Lopez v. State

Getty, J. "The screen is a magic medium. It has such power that it can retain interest as it conveys emotions and moods that no other art form can hope to tackle." Stanley Kubrick (1970). Does this "magic medium" by its very nature convey such overpowering emotion to warrant a permanent ban from the courtroom?

Does the "magic medium" in the form of a victim impact video with background music constitute "irrelevant information or inflammatory rhetoric" that would "stir strong emotions that might overcome the restraints of reason" of the sentencing judge? These questions underscore the two opposing interests in this appeal: first, a criminal defendant's interest in a fair sentencing proceeding in which the sentencing judge is not diverted from his or her objective role; and second, a victim's interest in conveying the impacts of the defendant's crimes to the sentencing judge. This Court is once again called upon to balance these opposing interests in light of the law. In this instance, this Court must also strike a balance in light of this "magic medium" of technology that has become ever-present in Maryland courtrooms.

In short, we are asked to determine whether victim impact evidence in the form of a video, displaying more than one hundred photographs of the victims, with accompanying music ("the video" or "victim impact video") is impermissible at a sentencing hearing. Specifically, this Court must decide if such victim impact evidence violates any of the following statutory or constitutional provisions: § 11-402 of the Criminal Procedure Article ("CP") of the Maryland Code, which governs victim impact statements; a defendant's Eighth Amendment right to be free from cruel and unusual punishment; or a defendant's due process rights under the Fourteenth Amendment. For the reasons that follow, we first conclude that a sentencing judge has discretion to permit any additional form of victim impact evidence outside the constraints of CP § 11-402, governing written victim impact statements, and CP § 11-403, governing victim impact testimony. We also hold that all prepared victim impact evidence, not including victim impact testimony, must be limited to the content prescribed under CP § 11-402(e), listing the subject matters permitted in victim impact statements.

This Court further holds that the Eighth Amendment does not prohibit a sentencing judge from considering victim impact evidence at a defendant's noncapital sentencing proceeding. Lastly, we hold that the defendant's Fourteenth Amendment due process rights were not violated in this case because the disputed victim impact evidence did not inflame the passions of the sentencing judge more than the facts of the crime. Accordingly, we affirm the judgment of the Court of Special Appeals. BACKGROUND A grand jury in the Circuit Court for Montgomery County indicted the Petitioner, Curtis Maurice Lopez ("Mr. Lopez"), with two counts of first degree murder, one count of kidnapping, one count of child kidnapping, and one count of robbery. 1 On January 4, 2013, Mr. Lopez entered an Alford plea 2 as to both first degree murder counts, the robbery count, and one merged count of child kidnapping. 3 During the plea hearing, the parties presented the court with an agreement that both the State and Mr. Lopez would be free to argue the appropriate sentence at a separate hearing.

The State reminded the court that it intended to request a sentence of life imprisonment without the possibility of parole. After accepting the agreement as to sentencing, the circuit court questioned Mr. Lopez about his rights, his understanding of the elements of the charged crimes, and his understanding of the plea. The court found that Mr. Lopez was proceeding by way of an Alford plea freely, voluntarily, and intelligently. In support of the plea, the State presented the following proffer of facts 4 in connection with the murders of Jane McQuain ("Jane") and William McQuain ("William").

Mr. Lopez and Jane were married on April 23, 1988, in a Pennsylvania prison while Mr. Lopez was serving a sentence for attempted murder in a separate case. Though Jane and Mr. Lopez kept in contact and visited occasionally, the two did not live as husband and wife. Jane gave birth to a non-marital son, William, while Mr. Lopez was still serving his sentence in prison. Jane and William lived in Germantown, Maryland, and Jane worked as a receptionist at an accounting firm in Gaithersburg.

When he was released from prison, Mr. Lopez moved to North Carolina. In September 2011, Jane used inherited money from her deceased uncle to purchase a new car and a flat-screen television. After learning of the inheritance, Mr. Lopez contacted Jane and informed her of his plans to visit on September 16, 2011. Mr. Lopez stayed with Jane and William in their condominium on Briarcliff Terrace during his visit.

On Friday, September 30, 2011, Jane took William to his friend's residence for a sleepover. That night, Mr. Lopez bludgeoned Jane with a thirty-pound weight and stabbed her multiple times, leaving her body wrapped in blankets in her condominium. On the morning of Saturday, October 1, 2011, Mr. Lopez used Jane's cell phone to text William that he should come downstairs to be picked up from the sleepover. Mr. Lopez drove William from the sleepover to a storage facility, where Mr. Lopez retrieved a baseball bat among other items.

After driving William around for four to five hours, making multiple trips to and from the storage facility, Mr. Lopez proceeded to drive to the woods off of Clarksburg Road. Mr. Lopez then killed William by swinging the baseball bat at William's head at least four times, splitting William's skull into thirty-six pieces. Mr. Lopez then discarded William's body slightly off the road. Mr. Lopez drove Jane's new car back to North Carolina with several of Jane's and William's belongings, including the flat-screen television.

Based on this sequence of events, the Montgomery County police obtained an arrest warrant for Mr. Lopez. Police located Mr. Lopez at an Econo Lodge in North Carolina, found Jane's new car parked outside of the Econo Lodge, and retrieved Jane's bank card in the hotel room. After the State's proffer, the circuit court concluded that the State had set forth sufficient facts to sustain a guilty finding as to all counts in the plea. On June 10, 2013, the court held a sentencing hearing, during which Mr. Lopez requested that the court impose concurrent life sentences, concurrent term-of-year sentences, and the possibility of parole.

Preliminarily, Mr. Lopez moved to exclude a video with photographs of the two victims set to background music, which the victims' representative, Mr. William McQuain ("Mr. McQuain"), Jane's brother, intended to play at sentencing. Mr. Lopez contended that the video did not constitute permissible victim impact evidence and violated Mr. Lopez's constitutional rights. The defense also argued that another judge should conduct an in camera review of the video to determine whether it should be excluded or redacted. The State countered that the sentencing judge has discretion to allow victim impact evidence, and that all judges are able to rule on evidentiary matters and proceed to consider only the permitted evidence.

Counsel for Mr. McQuain argued that the video was completely appropriate for sentencing because it showed the identity and characteristics of the victims. Ultimately, the sentencing judge denied Mr. Lopez's request for another judge to conduct an in camera review as well as his motion to exclude the video. The sentencing judge concluded: 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 victims' 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. The State summarized the facts of the crime, showed a PowerPoint depicting pictures of the crime scenes, submitted written victim impact statements, and presented nine witnesses who gave victim impact testimony.

Mr. McQuain, the victims' representative, testified about his sister, Jane, and his nephew, William, as well as the struggles he faces as a result of the death of his family members. At the end of his testimony, Mr. McQuain requested that he be able to play the video of photographs of the two victims. The video begins with the title, "The Story of Jane and William," which appears on the screen while church bells are playing in the background. The video footage then displays childhood photographs of Jane set to the song "Sort of (Instrumental)" by Ingrid Michaelson, which is fittingly characterized as instrumental music.

As the song slows down, photographs of Jane during her adult life are shown while the angle zooms in on Jane's image. After approximately one minute, the video displays photographs of Jane holding William as a baby while the instrumental music continues. The video then depicts two-and-one-half minutes of photographs of Jane and William spending time together as well as photos of William engaging in childhood activities, during which the same instrumental music plays in the background. When the first song ends, the song "Yeah, Yeah" by Sam Means plays for approximately two minutes of additional family photos and childhood photographs of William.

The last photograph of Jane and William embracing is shown for approximately twenty seconds while the sound of church bells again plays in the background. The video then shows a list of credits for people who shared photographs, the music, and the video production. The credits are set to the sound of the first song, "Sort of (Instrumental)" by Ingrid Michaelson. The footage ends with a graphic displaying the words "All Memories By Jane & William" as the instrumental music fades out.

The video lasts a total of six minutes and twelve seconds, contains approximately 115 photographs, and includes two songs along with the sound of church bells. After the video was played, defense counsel moved to have the sentencing judge recused because of the video's prejudicial nature. Specifically, counsel for Mr. Lopez stated: Your Honor, we've [ ] previously objected to this video being shown. Certainly the State has a right to put on its presentation, but this is so unduly prejudicial [ ] in this matter, that Your Honor we would ask the [c]ourt to possibly recuse[.] I mean, this obviously just appeals to emotions, which something like this goes [to], but this is just, this is over the top.

The sentencing judge denied the motion to recuse, concluding that the victims' representative was entitled to show photographs. The defense then requested that the court make a copy of the video for the appellate record, which the sentencing judge granted. At the conclusion of the hearing, the sentencing judge gave her oral ruling: 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, which were submitted to the [c]ourt last week. * * * [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." * * * Frankly, it is too bad the death penalty is no longer available, as the circumstances of this case and your criminal history truly would warrant that penalty. Ultimately, the court sentenced Mr. Lopez to life imprisonment without the possibility of parole for the first degree murder of Jane, a consecutive term of life imprisonment without the possibility of parole for the first degree murder of William, a consecutive term of thirty years for child kidnapping, and a concurrent term of twelve years for robbery. Mr. Lopez filed an application for leave to appeal on July 9, 2013, asserting that the video was inadmissible at sentencing. 5 The Court of Special Appeals granted the leave to appeal on December 22, 2014. In a reported opinion filed on February 2, 2017, the Court of Special Appeals affirmed the judgment of the sentencing judge, holding that the court did not abuse its discretion in admitting the video at sentencing and the video did not violate Mr. Lopez's constitutional rights. 6 Lopez v. State , 231 Md. App. 457 , 489, 153 A.3d 780 (2017).

Mr. Lopez filed a petition for writ of certiorari in this Court on March 10, 2017, which this Court granted on May 9, 2017. Lopez v. State , 453 Md. 8 , 160 A.3d 546 (2017). Mr. Lopez presents one question for our review, 7 which we have rephrased as follows: Did the sentencing court err when it permitted the victims' representative to play a video of photographs depicting the lives of the victims with accompanying music at sentencing because the video: (A) constituted improper victim impact evidence in violation of CP § 11-402 ; (B) violated Mr. Lopez's Eighth Amendment right to be free from cruel and unusual punishment; or (C) violated Mr. Lopez's due process rights under the Fourteenth Amendment? DISCUSSION The State of Maryland has expressed a clear public policy throughout the last thirty-five years to provide broad rights to crime victims.

In 1982, the Maryland General Assembly enacted the primary statute in pursuit of that public policy goal: Maryland's first victim impact evidence statute. 1982 Md. Laws, ch. 494. This victim impact legislation required a presentence investigation report to include a victim impact statement if the defendant committed certain crimes that caused injuries to a victim. Id. The original statute also allowed the State's Attorney to submit a victim impact statement in the event a presentence investigation was not requested.

Id. The sponsor of this legislation, Senator John J. Garrity, stated that the purpose of the statute was to "provide[ ] the mechanism to place at the judge's disposal all the facts regarding impact of the crime on the victim." Reid v. State , 302 Md. 811 , 816, 490 A.2d 1289 (1985). This Court emphasized that "the intent of [the original victim impact evidence statute] was to provide the victim access to the sentencing process by ensuring that at least in one way the effects of the crime on the victim will be presented to and considered by the sentencing judge." Id. at 816-17 , 490 A.2d 1289 . In order to provide victims with the right to present their viewpoint in all cases, the General Assembly enacted Senate Bill 132 the following year, requiring the sentencing court to consider a presentence investigation report with victim impact statements in death penalty cases. 1983 Md. Laws, ch. 297.

"It is apparent that the legislature intended that victim impact statements be admissible in capital case sentencing proceedings." Lodowski v. State , 302 Md. 691 , 738-39, 490 A.2d 1228 (1985), vacated on other grounds , 475 U.S. 1078 , 106 S.Ct. 1452 , 89 L.Ed.2d 711 (1986). In 1986, Maryland enacted victim impact testimony legislation, seeking to expand the ways in which victims could present evidence at sentencing proceedings by allowing victims, a member of the victim's immediate family, or a victim's representative to address the sentencing court, as long as permitted by the sentencing judge. 1986 Md. Laws, ch. 127. In addition to the growing statutory recognition, Maryland afforded victims constitutional protection when the Maryland General Assembly passed and the people ratified Article 47 of the Maryland Declaration of Rights. 1994 Md. Laws, ch. 102. The constitutional right for victims specifically provides: (a) A victim of crime shall be treated by agents of the State with dignity, respect, and sensitivity during all phases of the criminal justice process.

(b) In a case originating by indictment or information filed in a circuit court, a victim of crime shall have the right to be informed of the rights established in this Article and, upon request and if practicable, to be notified of, to attend, and to be heard at a criminal justice proceeding, as these rights are implemented and the terms "crime", "criminal justice proceeding", and "victim" are specified by law. Md. Const. Decl. of Rts. Art. 47.

In discussing the constitutional provision, this Court described " Article 47 [as] 'the strong public policy that victims should have more rights and should be informed of the proceedings, that they should be treated fairly, and in certain cases, that they should be heard.' " Hoile v. State , 404 Md. 591 , 605, 948 A.2d 30 (2008) (citing Lopez-Sanchez v. State, 388 Md. 214 , 229, 879 A.2d 695 (2005) ). "The mandate of the people is clear. In response to that mandate, trial judges must give appropriate consideration to the impact of crime upon the victims." Cianos v. State , 338 Md. 406 , 413, 659 A.2d 291 (1995). Following the ratification of the victims' constitutional right, the General Assembly enacted the Victims' Rights Act of 1997. 1997 Md. Laws, ch. 311.

The overall purposes of the Victims' Rights Act of 1997 were to "expand[ ] victims' rights laws to include juvenile proceedings," to require enhanced notifications to victims "relating to parole and mandatory supervision," as well as to allow victims "to request that offenders be prohibited from having contact with the victim as a condition of release or supervision." Dep't Legis. Servs., Fiscal and Policy Note, Senate Bill 173 , at 1 (1997 Session). 8 The trend of expanding victims' rights continued as recently as 2015 when the legislature enacted "Alex's Law." 2014 Md. Laws, ch. 151. 9 Specifically, Alex's Law requires sentencing courts to hear from a victim or the victim's representative before imposing a sentence, unless deemed impracticable, even in cases in which the prosecuting attorney does not request that the court consider such testimony. See Dep't Legis. Servs., Fiscal and Policy Note, Senate Bill 272 , at 1 (2014 Session). 10 These statutes, as well as Article 47 of the Maryland Declaration of Rights, demonstrate the State's desire to implement broad victims' rights in criminal proceedings, including sentencing.

However, the legislature and this Court have also made clear that victims' rights are not without limitation. In fact, the original victim impact evidence statute in Maryland included a list of the acceptable content in a victim impact statement. See 1982 Md. Laws, ch. 494. Specifically, the original bill prescribed: (3) A victim impact statement shall: (i) identify the victim of the offense; (ii) itemize any economic loss suffered by the victim as a result of the offense; (iii) identify any physical injury suffered by the victim as a result of the offense along with its seriousness and permanence; (iv) describe any change in the victim's personal welfare or familial relationships as a result of the offense; (v) identify any request for psychological services initiated by the victim or the victim's family as a result of the offense; and (vi) contain any other information related to the impact of the offense upon the victim that the court requires. 1982 Md. Laws, ch. 494. 11 Therefore, the very first Maryland statute recognizing the importance of victim impact evidence also demonstrated the legislature's intent to confine the victim impact statements to relevant information for purposes of sentencing.

Parallel to the boundaries placed by legislation, the Maryland courts also placed proper limitations on victim impact evidence. This Court aptly explained that " Article 47 and related legislation have created a class of specific, but narrow , rights for victims with regard to certain aspects of the criminal proceedings against the perpetrators of the crimes committed against victims or their property." Hoile , 404 Md. at 605 , 948 A.2d 30 (emphasis added). We have repeatedly "taken cognizance of the legislative dictate that victim impact evidence is admissible in certain cases," Lodowski , 302 Md. at 749 , 490 A.2d 1228 , while also declaring that the victims' rights, "however, are limited in application and context." Hoile , 404 Md. at 606 , 948 A.2d 30 . These "limits of victims' rights have been defined further in Maryland caselaw." Id. at 607 , 948 A.2d 30 .

For example, this Court previously held in Cianos v. State that victims were not entitled to file an appeal after the trial judge asked the victims to refrain from addressing the court, to which the victims agreed. 338 Md. 406 , 410, 659 A.2d 291 (1995). In fact, the Cianos Court explained that any appeal taken "by a victim is collateral to and may not interrupt a criminal case, and such an appeal cannot result in a reversal of the judgment and a reopening of the case." Id. at 411 , 659 A.2d 291 . As such, this Court has continuously balanced the legislature's public policy mandate of affording victims broad rights against the need for appropriate limitations. This Court is now tasked with reviewing a sentencing proceeding and determining whether the victims' rights were appropriately granted pursuant to the legislative mandate or whether certain limitations as to "application and context" were necessary.

Hoile , 404 Md. at 606 , 948 A.2d 30 . Generally, we review sentences only to determine whether the sentence is within statutory limitations, whether the sentencing judge was "motivated by ill-will, prejudice[,] or other impermissible considerations," whether the sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment, and whether the sentence violates any other constitutional provisions. Gary v. State , 341 Md. 513 , 516, 671 A.2d 495 (1996). In this appeal, Mr. Lopez requests that this Court vacate his sentence due to each of these alleged violations.

Mr. Lopez first urges this Court to hold that all prepared victim impact evidence is confined to the permissible content for victim impact statements listed under CP § 11-402(e). Failing to do so, Mr. Lopez asserts, will result in a statutory violation as well as an "impermissible consideration[ ]." Sharp v. State , 446 Md. 669 , 686, 133 A.3d 1089 (2016). In addition to this combined statutory and impermissible motivation argument, Mr. Lopez contends that admitting the video violated his Eighth Amendment right to be free from cruel and unusual punishment. See Booth v. Maryland , 482 U.S. 496 , 509, 107 S.Ct. 2529 , 96 L.Ed.2d 440 (1987), overruled by Payne v. Tennessee , 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991).

Lastly, Mr. Lopez contends that the video played at sentencing violated his due process rights under the Fourteenth Amendment. A. Permissible Victim Impact Evidence A sentencing judge " 'is vested with virtually boundless discretion' in devising an appropriate sentence." Cruz-Quintanilla v. State , 455 Md. 35 , 40, 165 A.3d 517 (2017) (quoting Smith v. State , 308 Md. 162 , 166, 517 A.2d 1081 (1986) ). However, a judge's decision to admit certain victim impact evidence during a sentencing hearing is more akin to a trial court's ruling on the admissibility of evidence. Typically a trial judge's decision to admit certain evidence is reviewed for abuse of discretion.

Gordon v. State , 431 Md. 527 , 533, 66 A.3d 647 (2013). When the evidentiary determination also involves a question of law, such as whether the evidence is relevant or constitutes hearsay under Maryland statutes, that legal issue is reviewed de novo . Id. In Ball v. State , this Court previously applied these standards of review to a sentencing judge's decision to admit victim impact evidence. 347 Md. 156 , 197, 699 A.2d 1170 (1997).

Specifically, we stated that "the permissible scope of victim impact testimony instead lies within the sound discretion of the presiding judge, as limited by Md. Code (1957, 1996 Repl. Vol.), Art. 27, § 413(c)(1)(v) [the former victim impact evidence statutes]." Id. at 197 , 699 A.2d 1170 (emphasis added). Therefore, a sentencing judge will abuse his or her discretion by admitting victim impact evidence when the decision to admit such evidence is "well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable." Sumpter v. Sumpter , 436 Md. 74 , 85, 80 A.3d 1045 (2013) (quoting North v. North , 102 Md. App. 1 , 14, 648 A.2d 1025 (1994) ). In addition, a sentencing judge will err as a matter of law when he or she admits victim impact evidence that violates any of the victim impact statutes: CP §§ 11-402 & 11-403.

See id. The Maryland victim impact statutes, codified at CP §§ 11-402 and 11-403, discuss two types of victim impact evidence: victim impact statements and victim impact testimony. The former requires the court to "consider the victim impact statement in determining the appropriate sentence[.]" CP § 11-402(d). The latter statute mandates that the sentencing judge, "if practicable, shall allow the victim or the victim's representative to address the court under oath before the imposition of sentence or other disposition[.]" CP § 11-403(b).

Neither provision of the Maryland Code governs additional forms of victim impact evidence, such as the video disputed in this appeal. However, Mr. Lopez asks this Court to apply the requirements listed under CP § 11-402(e) to the victim impact video submitted at the sentencing. This section of the statute reads: [a] victim impact statement for a crime or delinquent act shall: (1) identify the victim; (2) itemize any economic loss suffered by the victim; (3) identify any physical injury suffered by the victim and describe the seriousness and any permanent effects of the injury; (4) describe any change in the victim's personal welfare or familial relationships; (5) identify any request for psychological services initiated by the victim or the victim's family; (6) identify any request by the victim to prohibit the defendant or child respondent from having contact with the victim as a condition of probation, parole, mandatory supervision, work release, or any other judicial or administrative release of the defendant or child respondent, including a request for electronic monitoring or electronic monitoring with victim stay-away alert technology; and (7) contain any other information related to the impact on the victim or the victim's family that the court requires. CP § 11-402(e).

Mr. Lopez contends that the victim impact video is more comparable to victim impact statements than oral victim impact testimony. For justification, Mr. Lopez asserts that applying the restrictions listed under CP § 11-402(e) to all prepared victim impact evidence would prevent the sentencing judge from impermissibly considering irrelevant content when imposing a sentence. In contrast, the State asserts that the video was properly considered during the sentencing hearing because only victim impact statements and victim impact testimony are limited by §§ 11-402 and 11-403 of the Criminal Procedure Article ; any victim impact evidence outside of those statutes lies within the sound discretion of the sentencing judge. The State suggests that the sentencing judge did not abuse her discretion because the video depicts the true impact of the crime on the family.

In a similar vein, the victims' representative contends that the video was properly admitted as part of the victim impact testimony. The victims' representative points out that Maryland jurisprudence does not apply the limitations under CP § 11-402(e) to the victims' rights to be heard at sentencing. Therefore, the victims' representative urges this Court to find that the sentencing judge did not abuse her broad discretion in permitting the video as part of the victim impact testimony. Maryland appellate courts have not yet addressed the specific issue of whether victim impact evidence outside of a victim impact statement or victim impact testimony should be limited in content or form.

However, there are Maryland cases instructive to this question. In 1985, this Court reviewed a sentencing hearing in which the court sentenced the defendant, Gregory Reid, to life imprisonment for first degree rape with a consecutive twenty-year sentence for first degree sexual offense and a ten-year consecutive sentence for robbery. Reid , 302 Md. at 814 , 490 A.2d 1289 . In Reid , we considered whether the State was permitted to submit a second victim impact statement in addition to the victim impact statement included in the presentence investigation.

Id. at 815 , 490 A.2d 1289 . Reid argued that this second victim impact statement constituted a violation of the former victim impact statute and constituted an impermissible consideration at the sentencing hearing. Id. The victim impact statute at that time included a subsection mandating, "[i]f the court does not order a presentence investigation, the State's Attorney may prepare a victim impact statement to be submitted to the court and the defendant." 1982 Md. Law, Ch. 494. 12 Reid argued that the additional victim impact statement violated the statute because the State's Attorney may only submit a statement if a presentence investigation is specifically not ordered.

Reid , 302 Md. at 815-16 , 490 A.2d 1289 . The State argued that the victim impact statement submitted separately from the presentence investigation "was merely additional information [that] should be left to the sentencing judge's discretion whether to consider [because the statute] does not limit the extent of the court's inquiry but rather ensures that at least a minimum of information on victim impact is provided and will be considered by the court at sentencing." Id. at 815 , 490 A.2d 1289 . In response, this Court first determined that the "legislative history suggests an intent to establish minimum standards for the information to be provided to judges and to make this information available in as many cases as fiscal constraints allowed." Id. at 818 , 490 A.2d 1289 . The Reid Court then concluded that any suggestion that the victim impact statute limits the victim from submitting more than one victim impact statement "runs contrary to the broad discretion placed in the sentencing judge long recognized by this Court.

This Court has in the past refrained from placing restrictions on the sentencing judge's discretion as to information that may be considered." Id. at 819 , 490 A.2d 1289 (citations omitted). Specifically, we held: The proper interpretation then of Art. 41, § 124(c) is that it sets a minimum standard for what the sentencing judge in a circuit court must consider as far as the effects of the crime on the victim. Section 124(c) does not prevent additional statements or comments from being offered whether by the victim, his family or the State's Attorney. The only difference between the presentence investigation's Victim Impact Statement and any additional statements offered is that with regard to the latter it is within the judge's discretion whether to consider them at sentencing .

Id. at 821 , 490 A.2d 1289 (emphasis added). With this language, this Court acknowledged that the victim impact statutes do not limit the sentencing court from considering additional victim impact evidence. Id. Our opinion in Reid , therefore, affirms that any victim impact evidence beyond the minimum required by statute is within the sentencing judge's discretion to consider.

Id. Similarly, in Whittlesey v. State , the petitioning defendant contended that showing a ninety-second videotape of the victim playing the piano to the sentencing jury was impermissible as cumulative evidence. 340 Md. 30 , 665 A.2d 223 (1995). This Court upheld the trial court's determination that the videotape was not cumulative victim impact evidence because the video provided the sentencing jury with information about the victim that was not provided through testimony. Id. at 87 , 665 A.2d 223 .

Specifically, the sentencing court concluded that the video was relevant because it portrayed the victim's nationally recognized talent of playing the piano better than any photograph and displayed the victim's appearance at the time of his death. Id. Upon review of the sentencing judge's decision to admit the video, this Court found the sentencing court did not abuse its discretion by concluding the video was relevant. Id.

Specifically, Judge Irma S. Raker, writing for the majority, stated, "[a]ppellant concedes that such victim impact evidence is admissible under § 413. Appellant also concedes that this evidence is not prohibited by the United States Constitution. Appellant also does not contend that the videotape was 'unduly inflammatory,' the limit we have placed on the admissibility of victim impact evidence." Id. at 86-87 , 665 A.2d 223 (citing Evans v. State, 333 Md. 660 , 688, 637 A.2d 117 (1994) ). In his concurrence and dissent, Judge Robert M. Bell warned against the tendencies of certain types of victim impact evidence: It is now a well established principle of law that the introduction of victim impact evidence is constitutionally permissible, and includes any evidence which the court deems probative and relevant to sentencing.

Nevertheless, such evidence is dangerous because of its tendency to act as a super-aggravating factor. I believe, therefore, that great care must be taken to insure that such evidence does not have that effect; it should not be characterized, or be used in such a way as to trump any mitigating circumstance proven by the appellant. It ought not, in other words, be the decisive factor in determining an accused's fate. Id. at 112, 665 A.2d 223 (Bell, J., concurring and dissenting) (citations omitted).

As such, Judge Bell recognized that victim impact evidence can extend to any form that is probative and relevant, but cautioned future courts that victim impact evidence should not "be the decisive factor in determining" a sentence. Id. (Bell, J., concurring and dissenting). A few years later in Ball v. State , this Court considered whether a sentencing judge properly considered certain victim impact testimony during a capital sentencing hearing. 347 Md. at 192 -96 , 699 A.2d 1170 .

On appeal, the defendant asserted that victim impact testimony about the harm to individuals outside of the family was improper, citing to the content requirements under the former victim impact statement statute. Id. at 196 , 699 A.2d 1170 . This Court rejected that argument by noting that the statute "pertains only to written victim impact statements" and "does not, by its express terms, extend to oral victim impact testimony[.]" Id. at 197 , 699 A.2d 1170 . In distinguishing victim impact statements from victim impact testimony, the Ball Court explained that: [I]t would be difficult to conform oral testimony to the requirements of this statute.

Because written victim impact statements are prepared and reviewed prior to the commencement of the sentencing proceeding, their content can be effectively delineated by statute. Oral victim impact testimony, in contrast, cannot be controlled with such precision. Victim impact witnesses testify under great emotional strain and, in venting their pain and frustration, may make an occasional reference to the impact of the crime on individuals beyond the victim's family. Id.

After analyzing the inherent differences between victim impact statements and victim impact testimony, this Court reasoned that the permissible content list under § 11-402(e)"may provide guidance as to appropriate matters for victim impact witnesses to address orally at sentencing, [but] it should not be viewed as establishing the outer limits of that testimony such that any deviation warrants automatic reversal of the sentence imposed." Id. It is evident, therefore, that this Court previously considered that the statutory content requirements for victim impact statements serve as guidance for other types of victim impact evidence, but do not constitute strict limitations on such evidence. Overall, these precedents establish three guiding principles for purposes of victim impact evidence in Maryland. First, any victim impact evidence not strictly permitted by statute is within the sentencing judge's discretion to consider.

See Reid , 302 Md. at 821 , 490 A.2d 1289 . Moreover, videos can be relevant and probative at a sentencing hearing for purposes such as showing the personal characteristics and unique identity of the victim. See Whittlesey , 340 Md. at 86 -87 , 665 A.2d 223 . Finally, this Court acknowledged that there can and should be limitations on victim impact evidence, especially when that evidence is "prepared and reviewed" before the sentencing hearing.

See Ball , 347 Md. at 197 , 699 A.2d 1170 . Given that these Maryland cases provided no instruction as to what specific limitations should apply to discretionary victim impact evidence, Mr. Lopez implores this Court to take note of other jurisdictions that considered similar questions regarding victim impact evidence at sentencing. The federal and state cases cited by Mr. Lopez address significant questions related to victim impact evidence; however, none of the cases analyzed the first issue in this appeal. Several of the cases cited by Mr. Lopez analyzed whether a victim impact video should be excluded at a sentencing hearing because such evidence is more prejudicial than probative.

See, e.g., United States v. Sampson , 335 F.Supp.2d 166 , 187 (D. Mass. 2004) ; Salazar v. State , 90 S.W.3d 330 , 331-36 (Tex. Crim. App. 2002). Other jurisdictions addressed whether a victim impact video played at sentencing violates a defendant's constitutional rights and whether counsel's failure to object to such a video constitutes ineffective assistance of counsel.

See, e.g., State v. Hess , 207 N.J. 123 , 23 A.3d 373 , 392-94 (2011) ; People v. Prince , 40 Cal.4th 1179 , 57 Cal.Rptr.3d 543 , 156 P.3d 1015 , 1091-94 (2007). Though the Court of Special Appeals relied on State v. Leon as persuasive authority on whether a video is permissible at a sentencing hearing, the Court of Appeals of Idaho analyzed a slightly different question. 142 Idaho 705 , 132 P.3d 462 , 462-67 (App. 2006). Namely, the Leon Court determined that a victim impact video montage of photographs set to music was a permissible form of the victim's right "to be 'heard' " as permitted by Idaho's statute and Constitution. Leon , 132 P.3d at 465 .

In this appeal, we must decide whether victim impact evidence should be limited in content and whether the video in this case conveyed appropriate content for purposes of the sentencing judge's decision. Therefore, this Court will not exclusively rely on the analysis of any of the federal or sister state cases. In addition to varying questions presented, these federal cases are also distinct in another significant way: the sentencing bodies considering the victim impact evidence consisted of sentencing juries rather than sentencing judges. See, e.g. , Salazar , 90 S.W.3d at 331-36 ; Sampson , 335 F.Supp.2d at 187 ; Prince , 57 Cal.Rptr.3d 543 , 156 P.3d at 1091 -94 .

But see Leon , 132 P.3d at 462 -67 . In Leon , the Court of Appeals of Idaho specifically stressed the fact that when a sentencing body consists of a judge, the sentencing judge is "presumably able to ascertain the relevancy and reliability of the broad range of information and material which may be presented to it during the sentencing process and to disregard the irrelevant and unreliable." 132 P.3d at 466 (quoting State v. Johnson, 101 Idaho 581 , 618 P.2d 759 , 761 (1980) ). Similarly, Maryland Courts have also stressed that we have "confidence in a trial judge's ability to rule on questions of admissibility of evidence and to then assume the role of trier of fact without having carried over to [the judge's] factual deliberations a prejudice on the matters contained in the evidence which [the judge] may have excluded." Ball , 347 Md. at 194 , 699 A.2d 1170 (quoting State v. Hutchinson, 260 Md. 227 , 236, 271 A.2d 641 (1970) ). This Court has equal confidence that a sentencing judge has the experience and ability to analyze the evidence, consider its permissibility, as well as place the appropriate weight on the evidence.

Therefore, the federal cases cited by Mr. Lopez can also be distinguished from the case sub judice in that the victim impact evidence was presented to an