                  IN THE SUPREME COURT OF TENNESSEE

                             AT JACKSON

                                                         FILED
                                                     September 28, 1998
STATE OF TENNESSEE,                )     For Publication
                                   )
                                                       Cecil Crowson, Jr.
     Appellee,                     )     Filed:          Appellate C ourt Clerk
                                   )
v.                                 )     Shelby County
                                   )
CLARENCE C. NESBIT                 )     Hon. Arthur T. Bennett, Judge
                                   )
     Appellant.                    )     No. 02-S-01-9705-CR-00043




                         DISSENTING OPINION



          I must respectfully dissent from the part of the majority

opinion concerning victim impact evidence.         Because I acknowledge

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.                 I disagree,

however, with the majority’s conclusion that the victim impact

evidence used in this case was adduced within those constraints.



          Although legally admissible, the reasons for excluding

victim   impact   evidence   are       still   compelling     in     my    view.

Particularly troublesome is the issue of relevance.             This is true

because the character of the victim and the effect on the victim’s

family may be wholly unrelated to the blameworthiness of the

defendant.   Booth v. Maryland, 482 U.S. 496, 504, 107 S. Ct. 2529,

2534, 96 L. Ed.2d 440, 449 (1987).             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.                      See id.

at 505, 107 S. Ct. at 2534, 96 L. Ed.2d at 450.



              Addressing the particular evidence introduced in this

case, the majority describes the five pages of victim impact

evidence as “clear and concise.”                However, as Judge Gary R. Wade

explained     in    his   partial   dissent       from    the   Court   of   Criminal

Appeals’s ruling below, the victim impact evidence allowed in Payne

and other Tennessee cases comprises only a few lines of testimony.

I therefore view the victim impact evidence in this case as

protracted and, consequently, prone to be unfairly prejudicial. In

addition, the State’s rebuttal argument was based on the impact of

the victim’s death upon her family.                In this argument, the State

pervasively        characterized     the       victim    impact   evidence    as   an

aggravating factor to be weighed against the mitigating proof. The

majority concedes that the argument was error but finds that the

error   did    not    appear   to    have       affected    the   verdict     to   the

defendant’s prejudice.



              I, like Judge Wade, cannot conclude that the State’s

argument, considered with the lengthy victim impact testimony, did

not affect the verdict.             In so stating, I draw no conclusions

regarding the penalty imposed.             I find only that a jury should be

allowed to reconsider the penalty under the correct sentencing

guidelines. I would remand this case for a new sentencing hearing.




                                                 _______________________________
                                                 ADOLPHO A. BIRCH, JR., Justice

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