Md. high court will weigh constitutionality of victim-impact statement

ANNAPOLIS – Maryland’s top court will consider whether a videotaped, set-to-music victim-impact statement designed to stir a sentencing judge’s emotions violated a criminal defendant’s federal constitutional rights to due process and to be free from arbitrary and capricious punishment.

The Court of Appeals on Tuesday agreed to hear Curtis Maurice Lopez’s appeal of his double life-without-parole sentence for the 2011 beating deaths of his estranged wife, Jane McQuain, and her 11-year-old son, William, in Germantown. Lopez also received a 30-year sentence for having kidnapped the boy before killing him and a concurrent 12-year prison term for having robbed McQuain of her car and other belongings.

Montgomery County Circuit Judge Mary Beth McCormick sentenced Lopez in June 2013 after prosecutors showed her a six-minute video that featured about 115 photographs chronicling the lives of McQuain and William set to the sound of church bells, instrumental music and a soft-rock song. The video also had a title screen, “The Story of Jane and William,” and closing credits, according to court papers.

Lopez’s attorney, in successfully seeking high-court review of the punishment, argued the video’s appeal to the judge’s heart rather than her mind deprived Lopez of his 14th Amendment right to due process and Eighth Amendment right to an individualized determination of sentence that would not be cruel and unusual.

“Setting the presentation of photographs to emotionally-stirring music added no probative value to the video but significantly enhanced the risk of prejudice,” Brian L. Zavin wrote. “Film composers have long known of the power of music to appeal to – and even subconsciously manipulate – an audience’s emotions. Such tactics have no place in the courtroom.”

The video “was a well-produced eulogy for the victims that is appropriate for a memorial service, not a trial,” added Zavin, an assistant Maryland public defender.

He cited the U.S. Supreme Court’s 1991 decision Payne v. Tennessee, in which the justices held that a victim-impact statement is generally constitutional unless it is “so unduly prejudicial that it renders the trial fundamentally unfair.”

Zavin noted that McCormick, after seeing the video, said that “it’s nice to know that she (McQuain) had so many friends in her life and William’s as well.” Citing Lopez’s earlier conviction for attempted murder in Pennsylvania, McCormick added that “’it is too bad the death penalty is no longer available, as the circumstances of this case and your criminal history would warrant that penalty,’” Zavin said.

“Although the (circuit) court did not specifically reference the video montage, neither did it deny that it played any role in its decision to impose consecutive sentences of life without the possibility of parole,” Zavin wrote.

An attorney for the state, in a failed effort to convince the high court not to hear Lopez’s appeal, said the victim-impact video did not “unduly” prejudice Lopez.

Quoting from the Payne decision, Assistant Maryland Attorney General Mary Ann Ince argued “the state has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.’”

Lopez, in his circuit court plea, did not contest the state’s evidence that he killed McQuain in October 2011 by bludgeoning her with a 30-pound dumbbell and stabbing her with a knife as she slept and then took her car and other belongings. That same morning, Lopez picked William up from a friend’s house, drove him into the woods and beat him to death with a baseball bat, according to the evidence presented before Lopez’s Alford plea.

The intermediate Court of Special Appeals uphold Lopez’s sentence in a reported opinion in February, prompting him to seek review by the high court.

The Court of Appeals is expected to hear arguments in the case in October and render its decision by Aug. 31, 2018, according to the clerk’s office. The case is docketed at the high court as Curtis Maurice Lopez v. State of Maryland, No. 15 September Term 2017.