concurring.
Believing the majority fails to adequately address appellant’s tenth and twelfth points of error, I offer the following comments.
I.
In his tenth point of error, appellant contends he was entitled under Tex.Code Crim. Proc.Ann. art. 37.071 to present evidence that one of the victims had previously assaulted a police officer. Relying upon the principle enunciated in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991)1, appellant contends the assault con*219stituted “reciprocal victim impact evidence.” He argues this type of evidence is admissible in mitigation of the death penalty because it shows “society has not lost that much of a valuable asset” by the victim’s death. Appellant’s Brief, pg. 33. Thus, appellant suggests his moral culpability for the death penalty is lessened by evidence of the victim’s own “deathworthiness.” Id., at 36-36.
Although appellant’s contentions clearly implicate the Supreme Court’s decision in Payne, the majority’s cursory dismissal of this issue does nothing to provide guidance concerning Payne’s applicability to the Texas capital sentencing scheme.2 Consequently, because one “purpose of an appellate opinion is to ... instruct the bench and bar on legal principles for future application,” Matamoros v. State, 901 S.W.2d 470, 479 (Tex.Cr.App.1995) (Baird, J., concurring), I write separately to address appellant’s contention.
A.
In Payne v. Tennessee, the Supreme Court was faced with whether the Eighth Amendment prohibited a capital sentencing jury from considering evidence relating to the personal characteristics of the victim, and the emotional impact of the crime on the victim’s family. Id., 601 U.S. at 817-18, 111 S.Ct. at 2604. In addressing the admissibility of “victim impact evidence,” the Court re-examined its holdings in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), where the Court held such evidence was per se inadmissible to the extent that it did not directly relate to the circumstances of the offense.3
*220In re-evaluating the exclusion of victim impact evidence, the Court rejected the two premises underlying Booth: first, that victim impact evidence is irrelevant to a defendant’s moral culpability for the offense; and, second, that only evidence of moral culpability is relevant to a capital sentencing decision. Payne, 501 U.S. at 818-19, 111 S.Ct. at 2605. The Court noted that since the late Eighteenth Century, penal theory has increasingly focused upon the amount of harm as a measure of the crime’s severity and consequent punishment. Id., 501 U.S. at 819-20, 111 S.Ct. at 2605-2606. The Court further noted a growing acceptance in American jurisprudence of consideration of the harm resulting from an offense as a relevant factor to sentencing. Id., 501 U.S. at 820-22, 111 S.Ct. at 2606 (citing S. Wheeler, K. Mann, and A. Sarat, Sitting in Judgment: The Sentencing of White-Collar Criminals 567 (1988)).
In reviewing Booth’s exclusion of victim impact evidence, the Court explained Booth misread the language from Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), which directs the jury’s deliberations to a defendant’s personal characteristics, as a limitation upon the evidence which may be considered at capital sentencing. Payne, 501 U.S. at 820-24, 111 S.Ct. at 2606-2607. The Court explained however, that “the language quoted from Woodson in the Booth opinion was not intended to describe a class of evidence that could not be received, but a class of evidence which must be received.” Payne, 501 U.S. at 824, 111 S.Ct. at 2607 (emphasis in original). Thus, the Court criticized Booth as creating an unbalanced perspective of the offense by highlighting the defendant’s personal characteristics but otherwise excluding the victim’s personal characteristics, or the effects of the offense upon others. Payne, 501 U.S. at 822-24, 111 S.Ct. at 2607.
The Court examined those limitations precluding the imposition of the death penalty under the Eighth Amendment and determined that victim impact evidence falls outside these constitutional limitations.4 501 U.S. at 824-26, 111 S.Ct. at 2608. The Court further stated that whether such evidence is relevant to capital sentencing lies within the State’s discretion in enacting capital punishment procedures:
We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. “[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.” Booth, 482 U.S., at 517, 107 S.Ct. at 2540 (White, J., dissenting).
Payne, 501 U.S. at 825, 111 S.Ct. at 2608. Thus, the Court held:
... if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on the subject, the Eighth Amendment erects no per se bar. 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.
Payne, 501 U.S. at 827, 111 S.Ct. at 2609.
*221B.
Since Payne a number of state courts have held that victim impact evidence is admissible at the sentencing phase of capital trials. See, State v. Gentry, 125 Wash.2d 570, 888 P.2d 1105, 1136-38 (1995) (Admission of victim impact evidence does not violate Washington Constitution because in light of victim’s rights amendment to Washington constitution, such evidence is relevant to jury’s decision whether to impose death penalty.); Freeman v. State, 876 P.2d 283, 289 (OM.Cr. 1994); State v. Robinson, 339 N.C. 263, 451 S.E.2d 196, 205 (1994); Weeks v. Commonwealth, 248 Va. 460, 450 S.E.2d 379, 389 (1994) (“[V]ictim impact evidence is relevant to punishment in a capital murder prosecution in Virginia-”); State v. Rodriguez, 656 A.2d 262, 275 (Del.Super.Ct.1994) (“The Delaware Supreme Court has concluded that under Delaware’s death penalty statute there is no reason to treat victim impact evidence any differently than other relevant evidence is treated_”); State v. Maxwell, 647 So.2d 871, 871 (Fla.App. 4 Dist.1994) (While not an aggravating factor, victim impact evidence is relevant under Florida Constitution and capital sentencing statutes.); State v. Southerland, 447 S.E.2d 862 (S.C.1994); Evans v. State, 333 Md. 660, 637 A.2d 117, 130 (1992) (“It is apparent that the [Maryland] legislature intended that victim impact statements be admissible in capital case sentencing proceedings.”); and, People v. Howard, 147 Ill.2d 103, 167 Ill.Dec. 914, 937, 588 N.E.2d 1044, 1067 (1992) (“[W]e do not believe anything in the Illinois Constitution automatically forbids [the introduction of victim impact evidence] at a capital sentencing hearing.”).
However, acceptance of victim impact evidence has not been unanimous. See, State v. Carter, 888 P.2d. 629 (Utah 1995); State v. Metz, 131 Or.App. 706, 887 P.2d 795, 800-803 (1994) (Victim impact evidence not relevant to answering any of the statutory issues under Oregon’s capital punishment statute.); Sermons v. State, 262 Ga. 286, 417 S.E.2d 144, 146 (1992) (Victim impact evidence is not admissible under Georgia capital sentencing statute as an aggravating factor.); and, State v. Atwood, 171 Ariz. 576, 656-57, 832 P.2d 593, 673-674 (1992) (Victim impact evidence is not admissible under Arizona capital punishment statute because it does not tend to establish statutorily enumerated aggravating circumstances.).
In State v. Carter, 888 P.2d 629, the Utah Supreme Court addressed a challenge to the admission of victim impact evidence under Utah’s capital sentencing statute.5 The Court held victim impact evidence is not admissible under the capital sentencing statute because it is neither relevant to the sentence, nor has probative value as to the defendant’s deathworthiness. Id., at 651. The Court explained:
... the primary goal in [a capital] sentencing phase is to acquire a thorough acquaintance with the character and history of the person before the court.... Permitting the State to introduce victim impact evidence shifts the focus of the proceeding from the defendant to the victim and the effect of the murder on the victim’s family and community. This adds nothing to the culpability analysis and is fraught with danger.... Aside from causing the jury to lose sight of its immediate task, the shift suggests that some victims are more valuable to society and/or deserve more sympathy than others. Further, a judge or jury considering the victim impact evidence is more likely to empathize with the family’s tragedy, perhaps asking, ‘What if I, or a member of my family, were the murder victim?” Such empathy dangerously increases the possibility of improper passion or prejudice....
*222[Moreover] ... we find that victim impact evidence simply has no probative force in the sentencing context. Such evidence does not make it more or less likely that a defendant deserves the death penalty. In our society, individuals are of equal value and must be treated that way. We will not tempt sentencing authorities to distinguish among victims — to find one person’s death more or less deserving for retribution merely because he or she was held in higher or lower regard by family and peers. Such a scheme draws lines in our society that we think should not be drawn. The worth of a human life is inestimable, and we do not condemn those who take life more or less harshly because of the perceived value or quality of the life taken.
Carter, 888 P.2d at 652 (citations and quotations omitted).
This Court has yet to decide whether victim impact evidence is relevant under the Texas capital sentencing scheme, art. 37.071, and it is clear that the majority declines to do so today.
C.
Turning to the case at hand, the majority relies upon State v. Southerland, 447 S.E.2d 862 (S.C.1994), to hold Payne does not permit the introduction of evidence of a victim’s bad character. Ante, 912 S.W.2d at 217. In Southerland, the defendant contended he was entitled under Payne to introduce evidence of the victim’s involvement with drugs and prostitution as mitigating against the death penalty. Id., 447 S.E.2d at 867. The South Carolina Supreme Court rejected the defendant’s contention, however, explaining that “Payne prohibits th[e] use of comparative character evidence.” Id., 447 S.E.2d at 867.
Southerland’s holding merely brings to the fore the contradictions within Payne’s reasoning. Although Payne holds the admission of victim impact evidence is not intended to re-focus the trial upon the victim’s character, or to encourage comparative judgments between victims, 501 U.S. at 823, 111 S.Ct. at 2607, it is nonetheless clear that by concentrating on the victim’s personal characteristics, or the results of the offense upon the survivors, the jury will inevitably, if unintentionally, base their judgment in part upon the victim’s personal achievements (or failures) and the number of people impacted by the crime.
Moreover, assuming victim impact evidence is admissible under art. 37.071, simple fairness dictates that “[i]f the State is allowed to introduce evidence of the victim’s great value to society, the defense must arguably be permitted to rebut that showing with degrading evidence tending to demonstrate lack of worth.” Carter, 888 P.2d at 652 (citing State v. Bernard, 608 So.2d 966, 971, n. 7 (La.1992)). Certainly, Payne implies evidence of a victim’s bad character is admissible, at the very least in the form of rebuttal evidence. Id., 501 U.S. at 823, 111 S.Ct. at 2607. Additionally, since the relevancy of victim impact evidence is clearly not conditioned upon the defendant’s actual knowledge of the victim’s personal characteristics or circumstances, Payne, 501 U.S. at 835, 111 S.Ct. at 2614 (Souter J., joined by Kennedy, J., concurring), it is equally clear that a defendant need not know of the personal characteristics of the victim in order to present evidence of a victim’s bad character. And finally, assuming victim impact evidence is admissible under art. 37.071, due process would undoubtedly require “reciprocal victim impact evidence” be admissible in order for the jury to fully consider the victim as an individual. Accordingly, assuming arguendo that the evidence of the victim’s prior assault on a police officer was admissible in the instant case, the trial judge erred in excluding this evidence at the punishment phase. However, I would hold the error made no contribution to the punishment. Burks v. State, 876 S.W.2d 877, 905 (Tex.Cr.App.1994); Harris v. State, 790 S.W.2d 568, 585-588 (Tex.Cr.App.1989); and, Tex.R.App.P. 81(b)(2).
At the punishment phase, appellant sought to introduce evidence of an assault committed by the victim against a police officer approximately a year before the instant offense. The trial judge excluded the evidence and appellant set out the testimony in a bill of exception. The officer testified that in *223September 1990 while conducting an investigation in front of the victim’s house, the victim engaged him in a verbal altercation. During the altercation, the victim grabbed the officer’s shirt and slapped his face. The victim was arrested for aggravated assault on a police officer but was never tried for the offense.
The excluded evidence, however, is not the only evidence probative of the victim’s character. During the guilt-innocence phase, the State and appellant elicited testimony indicating the victim was heavily involved in drug dealing. One of the victim’s daughters testified she suspected her mother sold drugs and another daughter admitted the victim sold marihuana and cocaine. Because the victim lived across the street from a high school, many of her customers were teenagers. Appellant emphasized the fact that the victim was a drug dealer during his opening and closing arguments. Although the evidence of the victim’s slap of a police officer may have been admissible, it is insignificant when compared to the evidence of her drug dealing. Consequently, in determining whether the victim’s bad character made appellant any less deathworthy, it is unlikely a juror would have attached any additional weight to the victim’s slap of a police officer.
In addition, the mitigating value of the excluded evidence is insignificant in relation to the State’s evidence militating toward the death penalty. The State presented evidence that appellant was involved in satanic rituals, possibly involving child mutilation. The State also presented evidence appellant possessed a large number of sharp edged weapons and that appellant had a reputation for carrying knives. The State presented evidence of prior assaults by appellant involving weapons. On one occasion, appellant threatened a person with a knife. On another, police were called to appellant’s home after appellant threatened his mother with a hatchet. Appellant locked himself in his bedroom and attempted to shoot arrows through the door, threatening to kill any officer who attempted to enter. Deputies assigned to the El Paso County jail, where appellant was incarcerated pending trial, testified that “shanks” were discovered in appellant’s cell on two separate occasions. Finally, a psychologist who had treated appellant for psychological problems after the “hatchet incident” testified appellant had a “full-blown antisocial personality disorder.” Taken together, the probative value of the evidence militating toward appellant’s deathworthiness overshadows the evidence of the victim’s assault on a police officer. Thus, I believe the exclusion of that evidence made no contribution to the jury’s resolution of the statutory punishment issues. Consequently, the trial judge’s exclusion of the evidence, if error, was harmless.
II.
Turning to appellant’s twelfth point of error, appellant contends the trial judge erred in submitting a jury charge which did not limit the culpable mental state necessary for the offense of capital murder. Appellant contends failure to limit the culpable mental state in the application portion of the jury charge to “intentionally” permitted the jury to convict for conduct which did not constitute capital murder. Appellant’s Brief, pp. 39-40. The majority acknowledges this was error, but subsequently holds the error to be harmless. Op., ante pp. 216-17. While this conclusion is accurate, I believe our analysis of this point should be more firlly developed.
A.
At trial, the trial judge submitted the following instructions in the jury charge:
1.
Our law provides that a person commits murder if he intentionally or knowingly causes the death of an individual.
A person commits the offense of capital murder if he intentionally causes the death of an individual while in the course of committing, or attempting to commit the offense of robbery. Robbery and attempted robbery are felonies.
$ ‡ ‡ ‡ *
6.
COUNT II.
Now, if you find from the evidence beyond a reasonable doubt that on or about *224the 22nd day of September, 1991, in El Paso County, Texas, the defendant STEVEN BRIAN ALVARADO, acting alone or as a party as that term has been defined herein did intentionally or knowingly cause the death of [the victim] by stabbing [the victim] with a sharp instrument and said death was caused during the commission or attempted commission of the offense of robbery of [the victim], then you will find the defendant guilty of capital murder. :ji
9.
COUNT III.
Now, if you find from the evidence beyond doubt that on or about the 22nd day of September, 1991, in El Paso County, Texas, the defendant, STEVEN BRIAN ALVARADO, acting alone or as a party as that term has been defined herein, did intentionally or knowingly cause the death of [the victim] by stabbing [the victim] with a sharp instrument and said death was caused during the commission or attempted commission of the offense of robbery of [the victim], then you will find the defendant guilty of capital murder.6
Although the definition portion of the jury charge limited a finding of capital murder to a finding of the intentional causation of the victims’ deaths, the application paragraphs authorized conviction of capital murder if the jury found appellant intentionally or knowingly caused the victims’ deaths. Therefore, resolution of this point depends upon whether the application paragraph mislead the jury into convicting appellant of capital murder on a culpable mental state not authorized by law.
B.
The jury charge is the exclusive instrument upon which the jury receives its instruction on the law and, therefore, it is essential to a defendant’s right to a fair trial that the charge accurately state the law. Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Cr.App.1995); Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Cr.App.1994); and, Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App.1978) (“It is well established that a correct instruction of the law relating to the offense must be given to the jury.”). A jury charge is erroneous if it authorizes a conviction for conduct which is not an offense. Garcia v. State, 640 S.W.2d 939, 941 (Tex.Cr.App.1982) (Panel Op.); Escamilla v. State, 612 S.W.2d 608, 609 (Tex.Cr.App.1981); Cumbie v. State, 578 S.W.2d 732, 734 (Tex.Cr.App.1979) (Panel Op.); and, Santoscoy v. State, 596 S.W.2d 896, 902 (Tex.Cr.App.1980). In particular, the jury charge is erroneous if it permits a conviction on a culpable mental state which is not prescribed by statute. Garcia, 640 S.W.2d at 941 (Charge erroneously authorized conviction for hindering arrest on culpable mental state of “knowingly” when offense requires culpable mental state of “intentionally.”); Hawkins v. State, 579 S.W.2d 923, 925 (Tex.Cr.App.1979) (Panel Op.) (Charge erroneously authorized conviction for aggravated robbery based on recklessly threatening and placing in fear, which is not culpable mental state for that theory of robbery.); Jackson v. State, 576 S.W.2d 88, 89-90 (Tex.Cr.App.1979) (same); and, Dowden v. State, 537 S.W.2d 5, 6-7 (Tex.Cr. App.1976) (same). Accordingly, the jury charge must limit the culpable mental states alleged therein to the culpable mental states applicable to the charged offense. Cf., Cook v. State, 884 S.W.2d 485, 491 (Tex.Cr.App. 1994).
Texas Penal Code § 19.03(a)(2) provides “[a] person commits an offense if he commits murder as defined under § 19.02(a)(1) ... and ... the person intentionally commits the murder in the course of committing or attempting to commit ... robbery.” Richardson v. State, 744 S.W.2d 65, 84 (Tex.Cr. App.1987); Demouchette v. State, 731 S.W.2d 75, 80 (Tex.Cr.App.1986); and, Santana v. State, 714 S.W.2d 1, 9 (Tex.Cr.App.1986). Thus, a prosecution under § 19.03(a)(2), requires not only the underlying murder be committed intentionally or knowingly, but further requires the murder to have been committed intentionally in the course of committing a specific felony. Richardson, 744 S.W.2d at 84. For all practical purposes, this *225means that the defendant may be convicted of capital murder under § 19.03(a)(2) only if he is found to have intentionally committed murder in the course of committing a specific felony; a “knowing” murder is insufficient to sustain a conviction for capital murder. Demouchette, 731 S.W.2d at 80. In the instant case, the jury charge was erroneous because it authorized a conviction upon a finding that appellant committed the murder either intentionally or knowingly. Abbott v. State, 751 S.W.2d 305, 308 (Tex.App.—San Antonio 1988) (Court of Appeals found jury charge erroneous where application paragraph authorized conviction for § 19.03(a)(2) on an intentional or knowing murder.). Consequently, the trial judge erred in submitting a charge which authorized a capital murder conviction based upon a knowing murder.
However, the inquiry does not stop at the finding of error. It is incumbent upon a reviewing court to determine whether the error mandates reversal. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1984); and, Tex.Code Crim.Proc.Ann. art. 36.19. Where, as in the instant case, the error is raised for the first time on appeal, the court will only reverse for “egregious harm,” that is, the error must be so harmful as to deny the defendant a fair and impartial trial. Almanza, 686 S.W.2d at 171; and, Arline v. State, 721 S.W.2d 348, 351 (Tex.Cr.App.1986). In determining the degree of harm, the court examines the jury charge itself, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other information contained in the record. Almanza, 686 S.W.2d at 171.
I believe the majority is correct in holding appellant suffered no egregious harm from the erroneous jury charge. The State did not argue to the jury that appellant “knowingly” murdered the victims. There is no evidence to suggest that appellant only committed a knowing murder, rather than an intentional murder. Nor is it apparent the jury convicted appellant based upon the incorrect theory of the offense. Texas law provides “the verdict in every criminal action must be general.” Tex.Code Crim.Proc.Ann. art. 37.07, § 1(a). A conviction will be sustained where a general verdict is returned and the evidence is sufficient to support a finding of guilt under any of the theories submitted. Fuller v. State, 827 S.W.2d 919, 931 (Tex.Cr.App.1992); Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Cr.App.1991); Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Cr.App.1982) (Panel Op.); and, Bailey v. State, 532 S.W.2d 316, 323 (Tex.Cr.App.1975). The jury charge authorized a conviction upon two “theories” of the offense: one theory constituted the offense of capital murder, and the other did not. However, because the verdict was general, and the evidence supports the permissible theory, it is just as likely the jury convicted appellant on the permissible theory than the forbidden one.
Finally, it is unlikely the jury was seriously misled by the erroneous instruction in the jury charge because of the conceptual similarity between the culpable mental states of “intentionally” and “knowingly.” See, Tex.Penal Code Ann. § 6.03 (Seth S. Searcy III & James R. Patterson, Practice Commentary) (Vernon 1974). Indeed, it is often difficult to draw a meaningful distinction between intentional conduct, and knowing conduct. As Searcy and Patterson explain in their practice commentary to the 1974 Penal Code:
In the context of a result-type offense element — death, property damage or destruction, fraud, for example — the distinction between knowing and intentional is narrow, and is preserved only because of the criminal law’s traditional creation of specific intent offenses such as burglary, arson, and theft. We say “only” because there is little difference, in terms of blameworthiness, between one who wills a particular result and one who is willing for it to occur — between, for example, one who blows up a home intending to kill the occupants and one who blows up the adjoining shop intending to burglarize it knowing, however, that the home is occupied; or between one who shoots into a moving car, intending to Mil the driver, and one who shoots into a moving ear he knows is occupied. The formulated distinction between intentional and knowing, as to results, is thus between desiring the result and being reasonably certain that it will occur.... The distinction is not often *226made in defining offenses in the code— most offenses can be committed either intentionally or knowingly — but, as mentioned earlier, some offenses require a specific intent to cause a certain result — for example, a felony or theft, a fire or explosion, permanent deprivation of property rights.
Penal Code § 6.03 (Practice Commentary). See also, Mayes v. State, 819 S.W.2d 877 (Tex.App.—Tyler 1987), rev’d on other grounds, 816 S.W.2d 79 (Tex.Cr.App.1991). Consequently, because of the conceptual similarly between intentionally and knowingly causing a person’s death, the erroneous instruction in the jury charge was not egregious and did not deny appellant a fair and impartial trial.
With these comments, I join only the judgment of the Court.
MEYERS, J., joins this opinion.. Although appellant's discussion on the admissibility of victim impact evidence and "reciprocal victim impact evidence" is based upon Payne, supra, appellant does not cite that case.
. The majority holds only that “a reasonable juror could not conclude that the victim’s prior bad act ... tended to lessen the defendant’s moral blameworthiness for the murder of that victim when the defendant was unaware of the victim’s bad act,” ante, 912 S.W.2d at 217, and briefly states in a footnote that "Payne ... did not hold or suggest that the Eighth Amendment grants a defendant the right to present evidence of the [victim's] bad character.” Ibid., n. 20.
. In Booth, the Court held the introduction of a victim impact statement in a capital sentencing hearing violated the Eighth Amendment because such evidence was irrelevant to the defendant’s individual characteristics and the circumstances of the crime. Id., 482 U.S. 496, 508, 107 S.Ct. 2529, 2536 (1987). The Court reasoned:
While the full range of foreseeable consequences of a defendant's actions may be relevant in other criminal and civil contexts, we cannot agree that it is relevant in the unique circumstance of a capital sentencing hearing. In such a case, it is the function of the sentencing jury to "express the conscience of the community on the ultimate question of life or death.” Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776 (1968). When carrying out this task the jury is required to focus on the defendant as a "uniquely individual human bein[g].” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976) (plurality opinion of Steward, Powell, and Stevens, II.) The focus of a [victim impact statement], however, is not on the defendant, but on the character and reputation of the victim and the effect on his family. These factors may be wholly unrelated to the blameworthiness of a particular defendant. As our cases have shown, the defendant often will not know the victim, and therefore will have no knowledge about the existence or characteristics of the victim's family. Moreover, defendants rarely select their victims based on whether the murder will have an effect on anyone other than the person murdered. Allowing the jury to rely on a [victim impact statement] therefore could result in imposing the death sentence because of factors about which the defendant was unaware, and that were irrelevant to the decision to kill. This evidence thus could divert the jury's attention away from the defendant's background and record, and the circumstances of the crime.
Booth, 482 U.S. at 504-505, 107 S.Ct. at 2533-2534. Thus, the Court explained that victim impact evidence could "serve no other purpose than to inflame the juty and divert it from deciding the case on the relevant evidence concerning the crime and the defendant.” Id., 482 U.S. at 509, 107 S.Ct. at 2536.
In Gathers, the Court relied upon Booth, supra, to hold that the prosecutor’s comments on the personal characteristics of the victim during the State’s closing argument at the capital sentencing hearing were improper because they did not relate to the defendant’s personal characteristics or the circumstances of the crime. Gathers, 490 U.S. at 810-812, 109 S.Ct. at 2210-2211.
. The Court stated:
... Where the State imposes the death penalty for a particular crime, we have held that the Eighth Amendment imposes special limitation upon that process.
“First, there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decisionmaker’s judgment as to whether the circumstances of a particular defendant’s case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionate to a particular offense prevents a State from imposing the death penalty for that offense. Second, States cannot limit the sentencer’s consideration of any relevant circumstances that could cause it to decline to impose the penalty. In this respect, the State cannot challenge the sentencer’s discretion, but must allow it to consider any relevant information offered by the defendant.” McCleskey v. Kemp, 481 U.S. 279, 305-306, 107 S.Ct. 1756, 1774-1775, 95 L.Ed.2d 262 (1987).
Payne, 501 U.S. at 824, 111 S.Ct. at 2607-2608.
. Utah Code Ann. § 76-3-207(2) provides in pertinent part:
In these sentencing proceedings, evidence may be presented as to any matter the court deems relevant to sentence, including but not limited to the nature and circumstances of the crime, the defendant's character, background, history, mental and physical condition, and any other facts in aggravation or mitigation of the penalty. Any evidence the court deems to have probative force may be received regardless of its admissibility under the exclusionary rules of evidence.
. All emphasis is supplied by author unless otherwise indicated.