# Reply Brief — Utah v. Ott

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2601%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2011
- **Citation:** 562 U.S. 1249

## Text

| Sti

QO.
\G\ No. 10-490 |

|
|_ JAN 29.200 |
|

| 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2601%3A3. Public record. Not legal advice.