State v. Bartholomew

outcome of the case. JJ.,

Brachtenbach, Dore, Dimmick, concur with J. Dolliver, May 24, 1984.] En 48346-9. Banc.

[No. Respondent, Dwayne Washington, The State of Appellant. Bartholomew, Earl for Douglas Tufts, appellant. K. Ford and Timothy Attorney, and Chris Prosecuting Griffies, H. William Deputy, respondent. Criminal Quinn-Brintnall, Chief was Bartholomew Earl Dwayne J. Defendant Pearson, received a murder and first degree aggravated convicted review, 1981. On automatic in December of death sentence conviction, but 10.95.100, we affirmed the to RCW pursuant of the portions we found when his sentence reversed Four Eighth of the violation statute punishment The United States Amendments. teenth found certiorari, judgment vacated our a writ granted (1982), P.2d 1170 Bartholomew, 98 Wn.2d State (1983), and Ct. 3548 denied, 103 S. cert. Zant v. light for reconsideration the case remanded Ct. 2733 L. 2d Ed. Stephens,_U.S.__, set forth adequately are in this case The facts at 177-80. Bartholomew, 98 Wn.2d State I A pun- provisions whether first consider We under 10.95, remain invalid statute, RCW ishment light after reconsideration Constitution United States the death modified prior Our decision Stephens. Zant v. ways. significant statute three penalty 10.95.060(3) authorizes First, of RCW portion the criminal prior of a defendant's of evidence the admission convictions) with the (other is inconsistent activity than articulated. we have standards Amendment Eighth the authorizing provision the Therefore, we invalidate crim- previous of the defendant's of "evidence admission has of whether activity regardless inal activity." a result of such as or convicted charged been That without may be severed statute of the portion the statute. remainder of validity of the the affecting RCW 10.95.900. in RCW 10.95.060

Second, remaining provisions the be construed 10.95.070 must of RCW provisions the and subject we have strictures Amendment the Eighth the liberal author- Specifically, opinion. in this identified ity provided 10.95.060(3) rele- "any receive RCW by evidence mitigating limited must be evidence" vant RCW under mandate liberal Similarly, jury's only. lim- be shall factors" "any relevant to consider 10.95.070 of evidence only. factors The admission ited to of by jury factors and consideration aggravating to maintain factors must be restricted aggravating constitutionally Specifi- required channeled discretion. must factors nonstatutory cally, evidence such evi- limited to defendant's criminal record and as factors additional dence of balancing the court to the may by pursuant be admitted +aq+ Qn+ qnnttp mTtn 10.95.060(2) that Finally, provision RCW state- opening shall be allowed to make an prosecution ment and shall first limited must be present evidence in most means that opinion. with this This accordance may prosecution evidence with which only cases the In the event that record. open is defendant's criminal defendant convicted which sentencing jury is not may in murder, prosecution first aggravated degree and circumstances of the facts present addition murder, paragraph the second provided 10.95.060(3). 98 Wn.2d at 198-99. interpretation on our prior

We based this decision and Eighth interpreting Court's decisions Amendments, establishing procedural Fourteenth Texas, v. cases. Jurek punishment in requirements (1976); Gregg Ct. 2950 L. Ed. 2d 428 U.S. L. Ed. 2d 96 S. Ct. 2909 Georgia, v. 428 U.S. L. Ed. 2d Georgia, 408 U.S. (1976); Furman v. us, then, before question 92 S. Ct. 2726 than a different result Stephens mandates whether Zant it does not. We hold that this case. decision state court found Georgia a Stephens, In Zant penalty. the death imposed of murder guilty defendant statute, must punishment Georgia capital Under the circumstance statutory aggravating one find that at least it can doubt before a reasonable proved beyond been has At the sen- Ct. at 2737. death. 103 S. someone to sentence the trial, writing the jury designated phase tencing it found. 103 S. circumstances statutory aggravating three the circumstances aggravating Ct. at 2737-38. One of his- had '"a substantial the defendant was that jury found Ct. criminal convictions"'. assaultive tory of serious pending was before appeal at 2738. While the Court, in another case that court held the Georgia Supreme circumstance —a substantial statutory aggravating that criminal convictions —was assaultive history of serious State, Arnold v. Ga. unconstitutionally vague. appeal, In the defendant's 539-42, 224 S.E.2d 386 finding whether this considered Supreme Georgia sentence. The Georgia death impaired the defendant's two other circum- aggravating court concluded the sen- adequately supported by stances found Supreme the United States question before tence. The multiple of one of the the invalidation Court was whether by a found statutory circumstances aggravating that the sentence must requires imposing penalty the death Amendment. Eighth invalidated under the court, Georgia affirming In its decision requirements constitutional Court clarified the meet: factors must statutory aggravating narrow genuinely circumstance must [A]n the death penalty persons eligible the class of of a severe reasonably imposition more justify must to others found compared sentence on guilty of murder. omitted.)

(Footnote at 2742-43. fac- Aggravating 103 S. Ct. Washington function under the narrowing such a tors serve Washington capital punishment statutory scheme. in Zant statute considered Georgia from the statute differs requires scheme Washington Stephens guilt factors at the determina- consideration required as than at the phase, tion rather statute, of Washington Under statute. Georgia murder, the jury first degree persons guilty that class of only aggravat- if one of the penalty the death may consider also found in RCW 10.95.020 is set forth circumstances ing persons subject class of narrows the This genuinely to exist. constitutionally required. penalty to the death 636 on to indicate that a in Zant v. went Stephens

The Court factors will nonstatutory aggravating jury's consideration of unconstitutional: not render a death sentence a constitu- play [Statutory circumstances aggravating . . . But the Constitution function tionally necessary does not statutory] aggravating possible other ignore to require [non- process selecting, in the factors class, who will actu- defendants from those among death. ally be sentenced to

(Footnote omitted.) This statement at 2743. 103 S. Ct. Prior to Zant v. our decision. prior some to significance decision, constitu- prior time of our and at the Stephens factors aggravating on the admission placed tional limits In open question. prior our decision cases were an capital Oklahoma, v. 455 U.S. 71 L. Eddings we noted that (1982), Ohio, v. Lockett 438 U.S. S. Ct. 869 Ed. 2d 102 (1978), S. Ct. 2954 and other L. Ed. 2d require decisions admission of recent Supreme by a defendant proffered information nearly mitigating all 98 Wn.2d at 194-95. We sentencing hearing. at " reception liberal of mitigating such also noted [w]hile Ohio, al, Lockett v. et mandated information is whether the same specifically considered yet Court has not 98 Wn.2d at 194- factors." principles apply aggravating to 95. question answers the Stephens Zant v. way, a limited on the places prosecution's

as to limits the constitution factors at presentation nonstatutory aggravating According case. of a sentencing phase may consider nonsta- Court, sentencing jury v. However, in Zant the Court tutory factors. fac- say does not Stephens reception liberal should have the same tors sev- There remain by the defendant. proffered information on the admission limits federal and state constitutional eral federal and factors. These such aggravating of evidence of the same results mandate requirements state constitutional prior in our decision. reached standards which federal constitutional

The first of these prejudicial decision is that evidence support the sentencing must not be admitted at v. Stephens in Zant In its recent decisions phase. Ramos,_U.S._, 77 L. Ed. 2d California (1983), this acknowledged "prejudice" the Court Ct. 3446 Gregg from by noting following quotation standard 153, 203-04, 49 L. Ed. 2d 96 S. Ct. Georgia, 428 U.S. (1976): Georgia wisely that the court has chosen not We think impose be offered at such unnecessary restrictions on the evidence that can

a and to hearing approve open long ... So as the evidence argument. far-ranging at arguments and the made the presentence introduced not a it hearing prejudice defendant, preferable do is restrictions. We think it desirable for the impose not to possible much information before it as jury to have as decision. sentencing when it makes the (Italics ours.) 2748; See Zant v. 103 S. Ct. at Stephens, Ramos, Ct. at n.23. California quotation Gregg cited this from the Court has Although concept prej- how the past, explain it has failed to capital of a operates unique sentencing udice context Likewise, and other procedure. Stephens Zant recent clarify concept. have failed to this Supreme Court decisions statute, Nevertheless, penalty provisions with a death faced Amendment, Eighth we under the of which find offensive constitution, Amendment, state we Fourteenth and our clarify concept. to this Supreme cannot wait for the Court opinion "prejudice" concept subjects It is our that this standard than that of the prosecution stringent to a more of a case. As we sentencing phase defendant at the noted decision: could be said

Conceivably, any information aggravating defendant, presumably a but prejudice to undue or unreasonable concept intended to restrict prejudice. a defendant to least, recognition At the the Court's very reception infor- may prejudiced that different criteria suggests at his sentencing mation apply than to factors apply to factors. in Zant v. Stephens decision Wn.2d at 195. The Court's from our this conclusion which contradicts

says nothing prior decision. evi- the admission

Another standard for Court's deci- reading of the dence comes from our 349, 51 L. Ed. 2d Florida, U.S. in Gardner v. sion (1977). Gardner, Florida court sentenced In 97 S. Ct. 1197 a sen- part on death, its decision basing a defendant never dis- officers but by probation tencing report prepared the defendant's overturning closed to the defendant. for accurate and the need sentence, noted death the Court reliable information at

cases. and to importance

It is of vital sen- the death impose decision to community any than be, on reason rather based be, appear tence emotion. caprice or quality, to the given must be

. . . [Consideration which the on of the information quantity, well as the . . . rely. may judge jury] sentencing [or to use such important it If, argues, as the State must assume we sentencing process, in the information choice in the judge's decisive cases it will be some If it tends sentence. a death life sentence and between a informa- life, the presumably in scales favor of tip the no reason would be and there be favorable tion would hand, if it is the other disclosed. On it should not be why the basis for a reliability in sentence, interest the death in the preserving interest the State's outweighs plainly availability cases. other information comparable of opinion). (plurality U.S. at 358-59 430 us persuade Supreme of the recent decisions These of all exclusion for the broad except decision, as set forth our circumstances analysis federal constitutional in error under we were not 10.95.060(3) which of RCW portion the down striking to consider allows the

639 evidence which it deems have any relevant [the court] under the regardless admissibility its probative value of hearsay and evi- evidence, including rules of activity criminal previous dence the of charged or has been whether regardless convicted as a defendant of activity. result such of ours.) (Italics in our of

Nevertheless, if we are in error consideration do decisions, we not suggests, these federal as the dissent 10.95.060(3) of portions hesitate to those hold (due 1, pro- above article sections 3 quoted are offensive to cess) (cruel 14 Washington of the State punishment) Constitution.

B due interpretation process We note that our punishment cruel of our constitution clauses state interpretation not constrained Court's Supreme have, in Eighth and Fourteenth Amendments. We Const, pro art. 14 interpreted provide broader past, § than Supreme interpretation tection Court's Fain, State 94 617 P.2d Amendment. v. Wn.2d Eighth (1980). Additionally, due interpreting process 720 constitution, we have repeatedly clause of state noted Fourteenth interpretation Court's interpretation not state Amendment does control Prods., Forest Olympic process constitution's due clause. 418, 511 P.2d 1002 Corp., Inc. v. Chaussee 82 Wn.2d (1973); Petstel, King, Inc. v. 77 Wn.2d 459 County of P.2d 937 Chrisman, v. 100 Wn.2d recently we stated State

As (1984): 817-18, P.2d 419 676 protec- minimum only provides The federal constitution is well estab- Accordingly, it rights. tion of individual not limit from federal courts "do that decisions lished the rights." . . . greater courts to accord right state (1978); 45, 49, Hehman, 578 P.2d 527 90 Wn.2d State Fitzsimmons, 858, 859, P.2d Wn.2d State Publications, Kurtz, Inc. v. 94 Wn.2d Shopping (1980); Federated (1980); also Pruneyard see 615 P.2d g40 Robins, 741,

Ctr. v. 64 L. Ed. 2d 447 U.S. Hass, (1980); Oregon v. 43 L. 420 U.S. Ct. 2035 Brennan, State (1975); see also Ed. 2d 95 S. Ct. 1215 Rights, and the Protection Individual The Constitutions of New Federal- Wilkes, (1977); L. 90 Harv. Rev. 489 State Court Evasion ism in Criminal Procedure: of Court, Burger (1974), cited Ky. L.J. and cases therein.

We, therefore, and cruel process hold that due are punishment provisions of this state's constitution 10.95.060(3) any case provisions offended of RCW (1) capital punishment by allowing the introduc involving any admissibility of evidence of its under regardless tion evidence, (2) evidence, hearsay including the rules of activity criminal by allowing evidence of whether defendant was or convicted regardless charged activity. as a result of such penalty punishment,

Since the death is the ultimate due requires under this state's constitution process stringent fundamentally pro- so that a fair procedural safeguards impo- trial which results in ceeding provided. Where the fairness, penalty the death lacks fundamental sition of punishment violates article section of the state consti- tution. concept

We deem offensive to the of fairness particularly reli- a which evidence is allowed which lacks proceeding admissibility The this ability. concerning rules of court evidence are evidence which is trust- premised allowing on See ER reliable, worthy, unreasonably prejudicial. and not any of evidence is afford purpose 403. rules See ER 102. a fair litigant proceeding. protections

It to afford these to one makes no sense suspend lesser crime but then them a charged with a so, place case. We will not do for this would a perilous position in the facing penalty defendant death unreasonably unreliable or having potentially to rebut con- already that has prejudicial before suspend protec- him murder. To these aggravated victed criminally charged are afforded all other tions which case is con- phase a critical of a defendants at such reliability evidence standard embodied trary to the Const, art. clause of our state constitution. process the due 1, §3. process portion to state due

We also find offensive 10.95.060(3) the admission of "evi- which authorizes RCW activity regard- criminal previous dence of the defendant's or charged has been less of whether the defendant activity." convicted as a result of such rarely that such evidence is admissible again We note See ER limited circumstances. except criminal trials under 404(b). type on this of evi- The reason for the restriction usually ques- dence is that it is and of highly prejudicial See we decline Again, tionable relevance. ER 403. capital in a case afforded all other suspend protections analysis criminal defendants. We adhere to the from our prior regarding admissibility decision of such evidence: however, where the apply,

Different considerations seeks to other prosecution put prior activity criminal Here, the element of jury. than convictions before held that looms At least one court has prejudice allowing larger. murder, which jury previous to consider a convicted, was so the defendant was accused but never of due State prejudicial process. as to be a violation [(1979)]. N.E.2d 276 272], McCormick Ind. [272 convicted defendant of jury To allow the which has murder to consider evidence of degree first aggravated other crimes of which defendant is,

has not been convicted defendant. unreasonably prejudicial in our opinion, crime A defendant of a which has convicted a weigh unlikely fairly impartially effect, to allow such evidence is offenses. prior alleged to the burden of of his life peril who stands impose upon a defendant already that has before the defending, him, activity. criminal Informa- charges new convicted there- past criminal should to defendant's relating tion fore be of convictions. limited to his record Wn.2d at 196-97. decision, portion conclude, in our We such evi- 10.95.060(3) the admission of which allows 1, sections 3 and case violates article dence State Constitution. Washington prosecution's pres- we limit the prior opinion, As evi- statutory entation of First, ways. following at the dence 10.95.060(3) authorizes of RCW portion crimi- alleged prior evidence of a defendant's admission of (other convictions) with the activity than is inconsistent nal this court and the state promulgated by rules of evidence constitutional standards we have articulated. and federal Therefore, authorizing provision we invalidate criminal previous of "evidence of the defendant's admission has of whether been activity regardless activity." as a result of such or convicted charged Second, in RCW 10.95.060 and remaining provisions subject must be construed of RCW 10.95.070 provisions constitu- evidence and the state and federal to the rules of opinion. Specifi- in this tional strictures we have identified 10.95.060(3) authority by RCW cally, provided the liberal miti- must be limited to "any to receive relevant evidence" mandate Similarly, the liberal only. jury's evidence gating factors" "any to consider relevant under RCW 10.95.070 only. factors The admission mitigating shall be limited to by the evidence of factors and consideration aggravating to meet the factors must be restricted jury and federal constitutional standards evidentiary, and state evidence of Specifically, we have articulated. must defendant's criminal factors be limited to

record, been admissible at the evidence that would have in mitiga- rebut matters raised phase, and evidence to guilt This rebuttal evidence must meet by tion the defendant. test in our decision: prior found following balancing be entitled to prosecution should opinion, our evi- necessary mitigating to rebut produce information right Defendant's by dence defendant. produced by the only is limited mitigating evidence present . . relevance. . requirement of trial court to evaluate the require will holding

This

Q43 prosecution. rebuttal evidence offered evidence should be Rebuttal only if admitted it is relevant to a mitigation by might matter raised defendant. Evidence upon relevant, instance, be ability if it casts doubt the reli- mitigating of defendant's evidence. We do not prosecution permitted intend, however, that produce any long points evidence it cares to so as it slight some element of rebuttal no matter how or inci- determining dental. The court whether to admit the prosecution's apply balancing evidence should a test sim- contemplated by ilar to that ER 403. The must court balance the extent to which the evidence tends to rebut against information the extent to prejudicial which the evidence is otherwise to defendant. Only outweighs if the rebuttal value of the evidence prejudicial effect should the evidence be admitted. 98 Wn.2d at 197-98. clarify possible misunderstanding

Third, to in our prosecution may present decision, sentencing at the any phase relating statutory aggravating to the factors set forth in RCW 10.95.020. Such evidence is admissible at the if it would have been guilt phase admissible at the of the trial.

Finally, provision 10.95.060(2) in prosecution opening shall be allowed to make an statement present and shall first evidence must be limited in accord- opinion. ance with this This means that in most cases the prosecution may open only with the defendant's criminal record and evidence which would have been at admissible guilt phase prior opinion, of the trial. As noted sentencing the event that is not the which aggravated degree convicted the defendant of murder, first prosecution may present addition evidence of the provided by murder, facts and circumstances 10.95.060(3). paragraph second of RCW sentencing proceeding in which in defendant this by case was sentenced to die was tainted these constitu- tional flaws we have identified. Evidence was admitted of activity alleged criminal of which the defendant had not Nonstatutory aggravating been convicted. information was constitutionally required. reliable as not determined to be the state interpretation of both Our decision rests on an However, state independent constitutions. and federal in adequate, have articulated are grounds constitutional we themselves, have reached. compel the result we and of 1201, 103 77 L. Ed. 2d Michigan Long,_U.S._, See (1983). Therefore, any decision S. Ct. 3469 in a manner guaranties federal constitutional limiting Const, art. interpretation inconsistent with our §§ in on our decision this case. bearing 14 will have no our requires of this case consideration Our resolution were not addressed additional issues which two decision: key which indicated that

1. results polygraph Must important piece to an respect witness lied prosecution sentencing phase? testimony be admitted at the circumstance" for "mitigating 2. failure to define Was the a violation of the state or sentencing phase at the federal constitution? two following issues address these additional

We sections.

II results polygraph whether or not the issue of resolving case, the of a admissible at the are are relevant. from defendant's trial following facts Bartholomew, was the brother, Rodney Defendant's Rodney testified as follows. witness. prosecution's principal girl he and his friend evening August On the Defendant was laundry. do their laundromat went to a arrived. they lot when parking in his car sitting sat with the defend- laundry, Rodney waiting While that he intended to Rodney told ant in his car. Defendant Rodney girl and his and "leave no witnesses". place rob the it shortly before p.m., at 9:45 left the laundromat friend any defendant Rodney helping denied was due to close. robbery. way with was 23, 1981, Rodney given Bartholomew September

On

645 questions tests. Two relevant polygraph deception four First, you any way the tests. "Did during were asked Dwayne to rob the laundromat on 1981?" help August Second, 1, 1981, you "On time were and August any at Dwayne Rodney inside the laundromat at the same time?" responded negative questions. polygra- to both The concluded, phist deceptive "The subject being above was when the relevant with a answering questions negative A Rodney's girl answer." similar examination was to given friend, the according results of which were "inconclusive" did polygraphist. prosecution The not disclose to results, defendant these tests had been or the given, sentencing phases until after the of defendant's guilt trial. decision, we held that the nondisclosure of examinations did not violate defendant's due polygraph However,

process rights require so a new trial. question polygraph whether results should be admissible at a was reserved. 98 sentencing proceeding specifically Wn.2d at 204 n.3. Washington capital punishment requires statute

admission at the sentencing phase "any relevant evi- it probative dence which deems to have value regardless admissibility under ..." its the rules of evidence 10.95.060(3). We have restricted this to evidence provision Therefore, in mitigation punishment. only probative which is not or not relevant is excluded at the circumstances, phase. With sentencing regard mitigating value probative less restrictive standards for relevance sentencing phase are to exclude evidence at applied guilt phase. than at the Ohio, L. 2d

In Lockett v. 438 U.S. 57 Ed. (1978), plu- for the Burger, writing Ct. 2954 Chief Justice evi- the rule for the admission of rality, stated cases: dence at the Amend- and Fourteenth Eighth conclude that [W]e precluded . . . not be the sentencer require ments any aspect of a mitigating factor, as a considering, from any of circum- character or record and proffers as a of the offense that stances death. basis for a sentence less than omitted.) (Footnote Eddings also at 604. See U.S. Oklahoma, L. Ed. 2d 102 S. Ct. 869 455 U.S. briefly poly-

We dealt with the issue of the admission of at phase examinations graph sentencing 502-03, Grisby, State v. 97 Wn.2d 647 P.2d case value, However, Grisby precedential little since has penalty death statute involved in that case has since the Also, statute, penalty death repealed. been the former 10.94, present from the statute. significantly differed examination results are polygraph We hold that of phase defense at the sentencing admissible the State v. 96 cases, Renfro, certain restrictions. subject to denied, 902, 906-07, cert. 459 842 Wn.2d 639 P.2d U.S. (1982), requirements admissibility we for the of set forth stipu parties examination results where the had polygraph adopt require to their We two of those lated admission. admissibility of polygraph ments as standards the at of cases. sentencing phase examination results the if First, may accept the trial refuse to such evidence judge examiner or that qualified he is not convinced the Second, if was conditions. proper the test conducted under evidence, examiner's are offered graphs opinion the and shall have the to cross-examine opposing party right (a) respecting: qualifications training; examiner his (b) administered; under was the conditions which test (c) of and for error the tech- possibilities the limitations (d) of at discretion nique polygraph interrogation; any pertinent trial other matter deemed judge, of the inquiry. the question is faced with jury

It is our belief that when death, put or should be whether not his any to submit evidence of defendant should be allowed any record and circumstances "character or Ohio, .", . . v. 438 U.S. at convince Lockett offense

647 spared. that his life should be Ill argues that Defendant the court's failure to define "miti- gating for the circumstance" at Eighth awas violation of the Amendment. Defendant cites (5th 1981) Spivey support Zant, F.2d Cir. easily argument. Spivey distinguished his v. Zant is from present Spivey The case. trial court's instructions exclusively jury's Zant dealt almost with the consideration being factors, no con- reference made to the sideration 661 F.2d at circumstances. 467-68. Appeals The Fifth Circuit found this reversible error. (5th 1979) Dictionary

Black's Law rev. ed. defines "mitigating circumstances” as follows: [Mitigating circumstances are con- which] those do not justification question,

stitute a but or excuse of the offense in may mercy, which, in fairness and considered extenuating reducing degree culpability. or of moral present zealously case, In the the trial court followed requirements sentencing phase. of RCW 10.95 in the provided, part: court's instruction During special sentencing proceedings, these the State beyond proving bears the burden a reasonable doubt mitigating that there are not sufficient circumstances to leniency. merit interrogatory In instruction 3 the trial court recited the 10.95.060(4): provided in RCW Having in mind the crime of which the has defendant guilty, you beyond been found are convinced a reasonable mitigating doubt that there are not circum- sufficient leniency? stances to merit jury

The court fac also read the list the of relevant provided jury tors may consideration in RCW 10.95.070. helpful "mitigating have found a definition circum However, stances." we conclude these that instructions adequately guided jury nature the to the and function mitigating Therefore, circumstances. there was constitu- no error this issue. tional on entirety. in its Defendant's prior

We affirm our decision affirmed, invali- but his sentence of death is conviction is the majority dated. deference to the view of consequence sentencing decision on the reversal the for a new this case is remanded to trial court phase, impose to the sentencing to consider anew whether hearing death sentence. C.J., Stafford, and Brachtenbach, Dolliver,

Williams, Tem., JJ., J. Pro concur. Cunningham, part, dissenting part)— J. (concurring Rosellini, prosecution to to majority's While decision limit statutory may justified evidence of factors be need jury's the initial of a stages sentencing proceeding, validity evaluate mitigation to of defendant's standards, placed once defendant has requires more liberal in issue. Because the aspect majority's an of his character right to rele- rule restricts the State's introduce unfairly evidence, vant, I dissent. reliable rebuttal with lies with My majority its insis- disagreement applied must strictly, rules of evidence be tence that all proceeding, evidence introduced sentencing an State, allowing while at the same time defendant unlim- I believe this mitigating to introduce evidence. right ited the information unnecessarily improperly rule narrows With presented by defendant. jury available to the it, rationally resolve cannot only jury one side before it to RCW 10.95- the statute address. question requires .060(4) ques- following shall answer the states that tion: has in mind the of which

"Having crime beyond a reasonable you are convinced been found guilty, circum- sufficient doubt there are not leniency?" stances to merit principles basic process and truth-seeking

Both the all relevant exposed fairness dictate death impose whether the deciding reliable evidence sentence. in its Neither impartial application.

The law should be any advantage should have the State nor relevant, If the evidence is reliable presenting evidence. evidence, By it should be the permitted. denying rebuttal evidence, admissibility of reliable the sanctions a majority effectively situation where the is denied information duty. vital to its decision to its This result is discharge State, involved; public unfair to all the the the and jury, those the defendants who commit similar acts but receive death sentence because their crimes resulted convictions.

Moreover, with majority's position clearly conflicts Court, the mandate of the United States which encourages liberal admission of has evidence. That Court stated: wisely

We think that not to Georgia court has chosen impose unnecessary restrictions on the evidence that can be offered at such a far-ranging and to hearing approve open and ... So

argument. long the evidence introduced and the arguments made at presentence hearing do not prejudice defendant, it preferable is impose not to restrictions. think We it desirable for jury to have as much information before it as possible when it makes sentencing decision.

(Italics mine.) 203-04, Gregg Georgia, 428 U.S. 49 L. (1976). Ed. 2d 96 S. See Zant v. Stephens,_ Ct. (1983) U.S.__, 77 L. Ed. 2d Ct. 103 S. Ramos,_U.S._, 77 L. Ed. 2d California Ct. 3457 n.23

Finally, majority's independent reliance on state grounds misplaced. process requires jury's Due By beyond decision be based on reliable information. going deny applying arbitrary this standard rules which facts, complete majority's opinion undermines very due I process analysis. foundations of therefore that portion opinion dissent from that restricts evidence in uncharged State's use of crimes rebuttal. part) in (concurring part, dissenting J. in —The Dore, and remanded this Supreme United States Court vacated Bartholomew, 173, in v. 98 court's State Wn.2d judgment (Bartholomew (1982) I), cert. 654 P.2d 1170 denied, (1983), in of light 103 S. 3548 to be reconsidered Ct. 235, L. Ct. Zant v. 77 2d S. Stephens,_U.S._, Ed. 103 (1983). 2733

Nonstatutory Aggravating Evidence I in prior This court's decision Bartholomew invalidated statute, 10.95, capital of provisions punishment RCW nonstatutory of aggravating which allowed the admission of cases. Bartholo- evidence at the prior I to nonstatutory aggravating mew limited the factors raised in mitiga- convictions and evidence rebut matters to I, Bartholomew at 198-99. by tion the defendant. II, that in to hold majority,

The Bartholomew continues after RCW 10.95 remain invalid reconsid- provisions of these majority of Zant. The indicates that light eration evidence are man- nonstatutory aggravating on restrictions the due either federal constitutional standards or dated our punishment cruel clauses of state consti- process and tution. analysis federal constitutional stand- majority's of Gregg found in is founded on standard "prejudice"

ards Georgia, U.S. L. Ed. 2d 96 S. Ct. 428 49 denied, 158, 97 197 L. Ed. 2d S. Ct. reh'g U.S. (1976), evidence" standard found "reliability and the of 2d Florida, 51 L. Ed. Gardner U.S.

Ct. 1197 reconsideration, and The Zant decision that initiated decisions, estab- Supreme United States subsequent Gregg Gard- lish and majority's interpretation ner this court's invalidation clearly is erroneous statute, portions Washington punishment the United States 10.95, under be sustained cannot Eighth Amendment. interpretation Court's not restrict Zant does holds that constitution aggravating consideration of factors jury's impose whether or not to a sentence of death. deciding [Statutory play circumstances a constitu- tionally necessary function at the def- stage legislative they persons inition: circumscribe the class of eligible for the death But the Constitution does not penalty. require ignore other possible factors class, the process selecting, among that those from who be sentenced to death. actually will defendants (Italics mine.) Zant, 103 S. Ct. at 2743. Gregg, the Court in Zant concluded that construing substantive constraints on evidence is aggravation the State must make known defendant such to the proceeding such evidence cannot Otherwise, prejudicial. preferable it impose not Zant,

restrictions. 103 S. Ct. at 2747-48. The fur opinion ther holds that it is error to permit, as evidence of aggra circumstances, conduct which vating constitutionally is protected. Zant, 103 S. Ct. at 2746. _ Ramos,

In U.S._, L. 77 Ed. 2d California (1983), 103 S. Ct. position 3446 Court reiterated its stated in Zant that the constitution does not restrict jurors from considering aggravating factors: Once the finds that defendant of falls within the defined legislatively category persons for eligible . . . penalty death then is free to consider a myriad of factors to determine whether death is the punishment. appropriate

Ramos, 103 S. Ct. at The 3456. Court indicated that Gregg opinion did not undertake to dictate to the State the particular substantive factors that should be deemed rele- vant to the sentencing decision. The Court stated only that substantive limitations on the fac- particular may tors that a sentencing jury they consider are that not be prejudicial or evidence that the defendant has had no opportunity deny. Ramos, explain or 103 S. Ct. at 3453- interpreted 54. The Court Gardner the rule of as follows: Gardner, In the Court reversed a death sentence that imposed part had been on the basis of a confidential that had not investigation report of a portion presentence the defendant or his counsel. been disclosed to either have potential might Because of the that the sentencer erroneous or inaccurate part rested its decision on opportunity the defendant had no information explain sen- reliability deny, or the need penalty that the death be reversed. tencing dictated Ramos, Ct. at 3454. Florida,_U.S._, L. Ed. 2d Barclay (1983), the United States

S. Ct.

stated: never the United States Con- suggested

We have requires sentencing process should stitution of stat- rigid parsing transformed into a utory and mechanical factors. II, in Bartholomew that nonstatu- majority's holding The (other or than convictions tory evidence rebuttal) sus- cannot be unconstitutionally prejudicial, Gardner. The constitution Gregg or tained on the basis consideration at prohibit does not statutory to either directly aggra- related information not factors, so as that infor- statutory long or vating the character of the defendant or the mation is relevant of the crime. circumstances opinion next addresses state constitutional majority pun- and holds that the due and cruel process

protections by the provisions provisions are offended ishment (1) 10.95.060(3) any involving capital punishment case of its any regardless the introduction of allowing evidence, hearsay including admissibility under the rules of (2) of defendant's evidence, and evidence allowing defendant was of whether activity regardless criminal I activity. While am of such convicted as a result charged or it does not follow holding, this with general agreement nonstatutory evi- aggravating receive authority to mitiga- evidence rebuttal of must be confined dence are admissibility of evidence governing tion. The rules

653 premised on allowing evidence which is trustworthy, reli- able, unreasonably and not prejudicial. The purpose these rules is to afford a a fair litigant trial and insure compliance with the constitutional guaranties of due pro- 10.95.060(3) portion cess. The of RCW that authorizes the admission of evidence of a alleged prior crimi- (other convictions) nal activity than is inconsistent with these rules of evidence and state constitutional standards. Admissibility of such evidence unreasonably is of such an prejudicial nature 1, as to be violative of article section 14 of the state constitution. Courts in some jurisdictions have questions considered similar under varying circumstances, and for varying reasons reached the same result. E.g., Scott State, 297 Md. 465 A.2d (1983); Perry 1135-36 State, (Fla. 395 So. 2d 1980); State, Cook v. (Ala. So. 2d 1978); McCormick, State v. 272 Ind. 397 N.E.2d I find appropriate it place a blanket of inadmissibility on such evidence.

However, I see no basis for holding rules of reli- ability and prejudice mandate that we limit nonstatutory (other convictions) evidence than matters rebuttal of mitigating evidence. Due process requires that the sentencing jury's decision be based on reliable and nonprejudicial evidence. Basic fairness in the balancing process between aggravation mitigation requires jury to consider all evidence, admissible whether proposed by the State or defendant. State constitutional guaranties do not mandate that the State's nonstatutory limited to rebuttal evidence of mitigation. The majority unfairly rule restricts the State's right to introduce relevant, reliable evidence.

I would provide admissibility aggra- vating governed evidence be by evidence, the rules of its admissibility be determined the trial court at I sentencing phase. see justification no basis or to broaden protections of the state beyond constitution guar- those provided anties in the federal constitution this context. respects, majority opinion. I concur in the all other J., with J. concurs Dimmick, Dore, May En 49913-6. Banc. 1984.]

[No. Respondent, Washington, The State Michael Davis, Petitioner. Curtis Kelley, Kelley George Skoog, Gagliardi S. Mullin, & petitioner.

Case Details

Case Name: State v. Bartholomew

Court Name: Washington Supreme Court

Date Published: May 24, 1984

Citation: 683 P.2d 1079

Docket Number: 48346-9

Court Abbreviation: Wash.