State v. Bernard

• Court: Louisiana Supreme Court
• Writing for the Court: LEMMON; WATSON; COLE; DENNIS; WATSON; DENNIS
• Citation: State v. Bernard, 608 So.2d 966 (La. 1992)
• Decision Date: 12 November 1992
• Docket Number: No. 92-KK-0997,92-KK-0997
• Parties: STATE of Louisiana v. Lawrence BERNARD.

Page 966

608 So.2d 966

STATE of Louisiana v. Lawrence BERNARD.

No. 92-KK-0997.

Supreme Court of Louisiana.

Nov. 12, 1992.

Clyde D. Merritt, Nicholas J. Trenticosta, New Orleans, for applicant

Richard P. Ieyoub, Atty. Gen., Harry F. Connick, Dist. Atty., Gregory G. Hangartner, Michael F. Bollman, Jack Peebles, Asst. Dist. Attys., for respondents.

J. Michael Small, Alexandria, Rebecca L. Hudsmith, Shreveport, for Thomas Silman amicus curiae.

Helen G. Berrigan, New Orleans, for Jefferson Parish Indigent Defender Bd. for amicus curiae.

LEMMON, Justice.

The principal issue in the pretrial phase of this death penalty case is the admissibility of victim impact evidence by the prosecutor in the capital sentencing hearing. ¹

Defendant was indicted for first degree murder for striking John Davis on the head with a pipe during the perpetration of an armed robbery on the street near Davis' home. According to the prosecutor, Davis died from the blow four days later.

During pretrial proceedings the prosecutor notified defense counsel that he intended to introduce victim impact evidence in the sentencing phase of the bifurcated trial. The prosecutor did not state in the notice or otherwise indicate in the record before this court the exact evidence sought to be introduced.

The trial court, after a hearing on the general admissibility of victim impact evidence, concluded that such evidence is not admissible. The court reasoned that La.Code Crim.Proc. art. 905.2's language focusing the capital sentencing hearing on the circumstances of the offense and the character and propensities of the offender excluded evidence of the impact of the crime on the victim or the victim's family. ²

The prosecutor then applied to the court of appeal for supervisory writs. The intermediate court reversed the lower court's ruling, stating in an unpublished memorandum opinion:

The evidence sought to be admitted during the penalty phase of the defendant's trial is not prohibited by the Eighth Amendment. Payne v. Tennessee, --- U.S. ----, 111 S.Ct. 2597 [115 L.Ed.2d 720] (1991). Payne does not require the existence of a statute specifically authorizing the admission of such evidence in order for the evidence to be admitted. Because victim impact evidence comprises part of the "circumstances of the offense", such evidence would be admissible during the penalty phase of a capital trial under C.Cr.P. art. 905.2. (emphasis in original).

We granted certiorari to review this judgment. 596 So.2d 541.

The types of victim impact evidence generally addressed in death penalty decisions include evidence of the character of the victim, evidence of the emotional, physical and economic impact of the crime on the family of the murdered victim, and evidence of the survivors' opinions of the crime and of the murderer. See Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). Victim impact evidence, by its very nature, is emotionally charged material which involves the risk of injecting arbitrary factors into a capital sentencing hearing.

The Supreme Court addressed the effect of victim impact evidence in a capital sentencing hearing in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). The defendant and an accomplice had broken into the home of an elderly couple to steal money to buy heroin, had bound and gagged the victims, and had stabbed them repeatedly with a kitchen knife. During the sentencing phase the prosecutor presented to the jury a presentence report prepared in accordance with state law. The report included a victim impact statement containing descriptions of the personal characteristics of the victims, the severe emotional impact of the crimes on the surviving family members, and the survivors' opinions of the crimes and the defendant.

The Court, recognizing that the evidence considered by the jury during the sentencing phase must have "some bearing on the defendant's personal responsibility and moral guilt," held that victim impact evidence describing the personal characteristics of the victims and the reactions of their families to the crimes is "irrelevant to a capital sentencing decision." Id. at 502, 107 S.Ct. at 2533. The admission of this type of evidence, reasoned the Court, "creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner." Id. at 503, 107 S.Ct. at 2533. The requirement of individualized sentencing in capital cases precludes the jury from focusing on anything other than the defendant, and victim impact evidence focuses "not on the defendant, but on the character and reputation of the victim and the effect on his family." Id. at 504, 107 S.Ct. at 2534. This sort of evidence "may be wholly unrelated to the blameworthiness of a particular defendant" and may inflame the jury, and therefore cannot be heard by a jury choosing between life and death. Id. at 504, 107 S.Ct. at 2534.

In South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), the Court extended Booth to prohibit prosecutorial argument in the nature of victim impact evidence.

The defendant and three companions savagely beat the victim in a public park, and the defendant stabbed him with a knife. The victim, an unemployed mentally deficient man, often spoke to people about religion and carried several bags containing religious articles. After the beating, the defendant searched the bags for something worth stealing.

During his closing argument the prosecutor read from one of the victim's religious books and argued that the victim possessed a voter registration card and was a good citizen who believed in the community.

The Court held that the prosecutor's comments, referring to the victim's personal characteristics, violated the Eighth Amendment because the evidence was neither relevant to the defendant's moral culpability nor related to the circumstances of the crime. The Court stated that "[a]llowing the jury to rely on [victim impact evidence] 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." Id. at 811, 109 S.Ct. at 2210-11 (quoting Booth v. Maryland, 482 U.S. 496, 505, 107 S.Ct. 2529, 2534, 96 L.Ed.2d 440 (1987)).

In Payne v. Tennessee, 501 U.S. ----, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), the Court overruled much of Booth and all of Gathers insofar as those decisions held that there was a per se Eighth Amendment bar to the introduction of victim impact evidence.

The defendant, after spending much of the day drinking alcohol and injecting cocaine, entered the apartment of the victim-mother and her two young children. When the mother resisted the defendant's sexual advances, he became violent and attacked her and her children with a butcher knife. The mother sustained a total of eighty-four separate knife wounds, dying from excessive blood loss. One child died from numerous stab wounds, but the other survived the assault.

During the penalty phase of the trial, the adult victim's mother testified as follows regarding the effect on the surviving child:

He cries for his mom. He doesn't seem to understand why she doesn't come home. And he cries for his sister Lacie. He comes to me many times during the week and asks me, Grandmama, do you miss my Lacie. And I tell him yes. He says, I'm worried about my Lacie.

In addition to these brief comments, the prosecutor made extensive remarks during the closing argument about the pain and suffering of the surviving family members. The prosecutor also commented directly on the fact that the victims were not given an opportunity to present character witnesses on their behalf as the defendant was allowed to do.

The Tennessee Supreme Court held that the testimony was irrelevant, but not so prejudicial as to create a risk of an arbitrary imposition of the death penalty, and that the prosecutor's comments were relevant to the personal responsibility and moral guilt of the defendant.

The United States Supreme Court affirmed. Analyzing the Booth premises that (1) evidence relating to a particular victim or to the harm that a capital defendant causes a victim's family does not in general reflect on the defendant's "blameworthiness" and that (2) only evidence relating to the defendant's blameworthiness is relevant to the capital sentencing decision, the Court stated that the harm resulting from a particular crime is an important concern of the criminal law. The Court noted that legislators grade the severity of crimes according to the harm done to the victim and that the sentencing authority in noncapital cases properly considers the actual harm caused by the particular crime, concluding 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." Id. at ----, 111 S.Ct. at 2608. Further observing that no mitigating evidence can be excluded from the jury's purview, the Court reasoned that the prosecutor should be allowed to counter defense evidence with testimony and argument "designed to show ... each victim's uniqueness as an individual human being." Id. at ----, 111 S.Ct. at 2607. Accordingly, the Court held:

[I]f 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.

Id. at ----, 111 S.Ct. at 2609.

Justice O'Connor concurred, noting that the majority was not ruling that victim impact evidence must be...