Reply Brief — Utah v. Ott

| Sti

QO.

\G\ No. 10-490 |

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|_ JAN 29.200 |

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| OFFICE OF THE CLERK

jn Uhe

Supreme Court of the United States

~~ @ — -—__— ——

STATE OF UTAH,

Petitioner.

MARK ANTHONY OTT.

Responde an

a ——— @ —____—_____

On Petition For Writ Of Certiorari

To The Utah Supreme Court

———_—_-- —— &

REPLY BRIEF OF PETITIONER

MARK L. SHURTLEFF

Utah Attorney General

KiRK M. TORGENSEN

Chief Deputy Attorney General

LAURA B. DuPatix*

Chief, Criminal Appeals Division

160 East 300 South, 6th Floor

Post Office Box 140854

Salt Lake City, UT 84114-0854

(801) 366-0180

lauradupaix@utah.gov

*Counsel of Record

Counsel for Petitioner

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

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

REPLY BRIEF FOR THE STATE OF UTAH ..... I

1. This case presents an excellent vehicle

for revisiting the remaining vestige of

PROUD sins oxeiscsnaseeien eee l

2. This Court’s continuing § silence’ has

hamstrung the States’ ability to admit

relevant evidence in capital sentencing

TOC ois diice ns cxcssereseceusesenes ieautie cise en 3

3. The second question presented was properly

raised and passed upon below

CONCLUSION

TABLE OF AUTHORITIES

Page

FEDERAL CASES

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

Citizens United v. Federal Elections Comm’n,

Re Aric Tee Ciena cicecscpecdecscincvusecciezesbudaveneses 7,8

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

i) RRP Eee Re MPO Ure RES ere 6 .

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

STATE CASES

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

As RET Rata win scieennG caastaten char eeetateees ike eta cate 6

Murphy v. State, 47 P.38d 876 (Okla. Crim. App.

NE eaicectesenerc onan cs ten ea acteateceaeneie ‘ameeeaceal 6

STATE STATUTES

Ariz. Mev. Stat. Ann. & 19-44 ZG .nncociccccncsccccccsccvccccsvsesocett

Aris. SOss. Laws. 20S. Ch. 255 ........0<cccecesoess ecencsa ee

N.H. Rev. Stat. Ann. § 661:4....................ccsceseses ee

Utah Code. Ann. § 76-3-207

Gude cwakedeceanntedntneeree 4,7

REPLY BRIEF FOR THE STATE OF UTAH

The Utah Supreme Court squarely decided an

issue that this Court expressly left unresolved in

Payne v. Tennessee two decades ago: whether the

Eighth Amendment --without exception — continues to

bar victims from offering an opinion on the crime,

defendant’s character, and sentence in a capital

sentencing proceeding. Contrary to Respondent’s con-

tentions, this case presents an excellent vehicle for

resolving that issue. This Court should resolve the

issue because its continuing silence has hamstrung

the States’ ability to admit such evidence, even when

that evidence is relevant and consistent with Due

Process.

This Court should also resolve whether Booth

should apply to a sentencing proceeding in which

death is not an option. Contrary to Respondent’s

claim, the issue was presented to and passed upon by

the Utah court. The Utah court’s decision applying

Booth casts constitutional doubt on the laws and

constitutions of the many States that afford victims

the right to voice their opinions on the defendant’s

character, crime, and appropriate sentence in non-

capital sentencing proceedings.

1. This case presents an excellent vehicle for

revisiting the remaining vestige of Booth.

With respect to the first question presented,

Respondent contends that this case is not an appro-

priate vehicle for revisiting Booth, because the victim

evidence issue was raised below as an ineffective

assistance of counsel claim. This, Respondent con-

tends, would prevent this Court from cleanly reaching

the merits of Booth. Br. Opp. at 26-28.

While it is true that Respondent raised this claim

under ineffective assistance of counsel, the Utah

court’s resolution of the claim rested solely on Booth’s

per se bar to a victim’s opinions about the crime,

defendant, and appropriate sentence. This case,

therefore, presents an ideal vehicle for addressing the

remaining vestige of Booth.

Before addressing whether counsel performed

deficiently in not objecting to the victim evidence, the

Utah Supreme Court addressed whether the victim

evidence was admissible in the first place. App. at 13-

16. The Utah court held that under Booth, the Eighth

Amendment clearly imposed a blanket ban to the

evidence. App. at 15-16. The Utah court concluded

that because the evidence was per se inadmissible

under Booth, trial counsel performed deficiently by

not objecting to it: “Specifically, we hold that counsel

was objectively deficient for failing to object to victim

impact evidence that addressed Mr. Ott’s character,

chances for rehabilitation, and deserved sentence

because such victim tmpact evidence clearly violates

the Eighth Amendment when introduced in capital

sentencing hearings.” App. at 32 (emphasis added).

See also App. at 26 (“A decision not to object to the

victim impact evidence, especially when the evidence

violated existing precedent prohibiting victims ex-

pressing opinions about the sentence or the defendant’s

character, falls below the line of objective reason and

therefore amounts to ineffective assistance of coun-

sel.”).

The Utah court’s conclusion that trial counsel

was ineffective thus rises and falls on the continuing

viability of Booth’s blanket proscription on a victim’s

opinions about the crime, defendant, and appropriate

sentence. Accordingly, the petition presents a perfect

— and clean — opportunity for this Court to revisit

Booth and its Eighth Amendment underpinnings.’

2. This Court’s continuing silence has ham-

strung the States’ ability to admit relevant

evidence in capital sentencing proceedings.

Respondent argues that because “the vast majority

of courts in this country have been following Booth”

for the past 23 years, there is no open question or

confusion. Br. Opp. at 21-23. That misses the point.

Lower courts have, of course, felt bound by that part

of Booth not overruled in Payne. Only this Court can

eliminate the unwarranted ban on victim statements

Respondent also suggests that he was entitled to reversal

based on other “interrelated” ineffective assistance of counsel

claims, including a failure to object to a videotape celebrating

the child victim’s life. Br. Opp. at 28-34. But the Utah Supreme

Court did not reverse on those other claims. See App. at 13-14 &

n.3. It reversed only on Booth’s per se bar on victim evidence

App. at 13-16, 26, 31-32. Whether or not Respondent might be

entitled to reversal on other grounds is thus irrelevant to

whether this Court should grant the petition,

regarding the defendant’s character, crime, and

appropriate sentence.

This Court should remove that blanket ban

because it unfairly and indiscriminately excludes

evidence relevant to the “individualized determina-

tion” of whether the death penalty should be imposed.

Booth v. Maryland, 482 U.S. 496, 502 (1987) (empha-

sis in original). Most states permit both sides in a

capital sentencing proceeding to present evidence of

the crime’s circumstances; the defendant’s character,

background, and history; the victim and impact of the

crime on the victim’s family; and other relevant facts

in aggravation or mitigation. See, e.g., Utah Code.

Ann. § 76-3-207(2). But while defendants are regularly

permitted to put on relevant favorable character

evidence through family, friends, employers, and

others, Booth’s blanket ban excludes relevant unfa-

vorable character evidence when it comes from the

defendant’s victims. By imposing a blanket ban on

this type of evidence merely because it comes from

victims, Booth unfairly prevents a capital sentencer

“from having before it all the information necessary

to determine the proper punishment for a first-degree

murder.” Payne v. Tennessee, 501 U.S. 808, 826

(1991).

So long as Booth stands, the States are ham-

strung in their ability to permit victims from ever

offering an opinion on the crime, defendant’s charac-

ter, and sentence, even when those opinions are

relevant and consistent with Due Process. For example,

Arizona has enacted a statute that expressly permits

victims to make such statements in death penalty

sentencing proceedings. See Ariz. Rev. Stat. Ann. § 13-

4426. Yet, in apparent recognition of Booth’s bianket

ban, that enactment is conditional and takes place

only if on or before June 30, 2013, this Court or the

Arizona Supreme Court holds that it is constitution-

ally permissible for a victim in a capital case to make

a sentencing recommendation. See id. (Historical and

Statutory Notes); see also 2003 Ariz. Sess. Laws, ch.

255, W{ 7-8. Thus, until this Court breaks its silence

on the remaining vestige of Booth, no state is free to

enact or enforce a statute that permits what would

otherwise be relevant and constitutionally permissi

ble evidence. See, e.g., N.H. Rev. Stat. Ann. § 651:4-a

(permitting victims to give opinion evidence and

sentencing recommendations in death penalty sen-

tencing proceedings).

Moreover, contrary to Respondent’s claim, there

is deep split between Oklahoma and the Tenth

Circuit that this Court should resolve. Respondent

downplays the split by suggesting that “federal

habeas is the remedy designed to correct such errors,”

as those committed by the Oklahoma courts in

interpreting Booth and Payne. Br. Opp. 22. Thus,

Respondent reasons, the Tenth Circuit is fully able

to review and correct Oklahoma's interpretations of

Booth and Payne. Br. Opp. 22-23.

Respondent overlooks the intractable nature of

the split. Oklahoma’s reading of Booth cannot be

reconciled with that of the Tenth Circuit. Oklahoma

has concluded that Payne overruled all of Booth, at

least insofar as Booth “had its roots in the Eighth

Amendment.” Ledbetter v. State, 933 P.2d 880, 890-91

(Okla. Crim. App. 1997). But the Tenth Circuit has

concluded on federal habeas review that Oklahoma’s

conclusion that Booth allowed certain victim testimony

was “contrary to established Supreme Court prece

dent.” Hooper v. Mullin, 314 F.3d 1162, 1174 (10th

Cir. 2002). Notwithstanding the Tenth Circuit’s views,

the Oklahoma Court of Criminal Appeals has inter-

preted this Court’s repeated denial of petitions rais

ing the issue as implicit approval of its position and

has roundly rejected any “contention that our inter

pretation of Payne and Booth, or for that matter our

own statute, is erroneous or unconstitutional.”

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

2002)

And, contrary to Respondent's assumption, a

federal circuit court of appeals has no authority to

overrule a decision by a state’s court of last resort,

even on a federal question. Only this Court has that

authority. Thus, until this Court speaks to the issue,

the irreconcilable split between Oklahoma and the

Tenth Circuit will remain

Respondent suggests that this Court should

decline to review Booth’s blanket ban in this case

because Utah law independently excludes it in capital

sentencing proceedings. Br. Opp. at 36. As Respon-

dent concedes, the Utah Supreme Court expressly

declined to decide that issue in this case and, instead,

rested its decision solely on Booth’s blanket ban. See

App. 13-14. Thus, as explained in footnote 1 above,

whether Respondent might be entitled to relief on

those grounds is not relevant to whether this Court

should grant certiorari. In any event, Utah law does

permit the kind of evidence barred under Booth and

the lower court’s decision. For example, Utah statute

expressly permits relevant evidence of “the defen-

dant’s character, background, history, and mental and

physical condition” to be presented at capital sentenc-

ing proceedings, without regard to its source. Utah

Code Ann. § 76-3-207(2).

But even assuming that Utah law were co-

extensive with Booth, that is a reason to grant, not

deny, review. As explained, so long as Booth stands,

states — including Utah — are not free to permit the

kind of victim evidence excluded here.

3. The second question presented was properly

raised and passed upon below.

With respect to the second question presented

whether Booth’s blanket proscription applies to non-

death sentencing proceedings — Respondent argues

that it was neither timely nor properly presented

beiow. Br. Opp. at 11-138. This Court’s “practice,”

however, ‘permitis] review of an issue not pressed

[below] so long as it has been passed upon....’”

Citizens United v. Federal Elections Comm’n, 130

S.Ct. 876, 892-93 (2010) (quoting Lebron v. National

Railroad Passenger Corp., 513 U.S. 374, 379 (1995))

(additional citation omitted) (alterations in original)

The Utah Supreme Court passed upon the issue

here, when it applied Booth’s blanket proscription in

a non-death sentencing proceeding, despite Booth’s

express language that it applied only to death penalty

cases. See Booth, 482 U.S. at 507 n.7, 508, & 509 n.12

The Utah court also passed upon the issue when it

denied the State’s timely petition for rehearing point

ing out the court’s obvious mistake

Moreover, on certiorari review, “‘|o|nce a federal!

claim is properly presented, a party can make any

argument in support of that claim; parties are not

limited to the precise arguments they made below.’

Id. (quoting Lebron, 513 U.S. at 379). The second

question presented is not a new claim, but, “at most

a new argument to support what has been |a] con

istent claim.” Citizens United. 130 S.Ct. at 893

(quoting Lebron, 513 U.S. at 379) (alteration

original). The State argued below that counse!

failure to object to the evidence was not unreasona

ble, where Respondent's authorities were “either

inapplicable, adverse, or unsettled with respect to the

admissibility of victim impact evidence.” State’s Brief

of Appellee at 60-61. The State then quoted Payne

“‘evidence about the victim and about the impact of

the murder on the victim’s family is relevant to the

jury's decision as to whether or not the death penalty

should be imposed.’” Id. at 61 (quoting Payne, 501

U.S. at 827) (emphasis added). The argument that

Booth, by its express terms, does not apply to non

death sentencing proceedings, supports the State

consistent claim below that counsel did not perform

deficiently by not moving to exclude the victim ev!

dence, because no law required its exclusion. Thus,

whether Booth applies to a sentencing hearing in

which death is not an option was squarely presented

to and passed upon by the lower court.

Respondent finally argues that this Court should

deny review on the second question presented be-

cause the decision below and other Utah cases hold

that Booth applies only to “capital sentencing hear-

ings” Br. Opp. at 13. This case, however, was not a

capital sentencing proceeding in the ordinary sense of

that term. The State agreed to drop the death penalty

in exchange for Respondent’s plea. Thus, death was

not an option at his sentencing proceeding. As ex-

plained above and in the Petition, Booth expressly

limits its holding to cases where the death penalty is

at issue. See Petition at 27-29.

LO

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

MARK L. SHURTLEFF

Utah Attorney General

KirK M. TORGENSEN

Chief Deputy Attorney General

LAURA B. DUPATX*

Chief, Criminal Appeals Division

160 East 300 South, 6th Floor

Post Office Box 140854

Salt Lake City, UT 84114-0854

(801) 366-0180

Counsel of Record

Counsel for Petitioner