Mississippi Supreme Court Bar Admissions

MOTION TO BAR ADMISSION OF INFLAMMATORY AND PREJUDICIAL MATTERS CONCERNING THE VICTIM

VS.

COMES NOW, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article 3, Sections 5, 12, 13, 14, 15, 16, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31 & 32 of the Mississippi Constitution to bar admission of inflammatory and prejudicial matters concerning the victim in this case. In support of his/her motion states as follows:

1. Inflammatory references to the victim and their families are inadmissible as a matter of state law these are not permissible. Victim impact evidence is simply not relevant to the issues before the jury at the penalty phase. These are defined by the aggravating circumstances listed by the statute. See Miss. Code Ann. § 99-19-101(5). The legislature has said nothing to make the impact on the victim a relevant aggravating circumstance, so the evidence is therefore inadmissible. See Miss. R. Evid. §§ 401, 403. Indeed, the Mississippi Supreme Court has previously stated that:

A jury's verdict must be based upon the evidence and not affected by extraneous influences. [This Court has] also repeatedly recognized the gravity and immeasurable solemnity of a jury's deliberations during the sentencing phase of a capital murder trial. The importance of this deliberation may at times cause inconvenience and hardship; however, to allow distractions and outside influences to infect the jury's thoughts at this critical juncture of the proceedings is to devalue human life.

Fuselier v. State, 468 So.2d 45, 57 (Miss. 1985) (citations omitted). In Fuselier, the victim's daughter had been permitted to sit in the courtroom in such a manner that the prosecution seemed to be proceeding for her benefit. To the contrary, any capital case must take place in an atmosphere of calm and rationale deliberation. Indeed, such evidence is simply not relevant in a capital trial. In Wiley v. State, 484 So.2d 339 (Miss. 1986), the Mississippi Supreme Court stated:

"Ordinarily the character or reputation of the deceased person is not involved as part of the issue in a murder case and proof relative thereto is generally inadmissible." Shinall v. State, 199 So.2d 251, 257 (Miss. 1967); see also, Hubbard v. State, 288 So.2d 716 (Miss. 1974). It is generally agreed that the prosecution cannot enter proof of the good character of the decedent as part of its main case. McCormick, McCormick on Evidence, Section 193 (2nd Ed. 1972); see also, 40 Am.Jur.2d Homicide Section 308 (1968) (before the character of the deceased has been attacked by the defendant, the prosecutor may not introduce evidence of the reputation of the deceased for peaceful-ness). Id. at 349.

2. The same conclusion must be reached under the United States Constitution. This Court should agree with the Fifth Circuit that "the admission of emotionally charged, live testimony regarding the victim's character, demeanor and reputation in the community were altogether irrelevant to the question of whether [the defendant] should be put to death." Rushing v. Butler, 868 F.2d 800, 804 (5th Cir. 1989), (cited with approval in Payne v. Tennessee, 501 U.S., 111 S. Ct., 115 L. Ed. 2d 720, 743 (1991) (Souter & Kennedy, JJ., concurring)); see also McGahee v. State, 554 So.2d 454, 469-70 (Ala. Crim. App. 1989); People v. Simms, 121 Ill. 2d. 259, 117 Ill. Dec. 147, 520 N.E.2d 308, 313-15 (1988); People v. Washington, 54 Ill. App. 2d 467, 204 N.E. 2d 25 (1965).

3. This evidence should not be admitted. However, to the extent that the prosecutor believes that the evidence should be admitted, specifically requests discovery concerning evidence which might refute or rebut any evidence which might be offered by the State in aggravation. emphatically reiterates that, in his opinion, it is offensive to value one life more than another because the victim is white rather than black, rich rather than poor, young rather than old, from a happy family rather than a difficult one, etc.; however, regretfully, should the prosecution seek to make this discrimination relevant to the penalty phase, be prepared to deal with the prosecution's ill-advised decision.

WHEREFORE, for these and such other reasons as may appear at an evidentiary hearing on this matter, respectfully moves that this Court enter an order in limine barring this kind of inflammatory tactic, and/or an order requiring that the State produce exculpatory evidence on this subject.

Respectfully submitted,

Attorney for

CERTIFICATE OF SERVICE

I certify that I have this date delivered, by hand, a true and correct copy of the above and foregoing Motion to

This the day of .