# Opposition Brief — Lynn v. Reinstein

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2008%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1141

## Text

(a | FILED
“| SEP 19 2003
No. 03-274
_ TN TS NYRR
IN THE

SUPREME COURT OF THE UNITED STATES

DUANE LYNN,
PETITIONER,
-VS-

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 WRIT OF CERTIORARI
TO THE ARIZONA SUPREME COURT

BRIEF IN SUPPORT OF THE PETITION

RICHARD M. ROMLEY
MARICOPA COUNTY ATTORNEY

PAUL J. MCMURDIE

DIVISION CHIEF

APPEALS AND RESEARCH DIVISION
(COUNSEL OF RECORD)

301 WEST JEFFERSON

PHOENIX, ARIZONA 85003
TELEPHONE: (602) 506-7408

ATTORNEYS FOR REAL PARTY IN
INTEREST-STATE OF ARIZONA

QUESTION PRESENTED FOR REVIEW

Does the Eighth amendment erect a per se bar against States
permitting crime victims to offer an opinion on the appropriate sentence
in capital cases?

TABLE OF CONTENTS

PAGE
QUESTION PRESENTED FOR REVIEW ..............0.006. 1
TABLE OF ALSTIOGIIITINS «. «<0 conocer nnsesenasee eee ili
STATEMENT OF THE CASE ........... Pere ee 1

REASON WHY THIS COURT SHOULD GRANT THE WRIT .. 3

A. Booth and Payne have set the standards governing the
admissibility of victims’ opinion testimony at a capital
SUR, ow vixen 0 bind awe eee 2

B. After Booth and Payne, the overwhelming majority of courts
that have considered the issue have concluded that the opinion
of any individual or group regarding whether a sentence of
death should be imposed is irrelevant in a capital sentencing
QHOCOON. .... ss +++ snexesae bean oe 4

C. The State Agrees with Petitioner-Victim that there exists a split
among the lower courts on the issue presented in the petition. . 7

D. There is no sound basis to distinguish between capital and non-
Capital cases, and the courts are in universal agreement that
victims should have the mnght to make sentencing
recommendations in non-capital cases. .................4. 7

CONCLUSOOIN .....6esussseyeeeeo ee eee eee 11

il

TABLE OF AUTHORITIES
CASES PAGE

Adams v. State,
OF) ee ae Fe CO. AOD. TIIT) nn csc cccesccsasussss G

Booth v. Maryland,
Bb) 1, 3-5, 7, 9, 10

Burns v. State,
2 a ae 5

Fryer v. State,
68 S.W.5d 628 (Tex. Crm. App., 2002) ...........5050085 9

Greene v. State,
RE 5

Hooper v. Mullin,
eS eS ) re 7

Ingoglia v. State,
rrr 9

Livingston v. State,
Ee Pe RO BOUED occ ete rivecesvevvseueces 5

Murphy v. State,
G7 £2 670 Ce. Crim. App., ZO0Z) .. 0. cece ceeenee 7

Payne v. Tennessee,
are Chex Ee tcee

Robison v. Maynard,
Oe El ode.) 4,5

ill

Romano v. Gibson,

BOO SSSR Ce FO kk occ ick 0 So ces 4
State v. Bjorklund,

OO PW .2e BOP CIR, FD vo ice cc tence vcescasscees 5
State v. Johnson,

ED FAW en Foe CO AR TIG) 9 oc is vvccn sc eeeutsnss 8,9
State v. Koskovich,

TAR eee Pe BE 6k ke hs oe ne hehe ep eae en eres 5
State v. Lindahl,

56 P.3d 589 (Wash. App. Div. 2, 2002)................... 9

State v. Mail,
ee a a a er eee er a

State v. Ross,
696 P.2d 706 (Ariz. App.,1984) .......... cece ee eee eee 9

State v. Treesh,
Fae Re Fe Cs OED a 65 5 WAG ied 8 eae ws eee ees 5

State v. Tyler,
ek we A rrr reer re 9

State v. Whitten,
Or Fie ee CEs 6 kk Cais he eke cece eens ennee 9

Taylor v. State,
666 So.2d 36 (Ala.Crim.App., 1994) ...............00008- 6

Turrentine v. State,
965 P.2d 955 (Okla. Crim. App., 1997) ...............008- 7

1V

Whitehead v. State,
777 So.2d 781 (Ala.Crim.App., 1999) ...............000.. 5

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VI... 2... cc ccc cc cee eee 2-5, 7
STATUTES

Ind.Code Ann. § 35-38-1-9 (Burns 1985) .................0.. 7
Alaska Stat. § 12.55.022 (1984)... cc ccc cece cscvcccncvece 7
Ariz.Rev.Stat.Ann. § 12-253.4 (Supp.1984-1985) ............. 7
Ark.Stat.Ann. § 75-2502(c) (Supp.1983)...............00 000. 7
Cal.Penal Code § 1203(h) (West Supp.1985) ................. 7

Conn.Gen.Stat.Ann. § 54-91c (West Supp. Pamphlet 1962 to 1983) 7

Fla.Stat.Ann. § 911.143 (West Supp.1985) ................04. 7
Iowa Code Ann. § 901.3 (West Supp.1984-1985) .............. 7
Kan.Stat.Ann. § 21- 4604(2) (Supp.1984) ................004. 7
La.Code Crim.Proc.Ann. art. 875.B (West 1984) .............. 7

Mass.Ann.Laws ch. 279, § 4B (Michie/Law. Co-op.Supp.1985) .. 8

Md. Ann. Code art. 41, § 124 (1957, 1984 Cum. Supp.)......... 8
Me.Rev.Stat.Ann. tit. 17-A, § 1257.2 (Supp.1984-1985) ........ 8
Minn.Stat.Ann. § 609.115 1b(b) (West Supp.1985) ............ 8

Mont.Code Ann. § 46-18-112 (1984) .................000085 8

N.J.Stat.Ann. § 2C:44-6.b (West Supp.1984-1985) ............ 8
N.Y.Crim.Proc.Law § 390.30 (McKinney 1983)............... 8
Neb.Rev.Stat. § 29- 2261 (Cum.Supp.1984) .................. 8
Nev.Rev.Stat. § 176.145 3 (1981) .......... ake teta eee 8
Ohio Rev.Code Ann. § 2947.051 (Page Supp.1984) ............ 8
Okla.Stat.Ann. tit. 22, § 982 (West Supp.1984-1985) ......... . 8
Or. Rev.Stat. § 144.790(2), (4) CISES) . 0. cc eccccesecsvesevcts 8
R.I.Gen.Laws § 12-28- 3(10) (Supp.1984) ................... 8
S.C.Code Ann. § 16-3-1550 (Law.Co-op.1985) ............... 8
Tenn.Code Ann. § 40-35-207(8) (1982) ............. eee eee 8
Va.Code § 19.2-299.1 (Supp.1984) rs ee 8
Vt.Stat.Ann. tit. 13,.§ 7006 (Supp.1984) ........cccessvcvcose 8
W.Va.Code §§ 61-11A- 1 to -7 (1984) .......... 0... cee eee 8
Wis.Stat.Ann. § 950.04(2m) (West Supp.1984-1985) ........... 8
RULES

kee Re vs ot eerrrrrry trerr rT rrr yrs 8

OTHER AUTHORITIES
10 U.L.A. 78 (Special Pamphlet 1985) ......................

President's Task Force on Victims of Crime 18, 33-34
8 a

Unif. Model Sentencing and Corrections Act
ae og EEE E ES PE) MAT eran

Vil é

STATEMENT OF THE CASE

Prior to trial, Petitioner, who is one of the surviving victims in the
criminal case tried below, filed a motion to allow the presentation of his
opinion at the penalty phase of the capital proceeding regarding what
should be the appropriate sentence. The capital Defendant did not
object because it was the defense belief that the victim would opine that
the death penalty was not appropriate. The defense position was that a
victim's life recommendation was allowable but a victim's death
recommendation was not.' The State's position was that under this
Court's interpretation of Booth v. Maryland, 482 U.S. 496 (1987) and
Payne v. Tennessee, 501 U.S. 808 (1991) the victim's opinion regarding
what is the appropriate sentence in a capital sentencing proceeding is
irrelevant and should not be admitted regardless of whether it was in
favor of or opposed to the death sentence. The trial court agreed with
the State's position and held 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."
(Appendix to the Petition at 24.) Petitioner-victim filed a special action
challenging this ruling with the Arizona Court of Appeals.

The Court of Appeals accepted jurisdiction of the special action, but
denied relief. The court found that under this Court's precedent that the
victim's opinion regarding the appropriaté sentence was not admissible,

' The State and Defendant understood that the Petitioner-victim
changed his mind when the special action was pending in the Arizona

Court of Appeals and would actually opine that the appropriate penalty
should be a death sentence. Now and in the Arizona Supreme Court,
Petitioner-victim asserts that a life sentence was the sentence
recommendation he would have made.

l

and affirmed the trial court's decision. (Appendix to the Petition at 17-
18.) The jury imposed the death penalty without hearing a sentence
recommendation from the victims of the crime.

Petitioner-victim sought review of the Court of Appeal's ruling with
the Arizona Supreme Court. The Arizona Supreme Court granted
review and affirmed the lower court ruling. The Arizona Supreme Court
felt bound by this Court's Eighth Amendment jurisprudence regarding
whether a victim could make a sentencing recommendation in a capital
case. (Appendix to the Petition at 11-12.) This Petition for Certiorari
followed.

REASON WHY THIS COURT SHOULD GRANT THE WRIT

Before addressing this Court's Eighth Amendment precedent
regarding whether opinion testimony is admissible at a capital
sentencing, the State wishes to reiterate the position it has maintained
throughout the proceedings below. The State believes that sound public
policy considerations mandate that victims have the right to be heard
concerning what they believe is the appropriate sentence in a criminal
matter—capital or non-capital. However, below the State felt duty
bound to argue that Arizona courts should follow the overwhelming
body of law finding that victim sentencing recommendations are barred
in capital cases. This duty was to preserve the validity of the capital
sentence being sought in this case, and those that the State would seek
in the future.

However, the State believes that this Court should reconsider its
position in this area of the law.

A. Booth and Payne have set the standards
governing the admissibility of victims’
opinion testimony at a capital sentencing.

In 1987, this Court held that "the introduction of a [victim-
impact statement] at the sentencing phase of a capital murder trial
violates the Eighth Amendment." Booth v. Maryland, 482 U.S. at 509.
In Booth, the Court concluded that such information "is irrelevant to a
capital sentencing decision, and . . . its admission creates a
constitutionally unacceptable risk that the jury may impose the death
penalty in an arbitrary and capricious manner." 482 U.S. at 502-03. The
victim-impact testimony at issue in Booth concerned descriptions of the
victims, the emotional impact of the crimes on the family, and "the

=

family members' opinions and characterizations of the crimes and the
defendant." 482 U.S. at 502.

In Payne, this Court overruled its decision in Booth, holding 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 v. Tennessee, 501 U.S. at 827. The Payne
court explicitly cautioned, however:

Booth also held that the admission of a victim's family

~ members' characterizations and opinions about the
crime, the defendant, and the appropriate sentence
violates the Eighth Amendment. No evidence of the
latter sort was presented at the trial in this case.

501 U.S. at 830 n. 2 (emphasis added).

B. After Booth and Payne, the overwhelming
majority of courts that have considered the
issue have concluded that the opinion of any
individual or group regarding whether a
sentence of death should be imposed is
irrelevant in a capital sentencing proceeding.

The Tenth Circuit Court of appeals was one of the first courts
to address the issue presented in this petition. In Robison v. Maynard,
829 F.2d 1501 (10" Cir. 1992), overruled in part, on other grounds, by
Romano v. Gibson, 239 F.3d 1156, 1169 (10™ Cir. 2001), the Tenth
Circuit Court interpreted and applied this Court's precedent and came
to the same conclusion reached by the Arizona Supreme Court below.
The Robison court rejected the capital defendant's claim that a due
process violation occurred because the trial court refused to allow him
to present testimony from family members of the victims opining that
they did not believe that the death penalty should be given to the

defendant. The defense contended this testimony would present proper
evidence for the jurors to consider. The trial court granted the State's
motion to exclude such evidence on the ground that allowing the
testimony "would be no more proper" than allowing the State to put on
testimony that the death penalty should be given. 829 F. 2d at 1503;
Robison v. Maynard, 943 F.2d 1216, 1217 (10 Cir. 1991) (affirming
Robison after Payne).

Other courts that have addressed this issue have come to the
same conclusion. See e.g. Greene v. State, 37 S.W.3d 579, 583-86
(Ark., 2001) (opinion of a victim's family member as to the appropriate
punishment is not relevant evidence); State v. Koskovich, 776 A.2d 144,
177 (N.J., 2001) (prohibition concerning the appropriate penalty is
"intended to apply to testimony either in support of, or in opposition to,
the death penalty."); State v. Treesh, 739 N.E.2d 749, 776-77 (Ohio,
2001) (reaffirming that after Payne "the admission of witnesses'
opinions as to the appropriateness of a particular sentence" is
prohibited); State v. Bjorklund, 604 N.W.2d 169, 214—15 (Neb., 2000)
(victims' recommendation about the appropriate sentence violates the
Eighth Amendment); Whitehead v. State, 777 So.2d 781, 846-47
(Ala.Crim.App., 1999) (family of the victim went beyond evidence
deemed admissible by expressing their opinions on what they thought
the appropriate sentence should be for defendant); Livingston v. State,
444 S.E.2d 748, 750 n.2 (Ga., 1994) (Payne did not overrule Booth's
prohibition that a victim may not opine about the appropriate sentence);
Burns v. Stat2, 609 So.2d 600, 605 (Fla., 1992) (same).

Petitioner-victim asserts that it is unfair to limit a victim's
opinion regarding sentence because there is not a corresponding
limitation to non-victim witnesses offered by the defense. The
Petitioner-victim is wrong as the prohibition of offering an opinion
concerning the appropriate punisiiment has not been limited to victims.
For example, the Alabama appellate courts have upheld the trial court's

5

denial of a capital defendant's attempt to include opinion testimony
from non-victims regarding whether the death penalty should be
imposed. In Taylor v. State, 666 So.2d 36 (Ala.Crim.App., 1994), the
trial court refused to allow testimony from the defendant's family and
friends requesting that the jury spare the appellant's life. The trial court
sustained the objection of the prosecutor and refused to allow such
evidence, because to do so "invades the province of the jury."

It is the holding of this Court that the opinion of the
friends or relatives of the defendant that the defendant
should not be sentenced to death is not a relevant
mitigating circumstance for the jury to consider at the
penalty phase of a capital case.

Taylor v. State, 666 So.2d at 50-53; aff'd. sub nom., Taylor v. State, 666
So.2d 73 (Ala. 1995).

After reviewing all of the cases cited above, it is clear that under
Payne and Booth, in a capital sentencing proceeding evidence or
testimony relating to the opinions, personal beliefs or feelings of any
witness or expert about whether a defendant should or should not
receive the death penalty is not admissible. This is true whether the
evidence is submitted directly through a specific opinion or request that
defendant not be sentenced to death, or indirectly, by defendant's
family, friends or loved ones explaining how the loss of the defendant
would impact them.

c The State Agrees with Petitioner-Victim that
there exists a split among the lower courts on
the issue presented in the petition.

Petitioner-victim is correct that the Oklahoma Court of Criminal
Appeals has interpreted Booth and Payne and determined that crime
victims are not precluded under the Eighth Amendment from offering
an opinion regarding the appropriate sentence in a capital case. Murphy
v. State, 47 P.3d 876, 885 (Okla. Crim. App., 2002); Turrentine v.
State, 965 P.2d 955, 980 (Okla. Crim. App., 1997); but cf. Hooper v.
Mullin, 314 F.3d 1162, 1174 (10th Cir., 2002) (finding that the
Oklahoma Criminal Court did not follow clearly established precedent
from this Court.) Because the State believes that this Court should
overrule the dicta in Payne that has prevented crime victims from
making sentencing recommendations in capital cases, the State likewise
requests that the Court take the case to resolve the disagreement.

D. There is no sound basis to distinguish
between capital and non-capital cases, and
the courts are in universal agreement that
victims should have the right to make
sentencing recommendations in non-capital
cases.

Many jurisdictions authorize the use of a victim impact
statement or similar form of victim input in the sentencing process. See
e.g. Alaska Stat. § 12.55.022 (1984); Ariz.Rev.Stat.Ann. § 12-2534
(Supp. 1984-1985); Ark.Stat.Ann. § 75-2502(c) (Supp.1983); Cal.Penal
Code § 1203(h) (West Supp. 1985); Conn.Gen.Stat.Ann. § 54-91c (West
Supp. Pamphlet 1962 to 1983); Fla.Stat.Ann. § 911.143 (West
Supp.1985); Ind.Code Ann. § 35-38-1-9 (Burns 1985); Iowa Code Ann.
§ 901.3 (West Supp.1984-1985); Kan.Stat.Ann. § 21- 4604(2)
(Supp.1984); La.Code Crim.Proc.Ann. art. 875.B (West 1984);

J

Me.Rev:-Stat.Ann. tit. 17-A, § 1257.2 (Supp.1984-1985); Md. Ann.
Code (1957, 1984 Cum.Supp.), art. 41, § 124; Mass.Ann.Laws ch. 279,
§ 4B (Michie/Law. Co-op.Supp.1985); Minn.Stat.Ann. § 609.115 1b(b)
(West Supp.1985); Mont.Code Ann. § 46-18-112 (1984); Neb.Rev.Stat.
§ 29- 2261 (Cum.Supp.1984); Nev.Rev.Stat. § 176.145 3 (1981);
N.J.Stat.Ann. § 2C:44-6.b (West Supp.1984-1985);
N.Y.Crim.Proc.Law § 390.30 (McKinney 1983); Ohio Rev.Code Ann.
§ 2947.051 (Page Supp.1984); Okla.Stat.Ann. tit. 22, § 982 (West
Supp. 1984-1985); Or.Rev.Stat. § 144.790(2), (4) (1983); R..Gen.Laws
§ 12-28- 3(10) (Supp.1984); S.C.Code Ann. § 16-3-1550 (Law.Co-
op.1985); Tenn.Code Ann. § 40-35-207(8) (1982); Vt.Stat.Ann. tit. 13,
§ 7006 (Supp.1984); Va.Code § 19.2-299.1 (Supp.1984); W.Va.Code
§§ 61-11A- 1 to -7 (1984); Wis.Stat.Ann. § 950.04(2m) (West
Supp.1984-1985); Fed.R.Crim.P. 32(c)(2)(C). See generally Unif.
Model Sentencing and Corrections Act § 3-204(9), 10 U.L.A. 78
(Special Pamphlet 1985) (recommending that presentence report
include any statement relating to sentencing submitted by the victim of
the offense or the investigative agency); President's Task Force on
Victims of Crime 18, 33-34 (Final Report Dec.1982) (recommending

’ that federal and state governments require victim impact statements at

sentencing). Once enacted, state courts have regularly found that a
victim's recommendation concerning the sentence to be imposed is not
only permissible, but desirable.

As noted by the court in State v. Johnson, 463 N.W.2d 352, 356
(Wis. App.,1990):

We believe that consideration of the comments--even
the "wishes"--of a victim is within the sentencing court's
prerogatives. Courts are entitled--even encouraged--to
consider the rights and interests of the public in
imposing a sentence in a particularcase. ... Indeed, we
held in Jones that consideration of the victim's

8

"rehabilitative needs" was a "logical extension" of the
universally accepted practice of considering the rights
and interests of the public in sentencing offenders.

See also, Ingoglia v. State, 651 A.2d 409, 414 (Md. App.,1995)
(agreeing with Johnson); State v. Ross, 696 P.2d 706, 709 (Ariz.
App.,1984) (trial court properly considered victim's recommendation
for probation.); Fryer v. State, 68 S.W.3d 628, 630 (Tex. Crim. App.,
2002) (victims may give sentence recommendation in non-capital
sentencing, refusing to apply Booth); State v. Whitten, 667 A.2d 849,
852-53 (Me.,1995) (court may consider victims sentence
recommendation, but not mandated to follow it.): State v. Tyler, 565
S.E.2d 368, 378 (W.Va.,2002) (same); Adams v. State 951 S.W.2d 722,
725 (Mo. App.,1997) ("the trial court retains its broad discretion to
receive any information from any source it deems relevant to the
sentencing process, including recommendations as to the appropriate
sentence to be imposed").

In State v. Lindahl 56 P.3d 589, 596 (Wash. App. Div. 2, 2002)
the court noted that Washington statutes allow victims or the survivors
of victims, or their representatives, to submit victim impact statements
to the court and to personally present a statement at a felony sentencing
hearing. In addition, the statutes provide that during a sentencing
hearing, the court "shall consider ... any victim impact statement ... and
allow arguments from the prosecutor, the defense counsel, the offender,
the victim, the survivor of the victim, or a representative of the victim
or survivor, and an investigating law enforcement officer as to the
sentence to be imposed.” In interpreting the statute, the Washington
Supreme Court has observed that the statute provides "'a baseline a
minimum amount of information which, if available and offered, must
be considered in sentencing." (quoting State v. Mail, 854 P.2d 1042,
1046 (1993)).

If in the non-capital arena it is a "baseline" or "minimum" that
the victim be allowed to opine about the sentence they wish to see
imposed, it is baffling to the State that in the capital arena the victim
has to be muzzled. If such evidence is "irrelevant" in the capital context,
why is it so relevant in the non-capital context? The State can see no
logical reason to draw a line in the manner that the courts have drawn
it based on Payne and Booth. The State believes that victims should be
able to opine regarding the sentence they wish to see imposed based on
the loss of their loved ones. The State respectfully requests that the
Court grant certiorari and clarify that the dicta in Payne and Booth did
not erect a per se bar to victims opining about the appropriate sentence
in a Capital case.

10

CONCLUSION

Based on the foregoing authorities and arguments, Respondent
respectfully requests this Court to grant the petition for writ of
certiorari.

Respectfully submitted,

RICHARD M. ROMLEY
Maricopa County Attorney

PAUL J. McCMURDIE

Division Chief

Appeals and Research Division
(Counsel of Record)

Attorneys for REAL PARTY IN
INTEREST-STATE OF
ARIZONA

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2008%3A2. Public record. Not legal advice.