Lopez v. State

Krauser, C.J. Curtis Maurice Lopez, appellant, entered Alford pleas 1 to the robbery and first-degree murder of Jane McQuain and the subsequent kidnapping and first-degree murder of her eleven-year-old son, William McQuain, in the Circuit Court for Montgomery County. He was thereafter ⁴⁶² sentenced, by that court, to multiple terms of imprisonment, the longest of which were two consecutive terms of life imprisonment, without the possibility of parole. 2 Subsequently, however, this Court granted Lopez’s application for leave to appeal. That application presented the two issues that are now before us, namely: I. Whether the trial court erred in denying Lopez’s request to direct the State “to disclose and state with particularity” what it intended to introduce at the sentencing hearing pursuant to Maryland Rule 4-342(d), and II. Whether the sentencing court erred in permitting a “music/video slide show” depicting the lives of the victims to be played at the sentencing hearing.

We hold that, although the State’s presentencing notice to Lopez fell short of the requirement of Maryland Rule 4-342(d) that the “State’s Attorney shall provide the information that the State expects to present at sentencing” to the defense, the inadequacy of that notice did not unfairly prejudice Lopez at sentencing. We further hold that the sentencing court did not abuse its discretion in allowing the victim impact video at issue to be shown during Lopez’s sentencing hearing. Accordingly, we shall deny his request to vacate his sentences and affirm. We now turn to the four proceedings that are relevant to Lopez’s two claims: the plea hearing, the two presentencing disclosure hearings, and the sentencing hearing.

Plea Hearing According to the undisputed statement of facts, proffered by the State, at Lopez’s plea hearing, Lopez married Jane ⁴⁶³ McQuain, while he was imprisoned in Pennsylvania on an unrelated conviction for attempted murder. Then, while Lopez was still incarcerated, Ms. McQuain became pregnant, by another man, and, ultimately, gave birth to William. After Lopez was released from prison, he took up residence in North Carolina, while Ms. McQuain and her son, William, continued to reside in Maryland. In September 2011, upon learning that Ms. McQuain had recently inherited a significant amount of money from an uncle and had made several expensive purchases with that inheritance, Lopez contacted Ms. McQuain and informed her of his intention to visit her and William at their Maryland home.

After arriving in Maryland, Lopez stayed with Ms. McQuain and her son, at McQuain’s residence, from September 16th through September 30th of 2011. On the morning of the last day of his visit, September 30th, Jane McQuain dropped William off at a friend’s house for an overnight stay, intending to pick him up the next day. That evening, however, as Ms. McQuain lay in her bed, Lopez struck her in the head with a thirty-pound dumbbell and stabbed her twice in the back with a butcher knife, inflicting fatal wounds. The next morning, Lopez used Ms. McQuain’s bank card to withdraw money from her bank account and then drove her car to where William was staying.

After arriving there, he used Jane McQuain’s cell phone to text the eleven-year-old William to leave his friend’s house and come outside. When William did so, Lopez told him to climb “into the car.” Then, with William in the car, Lopez drove to Ms, McQuain’s storage unit. From that storage unit, Lopez retrieved, among other things, a metal baseball bat, which he used, later that day, to beat William to death, shattering his skull into 36 pieces. Lopez thereafter drove Ms. McQuain’s car to North Carolina, where he was arrested.

Presentencing Disclosure Hearings Before sentencing, the State moved to compel disclosure of an expert witness, whom the defense intended to call at Lopez’s sentencing hearing. In his response to that motion, Lopez’s counsel accused the State of failing to provide him ⁴⁶⁴ with “any information that the State expect[ed] to present to the court for consideration in sentencing,” as required by Maryland Rule 4-342(d), and requested that the State be compelled, in writing, to identify, from approximately 10,000 pages of previously disclosed discovery material, what information it intended to present at sentencing. During the ensuing hearing on the State’s motion to compel disclosure of an expert witness (which was granted by the circuit court), Lopez’s counsel reiterated his complaint and demand for a remedial order. The prosecutor responded that the State had given adequate notice, under Rule 4-342(d), by informing Lopez that it was “going to use everything” that it had previously provided his counsel, including information from “years ago.” Taking issue with that response, defense counsel rejoined: “[WJhat [the prosecutor] just said about the letter they sent us back in January, that, that anything they’ve given us in 10,000 pages of discovery is fair game, is absolutely inadequate.” The court then directed the State to file a written response to defense counsel’s request for more specific information and scheduled a hearing on that matter.

In the written response it subsequently filed, the State insisted that it had fully complied with Rule 4—342(d), relying principally on its January 24, 2013, letter to defense counsel, wherein it stated that it “reserve[d] the right to use any materials provided in discovery at the sentencing[.]” The State further claimed that Lopez’s request for a more specific and precise statement of what information it intended to present at sentencing was “unprecedented” and that, in any event, “discovery has been provided since 2011,” and thus, Lopez had had a “reasonable opportunity to investigate” any of the information it had provided. At the hearing on his presentencing disclosure request that followed, defense counsel asserted that Rule 4-342(d) “is a rule of disclosure that” requires the State to specify “what [it] intends to introduce at sentencing[.]” Counsel then went on to explain what he was seeking and why: We are requesting that we be ... given some idea of what the State intends to rely on, because otherwise it’s ⁴⁶⁵ very difficult to marshal our efforts in a way that we can provide effective assistance of counsel, that we can prepare to rebut what the State puts on at sentencing in a case where we have gotten this volume of discovery, discovery that reaches back over 80 years. ... I would estimate that there are about 2,000 pages from a 1987 Harrisburg, Pennsylvania attempted murder case, including medical records of the victim in that case, hundreds of pages of medical records, motions that were filed, statements of witness. 3 There were hundreds of pages from 14 years in DOC in Pennsylvania, including—I’ve of course referred to the mental health record—but movement from institution to institution, parole files, records of, or parole being requested, parole being, when it was granted but before on attempts when it was denied. We have ... at least 100 pages related to child support litigation.

We have Mr. Lopez’s employment records in North Carolina. ... I would say that the majority of what we’ve been given was not ... discovery of actual facts that would be used to prove up this case at trial .... And Mr. Lopez is a 46-year-old man who ... was incarcerated for a period of 14 years. He was then on parole, which he successfully completed.

He was on parole from October of 2000 until ... October of 2009 when he successfully completed it. There are records related to that. And I know [the prosecutor] is going to get up and say, “Well, what it is that the State intends to introduce at you’ve had all that ... for a long time,” and that’s true, but what’s the purpose of this rule is it’s not narrow down sentencing?....

We are concerned that under the Sixth Amendment we won’t be able to give effective assistance if we don’t know what we need to be prepared to rebut out of all of this universe of information. (Emphasis added.) In reply, the prosecutor characterized the defense motion as “novel,” one that he had “never seen ... before[,]” and that, ⁴⁶⁶ contrary to defense counsel’s claim that the State had failed to provide enough discovery, “we’re here because the State has provided too much discovery.” In the State’s view, [t]he rule says ... all materials must be given in advance for sentencing. That has been done. That’s no dispute.

We’re going to use all materials that we have provided to them. That includes pictures of the crime scene from where he killed his wife, pictures from the woods where he killed an 11-year-old boy with a baseball bat. We’re going to show pictures, like we did at the plea ... of where he hid the baseball bat and where he went in North Carolina and covered up materials. We’ll talk about DNA.

We’re going to talk about everything. We’re going to talk about his previous conviction, where he left somebody for dead on the side of the road. We’re going to talk about when he put something over a [prison] guard’s head, trying to kill him. We’re going to talk about everything.

So I think they really should be prepared for everything that they’ve been provided, and I think a lot of it is redundant. The prosecutor further stated that, with the exception of the presentence investigation report and victim impact statements, the defense had everything the State was required to produce. Then, following the prosecutor’s assurance to the court that “only a handful of people [would be] speaking on behalf of the victim impact,” the circuit court denied defense counsel the relief he sought. Sentencing Hearing At the outset of the sentencing hearing, defense counsel moved to exclude a victim impact video, which the State intended to present, consisting of a slide show of 115 still photographs, showing the victims, Jane and William McQuain, throughout their lives, either alone, together, or with a family member or friend.

The State planned to show this victim impact video during the testimony of Bill McQuain, the brother of Jane McQuain and the uncle of William, who had been designated as the “Victims’ Representative.” The video mon ⁴⁶⁷ tage, in question, was accompanied by instrumental music, a popular song, and a bell, ringing as it began and then, once again, as it ended. The only words that appeared on the screen, during that video, were the video’s title, “The Story of Jane and William,” which could only be observed at the beginning of the video montage, and then, a “credits list” of individuals who had provided photographs for the montage, at its conclusion. Asserting that this type of victim impact presentation “is done all the time[,]” the prosecutor, as well as counsel for the Victims’ Representative, claimed that the video was “not inflammatory in any way” and was therefore permissible, as victim impact material, under Payne v. Tennessee, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991). The trial court ultimately denied the defense’s motion to exclude the victim video montage, stating: I have discretion to allow whatever I like or whatever is appropriate in this kind of sentencing proceeding, I’m told that it is just pictures, that it is six minutes.

This is their one, the victim’s [sic] family’s one opportunity to show me, or anyone else, the extent of the impact upon them. And so I know you don’t like it, but this is what they would like to do, and in some respects, it would be cathartic to, for the last time, be able to fully discuss their sister and their nephew. So I’m going to allow the video to be played. At the end of testimony of the Victims’ Representative, the State played the victim impact video.

When it concluded, defense counsel asked the sentencing judge to recuse herself, claiming that the video was “unduly prejudicial,” “just appealed] to emotions,” and was “over the top.” The court denied that request, asserting, “You’re entitled to show pictures, they’re pictures.” Then, in imposing sentence, the circuit court stated: There’s not much more I can say other than the eloquent words we have heard from all of the victims here today and in their victim impact statements .... ⁴⁶⁸ [T]he monstrous nature of this crime cannot convert this case into concurrent time or any prospect of parole. You stabbed Jane McQuain and crushed her skull with a 30-pound dumbbell. You took William from a sleepover, got a baseball bat out, took him into the woods, and crushed his skull into many pieces. And this was a person who called you “dad.” Your difficult childhood, you had a crime ridden neighborhood, an abusive family, abandonment issues, a history of mental illness in your family, a rotten prison experience which you probably deserved. 4 The riot in the prison may help explain to somehow any human being could so diabolically and methodically plan to brutally murder the two people on earth who loved you.

As for second chances, you have had at least one already. Divine providence stepped in after you stabbed that acquaintance 18 times for his vehicle, when strangers stepped in and saved that man on the highway. You were released in 2000 and went on to commit a more heinous crime. I will not cause society to take another chance. ...

Following sentencing, this Court granted Lopez leave to appeal both the denial of his request that the State be ordered ⁴⁶⁹ to provide some indication, to the defense, of what information, from a substantial pool of documents, it intended to adduce at sentencing, as well as the State’s presentation, over objection, of the victim impact video at sentencing. I. Motion to Compel Compliance with Rule 4-342(d) Maryland Rule 4-342(d) requires that [sufficiently in advance of sentencing to afford the defendant a reasonable opportunity to investigate, the State’s Attorney shall disclose to the defendant or counsel any information that the State expects to present to the court for consideration in sentencing. If the court finds that the information was not timely provided, the court shall postpone sentencing. “The purpose of Md. Rule 4-342(d) is to notify the defendant of the information the State will present against him or her at the sentencing hearing and afford the defendant a reasonable opportunity to investigate the State’s information in order to prepare for sentencing.” Dove v. State, 415 Md. 727, 739 , 4 A.3d 976 (2010). That did not occur here, claims Lopez, because the State did not “disclose and state with particularity what it intended to introduce at the sentencing hearing[.]” Instead, it merely “inform[ed] defense counsel that it intended to ‘use all materials that [it had] provided to them’ in pretrial discovery!,]” a disclosure, which, in effect, left Lopez in a sea of material, without a compass. “[T]he trial court should have required,” he asserts, that the State “provide disclosure with greater specificity.” He therefore requests that we vacate his entire sentence and remand for resentenc-ing.

The State counters that “[t]he trial court properly exercised its broad discretion in denying Lopez’s request” because “[t]he plain language of Maryland Rule 4-342(d) does not require the State’s Attorney ‘to state with particularity, exactly what they intend! ] to introduce at sentencing!,]’ ” as demanded by Lopez. Moreover, in the State’s view, Lopez’s “particularity” ⁴⁷⁰ argument improperly equates the State’s disclosure obligation under this rule with its duty to provide a bill of particulars under Maryland Rule 4-241. We believe, however, the State’s presentencing disclosure fell short of what is required under Rule 4-342(d). But, as Lopez has failed to show that he suffered any resultant prejudice from that lack of particularity in the State’s notice, a new sentencing hearing is not warranted.

A. In Dove v. State, 415 Md. 727 , 4 A.3d 976 , the Court of Appeals declared that Rule 4-342(d) “mandates the disclosure of ‘any information the State expects to present to the Court for consideration in sentencing,’ including any witnesses and any documents or physical evidence on which it intends to rely.” Id. at 738-39 , 4 A.3d 976 (citation omitted). This rule, explained the Dove Court, “is broad and encompasses any information on which the State plans to rely at sentencing[.]” But it “does not,” warned the Court, “make an exception for substantial compliance^]” Id. at 739 , 4 A.3d 976 . That is to say, strict compliance with the rule is required. Id.; accord Green v. State, 127 Md.App. 758, 773-74 , 736 A.2d 450 (1999).

Moreover, “the defendant’s awareness that certain types of evidence might be presented at the sentencing hearing is not sufficient to fulfill the Rule’s notice requirement,” Dove, 415 Md. at 740 , 4 A.3d 976 (citing Green, 127 Md.App. at 774 , 736 A.2d 450 ), although, as we shall see, the defendant’s actual knowledge of the information that is, in fact, adduced at a sentencing hearing and relied upon by the sentencing court may be relevant in determining whether a rule violation prejudiced the defendant or amounted to no more than harmless error. The Court of Appeals found, in Dove , that the State had violated Rule 4-342(d) by failing to disclose, before sentencing, that it intended to present a previously undisclosed fingerprint card, in conjunction with the testimony of a previously identi- ⁴⁷¹ fled fingerprint expert, at sentencing. 5 Id. at 733-35, 740-41, 746 , 4 A.3d 976 . The State had belatedly “presented the fingerprint card in question as substantive evidence of the defendant’s identity,” observed the Court, to confirm that he had been previously convicted of possession with intent to distribute heroin and thereby warranted an enhanced sentence. Id. at 740-41 , 4 A.3d 976 .

But the State should have provided Dove with the fingerprint card before sentencing, declared the Court, to afford him “a reasonable opportunity to investigate the State’s information in order to prepare for sentencing.” Id. at 739 , 4 A.3d 976 . And, because it did not, the sentencing court should have “postponed] the hearing,” in the Court’s view, given the rule’s express instruction that, “[i]f the court finds that the information was not timely provided, the court shall postpone sentencing.” Id. at 741 , 4 A.3d 976 . The Dove Court then turned to the question whether the harmless error doctrine is applicable to a violation of Rule 4-342(d). While acknowledging that such a violation is “rarely harmless,” the Court held that, when an appellate court determines that there was a violation of Rule 4-342(d), it should next consider whether that violation constituted “harmless error.” Id. at 742-43 , 4 A.3d 976 .

Because, in that case, the fingerprint card was not cumulative to other, properly admitted evidence, and because it was relied upon by the sentencing court in determining whether the State had met its burden of proof that Dove had been previously convicted of a drug-related offense, the Court concluded that the sentencing court’s error, in declining to postpone the sentencing hearing, ⁴⁷² was not harmless. Id. at 745-46, 749-50 , 4 A.3d 976 . Consequently, the Court vacated Dove’s sentence and ordered a new sentencing hearing. Id. at 751-52 , 4 A.3d 976 .

Similarly, in Green v. State, supra, 127 Md.App. 758 , 736 A.2d 450 , this Court held that the State had violated Rule 4-342(d) in presenting, at sentencing, a surprise witness, who then testified that the defendant had shot him, notwithstanding the fact that the State had mentioned the witness during trial. Id. at 773, 736 A.2d 450 . “Without the notice mandated by the rule, there was no reason,” we observed, “to investigate” that witness, nor any reason to prepare for his testimony. Id. Moreover, “[t]he word ‘shall’ in the rule means that it was mandatory that the State disclose ‘any evidence ... [i]t expected to present,’ not merely identification of those whom it might call to testify.” Id. at 773-74 , 736 A.2d 450 .

To be sure, Maryland Rule 4—342(d) does not require the State to provide a line-item list of every fact to be presented at sentencing. Nor was Lopez requesting such a detailed disclosure by the State. What his counsel did demand was that the State identify, from among more than 10,000 pages of previously disclosed discovery material, the information that it intended to present at Lopez’s sentencing hearing. But, instead of providing, in its Rule 4-342(d) notice, some guidance as to what information it would be presenting at sentencing, the State chose to announce simply that it “reserve[d] the right to use any materials provided in discovery at the sentencing.” At the hearing on the State’s motion to compel discovery, defense counsel asked the State what it planned to use from among the more than 10,000 previously disclosed documents.

The prosecutor replied, “we’re going to use everything that we’ve provided, and we’ve provided things years ago[.]” Then, at the ensuing hearing on defense counsel’s oral motion to compel compliance with Rule 4-342(d), the State steadfastly adhered to that position. Rule 4-342(d) requires more specificity than that. Otherwise, the rule would have no purpose or effect in cases where the State presents voluminous information and docu ⁴⁷³ mentation and then declines to specify what data, from that sea of material, it intends to adduce at sentencing. Certainly, it is not enough for the prosecutor to announce that the State intends to cull its sentencing presentation from a vast amount of previously disclosed discovery material.

Rather, it must identify, with some specificity, what previously disclosed documents and information it intends to rely upon at sentencing. That is to say, it must provide enough detail that it reasonably informs the defense of what material and information the defense will face at sentencing. Although the State violated Rule 4-342(d) by failing to provide Lopez with sufficient notice of the specific information that it intended to adduce at sentencing, we are not persuaded, for the reasons that follow, that Lopez was prejudiced by the State’s inadequate notice. B. We turn now to address whether the circuit court’s error, in failing to require the State to comply with Rule 4-342(d) and to provide the defense with adequate notice of what information it intended to rely upon at sentencing, was harmless.

As the Dove Court noted, if “an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced” the sentence imposed, “such error cannot be deemed ‘harmless,’ ” Dove, 415 Md. at 743 , 4 A.3d 976 (quoting Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665 (1976)), and the sentence must be vacated and a new sentencing hearing held. Id. at 752 , 4 A.3d 976 . Nothing in the record before us indicates that Lopez suffered any prejudice as a result of the State’s violation of Rule 4-342(d). Although the State provided little guidance, if any, of which material, in the pool of 10,000 documents, it intended to use, at Lopez’s sentencing hearing, the prosecutor did state, at the hearing on Lopez’s presentencing disclosure request, that the State intended, at sentencing, to “talk about the DNA” and “to show pictures, like we did at the plea [hearing],” from ⁴⁷⁴ “the crime scene[s]” and “where he hid the baseball bat and where he went in North Carolina and covered up materials.” Moreover, we note that the PSI report and victim impact statements, which the State repeatedly invoked at the sentencing hearing, were provided to defense counsel in sufficient time to prepare for that hearing.

Furthermore, notwithstanding defense counsel’s vigorous presentence complaints that she could not tell, from the material she had been given, what the State planned to present at sentencing, defense counsel did not raise those objections at the sentencing hearing. In fact, she did not object at any point or to any part of the State’s sentencing presentation on the ground that it contained information for which she was unprepared. That silence belies Lopez’s subsequent complaint, in both his application for leave to appeal and his appellate brief, that, “[o]n the day of sentencing, the State introduced wide-ranging evidence, much of which the Defense was hamstrung to rebut, due to lack of adequate notice.” Specifically, in his brief, he asserts that “the State deprived the defense of the ability to intelligently utilize its limited investigative resources.” Then, expounding upon that point, he states: What information would the State discuss in relation to Mr. Lopez’ prior record, which dated back to his teenage years? What of his prison record and his long, complicated history with Ms. McQuain and her son?

How much time should be spent investigating the reliability of the evidence of the present offenses, for example the State’s allegation that Mr. Lopez was motivated by a desire to make money and to please a girlfriend? To be sure, all of this information was material to sentencing. The problem faced by defense counsel was narrowing down the field—finding the proverbial needle in the 10,000 pages of discovery that had already been turned over. But, after making his “needle in 10,000 pages of discovery” complaint during the presentencing discovery proceedings, neither he nor his counsel ever mentioned or otherwise alluded to that objection at the sentencing hearing that followed. ⁴⁷⁵ Indeed, if, at any point during the sentencing hearing, Lopez felt that the State’s failure to provide more particularized presentencing information was crippling his response to the State’s presentation, then he or his counsel should have informed the sentencing court of that problem.

The court could have then considered his complaint and, if warranted, could have provided an appropriate remedy, such as postponement of the proceedings or exclusion of material or information at issue. In fact, Lopez’s failure to object, at sentencing, to any information presented by the State presumably left the sentencing court under the impression that the State’s flawed notice had ultimately proven not to be a problem for the defense. Moreover, we reached a similar conclusion, under a comparable set of circumstances, in Outmezguine v. State, 97 Md.App. 151 , 627 A.2d 541 (1993), aff'd on other grounds, 335 Md. 20 , 641 A.2d 870 (1994). There, we found that the improper admission of previously undisclosed evidence, at a sentencing hearing, was harmless error, in no small measure, because, though defense counsel objected to “the late filing” of a victim impact statement—the State having provided that statement “just 20-25 minutes prior to the commencement of the sentencing hearing”—he did not move for a postponement but, rather, stated that he would address the improperly admitted evidence “if I have to.” Id. at 169, 627 A.2d 541 .

Given defense counsel’s failure to indicate, during sentencing, that he was not prepared to respond to any information adduced by the State, and the sentencing court’s express reliance, in pronouncing sentences, on the uncontested brutality of the murders and Lopez’s violent criminal history, we conclude that neither the State’s violation of Rule 4-342(d), nor the sentencing court’s denial of relief for that violation, warrants the resentencing sought by Lopez.

II

Victim Impact Video Lopez also contends that the sentencing court erred in permitting what he describes as “a ‘music/video slide ⁴⁷⁶ show’ depicting the lives of the victims” to be played at the sentencing hearing. Its probative value, he claims, “was vastly outweighed by its capacity for unfair prejudice,” and, consequently, its introduction violated both the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. For the reasons that follow, we believe that the circuit court did not abuse its discretion in permitting the presentation, by the State, of the video in question, at sentencing. 6 Under an abuse-of-discretion standard, “this Court will not disturb the circuit court’s ruling, unless it is well removed from any center mark imagined by the reviewing court and beyond the fringe of what the court deems minimally acceptable.” Patterson v. State, 229 Md.App. 630, 639 , 146 A.3d 496 (2016) (citations and quotations omitted). The challenged video was an approximately six-minute montage of 115 still photographs, showing the two victims, Jane and William McQuain, throughout their lives, either alone, together, or with a family member or friend.

The video began with a bell ringing. It was then initially accompanied by a piano instrumental piece and then by a pop song, as each photograph faded in and out. Finally, it concluded with the same sound of a ringing bell that signaled the commencement of the video. ⁴⁷⁷ There was, moreover, no oral or written narration in the video. In fact, the only words in the video were those comprising the video’s title, “The Story of Jane and William,” and the credits at the end of the video, listing individuals who provided photographs.

Over Lopez’s objection, Bill McQuain, the brother of Jane and uncle of William, who served as the Victims’ Representative, was permitted to show this video during his victim impact testimony. A. On appeal, Lopez suggests that presentation of the video at issue violated the Eighth Amendment, the constitutional prohibition against “cruel and unusual punishments,” asserting that “the video raises the concern in [Booth v. Maryland, 482 U.S. 496 , 107 S.Ct. 2529 , 96 L.Ed.2d 440 (1987),] that life without parole—the most severe penalty for committing a crime in Maryland—may be imposed arbitrarily and capriciously[.]” In Booth, the Supreme Court held that “the Eighth Amendment prohibits a capital sentencing jury from considering victim impact evidence” that does not “relate directly to the circumstances of the crime.” Id. at 501-02 , 507 n.10, 107 S.Ct. 2529 . But, four years later, in Payne v. Tennessee, supra, 501 U.S. 808 , 111 S.Ct. 2597 , the Supreme Court expressly overruled Booth’s sweeping prohibition against the admission of such evidence, at a capital sentencing proceeding, “relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family,” Payne, 501 U.S. at 817 , 111 S.Ct. 2597 , declaring that “the Booth Court was wrong in stating that [victim impact] evidence leads to the arbitrary imposition of the death penalty,” in violation of the Eighth Amendment. Id. at 825 , 111 S.Ct. 2597 .

While holding such evidence