*1
state. In Washington,
extrinsic evidence is not admissible
unless ambiguity is found. Greer v. Northwestern Nat’l Ins.
Co.,
Wn.2d
Conclusion The routine dumping wastes many years over is neither sudden nor accidental. When property damage arises from planned discharges conducted as normal business opera- tions, regardless of whether the insured intended the ensu- ing damage, the discharge cannot accidental, be sudden or unexpected or unintended and the pollution exclusion bars coverage. JJ., Guy,
Durham concur J. Madsen, with modification, After further reconsideration denied March 22, 1995. April
[No. En 59429-5. Banc. 1995.] Leroy Washington, State of Respondent, v. James Brett, Appellant. *9 appellant Muenster,
Thomas C. Phelan and Mark W. for (appointed appeal). counsel for *10 Attorney, Prosecuting Curtis,
Arthur D. and Richard Deputy, respondent. Melnick, for — Leroy by jury J. was a James Brett convicted Dolliver, County Superior aggravated degree
in Clark Court of first degree felony murder first and murder. The sentenced following sentencing proceeding Brett to a death conducted legislative guidelines in accordance with the set forth in appealed directly alleging RCW Brett 10.95. to this court guilt, pretrial, penalty numerous errors occurred and phases carefully considering argu- trial. After Brett’s statutorily conducting review, ments and our mandated we find no there is reversible error and affirm the conviction and death sentence.
Facts Leroy living Longview, Washington, James Brett was Shirley girlfriend, Martin, son, Miles, with and his her originated big "plan” job” when a last to make he do "one Proceedings Report their vol. 93. At the life better. at receiving benefits, time, Brett Martin was welfare and attempting Security to obtain Social benefits.
According plan, and an to the Brett Martin would select couple’s elderly neighborhood in a rich and restrain house day opened. Brett next when their bank the victims until the money Martin force withdraw their and would the victims to by injecting kill a substance into and then them toxic back of their heads. plan, Martin and Brett
To facilitate commission of shotgun stocking caps, gloves, acquired shells, and duct bag. tape, 100- and Brett also obtained three to four duffel syringes larger than the insu- cubic-centimeter which were ordinarily for lin needles Brett used his diabetes. early 3, 1991, Brett and
In the afternoon of December dropped son, Miles, Martin off the house Martin’s they gone They Camba, be Rhonda Brett’s sister. said would overnight pick morning. up Miles Brett and would the next upper picked an Martin to Vancouver and out drove They nightfall neighborhood. for class waited middle potential be in the likelihood the would bed. increase During victims they bar, time, mari- had a drink at a smoked purchased juana, Denny’s restaurant, and some ate at a they Martin smoked a at a store. testified items convenience day being "baked”, as lot and characterized themselves very being high mari- on term Martin uses describe juana. dark, to the it Brett and Martin drove back
When was parked. gloves neighborhood Each wore Mount Vista stocking caps Brett felt that did not cover their faces. would be no survivors. were not needed because there masks picked Martin residence at random. the Milosevich *11 upstairs rang to doorbell, went and Mrs. Milosevich the standing the Brett off to the side of her husband. was wake shotgun. holding a entrance single- parties stipulated Brett used a .410 caliber
The firing shotgun. shot, a the barreled, Before second bolt-action eject spent pull bolt to have to back user would place shell, chamber, bolt, a new shell close the and safety. release the Both the barrel and the of the stock shotgun were sawed off. having trouble,
Martin told Mr. Milosevich was she car open door, and when he started to Brett and Martin way gunpoint forced their at and ordered the Miloseviches standing. down on the floor. Mr. Milosevich remained The burglar activated, alarm was before Mrs. Milosevich comply system, could with Brett’s demand to deactivate the signal Systems. Security attempted was sent ADT to ADT occupants by telephone receiving to and, contact no re- sponse, police. notified things getting "way
Martin testified were of out control Proceedings Report . . .”. vol at 115-16. She forced stay Mrs. Milosevich to down awith knife and tried to in- plead cooperate. timidate and Then, with Mr. to Milosevich against Martin was thrown someone, the wall believed to got up, Brett, be and when she she saw Mr. Milosevich make shotgun a move toward Brett who fired his chest. reloading, While was Brett Mrs. Milosevich ran out of the neighbor’s. house to the run, next-door When she started to pointed gun at her then it turned back toward Mr. " pleaded saying, Mr. Milosevich. Milosevich for his life 'Oh ” please responded by telling God, don’t.’ Brett Mr. Milose- " going Report Proceedings die,’. vich 'You’re . .”. vol. 12, at 116. Martin ran out the house and heard second gunshot. Mr. was Milosevich shot in the back of the head at range. taking close Brett and Martin the scene fled without anything from the residence. p.m. approximately
At 3,1991, on a Clark 11:14 December County deputy dispatched sheriff the Milosevich res- Upon deputy arrival, victim, idence. his found the Ken- gunshot Milosevich, neth dead from two There wounds. were splatters victim, blood on near the floor but there were signs struggle, nothing appeared no disturbed be in the remainder of the scene was residence. crime videotaped by police. photographed, contained, *12 150
Brett and drove to house of mother Martin Brett’s sister, where he to the Brett also his killing. confessed told Camba, had Report Rhonda that he "killed somebody”. Proceedings 12, 19. he did there to go vol. Brett said he anyone, just kill intended to rob them. a
Later that Brett used in the crime in duf- day, put items and it in the bag police fel threw river. The recovered in bag slough duffel from a The duffel contained Longview. shirt, pairs a black a two gloves, stocking cap, short-sleeved coats, for jeans, heavy yellow casing two leather and syringe shotgun needle. The was never recovered. charged pleaded and to
Shirley guilty Martin was with in the in the first premeditated degree, burglary murder first robbery assault in second and degree, degree, attempted degree. first 10,1991, Brett charged aggravated On December with in the Milosevich degree George murder first Kenneth was committed in the charge alleged which murder of, immediate of, in or from rob- flight course furtherance degree burglary in the and in the first bery first or second on degree. guilty The court of not plea second entered January January behalf 1992. On Brett’s on filed seek the death penalty. the State a notice intent Thereafter, 27,1992, the State an amended on March filed in the Brett murder charging aggravated information with factors of concealment degree, adding aggravating first 1). (count degree alleged 2 kidnapping in the first Count and on or at- robbery murder first based felony degree 3 degree. first Counts robbery in the or second tempted wife, through alleged naming crimes Kenneth Milosevich’s The degree. in the first alleged burglary Patricia. Count 6 count through resolution of stayed pending court counts 1. moved 16,1992, arraignment, at Brett’s the State April
On 1 and 2. merging file a second amended information counts (fel- guilty to count objected attempted plead murder). guilty plea granted court refused the ony the State’s motion. The court entered a plea guilty of not on Brett’s behalf. A second notice of intent to seek the death penalty was filed with the second amended informa- tion.
Brett moved for a bill of on particulars aggravating factors of robbery, kidnapping, concealment and moved to dismiss the aggravators of robbery and kidnapping. The court denied both pretrial motions.
During dire, voir challenged defense 12 jurors for cause who expressed for support the death penalty. The trial *13 court denied the challenges, and the defense was forced to use its peremptory challenges. result, aAs two jurors chal- lenged for cause sat on the jury, Deborah J. Monohan and Mark J. Bowyer. prosecution The used its peremptory chal- lenges to jurors exclude five expressed who doubts about the death penalty.
At case, the close of the State’s the trial court denied the defense motions concealment, to dismiss the kidnapping, robbery and aggravating factors for lack of evidence. The motions were renewed at the close of the defense case and again were denied.
The found Brett guilty of first degree felony murder and aggravated degree first murder with four aggravating factors: degree first burglary, degree first robbery, first de- gree kidnapping, and concealment of perpetrator’s iden- tity.
The penalty phase commenced on June and lasted days. The opened State the penalty phase by 31/2 submitting certified copies juvenile of Brett’s adjudications and criminal During rebuttal, convictions. the State also introduced the I.Q.” results of "a performance test adminis- tered to Brett by Shelton the Department of Corrections in March 1989 wherein he scored in percentile. the 52nd given Brett was also a basic education test which ranked him at a grade ninth education level.
The defense testimony members, introduced from family administrators, schoolteachers juvenile detention facility counselors and family staff which detailed Brett’s testimony grew history. and school up showed that Brett any, paren- poor, little, in a unstable household with if guidance, by support tal in which alcohol was abused very young children at the adults and shared with the ages. Sherry mother, Brett, is an admitted alcoholic and Brett’s pregnant with James she abused testified that while she was packs cigarettes every day. alcohol and smoked to 2 l1/2 illegitimate. youngest child and was He was Brett was the diagnosed years old. with diabetes when he was 8 Sherry boyfriends mar- numerous and three Brett had riages. Spurgeon, couple sepa- While married to Robert Sherry many frequently. Thereafter, rated times and moved Wayne Powell, and the alcohol abuse contin- Brett married gallons Sherry Wayne up make of home- ued. would brandy was available to the chil- made Kahlua and which sister, Camba, Rhonda testified it was not dren. Brett’s growing up him to drink until unusual while Brett was for passed all Brett and his three older sisters have he out. years problems. Brett was about 12 substance abuse When swallowing attempted of diet old, pills. a whole box he suicide good qualities. testimony also that Brett had There was good gentle person who had Brett was characterized as relationships *14 Shirley nephews young with his nieces and Martin’s son. average history he was a low stu-
Brett’s school showed Brett at- dent, environments. who did well structured Longview and received School District tended school years years special he was 14 old. Brett for 3 until education principal problems, of the and the vice had attendance only mother of a Mrs. Brett was the middle school testified problems in due to attendance he had taken to court student 12-year his tenure. 18-year-old years old, he and his was 14
When Brett store. Blackmon, a convenience brother-in-law, Alan robbed Children’s Cen- and sent to Echo Glen was convicted Brett family facility. juvenile little He received ter, a detention support while there. On occasions, two different family visiting members Brett him gave marijuana and Valium. In March escaped by binding female staff worker with an electrical cord and attempting strangle her awith towel. Brett pleaded guilty and was convicted kidnapping in the first degree, assault in the degree, second escape degree. the first
As a Glen, result of the incident at Echo Brett was Maple transferred to resided, Lane School in 1985 where he with two brief interruptions, until 1990 when he was re- there, leased. While Brett was cooperative, conformed to the rules and was not physically threatening. He was enrolled in learning classes, disabled primarily vocational-type courses, and a B average. maintained He progressed from maximum to security. minimum At point, one Brett assisted a counselor in subduing a boy who had tried to grab her keys.
Brett, however, self-control, was impulsive, had low presented an escape risk. On more than one occasion he escaped from Maple by Lane climbing over an approxi- mately 12-foot-high chain link addition, fence. In Brett was self-destructive. He would refuse his insulin or slash his wrists. On one occasion he attempted by drinking suicide pesticide, and on another he kill attempted to himself with razor, opening a wound that required approximately stitches to close.
Juvenile attempted authorities to help Brett make the transition back into the community transferring him first Oakridge to the Group Home and then to the Woodinville Brett, however, Home. Group either asked to be returned to the more structured environment at Maple Lane or walked away from group homes. This in adjudications resulted for escape and his return to Maple Lane. Woodinville staff opined motivating that one factor escapes Brett’s was his institutionalization. He wanted to be returned to the more structured environment Lane where he Maple felt safer and more comfortable.
154 Ryan, from Robert presented testimony
The defense also counselor, Ph.D., and mental health dependency a chemical syndrome/ factors of fetal alcohol regarding the causative (FAS/FAE) alcohol effect and the characteristics fetal qualified is not suffering Ryan children from the conditions. defense The trial court denied the diagnose FAS/FAE. motion, for day penalty phase, made on the third of the of an for in order to obtain the services days continuance 30 Brett suf- diagnose who could evaluate and whether expert from FAS or FAE. fered evidence, the found there were suf-
Based on the re- leniency to merit mitigating ficient circumstances turned death verdict.
Analysis Pretrial Issues 1. Information. information, which Brett was
The second amended under in the murder was committed arraigned, alleged "[t]he of, from” of, flight in immediate course in furtherance burglary degree, in the first robbery degree, in the first . "in of . . RCW degree in the first violation kidnapping 10.95.020(9)(d) 10.95.020(9)(c) 10.95.020(9)(a), and RCW RCW the informa- at 203-04. Brett asserts Papers, . . .”. Clerk’s rule the essential elements tion was deficient and violated the crime-based to set forth the elements of because it failed to the crimi- specific or make reference aggravating factors nal statutes. Constitu to the United States
The sixth amendment
(amend. 10)
an informa
require
art.
22
tion and Const.
§
elements of
and common law
statutory
to include all
tion
v.
93, 101, Kjorsvik,
State
117 Wn.2d
charged.
the crimes
(1991).
circumstances, however, are not
Aggravating
P.2d 86
”
"
fac
crime,
penalty’
'aggravation
but
elements of the
304, 307,
equately
aggravating
proved,
factors,
notified Brett which
if
would
Frazier,
be used to
his
v.
enhance
sentence. See State
(1972);
81 Wn.2d
503
Nass,
P.2d 1073
State v.
76 Wn.2d
(1969).
368,
Brett makes a that the information alleged was deficient because it the murder was committed robbery”, in the "course of or furtherance of than rather robbery. argument crime of This The is without merit. infor- 10.95.020(9)(a), mation cites to RCW which lists the crime of robbery degree aggravating in the first or second as an fac- tor.
We find no error in the information. Filing
2. of Second Amended Information. allowing
Brett contends
trial
court erred in
filing
refusing
of the second amended information and in
to
accept
plea
guilty
felony
his
to
murder. We review the
granting
aof motion to amend an
under an
information
abuse of
Haner,
discretion standard. See State v.
95 Wn.2d
(1981).
858,
The first amended information Brett in two (count 1) degree premeditated rate with counts first murder (count 2). degree felony arraignment, and first murder At the State moved to file second amended information charged single degree by crime, murder, which first alter- felony premeditated means, nate murder and murder. Brett objected attempted plead guilty to to count 2. The trial granted motion, court the State’s and Brett was unable to plea felony guilty Bowerman, enter a to murder. See State v. (1990). 794, 801, 115 Wn.2d P.2d 802 116 right plead Defendants do not have constitutional to guilty, by right but this state has conferred such court
156
4.2(a)
plead
provides:
may
"A
not
rule. CrR
defendant
guilty,
guilty
insanity
guilty.”
State
reason of
See
(1980).
Martin,
1, 4,
State
v.
3. Bill of Knapstad Particulars Hearing. request Brett’s for a bill pretrial and for a particulars hearing under State Knapstad, Wn.2d 729 P.2d on robbery kidnapping aggravating factors predicated is on the assumption uncompleted crimes 10.95.020(9) listed in RCW are to trigger imposi- insufficient tion of penalty. herein, the death we Because hold otherwise we need not reach these issues.
toAs the concealment aggravator, the record does not indicate what additional information could have been fur through nished of particulars. bill there Consequently, no lack of notice and no abuse of discretion in denying See request. Dictado, State v. 687 P.2d 4. Jury Selection. rights
Brett contends his constitutional were violated the trial court’s denial of for challenges his 12 cause and his result, for request jurors additional As a two peremptories. for challenged jury: cause served on the Deborah J. Mono- han Bowyer. and Mark J. *18 1,
Under the Amendment and Const. art. 22 Sixth § (amend. 10), a a fair guaranteed right defendant is 748, 734, and impartial jury. Rupe, State v. 108 Wn.2d 743 (1988). (1987), denied, P.2d 210 U.S. ensure cert. 486 1061 To this right, juror may be excused for cause if his views " ' "prevent substantially would impair performance or of his as a in his juror duties accordance with instructions ’ ” and his oath.” v. 106 721 Hughes, State Wn.2d
158
Witt,
v.
469 U.S.
P.2d 902
(quoting Wainwright
(1985)).
See
Ed.
We review trial court’s an jurors under abuse discre- prospective cause of the 748. tion 108 Wn.2d at Rupe, standard. See had ideas challenged jurors preconceived The 12 either gave equiv- death imposition penalty which favored of the After careful consider- their views. regarding ocal answers say we cannot the trial juror, the voir dire of each ation of challenges for denying court abused its discretion could set their ideas jurors they cause. All stated potential on on all the evidence and aside and decide the case based given by the law as the court. peremptory its chal asserts the State used also reservations jurors expressed all who
lenges exclude resulting in a uncon about death penalty, district court case prone. The federal stitutionally death this his was reversed on support position Brett in cited (W.D.N.C. 1988), Rice, F. v. Supp. See Brown ground. Dixon, 891 F.2d sub nom. Brown part rev’d in aff’d, part, (4th denied, 1989), cert. 495 U.S. Cir. pe- may exercise his ordinary prosecutor that a [is] rule [T]he prosecutor any all” and that remptory strikes for reason at capital expressed about may concerns "take into account factor, any jurors, or other punishment by prospective challenges. .” exercising peremptory . . Caro- Brown v. North
Brown, (quoting at 496 n.13 891 F.2d
159 lina, 940, 941, 373, 479 L. 107 U.S. 93 Ed. 2d S. Ct. 423 (1986) (O’Connor, J., concurring)).
We decline
address Brett’s claim under Const. art.
(amend. 10)
1, 22
(right
impartial
to an
art.
jury)
Const.
§
(the
clause)
1, 14
punishment
cruel
on this issue
§
because
Gunwall,
he fails
analyze
the factors set forth in
State
(1986).
808,
106 Wn.2d
720 P.2d
Brett
contends the trial court erred
an
admitting
in-life
photograph
Kenneth
A trial
Milosevich.
court’s rul
ing
an
admitting
in-life
photograph
reviewed under an
Furman,
abuse of discretion
State v.
122
standard.
Wn.2d
(1993).
440, 452,
defense offered identity victim. State, however, The is not required to accept defense stipulation regarding that of the crime. element See Rice, (1988), 598-99, State v. P.2d 757 889 denied, cert. U.S. 910
Brett also
photograph
asserts
inflamma
tory
prejudicial.
are
Photographs
admissible unless
outweighs
Rice,
their
effect
prejudicial
their relevance.
In-life photographs
inherently
Wn.2d
599.
are not
preju
"
dicial,
when
especially
jury
also sees
'after death’
(Footnote omitted.) Furman,
of the victim’s
pictures
body”.
Mr.
head
neck. He is
Milosevich’s
baseball
coat,
cap and a
are
trees in
evergreen
blue
and there
background. Ex. 1.
with the
court that
agree
We
trial
this
itself,
sympathy.
in and of
photograph,
does
evoke
what
simply
allows the
to see
victim
photograph
court
in life. Brett has not shown the trial
looked like
admitting
photograph.
generic
abused its discretion
this
Autopsy Photographs.
6. Admission of
admitting
trial
erred in
Brett contends the
court
autopsy photographs proffered
He
the State.
inflammatory.
they
prejudicial
are
"Accurate
asserts
photographic representations
grue
admissible,
if
are
even
prejudicial
probative
outweighs
some,
ef
if
their
their
value
*20
806,
Crenshaw,
789,
P.2d 488
fect.” State v.
98 Wn.2d
659
(1983). Photographs
"they
probative
are
value when
have
testimony
explain
pathologist
to
or
the
of the
used
illustrate
performing
autopsy.”
870,
Lord,
v.
the
State
(1991),
denied,
164
See
822 P.2d
cert.
113 S. Ct.
Sargent,
App. 340, 349,
P.2d
40 Wn.
State
(photographs
the same infor
not be admitted when
should
manner).
nonprejudicial
This
mation could be revealed in
unfavorably
repetitious,
court,
inflamma
however, looks
on
tory photographs. Crenshaw, 98
at 807. The court
Wn.2d
autopsy photographs
an
reviews the admission of
under
Crenshaw,
standard.
Dr. Gunson described the wounds prior regarding muzzle to the wounds the distance of the showing jury. procedure photographs not This to the objectionable. photographs aided in its under- standing description. prior of Dr. Gunson’s verbal In addi- photographs repetitious tion, the four admitted not were Although photographs or cumulative. could be disturb- ing, Brett has not shown trial abused court its discre- admitting tion in them. Lay Opinion Testimony.
7. allowing the trial asserts court erred in Katherine give lay opinion appear Quinn to her Brett did drugs, any be alcohol, under the influence of other sub- night stance on the of murder. Quinn was the clerk on duty patronized by the convenience store Brett and just prior argues opinion Martin to the murder. Brett her pursuant admitted, should not have been to ER because knowledge Quinn lacked or information sufficient form an opinion regarding sobriety Brett’s state of and because her opinion helpful explaining testimony was not her or the of a determination fact in issue. opinion
The admission of
evidence lies within the
Weygandt,
App.
discretion of the trial court. State v.
20 Wn.
(1978),
denied,
ER 701 testifying If the is expert, witness not as an the witness’ testimony opinions in form of or is inferences limited (a) opinions rationally those or are inferences which based on (b) of perception helpful to a clear under- witness standing testimony of or the witness’ the determination of a fact in issue. opinion upon case, Quinn’s
In this was her based observa- separate night tion of two Brett on occasions on of the approximately murder, min- for the second time by expe- perception prior her Quinn’s informed utes. was police had occa- rience as a officer in Montana where she intoxicating of sion to become familiar with the effects opinion rationally upon her Her was based substances. helpful perception. opinion addition, In was to the de- premeditation and issue, a fact of termination of in requirements ER were There was intent. Both of met. allowing testimony. abuse in no of discretion Robbery Aggravator. 8. to submit
Brett contends there was insufficient evidence aggravating robbery of in the to the circumstance degree. which establishes that first Brett contends conduct robbery degree attempted, has but not in the first been completed, law, an insufficient, as a matter of to constitute is 10.95.020(9)(a), aggravating which under circumstance RCW provides: degree guilty aggravated A murder if he person is first degree murder as defined RCW
she commits first 9A.32.030(l)(a) aggravat- following . . . and one or more of the ing circumstances exist: of, further- in the course The murder committed of, following flight from of the crimes:
ance or in immediate one
(a) .. degree in the second . . Robbery first or (Italics ours.) requires argues be the murder
Brett the term "crimes” completed or in furtherance committed in the course of attempted crimes. not the statute does refer crime because felony points statute, RCW contrast, to the murder 9A.32.030(l)(c), provides expressly kills that one who which attempts of rob- to commit the crime” he "commits or while bery felony guilty is murder. premeditated murder committed
The State asserts robbery, even when the of a course of or furtherance robbery completed, find the existence is sufficient to *22 agree. aggravating circumstance. We an 9A.32.030(1)(c), felony statute, murder RCW robbery provides a death occurs in the course of that when attempted degree, course of an in the first or second robbery, or the guilty felony participants In murder. the are 10.95.020(9)(a),only premeditated contrast, mur under RCW robbery during the course of are within ders committed scope the murders committed dur of the statute. Premeditated ing attempted robbery the an are not. Whether the course of penalty may imposed depends upon whether the death be ’ robbery, course not whether murder occurs "in the robbery completed attempted. was
Similar statutes have been so construed
Illinois
Georgia.
People Walker,
91 Ill. 2d
"(b) Aggravating factors. A defendant who has been guilty may found of murder be sentenced to death if:
* * * 6. the murdered individual was killed in the course an- felony other if:
* * * (c) felony following: one of the . . . rob- other bery . . ..” (quoting para.
Walker,
Stat. ch.
Whether only aggravating felony or with completion of the actual aggravating factor which felony is not crucial. The attempted penalty statute is that triggers of the death application aggravating be committed "in the course the murder of’ an "in the course of’ felony. may A murder be committed robbery armed whether or not the robbery actual armed *23 consummated. An essential element of an attempt is that the accused
perform "any act which constitutes a step substantial toward the the commission of that question offense.” It is a of fact "[an] whether act which constitutes a step substantial toward the commission of’ robbery armed constitutes "in the course of’ an robbery, armed so that that act an aggravating becomes fac- tor authorizing imposition of penalty. again the death We em- phasize that penalty the death specifies statute aggravat- as an ing factor that the murder be "in committed the course of’ one of the listed felonies. The statute require does not that the other felony completed be or that the charged defendant be with or felony convicted of the other attempted or an felony. penalty The death require statute prove does the State to be- yond a aggravating factor, is, reasonable doubt the that the murder was "in committed the course of’ robbery the armed .... This is so whether the defendant has been convicted of ., robbery armed . . or of attempted robbery. armed It is estab- lishing that the murder was "in committed the course of’ the robbery armed in our case that eligible makes the defendant for penalty, death not the commission an robbery armed an attempted robbery. armed . ..
(Citations omitted.) Walker, 91 Ill. 2d at 510-11. The law in
Walker was subsequently approved and followed. See People
Ramirez,
439,
v.
(1983);
98 Ill. 2d
We
with Brett’s assertion
People
v. Chan
dler,
129 Ill. 2d
We 10.95.020(9) First, an inter ambiguous requiring RCW is not Brett’s lenity. the rule of pretation Brett’s favor under because it would render is not reasonable interpretation of, lan the "in the course in furtherance of’ superfluous McGee, guage in the statute. See State v. (1993).
Lastly, previously rejected we have the contention aggravator merges kidnapping ag into the robbery gravator because the intent to facilitate the commission robbery kidnapping degree. elevates the crime to in the first 9A.40.020; Fletcher, 113 Wn.2d 776 P.2d See RCW re (1989). only requires proof of to commit vari- [RCW 9A.40.020] intent acts, elsewhere in the ous some of which are defined as crimes actually that the acts be com- require criminal code. It does not Thus, Legislature that a de- mitted. . . . has not indicated guilty commit another crime in order to be fendant must also merger degree kidnapping, and therefore the doctrine of first result, sepa- apply. may punished Fletcher be does not As robbery convictions. rately kidnapping for the Fletcher, 113 52-53. Wn.2d at submitting the rob- did not err
We hold the trial court 10.95.020(9) does not RCW jury. to the bery aggravator an constitute in order to felony completed a listed be require was sufficient evidence circumstance and there aggravating the murder was committed in the robbery course of in the first degree for the aggravator. to consider that Kidnapping Aggravator.
9.
Brett asserts there was sup insufficient evidence to port the special verdict the murder was committed in the course of kidnapping degree. the first The court reviews a challenge to the sufficiency the evidence light most favorable to the nonmoving party to determine whether any rational trier of fact could have found guilt be yond Green, reasonable doubt. See State v.
221,
(c) bodily To inflict injury on him[.] 9A.40.020(1). RCW The jury was instructed on the definition of "abduct” as follows: using Abduct means to a person by threatening restrain deadly use person’s force. Restrain means to restrict move- legal authority ments without consent and without in a manner substantially
which interferes person’s liberty. with that Re- force, straint is accomplished by physical without consent if it is deception. intimidation or 25;
Instruction
Clerk’s
at 490.
Papers,
argues
there
no
"abduction” because the re
murder,
straint was incidental
to the
and the kidnapping
*25
merged into the robbery. This court has held and the State
concedes that
the mere incidental
restraint and movement
of the victim during the course of another crime which has
independent
no
is insufficient
to
purpose
injury
establish
Green,
a kidnapping. See
(kidnapping
Wn.2d at 227
merges
Johnson,
into first degree rape); State v.
92 Wn.2d
(1979)
671, 680,
merges
Viewing to find trier of fact evidence for a rational was sufficient ag- kidnapping doubt of the beyond a reasonable guilty Brett gravator. Aggravator.
10. Concealment
insufficient evidence
also contends there was
Brett
was committed
to find the murder
any
jury
for
rational
Mrs. Milos
because
identity
perpetrator
conceal the
of the
is
aggravator
The concealment
was not also killed.
evich
which
with evidence
presented
if "the
established
sig
for a
postpone
killing
was intended
suggests
discovery of the commission
nificant
of time the
period
ours.)
(Italics
Bartholomew, 98
State
the crime . . .”.
(1982) (Bartholomew I), State’s
654 P.2d
Wn.2d
cert.
remanded, 463 U.S.
cert.
granted
defendant’s
remand, 101 Wn.2d
(1983),
denied,
U.S. 1212
reaff’d after
(Bartholomew II).
631,
tended to commit murder order to conceal rob- and his bery identity beyond a reasonable doubt. concealment,
Brett also if asserts the any, either into merged the murder or the aggravators robbery, of kidnapping, burglary. and Brett argues concealment "inheres kill plan premeditated overall with intent for purposes committing Br. robbery/kidnap/burglary”. Brett Appellant, authority 111. cites no for propo this sition. Intent to conceal crime of the identity or perpetrator murder, does "inhere” in premeditated not rob bery, kidnapping, burglary. It is a intention from separate kill, an intent or from the necessary robbery, intent for a burglary, or a kidnapping. Aggravators.
11. Use of Multiple Brett asserts the of more one cir- aggravating use than process, cumstance violates due jeopardy, double rule, "same criminal conduct” and constitutes cruel and punishment. unusual
Due Process and Cruel Punishment. argues allowing consider the same
"indivisible course of conduct” to
more
one
constitute
than
aggravating
process
factor violates due
constitutes cruel
1,
punishment under Const. art.
3 and 14.
no
Brett cites
§§
Washington
support
cases in
of this
proposition, and it is
Harris,
36, 63,
v.
persuasive. See
36 Cal. 3d
679 P.2d
People
449,
782,
denied,
(1984);
433,
201
469
Rptr.
Cal.
cert.
U.S. 965
(Fla.
State,
1976),
denied,
v.
So. 2d 783
cert.
431
Provence
337
(Fla.
(1977);
State,
1981),
969
v.
2d 331
U.S.
White
403 So.
denied,
State,
(1983);
v.
2d
Herzog
cert.
In Florida, New and Ala North bama, "doubling the courts invalidated the up” aggra- have same on the are based aggravators those vators when in Provence example, For the defendant’s conduct. aspect circum- State, aggravating held the the court supra, robbery” of a in the commission "murder stances of validly be consid- could not gain” pecuniary "murder for Similarly circumstances. aggravating separate ered as two robbery of underlying held the the court Wyoming, *27 as not be used conviction could felony murder defendant’s But Meyer, supra. v. Engberg circumstance. aggravating an L. Ed. 2d 494 U.S. Blystone Pennsylvania, see (1990) felony mur- element of (felony Ct. 1078 110 S. factor). Here, robbery, the aggravating der can be a valid aspect same based on the kidnapping and are not burglary, elements aggravators nor are the of Defendant’s conduct degree first murder. premeditated rejected The Harris court distinguishable. is also Harris burglary aggravators and robbery of the doubling up the in effect when statute penalty California death because the " determin- '[i]n specified defendant was sentenced the . . into account. fact shall take the trier of ing penalty the any the existence of the crime . . .and circumstances [t]he ” Harris, 36 Cal. . . ..’ to be true circumstances special found 190.3). The court Cal. Penal Code former (quoting § 3d at 65 crime into account the to take allowing jury the felt the inflated” "artificially circumstances aggravating and the at 62. Harris, 36 Cal. 3d conduct. defendant’s instruc- jury and the statute penalty death Washington’s "[h]av[e] to case, however, jury instruct the tions in this guilty found has been defendant of which the mind the crime 10.95.060(4). to con- instructed is not RCW . . .”. fac- aggravating the consider separately sider the crime the circumstances Rather, describe aggravators the tors. guilty. was found which Brett "crime” for Jeopardy. Double aggra- merge to of the court failure contends the
Brett
jeopardy.
double
violates
robbery aggravator
into the
vators
In
Laviollette,
670, 675-76,
State v.
Here, the State need not crimes robbery kidnapping aggravating to establish the circum required prove only stances. The State that the murder "in Therefore, committed the course of’ those crimes. robbery aggravators kidnapping "charged are not purposes jeopardy. addition, offenses” for of double "already prosecuted” any aggrava had not been on jeopardy tors. no There was double violation.
Same Criminal Conduct Rule.
*28
argues allowing
jury
guilty
Brett
the
to find him
of
multiple aggravating
arising
circumstances
of the
out
same
conduct violates the
rule in
"same criminal conduct”
RCW
9.94A.400(1)(a)
Dunaway,
and State v.
109 Wn.2d
743
(1987).
argument
persuasive.
P.2d 1237
This
is not
Aggravating
they
enhancements;
factors
sentence
are
"crimes”,
Kincaid,
are not
as such.
v.
State
103Wn.2d
Cf.
(1985) (aggravating
312-13,
addition, kid- victims of the there were aggravators: burglary napping, Mrs. Mr. and both against multiple Multiple are victims crimes Milosevich. Lessley, to be the same criminal conduct. not considered find same criminal Because we the 118 Wn.2d 779. inapplicable terms, address its we need not conduct rule Sentencing procedural Reform rules in whether 9.94A) (SRA) (RCW capital apply cases. of 1981 Act refusing merge all in The trial court did not err aggravator. aggravators robbery into the aggravating valid, we need not Because we find the factors penalty the death violates due address Brett’s assertion that process, Eighth Amendment, §1, art. 14 when or Const. aggravators. on based invalid
12. Instructional Errors. alleging challenges 20, jeopardized
Brett
instructions
proof
they
burden of
relieved
State
its
may
jury unanimity.
requirement
be
These issues
appeal.
Hanson,
See
raised for the first time on
State
(1990).
App. 651,
The court reviews instructional
Benn,
631, 654-55,
P.2d
cert.
State v.
See
denied,
must evaluate each
both disagree. guilty if on We it found him either alternative. premeditated first for 9 lists the elements Instruction felony degree A and the elements for murder alternative provides: B, in alternative then murder you each of the elements from the If find evidence B Alternative has A or each of elements Alternative been *29 your beyond proved doubt, it bewill a reasonable then only guilty. duty elements of a All of the of to return verdict unanimouslyagree proved. be You must alternative need one as alternatives, to which one or of B, more A or has been proved beyond a reasonable doubt. hand, evidence, On the weighing other if after all you of the have reasonable as any doubt one of the elements A, any Alternative or as to one to return a the elements in Alternative B, duty then your it will be guilty on verdict that alternative. (Italics ours.) Clerk’s Papers, at 471-72. This instruction is not misleading. jury The informed expressly to reach decision as to each alternative.
Next, Brett asserts instruction 13 allowed the jury to find the aggravator of robbery degree the first without find- ing occurred, a "taking” required by as RCW 9A.56.190. provides: Instruction 13 person A Robbery commits the Degree crime of in the First
when in the commission of a robbery or in flight immediate therefrom he or she is armed what a deadly weapon with displays appears abe firearm or deadly weapon other or inflicts bodily injury. Papers,
Clerk’s at 476. Brett argues this instruction relieved the State of its every burden to prove beyond element of the crime a reason- able doubt in violation of the due process clause of the Colwash, Fourteenth Amendment. See State v.
468, 470,
As held, however, we have the issue before was jury robbery not whether a but whether completed, the mur- "in der was committed of’ robbery. course argues Brett also instruction misleads the jeopardizes requirement jury unanimity on each aggravating alternative circumstance. 20 pro- Instruction vides: will
You be furnished with all exhibits admitted into ev- idence and "A” Verdict Forms and "B”. *30 crime of Murder provided for the You must fill in the blank guilty” the word Degree "not or First with the words in the You must also fill according you reach. "guilty”, to the decision space provided, as "yes” appropriate "no” in the or
in the words Degree Murder in First of the crime of to which alternative the State If has beyond doubt. the State proved has a reasonable doubt, in a fill both beyond reasonable proved both alternatives "yes”. spaces with the word case, you agree you for a of must criminal each Since this in agreed, fill you all of have so return a verdict. When to your The foreman will express "A” to decision. Verdict Form sign it. guilty of Premeditated only you if find defendant If and A, in in Alternative Instruc- Degree Murder as set forth First special a you to return necessary be for No. 9 then it will tion following question: to the verdict one or beyond reasonable doubt that prove Did the State following aggravating existed? more of the circumstances (a) protect murder or conceal The defendant committed the to crime; committing the identity any person of (b) in in the course of or murder committed [T]he Degree; Robbery furtherance of in the First (c) of, in further- The murder was committed in course of, Burglary of in the flight ance in immediate from the crime or Degree; First (d) of, in murder was committed in the course further- of, Kidnapping flight in immediate from the crime ance or Degree.
the First doubt, beyond prove to a reasonable The State has the burden defined, aggravat- the above-listed previously one or more of as are alter- aggravating These circumstances ing circumstances. de- only to convict the proved one need be order natives degree. You must aggravated murder in the first fendant of which, aggravating any, cir- unanimously agree upon if of the beyond a reason- proved has set forth before been cumstances Special Verdict Form provided You be with able doubt. will you in which answer aggravating circumstance "B” for each you reach. according decision or "no” to the "yes” or lack considering all of the evidence If, fully fairly after as decision a unanimous you are not able reach of evidence circumstances, do aggravating any any one of the element that alternative. in the blank for fill sign agreed, foreman have the have so you all WTien bailiff, you will conduct notify "B” who Verdict Form your declare verdict. into court to (Italics ours.) at 483-85. Papers, Clerk’s
The second to the paragraph clearly jury last informs the that if unanimous decision on each of an element alterna- tive cannot be reached then "fill it is not to in the blank for (Italics ours.) that alternative.” There was no error. Brett also asserts instructions 24 and 25 misstate the law of kidnapping by failing to inform the that a minimal restraint or asportation incidental to a homicide is insuffi- cient an Green, to constitute abduction. See State v.
216,
use force. Restraint means a person’s to restrict move- ments legal authority without consent and without in a manner which interferes substantially person’s liberty. with that Re- force, straint accomplished physical is without consent if it is or deception. intimidation Clerk’s Papers, at 490. object
Brett failed to
to these instructions
at trial.
He raises the issue for the first time on
a
appeal asserting
constitutional
error that
the instructions
failed to set forth
an essential element of kidnapping,
lack of incidental
re
Scott,
682, 690,
straint. See State v.
110 Wn.2d
13. Prosecutorial Misconduct.
Allegations
are
prosecutorial misconduct
reviewed under an
abuse
discretion standard. State v.
(1986).
The de-
721 P.2d
Hughes,
"establishing
impro-
both
fendant bears the burden
ef-
prejudicial
its
prosecutor’s
of the
conduct and
priety
(Footnote omitted.)
Furman,
Wn.2d
v.
fect.”
State
(1993).
misconduct does
455,
Vouching for
for
vouched
argues
improperly
the prosecutor
during
closing argu
his
credibility
of Mrs. Milosevich
for
to vouch for
prosecutor personally
ment. It is
improper
credibility
Sargent,
App.
of a witness. State
Wn.
however,
may,
Mrs. Milosevich’s mode, prosecu- into alarm whether the alarm went full tor argued: I credibility on that issue you’re going
And to have to evaluate you might want guess. suggest I that one reason But would the time issue is that she at believe Pat Milosevich on that *32 occurring watching her husband 33 was those events were by shotgun. maybe a And that’s years being away blown .410 going to remember scenario of events that she’s the kind of her life. . . fairly for the rest of . well (June This 11, 1992), at 25-26. 14 Proceedings vol. Report belief, of personal set forth a statement argument does not stated, "I believe prosecutor Sargent as done in when was 40 Sargent, App. him . .”. Wn. I believe . Lee Brown. Jerry an inference Rather, drawing was prosecutor 343. want to believe jury would why as to from the evidence improper. was not statement another. This one witness over 176
Comment on Failure Testify. To
Brett asserts the prosecutor indirectly commented
on Brett’s failure to testify in
right
violation
his
to remain
to
silent and
due process. See State v.
110
Belgarde,
Wn.2d
504, 511,
(1988);
Evans,
1,
177 Ev- Fricks, State and 588 P.2d 1328 Wn.2d ans, case addresses unpersuasive. Neither supra, are also Litzenberger Crawford, or in Ashby, set the standards forth the lack of evidence determining when comment on for is improper. pros- from the challenges following
Brett statements closing argument: ecutor’s gun absolutely no in this case that that was
There is evidence touched, any way was moved jolted, ever was ever ever accidentally discharged. There’s no evi- gun cause the to be of that. dence (June 11, 1992), 27. Proceedings of vol. at
Report that the defendant possible Counsel also said it’s feasible inject insulin]. type [with used of a needle to himself that feasible, or there’s no evidence of that. plausible Whether it’s directly contrary, that And from Mr. Eales is to the the evidence people watched tens of thousands of cases where he’s you If inject they’d never used that kind of needle. themselves evidence, being plausible judge were to this case on the part feasible is not of the evidence. (June 1992), 62. Proceedings vol. at
Report suggestion by to a Brett response potential accidental, stated: killing prosecutor was run Mr. Brett have offered aid ... he could have least could said, just oh, I out out. He could have what have done run here, gun went off. Shirley, get let’s out that residence. anonymously. have done that Could have called 9-1-1. Could residence, shot, got get somebody let’s out of here Come to this weapon, his and as Ken Shirley. But what did he do? He took Shirley . . . James begging was for life as said Milosevich his you’re premeditation. says going to die . . .. That... is (June 11, 1992), at 30. Proceedings vol. Report no state there is evidence arguments The first two that Brett used the discharged or shotgun accidentally inject friend to himself from his larger needles obtained witnesses who potential were other insulin. There with Shirley Martin and as issues. testified to these could have first shot was due if the could have testified Pat Milosevich Likewise, any number Martin discharge. an accidental of other people conceivably could have known that Brett larger used the daily needles for his injections. insulin See Ashby, 77 Wn.2d at argument 37-38. The third also is not impermissible an comment on testify. Brett’s failure to prosecutor asserting Brett’s are actions inconsistent with *34 a person who has accidentally fired a shotgun and are con- sistent with premeditation.
Comment on Guilt. Brett prosecutor contends the improperly commented on Brett’s when guilt he stated the murder felony conviction (June awas "slam dunk”. Report Proceedings 11, of vol. 1992), Reed, at 16. See State v. 102 Wn.2d 684 P.2d (1984). Brett did not object to this statement at trial. addition, context, when taken in the comment was not the of expression prosecutor’s personal opinion, recog- but nition that Brett had conceded on liability felony mur- charge. prosecutor der The first told jury: respect Felony charge, With to the gentle- Murder ladies and men, going spend talking I’m not much time about that. you Because as defense has conceded know from jury process, selection liability. . . . (June of Report Proceedings 1992), Then, vol. 14 at 14. stated, the prosecutor "Felony Murder an issue for your consideration. I guess in the basketball vernacular it’s (June 1992), Report Proceedings slam dunk.” of vol. at 16. The comment was not improper under the circum- stances of this case.
Robbery Aggravator. objected
Brett argument to the State’s robbery aggravator could be if found even the evidence failed to es- tablish a "taking”. prosecutor’s argument was in accor- judge’s dance with the trial on ruling this issue and with our holding in this There case. was no error.
Law Kidnapping. argument
Brett
argues
prosecutor’s closing
on the law
kidnapping was
error and
because it failed to
prejudicial
inform the
that a
jury
minimal detention which is inciden-
tal
ato
homicide is not
a kidnapping.
considered
See State
(1980).
Green,
v.
94 Wn.2d
Passion and alleges by number of comments the prosecutor jury inflamed the with passion and prejudice. Appeals jury passion are State inappropriate. Belgarde, 504, 755 P.2d
Brett first cites to the prosecutor’s argument should memory believe Mrs. Milosevich’s of the events be- cause at the time she was her "watching husband 33 years being away blown shotgun.” a .410 Report Proceedings (June 11,1992), vol. 14 agree 25. We with the trial court’s overruling assessment objection. Brett’s *35 As far as the argument, tone and tenor of I do not feel as a whole that it did violate the motion in limine. I felt that Mr. quite Curtis was restrained. . .. (June
Report 1992), of Proceedings vol. 14 at 37. Brett also the prosecutor contends inflamed jury while arguing the shot second was premeditated. suggest I you get [A]nd . . . that jury back room and if even think that it wasn’t nice Mr. Brett to Pat shoot of residence,
Milosevieh running when she was out wasn’t of him, gun that nice remember he had to reload his and he had to weapon. choice make because it’s one-shot . The . . weapon choice was to reload that It and him shoot a second time. than in point took more a moment of time that to reload weapon. (Italics ours.) (June 11, 1992), Report Proceedings vol. 14 at 27.
Lastly, re- Brett asserts the State’s rebuttal remarks sponse suggestion to defense that Mr. counsel’s Milosevieh gun inflammatory. moved toward the were 180 says
Again, is Pat the evidence uncontroverted that Milosevich no moving away gun, from . . . there’s her husband was way gun any Mr. touched the evidence that Milosevich anything gun. ? he did had to do with that And so what Even if privacy being gun, move it’s his house. His is toward make being his that invaded. He and are robbed. What does wife right has a shoot Mr. Milosevich it? Defendant Self-defense? moving gun? suggest I the evidence because he’s toward gun. if he suggest not there he moved toward the But even did, nothing premedi- has to do with whether or not Mr. Brett time, let tatedly trigger the first intentionally pulled and alone the time. second (June
(Italics ours.) 1992), Proceedings vol. Report at 63. which court has type
These are not the of comments this See, inflammatory. e.g., Belgarde, held to be Wn.2d group Indian with (prosecutor 506-07 stated the American mad- deadly group was affiliated was "a which defendant " "butchers", them remember Wounded men” and and told 143-44, Dakota”); Reed, Knee, Wn.2d South State a liar (prosecutor P.2d said defendant was times, case, had no said the defendant four stated defense two”, defense witnesses implied was a "murder they from out of town not be believed because were should cars). fancy and drove case, making arguments was prosecutor this has failed to meet on at trial. Brett
based evidence adduced improper these comments were his burden to establish verdict a substantial likelihood the or that there is thereby. affected Jeopardy.
14. Double degree felony of both first argues his convictions suc degree murder constitute aggravated first murder same criminal conduct prosecutions *36 for the cessive federal constitu clause of the jeopardy the double violate Const. amend. 5. tion. See XLS. whether a defend 2-part test to determine
There is
pros
to successive
subjected
unconstitutionally
has been
ant
Laviollette, 118
See State v.
for the same offense.
ecutions
(1992)(citing Grady
Corbin,
Wn.2d
Brett contends his to due tion were violated the trial court’s to failure either impose felony prior on sentence murder conviction to the penalty phase range or inform the on sentences during penalty phase. on that offense See State v. Hen- argues derson, 109 N.M. P.2d this deprived opportunity guilt him of the to use his admission imposed potential mitigating and the sentence as a factor. argument persuasive. Brett’s lan The cited guage placed responsibility in Henderson was dicta and request on the on defendant the sentence or instruction noncapital Henderson, the collateral offense. N.M. 658-59. requested him on
Brett never the trial court sentence felony attempted conviction nor the sen- murder admit *37 182 addition, during
tencing range sentencing hearing. dire, with starting informed the voir jury, defense Brett for Mr. Milosevich’s death accepted responsibility and, find Brett during closing, urged guilty to The de- felony premeditated murder rather than murder. to use Brett’s admission every opportunity fense had guilt mitigating as a factor. statutory right proceed he a to to
Brett also contends had days attempted plead guilty within 40 after he to sentencing pursu- complaint to murder under the first amended felony 9.94A.110, which provides: ant RCW defendant, imposing upon a the court shall Before sentence sentencing hearing sentencing hearing. The shall be conduct following . . . forty days held within court conviction. 2, is without merit. As discussed issue argument This to the right plead guilty Brett not an did have absolute trig- first amended information. RCW 9.94A.110 Brett properly time. The trial court sentenced gered at degree with aggra- murder in the first premeditated on him on and need not have sentenced vated circumstances concurrently. run See as the time would felony murder RCW 9.94A.400.
Analysis
Penalty
Phase
associated with the
reviews claimed errors
This court
heightened
case
scru
under
sentencing phase
capital
(1991)
829, 888,
16. Criminal admit, during penalty was error Brett asserts it adult crim- adjudications his juvenile evidence of phase, nonstatutory aggravators. inal as convictions Adult Criminal Convictions. argues prior convictions, admittance of his criminal constitutionally statutorily valid,
while
is not
authorized
Washington’s
penalty
because
death
statute does not ex-
pressly
aggravators.
nonstatutory
refer to
See Zant v. Ste-
phens,
462 U.S.
77 L.
2d
Ed.
S. Ct. 2733
(Georgia
penalty
provides
statutory aggra-
death
statute
for
law”).
aggravators
vators and
"otherwise authorized
See
(Fla. 1992);
State,
also Geralds v.
2d
So.
Wike v.
(Fla. 1992) (similar
State,
Washington’s penalty statute, however, death authorizes jury prior history the to a consider defendant’s criminal in 10.95.070(1) penalty phase. provides: the RCW deciding question by 10.95.060(4), posed jury RCW may any factors, . . . including consider relevant but not limited following: to the
(1) Whether signifi- defendant has or not a does have history, juvenile adult, cant as a either or an prior crimi- activity!.] nal support provi
We find no for Brett’s contention this only may sion be used as shield to rebut an assertion that significant history, the defendant lacks a criminal not as a sword when the defendant makes no such assertion. The expressly jury "may statute states the consider” a defend history determining ant’s criminal in whether are there suf mitigating leniency. ficient circumstances merit See Bar II, 642-43;Lord, tholomew at 117 Wn.2d at We 896-97. also persuaded prior are not admission convictions must subject balancing be to a under ER 403 404. test and We previously have indicated now establish that admission prior balancing convictions does not necessitate a test "reasonably objective” such because evidence is and "reli- I, at adhere our able”. Bartholomew 196. We decisions I II. Bartholomew and Bartholomew Juvenile Adjudications. use argues juvenile adjudications of his argument This sentencing proceeding prejudicial. 10.95.070(1) expressly provides pen
without merit. RCW alty phase may consider a defendant’s record. juvenile Lord, 117 at 896-97. See Wn.2d occur argues juvenile adjudications
Brett also which because age penalty phase are inadmissible prior SRA those from considered being excludes convictions in a See RCW by sentencing judge felony normal case. 9.94A.030(12). 9.94A.360(4); however, SRA, does RCW sentencing of defendants. govern capital separate The SRA RCW 10.95 two functions serve Kron, State v. 63 Wn. App. are consistent. See denied, 119 The SRA is P.2d review Wn.2d It sentencing system felony a determinate for offenders. score of degree aggravated first murder seriousness gives sentences, pa- life without provides possible 15 and for two statute, however, to gov- or death. The does not purport role sentencing deci- guide juries in their penalty phase ern or 10.95, guides which sions. This function is served RCW *39 an individual- jury’s reaching and channels the discretion for of a each defendant convicted sentencing ized decision capital offense. is consistent juvenile
The use of convictions pre-age-15 because, mitigat- along with evidence of purpose with this a under- circumstances, it the broader provides ing and character. standing background of the defendant’s Cf. (prior P.2d 824 McAlpin, 108 Wn.2d State of stan- excluded SRA for calculation by conviction juvenile sentence). exceptional to range impose be used may dard prior of a defendant’s held the admission This court has informa- not because the prejudicial convictions is criminal I, This at 196. and reliable. Bartholomew objective tion is applies equally pre-age-15 juvenile adjudica- rationale to tions.
Lastly, Brett
if
asserts that
this court
RCW
holds
inapplicable
penalty
capital
phase
9.94A.360 is
to the
of
equal protection
cases, then this exclusion violates
the
under
argues
singling
state and federal constitutions. He
out
aggravated
group
murder
the
be
defendants as
sole
ex
statutory
cluded from RCW 9.94A.360
creates
classifica
scrutiny
tion
not
that does
meet the strict
test. See State v.
argu
Rice,
384, 399-400,
We hold trial did err court the State juvenile prior adjudications to introduce evidence of Brett’s during penalty phase. and adult convictions Mitigation 17. Cross Examination Defense Witnesses. Details Juvenile Convictions. argues prosecutor’s cross examination of three mitigation bring- process by
defense witnesses violated due ing juvenile out details his convictions. He asserts prejudicial outweighed effect the evidence its rebuttal II, See value. Bartholomew at 642-43. prosecution
Rebuttal evidence offered will be mitigation by if admitted "it is relevant to matter raised in outweighs "the defendant” and rebuttal value of the evidence prejudicial II, effect. . .”. Bartholomew 101Wn.2d at 643 197-98). (quoting supra, I, Lord, Bartholomew at State v. adopted balancing court test set forth ER 403 to prosecution determine admis whether rebuttal evidence is penalty phase. Lord, sible in the at 891. Under Wn.2d *40 " relevant, standard, '[although evidence [rebuttal] this substantially probative be if its value is may excluded Lord, ”. outweighed danger prejudice of . . .’ by the unfair 403). 117 Wn.2d at 891 analogized (quoting ER court concerning rules character this situation to the evidence to be allow a defendant’s character witness evidence which personal knowledge specific of regarding cross-examined Lord, 117 Wn.2d at 891. incidents of misconduct. "has may only asked he
A character witness be whether defendant, may but also be heard” this that about the he or you asked "Do know” this that about defendant. Lord, Karl B. Wash. (quoting Tegland, at 891-92 Wn.2d 1989)). (3d con Evidence § Prac., at 450 ed. The court cluded, concern may witnesses be cross-examined "defense by mitigation to matter raised in ing anything relevant Lord, balancing defendant, subject to the test.” the Lord court standard, upheld this at 892. Applying Wn.2d mitigation examination witness re cross of defense wit after that the details of Lord’s misconduct garding prior Lord, 117 'good had that Lord "was a boy’.” ness testified at 893-94. Wn.2d was relevant case,
In this the State’s cross examination defense, and the value probative rebut matters raised its "substantially outweighed” by evidence was not of this effect. prejudicial administrator with Youngen, program
Sandra Washing- Rehabilitation for State Division Juvenile as Lane School on direct examination Maple ton at testified follows: with Brett and this
Q: your experiences on all of James Based has been years, aware that he you’re was over a period taking person’s of another life? involved in the IA: am. information, you did
Q: you with that provided When were any surprise you? itDid have reaction? Shocked me. A: James, he you think
Q: your experiences with did Based on all doing capable that? been would ever have life, taking no. A: No. Not someone’s Report examination, of Proceedings vol. at 26. On cross prosecutor from Youngen elicited that she was aware *41 that as a of an a result assault on staff member at Echo Glen
Children’s Center that kidnapping Brett was convicted of degree, the first degree, assault the second and escape degree. Then, the first the prosecutor queried: Q: you And up [were aware] that he had [Brett] snuck on a staff behind, counselor from placed tightly towel wound around her mouth and then moved the towel to and her throat strangled you her with the towel? Were aware of that? objection
[Defense overruled.] Q: And that she was prior bound with electrical cord to Mr. escaping?
Brett I something A: do bound, recall being yes. about her of Report vol Proceedings at 28-29. then Youngen testi- fied that her reaction of at shock Brett’s conviction was based only his upon during stay Lane, behavior his at Maple prior redirect, not on his behavior. On the defense counsel brought up the by Echo Glen incident again asking Youngen youth whether other were involved. alleges
Brett also the trial court erred in allowing prosecution to Jeffrey cross-examine Johnson and Dr. James Owens regarding the details of Echo Glen assault.
Johnson was the superintendent associate at Lane Maple direct, while Brett was at that On facility. Johnson testified cross, that Brett was not a threatening person. On pros- if ecution asked Johnson he was aware that Brett had previ- been ously assault, convicted of kidnapping, for escape assaulting a staff worker at Echo Glen and whether he knew Johnson the details of the assault. that he knew responded about the but kidnapping did not know about the strangula- being tion attempt subpoenaed. until Dr. Owens was the medical director at Glen Echo Chil- direct, during dren’s Center On period. relevant time Dr. Owens testified he knew about on a assault staff surprised worker but felt much” about "[v]ery still Brett’s Proceedings 163. Report conviction. of vol. He also day he his spend testified that took Brett home to with examination, On prosecutor wife two sons. cross if home or after the assault. asked Owens took Brett before also if was that worker He asked Owens it correct staff he replied was with a towel”. Owens "strangled her "got understood that was how Brett control her Report Proceedings vol. at 166. keys”. at Echo
The evidence of the incident regarding details were each witness’ testi- mitigation Glen relevant rebut mony threatening person that Brett was not a and/or has not surprising person’s it was that he took life. Brett is "sub- probative value of this rebuttal evidence shown stantially outweighed” prejudicial its effect. The age aware had been convicted 15 crimes since the It was also aware of the violent nature of Mr. Milosev- 12. pre- totality ich’s murder. Under "the of the circumstances to the evidence was admitted.” jury,... improper sented no *42 Lord, permit- 117 Wn.2d at "Unless the prosecution 895. evidence, ap- jury may to rebut well ted defendant’s an sentencing incomplete the crucial decision with proach Lord, 894. 117 Wn.2d at picture.” Criminal Uncharged Activity. allowing in
Brett also asserts the trial court erred cross-examine un- regarding Gwen Blackmon prosecution son. engaged by in Brett and her charged activity criminal a 1983 Brett’s codefendant in Blackmon is the mother of direct, On Blackmon testified robbery conviction. "a gentle- respected and that he was real people” "James stated, 17, She also Proceedings vol. at 190. Report man”. of Burglary, James. "I have from expected would never murder, Report for to swallow.” But that’s real hard me yes. examination, after On Proceedings vol. at 192. cross of robbery, prosecu- the 1983 Blackmon about questioning in other any if and were "involved asked her son tor Black- vol. at 193. together”. Report Proceedings of crime responded: mon unsupervised were and burglaries they because A lot of small — money, no
running night they were had at of I lot times didn’t see violence but I a lot evidence of heard talk about it. Report Proceedings vol. at 193.
Uncharged criminal
may
presented
activities
not be
to the
as a
jury
nonstatutory
aggravating
Bar
factor.
II,
tholomew at
The prosecutor may, however,
642.
introduce
evidence to rebut matters raised in
mitigation by
defen
subject
dant
balancing
test set
forth
ER 403. Bar
II,
642-43; Lord,
tholomew
Here, questions regarding
uncharged
Brett’s
ac-
criminal
tivity were
they
relevant because
were used to rebut Black-
testimony
mon’s
that Brett
"respected people” and "was
gentleman”. The probative
testimony
value of this
substantially outweighed
its
by
prejudicial
The
impact.
was aware of the
murder committed
Brett and of his prior
juvenile and adult convictions.
testimony
was not cumu-
or graphic
context,
lative
nature.
this
the rebuttal
value of
outweighs
the evidence
prejudicial
impact.
its
See
Lord,
Fatalistic Beliefs.
Brett asserts the prosecutor’s Sherry cross examination Brett, mother, Brett’s regarding Brett’s fatalistic beliefs right violated religious his to free expression under Const. art. which provides: § Absolute freedom of in all religious conscience matters of sentiment, worship, guaranteed belief and every shall be in- dividual, and person no one shall be or molested disturbed
property religion!.] on account of During phase, the penalty Sherry Brett testified that Brett spells would have depression would become violent *43 examination, and On self-destructive. cross the prosecutor followed on up this line of questioning.
Q: you Mr. Foister also depressed, your gets asked about fact that son you gets said that he violent and self destruc-
tive; is that correct? Yes, A: he does.
Q: presents life; He a also rather fatalistic attitude about isn’t
that correct.
190 you’re saying.
A: what? what Like I don’t understand a Q: things he made get depressed he about and hasn’t Doesn’t past 15 you at once in the that within statement to least years will here? the end of the world be him A: Yes. I’ve heard make that statement. redirect, 15, at On defense Proceedings vol. 95.
Report of son’s testimony Sherry from Brett that her counsel elicited teachings of the Jehovah’s belief one of the fatalistic Witnesses, of she and her son were followers. which his violated argues prosecutor’s questioning
Brett
to
religious
jury
belief and allowed
absolute freedom
constitutionally
pro-
an
inference from his
draw
adverse
664, 704-05,
Rupe, 101 Wn.2d
tected behavior. See State v.
argument
persuasive.
is not
18. Instruction. his by failing give the trial court erred Brett contends instructing on instructions proposed leniency. presumption instruction: gave following court trial State has the sentencing proceeding, the
During special this that there reasonable doubt proving you beyond burden of leniency to merit mitigating circumstances are sufficient imposed. be penalty the death should therefore and that exists for which reason A doubt is one reasonable It is such or lack of evidence. may from the evidence arise
191 as person doubt would exist the mind of a reasonable after fully, fairly carefully considering all of the evidence or If, consideration, you lack of evidence. after such an have abiding mitigating belief that there are not sufficient circum- leniency, stances merit you are a beyond satisfied reason- able doubt. hand, if, consideration, On the other such you after not do abiding have an proved beyond belief that the State has rea- sonable doubt that stances to merit there mitigating are sufficient circum- leniency, you beyond are not satisfied a reason- able doubt. 3; Papers, Instruction Clerk’s at 546.
There is no
right
constitutional
to a
presumption
sufficient mitigating
State
circumstances
to merit
leniency.
Benn,
v.
289,
120 Wn.2d
denied,
cert.
845 P.2d
114
Mak,
(1993);
S. Ct. 382
right
Wn.2d at 756. This
cre
10.95.060(4).
ated
statute
Washington. RCW
Accord
ingly,
giving
of leniency instructions
is consistent with
See State v. Jeffries, 105 Wn.2d
statutory
our
scheme.
398,
denied,
422,
722,
(1986); Benn,
cert.
717 P.2d
19. No Sympathy Instruction. Brett contends sympathy” "no instruction violates (due 1, (cruel process) Const. art. Const. art. § § punishment) "mercy” and is inconsistent with the instruc tion. gave following
The court instruction: You impartially are officers of the court and must act an with earnest desire to determine and declare proper Throughout your you permit verdict. deliberations will neither sympathy prejudice you. nor to influence 1; Papers, Instruction Clerk’s at 543-44. The Defendant’s proposed language. instruction deleted the "no sympathy” Eighth an upheld
We
identical
instruction under
Rupe,
In re
Amendments.
and Fourteenth
III).
(Rupe
Rupe III, holding, majority at In so the 396. could not what is forbid- permit state constitution "the III, at 396. Rupe the States Constitution.” den under United Gunwall addition, factors In conclusion that Brett’s are under the state constitution justify protections broader Rupe by III. arguments this court rejected based on mercy, sympa- has as to Lastly, opposed this court held Mak, 754; mitigating circumstance. See thy, proper is a dissenting). See also WPIC J., III, (Utter, Rupe at 407-08 are emotional (passion, prejudice, sympathy 31.03 cmt. reason). considerations, is on mercy while based Duty 20. To Consult Instruction. on un- phase jury instructions argues penalty
Brett be conflicting reasonably interpreted are and could animity a for life unanimity to return verdict violation require to statute, pro- federal due death state and penalty of state with- cess, argument This cruel clauses. punishment neither conflict The instructions cited out merit. be misled to believe jury would possibility nor create a for to verdict a decision return it must reach unanimous of possibility parole. life without provides:
The to consult instruction duty duty one another and to consult with have Jurors verdict, if it reaching a unanimous with a view to deliberate Each of judgment. violence individual can be done without impar- after an yourself only but the case for you must decide your jurors. fellow of the evidence with tial consideration deliberations, to re- you not hesitate should your of the course your change your examine own if opinion you views are However, you convinced it is erroneous. should not surrender your honest weight conviction as to the or the evidence effect of solely opinions jurors, because your of fellow for mere purpose returning verdict. (Italics ours.) 2; Instruction Clerk’s Papers, at 545. When read in entirety, its this instruction does not imply a "duty” has to reach a unanimous The verdict for life. verdict form and instruction 4 clearly inform the jury that if isit unable to unanimously agree, the sentence will be life parole. without provides: verdict form Unanimously Agree” [ ] "Unable to (In which case the shall defendant be sentenced imprisonment life without possibility parole) Clerk’s 554. Papers, at Instruction 4 stated: you unanimously "no,” If you answer or if agree are unable to answer,
aon unanimous imprisonment the sentence will be life possibility without the parole.
Clerk’s Papers, at 547. Instruction 10 also expressly allows for nonunanimous verdict. all you If twelve of unanimously agree, are unable to fill in the
answer question to the in the appropriate place on verdict *46 . form. . . Clerk’s Papers, at 553.
These jury are misleading instructions and in- each forms jury the it if may jurors return verdict the are agree. unable to
21. Mitigating Factors Not on by Relied Defense.
Brett contends giving the trial court erred in an instruc- 10.95.070, tion in the of language listing statutory RCW the mitigating factors with the that it instruction could consider "any factors, including relevant but not to” limited those 4; listed. Instruction Clerk’s at 547. The Papers, defense to this objected exception instruction took to the court’s failure to its instruction of give proposed limiting list mitigators to those relied on the defense.
194 to jury
Brett
instructions
allowed
argues these
cir
aggravating
as
mitigators
consider the absence
some
miti
nonstatutory
on
place
weight
cumstances and to
less
re
consistently
These
have been
gating
arguments
factors.
jury may
It
be
this
is "well settled” the
jected by
court.
See
v.
10.95.070.
State
language
instructed
RCW
denied,
734,
(1987), cert.
764,
22.
10.95.070.
4,
which
RCW 10.95.070
instruction
Brett asserts
are
language,
unconstitutional
statutory
incorporates
rele-
"may
any
consider
only
told
it
jury
because
factors”,
it
consider such
rather
than
shall
[mitigating]
vant
may
weight
determine what
argues
factors.
evidence,
should not have the discretion
such
but
give to
Otherwise, he
the evidence.
whether
consider
regarding
ap-
"tailor and
contends,
statute does not
penalty
the death
arbitrary
capri-
in a manner
that avoids
its law
ply
v.
penalty.” Godfrey Georgia,
infliction of the death
cious
(1980). In
398,
428,
Just as the State
factor,
may
neither
the sen-
mitigating
considering any
from
law,
consider,
any relevant
a matter
refuse to
as
tencer
of
instance,
judge
it
as if the trial
mitigating
In this
was
evidence.
mitigating
Ed-
disregard the
evidence
jury
had instructed
dings
on his behalf. . . .
proffered
Eddings, jury preclude and instruction did not RCW 10.95.070 mitigating presented evidence considering any from of and the instruction contrary, On the both the statute Brett. allowed jury of all such The allow consideration evidence. little, does not any, weight, if but this give the evidence not told to jury and Lockett. was Eddings run afoul There no error. of Brett’s disregard upbringing. evidence (6) 10.95.070(1), (2), are uncon- Brett also asserts RCW "extreme”, "significant”, the terms stitutional because channel sufficiently are and do not "substantially” vague RCW Georgia, supra. discretion. See jury’s Godfrey provides: 10.95.070 factors, including relevant but may any . . . consider
[T]he following: not limited to the (1) significant or does not have a Whether the defendant has adult, juvenile prior criminal activ-
history, either as a or an ity; (2) while the defendant disturbance; the murder was committed Whether mental
was under the influence of extreme murder, Whether, capacity at the time of the wrongfulness of his or her conduct appreciate defendant to or to conform his or her conduct of law was requirements to the defect!.] mental disease or substantially impaired as a result of (Italics ours.) 4; at 547. Papers, Clerk’s See instruction : full "having meaning; esp as is defined
"Significant”
Dictionary
New International
Webster’s Third
import”.
(15th
1971).
rev. ed.
"Substantial” means "consider
*48
amount, value,
able in
or
Webster’s,
worth”.
at 2280. "Ex
"existing
highest
greatest pos
treme” means
in the
or the
degree very great: very
sible
:
Webster’s,
intense”.
at 807.
jury
apply
Defendant contends the
will
terms
an ad
essentially,
manner,
hoc
because each term is defined with
of
use more than
terms, however,
one word. These
They
commonly
must be read in context.
are
understood
provide
jury
adequate
terms and
with an
measure
considering
mitigating
when
circumstances. The terms
"significant”,
"substantially”
"extreme”, and
are not in
flammatory
jury
rampant by
nor will
discretion be set
Benn,
their use. See State v.
631, 674-75,
120 Wn.2d
(1993).
denied,
P.2d
cert.
This culpability information . . . doesn’t reduce the moral accept that Mr. Brett must for his crime. Report Proceedings vol. at 96. through put Defense has numerous witnesses forward to
you defendant, Brett, the fact that this Mr. is institutionalized. agree And the State will he is institutionalized.What does it reduce you? How does that to do with the issue before have his Being institutional- degree culpability? moral It doesn’t. nothing it has interesting. know that. But It’s nice to ized is nothing Absolutely to do you. before question do with the with it. 18, at 97. Proceedings vol.
Report of based on instruction were prosecutor’s arguments provided: which information, fact, event, any mitigating
A circumstance is either the offense or about the defendant which condition about in fairness extenuating or mercy may or in be considered as justifies or which reducing sentence of less excuse the offense. degree culpability moral death, although justify or than it does not (Italics ours.) challenge Clerk’s at 550. Brett does not Papers, *49 argued The defense could have under instruction 7. only moral is one culpability instruction that reduction of mitigating evidence. The instruction assessing method mitigating which allows a factor to be disjunctive contains fact, event, justifies or condition "which sentence any argu- to make this less than death”. The defense’s failure argument prosecutor’s improper ment does not render prejudicial. improperly argued argues prosecutor Brett also as a result of "substantially impaired was not defendant right wrong. defect” he knew from mental disease or because insanity argument erroneously applied this He asserts 10.95.070(6). Brett mitigating factor. RCW standard to this "[tjhere absolutely statement that prosecutor’s cites to the 3rd, Mr. Brett on December no in this case that evidence of mental disease or 1991, suffering any type from was 18, at 89. The prosecutor vol. Proceedings defect.” Report Brett had fetal that, if inferred further even argued effect, alcohol or fetal syndrome alcohol Ryan people said can still anything because Dr. it doesn’t mean choices, wrong, right from make know They make still choices. they a crime that they they when do commit know doing shouldn’t be it. never prosecutor Proceedings vol. at 91.
Report expressly mentioned insanity 9A.12.010(l)(b), or RCW which provides that "as a result of mental disease or defect, the mind of the actor was affected to such an extent that. . . was right [h]e unable to tell wrong from . . .”. context, the prosecutor’s statements were consistent with argument his mitigation evidence did not reduce the moral culpability of the defendant. The defense was that, free to argue although not reducing his moral culpa- bility, evidence of would nonetheless "justiffy] FAS/FAE sentence of less than death . . .”. Papers, Clerk’s at 550. The prosecutor’s argument was proper and the instruction to the jury proper. There was no error.
24. Ineffective Assistance of Counsel.
Brett contends he received ineffective assistance of coun- sel because trial counsel failed request an instruction on the elements of the aggravating factors and failed to request an instruction on the effect of voluntary intoxication. Dur- ing oral argument, defense counsel withdrew their allega- tion of ineffective assistance based on counsel’s failure to obtain an expert to diagnose fetal alcohol syndrome or fetal alcohol effect.
Washington has adopted the 2-prong test set forth in
Strickland v.
674, 104
Washington,
U.S.
80 L. Ed. 2d
S. Ct. 2052
for determining whether counsel was inef
Leavitt,
fective. State v.
(1988);
Wn.2d
The
prong
first
a
requires
showing that "counsel’s repre-
sentation fell
an objective
below
standard of reasonableness
based on consideration of all of the circumstances.” State v.
(1987).
Thomas,
109 Wn.2d
Under the second
establishes,
but for
with reasonable
probability,
fendant
proceedings
would have
counsel’s errors the outcome of
Leavitt,
prob-
"A reasonable
been different.
72.
to
confidence
ability is
sufficient
undermine
probability
Strickland,
Brett also asserts trial counsel’s failure to a volun- assis- tary intoxication instruction constitutes ineffective of was not substan- tance counsel. State counters there disagrees Brett support tial evidence to the instruction. were citing Shirley testimony Martin’s that she Brett during of crime. high planning stages day on the testimony Kathleen conflicting presented There also of Quinn that Brett did to be under influence appear crime. on the drugs day alcohol Thomas, supra, State v. support posi- his cites to Thomas, alleged ineffective assistance tion. defendant capacity her a diminished present because counsel failed to of at- charge voluntary defense based on intoxication ev- was substantial police to elude vehicle. There tempting heavily prior to the drinking that Thomas had been idence Under she "blacked out” the event. incident and that had statute, a defend- felony flight of the this court’s construal rebut an infer- can be used to subjective ant’s state mind " ' and wilful "wanton by objective ence created conduct . . disregard property for the lives or others *51 200
Thomas, 109 Wn.2d at (quoting Sherman, 227 State v. (1982)). Wn.2d counsel, P.2d Trial however, failed to request Sherman instruction she so that could use of evidence her intoxication to rebut the inference cre- ated her by driving. The held performance court counsel’s was and prejudiced deficient the defendant. The court also Thomas, the characterized issue as "close” one. Wn.2d at 229. case, present the trial perfor- whether counsel’s deficient prejudiced hand, mance driving objectively Thomas a close issue. On the one her required or indicated the wanton willful dis- regard. hand, theOn other the record indicates that Thomas extremely instruction, intoxicated. Given Sherman the
jury may have
her
determined that
extreme intoxication ne-
gated
required
or
wantonness willfulness. Without the Sher-
man
jury may
thought
objec-
instruction the
well
have
tive
driving
of
disregard
indication
wanton
willful
created
her
and, therefore,
guilt
established
jury may
Thomas’
subjective
never have considered the
component
RCW
felony
Thus,
flight
46.61.024
a proper
[the
statute].
we believe
subjective
component
instruction on
of RCW 46.61.024 was
Accordingly,
crucial.
our
confidence
the outcome is under-
say
mined such that we cannot
Thomas received effective assis-
tance of counsel. . . .
Thomas,
The regarding facts are not Brett’s intoxication as sub- stantial in Thomas; as those they conflicting. Shirley are however, testimony, Martin’s was probably sufficient to re- quest a voluntary instruction. The failure to intoxication request such an instruction does not have been a appear to tactical given decision the defense to show Brett’s strategy record, premeditation. however, lack of The not support does Brett’s contention of prejudice because there was over- whelming evidence of would premeditation. The have had to all during planning implementa- find that of the tion negated of this crime Brett intoxicated that it was so for required premeditation. element of intent Given the weight premeditation, of the evidence Brett fails supporting is a probability show there reasonable the inclusion of such an changed instruction would have the outcome proceedings. To a Death Sentence. Impose
25. Jurisdiction 10.95.040(2) provides: RCW sentencing proceeding filed and special shall be notice attorney within served on the defendant or defendant’s charge upon
thirty arraignment days after defendant’s degree . aggravated first murder . .. *52 intent timely filed a notice of The defense concedes the State filing original of the following seek the the penalty to death however, asserts, when the second information. Brett that filed, only the of the notice body amended was information The notice stated: referred to the first amended information. prosecuting attorney] give notice that demand [The does this sentencing special proceeding is made to determine for defendant, Brett, Leroy have whether not the James should imposed him a 1 of the upon sentence of death as to Count Information herein . . Amended filed .. argues
Clerk’s at 206. that because the notice Papers, Brett ar- to amended and he was never refers the information information, in- raigned on the first amended the notice is jurisdiction trial lacked impose valid court notice, however, death The refers to the "Amend- sentence. The informa- ed Information herein”. second amended filed was with notice. only tion amended information filed addition, attorney referred to the second prosecuting amended information in affidavit. accompanying his March An was filed with this court on Amended Information 1992, 27, was on "Second Amended” Information filed 26, 1992, charge I
April Count which continues to the defen- Degree Aggravated dant with the crime Murder in First that are not I to have reason to believe . . . there continue le- mitigating circumstances in this case to merit sufficient niency. (Italics ours.) Clerk’s 207-08. Papers, be only can penalty of intent to seek the death notice 16, On referring April the second amended information. arraigned the first amended 1992, the Brett was to be on day file the information, motion to granted the court State’s that arraigned on information. was second amended information, and the notice to penalty seek death filed on day. The State complied require- with 10.95.040(2). ments of RCW
26. Motion for Continuance.
On June the defense for a moved continuance of phase penalty proceedings for month to secure an expert to evaluate whether Brett suffered from fetal alcohol syndrome or fetal alcohol effect. Defense counsel asserted they learned this after potential issue Brett’s mother during testified the penalty phase she drank heavily during Thereafter, her pregnancy. defense counsel consulted with medical staff Oregon at the Health University Sciences and after initial they available, indications be would counsel on was advised June staff that the would assist due to potential liability concerns. Defense counsel con- Seattle, tacted the offices of Sterling Dr. Clarren but was advised the doctor until was on vacation June 1992. Dr. Sabin, a pediatrician diagnose FAS/FAE, Portland able to was then contacted but was unable assist on such short *53 notice and would to 4 to an need 2 weeks schedule evalua- tion. objected
The arguing State to the continuance the defense case, had over 6 months to prepare experts ap- the had pointed on an ex basis from an parte independent judge to allow confidentiality investigation, for its and had not any expert notified the State that was to be The called. State surprised also the was Mrs. by asserts defense not Brett’s testimony regarding her alcoholism. Mrs. was Brett avail- able to the defense since the of and inception the the.case jury defense conducted voir with the dire the about issue of addition, fetal its a syndrome. alcohol in motion for hear- evidence, to ing take additional the defense an af- submitted indicating fidavit knowledge from defense counsel this is- April sue since the middle of 1992. the file parte
The State also asserts that after ex was Stanulis, a the consulted with Robert opened, prosecutor by the Dr. Stanulis in- neuropsychologist retained defense. suffering a person the effect on the that prosecutor formed intelligence, syndrome is subnormal from fetal alcohol in determining deficiency is irrelevant the cause that mitigating be considered a deficiency the would whether of Brett’s The State added that evidence circumstance. and the already jury, was before intelligence lower his was irrelevant. Dr. Stanulis deficiency cause of mental as witness the defense. subsequently was called stating: trial motion court denied the cause, being proximate syndrome far as As the fetal alcohol — will, I what Mr. you place, if what took don’t know that’s about, talking basically its rel- [prosecutor] was Curtis was regard. mitigation is .... So evance that The issue course jury crank into their concern is whether or not will this thought processes and whether or not it should be determine penalty. parole life without or the death says, if expert an gets But me back to the issue of even that syndrome or alcohol ef- yes, does have fetal alcohol fetal James fect, act or as is or not that would excuse the issue whether [defense as Dane explain counsel] to whether or not it would Mr. aptly put opening it in statement. The has heard about so drinking. Sherry credibility That’s a issue.. . . We know Brett’s according to memo that Mr. Foister that James’ behavior given may has certain characteristics counsel] exhibit [defense you expert alcohol effect. The that that are consistent with fetal you got presume I testify symptoms. call can that these are the symptoms of fetal data in the memo that these are the this effect, argue you syndrome or alcohol can to alcohol fetal symptoms of fetal alcohol effect. jury that these are the drinking. symptoms are Sherry says she These And, therefore, gentlemen, ladies and portrayed. that James has suffering logical James was or inference that it’s conclusion and ask for syndrome fetal or fetal alcohol effect from alcohol mercy on basis. that bringing experts in we’re not I don’t think the fact that James, fact, syndrome or fetal testify has fetal alcohol
to argument going to the to be that crucial alcohol effect weigh I jury. I think when And you’re going put before —days up the case for the abatement of that versus — longer I think it talking say probably we when we’re I will the victim. So injustice be the State and to would an *54 deny the motion. 17, at 149-50. Proceedings vol.
Report
denial
Following
motion,
of the
parties agreed
the
argue
defense could
jury,
the inference to the
State
could
inform
diagnosis,
there was no
but it could not com-
why
ment as to
diagnosis.
there was no
The court reviews the denial of a continuance under
an abuse of discretion
State
Campbell,
standard.
14,
1,
(1984),
Wn.2d
denied,
P.2d 929
cert.
Under the circumstances this the trial court did not its abuse discretion in denying continuance. defense presented testimony from Dr. Ryan, chemical and dependency counselor, mental health regarding the symptoms exhibited by persons suffering from FAS and FAE and the causative leading factors to those conditions. Testi- mony presented regarding was Brett’s upbringing and be- havior argue which allowed the defense the jury infer that Brett suffered from FAS or FAE. addition, /FAE, a diagnosis according of FAS to defense Stanulis,
retained expert nothing Dr. would place more than a label on Brett’s intelligence lower and behavioral prob- lems, evidence already which was before the jury. With or label, diagnosis without argue the defense could such mitigated evidence favor of the lesser sentence. this is a
Although alleged case and we capital review er rors in with penalty phase heightened scrutiny, the stan Benn, dard of review not raised. State v. denied, 845 P.2d 114 S. cert. Ct. 382 After
carefully record, are reviewing persuaded we not trial court abused its discretion in denying the motion for diagnosis certain, the continuance. An affirmative was was argue FAS/FAE, the defense free to Brett suffered from a diagnosis nothing Dr. Stanulis indicated would add intelligence further lower to the evidence Brett’s already behavioral before problems, evidence which jury. *55 Constitutionality of RCW 10.95.
27. is unconstitutional because RCW 10.95
Brett asserts guide prosecutor’s standards to the inadequate it provides This has been argument penalty. to seek the death discretion Benn, at 667. this 120 Wn.2d rejected” by court. "repeatedly Next, by argu 13 "adopts incorporates reference” by previous capital cases: appellants ments advanced (2) (1) doctrine; separation of powers 10.95 violates the RCW protection federal equal RCW 10.95 violates the state and (4) (3) clauses; vagueness; RCW 10.95 RCW 10.95 is void for (5) 10.95 RCW punishment; constitutes cruel and unusual the law in violation of unequal administration promotes (6) Amendment; have the Defendant should the Fourteenth (7) information; than charged by been indictment rather an obtaining effect of RCW 10.95.040 combined (8) problem; the separation powers indictment exacerbates statute; mandatory penalty RCW to a death 10.95 amounts (9) to unconstitutionally 10.95.060 shifts the burden RCW (10) defendants; right RCW 10.95 denies defendant require it to review because does not appellate effective to circumstances were jury mitigating articulate which (11) how were RCW 10.95.020 they weighed; found and trial, to a fair effective assistance process, rights due violates counsel, failing defend provide and confrontation to right to the trial given ant with the to rebut information (12) fails is unconstitutional because it judge; RCW 10.95.020 for the death persons eligible penalty; the class of narrow jury death violates process qualifying under the state and impartial fair and guaranties federal constitutions. solely upon based decline to address these issues
We (brief 10.3(a)(5) in must arguments. See RAP incorporated legal authority); State as well as citation argument clude (1991), 829, 177 cert. 916, 822 P.2d Lord, v. 117 Wn.2d (1992). however, note, argu- these denied, U.S. 856 We 506 206
merits have
rejected.
been
See
previously
State v. Camp-
(issues
bell,
4);
1
supra
through
supra;
State v. Rupe,
State
(1984) (issue
Dictado,
277,
102 Wn.2d
Brett argues there was insufficient evidence to sup
port
jury’s
verdict of death. The court reviews the evi
*56
dence in the light most
the prosecution
favorable to
determine if any rational
trier of fact could have found suf
ficient
justify
evidence to
the
beyond
verdict
a reasonable
doubt.
Rupe,
State v.
Brett the justified verdict was not because killing the did viciousness; not involve prolonged torture or aby neglectful, was raised alcoholic mother and sev- eral alcoholic he was stepfathers; institutionalized and sabotage gains would his return a to more structured environment; he had a intelligence might low and suffer from FAE; FAS or he a helped Maple Lane counselor in a
potentially dangerous situation involving juvenile another inmate; and capable he was being gentle caring person to his nephews and Martin’s son.
Weighing against mitigating these circumstances is the crime guilty. of which Brett was found See RCW 10.95- .060(4). horrendous, planned The crime that was in- was cluding injecting a toxic substance into the victims’ heads to kill them. The killing picking actual involved a house at random, Milosevich, shooting the Mr. in the occupant, chest wife, his and reloading weapon shooting front of the and him again the of the head back while Mr. Milosevich awry, Although plan went for his life. pleaded obtained to facilitate planned, was items were murder cover the crime. crime, up were taken to steps and robbery, of burglary, in the course crime was committed identity perpe- of the and to conceal kidnapping, trators. crime, and the planning, the nature of the its
Given factors, trier fact could a rational aggravating number of beyond a reason- leniency find to merit insufficient evidence justify evidence to able We hold there sufficient doubt. jury’s verdict. Proportionality 29. Review. 10.95.130(2)(b) must determine: this court provides
RCW disproportion- is excessive or Whether the sentence death cases, considering imposed in both the penalty ate to the similar subsection, purposes defendant. For the means cases of this crime Washington Reports reported "similar cases” or 1, 1965, in Washington Appellate Reports January since judge imposition capital or considered the which executed, regardless imposed it was punishment of whether supreme with reports in which been filed cases have 10.95.120[.] court under RCW cannot be con- review proportionality
Brett contends of cases because the "universe” principled ducted on basis comparison for from cases are drawn which "similar” from two includes cases He asserts the "universe” reliable. *57 statutes, in- sympathy cases where penalty invalid death review allowed, proportionality cases where were structions conducted conducted, review was and cases where was not also asserts smaller. Brett when the "universe” was death because under former incomplete "universe” by penalty avoid the death defendants could penalty statute do reports trial court contends guilty. further pleading cir- regarding mitigating information adequate not contain for what is no definition argues he there Lastly, cumstances. "disproportionate”. a case makes Washington’s pro- District Court held Federal
Recently, due procedural a defendant’s review violates portionality process rights because RCW 10.95.130 "does not establish adequate guidelines standards or on which the or Court parties can rely.” Harris v. 853 F. Blodgett, Supp. (W.D. 1994). Wash. The court cited five reasons for its (1) ruling: the death penalty statute does not define what cases are factors, "similar” or what other age, race, such as (2) sex, pregnancy, considered; should be proce- there is no dure for parties to be cases, notified as to which types cases, the court may consider similar until the de- (3) cision is published; the statute provide does not an (4) alternate procedure found; when no similar cases are give the statute does not any reviewing standard for cases; selected there is no procedure for factfinding as part of Harris, the sentence review. at 1288-90.
Without determining the merits of challenges these under this court’s current proportionality review, we take this op- portunity to revisit the development of such review in Washington and evaluate the viability continued of our present approach. past, the court struggled has with conducting See, Benn, proportionality e.g., review.
at 679. This difficulty part stems from attempting to define "similar cases” without adopting standard which essence, requires, mathematical identity. The court has an taken increasingly approach broad to its definition of cases, similar replacing comparison of aggravating fac- tors with Lord, the search family for See resemblances. Wn.2d at recognize, however, 908-11. We still "the difficul- ” ties inherent to the identification of 'similar cases’ while utilizing Benn, the family approach. resemblances Wn.2d 691. struggled
The court has also define what makes case proportional. adopted We the current test reference to Georgia’s interpretation penalty its death statute. required
[TJhis court is not than a determine that less imposed death sentence was in a never case with some contrary, similar characteristics. On we view it to be duty similarity our under standard to assure that no death sentence through- is affirmed unless in similar cases
209
imposed gener-
has been
penalty
the death
out the state
freakishly imposed,”
.[.]
. .
"wantonly
and
and
ally
not
Harris, 106
Lord,
v.
Wn.2d
at 909
State
(quoting
117 Wn.2d
784,
(1986),
denied,
Prior to the
Court’s
(1972)
346,
238,
(per
L.
adopted Georgia by only procedures were not the which would be permissible under Furman. suggest only We do not intend to that the above-described procedures would permissible be under or any Furman sentencing system along general constructed these lines would Furman,
inevitably satisfy the concerns of for each distinct system Rather, must be examined on an individual basis. we general upon have embarked exposition this to make clear that possible it is to capital-sentencing systems capable construct of meeting Furman’s constitutional concerns.
(Footnotes omitted.) at Gregg, 428 U.S. 195. In upholding scheme, Georgia’s statutory the Court focused on the stan- provided guide dards to the jury’s discretion. The basic concern of Furman on centered those defendants being who were condemned to capriciously death and arbi-
trarily. case, procedures Under the before the in that Court sentencing give authorities were not to directed attention to the nature or of the circumstances crime committed or to the or the unguided, juries character record of defendant. Left imposed freakish. The new only the death in a way sentence could be called Georgia sentencing procedures, by contrast, jury’s focus on particularized the attention the nature the particularized crime and the characteristics of the individual jury permitted any aggravat- While the defendant. ing mitigating least one consider circumstances, identify or it must find and statutory aggravating may impose factor before it penalty way jury’s of death. In this the discretion is channeled. longer jury wantonly freakishly No sentence; can a impose death always
it is
legislative guidelines.
circumscribed
(Italics ours.)
Washington’s penalty similarly death statute focuses on crime jury’s attention the nature characteristics the defendant. See ROW 10.95.060. As legislative 10.95 Gregg, guidelines contained RCW within must its discretion ensure jury which exercise in all proportionality ability jury, and eliminate the of the impose case, but the most aberrant the death sentence Thus, review, in a wanton and freakish manner. our to be constitutionally only sufficient, need find that aberrant or 10.95.130(2)(b). "disproportionate” case. RCW range perspective, With this of similar cases need not narrowly aggravators upon be defined based the number of family Rather, or even cases” resemblances. "similar means exactly Legislature what defined them mean: reported Washington
"[SJimilar cases” means cases in the Reports Washington Reports January or Appellate since judge imposition in which the considered the capital regardless punishment imposed of whether it was or ex- ecuted, reports and cases in which have been filed with the supreme under court RCW 10.95.120[.] 10.95.130(2)(b). Legislature RCW has determined these sufficiently "disproportionate” cases are similar so that a recognized case can be therefrom. Gregg, Supreme Georgia the Court noted Court of *60 imprisonment
had reduced death life sentences to for defen- capital rape dants convicted the crimes of and armed rob- bery prior juries only rarely because cases showed would impose Gregg, the death sentence for those crimes. 428 U.S. at 205-06.The Court stated further:
If a juries generally impose time comes when do not the death case, sentence in a certain appellate kind of murder the review procedures assure that no defendant under such cir- convicted will suffer a cumstances sentence death.
Gregg, Washington’s however, at statute, 428 U.S. 206. does myriad capital not contain a crimes. It the death allows penalty only premeditated murder, for one "kind” of first degree aggravating murder with circumstances. There is no requirement concept constitutional that we define this fur- categorizing ther, is, different "kinds” of murder based upon family addition, resemblances. In 10.95.020 does RCW weight type aggravating circumstances, not such that one aggravator separate the of murder. makes crime a "kind” Eighth
The Amendments mandate that Fourteenth capital sentencing procedures jury’s channel the discretion particular focusing jury’s by nature of attention on the Gregg, See of the defendant. crime and characteristics pro- Appellate proportionality review U.S. at 206-07. against arbi- assurance” a "check” or "additional vides trary imposition penalty. Gregg, 428 U.S. death of the Washington. requirements are met 206-07. These guidelines legislative ensure in RCW 10.95 contained by focusing proportionality on first instance review, 10.95.130 RCW and the defendant. On the crime requires the death sentence to determine whether this court range "disproportionate” of "similar on the broad based is 10.95.130(2)(b). by Legislature. RCW cases”, as defined comparison we have of cases which a detailed The lack of "empty past an render this review in the will not conducted purpose recognize is not meant its we ritual” because proportionality Benn, 120Wn.2d in the first instance. ensure legislative (Utter, dissenting). Gregg J., teaches at 709 guidelines Rather, our that function. in RCW 10.95 serve dispro- whether a death sentence determine review must portionate. might sentence which a death under
The circumstances guide- given disproportionate freakish, or wanton be however, can, 10.95, limited. We are in RCW lines contained a death sentence which under conceive of circumstances disproportionate. challenged on such Comment as could be which and controversies await the cases must circumstances present squarely those issues. subject "disproportionality” review is
This
upheld
challenges
in Harris
and those
raised
legislative
Using
supra.
"similar
Blodgett,
definition of
expressed
process
in Har-
concerns
due
alleviates the
cases”
*61
Refocusing
Blodgett, supra.
to ascertain
the review
ris v.
only
and freakish based
is wanton
a
sentence
whether
death
range
provides
aggravated
upon
cases
murder
the broad
"disproportionality”
justifiable
standard
more reliable
slight
negligible
in deviations
effect of
and renders
review
of the
The function
cases”.
of "similar
universe
limited to providing "additional
assurance”
that a sen-
tence is not disproportionate,
rather
than ensuring propor-
tionality in the first instance. See Gregg,
We review whether Brett’s sentence is disproportionate under this standard. Consequently, we need not limit our review to subcategories of aggravated murders to determine whether Brett’s sentence was excessive or disproportionate. Rather, the court looks to all cases”, "similar as legislatively defined, to ascertain whether the imposition of death this case is disproportionate.
Initially, we point guidelines out the contained in RCW 10.95 channeled the jury’s discretion. jury was properly instructed regarding the aggravating mitigating factors it could consider in exercising its discretion to impose the death penalty.
After carefully reviewing totality cases, of similar we hold Brett’s death sentence is not disproportionate. There is no unique or distinguishing characteristic of the Defendant or of this crime which imposition makes of the death penalty wanton and freakish. Our decision is not altered cases in jury which the exercised its power and to impose declined the death penalty.
Since proportionality requirement on review is intended to prevent caprice in the decision to penalty, inflict the isolated decision mercy to afford does not render un- constitutional death imposed sentences on defendants who were system sentenced under a that does not create substan- tial risk of caprice. arbitrariness or Gregg, U.S. at 203. juries Unless and until consistently sentence, decline to impose the death specific instances of mercy cannot be used to establish disproportionality. See Gregg, U.S. at 205-06.
214 in this case penalty imposition hold the of the death
We the crime considering disproportionate is not excessive or and the Defendant. Prejudice.
30. Passion al his argument supporting majority The of Brett’s errors addressed and involves legation passion prejudice of cannot be reiter These errors parts appeal. in other of his Benn, argument. prejudice for a and support passion ated as Brett asserts one 693; Lord, at 915. 117 Wn.2d 120 Wn.2d issue. He contends this independent ground supporting jurors’ fears by invoking inflamed prosecutor following argument: by the random violence consider, and you ladies thing I would ask Another that aggravated why is so this crime gentlemen, about this crime in this of the victims and the total innocence is the randomness case, heard from witnesses and Pat Milosevich. You’ve Ken street, Stahl, Mr. case, neighbor down the Mrs. this Coleman, Pat Milosevich went neighbor to the north where south, Wasser, who didn’t 9-1-1, neighbor to the Mrs. to call have been any one of them could anything night, that hear 3rd. of the draw on December pure It was luck Ken Milosevich. witness stand Milosevich on this have been Ken And it could night. that’s people that And any one of those testifying about us, unknowing, all of something that I think bothers anybody. happen it could fact that 18, at 99. Proceedings vol. Report response an emotional may which evoke Arguments argument restricts his if the prosecutor appropriate are Rice, 110 Wn.2d See State v. of the crime. the circumstances (1988), denied, U.S. 910 491 608-09, P.2d 889 cert. (1989). random nature established the Here, the evidence was based on this evidence argument the act. argument Although prosecutor’s overemphasized. not cross it does impropriety, line of close to the steps prejudice. into passion line the death imposition and the affirm the conviction
We sentence. — every recent virtually (concurring) C.J.
Durham, court, a different defini- this case decided penalty death promulgated. tion of has been The result- proportionality ing unacceptable. confusion is in very general
Prior to
was defined
proportionality
Mak,
692, 724,
terms. See State v.
718 P.2d
(1986).
denied,
cert.
This was followed State v. 120 Wn.2d 838 P.2d (1992), which Lord agreed generally approach. with the Benn, later, However, years less than 2 State v. denied, 944, 126 L. Ed. 2d
631, 845 P.2d
cert.
510 U.S.
statistically
based
suggested
Now, yet propor- another version majority suggests I much that See at 207-214. It is not so tionality. majority, revisions in analysis with the as with the disagree majority’s each new case. on the con- depends itself may proportionality
It be that If a varied sistency analysis. applying of a proportionality varying analysis produces with each case proportionality 10.95.130(2)(b) this results, requires which we thwart RCW of death is exces- to determine the sentence "[w]hether court to the similar penalty imposed sive or disproportionate cases”, tragic disservice to ultimately may we commit Moreover, resulting confu- of these crimes. the victims delay in these cases. already sion contributes to an excessive test established adopting proportionality I recommend provides garnered support it the most Lord because analysis. the most reasoned Brachtenbach, Tern., JJ. Pro
Guy, J., and Andersen and Durham, C.J. concur with *64 —
Dolliver,
concurring)
people
J. (specially
enacting
their will
Washington
expressed
have
state
court is
justice
as a
of this
my duty
penalty,
the death
However,
agree
quoted
I
with the words
that
law.
uphold
Collins,
v.
in
dissent to Callins
Blackmun
his
by Justice
(1994) that
435,
Although question my duty, separate I I do not write this my objection penalty concurrence to state principle to the in death express hope day and to that some we will penalty eliminate the death and be saved from cries of ven- geance, revenge, "justice” truly and thus become more community civilized of citizens. point arrives,
Until that
if the laws are both constitutional
exactly followed,
here,
as was the case
the ultimate
penalty
question
must be
I
enforced.
also do not
agrees,
firmly
majority’s
do,
whether
I
one
as
with the
rule
determining proportionality
adopts
for
or one
in
test
(1991),
Lord,
State v.
Smith, J., J. Dolliver, concurs with — (concurring part, dissenting part) Madsen, J. I majority relating penalty concur with the on all issues to the phase However, of Mr. Brett’s trial. the dissent is correct requested purpose that retaining the brief continuance for the expert granted. Considering an should have been appellate process likely the fact that the in this case will span days testimony mitigation decade, to secure insignificant delay permitted. an which I should have been penalty phase. would remand for a new — (dissenting) Contrary plurality’s J. to con- Utter, clusion, Brett’s sentence of death cannot be sustained on the require record before us. The issues which the reversal of (1) grant Brett’s sentence are: the trial court’s failure to him expert’s opinion a continuance to secure an on whether he syndrome; disproportional- suffers from fetal alcohol *65 (3) sentence; ity of his the of the evidence admitted scope (4) witnesses; to rebut his mitigation and the instructional error suggesting unanimity jury before the required could reach a final verdict. trial court’s denial of Brett’s motion for continuance investigate possibility
to further he suffers from fetal an syndrome alcohol is reversible under abuse discretion grounds. standard because it was based on invalid Moreover right it frustrated Brett’s under the United States Constitu- 10.95.070(1), (2), tion meaning- and under RCW fully argue mitigation. Finally, prevented the issue of it making from an informed evaluation of whether mitigating State had shown insufficient circumstance — leniency jury’s warrant chief function at the sentenc- ing phase. See RCW 10.95.060. propor-
I write also to out that the treatment of the point opinion issue in Justice Dolliver’s is untenable both tionality That maintains logically jurisprudentially. opinion purview aggravated fact a crime falls within the of the mur- only its and that our proportionality”, der statute "ensures is to "find that aberrant obligation 'disproportionate’ Designated majority, case”. 211. If death in a imposition
This cannot be correct. by coming were virtue of given proportionate simply case 10.95, legislative requirement within the of RCW scope 10.95.130(2)(b) compare aggravated that we RCW murder aggravated murder case at hand to other "similar” an tenet of statu- elementary would be senseless. It is cases provisions we do not construe to be tory construction that nullities. by the method which opinion replaces
Justice Dolliver’s the issue of has determined we are to decide Legislature the statute its own version of what proportionality with is irreconcilable with the only a version which requires, If RCW 10.95 terms, but is unworkable. completely statute’s "dispropor- be a can there ever proportionality”, "ensures so, according to what process, If what tionate” case? standards, are we identify designated it? The majority offers no guidance. *66 is approach designed result that an to purportedly difficulties
avoid constitutional
increases
rather
than de-
creases the likelihood the death
will
penalty
imposed
be
an
manner,
arbitrary
standardless
violation of the
equal protection clause of the fourteenth amendment
to the
United States Constitution. See Furman v.
408
Georgia,
U.S.
(1972).
346,
L.
Ed. 2d
I would also reverse Brett’s sentence of death because the
scope of the evidence introduced to rebut
testimony
of a
mitigation witness exceeded its permissible
scope under
Bartholomew,
State v.
631,
101 Wn.2d
Finally, the jury instructions sentencing at the phase were confusing and created the misimpression unanimity was required before the a jury could reach final verdict.
I To Failure Grant a Continuance Brett requested continuance or penalty abatement of the phase proceeding until he could an expert opinion secure and evaluation to ascertain the existence of fetal alcohol syndrome or fetal alcohol effect.1 The motion was denied. an maintains denial constitutes abuse of the trial court’s discretion. may experts earlier, contacting 1To the extent Brett’s counsel be faulted for
their failure
so should
to do
be deemed to constitute ineffective assistance of counsel
Washington,
under
L.
Strickland
U.S.
Ed. 2d
The trial court’s premised notions, which untenable two both of are on rea- The court of discretion standard. under an abuse even jury, and to the not be useful that the evidence would soned unduly a would be burdened the "State and victim” desig- Proceedings delay. Report vol. at 149-50. nated cites fails to majority yet appreciate these reasons import, their which is to invalidate the trial court’s deci- sion.
First, opinion the trial expert court’s evidence would not have been crucial in this proceeding was unwarranted.
If actually syndrome, does suffer from fetal alcohol jurors and the had an testify, heard so it is expert possible that fact might alone have them mercy inclined toward evaluating the sentence Brett should receive.
Second, an expert’s actually evaluation of whether Brett suffered from fetal syndrome alcohol would also per- have — mitted to make an informed rather than — speculative evaluation of Brett’s mental condition and his capacity to appreciate wrongfulness conduct, of his both of which are Legislature considerations has expressly indicated are appropriate inquiries in penalty phase 10.95.070(1), capital (2), case. See RCW respectively. (In determining whether proved State has insufficient mitigating circumstances leniency, merit the sentencer may any factors, consider relevant but limited including to the following: whether the defendant does or does not significant have a criminal history; whether the murder was committed while the defendant was under the influence of (not extreme mental insanity disturbance amounting diminished capacity); or whether the defendant’s capacity wrongfulness understand the of his conduct was substan- impaired tially as result of mental disease or defect. Likewise improper was the trial court’s ef- assumption the fect on the State of a relatively delay outweigh brief should *68 the an right present Defendant’s argument to informed presence leniency about the of factors which would favor in is in sentencing. particularly proceeding This a capital true subject where the defendant is to the most severe sanction our The sentencing available under scheme. focus of concern to a court’s therefore should have been assure proceeding permitted which the most informed consider- by the of had question ation whether State 222 to mitigating
shown an absence of sufficient circumstances leniency. merit
The for a continuance trial court’s denial of motion cir- mitigating to compromised capacity fully present Brett’s his denial thus from jury. derogated cumstances to the The have the sen- right under the United States Constitution to of a "any aspect as a factor mitigating tencer consider any the circum- defendant’s character or record and as a basis proffers the offense that the defendant stances of Ohio, v. 438 for less than death” under Lockett sentence (1978). 604, 973, 586, Ed. 98 Ct. 2954 See also U.S. 57 L. 2d S. Oklahoma, 104, 110, 1, 2d 102 71 L. Ed. v. 455 U.S. Eddings S. Ct. 869 significant particularly
The
denial of the motion is
court’s
capital
case because consider-
sentencing phase
is
may
mercy
only
ation of circumstances which
warrant
deciding
relevant,
integral
properly
it
is
to the task
aon
imposed
partic-
sentence should be
whether
death
1239,
Supp.
853 F.
See Harris v. Blodgett,
ular defendant.
(W.D.
1994)
Carolina,
(citing
v. North
1268
Wash.
Woodson
(1976));
280,
944,
304, 49 L.
2d
96 S. Ct.
428 U.S.
Ed.
1,
2d
Carolina,
90 L. Ed.
South
476 U.S.
Skipper v.
110,
Oklahoma,
104,
(1986);
455 U.S.
Eddings
S. Ct. 1669
Ohio,
1,
(1982);
also Lockett v.
L.
2d
S. Ct. 869
see
71 Ed.
(1978);
Deut-
L. Ed.
223 A. Unconstitutionality of the as Drafted. Statutory Scheme a design which statutory proportionality under of by defendant’s sentence is is marked significant evaluated which, elaboration, flaws by if not remedied careful law case render it infirm under the federal constitution. These defects have recently acknowledged by been a federal court. See Harris v. 1287-91 a Blodgett, supra (overturning at sentence of death in part because the sentence violated federal statute). constitution and our proportionality Justice Dolliv- court, opinion er’s lists the defects identified the Harris address, yet fails to let explain, alone those concerns why have no merit. See designated majority, at 208.
As I
indicated,
have
repeatedly
and as
Harris court
noted, the
difficulty
chief
re
conducting proportionality
Legislature’s
view is the
key
failure to adequately define
terms, which makes difficult both the sentencer’s
of
task
deciding
impose
penalty,
death
and this court’s review
Harris,
1289;
of that
See
decision.
see
State
Camp
also
bell,
(Utter,
J.,
Wn.2d
The statute directs the at the sentencing end of the proceeding to answer following question: "Having mind the of crime which has the defendant been found are guilty, you beyond convinced a reasonable doubt there are not sufficient le- mitigating circumstances merit (Italics mine.) 10.95.060(4). niency?” Yet Legisla- RCW has not defined "mitigating ture circumstances”.
One commentator has out the implications drawn this shortcoming: mitigating poverty mitigating
What is a circumstance? Is employment Is the opportunities circumstance? gating lack of miti- circumstance? . . . has, mitigating
Is it a
circumstance
the accused
notwith-
murder,
standing
aggravated
acquired
commission
this
of an
unusually generous
reputation
being
and charitable to
community?
other members
Discretion
Lobsenz,
Unbridled Prosecutorial
James E.
Standardless Death
Policies: The Unconstitutional-
Penalty
Scheme,
Statutory
Punishment
ity
Washington Capital
L.
342-43
Puget
U.
Sound
Rev.
circumstance,
mitigating
Even if the statute defined
Legislature
any guidance
has
whatsoever
provide
failed to
an
*70
weigh
mitigating
against
as
to
circumstance
to how
one
concept
"mitigating
is
circum
other. The result
that
the
arbitrariness,
stance”,
far from
can be used as
reducing
court,
result
the
and this
jury,
vehicle to rationalize
the
true,
To
the
wishes
to reach.
extent
this
is
statute
the
sentencing
exercise
discretion
permits
the
of standardless
Court. See
Fur
by the
States
disapproved
Supreme
United
346,
man v.
238,
33 L.
The statute identifies the
of similar
selecting
pool
matter
look as a threshold
selected, however,
the statute
is
pool
cases. Once
substantively
against
cases
how to
silent as to
evaluate
(Utter, J., dis-
Jeffries,
See
has cases, considering 'similar both the crime and the defendant.’ 10.95.130(2)(b). age? RCW Pregnancy? What about Race? Sex? . . . Disability? capacity? Mental Status? Diminished Emo- Competence Delay tional prosecution? Status? of counsel? Motive? Acquittals Supreme of co-defendants? Can the Court 10.95.130(2)(b) go outside the confines of RCW find "similar cases”? about jurisdictions? What about cases from other What aggravation
similar crimes charged? where was not aggravation degree Similar first murder cases where could been, have charged? but was not guilty aggra- Not verdicts in degree vated and first murder cases death where was not requested reports no were filed? (W.D. Harris v. Blodgett, 853 F. Supp. Wash. 1994). Harris, See also at 1289 (recognizing statute does not establish a coherent standard by which the selected reviewed). cases can be
In addition the problems discussed, just the statute does any establish procedure be followed in instances where no "similar case” can be among identified from prior Harris, murder cases. See at 1289. See also W. Ward Morri son, Jr., Comment, Washington’s Comparative Proportional ity Review: Toward Appellate Review Death Effective Penalty Constitution, Cases Under the Washington State 111 (1989), Wash. L. Rev. arguing re proportionality view article violates section of Washington State *71 Constitution. the
Compounding of resulting difficulties from the absence legislative respect direction with to meaning key the Legislature’s terms is the a regularized failure to provide procedure by which the parties may be notified of which similar, cases the may court deem until the after decision in Harris, the case has been rendered. at 1289. statutory
Another flaw the its to design is failure factfinding establish mechanism for as of the sen part I process. point tence review made this in State v. Jeffries, 398, 435, J., (Utter, 105 Wn.2d 717 722 dissenting), P.2d denied, (1986), cert. U.S. 922 where I indicated this 479 is effectively required weigh aggra court to the evidence vating and mitigating circumstances "without the benefit of
226
findings
difficulty
factual
on
of them.”
was also
many
This
recognized
Harris’s
by
reversing
federal court
sentence
There,
correctly
that
of death.
the court
observed
fact;
an
findings
to
that
majority’s statements
amounted
engaging
from
appellate
generally prohibited
court
is
own;
its
factfinding if the trial court has
entered
altogether
it
unclear whether
10.95.120 was
RCW
a mechanism for factfind-
by
Legislature
intended
as
Marchand,
Harris,
62
ing.
(citing
at 1290
State v.
See
(1963)
770,
767,
there-
Wn.2d
B. of the Review Process as Devel-
oped by This Court. responded This to the statute’s shortcom- court could have meaning- assigned which ings developing jurisprudence terms, upon a basis key ful to and thus established content constitutional, evaluation principled which a reasoned Re- given proceed. of a sentence could proportionality of the contrary. it has done the gretably, circumstances, for example, respect mitigating With to specify has are not jurors required this court held that in conclud they what circumstances considered mitigating leniency. merit existed to ing that insufficient circumstances 398, 722, P.2d cert. v. 105 Wn.2d Jeffries, See State (1986). 301, Ct. 328 denied, U.S. 93 L. Ed. 2d 107 S. decision, we are now forced review By virtue of mitigating of sufficient as to absence jury’s conclusions jury’s an as adequate circumstances without record deliberations. cases”, ignored has
As
term "similar
court
for the
proportionality
include in its
mandate the court
statutory
death penalty
cases in which the
aggravated murder
review
See State v.
imposed.
Jeffries,
was not
(1986)
denied, 479
(Utter, J.,
cert.
dissenting),
227
any
relevant cases with
See In re
analytical discipline.
Jef
114
fries,
(Utter, J.,
Wn.2d
Justice Dolliver’s opinion does not view the form judicial review has taken with consternation. On the contrary, it declares that "an even broader review” be may appropriate. Designated majority, at 209. opinion
What that characterizes as "an increasingly broad approach” defining "similar cases” is more aptly described as the gradual degeneration judicial review in capital cases, a process which reaches its low point with the intro- duction into our proportionality new, of a analysis and curi- ously elusive, concept: all murders falling within the pur- — are, view of facto, RCW 10.95 ipso proportionate except when they are not: legislative guidelines [T]he contained in RCW 10.95 within which the must proportional- exercise its discretion ensure ity ability jury, and eliminate the of the in all but the most case, impose aberrant the death sentence in a wanton and Thus, review,
freakish manner. ficient, constitutionally our to be suf- only need find "disproportionate” that aberrant or case. 10.95.130(2)(b). RCW Designated at majority, 210-11.
Although advanced purportedly prob- to circumvent review, lems inherent see proportionality designated of the law creates more dif- majority this statement *73 If "ensures proportion- ficulties than it avoids. RCW 10.95 so, If be a case? ality”, "disproportionate” can there ever standards, according to what are we by process, what designated majority The offers no answers. identify it? statute, obligations under the as The articulation of our the fact opinion, ignores in Dolliver’s also expressed Justice norms, but only we need be mindful not of constitutional Legislature imposed. also of the directives the has statutory that a review altogether inadequate suggest It is therefore legally sufficient which constitutional muster passes with a comply of death. We must also uphold sentence us to determine specifically requires which statute "[wjhether dispropor- death is excessive or the sentence of cases, considering similar penalty imposed tionate to 10.95.130(2)(b). RCW both the crime and the defendant.” of the statute ignores portion this opinion Justice Dolliver’s guidance no and hence provides in favor of a rule which less, more, penalty the death will likely makes it rather than in a standardless manner. imposed be rigor analytical created the absence of danger The dramatically evident at review is conducting proportionality The entire designated majority. proportion- of the page 213 There is no amounts to a few sentences. ality analysis cases, comparison a methodical much less discussion of other as RCW with that in others in this case of the record 10.95.130(2)(b) as- opinion simply expressly requires. fashion, "reviewing totality serts, conclusory cases, dispro- death sentence is we hold Brett’s similar characteris- distinguishing is no unique There portionate. makes imposition crime which Defendant or of this tic of the ma- Designated and freakish.” penalty wanton of the death at 213. jority, First, to treat "aberrant” are in order. points
At least two is to standard applicable as the and freakish” or "wanton 10.95. underlying RCW intent legislative oversimplify repre- shortcomings. It nevertheless have its may The statute relatively sents a sophisticated legislative effort to estab- lish the basis for a process. rational review That process properly cannot be condensed into the designated majori- ty’s summation of it. See designated majority, at 213.
To the extent
the court’s review violates the statutory
engage
review,
directive to
in proportionality
may
it
also
rights
violate Brett’s
Constitution,
under the United States
because the failure of a
respect
state to
the terms of its own
statutory obligations may implicate a liberty interest under
against
Fourteenth Amendment
arbitrary deprivation
aby
Benn,
631,
state. See State
v.
845 P.2d
(Utter, J.,
dissenting),
denied,
cert.
Second, even if "aberrant” or "wanton and freakish” were
standard,
not,
and it is
it is
impossible
conclude
given sentence is not "aberrant” or "wanton and freakish”
reflection,
in
engaging
without
some
whatever
process
may
designated
that
be. The
that
majority requires
one
simply take its word on so
as whether
important
question
executed,
properly may
revealing
defendant
be
without
what
process
any possibility
is. It thus forecloses
review or even discussion of its
This approach
conclusion.
equal protection
violates the
clause of the fourteenth amend
ment
to the United
it provides
States Constitution because
safeguard against
no
a death
which is
arbi
penalty
applied
trarily
meaningful
and without
standards. See Furman v.
(1972)
Georgia, 408 U.S.
33 L. Ed. 2d
The punishment part ital is in on the notion that the discre- based tionary process imposing penalty subject death will be of any sentencing appellate review so that abuse of discretion weight placed on this will be reversed. One reason so much will be undertaken process review is the belief that review carefully, thoughtfully, rationally, consistently. One tradi-
231 this faith is not way that courts have assured that tional why give [the indicate how and misplaced is to reasons that Thus, made. the failure Supreme Court] decisions are State’s for its a theoretical model of the . . . Court to articulate legitimacy of the proportionality review casts doubt on the in penalty death this State. omitted.)
(Footnotes al., "Meaning- et A F. Patrick Hubbard Practice, The Constitution- Penalty: ful” Basis the Death for Carolina, in South Punishment Capital and Justice ality, of S.C. L. Rev. 464 34 court To the extent this Washington.
The same is true death engage continues to in reflexive affirmances of sen- careful, and rational structuring thoughtful tences without and affirmance of sen- process, imposition capital review will be illegitimate. tences continue to Benn, My recent dissent in State v. (Utter, J., denied, Ed. 2d dissenting),
P.2d 289 cert. 126 L. (1993) engaging in proportion demonstrates task of this ality defy capacities review is not so elusive as to virtually court. Other with statutes identical jurisdictions addresses process our own have structured a review which of death is disproportionate the issue whether sentence set legislative guidelines in a manner which respects proportionality forth in their statutes. statute proportionality for has a
Pennsylvania,
example,
9711(h)-
Ann.
which resembles our own. 42 Pa. Cons. Stat.
§
(3)(iii)
1994).
Court exam
(Supp.
Pennsylvania Supreme
pool
of death sentences
frequency
ines the relative
not
finding
dispro
it
death sentences
develops,
similar cases
in similar
majority
where the vast
defendants
portionate
See,
v.
Commonwealth
e.g.,
the death penalty.
cases received
(1986)
the death
(finding
Smith,
Pa.
cases);
Pirela,
Commonwealth v.
43,
510 Pa.
It is notable propor- to conduct obligation its stymied fulfilling been similar it consider requirement review tionality above, pro- engaged the court cases. In the cases cited *77 cases particular inclusion of justified it its cess which cases, record, includ- on the of similar based pool within aggravating ing but not limited to consideration circumstances. mitigating cases, in which the court invali-
Two North Carolina
one
death,
it
and one in which
dated the defendant’s sentence of
not,
propor-
to structure
possible
did
demonstrate that
it is
conclu-
yields meaningful
in a manner
that
tionality review
sentence. At the
given
about the
proportionality
sions
are
least,
sentences of death
very
these cases establish that
Carolina,
a conclusion
reflexively
not affirmed
North
Washington.
cannot be said of
which
Benson,
Supreme
In
the North Carolina
supra,
State v.
for a
down the defendant’s sentence
death
Court struck
The court
robbery.
in the course of
murder committed
it
in the
Of those
robbery-murder
pool.
identified 51
cases
in the
only
in life sentences and
found
had resulted
in 5 of these
of death. The court reasoned
sentence
cases,
circumstance was
only aggravating
robbery-murder
in 4 of
were
gain,
imposed
and that
life sentences
pecuniary
the circumstances of the one
those 5. The court then examined
had returned a sentence
remaining
case in which the
cir-
aggravating
robbery-murder
only
death for a
where
cir-
Although
mitigating
pecuniary gain.
cumstance was
in the case before
in that case were weaker than
cumstances
had been found dis-
it,
noted the death sentence
the court
disparity
not
Supreme
numerical
Court has stated that
2The North Carolina
See, e.g., State v.
always dispositive
heinous fact is involved.
where some additional
(finding
penalty
Greene,
the death
In State v. Cummings, supra, the North Carolina Supreme
engaged
Court
in a similarly careful examination of cases
opposite
reached the
conclusion. The jury found the fact
Cummings had a prior capital felony
an aggravat-
conviction
ing circumstance. The court
pool
selected its
of similar cases
by identifying five cases in which the defendant had been
of a prior
convicted
violent felony resulting in the victim’s
death. The court stated
four of the
the jury
five
imposed
death,
the penalty of
notwithstanding
presence
of mitigating circumstances.
In the one case in which the
jury recommended a life sentence there had been mitigating
contrast,
circumstances.
no mitigating circumstances ex-
isted in the case before the court. The court concluded that
the absence of
"[i]n
substantial mitigation, we cannot say
that defendant’s
sentence is disproportionate when com-
*78
pared
involving
to other cases
a prior homicide conviction.”
Cummings,
Whatever reservations one have about the selection cases, of the constituting pool very cases its of similar respected statutory obliga- fact the North Carolina court its compare tion to the crime and the defendant with other process and principled a rational cases, structured similar its determination, justify and saw fit at its arriving of legitimacy conclusion decision, to its ultimate impart plural- and the majority designated from the absent wholly here. ity the Death Sentence Unconstitutionality Imposing
C. Case. in Brett’s Applied as systematic review in a reasoned and engages
If this court Brett’s, as the stat- resemble salient features of cases whose that Brett’s sentence mandates, apparent it would be ute simply It be reversed. and should disproportionate death is imposed generally punishment that capital cannot be said similar to Brett’s. cases 10.95.130(2)(b) us to determine: directs RCW disproportion- or is excessive the sentence of death Whether cases, considering both the imposed in similar penalty ate to the subsection, of this purposes For the crime and the defendant. Washington Reports reported "similar cases” means cases 1, 1965, in January Washington Appellate Reports since or capital imposition judge considered which the executed, imposed or regardless of whether it was punishment supreme filed with the reports have been cases in which 10.95.120; . . . RCW court under mine.) (Italics proportionality if maintained consistently
I have
must, as RCW
court
meaning,
this
is to have
review
the defen
in which
directs,
all the cases
10.95.130
consider
murder,
degree
first
aggravated
guilty
was found
dant
or car
imposed
penalty
the death
of whether
regardless
Lord,
See,
v.
State
e.g.,
10.95.120.
ried out in that case. RCW
dissenting),
(1991) (Utter, J.,
939,
829,
This is excessive that a sentence court has held in simi imposed been "generally” if has not it proportionate 491, 789 P.2d 114 Wn.2d Jeffries, lar cases. In re P.2d 210 (1990); *79 Rupe, State Harris, (1988); State denied, 1061 (1987), 486 U.S. cert. 236
106 Wn.2d
(1986),
denied,
The
I
approach
advocated in State v.
105
Jeffries,
Wn.2d
398, 436,
J.,
(Utter,
denied,
717
722
dissenting),
P.2d
cert.
(1986),
U.S. 922
today,
which remains valid
proceeds
two steps. The first involves
a
electing
universe
similar
from
cases
the statutorily
pool by selecting
defined
the most
salient
factors which characterize those cases and compar
them to
case
ing
The
hand.
second involves determin
whether
the death
ing
penalty
generally
has
been imposed
within
If
pool.
it has not
generally
imposed,
been
sentence
death is
re
disproportionate,
should be
(Utter, J.,
v. Jeffries,
versed. See State
The of the salient characteristics for the purposes "similar” assembling universe of cases under RCW 10.95.130(2)(b) following: are the an single homicide of adult, in which relatively death immediate. salient as they pertain characteristics the Defendant are that a significant Although Brett has criminal record. he does have criminal has no or history, previous murder manslaughter significant conviction. are the mitigating Also presented circumstances in Brett’s He evidence he was case. may to alcohol útero and suffer from fetal alcohol exposed result, syndrome impaired cognitive ability, as a has from alcohol suffers severe diabetes and abuse. aggravated reports
Below are cases from the murder may reasonably which be considered "similar” Brett’s insofar as the features of the crime the defendants share This list establishes that defendants found salient features. of similar crimes do the sentence guilty generally receive Washington. Brett’s sentence is therefore dispro- of death and must be reversed. portionate St. Pierre
Paul (Pierce 34(a)) (Questionnaire No. Judge Trial of the Report 84-1-00992-8). his and stabbed Pierre shot St. Cy. cause he committed the factor was that aggravating The victim. aggra- a previous He had conceal another murder. crime to jury imposed life without murder conviction. The vated of possibility parole. Galbert Christopher
Donald 33) (Clark No. Judge (Questionnaire Trial of the Report 84-1-000775). his victim to bludgeoned Galbert Cy. cause fac- smashing aggravating his skull. The pipe, death with rape, for burglary, convictions robbery. prior tor was He had mitigat- There were no dealing drugs. larceny, forgery of possibility He received life without ing circumstances. parole. Daugherty
James J. 25) (Questionnaire (Kitsap Trial No. Judge of the Report 84-1-00265-2). six times Daugherty shot the victim cause Cy. The were concealment aggravators in the back of the head. history including a criminal Daugherty had robbery. impose The did not offenses. felony property five pa- of possibility He received life without penalty. death role.
Gus Allen Turner 28) (Clark (Questionnaire No. Judge of the Trial
Report 83-1-00067-0). in the chest. Turner shot his victim cause Cy. record of criminal he had an extensive report The states circum- aggravating different names. convictions under in the course was committed was that the homicide stance in the are listed mitigating No circumstances robbery. of a possibility parole. life He received without report. Lennon David John 35) (Benton No. Judge (Questionnaire Trial of the
Report 84-1-00178-3). multiple gunshot inflicted Lennon Cy. cause in a car. The him a ride given had to the victim who wounds escapee an he was were that circumstances aggravating of a rob- crime furtherance committed the Oregon, from There were a crime. the commission and to conceal bery no mitigating circumstances. The death penalty was not sought. Wayne
Robert Hughes Report 23) Judge the Trial (Questionnaire No. (King Cy. 82-1-01979-4). cause Hughes shot and killed a law enforce- ment officer. He had prior assault, convictions for escape and murder. No mitigating appear circumstances in the report. He received life without the possibility of parole.
Jeremiah J. Bourgeois Report 139) (Questionnaire Trial Judge No. (King Cy. 92-1-06444-4). cause Bourgeois entered store and shot the victim to death with a shotgun. The aggravating factor was the victim was a witness or a in an participant adjudi- catory proceeding. Bourgeois had three prior convictions for *81 taking vehicle, a motor one for theft and one for criminal trespass. No mitigating circumstances in appear the report. The death penalty sought. was not
Charles Harris 38) Report of the Trial Judge (Questionnaire No. (King Cy. 85-1-00093-1). cause Harris shot his victim to death. The murder was committed to conceal the commission of the crime or identity. his Harris had a prior murder conviction. mitigating No circumstances are listed in the He report. received life without the possibility parole. of
Constantine B. Baruso Report 112) of the Trial Judge (Questionnaire No. (King 90-1-06199-6). Cy. cause Baruso shot his in victim the back.
Three aggravating present. circumstances were mitigat- No ing circumstances are listed. He received life without possibility parole.
Charles Graves 126) Report Judge (Questionnaire the Trial No. (King 92-1-00393-3). Cy. cause Graves shot and killed his ex-wife in the course of a burglary. He had three prior convictions for trespass and one for assault. There were no mitigating cir- cumstances. He received life without possibility pa- role.
Dwayne Earl Bartholomew (Pierce 3) Cy. (Questionnaire Trial No.
Report Judge of the 81-1-00579-1). atten shot a laundromat cause Bartholomew he The were that committed aggravating dant. factors victim robbery, in of a and murdered the murder the course His convic identity prior of the perpetrator. to conceal the theft, possession trespass, tions included criminal in No are listed property. mitigating stolen circumstances report. the sentence of death. imposed Benjamin Harris (Pierce 29) (Questionnaire of the Trial No.
Report Judge 84-1-01190-6). killing. Cy. cause The murder was contract had a man- prior The victim was shot. Harris assault and circumstances slaughter mitigating appear conviction. No report. He was sentenced to death.4 Of the listed which are similar to Brett’s 13 cases above adult, of an single crimes involved a homicide immediate, it be said the death relatively death cannot penalty generally imposed. has been This true even Brett’s, arguably cases worse than insofar as the defendant’s history prior and no circum- mitigating included homicide conviction, prior stances were Brett has no homicide present. he Under presented significant mitigating evidence. circumstances, re- death be these Brett’s sentence of must 10.95.130(2)(b). versed under RCW
Ill
Penalty
Phase
Instructions
*82
phase
the
instructions violated
penalty
maintains
due
clauses
process
punishment
federal and state
cruel
Bartholomew,
v.
appeal.
State
sentence
on direct
3Bartholomew’s
was vacated
631,
present
sentenc
P.2d 1079
The State was ordered to
the
101 Wn.2d
683
844,
Bartholomew,
ing
jury,
P.2d 196
State v.
710
issue
the second
(1985),
Accordingly,
impose
penalty of
Bartholomew
which declined to
death.
parole.
possibility
life
of
received a
sentence without the
by
recently
numerous
a federal court on
4Harris’s sentence was
reversed
Blodgett, Supp.
Harris
including
proportionality.
grounds,
F.
lack of
(W.D.
1994).
Wash.
by suggesting that a verdict of life
be
must
unanimous. The
majority asserts the
confusing.
instruction was not
I dis
(9th
agree. Under Mak v.
Blodgett,
1992),
F.2d
Cir.
denied,
951, 122
cert.
742, 113
507 U.S.
L. Ed. 2d
S. Ct. 1363
(1993), an instructional
was
error
committed.5
v.Mak
Blodgett, supra,
the same instructional
flaw as
occurred in instruction
together
considered
with the
form,
identical verdict
"combined to improperly emphasize
to the
jury
unanimous
agreement
not
required
impose the death penalty.”
Penalty instruction 10 read in pertinent part: must question. You answer one you agree All twelve must you question "yes” you answer a When "no”. all have before agreed, fill in question the answer to the in the verdict form to express your you If all decision. twelve of are to unani- appropri- unable agree, mously fill question answer to the in place ate on the verdict form. . . . (Italics mine.) Clerk’s Papers, at 553. penalty phase
The verdict form indicated: Having mind the crime of which the defendant has been guilty, you beyond found are convinced a reasonable doubt there niency? mitigating are sufficient merit circumstances to le- ANSWER: [_] (In "Yes” which be case defendant shall sen- death)
tenced may engendered 5The confusion instruction have should be considered conjunction prosecutor’s during closing argu with the misstatement the law his closing, prosecutor suggested prov ment. In bore the burden of Defendant ing mitigating leniency: there were sufficient circumstances to warrant parole, question Mr. Dane references without but whether life life is not enough. parole good having question without is whether in mind the crime, beyond you’re mitigating convinced a reasonable doubt there’s sufficient circumstances. Report Proceedings objection. vol. 127. was no There *83 (In [_] shall be sentenced "No” which case defendant parole) possibility of imprisonment
to life without (In [_] Unanimously Agree” which case "Unable imprisonment without defendant shall be sentenced life possibility parole) of Papers, at 554.
Clerk’s very least confus- misleading, 10 is at the Instruction before suggests jury it must be unanimous ing, because is RCW reaching contrary. a The law to the verdict. 10.95.030(1) with- a sentence of life presumptive establishes only by which can overcome possibility parole out the of be determination that there are not suffi- unanimous See mitigating leniency. circumstances to warrant cient 10.95.060(4). re- 10.95.030(1); Unanimity is not RCW RCW verdict; unanimously not jurors to reach if the do quired agree, penalty be and the defend- imposed, death cannot parole. ant’s sentence will be life without of possibility 10, to The instructional error contained in instruction in clos gether prosecutor’s with the misstatement of law juror might been ing, possibility create the that have (The is supra confused. See Mak v. at 625. verdict Blodgett, that possibility undermined if the instructions create the misled.) confused, Kubat juror (citing even one let alone (7th Thieret, Cir.), denied, U.S. 867 F.2d cert. (1989))- true, of the reliability To the extent is undermined, Brett be resentenced. verdict should
IV Penalty Phase Admission of Evidence At The Erroneous Prior Concerning of Evidence Scope Admissibility Convictions: allowing exam- the trial erred in cross argues court concerning knowledge her Youngen,6 ination of Sandra kidnap- assault and facts Brett’s conviction for underlying ping. during challenges the cross examinations 6Brett also evidence introduced However, Jeffrey did
mitigation Dr. defense counsel Johnson and Owens. witnesses may provide admissibility object to do Their failure so to the their statements. grounds to find ineffective assistance counsel. additional Youngen she testified met Brett when he transferred from Echo to Maple Glen Lane and that he was not a manage- ment problem while at the facility. latter The prosecutor Youngen cross-examined as follows: Q: you you Were aware or did know at the time Mr. Brett convicted of Maple was at Lane that he had been previously assaulting a staff member Echo Glen? *84 Yes, A: I was aware of that.
Q: you Were aware of the facts and circumstances of the particular offense? — A: talking escape Yes. You’re about when from Echo Glen? Q: That’s had plead guilty correct. Where he Kidnap- [sic] to ping and Degree, Degree, the First in the Assault Second Degree in the First an for incident that oc- Escape curred of March 1985. Yes, I A: aware of that.
Q: And you were aware up that he had snuck on of fact behind, a towel around counselor placed tightly wound staff from her mouth and then moved the towel to her strangled throat and her with the you towel? Were aware that? going I’m object question, to to that mr. foister: of Your Honor. She’s indicated she was familiar with the circumstances at Echo Glen. jury’s mr. curtís: not. overruled, It’s Counsel. It’s cross I examination. court: appropriate. think Go it’s ahead.
Q: (by curtís) you Were aware of those facts? mr.
A: I share that I’m don’t recall. sure at the time I was we because do type I specifically information but don’t — recall that the exact incidents that I happened. know attempt an on a escape there was assault staff member in an severely injured. and that she was Q: And that prior she was bound with electrical cord to Mr. Brett escaping? something bound, A: I recall being yes. do about her Q: your jury opinion you So to this expressing were surprised Mr. in the Brett was involved murder of your person, that you incorporating thinking were also into you prior knowledge incident which had of? reaction, my by A: I I initial my was. was asked counsel very I was I reaction was shocked when heard the news. Q: you though history Even knew Mr. Brett has of violence juvenile system? in the (Italics mine.) Proceedings vol. at 28-29. Report
243
Brett maintains
in permitting
the trial court erred
jury
State
introduce before the
evidence about
the facts
attending
and circumstances
his
ma
prior convictions. The
Bartholomew,
jority disagrees
ground
on the
State
(1984) (Bartholomew II)
642-43,
Wn.2d
The majority’s suggestion that all evidence is admissible
on cross examination for the
purpose
rebuttal
unwar
ranted. This court expressly
admissibility
held that
prior convictions under RCW
give
10.95.070 does not
an
State
absolute
to expose
license
to the facts and
attending
circumstances
those convictions. See Bartholomew
II,
Lord,
Wn.2d
642-43.
The State’s introduction facts pre- Brett’s surrounding given assault was unwarranted in Bartholomew against admissibility established sumption II. only prejudicial, gratuitously Not was the reference it was so, impeached Youngen’s the State have state- because could resulting to the from by simply referring ments conviction assault, a already jury. this conviction before the summarize, Brett’s sentence disproportionality To of death alone warrants the reversal of his sentence. ad- his also disproportionality, dition to its sentence should be grant reversed because the trial court’s failure to to obtain an of whether he expert’s continuance evaluation capac- fetal his syndrome compromised suffers from alcohol evidence; ity present mitigating adequately develop mitigation of the admitted to rebut his scope evidence exceeded its instruc- permissible scope; witnesses was before the suggesting unanimity required tional error and therefore confusing could reach final verdict its of death. impose penalty casts doubt on decision JJ., J. Utter, Johnson, Smith concur with 17, 1995. August June 9 and Reconsideration denied April 1995.] Banc. [No. 61610-8. En Petitioner, Powell, Washington, Ford The State Of Jr., Respondent.