# Respondents Brief — Payne v. Tennessee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0124%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1991 - **Citation:** 501 U.S. 808 ## Text Cre Lean). Se 3é “ ar ‘or . ay AVA : ‘ : Me re ” J on ye ¥ R SEF +"! hg Ys. NR ¥ i a ‘ et Pre _ bt yaad 45. * 4 ‘ k: ~ oa ow wre 4 ‘ ad aN e 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? ii TABLE OF CONTENTS Page QUESTIONS PRESENTED ......cccccscscuavetecseeen i TABLE OF AUTHORITIOS ....ccscsseckssaeneneeeee iv STATEMENT OF THE CAGE... «. 000: sscnsacusuuens 1 SUMMARY OF ARGUMENT... .00 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 41 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) a 42 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. 43 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 44 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. 45 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 47 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). 48 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). + 49 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0124%3A06. Public record. Not legal advice.