Rickie Wayne SMITH, Appellant, v. The STATE of Texas, Appellee.
No. 71794.
Court of Criminal Appeals of Texas, En Banc.
Feb. 21, 1996.
Rehearing Denied April 3, 1996.
919 S.W.2d 96
BAIRD, Judge.
The First Court of Appeals affirmed the judgment and sentence of the trial court on the ground that
I respectfully dissent.
Henry K. Oncken, Houston, for appellant.
Karen A. Clark, Assist. Dist. Atty., Houston, Robert A. Huttash, State‘s Atty., Austin, for the State.
S.W.2d 244 (Tex.App.—Houston [14th] 1995), finding that a defendant convicted of a state jail felony who has two or more prior felony (other than state jail felony) convictions may be sentenced as an habitual offender provided the State gives notice of its intent to prosecute the defendant as an habitual offender in the indictment and pleads and proves defendant was convicted of two (or more) felonies and the convictions became final in the proper sequential order as provided in
BAIRD, Judge.
Appellant was convicted of capital murder in November of 1993.
[Editor‘s Note: Only Part II of the opinion is designated for publication.]
II.
In his fifth point of error appellant contends the trial judge erred in allowing evidence at the punishment stage of trial of the victim‘s good character, her relationship with the mentally handicapped students she taught and the effect of the victim‘s death upon the students, and the victim‘s work ethic. Appellant claims the evidence was not relevant to the punishment issues prescribed by our capital sentencing scheme and was offered solely to inflame the jury.
A.
Prior to trial, appellant filed a motion in limine seeking to bar the admission of testimony regarding the personal characteristics of the victim or evidence of the emotional impact her death had on friends and family. During the punishment phase of trial, the State called the victim‘s co-worker, Mariana Goines, as a witness. Appellant approached the bench and requested a hearing regarding the admissibility of the testimony pursuant to his motion in limine. After the testimony2 was proffered, appellant objected that the evidence was not relevant and was more prejudicial than probative. The objections were overruled.
Goines testified the victim taught special education type students; that she was very dedicated and hard working to the point of learning to speak the Spanish language for her Spanish-speaking students; and that the victim spent a lot of her own money on her students. Goines further testified that the students were very attached to the victim and were greatly affected by her death.
The State also called the victim‘s sister as a punishment witness. Again appellant objected to the testimony and again the trial judge overruled his objections. The witness testified that the victim was very artistic and musically inclined and that she was an animal lover and wanted to work with animals. She also testified that the victim had received a degree in special education and a master‘s degree in counseling and that the victim had been a member of the National Guard Reserves for eleven years.
B.
In Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), the Supreme Court held the Eighth Amendment prohibited a capital sentencing jury from considering evidence relating to the personal characteristics of the victim, and the emotional impact of the crime on the victim‘s family, to the extent that it did not directly relate to the circumstances of the offense.
In reviewing Booth‘s exclusion of victim impact evidence, the Court explained Booth misread the language from Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), which directed the jury‘s deliberations to a defendant‘s personal characteristics, as a limitation upon the evidence which may be considered at capital sentencing. Payne, 501 U.S. at 820-824, 111 S.Ct. at 2606-2607. The Court explained however, that “the language quoted from Woodson in the Booth opinion was not intended to describe a class of evidence that could not be received, but a class of evidence which must be received. Payne, 501 U.S. at 822-824, 111 S.Ct. at 2607 (emphasis in original). Thus, the Court criticized Booth as creating an unbalanced perspective of the offense by highlighting the defendant‘s personal characteristics while excluding the victim‘s personal characteristics, or the effects of the offense upon others. Payne, 501 U.S. at 822-824, 111 S.Ct. at 2607.
The Court examined those limitations precluding the imposition of the death penalty under the Eighth Amendment and determined that victim impact evidence falls outside these constitutional limitations.4 501 U.S. at 824-826, 111 S.Ct. at 2608. The Court further stated that whether such evidence is relevant to capital sentencing lies within the State‘s discretion in enacting capital punishment procedures:
We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant‘s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. “[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.” Booth, 482 U.S., at 517, 107 S.Ct. at 2540 (White, J., dissenting).
Payne, 501 U.S. at 825, 111 S.Ct. at 2608. Thus, the Court held:
... if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on the subject, the Eighth Amendment erects no per se bar. A state may legitimately conclude that 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. There is no reason to treat such evidence differently than other relevant evidence is treated.
Payne, 501 U.S. at 827, 111 S.Ct. at 2609.
Since Payne eliminated the Eighth Amendment‘s per se bar to victim impact evidence at a capital sentencing hearing, and left the decision of whether to permit such evidence to the State‘s when enacting capital punishment procedures, the question in the instant case is whether the evidence presented was admissible under our capital sentencing scheme.
C.
This Court has held that a trial judge has wide discretion in admitting or excluding evidence at the penalty phase of a capital murder trial. Lane v. State, 822 S.W.2d 35, 41 (Tex.Cr.App.1991). However, this discretion is limited to matters relevant to sentence.
The first two questions focus purely on the defendant‘s own behavior:
(b)(1) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
(2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.
(e) Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant‘s character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.
Past this framework, no further guidance has been given by our Legislature or by the Texas Rules of Criminal Evidence as to exactly what evidence is “relevant” under our capital sentencing scheme. That guidance has come from the United States Supreme Court in the development of Eighth Amendment jurisprudence. See generally Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987).
D.
Because this is a case of first impression, we look to the decisions of other states for possible guidance. The Court of Appeals of Oregon addressed the issue of the admissibility of victim impact evidence in relation to its capital sentencing scheme in State v. Metz, 131 Or.App. 706, 887 P.2d 795 (1994). The Oregon scheme is, in many ways, identical to the Texas scheme of
[E]vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Oregon law also provides that:
(b) Upon the conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
(A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result;
(B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;
(C) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased; and
(D) Whether the defendant should receive a death sentence.
*
(f) If the jury returns an affirmative finding to each issue ... the trial judge shall sentence the defendant to death.
In Metz, the State contended that victim impact evidence was relevant to the issue in paragraph (b)(D) because the prosecution was “entitled to produce evidence that makes it less probable that one or more jurors will answer the fourth question ‘no.’ ”
The Oregon Court noted that the fourth question had been added to the State‘s scheme in response to Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), which held that a jury “must be able to consider and give effect to any mitigating evidence relevant to a defendant‘s background and character or the circumstances of the crime.” The Oregon court commented that:
The state is, of course, entitled to specifically controvert mitigating evidence adduced by a defendant. However, the legislature did not intend to throw the penalty phase of capital cases open to consideration of any evidence that might sway the jury in one direction or the other.
We particularly note that there is no reference in the legislative history to victim impact evidence. That absence of discussion is unsurprising, because, at the time the legislature developed the current language of [the statute], victim impact evidence was not constitutionally admissible in death penalty proceedings. Booth v. Maryland, supra, 482 U.S. at 509, 107 S.Ct. at 2536. The Supreme Court reversed its position on that issue in Payne v. Tennessee, supra, but [the statute] has not been amended since that time.
Metz, 887 P.2d at 801. Given this history, the Oregon court concluded that victim impact evidence was not, and could not have been on the minds of the legislators who enacted the fourth question. Id. Thus, victim impact evidence could not reasonably be viewed as falling within the categories of evidence the legislators had in mind as pertaining to the mitigation question and was therefore immaterial to that question. Id.
Additionally, the Court held that victim impact evidence was not relevant to resolve the remaining punishment issues. The Court stated:
... The subsequent impact of the crime on the victim‘s family, however tragic and devastating, is not relevant to whether defendant‘s conduct was deliberate, [citation omitted]; whether defendant will constitute a continuing threat to society, [citation omitted]; or whether defendant was reasonably responding to provocation....
Consequently, the admission of victim impact evidence at the sentencing phase was error. Metz, 887 P.2d at 802.
In Utah, “evidence ... relevant to sentence” is also admissible in homicide cases. The definition of “relevant evidence” is the same in Utah as in Oregon and Texas. In State v. Carter, 888 P.2d 629, 651 (Utah), cert. denied, 516 U.S. 858, 116 S.Ct. 163, 133 L.Ed.2d 105 (1995), the Utah Supreme Court noted that the purpose of the sentencing phase of a capital trial is “to acquire a thorough acquaintance with the character and history of the person before the court.” Id. at 652. And,
permitting the State to introduce victim impact evidence shifts the focus of the proceeding from the defendant to the victim and the effect of the murder on the victim‘s family and community. This shift adds nothing to the culpability analysis and is fraught with danger. [Citation omitted.] Aside from causing the jury to lose sight of its immediate task, the shift suggests that some victims are more valuable to society and/or deserve more sympathy than others. Further, a judge or jury considering victim impact evidence is more likely to empathize with the family‘s tragedy, perhaps asking, “What if I, or a member of my family, were the murder victim?” Such empathy dangerously increases the possibility of improper passion or prejudice.
Id. The Utah Court thereafter held that victim impact evidence simply has no probative force in the sentencing context.
Such evidence does not make it more or less likely that a defendant deserves the death penalty. In our society, individuals are of equal value and must be treated that way. We will not tempt sentencing authorities to distinguish among victims—to find one person‘s death more or less deserving of retribution merely because he or she was held in higher or lower regard by family and peers. Such a scheme draws lines in our society that we think should not be drawn. The worth of a human life is inestimable, and we do not condemn those who take life more or less harshly because of the perceived value or quality of the life taken. [Citation omitted.] Indeed, society is probably incapable of evenhandedness in such judgments.
E.
We now turn our analysis to our capital sentencing scheme. With regard to the first
We now turn to whether victim impact evidence admitted is relevant to the “Penry issue.”
As a general matter, however, victim impact evidence is not offered to encourage comparative judgements of this kind—for instance, that the killer of a hardworking, devoted parent deserves the death penalty, but that the murderer of a reprobate does not. It is designed to show instead each victim‘s “uniqueness as an individual human being,” whatever the jury might think the loss to the community resulting from his death might be.
Payne, 501 U.S. at 823, 111 S.Ct. at 2607. While this sort of good character evidence of the victim as presented in the instant case might be admissible in some form of rebuttal context, such is not the situation in the instant case.
Accordingly, we hold
F.
However, this does not end our analysis. Having concluded that the trial judge erred in admitting victim impact evidence in the penalty phase of appellant‘s trial, we must consider whether that error was harmless.
During the jury argument at punishment, the prosecutor reminded the jury fairly early that:
You will remember what happened to [the victim]. You will remember who [the victim] is. A special education schoolteacher, a very loving person, a very giving person, who gave and gave all of her life to the extent that she even worked an extra job so that she would have the money not only to carry on her own personal needs, but to provide that little bit extra for those special education students that she had at Lamar Elementary school. This is a woman, like I say, there‘s no evidence she did anything but good.
Then he shifted his argument to focus on appellant. The prosecutor argued how appellant was always trying to shift blame to someone else and he revisited the evidence that the jury had heard. This included testimony regarding appellant‘s drug usage and evidence concerning appellant‘s extensive criminal background which began in his teen years with his involvement in a marijuana trade. The prosecutor also reviewed evidence presented to the jury about appellant‘s problems in the military and his criminal activities in at least six different states. The State further reviewed the testimony that appellant was in possession of a sawed-off shotgun when he was arrested for the instant offense and was apparently on his way to kill his estranged wife and reminded the jury of evidence they had heard concerning an attempted escape from prison after appellant was arrested for the instant offense. In short, the prosecutor focused a very bright spot light on appellant‘s own character and behavior and did not again refer to the objected-to victim impact evidence.
Appellant was then given the chance to make his argument on punishment which was followed by the summation argument of the State. Again the prosecutor focused almost exclusively on the circumstances of the crime and appellant‘s own character and behavior. With the exception of referring to Birky as “one of the best kinds of folks we have in society,” and “[a] person who sacrificed a lot personally, financially, to do something that is very worthwhile in our community,” the prosecutor did not again reference the victim impact evidence admitted in the punishment stage of trial.
Given the sparsity of the victim impact evidence; the fact that it was not unduly emphasized either in the testimony of witnesses in the punishment phase or in punishment arguments; and the overwhelming focus on the circumstances of the crime and appellant and his behavior, we conclude beyond a reasonable doubt that the evidence made no contribution to the conviction or to punishment.
The judgment of the trial court is affirmed.
McCORMICK, P.J., and WHITE and KELLER, JJ., concur in the result.
CLINTON, J., dissents with note: For reasons stated in my dissenting opinion in Ford v. State, 919 S.W.2d 107 (Tex.Cr.App. No. 71,760, this day decided), I am unable to agree the error found in Part II of the majority opinion is harmless; otherwise I join the judgment of the Court.
Only Part II of this opinion shall be published. The remainder of the opinion is not designated for publication.
OVERSTREET, Judge, concurring.
I concur in the result reached by the Court that appellant‘s conviction be affirmed. For the reasons advanced in Ford v. State, 919 S.W.2d 107 (Tex.Cr.App. delivered February
The principal concern regarding the admissibility of victim impact evidence at the punishment stage of a capital murder trial is its relevancy regarding the special issues which the sentencing jury is required to answer. If the trial court can conclude that the impact of the murder on the victim‘s family is relevant to the jury‘s decision concerning whether a life or death sentence is more appropriate and that it has probative value which outweighs its prejudicial effect and that it is not unfairly prejudicial, then such evidence would be admissible under the rules of evidence.
I strongly believe that the character of the victim (victim character evidence), good or bad, is never admissible for the purpose of placing some sort of value (positive or negative) on the life of the victim. In so far that the opinion addresses those issues consistent with my stated belief, I join.
MANSFIELD, Judge, concurring.
I concur in the judgment of the Court. I write separately to disagree with the reasoning of the majority with respect to its disposition of appellant‘s point of error number five because I believe the issue presented is of great significance and is likely to be raised in other capital cases. The issue is whether, in light of Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) and Texas law, evidence as to the victim‘s good character may be introduced by the State at the punishment phase of a capital case in Texas. For the reasons presented below, I believe such evidence is admissible.
In Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987) and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989) the United States Supreme Court addressed the constitutionality of allowing the jury at the punishment phase of a capital trial to consider evidence as to the victim‘s good character. The Court, in Booth, held that so-called “victim impact evidence” was not admissible under the Eighth Amendment because such evidence was irrelevant to the circumstances of the crime and as to the defendant‘s individual characteristics. “It is true that in certain cases some of the information contained in a Victim Impact Statement (VIS) will have been known to the defendant before he committed the offense. As we have recognized, a defendant‘s degree of knowledge of the probable consequences of his actions may increase his moral culpability in a constitutionally significant manner. See Tison v. Arizona, 481 U.S. 137, 157-158, 107 S.Ct. 1676, 1687–1688, 95 L.Ed.2d 127 (1987). We nevertheless find that because of the nature of the information contained in the VIS, it creates an impermissible risk that the capital sentencing decision be made in an arbitrary manner.” Booth v. Maryland, 482 U.S. at 505, 107 S.Ct. at 2534.
The “victim impact statement” at issue in Booth included interviews with family members of the two murder victims. In these interviews, the family members discussed the devastating effects of the murders on their lives and expressed their hostility toward the perpetrators. “... the formal presentation of this information by the State 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. As we have noted, any decision to impose the death sentence must ‘be and appear to be, based on reason rather than caprice or emotion.’ Gardner v. Florida, [430 U.S. 349, 358], 97 S.Ct. 1197, 1204 [51 L.Ed.2d 393] (1977). The admission of these emotionally charged opinions as to what conclusions the jury should draw from the evidence clearly is inconsistent with the reasoned decisionmaking we require in capital cases.” Booth v. Maryland, 482 U.S. at 508-509, 107 S.Ct. at 2536.
In Payne v. Tennessee, supra, decided four years later, the Court reexamined its holdings in Booth and Gathers. In Payne, the defendant killed a woman and her two-year-old daughter. Her three-year-old son, Nicholas, was attacked and severely wounded at the same time, but survived. At the punishment phase, testimony as to the effect of the crimes on Nicholas, including the loss of his baby sister who, his grandmother testified, he cries for, was introduced.
“We thus hold 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. A State may legitimately conclude that 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. There is no reason to treat such evidence differently than other relevant evidence is treated.” Payne, 501 U.S. at 827, 111 S.Ct. at 2609.
As it is clear that there is no federal constitutional bar to the admission of victim impact evidence at the punishment phase of a capital murder trial, we must determine if such evidence is admissible under Texas law.
The Texas Legislature addressed the issue of victim impact evidence in a limited manner when it enacted
Prior to the imposition of a sentence by the court in a criminal case, the court, if it has received a victim impact statement, shall consider the information provided in the statement. Before sentencing the defendant, the court shall permit the defendant or his counsel a reasonable time to read the statement, comment on the statement, and with the approval of the court, introduce testimony or other information alleging a factual inaccuracy in the statement ...
At the punishment phase of a capital trial, the jury is required, after the State and the defendant present evidence, to answer two special issues (three if the defendant was found guilty as a party under
The first special issue requires the jury to determine if there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society, i.e., whether the defendant would probably be a future danger.
This Court has interpreted
Is it not equally important—and relevant in the context of the “Penry” special issue—for the jury to be informed as to the character of the victim and the impact on the victim‘s family of his or her death? The Supreme Court of Tennessee could not have expressed it any better when it stated the following:
“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 character, background 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.”
State v. Payne, 791 S.W.2d 10, 19 (Tenn. 1990). It is my opinion that victim impact evidence is relevant in the context of the mitigation special issue and is admissible.
In order to avoid violation of the due process rights of the defendant and to minimize the risk of admission of irrelevant evidence, it is my opinion that only family members (i.e., close relatives and guardians) of the victim should be allowed to testify. This is consistent with the categories of persons permitted to file a victim impact statement under
It has been suggested that allowing the admission of evidence as to the victim‘s good character might lead to juries punishing more severely defendants who kill victims who are of “good” character and are contributors to society. The other side of the argument is, of course, that defendants who kill victims who are of questionable character or who are not considered to be valuable members of society will be less likely to receive the death penalty. The Supreme Court addressed this matter thusly: “As a general matter, however, victim impact evidence is not offered to encourage comparative judgments of this kind—for instance, that the killer of a hardworking, devoted parent deserves the death penalty, but that the murderer of a reprobate does not. It is designed to show, instead, each victim‘s ‘uniqueness as an individual human being’ whatever the jury might think the loss to the community resulting from his death might be.” Payne, 501 U.S. at 823, 111 S.Ct. at 2606.
In the present case, two witnesses testified at punishment as to the victim‘s (Karen Birky) good character: her sister and her coworker. Her coworker testified as to Miss Birkey‘s dedication to her students. Her sister testified as to Miss Birky‘s love of
Such evidence is relevant in the context of the mitigation special issue as it relates to the character of the victim and the impact of her loss on her family and close friends and is admissible under
With these comments, I concur in the judgment of the Court.
Notes
Booth, 482 U.S. at 504-505, 107 S.Ct. at 2533-2534. Thus, the Court explained that victim impact evidence could “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., 482 U.S. at 509, 107 S.Ct. at 2536. In Gathers, the Court relied upon Booth, supra, to hold that the prosecutor‘s comments on the personal characteristics of the victim during the State‘s closing argument at the capital sentencing hearing were improper because they did not relate to the defendant‘s personal characteristics or the circumstances of the crime. Gathers, 490 U.S. at 810-812, 109 S.Ct. at 2210-2211. A substantial majority of state high courts have ruled that victim impact evidence is admissible at the punishment phase of a capital trial as relevant on the issue of punishment. See People v. Howard, 147 Ill.2d 103, 167 Ill.Dec. 914, 937, 588 N.E.2d 1044, 1067 (1991); Homick v. State, 108 Nev. 127, 825 P.2d 600, 606 (1992); Conner v. State, 632 So.2d 1239, 1277 (Miss.1993). Courts in Alabama, California, Delaware, Florida, Idaho, Indiana, Maryland, Ohio, Pennsylvania, Virginia, and Wyoming have ruled similarly, adopting Payne. New Jersey‘s Supreme Court rejected Payne‘s holding on state constitutional grounds. State v. Erazo, 126 N.J. 112, 594 A.2d 232 (1991). The Supreme Courts of Arizona, Georgia and Louisiana have held that victim impact evidence was not admissible due to restrictions against admissibility of such evidence under the statutes of their respective states. I acknowledge that the highest courts of Utah and Oregon, with capital sentencing schemes similar to that of Texas, have held that victim impact evidence is not admissible as it is irrelevant in the context of the special issues and may needlessly inflame the jury. State v. Metz, 131 Or.App. 706, 887 P.2d 795 (1994); State v. Carter, 888 P.2d 629 (Utah), cert. denied, 516 U.S. 858, 116 S.Ct. 163, 133 L.Ed.2d 105 (1995).While the full range of foreseeable consequences of a defendant‘s actions may be relevant in other criminal and civil contexts, we cannot agree that it is relevant in the unique circumstance of a capital sentencing hearing. In such a case, it is the function of the sentencing jury to “express the conscience of the community on the ultimate question of life or death.” Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776 (1968). When carrying out this task the jury is required to focus on the defendant as a “uniquely individual human bein[g].” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976) (plurality opinion of Steward, Powell, and Stevens, JJ.) The focus of a [victim impact statement], however, is not on the defendant, but on the character and reputation of the victim and the effect on his family. These factors may be wholly unrelated to the blameworthiness of a particular defendant. As our cases have shown, the defendant often will not know the victim, and therefore will have no knowledge about the existence or characteristics of the victim‘s family. Moreover, defendants rarely select their victims based on whether the murder will have an effect on anyone other than the person murdered. Allowing the jury to rely on a [victim impact statement] therefore could result in imposing the death sentence because of factors about which the defendant was unaware, and that were irrelevant to the decision to kill. This evidence thus could divert the jury‘s attention away from the defendant‘s background and record, and the circumstances of the crime.
Payne, 501 U.S. at 824, 111 S.Ct. at 2607-2608.Where the State imposes the death penalty for a particular crime, we have held that the Eighth Amendment imposes special limitation upon that process.
“First, there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decisionmaker‘s judgment as to whether the circumstances of a particular defendant‘s case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionate to a particular offense prevents a State from imposing the death penalty for that offense. Second, States cannot limit the sentencer‘s consideration of any relevant circumstances that could cause it to decline to impose the penalty. In this respect, the State cannot challenge the sentencer‘s discretion, but must allow it to consider any relevant information offered by the defendant.” McCleskey v. Kemp, 481 U.S. 279, 305-306, 107 S.Ct. 1756, 1774-1775, 95 L.Ed.2d 262 (1987).
... evidence may be presented by the state and the defendant or the defendant‘s counsel as to any matter that the court deem relevant to sentence, including evidence of the defendant‘s background or character or the circumstances that mitigate the imposition of the death penalty....
(c)(A) In determining the issues ... the court shall instruct the jury to consider any mitigating circumstances offered in evidence, including but not limited to the defendant‘s age, the extent and severity of the defendant‘s prior criminal conduct and the extent of the mental and emotional pressure under which the defendant was acting at the time the offense was committed.
(B) In determining the issue in paragraph (b)(D) of this subsection, the court shall instruct the jury to answer the question “no” if one or more of the jurors find there is any aspect of the defendant‘s character or background, or any circumstances of the offense, that one or more of the jurors believe would justify a sentence less than death.