-117- Most notably, the only type of victim impact evidence addressed in Payne was one witness's evidence describing the impact of the capital crimes on a family member who was personally present during, and immediately affected by, the capital murders. California Penal Code section 1191.1 is consistent with Payne. It provides in pertinent part that '"the next of kin of the victim if the victim has died" may appear and testify "at the sentencing proceeding...."

This use of the evidence was improper and fundamentally unfair. Moreover, the quality and quantity of the evidence itself went far beyond that authorized by Payne or by Penal Code section 1191.1. None of the witnesses stood in the position of the single witness at issue in Payne, i.e., a member of the homicide victims' family offering brief comment on the impact of the deaths upon another family member who was present at the scene of the crime.