Amicus Curiae Brief — Payne v. Tennessee

No. 90-5721. F Suprema Court, U.S.

D

In Tue

Supreme Court of the United sthtes ‘9°!

Ocroser Term, 1990 OFFICE OF THE CLERK

PERVIS TYRONE PAYNE,

Petitioner,

v

STATE OF TENNESSEE,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF TENNESSEE

BRIEF OF AMICUS CURIAE,

STATE OF CALIFORNIA,

Joined by the States of Alabama, Arizona, Colorado, Connecticut, Florida,

Indiana, Kentucky, Maryland, Mississippi, Missouri, Montana, Nebraska,

Nevada, New Jersey, North Carolina, Ohio, Oregon, Pennsylvania, South

Carolina, South Dakota and Washington, in support of the State of

Tennessee, Respondent.

Danig E. LUNGREN, Attorney General

of the State of California

GEORGE WILLIAMSON, Chief Assistant

Attorney General - Criminal Division

Har.ey D. MAYFIELD, Senior Assistant

Attorney General

FREDERICK R. MILLAR, JR.

Supervising Deputy Attorney General

Louis R. HANoIAN

Deputy Attorney General

110 West A Street, Suite 700,

San Diego, California 92101

Telephone: (619) 237-7281

Counsel for Amicus Curiae

State of California

i

QUESTION PRESENTED

I. Should Booth v. Maryland, 482 US. 496 (1987), and

South Carolina v. Gathers, 490 US. 805 (1989), be

overruled?

as eT >:

-ii-

TOPICAL INDEX

QUESTION PRESENTED i

INTEREST OF AMICI CURIAE 1

SUMMARY OF ARGUMENT 3

ARGUMENT 5

BOOTH V. MARYLAND AND SOUTH

CAROLINA V. GATHERS SHOULD

BE OVERRULED BECAUSE THE

IMPACT OF A CAPITAL CRIME ON

THE VICTIM, THE VICTIM’S SURVIVORS

AND SOCIETY IS PROPERLY CONSIDERED

IN DETERMINING WHETHER DEATH

IS THE APPROPRIATE PUNISHMENT 5

A. The Punishment Should Fit The Crime 6

B. The People Have A Right To A Balanced

Penalty Proceeding 10

————— SC hr Cc cere err CC —_

-iii-

TOPICAL INDEX (cont’d)

Pages

C. Evolving Societal Standards Allow Victim

Impact 14

D. The Confusion Caused By Booth and Gathers

Justifies Overruling Those Decisions 16

E. The Concerns Underlying The Booth Decision

Did Not Warrant The Establishment Of The Rule

Nor Do They Support Its Retention 17

1. Victim Characteristics 17

2. Defendant’s Intent 19

3. Defendant’s Inability to Rebut Victim-

Impact Evidence 21

4. The Mini-Trial 21

CONCLUSION 23

-jv-

TABLE OF AUTHORITIES

CASES Page

Booth v. Maryland

(1987) 482 U.S. 496 5, 7-9, 12-17, 20, 21, 23

Coker v.

(1977) 433 U.S. 584 10

Eddings v. Oklahoma

(1982) 455 U.S. 104 11

Enmund v. Florida

(1982) 458 U.S. 782 8, 10

Fay v. New York

(1947) 332 U.S. 261 11

Furman v.

(1972) 408 U.S. 238 8, 23

Gardner v. Florida

(1977) 430 U.S. 349 21

Gregg v. Georgia

(1976) 428 US. 153 6, 7, 14, 23

Jackson v. Denno

(1968) 378 US. 368 11

Lockett v. Ohio

(1978) 438 U.S. 586 11, 22

-V-

TABLE OF AUTHORITIES - Continued

McGautha v. California

(1971) 402 U.S. 183

Mills v. Maryland

(1988) 486 U.S. 367

Murray v. Giarratano

(1989) 492 US. __—- [106 L.Ed.2d 1]

People v. Clark

(1990) 50 Cal.3d 583

People v. Harris

(1984) 36 Cal3d 36

People v.

(1988) 45 Cal.3d 548

Roberts v. Louisiana

(1977) 431 U.S. 633

Sawyer v. Smith

(1990) 497 US. __—‘ [111 L.Ed.2d 193]

Skipper v. South Carolina

(1986) 476 US. 1

Smith v. Murray

(1986) 477 U.S. 527

Snyder v. Massachusetts

(1934) 291 U.S. 97

Page

21

11

11

-Vvii-

TABLE OF AUTHORITIES - Continued

Zant v.

(1983) 462 U.S. 862

CONSTITUTIONAL PROVISIONS

California Constitution

Article I, § 28

Article I, § 28, subd. (a)

Eighth Amendment

Fourteenth Amendment

Proposition 8

STATUTES

California Evidence Code

§ 350

§ 351

§ 352

California Penal Code

§ 190.2, subd. (a ,

§ 190.2, subd. (a)(9

§ 190.2, subd. (a)(11

§ 190.2, subd. (a i)

§ 190.2, subd. (a

§ 190.3, subd. (a

§ 1191.1

Federal Rules of Evidence

rule 403

Page

8, 18

INTEREST OF AMICI CURIAE

Society in general and legislative bodies in

particular have a significant interest in defining the bases

upon which criminal defendants will be punished. All

states attempt to make the punishment fit the crime and

the offender. In California, as in other jurisdictions with

capital punishment, the circumstances of the crime are a

proper subject of evidence and argument in the penalty

phase. They help define the extent of harm caused by

the defendant. However, the harm caused by a capital

murder extends beyond the historical circumstances of the

offense. Society is injured and the survivors of the victim

are harmed as well. Amici have an interest in i

that the Constitution is not interpreted to preclude the

full extent of the harm caused by a murderer to be

considered by a penalty phase jury.

The Court’s decisions in Booth v. Maryland, 482

U.S. 496 (1987) and South Carolina v. Gathers, 490 US.

805 (1989), limit use of victim-impact evidence in a

capital trial. The Court has severely restricted the jury’s

consideration of aspects of the crime that deserve

consideration in determining whether death is the

appropriate punishment, by prohibiting the prosecution

from establishing all relevant evidence for determining

penalty. The result has tipped the scales of fairness

against the State.

The contrast can be seen in the decisions of the

California Supreme Court which have consistently

followed the broad definition given defense mitigating

evidence in cases such as Lockett v. Ohio, 438 U.S 586,

604 (1978) (plurality), going so far as to rule it was

pp et ely te alg om ty me yee |

-2-

Additionally, amici have an interest in the

establishment of clear and workable constitutional rules.

The rule in Booth has engendered considerable confusion

cosets of tae anus Wak na tes tie eoees bo

this case as Booth error, decisions like Carrera would be

vulnerable to attack in federal habeas corpus.

Expansive interpretations of Booth have been

advocated by counsel for capital defendants. In People

v. Karis, 46 Cal.3d 612, 640, 641 (1988), the defendant

argued Booth precluded testimony in tion by a

victim of a prior offense committed by defendant on the

Gendt ae a a a

the victim’s family was inflammatory

Court rejected this contention on the ground the impact

of a capital defendant’s crimes on the victims of those

crimes is relevant to the penalty determination. (Id., at

p. 641.) Yet, similar testimony was found improper in

People v. Boyde myn Ay bag 249 Califia, fn. 5. (aff'd

on Gitereat spoents Bev California, US.

Co wy 316)); oa ae Peake ‘v. Clark, 50

612, 629 (1 ) (admission of evidence of

victim-impact held to be erroneous, but harmless, even

supra, 490 U.S. =. 813 3 (O'Connor Connor, J., dissenting); State

v. = iain 553 N 1070 (Ohio 1990) (Moyer

:

g

5

1

gE

ifferently demonstrates

the uncertainty of the law in this area.").)

SUMMARY OF ARGUMENT

A fundamental precept of justice is that the

punishment fit the crime. (Weems v. United States, 217

US. 349, 367 (1910).) In this country, that principle has

been expanded to allow the punishmént to fit the crime

and the offender. (Williams v. New York, 337 US. 241,

247 (1949).) The ’s decisions in Booth and Gathers

is never fully defined. Absent full definition of the harm

caused by defendant’s actions, his or her

"blameworthiness” cannot be assessed.

4

criminal justice Booth has relegated the victim

of a capital crime to a faceless, undifferentiated mass

contrary to evolving standards of decency. (See, Trop v.

Dulles, 356 U.S. 86, 101 (1958).) Since is contrary

to contemporary standards, too should serve as a

basis to abandon its

The considerable confusion created by Booth

serves as another basis for overruling the decision.

(Vasquez v. Hillery, 474 US. 254, 266 (1986).) In

footnote 10 of the opinion, the Court stated there could

be situations where victim impact evidence was admissible

because it related directly to the circumstances of the

offense. (Booth v. Maryland, supra, 482 US. at p. 507,

fn. 10.) Yet, in Gathers the Court held it was error for

the prosecutor to argue personal characteristics of the

victim which were ly admitted in evidence.

(Gathers, supra, 490 U.S. at pp. 811-812.) Moreover, as

noted in Justice O’Connor’s dissent in Gathers, states

have had great difficulty understanding and applying the

Booth rule. (Gathers, supra, 490 US. at p. 813

(O’Connor, J. dissenting).)

The of the Booth decision do not

justify retention of the rule. Contrary to the assumption

in Booth, the harm to society may be greater depending

upon the characteristics of the victim. The murder of a

police officer, parent or child harms society more than

the murder of a drug dealing child molester.

Although a murderer may not intend to kill to

harm society or the victim’s survivors, his or her intent is

not the only consideration in deciding the appropriateness

of the death penalty. (See, Tison v. Arizona, 481 US.

137, 150-151 (1987) (“reckless indifference" to human life

sufficient mental state to impose the death pe )-)

While the decision whether to victim

impact evidence prove a tactical problem for a

defendant, such difficulty does not constitute sufficient

reason to create or retain the exclusionary rule of Booth

-5-

so long as the defendant is allowed an opportunity to

rebut the evidence. (See McGautha v. California, 402

US. 183, 213 (1971).)

Finally, the concern that victim impact information

will create distracting “mini-trials" is based on a false

assumption, that is, that victim impact evidence is

irrelevant. If the legislative body determines such

evidence is relevant to the penalty determination, its

consideration is not the least bit di

Consequently, amici submit Booth and Gathers

should be reexamined and overruled, as an incorrect

statement of Eighth Amendment requirements.

BOOTH VY. MARYLAND AND SOUTH

CAROLINA V. GATHERS SHOULD BE

OVERRULED BECAUSE THE IMPACT

OF A CAPITAL CRIME ON THE

VICTIM, THE VICTIM’S SURVIVORS

AND SOCIETY IS PROPERLY

CONSIDERED IN’ DETERMINING

WHETHER DEATH IS THE

APPROPRIATE PUNISHMENT

In Booth v. Maryland, 482 US. 496 (1987), the

Court held it was a violation of the Eighth Amendment

for a jury to consider a statutorily required victim impact

statement at the sentencing a ca trial. In

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

applied Booth to hold it was reversible error for the

prosecutor to comment about the victim’s

characteristics in his argument to the jury. (Booth, supra

at p. 507, fn. 10; Gathers, supra at p. 811.)

Amici respectfully the Court to reconsider

and overrule Booth and . The holdings in those

cases are contrary to the cornerstones of criminal

sentencing jurisprudence in general and capital

sentencing in particular. Booth and Gathers distort the

ii

deprive the legislative body of the right to define what

evidence a jury should consider in determining the

appropriate punishment for a person convicted of a

capital offense.

stated, “it is a precept of justice that punishment for

crime my td nay and j to offense.”

(Yeems v. United States, 217 U.S. 349, 367 (1910).) The

notion the punishment should fit the offender as well as

the crime is of modern vintage. (Williams v. New York,

337 US. 241, 247 (1949).) Until Booth, severity of the

crime remained a legitimate basis upon which to analyze

the excessiveness of a particular sentence. (Gregg v.

Georgia, 428 U.S. 153, 173 (1976) (Opinion of Stewart,

Powell, and Stevens, JJ.).) re is nothing inherently

contradictory in fitting punishment to the crime and the

1In Act II of Gilbert and Sullivan’s The Mikado, Cicero’s axiom

is restated:

"My object all sublime

*] shall achieve in time—

"To make the punishment fit the crime."

~7a

an

Society permits the ultimate punishment because

Se ee nee So ae ae <

the offense. Capital punishment is an expression of

society’s moral outrage at offensive conduct.

¢ v. ia, , 428 US. at p. 183 (opinion of

tewart, Powell, and Stevens, JJ).) Palbaeneat which fits

the crime is inherent in an ordered society.

"The instinct for retribution is part of the nature

of man, and channeling that imstinct in the

administration of criminal justice serves an

important purpose in promoting the stability of a

society governed by law. When people begin to

2Booth recognized this proposition in footnote 12. (Booth,

supra at p. 509, fn. 12.) Although it expressed no opinion on the

use of victim impact information in contexts other than capital cases,

the Court recognized the widespread use of victim information in

such cases. Thus, the sentencing process in virtually all jurisdictions

allows the sentencing authority to impose a punishment which fits

both the crime (with full knowledge of the extent of harm caused by

the defendant) and the offender.

The Court attempted to distinguish such a sentencing model

from capital cases on the rationale that “death is different."

Recognizing the statement as a truism, there is no legitimate reason

to treat death cases differently from other criminal cases by creating

a separate constitutional jurisprudence for such cases. While the

Court may have good reason to examine death penalty cases closely

to see that constitutional rights have not been violated, there is

nothing in the Constitution which requires or allows different

constitutional rules for capital cases. (See Sawyer v. Smith, 497 U.S.

___ [111 L.B4.24 193, 211-212] (1990) (same retroactivity rules apply

to capital and non-capital habeas); Murray v. Giarratano, 492 US.

__. [106 LEd2d 1, 10-11] (1989) (plurality) (no requirement for

states to appoint counsel in state collateral review of capital cases);

Smith v. Murray, 477 U.S. 527, 538 (1986) (same procedural default

rules apply in capital cases as in non-capital cases).)

&-

believe that organized society is unwilling or

unable to impose upon criminal] offenders the

punishment they ‘deserve,’ then there are sown

the seeds of anarchy-of self-help, vigilante justice,

and lynch law." (Furman v. Georgia, 408 U.S. 238,

308 (1972) (Stewart, J., concurring).)

The majority in Booth took a novel approach to

the penalty equation. In analyzing the jury's nalty

phase task the Court referred to the

determination whether a capital defendant should face

the death penalty based on the character of the

individual and the circumstances of the crime. (Booth

v. Maryland, supra, 482 US. at p sea ayes, yew

462 U.S. 862, 879 (1983).) It Sunenie sesumind @

Court had never said the defendant’s sonnel,

characteristics and the immediate circumstances of the

crime were the only permissible sentencing

considerations. However, other factors must be

scrutinized to ensure the evidence has some bearing on

defendant’s “personal responsibility and moral guilt.”

(Booth, supra at p. 502; Enmund v. Florida, 458 U.S. 782,

801 (1982).)

The majority viewed evidence concerning the

victim and the impact of his/her death on iving family

members and society in general to be irrelevant in

assessing the "blameworthiness of a particular defendant"

and held, subject to narrowly defined exceptions, that the

prosecution may not introduce such evidence before a

SS (Booth, supra at pp. 504, 507, fn. 10.)

Court spotlighted the defendant to the

exclusion of the circumstances and consequences of the

crime. This view of the process is distorted and must be

brought back into focus. The majority’s conclusion seems

to be more a subjective conclusion about probative value

than one supported by Eighth or Fourteenth Amendment

of ine for

not shared a similar loss." G , Supra

. 515 (White, J., dissenting); see too, id. at p. 519

Scalia, J., dissenting); Gathers, supra, 490 U.S. at p. 814

O’ , J., dissenting); ot v. Maryland, 486 US.

np damage

actions fulfills the policy of fitting the punishment to the

j The i

allowed to fully define the crime so the jury may assess

the relative “blameworthiness” of the defendant. In a

pea} ape in State v. Huertas, 553 N.E.2d 1058

(Ohio 1990), a case wherein certiorari was origi

granted by the Court and subsequently dismissed January

22, 1991, (Ohio v. Huertas, 498 US. [112 LEd.2d

837]), Justice Resnick of the Ohio State Supreme Court

7In his dissent in Gathers, Justice Scalia discussed the

underlying basis of the Booth decision and concluded:

“Booth has not even an arguable basis in the

the harm caused by criminal acts in asscesing

responsibility. The Court’s opinion in Booth, like today’s

opinion, did not even try to assert the contrary. We

provide far greater reassurance of the rule of law by

eliminating than by retaining such « decision." (Gathers,

supra, 490 US. at p. 825 (Scalia, J., dissenting).)

—s

-10-

stated:

"(T]he conscience of the community cannot

properly be expressed if the sentencing authority

lacks knowledge of the effect the defendant's

crime had on the community and especially the

family, friends and associates of the victim."

States v. Huertas, supra, 553 N.E.2d at p. 1072

esnick, J., dissenting).)

This Court should not preclude the sentencing authority

from considering the whole of the loss.‘ The

Constitution does not require the limited approach of

Booth.

B. The People Have A Right To A Balanced Penalty

Proceeding

Another cornerstone of criminal jurisprudence is

the view that both sides are entitled to due process of

“In fact, analysis of the loss is mandatory in capital cases.

Capital punishment may not be inflicted for certain crimes

because those crimes do not possess the necessary degree of injury

to the person and the public. (Coker v. Georgia, 433 U.S. 584,

598 (1977) (opinion of White, J.) (rape of adult woman); Ennund

v. Florida, supra, 458 U.S. 782, 797 (armed robbery).) However,

notwithstanding the defendant’s mental! state, the death penalty

may be constitutionally imposed on the actual killer based on the

fortuity that a crime victim dies. (Tison v. Arizona, 481 U.S. 137,

148 (1987) (robbery-murder).) Victim impact does make a

difference.

Furthermore, if the consequences of a crime to the

immediate victim are relevant to punishment, the Constitution

must not prohibit a State or Congress from attaching significance

to the impact of a murder on surviving family members or socicty.

Young Nicholas Christopher was as much a victim as his dead

mother and sister. The impact of this crime on Nicholas should

not be deemed irrelevant in the constitutional sense.

a

Lt

law. Justice Cardozo stated for the Court:

"But justice, though due to the accused, is due to

the accuser also. The concept of fairness must

not be strained till it is narrowed to a filament.

We are to keep the balance true." (Snyder v.

Massachusetts, 291 U.S. 97, 122 (1934).)

This Court has repeatedly upheld the People’s

right to due process. In Fay v. New York, 332 US. 261

Sn res nee es ee en

ee a friendly jury, the Court

Pp-

loopholes for the guilty to go free,

en a ae ee eee oe

U.S. 368 (1968).) In United States v. Nixon, 418 US. 683

(1974), a unanimous Court found the very integrity of the

judicial system depended upon full access to evidence by

either side. (United States v. Nixon, supra at p. 709.)

The lesson is clear: hearings wherein only one side is

entitled to — evidence and argument are antithetical

to simple

The Court has consistently required a pate

phase jury be allowed to consider a wide

information concerning the background of the donee,

The sentencer may not be precluded from considering, as

a mitigating factor, any aspect of the offense or a

defendant’s character or record that the defendant

proffers as a basis for a sentence less than death.

(Lockett v. Ohio, 438 U.S. 586, 604 (1978) Peay Ek see

also Skipper v. South Carolina, 476 US. 1 (1

v. Oklahoma, 455 U.S. 104 (1982).) MA for

example, the California Supreme held it was error

to exclude a defendant’s poetry because it constituted

-12-

mitigation. (People v. Harris, 36 Cal.3d 36, 67-71 (1984)

(plurality).)

caring

get her life in order. Payne’s friend offered that he was

not an abuser of drugs or alcohol and it was inconsistent

with his character to have committed these offenses.

Payne’s parents both testified to his good character and

a clinical psychologist testified Payne was “mentally

handicapped.” (State v. Payne, 791 S.W.2d 10, 17 (Tenn.

1990).) In contrast, the State asked a single question

about the effect Payne’s crime had on Nicholas

Christopher, who was himself a victim of Payne’s

brutality. This, petitioner claims, constituted the

>The following question serves as the basis for petitioner's

claim:

*Q. Ms. Zvolanek [Nicholas’s grandmother], 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, Grandma, do you miss my Lacic.

(coatinued...)

-13-

violation of Booth. The Tennessee S me Court below

characterized the inequity of and Gathers by

stating:

"It is an afront (sic) 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 character of, or the harm

imposed, upon the victims." (State v. Payne, supra,

791 S.W.2d at p. 19.)

Another example clearly illustrates the unfairness

of the current rule. A defendant may introduce

testimony from a member of the victim’s family, who for

religious or other reasons, urges the jury to spare

defendant’s life. Trial courts feel compelled under

Lockett and Skipper to allow such testimony. However,

should the prosecution wish to rebut such testimony with

victim impact evidence from other family members who

spare

(even without expression of their opinion on the question

of punishment), such evidence may be inadmissible under

The Court should permit the States and

to allow each party an equal opportunity to address the

issue Of appropriate punishment. If the penalty is

constitutional, as the Court has repeatedly held, it cannot

be unconstitutional to permit the pros and cons in the

case to be heard. (Booth, supra, 482 US. at

particular

pp. 520-521 (Scalia, J., dissenting).)

a ma‘) :

(Trop v. Dulles, 356 US. 101 (1958) — of

Warren, CJ.); Gregg v. Georgia, supra, 428 US. at p. 173

(opinion of Stewart, Powell, and Stevens, JJ.).) Whether

by legislation or initiative, numerous states and the

federal government have provided a mechanism whereby

victims of crime and their families have a place in the

criminal justice system. (See, Booth, supra at p. 509, fn.

12.)

On June 8, 1982, the People of the State of California

amended the state constitution by passing Proposition 8, "The

Victims’ Bill of Rights." (Cal. Const, art. I, § 28) In article I,

section 28, subdivision (a), the California Constitution now reads:

"The People of the State of California find and

declare that the enactment of comprehensive provisions

and laws ensuring a bill of rights for victims of crime,

including safeguards in the criminal justice system to fully

protect those rights, is a matter of grave statewide

concern.

"The rights of victims pervade the criminal justice

system, encompassing not only the right to restitution

from the wrongdoers for financial losses suffered as a

result of criminal acts, but also the more basic

expectation that persons who commit felonious acts

causing injury to innocent victims will be

detained in custody, tried by the courts, and sufficiently

punished so that the public safety is protected and

4

This legislative change is a response to a

perception by society that the criminal justice system has

and those all the while ignoring the

rights of th> victim. holding in Booth and its

application in Gathers is the ultimate slap in the face to

relegating them to objects of is in

violation of standards of decency. Consequently, evolving

community standards cut strongly in favor of the

elimination of Booth and Gathers.

:

Hy

where students and staff have the right to be safe and

secure in their persons.

"To accomplish these goals, broad reforms in the

procedural treatment of accused persons and the

disposition and sentencing of convicted persons are

necessary and proper as deterrents to criminal behavior

and to serious disruption of people’s lives."

California Penal Code section 1191.1 is a consequence of

8. Section 1191.1 gives a crime victim, or certain

members of the victim’s family if the victim is a child or deceased,

a right to attend and be heard at criminal sentencing proceedings

in non-capital cases. (See, People v. Siripongs, 45 Cal 3d 548, 585-

586, (1988) fn. 12.)

As recognized by the Court in Booth, the vast majority of

States and the federal government have legislation which permits

the use of victim impact information in some contexts. (Booth,

supra, 482 US. at p. 509, fn. 12.) Without question, society has

evolved to the point where victims have rights in the criminal

justice system.

in Gathers refused to uphold comments by the prosecutor

-17-

an example of the confusion caused by Booth. Chief

Justice Moyer of the Ohio Supreme Court stated, "The

fact that the majority and two dissenters in this case all

interpret the opinions and footnotes in Booth and

Gathers differently demonstrates the uncertainty of the

law in this area." (State v. Huertas, supra, 553 N.E.2d at

p. 1070 (Moyer, CJ., concurring).) Justice O’Connor’s

dissent in Gathers presented additional examples of the

confusion begat by Booth. (Gathers, supra at p. 813

(O’Connor, J., dissenting).) Another graphic example is

provided by the California Supreme Court, which held it

was error (albeit harmless) to admit evidence of the

impact of a murder on the victim’s family where the

victim was killed because the defendant wanted the

victim’s wife to suffer because of her professional status

and professional relationship with the defendant. (People

v. Clark, 50 Cal.3d 583, 612, 629 (1990).)

The inability to accurately define the rule has

caused lower courts to give an overly expansive meaning

to Booth which makes rational application of the rule

perplexing, if not impossible. A rule of constitutional law

which breeds confusion or peculiar results should be

overruled. (Vasquez v. Hillery, 474 U.S. 254, 266 (1986).)

Booth created such a rule.

1. Victim Characteristics

The Booth Court was troubled by the implication

that defendants whose victims were “assets” to their

community are more deserving of punishment than those

whose victims are perceived to be less worthy. (Booth,

supra, 482 US. at p. 506, fn. 8.)

To the extent the Court was concerned a

-18-

sentencing body would be encouraged to rely on

unconscionable factors such as race, religion or political

affiliation of the victim in the sentencing decision, such

concern is unwarranted. Without question the State may

not rely on such factors in determining whether the death

penalty is appropriate for the same reasons the State

may not urge the death penalty because of the race,

religion or political affiliation of the defendant. (Zant v.

Stephens, supra, 462 U.S. at p. 885; Gathers, supra, 490

US. at pp. 821-822 (O’Connor, J., dissenting).)

to the majority’s analysis in Booth, there

is reason to conclude some murders are more harmful to

another, more concrete level, the harm and di

society may be greater depending upon who is

For example, the harm to society by the

the President of the Uni

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sags

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even though both murders were premeditated and carried

out under identical circumstances.

Additionally, under California law the status of

the victim is an element of many special circumstances

’This situation differs from a statute which allows imposition

of the death penalty where the defendant commits an intentional

killing because of the victim's race, color, religion, national origin

or other similar factor. (See, Cal Pen. Code, § 190.2, subd.

(a)(16).)

Another concern of the Booth majority pertained

to blameworthiness as it relates to the defendant’s inten

ee Ue ent 9 a ine a tl Mage Bl Hn ie ree

-20-

victim do not relate to the defendant’s blameworthiness.

(Booth, supra, 482 US. at pp. 504-505.) However, as

argued ip some detail above, there is nothing that

offends sensibilities by holding a murderer accountable

not only for his/her state of mind, but for the full extent

of harm caused. (See, Booth, supra at p. 516 (White, J.,

For example, though they share identical intents,

one who drives while under the influence and kills

Saige ant Gctutuss puakiunest Gaylene whe chugly

by my ee et Given

trier

compelling reason why a

should not be allowed to consider

such harm to occur, he may his lack of intent as a

circumstance in mitigation. However, intent to harm is

not a predicate for aggravation.

FEL

if ih tate

aE santas ils

ULAR HLT

ee

eae al

2 pe ep eee ate ~~

Bit

be a

i i ' ut

confusing the issues, or misleading the jury. (Cal Evid. Code, §

352; see, Fed. Rules of Bvid., rule 403.)

tne Petit ‘ rf ih a4

le alli i! nal ip r

fH it le TUTE

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-24-

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

although the several concurring opinions

acknowledge the heinous and atrocious character

of the offenses committed by the petitioners, none

of those opinions makes reference to the misery

the petitioners’ crimes occasioned to the victims,

ts for the respective petitioners,

particularly the oral arguments, were similarly and

curiously devoid of any reference to the victims.

There is risk, of course, in a comment such as

this, for it opens one to the charge of emphasizing

the retributive. (Citation.) Nevertheless, 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

d M

(Emphasis added.)

-25-

DATED: April 2, 1991.

LRH:lv

Respectfully submitted,

DANIEL E. LUNGREN, Attorney General

of the State of California

GEORGE WILLIAMSON, Chief Assistant

Attorney General - Criminal Division

HARLEY D. MAYFIELD, Senior Assistant

Attorney General

FREDERICK R. MILLAR, JR.

9 7 a

Wei A

LOUIS R. HANOIAN

Deputy Attorney General

Counsel for Amicus Curiae

State of California

SD91XU0003

APPENDIX

List of the Amici Curiae

State of Alabama

James H. Evans, Attorney General

250 Administration Building

64 North Union Street

Montgomery, Alabama 36130

State of Arizona

Grant Woods, Attorney General

1275 West Was

Phoenix, Arizona 85007

State of Colorado

Gale A. Norton, Attorney General

1525 Sherman Street

Third Floor

Denver, Colorado 80203

State of Connecticut

John J. Kelly, Chief State’s Attorney

340 Quinnipiac Street

Wallingford, Connecticut 06492

State of Florida

Robert A. Butterworth, Attorney General

State Capitol

Tallahassee, Florida 32399-1050

State of Indiana

E. Person, Attorney General

219 State House

Indianapolis, Indiana 46204

Commonwealth of Kentucky

Frederic J. Cowan, Attorney General

State Capitol

Frankfort, Kentucky 40601

State of

Maryland

J. —_ Curran, Jr., Attorney General

200 Paul Place

Baltimore, Maryland 21202-2021

State of Mississippi

Mike Moore, Attorney General

Carroll Gartin Justice Building

Post Office Box 220

Jackson, Mississippi 39205-0220

State of Missouri

William L. Webster, Attorney General

Supreme Court Building Box 899

Jefferson City, Missouri 65102

State of Montana

Marc Racicot, Attorney General

215 North Sanders

Helena, Montana 59620-1401

State of Nebraska

Don Stenberg, Attorney General

2115 State Capitol Building

Lincoln, Nebraska 68509-8920

State of Nevada

re Sue Del Papa, Attorney General

pitol Complex

Carson City, Nevada 89710

Columbia, South Carolina 29211

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