Harris v. State

• Decision Date: 01 September 1987
• Docket Number: No. 30,30
• Citation: 539 A.2d 637,312 Md. 225
• Parties: Jackie Kevin HARRIS v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 225

312 Md. 225

539 A.2d 637

Jackie Kevin HARRIS v. STATE of Maryland.

No. 30, Sept. Term, 1987.

Court of Appeals of Maryland.

April 5, 1988.

Michael R. Braudes, Asst. Public Defender (Alan H. Murrell, Public Defender, George E. Burns, Jr., Jose F. Anderson and Nancy S. Forster, Asst. Public Defenders, on the brief), Baltimore, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

ADKINS, Judge.

This is appellant Jackie Kevin Harris's fifth visit to this Court since his 1982 convictions, after pleas of guilty, of first degree murder, armed robbery, and use of a handgun in the commission of a crime of violence, and his subsequent death sentence. That death sentence has twice been reimposed. ¹ From the latest reimposition Harris now appeals advancing 11 arguments for the invalidity of his current death sentence or the illegality of a new sentencing hearing, and one relating to his original plea of guilty. ²

The principal issue on this appeal has to do with the use of victim impact statements at Harris's most recent sentencing hearing. The use of those statements requires us to vacate the death sentence imposed in 1987. Booth v. Maryland, 482 U.S. ----, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). After discussing that dispositive issue, we shall nevertheless examine a number of Harris's other contentions. Some of them, should we accept them, would bar further proceedings (Parts II and III of this opinion). Others we discuss chiefly to guide the trial court at the resentencing proceeding that we shall order (Part IV).

I. The Victim Impact Statements

In Booth, the Supreme Court held that the use of a victim impact statement (VIS) during the sentencing phase of a capital murder case violated the eighth amendment's prohibition against cruel and unusual punishment. ³ The VIS at issue in Booth was thus depicted by the Supreme Court:

The VIS in this case provided the jury with two types of information. First, it described the personal characteristics of the victims and the emotional impact of the crimes on the family. Second, it set forth the family members' opinions and characterizations of the crimes and the defendant.

482 U.S. at ----, 107 S.Ct. at 2533, 96 L.Ed.2d at 448. The Court analyzed each of the two types of victim impact information separately, finding that either one standing alone would be inadmissible at a capital sentencing proceeding.

In its discussion of the parts of the VIS dealing with the emotional impact of the crime on family members, the Court noted that "it is the function of the sentencing jury to 'express the conscience of the community on the ultimate question of life or death,' " 482 U.S. at ----, 107 S.Ct. at 2533, 96 L.Ed.2d at 449 (quoting Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776, 783 (1968)), and that "[w]hen carrying out this task the jury is required to focus on the defendant as a 'uniquely individual human bein[g].' " 482 U.S. at ----, 107 S.Ct. at 2533, 96 L.Ed.2d at 449 (quoting Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944, 961 (1976)). One of the principal problems with the VIS in Booth, according to the Court, was that its focus was "not on the defendant, but on the character and reputation of the victim and the effect on his family." 482 U.S. at ----, 107 S.Ct. at 2534, 96 L.Ed.2d at 449. This, the Court found, "creates an impermissible risk that the capital sentencing decision will be made in an arbitrary manner." ⁴ 482 U.S. at ----, 107 S.Ct. at 2534, 96 L.Ed.2d at 450. Consequently, the Court found the VIS inadmissible.

The Court found the admissions of portions of the VIS offering the victims' opinions and characterizations of the crime inadmissible for similar reasons. In this regard Justice Powell, for the Court, concluded that "[t]he admission of these emotionally-charged opinions as to what conclusions the jury should draw from the evidence clearly is inconsistent with the reasoned decisionmaking [sic ] we require in capital cases." 482 U.S. at ----, 107 S.Ct. at 2536, 96 L.Ed.2d at 452. With these teachings of Booth in mind, we turn to the case before us.

At the sentencing phase of Harris's trial, the State introduced separate VISs from Frances R. Hviding and William L. Hviding, Jr., the mother and brother, respectively, of the murder victim, Stephen Hviding. This action occurred before the Supreme Court's Booth had barred the use of the VIS generally authorized by Md. Code (1986 Repl.Vol., 1987 Cum.Supp.) Art. 41, § 4-609, in capital sentencing proceedings. It was seemingly appropriate in view of the statute and of our decision, now vacated, in Booth v. State, 306 Md. 172, 507 A.2d 1098 (1986), vacated, 482 U.S. ----, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987); but see Cole, J., dissenting, 306 Md. at 230-241, 507 A.2d at 1128-1133.

In her VIS Frances Hviding elaborated on the negative impact of Stephen's death upon her own emotional well being; that of the other family members who did not prepare VISs; and on her husband's physical and mental health. Mrs. Hviding's VIS, however, expressed no opinion as to the nature of the crime or on Harris's character.

William Hviding discussed the same sorts of things--his own personal grief; a persistent fear of being murdered; and the failing family business,--all of which he attributed to his brother Stephen's murder. But William's VIS did not stop there. He ventured on to express opinions concerning the crime itself. These opinions are contained in the following excerpt from his VIS:

My little brother did not just die. Stephen was brutally and intentionally shot in the chest until he fell to the floor and died.

Take a moment to think about your closest friend or relative being murdered. Your mother falls to the ground bleeding profusely, gasping for air after being shot repeatedly by an armed robber. Picture the look on her face as she stops moving and breathing.

The Hviding VISs were both clearly inadmissible under Booth for the simple reason that each impermissibly focused on "the victim and the effect on his family," rather than on the accused. Booth, 482 U.S. at ----, 107 S.Ct. at 2534, 96 L.Ed.2d at 449. William Hviding's VIS was inadmissible for the additional reason that in it he commented upon the nature of the crime itself. The State concedes as much. But it insists that the error was harmless because, according to it, the prejudicial aspect of a VIS is limited to its impact on the process of weighing mitigating against aggravating factors. Since no mitigating factors were found in this case, we are told there was no weighing to be done. Thus, concludes the State, introduction of the VISs could not have prejudiced Harris. We disagree.

In emphasizing that a capital sentencing proceeding must focus on the crime and the defendant, the Supreme Court held that victim impact information relating to the trauma suffered by the victim's family and the personal characteristics of the victims is simply irrelevant because it tells us nothing about the defendant or his or her blameworthiness. Booth, 482 U.S. at ---- - ----, 107 S.Ct. at 2533-2534, 96 L.Ed.2d at 448-450. As to information concerning family members' perceptions of the crimes, it 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." 482 U.S. at ----, 107 S.Ct. at 2536, 96 L.Ed.2d at 452. Thus, the Supreme Court's reasons for excluding a VIS were not, for the most part, based on any concern with Maryland's weighing process. The Court did not even discuss the possibility of harmless error but rested on the notion that VISs like those in Booth are prejudicial because of their inflammatory nature.

If, however, we apply a harmless error analysis based on Maryland's weighing process, we reach the same result because the State is wrong about the nature of that process. It occurs even when none of the seven specific statutory mitigating factors is present, for " '[i]f the sentencing authority perceives anything relating to the defendant or the crime which causes it to believe that death may not be appropriate, it may treat such factor as a mitigating circumstance, and decide that it outweighs the aggravating circumstances.' " Mills v. State, 310 Md. 33, 51, 527 A.2d 3, 11-12, cert. granted, --- U.S. ----, 108 S.Ct. 484, 98 L.Ed.2d 483 (1987) (quoting Foster v. State, 304 Md. 439, 475, 499 A.2d 1236, 1254 (1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986)). It is apparent that the VISs introduced in this case might have had an improperly prejudicial effect on this process. We reject the State's harmless error argument.

II. Permissibility of Multiple Resentencing

Harris points out that upon remand, he will undergo capital sentencing for the fourth consecutive time. Repeatedly subjecting him to resentencing, Harris argues, violates the doctrines of cruel and unusual punishment, ⁵ due process, and double jeopardy. ⁶ 6] He asks that we vacate his death sentence and impose a life sentence instead of remanding for resentencing. We are prepared to assume that the State cannot continue to resentence Harris indefinitely, and that there will come a day when further sentencing hearings will be constitutionally impermissible. That day, however, has not yet arrived. We explain.

A. Double Jeopardy

Harris maintains that the State's conduct throughout his last three capital sentencings amounted to prosecutorial overreaching. Because of this asserted overreaching and the psychological trauma caused by multiple sentencings, a fourth sentencing is barred by the double jeopardy clause runs his argument. We analyze the problem from a different perspective.

The fifth amendment's double jeopardy...