Mosley v. State

¶1concurring on court’s own motion for rehearing.

¶2Prior opinion withdrawn. For several years this Court has struggled to determine to what degree so-called “victim impact/character” evidence should be admissible at the punishment phase of a capital murder trial. The Supreme Court, in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), held the Eighth Amendment is not a per se bar to the admission of evidence of the victim’s personal characteristics or the impact of his death on his loved ones.

[T]he testimony illustrated quite poignantly some of the harm that Payne’s killing had caused; there is nothing unfair about allowing the jury to bear in mind that harm at the same time as it considers the mitigating evidence introduced by defendant ... [A] state may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s- family is relevant to the jury’s decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.

¶3Payne, 111 S.Ct. at 2609.

¶4I. Categories of Victim Impact/Character Evidence

¶5The Supreme Court in Paynedid not precisely define what constitutes victim im-paei/charaeter evidence. Yet, in order to answer the question as to the extent such evidence should be admissible it is necessary to do so.

¶6Victim impact evidence is évidence of the effect the death of the complainant has had on his or her family and friends. For example, in Payne v. Tennessee the grandmother of the surviving child victim testified at the punishment phase as to the effect on the child of the loss of his mother and younger sister. She testified further as to how the child (who was severely wounded during the attack on his mother and sister, both of whom died) cried often for his mother and asked about what happened to his baby sister. We have not been consistent on whether victim impact evidence is admissible. See Ford v. State, 919 S.W.2d 107 (Tex.Crim.App.1996) (Mansfield, J., concurring); Smith v. State, 919 S.W.2d 96 (Tex.Crim.App.1996) (Mansfield, J., concurring); Johnson v. State, 1997 WL 209527, — S.W.2d - (Tex.Crim. *267App.1997) (plurality op.) (Mansfield, J., concurring).

¶7In my concurring opinion in Johnson, I stated:

In order to avoid violation of the due process rights of the defendant and to minimize the risk of admission of irrelevant evidence (I duly note that victim impact evidence is by its nature, highly emotional and likely to have a significant impact on the jury), it is my opinion that only close family members (parents, grandparents, spouses and siblings) should be allowed to testify as to the victim’s character and/or effect the victim’s death has had on them. In the present case, the mothers of the victims testified as to the effect the loss of their sons has had on them as well as what kind of young men they were. Such evidence, testimony of close family members, is relevant under Rules 401 and 402, and is not excludable as prejudicial under Rule 403.

¶8Johnson, supra, slip op. at 17, — S.W.2d at -.

¶9I agree with the majority that allowing only close family members to testify as to the effect the death of the victim had on them may be, in certain cases, overly restrictive. Certainly, the effect of the victim’s death on a lifelong friend, work colleague, or romantic partner may well be more traumatic in some instances than on a close family member. Not allowing these individual to testify merely because they are not related by blood, I am now convinced, would be unjust. Therefore, victim impact evidence should be admissible within the context of the special issues at a capital trial, and, like any other evidence, should be subject to Texas Rules of Criminal Evidence 401 and 402. Under Rule 403 victim impact evidence which is needlessly cumulative, or whose probative value is outweighed by the danger of undue prejudice would be subject to exclusion by the trial court, subject, on review, to an abuse of discretion standard. Certainly, a long parade of witnesses testifying as to the impact of the victim’s death on them could, in some instances, be so cumulative and so prejudicial as to implicate the defendant’s due process rights; such is not an issue in the present case.

¶10The second major category of victim-related evidence is victim character evidence. This evidence pertains to the personal attributes of the victim, e.g., she was generous and involved in charitable activities, was a good mother, or was successful and well-liked in the community. The purpose of such evidence is to inform the jury that the victim was more than just a name; he or she was a unique individual and had worth as such. See Payne v. Tennessee, 111 S.Ct. at 2607, 2609. The defendant is permitted to put into evidence before the jury at punishment a nearly unlimited range of evidence of his character and background as mitigating against imposition of the death penalty under Texas Code of Criminal Procedure, Article 37.071, § 2(e). Evidence of the victim’s character and background is, in my opinion, equally relevant in the context of the mitigation special issue. As with victim impact evidence, the admissibility of victim character evidence is subject to Rules 401, 402 and 403. In the present case, I agree with the majority that the testimony of three witnesses related to the victims as to the victims’ good character and the effect of their deaths on them was relevant victim impact/character evidence under Rules 401 and 402. Furthermore, the evidence was not needlessly cumulative, nor did its prejudicial effect outweigh its probative value, requiring its exclusion under Rule 403. Accordingly the trial court did not abuse its discretion in allowing the admission of this testimony.

¶11With these comments, I join the opinion of the Court.

¶12dissenting on court’s own motion for rehearing.

¶13Because the Court granted rehearing on its own motion, my prior opinion is withdrawn. After reading appellant’s brief, the majority opinion of this Court, the concurring opinions, and the dissenting opinions, I am of the firm belief that the issues raised by appellant require additional briefing. As the court of last resort in Texas for criminal matters, we should not render a disposition of the issues as suggested by the majority *268opinion.1 The United States Supreme Court in various decisions has upheld the constitutionality of the Texas capital murder laws. Implicit is a requirement of meaningful appellate review for those cases wherein the death penalty has been assessed. It should be obvious to all that appellant, an indigent death row inmate, is working under unreasonable inflexible time restraints imposed by this Court in this case.

¶14Even a strained sense of justice demands that we reorder briefing. Issues such as the actions of the trial judge toward appellant’s African-American lawyers and the creation of a hostile and racially charged courtroom atmosphere have far ranging potential consequences regarding the disposition of this case.

¶15Rather than rushing to injustice as the majority seems intent on doing, I would order appellate counsel to rebrief per Tex. R.App.Pro. 38.9, formerly Tex.R.App.Pro. 74(p). Afterwards, this Court can provide the constitutionally required due process of law by providing meaningful review. Because the majority chooses to do otherwise, I strongly dissent.

¶17dissenting on court’s own motion for rehearing.

¶18The majority sets out a “consistent, if not always clear-cut rule”: victim impact and vietim character evidence are admissible at punishment in capital murder trials. Consistency and clarity are certainly laudable goals in appellate jurisprudence. But the law should come first. The problem with the majority’s “consistent and clear-cut” rule is that victim impact and victim character evidence is simply not relevant to the mitigation special issue as prescribed by the Texas Legislature. I dissent to the Court’s failure to exercise judicial restraint; I decline to legislate.

¶19Evidence is generally admissible at punishment in capital cases in Texas if it is “relevant” to the “special issues” for consideration by the jury. Tex.Code Crim. Proc. art. 37.071; McDuff v. State, 939 S.W.2d 607, 620 (Tex.Crim.App.1997)(“[a]dmissibility [of victim impact evidence] is determined by the terms of the Rules of Criminal Evidence, particularly whether such evidence is relevant to the statutory special issues”); Bell v. State, 938 S.W.2d 35, 49 (1996)(“[d]uring the punishment phase of a capital murder trial, evidence may be presented on any matter the trial court deems relevant to answering the special issues”), cert. denied, — U.S. -, 118 S.Ct. 90, 139 L.Ed.2d 46 (1997); Banda v. State, 890 S.W.2d 42, 61 (1994)(“[d]uring the punishment phase of a capital murder trial, evidence may be presented on any matter that the court deems relevant to answering the special issues”), cert. denied, 515 U.S. 1105, 115 S.Ct. 2253, 132 L.Ed.2d 260 (1995); Ex parte Broxton, 888 S.W.2d 23, 28 (Tex.Crim.App.1994)(extraneous offense evidence admissible “to the extent [it is] relevant to prove the special issues), cert. denied, 515 U.S. 1145, 115 S.Ct. 2584, 132 L.Ed.2d 833 (1995).1 Evidence is “relevant” if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex.R.Crim. Evid. 401. And, “[a]ll relevant evidence is admissible, except as provided by constitution, by statute, by [the rules of evidence] or by other rules_” Tex.R. Cr. Evid. 402.

¶20The majority says victim impact and victim character evidence is relevant to the following mitigation special issue:

[if the jury answered the previous special issue in the affirmative, the jury is instructed to answer the following issue:] [w]hether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character *269and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a deáth sentence be imposed.

¶21See Majority op. at 262 (observing victim evidence “is relevant only insofar as it relates to the mitigation issue”). Therefore, if evidence about the victim’s character or the impact of the crime on the victim’s relatives or close friends has any tendency to make more or less probable that a sufficient mitigating circumstance or circumstances will warrant a sentence of life imprisonment rather than a death sentence, then such evidence is admissible.

¶22The majority appears to offer two explanations as to how victim evidence is relevant to the mitigation special issue. At first, the majority says victim impact and character evidence are “admissible ... to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant’s mitigating evidence.” Majority op. at 262. But the “uniqueness of the victim [and] the harm caused by the defendant” are merely descriptions of what victim character and victim impact evidence are. Thus, the majority holds that victim character and victim impact evidence are admissible to show victim character and victim impact. This circular holding says nothing about how it is that such evidence is “relevant” to the mitigation special issue under the Rules of Criminal Evidence.

¶23In further explanation, the majority says “victim-related evidence is relevant to show that the mitigating circumstances are not ‘sufficient’ to warrant imposing a life sentence.” Majority op. at 263. In other words, evidence of the victim’s character and the impact of the crime on the victim’s friends and family tends to make it more or less probable that the defendant’s mitigating evidence will not be enough to warrant a life sentence. The most obvious problem with this reasoning is that it factors in new aggravating evidence (apart from the aggravating evidence offered in support of a finding of future danger), which we have repeatedly and unequivocally said is contrary to the plain language of the mitigation special issue and inconsistent with the way the Legislature has structured the special issues.

¶24The first two special issues serve the narrowing function of defining the class of death eligible persons and thus are the only issues to which aggravating evidence is relevant. Tex.Code Crim.App. art. 37.071 § 2(b). The mitigation issue, however, compels the jury to inquire whether there might be some reason for sparing the defendant’s life. Aggravating evidence has no relevance to this question. Id. at § 2(e).

¶25In an eight-one opinion rendered just over one year ago, with rehearing denied nearly a year ago to this date, the Court stated unequivocally that aggravating evidence is not relevant to the mitigation special issue. El-dridge v. State, 940 S.W.2d 646, 653-54 (Tex. Crim.App.1996). There, the defendant argued the mitigation issue was unconstitutional because “it assigned] no burden as to aggravating circumstances.” We were perplexed by the argument:

It is unclear what appellant means by this; we can only speculate. He might be referring to the aggravating circumstances considered under Article 37.071 § 2(b), i.e. future dangerousness. But the burden as to future dangerousness is expressly assigned to the State_ Alternatively, appellant might mean that there is a balancing of aggravating and mitigating circumstances inherent in the requirement in Article 37.071 § 2(e) of consideration of a defendant’s individual circumstances and personal moral culpability. Appellant does not explain how § 2(e) implicitly calls for aggravating circumstances when the plain language of the statute does not.

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More importantly, appellant does not explain why § 2(e) would necessarily call for a consideration of non-statutory aggravating evidence when the necessary narrowing junction has already been taken care of under § 2(b). On its face, Article 37.071 § 2(b) is the only part of the statute that involves aggravating evidence. The issue of future dangerousness is com*270pletely independent of the special issue under § 2(e). The capital jury is told that it cannot answer the special issue until it has unanimously answered the first “yes,” beyond a reasonable doubt. At this point, it is instructed to determine whether, in spite of its finding beyond a reasonable doubt that appellant would represent a continuing threat to society, the circumstances of appellant’s crime and life nonetheless call for leniency, i.e., a life sentence. The purpose of the second special issue from appellant’s perspective is not to rebut the affirmative answer to the first special issue. Rather, the purpose is to determine whether the individual circumstances of appellant’s case and background call for sparing his life, even though the jury has found that he may be a continuing threat to society. Because § 2(e) does not contemplate aggravating factors, its silence as to the burden of proof on aggravating factors does not make it constitutionally infirm.

¶26Id. at 653-54 (emphasis added). The Court could not have stated more clearly its view that under the “plain language” of section 2(e), aggravating evidence is not relevant.

¶27In another eight-one opinion, this one sponsored by the author of the majority today, the Court emphasized that the jury’s discretion to consider aggravating evidence must be narrowed (and has been, per the future dangerousness issue and by defining the crimes for which the death penalty may be imposed), while discretion to consider mitigating evidence should be open-ended (and is, per the statutory Penry issue):

[Ajppellant argues that the failure of the statutory Penry issue [ ] to assign a burden of proof permits open-ended discretion in violation of the Eighth Amendment.... The “open-ended” objection was leveled at Penry itself, and the United States Supreme Court responded:

“In contrast to the carefully defined standards that must narrow a sentencer’s discretion to impose the death sentence, the Constitution limits a State’s ability to narrow a sentencer’s discretion to consider relevant evidence that might cause it to decline it to impose the death sentence.” Penry v. Lynaugh, 492 U.S. 302, 327, 109 S.Ct. 2934, 106 L.Ed.2d 256.... The future dangerousness special issue and other non-Penry special issues, along with the specifically enumerated murder situations which constitute capital murder, limit the jury’s discretion to consider aggravating factors. As noted above, it is appropriate not to limit a jury’s discretion concerning mitigating factors.

¶28Wolfe v. State, 917 S.W.2d 270, 278 (Tex.Crim.App.1996). Thus, if the mitigation issue allows for consideration of aggravating evidence, it is unconstitutionally open-ended.

¶29In McFarland v. State, 928 S.W.2d 482 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997),2 we rejected the defendant’s argument that the State should shoulder the burden of proving aggravating factors under Article 37.071 § 2(e), because that issue simply “does not involve consideration of aggravating factors”:

But the special issue under § 2(e) does not involve consideration of aggravating factors. The necessary narrowing function has already been taken care of under § 2(b). Thus, there is no burden of proof as to aggravation to assign at the § 2(b) stage of the proceedings.

¶30Id. at 518.

¶31In Lawton v. State, 913 S.W.2d 542, 557 (Tex.Crim.App.1995), cert. denied, — U.S. -, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996), we once again rejected an argument that the mitigation issue should assign a burden of proof “as to aggravating or to mitigating circumstances,” because that issue “does not ask the jury to consider aggravating evidence.”

¶32The majority now neatly “disavows” any such language in these opinions. They argue “the Supreme Court has never precluded the use of aggravating circumstances as part of the process of an individualized determina*271tion of culpability” and say “we” “recognize ... the jury may consider aggravating factors in its selection decision.” They miss the point. Supreme Court precedent does not prohibit consideration of aggravating circumstances in the context of the mitigation issue; rather, the plain language of the statute passed by the legislature does not allow for it. The legislature has the option to rewrite the statute; this Court does not.3

¶33Apart from this caselaw, today disavowed, the other disturbing aspect to the majority’s reasoning is that it is a direct invitation to conduct a comparative worth analysis. But the majority says this is not permissible. Majority op. at 262. This is also the problem with the majority’s holding that victim evidence is relevant to rebut the defendant’s admission of mitigating evidence. Id. at 262. The majority suggests that by offering evidence of his own character or circumstances, the defendant places into issue the victim’s character or circumstances. But proper rebuttal evidence in the context of the mitigation issue should go to the defendant’s character or circumstances not the victim’s. We recognized this principle in Armstrong, supra. There, after defense witnesses testified at punishment to the defendant’s good reputation for being peaceful and law-abiding, the State called the deceased’s wife to testify, in rebuttal, that the deceased had been a peaceful and hardworking man. She testified she and the deceased had been married nearly twenty-two years and had five children. She further testified that the deceased had never missed a day of work, had been a good husband and father, had been nice to everyone including others of different races, and had enjoyed many friends. Armstrong, 718 S.W.2d at 696-97 (op. on reh’g). The State also introduced a family picture and elicited the names and ages of the children. We said the defendant correctly stated the following rule;

It is never competent for the State in the first instance to prove that the person slain was peaceable and inoffensive. Such evidence becomes admissible in rebuttal when the opposite has been testified to in behalf of the defense, or when the defendant seeks to justify the homicide on the ground of threats made by the deceased.

¶34Id. at 695 (opinion on original submission). But the fact that defense witnesses testified to the defendant’s reputation did not raise an issue as to the reputation or character of the deceased. Id. at 696. We reaffirmed this holding on rehearing, emphasizing “the State may not introduce evidence of the deceased’s good character unless that character has somehow been placed in issue by the defendant.”4Id. at 697 (op. on reh’g) (emphasis added).

¶35Finally, the majority says the defendant can affirmatively waive “reliance and submission” of the mitigation issue, and thus avoid presentation of victim impact and character evidence. Majority op. at 264. But submission of the mitigation issue to the jury is legislatively mandated:

*272The court shall instruct the jury that if the jury returns an affirmative finding to each issue submitted under Subsection (b) of this article, it shall answer the following [mitigation] issue[.]

¶36Tex.Code crim. App. art. 37.071(e). The majority says the mitigation issue is distinguishable from other special issues (which we have held cannot be waived) because the mitigation issue does not impose a burden of proof on the State and it inures to the benefit of the defendant. Majority opinion at 264. The statute makes no exception on these grounds. In Powell v. State, 897 S.W.2d 307, 317 (Tex.Crim.App.1994), we held the defendant could not waive submission of the special issue on deliberateness:

Before the sentence of death can be imposed upon appellant a jury must affirmatively determine that appellant’s lethal conduct was “deliberate.” Art. 37.071(b)- [Ajppellant could not consent to a sentence of death that was not authorized, and in fact, is contrary to the statutory mandate. See also Casias, 503 S.W.2d at 263 (Defendant may not waive requirement that he be present at sentencing).

¶37The fact that the State does not bear a burden on the mitigation issue does not transform the mandate that the trial court “shall instruct” on the issue into providing that it “may instruct” on it. The plain language of the statute requires that the issue be submitted and, if the other issues are answered affirmatively, that the jury consider and answer it. The majority’s holding otherwise is contrary to the face of the statute and encourages defendants to decline to offer mitigating evidence in an effort to preclude the State from offering victim impact and character evidence. And this might be advisable in order to avoid inviting the jury to engage in comparative worth analysis. For instance, a defendant who has evidence of mental retardation can forego proffering that evidence rather than bear the risk of the State responding with evidence of the brilliance and character of the victim. I still don’t understand how this evidence regarding the victim “tends to make it more or less probable” that this defendant’s mental retardation will warrant a sentence of life....

¶38Judge Clinton’s words on this subject remain among the most sensical:

Before we can meaningfully approach the question of admissibility of “victim impact” evidence under the rules of evidence, we must clearly define the issue. It does not facilitate the analysis to ask whether a whole category of evidence is admissible under the rubric of “victim impact.” Instead, the trial court must take proffered evidence as it comes, inquiring on a case-by-case basis whether that evidence is relevant to any of the special issues in Article 37.071, which serves to circumscribe and define the parameters of the litigation at the punishment phase of a capital murder trial. Upon an objection to the relevance of any evidence that might be described as “victim impact,” the trial court must ask, as it would of any other evidence: Does it tend to make more or less probable that any of the special issues should be answered one way or the other? Tex.R.Cr. Evid., Rules 401 & 402. If the court concludes it is relevant, upon further objection it may be called upon to decide: Is the probative value substantially outweighed by the danger of unfair prejudice? Tex. R.Cr.Evid., Rule 403.[5]

¶39Ford v. State, 919 S.W.2d 107, 119 (Tex.Crim.App.1996) (Clinton, J., dissenting).

¶40Because the evidence at issue here is not relevant to the mitigation special issue, the trial court erred to admit it.6 Its admission *273affected a substantial right of appellant and thus was not harmless.7 Tex.R.App. Proc. 44.2. This case should be remanded for a new punishment hearing. I dissent.