Sympathy/Victim Impact
Category > Sympathy/Victim Impact
The court erred at the penalty phase by allowing the victim’s family members to offer an opinion as to whether death was appropriate.The trial court erred by allowing the prosecutor to ask the victim’s relatives at the penalty phase whether they believed death was the appropriate sentence. The issue was not forfeited despite the lack of a specific objection where defense counsel said the evidence was inappropriate. The error was harmless where the statements by the family members were a small part of the prosecution’s penalty phase case.id: 25682
Speculating that the victim’s father died of a broken heart was improper victim impact evidence. The prosecutor arguably presented improper victim impact evidence at the penalty phase of defendant’s trial by speculating the victim’s father had died of a broken heart. However, defendant failed to demonstrate prejudice.id: 25273
Eliciting testimony from victim's' son about his angry feelings upon seeing defendant in prison was improper victim impact testimony.The victim's son was called to give victim impact testimony at the penalty phase. He testified about his feelings upon seeing defendant at Folsom Prison. This did not reflect his view of an appropriate sentence but showed animosity to the defendant. It was improper victim impact testimony but was brief and harmless. id: 23077
Guilt phase testimony that the victim continued to see a psychiatrist because of his PTSD was improper victim impact evidence.A witness properly testified at the guilt phase that he would never regain the full function of his arm because the testimony was relevant to a great bodily injury allegation. However, the court erred by allowing the witness to testify that he still sees a psychiatrist because of PTSD. This was the improper use of victim impact evidence at the guilt phase of the trial, but the error was harmless where the evidence of defendant’s guilt was overwhelming.id: 21548
Court erred in allowing evidence that the attempted murder victim was pregnant because the fact was not relevant to any issue in dispute.Defendant was convicted of the murder of Smith along with a robbery special circumstance, and the attempted murder of Smith's girlfriend, Balisteri. The trial court erred in permitting the prosecutor to ask Balisteri if she was pregnant during the attack since her pregnancy was irrelevant to any issue in the case. However, the error was harmless since the impact of the pregnancy evidence was minimal when compared to the other acts of violence defendant committed upon Balisteri.id: 16914
Court erred in reading a probation report in considering the motion to modify the verdict.Probation reports and victim impact statements are not presented to the jury and should not be read and considered by the trial judge when ruling on an automatic modification motion. However, the probation report in the instant case did not influence the court's decision to deny the motion. The judge made it clear that in denying the motion he relied exclusively upon the intentional, callous nature of the robbery-murder and defendant's prior robbery conviction.id: 14667
Evidence on how imposition of the death penalty would affect defendant's mother may be relevant mitigating evidence.During the penalty phase, defendant sought to introduce testimony from a minister regarding the impact on defendant's mother if defendant was sentenced to death. The trial court sustained the prosecutor's objection to such testimony. Defendant argued that if victim impact evidence is relevant in aggravation then similar testimony of the impact of the death penalty on a defendant's family is equally relevant to penalty determination. Assuming the testimony was relevant mitigating evidence, the court did not err in excluding the minister's testimony because the court permitted defendant's mother to make a statement directly to the jury.id: 14415
The prosecutor did not give notice of his intent to use victim impact evidence by informing the defense that he would use circumstances of the crime in aggravation.The prosecutor did not provide notice before trial of his intention to present victim impact evidence at the penalty phase. The trial court erred in finding the evidence was admissible since the prosecutor gave notice he intended to present circumstances of the crime as aggravating evidence, and victim impact evidence is part of the circumstances of the offense. The error was harmless where defense counsel never asked for continuance to prepare for the evidence.id: 18513
Updated 2/26/2024The trial court did not err at the penalty phase in allowing as victim impact evidence a poem written by the victim.The trial court did not err at the penalty phase by allowing the victim’s mother to read a poem about gang violence the victim had written as a fifth grader. The poem showed the victim was aware of the dangerous world in which she lived but did not invite an irrational response from the jury. id: 26262
Updated 2/26/2024The trial court at the penalty phase did not err in admitting as victim impact evidence the testimony of the victim’s fellow police officers or a short story he had written.Defendant was charged with capital murder for the killing of a police officer. The trial court did not err at the penalty phase by allowing the victim’s fellow officers to testify about the kind of police officer the victim had been. Coworkers are authorized to give victim impact evidence. Neither did the court err by admitting as victim impact evidence a short story the victim had written. The story was relevant to show the victims uniqueness as a human being.id: 27217
Updated 2/4/2024Photos of the victim in his police uniform hugging family members were properly admitted as victim impact evidence at the penalty phase.The trial court did not err at the penalty phase of defendant’s capital trial by admitting as victim impact evidence five photos of the police officer victim in his uniform hugging family members. The evidence was not unduly emotional. id: 27325
Updated 2/3/2024Sympathy for the defendant’s family is not a matter a capital jury can consider in mitigation, but family members may describe their love for the defendant which relates to character and background. The trial court did not err at the penalty phase of defendant’s capital trial by excluding testimony from the defendant’s mother that she did not want him sentenced to death. The testimony did not amount to “reverse victim impact” evidence. A defendant’s family may testify as to their love of the defendant and the impact an execution would have on them as that is relevant to his character and background. But family members may not offer an opinion on whether execution is appropriate. id: 27763
The court did not err by allowing the prosecution to play a portion of the murder victim’s wedding video during the penalty phase of the capital trial.The trial court did not err by allowing the prosecution to play a portion of the murder victim’s wedding video as victim pact evidence during the penalty phase of his capital trial. Such a video may be used to humanize the victim, and the video here was short and not enhanced by narration or music designed to elicit emotion.id: 26206
The trial court properly allowed the seven year-old murder victim’s teachers to testify regarding the victim at the penalty phase.Defendant was convicted of the brutal murder of a seven year-old girl, and sentenced to death. The trial court did not err by allowing as victim impact evidence, the testimony of her teachers explaining the emotional harm to others.id: 26075
Defendant forfeited the challenge to the inflammatory nature of the victim impact evidence by failing to object as the evidence was being presented.Defendant argued the amount and emotional nature of the victim impact evidence the prosecution presented at the penalty phase was so inflammatory that it led to an irrational death verdict based on the sorrow of the victims’ families. The trial court had warned the prosecution that the victim impact evidence shouldn’t be overly time consuming or emotional. Defendant’s failure to object when the evidence was being presented at trial forfeited the issue.id: 24828
Witness’s reference to “the devil” during victim impact testimony wasn’t improper where it was a reference to her own guilty feelings.Defendant’s ex-wife, the murder victim’s daughter gave victim impact testimony at the penalty phase. She responded to a question “How would you feel if you brought the devil to your mom’s house and he did it to her?” Defendant argued the testimony exceeded the bounds of proper victim impact evidence, but the reference to “the devil” was an expression of her feelings of guilt. id: 24421
The trial court did not err by excluding evidence of the impact of a death sentence on defendant’s family.Defendant argued the trial court erred in not permitting penalty phase evidence on the impact a death sentence would have on his own family. However, sympathy for a defendant’s family is not a matter the jury can consider in mitigation.id: 25462
18 minute video montage showing photos of the victim with an audio track of the defendant’s statement was not improper victim impact evidence.During closing argument at the penalty phase, the prosecution played an 18 minute videotape with several pictures of the victim during her life. The audio track consisted of statements taken from the defendant’s confession. The prosecutor did not introduce any new evidence in the videotape and it was not overly inflammatory.id: 25097
Defense may not introduce evidence of victim’s bad character at the penalty phase in response to victim impact evidence. Defendant argued the trial court erred at the penalty phase by excluding evidence that the victims were drug dealers and users. However, where the prosecution’s evidence simply describes the effect the victim’s death has had on the family, the defense may not introduce bad character evidence regarding the victim.id: 24650
The trial court did not err by allowing victim impact testimony relating to a murder other than the capital crime.The trial court did not err by allowing at the penalty phase of defendant’s case, victim impact testimony relating to another noncapital case.id: 24489
Inviting the penalty phase jurors to compare the lives of the victim’s family members with defendant’s life in prison was not improper victim impact evidence or unduly emotional.During penalty phase closing argument the prosecutor invited the jurors to compare the lives of the victim’s family with that of defendant if he received a life term and would thereby be “king of the hill” in prison. However, contrary to defendant’s claim, the argument was neither improper use of victim impact evidence or overly emotional.id: 23644
The family members’ testimony about what the victims experienced before death was proper victim impact testimony.Defendant argued the victim’s relatives should not have been permitted to speculate about what the murder victims felt and experienced immediately before their deaths. He argued this was impermissible characterization or opinion about the crime. However, the testimony was not admitted to establish what the victims actually experienced, but to explain what their relatives imagined they experienced. It was permissible victim impact testimony.id: 21744
The victim impact evidence was not so voluminous as to detract the jurors’ focus and the court did not believe it had to admit the evidence.Defendant argued the trial court erroneously admitted and considered victim impact evidence at the guilt phase of his capital trial. The record did not show the court believed it was required to admit such evidence. Moreover, the testimony of three family members and three surviving victims was not so voluminous or inflammatory as to divert the jury’s attention from its proper roleid: 22680
The jury should not be asked to vote for death out of concern for the feelings of the victims’ families. The prosecutor may have erred by suggesting that execution was appropriate out of concern for the victims’ family. However, any error was harmless where the victims’ family members did not express views on punishment and the prosecutor did not expressly attribute any such views to them. id: 22588
The trial court did not err by allowing three videotapes as victim impact evidence in a capital trial with three victims.Six victim impact witnesses testified in a capital case where there were three victims. The number was not excessive. One victim’s testimony regarding her own suicide attempt and hospitalization was also proper. Finally, three videotapes (16 minutes in total) were not improper where there was no sound, and each showed a series of photographs taken at various times during the victims’ lives. id: 22010
Evidence of impact of defendant’s noncapital crimes on those victims was admissible under section 190.3, factor (b). Defendant argued the trial court erred at the penalty phase of defendant’s capital case by allowing, as victim impact evidence, the victims from defendant’s noncapital crimes to testify about the impact of those assaults. While it was not relevant to the circumstances of the capital crime under Penal Code section 190.3, factor (a), the evidence was admissible for its emotional effect of defendant’s other violent acts under factor (b). id: 21344
The trial court did not err in admitting a recording of Mexican songs the victim gave her father (and playing of a few of the songs) as victim impact evidence. The trial court did not err in admitting as victim impact evidence at the penalty phase, a cassette tape of Mexican songs the victim had given her father as it demonstrated their close bond. And playing a few songs from the tape simply illustrated the gift.id: 21719
The trial court did not improperly interfere with penalty phase deliberations by responding to a note suggesting a holdout might be improperly focused on sympathy for defendant’s children.During penalty phase deliberations, the jurors sent a note indicating there was a great deal of tension caused by one juror’s concern with “the children.” The parties expressed a concern that the holdout juror might be improperly considering sympathy for the defendant’s children as a mitigating factor. Without questioning the jurors, the court gave an instruction regarding the proper role of sympathy in the deliberations. The court’s response was a reasonable response to the implications of the note and was not improper. id: 21698
Allowing victim impact testimony from eight witnesses was not improper.The trial court did not err by allowing eight people to testify as to the impact of the victim's death. The testimony comprised less than ten percent of the prosecution’s case in aggravation and was not unduly inflammatory.id: 21534
Victim impact evidence need not be limited to one witness per victim or to describe only the impact of the crime on the family member at the scene. Defendant argued the victim impact evidence in the penalty phase should be limited to one witness per victim and describe only the effects of the crime on a family member present at the murder scene. However, there is no reason to restrict the admission of victim impact evidence in this manner. id: 21663
The trial court did not err by allowing the victim’s fellow police officers to present victim impact testimony or by allowing the videotape of the officer’s emotional funeral service.Defendant was convicted of killing a police officer. He argued the dramatic death bed story told by a distraught friend and fellow officer was improper victim impact evidence. However, the testimony of multiple officers was not improper even though some was emotional and cumulative. Moreover, victim impact evidence is not limited to family members and can include the effects on friends, coworkers and the community - including when coworkers are law enforcement personnel. Finally, the court did not err in allowing a videotape of the officer’s emotional funeral service.id: 21741
Sheriff’s testimony about the impact of the death of the deputy was not improper victim impact testimony at the penalty phase.Defendant was convicted in the capital murder of a deputy sheriff. The sheriff’s penalty phase testimony about the impact of the victim’s loss on the department was not improper victim impact testimony.id: 21315
Videotape of victim’s photograph while a youth in his hometown in Mexico was not overly emotional and was properly admitted at the penalty phase.The videotape played by the prosecutor during the penalty phase was not improper victim impact evidence. It was a montage of 20 still photographs of the victim in his humble hometown in Mexico, and there photographs had already been admitted. The repackaged evidence was not overly emotional and was presented without soundtrack or commentary. id: 21253
The trial court did not err at the penalty phase in admitting victim impact evidence pertaining to defendant’s prior crimes. Defendant argued that victim impact evidence pertaining to defendant’s prior crimes was inadmissible at the penalty phase of the charged capital case. However, the Eighth Amendment does not prohibit the admission of such testimony. id: 21003
The trial court properly admitted the 911 tape as victim impact evidence at the penalty phase.The trial court did not err in admitting the recording of the surviving victim’s 911 call as victim impact evidence during the penalty phase. The tape showed the immediate impact caused by defendant’s conduct on the surviving victim and was relevant under Penal Code section 190.3 factor (a). Moreover, the tape was not cumulative of other evidence.id: 20957
The trial court did not err at the penalty phase in allowing a videotape of the victim while alive where the court deleted portions and took steps to keep the presentation unemotional.Defendant argued the trial court erred at the penalty phase in permitting the prosecutor to
present an eight-minute videotape of the victim and his family members. However, this was appropriate victim-impact evidence where the trial court carefully reviewed the videotape prior to its admission, ordered the audio portion deleted, and vigorously cautioned the prosecutor to ensure the witness’s commentary during playing of the videotape should be unemotional. id: 21046
The foreseeable effects of defendant's prior violent sexual assaults upon the victims were admissible as circumstances of the prior crimes bearing on defendant's culpability.Defendant challenged questions posed to three prior victims at the penalty phase about how the sexual assaults had affected their lives and whether they had been able to forget them. Defendant argued this victim impact evidence was irrelevant because it did not bear directly on the violent nature of his past criminal activity. However, the foreseeable effects of defendant's prior violent sexual assaults upon the victims ongoing pain, depression, and fear were admissible as circumstances of the prior crimes bearing on defendant's culpability.id: 14351
Notwithstanding Eighth Amendment considerations, victim impact evidence is admissible under section 190.3, factor (a).At the penalty phase, the court admitted into evidence three photographs of the victims while alive. Defendant argued the photographs constituted improper victim-impact evidence. However under Payne v. Tennessee, (1991) 111 S.Ct. 2597, victim impact evidence is no longer necessarily violative of the Eighth Amendment. Defendant argued that even aside from Eighth Amendment considerations, such evidence is inadmissible in California because it does not come within any of the aggravating factors listed in Penal Code section 190.3. However, factor (a) of section 190.3 allows evidence and argument on the specific harm caused by the defendant, including the impact on the family of the victim.id: 14431
Allowing a doctor to elaborate on a living victim's injuries at the guilt phase did not violate the prohibition against victim impact evidence.A living victim testified at the guilt phase of a capital trial regarding the severity of his injuries. Defendant argued the court erred in admitting "fundamentally unfair" victim impact evidence by allowing a doctor to repeat the evidence of the injuries. However, the court did not err in permitting the doctor to elaborate on some of the same ground covered in the victim's unobjectionable testimony.id: 16587
Victim impact evidence was not overly emotional and the court did not err in precluding the defense from disparaging the character of the victims when cross-examining family members.Defendant argued the victim impact evidence introduced at the penalty phase (testimony of family members and photos of the victim while alive) was so inflammatory it encouraged the jurors towards irrationality and an emotional response untethered to the facts of the case. However, the evidence presented was relevant and the argument appropriate. Moreover, the court did not err by precluding the defense from disparaging the character of the victims on cross-examination. In any event, the jury was informed at the guilt phase that the victims were drug addicts and killed in a dispute at a disreputable house where drug addicts congregated.id: 17083
The court did not err in refusing to allow a rape victim to testify at the penalty phase that she opposed capital punishment.A rape victim refused to testify at the penalty phase unless she was allowed to state her opposition to capital punishment. She was determined to be unavailable and her preliminary hearing testimony was read to the jury. Defendant argued the witness should have been allowed to present her "victim impact testimony." However, the victim's view on capital punishment is not victim impact evidence. The court did not preclude the victim from presenting any other mitigating evidence she may have had regarding defendant's character. Moreover, the court properly found the witness was unavailable in this unique circumstance and defendant's motive and interest in cross-examining the witness at the preliminary hearing regarding the crime warranted admission of that testimony.id: 17338
Trial court properly permitted at the penalty phase, victim impact testimony from a nonrelative.During the penalty phase, the court permitted the testimony of a nonrelative on the impact on him of the victim's death. Defendant argued that victim impact evidence should be limited to relatives of the victim. However, in Payne v. Tennessee (1991) 501 U.S. 808, 825, the court found the state could present evidence of the impact of the crime on the victim's family and community. There is no distinction between relatives and nonrelatives.id: 17464
Admission of victim impact evidence did not violate ex post facto laws even though such evidence was not admissible at defendant's original trial.At defendant's second capital trial following an appellate reversal, he argued the introduction of victim impact evidence violated ex post facto principles because such evidence was not admissible at the time he committed his crimes. However, victim impact evidence does not increase punishment, or change the elements or facts necessary to convict. It is simply another form of informing the sentencing authority of the specific harm caused by defendant. The fact that the statute works to defendant's disadvantage did not constitute an ex post facto violation.id: 17973
The trial court did not abuse its discretion by allowing the victim's family members to be present during penalty phase testimony.The trial court did not abuse its discretion by granting the prosecutor's motion to permit the presence of the victim's mother and sister during the penalty phase testimony. There was no evidence that their presence would result in the shaping of testimony by them or other witnesses. Instead each woman testified as to matters she knew without regard to what was disclosed at trial. Moreover, defense counsel, who was concerned with the impact on the jury of the emotions of the two women, acknowledged that each was composed and restrained.id: 17993
The court did not err in admitting as victim impact evidence the testimony of the deceased officer's brother who said he saluted every time he drove past the cemetery.Defendant was convicted of murdering a police officer and sentencing him to death. He argued the court erred in admitting as victim impact evidence the testimony of the victim's brother who said he salutes his brother's grave every time he drives past the cemetery, and the testimony of the victim's father who said he has not gone fishing since the victim died. However, the testimony was appropriate victim impact evidence.id: 17974
Testimony regarding the brutality of the killings was not improper victim impact evidence.Defendant argued the court erred in allowing two witnesses to testify at the penalty phase about the brutality of the killings. However, the testimony was limited to the issue of how the crimes directly affected them. References to the brutal manner of the killings was proper victim impact evidence.id: 17878
Victim impact testimony may be given by close friends as well as family.Defendant argued that only family members can give victim impact testimony at the penalty phase of a capital case. However, the purpose of victim impact evidence extends to the suffering and loss inflicted on close personal friends.id: 17879
Testimony that the murder victim taught Bible school was not improper victim impact evidence.Defendant argued testimony at the penalty phase that the victim taught Bible school was improper victim impact testimony. However, the witnesses referred to Bible school only to explain how they met the victim. Neither witness testified about the victim's religious beliefs or suggested that religious doctrine should affect the penalty determination.id: 17877
Evidence of a prior violent act's impact on the victim was properly admitted at the penalty phase as a factor in aggravation.The trial court allowed evidence at the penalty phase that in 1976, defendant assaulted another woman, causing psychological harm including sleeplessness and the need to sleep with a gun under her pillow to investigate noises in the night. The evidence was properly admitted under Penal Code section 190.3, factor (b) even though the incident was not recent, since the link between the attack and the victim's actions and emotions was direct and foreseeable.id: 17938
Defendant was not entitled to a summation of the expected testimony in the notice of victim impact evidence.Defendant argued he received inadequate notice of the victim impact evidence the prosecution sought to present at the penalty phase. He was not told that one witness would be reading a prepared statement, or that witnesses were going to be providing evidence of the impact on persons other than themselves. However, defendant was not entitled to a summation of the witnesses' expected testimony. Moreover, evidence of how the victim's death affected extended family members was not improper.id: 18382
Victim impact statements referring to the victim's being kidnapped were not improper even though the kidnapping count and allegation were dismissed.Defendant argued that victim impact witnesses' statements that the victim had been "abducted" or "kidnapped" were improper since the court had dismissed the kidnapping counts. However, the witnesses' use of these terms was colloquial, not legal.id: 18428
Testimony that the victim's successful brother turned to drugs and alcohol after her death was proper victim impact evidence.The victim's father testified that before her death, her brother Chad was a fine athlete and a good student, and that after she was killed, his performance deteriorated and he turned to drugs and alcohol. Defendant argued this was improper victim impact evidence since there was no established connection to the victim's death and her brother's problems. However, the brief references to the changes in Chad's life were a proper depiction of the residual impact he continued to experience after his sister's death.id: 18427
Photo of the victim with her husband was appropriate victim impact evidence which helped illustrate his love for her.Defendant argued the trial court erred at the penalty phase by admitting a photograph of the victim (while alive) with her husband. The evidence was proper victim impact evidence which helped illustrate the husband's love for the victim. The court rejected defendant's claim that the photograph was irrelevant because it did not depict the victim as she appeared to defendant who knew nothing about her marriage.id: 18445
Emotional outburst from victim's family following the guilty verdict was not improper victim impact evidence and did not require that the jury be discharged.Defendant argued the trial court erred by denying his motion to discharge the jury from the penalty phase after the emotional outburst from the victim's family following the guilt verdict. However, the brief spontaneous action did not constitute victim impact evidence. Moreover, it likely came as no surprise to the jurors that the victim's family was relieved when part of the trial was over and satisfied with the guilty verdicts.id: 18557
Defendant waived his challenge to the nature and extent of the victim impact evidence by failing to bring an in limine motion to restrict the evidence.Defendant argued the trial court erred in allowing, as victim impact evidence at the penalty phase, testimony from family and friends regarding their imagined reenactments of the crime. However, defendant waived any error regarding the nature and extent of the victim impact evidence by failing to bring an in limine motion to restrict admission of the evidence.id: 18861
The court did not err at the penalty phase in excluding evidence regarding the victim's opposition to capital punishment. The trial court did not err in excluding evidence that the murder victim strongly opposed capital punishment. However, the victim's belief in this regard was not evidence of defendant's character, and was not admissible as victim impact evidence since it would not have rebutted family members' testimony about the loss of a loved one.id: 19641
The admission of a videotape of the victim's life at the penalty phase was not erroneous as improper victim impact evidence.The trial court did not err in admitting at the penalty phase a videotape prepared by the victim's mother portraying the victim's life set to music. The only victim impact testimony came from the victim's mother and the videotape supplement but did not duplicate the testimony. In a dissenting opinion, Justice Moreno found the videotape was akin to a eulogy, and should not have been admitted as victim impact evidence.id: 20006
The trial court did not err at the penalty phase in allowing a 14 minute videotaped montage of still photographs of the victims after excluding the accompanying music and narration.The trial court did not err at the penalty phase by permitting the prosecution to present a 14 minute videotaped montage of still photographs narrated by the victims’ children. While the court allowed a family member to describe each photograph, it prohibited the audio portion of the video which included music and narration. Evidence of this type must be strictly analyzed to ensure the proceedings are not infected with an impermissible level of emotion. Finally, the court properly instructed the jury not to be swayed by passion or prejudice at the penalty phase, and did not err in rejecting defendant’s proposed instruction on the use of victim impact evidence.id: 20347
The trial court did not err in admitting under section 1109, evidence of a prior uncharged domestic violence incident which was relevant to defendant's self-defense claim.Defendant was convicted of domestic battery with corporal injury. He argued the trial court abused its discretion by allowing the prosecution to introduce, under Evidence Code section 1109, evidence of a prior uncharged domestic violence incident. However, the prior incident bore significant similarities to the present case, and the fact that it was unprovoked - rather than provoked as he argued in this case - made it germane to his claim of self-defense. Moreover, the decision to admit the testimony concerning the incident from the alleged victim's son was reasonable as the son witnessed the incident as a nine-year old but was 19 when he testified and the emotional impact was likely blunted by the passage of time.id: 20058
Photographs of injuries to murder victim did not amount to improper victim-impact evidence.Admission of photographs of murder victim depicting gruesome wounds at the penalty phase was not an improper admission of victim impact evidence.id: 14198
The trial court did not err by allowing a recent unemotional videotaped interview of the victim to be played for the penalty phase jury. The trial court did not err at the penalty phase by allowing the prosecutor to play a videotaped interview of one of the murder
victims at a local TV station in Michigan where the video tape was not an emotional tribute to the victim, but rather a neutral dialogue where the interviewer asked polite questions about the
victim's ability to balance her musical accomplishments with her other commitments.id: 19605
Court did not err in failing to instruct capital jury on sympathy for defendant's family as a mitigating factor.Defendant argued the court erred in failing to instruct the penalty phase jury that it could consider sympathy for defendant's family as a mitigating factor. However, sympathy for a defendant's family is not a matter a capital jury can consider in mitigation, although family members may offer testimony on the impact on them of an execution if by so doing they illuminate a positive quality of defendant's background or character. Nothing contrary to these principles occurred at trial.id: 16302
It was assumed that the court did not consider the presentence report in deciding the motion to modify the death verdict.Defendant argued the trial court violated the prohibition against considering victim impact evidence when it considered a presentence report during the motion to modify the death verdict. Although the judge did state he read and considered the presentence report, it was assumed he considered the report solely for the permitted purpose of sentencing on the noncapital offenses.id: 14683
Victim's mother's testimony was admissible in the prosecution's case-in-aggravation relating to the circumstances of the crime.The victim's mother testified at the penalty phase that her deceased daughter and son-in-law had poor eyesight, wore glasses, kept no guns, and avoided violent confrontations. She did not present a victim-impact statement and her testimony was admissible to establish that the double murder was executed in all likelihood without resistance from the victims.id: 14475
Comment on the impact of the crime on victims family was harmless where it was brief and not emotionally inflammatory.Prosecutor's error in briefly mentioning that the victim was survived by her husband and two young children was not prejudicial where the comment was factual, and not emotionally inflammatory.id: 14480
Defendant was not prejudiced by failure to object to introduction of prosecution psychologist as to future dangerousness.Defendant failed to object to prosecution psychologist who testified that he would be dangerous in the future. Although such testimony would have been excludable under <i>People v. Murtishaw</i>, 29 Cal.3d 733 (1981) or <i>People v. Boyd</i>, 38 Cal.3d 762 (1985), the defendant failed to object. However, such evidence would have been admissible during the prosecution's rebuttal and the error was therefore harmless.id: 14481
Prosecutor did not err in comparing defendant to his sister during closing argument.During closing argument at the penalty phase, the prosecutor compared defendant to his sister who had the same upbringing as the defendant and who never had any trouble with the law. The evidence was properly admitted where the defendant's mother had testified at length regarding defendant's arduous childhood and upbringing.id: 14482
Prosecutor erred in arguing an unconscious impulse to be an aggravating factor.The prosecutor committed misconduct in arguing that if defendant committed the crime because he could not control an unconscious impulse, that was even more reason to not allow him to continue living in our society anywhere. If defendant did not consciously choose to act as he did, that would be a circumstance in mitigation, not in aggravation. However, failure to object to the statement precluded defendant from raising the issue on appeal.id: 14483
Prosecutor's statements did not constitute misconduct.During closing argument of the penalty phase, the prosecutor stated that he hoped they would reach a verdict or . . we had to try it again and go step by step, day by day through this case all over again because of something. This was nothing more than an urging for the jurors to do their best to reach a verdict and was not improper. The answer that there would be a penalty retrial in response to a question concerning the effect of juror deadlock at the penalty phase was proper, even if there was a causal connection between the prosecutor's statement and the question. Other alleged improper statements could have been cured by admonition but the defendant failed to timely object.id: 14484
Argument concerning the nature and circumstances of the capital offense or the effect of such activity on the victims does not constitute impermissible argument on impact of the crime on victim's family.During penalty phase closing argument, the prosecutor described the suffering of the victims and other young girls and how it scarred them for life. Defendant argued those statements violated <i>Booth v. Maryland</i>, (1987) 482 U.S. 496, and <i>South Carolina v. Gathers</i>, (1989) 490 U.S. 805, 109 S.Ct. 2207, which prevent evidence of the crime impact on the victims' families. However, those cases do not extend to evidence or argument relating to the nature and circumstances of other criminal activity involving the use or threat of force or violence or the effect of such criminal activity on the victims. Such information is relevant to the life or death decision.id: 14487
Brief comment on victim's family was harmless where prosecutor told jury the law permits no plea from the family.The prosecutor stated that the jury had met defendant's family but knew nothing about victim's family. Any error was harmless since the remarks did no more than refer to the obvious and nonspecific fact that victim's murder would affect her family, just as defendant's death would affect his, and where the prosecutor specifically told the jury the law permits no plea from the family thereby suggesting such impact is not a proper factor in aggravation.id: 14490
Comment that the victim was gunned down in front of his wife of 50 years was a statement concerning the circumstances of the crime.Prosecutor argued the victim was shot down in front of his wife of 50 years and that she must live with the memory. Notwithstanding that victim impact evidence is no longer found to violate the Eighth Amendment, the statement was admissible under Penal Code section 190.3, factor (a) as one of the circumstances of the crime of which the defendant was convicted in the present proceeding.id: 14493
Evidence of victim's passive character was arguably relevant to the manner in which the crime was committed.At the penalty phase the prosecutor offered evidence through the victim's family members that the victim was passive and unlikely to resist a robbery. Evidence of this nonaggressive character was admissible to support the inference that the victim did not resist the fatal attack. This bore directly on the manner in which the crimes were committed. Even if the evidence was considered to be improper victim impact evidence, any error was harmless where the court found the evidence did not contribute to the sentencing determination.id: 14412
Court did not err in precluding questions of defendant's sister as to whether death was appropriate or the impact of a death penalty on defendant's family.Defendant argued the court erred in preventing counsel from asking defendant's sister whether she believed the death penalty was the appropriate sentence and about the stigma that would attach to her family if a death sentence was imposed. However, given the witnesses' earlier testimony that she did not want her brother to die, the additional question on the matter was duplicative. Moreover, the impact on the defendant's family (unlike the victim's family) is not relevant to mitigate the harm of the crime or its blameworthiness.id: 14155
Compelling consideration of a victim's impact statement in a noncapital case does not violate the Eighth Amendment.Penal Code 1191.1, which compels consideration of a victim's impact statement in noncapital cases, does not violate the Eighth Amendment.id: 13430
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
The case of the day summarizes a current case and is viewed by lawyers and judges around the state every day.
Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245