Respondents Brief — Payne v. Tennessee

Supreme Court brief1991

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QUESTIONS PRESENTED

I. Whether this Court should overrule Booth v.

Maryland and South Carolina v. Gathers to the extent that

they prohibit a state from permitting consideration of

evidence of victim impact in a capital sentencing proceed-

ing?

II. Whether the death sentence in this case should

be upheld even if Booth and Gathers are not overruled

because any violation of the principles of Booth and

Gathers was harmless beyond a reasonable doubt?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......cccccscscuavetecseeen i

TABLE OF AUTHORITIOS ....ccscsseckssaeneneeeee iv

STATEMENT OF THE CAGE... «. 000: sscnsacusuuens 1

SUMMARY OF ARGUMENT... .00<sscsssceesseunen 11

ARGUMENT ......0s0scceccceecsees b enn Ene 15

1. THIS COURT SHOULD OVERRULE BOOTH V.

MARYLAND AND SOUTH CAROLINA V.

GATHERS TO THE EXTENT THAT THEY PRO-

HIBIT A STATE FROM PERMITTING CONSID-

ERATION OF EVIDENCE OF VICTIM IMPACT

IN CAPITAL SENTENCING PROCEEDINGS... 15

A. Introduction. ....ccccsséccebesenee 15

B. Evidence of the full range of harm to society

and to the victim’s family is relevant to the

capital sentencing decision................. 19

C. Evidence regarding the victim’s character

may be relevant and does not always violate

the Constitution.......scccessseceseuneeeeen 36

D. There is no constitutional requirement that

there be an absolute bar on admission of the

opinions of victims’ families as to sen-

E. The doctrine of stare decisis does not preclude

overruling Booth and Gathers............... 42

ili

TABLE OF CONTENTS - Continued

Page

Il. THE DEATH SENTENCE IN THIS CASE

SHOULD BE UPHELD EVEN IF BOOTH AND

GATHERS ARE NOT OVERRULED BECAUSE

ANY VIOLATION OF THE PRINCIPLES OF

BOOTH AND GATHERS IS HARMLESS

BEYOND A REASONABLE DOUBT ........... 47

ee cece ccasnccceveveeces 49

TABLE OF AUTHORITIES

Page

Cases CITED

Booth v. Maryland, 482 U.S. 496 (1987)........... passim

Byrne v. Butler, 845 F.2d 501 (5th Cir. 1988).......... 45

Caldwell v. Mississippi, 472 U.S. 320 (1985)........ 40, 41

California v. Ramos, 463 U.S. 992 (1983)....... 16, 28, 46

Chapman v. California, 386 U.S. 18 (1967) ............ 17

Coker v. Georgia, 433 U.S. 584 (1977). ...........0445. 20

Darden v. Wainwright, 477 U.S. 168 (1986) ........ 41, 42

Donnelly v. DeChristoforo, 416 U.S. 637 (1974)..... 41, 42

Enmund v. Florida, 458 U.S. 782 (1982)........ 19, 20, 31

Furman v. Georgia, 408 U.S. 238 (1972)........... passim

Garcia v. Metro. Transit Authority, 469 U.S. 528

sO TPETT PPE TCE oT errr ee TEL eth e 46

Gore v. United States, 357 U.S. 386 (1958)......... 16, 46

Gregg v. Georgia, 428 U.S. 153 (1976) . 16, 19, 22, 23, 24, 39

Seomae w.. Tem: GD WE. SE GEN oo wr ccsvcccersuscuss 29

Lockett v. Ohio, 438 U.S. 586 (1978)..............545. 24

McCleskey v. Kemp, 481 U.S. 279 (1987) .............. 38

Michigan v. Long, 463 U.S. 1032 (1983)............... 17

Mills v. Maryland, 486 U.S. 367 (1988)............... 37

People v. Clark, 789 P.2d 127 (Cal. 1990) .......... 34, 44

People v. Kelly, 800 P.2d 516 (Cal. 1990).............. 45

TABLE OF AUTHORITIES - Continued

Page

Roberts v. Louisiana, 428 U.S. 325 (1976) ............. 18

Satterwhite v. Texas, 486 U.S. 249 (1988).............. 48

Skipper v. South Carolina, 476 U.S. 1 (1986) ...19, 24, 29

South Carolina v. Gathers, 490 U.S. 805 (1989) .... passim

Spaziano v. Florida, 468 U.S. 459 (1984) ........... 23, 27

State v. Alley, 776 S.W.2d 506 (Tenn. 1989)........... 17

State v. Boyd, 797 S.W.2d 589 (Tenn. 1990)........... 44

State v. Huertas, 553 N.E.2d 1058 (Ohio 1990)........ 44

State v. Payne, 791 S.W.2d 10 (Tenn. 1990)........ 25, 47

Thornburgh v. American College of Obstetricians &

Gynecologists, 476 U.S. 747 (1986) ................. 29

Tison v. Arizona, 481 U.S. 137 (1987).............. 31, 39

United States v. Jenkins, 420 U.S. 358 (1975).......... 42

United States v. Scott, 437 U.S. 82 (1978).......... 42, 43

Woodson v. North Carolina, 428 U.S. 280 (1976)

ER ep eects ne eg eae ee 16, 19, 27, 28

Zant v. Stephens, 462 U.S. 862 (1983) ..... 18, 22, 24, 35

STATUTES

Tenn. Code Ann. § 39-2-203(i)(1)..............0.005. 37

Tenn. Code Ann. § 39-2-203(i)(9).......0...000000005. 37

TABLE OF AUTHORITIES - Continued

Page

OTHER AUTHORITIES

Fed. R. Evid. 404(a)(2)...........eeeeeeeeeeeeneee 35, 36

Peterson and Seligman, Learned Helplessness & Vic-

timization, J. Soc. Issues (No. 2) 103 (1983)........ 39

Rute S60), Gomes. BR. Age. PB. 22... cscccccicsesvecsess 17

No. 90-5721

In The

Supreme Court of the United States

October Term, 1990

PERVIS TYRONE PAYNE,

Petitioner,

vs.

STATE OF TENNESSEE,

Respondent.

On Writ Of Certiorari To The

Supreme Court Of Tennessee

BRIEF OF RESPONDENT

STATEMENT OF THE CASE

Petitioner, Pervis Tyrone Payne, was tried by a jury in

the Criminal Court for Shelby County, Tennessee, on two

counts of murder in the first degree of Charisse A. Chris-

topher and Lacie Jo Christopher, respectively, and one

count of assault with intent to commit first-degree mur-

der on Nicholas A. Christopher. The trial commenced on

February 9, 1988, and on February 16, 1988, the jury

returned a verdict finding the defendant guilty on all

counts. Following a sentencing hearing, the jury unani-

mously found beyond a reasonable doubt the following

Statutory aggravating circumstances applicable to both

murder victims, Charisse and Lacie Jo: (1) The defendant

knowingly created a great risk of death to two or more

persons other than the victim murdered during his act of

murder, and (2) the murder was especially heinous, atro-

cious, or cruel in that it involved torture or depravity of

mind. Tenn. Code Ann. § 39-2-203(i)(3) and (5). With

regard to the murder of Lacie Jo, the jury additionally

found that the murder was committed against a person

less than 12 years of age, and the defendant was 18 years

of age or older. Tenn. Code Amn. § 39-2-203(i)(1). The jury

found no mitigating circumstances sufficient to outweigh

the aggravating circumstances and imposed two death

sentences. As required by statute, each juror attested to

their verdict by signing their names to the verdict form.

Tenn. Code Ann. § 39-2-203(f). The trial judge sentenced

the petitioner to thirty years for the assault.

On April 16, 1990, upon automatic, direct review

pursuant to Tenn. Code Ann. § 39-2-205(a), the Supreme

Court of Tennessee affirmed petitioner’s convictions and

sentences. In upholding the petitioner’s sentence of

death, the Supreme Court of Tennessee was required to

determine (1) whether the sentence was imposed in an

arbitrary fashion, (2) whether the evidence supported the

jury’s findings of the aggravating circumstances and the

absence of mitigating circumstances sufficient to out-

weigh the aggravating circumstances and (3) whether the

sentence of death is excessive or disproportionate to the

penalty in other cases, given the nature of the crime and

the defendant. Tenn. Code Ann. § 39-2-205(c)(1), (2), (3)

and (4). By order of February 15, 1991, this Court issued a

writ of certiorari and, on February 19, 1991, the Court

issued an amended writ of certiorari.

A. Trial: Guilt Phase

On the afternoon of June 27, 1987, Nancy Wilson, the

resident manager of the apartment building where Char-

isse Christopher lived and who resided in the apartment

directly beneath the Christophers, heard 28-year-old

Charisse screaming, “Get out, get out,” as if she were

telling the children to leave. The noise briefly subsided

and then began again and was “terribly loud, horribly

loud.” The resident manager called the police, saying she

heard a blood-curdling scream from the upstairs apart-

ment where Charisse Christopher lived. (R., XI, 631-34).

Laura Picard, visiting her sister who lived in the apart-

ment building, was sunbathing by the pool when she

heard a noise like a person moaning. She heard a door

pbanging and saw the back door to the victims’ apartment

slam open and shut three or four times. A dark-colored

hand, with a gold watch on the wrist, protruded out the

back door and kept trying to slam the door. (R., XI,

606-09).

The first officer on the scene saw a man standing on

the second floor landing of the apartment. He came

through the front door of the building carrying an over-

night bag and a pair of tennis shoes and he had “blood all

over him. It looked like he was sweating blood,” accord-

ing to the officer. The officer thought he was responding

to a domestic call. He inquired of the man, later identified

as the petitioner, how he was doing because he suspected

the man had been injured. The petitioner responded, “I’m

-o-

“*

the complainant.” When the officer asked what was going

on upstairs, the petitioner struck the officer with the

overnight bag and began to run. (R., XII, 671-72).

When officers opened Charisse Christopher’s apart-

ment, they found blood everywhere. Charisse Christo-

pher was on the floor in the kitchen. Lacie Christopher,

two and one-half years old, was lying on the floor on her

stomach. (R., XII, 676-77, 739). A baseball cap, later iden-

tified as belonging to the petitioner, was snapped on her

arm near her elbow. A bloody butcher knife lay at her

feet. (R., XII, 699-701). Paramedics quickly determined

that Charisse and Lacie were dead. (R., XII, 739-42).

Nicholas Christopher, three and one-half years old, was

lying on the floor and was still breathing despite multiple

knife wounds all over his body. One deep laceration of

his abdomen caused his intestines to protrude out of the

wound and onto the floor. Nicholas’ eyes were wide open

and he was still breathing. When one of the officers

touched the boy, Nicholas started to move his arms and

legs. On the way to the hospital, Nicholas held a wet pack

to his protruding intestines to keep them moist. (R., XII,

749, 774-83). The officers at the scene collected various

items of evidence, including the butcher knife, which was

determined to be the murder weapon. (R., XII, 744-45).

The petitioner was subsequently located in the attic

of a nearby apartment. He had blood on his body and

three or four scratches across his chest. He was sweating

and had trouble catching his breath. As he came down

from the attic, he said to the officers, “Man, I ain’t killed

no woman.” His pupils were contracted and he was

foaming at the mouth. A packet was removed from his

pockets which later tested to be cocaine. The police also

found a syringe wrapper and an orange cap from a hypo-

dermic syringe. (R., VIII, 884-89). The overnight bag that

the petitioner used to strike the officer was found in a

dumpster in the area and it contained a bloody white

shirt, among other items of clothing. (R., XIII, 940-42).

When walking to the patrol car, the petitioner repeatedly

stated, “It happened too fast.” (R., XIII, 904-05). At the

police station, officers removed a gold watch from the

petitioner’s person. (R., XIII, 906-07).

Charisse Christopher sustained forty-two knife

wounds to her chest and abdomen and forty-two defen-

sive wounds on her arms and hands, representing forty-

one separate thrusts or stabbings. None of the wounds

penetrated a large vessel and the cause of death was

bleeding from all the wounds. Thirteen of the wounds

were very serious and could have caused death by them-

selves. (R., XI, 481-86, 493-94). Charisse Christopher was

menstruating and a used tampon was found by her body.

(R., XI, 489-90; XII, 680). A specimen from her vagina

tested positive for acid phosphatase, a result consistent

with the presence of semen, but not conclusive absent

sperm. No sperm was found. (R., XI, 489-90).

Lacie Christopher’s death was also caused by multi-

ple stab wounds to the chest, abdomen, back and head.

There were a total of nine stab wounds. One of the

wounds cut the aorta and would have been fatal. (R., XI,

490-92). Nicholas’ wounds required seven hours of sur-

gery during which he required seven units of blood,

representing complete replacement of his blood. (R., XIII,

827-28). The most severe wound to Nicholas was in his

abdominal area where the knife had pierced him from the

front to the back. The stabbing had lacerated his stomach,

pierced holes in his abdominal muscle, small and large

intestines, and colon and had entered his spleen, liver,

and venae cava. Nicholas also sustained knife wounds to

his neck, legs, hands, arms, and chest. (R., XIII, 816-18,

822-27).

Evidence introduced at trial established that blood of

the same type as that of Charisse and Lacie was found on

the petitioner’s shirt, tennis shoes and overnight bag. (R.,

XIV, 1083-85). Blood of the same type as Nicholas was

found on the pants the petitioner was wearing when

arrested. (R., XIV, 1081-82). Human blood stains were

found on the petitioner’s wristwatch but there was not

enough to conduct a blood-typing test. (R., XIV, 1082-83).

Three beer cans, two unopened, were found in the vic-

tim’s apartment. Tests established that the petitioner's

fingerprints were on them. The petitioner’s fingerprints

were also found on the telephone and counter in the

kitchen. (R., XIV, 1066-68).

In his defense, the petitioner claimed that he did not

harm Charisse, Lacie or Nicholas. He maintained that he

saw a black man come down the inside stairs and run by

him. He said he heard a baby crying for help when he

reached the landing and saw that the door was ajar. He

maintained that he entered the apartment and pulled the

knife out of Charisse’s neck. He testified that the boy was

on his knees crying and that he told Nicholas not to cry,

that he was going to get help. He maintained that he got

the blood on his clothing and body when he pulled the

knife out of Charisse’s neck. He said, “She reached up

and grab me and hold me, like she was wanting me to

help her... . ” He went to get some water when he

thought he was going to vomit and then left to “bang” on

some doors to get help but when he saw the police officer

he panicked. According to petitioner’s story, Charisse

was still alive and able to speak when he left the apart-

ment. (R., XV, 1215-34). On cross-examination, when

asked to explain how he got blood stains on his left leg,

he said it probably occurred when Charisse hit the wall

and “splashed,” although he then denied so testifying.

(R., XVI, 1278-80). There was blood smeared on one of the

walls and on the back door from the floor up to a height

of approximately six or seven feet. (R., XIII, 927-42).

The petitioner presented five character witnesses

who testified regarding his good reputation for truth and

veracity. (R., XVI, 1320-31).

B. Trial: Sentencing Phase

At the sentencing phase, the state specifically incor-

porated by reference all of the evidence introduced dur-

ing the guilt phase. The state also presented two

witnesses: Mary Zvolanek, who was Charisse’s mother,

and a detective from the police department. Her testi-

mony was as follows:

Q: Ms. Zvolanek, how has the murder of

Nicholas’s mother and sister affected him?

A: He cries for his mom. He doesn’t seem to

understand 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, Grandmama, do you miss my Lacie.

And I tell him yes. He says, I’m worried

about my Lacie.

(A. 2-3).

Nicholas, the child referred to in this testimony, is the

same child who petitioner attacked along with Charisse

and Lacie. Petitioner was found guilty of assault with

intent to commit murder for his attack on Nicholas and

was sentenced to thirty years’ imprisonment.

Detective Wilson presented two minutes of a video

tape that was made at the crime scene which depicted the

bodies of Lacie and Charisse before they were removed.

(XVIII, 1505-06).

The petitioner presented the testimony of his girl-

friend, his mother, his father, and a doctor. His girlfriend,

Bobbie Thomas, testified that she had a troubled marriage

and that the defendant was a very caring person and that

the time he had devoted to her children had helped them.

She testified that the petitioner loved her children just as

if he was their father and that her children still ask about

the petitioner. (R., XVIII, 1508-11).

Petitioner’s mother and father testified that peti-

tioner had no prior criminal record, had no history of

alcohol or drug abuse, worked in his father’s business as

a painter, was a good worker, was good to children, and

was generally a good son. (R., XVIII, 1557-71).

Dr. Hutson, a clinical psychologist, testified that the

petitioner tested one standard deviation below the norm

of average intelligence. A test further indicated that he

scored above normal in the area of schizophrenia; he

“was moving toward psychotic”, but it was his opinion

that the petiticner was neither psychotic, nor schizo-

phrenic. (R., XVIII, 1515-30).

After the proof concluded at the sentencing hearing,

the prosecutor argued, in part, during initial argument:

But we know that Nicholas was alive. And

Nicholas was in the same room. Nicholas was

still conscious. His eyes were open. He

responded to the paramedics. He was able to

follow their directions. He was able to hold his

intestines in as he was carried to the ambulance.

So he knew what happened to his mother and

his baby sister.

Is that heinous? Is that atrocious? Is it cruel?

Can you think of anything more torturous than

that? Is there anything more outrageous than

that? The imagination cannot even think of any-

thing worse than that.

(A. 9).

He continued:

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 some-

thing you can do for Nicholas.

Somewhere down the road Nicholas is

going to grow up, hopefully. He’s going to not

want to know what happened. And he’s going

to know what happened to his baby sister and

his mother. He is going to want to know what

(A.

type of justice was done. He is going to want to

know what happened. With your verdict you

will provide the answer.

12).

In her rebuttal argument, the prosecutor said:

... 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. (A. 14).

* * *

Mr. Garts wants you to think about a good

reputation, people who love the defendant and

things about him. He doesn’t want you to think

about the people who loved Charisse Christo-

pher, her mother and daddy who love her. The

people who loved little Lacie Jo, the grand-

parents who are sti!l 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 burden that that child will carry

forever. (A. 15-16).

* * *

Mr. Garts says but 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 exem-

plary lives. But they are not here with us any-

more. You have to weigh what has happened.

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 Char-

isse Christopher, 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. Did they deserve it? Are you going

to let it go unpunished?

(A. 17).

The Tennessee Supreme Court held that the testi-

mony of Nicholas’ grandmother did not create an unac-

ceptable risk of the arbitrary imposition of the death

penalty and was harmless beyond a reasonable doubt. It

further found that the prosecutor’s argument did not

constitute error. (A. 40-43).

SUMMARY OF ARGUMENT

This case is an appropriate one for the Court to

reconsider the overly inclusive and overly constrictive

rules promulgated in Booth v. Maryland and South Carolina

v. Gathers. In this case, the petitioner complains about

introduction of proof under all three of the principal

classifications of victim impact evidence: (1) harm to the

victim and the victim’s family, (2) characteristics of the

victim, and (3) opinion of the victim’s family as to sen-

tence. Each type of victim impact evidence warrants an

independent analysis.

The first type of victim impact evidence, that of harm

to society and to the victim’s family, is relevant to the

sentencing decision in capital cases because it informs the

jury of the defendant’s personal responsibility. Two

underlying reasons support allowing a jury to consider

the defendant’s personal responsibility for the full extent

of the harm his act caused. First, evidence of the effect of

a murderer’s act upon society is crucial to society’s legiti-

mate need to exact retribution and accord a full measure

of punishment for all of the harm caused. Second, allow-

ing consideration of the full range of harm caused by a

defendant's intentional criminal conduct is necessary for

the sentencer to make a fully informed and particularized

moral decision in each case. Additionally, the holding in

Booth that only those acts which are relevant to the defen-

dant’s mental state may be admitted during the sentenc-

ing phase results in an unworkable rule of law. Booth and

Gathers thus present a major distortion in the Court’s

constitutional jurisprudence and should be overruled.

Notwithstanding the proposition that victim impact

evidence should be admitted as relevant to the defen-

dant’s personal responsibility, such evidence should also

be admissible where it establishes moral culpability. The

Court’s conclusion in Booth that such evidence never

speaks to blameworthiness results from a needlessly

restricted definition of the term. A defendant is morally

culpable for all of the harm which should have been

“reasonably anticipated”. What may be “reasonably

anticipated” depends upon (1) the defendant’s awareness

of particular circumstances of the crime or the victim’s

life or (2) that which falls within the range of possible

consequences of crime drawn from human and societal

experience. Harm which should have been reasonably

anticipated constitutes a mental state that should be

taken into account in capital cases. Evidence of such harm

serves to inform the sentencer of the defendant’s moral

culpability and is in fact highly relevant to the moral

judgment which must be exercised by the jury in impos-

ing sentence.

If this Court decides that evidence of harm should not

be independently admitted on the basis of either personal

responsibility or moral culpability, Booth should still be over-

ruled because it fails to acknowledge that there are other

ways that such evidence may be admitted. In this case, for

example, much of the victim impact testimony was intert-

wined with proof of the crime itself. In many instances, such

proof will be admitted during the guilt/innocence phase. It

creates an anomaly to permit the evidence to be introduced

during the guilt/innocence phase but to prevent references

to it during the sentencing phase since the same jury must

make their determination as to sentence based on the cir-

cumstances of the crime as well as the characteristics of the

defendant.

The second type of victim evidence, that regarding

the characteristics of the victim, also can be relevant to

the decision of the jury in capital cases. The decisions in

Booth and Gathers fail to acknowledge the many ways that

such evidence may come to the attention of the jury. In

many cases, such proof will be properly admitted as part

of the circumstances of the crime or as part of the harm

caused to society or the victim’s family! It may also be

admitted to establish a particular aggravating circum-

stance. Introduction of such evidence does not violate the

Constitution. Moreover, proof about the victim’s charac-

teristics should also be admissible in order to remind the

jury that the victim was a unique individual. Rather than

barring evidence when it is offered to paint a “thumbnail

sketch” of the victim, the Court should find that evidence

about the victim’s characteristics is admissible so long as

such evidence does not tend to suggest an impermissible

basis for decision, such as race, and so long as the focus

of the jury is not shifted to a weighing of the merits of the

defendant's life against the life of the victim.

Similarly, Booth erroneously concludes that introduc-

tion of the third type of victim impact evidence, opinion

of the victim’s family as to the appropriate sentence,

always constitutes a constitutional violation. It further

fails to acknowledge that the expression of opinion by the

victim’s family can help to ameliorate feelings of help-

lessness and lack of control and channelize their desire

for retribution. So long as the manner of expression does

not lead a jury to believe that the decision is not theirs to

make, no constitutional violation should occur.

The doctrine of stare decisis does not preclude over-

ruling these cases. While stare decisis is the general rule in

our system and serves imporiant functions, this Court is

generally more willing to overrule prior law when the

erroneous holding involves a constitutional principle

because legislative correction is impossible. Further, a

restrictive constitutional decision often interferes, as it

does here, with democratic self-governance, warranting

flexibility in reconsidering prior decisions. Specifically,

the rules promulgated in Booth and Gathers should be

overruled because, among other things, (a) they produce

confusion in application; (b) they rest on a mistaken

practical assessment of the need for a prophylactic rule

broader than any legitimate constitutional command; and

with the Constitution or other decisions of this Court.

Finally, the Court’s willingness to bow to the “force of

better reasoning” is especially important in capital cases

which purport to reflect “an evolving standard of

decency”.

In any event, even if this Court determines that Booth

should not be overruled, the death sentence in this case

should be affirmed. As the Supreme Court of Tennessee

found, the heinous nature of the crime petitioner commit-

ted was so great that the sentence of death was the “only

rational punishment available.” Thus, any error was

harmless beyond a reasonable doubt.

ARGUMENT

I. THIS COURT SHOULD OVERRULE BOOTH V.

MARYLAND AND SOUTH CAROLINA V. GATHERS

TO THE EXTENT THAT THEY PROHIBIT A STATE

FROM PERMITTING CONSIDERATION OF EVI-

DENCE OF VICTIM IMPACT IN CAPITAL SEN-

TENCING PROCEEDINGS.

A. Introduction

This case represents the fourth time in four years that

the admissibility of victim impact evidence has been

addressed by this Court. Clearly, this Court and the states

are at best uneasy with the overly inclusive rule promul-

gated in Booth v. Maryland, 482 U.S. 496 (1987). Perhaps

part of the problem lies in the lack of recognition of the

growing demand for victim impact evidence as a

component of the “evolving standards of decency” of a

maturing society. Booth, 482 U.S. at 520 (Scalia, J., dissent-

ing). In Booth and South Carolina v. Gathers, 490 U.S. 805

(1989), the Court strayed from the fundamental principles

which traditionally have provided enlightenment on

these evolving standards. See Furman v. Georgia, 408 U.S.

238, 442-43 (1972) (Powell, J., dissenting). As observed by

the Court in Woodson v. North Carolina, 428 U.S. 280 (1976)

“[t}he two crucial indicators of evolving standards of

decency respecting imposition of punishment in our soci-

ety ...” are jury determinations and legislative enact-

ments. Id. at 293. Booth’s treatment of the actions of

thirty-six legislatures' in permitting victim impact evi-

dence in criminal trials suggests that the Court gave no

deference to the latter source, but instead substituted

their subjective values. 482 U.S. at 509 n. 12. This Court

has repeatedly cautioned against this temptation. Furman

v. Georgia, 408 U.S. at 466-67 (Rehnquist, J., dissenting);

Gregg v. Georgia, 428 U.S. 153, 173 (1976).

Also implicit in the Booth and Gathers decisions is the

Court’s abandonment of its reluctance to “dictate to the

state[s] particular substantive factors that should be rele-

vant to the capital sentencing decision.” California v.

Ramos, 463 U.S. 992, 999-1000 (1983); Gore v. United States,

357 U.S. 386, 393 (1958). The Court has departed from

these and other well-established principles of Eighth

Amendment jurisprudence due to a mistaken practical

assessment regarding the manner in which admission of

this class of evidence in capital sentencing should be

controlled. Guided by that mistaken assessment, it has

' Through 1988, forty-four states had adopted statutes

providing for victim impact information in the sentencing pro-

cess. Appendix to Brief of Amici Curiae Washington Legal

Foundation, The Reverend Dorothy Haynes, The Sunny Von-

Bu.ow National Victim Advocacy Center, The Stephanie Roper

Committee, Inc., The Crime Victims Legal Clinic, Parents of

Murdered Children, The Unity Group, Inc., and the Allied

Educational Foundation, South Carolina v. Gathers, 490 U.S. 805

(1989).

adopted a broad prophylactic rule which, though

spawned by a legitimate concern for unfair prejudice

suggested by certain aspects of this type of evidence,

Bocth, 482 U.S. at 505-08, is unsupported by any legiti-

mate constitutional demand.

This case is an appropriate one for the Court to

reconsider the overly broad and overly constrictive rules

promulgated in Booth.? It contains the three principal

classifications of victim impact evidence .ecognized in

Booth: (1) harm\to the victim and the victim’s family; (2)

2 Although the Supreme Court of Tennessee found any

error to be harmless beyond a reascnable doubt, that finding

does not constitute an adequate and independent state ground

for the decision. First, the Court’s reliance on State v. Alley, 776

S.W.2d 506 (Tenn. 1989), as precedent does not require the

conclusion that the Court was applying a state harmless error

analysis rather than one appropriate for federal constitutional

errors. Indeed, the use of the standard, “harmless beyond a

reasonable doubt,” in this case and in Alley implies a federal

constitutional analysis, and not the application of Tennessee's

harmless error provision. See Chapman v. California, 386 U.S. 18,

24 (1967). Cf. Rule 36(b), Tenn. R. App. P. (error is harmless

unless, “considering the whole record, error involving a sub-

stantial right more probably than not affected the judgment or

would result in prejudice to the judicial process”). In any

event, the citation to Alley, standing alone, falls far short of the

“plain statement” required by this Court in Michigan v. Long,

463 U.S. 1032 (1983). In the absence of such a plain statement,

this Court has held that it will accept “as the most reasonable

explanation that the state court decided the case the way it did

because it believed that federal law required it to do so.” /d. at

1041. Furthermore, even if the Supreme Court of Tennessee did

rely on state law, it is clear that it did so not on an independent

basis, but because it felt compelled to do so by this Court's

ruling in Booth.

characteristics of the victim; and (3) opinion of the victim’s

family as to sentence. Booth, 482 U.S. at 502. Further, in this

case, the circumstances of presentation suggest a use of this

evidence far below the level of concern expressed by the

majority in Booth. Petitioner’s complaint about the brief testi-

mony of Mrs. Zvolanek relating Nicholas’s psychological

problems in coming to grips with the deaths of his mother

and little sister press the outer limits of credibility. Indeed,

given the petitioner’s intent to have snuffed out the life of

this four-year-old, a result for which he clearly could have

been held fully responsible, it strains credulity for petitioner

to complain about the fortuitous circumstance that Nicholas

survived and was capable of experiencing psychological pain

and suffering.

Each type of victim impact evidence warrants inde-

pendent analysis. In undertaking this analysis, focus

must remain on the phase of the sentencing process with

which Booth and Gathers deal. This has been identified by

the Court as the selection phase,? Zant v. Stephens, 462

3 The respondent does not imply that a state’s decision to

use victim information as the basis for a statutory aggravating

circumstance necessarily creates any constitutional infirmity.

Cf., Roberts v. Louisiana, 428 U.S. 325, 332 (1976) (status of

victim as peace officer as aggravating circumstance). In fact,

many of the same arguments for allowing introduction of

victim impact evidence at the “selection phase” of a capital

sentencing proceeding also apply to the use of such evidence

in the “narrowing phase” of the proceeding. The respondent

merely wishes to point out that this case, like Booth and

Gathers, involve the “selection phase,” which means that the

Eighth Amendment's crucial requirement of statutory guidance

of sentencer discretion has already been satisfied prior to the

introduction of the victim impact evidence.

U.S. 862, 879 (1983). As this Court has observed in Zant,

once there is identified at least one statutory aggravating

factor which qualifies the defendant as death eligible, the

concerns of Furman that the penalty not be freakishly and

wantonly imposed have been met. Zant, 462 U.S. at 876 n.

14; Gregg v. Georgia, 428 U.S. 153, 206-07 (1976). After the

death eligible class has been identified, the Court has

insisted upon a broad particularized inquiry at the selec-

tion phase to insure that a person is not arbitrarily put to

death solely by the category of crime committed. Skipper

v. South Carolina, 476 U.S. 1, 13 (1986) (Powell, J., concur-

ring); Woodson v. North Carolina, 428 U.S. at 304.

B. Evidence of the full range of harm to society

and to the victim’s family is relevant to the

capital sentencing decision.

1. Evidence of harm is relevant because it

informs the jury about the level of defen-

dant’s personal responsibility.

At the most basic level, Booth and Gathers are deeply

wrong in ruling that the Constitution forbids a state to

base a capital punishment decision on the full range of

harm caused by the murderer. The entire focus of Booth is

on the defendant’s mental state (blameworthiness or

moral culpability). Booth, 482 U.S. at 504.

However, a capital jury must decide whether the

death penalty should be imposed based upon the defen-

dant’s “personal responsibility and moral guilt”. Enmund v.

Florida, 458 U.S. 782, 801 (1982) (emphasis added); Booth,

482 U.S. at 502. The extent of harm for which society

deems an individual accountable bears upon the extent of

one’s personal responsibility. Booth, 482 U.S. at 518

(Scalia, J., dissenting). Indeed the range of harm for

which one should be held accountable is essential to the

proposition of personal responsibility. Since the full range

of harm caused by a defendant is relevant to his personal

responsibility, the introduction of such evidence, uniess

otherwise constitutionally barred, is appropriate. That

punishment should depend solely on the state of a defen-

dant’s mind is a proposition which is not reflected in the

“text of the Constitution, nor in the historic practices of

our society, nor even in the opinions of this Court.” Booth,

482 U.S. at 520 (Scalia, J., dissenting). Punishment must

depend also upon a defendant’s “personal respon-

sibility”. Enmund v. Florida, 458 U.S. 782 (1982); Coker v.

Georgia, 433 U.S. 584 (1977). The present case illustrates

the departure by the Court from the traditional criminal]

law principle that the extent of harm done is a relevant

consideration in setting punishment.4

In this case, defendant acted identically as to two-

and-one-half-year-old Lacie Jo and three-and-one-half-

year-old Nicholas. He brutally stabbed both children

repeatedly. There was no difference in his mental state

toward each as he fully intended to kill them both. The

* While the Supreme Court of Tennessee deemed the testi-

mony of Mrs. Zvolanek of the effect on Nicholas to be “techni-

cally irrelevant,” (A. 40), a fair reading of the court’s opinion

leads to the inescapable conclusion that the court was simply

saying that the testimony was “technically irrelevant” under

the rule announced by this Court in Booth and not that such

information was generally irrelevant to the jury’s decision.

This distinction becomes clear when the court writes, in dis-

cussing the prosecutor’s argument related to the harm caused,

that such was “relevant to this defendant’* rersonal respon-

sibility and moral guilt.” (A. 42).

only difference lay in that fundamental margin of harm

between life and death. The harm done to Nicholas was

fortuitously less than to Lacie Jo. As to Nicholas, punish-

ment could not exceed a term of imprisonment. However,

as to Charisse and Lacie Jo, the petitioner faces death.

The respective punishments were differentiated by the

harm for which petitioner should be held individually

accountable, i.e., his “personal responsibility”. This case

presents in principle the hypothetical posed by Justice

Scalia in his dissenting opinion in Booth to demonstrate

that the extent of harm measures the level of respon-

sibility:

The Court’s opinion does not explain why a

defendant's eligibility for the death sentence can

(and always does) turn upon considerations not

relevant to his moral guilt. If a bank robber aims

his gun at a guard, pulls the trigger, and kills his

target, he may be put to death. If the gun unex-

pectedly misfires he may not. His moral guilt in

both cases is identical, but his responsibility in

the former is greater.

Jooth, 482 U.S. at 519 (Scalia, J., dissenting) (emphasis in

text).

This class of evidence does not per se violate any

constitutional provision. Before evidence of victim harm

becomes a subject of jury consideration, the class of per-

sons eligible for the death penalty has already been nar-

rowed to include the defendant. Thus, evidence of harm

to society does not impact the class of persons who are

“death eligible,” but is evidence of the defendant's per-

sonal responsibility and moral culpability to aid the jury

in making its decision. As such it does not give rise to the

arbitrariness and capriciousness constitutionally con-

demned by Furman. There is no constitutional bar to

prevent the jury from considering factors beyond those

which are set out in the statute as aggravating circum-

stances.

Our cases indicate, then, that statutory aggrava-

ting circumstances play a constitutionally neces-

sary function at the stage of legislative

definition; they circumscribe the class of per-

sons eligible for the death penalty. But the Con-

stitution does not require the jury to ignore

other possible aggravating factors in the process

of selecting, from among that class, those defen-

dants who will actually be sentenced to death.

[footnote omitted].

Zant v. Stephens, 462 U.S. at 878.

There are at least two underlying reasons that sup-

port holding a defendant personally responsible for the

full range of harm caused by his intentional criminal

conduct. First, evidence of the effect of a murderer’s act

upon society is crucial to the legitimate need of society to

further the ends of retribution and to ensure a full mea-

sure of punishment for all of the harm caused.

Punishment is designed, at least in part, to exact

retribution for a crime. Retribution is an objective that is

“not inconsistent with our respect for the dignity of

men.” Gregg v. Georgia, 428 U.S. at 183. Rather, the death

penalty is “an expression of the community’s belief that

certain crimes are themselves so grievous an affront to

humanity that the only adequate response may be the

penalty of death.” Id. at 184. More recently, this Court has

written that “retribution is an element of all punishments

society imposes” and “clearly plays a more prominent

role in a capital case”. Spaziano v. Florida, 468 U.S. 447, 462

(1984). The measure of retribution not only depends on

how depraved the defendant’s intent was but also should

include the suffering he has inflicted on the society that is

punishing him. The greater the harm, the more worthy

the individual is of blame and the greater the penalty

society may demand. Accordingly, all of the harm caused

by the defendant’s actions is highly relevant to the moral

judgment which must be exercised by the jury in deciding

what sentence to impose.

In this case, the petitioner brutally butchered to

death Charisse Christopher and Lacie Jo Christopher in

the presence of three-and-one-half-year-old Nicholas.

Surely the State of Tennessee is entitled to exact retribu-

tion for the full range of the petitioner’s heinous acts,

including the fact that Nicholas is now motherless and

must suffer all the psychological harm which results from

witnessing petitioner’s brutal acts. As a result of this

Court’s erroneous conclusion in Booth, the unintended

and unforeseen impact on society and the victim’s family

can never be relevant to establishing the defendant’s pun-

ishment. Consequently, states are prevented from punish-

ing a murderer to the full extent of his personal

responsiblity.

The second reason for allowing consideration of the

full range of harm caused by a defendant's intentional

criminal conduct is that such consideration is necessary

for the sentencer to make a particularized, fully informed

moral decision. The Court’s exclusive focus on a defen-

dant’s state of mind unduly constricts the specific assess-

ment of the defendant which is essential to capital

sentencing. It is obvious that the full extent of harm

brought about by the intentional acts of a particular

defendant are unique to each case. Accordingly, to

assume at the selection phase that the range of harm for

which all murderers will be held accountable is the same

precludes the fully informed moral decision which must

be made on a particularized basis. This Court has held

that, in all but the rarest cases, the defendant must be

permitted to present whatever mitigating factors he

wishes as they relate to his character or the circumstances

of the offense. Lockett v. Ohio, 438 U.S. 586, 604 (1978).

Indeed, the Court has even held that he must be

permitted to introduce in mitigation any evidence that

might convince the jury that he deserves a sentence less

than death. Skipper v. South Carolina, 476 U.S. at 4. Yet, the

jury is called upon to make a grave moral decision as to

life or death of this individual without regard to the

principles of personal responsibility. Evidence about the

full extent of harm caused and for which he should be

held accountable is essential to a fully informed moral

decision. Denying such evidence renders the jury unable

to fully speak for the public and to serve as a “significant

and reliable objective index of contemporary values” as

required by Gregg. Gregg, 482 U.S. at 181. It precludes the

jury from making a decision which is truly a “uniquely,

individualized judgment regarding the punishment that a

particular person deserves.” Zant v. Stephens, 456 U.S. at

900. This bar against particularized “personal respon-

sibility” arouses a sense of one-sided unfairness in the

State’s inability to present proof parallel to that being

presented to the defendant in mitigation. This sense was

expressed by the Tennessee Supreme Court in this case:

It is an affront to the civilized members of

the human race to say that at sentencing in a

capital case, a parade of witnesses may praise

the background, character and good deeds of

Defendant (as was done in this case), without

limitation as to relevancy, but nothing may be

said that bears upon . . . the harm imposed,

upon the victims.

State v. Payne, 791 S.W.2d 10, 19 (Tenn. 1990) (A. 42).

In this case, the victim impact testimony which was

admitted by the State was extremely limited. It came

during the testimony of Mary Zvolanek, the mother of

the adult victim and the grandmother of both the child

who was murdered and the surviving child. Her testi-

mony covers less than one and one-half pages of the

transcript. The specific testimony is as follows:

Q: Ms. Zvolanek, how has the murder of

Nicholas’s mother and sister affected him?

A: He cries for his mom. He doesn’t seem to

understand 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, Grandmama, do you miss my Lacie.

And I tell him yes. He says, “I’m worried

about my Lacie.”

(A. 2-3).

Considering the testimony presented by the peti-

tioner, it is anomalous that this limited testimony as to

the crime’s harm to Nicholas’s emotional well being

could be constitutionally inadmissible. During the same

sentencing hearing, the petitioner’s girlfriend was

allowed to give testimony which directly paralleled the

testimony of Mrs. Zvolanek. In the following colloquy,

she responded to a question from the defense attorney as

to the effect of these charges on her children:

Q: Was he [the petitioner] attentive, or how

did he behave?

A: Just like a father that loved his kids.

Q: Has the whole thing shocked you?

Yes it has, it has also shocked them [the

children] and they still don’t — they believe

he’s innocent and they ask about him all the

time.

(R. XVIII, 1511) (emphasis supplied).

It strains credulity that Eighth Amendment jurispru-

dence requires that the jury be permitted to hear that the

children of the petitioner’s girlfriend “ask about him all

the time,” yet that same jury is prohibited by the Consti-

tution from hearing that the child of the victim and a

victim himself continues to ask about his slain mother

and sister. It also strains credulity that the Constitution

permits a defendant to introduce testimony that he loved

children and got along wonderfully with them, but does

not permit evidence regarding the effect on a child who is

motherless as the result of his acts. To allow a defendant

to place such information before the jury, but to bar the

State from offering parallel evidence, denies the jury

proof of equivalent moral legitimacy and prevents it from

making a fully individualized decision based upon the

personal responsibility of the particular defendant.

In his dissenting opinion in Furman v. Georgia, Justice

Blackmun expressed concern for not extending the sen-

tencing considerations to include the full extent of harm

occasioned by a particular defendant:

It is not without interest, also, to note that,

although the several concurring opinions

acknowledge the heinous and atrocious ¢harac-

ter of the offenses committed by the petitioners,

none of those opinions make reference to the

misery the petitioners’ crimes occasioned into

the victims, to the families of the victims, and to

the communities where the offenses took place

. . . These cases are here because offenses to

innocent victims were perpetrated. This fact,

and the terror that occasioned it, and the fear

that stalks the streets of many of our cities today

perhaps deserve not to be entirely overlooked.

Furman, 408 U.S. at 413-14 (Blackmun, J., dissenting).

As pointed out in Justice White’s dissent in Booth, it

is difficult to reconcile why punishment can be enhanced

based upon the harm caused in all criminal cases except

capital cases. Booth, 482 U.S. at 516. Indeed, this Court has

said that “.. . a capital sentencing proceeding involves

the same fundamental issue involved in any other sen-

tencing proceeding — a determination of the appropriate

punishment to be imposed on an individual.” Spaziano v.

Florida, 468 U.S. at 459. The majority in Booth sought to

justify its holding banning victim impact evidence in

capital cases, but not in other criminal cases, by noting

that “death is a punishment different from other sanc-

tions.” Booth, 482 U.S. at 509 n. 12, quoting Woodson v.

North Carolina, 428 U.S. 280, 303-304, 305 (1976). The

Court’s statement in Woodson that “death is different”

was based on the “need for reliability in the determina-

tion that death is the appropriate punishment in a specific

case.” Id. at 305. The Court held that North Carolina’s

procedural framework in making the death penalty man-

datory in certain cases was unconstitutional because it

did not insure the heightened degree of reliability needed

in capital cases. Thus, the proposition that “death is

different” compels the need for greater procedural safe-

guards. However, if evidence of the full range of harm

caused by a defendant is truly irrelevant because it does

not inform the sentencer of the defendant’s mental state,

then it should be equally irrelevant in all criminal cases.

While the severity of the penalty in capital cases requires

greater procedural safeguards, the qualitative difference

in penalty cannot justify any difference in the substantive

determination of whether a particular class of evidence is

relevant.

Finally, the holding in Booth that only those factors

which are relevant to defendant’s state of mind may be

admitted at the sentencing phase results in an unwork-

able rule of law. If Booth’s holding is followed to its

logical conclusion, conflicts are created both with earlier

capital sentencing cases and criminal law in general. This

Court has held that a jury instruction in the sentencing

phase that a governor may commute a sentence of life

without parole to life with the possibility of parole does

not violate the Constitution, California v. Ramos, 463 U.S.

at 1001-09, even though such information does not speak

to the defendant’s moral culpability. Further, the jury

may consider whether a defendant is likely to commit

other crimes of violence in the future when deciding on

which sentence to impose. Jurek v. Texas, 428 U.S. 262, 272

(1976). Clearly, future dangerousness does not inform the

jury about the defendant’s moral culpability for the crime

for which he is being sentenced. Similarly, the Court has

held that a defendant must be allowed to present any

evidence that might serve as a basis for a sentence less

than death, even if it does not relate to his culpability for

the crime he committed. Skipper v. South Carolina, 476 U.S.

at 4-5.

As petitioner points out, a precedent should be over-

ruled when experience demonstrates that the holding has

resultea in a “major distortion in the court’s constitu-

tional jurisprudence.” Pet. Br., 49, quoting Thornburgh v.

American College of Obstetricians & Gynecologists, 476 U.S.

747, 814 (1986) (O’Connor, J., dissenting). Clearly, the

Court’s decision in Booth that only evidence which relates

to the defendant’s moral culpability is relevant to the

jury’s sentencing decision is a major distortion of the

Court’s constitutional jurisprudence and results in an

unworkable scheme because it tears at the very fabric of

commonly accepted notions of criminal responsibility in

punishment.

2. Evidence of harm to society is relevant because

it informs the jury about the defendant’s moral

culpability.

The majority of this Court in Booth held that the

impact of a murderer’s act on family members and soci-

ety as a whole was inadmissible because such factors

“may be wholly unrelated te the blameworthiness of a

particular defendant.” Booth, 482 U.S. at 504. As set out in

section 1, supra, evidence relating to the full range of

harm caused by a murderer should be admitted as rele-

vant to a defendant’s “personal responsibility”. Notwith-

standing this proposition, evidence of harm to society

and to the victim’s family should still be admitted where

it establishes the defendant’s moral culpability.

The Court’s conclusion in Booth that such evidence is

generally unrelated to the defendant’s blameworthiness

is erroneous and results from an unjustifiably restricted

definition of that term. Whenever a defendant chooses to

commit an intentionally criminal act, he should properly

be viewed as morally culpable for any and all harm that

could have been reasonably anticipated to occur as a

result of that crime. A sentencer’s conclusion that such

additional harm could have been “reasonably antici-

pated” might be based on a defendant’s awareness of

particular circumstances of the crime or of the victim’s

life situation. Or, alternatively but no less significantly,

5 The extent of the harm caused to Nicholas was certainly

within the reasonable anticipation of the petitioner. The peti-

tioner’s girlfriend lived in the apartment across the hall from

the victim and her small children, and he was a frequent visitor

at his girlfriend’s apartment. The petitioner must have known

prior to entering the apartment that two small children and

their mother were present or, if not, he certainly became aware

of these facts upon entering the apartment. Any reasonable

person would have anticipated that he was causing harm to

Nicholas as he struck his fatal blows to Nicholas’ mother and

sister. It could not have come as a surprise to anyone that these

acts would cause Nicholas psychological, as well as physical,

harm.

this conclusion might be based on an understanding of

the full range of possible consequences of the crime

drawn from human and societal experience. It is a fact of

life that human beings live within a community of family

and friends, and participate in a complex web of human

relationships. Any murderer should anticipate that killing

a person will sever the web of interpersonal relation-

ships, and, therefore, will almost inevitably harm others

besides the murder victim. This constitutes a culpable

mental state that may be taken into account in capital

cases whenever the defendant’s intentional conduct

causes its natural, although not inevitable, consequences.

lison v. Arizona, 481 U.S. 137, 157-58 (1987).6

Significantly, even the petitioner in this case admits

that moral culpability, as this Court referred to the

the “reckless indifference” standard adopted in Tison, although

the analytical framework resembles that in Tison. The differ-

ence is that, in Tison, as in Enmund, the issue was the defen-

dants’ level of moral culpability for the primary harm caused

by their crime, 1.e., the deaths of the murder victims. The Tison

Court properly insisted on a relatively high level of moral

culpability with respect to the victims’ deaths as a prerequisite

to finding, in the first instance, that the death penalty would be

a proportional punishment for the defendants’ crimes. Here,

on the other hand, there is no doubt that the petitioner was

morally culpable, at the highest possible level, for the inten-

tional murders of Charisse and Lacie Jo, and is thus properly

death-eligible based on the Tison proportionality standard. The

issue here, by contrast, is whether the petitioner’s relatively

tower level of moral culpability with respect to the additional

harm caused to Nicholas can be used as simply one factor in

the overall mora! decision of whether to actually impose a

death sentence.

concept in Booth, includes harm that a defendant neither

intended to cause nor even knew would occur. The peti-

tioner, in fact, appears to agree that all harm that could be

reasonable anticipated to result from a defendant’s inten-

tional crime lies properly within the scope of the defen-

dant’s moral culpability. Pet. Br., 12-13 (referring to the

“foreseeable” consequences of a crime as “relevant to

show moral blameworthiness”). The petitioner simply

argues that the state may not introduce the actual conse-

quences of the crime (even if those consequences were, in

fact, “foreseeble” to the defendant), but instead must

limit its discussion of victim harm to speculation about

what might have happened as a result of the defendant's

crime. Neither the Eighth Amendment, nor any other

constitutional provision, requires this Court to adopt

such a convoluted and illogical rule.

As the petitioner in this case appears to suggest, a

defendant’s moral culpability is dependent upon the full

range of what a defendant couid or should have antici-

pated might occur, as of the time the crime was inten-

tionally committed. Pet. Br., 13. It would be completely

appropriate, therefore, within the context of moral cul-

pability, for a state to punish a defendant for all reason-

ably anticipated harm, whether or not the harm actually

occurred in the particular case. In our system of criminal

justice, however, we do not always choose to punish to

the full extent of moral culpability for those harms that

were risked by a defendant’s conduct but that did not

occur. Rather, we sometimes allow defendants to benefit

from the “fortuity” that not all of their anticipated harms

actually occur. This does not negate the principles that

such defendants are properly viewed as morally culpable

for all anticipated harms — instead, it stands as an exam-

ple of our society’s willingness to impose less punish-

ment, in some cases, than a defendant’s moral culpability

would otherwise justify.

This Court should overrule Booth and acknowledge

that a defendant may properly be viewed as morally

culpable based on all additional harm that could have

been reasonably anticipated by the defendant. In addi-

tion, the Court should further acknowledge that where

the additional harm caused by a defendant's intentional

choice to commit murder falls within the range of possi-

ble consequences inherent in human societal experience,

then it can be fairly said that any reasonable person

should have anticipated the additional harm. Certainly,

evidence of such additional harm would serve to inform

the sentencer about the defendant’s moral culpability. In

fact, such proof is highly relevant to the moral judgment

which must be exercised by the jury in deciding what

sentence to impose.

3. Booth and Gathers should be overruled because

they fail to recognize the many ways that evi-

dence of victim impact may be admitted in capi-

tal cases.

If this Court decides that evidence regarding harm to

society and the victim's family is not relevant to personal

responsibility and moral culpability, the Court’s decision

in Booth should still be overruled because it fails to

acknowledge that there are many other ways in which

such evidence may be admissible. This case presents a

prime example of how victim impact testimony may be

intertwined with testimony offered during the guilt

phase. The petitioner brutally murdered Charisse and her

young daughter. He attempted to murder Nicholas Chris-

topher. Miraculously, Nicholas survived the numerous

stab wounds the petitioner inflicted upon him. There is

no question but that Nicholas is a “direct” victim of the

petitioner’s violence. However, Nicholas is also a more

“indirect” victim in that he continues to suffer today

because he no longer has his mother or sister with him.

Certainly, the jury was entitled to know, as it did, that

Nicholas was present during the brutal slaying of his

sister and his mother. Certainly the state was entitled in

closing argument to remind the jury that and to argue

that this circumstance of the crime was a factor in estab-

lishing that the petitioner’s acts were heinous, atrocious,

or cruel in that they involved depravity of mind. Yet, if

those comments crossed the line into impermissible vic-

tim impact testimony, it is difficult to tell where that

occurred.

A good example of victim impact testimony being

mingled with the facts of the case is People v. Clark, 789

P.2d 127 (Cal. 1990). There, the murder was committed

precisely because the defendant wanted the victim’s wife

to suffer because of her status and relationship to the

defendant. The California Supreme Court found on the

basis of Booth that this evidence should not have been

admitted since it was impermissible victim impact testi-

mony, although the court held that the error was harm-

less. Id. at 157-58. This Court has not said whether victim

impact evidence that is properly admitted during the

guilt phase may be relied upon in the sentencing phase of

a capital case or if it may be argued to the jury by the

prosecutor.”

The blanket rule announced in Booth fails to acknowl-

edge that often, as here, victim impact evidence will be

introduced to the jury simply because it is intertwined

with the facts establishing the circumstances of the criine.

To allow victim impact evidence to be admitted during

the guilt phase because it relates directly to the circum-

stances of the crime but to prevent references to it during

the sentencing phase creates an anomaly. After all, the

jury is charged with making a judgment regarding sen-

tence based upon the nature and circumstances of the

crime as well as the individual characteristics of the

defendant. Zant v. Stephens, 462 U.S. at 879. In this case,

the victim impact evidence about which the petitioner

complains was entirely commingled with the proof of the

crime and was therefore properly admitted.

Victim impact evidence may also be admissible, as

the Court appeared to recognize in Booth, when admitted

to “rebut an argument offered by the defendant,” such as

when the state wishes to establish the peaceable nature of

the victim to rebut the defendant's claim that the victim

was the aggressor. Booth, 482 U.S. at 507 n. 10, citing Fed.

R. Evid. 404(a)(2).

? In Gathers, the religious material found among the vic-

tim’s belongings was admitted into evidence during the guilt

phase. The Court ruled that the prosecutor impermissibly

argued about the content of the material to the jury during his

closing argument in the sentencing phase. However, the text of

the material was not discussed during the guilt phase and it is

unclear whether the Court would have found that the argu-

ment passed constitutional muster if the text had been pre-

sented fully to the jury prior to the sentencing stage.

C. Evidence regarding the victim’s character may

be relevant and does not always violate the

Constitution.

A primary reason for the majority’s ruling in Booth

was the legitimate concern that “mini-trials” on the vic-

tim’s worth would be permitted in capital cases. The

Court was understandably concerned that juries not

make a decision as to whether to impose life or death

based upon a weighing of the relative worth of the vic-

tim’s life against that of the defendant’s. The respondent

agrees that such a result should be avoided. However, the

majority in Booth failed to acknowledge that not all char-

acter evidence rises to the level of a constitutional viola-

tion.

It is often the case that proof of some characteristics

of the victim will be a part of the evidence which prop-

erly comes in during the guilt/innocence phase. For

example, in this case, the fact that Charisse was the

mother of two children, that she occasionally suffered

from sinus headaches, that she was single and that she

was a socially participating neighbor in the apartment

complex all properly came in during the guilt /innocence

phase. Similarly, evidence regarding the character of the

victim may be admitted in order to rebut an argument

advanced by a defendant that the victim was the aggres-

sor. Booth, supra, 482 U.S. at 507 n. 10, citing Fed. R. Evid.

404(a)(2).

Evidence of a victim’s characteristics may also be

properly admitted where it is presented to the jury as a

part of the evidence of harm caused by the murder to

society or the victim’s family. As set out in Section A,

such evidence is constitutionally permissible. In some

cases, there may be information about the victim’s char-

acteristics commingled with the evidence of harm.

Indeed, as Justice Scalia has observed, it is often impossi-

ble to tell which is which. Gathers, 490 U.S. at 823 (Scalia,

J., dissenting).

Similarly, evidence about the characteristics of the

victim may be admitted to prove an aggravating circum-

stance. Some aggravating circumstances are based solely

on the status of the victim, such as the victim’s occupa-

tion as peace officer, fireman, judge or prosecutor. Tenn.

Code Ann. §39-2-203(i)(9). In fact, in this case, the jury

found that Lacie’s age was an aggravating factor since

she was under twelve and the petitioner was over eigh-

teen. Tenn. Code Ann. §39-2-203(i)(1). Of course, proof of

Lacie’s age was needed to establish this aggravating cir-

cumstance, and even the petitioner does not complain

that such evidence was inadmissible.

Moreover, proof about the victim’s characteristics

should be admissible even where it is not intertwined

with other admissible evidence in order to remind the

jury that the victim was also a unique individual. A

“thumbnail sketch of the victim’s difficult childhood” in

order to give the jury a “quick glimpse of the life the

petitioner chose to extinguish” does not violate the con-

stitution. Mills v. Maryland, 486 U.S. 367, 397 (1988)

(Rehnquist, J., dissenting). The defendant is not constitu-

tionally entitled to have his gross violation of a unique

human life sanitized in a capital sentencing proceeding.

To remove the ability of the state to paint even a minimal

picture of the “uniqueness of the life” the defendant has

chosen to extinguish is to do just that.

In painting the thumbnail sketch, the state would, of

course, be precluded from relying on those characteristics

of the victim which would tend to suggest a decision on a

constitutionally impermissible basis. These would

include, at least, race, sex and religious preference. See

generally McCleskey v. Kemp, 481 U.S. 279, 309 n. 30 (1987).

Aside from these characteristics which have inherent con-

stitutional limitations, other character evidence may be

presented without violating the Constitution so long as it

is presented in a manner that does not tend to shift the

focus of the jury to a weighing of the relative worth of the

defendant's life against that of the victim. This standard

would address the concerns of the majority without going

to the extreme of a blanket prohibition against victim

characteristic evidence.

In this case, the characteristics of Charisse as a good

mother whom Nicholas misses and Lacie as a playmate

who is also missed is so blended with proof of the crime

itself and with evidence of the harm suffered by Nicholas

that it simply does not offend the Constitution. Moreover,

the generalized statement by the prosecutor about the

exemplary life led by Charisse clearly did not bring about

the shift in focus which the Constitution would prohibit.

A rule which narrowly addresses the potential problem

while still providing an opportunity for the state to

“humanize” the victim best serves the jury in making its

informed moral decision in a manner preferable to the per

se bar in Booth.

D. There is no constitutional requirement that

there be an absolute bar on admission of the

opinions of victims’ families as to sentence.

The third and final type of victim impact information

held unconstitutional in Booth was the expression of an

opinion by the victim’s family that the defendant should

receive the death penalty. The respondent acknowledges

that such testimony must be handled with extreme care.

However, the Court in Booth incorrectly concluded that

such opinions would always be constitutionally imper-

missible. Permitting a “secondary victim” of a murder

case, that is, an immediate family member, from express-

ing their opinion as to sentence can serve an important

purpose. Allowing an immediate family member to

express such an opinion can help to make that “second-

ary” victim whole. Victims of violent crimes often experi-

ence feelings of lack of control and helplessness. Peterson

and Seligman, Learned Helplessness and Victimization, J.

Soc. Issues (No. 2) 103 (1983). Allowing the family of the

victim to express their opinion, if they so wish, is a means

by which family members may be able to ameliorate their

feelings of lack of control and helplessness. Such a pro-

cedure would help to channelize the victim’s need for

retribution. See Furman v. Georgia, 408 U.S. 238, 308 (1972)

(Stewart, J., concurring); Tison v. Arizona, 481 U.S. 137, 181

(1987) (Brennan, J., dissenting). Indeed, this Court has

said that capital punishment is, in part, “an expression of

society’s outrage at particularly offensive conduct” and is

“essential in an ordered society that asks its citizens to

rely on legal process rather than self-help to vindicate

their wrongs.” Gregg v. Georgia, 428 U.S. at 183. Permit-

ting the immediate family of the murder victim to express

their opinion would serve to reinforce to citizens that

their reliance on the legal process is well founded.

Moreover, so long as the narrowing of the class of

death eligible persons is not based upon a statutory

aggravating circumstance relating to the wishes of the

victim’s family, there should be no constitutional bar t >

the jury’s consideration of such an opinion at this stage.

The defendant is already in the class of persons who are

“death eligible” and there is no reason that one consider-

ation at this stage could not be the wishes of the victim’s

family.

The Court in Booth should have recognized that there

is no constitutional problem with the admission of such

evidence so long as the manner and quantity of the

evidence which is admitted does not tend to diminish the

jury’s sense of responsibility for taking the life and

death decision. Cf. Caldwell v. Mississippi, 472 U.S. 320

(1985). Additionally, it is doubtful that a juror would be

surprised to hear that the victim’s family wants the most

severe penalty possible imposed since that is likely to be

the conclusion that most persons would draw, even

absent any testimony. Thus, it is doubtful that the expres-

sion of such an opinion would result in a juror imposing

the death penalty when he otherwise would have

declined to impose it.

In this case, despite petitioner’s insistence to the

contrary, no testimony was adduced as to the wishes of

the victim’s family for a particular sentence. The prosecu-

tor never argued to the jury that any family member

wanted the death sentence, but only reminded them that

family members would be cognizant of their decision and

would look to the jury’s verdict for an indication of

whether justice was done.

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

happened 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.

(A. 12).

At no time did the prosecutor say that Nicholas or any

other family member recommended that a sentence of death

be imposed. Reminding the jury that family members would

look to the verdict and reach their own conclusion as to

whether justice was done was legitimate prosecutorial argu-

ment. This rhetorical flourish did not constitute proof, such

as was admitted in Booth, that particular family members

wanted the defendant put to death. However, as a result of

the broad language used by the Court in Booth, the petitioner

contends that this argument violated the proscription against

admitting opinion testimony.

Certainly the manner and amount of comment

regarding Nicholas’ “opinion” did not tend to diminish

the jury’s sense of responsibility for making the decision.*

® Assuming that, as in this case, no Caldwell-type issue is

presented, then the only remaining issue is whether the argu-

ment was so prejudicial that it violated due process by denying

petitioner a fundamentally fair trial. Donnelly v. DeChristoforo,

416 U.S. 637 (1974); Darden v. Wainwright, 477 U.S. 168 (1986).

The argument advanced by the prosecutor certainly did not

rise to such a level. Indeed, it was extremely mild compared to

(Continued on following page)

Rather, if anything, it merely emphasized to the jury that

the sentence to be imposed was, in fact, their decision

and a grave one at that.

E. The doctrine of stare decisis does not preclude

overruling Booth and Gathers.

Stare decisis is the general rule in our system and

serves important functions of stability and predictability.

This Court is generally more willing to overrule prior law

when the prior erroneous holding involves a constitu-

tional principle. Such flexibility is warranted because leg-

islative correction is impossible. In United States v. Scott,

437 U.S. 82 (1978), the Court overruled an opinion it had

issued just three years earlier, United States v. Jenkins, 420

U.S. 358 (1975), because the Court was convinced that the

prior holding was erroneous. Quoting Justice Brandeis,

the Court said:

[I]n cases involving the Federal Constitution,

where correction through legislative act is prac-

tically impossible, this Court has often over-

ruled its earlier decisions, Brunett v. Coronado

Oil & Gas Co., 285 U.S. 393, 406-408, 52 S.Ct. 443,

448, 76 L.Ed. 815 (1932) (dissenting opinion).

(Continued from previous page)

the statements made by the prosecutor in Darden. id. at 179-83.

In light of the mild nature of the remarks and the overwhelm-

ing evidence both of petitioner’s guilt and suitability for the

death penalty given the heinous nature of this crime, the

argument is clearly not a sufficient basis for setting aside

petitioner’s death penalty under Darden or Donnelly.

United States v. Scott, 437 U.S. at 101. In addition, flex-

ibility is warranted where, as here, a restrictive constitu-

tional decision interferes with democratic self-

governance. Justice Powell warned of the threat to the

democratic processes in his dissent in Furman:

Nothing short of an amendment to the United

States Constitution can reverse the Court's judg-

ments. Meanwhile, all flexibility is foreclosed.

The normal democratic process, as well as the

opportunities for the several States to respond

to the will of their people . . . is now shut off .. .

The sobering disadvantage of constitutional

adjudication of this magnitude is the univer-

sality and permanence of the judgment. The

enduring merit of legislative action is its respon-

siveness to the democratic process .. .

Furman, 408 U.S. at 462 (Powell, J., dissenting).

Specifically, the rules promulgated in Booth and

Gathers should be overruled because, among other things,

(a) they produce confusion in application; (b) they rest on

a mistaken practical assessment of the need for a pro-

phylactic rule broader than any legitimate constitutional

command; and (c) they rest on principles that cannot

fairly be reconciled with the Constitution or other deci-

sions of this Court.

The lessons of experience suggest that these deci-

sions are creating substantial confusion in application.

Gathers, 490 U.S. at 805 (O’Connor, J., dissenting). As this

case demonstrates, even knowing what is potentially con-

stitutionally impermissible can be difficult where the

allegedly unconstitutional testimony and argument is

commingled with the proof and circumstances of the

crime.?

Additionally, courts are having great difficulty in

knowing when the testimony may be otherwise admis-

sible. See, e.g., State v. Huertas, 553 N.E.2d 1058 (Ohio

1990), cert. granted, ___ U.S. __, 111 S.Ct. 39, dismissed as

improvidently granted, __ 111 S. Ct. 805 (1991) (death

sentence reversed, holding that the defendant’s actual

knowledge of the victim’s family was irrelevant and por-

tions of the victim impact evidence inadmissible even

though some of it came as a direct response to evidence

offered in mitigation by the defendant); People v. Clark,

supra. Moreover, many courts are relying on a harmless

error analysis as an alternative basis for those decisions

upholding the death sentence, perhaps signifying their

confusion and uncertainty. E.g., State v. Boyd, 797 S.W.2d

589, 598 (Tenn. 1990) (comments did not focus on victim’s

characteristics and, if error, it was harmless in view of the

9 In addition to the testimony and argument over which

the petitioner is aggrieved, there was testimony in the guilt

phase by Joseph Zvolanek that when he last saw his grand-

children alive, they were playing on some swings and that his

daughter suffered from chronic sinus headaches. (R., XI,

475-76). There was also proof that Nicholas was conscious

when found, that he held a wet pack to his protruding intes-

tines on the way to the hospital, (R., XVII, 744-83), and the

prosecutor commented on this during closing argument in the

sentencing phase. (A. 9). It is unclear whether this constitutes

impermissible evidence, but if it does then the fact that defense

counsel has never contended that this testimony and argument

violates Booth and Gathers emphasizes the confusion present as

a result of these cases.

overwhelming evidence of defendant’s guilt); People v.

Kelly, 800 P.2d 516, 538 (Cal. 1990) (while arguably inap-

propriate, remarks brief and mild and therefore harm-

less); Byrne v. Butler, 845 F.2d 501, 511 (Sth Cir. 1988)

(unlike Booth, comments of prosecutor were brief and

cryptic and did not rise to the level of constitutional!

error).

The constitutional rule promulgated in Booth and

Gathers rests on a mistaken practical assessment of the

need for a prophylactic rule broader than any legitimate

constitutional command. This Court expressed under-

standable concerns in Booth over the potential for abuse

in the introduction of some types of victim impact evi-

dence. However, no such abuse has occurred in this case.

Moreover, the concerns expressed by the majority could

be adequately addressed by the trial judge’s weighing of

the relevancy of the proffered evidence against the level

of unfair prejudice it might cause, just as trial courts do

regularly in all criminal cases, including capital cases or

other limiting rules as suggested herein. In fact, the

majority in Booth acknowledged the trial judge’s author-

ity and ability to make such decisions:

The trial judge, of course, continues to have the

primary responsibility for deciding when this

information is sufficiently relevant to some

when legitimate consideration to be admissible,

and when its probative value outweighs any

prejudicial effect. c.f. Fed. Evid. 403.

Booth, 480 U.S. at 507 n.10. This approach to handling the

concern that some victim impact testimony may be

unfairly prejudicial is greatly preferable to the broad

prophylactic rule adopted in Booth which removes an

‘ 46

entire class of relevant evidence from the jury’s consider-

ation. Adopting a more traditional approach to the

admission of victim evidence is also more consistent with

the Court’s historic deference to state legislatures and

courts on issues of substantive evidence. The decisions in

Booth and Gathers depart from this Court’s general com-

mitment to leaving basic substantive policy choices

regarding what factors warrant particular punishment to

legislative choice. Gore v. United States, 357 U.S. 386, 393

(1958); California v. Ramos, 463 U.S. at 999. Such policy

choices are at the heart of democracy. By preempting the

substantive determination of whether this class of evi-

dence should be barred in capital cases, Booth and Gathers

“disserve[ ] principles of democratic self-governance.”

See Garcia v. Metro. Transit Authority, 469 U.S. 528, 547

(1987).

That Booth and Gathers rest on principles that cannot

be fairly reconciled with other decisions of this Court is

discussed supra in Argument I, Section B1.

In addition to the foregoing factors, as Justice Scalia

has pointed out, the Court’s willingness to bow to “the

force of better reasoning”, even when the erroneous hold-

ing is a recent precedent, is particularly important in

capital cases which purport to reflect “an evolving stan-

dard of decency”. Gathers, 49 U.S. at 824 (Scalia, J., dis-

senting); Cf. Furman v. Georgia, 408 U.S. at 330 (Marshall,

J., concurring). Eighth Amendment law, as it has devel-

oped, iooks primarily to the general practices and laws of

states as an objective means of determining what is a

“cruel and unusual” punishment. Id. If states abandon a

practice to conform to an erroneous decision, that method

would become unavailable, even though the reason for

the newfound abandonment might not be a general soci-

etal moral condemnation of the practice. The Court

would then have to resort to less objective and hard ‘o

discern criteria to answer the Eighth Amendment ques-

tion of whether the practice is in fact consistent with

prevailing standards of decency. The Court could avcid

putting itself in that difficult position by overruling the

erroneous, confusion-producing, recent Eighth Amend-

ment precedent of Booth and Gathers.

Il. THE DEATH SENTENCE IN THIS CASE SHOULD

BE UPHELD EVEN IF BOOTH AND GATHERS

ARE NOT OVERRULED BECAUSE ANY VIOLA-

TION OF THE PRINCIPLES OF BOOTH AND

GATHERS IS HARMLESS BEYOND A REASON-

ABLE DOUBT.

The Supreme Court of Tennessee found that the vic-

tim impact testimony of Mrs. Zvolanek and the prosecu-

tor’s arguments were relevant to establish the petitioner’s

personal responsibility and moral guilt. However, it

found that assuming the evidence and argument violated

the Eighth Amendment, it was harmless beyond a reason-

able doubt, noting that:

[t]he “personal responsibility”, the “moral

guilt” and the “blame worthiness” of the person

who committed these crimes, was established by

the proof at the guilt phase, to-wit, that inhu-

man brutality, without reason or explanation

was heaped upon three innocent human beings.

Once that person’s identity was established by

the jury’s verdict, the death penalty was the

only rational punishment available.

State v. Payne, 791 S.W.2d at 19 (A. 43).

The record in this case fully supports the Tennessee

Supreme Court's finding in this regard. Charisse Christo-

pher sustained multiple wounds, representing at least

forty-one knife thrusts. (R., XI, 481-86). Lacie Christopher

suffered a total of nine wounds. Nicholas also suffered

multiple stab wounds. (R., XI, 490-92; XIII, 811-16). The

jury need only have considered the number of times the

petitioner raised that butcher knife and brought it down

into the bodies of his victims to comprehend the cruelty

and the depravity of the crime committed. The peti-

tioner’s cruel and depraved acts established without

question, as the Supreme Court of Tennessee found, that

the death penalty is the only rational sentence that could

have been given.

Finally, it is doubtful that it came as any surprise to a

jury of twelve reasonable men and women that a sma!|

child would express concern about his mother and only

sibling whom he saw brutally butchered to death before

his eyes. This, along with the overwhelming proof, apart

from any proof concerning the impact on Nicholas, of the

petitioner’s guilt and his suitability for the death penalty,

renders any error in the admission of this proof and

argument harmless beyond a reasonable doubt. Satter-

white v. Texas, 486 U.S. 249 (1988).

CONCLUSION

The judgment of the Supreme Court of Tennessee

should be affirmed.

Respectfully submitted,

CHARLES W. Burson

Attorney General & Reporter

State of Tennessee

Katiy M. Princire

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37243-0485

(615) 741-3487

Counsel for Respondent

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