IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE (HEARD AT NASHVILLE)

STATE OF TENNESSEE, ) ) FILED Appellee, ) Hamblen County May 17, 1999 ) v. ) Hon. Lynn W. Brown, Judge ) Cecil Crowson, Jr. LEONARD EDWARD SMITH, ) Supreme Court Appellate Court Clerk ) No. 03-S-01-9710-CC-00129 Appellant. )

DISSENTING OPINION

I respectfully dissent from that portion of the majority

opinion which approves of the admission of victim impact evidence

during the sentencing phase of the trial. Acknowledging the

precedent established in Payne v. Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 2609, 115 L. Ed. 2d 720 (1991) that the admission of

victim impact evidence does not per se violate the Eighth Amendment

to the United States Constitution, I stated in dissent in State v.

Nesbit, 978 S.W.2d 872, 903 (Tenn. 1998), cert. denied, ___ U.S.

___, 119 S. Ct. 1359 (1999), that

Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed.2d 720 (1991), controls, I agree with the majority’s statement that victim impact evidence is admissible if adduced within the constraints of due process and Tenn. R. Evid. 403.

For the reasons stated below, I would hold that Article I, Section

8 of the Tennessee Constitution1 affords a greater measure of

1 Tennessee Constitution, Article I, section 8, provides: “[t]hat no man shall be taken or imprisoned, or disseized of his protection than the Eighth Amendment in this regard, and I am now

of the opinion that the admission of victim impact evidence is

unconstitutional unless its admission is thoughtfully controlled

and carefully restricted. Accordingly, I would overrule State v.

Payne, 791 S.W.2d 10 (Tenn. 1990), to the extent that it permits

the unlimited (or vaguely limited) admission of victim impact

evidence. In its place, I would impose narrow, definitive criteria

similar to those established by New Jersey in State v. Muhammad,

678 A.2d 164 (N.J. 1996). Thus, Tenn. Code Ann. § 39-13-

204(c)(Supp. 1998)2 remains constitutional so long as applied to

carefully control and thoughtfully restrict the admission of victim

impact evidence as herein outlined.

It is indisputable among civilized societies that every

death includes the potential to devastate those left behind--be

they relatives, friends, or acquaintances. This has even more

emphasis when human life is snuffed out by means of criminal

conduct. And every person has value; every person’s death

freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.” 2 Tenn. Code Ann. § 39-13-204(c)(Supp. 1998) states that: “[t]he court may permit a member or members, or a representative or representatives of the victim’s family to testify at the sentencing hearing about the victim and about the impact of the murder on the family of the victim and other relevant persons. Such evidence may be considered by the jury in determining which sentence to impose. The court shall permit members or representatives of the victim’s family to attend the trial, and those persons shall not be excluded because the person or persons shall testify during the sentencing proceeding as to the impact of the offense.”

2 diminishes mankind.3 But as devastating as one’s death is to

family, friends, and society, that effect should not be considered

in the determination of the sentence to be imposed upon the

perpetrator. Thus, to place emphasis on the merit and

characteristics of the victim and his or her friends and family

serves only to invert the traditional statutory function that

jurors perform in the sentencing process, violates evidentiary

rules of relevance, and runs counter to fundamental goals of

punishment.

The General Assembly, in enacting Tenn. Code Ann. § 39-

13-204(i)(1997 & Supp. 1998), has provided ample criteria for the

determination of punishment. A careful review of the juror’s role

in the capital sentencing scheme underscores the uncertainty that

victim impact evidence insinuates into the previously refined

statutory sentencing process.

Absent the admission of victim impact testimony, the

jury’s sentencing decision is controlled by the statutory

aggravating and mitigating factors. If the jury determines that

the State has proven beyond a reasonable doubt that the relevant

aggravating factors outweigh any mitigating factors, then “the

sentence shall be death.” Tenn. Code Ann. § 39-13-204(g)(1)(Supp.

1998)(emphasis added). But if the jury determines that the State

has not proven that the relevant aggravating factors outweigh any

mitigating factors, then “the jury shall, in its considered

3 This thought was expressed by John Donne in Devotions Upon Emergent Occasions, Meditation XVII (1624).

3 discretion, sentence the defendant either to imprisonment for life

without possibility of parole or imprisonment for life.” Tenn.

Code Ann. § 39-13-204(f)(2)(Supp. 1998)(emphasis added). Thus, the

jury’s role in capital sentencing is expressly limited to

considering whether or not the aggravating factors outweigh any

mitigating factors. That is why “evidence is relevant to the

punishment, and thus admissible, only if it is relevant to an

aggravating circumstance, or to a mitigating factor raised by the

defendant.” Cozzolino v. State, 584 S.W.2d 765, 768 (Tenn. 1979).

The particular “value” of the victim and the amount of

emotional damage and loss suffered by surviving family and friends

are not statutory aggravating factors under Tenn. Code Ann. § 39-

13-204(i).4 Additionally, one cannot even suggest that they are

implicitly included in the list. None of the statutory aggravating

factors differentiates between the appropriateness or

inappropriateness of the death penalty based on the perceived value

of the victim’s life as reflected in the testimony of the surviving

friends or relatives. Thus, under our statutory scheme, how can we

say that victim impact evidence is relevant to the issue of

punishment? We cannot. We should not.

And yet, in apparent acknowledgment that victim impact

evidence bears no relevance to any aggravating factor, the majority

has heretofore condoned its admission as evidencing the “nature and

4 As a review of Tenn. Code Ann. § 39-13-204(i) demonstrates, the statutory aggravating factors focus on the defendant’s criminal history as well as the particular circumstances of the crime at issue.

4 circumstances of the crime.” See State v. Nesbit, 978 S.W.2d at 890. The majority attempts to limit the victim impact evidence to

information which could fall within this characterization.

Majority Opinion at ___ [slip. op. at 17]; see also, State v.

Nesbit, 978 S.W.2d at 891 (discussing those limits). But, even as

limited by the majority, the type of evidence admissible remains

wholly undefined, amorphous, and unduly prejudicial, a result

prohibited by Article I, section 8 of the Tennessee Constitution.

I fully understand the motivation of those who espouse

the admission of victim impact evidence in capital sentencing

hearings and feel much sensitivity to the pain caused to those

whose loved ones are lost in senseless killings. But in my view,

because victim impact evidence is not relevant to any of the

aggravating factors, or to the nature and circumstances of the

crime, its use during the sentencing hearing can only serve to

divert the jury’s attention from its primary role--to determine the

defendant’s punishment for the crime committed considering factors

of aggravation and mitigation. Such diversion demeans our capital

sentencing scheme and causes it to be unreliable, inaccurate, and

arbitrary, and thereby unconstitutional. See Saffle v. Parks, 494 U.S. 484, 493, 110 S. Ct. 1257, 1263, 108 L. Ed. 2d 415 (1990). As

I stated in Nesbit,

Generally, victim impact evidence is unsettling because its use encourages the jury to quantify the value of the victim’s life and urges the finding that murder is more reprehensible if the victim is survived by a bereaved family than if the victim had no family at all.

5 State v. Nesbit, 978 S.W.2d at 903. This shift in focus from the

crime and the defendant to the surviving family and the victim is

the main criticism leveled at victim impact evidence.

By displaying grieving friends or family members (or

noting their absence) to jurors, victim impact evidence invites

jurors to deem it a greater crime (and thereby deserving of greater

punishment) to kill someone whose friends or family, or both, are

willing and able to testify during the sentencing phase about their

grief.

Furthermore, the use of victim impact evidence tempts

jurors to become mesmerized by the concept of “victimology.”

Through this concept, the issue of the deceased victim’s

“innocence” is silently woven into the sentencing equation.

Professor Lynne N. Henderson’s description of “victimhood” is

appropriate.

[T]he word “victim” has come to mean those who are preyed upon by strangers: “Victim” suggests a nonprovoking individual hit with the violence of “street crime” by a stranger. The image created is that of an elderly person robbed of her life savings, an “innocent by- stander” injured or killed during a holdup, or a brutally ravaged rape victim. “Victims” are not prostitutes beaten senseless by pimps or “johns,” drug addicts mugged and robbed of their fixes, gang members killed during a feud, or misdemeanants raped by cellmates. . . . In short, the image of the “victim” has become a blameless, pure stereotype, with whom all can identify.

6 “The Wrongs of Victim’s Rights,” 37 Stan. L. Rev. 937, 951 (1985).

Thus, as an extra-legal consideration, jurors are lured

into determining whether the victim and his or her family fit the

stereotype of “innocent victims.” If they do, this concept entices

jurors to vary punishment according to the perceived “innocence” of

the victim. Thus, rather than orienting punishment to the

perpetrator, punishment is oriented toward the victim.

In the same vein, victim impact evidence informs the

jurors about characteristics of the victim which easily translate

into “value of life” assessments, driven by evidence of the

victim’s accomplishments, support of family, civic endeavors, and

unfulfilled dreams. These allusions to the victim’s financial

condition or social attainment are simply inappropriate for the

jury to consider in determining the sentence.

And finally, it has been suggested that the admission of

victim impact evidence runs counter to the theory underlying the

principles of punishment. Victim impact evidence provides jurors

with the opportunity to vary punishment according to the degree of

vengeance sought by family or friends. And yet under our statute,

the purpose of punishment is “to prevent crime and promote respect

for the law.” Tenn. Code Ann. § 40-35-102(3)(1997). Accordingly,

vengeance has no place in the determination of the appropriate

sentence. Indeed, vengeance in the sentencing process breeds

disparity, and disparity is an unwelcome intruder into that

meticulous process.

7 The Supreme Court of New Jersey has devised a protocol

intended to reduce the possibility that jurors will misuse victim

impact evidence. State v. Muhammed, 678 A.2d at 179. Under this

protocol, before victim impact evidence is deemed admissible, the

following must be accomplished:

The defendant should be notified prior to the commencement of the penalty phase that the State plans to introduce victim impact evidence if the defendant asserts the catch-all factor.5 The State shall also provide the defendant with the names of the victim impact witnesses that it plans to call so that defense counsel will have an opportunity to interview the witnesses prior to their testimony. The greater the number of survivors who are permitted to present victim impact evidence, the greater the po- tential for the victim impact evidence to unduly prejudice the jury against the defendant. Thus, absent special circumstances, we expect that the victim impact testimony of one survivor will be adequate to provide the jury with a glimpse of each victim's uniqueness as a human being and to help the jurors make an informed assessment of the defendant's moral culpability and blameworthiness. Further, minors should not be permitted to present victim impact evidence except under circumstances where there are no suitable adult survivors and thus the child is the closest living relative.

Before a family member is allowed to make a victim impact statement, the trial court should

5 Under the New Jersey statute, the defendant may introduce evidence concerning statutory mitigating factors, including what the court refers to as a “catch-all factor” which is “[a]ny other factor which is relevant to the defendant’s character or record or to the circumstances of the offense.” N.J. Stat. Ann. § 2C:11- 3(b)(5)(h) (Supp. 1998).

8 ordinarily conduct a Rule 104 (formerly Rule 8) hearing, outside the presence of the jury, to make a preliminary determination as to the admissibility of the State's proffered victim impact evidence. The witness's testimony should be reduced to writing to enable the trial court to review the proposed statement to avoid any prejudicial content. The testimony can provide a general factual profile of the victim, including information about the victim's family, employment, education, and interests. The testimony can describe generally the impact of the victim's death on his or her immediate family. The testimony should be factual, not emotional, and should be free of inflammatory comments or references.

. . . During the preliminary hearing, the trial court should inform the victim's family that the court will not allow a witness to testify if the person is unable to control his or her emotions. That concern should be alleviated by our requirement that the witness be permitted only to read his or her previously approved testimony. Finally, the court should also take the opportunity to remind the victim's family that the court will not permit any testimony concerning the victim's family members' characterizations and opinions about the defendant, the crime, or the appropriate sentence. Finally, the trial court should inform the prosecutor that any comments about victim impact evidence in his or her summation should be strictly limited to the previously approved testimony of the witness.

I d . a t 1 8 0 .

9 These clear rules stand in sharp contrast to the thin

limitations on admissibility imposed in Nesbit. In Nesbit, the

Court stated as follows:

Generally, victim impact evidence should be limited to information designed to show those unique characteristics which provide a brief glimpse into the life of the individual who has been killed, the contemporaneous and prospective circumstances surrounding the individual's death, and how those circumstances financially, emotionally, psychologically or physically impacted upon members of the victim's immediate family. . . . Of these types of proof, evidence regarding the emotional impact of the murder on the victim's family should be most closely scrutinized because it poses the greatest threat to due process and risk of undue prejudice, particularly if no proof is offered on the other types of victim impact. . . . ("It would be very difficult to reconcile a rule allowing the fate of a defendant to turn on the vagaries of particular jurors' emotional sensitivities with our longstanding recognition that, above all, capital sentencing must be reliable, accurate, and nonarbitrary.") However, there is no bright-line test, and the admissibility of specific types of victim impact evidence must be determined on a case-by-case basis.

State v. Nesbit, 978 S.W.2d 872, 891 (Tenn. 1998)(footnotes &

citations omitted). Unlike New Jersey, this Court has not limited

the number of victim impact witnesses allowed to testify; nor has

it furnished guidance for using witnesses who are minors. Unlike

New Jersey, this Court has not limited the victim impact testimony

to factual rather than emotional information; to the contrary, it

specifically allows evidence of the “emotional impact of the

10 murder.” The mere suggestion that the trial court “closely

scrutinize” emotional testimony in no way guides trial courts in

implementing this suggestion. And finally, unlike New Jersey, this

Court does not require that the victim impact evidence be reduced

to writing and read by the witness at trial, a procedure which

would go far to prevent that unconstitutional result noted in

Nesbit--“allowing the fate of a defendant to turn on the vagaries

of particular jurors’ emotional sensitivities.”

I would hold that the admission of victim impact evidence

during the sentencing phase of a capital punishment trial is

unconstitutional under Tennessee law unless admitted with precise

definition and clear limitation. As heretofore stated, the

adoption of procedures such as those used by the State of New

Jersey would provide such definition and limitation as would ensure

the constitutionality of victim impact evidence in Tennessee.

I would further hold that victim impact testimony, when

admitted outside of the procedure herein espoused, requires a

strict harmless error review. It is a simple matter, especially in

cases with heinous facts such as the one under submission, to give

short shrift to the harmless error analysis and find, based on

those facts, that the error was harmless. This is easily

illustrated by the language in Payne.

Once [the perpetrator’s] identity was established by the jury’s verdict, the death penalty was the only rational punishment available. Thus, the State’s argument was harmless beyond a reasonable doubt. (emphasis added.)

11 State v. Payne, 791 S.W.2d at 19. On the contrary, the imposition

of punishment as well as any harmless error analysis should, in my

view, include a painstaking, intensely thorough scrutinization of

the facts and law.

In the case at bar, the victim’s daughter was allowed to

testify not only about her parents’ background, but also about the

suffering of her father, the fact that the murder had caused her

family “problems for eleven years,” and that she would “go to [her]

grave with it.” Considering this evidence, I conclude that the

error more probably than not affected the judgment and prejudiced

the judicial process. See Tenn. R. App. P. 36(b). To be sure, I

draw no conclusions regarding the penalty imposed in this case; I

would hold only that a jury should be allowed to reconsider the

penalty after the procedures herein suggested have been

implemented. Only by such strict limitation of this testimony can

we avoid transgressing on a defendant’s constitutional right to a

fair determination of punishment based on the relevant aggravating

factors.

Accordingly, I would remand this case for a new

sentencing hearing conducted in a manner consistent with the

discussion herein contained.

______________________________ Adolpho A. Birch, Jr., Justice

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