           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                             JANUARY 1997 SESSION
                                                               FILED

STATE OF TENNESSEE,                    )
                                       )    No. 02C01-9602-CR-000487, 1997
                                                            October
       Appellee,                       )
                                       )    Shelby County
vs.                                    )
                                       )    Honorable Chris B. Craft, Judge Jr.
                                                            Cecil Crowson,
HOLLIS G. WILLIAMS,                    )
                                                             Appellate C ourt Clerk
                                       )    (Murder First Degree)
       Appellant.                      )



                      SEPARATE CONCURRING OPINION



       I concur in the results reached by the majority but I do not agree that the

introduction of victim impact evidence in capital sentencing cases constitutes

error. In reaching its decision the majority relies upon State v. Nesbit, No. 02-C-

01-9510-CR-00293 (Tenn. Crim. App., Jackson, April 22, 1997). In Nesbit, a

panel of our Court held that under Tenn. Code Ann. § 39-13-204(c) victim impact

testimony is not relevant to and is, therefore, inadmissible in capital sentencing

cases. The rationale was that victim impact statements might lead to disparate

treatment of capital offenders based upon such extraneous factors as the ability

of the victim’s family to articulate its feelings and the jury’s opinion of the victim’s

moral character. However, I believe this consideration is equally tenable to

capital defendants. An articulate, persuasive, murderer might receive a lesser

sentence than a similarly situated but less articulate murderer simply because of

his or her ability or his or her family’s ability to communicate to jurors. Therefore,

I believe allowing victim impact evidence is the only fundamentally fair method of

ensuring a level playing field for both capital defendants and prosecutors.




       Tenn. Code Ann. §§ 39-13-204(I)(1)-(12) (1991) limits the state to
introduction of twelve enumerated aggravating factors in capital cases.

However, a capital defendant is allowed to introduce any evidence of mitigation.

Tenn. Code Ann. § 39-13-204(j) (1991). The statute specifically allows a

defendant to introduce evidence that the victim was a participant in the

defendant’s conduct or any moral justification for the defendant’s act. Tenn.

Code Ann. §§ 39-13-204(j)(3)-(4) (1991). In light of this, I can envision situations

in which it is proper for a defendant to present evidence of the victim’s complicity

or lack of moral fiber to mitigate his or her responsibility and punishment. If

victim impact testimony is disallowed to rebut such evidence, the playing field

becomes uneven and an unfair situation results for the prosecution.



       The sentencing statute clearly states that “evidence may be presented as

to any matter that the court deems relevant to the punishment and may

include...any evidence tending to establish or rebut any mitigating factors.”

Tenn. Code § 39-13-204(c) (1991). Based upon this statute, I believe that in

certain circumstances victim impact evidence is relevant and should be

admissible to rebut mitigation evidence proffered by the defendant in capital

cases. I, therefore, concur only in the result reached by the majority.




                                                 __________________________
                                                 Paul G. Summers, Judge




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