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.
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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
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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”).
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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.
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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
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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.,
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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
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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.
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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).
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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
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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.
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¶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
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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.
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Lynn v. Reinstein
Court: Arizona Supreme Court
Date filed: 2003-05-19
Citations: 68 P.3d 412, 205 Ariz. 186
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