to identify her as a unique individual - confirmation, high school graduation, college graduation,
and coming together for the death of a parent. The pictures themselves are unremarkable. There
is no inflammatory content nor is the amount of evidence overwhelming. The objection is

overruled.

Defendant next objects to the Selma Brannon Card Exhibit. This is the last written
communication sent by Selma Brannon to her daughter before the daughter’s death. Defendant
argues that this card/letter is not descriptive of the victim or victim’s family’s loss. The court
disagrees. The victim and her mother lived far apart. Under such circumstances jurors may
question the closeness of their relationship which in turn affects the degree of loss felt by the
mother. Under such circumstances, evidence of the extent and nature of their communications
will go a long way towards defining the relationship between Joyce Brannon and her surviving
mother. This exhibit does just that. It is clear from reading it that they kept up to date about the
current events in their everyday lives and shared experiences. Similar, albeit much more
emotional, testimony as to last contacts between victims and family members has been held
properly admitted under Payne as relevant to understanding the uniqueness of the life lost and the
impact of the death on each victim's family. McVeigh at 1219. There is nothing in the content of
the letter/card to arouse unusual sympathy or passion. Selma Brannon merely describes small
everyday occurrences important to her and which apparently she and her daughter were
accustomed to sharing. She also inquires as to Joyce Brannon’s health problems. The objection is

overruled,

Next Defendant objects to the exhibits labeled Joyce Brannon Photo Album, Joyce
Brannon Sympathy Cards and Memorial Scrapbook. Defendant argues that these exhibits are in

5


some items are likely to be excludable because of their minimal probative value as compared to
their potential to elicit emotion and unfair prejudice. Some, on the other hand, may be valuable in
depicting issues such as the victim’s life history, her role in the community and the effect of her
absence in that community. Some of the exhibits we simply cannot evaluate without a specific
explanation as to why they are being offered. Because of this the objection to admission of the
Memorial Scrapbook as a whole is sustained in part. The scrapbook may be identified and
admitted in evidence but it may not be published to the jury as a whole. However, the
government is free to offer specific exhibits for which a proper foundation and purpose can be
established or has been established during the depositions. In addition, the testimony about the
compilation of the Memorial Scrapbook and the reasons for doing so is admissible as evidence of

Selma Brannon’s attempts to cope with her daughter’s death.

We last consider the Joyce Brannon Sympathy Cards Exhibit. While many of these
sympathy cards contain information about Joyce Brannon’s role in her community and are,
therefore, clearly admissible, many also contain emotional expressions of sympathy to Selma
Brannon which are of the sort likely to arouse sympathy and emotion to an unnecessary degree.
Some are merely expressions of sympathy from third parties to Selma Brannon with no particular
reference to Joyce Brannon or any particular link or connection to her or her family. They serve
only to highlight the grief Selma Brannon was experiencing. For this reason the objection to this
exhibit is sustained. Although the cards cannot be admitted as a group, that does not mean that
certain individual cards may not be appropriate. The fact of the receipt of a substantial number
of such cards also is indicative and reflective of the degree of loss to the community and,

therefore, is admissible. It is the actual content and language of some of these expressions of


however, does violate the proscriptions of Booth. “And .. and I feel .. well its something I guess
you can’t explain but I’m still very proud that Joyce spoke the truth and made the right decision,
and that she would not lie.” As the government appears to agree, this testimony does give or at

least imply an opinion about the crime. The objection to this portion of the witness’ response, is

sustained.

Defendant objects to exhibits labeled Joyce Brannon Photos A-E. Exhibit A is a 1961
confirmation picture of Joyce Brannon. Exhibit B is a photograph of Joyce Brannon, her mother,
and cousin taken at the time of Joyce Brannon’s father’s funeral. Exhibit C is a high school
graduation photograph. Exhibit D is a photograph of her either while attending or when she
graduated from nursing school. Exhibit E is a photograph of Joyce Brannon in May of 1992.
Defendant argues that only Exhibit E, which most accurately reflects her at the time of her death,
is relevant. The other photographs are not relevant and are “unfairly prejudicial.” The court

disagrees. As held in McVeigh:

Numerous witnesses, ... testified about the professional and
personal histories of victims who perished in the bombing,
including reflections on the admirable qualities of the deceased....
[T]he unique qualities of a murdered individual and his or her life
accomplishments constitute the core impact evidence describing a
victim's "uniqueness as an individual human being" allowed by
Payne. Payne, 501 USS. at 823, 111 S.Ct. 2597; see also Wiley v.
Puckett, 969 F.2d 86, 105 (Sth Cir.1992) (victim's wife properly
testified about places she and her husband had lived and her
husband's character).

153 F.3d at 1219 - 20. These exhibits are no more than pictorial representations of some of the

milestones in the victims life, i.e., the things she accomplished along the way, the things that tend


effect memorials eulogizing the victim. They contain many pictures, articles, letters and
memorabilia regarding Joyce Brannon which Defendant claims are highly inflammatory and
emotional and would tend to arouse the passions of the jury. Defendant cites United States v.
Gary Lee Sampson, 2004 U.S.Dist. Lexis 17111 (August 26, 2004) as a case in which the
government was precluded from introducing a memorial videotape that included 200 still
photographs of the victim from his birth until his death because the probative value was
outweighed by the danger of unfair prejudice; also in McVeigh, the trial court prohibited use of

wedding photographs and home videos.

The Joyce Brannon Photo Album is a compilation of photographs from Joyce Brannon as
a toddler to her high school graduation commencement documents, professional licenses,
Newsletters, Birth Certificates, and some other memorabilia. As pointed out above, to the extent
that these photographs are useful in depicting the life history of the victim, they are admissible
under the guidelines of Payne, Wiley and McVeigh. However, a good number of the photographs
in this album are of friends and family members, some with and some without Joyce Brannon, in
settings that have little probative value in proving the victim’s life history or the loss to the
family. Many of the photographs are duplicates, some are essentially duplicates - numerous
photographs of the same event and as such are not particularly probative. Many of the
photographs have descriptions or other writings on them which may or may not be objectionable
for other reasons. To admit the entire collection into evidence and submit the same to the jury
for its consideration would be an invitation to spend an inappropriate amount of time on this
aspect of the sentencing hearing. The court can certainly envision an appropriate use of many of

the photographs. For example, in her deposition testimony Selma Brannon mentions many of the

6


sympathy that must be considered on an individual basis in order to weigh probative value
against possibility of unfair prejudice. Such an individualized analysis has not been offered by

the proponent of the exhibits and, therefore, we make no ruling in that regard.

SO ORDERED ENTER: Cpt Y, IOS”

ONALD A. GUZMA
District Judge



OT

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA, ;
)
Plaintiff, )
) 02 CR 137

)
Vv. )

) Judge Ronald A. Guzman
)
)
RONALD MIKOS et al., )
)
)
Defendant. )

MEMORANDUM OPINION AND ORDER

The government intends to introduce evidence of victim impact at the sentencing phase of
the trial, if the defendant should be found guilty, through the testimony and exhibits of the
victim’s 92 year old mother, Selma Brannon. Defendant objects to much of the proposed
evidence. 18 U.S.C. § 3593(a) provides that factors which the government may prove at the
special death sentence hearing to justify the death penalty may include evidence concerning the
effect of the offense on the victim and the victim's family. Such evidence may include oral
testimony or a victim impact statement which identifies the victim and the extent and scope of
the injury and loss by victim and victim's family. In this regard the indictment contains as an

aggravating factor the following language:


facts and events which the photographs depict. These photographs may certainly be admitted and
published to the jury as they are an aid to the understanding of that testimony. The same is true
for any memorabilia, certificates, diplomas, licenses etc. which reflect any of the events or facts
in Selma Brannon’s testimony. There also may be other such items in the album which are self
explanatory even though not specifically the subject of Selma Brannon’s testimony and reflective
of some aspect of Joyce Brannon’s life. But, to allow the entire album to be published, containing
as it does many photographs the significance of which would be unknown to the jury without an
explanation and many of which are not of particular importance in the development of the
victim’s life history, would be to unduly emphasize this portion of the case. The jury could spend
hours viewing all of the photographs in the album. Certainly, the existence of the album itself,
the fact that the victim’s mother compiled the album, and the circumstances and reasons for
doing so are relevant and demonstrate the relationship of Selma and Joyce Brannon prior to the
victim’s death as well as how the loss has impacted the mother. Such evidence is clearly
admissible and can be brought out by testimony. The album itself may be marked, identified and
admitted in evidence. But the government must choose a smaller, representative number of
photographs and items to be actually published to the jury. The objection to this exhibit is

sustained in part.

The Memorial Scrapbook exhibit consists mostly of announcements of Joyce Brannon’s
death in various newspapers and newsletters, announcements of money donated to various funds
in memory of Joyce Brannon, letters to the various congregations and other groups expressing
thanks for their support, letters describing Joyce Brannon’s good works. It is difficult to deal with

all of these items clumped together. Some of the material is of little relevance. For example,


As demonstrated by victim's personal characteristics and the
impact of her death upon her family, friends, and co-workers,
defendant caused injury, harm and loss to the victim's family,
friends and co-workers.

In Payne vs. Tennessee, 501 U.S. 808 (1991), the Supreme Court held that the Eighth
Amendment does not bar the admission of victim impact testimony in the sentencing phase of a
capital trial, thus overruling Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440

(1987) :

"[V]ictim impact evidence ... is designed to show ... each victim's
uniqueness as an individual human being.”

Payne, 501 U.S. at 823, 111 S.Ct. 2597.

However, in his concurring opinion Justice Souter also recognized the possibility of
unfair prejudice which could result from the introduction of such evidence and found that the
traditional guard against inflammatory risk was the trial judge's authority and responsibility to
control the proceedings consistently with due process, on which grounds the defendant may
object or appeal. 18 U.S.C.§ 3593(c) provides that such evidence may be excluded if its
probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or
misleading the jury. As Defendant points out, unlike Fed.R.Evid. 403, this section does not
require that the danger of prejudice “substantially” outweigh the probative value in order for such

evidence to be excluded.


Defendant objects to Selma Brannon’s deposition testimony:

Q: After the funeral and you were able to contact the people who sent sympathy cards, did
you put together anything else about Joyce and her death?

AL Yes, I made another book that I had all the clippings from the newspaper. And people
would send me clippings from Iowa and Chicago, and that way we kept up in date — up to
date, different —

Q: You’ve been following the case for the last few years?
A: Yes.

Transcript P.17, Lines 11-20.

This testimony, defendant argues, informs the jury that Selma Brannon has been adamantly
following this case for years and has a personal interest in the outcome of the case. This,
defendant argues, is irrelevant testimony in that it does not describe either the victim or the
victim’s family’s loss. Further, it violates the still valid case of Booth v Maryland, 482 U.S. 496
(1987). The court disagrees. That portion of Booth which has not been overruled holds that
admission of a victim's family members' characterization of and opinions about (1) the crime, (2)
the defendant, and (3) the appropriate sentence violates the Eighth Amendment. This testimony
does not violate that holding. There is no opinion expressed about the crime, the defendant or
the appropriate sentence. Does it inform the jury that the witness has been following the case,
yes. But the compilation of clippings from the newspaper is no more than one of the ways in
which Selma Brannon has coped with the death of her daughter. It demonstrates the degree of her
loss, Testimony describing efforts to cope with loss by the family and relatives of a deceased
victim has been held admissible. U.S. v. McVeigh 153 F.3d 1166, 1221 (10" Cir.1998) (citing

Payne, 501 U.S. at 827). This objection is overruled.

The following testimony from Page 19, Lines 2-5 of Selma Brannon’s deposition,

3