State v. Clarence C. Nesbit ( 1998 )

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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