Petition for Writ of Certiorari — Lynn v. Reinstein

Supreme Court brief2004

Ask Donna

What actually matters in this document.

Text

Supreme Court of the Anited States

DUANE LYNN,

Petitioner,

Vv.

HON. PETER C. REINSTEIN, JUDGE OF THE

SUPERIOR COURT OF THE STATE OF ARIZONA,

IN AND FOR THE COUNTY OF MARICOPA,

Respondent,

and

RICHARD GLASSEL; STATE OF ARIZONA,

Real Parties in Interest.

On Petition For A Writ Of Certiorari

To The Supreme Court Of Arizona

PETITION FOR A WRIT OF CERTIORARI

STEVEN J. TWIST VIET D. DINH

ARIZONA VOICE FOR (Counsel of Record)

CRIME VICTIMS BANCROFT ASSOCIATES, PLLC

5009 East Marconi Avenue 2121 Bancroft Place, N.W.

Scottsdale, AZ 85254 Washington, D.C. 20008

(602) 418-8782 (202) 662-9324

TIMOTHY A. LASOTA MARGARET A. GARVIN

MILLER LASOTA NATIONAL CRIME VICTIM

& PETERS PLC LAW INSTITUTE

5225 North Central 10015 S.W. ‘Terwilliger Blvd.

Suite No. 235 Portland, OR 97219

Phoenix, AZ 80512 (503) 768-6253

(602) 248-2900

August 18, 2003 Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Does the Eighth Amendment erect a per se bar against

States permitting crime victims to offer an opirion on the

appropriate sentence in capital cases?

TABLE OF CONTENTS

SUBSTI PEIN BP xscscessevecyscionnexessessnesusousnses

ARs OF AUTRE eRe biicsesiyiscsssnssoivsensieniennes

OPINIONS BELOW .............. int nennalamawaneni dina sneniiies

FUT SITY se tiecenticsioeiaancinminenisiaininnaaae

CONSTITUTIONAL AND STATUTORY PROVI-

SSEIECED EEE VAARIT MORE svsnsrieuinejnnnioniessraumammnenamieneneens

STATIMEEIG S OF TEM CAT oosccscvcnsevevssesessvsenessesnses

REASONS FOR GRANTING THE PETITION .........

I. The Lower Courts Are Irreconcilably Split on

Whether the Eighth Amendment Erects a

Per Se Bar Against Victim Opinions About

the Appropriate Sentence in Capital Cases....

A. This Court Has Identified and Reserved

the Question Presented, but in a Manner

that Has Caused Confusion Below .......... :

B. Only this Court Can Resolve the Clear Con-

flict on Whether the Eighth Amendment

Bars Victim Sentencing Recommendations

Sh Oe CE CR ictiiveeitccuevtcedipoumentiagennes

II. Whether the Eighth Amendment Bars Ad-

mission of Victim Sentencing Recommenda-

tions is a Question of National Importance....

III. The Court Below Erred in Holding that It

Constitutes Cruel and Unusual Punishment

for the Husband of a Murdered Woman to

Seek Leniency for His Wife’s Killer................

A. The Eighth Amendment Does Not Erect

a Per Se Bar Against Victim Sentencing

Recommendations in a Capital Case .......

TABLE OF CONTENTS -— Continued

Page

B. Any Risk of Prejudice Is Addressed by Evi-

dentiary Prohibitions Against Inflammatory

Testimony and the Due Process Guarantee

of Fundamental Fairness ....................0068 23

TL PINEMIT sutehwererscccnseverisccsiesecssconsnsssnsstwseseensenees 25

TABLE OF AUTHORITIES

Page

CASES

Beck v. Commonwealth, 484 S.E.2d 898 (Va. 1997).......... 14

Booth v. Marvland, 482 U.S. 496 (1987)................06 passim

Brecht v. Abrahamson, 507 U.S. 619 (19938)..............ccceeee 16

Conover v. State, 933 P.2d 904 (Okla. Crim. App.

PID csc cssicenssidiidainkesbaniibgniiaiahsnsanlidesbaaaasiicaiabaendiaamaaaneet 5, 15, 24

Ex Parte McWilliams, 640 So.2d 1017 (Ala. 1993)............ 14

Furman v. Georgia, 408 U.S. 238 (1972).............ccececceeee ees 23

Hain v. Gibson, 287 F.3d 1224 (10th Cir.

eT caieialiesicuibsicigiedicnekscsesn Uaceaiasieisiababdiadiaeahibicininl 4, 5, 8, 13, 16

Hooper v. Mullin, 314 F.3d 1162 (10th Cir

SUE censisdlicnnsicenaesissianiinegpiabeieasdgitdicpsandlideaaes banana 5, 9, 14, 16

Ivey v. Catoe, 36 Fed. Appx. 718 (4th Cir. 2002),

cert. denied, 123 S. Ct. 420 (2002) ........sccccccocosesccscorsesees 14

Ledbetter v. State, 933 P.2d 880 (Okla. Crim. App.

PUTT Pvuichsscihsasdcnaaninidicduaniatileiinicadadanaaliminiatanidniiaisniedlisiaan 4,5, 15

Maryland v. Baltimore Radio Show, Inc., 338 U.S.

Oe Ce iihcceesccesiccceckphh ieee 16

Murphy v. State, 47 P.3d 876 (Okla. Crim. App.

2002), cert. denied, i123 S. Ct. 1795 (2003)............ passim

Ohio v. Huertas, 498 U.S. 336 (1991)............eeeeeeeeeeeeeeeees 12

Parker v. Bowersox, 188 F.3d 923 (8th Cir. 1999),

cert. denied, 529 U.S. 1038 (2000) ................ ccc eeeceeeeeeeeee 14

Payne v. Tennessee, 501 U.S. 808 (1991).................... passim

Snyder v. Massachusetts, 291 U.S. 97 (1934)................ 6, 19

South Carolina v. Gathers, 490 U.S. 805 (1989) ...10,.12, 20

TABLE OF AUTHORITIES — Continued

Page

State v. Fautenberry, 650 N.E.2d 878 (Ohio 1995),

cert. denied, 516 U.S. 996 (1995) .............ssesesccccceseeeenees 14

State v. Gonzales, 892 P.2d 838 (Ariz. 1995) ................0008. 21

State v. Huertas, 553 N.E.2d 1058 (Ohio 1990)................. 12

State v. Koskovich, 776 A.2d 144 (N.J. 2001)..................08. 14

State v. Middlebrooks, 995 S.W.2d 550 (Tenn. 1999)......... 14

State v. Pirtle, 904 P.2d 245 (Wash. 1995), cert.

denied, 518 U.S. 1026 (1996) .........eeeeseseseseeeeeeneneneneees 14

Trop v. Dulles, 356 U.S. 86 (1958) ..............sccccccccsscssecsesenes 22

Turrentine v. State, 965 P.2d 955 (Okla. Crim. App.

1997), cert. denied, 525 U.S. 1057 (1998) ............ 5, 15, 16

Ware v. State, 759 A.2d 764 (Md.), cert. denied, 531

Tide. BL CU cascovissoccheiesieeniitebiaianemnamimaanads 14

Weems v. United States, 217 U.S. 349 (1910).................... 22

Welch v. State, 2 P.3d 356 (Okla. Crim. App. 2000),

cert. denied, 531 U.S. 1056 (2000) ..............cccccccsssssssseees 16

Woods v. Johnson, 75 F.3d 1017 (5th Cir. 1996)................ 14

Young v. State, 12 P.3d 20 (Okla. Crim. App. 2000),

cert. denied, 532 U.S. 1055 (2001) .............cceesceeeeeees 15, 16

FEDERAL CONSTITUTIONAL PROVISIONS & STATUTES

CFA COSMIOE, GUUNI, Fite iacescesersiccesstsseccncanesinnmmcanmentinnal passim

BB TEED. © ED cinseussnscenttinstenavisnticsataiadadansadineieiieaelaaed 1

ER oR S|, 5 | eS NEE OREN S OE TS Set 9

ee. Be. CR, PG, TT soiitscesnvconiesntinantibncetrvconsncones 18

TABLE OF AUTHORITIES — Continued

Page

STATE CONSTITUTIONAL PROVISIONS & STATUTES

ASU. Conme. GFE. EE, FB. TA) seorosesvecseeccvsnscrssnccsnonssnseenovosie 1,4

Ariz. Rev. Stat. § 138-4426(A) (2001) .......... ce eeeeeeeeee 2,4

Po | Cr TTT 21

OTHER AUTHORITIES

Douglas E. Beloof, Constitutional Implications of

Crime Victims as Participants, 88 CORNELL L.

RINT. BE CD vsisnsrrecssvnsecennsineimnaaie 17, 22, 23

Theodore Eisenberg et al., Victim Characteristics

and Victim Impact Evidence in South Carolina

Capital Cases, 88 CORNELL L. REV. 306 (2003)............. 23

Wayne A. Logan, Opining on Death: Witness Sen-

tence Recommendations in Capital Trials, 41

B.C .ke, SEIU. GEG Cee xivicesecceneccinnsiuctuiciiidaiiinanetuanaedinns 5, 21

Federal Victims’ Rights Amendment: Hearing

Before the Subcomm. on the Constitution of the

House Comm. on the Judiciary, 107th Cong., 2d

SPO, CPx css cosesvesscsemaesestiansandiveiennnnbenianausmaenlianl 19

OPINIONS BELOW .

The opinion of the Arizona Supreme Court is reported

at 68 P.3d 412 (Ariz. 2003) and is reproduced herein at

App. 1. The opinion of the Arizona Court of Appeals is not

reported and is reproduced herein at App. 15. The opinion

of the trial court is not reported and is reproduced herein

at App. 19.

JURISDICTION

The Arizona Supreme Court filed its opinion on May

19, 2003, and issued its mandate on June 24, 2003. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eighth Amendment of the United States Consti-

tution:

Excessive bail shall not be required, nor exces-

sive fines imposed, nor cruel and unusual pun-

ishments inflicted.

Arizona Constitution, article II, section 2.1(A):

To preserve and protect victims’ rights to justice

and due process, a victim of crime has a right:

1. To be treated with fairness, respect, and

dignity, and to be free from intimidation,

harassment or abuse, throughout the crimi-

nal justice process.

* * *

4. To be heard at any proceeding involving a

post-arrest release decision, a negotiated

plea, and sentencing.

* * *

11. To have all rules governing criminal proce-

dure and the admissibility of evidence in all

criminal proceedings protect victims’ rights

and to have these rules be subject to amend-

ment or repeal by the legisiature to ensure

the protection of these rights.

Ariz. Rev. Stat. section 13-4426(A) (2001):

The victim may present evidence, information

and opinions that concern the criminal offense,

the defendant, the sentence or the need for resti-

tution at any aggravation, mitigation, presen-

tencing or sentencing proceeding.

STATEMENT OF THE CASE

On April 19, 2000, Richard Glassel, armed with

several handguns and an assault rifle, walked into a

crowded meeting of the Ventana Lakes Homeowners

Association and opened fire, killing Nila Lynn and Esther

La Plante and wounding three others. On December 9,

2002, a jury convicted Glassel of two counts of first degree

murder, qualifying Glassel for the death penalty based on

the multiple homicides as an aggravating factor.

Petitioner Duane Lynn witnessed the murder of his

wife Nila. Prior to trial, Petitioner asked the court to allow

him, should Glassel be convicted, to tell the jury about his

wife and the pain caused by her murder and also to

recommend, notwithstanding his loss, that the jury not

sentence Glassel to death but rather to life imprisonment.

The State objected to Petitioner’s request to recommend a

sentence; Glassel did not.

On November 12, 2002, the trial court ruled that

Petitioner may present a victim impact statement to the

jury but may not recommend a sentence. Reasoning that a

victim’s view of the appropriate sentence is not relevant as

a factor either in mitigation or in aggravation, the court

held that “[a] victim’s capital recommendation, whatever it

may be, is not admissible in this case.” App. 23. On De-

cember 23, 2002, the Arizona Court of Appeals accepted

Petitioner’s special action seeking reversal of the trial

court decision, but denied relief because it thought victim

recommendations are constitutionally irrelevant to the

sentencing decision. App. 15. On January 7, 2003, the

Arizona Supreme Court granted the Petition for Review

but denied a stay of the sentencing proceedings pending

its decision. On January 10, 2003, the jury sentenced

Glassel te death, without having heard Petitioner’s plea

for life.

The Arizona Supreme Court affirmed, holding that

“the Eighth Amendment to the United States Constitution

prohibits a victim from making a sentencing recommenda-

tion to the jury in a capital case.” App. 4. The court ac-

knowledged that, as a victim, Petitioner is entitled under

the Arizona Constitution to “‘be heard at any proceeding

involving .. . sentencing,’” App. 4 (quoting Ariz. Const. art.

II, § 2.1(A)(4) (alterations in original)), and under Arizona

law to offer “‘opinions that concern ... the sentence... at

any aggravation, mitigation, presentencing, or sentencing

proceeding.’” App. 4-5 (quoting Ariz. Rev. Stat. § 13-

4426(A) (2001) (alterations in original)). Nevertheless, the

court held that the Eighth Amendment bars the victim

from recommending a sentence and therefore did not

decide “whether Arizona law would permit such a recom-

mendation.” App. 4 n.2.

The court expressly recognized a conflict on whether

the Eighth Amendment erects a per se bar against victim

sentencing recommendations in capital cases between the

Oklahoma Court of Criminal Appeals, see Ledbetter v.

State, 933 P.2d 880 (Okla. Crim. App. 1997), and the Court

of Appeals for the Tenth Circuit, see Hain v. Gibson, 237

F.3d 1224 (10th Cir. 2002), and joined the split in favor of

the Tenth Circuit. App. 10.

REASONS FOR GRANTING THE PETITION

The Arizona Supreme Court held that it constitutes

cruel and unusual punishment for the husband of a

murdered woman to seek leniency for his wife’s killer. The

decision thus squarely presents the question whether the

Eighth Amendment erects a per se bar against a victim’s

sentencing recommendation in a capital case. The Court

deferred this question in Payne v. Tennessee, 501 U.S. 808

(1991), although the opinion in that case was ambiguous

as to what portions, if any, of Booth v. Maryland, 482 U.S.

496 (1987), survived.

This ambiguity has created a clear split of authorities

in the lower courts. The Court of Appeals for the Tenth

Circuit agrees with the court below that the Eighth

Amendment erects a per se bar to victim opinions about

the appropriate sentence in capital cases. See Hooper v.

Mullin, 314 F.3d 1162, 1174 (10th Cir. 2002); Hain v.

Gibson, 287 F.8d 1224, 1238-39 (10th Cir. 2002). By

contrast, the Oklahoma Court of Criminal Appeals, the

State’s criminal court of last resort, has definitively

reached the opposite conclusion and consistently permits

victims in capital cases to recommend the appropriate

sentence. Murphy v. State, 47 P.3d 876, 885 (Okla. Crim.

App. 2002), cert. denied, 123 S. Ct. 1795 (2003); Turrentine

v. State, 965 P.2d 955, 980 (Okla. Crim. App. 1997), cert.

denied, 525 U.S. 1057 (1998); Ledbetter v. State, 933 P.2d

880, 890-91 (Okla. Crim. App. 1997); Conover v. State, 933

P.2d 904, 920 (Okla. Crim. App. 1997)."

Because this Court’s opinions in Booth and Payne are

the source and center of this controversy, only this Court

can settle the dispute. There is no value in letting the

conflict percolate further because courts on both sides of

the split have, after expressly considering the alternative,

conclusively and repeatedly stated their conflicting opin-

ions. Indeed, the Oklahoma Court of Criminal Appeals has

* Even leaving aside this clear and explicit disagreement, confusion

reigns among the courts below as to whether victim recommendations

are constitutionally relevant to the sentencing dec sion, whether they

are relevant but unconstitutionally prejudicia! ‘o the sentencing

decision, and whether admitting such recommendations is unconstitu-

tional but harmless error. See, e.g., Wayne A. Logan, Opining on Death:

Witness Sentence Recommendations in Capital Trials, 41 B.C.L. REv.

517, 528 (2000) (reviewing authorities and noting that “it is readily

apparent that marked uncertainty now persists over the extent, and

indeed the continued existence, of the prohibition [against victim

sentencing recommendations] ostensibly established in Booth”).

interpreted this Court’s denial of past petitions for certio-

rari presenting the question as implicit approval of its

position, see Murphy, 47 P.3d at 885, a position that the

court below acknowledged but with which it expressly

disagreed.

The question presented is a matter of national impor-

tance. Successive Congresses have considered, and different

Administrations have supported, constitutional amendments

to “keep the balance true” between the rights of victims and

those of criminal defendants. The current bipartisan

proposal, Senate Joint Resolution 1, guarantees victims

the right to participate in sentencing proceedings and is

supported by the President and Attorney General of the

United States and forty-two State attorneys general.’ By

resolving the conflict below about the extent to which

States may afford crime victims the right to make sentenc-

ing recommendations, this Court would provide the legal

clarity necessary for the political branches and the States

to consider more fully the decision to amend the U.S.

Yonstitution and the content of any such amendment.

This case presents the ideal vehicle for the Court to

resolve the conflict in the lower courts and to clarify the

law. The court below acknowledged that Arizona law afforded

Petitioner the right to offer an opinion of the appropriate

sentence, but thought that the Eighth Amendment, without

* Snyder v. Massachusetts, 291 U.S. 97, 122 (1934).

* Forty-nine State governors endorsed a prior version of the

proposed amendment. The National Governors Association will consider

endorsement of Senate Joint Resolution 1 in the Fall of 2003.

exception, bars such opinions. Petitioner would have recom-

mended life; the State opposed such a recommendation; and

the criminal defendant supported Petitioner’s right to

recommend life but argued that a recommendation of

death would violate the Eighth Amendment. The Court

therefore has the unique opportunity to consider whether

the Constitution bars all victim recommendations, only

those that favor death, or only those that are unduly

inflammatory or prejudicial, thereby addressing the

panoply of questions relevant to the conflict and confusion

in the lower courts.

This Court, and only this Court, can answer these

interrelated questions with a straightforward clarification:

The holding in Payne v. Tennessee that “the Eighth Amend-

ment erects no per se bar,” 501 U.S. at 827, against victim

statements to the jury extends to statements about the

appropriate sentence. “There is no reason to treat such

evidence differently than other relevant evidence is

treated.” Jd. Any risk that such recommendation would be

unduly prejudicial is addressed by the evidentiary rules,

under which “courts routinely exclude evidence that is

unduly inflammatory,” id. at 831 (O’Connor, J., concurring),

or by the Due Process Clause, in cases where “a witness’

testimony or a prosecutor’s remark so infects the sentencing

proceeding as to render it fundamentally unfair.” Id.

I. The Lower Courts Are Irreconci ably Split on

Whether the Eighth Amendment Erects a Per

Se Bar Against Victim Opinions About the

Appropriate Sentence in Capital Cases.

_ This case centers on an ambiguity created by dictum

in Payne v. Tennessee, 501 U.S. 808 (1991). The Court in

that case overruled Booth v. Maryland, 482 U.S. 496

a a

- 8

(1987), and held that “if the State chooses to permit the

admission of victim impact evidence and prosecutorial

argument on that subject, the Eighth Amendment erects

no per se bar.” Payne, 501 U.S. at 827. The Court stated in

passing, and apparently in error, that “Booth also held

that the admission of a victim’s family members’ charac-

terizations and opinion abou‘ the crime, the defendant,

and the appropriate sentence violates the Eighth Amend-

ment.” Id. at 830 n.2 (emphasis added). Noting that the

victim in Payne did not present her view of the appropri-

ate sentence, the Court implicitly reserved the question

whether the Eighth Amendment barred admission of such

views. Ibid.

The ambiguity created by the Court’s apparently

erroneous reading of Booth has resulted in a clear split of

authorities in the lower courts. The Court of Appeals for

the Tenth Circuit has held that Payne, by implicitly

reserving the question, left intact Booth’s purported

prohibition against victim sentencing recommendations.

Hain v. Gibson, 287 F.3d 1224 (10th Cir. 2002). Other

courts have agreed.‘ In its opinion below, the Arizona

Supreme Court delved further and correctly noted that

“the facts in Booth make it unclear whether the Court in

that case considered the effect of the Eighth Amendment

on opinions regarding sentencing.” App. 8 n.4. However,

deferring to the Court’s dictum in Payne that character-

ized Booth as prohibiting sentencing recommendations,

the court below agreed with the Tenth Circuit that the

* See nn. 6-15, infra.

purported bar against victim sentencing recommendations

survived Payne.

By contrast, the Oklahoma Court of Criminal Appeals,

the State’s criminal court of last resort, has definitively

reached the opposite conclusion and consistently permits

victims in capital cases to recommend the appropriate

sentence. See Murphy v. State, 47 P.3d 876, 885 (Okla.

Crim. App. 2002), cert. denied, 123 S. Ct. 1795 (2003). The

reasoning is straightforward: Payne did not preserve a per

se bar against victim recommendation because Booth did

not address sentencing recommendations aid therefore

erected no such bar. Any suggestion that States may not

permit victims to recommend the appropriate sentence is

contradicted by the holding in Payne that “the Eighth

Amendment erects no per se bar.” Payne, 501 U.S. at 827.

The conflict will not be resolved without this Court’s

intervention. In its opinion below, the Arizona Supreme

Court expressly recognized the disagreement and joined

the split in favor of the Tenth Circuit. The Tenth Circuit

likewise has acknowledged its conflict with the Oklahoma

Court of Criminal Appeals and characterized the latter’s

position as so contrary to clearly established Supreme

Court precedent to warrant habeas review.’ For its part,

the Oklahoma Court of Criminal Appeals has interpreted

this Court’s denial of repeated petitions for certiorari

presenting the question as implicit approval of its position,

* See Hooper v. Mullin, 314 F.3d 1162, 1174 (10th Cir. 2002)

(“Although the OCCA concluded the trial court properly admitted this

testimony, we agree with Petitioner that the trial court’s decision to

admit the testimony is contrary to clearly established Supreme Court

precedent. See 28 U.S.C. 2254(d)(1).”)

see Murphy, 47 P.3d at 885, and rejected any “contention

that our interpretation of Payne and Booth, or for that

matter our own statute, is erroneous or unconstitutional.”

Ibid.

A. This Court Has Identified and Reserved

the Question Presented, but in a Manner

that Has Caused Confusion Below.

The source of this controversy is dictum in Payne v.

Tennessee, 501 U.S. 808 (1991). The Court there held that

“if the State chooses to permit the admission of victim

impact evidence and prosecutorial argument on that

subject, the Eighth Amendment erects no per se bar.”

Payne, 501 U.S. at 827. In so holding, the Court overruled

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

the admission of such a victim impact statement.

The Court in Payne limited the scope of its decision

with the following:

Our holding today is limited to the holdings of

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

Carolina v. Gathers, 490 U.S. 805 (1989) that evi-

dence and argument relating to the victim and the

impact of the victim’s death on the victim’s family

are inadmissible at a capital sentencing hearing.

Booth also held that the admission of a victim’s

family members’ characterizations and opinions

about the crime, the defendant, and the appro-

priate sentence violates the Eighth Amendment.

No evidence of the latter sort was presented at

the trial in this case.

Payne, 501 U.S. at 830 n.2 (emphasis added). See also id.

at 833 (O’Connor, J., concurring) (“Booth also addressed

another kind of victim impact evidence — opinions of the

victim’s family about the crime, the defendant, and the

appropriate sentence. As the Court notes in today’s deci-

sion, we do not reach this issue as no evidence of this kind

was introduced at petitioner’s trial.”)

The problem is that, despite the above language, the

Court in Booth was not presented with, did not address,

and erected no bar against victims’ characterizations about

the appropriate sentence. As the Arizona Supreme Court

below summarizes the matter:

The victims’ statements in Booth only indirectly

hinted at the punishment the victims were rec-

ommending. Indeed the only statements regard-

ing sentencing were that the victims did not

“think anyone should be able to do something

like [the murders at issue] and get away with it”

and that “the people who did this could never be

rehabilitated.” Booth, 482 U.S. at 508. No specific

recommendations regarding sentencing were

made. Thus the facts in Booth make it unclear

whether the Court in that case considered the ef-

fect of the Eighth Amendment on opinions re-

garding sentencing. In Payne, however, the Court

characterized Booth as prohibiting not only fam-

ily members’ opinions and characterizations, but

also recommendations of “the appropriate sen-

tence.” Payne, 501 U.S. at 830 n.2.

App. 4 n.2.

The victim impact statement at issue in Booth con-

tained two types of victim information: “First, it described

the personal characteristics of the victims and the emo-

tional impact of the crimes on the family. Second, it set

forth the family members’ opinions and characterizations

of the crimes and the defendant.” 482 U.S. at 502. The jury

was not presented with any victim recommendation for or

characterization of the appropriate sentence. There were

passing statements from the victims’ son that he “doesn’t

think anyone should be able to do something like that and

get away with it” and from the victims’ daughter that “she

doesn’t want them to be able to do this again or put an-

other family through this,” id. at 508, which the Court

rightly described as characterizations of the crimes and

the defendant.

That Booth did not consider a victim sentencing

recommendation is underscored by the history of Ohio v.

Huertas, 498 U.S. 336 (1991). In reversing a death sen-

tence because the jury considered a victim’s sentencing

recommendation, the Ohio Supreme Court stated that “the

type of evidence given by the victim’s family in this case

goes beyond that considered in Booth and Gathers. Here, a

family member offered his opinion on what the appropri-

ate sentence would be for the defendant.” State v. Huertas,

553 N.E.2d 1058, 1064 (Ohio 1990). Tnis Court granted

certiorari, 498 U.S. 807 (1991), but dismissed the petition

as improvidently granted, 498 U.S. 336 (1991), apparently

because the victim sentencing recommendation could be

excluded independently under state evidentiary rules.

Later that Term, the Court in Payne overruled Booth

with respect to the first category of victim impact informa-

tion and did not have occasion to consider the second

category. In reserving the latter question, however, the

Court for reasors unknown described the second category

as including nov only “family members’ opinions and

characterizations of the crimes and the defendant,” Booth,

482 U.S. at 502, but also “family members’ characterizations

and opinions about the crime, the defendant, and the appro-

priate sentence,” Payne, 501 U.S. at 830 n.2 (emphasis

added). Payne thus ascribed to Booth a category of victim

information that was not present in that case.

This apparently erroneous, or at least overly expan-

sive, characterization of the victim information at issue in

Booth is the center of the current controversy. The Court’s

mischaracterization not only reserves for later considera-

tion the question presented in this petition, but also

implicitly and anomalously preserves a rule — a per se ban

on victim sentencing recommendations — that did not exist

in prior law. This anomaly is the crux of the conflict in the

lower courts.

B. Only this Court Can Resolve the Clear

Conflict on Whether the Eighth Amend-

ment Bars Victim Sentencing Recommen-

dations in a Capital Case.

Because this Court’s opinions in Booth and Payne are

the source and center of this controversy, only this Court

can settle the dispute. The lower courts fundamentally

disagree whether Booth erected a per se bar against victim

sentencing recommendations in capital cases and whether

any such bar survives Payne. The conflict, in essence, is

one over the baseline Eighth Amendment rule before and

after the dictum in Payne that reserved judgment on the

question presented in this petition.

The Court of Appeals for the Tenth Circuit has held

that “the portion of Booth prohibiting family members of a

victim from stating ‘characterizations and opinions about

the crime, the defendant, and the appropriate sentence’

during the penalty phase of a capital trial survived the

holding in Payne and remains valid.” Hain v. Gibson, 287

F.3d 1224, 1238-39 (10th Cir. 2002) (quoting Payne, 501

U.S. at 830 n.2). See also Hooper v. Mullin, 314 F.3d 1162,

1174 (10th Cir. 2002) (same). The Tenth Circuit did not

question the assertion that Booth considered sentencing

recommendations and thus assumed that the baseline

rule, which it thought Payne left intact, was that the

Eighth Amendment erected a per se bar against victim

sentencing recommendations. Courts that have reached

similar conclusions include the Courts of Appeals for the

Eighth Circuit,’ the Fifth Circuit,’ and the Fourth Circuit’

in dictum and the highest courts of Alabama,” Maryland,”

New Jersey, Ohio,” Tennessee,” Virginia,“ and Washing-

ton.”

In its opinion below, the Arizona Supreme Court

questioned the assertion that Booth had erected a per se

bar against sentencing recommendations but ultimately

agreed with the Tenth Circuit. Delving further into the

* See Parker v. Bowersox, 188 F.3d 923, 931 (8th Cir. 1999), cert.

denied, 529 U.S. 1038 (2000) (dictum).

" See Woods v. Johnson, 75 F.3d 1017, 1037-38 (5th Cir. 1996)

(dictum).

* See Ivey v. Catoe, 36 Fed. Appx. 718, 725-26 (4th Cir.), cert.

denied, 123 S. Ct. 420 (2002) (dictum).

* See Ex Parte McWilliams, 640 So.2d 1015, 1017 (Ala. 1993).

* See Ware v. State, 759 A.2d 764, 783-86 (Md.), cert. denied, 531

U.S. 1115 (2000).

" See State v. Koskovich, 776 A.2d 144, 177 (N.J. 2001).

™ See State v. Fautenberry, 650 N.E.2d 87%, 882 (Ohio), cert.

denied, 516 U.S. 996 (1995).

* See State v. Middlebrooks, 995 S.W.2d 550, 558 (Tenn. 1999).

* See Beck v. Commonwealth, 484 S.E.2d 898, 906 (Va. 1997).

* See State v. Pirtle, 904 P.2d 245, 269 (Wash. 1995), cert. denied,

518 U.S. 1026 (1996).

history of Booth and Payne, the court correctly noted that

“the facts in Booth make it unclear whether the Court in

that case considered the effect of the Eighth Amendment

on opinions regarding sentencing.” App. 8 n.4. However,

the court “defer[red] to the Court’s interpretation of its

own case,” App. 8, n.4, and held that “Payne -did not

overrule and indeed left intact that portion of Booth which

the Court itself has characterized as prohibiting victims

from recommending a sentence in a capital case.” App. 8.

By contrast, the Oklahoma Court of Criminal Appeals,

the State’s criminal court of last resort, has definitively -

reached the opposite conclusion and consistently permits

victims in capital cases to recommend the appropriate

sentence. “In at least three decisions, this Court has taken

the position that Payne appears to have overruled Booth

with respect to the issue of whether or not victim impact

statements cowid include characterizations of the defen-

dant, the crirne, and opinions in regard to sentencing.”

Murphy v. State, 47 P.3d 876, 885 (Okla. Crim. App. 2002),

cert. denied, 123 S. Ct. 1795 (2003), (citing Turreniine v.

State, 965 P.2d 955, 980 (Okla. Crim. App. 1997), cert.

denied, 525 U.S. 1057 (1998); Ledbetter v. State, 933 P.2d

880, 890-91 (Okla. Crim. App. 1997); Conover v. State, 933

P.2d 904, 920 (Okla. Crim. App. 1997)).

Noting that this Court has denied past petitions

presenting the question, and that it has “continued to

approve of such evidence in other capital cases,” the

Oklahoma Court of Criminal Appeals reaffirmed its

consistent rejection of the argument that the court’s

“interpretation of Payne and Booth, or for that matter our

own statute, is erroneous or unconstitutional.” Murphy v.

State, 47 P.3d at 885 (citing Young v. State, 12 P.3d 20

(Okla. Crim. App. 2000), cert. denied, 532 U.S. 1055 (2001)

and Welch v. State, 2 P.3d 356 (Okla. Crim. App. 2000),

cert. denied, 531 U.S. 1056 (2000)).

The Oklahoma Court of Criminal Appeals, of course,

misstated the import of this Court’s denials of petitions for

certiorari, see Maryland v. Baltimore Radio Show, Inc.,

338 U.S. 912, 919 (1950) (Frankfurter, J., respecting

denial of the petition for certiorari), especially because

each of the previous petitions posed a vehicle problem to

this Court’s consideration of the question presented. In

two cases, the petitioner did not object and their argu-

ments were dismissed on plain error review. See Murphy,

47 P.3d at 885; Welch, 2 P.3d at 373. The defendant in

another case failed to elicit the victim’s opinion on the

appropriate sentence and unsuccessfully sought to reopen

the proceedings to censider her recommendation of life.

The appellate court held that the victim recommendation

would have been admissible, but that the trial court did

not abuse its discretion in denying the motion to reopen.

Young, 12 P.3d at 43. In Turrentine, the Oklahoma Court of

Criminal Appeals held that any constitutional error was

harmless beyond a reasonable doubt. 965 P.2d at 982.

Likewise, although the Tenth Circuit has held twice that

the Oklahoma courts erroneously permitted victim opin-

ions on the appropriate sentence, it further held in each

— case that “this constitutional error was harmless because

it did not have a ‘substantial and injurious effect or influ-

ence in determining the jury’s verdict.’” Hooper v. Mullin,

314 F.3d 1162, 1174 (10th Cir. 2002) (quoting Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993)); see also Hain v.

Gibson, 287 F.3d 1224, 1239-40 (10th Cir. 2002).

This case presents no such barriers to the Court’s

consideration of the question presented and, by contrast, is

the ideal vehicle for the Court to address the panoply of

ET Ce

questions relevant to the conflict and confusion in the

lower courts. The court below acknowledged that Arizona

law afforded Petitioner the right to offer an opinion on the

appropriate sentence, but thought that the Eighth

Amendment bars such opinions. Petitioner would have

recommended life; the State opposed such a recommenda-

tion; and the criminal defendant supported Petitioner’s

right to recommend life but argued that a recommendation

of death would violate the Eighth Amendment. The jurv

sentenced the defendant to death without having heard

Petitioner’s plea for life. The Court therefore has the unique

opportunity to consider whether the Constitution bars all

victim recommendations, only those that favor death, or only

those that are unduly inflammatory or prejudicial.

II. Whether the Eighth Amendment Bars Admis-

sion of Victim Sentencing Recommendations

is a Question of National Importance.

The question presented is a matter of national impor-

tance. The decision below casts constitutional doubt on the

laws and constitutions of forty States that afford victims

the right to participate in sentencing proceedings. “The

constitutions or statutes of forty.States either explicitly or

implicitly grant victims the right to give recommendations

at sentencing. Twenty-three of these States grant victims

the constitutional right to address the sentencing author-

ity. Seventeen States do not have the right in their consti-

tutions but grant the right by statute.” The Federal Rules

* See Douglas E. Beloof, Constitutional Implications of Crime

Victims as Participants, 88 CORNELL L. REV. 282, 286-87 (2003); see also

id. at 299-305 (collecting authorities).

likewise entitle victims of violent crime to “make a state-

ment or present any information in relation to the sen-

tence.” Fed. R. Crim. Proc. 32(i)(4)(B).

This democratic trend in favor of victim participation

in sentencing proceedings underscores the national impor-

tance of the question presented — a question that is juris-

prudentially intertwined with the popular will. As Justice

O’Connor has observed,

The Eighth Amendment stands as a shield

against those practices and punishments which

are either inherently cruel or which so offend the

moral consensus of this society as to be deemed

‘cruel and unusual.’ Certainly there is no strong

societal consensus that a jury may not take into

account the loss suffered by a victim’s family or

that a murder victim must remain a faceless

stranger at the penalty phase of a capital trial.

Just the opposite is true. Most States have en-

acted legislation enabling judges and juries to

consider victim impact evidence.

Payne, 501 U.S. at 831 (O’Connor, J., concurring) (internal

quotations omitted). The Court in this case can ensure

that whether victims may recommend the appropriate

sentence remains “a question to be decided through the

democratic processes of a free people,” Booth, 482 U.S. at

520 (Scalia, J., dissenting).

Although the democratic processes have resulted in

strong protections for victim participation in sentencing

proceedings, “[nlone of these State or Federal laws are

able to match the constitutionally protected rights of

offenders.”” Given this structural imbalance, successive

Congresses have considered, and different Administrations

have supported, constitutional amendments to “keep the

balance true”” between the rights of victims and criminal

defendants. The current bipartisan proposal, Senate Joint

Resolution 1, guarantees victims the right to participate in

sentencing proceedings and is supported by the President

and Attorney General of the United States and forty-two

State attorneys general. By resolving the conflict below

about the extent to which States may afford crime victims

the right to make sentencing recommendations, this Court

would provide the legal clarity necessary for the political

branches and the States to consider more fully the decision

to amend the U.S. Constitution and the content of any

such amendment.

Ill. The Court Below Erred in Holding that It

Constitutes Cruel and Unusual Punishment

for the Husband of a Murdered Woman to

Seek Leniency for His Wife’s Killer.

This Court can resolve the conflict in the lower courts

and eliminate the confusion in the law with a straightfor-

ward clarification: The holding in Payne v. Tennessee that

“the Eighth Amendment erects no per se bar,” 501 U.S. at

827, against victim statements to the jury extends to

statements about the appropriate sentence. “There is no

" Federal Victims’ Rights Amendment: Hearing Before the Sub-

comm. on the Constitution of the House Comm. on the Judiciary, 107th

Cong., 2d Sess. 39 (2002) (statement of Roberta Roper, National

Victims’ Constitutional Amendment Network).

* Snyder v. Massachusetts, 291 U.S. 97, 122 (1934).

reason to treat such evidence differently than other

relevant evidence is treated.” Ibid. Any risk that such

recommendation would be unduly prejudicial is addressed

by the evidentiary rules, under which “courts routinely

exclude evidence that is unduly inflammatory,” id. at 831

(O’Connor, J., concurring), or by the Due Process Clause,

in cases where “a witness’ testimony or a prosecutor’s

remark so infects the sentencing proceeding as to render it

fundamentally unfair.” [bid.

A. The Eighth Amendment Does Not Erect a

Per Se Bar Against Victim Sentencing

Recommendations in a Capital Case.

Nothing in the text or history of the Eighth Amend-

ment supports the conclusion reached by the Arizona

Supreme Court that “the Eighth Amendment to the

United States Constitution prohibits a victim from making

a sentencing recommendation to the jury in a capital

case.” App. 4.

The cornerstone of this Court’s decision to overrule

Booth and Gathers was fairness — fairness to the victim

and fairness in the administration of justice. The per se

bar to victim impact statements erected by Booth “unfairly

weighted the scales in a capital trial.” Payne, 501 U.S. at

822. In Payne, this Court noted that a litany of persons —

the defendant’s girlfriend and parents, and even a psy-

chologist — testified favorably about the defendant during

sentencing, id. at 825-26, while very little was allowed to

be said about the victim. Jd. at 826. This Court recognized

the manifest unfairness of the per se bar erected by Booth

and quoted the Tennessee Supreme Court approvingly:

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 back-

ground, 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.

Id. at 826 (quoting State v. Payne, 791 S.W.2d 10, 19 (Tenn.

1990)).

Despite this Court’s decision in Payne, fairness for

victims remains elusive. During the penalty phase of a

capital trial, Arizona law specifically affords the defendant

a right of allocution. See Ariz. R. Crim. Proc. 19.1(d)(5).

This right of allocution permits not only the defendant, but

also his family, to recommend a sentence to the jury. See

State v. Gonzales, 892 P.2d 838, 851 (Ariz. 1995) (permit-

ting statement from family members that they “would

continue a relationship with [defendant] if he were sen-

tenced to prison instead of death”).” After Payne, crime

victims in Arizona enjoy a constitutional and statutory

right of allocution, similar to that of the defendant.”

Similar, but neither coterminous nor comparable, because

* See also Wayne A. Logan, Opining On Death: Witness Sentence

Recommendations in Capital Trials, 41 B.C.L. REV. 517, 545-46 (2000)

(“(Clourts regularly allow ‘pleas for mercy’ by defense witnesses.

Allocution, when the capital defendant himself addresses the sentenc-

ing authority on the question of death, inevitably bears a close similar-

ity as well.”) (citations omitted).

* A victim at times may be called to make a statement as a

witness. In other cases, as in this one, the victim has a constitutional or

statutory right of allocution and addresses the sentencing authority as

a participant in the proceedings.

the court below held that the Eighth Amendment circum-

scribed that right to preclude any victim opinion on the

appropriate sentence. \

This Court has long recognized that the Eighth }

Amendment’s prohibition on cruel and unusual punish- |

ment “is not fastened to the obsolete, but may acquire

meaning as public opinion becomes enlightened by a

humane justice.” Weems v. United States, 217 U.S. 349,

378 (1910). Further, the Eighth Amendment’s prohibition

against cruel and unusual punishments “draw[s] its

meaning from the evolving standards of decency that mark

the progress of a maturing society.” Trop v. Dulles, 356

U.S. 86, 101 (1958) (plurality opinion). If there is one clear

characteristic of the “evolving standards of decency that

mark the progress of a maturing society,” it is the recogni-

tion that victims, like defendants, should have a voice at

sentencing.

Petitioner’s research has not identified any decision

holding that the Constitution prohibits victims from

recommending the appropriate sentence in non-capital

cases.” Indeed, death is different, but no salient differ-

ences distinguish capital and non-capital cases when it

comes to the right of allocution. “Ultimately, the argument

for unconstitutionality is based on the possibility of preju-

dice to the jury; yet empirical evidence directly contradicts

* Beloof, supra, at 289 n.51 (“Every state ruling on the constitu- /

tionality of victim recommendations in noncapital cases has held that \

trial court judges can hear all three types of impact evidence, including

sentencing recommendations that are in the public interest.”) (collect-

ing authorities).

me RT Te

the assumption that jurors are readily influenced, much

less prejudiced, by participant recommendations.”™

Absent a victim sentencing recommendation, having

heard a statement “about the victim and the impact of the

murder on the victim’s family,” a capital jury is left to

speculate what the victim might think about the appropri-

ate sentence. Such speculation invites error, as in this

case, where Petitioner spoke at length about his love for

his wife and the terrible loss from her murder but was

barred from saying that, notwithstanding the loss and his

general support for capital punishment, this was not an

appropriate case for the death penalty. The jury's specula-

tion, fueled by the victim’s silence, leads to the very

“arbitrariness” condemned by this Court.”

B. Any Risk of Prejudice Is Addressed by

Evidentiary Prohibitions Against Inflam-

matory Testimony and the Due Process

Guarantee of Fundamental Fairness.

Any risk that a victim’s sentencing recommendation to

a capital jury would be unduly prejudicial is addressed by

the evidentiary rules, under which “courts routinely

exclude evidence that is unduly inflammatory,” id. at 831

(O’Connor, J., concurring), or by the Due Process Clause,

in cases where “a witness’ testimony or a prosecutor’s

* Beloof, supra, at 291 (citing Theodore Eisenberg et al., Victim

Characteristics and Victim Impact Evidence in South Carolina Capital

Cases, 88 CORNELL L. REV. 306, 340 (2003)).

* Payne, 501 U.S. at 827.

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

remark so infects the sentencing proceeding as to render it

fundamentally unfair.” Ibid.

A per se bar to all victim capital sentencing recommen-

dations is unnecessarily broad given the ability of the trial

court to properly focus the jury’s deliberations and main-

tain courtroom decorum through the use of instructions.

Courts routinely correct, through instructions, inappropri-

ate emotional displays in the courtroom, and victim

opinions on the proper sentence can be similarly handled.

Excessive emotions can also be exhibited by the defendant

and his family when they opine on the sentence or by the

victims when they talk about the impact of the crime. No

justification exists to single out victim opinions about the

appropriate sentence for a per se bar.

The Oklahoma Court of Criminal Appeals has recog-

nized the illogic and unfairness of singling out victim

sentencing opinions for per se treatment and allows “a

simple statement of the recommended sentence without

amplification.” In this case, Petitioner told the jury about

his wife Nila and their life together. He told the jury about

her murder and the pain it caused. Permitting him to take

just one more step in the path toward closure and conclude

his statement with a simple request that the jury spare

the defendant’s life would in no conceivable way constitute

cruel and unusual punishment.

* Conover v. State, 933 P.2d 904, 921 (Okla. Crim. App. 1997).

CONCLUSION

For the foregoing reasons, the Court should grant the

petition for a writ of certiorari.

Respectfully submitted,

STEVEN J. TWIST VIET D. DINH

ARIZONA VOICE FOR (Counsel of Record)

CRIME VICTIMS BANCROFT ASSOCIATES, PLLC

5009 East MarconiAvenue 2121 Bancroft Place, N.W.

Scottsdale, AZ 85254 Washington, D.C. 20008

(602) 418-8782 (202) 662-9324

TIMOTHY A. LASOTA MARGARET A. GARVIN

MILLER LASOTA NATIONAL CRIME VICTIM

& PETERS PLC LAW INSTITUTE

5225 North Central 10015 S.W. Terwilliger Blvd.

Suite No. 235 Portland, OR 97219

Phoenix, AZ 80512 (503) 768-6253

(602) 248-2900

August 18, 2003 Counsel for Petitioner

App. 1

68 P.3d 412

SUPREME COURT OF ARIZONA

DUANE LYNN, ) Arizona Supreme

a ) Court No.

Petitioner, ) CV-02-0435-PR

™ ) Court of Appeals

HON. PETER C. REINSTEIN, ? Division One

JUDGE OF THE SUPERIOR No. 1 CA-SA 02-0309

COURT OF THE STATE OF

ARIZONA, in and for the ) Maricopa County

County of Maricopa ) Superior Court

) No. CR 2000-006872

Respondent Judge, ) OPINION

RICHARD GLASSEL;

STATE OF ARIZONA ) (Filed May 19, 2003)

keal Parties in Interest. )

Special Action from the Superior Court in Maricopa County

The Honorable Peter C. Reinstein, Judge

AFFIRMED

Court of Appeals, Division One

Decision Order, filed December 23, 2002 :

AFFIRMED

MILLER LaSOTA & PETERS, P.L.C. Phoenix

by Timothy A. LaSota .

and

Arizona Voice for Crime Victims Scottsdale

by Steven J. Twist

Attorneys for Petitioner

App. 2

ROBERT S. BRINEY,

MARICOPA LEGAL DEFENDER Phoenix

by Dennis C. Jones

Attorneys for Real Party in Interest, Richard J. Glassel

RICHARD M. ROMLEY,

MARICOPA COUNTY ATTORNEY Phoenix

by Paul J. McMurdie

Attorneys for Real Party in Interest, State of Arizona

BERCH, Justice

"1 Richard Glassel opened fire at a homeowners’ asso-

ciation meeting, killing Nila Lynn, Petitioner Duane

Lynn’s wife. In the ensuing first degree murder case

against Glassel, Petitioner asserted a right under Ari-

zona’s Victims’ Bil! of Rights, Ariz. Const. art. 2, § 2.1, to

tell the jurors what sentence he thought they should

impose on Glassel. He seeks review of the rulings of the

trial court and court of appeals that he may not state his

opinion on that subject.

BACKGROUND

2 Richard Glassel was convicted of murdering Peti-

tioner’s wife of nearly fifty years. Petitioner asked the

court to allow him, during the sentencing phase of Glas-

sel’s trial, to tell the jury not only about his wife’s charac-

ter and the loss caused by Glassel’s acts, but also to

express his opinion regarding the appropriate sentence to

be imposed. The motion stated Petitioner’s intent to

recommend that Glassel receive a sentence of life in

prison. Glassel did not object to Petitioner’s request to

recommend leniency, but the State did.

App. 3

3 The trial judge allowed the victim impact state-

ments, but denied the motion as to sentencing

recommendations, concluding that a victim’s sentencing

recommendations are not relevant to either the mitigating

or aggravating factors involved in capital sentencing and

that precluding Petitioner’s opinion on sentencing did not

violate his rights as a crime victim.

14 The court of appeals accepted jurisdiction of Peti-

tioner’s special action, but denied relief. Lynn v. Reinstein

(Glassel), 1 CA-SA 02-0309, 4 (Ariz. App. Dec. 23, 2002)

(dec. order). The court observed that nearly all states

prohibit victims from offering sentencing recommenda-

tions in capital cases. Jd. at 2. The court also found Ari-

zona case law clear that “sentencing recommendations

offered by a deceased’s survivors have no relevance in a

capital case.” Id. at 3 (quoting State v. Bocharski, 200 Ariz.

50, 62, | 64, 22 P.3d 43, 55 (2001)). -

a ee

15 Although Glassel has already been sentenced, we

accepted review because the question whether a victim in

a capital case may express an opinion as to what sentence

the jury should impose may arise in future cases. See Ariz.

Const. art. 6, § 5(3) (granting authority to review cases);

Ariz. R.P. Spec. Act. 8(b); ARCAP 23. Following binding

' Petitioner does not claim that he was not allowed to provide

information regarding his wife or the impact of the crime on his life.

While the record in this special action is not developed on this point, we

presume that Petitioner was permitted to give a victim impact state-

ment, which, by statute, may include “information about the murdered

person and the impact of the murder on the victim and the other family

members.” Ariz. Rev. Stat. (“A.R.S.”) § 1:'-703.01(Q) (Supp. 2002). We

therefore assume that, at the appropriate time, Petitioner was allowed

to present such information.

App. 4

precedent from the United States Supreme Court, we hold

that the Eighth Amendment to the United States Consti-

tution prohibits a victim from making a sentencing rec-

ommendation to the jury in a capital case.”

DISCUSSION

96 The Arizona Victims’ Bill of Rights “protect({s] victims’

rights to justice and due process.” Ariz. Const. art. 2,

§ 2.1(A). As one whose spouse was murdered, Petitioner

qualifies as a victim of a crime. See id. § 2.1(C) (including

the spouse of a person against whom a crime has been

committed as a “victim”); Ariz. Rev. Stat. (“A.R.S.”) § 13-

703.01(R\2) (Supp. 2002) (same). As such, Petitioner is

entitled by the Arizona Victims’ Bill of Rights to “be heard

at any proceeding involving ... sentencing.” Ariz. Const.

art. 2, § 2.1(A)(4); see also A.R.S. § 13-4426(A), (B) (2001)

(affording victims the right to “address the court” regard-

ing “opinions that concern ... the sentence ... at any

aggravation, mitigation, presentencing, or sentencing

* See_U.S. Const. art. VI, cl. 2; accord State v. Ring, __ Ariz. __,

9 61, 65 P.3d 915, 938 (2003) (“We cannot ignore a Supreme Court

decision interpreting federal law unless the Court expressly overrules

or casts cognizable doubt on that decision.”). Because we hold that the

Eighth Amendment prohibits a victim from making a sentencing

recommendation to the jury in a capital case, we do not discuss whether

Arizona law would permit such a recommendation. Although we usually

decide issues of statutory construction before delving into constitutional

issues, the clarity of the Supreme Court’s Eighth Amendment analysis

on this point renders the additional analysis unnecessary. See R.L.

Augustine Constr. Co. v. Peoria Unified Sch. Dist. No. 11, 188 Ariz. 368,

370, 936 P.2d 554, 556 (1997) (stating that this court “will not reach a

constitutional question if a case can be fairly decided on nonconstitu-

tional grounds”).

App. 5

proceeding”). At issue in this case is whether that right

encompasses a right to opine regarding the sentence itself,

or whether the right is limited to offering testimony

regarding the victim and the impact of the crime upon the

victim and the victim’s family.

17 The rights granted to victims are to “be liberally

construed.” A.R.S. §-13-4418. Petitioner contends that a

liberal construction of the Arizona Constitution and

victims’ rights statute ; compels the conclusion that a

victim may recommend to the jury in a capital sentencing

proceeding the sentence that the victim believes the jury

should impose.’ He reasons that because victims’ opinions

on sentencing are admissible in non-capital cases, they

should also be allowed in capital cases, for “[nJothing ...

suggests that, as the severity of the crime escalates, the

victim’s rights should diminish.”

18 To the contrary, however, Supreme Court death

penalty jurisprudence has recognized that “death is a

‘punishment different from all other sanctions,’ and that

therefore the considerations that inform the sentencing

decision may be different from those that” apply to other

punishments. Booth v. Maryland, 482 U.S. 496, 509 n.12,

107 S. Ct. 2529, 2536 n.12 (1987) (internal citation omit-

ted), overruled in part by Payne v. Tennessee, 501 U.S. 808,

111 S. Ct. 2597 (1991). Thus, while states generally enjoy

latitude in designing and implementing their criminal

justice systems, “the Eighth Amendment imposes special

* During the course of the special action proceedings, Petitioner

apparently changed his recommendation from life in prison to death.

Glassel ther: bjected to allowing Petitioner to make a recommendation.

App. 6

limitations” upon the process for imposing the death

penalty. Payne, 501 U.S. at 824, 111 S.Ct. at 2607-08.

Consequently, Arizona may not permit victims to recom-

mend sentences in capital cases if the Eighth Amendment

prohibits such recommendations.

19 In 1987, the Supreme Court examined the admissibil-

ity in a capital trial of the victims’ statements regarding

the impact of the defendant’s crimes. See Booth, 482 U.S.

at 496, 107 S.Ct. at 2529. The victims’ statements in

Booth fell into three categories: (1) statements regarding

the deceased’s personal characteristics; (2) statements

regarding the impact of the crime on the victims’ family;

and (3) the victims’ “family members’ characterizations

and opinions about the crime, the defendant, and the

appropriate sentence.” Payne, 501 U.S. at 830 n.2, 111

S. Ct. at 2611 n.2 (characterizing the victim impact evi-

dence in Booth). The Court observed that sentencing

decisions must be based only “on ‘the character of the

individual [defendant] and the circumstances of the

crime.’” Booth, 482 U.S. at 502, 107 S. Ct. at 2532 (quoting

Zant v. Stephens, 462 U.S. 862, 879, 103 S. Ct. 2733, 2743

(1983)). The Court therefore carefully scrutinized a state

statute requiring the consideration of information regard-

ing the victim, in order to minimize “the risk that a death

sentence will be based on considerations that are ‘constitu-

tionally impermissible or totally irrelevant to the sentenc-

ing process.’” Id. at 502, 107 S. Ct. at 2533 (quoting Zant,

462 U.S. at 885, 103 S. Ct. at 2747). The Court determined

that victims’ opinions regarding the crime and appropriate

sentence “can serve no other purpose than to inflame the

jury and divert it from deciding the case on the relevant

evidence concerning the crime and the defendant.” Id. at

508, 107 S. Ct. at 2536. In a sharply divided opinion, the

App. 7

Court held that “the introduction of a [victim impact

statement] at the sentencing phase of a capital murder

trial violates the Eighth Amendment,” and therefore held

unconstitutional a state statute requiring the considera-

tion of such information. Id. at 509, 107 S. Ct. at 2536.

110 The four-member dissent in Booth .ocused on

society's growing concern for the rights of victims of crime,

a concern that has culminated in a movement to address

“the failure of courts of justice to take into account in their

sentencing decisions not only the factors mitigating the

defendant’s moral guilt, but also the amount of harm he

has caused to innocent members of society.” Id. at 520, 107

S.Ct. at 2542 (Scalia, J., dissenting). The majority’s

limitation of relevant evidence regarding a defendant’s

blameworthiness also troubled the Court’s dissenting

members. Justice White observed that the harm caused by

a defendant’s criminal conduct should be relevant to

sentencing and that a murderer should be held “account-

able not only for his internal disposition in committing the

crime but also for the full extent of the harm he caused.”

Id. at 516, 107 S. Ct. at 2540 (White, J., dissenting).

111 Just four years later, the Court overruled aspects of

Booth’s broad prohibition on the presentation of victim

impact evidence. Payne, 501 U.S. at 827-30 & n.7, 111

S. Ct. at 2609-11 & n.7. While not ruling all victim state-

ments admissible, the Court in Payne determined that a

witness's testimony regarding the effect of the defendant’s

crime may be relevant to sentencing, and it removed the

per se bar to the admission of such evidence that Booth

had erected. Id. at 825-27, 111 S. Ct. at 2608-09.

112 Petitioner asserts that Payne overruled all barriers

to the admissibility of victim opinion statements. We think

App. 8

Petitioner “moves too quickly over the terrain we must

cover.” Caterpillar, Inc. v. Lewis, 519 U.S. 61, 73, 117 S. Ct.

467, 475 (1996). The Court’s opinions in Payne are care-

fully circumscribed. The majority opinion notes that the

case did not involve victim statements regarding the

appropriate sentence to be imposed. Payne, 501 U.S. at

830 n.2, 111 S. Ct. at 2611 n.2. Justice O’Connor’s concur-

ring opinion, in which Justices White and Kennedy joined,

echoes this limitation, id. at 833, 111 S. Ct. at 2612-13

(O’Connor, J., concurring), as does Justice Souter’s concur-

ring opinion, id. at 835 n.1, 111 S. Ct. at 2614 n.1 (Souter,

J., concurring) (“This case presents no challenge to the

Court’s holding in Booth v. Maryland that a sentencing

authority should not receive a third category of informa-

tion concerning a victim’s family members’ characteriza-

tion of and opinions about the crime, the defendant, and

the appropriate sentence.”). Thus Payne did not overrule

and indeed left intact that portion of Booth that the Court |

itself has characterized as prohibiting victims from rec-

ommending a sentence in a capital case.‘ Jd. at 830 n.2,

111 S. Ct. at 2611 n.2.

‘ The victims’ statements in Booth only indirectly hinted at the

punishment the victims were recommending. Indeed the only state-

ments regarding sentencing were that the victims did not “think

anyone should be able to do something like [the murders at issue] and

get away with it” and that “the people who did this could [nJever be

rehabilitated.” Booth, 482 U.S. at 508, 107 S. Ct. at 2535-36. No specific

recommendations regarding sentencing were made. Thus the facts in

Booth make it unclear whether the Court in that case considered the

effect of the Eighth Amendment on opinions regarding sentencing. In

Payne, however, the Court characterized Booth as prohibiting not only

family members’ opinions and characterizations, but also recommenda-

tions of “the appropriate sentence.” Payne, 501 U.S. at 830 n.2, 111

S. Ct. at 2611 n.2. We defer to the Court’s interpretation of its own case.

App. 9

113 The Court’s opinion in Payne recognized that the

characteristics of the victim and the impact of the crime on

the victim’s family may be relevant in determining

blameworthiness and culpability and in assessing the

harm caused by the defendant’s conduct and, therefore,

such evidence is relevant in determining whether the

death penalty should be imposed. See id. at 825-27, 111

S. Ct. at 2608-09. The Court concluded that, in determin-

ing a “defendant’s moral culpability and blameworthi-

ness,” states may allow jurors to hear evidence of the

specific harm the defendant has caused. Id. at 825, 111

S. Ct. at 2608. The Court reasoned that because victim

impact evidence serves “entirely legitimate purposes,” id.,

“[t]here is no reason to treat such evidence differently than

other relevant evidence is treated.” Id. at 827, 111 S. Ct. at

2609. But while Payne overruled Booth’s per se ban on

victims’ statements regarding the victim and the impact of

the crime on the victim’s family, it did not find victims’

sentencing opinions relevant.* Jd. at 827, 830 & n.2, 111

S. Ct. at 2609, 2611 & n.2; accord State v. Sansing, 200

Ariz. 347, 358, 7] 35-37, 26 P3d 1118, 1129 (2001) (affirm-

ing the trial court’s refusal to consider the victim’s ten-

year-old daughter’s request for mercy as a mitigating

* The “relevance” referred to in Booth differs from that set forth in

the state rules of evidence. It is a constitutional concept that considers

whether information that may bear upon the capital sentencing

decision creates a constitutionally unacceptable risk that jurors may

impose a death sentence based upon impermissible arbitrary and

emotional factors. Booth, 482 U.S. at 504-05 & n.7, 107 S. Ct. at 2533-

34 & n.7.; cf. Eddings v. Oklahoma, 455 U.S. 104, 110, 113-14, 102

S. Ct. 869, 874, 876-77 (1982); Lockett v. Ohio, 438 U.S. 586, 604-05, 98

S. Ct. 2954, 2964-65 (1978) (discussing Eighth Amendment constitu-

tional relevance of evidence bearing on mitigation factors in capital

cases).

App. 10

circumstance because the request for mercy was not

relevant to mitigation), vacated on other grounds by 122

S. Ct. 2654 (2002). Indeed, the Supreme Court carefully

limited its opinion i> Payne, 501 U.S. at 830 n.2, 1115S. Ct.

at 2611 n.2, and di: not disturb its earlier determination

that victim sentencing opinions were not only irrelevant in

capital sentencing proceedings, but might well be prejudi-

cial. See Booth, 482 U.S. at 508-09, 107 S. Ct. at 2535-36.

9114 Petitioner relies on cases from Oklahoma in support

of his position that victims’ opinions regarding sentencing

should be allowed in capital cases. These cases are prem-

ised on an Oklahoma statute that purports to allow

victims to suggest to jurors the sentence. See, e.g.,

Ledbetter v. State, 933 P.2d 880 (Okla. Crim. App. 1997)

(applying Okla. Stat. tit. 22, § 984(1)). Yet even the Okla-

homa courts recognize that such “evidence may not pass

scrutiny by the United States Supreme Court” in light of

its decision in Payne, 501 U.S. at 830, 111 S. Ct. at 2611.

State v. Hain, 919 P.2d 1130, 1144 n.3 (Okla. Crim. App.

1996). Moreover, we note that the Tenth Circuit, sitting on

habeas corpus review in Hain, recently held that the

Oklahoma court violated the defendant’s Eighth Amend-

ment rights by allowing the victims in that case to offer

opinions regarding the appropriate sentence. Hain v.

Gibson, 287 F.3d 1224, 1238-39 (10th Cir. 2002). Thus, we |

are unpersuaded to follow the reasoning of the Oklahoma

Court of Criminal Appeals in this area.

915 Finally, Petitioner has urged that a victim has

status as a “limited party” in a capital case and this status

entitles the victim to opine regarding the sentence to be

imposed. Petitioner cites no authority in suppert of his

asserted status, and we find none. No statute or rule

confers party status upon a victim, and the one case

App. 11 |

addressing the point held that a victim is not an aggrieved

party for purposes of filing a petition seeking review of a

court’s grant of post-conviction relief. See State v. Lamber-

ton, 183 Ariz. 47, 899 P.2d 939 (1995). In Lamberton, this

court acknowledged a victim’s standing “only to ‘seek an

order or to bring a special activn’ to assert the enumerated

rights guaranteed by the [Victims’ Bill of Rights].” Id. at

50, 899 P.2d at 942 (quoting A.R.S. § 13-4437). Moreover,

Petitioner conceded at oral argument that even a party

may not opine regarding irrelevant facts or unfairly

prejudicial issues. We thus conclude that victims are not

parties to a defendant’s criminal case.

116 Victims deserve to be heard and to receive fair

treatment in the criminal justice system. Indeed, the

Supreme Court recognized as much when it reaffirmed

Justice Cardozo’s statement that “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.” Payne, 501

U.S. at 827, 111 S. Ct. at 2609 (quoting Snyder v. Massa-

chusetts, 291 U.S. 97, 122, 54 S. Ct. 330, 338 (1934)). The

Court thus removed the per se bar to the admission of

victims’ statements regarding the effect of a crime upon

their lives, requiring only that the states determine the

victim impact statements “relevan[ce] to the jury’s decision

as to whether or not the death penalty should be imposed.”

Id. It did not, however, remove the bar precluding sentenc-

ing recommendations.

117 While the Court has recognized the victims’ desire to

tell jurors of the effect of a defendant’s crime upon their

lives, the victims’ right to speak is not unlimited. State-

ments relevant to the harm caused by the defendant’s

criminal acts are no longer barred by the Eighth Amend-

ment. But statements regarding sentencing exceed those

App. 12

bounds and viclate the Eighth Amendment, and therefore

are prohibited. Victims’ recommendations to the jury

regarding the appropriate sentence a capital defendant

should receive are not constitutionally relevant to the

harm caused by the defendant’s criminal acts or to the

defendant’s blameworthiness or culpability. See State v.

Mann, 188 Ariz. 220, 228, 934 P.2d 784, 792 (1997); State

v. Williams, 188 Ariz. 368, 385, 904 P.2d 437, 454 (1995).

Petitioner’s request to opine regarding sentencing, there-

fore, is denied.

CONCLUSION

918 The rulings of the trial court and the court of ap-

peals are affirmed.

Rebecca White Berch, Justice

CONCURRING:

Charles E. Jones, Chief Justice

Ruth V. McGregor, Vice Chief Justice

Michael D. Ryan, Justice

A. John Pelander, Judge*

* Pursuant to Arizona Constitution, article 6, section 3, the

Honorable A. John Pelander, Judge of the Arizona Court of Appeals,

Division 2, was designated to sit on this case.

App. 13

SUPREME COURT OF ARIZONA

DUANE LYNN, ) Arizona Supreme Court

Datitioner ) No. CV-02-0435-PR

) Court of Appeals

Vv. P dices

Division One

HON. PETER C. REINSTEIN, ) No. 1 CA-SA 02-0309

JUDGE OF THE SUPERIOR i Cea

COURT OF THE STATE OF oat Saag y

Drasde oe) nun “ii ) No. CR 2000-006872

, )

Respondent Judge, ) MANDATE

RICHARD GLASSEL; STATE )

OF ARIZONA,

Real Party in Interest. )

TO: Maricopa County Superior Court, Arizona,

in relation to Cause No. CR 2000-006872

The above entitled and numbered cause was pre-

sented in your Court and was brought before the court of

Appeals Division One, No. 1 CA-SA 02-0309, in the

manner prescribed by law. That Court filed its Decision

Order on the 23rd day of December, 2002. A Petition for

Review was granted by this Court on the 7th day of

January, 2003.

This Court, having considered the matter, filed its

Opinion on the 19th day of May, 2003, affirming the

rulings of the trial court and the Court of Appeals

entered in the above entitled cause.

The time for filing a Motion for Reconsideration has

expire? and no motion was filed.

App. 14

NOW, THEREFORE, YOU ARE COMMANDED that

if further proceedings are required, such proceedings be

held in this matter as may be appropriate and consis-

tent with this Court’s Opinion (copy attached to this

original Mandate).

IN WITNESS WHEREOF, I hereunto set my hand

and affix the seal of the Supreme Court of the State of

Arizona this 24th day of June, 2003.

/s/ Noel K. Dessaint

NOEL K. DESSAINT, Clerk

App. 15

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

DUANE LYNN, ) 1 CA-SA 02-0309

Petitioner, DEPARTMENT E

¢. ) MARICOPA County

THE HONORABLE PETER c. ) Superior Court

REINSTEIN, Judge of the ) No. CR 2000-06872

SUPERIOR COURT OF THE DECISION ORDER

STATE OF ARIZONA, in and |

for the county of MARICOPA, ) (Filed Dec. 23, 2002)

Respondent J udge,

RICHARD GLASSEL; STATE

OF ARIZONA,

Real Parties in Interest.

Nw oe owe we

This special action was heard at oral argument this

23rd day of December, 2002, before Presiding Judge

Edward C. Voss and Judges Patrick Irvine and Ann A.

Scott Timmer, and the matter was taken under advise-

ment. After consideration,

IT IS ORDERED that the court of appeals, in the

exercise of its discretion, accepts jurisdiction in this

special action, but denies relief.

The question before the court is whether the victim

in a capital case may offer his opinion to the jury as to

the imposition of the death penalty. The trial court,

relying on Arizona precedent, denied the victim’s right

to offer such an opinion, finding it relevant neither to

the statutory ageravating or mitigating circumstances.

App. 16

Special action jurisdiction is appropriate in this case.

See Blake v. Schwartz, 202 Ariz. 120, 122, ¥ 7, 42 P.3d 6,

8 (App. 2002) (“where an issue is one of first impression

of a purely legal question, is of statewide importance,

and is likely to arise again” special action jurisdiction is

appropriate).

In 1987, the United States Supreme Court in Booth

v. Maryland, 482 U.S. 496, 508 (1987) held the admis-

sion of a victim impact statement in a capital case

violated the defendant’s Eighth Amendment rights, was

irrelevant, and created an unacceptable risk that the

jury would arbitrarily and capriciously impose a death

sentence. Booth also found that admission of a victim’s

“emotionally charged opinions as to what conclusions a

jury should draw from the evidence clearly is inconsis-

tent with the reasoned decisionmaking we require in

capital cases.” Jd. at 508-509. In 1991, in Payne uv.

Tennessee, 501 U.S. 808 (1991), although the Supreme

Court revisited the first Booth issue and found no

Eighth Amendment bar to the admission of victi

impact statements, the decision did not address whethe

a victim could express an opinion on the available

penalties.

Most cases in other jurisdictions that have ad-

dressed this issue have also found victims’ sentencing

opinions inadmissible. See e.g. Robison v. Maynard, 829

F.2d 1501, 1504-05 (10th cir. 1992), overruled on other

grounds by Romano v. Gibson, 239 F.3d 1156 (10th Cir.

2001) (holding Supreme Court cases allowing the admis-

sion of “any relevant mitigating evidence” in capital

cases did not require court to allow victim to testify in

favor of a life sentence for defendant); Greene v. State,

App. 17

37 S.W.3d 579, 583-86 (Ark. 2001) (wife’s recommenda-

tion for life sentence following murder of her husband

was neither victim impact evidence nor proper mitiga-

tion evidence),

Although Arizona has not addressed this matter

directly in the context of a jury, several cases have held

that victim impact evidence is not relevant to either the

aggravating or mitigating factors in a capital case. See

e.g. State v. Sansing, 200 Ariz. 347, 358, 26 P.3d 1118,

1129 (2001); State v. Trostle, 191 Ariz. 4, 22, 951 P.2d

869, 887 (1997); State v. Gulbrandson, 184 Ariz. 46, 66,

906 P.2d 579, 599 ( 1995). In State v. Bocharski, our

Supreme court explained that “sentencing recommenda-

tions offered by a deceased’s survivors have no relevance

in a capital case.” 200 Ariz. 50, 62, 22 P.3d 43, 55 (2001)

(citations omitted). The Bocharski court went on to state

that the victim’s rights provided by the Arizona Consti-

tution give the victim’s family the right to be heard ata

capital sentencing but not to proffer irrelevant sentenc-

ing recommendations. Id. at 63, 22 P.3d at 56.

Moreover, when a victim’s family has voiced an

irrelevant sentencing opinion, our courts have routinely

found that the trial judge did not give the opinion any

weight and were able to disregard those irrelevant and

inflammatory requests. See State v. Mann, 188 Ariz.

220, 228, 934 P.2d 784, 792 (1997) (citing State v. Bol-

ton, 182 Ariz. 290, 315-16, 896 P.2d 830, 855-56 (1995);

see also Bocharski, 200 Ariz. at 63, 22 P.3d at 56 (revers-

ing when it appeared trial court may have considered

victim’s request for death penalty “[a]lthough we nor-

mally presume that the trial judge as focused only on

relevant sentencing factors”). Obviously, a jury cannot

App. 18

be afforded the same presumption that it would overlook

inflammatory and irrelevant evidence.

Taken together, we believe the above-cited cases

compel the trial court’s ruling that Petitioner cannot

voice his sentencing recommendation to the jury. We do

not discern error.

IT IS FURTHER ORDERED denying relief.

DATED this 23rd day of December, 2002.

/s/ Edward Voss

EDWARD C. VOSS,

Presiding Judge, Department E

App. 19

SUPERIOR COURT OF ARIZONA

| MARICGPA COUNTY

11/12/2002

HONORABLE PETER C. REINSTEIN

CR 2000-006872

FILED: 11/13/2002

STATE OF ARIZONA CATHERINE M HUGHES

BRET A MAIDMAN

DOUGLAS L IRISH

v. STASY D CLICK

RICHARD J GLASSEL DENNIS C JONES

MARK D TALLAN

VICTIM SERVICES

DIV-CA-CCC

MINUTE ENTRY

The charges against the defendant include two counts

_of first degree murder alleged to have occurred in 2000.

The prosecution seeks the death penalty under the 2002

legislative amendments. The widower of one of the de-

ceaseds, Mr. Duane Lynn, (hereinafter “victim”), moved

this Court for a pre-trial determination of whether he may

recommend to the jury that it not impose the death sen-

tence. This Court received a written response from the

prosecution as well as a written application to appear as

amicus curiae, Oral argument was held on October 25th.

This Court has also received and considered the victim’s

posthearing memorandum.

The victim argues that because the 2002 legislation

removed language barring a victim’s recommendation, his

App. 20

life recommendation is now permissible and constitution-

ally required. The defendant argues that he has a consti-

tutional right to present the victim’s life recommendation

as mitigation. The prosecution argues the victim’s life

recommendation is not relevant, but if it is admitted, then

the prosecution may rebut it with any victim death rec-

ommendations.

This Court first addresses the prosecution’s claim that

the victim’s motion should not be considered because the

victim is not an “aggrieved party” under State v. Lamber-

ton, 183 Ariz. 47, 899 P.2d 939 (1995). This Court dis-

agrees. In Lamberton, the defendant’s post-conviction

petition was granted and then both the prosecution and

the victim appealed. The Supreme Court held the victim

could not pursue her own appeal of the grant of post-

conviction relief because the victim was not a party.

Lamberton, 183 Ariz. at 49 citing Rule 32.9(c). Although

the victim is not a party to this litigation, the victim does

have standing here to assert his own constitutional rights.

Lamberton, 183 Ariz. at 4950.

Although capital sentencing issues are not ripe, and

would not be ripe unless there is a conviction for first-

degree murder, this Court believes a pre-trial determina-

tion is appropriate. The victim’s request is in the nature of

a motion in limine that seeks an advance ruling on the

admissibility of evidence at the capital sentencing phase.

Because the capital sentencing phase, if it occurs, would

follow immediately after the guilt phase, and the victim

and the parties have disparate views, the issue is best

addressed now.

The defense position, expressed in oral argument, was

that a victim’s life recommendation was allowable but a

App. 21

victim’s death recommendation was not. According to the

defense, Lockett v. Ohio, 438 U.S. 586 ( 1978), Eddings vy.

Oklahoma, 455 U.S. 104 (1982), and Skipper v. South

Carolina, 476 U.S. 1 ( 1986), mandate the life recommenda-

tion, but Booth y, Maryland, 482 U.S. 496 (1987) and

Payne vy. Tennessee, 501 U.S. 808 (1991) foreclose the

death recommendation. This Court disagrees.

Lockett, and its Progeny, stand for the proposition that

the states may not limit mitigation so as to exclude “any

aspect of a defendant’s character or record and any of the

circumstances of the offense.” Lockett, 438 U.S. at 604;

Eddings, 455 U.S. at 110; Skipper, 476 U.S. at 4. Lockett

also stated: “Nothing in thi opinion limits the traditional

authority of a court to exclude, as irrelevant, evidence not

bearing on the defendant's character, prior record, or the

circumstances of his offense.” Lockett, 438 U.S. at 605, n.

12. Nothing in Payne expanded the universe of admissible

relevant mitigation evidence established by Lockett.

Robison v. Maynard, 943 F 2d 1216, 1217 (10th Cir. 1991),

In response to Lockett, the Arizona Legislature

expanded the list of mitigating factors by amending A.R.S.

§13-703(G) so that mitigation encompasses any “relevant”

factor “including any aspect of the defendant’s character,

effectively made a “catch-all” mitigator encompassing

anything mandated by Lockett. State v. Lopez, 175 Ariz.

407, 414-15, 857 1224 1261, 1268-69 (1993) cert. denied 511

U.S. 1046 ( 1994),

A victim’s recommendation against the death penalty

is not relevant to the Mitigating factors in A.R.S. §13-

703(G). State vy, Sansing, 200 Ariz. 347, 26 P3d 1118

— —_ _ -_ oti =

App. 22

(2001); State v. Trostle, 191 Ariz. 4, 22, 951 P.2d 869, 887

(1997); State v. Schackart, 190 Ariz. 238, 257, 947 P.2d 315

(1997); State v. Williams, 183 Ariz. 368, 385, 904 P.2d 437,

454 (1995). Other courts have construed Lockett or similar

“catch-all” mitigation factors in the same manner. See

Ware v. State, 360 Md. 650, 759 A.2d 764, 783-86 (2000);

State v. Bowman, 349 N.C. 459, 509 S.E.2d 428, 440

(1998); State v. Wright, 323 Or. 8, 913 P.2d 321, 324-27

(1996); State v. Pirtle, 127 Wash.2d 628, 904 P.2d 245, 268-

69 (1995); Barbour v. State, 673 So.2d 461, 468-69

(Ala.Ct.Crim.App.1994); Robison v. Maynard, 943 F.2d

1216, 1217 (10th Cir. 1991); Floyd v. State, 569 So.2d 1225,

_ 1230 (Fla.1990).

Furthermore, a victim’s recommendation for the death

penalty is not relevant to the aggravators found in A.R.S.

§13-703(F). State v. Mann, 188 Ariz. 220, 228, 934 P.2d

784, 792 (1997); State v. Jones, 185 Ariz. 471, 490 n.3, 917

P.2d 200, 219 n.3 (1996); State v. Spears, 184 Ariz. 277,

292, 908 P.2d 1062, 1077 (1996); State v. Roscoe, 184 Ariz.

484, 910 P.2d 635 (1996); State v. Gulbrandson, 184 Ariz.

46, 66, 906 P.2d 579, 599 (1995); State v. Bolton, 182 Ariz.

290, 315-16, 896 P.2d 830, 855-56 (1995). A victim’s capital

sentencing recommendation is not admissible as rebuttal.

See State v. Roscoe, 184 Ariz. 484, 502, 910 P.2d 635

(1996). Simply put, “Sentencing recommendations offered

by a deceased’s survivors have no relevance in a capital

case.” State v. Bocharski, 200 Ariz. 50, 62, 22 P.3d 43, 55

(2001).

The victim points out that before August 2002, A.R.S.

§13703(E) contained the following provision:

The court shall not consider any recommendation

made by the victim regarding the sentence to be imposed.

App. 23

The August 2002 legislation does not have this lan-

guage. See new A.R.S. §13-703.01(Q). The victim reasons

that because the bar has been removed, his recommenda-

tion is now permissible.

The absent language has been absent before. This

language was not placed in the Arizona statutes until

1999, when it was first added to A.RS. §13-704 (D). Laws

1999, ch. 104, §1. The mitigating factors have been the

same for over 23 years. The Legislature is presumed to be

aware of its own statutes and the case law interpreting

these statutes. See Wareing v. Falk, 182 Ariz. 495, 500,

897 P.2d 1381, 1386 (App.1995). If the Legislature meant

in 2002 to change the long-standing interpretation of its

aggravation and mitigation provisions this Court believes

it would have explicitly written it into the new statute.

The victim also claims that Article 2, §2.1(A)(4),

Arizona Constitution and A.R.S. §13-4426 give him the

right to make a capital sentencing recommendation. This

Court finds State v. Sansing, 200 Ariz. 347, 26 P3d 1118

(2001) is on point and dispositive. In Sansing the sen-

tencer rejected the deceased’s daughter’s recommendation

for a life sentence and imposed the death sentence. The

Arizona Supreme Court found that the recommendation

was not relevant and that precluding the recommendation

did not violate the victim’s rights. Sansing, 200 Ariz. at

358.

In conclusion, nothing in the 2002 legislation altered

the mitigating factors, the aggravating factors, or other-

wise made a life or death recommendation of a victim

relevant. A victim’s capital recommendation, whatever

it may be, is not admissible in this case. Precluding a

victim’s capital recommendation does not violate the

App. 24

constitutional/statutory rights of a victim to be heard, of

the defendant to present mitigation, or of the prosecution

to present aggravation or rebuttal evidence.

IT IS ORDERED

1) That the motion of victim Mr. Duane Lynn seek-

ing to present a life recommendation to the jury is denied;

IT iS FURTHER ORDERED

2) That no capital sentencing recommendation of a

victim, be it- life or death, is admissible at any phase of

these proceedings absent further order of this Court;

3) That any party or victim who has a good faith

basis to introduce a victim’s life or death recommendation

shall present his/her arguments to this Court by written

motion and, in any event, outside the presence of the jury;

4) That the lawyer for a party who calls a victim to

the stand, and the lawyer representing the victim, if the

victim is represented, shall advise the victim of these

orders;

5) That if a victim has more than one lawyer, then

the victim and the lawyers shall confer and one lawyer

shall be designated who shall be responsible for complying

with these court orders and any future court orders.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.