impact on Nicholas of the loss of
his mother and sister:
... And there won’t be anybody there—there won’t
be her mother there or Nicholas’ mother there to
kiss him at night. His mother will never kiss him
goodnight or pat him as he goes off to bed, or hold
him and sing him a lullaby. (J.A. 14).
5
Mr. Garts wants you to think about a good repu-
tation, people who love the defendant and things
about him. He doesn’t want you to think about the
people who loved Charisse Christopher, her mother
and daddy who love her. The people who loved little
Lacie Jo, the grandparents who are still here. The
brother who mourns for her every single day and
wants to know where his best little playmate is. He
doesn’t have anybody to watch cartoons with him, a
little one. These are the things that go into why it
is especially cruel, heinous, and atrocious, the bur-
den that that child will carry forever. (J.A. 15-16).
The prosecutor subsequently alluded to the “exemplary
lives” led by the deceased victims:
Mr. Garts says but [sic] Pervis Payne has lived
an exemplary life for twenty years. Well, what
about Charisse, for twenty-eight years? What about
Lacie Jo, for two years? They lived exemplary lives.
(J.A.17).
Having based its arguments almost entirely on the
victim impact information and the videotape, the prose-
cution concluded with the following remarks:
Ladies and gentlemen of the jury, this is the last
thing I am going to say to you. But I want you to
think about this when you go back into your jury
room. We have heard a lot about Charisse Chris-
topher, Lacie Jo and Nicholas, and how they were
as they appeared before Pervis Payne came into
their lives. And this is what he did to them. (J.A.
17).
The prosecutor then approached a large diagram of
Nicholas Christopher’s body and stabbed a hole through
it with the butcher knife that was found at the crime
scene. See Tennessee v. Payne, 791 5.W.2d 10, 20 (1990)
(J.A. 25, 45). The Tennessee Supreme Court, in its opin-
ion affirming Payne’s conviction and sentence, condemned
this conduct as “improper argument, an improper, un-
6
professional act and an improper use of exhibits.” Jd.
It refused, however, to order a new sentencing trial.
In returning its verdict, the jury reported on the form
provided to it: “We, the Jury, unanimously find that
there are no mitigating circumstances sufficiently sub-
stantial to outweigh the statutory aggravating circum-
stances so listed above” (J.A. 23).
The Tennessee Supreme Court ruled that Ms. Zvola-
nek’s testimony about the effect that Charisse’s and Lacie
do’s deaths had had upon Nicholas, while “technically
irrelevant,” . .. “did not create a constitutionally unac-
ceptable risk or any arbitrary imposition of the death
penalty,” and thus was harmless error. Z/d. at 17-18.
(J.A. 40). The court further ruled that the victim im-
pact arguments made by the State during the sentencing
phase were relevant to show Payne’s “personal respon-
sibility and moral guilt.” Jd. at 18-19. (J.A. 42).
This case is now before the Court pursuant to the
Amended Order of February 19, 1991 granting Payne’s
petition for certiorari.
1The statute under which Payne was tried, Tenn. Code Ann.
§ 39-2-203(g) (1987 Supp.), and the instruction given to the jury
pursuant to that statute (J.A. 21, 22), specifically required Payne,
in order to save his life, to convince the jury that the mitigating
evidence outweighed the aggravating circumstances. This statute
was subsequently repealed. The new statute, Tenn. Code Ann.
§ 38-13-204(g) (2)(B), requires that the jury “unanimously find
that the state has proven beyond a reasonable doubt that the statu-
tory aggravating circumstance or circumstances outweigh any miti-
gating circumstances.” Unlike Payne, a defendant tried under this
new statute is no longer required, in order to avoid death, to prove
that the mitigating evidence outweighs the aggravating circum-
stances. Tenn. Code Ann. § 39-13-204(g)(2)(B) (1990 Supp.).
7
SUMMARY OF ARGUMENT
In violation of the Court’s decisions in Booth and
Gathers, the State made its case for executing Payne
by emphasizing the suffering of the survivors, insisting
that the jury impose the death penalty because of the
anticipated desire of Nicholas for Payne’s execution, and
asserting the exemplary lives of the deceased victims.
The record in this case demonstrates, without question,
that the State’s use of this information was part of an
overall strategy to gain a decision based on emotion,
rather than reasoned judgment. Because Payne’s rights
under the Eighth and Fourteenth Amendments were vio-
lated, his sentence must be vacated unless the Court
overrules Booth and Gathers.
On principles of stare decisis, the Court should not
overrule Booth and Gathers. Deference to stare decisis
promotes stability and publie confidence in the judiciary
and in the authority of constitutional decisions. There
has been no time for the Court’s decisions in Booth and
Gathers to be tested by experience.
Apart from the absence of exceptional circumstances
calling for departure from stare decisis, Booth and Gath-
ers should not be overruled in any event. They are con-
stitutionally sound decisions that preserve fundamental
Eighth Amendment safeguards and follow logically from
the Court’s prior decisions.
Unforeseeable victim impact information says nothing
about a defendant’s state of mind, character, or propen-
sity for future dangerousness. It is, therefore, irrelevant
to the capital sentencing determination. The Eighth
Amendment prohibits the use of such information in
capital sentencing determinations because its considera-
tion ereates the risk that death will be imposed out of
whim, passion, prejudice or mistake.
8
An examination of the consequences of overruling
Booth and Gathers further demonstrates that these deci-
sions are necessary to preserve the Eighth Amendment’s
safeguards. The use of unforeseeable victim impact in-
formation will convert the sentencer’s guided discretion
to determine whether the offender’s depravity warrants
death into an uncontrollable and open-ended invitation to
decide whether a particular victim’s worth merits execut-
ing the offender. At best, the imposition of the death
penalty will turn on the victim’s perceived character and
value to others, with the sentencer in each case becoming
society’s agent for determining the relative merits of the
victims. At worst, it will become a mechanism for im-
plementing social prejudice.
If Booth and Gathers are overruled, the inevitable
tendency in capital sentencing trials will be to push the
defendant’s state of mind, character, and propensity for
future dangerousness into the background, as the focus
shifts to the victim’s character and worth. This, in turn,
will deter the sentencer from making a reasoned moral
response to the offender’s background, character, and
crime.
Though unforeseeable victim impact information is not
relevant to prove an offender’s state of mind, character,
or propensity for future dangerousness, it has been stated
that a state may nonetheless use such information in a
capital sentencing determination, because (1) by consid-
ering unforeseeable victim impact information, the sen-
tencer implements society’s legitimate interest in retri-
bution; (2) the law, in other contexts, makes punishment
dependent upon the unforeseeable consequences of the
offense; and (3) unforeseeable victim impact information
is needed to counter mitigating evidence offered by the
defendant. These justifications for allowing a state to
use such information should be rejected.
The use of unforeseeable victim impact information not
only fails to promote, but actually undermines, the peno-
9
logical objective of retribution. When a society invokes
retribution to authorize the death penalty, it recognizes
that life is so precious that its aggravated taking permits
the execution of the responsible offender. Retribution,
when invoked in this fashion, recognizes the preciousness
of every human life. When, however, retribution is used
to make comparative evaluations of the lives of individual
victims, then, of necessity, it no longer affirms the pre-
ciousness of every life, and it no longer comports with the
dignity of men.
That the law, in other contexts, allows punishment to
depend upon the unforeseeable consequences of the offend-
er’s conduct does not justify the use of such information
in capital sentencing trials. Legislatures, in making dis-
tinctions among punishments for different types of of-
fenses, often make presumptions that the harm caused
by the offense is generally indicative of the actor’s intent.
In those instances in which legislatures make punishment
distinctions based solely on the harm caused by the actor’s
conduct, they do so on the basis of the harm to society
in general, and not on the basis of the harm suffered by
individuals in particular.
The use of unforeseeable victim impact information in
non-capital cases may often be justified by the informa-
tion’s relevance to restitution. Restitution, of course,
plays no role in the determination of whether an of-
fender should live or die. Furthermore, the use of ir-
relevant information to enhance punishment in non-
capital cases very rarely, if ever, violates the Eighth
Amendment.
The use of unforeseeable victim impact information in
a capital sentencing trial cannot be justified on the
grounds that it is relevant to rebut mitigating evidence
offered by the defendant. There is no symmetry between
the defendant’s offer of mitigating circumstances and the
prosecution’s use of the unforeseeable consequences of the
offense. The prosecution may, of course, counter the de-
10
fendant’s mitigating evidence through the cross-examina-
tion of defense witnesses, the introduction of its own
proof directed toward relevant factors, and the use of
appropriate arguments.
Finally, the Tennessee Supreme Court erroneously con-
cluded that the State’s use of unforeseeable victim im-
pact information constituted harmless error. Apart from
the crimes themselves, which, of course, were brutal and
shocking, there was no evidence that supported the im-
position of death other than the Booth-condemned victim
-mpact information.
At the time of these killings, Payne was a twenty year
old mentally handicapped laborer, with no prior record.
The State introduced no evidence of any disciplinary
problems or academic misconduct. Nor did the State
seek to show any clinical evaluation or otherwise attempt
to demonstrate any propensity for future dangerousness.
The State was thus forced to make its case for execution
through the use of Booth-violative evidence and argu-
ments and through theatrics purposefully calculated to
induce an emotional reaction, rather than a reasoned,
moral response.
Payne was required to convince the jury that his miti-
gating evidence outweighed the aggravating circum-
stances. The State’s heavy reliance on the Booth-con-
demned information made Payne’s burden especially oner-
ous. The erroneous use of this information was not harm-
less beyond a reasonable doubt.
11
ARGUMENT
I. THE VICTIM IMPACT INFORMATION USED IN
THIS CASE IS OF THE TYPE CONDEMNED IN
BOOTH AND GATHERS.
While Justice Powel] purported to classify victim im-
pact information into two types, Booth at 502, he ac-
tually identified three types of information: (1) the per-
sonal characteristics of the victims; (2) the emotional
impact of the crimes on surviving family members; and
(3) the family members’ opinions and characterizations of
the crimes and of the defendant. /d. All three were pres-
ent here. In addition to referring to the “exemplary
lives” led by the deceased victims (J.A. 17), the State
emphasized the emotional effect that the crimes have had
on the survivors (J.A. 3, 12, 14, 15-16) and dramatically
invoked the anticipated desire of Nicholas for Payne’s
execution as a reason for imposing the death penalty
(J.A. 12).
Other than the police officer who authenticated the
videotape, the only witness called by the prosecution was
Mary Zvolanek, the mother and grandmother of the vic-
tims. Her emotional testimony that Nicholas “cries for
his mother” and “misses my Lacie’’ fits precisely within
the second type of information condemned in Booth. This
live testimony, while certainly not as lengthy as the writ-
ten statement in Pocth, was every bit as devastating.
That the prosecution appreciated the tendency of this tes-
timony to arouse the passions of the jury is underscored
by the heavy emphasis it placed on Ms. Zvolanek’s testi-
mony both during the opening statement of the sentenc-
ing trial, when the prosecution promised the jury it would
hear Ms. Zvolanek describe the impact on Nicholas (J.A.
5), and during its closing arguments (J.A. 12, 15-16).
That the formal presentation of this testimony was part
of an overall strategy by the prosecution to induce an
emotional reaction from the jury, rather than a reasoned
moral response to the evidence, is further borne out by
12
the prosecution’s introduction of the gruesome color video-
tape (T. 1505-07) during the sentencing phase” and its
improper stabbing of the exhibit at the close of the
rebuttal argument. See Tennessee v. Payne, 791 S.W.2d
at 20 (J.A. 45).
It is, of course, foreseeable to a murderer that, when
he knowingly leaves a surviving small child, the child
will miss and long for his dead parent. This knowledge
is relevant to show moral blameworthiness. As Justice
Powell wrote, “a defendant’s degree of knowledge of the
probable consequences of his actions may increase his
2 The tape showed the crime scene, including the bodies of the
two dead victims. Charisse’s hands and face revealed the effects
of rigor mortis, and the tape focused on these particular features
for several seconds at a time, sometimes with “close-ups.” The
prosecution’s dramatic reference to the tape in closing argument
sought to connect the victim’s features, as depicted in the film,
with the “depravity” of the conduct:
Now the first two minutes of the videotape wasn’t just shown
because its in color and looks a whole lot more gory. It’s be-
cause it shows more detail and more accurately what we’re
talking about in the first stage of the trial. And while, per-
haps I couldn’t refer to it in voir dire, you remember when I
asked you in voir dire could you listen to that kind of proof,
that you were going to hear some rather graphic evidence of
wounds. Well, that’s what I was talking about.
You see, because that’s not something I want to spring on
somebody without warning them on the front end, even though
it was a week ago. Because it shows very graphically how
atrocious this crime was, how cruel it was, and how much
depravity it showed. Some of the details especially in that
picture—in that videotape, you can’t see as well as [sic] in the
black and white picture. For instance, Charisse’s right hand all
gnarled up in agony. And Lacie Jo’s hand and Lacie Jo’s eyes
and the expression on her face some people refer to as the
thousand yard stare because it’s just sort of not focused
(J.A. 7-8).
No foundation had been laid, of course, for the argument that
Charisse’s “gnarled”’ hand reflected her “agony” at death or that
the expression on the child’s face was relevant to show the nature
of the killing.
13
moral culpability in a constitutionally significant man-
ner.” Booth v. Maryland, 482 U.S. at 505. In the case
at bar, therefore, the prosecution could have argued to
the jury that the perpetrator likely knew that, if by
chance a child survived the attack, he or she would long
for his or her mother or sibling.
The fact that the prosecution could have made this
argument does not justify its formal presentation of Ms.
Zvolanek’s testimony in blatant violation of Booth. Her
live emotional testimony that Nicholas did in fact cry
for his mother, that he repeatedly asked for “my Lacie”,
and that he asked his grandmother if she “also missed
Lacie” is markedly different from the prosecutor’s merely
drawing a general inference during an argument. It is
evidence designed to evoke a response based on what
actually happened to Nicholas, rather than on what the
perpetrator might have foreseen as the effect of his at-
tack. Absent this evidence, the jury’s focus would be
properly limited to an assessment of the probable con-
sequences of the crimes from the same vantage point as
the yerpetrator. “[T]he formal presentation of this in-
formation by the State can serve no other purpose than
to inflame the jury and divert it from deciding the case
on the relevant evidence concerning the crime and the
defendant.” Booth v. Maryland, 482 U.S. at 508.
Furthermore, the emotional trauma to the grandparents,
revealed through Ms. Zvolanek’s testimony and invoked
by the prosecution in both its initial closing (J.A. 12)
and rebuttal (J.A. 15-16) arguments, was offered solely
to show the effect of the crimes on the survivors. It cer-
tainly had no bearing on the defendant’s state of mind
or character.
Equally, if not more, prejudicial was the prosecution’s
dramatic conclusion to its initial closing argument (J.A.
12). The prosecution insisted that the jury should im-
pose the death penalty because nothing else will satisfy
14
Nicholas’ wishes as he matures and comes to appreciate
what has happened.
A survivor’s opinion on whether the offender should be
executed was condemned not only by the majority in
Booth, id. at 508, but also, perhaps, by the dissent, id.
at 518-19 (White, J., dissenting) (pointing out that, even
if inappropriate to allow victim’s family to express such
opinions, this is no reason to declare admission of victim
impact information per se unconstitutional). The prose-
cution’s argument in this case goes even beyond a sur-
vivor’s expression of the opinion that the defendant should
be executed. The prosecution not only took it upon itself
to assure the jury that Nicholas would want Payne exe-
cuted, but also indicated that Nicholas would be greatly
disappointed if the jury reached a different conclusion.
There is, of course, no support in the record for the
prosecution’s assumption. More significantly, even if it
is assumed that Nicholas will want Payne executed, ask-
ing a jury to impose death for that reason is condemned
by the majority opinion in Booth, id. at 508-09, and, as
just noted, perhaps by the dissenting opinion as well.
Id. at 518-19.
The prosecution’s appeal took from the jury the awe-
some decision making responsibility that it, and it alone,
is supposed to exercise. The prosecution’s insistence that
the jury impose death not because the evidence man-
dated that decision, but because of the anticipated desire
of Nicholas for Payne’s execution, was a form of psycho-
logical intimidation expressly calculated to make the ju-
rors feel that they would be letting Nicholas down if
they did not impose death. This insistence was, there-
fore, “clearly inconsistent with the reasoned decision-
making [the Court] require|s] in capital cases.” Jd. at
508-09.
The use of opinion victim impact information makes a
capital sentence dependent on how eloquently the vic-
tim’s survivors can plead for the offender’s death. The
15
prosecution here undoubtedly chose to make this dramatic
appeal because it knew that there could be no more elo-
quent advocate of death than a three year old child who
has himself been attacked by the defendant. The fact
that the appeal was made through the voice of the State’s
representative only served to give it added weight.
It is no coincidence that both this dramatic appeal and
the subsequent stabbing of the exhibit occurred at the
conclusions of the prosecution’s arguments. The prosecu-
tion’s strategy was to gain a decision based on emotion,
rather than one based on a reasoned, moral judgment.
The conclusion is inescapable that the victim impact
information used in this case is of the type condemned
in Booth and Gathers. Payne’s sentence must, therefore,
be reversed, unless the Court now overrules Booth and
Gathers.*
II. ON PRINCIPLES OF STARE DECISIS, THE COURT
SHOULD DECLINE TO OVERRULE BOOTH AND
GATHERS.
Four years ago, in a 5-4 decision, tne Court decided
Booth v. Maryland, 482 U.S. 496 (1987), holding that
the Eighth Amendment prohibits a state from using un-
foreseeable victim impact information in a capital sen-
tencing proceeding. Less than two years ago, in South
Carolina v. Gathers, 490 U.S. 805 (1989), the Court re-
fused to overrule Booth and made it clear that Booth’s
prohibition applied even when the only victim impact in-
formation used by the prosecution consists of informa-
tion designed to show the character of the victim. Since
3 The Court would, in fact, have to overrule Booth in its entirety
in order to affirm Payne’s death sentence. Because each of the three
types of victim impact information is present here, Payne’s sen-
tence must be vacated even if the Court decides to leave intact only
that part of Booth that condemns the use of opinions on whether
the offender should be executed. See Booth v. Maryland, 482 U.S.
at 508-09. This point is more fully addressed supra at pages 28-29.
16
the decision in Gathers, nothing has occurred that di-
minishes the authority or reasoning of either Booth or
Gathers.
“The rule of law depends in large part on adherence
to the doctrine of stare decisis.” Welch v. Texas Depart-
ment of Highways and Public Transportation, 483 U.S.
468, 478 (1987) (opinion of Justice Powell, for himself,
Chief Justice Rehnquist, Justice White, and Justice
O’Connor). As Justice Cardozo wrote, “|t|he labor of
judges would be increased almost to the breaking point if
every past decision could be reopened in every case, and
one could not lay one’s own course of bricks on the secure
foundation of the courses laid by others who had gone
before him.” B. Cardozo, The Nature of the Judicial
Process 149 (1921), quoted in Runyon v. McCrary, 427
U.S. 160, 190-91 (1976) (Stevens, J., concurring).
Conscientious adherence to the doctrine is often signi-
fied by an individual Justice’s willingness to suppress his
or her personal preferences in deference to a commitment
to the rule of law. See, e.g., Orozco v. Texas, 394 U.S.
324, 327-28 (1969) (Harlan, J., concurring). While the
doctrine is of greatest force when the Court construes
legislation, see Smith v. Allwright, 321 U.S. 649, 665
(1944), it is also applicable to matters of constitutional
interpretation. As the Court has recently observed, “|a|1-
though adherence to precedent is not rigidly required in
constitutional cases, any departure from the doctrine of
stare decisis demands special justification.” Arizona v.
Rumsey, 467 U.S. 203, 212 (1984) (emphasis added).
Deference to precedent promotes stability and public
confidence in the judiciary and in the authority of con-
stitutional decisions. The public correctly relies on its
perception that this is a nation governed by law rather
than the views of the individual Justices. While cer-
tainly a Justice must vote to overrule a decision that in
his or her view conflicts with the Constitution, see South
Carolina v. Gathers, 490 U.S. at 824-25 (Sealia, J., dis-
17
senting), the interests in stability and public confidence
require that there be a high and perhaps atypical de-
gree of certainty in the Justice’s conviction before he or
she votes to abandon a previous decision.
The doctrine of stare decisis recognizes the danger that,
if a new generation of Justices “corrects” the errors of
its predecessors, the Court might move farther and far-
ther away from the fundamental principles that allow
it to implement the rule of law rather than the “mere
exercise of judicial will, with arbitrary and unpredictable
results.” Thornburg v. American College of Obstetricians
and Gynecologists, 476 U.S. 747, 786-87 (1986) (White,
J., dissenting) ; Appeal of Portsmouth Savings Bank Cor-
porators, 525 A.2d 671, 701 (N.H. 1987) (Souter, J.,
dissenting). To be meaningful, therefore, the doctrine
should be followed by an individual Justice even when
it requires adopting a position that is contrary to the
ene he or she would have otherwise adopted on an open
question.
The issues addressed in Booth and Gathers deal with
matters that can, and should, be evaluated in the light
of experience. Admittedly, experience with the conse-
quences of some decisions sheds little light upon their
wisdom. Cf. Thornburg v. American College of Obstetri-
cians & Gynecologists, 476 U.S. at 786-88 (1986) (White,
J., dissenting). Booth and Gathers, however, are not
such cases. A few years’ experience with these decisions
should provide the bar and this Court with a realistic
assessment of the consequences of prohibiting the use of
unforeseeable victim impact information. To date, how-
ever, there has been no time for these decisions to be
“duly tested by experience.” See B. Cardozo, supra. To
overrule these decisions at this time would serve no pur-
pose but to block the opportunity for enlichtment.
It has been suggested that a precedent should be over-
ruled when experience demonstrates that it has spawned
an “unworkable scheme” that has resulted in “a major
18
distortion in the Court’s constitutional jurisprudence.”
Thornburg v. American College of Obstetricians & Gyne-
cologists, 476 U.S. at 814 (O’Connor, J., dissenting).
Such a distortion might occur, for example, when the
initial decision leads to subsequent decisions that con-
travene settled principles of justiciability and procedural
fairness. Jd. at 815. There has, however, been no claim
that Booth and Gathers have created such distortions.
These decisions involve the limited application of constitu-
tional principles to a particular segment of criminal sen-
tencing. This is not to suggest, of course, that Booth
and Gathers are not very important decisions, but only
to point out that, in terms of whether to depart from
stare decisis, they are distinguishable from cases having
a wider impact.
Stare decisis is an integral part of constitutional ju-
risprudence. It is a doctrine from which the Court should
depart only when exceptional justifications exist. We re-
spectfully submit that those justifications do not exist
here.
Ill. THE COURT’S RULINGS IN BOOTH AND GATH-
ERS ARE NECESSARY TO PRESERVE FUNDA-
MENTAL EIGHTH AMENDMENT SAFEGUARDS.
This section is divided into two sub-sections. We first
explain that Booth and Gathers follow logically from the
Court’s earlier decisions. In the second sub-section, we
examine the consequences of overruling Booth and Gath-
ers and explain that these adverse consequences illustrate
why these decisions are necessary to preserve the Eighth
Amendment’s safeguards.
A. Booth and Gathers follow logicaily from the Court’s
earlier decisions.
The Eighth Amendment, like all constitutional pro-
visions, must be construed in a way that implements the
principles that it embraces. Though there is a difference
19
of opinion about the framers’ original intent,‘ it is now
settled that the Eighth Amendment protects American
citizens from a punishment that is disproportionate to the
crime of which he is convicted. Weems v. United States,
217 U.S. 349 (1910); Enmund v. Florida, 458 U.S. 782,
788 (1982). It is also settled that the Eighth Amend-
ment requires an individualized sentencing determina-
tion in a capital case, because, otherwise, there would
be a constitutionally unacceptable risk that death will be
imposed in spite of factors that may call for a less severe
punishment. Lockett v. Ohio, 438 U.S. 586, 605 (1978).
In this constitutionally mandated individualized sen-
tencing determination, the sentencer must consider those,
and only those, factors that bear on whether the punish-
ment is appropriate for the offender’s blameworthiness.
A process that either withholds from the sentencer’s con-
sideration relevant evidence, see, e.g., Eddings v. Okla-
homa, 455 U.S. 104 (1982), or allows the sentencer to
consider factors that are prejudicially irrelevant to that
determination, see, e.g., Caldwell v. Mississippi, 472 U.S.
320 (1985), necessarily runs afoul of the Eighth Amend-
ment.
The Eighth Amendment’s individualized sentencing
requirement is thus concerned with the “process” by
which sentences are determined in capital cases. Eddings
*Compare the dissent of Justice White, with whom Justice
Holmes joined, in Weems v. United States, 217 U.S. 349, 393-95
(1910) (finding no historical support for the conclusion that the
framers intended a constitutional prohibition against disproportion-
ate punishments) with Comment, The Eighth Amendment, Bec-
caria, and the Enlightenment: An Historical Justification for the
Weems v. United Excessive Punishment Doctrine, 24 Buffalo L.
Rev. 783, 806-30 (1975) (arguing that Jefferson, Madison, and
others responsible not only for the drafting of the Bill of Rights
but prior state legislation as well were influenced by Cesare Bec-
caria’s 1764 treatise, On Crimes and Punishments, in which he
advocated proportional punishments along with other criminal law
reforms).
20
v. Oklahoma, 455 U.S. at 118 (O’Connor, J., concurring).
Insufficiently guided discretion produces the constitu-
tionally unacceptable risk that punishment might be ‘“im-
posed out of whim, passion, prejudice or mistake,” id., or
that the sentence will not “reflect a reasoned moral re-
sponse to the defendant’s background, character and
crime rather than mere sympathy or emotion.” Califor-
nia v. Brown, 479 U.S. 538, 545 (1987) (O’Connor, J.,
coneurring) (emphasis original).
Booth and Gathers follow logically from these settled
principles. Unforeseeable victim impact information is
irrelevant to the sentencing determination. Such infor-
mation tells the sentencer absolutely nothing about the
offender’s state of mind, character, or propensity for fu-
ture dangerousness. It is, therefore, “wholly unrelated
to the blameworthiness” of the defendant. Booth v. Mary-
land, 482 U.S. at 504.
Allowing the sentencer to consider such information
“could result in imposing the death penalty because of
factors about which the defendant was unaware, and that
were irrelevant to the decision to kill.” Jd. at 505. This,
in turn, could “divert the jury’s attention away from the
defendant’s background and record, and the circumstances
of the crime.” 7d.
Booth also recognizes that the use of unforeseeable
victim impact information might create arbitrary distinc-
tions between those cases in which death is, and is not,
imposed. Jd. at 505-06. Such arbitrary distinctions have,
of course, been a principal concern of the Court since its
decision in Furman v. Georgia, 408 U.S. 238 (1972).
See id. at 312-13 | White, J., concurring).
After pointing out that in some cases the victim may
“not leave behind a family, or the family members may
he less articulate in describing their feelings even though
their sense of loss is equally severe,” Booth at 505, the
Court said that “the fact that the imposition of the death
sentence may turn on such distinctions illustrates the
21
danger of allowing juries to consider this information.”
Id. Similarly, the Court stated that there is no justifica-
tion for allowing a capital sentencing “decision to turn
on the perception that the victim was a sterling member
of the community rather than someone of questionable
character.” Jd. at 506. Citing the Court’s earlier deci-
sion in Godfrey v. Georgia, 446 U.S. 420, 433 (1980)
(opinion of Stewart, J.), Justice Powell wrote that in-
formation concerning the worth of the victim “does not
provide a ‘principled way to distinguish |cases] in which
the death penalty was imposed, from the many cases in
which it was not.’” Jd. The use of such information, in
other words, does not provide a basis of distinction that
serves any legitimate “end of punishment in the criminal
justice system.” Cf. Furman v. Georgia, 408 U.S. at 311
(White, J., concurring).
B. A more detailed examination of the consequences
of overruling Booth and Gathers further demon-
strates that these decisions are necessary to pre-
serve the Eighth Amendment’s safeguards against
disproportionate punishment and arbitrary classi-
fications.
Unforeseeable victim impact information, as previously
noted, will provide no assistance whatsoever to the assess-
ment of the offender’s state of mind, character, or pro-
pensity for future dangerousness. A murder is no less
heinous, and the offender no less deserving of punishment,
simply because the victim happens to be a derelict or a
hermit who dies without survivors rather than, say, a
beloved parent.
That a victim led an exemplary life, or is missed by
her survivors, is no more relevant to the defendant’s
blameworthiness than evidence of the victim’s moral short-
comings. Let us say, for example, that a priest is bru-
tally murdered by a man who, while in the process of
robbing the parish safe, is surprised by the priest. Let
us further postulate that the defendant’s attorney, in the
22
course of his investigation of the case, turns up two young
children who will testify that the priest, on several oc-
casions, persuaded them to engage in sexual acts with
him.
Ignoring for the moment the lack of wisdom attendant
to such a tactic, the defense’s attempted introduction of
the evidence of the victim’s transgressions should be ir-
relevant, since those past transgressions do not aid the
assessment of the defendant’s moral culpability.® Yet, if
Booth and Gathers are overruled, unfavorable. as well as
favorable, information about the victim could be used
during the sentencing trial, with the concomitant in-
creased likelihood that the sentencer will be diverted from
its evaluation of the offender’s blameworthiness.
In addition to providing no assistance to the evaluation
of the offender’s state of mind, character, or propensity
for future dangerousness, the use of unforeseeable victim
impact information will convert the sentencer’s guided
discretion to determine whether the offender’s depravity
warrants death into an uncontrollable and open-ended
invitation to decide whether a particular victim’s value to
society and/or his survivors merits executing the offender.
This, in turn, could well result in the imposition of the
death penalty on the basis of the sentencer’s assessment
of such constitutionally impermissible factors as the vic-
tim’s race, religion, gender, and economic or social status."
5 See State v. Gaskins, 284 S.C. 105, 128, 326 S.E.2d 132, 145,
cert. denied, 471 U.S. 1120 (1985) (no error in excluding confession
of victim, a death-sentenced murderer, proffered by defense since
victim’s status “did not entitle [defendant] to kill him’); State v.
Oliver, No. 49613 (page 8) (Ohio Ct. App. Oct. 17, 1985) (LEXIS,
states library, Ohio file) (state’s evidence that the victim was a
nice and intelligent person and defense evidence of victim’s homo-
sexual acts both held inadmissible); Henderson v. State, 234 Ga.
827, 828, 218 S.E.2d 612, 614 (1975) (in general, evidence of de-
ceased’s character is inadmissible in a murder trial).
® Sentencing determinations may not be based on “factors that
are constitutionally impermissible or totally irrelevant to the sen-
tencing process, such as for example, the race, religion, or political
23
At best, the imposition of the death penalty would turn
on the victim’s perceived character and value to others,
with the sentencer in each case becoming society’s agent
for determining the relative merits of the victims. At
worst, the death penalty would become a mechanism for
implementing social prejudice.
The consequences of overruling Booth and Gathers will
be grim indeed. The tendency will be to push the defend-
ant’s state of mind, character, and propensity for future
dangerousness into the background, as the focus shifts
to the victim’s character and worth. The prosecution will
present the victim in a manner that appeals to the paro-
chial perspective of the jury, and the defense will often
find irresistible the opportunity to attack the victim’s
character. As this case vividly illustrates, the use of
Booth-condemned information can be an essential part of
affiliation of the defendant.” Zant v. Stephens, 462 U.S. 862, 885
(1983) ; Booth v. Maryland, 482 U.S. at 517 (White, J., dissenting)
(“It is no doubt true that the State may not encourage the sen-
tencer to rely on a factor such as the victim’s race in determining
whether the death penalty is appropriate”).
The reality, unfortunately, is that already there is disturbing
evidence that the chance that the death penalty will be imposed is
significantly greater in cases in which the victims are white then
in those in which the victims are black. See, e.g., the “Baldus
study,” the findings of which, concededly, were neither accepted nor
rejected by the Court in McCleskey v. Kemp, 481 U.S. 279 (1987).
If prosecutorial discretion to seek the death penalty is in fact influ-
enced by the race of the victim, see id. at 286-87 (discussing
“Baldus study”), then this tendency is likely to be exacerbated if
the prosecutor believes that the strength of his case depends upon
his ability to marshall effective evidence of the victim’s worth or
standing in the community. :
In Turner v. Murray, 476 U.S. 28, 36 (1986), the Court held that
the risk of racial prejudice infecting the sentencing decision in a
case involving a white victim and black defendant was sufficient to
require voir dire examination of jurors about their racial attitudes.
This recognized risk of racial prejudice could, of course, also surface
when the sentencer is expressly urged to consider the status and
worth of the victim.
24
the prosecution’s strategy to gain a death sentence based
on emotion rather than on “a reasoned moral response to
the defendant’s background, character, and crime. .. .”
California v. Brown, 479 U.S. at 545 (O’Connor, J., con-
curring) (emphasis original). Furthermore, in its most
extreme form, the capital sentencing tria! will be a forum
for pandering, be it subtle or flagrant, to the most in-
sidious social prejudices.
IV. THE JUSTIFICATIONS ADVANCED FOR OVER-
RULING BOOTH AND GATHERS SHOULD BE
REJECTED.
It is, we believe, self-evident that unforeseeable victim
impact information is not relevant to show an offender's
state of mind, character, or propensity for future dan-
gerousness. Those who dissented in Booth and Gathers
have nevertheless indicated that the use of such informa-
tion may be constitutionally permissible because:
(1) The unforeseeable consequences of an offense com-
prise part of the offender’s “blameworthiness,” Booth v.
Maryland, 482 U.S. at 515-16 (White, J., dissenting) ; id.
at 519 (Sealia, J., dissenting) ; South Carocina v. Gathers,
490 U.S. at 817-18 (O’Connor, J., dissenting); and, by
considering unforeseeable victim impact information in
this fashion, the sentencer implements society’s legitimate
interest in retribution, Booth v. Maryland, 482 U.S. at
515 (White, J., dissenting); South Carolina v. Gathers,
490 U.S. at 819-20 (O’Connor, J., dissenting) ;
(2) The law, in other contexts, makes punishment de-
pendent upon the unforeseeable consequences of the of-
fense, Booth v. Maryland, 482 U.S. at 516-17 (White, J.,
dissenting) ; id. at 519-20 (Scalia, J., dissenting) ; South
Carolina v. Gathers, 490 U.S. at 819 (O’Connor, J., dis-
senting) ; and
(3) Such information is needed to counter mitigating
evidence offered by the defendant, Booth v. Maryland,
482 U.S. at 518 (White, J., dissenting); id. at 520
25
(Scalia, J., dissenting) ; South Carolina v. Gathers, 490
U.S. at 820-21 (O’Connor, J., dissenting).
In the next three subsections, we explain that these
proffered justifications for permitting a state to use un-
foreseeable victim impact information should be rejected.
A. Victim impact information of the type challenged
here not only fails to promote, but actually under-
mines, the penological objective of retribution.
Retribution is a valid penological basis for authorizing
the imposition of the death penalty in certain types of
homicide. South Carolina v. Gathers, 490 U.S. at 818
(O’Connor, J., dissenting). “‘|T]he decision that capital
punishment may be the appropriate sanction in extreme
cases is an expression of the community’s belief that cer-
tain crimes are themselves so grievous an affront to hu-
manity that the only adequate response may be the pen-
alty of death.’” Booth v. Maryland, 482 U.S. at 515
(White, J., dissenting), quoting Gregg v. Georgia, 428
U.S. 153, 184 (1976) (joint opinion of Stewart, Powell,
and Stevens, J.J.).
A legisiature invokes retribution by declaring that the
execution of the offender is a permissible, though not
mandatory, response to the commission of certain classes
of offenses (i.e., homicides with one or more aggravating
factors present). In any given case, the sentencer,
clothed with the legislative authorization, implements
retribution by considering the defendant’s state of mind,
character, and propensity for future dangerousness and
then deciding the appropriate punishment. Consideration
of the victim’s status, his survivors’ grief, or his sur-
vivors’ opinions on whether the defendant should be
executed is in no way essential to the sentencer’s imple-
mentation of retribution.
Though retribution can be implemented without the
sentencer’s having to consider Booth-condemned victim
impact information, the question that the Court must
26
decide is whether a state may allow the use of such in-
formation in a capital sentencing trial. As explained in
section C, immediately supra, Booth, relying on earlier
Eighth Amendment decisions, answers this question in
the negative. Stated succinctly, the use of such informa-
tion prevents the sentencer from making the requisite
reasoned moral judgment, Booth at 505, and creates an
arbitrary classification that affords no principled basis
for distinguishing the cases in which the death penalty
is, and is not, imposed. Jd. at 505-06. Retribution thus
cannot serve as a license for making distinctions based
on the perceived worth of victims. As Justice Powell
explained: “We are troubled by the implication that
defendants whose victims were assets to their community
are more deserving of punishment than those whose vic-
tims are perceived to be less worthy. Of course, our sys-
tem of justice does not tolerate such distinctions.” Booth
v. Maryland, 482 U.S. at 506 n.8 (citation omitted) .’
Justice Powell’s reasoning is essential to preserving the
principle, announced in previous decisions, that retribu-
tion is consistent with the Eighth Amendment’s respect
for the “dignity of men,” see Gregg v. Georgia, 428 U.S.
at 183 (opinion of Stewart, Powell, and Stevens, J.J.) 5
Thompson v. Oklahoma, 487 U.S. 815, 836 (1988). His
analysis recognizes retribution’s affirmation of the pre-
ciousness of life, without simultaneously allowing retri-
bution to be used to exalt some lives over others.
Though punishing offenders by exec: ting them ordinar-
ily is inconsistent with the Eighth Amendment’s respect
for the “dignity of men,” there are limited instances
when society’s interest in retribution allows the death
penalty. Gregg v. Georgia, 428 U.S. at 183 (Stewart,
7In those ins‘ances in which the governmen‘al interest justifies
snecial protection for certa’n classes of persons, legislators have
acted explicitly. E.¢., 18-U.S.C. $351 (prv‘ecting the lives of mem-
bers of Congress, Cabinet members, and Supreme Court Justices).
27
Powell and Stevens, J.J.). In these limited instances,
invoking retribution to execute the offender is compatible
with the dignity of men. Id.; Thompson v. Oklahoma,
487 U.S. at 836. What permits retribution to be invoked
in this fashion is society’s recognition of the preciousness
of human life—that is, a recognition that each life is so
precious that its aggravated taking permits the execution
of the responsible offender. It is this affirmation of the
preciousness of all human life that makes retribution-
based execution compatible with the dignity of men. If,
however, retribution becomes a device for making com-
parative evaluations of the lives of individual victims,
then, of necessity, it no longer affirms the preciousness
of all life, and it no longer comports with the dignity of
men.
Prohibiting the use of unforeseeable victim impact in-
formation in no way prevents the sentencer from serving
as the “conscience of the community” or from expressing
society’s “moral outrage”. That function is still per-
formed when the sentencer decides whether death is war-
ranted by evidence of the defendant’s state of mind, char-
acter, and propensity for future dangerousness. By
focusing on whether the offender deserves to die for tak-
ing another life, rather than on whether the offender’s
death is satisfactory compensation for the particular vic-
tim’s life, the sentencer serves retribution’s objective of
affirming the preciousness of all life.
The essential lesson of Booth and Gathers is that the
brutal, cold blooded murder of a lonely prostitute is every
bit as heinous as the similar killing of a hard working,
loving mother. That the Eighth Amendment must ac-
commodate this view of humanity is hardly a bad thing.
It will ensure that prosecutors, in their efforts to vindi-
cate society’s valid interest in retribution, will appeal to
the sentencer’s reason by focusing on what the defendant
did, why he did it, the manner in which he did it, and
the kind of person he is. The prosecutor will be called
28
upon to assume that the sentencer will regard all life as
precious and will believe that the less exalted members
of our society are just as entitled to protection and jus-
tice as are others.
That the holdings of Booth and Gathers do not impede
prosecutors from vindicating society’s interest in retribu-
tion warrants further emphasis. The prosecution will al-
ways be entitled to introduce during the guilt phase evi-
dence of the victim’s characteristics relevant to the issues
raised in that proceeding. Furthermore, during the sen-
tencing phase, the prosecution will be permitted to prove
the defendant’s knowledge of both the victim’s character-
istics and his survivors and to ask the sentencer to make
whatever inferences the record will legitimately support
concerning the defendant’s awareness of the probable con-
sequences of his offense. Booth v. Maryland, 482 U.S. at
505.
While we are convinced of the logic and correctness of
our position, it would nonetheless amount to folly on our
part if we failed to recognize that some members of the
Court may not accept our reasoning. We hasten to ob-
serve, therefore, that, even if one assumes arguendo that
retribution may be invoked to justify the sentencer’s con-
sideration of unforeseeable victim impact information,
there is still no valid basis for allowing the sentencer to
consider the third category of information condemned in
Booth—namely, opinions and characterizations of the
defendant and of the crime.
As this case graphically illustrates, invoking a sur-
vivor’s demand for the defendant’s execution takes from
the sentencer the responsibility it, and it alone, must
exercise and diverts the sentencer from making a deci-
sion that “reflects a reasoned moral response to the de-
fendant’s background, character and crime rather than
mere sympathy or emotion.” California v. Brown, 479
U.S. at 545 (O’Connor, J., concurring) ‘emphasis orig-
inal). The fact that the prosecution concluded its initial
29
closing argument with this dramatic appeal (J.A. 12)
and its rebuttal by stabbing the exhibit, see Tennessee v.
Payne, 791 S.W.2d at 20 (J.A. 45), was hardly coinci-
dental. The prosecution plainly wanted from the jury an
emotional reaction, not a reasoned moral response. Be-
cause of the prosecution’s psychologically intimidating in-
sistence that the jury not let Nicholas down (J.A. 12),
Payne’s sentence must be set aside even if the Court
leaves intact only that part of Booth that condemns the
use of opinions and characterizations.
B. That the law, in other contexts, allows punishment
to depend upon the unforeseeable consequences of
the offender’s conduct dves not justify the use of
unforeseeable victim impact information in capital
sentencing trials.
1. Legislatures, in making distinctions among
punishments for different types of offenses, often
make presumptions that the harm caused by
the offense generally is indicative of the actor’s
intent. In those instances in which legislatures
make punishment distinctions based solely on
the harm caused by actor’s conduct, they do so
on the basis of the harm to society in general,
and not on the basis of the harm suffered by indi-
viduals in particular.
The fact that society, in other contexts, sometimes
makes punishment dependent upon the unforeseeable con-
sequences of the offense does not justify permitting a
state to declare victim impact information relevant to the
sentencing determination in a capital case. The distinc-
tion made between an attempted and a completed offense
is often invoked by those who advance this argument.
See, e.g., Booth v. Maryland, 482 U.S. at 519 (Sealia,
J., dissenting). It is worthwhile, therefore, that we
analyze this particular example.
Respectfully, we submit that this position overlooks the
utterly unknowable and indiscernible quality of human
30
intent. Of necessity, the law draws distinctions based
upon a trier of fact’s conclusions regarding a particular
actor’s intent. It is inevitable that such conclusions will
involve speculation, and the law should not be forced to
ignore this. The law may, therefore, reflect an aware-
ness of the varying degrees of certainty with which find-
ings of intent are made. That is, legislatures should
have freedom to assign severity of penalties based upon
the confidence that may fairly be placed in a finding of
intent made by the trier of fact. Legislatures thus must
be permitted to draw lines based upon their judgments
about the degree of confidence that may be had in a trier
of fact’s conclusion in any given context.
There is a plausible rational basis for a legislature’s
assigning to an unsuccessful attempt a penalty that is
less severe than that which the legislature assigns to the
completed Offense. The fact that the offense is completed
is often indicative of the actor’s intent. In many cases,
for example, the unsuccessful perpetrator may have ex-
perienced “cold feet” at the last instant or otherwise ex-
hibited some tendency reflecting a lesser state of culpabil-
ity than that possessed by the successful offender.
To be sure, there will be occasions when, as pointed out
in the dissenting opinions in Booth and Gathers, there is
no difference whatsoever between the unsuccessful and
the successful perpetrator in terms of their intent. That
is to say, there will be instances when the crime is not
completed simply because of a fortuitous development
over which the defendant had no control.* Legislatures,
however, do not enact laws for particular cases. They
must make distinctions that encompass not the particular
case, but rather the whole range of possible criminal cir-
cumstances.
8 The classic illustration of this is, of course, of course, the cold
blooded attempt to execute a victim that fails sclely because the
perpetrator’s gun misfires. Booth v. Maryland, 482 U.S. at 519.
(Sealia, J., dissenting).
31
Admittedly, legislatures, in addition to making classifi-
cations based on intent, also make distinctions based on
the harm caused by the actor’s conduct. A reckless driver
who runs a stop light and kills someone is punished more
severely than one who commits the same offense but, for-
tuitously, causes no injury. Booth v. Maryland, 482 U.S.
at 516 (White, J., dissenting); id. at 519 (Scalia, J.,
dissenting) ; South Carolina v. Gathers, 490 U.S. at 805
(O’Connor, J., dissenting). In basing punishment on the
degree of harm in this instance, however, a legislature
takes into account only the loss of life in general, and not
the worth of the victim in particular. A legislature thus
does not make the punishment more sevefe when the vic-
tim is a priest rather than, say, a prostitute.
2. The use of unforeseeable victim impact informa-
tion in non-capital cases may often be justified
by the information’s relevance to restitution.
Furthermore, the use of irrelevant information
to enhance punishment in non-capital cases sel-
dom, if ever, violates the Eighth Amendment.
The disallowance of the use of unforeseeable victim im-
pact information in capital sentencing trials should not
be viewed as inconsistent with the states’ legitimate in-
terest in using such information in non-capital proceed-
ings. To the extent that restitution is or may be required
of a defendant in a non-capital case, unforeseeable victim
impact information is undisputably relevant to the sen-
tencing decision. Death, however, is in no way, shape or
form a means of restitution. It is instead the ultimate
penalty exacted for the most grievous of affronts to so-
ciety. The basis for making unforeseeable victim impact
information relevant in a non-capital case is, therefore,
absent in a capital proceeding.”
*In the view of sentencing judges, victim impact statements are
most beneficial, not surprisingly, because of the information they
provide on the physical impact of the crime. Hillenbrand & Smith,
Victims Rights Legislation: An Assessment of Its Impact on Crimi-
32
There are, of course, instances when victim impact in-
formation is used in non-capital cases not to impose resti-
tution, but solely to enhance punishment. Even so, this
use of victim impact information will seldom, if ever, vio-
late the Eighth Amendment.
The maximum penalty for non-capital offenses is al-
most always within the range of proportionate punish-
ment allowed by the Eighth Amendment. It necessarily
follows, therefore, that the decision on where to place an
offender’s sentence within the statutorily permissible
range will also not invoke the Eighth Amendment. Even
if the non-capital sentencing decision is based on irrele-
vant evidence, no Eighth Amendment violation will have
occurred, since the imposition of even the maximum sen-
tence would not have contravened that amendment. At
most, an erroneous evidentiary ruling will have been
made, and, of course, the Constitution does not exist to
cure every such mistake.
In capital cases, though, the situation is altogether dif-
ferent. A death sentence based on irrelevant, prejudicial
information always invokes the Eighth Amendment be-
cause of the risk that death is being imposed for the
wrong reasons. See Caldwell v. Mississippi, 472 U.S. 320
(1985) (death sentence reversed because of risk that
jury believed it was not making final determination) :
Gardner v. Florida, 430 U.S. 349, 364 (1977) (White.
J., concurring) (reversing death sentence imposed after
sentencing judge considered confidential information not
provided to defendant). Given death’s finality, a death
sentence imposed for impermissible reasons, or in spite
nal Justice Practitioners and Victims, 1989 A.B.A. Sec. Crim. Just.
71. After this, however, judges find that victim impact statements
are most helpful in imposing restitution. Jd. Hillenbrand and Smith
thus conclude that the most dramatic consequence of using victim
impact statements in non-capital cases is its effect on restitution. /d.
at 71, 103, 123. “Clearly, the greatest impact from the judges’ per-
spective relates to restitution—both the number of orders issued
and the size of those orders.” /d. at 71.
33
of factors that may call for a less severe penalty, is, by
definition, disproportionate. Sce id. ; Lockett v. Ohio, 438
U.S. 586, 605; Eddings v. Oklahoma, 455 U.S. at 119
(O’Connor, J., concurring). A death sentence based on
irrelevant prejudicial information thus cannot be toler-
ated under the Eighth Amendment, even though a sen-
tence based on irrelevant evidence in a non-capital case
very rarely invokes that amendment.
C. The use of unforeseeable victim impact information
in a capital sentencing trial cannot be justified on
the grounds that it is relevant to rebut mitigating
evidence offered by the defendant.
The capital sentencer must focus on the offender’s
state of mind, character, and propensity for future dan-
gerousness. Mitigating evidence on these particular as-
pects is relevant to the sentencing determination, because
it _ the decision on whether the offender should live
or die.
It has been stated that, since the defendant may intro-
duce all available, relevant mitigating evidence, unfore-
seeable victim impact information is relevant to counter
the defendant’s proof. Booth v. Maryland, 482 U.S. at 517
(White, J., dissenting); id. at 520 ( Scalia, J., dissent-
ing); South Carolina v. Gathers, 490 U.S. at 820-21
(O’Connor, J., dissenting); Tennessee y. Payne, 791
S.W.2d at 19. There is, however, no symmetry between
these two categories of evidence. The former bears di-
rectly on whether the offender’s state of mind, character,
and propensity for future dangerousness warrant execu-
” We believe that the Constitution permits a state to limit the
type of “mitigating” evidence that a defendant may offer in a
capital sentencing trial. If the mitigating evicence does not assist
the decision on whether the defendant's state of mind, character,
or propensity for future dangerousness warrants execution, it may
be excluded as irrelevant. Cf. Lockett v. Ohio, 488 U.S. at 608 (“To
meet constitutional requirements, a death penalty statute must not
preclude consideration of relevant mitigating factors”) (emphasis
added ) .
34
tion. The latter merely reveals the unforeseeable conse-
quences of the offense.
Far from having its “hands tied”, the prosecution may
counter the defendant’s mitigating evidence through the
cross-examination of defense witnesses, the introduction
of its own proof bearing on relevant factors, and the use
of appropriate arguments. Rather than constituting an
attempt to rebut the offender’s mitiyating evidence, the
use of unforeseeable victim impact information is an ef-
fort to inject into the capital sentencing trial altogether
different factors that do not prove the offender’s state of
mind, character, ov future dangerousness.
V. THE STATE’S USE OF VICTIM IMPACT EVI-
DENCE DID NOT CONSTITUTE HARMLESS
ERROR.
In order to show that the constitutional error involved
here was harmless, the State must demonstrate that the
use of the Booth-prohibited evidence and arguments was
harmless beyond a reasonable doubt. Chapman v. Cali-
fornia, 386 U.S. 18, 24 (1967); Satterwhite v. Texas,
486 U.S. 249, 256 (1988). The Tennessee Supreme Court
erroneously concluded that the State has met this burden.
The crimes in this case were, of course, brutal and
shocking. Apart from that fact, however, the State had
nothing to support the imposition of death other than the
Booth-violative victim impact information, the gruesome
color video tape that even the trial judge intimated was
too inflammatory to introduce during the guilt phase (T.
1493-94), and the theatrics with which the prosecution
improperly concluded its final argument. See Tennessee
v. Payne, 791 S.W.2d at 20 (J.A. 45).
Payne is not the typical “two time loser” who cold
bloodedly executed a robbery victim. He was, at the time
of these crimes, a twenty year old mentally handicapped
laborer, with no prior record. He was described at trial
by a clinical psychologist as one of the most polite prison-
oe
35
ers he had ever interviewed (T. 1530). The State did not
introduce any evidence of disciplinary problems or aca-
demic misconduct. Nor did it seek to show any clinical
evaluation or otherwise attempt to demonstrate any pro-
pensity for future dangerousness. The only explanation
for these horrible killings consistent with the jury’s find-
ings is that Payne “snapped” under the influence of in-
jected cocaine.
Payne was tried under a statute," and pursuant to
jury instructions (J.A. 21,22), that required him, in
order to save his life, to convince the jury that the miti-
gating evidence outweighed the aggravating circum-
stances. The State relied heavily on the Booth-condemned
evidence and arguments to overcome Payne’s mitigating
evidence. This, of course, made his burden especially
onerous. The erroneous use of this information was not
harmless beyond a reasonable doubt.
CONCLUSION
For the reasons stated herein, Petitioner respectfully
submits that the Court’s decisions in Booth and Gathers
should not be overruled; that the Court should determine
that the State’s use of unforeseeable victim impact in-
formation violated his rights under the Eighth and Four-
teenth Amendments to the United States Constitution;
that his death sentence should be set aside; and that this
case should be remanded for proceedings not inconsistent
with the Court’s judgment.
}
Respectfully submitted,
J. BROOKE LATHRAM *
LEs JONES
130 North Court Avenue
Memphis, Tennessee 38103
(901) 523-2311
* Counsel of Record Counsel for Petitioner
'! See, supra note 1.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.