                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




                                   12
