Lynn v. Reinstein

SUPREME COURT OF ARIZONA

DUANE LYNN, ) Arizona Supreme Court
) No. CV-02-0435-PR
Petitioner,)
v. ) Court of Appeals
) Division One
HON. PETER C. REINSTEIN, JUDGE ) No. 1 CA-SA 02-0309
OF THE SUPERIOR COURT OF THE )
STATE OF ARIZONA, in and for the ) Maricopa County
County of Maricopa, ) Superior Court
) No. CR 2000-006872
Respondent Judge,)
)
RICHARD GLASSEL; STATE OF )
ARIZONA, )
) O P I N I O N
Real Parties in Interest.)
)

Special Action from the Superior Court in Maricopa County
The Honorable Peter C. Reinstein, Judge

AFFIRMED

Court of Appeals, Division One
Decision Order, filed December 23, 2002

AFFIRMED

MILLER LaSOTA & PETERS, P.L.C. Phoenix
by Timothy A. LaSota
and
Arizona Voice for Crime Victims Scottsdale
by Steven J. Twist
Attorneys for Petitioner

ROBERT S. BRINEY, MARICOPA LEGAL DEFENDER Phoenix
by Dennis C. Jones
Attorneys for Real Party in Interest, Richard J. Glassel

RICHARD M. ROMLEY, MARICOPA COUNTY ATTORNEY Phoenix
by Paul J. McMurdie
Attorneys for Real Party in Interest, State of Arizona

B E R C H, Justice

¶1 Richard Glassel opened fire at a homeowners’ association
meeting, killing Nila Lynn, Petitioner Duane Lynn’s wife. In the

ensuing first degree murder case against Glassel, Petitioner

asserted a right under Arizona’s Victims’ Bill of Rights, Ariz.

Const. art. 2, § 2.1, to tell the jurors what sentence he thought

they should impose on Glassel. He seeks review of the rulings of

the trial court and court of appeals that he may not state his

opinion on that subject.

BACKGROUND

¶2 Richard Glassel was convicted of murdering Petitioner’s

wife of nearly fifty years. Petitioner asked the court to allow

him, during the sentencing phase of Glassel’s trial, to tell the

jury not only about his wife’s character and the loss caused by

Glassel’s acts, but also to express his opinion regarding the

appropriate sentence to be imposed. The motion stated Petitioner’s

intent to recommend that Glassel receive a sentence of life in

prison. Glassel did not object to Petitioner’s request to

recommend leniency, but the State did.

¶3 The trial judge allowed the victim impact statements,1

1
Petitioner does not claim that he was not allowed to
provide information regarding his wife or the impact of the crime
on his life. While the record in this special action is not
developed on this point, we presume that Petitioner was permitted
to give a victim impact statement, which, by statute, may include
“information about the murdered person and the impact of the murder
on the victim and the other family members.” Ariz. Rev. Stat.
(“A.R.S.”) § 13-703.01(Q) (Supp. 2002). We therefore assume that,
at the appropriate time, Petitioner was allowed to present such
information.

-2-
but denied the motion as to sentencing recommendations, concluding

that a victim’s sentencing recommendations are not relevant to

either the mitigating or aggravating factors involved in capital

sentencing and that precluding Petitioner’s opinion on sentencing

did not violate his rights as a crime victim.

¶4 The court of appeals accepted jurisdiction of

Petitioner’s special action, but denied relief. Lynn v. Reinstein

(Glassel), 1 CA-SA 02-0309, 4 (Ariz. App. Dec. 23, 2002) (dec.

order). The court observed that nearly all states prohibit victims

from offering sentencing recommendations in capital cases. Id. at

2. The court also found Arizona case law clear that “sentencing

recommendations offered by a deceased’s survivors have no relevance

in a capital case.” Id. at 3 (quoting State v. Bocharski, 200

Ariz. 50, 62, ¶ 64, 22 P.3d 43, 55 (2001)).

¶5 Although Glassel has already been sentenced, we accepted

review because the question whether a victim in a capital case may

express an opinion as to what sentence the jury should impose may

arise in future cases. See Ariz. Const. art. 6, § 5(3) (granting

authority to review cases); Ariz. R.P. Spec. Act. 8(b); ARCAP 23.

Following binding precedent from the United States Supreme Court,

we hold that the Eighth Amendment to the United States Constitution

prohibits a victim from making a sentencing recommendation to the

-3-
jury in a capital case.2

DISCUSSION

¶6 The Arizona Victims’ Bill of Rights “protect[s] victims’

rights to justice and due process.” Ariz. Const. art. 2, § 2.1(A).

As one whose spouse was murdered, Petitioner qualifies as a victim

of a crime. See id. § 2.1(C) (including the spouse of a person

against whom a crime has been committed as a “victim”); Ariz. Rev.

Stat. (“A.R.S.”) § 13-703.01(R)(2) (Supp. 2002) (same). As such,

Petitioner is entitled by the Arizona Victims’ Bill of Rights to

“be heard at any proceeding involving . . . sentencing.” Ariz.

Const. art. 2, § 2.1(A)(4); see also A.R.S. § 13-4426(A), (B)

(2001) (affording victims the right to “address the court”

regarding “opinions that concern . . . the sentence . . . at any

aggravation, mitigation, presentencing, or sentencing proceeding”).

At issue in this case is whether that right encompasses a right to

opine regarding the sentence itself, or whether the right is

2
See U.S. Const. art. VI, cl. 2; accord State v. Ring,
Ariz. , ¶ 61, 65 P.3d 915, 938 (2003) (“We cannot ignore a
Supreme Court decision interpreting federal law unless the Court
expressly overrules or casts cognizable doubt on that decision.”).
Because we hold that the Eighth Amendment prohibits a victim from
making a sentencing recommendation to the jury in a capital case,
we do not discuss whether Arizona law would permit such a
recommendation. Although we usually decide issues of statutory
construction before delving into constitutional issues, the clarity
of the Supreme Court’s Eighth Amendment analysis on this point
renders the additional analysis unnecessary. See R.L. Augustine
Constr. Co. v. Peoria Unified Sch. Dist. No. 11, 188 Ariz. 368,
370, 936 P.2d 554, 556 (1997) (stating that this court “will not
reach a constitutional question if a case can be fairly decided on
nonconstitutional grounds”).

-4-
limited to offering testimony regarding the victim and the impact

of the crime upon the victim and the victim’s family.

¶7 The rights granted to victims are to “be liberally

construed.” A.R.S. § 13-4418. Petitioner contends that a liberal

construction of the Arizona Constitution and victims’ rights

statutes compels the conclusion that a victim may recommend to the

jury in a capital sentencing proceeding the sentence that the

victim believes the jury should impose.3 He reasons that because

victims’ opinions on sentencing are admissible in non-capital

cases, they should also be allowed in capital cases, for “[n]othing

. . . suggests that, as the severity of the crime escalates, the

victim’s rights should diminish.”

¶8 To the contrary, however, Supreme Court death penalty

jurisprudence has recognized that “death is a ‘punishment different

from all other sanctions,’ and that therefore the considerations

that inform the sentencing decision may be different from those

that” apply to other punishments. Booth v. Maryland, 482 U.S. 496,

509 n.12, 107 S. Ct. 2529, 2536 n.12 (1987) (internal citation

omitted), overruled in part by Payne v. Tennessee, 501 U.S. 808,

111 S. Ct. 2597 (1991). Thus, while states generally enjoy

latitude in designing and implementing their criminal justice

3
During the course of the special action proceedings,
Petitioner apparently changed his recommendation from life in
prison to death. Glassel then objected to allowing Petitioner to
make a recommendation.

-5-
systems, “the Eighth Amendment imposes special limitations” upon

the process for imposing the death penalty. Payne, 501 U.S. at

824, 111 S. Ct. at 2607-08. Consequently, Arizona may not permit

victims to recommend sentences in capital cases if the Eighth

Amendment prohibits such recommendations.

¶9 In 1987, the Supreme Court examined the admissibility in

a capital trial of the victims’ statements regarding the impact of

the defendant’s crimes. See Booth, 482 U.S. at 496, 107 S. Ct. at

2529. The victims’ statements in Booth fell into three categories:

(1) statements regarding the deceased’s personal characteristics;

(2) statements regarding the impact of the crime on the victims’

family; and (3) the victims’ “family members’ characterizations and

opinions about the crime, the defendant, and the appropriate

sentence.” Payne, 501 U.S. at 830 n.2, 111 S. Ct. at 2611 n.2

(characterizing the victim impact evidence in Booth). The Court

observed that sentencing decisions must be based only “on ‘the

character of the individual [defendant] and the circumstances of

the crime.’” Booth, 482 U.S. at 502, 107 S. Ct. at 2532 (quoting

Zant v. Stephens, 462 U.S. 862, 879, 103 S. Ct. 2733, 2743 (1983)).

The Court therefore carefully scrutinized a state statute requiring

the consideration of information regarding the victim, in order to

minimize “the risk that a death sentence will be based on

considerations that are ‘constitutionally impermissible or totally

irrelevant to the sentencing process.’” Id. at 502, 107 S. Ct. at

-6-
2533 (quoting Zant, 462 U.S. at 885, 103 S. Ct. at 2747). The

Court determined that victims’ opinions regarding the crime and

appropriate sentence “can serve no other purpose than to inflame

the jury and divert it from deciding the case on the relevant

evidence concerning the crime and the defendant.” Id. at 508, 107

S. Ct. at 2536. In a sharply divided opinion, the Court held that

“the introduction of a [victim impact statement] at the sentencing

phase of a capital murder trial violates the Eighth Amendment,” and

therefore held unconstitutional a state statute requiring the

consideration of such information. Id. at 509, 107 S. Ct. at 2536.

¶10 The four-member dissent in Booth focused on society’s

growing concern for the rights of victims of crime, a concern that

has culminated in a movement to address “the failure of courts of

justice to take into account in their sentencing decisions not only

the factors mitigating the defendant’s moral guilt, but also the

amount of harm he has caused to innocent members of society.” Id.

at 520, 107 S. Ct. at 2542 (Scalia, J., dissenting). The

majority’s limitation of relevant evidence regarding a defendant’s

blameworthiness also troubled the Court’s dissenting members.

Justice White observed that the harm caused by a defendant’s

criminal conduct should be relevant to sentencing and that a

murderer should be held “accountable not only for his internal

disposition in committing the crime but also for the full extent of

the harm he caused.” Id. at 516, 107 S. Ct. at 2540 (White, J.,

-7-
dissenting).

¶11 Just four years later, the Court overruled aspects of

Booth’s broad prohibition on the presentation of victim impact

evidence. Payne, 501 U.S. at 827-30 & n.7, 111 S. Ct. at 2609-11

& n.7. While not ruling all victim statements admissible, the

Court in Payne determined that a witness’s testimony regarding the

effect of the defendant’s crime may be relevant to sentencing, and

it removed the per se bar to the admission of such evidence that

Booth had erected. Id. at 825-27, 111 S. Ct. at 2608-09.

¶12 Petitioner asserts that Payne overruled all barriers to

the admissibility of victim opinion statements. We think

Petitioner “moves too quickly over the terrain we must cover.”

Caterpillar, Inc. v. Lewis, 519 U.S. 61, 73, 117 S. Ct. 467, 475

(1996). The Court’s opinions in Payne are carefully circumscribed.

The majority opinion notes that the case did not involve victim

statements regarding the appropriate sentence to be imposed.

Payne, 501 U.S. at 830 n.2, 111 S. Ct. at 2611 n.2. Justice

O’Connor’s concurring opinion, in which Justices White and Kennedy

joined, echoes this limitation, id. at 833, 111 S. Ct. at 2612-13

(O’Connor, J., concurring), as does Justice Souter’s concurring

opinion, id. at 835 n.1, 111 S. Ct. at 2614 n.1 (Souter, J.,

concurring) (“This case presents no challenge to the Court’s

holding in Booth v. Maryland that a sentencing authority should not

receive a third category of information concerning a victim’s

-8-
family members’ characterization of and opinions about the crime,

the defendant, and the appropriate sentence.”). Thus Payne did not

overrule and indeed left intact that portion of Booth that the

Court itself has characterized as prohibiting victims from

recommending a sentence in a capital case.4 Id. at 830 n.2, 111 S.

Ct. at 2611 n.2.

¶13 The Court’s opinion in Payne recognized that the

characteristics of the victim and the impact of the crime on the

victim’s family may be relevant in determining blameworthiness and

culpability and in assessing the harm caused by the defendant’s

conduct and, therefore, such evidence is relevant in determining

whether the death penalty should be imposed. See id. at 825-27,

111 S. Ct. at 2608-09. The Court concluded that, in determining a

“defendant’s moral culpability and blameworthiness,” states may

allow jurors to hear evidence of the specific harm the defendant

has caused. Id. at 825, 111 S. Ct. at 2608. The Court reasoned

4
The victims’ statements in Booth only indirectly hinted
at the punishment the victims were recommending. Indeed the only
statements regarding sentencing were that the victims did not
“think anyone should be able to do something like [the murders at
issue] and get away with it” and that “the people who did this
could [n]ever be rehabilitated.” Booth, 482 U.S. at 508, 107 S.
Ct. at 2535-36. No specific recommendations regarding sentencing
were made. Thus the facts in Booth make it unclear whether the
Court in that case considered the effect of the Eighth Amendment on
opinions regarding sentencing. In Payne, however, the Court
characterized Booth as prohibiting not only family members’
opinions and characterizations, but also recommendations of “the
appropriate sentence.” Payne, 501 U.S. at 830 n.2, 111 S. Ct. at
2611 n.2. We defer to the Court’s interpretation of its own case.

-9-
that because victim impact evidence serves “entirely legitimate

purposes,” id., “[t]here is no reason to treat such evidence

differently than other relevant evidence is treated.” Id. at 827,

111 S. Ct. at 2609. But while Payne overruled Booth’s per se ban

on victims’ statements regarding the victim and the impact of the

crime on the victim’s family, it did not find victims’ sentencing

opinions relevant.5 Id. at 827, 830 & n.2, 111 S. Ct. at 2609,

2611 & n.2; accord State v. Sansing, 200 Ariz. 347, 358, ¶¶ 35-37,

26 P.3d 1118, 1129 (2001) (affirming the trial court’s refusal to

consider the victim’s ten-year-old daughter’s request for mercy as

a mitigating circumstance because the request for mercy was not

relevant to mitigation), vacated on other grounds by 122 S. Ct.

2654 (2002). Indeed, the Supreme Court carefully limited its

opinion in Payne, 501 U.S. at 830 n.2, 111 S. Ct. at 2611 n.2, and

did not disturb its earlier determination that victim sentencing

opinions were not only irrelevant in capital sentencing

proceedings, but might well be prejudicial. See Booth, 482 U.S. at

5
The “relevance” referred to in Booth differs from that
set forth in the state rules of evidence. It is a constitutional
concept that considers whether information that may bear upon the
capital sentencing decision creates a constitutionally unacceptable
risk that jurors may impose a death sentence based upon
impermissible arbitrary and emotional factors. Booth, 482 U.S. at
504-05 & n.7, 107 S. Ct. at 2533-34 & n.7.; cf. Eddings v.
Oklahoma, 455 U.S. 104, 110, 113-14, 102 S. Ct. 869, 874, 876-77
(1982); Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954,
2964-65 (1978) (discussing Eighth Amendment constitutional
relevance of evidence bearing on mitigation factors in capital
cases).

-10-
508-09, 107 S. Ct. at 2535-36.

¶14 Petitioner relies on cases from Oklahoma in support of

his position that victims’ opinions regarding sentencing should be

allowed in capital cases. These cases are premised on an Oklahoma

statute that purports to allow victims to suggest to jurors the

sentence. See, e.g., Ledbetter v. State, 933 P.2d 880 (Okla. Crim.

App. 1997) (applying Okla. Stat. tit. 22, § 984(1)). Yet even the

Oklahoma courts recognize that such “evidence may not pass scrutiny

by the United States Supreme Court” in light of its decision in

Payne, 501 U.S. at 830, 111 S. Ct. at 2611. State v. Hain, 919

P.2d 1130, 1144 n.3 (Okla. Crim. App. 1996). Moreover, we note

that the Tenth Circuit, sitting on habeas corpus review in Hain,

recently held that the Oklahoma court violated the defendant’s

Eighth Amendment rights by allowing the victims in that case to

offer opinions regarding the appropriate sentence. Hain v. Gibson,

287 F.3d 1224, 1238-39 (10th Cir. 2002). Thus, we are unpersuaded

to follow the reasoning of the Oklahoma Court of Criminal Appeals

in this area.

¶15 Finally, Petitioner has urged that a victim has status as

a “limited party” in a capital case and this status entitles the

victim to opine regarding the sentence to be imposed. Petitioner

cites no authority in support of his asserted status, and we find

none. No statute or rule confers party status upon a victim, and

the one case addressing the point held that a victim is not an

-11-
aggrieved party for purposes of filing a petition seeking review of

a court’s grant of post-conviction relief. See State v. Lamberton,

183 Ariz. 47, 899 P.2d 939 (1995). In Lamberton, this court

acknowledged a victim’s standing “only to ‘seek an order or to

bring a special action’ to assert the enumerated rights guaranteed

by the [Victims’ Bill of Rights].” Id. at 50, 899 P.2d at 942

(quoting A.R.S. § 13-4437). Moreover, Petitioner conceded at oral

argument that even a party may not opine regarding irrelevant facts

or unfairly prejudicial issues. We thus conclude that victims are

not parties to a defendant’s criminal case.

¶16 Victims deserve to be heard and to receive fair treatment

in the criminal justice system. Indeed, the Supreme Court

recognized as much when it reaffirmed Justice Cardozo’s statement

that “justice, though due to the accused, is due to the accuser

also. The concept of fairness must not be strained till it is

narrowed to a filament. We are to keep the balance true.” Payne,

501 U.S. at 827, 111 S. Ct. at 2609 (quoting Snyder v.

Massachusetts, 291 U.S. 97, 122, 54 S. Ct. 330, 338 (1934)). The

Court thus removed the per se bar to the admission of victims’

statements regarding the effect of a crime upon their lives,

requiring only that the states determine the victim impact

statements “relevan[ce] to the jury’s decision as to whether or not

the death penalty should be imposed.” Id. It did not, however,

remove the bar precluding sentencing recommendations.

-12-
¶17 While the Court has recognized the victims’ desire to

tell jurors of the effect of a defendant’s crime upon their lives,

the victims’ right to speak is not unlimited. Statements relevant

to the harm caused by the defendant’s criminal acts are no longer

barred by the Eighth Amendment. But statements regarding

sentencing exceed those bounds and violate the Eighth Amendment,

and therefore are prohibited. Victims’ recommendations to the jury

regarding the appropriate sentence a capital defendant should

receive are not constitutionally relevant to the harm caused by the

defendant’s criminal acts or to the defendant’s blameworthiness or

culpability. See State v. Mann, 188 Ariz. 220, 228, 934 P.2d 784,

792 (1997); State v. Williams, 183 Ariz. 368, 385, 904 P.2d 437,

454 (1995). Petitioner’s request to opine regarding sentencing,

therefore, is denied.

CONCLUSION

¶18 The rulings of the trial court and the court of appeals

are affirmed.

Rebecca White Berch, Justice

CONCURRING:

Charles E. Jones, Chief Justice

-13-
Ruth V. McGregor, Vice Chief Justice

Michael D. Ryan, Justice

A. John Pelander, Judge*

*Pursuant to Arizona Constitution, article 6, section 3, the
Honorable A. John Pelander, Judge of the Arizona Court of Appeals,
Division 2, was designated to sit on this case.

-14-