Lodowski v. State

¶1concurring.

¶2I fully agree with the Court that appellant’s conviction and sentence must be reversed and remanded for a new trial. I therefore join that portion of the Court’s opinion. The Court, however, goes on to address in dicta the admissibility of victim impact evidence in capital sentencing proceedings. Because I cannot agree with the reasoning employed by the Court in its discussion of that issue, I write separately.

¶3The Court makes two general observations in its discussion on victim impact evidence. First, the Court suggests there is no constitutional impediment to the legislature’s determination that victim impact statements are relevant in a capital sentencing proceeding. Second, the Court intimates that the victim’s family or other persons may, in the discretion of the presiding judge at the sentencing stage of the trial, testify in open court regarding the impact of the offense upon the victim and members of his family. The major problem with these twinfold conclusions is that they ignore the eighth amendment proscription against cruel and unusual punishment.1 As the Court has not seen fit to examine this critical constitutional provision, I believe it essential to detail the premises, reasoning, and implications of the Court’s unnecessarily broad dicta.

¶4As a preface to my opinion, I wish to make three preliminary observations. First, I have no quarrel with the use of relevant victim impact evidence from the victim himself in non-capital sentencing proceedings. Victim impact evidence that details the relevant physical, emotional, and financial *754harm caused by the offender upon the victim often provides useful and valuable information that enhances the court’s ability to fashion an appropriate sentence. This benefit, coupled with active victim participation, acts to restore and increase confidence in the criminal justice system. Second, the concerns I raise in this case are limited to the use of victim impact evidence in capital sentencing proceedings. This is not to suggest that I advocate the total abolition of victim impact evidence in capital sentencing proceedings; however, this evidence must be admitted with due regard to the Constitution. Third, I do not minimize the miserable ordeals these families have suffered as a result of these crimes. Nor am I insensitive to the considerable emotional problems faced generally by the families of murder victims. Nevertheless, as I see it, the Court’s paramount duty is to preserve the intégrity and fundamental fairness of the criminal justice system guaranteed to every citizen under our federal and state constitutions.

¶5I

¶6The victim of lawlessness has often been the “forgotten person” in the criminal justice system,2 and his neglect has been characterized as a “national disgrace.” President’s Task Force on Victims of Crime vii (Final Report Dec. 1982). In recent years, however, federal and state legislators have attempted to redress this situation by enacting laws designed to increase and enhance meaningful victim involvement in criminal proceedings. One method of victim involvement that has gained growing popularity is the use of victim impact statements in the sentencing process.3*755Broadly defined, a victim impact statement is an objective description of the medical, physical, financial, and emotional injuries inflicted by the offender upon the victim.

¶7The Supreme Court has not determined whether the use of victim impact statements in capital sentencing proceedings violates the eighth and fourteenth amendments. Nevertheless, a careful review of the many death penalty cases decided by the Supreme Court in the last thirteen years convinces me that the unbridled use of victim impact evidence in capital sentencing proceedings is on a direct collision course with the constitutional ban against cruel and unusual punishment.

¶8II

¶9As this Court recently observed, “[a]ny review of Supreme Court case law on capital punishment must begin with Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 *756L.Ed.2d 346 (1972).” Trimble v. State, 300 Md. 387, 417, 478 A.2d 1143, 1158 (1984), cert. denied, 469 U.S.-, 105 S.Ct. 1231, 84 L.Ed.2d 368 (1985). Each Justice in Furmanauthored an individual opinion either concurring in or dissenting from the judgment striking down the capital punishment statutes in Georgia and Texas. Five Justices supported the Court’s per curiam opinion, while four Justices dissented. Three of these opinions are relevant to the discussion here.

¶10Justice Douglas, concurring in the judgment, argued that the death penalty’s arbitrary and discriminatory impact rendered it unconstitutional under the equal protection concept implicit in the eighth amendment proscription against cruel and unusual punishment. In particular, Justice Douglas condemned the sentencing procedures then in effect in Georgia and Texas because they vested the sentencing authority with “uncontrolled discretion” in deciding whether to impose capital punishment or imprisonment. Furman v. Georgia, supra, 408 U.S. at 253, 92 S.Ct. at 2734, 33 L.Ed.2d at 357 (Douglas, J. concurring).

¶11Similar to Justice Douglas, Justices Stewart and White focused upon the administration of the death penalty. Justice Stewart found these statutes unconstitutional because the penalty was wantonly and freakishly imposed upon a capriciously selected few. Id. at 308-10, 92 S.Ct. at 2761-63, 33 L.Ed.2d at 389-90 (Stewart, J., concurring). According to Justice White, the infrequent imposition of the death penalty, together with no meaningful basis for distinguishing the few sentenced to die from the many spared the penalty, rendered the statutes unconstitutional. Id. at 313, 92 S.Ct. at 2764, 33 L.Ed.2d at 392 (White, J., concurring). The concurring opinions of Justices Stewart and White, therefore, made clear that the vesting of standardless sentencing power in the sentencing authority violated the prohibition on cruel and unusual punishment.

¶12In the wake of Furmanmany states rewrote their capital punishment statutes in an effort to provide guided discre*757tion to the sentencing authority. Other states, however, read Furmanas requiring a mandatory death penalty. These statutes reached the Supreme Court in 1976 and, in a series of plurality decisions, the Court upheld those statutes providing guided discretion to the sentencing authority, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), but struck down those requiring a mandatory death penalty, Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts (Stanislaus) v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

¶13The Greggplurality examined Furmanand construed it as holding that the death penalty “could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.” Gregg v. Georgia, supra, 428 U.S. at 188, 96 S.Ct. at 2932, 49 L.Ed.2d at 883 (Stewart, J., joined by Powell & Stevens, JJ.). In light of this interpretation, “Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action. ” Id. at 189, 96 S.Ct. at 2932, 49 L.Ed.2d at 883 (emphasis supplied). This type of guidance is particularly appropriate when a jury acts as the sentencing authority because jurors generally lack experience in sentencing. In discussing the problem jurors have in dealing with the information they are given, the GreggCourt observed that this “problem will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.” Id. at 192, 96 S.Ct. at 2934, 49 L.Ed.2d at 885.

¶14An analysis of the death penalty statutes upheld by the Supreme Court in Gregg, Proffitt, and Jurekreveals that *758the statutes incorporated three general methods of channelizing and guiding the discretion vested in the sentencing authority. First, the discretionary statutes created a bifurcated trial whereby the accused’s guilt would be determined separately from his punishment. Second, the statutes authorized the death penalty in those cases involving certain aggravating circumstances, and directed the sentencing authority to consider the existence of mitigating circumstances. Third, the statutes were valid because they allowed expedited appellate review of the capital punishment sentence as a check against the random or arbitrary imposition of the death penalty. See Tichnell v. State, 287 Md. 695, 723-24, 415 A.2d 830, 845 (1980). These three general methods of guiding the sentencing authority’s discretion therefore addressed the basic concern of Furmanthat defendants were being sentenced to death capriciously and arbitrarily.

¶15In addition to discussing the guided discretion of the sentencer in capital sentencing proceedings, the plurality in Proffittand Jurekemphasized the objective nature of the inquiry into the question of whether a defendant should be sentenced to death. See Proffitt v. Florida, supra, 428 U.S. at 259, 96 S.Ct. at 2970, 49 L.Ed.2d at 927 (Powell, J., joined by Stewart & Stevens, JJ.); Jurek v. Texas, supra, 428 U.S. at 273-74, 96 S.Ct. at 2957, 49 L.Ed.2d at 939 (Stevens, J., joined by Stewart & Powell, JJ.). As the plurality observed’in Jurek:

It thus appears that, as in Georgia and Florida, the Texas capital-sentencing procedure guides and focuses the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.

¶16Id.(emphasis supplied).

¶17In contrast to these guided discretion statutes, the Court found the mandatory death penalty statutes in Woodsonand Roberts unconstitutional. The plurality in Woodsoninvalidated North Carolina’s statute because it failed to satisfy Furman’s basic requirement by replacing arbitrary *759and wanton jury discretion with objective standards to guide, regularize, and make rationally reviewable the sentencing process in capital cases. See Woodson v. North Carolina, supra, 428 U.S. at 303, 96 S.Ct. at 2990-91, 49 L.Ed.2d at 960 (Stewart, J., joined by Powell & Stevens JJ.). The Court found a further shortcoming in that the statute did not permit the particularized consideration of relevant aspects of the character and record of each convicted defendant before imposing the death penalty. The WoodsonCourt further remarked:

This Court has previously recognized that “[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55 [, 58 S.Ct. 59, 61, 82 L.Ed. 43, 46] (1937). Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. See Williams v. New York, 337 U.S. [241, 247-49, 69 S.Ct. 1079, 1083-84, 93 L.Ed. 1337, 1342-43 (1949) ]; Furman v. Georgia, [supra, 408 U.S. at 402-03, 92 S.Ct. at 2810-11, 33 L.Ed.2d at 443-44] (Burger, C.J. dissenting). While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

¶18Id. at 304, 96 S.Ct. at 2991, 49 L.Ed.2d at 961 (citation omitted).

¶19Subsequent decisions by the Supreme Court have confirmed that the thrust of its decisions on capital punishment *760has been that the sentencing authority’s discretion must be suitably directed and limited so as to immunize the risk of wholly arbitrary and capricious action. See, e.g., Spaziano v. Florida, 468 U.S. -, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983) (death penalty decision must be based on the character of the defendant and the nature of the offense); Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983) (sentencer’s discretion must be guided in a constitutionally adequate way); Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (need individualized determination on the basis of the defendant’s character and the circumstances of the crime at the capital sentencing proceeding); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (vacating death sentence because it was imposed without the type of individualized consideration of mitigating factors as required by the eighth amendment); Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 1769, 64 L.Ed.2d 398 (1980) (State must channel the sentencer’s discretion by clear and objective standards that provide specific and detailed guidance); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (sentencing process must permit consideration of the character and record of the individual offender and the circumstances of the particular offense). To ensure that the sentencing authority’s discretion is properly channeled and guided by clear, objective, and specific standards, courts of course retain their traditional authority to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense. Id.at 604 n. 12, 98 S.Ct. at 2965 n. 12, 57 L.Ed.2d at 990 n. 12. In view of these standards it is necessary to ascertain, in the context of capital sentencing proceedings, the constitutionality of victim impact evidence.

¶20Ill

¶21Maryland’s victim impact evidence statute was originally enacted in 1982, and has undergone various revisions since *761that time. See Md.Code (1957, 1984 Cum.Supp.), Art. 41, § 124. This statute currently provides that various kinds of information be included in a victim impact statement. See id. § 124(c)(3). That information, it should be noted, deals with the impact of the crime upon the victim and, to a large extent, the victim’s family. Section’ 124(c)(3) provides:

(3) A victim impact statement shall:

(i) Identify the victim of the offense;

(ii) Itemize any economic loss suffered by the victim as a result of the offense;

(iii) Identify any physical injury suffered by the victim as a result of the offense along with its seriousness and permanence;

(iv) Describe any change in the victim’s personal welfare or familial relationships as a result of the offense;

(v) Identify any request for psychological services initiated by the victim or the victim’s family as a result of the offense; and

(vi) Contain any other information related to the impact of the offense upon the victim or the victim’s family that the court requires.

¶22Victim impact statements, which are included in a presentence investigation report, were permitted in only the following situations prior to 1983:

1. The defendant, in committing a felony, caused physical, psychological, or economic injury to the victim; or

2. The defendant, in committing a misdemeanor, caused serious physical injury or death to the victim.

¶23Id. § 124(e)(2)(i)(l)-(2) (emphasis supplied). Standing alone, these provisions do not by their terms authorize a victim impact statement in a capital sentencing proceeding because the word “death” is omitted from the felony category. See id. § 124(c)(2)(i)(l). Therefore prior to 1983, the only situation under § 124(c) in which a victim impact statement was admissible when a victim died as a result of a crime was where the defendant caused the victim’s death while committing a misdemeanor, such as manslaughter by automobile. In *7621983, however, the General Assembly enacted § 124(d), which expressly authorizes the use of victim impact statements in any case in which the State requests the death penalty. Section 124(d) provides in its entirety:

(d) In any case in which the death penalty is requested under Article 27, § 412, a presentence investigation, including a victim impact statement, shall be completed by the Division of Parole and Probation, and shall be considered by the court or jury before whom the separate sentencing proceeding is conducted under Article 27, § 413 [Emphasis supplied; citations omitted.]

¶24This statute, however, does not authorize the use of victim impact statements in every case where a defendant is convicted of murder, but only authorizes these statements when the State seeks the penalty of death in a first degree murder prosecution and obtains a conviction for that specific crime. This conclusion is reinforced by the provision in § 124(d) that allows this evidence to be used only in the “separate sentencing proceeding.” Capital cases are the only cases requiring such separate proceedings. Moreover, because the death penalty may only be considered for first degree murder by a principal in the first degree, the statute necessarily precludes the general use of victim impact statements other than as specifically authorized. A cursory glance at the clear and unambiguous language of § 124(d) indicates that the legislature did not, for whatever reason, address any other circumstance involving a murder prosecution where a victim impact statement would be admissible, except when the State requests the death penalty. As a result of this peculiar statutory arrangement, a victim impact statement is not authorized in those situations where a felon causes the victim’s death and that felon is not a principal in the first degree in a first degree murder case.4

¶25*763As I see it, the primary thrust of appellant’s argument is that the use of victim impact evidence in this capital sentencing proceeding is constitutionally forbidden and amounts to an “arbitrary factor” in violation of Md.Code (1957, 1982 Repl.Vol.), Art. 27, § 414(e)(1).5 Evidently impatient with appellant’s failure to refer to the precise constitutional provisions involved, the Court dismisses appellant’s argument on the basis that “the legislature did not believe that victim impact evidence was an arbitrary factor.” In my judgment, the Court in making this statement completely misses the point. The point is whether the admission and use of victim impact evidence in capital sentencing proceedings comports with the Constitution, not what the legislature may have perceived. The Court skirts the obvious eighth amendment issue in appellant’s argument. Unlike *764the Court, however, I address that issue and conclude that the victim impact evidence in this case is unconstitutional.6

¶26A.

¶27At the sentencing proceeding the trial court allowed into evidence the victim impact statements by Officer Fletcher’s widow and Minh Phamdo's mother. Putting aside for one moment the issue of whether the statement by Minh’s mother had the slightest relevance in this case, portions of the statement by Fletcher’s widow should have never been allowed into evidence on the basis that they constituted an arbitrary factor in violation of the eighth and fourteenth amendments.

¶28Time and again the Supreme Court has emphasized that the sentencer’s discretion in a capital sentencing proceeding must be channeled and guided by clear, specific, and objec*765tive standards. See, e.g., Barclay v. Florida, supra, 463 U.S. at-, 103 S.Ct. at 3424, 77 L.Ed.2d at 1144; Godfrey v. Georgia, supra, 446 U.S. at 428, 100 S.Ct. at 1764-65, 64 L.Ed.2d at 406; Woodson v. North Carolina, supra, 428 U.S. at 303, 96 S.Ct. at 2990-91, 49 L.Ed.2d at 960. Evidence that has the effect of arousing the passion and prejudice of the sentencer does not satisfy this constitutional standard. Similarly, evidence irrelevant to the sentencing decision has no place in a capital sentencing proceeding. A review of the statements introduced in this case makes these points indelibly clear.

¶29Fletcher’s widow submitted a victim impact statement that detailed the emotional injury sustained by her and her young daughter, Carlita. The use of this statement, in light of its content, had no purpose other than to arouse and incite the passions of the sentencing authority:

I still cannot understand how a human being could walk up to another person and brutally shoot him with a shotgun, without giving it a second thought. I still have nightmares about how Carlton must have looked and felt when he saw a shotgun pointed at him. Then I think about the way he was shot in the neck and then in the shoulder, without a chance to defend himself—I can only hope that he did not feel much pain!

I remember when I went to the funeral home to see his body for the first time after the crime. It was then that the reality of his death hit me fully and it was hard to realize that it was all over, and I didn’t even get a chance to be with him in the end. I can still see my father holding Carlita up to see her daddy and see how confused and upset she was, and hearing her asking my father “why does my daddy have that long scar on his neck”. It really scares me to think that there are people walking the street who are capable of taking another person’s life and feeling no remorse. Since this crime I am scared to trust anyone.

¶30However deserving this is of sympathy, it remains that it does not channel and guide the sentencer’s discretion in a *766constitutionally permissible manner. By appealing to the passions and prejudices of the sentencing authority, the above quoted passages represent an “arbitrary factor” in the decisional process. In my view, it is arbitrary to base a decision as to whether an accused should live or die on the basis of subjective impressions a widow has of the crime and the funeral. Predicating the death penalty decision on this type of evidence propels us full force to the preFurman era of the arbitrary imposition of capital punishment. Further passages from Mrs. Fletcher’s statement highlight this conclusion:

I have been in a state of shock and devastation since this crime has occurred. It has drastically changed my whole future and the future of my children.

Carlton and I were both religious and felt that children needed both mother and father to have a well-rounded upbringing. We were both looking forward to the birth of our second child. At the time of the crime, I was six months pregnant. I still cannot imagine raising two children without a father and know that Carlton won’t even have a chance to see his second child. It hurts when I see other children with their fathers, knowing that my children don’t have a father now who can love and hold them.

Carlton was the perfect family person, he was totally devoted to his family. It was like a miracle to find a man like him—we had something very special. We had created a love that could withstand anything in life. We were not only husband and wife, but best of friends. We had respect and trust for each other, which is hard to find in couples today.

Ever since this happened, I feel alone and empty inside, a feeling that no one can ever take away. I still think about the last day we had together, he had taken us to the “Enchanted For[e]st”. I can’t help but think of all the plans we had for the future, all of which were so abruptly changed. I have known Carlton since I was fourteen years old, he was my first and only boyfriend. I *767am now 28 years old and I feel like half of my life has been taken away. When he died part of me died too.

¶31The punishment of death, unique in its severity and irrevocability, see Gregg v. Georgia, supra, 428 U.S. at 187, 96 S.Ct. at 2931, 49 L.Ed.2d at 882, should not turn upon these considerations.

¶32Section 124(c)(3)(v) provides that the victim impact statement “[i]dentify any request for psychological services initiated by the victim or the victim’s family as a result of the offense[.]” The victim impact statement submitted by Fletcher’s widow contains a lengthy account of the psychological impact of the crime upon Carlita, Fletcher’s minor daughter. The gripping account makes it easy to overlook the fact that it has no legitimate role in a capital sentencing proceeding. The text of this statement, reprinted at length below, demonstrates that it is an arbitrary factor in the sentencing decision:

My 3-year-old daughter Carlita has suffered both emotional and psychological stress as a result of this crime and I have had to take her to a child psychiatrist. Carlita and Carlton were extremely close since the time of her birth. Whenever he was home, he would spend his time with Carlita, taking care of her, helping her and teaching her the right things in life.

Since his death, Carlita has been extremely confused. She asks me “why doesn’t my daddy come back”, “who is going to be my daddy now that my daddy is gone”. Even some mornings when I take her to school, she will say to me when she sees her father’s car sitting in the yard “I want my daddy to come back and drive his car”. What can I say to my 3-year-old child asking these questions, when in my heart I want the same thing! At night Carlita has nightmares, waking up screaming and crying for her daddy. When I took her to the child psychiatrist, the doctor told me that Carlita’s and Carlton’s relationship was more like a mother-daughter relationship, because of their closeness. So Carlita’s loss was ever greater because of this relationship. Since she lost her *768father, she is afraid to let me out of her sight, and has expressed the fear that she will lose me too.

I am also very upset about the effects this crime might have on my unborn child. Because of the stress I felt, my blood pressure was elevated considerably, I have had a loss of appetite and have difficulty finding any sleep at night. My physician was very concerned about my condition, fearing that the baby might be born prematurely. Every time Carlita and I see a police office[r] or a police car, it is a constant reminder of Carlton and how he died.

¶33In sum, I find little information in the victim impact statement submitted by Fletcher’s widow that is relevant, from a constitutional standpoint, and that does not constitute an arbitrary factor. Simply stated, and without intending to minimize the suffering of the victim’s family, it is irrelevant to the death penalty decision that the daughter of a murder victim undergoes psychiatric treatment for the emotional injury caused by the offense. If that were the case, factors in the capital sentencing proceeding would be whether the victim left any minor survivors and the susceptibility of emotional trauma of a particular family member to the murder. Surely, neither the eighth amendment nor the decisions of the Supreme Court would sanction factors such as these in a death penalty case.

¶34The Court inexplicably avoids the issue of whether the evidence of the impact Minh’s murder had on his family is relevant to a determination of the sentence to be imposed on appellant upon his conviction of murdering Fletcher. Given the Court’s conceded urgency to provide guidance to the lower court on retrial, it is bewildering why it does not reach this particular issue. Because there is no indication that the State will not again use the victim impact statement of Minh’s mother at appellant’s retrial, the Court is mistaken in hoping that its broad-ranging dicta will “[avoid] the burden of appeals” it so earnestly seeks to avoid.

¶35At the outset, I note that § 124 by its terms bars the victim impact statement submitted by Minh’s mother in *769Lodowski’s capital sentencing proceeding. Lodowski was convicted as a principal in the first degree in the first degree murder of Officer Fletcher, and as a principal in the second degree in the first degree murder of Minh. In a separate trial, Lodowski’s confederate, Kamel Elfadl, was convicted as a principal in the first degree in the first degree murder of Minh.7 Without repeating in detail why the only class of felonies for which a victim impact statement is authorized under § 124 when the felon causes the victim’s death is limited to first degree murders committed by principals in the first degree, it is obvious that § 124 may authorize the victim impact statement submitted by Mrs. Fletcher. Because § 124 does not in any sense authorize the use of victim impact statements in cases involving a first degree murder committed by a principal in the second degree, the victim impact statement submitted by Minh’s mother in Lodowski’s capital sentencing proceeding is inadmissible. Manifestly, had Lodowski been tried in a separate trial for the murder of Minh, the victim impact statement submitted by Minh’s mother would not be allowed into evidence under § 124. That Lodowski was tried for the murders of both Fletcher and Minh in a single proceeding does not alter this reasoning one whit.

¶36Assuming arguendo that this statement is admissible in Lodowski’s capital sentencing proceeding, I am satisfied that portions of this statement constitute an arbitrary factor under Art. 27, § 414(e)(1) and violate the eighth and fourteenth amendments.

¶37Several passages in the victim impact statement submitted by Minh’s mother injected passion and prejudice into the sentencing process. For instance, in describing the impact of the crime upon her husband (Tue Phamdo), Minh’s mother wrote:

Tue used to rely on Minh as a second dad for the family. Minh was his assistant. Tue can’t eat nor can he sleep at *770night. He’s so stunted with shock that he can’t even cry and let his emotions out. He often has chest pains as if a bullet pierces through his right lung—where Minh was hit at close range with a shot gun. I’m very worried about my husband’s health. I’m worried about my younger sons’ future. [Emphasis supplied.]

¶38In a section entitled “Our Past Happy Days,”8 Minh’s mother stated that before her son’s murder the family would share the day’s events at dinner. After Minh’s death, however, this practice ceased:

We were very happy for we believed that we could finally settle in a peaceful country, away from violence and persecution. Our children’s [sic] eyes shone with love for this new country (Minh died two weeks after he obtained his U.S. citizenship). Now that Minh is gone none of us talked at the dinner table. We lost our family sharing time, we lost our happiness.

i[e sjc s[t s}c …

We relied on Minh on everything. We put all of our hope in Minh. Minh in turn proved himself to be a worthy son. He contributed a lot to the well-being and the happiness of our family. Without Minh we have lost the family unit, we lost our sharing time such as household chores or mowing the grass and weeding the garden. We are a close knit family. Without Minh our family is not complete.

¶39The victim impact statement goes on to describe, in simple but descriptive terms, the effect of the crime upon the family members. Again, however, this evidence has no *771legitimate role in a capital sentencing proceeding. The impact a violent crime has on a particular familial relationship is not relevant to the imposition of the death penalty. The reason, it seems to me, is obvious. To allow evidence of this genre into a capital sentencing proceeding injects factors that have nothing to do with the defendant’s level of culpability in the offense for which he is being sentenced. As one court recently put it, “the fact that a victim’s family is irredeemably bereaved can be attributable to no act of will of the defendant other than his commission of homicide in the first place. Such bereavement ... has no relationship to the proper purposes of sentencing in a criminal case.” People v. Levitt, 156 Cal.App.3d 500, 517, 203 Cal.Rptr. 276, 288 (1984).

¶40The statement also contains other information that should have been excluded by the sentencing court. This information deals with the emotional troubles experienced by various members of Minh’s family.

We have been suffering incessantly because of this crime. Minh’s grandmother (on his dad’s side) is 74 years old and is living with us. She wept and fainted very often. She beli[e]ves that when she passed away her soul would wander aimlessly for her first grandson is not on earth to worship her. Any other grandson who would take over the duty of ancestor worshipping would not be as effective as Minh, the first born. At the dinner table, each time she saw a dish which was Minh’s favorite, it reminded her of his so she broke out crying and had migraine headaches and lost her voice. All of us couldn’t eat. We all lost weight and became pale.

Ho Tan, Minh’s six years [sic] old brother, started to wet his bed and woke up in the middle of the night crying. He was shivering with fears; he held me tightly and asked “Why are bad guys stronger than the police, mommy?”

Tuan and Nam [Minh’s younger brothers] have become withdrawn. They isolate themselves. They quit ta[l]king and playing as they normally do. They sit and stare at *772books for hours without registering anything. They have stopped telling us about themselves, they have stopped asking each other questions about Math, History and Science. Nam and Tuan each now sits [sic] at a corner of the house, motionless.

¶41Finally, Minh’s mother wrote of the impact the murder had upon her:

As Minh’s mother I suffer the most. I did not only lose a son but I’ve also lost a friend who was my right arm. I’ve developed severe headaches. I feel exhausted all the time. I can’t control my tears even in public places. I can’t concentrate and can’t type anymore. My whole body often shakes with fear and I drop things constantly. I’m so frightened. I dread that some evil men are there to wait for me and for my other sons. Noises are amplified in my head and send pain to my heart. How can I protect my other sons? What can I do? I’m so frightened. I’m so confused. I had never missed a day of work during my first four years with the Red Cross but I had to call in sick five times [in] the last two months. I’ve had constant anxiety attacks that make it hard for me to get out of bed in the morning. I’m so confused on how to teach my children. I’ve lost faith in people. I had taught Minh to be industrious and compassionate yet we encountered disaster. Each passing day is a big struggle for us. We are lost; having lost our most loved son we have lost our goal in life. We don’t communicate with each other in the family anymore. Each one of us suffers silently and alone. We feel drained out. They have not just killed one person, Minh, but they have successfully killed a family of six, whose mere wish is to live simply and peacefully.

¶42Nowhere does the Court make an effort to analyze these statements. This omission is to some extent understandable, of course, because it permits the Court to avoid the imposing task of squaring these statements with the Constitution. Despite this omission, the Court’s reasoning suffers from yet other fundamental infirmities.

¶43*773B.

¶44In a 1974 case, this Court stated that “the sentence should be fashioned, to the best of the sentencing judge’s ability, to the facts and circumstances surrounding the crime and the individual then being sentenced. ” Henry v. State, 273 Md. 131, 150, 328 A.2d 293, 304 (1974) (emphasis supplied). Based upon this statement, appellant argues that victim impact evidence does not relate to either of those matters and, as a result, is inadmissible. The Court rejects this argument because “there is a reasonable nexus between the impact of the offense upon the victim or the victim’s family and the facts and circumstances surrounding the crime especially as to the gravity or aggravating quality of the offense.” The Court’s reasoning is unconvincing. In my view, the Court tortures its earlier decisions and, more important, ignores controlling Supreme Court precedents.

¶45The Court fails to acknowledge that Henryis a non-capital case. Given this less than subtle distinction, it is difficult to understand how the Court can so easily apply non-capital sentencing guidelines to capital sentencing proceedings. The more appropriate analytical approach is found in a host of Supreme Court decisions dealing with the death penalty. See, e.g., California v. Ramos, supra,463 U.S. at-, 103 S.Ct. at 3452, 77 L.Ed.2d at 1180-81; Zant v. Stephens, supra,462 U.S. at-, 103 S.Ct. at 2743-44, 77 L.Ed.2d at 251; Lockett v. Ohio, supra, 438 U.S. at 604-05, 98 S.Ct. at 2964-65, 57 L.Ed.2d at 990; Roberts (Harry) v. Louisiana, 431 U.S. 633, 636, 97 S.Ct. 1993, 1995, 52 L.Ed.2d 637, 641 (1977) (per curiam); Woodson v. North Carolina, supra, 428 U.S. at 302-03, 96 S.Ct. at 2990, 49 L.Ed.2d at 960. Under this approach, “the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Id. at 304, 96 S.Ct. at 2991, 49 L.Ed.2d at 961 (emphasis *774supplied; citation omitted). Information contained in a victim impact statement that strays beyond these limits violates the eighth and fourteenth amendments.

¶46On the facts of this case, it is clear to me that the victim impact statements are not limited to “the character and record of the individual offender and the circumstances of the particular offense.” Manifestly, the survivors of the murder victims cannot relate any relevant facts concerning the circumstances of the murders because the survivors were not present at the time of the crime. Furthermore, the record does not indicate that any members of the victims’ families were personally acquainted with the appellant and his confederate prior to the commission of this crime. See People v. Ramirez, 98 Ill.2d 439, 454, 75 Ill.Dec. 241, 248, 457 N.E.2d 31, 38 (1983). To construe “circumstances of a particular offense” to encompass the type of information contained in these victim impact statements is to stretch that phrase to the breaking point. Rather, the Supreme Court has limited this phrase to the specific circumstances of the crime, such as whether it was committed in the course of a capital felony or whether it was committed upon a peace officer or judicial officer. See Gregg v. Georgia, supra, 428 U.S. at 197, 96 S.Ct. at 2936, 49 L.Ed.2d at 888 (Stewart, J., joined by Powell & Stevens, JJ.). Consequently, the court erred in admitting into evidence those portions of the victim impact statements that were not limited to these matters.

¶47The Supreme Court’s decisions in Gregg v. Georgia, supra, and Jurek v. Texas, supra,do not lend support to the Court’s reasoning. In Gregg, the appellant objected to the wide scope of evidence and argument allowed at presentence hearings. In rejecting this argument, Justice Stewart observed that “[s]o long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision.” Gregg v. Georgia, supra, 428 U.S. at 203-04, 96 *775S.Ct. at 2939, 49 L.Ed.2d at 891-92 (emphasis supplied); see Jurek v. Texas, supra, 428 U.S. at 276, 96 S.Ct. at 2958, 49 L.Ed.2d at 941 (“essential ... that the [sentencing authority in a death case] have before it all possible relevant information about the individual defendant whose fate it must determine.”) (emphasis supplied); Johnson v. State, 292 Md. 405, 442-43, 439 A.2d 542, 563 (1982) (quoting Jurek and Art. 27, § 413(c)(v)). The statements here do not satisfy these relevance and non-prejudicial requirements.

¶48The Court relies upon a 1977 decision by the Supreme Court of Alaska in support of its position that “the impact of the crime on the victim is a relevant circumstance surrounding the commission of the offense and thus can properly be included in the presentence report.” Sandvik v. State, 564 P.2d 20, 23 (Alaska 1977) (footnote omitted). I fail to see the relevance of this case insofar as Alaska has never had a capital punishment statute since its admission into the Union in 1959.

¶49It also bears mentioning that the trial court erred in admitting that portion of the victim impact statement submitted by Minh’s mother that recommended the court to “justify Minh’s death with a harsh sentence^]” Section 413(c)(iv) of Article 27 states in clear language that “any recommendation as to sentence contained in the [presentence investigation report (which in turn contains the victim impact statement)] is not admissible” in a capital sentencing proceeding. The introduction of this kind of material in blatant disregard of the death penalty statute underscores my contention that the sentencing court should meticulously examine victim impact statements. Material that is irrelevant to the capital sentencing decision should be redacted from the statement. Given the guidance by the Supreme Court, this should not be an imposing task.

¶50Finally, other jurisdictions have statutorily recognized, specifically or inferentially, that victim impact evidence has no legitimate purpose in a capital sentencing proceeding. See, e.g., Conn.Gen.Stat.Ann. § 54-91a (West Supp.Pamph*776let 1962 to 1983) (presentence investigation not required in capital cases); Okla.Stat.Ann. tit. 22, § 982 (West Supp. 1984-1985) (in all felonies except when the death sentence is imposed, the court shall order a presentence investigation to include the voluntary statement of the victim concerning the offense); S.C.Code Ann. § 16-3-1550 (Law.Coop.1985) (authorizing victim impact statement for all crimes except for any crime for which the death penalty is sought).9

¶51IV

¶52The Court suggests that a person other than the victim may, in the discretion of the presiding judge at the sentencing stage of the trial, testify in open court regarding the impact of the offense upon the victim and members of his family. I vehemently disagree.

¶53A.

¶54By disregarding well-settled rules of statutory construction, the Court fashions the above proposition out of whole cloth. This Court has stated on innumerable occasions that absent ambiguity or obscurity in the statutory language, there is usually no need to look elsewhere to ascertain the intent of the General Assembly. See, e.g., State v. Oliver, 302 Md. 592, 599, 490 A.2d 242, 245 (1985); Sibert v. State, 301 Md. 141, 153, 482 A.2d 483, 489 (1984); Board of Examiners in Optometry v. Spitz, 300 Md. 466, 474, 479 A.2d 363, 367 (1984); City of Baltimore v. Hackley, 300 Md. 277, 283, 477 A.2d 1174, 1177 (1984); Ryder Truck Lines, Inc. v. Kennedy, 296 Md. 528, 535, 463 A.2d 850, 855*777(1983); Vallario v. State Roads Comm’n, 290 Md. 2, 6, 426 A.2d 1384, 1385-86 (1981); Harden v. Mass Transit Admin., 277 Md. 399, 406, 354 A.2d 817, 821 (1976). In applying this rule to the case sub judice, it is evident that the Court strains mightily to reach the relevant legislative history.

¶55As an initial matter, the Court concedes, as it must, that § 124 of Art. 41 does not specifically authorize live testimony. The Court further concedes that the presentence reports provided for in that section are “[Unquestionably” to be written. In light of these concessions and the unambiguous and clear language of § 124, I cannot understand why the Court rushes headfirst to analyze the legislative history of that section. Before today, I had thought it settled that the Court is precluded from resorting to extrinsic aids to analyze the legislative intent of a particular statute when that statute is unambiguous and clear. Indeed, “[g]oing behind the plain language of a statute in search of a possibly contrary [legislative] intent is ‘a step to be taken cautiously’ even under the best circumstances.” American Tobacco Co. v. Patterson, 456 U.S. 63, 75, 102 S.Ct. 1534, 1540, 71 L.Ed.2d 748, 759 (1982) (quoting Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 26, 97 S.Ct. 926, 941, 51 L.Ed.2d 124, 143 (1977)). By sweeping aside that nettlesome rule, the Court allows itself to engage in a lengthy and unnecessary review of the legislative history of § 124. Because the path the Court takes is misguided and the inferences it draws are questionable, I cannot ignore the Court’s gratuitous discussion.

¶56The General Assembly has rejected, on at least eight occasions, bills that would have authorized victim allocution at sentencing. See S. 253, 388th Sess., § 1 (1985); H.B. 1472, 388th Sess., § 1 (1985); S. 793, 387th Sess. (1984); H.B. 1512, 387th Sess. (1984); S. 523, 386th Sess. (1983); H.B. 70, 386th Sess. (1983); H.B. 68, 386th Sess. (1983); see also S. 132, 386th Sess. (1983) (provision authorizing victim allocution deleted from bill prior to its passage and enactment). In the face of these rejections, the Court speculates *778that “the legislature thought that live testimony was in any event admissible and that no legislation expressly providing for it was necessary.” A contrary conclusion, however, is equally plausible. For a legislature to introduce nearly ten bills over a three year period on the same topic for which no legislation is presumably necessary is contrary to common sense. Indeed, a considerable number of legislators have seen fit to introduce these bills. For instance, in the 1985 session of the General Assembly, fifty-eight delegates sponsored the victim allocution bill (H.B. 1472), while ten senators sponsored the corresponding Senate bill (S. 253). Both failed.

¶57Additional reasons support my view that § 124 does not authorize live victim testimony. First, states that have authorized victim allocution have specifically done so in their statutes. The leading treatise in the area of statutory construction states that “[similar statutes of other states comprise a type of extrinsic aid deserving special attention in the process of interpretation.” N. Singer, 2A Statutes and Statutory Construction § 52.01, at 521 (Sands 4th ed. 1984). A cursory glance at Maryland’s victim impact evidence statute discloses that it is similar to that of many other states. Unlike other states, however, Maryland has not added a specific provision authorizing victim allocution. The reasonable conclusion to be drawn, therefore, is that the legislature did not intend for live victim testimony to be admitted.

¶58Second, the Court gathers from the testimony of a representative of the State’s Attorney’s Association at a hearing on one of the victim impact bills that live testimony is admissible in juvenile causes. Based on this testimony the Court reasons that the General Assembly’s failure to enact legislation to abrogate this practice evidences its reluctance to limit the discretion exercised by judges. I am appalled that the Court can so blithely equate juvenile causes with capital sentencing proceedings. Juvenile causes, as the Court surely is aware, are not subject to the carefully delineated constitutional constraints applicable in capital *779sentencing proceedings. Moreover, the Court does not point to any Maryland appellate decision or rule of court sanctioning the use of this form of testimony in juvenile causes. The Court’s reasoning, not appellant’s, is suspect.

¶59Third, after reviewing a line of cases, the Court concludes that “it is patent that over the years this Court has recognized and accepted without equivocation or question that a sentencing judge, in his discretion, may obtain information relevant to the imposition of sentence in open court through live testimony.” See Williams v. New York, supra; Logan v. State, 289 Md. 460, 425 A.2d 632 (1981) (4-3 decision); Johnson v. State, 274 Md. 536, 336 A.2d 113 (1975); Bartholomey v. State, 267 Md. 175, 297 A.2d 696 (1972) (5-2 decision); Farrell v. State, 213 Md. 348, 131 A.2d 863 (1957); Driver v. State, 201 Md. 25, 92 A.2d 570 (1952). Two of these cases are irrelevant in the case sub judice because they involved a non-capital offense. See Logan v. State, supra (second degree murder); Johnson v. State, supra (burglary). The remaining cases, for the reasons assigned below, likewise lend no support to the Court’s view.

¶60The Court relies upon Bartholomey v. State, supra, for the “broad discretion of a sentencing judge.” The Court does not tell us, however, that the BartholomeyCourt made this statement in the context of a rape case. Bartholomey v. State, supra, 267 Md. at 193, 297 A.2d at 706. Indeed, the Court limited its discussion to the discretion of the sentencer under the rape statute, Art. 27, § 461. Furthermore, given the fact that Bartholomeyand the other capital cases cited by the Court pre-date the Supreme Court’s post-Furman decisions, I cannot fathom why the Court views these cases as relevant. Post-jFurman cases emphasize that the sentencer’s discretion in a capital sentencing proceeding must be guided and channeled by clear, specific, and objective standards. See, e.g., Barclay v. Florida, supra, 463 U.S. at -, 103 S.Ct. at 3424, 77 L.Ed.2d at 1144; Godfrey v. Georgia, supra, 446 U.S. at 428, 100 S.Ct. at 1764-65, 64 L.Ed.2d at 406; Woodson v. *780North Carolina, supra, 428 U.S. at 303, 96 S.Ct. at 2990-91, 49 L.Ed.2d at 960.

¶61B.

¶62Even if I were to agree that live victim testimony is authorized in capital sentencing proceedings (which I do not), a review of the testimony in this case indicates that it suffers from the same constitutional infirmities as the victim impact statements. In my view, none of the testimony of Minh’s mother or Fletcher’s widow is relevant as to whether the sentencer should impose the death penalty. Rather, this testimony constituted an arbitrary factor because it saturated the sentencing process with passion and prejudice. A review of the live testimony makes this conclusion obvious.

¶63At appellant’s sentencing proceeding, Fletcher’s widow explained the relationship that existed between Fletcher and his young daughter:

Well, when she was born, I had a high temperature, so [my husband] was there at the hospital every day feeding her, and then after I came home, he took off to be with her, too. When I took her to the psychiatrist, they were so close, the psychiatrist said his death was more like the death of the mother, instead of the father, because that was the type of relationship that they had.

She still wonders what has happened to him. She asks me now, can she get in the airplane and go see her father. She doesn’t understand why he can’t come back. When we moved, the psychiatrist said she thinks her father is going to come to the new house. Even though she knows he’s dead, she still hopes one day he will be back. She still has nightmares about his not being there, and she has problems with guns, because she knows he was shot with a gun.

¶64Mrs. Fletcher then went on to explain what prompted her to seek psychiatric treatment for her daughter:

*781Well, she started waking up at nights screaming and crying, saying she’s talking to her daddy, and then she started having problems with guns. She’d take the nozzle off the hose and point it at people, saying she was going to shoot them, and that’s why we started taking her to the psychiatrist.

¶65The prosecutor then elicited testimony from Mrs. Fletcher, who was then pregnant, concerning the physical impact of the crime upon her:

The stress has prolonged the baby’s growth. I had two sonograms. The first one the doctor said the . baby was too small to be born the normal time. He said he can’t really tell whether it was the mix-up with dates or the stress, but he said both of them have probably played a part in it, because I shouldn’t be going this long.

¶66This testimony, highly deserving of sympathy as it is, has no relevance in any capital sentencing proceeding. The emotional problems experienced by a three-year-old girl as the result of her father’s violent death and the physical problems encountered by the victim’s widow in the late stages of her pregnancy are arbitrary factors upon which to impose the death penalty. Testimony such as this does not guide and channel the sentencer’s discretion; instead, it unleashes the sentencer’s discretion on matters not bearing upon the defendant or the circumstances of the offense. The passion and prejudice that results from this type of testimony does not require explanation.

¶67Equally unconstitutional is the testimony from Mrs. Fletcher regarding the overall impact of the murder upon her and her family. Through this cathartic testimony Mrs. Fletcher recommended that appellant be sentenced to death:

[AJfter going through the trial and hearing the different testimonies, it’s still kind of hard for me to get over the way he died. I heard—one of the witnesses said she went up to the car, and she saw his head off, and I guess that I still lay awake at night thinking about how could somebody be so heartless as to shoot somebody, and then go back and shoot him again after they shot his head off.

*782Then I think about all this happening, going through this, and I figured, after you do something like that, you get 15 to 20 years, and you’re back out on the street; you know, what kind of system is it? You can kill somebody and then you walk the streets again? I guess, personally, I feel, if you kill anyone, you should be put to death, because that doesn’t give you the right to go out and kill somebody and then walk the streets again.

Then, I went to another policeman’s, who was shot, wake, and one of the sons of an officer who was killed back in ’68 or ’69, his son was there, and he was telling me that he was 11 years old when his father died, and I was asking him how did he deal with it. He says, “Well, you really don’t never deal with it.” He says, “I still think about when they came to the door and rung the doorbell that time of night. I knew my father, something had happened to him, because nobody comes to your house that early in the morning.” He says, “I go to all these ceremonies for the dead policemen,” and he said, “The only thing that really helped me was when I found out that the person who killed my father had died,” because he was out on parole and he died of natural causes. He said, “It didn’t bring my father back, but it let me know that he wasn’t walking the streets.” That’s the same way I feel about Carlton. It won’t bring him back, but if [appellant is] put to death, he won’t kill another policeman, and let other people know you can’t kill a policeman and get away with it, get out in 20 years and walk the streets. [Emphasis supplied.]

¶68Manifestly, because a presentence investigation report prepared in a death penalty case cannot contain any recommendation as to sentence, see Art. 27, § 413(c)(iv), any sentencing recommendation made by a witness at the sentencing phase of a capital case is likewise inadmissible. Furthermore, the above testimony contravenes § 413(c)(v) because it is not relevant to sentence, and does nothing more than incite the passion and prejudice of the sentencing authority. See Art. 27, § 414(e)(1). The prosecutor, I might add, *783goaded Mrs. Fletcher into a discussion concerning her daughter’s reaction to the appearance of the victim at the time of the wake:

My father took her up to the casket and held her up so she could see him, and the first thing she wanted to know is, “Why does my daddy have that scar on his neck?” ‘cause she could see where they had stitched his neck back together, and he had the scar. That’s the first thing she noticed.

¶69The sole purpose of this statement was to arouse the passion of the sentencer. Consequently, this testimony was inadmissible.

¶70In response to the prosecutor’s question of whether Mrs. Fletcher wanted to relate anything else concerning the impact of her husband’s death, she stated:

Not really, I just know what my parents have gone through, what his parents have gone through. My aunt was very close to him. She’s had two strokes since it happened. My mother has been back in the hospital four or five times since it happened, because she was so worried about me and what effect it would have on me and the baby. Right now I guess I still can’t believe you can shoot someone and then plead insanity. I just can’t believe that.

¶71The Court, of course, cannot explain how this testimony passes constitutional or statutory muster.

¶72Although the live testimony of Minh’s mother is irrelevant for the reasons detailed in Section IIIB, it is nonetheless important to note that her testimony, in its present form, would in any event be inadmissible at appellant’s capital sentencing proceeding. It is unnecessary to quote at length her testimony because much of it mirrors that contained in the victim impact statement she submitted, such as the important role an eldest son has in ancestoral worshipping under the Vietnamese religion, the grief and bereavement of the family, and the emotional problems of *784Minh’s siblings. In an intensely passionate statement, Minh’s mother vividly expressed her emotions:

I did not lost only a son, but I lost a friend. I lost my future. At work, I did not cry. Only the time I have to cook and in front of my children, I try my best not to cry, but at other time, when I stay on the subway early in the morning and in the afternoon, I cry, I cry, and in the midnight, I wake up, and I walk in the room. I touch my son book, I took my son clothes. I call “Minh,” wherever. I wept for my Minh, wept for my Minh. Please kill me. Don’t kill my son. Please cut my hand, please cut my arm. Give my son back.

* s¡< >¡c …

Please give my son back to me. He want to live.

¶73As with Mrs. Fletcher’s testimony, this testimony constitutes an arbitrary factor in the death penalty decisional process, and is therefore barred by the eighth amendment ban against cruel and unusual punishment.

¶74Y

¶75Here, the victim impact evidence admitted by the court was a contributing factor to the imposition of the death penalty. The sentencer made clear on the first day of the capital sentencing proceeding that “I’m going to take the victim impact statement into consideration.” That he did so is clear from his comments on the day he actually imposed the death sentence. Immediately after sentencing appellant to death, the court stated:

■ [Y]ou participated in a tragedy which snuffed out the lives of two beautiful people, Carlton Fletcher and Minh Phamdo. You’ve deprived two families of a father, a son, a grandson, a brother and a husband, and deprived the citizens of Prince George’s County of a conscientious, hard working police officer, and an industrious, hard working new American citizen whose potential was unlimited. Reckless and wanton and deliberate killings have *785become all too frequent in today’s world. I hope and pray that the imposition of this sentence will deter someone in the future from following in your footsteps, Mr. Lodowski.

¶76The Court notes that “[i]t is clear from the record here that the sentencing court did not [consider the victim impact evidence as an aggravating circumstance].” The transcript of the sentencing proceeding merely supports the proposition that the sentencer did not articulate as an aggravating circumstance the impact of the murders upon the victims’ families. But it is indisputable that the victim impact evidence played an active role in the sentencer’s decision to impose the death penalty. Thus, what we are left with is the fact that the sentencer considered the victim impact evidence but did not characterize it as an aggravating circumstance. In my view, this procedure fails to comport with Art. 27, § 413.

¶77Once the sentencing authority finds beyond a reasonable doubt the existence of one or more aggravating circumstances, it is required to consider whether any mitigating circumstances exist based upon a preponderance of the evidence. If the sentencer finds that one or more mitigating circumstances exist, it must determine whether, by a preponderance of the evidence, the mitigating circumstances outweigh the aggravating circumstances. If the sentencer finds that the mitigating circumstances do not outweigh the aggravating circumstances, the sentence shall be death.

¶78Of the ten aggravating circumstances listed in § 413(d), none specifically provides for consideration of victim impact evidence. Moreover, § 413(d) does not contain a “catch-all” similar to that set forth in the mitigating circumstances subsection (§ 413(g)) that would permit the sentencing authority to consider victim impact evidence. In the case sub judice, the sentencer did not consider the victim impact evidence as a mitigating circumstance. For obvious rea*786sons, victim impact evidence would rarely, if ever, be considered as a mitigating circumstance. Thus, the sentencer necessarily must have considered that evidence as an aggravating circumstance without entering it into the formal statutory weighing process. Nowhere does § 413 permit the sentencing authority to weigh the mitigating and aggravating circumstances, then the victim impact evidence, at the time of sentencing. The imposition of the death penalty in this case therefore did not comport with the sentencing procedures contained in § 413.

¶79VI

¶80In my view, the only purpose in allowing members of the victim’s family in a capital sentencing proceeding to vent their passions and express their grief, as in this case, is to exacerbate the aggravating circmnstances established by the prosecution. These demonstrations are arbitrary and capricious and create a frenzied environment for the defendant. How can he challenge any testimony that expresses bereavement, religious harm, or infant sorrow? The defendant must remain mute while the victim’s family pleads for its “pound of flesh.”

¶81I realize that the victims of heinous crimes seek to have a voice in the criminal justice process to assure themselves that the guilty are properly and adequately punished, and I find no fault with their participation as long as it remains within constitutional bounds. But the halls of justice should not be the forum by which their cries for vengeance should be heard. The courts of this great country stand as bulwarks against tyrannical executives, oppressive legislators, and even uncontrolled, outraged citizens. We in Maryland should never allow family members to wave the murder victim’s bloody shirt before the sentencer and holler: “Death to the accused!” If we lose sight of our mission we shall not only dig the grave of the defendant but also bury justice in the mire of our vengeful labor.