141 Wash. 2d 798 | Wash. | 2000
Lead Opinion
— Appellant Cecil Emile Davis appeals his Pierce County Superior Court conviction and sentence for aggravated first degree murder. The jury, after finding Appellant “guilty” in the guilt phase of trial on February 6, 1998, determined in the penalty phase of trial on February 12, 1998 that he did not merit leniency. The trial court on February 23,1998 sentenced Appellant to death as required by statute. This Court’s mandatory review under RCW 10.95.100 began on March 2, 1998 upon filing of the notice of judgment and sentence imposing death.
QUESTIONS PRESENTED
The questions presented in this case are:
(Guilt Phase)
(1) Whether, under the Sixth and Fourteenth Amendments to the United States Constitution and article I, sections 3 and 22 of the Washington Constitution, the trial court erred in not sua sponte questioning prospective jurors concerning racial bias during voir dire examination and in not instructing the jury to exclude consideration of race as a factor in the case;
(2) Whether, under the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution, the trial court erred in admitting the testimony of prosecution witness Keith D. Burks; and whether the trial court erred in allowing prosecuting attorneys to ask Mr. Burks on redirect examination, “With the people that you hang out with, is it a good thing or a bad thing to be labeled a snitch?”;
(4) Whether the trial court erred in admitting a videotape of the crime scene;
(5) Whether the trial court erred in refusing to admit unauthenticated Washington State population statistics obtained from the Internet;
(6) Whether the trial court erred in denying Appellant’s challenge to juror Number 6 and whether certain prospective jurors were properly excused for cause;
(7) Whether the trial court erred in not inquiring into the potential conflict of interest arising out of possible prior representation of a “jailhouse informer” by defense counsel’s public defense office;
(8) Whether the trial court erred in giving jury instruction Number 13 on aggravating circumstances and jury instruction Number 20 on requirements for conviction;
(Penalty Phase)
(9) Whether, under the Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 14 and 22 of the Washington Constitution, Appellant was denied a fair trial because of prosecutorial misconduct in statements by prosecuting attorneys during the penalty phase of the trial; and
(10) Whether, under the Fourteenth Amendment to the United States Constitution, Appellant’s sentence of death was the result of prejudice which denied him a meaningful proportionality review mandated by RCW 10.95.130.
STATEMENT OF FACTS
On January 25,1997, the body of 65-year-old Ms. Yoshiko
The events surrounding Ms. Couch’s death began the night before on January 24, 1997. That night there was a gathering of people at the house Appellant Davis lived in which was owned by his mother, Ms. Cozetta L. Taylor, located at 2012 East 57th Street in Tacoma, Washington.
At approximately 2:30 o’clock the morning of January 25, 1997, Appellant, Codefendant George Anthony Wilson, and Keith D. Burks, Appellant’s 17-year-old Mend and a recent acquaintance of Mr. Wilson, were smoking cigarettes on the
About five or six minutes later, Mr. Wilson came to the sliding glass door at the back of the house appearing wide-eyed and scared.
Later that morning, at approximately 11:00 o’clock, Jack A. Schauf and his wife, Ms. Asako Schauf, arrived at the Couch residence.
The front door opened inward as Ms. Schauf knocked on it.
At the time of the incident, Mr. Couch had a heart condition and was disabled from several strokes.
Richard Couch was retired from the United States Army. His wife was a homemaker and his primary caregiver.
Tacoma Police Department forensic specialist Ms. Toni Wentland collected some hairs, fibers, and suspected blood from Ms. Couch’s mattress and bedcovers.
Forensic specialist Eric Berg did a thorough forensic investigation of the upstairs bathroom where Ms. Couch’s body was found. He observed a glove print on the bathroom mirror. In his opinion it was left by a leather glove.
On January 27, 1997, Pierce County Associate Medical Examiner Roberto Ramoso, M.D., performed an autopsy on Ms. Yoshiko Couch.
Medical Examiner Ramoso observed bruising around Ms.
Also observed by Dr. Ramoso was evidence of trauma to Ms. Couch’s vagina.
The Washington State Toxicology Laboratory analyzed
The Washington State Patrol (WSP) Crime Laboratory examined the hairs recovered from the crime scene and determined certain hairs had “Negroid” characteristics.
Hair sample item B-6, recovered from a bedspread found in the east bedroom,
The WSP Crime Laboratory also examined a pair of Appellant’s black tennis shoes.
On January 29, 1997, police officers executed a search warrant at Appellant’s residence.
Appellant was not employed at the time of the incident.
Police officers searched a garbage bag located downstairs next to the sliding glass door leading out to the patio area at the back of Appellant’s residence.
In the early morning hours of January 25, 1997, Ms. Jessica Cunningham, Appellant’s 14-year-old niece, was asleep at Appellant’s residence.
Later that morning, Appellant was in the kitchen looking out the window at the police investigation across the street.
Later that day, police officers visited Appellant’s residence.
That same day, January 25, 1997, Appellant offered to sell a gold wedding band to his mother for $10.
A few days after the incident, Appellant told Ms. Kyllo A. Cunningham, his niece, that Ms. Couch was found with towels over her head.
After the incident, Asil Hubley, Appellant’s 16-year-old nephew,
On January 28,1997, Appellant was arrested and held in the Pierce County Jail.
Appellant on February 3, 1997 was charged by information in the Pierce County Superior Court with aggravated murder in the first degree and, in the alternative, murder in the first degree.
A new trial began with jury selection on January 5, 1998 before the Honorable Frederick W. Fleming.
Testimony in the guilt phase began on January 22, 1998. On February 6, 1998, the jury returned a verdict of “guilty” of premeditated murder in the first degree with the aggravating circumstances of rape, robbery and burglary,
The penalty phase of the trial began on February 10, 1998. On February 12, 1998 the jury returned a verdict finding there were not sufficient mitigating circumstances to merit leniency.
DISCUSSION
Appellant Cecil Emile Davis made assignments of error which may be generally classified under the subjects (1) risk of racial prejudice, (2) admissibility of certain evidence, (3) death qualification of jurors, (4) conflict of interest, (5) jury instructions and (6) prosecutorial misconduct. This Court is required under RCW 10.95.130(1) to review a sentence of death. Most of the assignments of error relate to the “guilt phase” and only a few relate to the “penalty phase.”
Risk of Racial Prejudice
(1) Whether, under the Sixth and Fourteenth Amendments to the United States Constitution and article I, sections 3 and 22 of the Washington Constitution, the trial court erred in not sua sponte questioning prospective jurors concerning racial bias during voir dire examination; and whether the trial court erred in not instructing the jury to exclude consideration of race as a factor in the case.
The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed ....” The Fourteenth Amendment to the United States Constitution provides: “[N]or shall any state deprive any person of life, liberty, or property, without due process of law . ..
Article I, section 3 of the Washington Constitution providés: “No person shall be deprived of life, liberty, or property, without due process of law.” Article I, section 22 of the Washington Constitution provides:
In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed and the right to appeal in all cases ....
The Sixth and Fourteenth Amendments to the United States Constitution guarantee the right of an accused in all criminal prosecutions to trial by an impartial jury.
The process of voir dire
Avoir dire examination shall be conducted for the purpose of discovering any basis for challenge for cause and for the purpose of gaining knowledge to enable an intelligent exercise of peremptory challenges. The judge shall initiate the voir dire examination by identifying the parties and their respective counsel and by briefly outlining the nature of the case. The judge and counsel may then ask the prospective jurors questions touching their qualifications to serve as jurors in the case, subject to the supervision of the court as appropriate to the facts of the case.
(Emphasis added.)
It is well settled that trial courts have discretion in determining how best to conduct voir dire.
In this case, Appellant Cecil Emile Davis, an African-American male,
An accused has the right to carefully examine prospective jurors on voir dire to an extent necessary to afford the accused “every reasonable protection.”
The United States Supreme Court has acknowledged “there is some risk of racial prejudice influencing a jury whenever there is a crime involving interracial violence[.]”
In a line of United States Supreme Court cases, racial prejudice has been accepted by the Court as a basis for a constitutional challenge to a trial court’s voir dire procedure.
In Connors v. United States, the Supreme Court stated: “ ‘[A] suitable [voir dire] inquiry is permissible in order to ascertain whether the juror has any bias, opinion, or prejudice that would affect or control the fair determination by [the juror] of the issues to be tried. That inquiry is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion. This
In Aldridge v. United States, the defendant was an African-American male and the victim was a Caucasian police officer. Defense counsel requested the trial court to question prospective jurors whether they might be prejudiced against the defendant because of his race. The Supreme Court held it was reversible error for the court not to have posed such a question, observing that “ ‘[t]he Court failed to ask any question which could be deemed to cover the subject.’ ”
In Rosales-Lopez v. United States, the defendant, a Mexican-American, was charged with illegally bringing Mexican nationals into the United States. The Supreme Court held that a federal court must inquire about racial prejudice, not in all cases, but only in cases where the defendant was accused of a violent crime and the defendant and the victim were members of different racial or ethnic groups. Absent such circumstances, the Constitution leaves it to the trial court’s discretion to determine the need for such questions.
In Ham v. South Carolina, the Supreme Court explained the kind of circumstances that would require questioning prospective jurors to ensure the jury remains “indifferent” and able to render an unbiased decision. The defendant was an African-American civil rights activist accused of marijuana possession. His defense was that law enforcement officers had framed him in retaliation for his civil rights activities and because of his race. The trial court denied the defendant’s request to ask questions of prospective jurors concerning racial prejudice. The Supreme Court held the defendant was constitutionally entitled to question prospective jurors about their possible racial prejudice when
In Ristaino v. Ross, the defendant was an African-American male convicted of assaulting a Caucasian security guard. Defendant’s request to question prospective jurors concerning racial prejudice was denied by the trial court. The Supreme Court held that the trial court must conduct specific questioning to disclose racial bias, when “[r] acial issues [are] inextricably bound up with the conduct of the trial.”
In Turner v. Murray, the defendant was an African-American male charged with capital murder for shooting the Caucasian proprietor of a jewelry store. The trial court precluded the defendant from asking questions of prospective jurors concerning their possible racial prejudice. The jury convicted the defendant and sentenced him to death. The Supreme Court vacated the death sentence, holding that, upon defendant’s request, “a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.”
In addition, the United States Supreme Court has acknowledged the reluctance of trial judges to question prospective jurors about racial prejudice for fear such an inquiry would improperly inject the issue of race into a case and create the impression “that justice in a court of law may turn upon the pigmentation of skin [or] the accident of birth.”
In noncapital criminal cases, “special circumstances” under which the federal constitution requires questioning on racial prejudice were described in Ristaino v. Ross.
The Supreme Court held that a situation involving the “reasonable possibility” of racial or ethnic prejudice may arise when a defendant is accused of a violent crime and the defendant and the victim are members of different racial or ethnic groups. Under those circumstances, federal courts must make an inquiry into that possibility.
Inquiry into possible racial prejudice in capital cases has been allowed in capital sentencing cases.
Whether such a concern is purely chimerical or not is a decision we leave up to a capital defendant’s counsel. Should defendant’s counsel decline to request voir dire on the subject of racial prejudice, we in no way require or suggest that the judge broach the topic sua sponte.[211 ]
(Emphasis added.)
The Court further clarified by stating:
The rule we propose is minimally intrusive; as in other cases involving “special circumstances,” the trial judge retains discretion as to the form and number of questions on the subject, including the decision whether to question the venire individually or collectively. Also, a defendant cannot complain of a judge’s failure to question the venire on racial prejudice unless the defendant has specifically requested such an inquiry.[212 ]
(Emphasis added.)
Turner involved refusal by a trial judge to allow questioning of prospective jurors on racial prejudice during voir dire after it was requested by defense counsel. The Court concluded that federal due process requires that a capital defendant be allowed to question prospective jurors
In this case, the trial court did not deprive Appellant Davis of his right to a fair trial by an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution. The court had no obligation to raise the question of racial prejudice when it was not requested by the defendant or his counsel.
Appellant concedes the United States Constitution was not offended because there was no denial by the trial court of his right to question prospective jurors about their possible racial prejudice.
Appellant merely claims “the taint of racial bias” played a role in his death sentence because his case showed “compelling need” for questions to prospective jurors about
Three broad inquiries are relevant in this case: (1) whether the fact that jurors were not informed of the race of the victim in an interracial crime during voir dire examination negatively affected their impartiality; (2) whether the absence of such information would be cured by instructions from the trial court; and (3) whether, in any event, the absence of such information prejudiced Appellant in this case.
Juror Impartiality
Appellant has not established his claim that “the taint of racial bias” denied him a fair trial by an impartial jury. There is nothing in the record to support his conclusion.
The voir dire in this case extended over nine days and began with a panel of 120 prospective jurors. On January 5, 1998, the trial court read the “Death Penalty, Opening Jury Instruction” to the panel.
The State and each defendant were allowed to question each prospective juror. The questioning dealt primarily with their willingness to impose the death penalty, but each juror was questioned about other matters as well,
Appellant does not claim that race was a significant factor in his case. On the first day of jury selection, the judge instructed the entire panel of prospective jurors generally that, if they should be selected to serve, their decision must not be based upon bias or prejudice against Appellant.
While the United States Supreme Court in Turner observed that capital cases are unique and entitle a defendant to further inquiry into the racial prejudice of prospective jurors, the Court determined that the decision by a jury during a sentencing hearing (penalty phase) in a capital case differs from a determination of guilt because the
The mere fact that Appellant and the victim in this case were of different races does not constitutionally mandate voir dire on the issue of race. There is no evidence in the record to suggest that Appellant was singled out because of his race.
The United States Supreme Court has emphasized that “[t]he Constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that conceivably might prejudice veniremen against him.”
The trial court in this case did not abuse its discretion. Appellant has not shown that the discretion exercised by the trial court in not sua sponte injecting the subject of race was contrary to, or involved an unreasonable application of, clearly established state and federal law as determined by this Court or the United States Supreme Court.
Jury Instruction on Voir Dire
The trial court is afforded broad discretion in conducting voir dire. Under Turner, a trial court in a capital case need not question prospective jurors sua sponte during voir dire nor instruct the jury to disregard racial consider
The decision whether to raise the issue of race, considering the effect such questioning may have in unnecessarily bringing it to the attention of the jurors, is best left to defense counsel. The trial court in this case did not abuse its discretion by not sua sponte instructing prospective jurors to disregard the factor of race in their deliberations.
Prejudice
Appellant has not established that he was prejudiced by the decision of the judge not to question prospective jurors sua sponte concerning racial prejudice on voir dire or to instruct the jury to exclude race as a factor in their deliberations. There was substantial evidence to support a finding of guilt in this case. There is nothing in the record to suggest the jury improperly considered race in reaching its decision.
Appellant was afforded all his rights under both the United States Constitution and the Washington Constitution.
Admissibility of Certain Evidence
TESTIMONY OF KEITH D. BURKS
(2) Whether, under the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution, the trial court erred in admitting the testimony of Keith D. Burks; and whether the trial court erred in allowing the prosecuting attorneys to ask Mr. Burks on redirect examination, “With the people that you hang out with, is it a good thing or a bad thing to be labeled a snitch?”
In this case, Appellant contends the trial court erred in admitting the testimony of Keith D. Burks concerning the events on the morning of January 25,1997 as told to him by Codefendant Wilson. He claims the hearsay statement
A defendant may prevail on a claim of prosecutorial misconduct upon showing the conduct of the prosecuting attorney was improper and had a prejudicial effect on the jury’s verdict provided an objection is made and a curative instruction is requested unless such an instruction would not cure it.
Contrary to Appellant’s claims, the State argues the trial court properly admitted Mr. Burks’ testimony in accord with its determination that the testimony constituted an
The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him[.]” Similarly, article I, section 22 of the Washington Constitution provides: “In criminal prosecutions the accused shall have the right to ... meet the witnesses against him face to face[.]” The federal confrontation clause under the Sixth Amendment to the United States Constitution is applicable to the states under the due process clause of the Fourteenth Amendment.
A determination by the trial court that a hearsay statement falls within the excited utterance exception under ER 803(a)(2) will not be disturbed on appeal absent an abuse of discretion.
Appellant relies upon State v. Brown
In Brown, the alleged rape victim reported to police authorities that she was abducted and raped. At a pretrial hearing, the trial court ruled the 911 tape of her telephone
In this case, there was no evidence that Codefendant Wilson fabricated his statements to Mr. Burks.
The hearsay rule precludes admission of out-of-court statements to prove the truth of the fact asserted, except as provided by the Rules of Evidence, court rules, or stat
Under ER 803(a)(2), the excited utterance exception provides:
(a) Specific Exceptions. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.[252 ]
The excited utterance exception is based upon the theory that a statement made as a spontaneous reaction to the stress of a startling event offers little to no opportunity for misrepresentation or conscious fabrication.
Appellant’s brutal attack upon Ms. Couch was a startling event witnessed by Codefendant Wilson. In his statement to Mr. Burks, he disclosed his own intention to “rip the lady
Appellant’s attack upon Ms. Couch was a startling event creating stress for Codefendant Wilson. “The key to the second element is spontaneity.”
In this case, the time interval between the startling event and the statement was brief. Only five to six minutes passed before Codefendant Wilson appeared at the sliding glass door at the back of Appellant’s residence and told Mr. Burks he left the Couch residence as soon as he realized what Appellant was doing to Ms. Couch.
The requirements for admissibility of an excited utterance as an exception to the hearsay rule under ER 803(a)(2) are satisfied under the evidence in this case since there was a startling event to which the statement related; and the spontaneity of the statement was preserved because the time between the event and the statement was sufficiently slight to ensure that when he made the statement to Mr. Burks, Mr. Wilson was still under the stress of witnessing Appellant’s attack upon Ms. Couch.
Appellant’s emphasis upon the United States Supreme Court decision in Lilly v. Virginia,
“The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.”
The Supreme Court adheres to the general rule it articulated in Ohio v. Roberts
In this case, Codefendant Wilson’s statement to Mr. Burks is reliable because it falls within a “firmly rooted” hearsay exception, the excited utterance exception under ER 803(a)(2), and does not offend Appellant’s rights under the confrontation clause.
In Lilly v. Virginia
The Supreme Court in Lilly specifically mentioned “spontaneous declarations” as an example of a “firmly rooted” exception to the hearsay rule.
In addition, Appellant contends the trial court erred in allowing the prosecuting attorneys to ask Keith D. Burks on redirect examination, “With the people that you hang out with, is it a good thing or a bad thing to be labeled a snitch?”
The State’s version of the trial proceedings concerning this issue is correct. Appellant’s counsel made no objection to the question it now argues was erroneously
TESTIMONY OF ASIL HUBLEY
(3) Whether, under the Sixth and Fourteenth Amendments to the United States Constitution and article I, sections 3 and 22 of the Washington Constitution, the trial court erred in admitting the testimony of prosecution witness Asil Hubley.
Appellant contends “the prosecutor’s conduct in selectively asserting the truthfulness and reliability of [codefendant] Wilson’s ‘excited utterance’ to Keith D. Burks by offering the testimony of Asil Hubley” violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution and article I, sections 3 and 22 of the Washington Constitution.
During the trial before Judge Fleming, the court allowed the State to ask Mr. Hubley four leading questions.
(1) Did [codefendant] Anthony Wilson tell you at one point that he was inside the bathroom of the woman’s [Ms. Couch’s] home? ANSWER: Yes.
(2) Did he later tell you that he stayed on the couch in the house and heard noises coming from the bathroom? ANSWER: Yes.
(3) Later still did he tell you he wasn’t even inside of her house? ANSWER: Yes.
(4) Were the second and third things that [codefendant] Anthony Wilson told you after he found out the police were wanting to talk to him about this case? ANSWER: Yes.[291 ]
The ruling by the judge is not quite clear, but Judge Fleming stated “[the four questions are] leading, but. . . [the questions] will be allowed in order not to prejudice either side. I’m going to trust that the best interests of the particular defendants will restrict sufficiently cross-examination so as not to offend Bruton. . . . I’m not restricting the cross-examination.”
However, Judge Fleming ultimately affirmed his ruling and allowed the four leading questions. Appellant objected to the State’s questions and moved to exclude them.
Properly argued at trial and on appeal, the issue quite simply would have been objection to the leading form of the four questions and objection to the inadmissible hearsay the questions presented. But this was not done. Appellant does not make a clear argument on the issue on appeal. Even assuming it was error to allow the leading questions, the error was harmless.
Videotape of Crime Scene
(4) Whether the trial court erred in admitting a videotape of the crime scene.
Appellant claims the trial court erred in admitting a videotape of the crime scene.
The decision whether to admit photographic evidence lies within the sound discretion of the trial
In this case, the trial court did not abuse its discretion because the videotape documented the police investigation at the Couch residence shortly after investigators arrived at the scene.
Washington State Population Statistics
(5) Whether the trial court erred in refusing to admit unauthenticated Washington State population statistics obtained from the Internet.
Appellant contends the trial court erred in not admitting Washington State population statistics.
The evidentiary rulings of a trial court are reviewed for abuse of discretion.
DEATH QUALIFICATION OF JURORS
(6) Whether the trial court erred in denying Appellant’s challenge to juror Number 6 and whether certain prospective jurors were properly excused for cause.
Denial of Defense Challenges for Cause
Appellant assigns error to the trial court’s denial of his challenge for cause against juror number 6.
Under the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution, “a defendant is guaranteed the right to a fair and impartial jury.”
[RCW] 4.44.160 General causes of challenge. General causes of challenge are:
(1) A want of any of the qualifications prescribed for a juror, as set out in RCW 2.36.070.
(2) Unsoundness of mind, or such defect in the faculties of the mind, or organs of the body, as renders him or her incapable of performing the duties of a juror in any action.
[RCW] 4.44.170 Particular causes of challenge. Particular causes of challenge are of three kinds:
(1) For such a bias as when the existence of the facts is ascertained, in judgment of law disqualifies the juror, and which is known in this code as implied bias.
(2) For the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in this code as actual bias.
(3) For the existence of a defect in the functions or organs of the body which satisfies the court that the challenged person is incapable of performing the duties of a juror in the particular*856 action without prejudice to the substantial rights of the party challenging.
[RCW] 4.44.180 Implied bias defined. A challenge for implied bias may be taken for any or all of the following causes, and not otherwise:
(1) Cosanguinity or affinity within the fourth degree to either party.
(2) Standing in the relation of guardian and ward, attorney and client, master and servant or landlord and tenant, to the adverse party; or being a member of the family of, or a partner in business with, or in the employment for wages, of the adverse party, or being surety or bail in the action called for trial, or otherwise, for the adverse party.
(3) Having served as a juror on a previous trial in the same action, or in another action between the same parties for the same cause of action, or in a criminal action by the state against either party, upon substantially the same facts or transaction.
(4) Interest on the part of the juror in the event of the action, or the principal question involved therein, excepting always, the interest of the juror as a member or citizen of the county or municipal corporation.
[RCW] 4.44.190 Challenge for actual bias. A challenge for actual bias may be taken for the cause mentioned in RCW 4.44.170(2). But on the trial of such challenge, although it should appear that the juror challenged has formed or expressed an opinion upon what he may have heard or read, such opinion shall not of itself be sufficient to sustain the challenge, but the court must be satisfied, from all the circumstances, that the juror cannot disregard such opinion and try the issue impartially.
The trial court’s dismissal of a prospective juror in a capital case will not be reversed on appeal absent a manifest abuse of discretion.
In In re Lord, this Court affirmed the trial court’s refusal to allow a challenge for cause to a juror who, like juror number 6 in this case, initially appeared confused about the jury’s penalty phase duties and the applicable law:
Although [the juror’s] initial understanding of the procedures involved in a capital trial was confused, the record as a whole demonstrated that his “views [on capital punishment] would [not] ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ”[319 ]
In this case, juror number 6 stated that although he favored the death penalty, he was not predisposed to vote for it.
Dismissal of Jurors
Appellant also argues the trial court erred in dismissing juror number 50 and juror number 38 for cause.
The process of death qualifying a jury in a capital case has consistently been upheld by the United States Supreme Court.
In this case, the State challenged juror number 50 for cause and the trial court dismissed her because her responses to questions from both the prosecuting attorneys and defense counsel indicated her religious convictions would not allow her to impose the death penalty, and that, if life without parole were a sentencing option, she would vote for that option.
Similarly, the trial court properly exercised its discretion in granting the State’s challenge for cause to juror number 38. Juror number 38 stated he would require “100% proof’ before he could impose the death penalty.
(7) Whether the trial court erred in not inquiring into the potential conflict of interest arising out of possible prior representation of a “jailhouse informer” by defense counsel’s public defense office.
Appellant argues the trial court erred in not inquiring into an alleged conflict of interest involving the Pierce County Department of Assigned Counsel (DAC), and its possible prior representation of the State’s witness, Shelby B. Johnson, a “jailhouse informer.”
The State contends the trial court had no duty to inquire about a potential conflict
The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right... to have the assistance of counsel for his defense.” The Sixth Amendment right to counsel is assured in state courts by the due process clause of the Fourteenth Amendment.
A trial court is not required to initiate an inquiry
Trial courts may assume, absent special circumstances, that the representation of a criminal defendant by one or more lawyers entails no conflict of interest.
In this case, the trial court was not advised there was a potential conflict of interest. The record concerning the alleged conflict of interest consists only of the following exchange:
The State: Next motion, Your Honor, is ... a motion to exclude several convictions [of] Shelby Johnson. He is an adult. Shelby Johnson ... is the witness who had ... a discussion with Cecil Davis in jail about reading the newspaper, and he has multiple felony and misdemeanor convictions that I’ve*862 listed on page two of the State’s motion in limine.
The Court: Wait a minute. What about the obstructing? Isn’t that the same circumstances that’s applicable there or are you seeking to have that?
Appellant’s Counsel: Yes, Your Honor. And again, I’ve ordered the report, that is a more current conviction. When it became obvious that Mr. Johnson was going to be a witness in this, all of our files in our office were sealed, so I again had to order the police reports and don’t have it yet and I don’t know.[342 ]
Appellant’s two lawyers never raised any concern about a possible conflict of interest. Nor did Appellant claim at any time during trial that his legal representation was tainted by conflict of interest. The trial court properly relied upon the judgment of Appellant’s own lawyers and had no reason to believe there was a conflict of interest.
Appellant’s reliance on Holloway v. Arkansas
The Supreme Court clarified Holloway in Cuyler v. Sullivan, holding that state trial courts may “assume” that defense counsel has no conflict of interest, and that the state trial courts have no duty to inquire unless the court “reasonably should know that a particular conflict exists.”
In re Richardson is also distinguishable. In that case, defense counsel represented both the defendant and a witness whom the defendant called to establish a claim of self-defense.
Under the facts in this case, unlike Richardson, there was no conflict of interest presented to the trial court.
“Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ”
Jury Instructions
(8) Whether the trial court erred in giving jury instruction Number 13 on aggravating circumstances and jury instruction Number 20 on requirements for conviction.
Appellant argues the trial court erred in not properly instructing the jury concerning aggravating factors for the crime of first degree premeditated murder in jury instruction number 13. Specifically, he objected to the last sentence injury instruction number 13
An error may be raised for the first time on appeal if it is a manifest error affecting a constitutional right.
Appellant’s argument is without merit, though, because there is no authority for the proposition that WPIC language takes precedence over a decision of this Court.
Petitioner appears to take the position that the jury was required to unanimously agree as to alternative ways to satisfy each of the alternative aggravating circumstances. His “means within a means” argument raises the spectre of a myriad of instructions and verdict forms whenever a criminal statute contains several instances of use of the word “or”. For example, the petitioner would now seem to want separate instructions and verdicts on (1) whether the murder was committed to conceal the commission of a crime; (2) whether the murder was committed to protect the identity of any person committing a crime; (3) whether the murder was committed to conceal the identity of any person committing a crime; etc. Petitioner cites no authority for his position and we perceive no necessity for it. Further, petitioner did not except to the instructions given on the grounds now argued, as required in order to preserve any claimed error, nor did he propose instructions on his theory.[371 ]
In State v. Lord
There is no merit to Appellant’s argument there was not sufficient evidence to support the various crimes against him listed in jury instruction number 13.
In this case, the jury was properly instructed concerning the elements of the crimes of first and second degree robbery, first and second degree rape, and first and second degree burglary.
In ruling on a challenge to the sufficiency of the evidence, the Court must consider whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt.
Appellant argues the trial court erred in not properly instructing the jury in the “to convict” instruction for first degree felony murder in jury instruction number 20. The State contends the trial court did not err in giving that instruction. The State also asserts that because Appellant was convicted of the greater crime of aggravated first degree premeditated murder, this Court should decline to review Appellant’s challenge to the “to convict” instruction.
Appellant has not established he was in any way prejudiced by the trial court’s instruction number 20, the “to convict” instruction for first degree felony murder.
Prosecutorial Misconduct
(9) Whether, under the Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 14 and 22 of the Washington Constitution, Appellant was denied a fair trial because of prosecutorial misconduct in statements by prosecuting attorneys during the penalty phase of the trial.
Appellant alleges misconduct by the prosecuting attorneys in their closing argument during the penalty phase. He makes the following statement giving examples of comments he claims were improper:
*871 [A] plea to the jury that the elected prosecutor had prescreened the case for the death penalty, that the defendant had acted as the judge, jury and executioner (of the victim), that he showed no mercy and should have none; gave his personal account of the history of vengeance in society, that the ‘seeds of anarchy’ would be sown’ and the ‘social contract’ broken without a willingness to meet [sic] out ‘the ultimate penalty.’ That ‘a failure to impose the death penalty in a case like this cheapens all our lives’; that the jury should put their compassion where it belongs, with the victim, and to enforce the greater principle “their right as citizens to believe that the death penalty is still the law of the land.”[389 ]
(Citations to Report of Proceedings omitted.)
The State maintains the allegedly improper remarks identified by Appellant “illustrate the principle that error can be found in virtually any statement taken out of context.”
The record confirms the State’s observation that Appellant’s counsel made no objection, requested no curative instruction, and made no motion for mistrial in response to the prosecuting attorneys’ closing argument at sentencing.
“Where improper argument is charged, the defense bears the burden of establishing the impropriety of the prosecuting attorney’s comments as well as their prejudicial effect. Reversal is not required if the error could have been obviated by a curative instruction which the defense did not request. The*872 failure to object to a prosecuting attorney’s improper remark constitutes a waiver of such error unless the remark is deemed to be so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.”[393 ]
Allegedly improper comments by prosecuting attorneys must be reviewed in the context of the total argument, the issues in the case, and the instructions to the jury.
The prosecuting attorneys did not suggest they had “pre-screened” the case for death penalty qualification.
The prosecuting attorney’s comment that Appellant acted as the “judge, jury and executioner of the victim” did not constitute prosecutorial misconduct.
Arguments by the State asking the jury to act as “a conscience of the community” are not improper unless intended to inflame the jury.
The prosecuting attorneys at the outset of their closing argument reminded the jurors of the court’s instruction “to consider anew the evidence presented during the trial,”
Statutory Review
(10) Whether, under the Fourteenth Amendment to the United States Constitution, Appellant’s sentence of death was the result of prejudice which denied him a meaningful proportionality review mandated by RCW 10.95.130.
Under our capital punishment statute, chapter 10.95 RCW, this Court must review a death sentence imposed by a trial court to determine (a) whether there was sufficient evidence to justify the finding by the jury that there were not sufficient mitigating circumstances to merit leniency; (b) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant; (c) whether the sentence of death was brought about by passion or prejudice; and (d) whether the defendant was mentally retarded.
In this case, Appellant does not claim his death sentence was the result of insufficient evidence to justify an affirma
Appellant does claim, however, that his death sentence was the result of passion or prejudice. He attributes the “risk of prejudice” which allegedly deprived him of “any meaningful proportionality review”
SUFFICIENCY OF EVIDENCE
In the penalty phase, the jury in this case concluded the State had proved beyond a reasonable doubt that there were not sufficient mitigating circumstances to merit leniency for Appellant Davis.
In the penalty phase of his trial, Appellant offered mitigating evidence for the jury to consider in determining whether he merited leniency. He presented the testimony of family members who stated that they still loved him in-
Dr. Lloyd I. Cripe, Ph.D., specializing in clinical neuropsychology, performed intelligence tests and neuropsychological tests on Appellant on two occasions.
On October 17, 1997, Dr. Robert B. Olsen, M.D., a specialist in internal medicine and psychiatry, examined Appellant and administered psychological tests to him.
Viewing all the evidence in a light most favorable to the prosecution, a rational trier of fact could find sufficient evidence to support the jury’s conclusion that Appellant Davis did not merit leniency.
The State offered the testimony of two of the Couches’ four adult children, all of whom are married and have children, concerning the impact their mother’s death had on them and other members of the family, including the Couches’ five grandchildren. Allen R. Couch, the youngest child of Yoshiko and Richard Couch, testified about how the death of his mother has resulted in his difficulty sleeping and being a bit short tempered,
The Couches’ only daughter, Ms. Diana Rodriguez, testified concerning how her father missed her mother after her death, how he talked about her every day, and that he lost the will to do anything because he wanted to be with her.
“The mere presence of mitigating circumstances does not require reversal if the jury is convinced the circumstances of the crime outweigh the proposed mitigating factors.”
PROPORTIONALITY
Under RCW 10.95.130(2)(b), this Court is required to conduct a proportionality review in every capital case to determine:
Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. For the purposes of this subsection, “similar cases” means cases reported in the Washington Reports or Washington Appellate Reports since January 1, 1965, in which the judge or jury considered the imposition of capital punishment regardless of whether it was imposed or executed, and cases in which reports have been filed with the supreme court under RCW 10.95.120[.]
RCW 10.95.120 requires filing of reports by trial judges
The purpose of conducting proportionality review is to avoid two systemic problems associated with imposition of capital punishment: random arbitrariness and imposition in a racially discriminatory manner.
This Court, in attempting to achieve this purpose, considers both “the crime and the defendant” in comparison with other “similar cases” in determining whether the sentence of death was imposed “generally in similar cases, and not imposed wantonly and freakishly.”
The test established by this Court in analyzing “the crime and the defendant” in relation to “similar cases” requires examination of four factors including (1) the nature of the crime, (2) the aggravating circumstances, (3) the defendant’s criminal history and (4) the defendant’s personal history.
Nature of the Crime
The nature of the crime committed by Appellant Davis was particularly brutal. At approximately 2:30 a.m., in the presence of Codefendant Wilson and Keith D. Burks, Appellant announced his desire “to rob somebody” and “to kill me a motherfucker.”
The record, including the physical evidence in the case, indicates a large amount of biological tissue (blood clot) found on a sleeping bag recovered from the bed in the southeast bedroom. The medical examiner concluded Ms. Couch was raped by an object, not a penis, resulting in a vaginal laceration causing a large blood flow. The rape occurred before her death.
According to the medical examiner, Ms. Couch was taken at some undetermined time to the bathroom, and while lying on her back in the bathtub, was asphyxiated by suffocation, neck compression, and poisoned by the toxin xylene with towels saturated with the chemical piled on her head and upper torso. The chemical xylene is known to cause death by inhalation within minutes. She was left to
Comparing Ms. Couch’s suffering to that endured by victims in other “similar cases” considered by this Court indicates that Appellant Davis’ crime is at least as brutal as those committed in other cases in which this Court upheld imposition of the death penalty after proportionality review.
Aggravating Circumstances
The jury found Appellant “guilty” of aggravated first degree murder, specifying three aggravating factors.
In this case, the death sentence is not excessive or disproportionate in comparison with other cases in which the death penalty was imposed.
Criminal History
Appellant’s death sentence is not disproportionate when his criminal history is considered. His record includes prior convictions for (1) robbery in the second degree in 1986, (2) perjury in the second degree in 1986, (3) assault in the fourth degree in 1988, (4) assault in the second degree in 1990, (5) criminal trespass in the first degree in 1990, (6) driving without a valid operator’s license in 1992, (7) driving without a valid operator’s license in 1993, (8) theft in the third degree in 1992, and (9) violation of a domestic violence pretrial no-contact order in 1995.
The subjective factors in Appellant’s personal history are not sufficient to override the circumstances and consequences of his crime. “ ‘The role of mitigation evidence is to reduce culpability for a crime that has already been proved.’ ”
Appellant’s death sentence is not disproportionate to sentences imposed in similar cases. The factors employed by this Court in considering both the “crime and the defendant” justify the conclusion that Appellant Davis’ case is sufficiently similar to other cases in which the death penalty has been imposed and upheld on appeal. The
PASSION OR PREJUDICE
Appellant asserts that his death sentence was brought about through passion or prejudice. He attributes the “risk of prejudice” which he claims deprived him of “any meaningful proportionality review”
Turner v. Murray and a review of the record in this case support a conclusion that a trial court in a capital case need not question jurors sua sponte during voir dire on possible racial prejudice nor instruct jurors to disregard racial considerations in the absence of a request by a party. Appellant made no such request. There is absolutely no evidence in the record in this case to support a conclusion that the verdict of the jury was based upon passion and prejudice.
MENTAL RETARDATION
RCW 10.95.030(2) proscribes imposition of capital punishment upon persons who were mentally retarded at the time they committed the crimes for which they are being sentenced. To be considered “mentally retarded”
After a review of the errors claimed by Appellant Davis and a mandatory statutory review, we conclude there is no reversible error in the guilt phase and no reversible error in the penalty phase of Appellant’s trial. Under the facts of this case, Appellant’s conviction for aggravated murder in the first degree, the jury’s determination he did not merit leniency, and the consequent imposition of the sentence of death should be affirmed.
SUMMARY AND CONCLUSIONS
(1) The trial court did not abuse its discretion in not sua sponte questioning prospective jurors concerning racial bias during voir dire examination under the Sixth or Fourteenth Amendments to the United States Constitution and article I, sections 3 and 22 of the Washington Constitution. Nor did the trial court abuse its discretion in not sua sponte instructing the jury to exclude consideration of race as a factor in the case.
(2) The trial court did not abuse its discretion in admitting the testimony of prosecution witness Keith D. Burks. His testimony was admissible under the excited utterance exception to the hearsay rule, a “firmly rooted” exception, and therefore did not violate Appellant’s right of confrontation under the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution. The trial court did not abuse its discretion in allowing prosecuting attorneys to ask Mr. Burks on redirect examination, “With the people that you hang out with, is it
(3) Appellant did not establish that the trial court erred in admitting the testimony of prosecution witness Asil Hubley in violation of the Sixth and Fourteenth Amendments to the United States Constitution and article I, sections 3 and 22 of the Washington Constitution. Even assuming it was error for the trial court to allow leading questions by the prosecutor to this witness, there was no sufficient objection and the error was harmless.
(4) The trial court did not abuse its discretion in admitting a videotape of the crime scene. The videotape aided the jury’s understanding of the scene and was not prejudicial to Appellant.
(5) The trial court did not abuse its discretion in refusing to admit unauthenticated Washington State population statistics. The hard copy printout from the Internet containing population statistics does not qualify under the public records exception to the hearsay rule and RCW 5.44.040. Nor does it qualify as a self-authenticating document under ER 902.
(6) The trial court properly denied Appellant’s challenge to juror number 6 for cause during voir dire. The answers of juror number 6 would not have affected his ability to follow the court’s instructions and abide by his oath as a juror. The trial court properly excused jurors number 50 and 38 for cause during voir dire. Their answers indicated they would not have been able to follow the court’s instructions and abide by their oaths as jurors.
(7) The trial court had no obligation to inquire into a potential conflict of interest arising out of possible prior representation of the State’s witness, a “jailhouse informer,” by the public defense agency, Department of Assigned Counsel, from which defense counsel were assigned where there was no evidence whatever of an actual or possible conflict of interest adversely affecting the performance of Appellant’s counsel.
(8) Jury instruction number 13 properly instructed the
(9) None of the statements made by the prosecuting attorneys during the penalty phase of the trial constituted prosecutorial misconduct denying Appellant a fair trial under the Eighth and Fourteenth Amendments to the United States Constitution or article I, sections 14 and 22 of the Washington Constitution.
(10) Appellant’s sentence of death was not the result of passion or prejudice in violation of the Fourteenth Amendment to the United States Constitution. Under the proportionality review mandated by RCW 10.95.130, we conclude the sentence of death was not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the Appellant. There was sufficient evidence to justify the finding by the jury that there were not sufficient mitigating circumstances to merit leniency. There is no evidence that Appellant is mentally retarded as defined under RCW 10.95.030(2).
We affirm the conviction of Appellant Cecil Emile Davis in the Pierce County Superior Court for the aggravated first degree murder of Ms. Yoshiko Couch and affirm the sentence of death imposed after the jury determined there were not sufficient mitigating circumstances to merit leniency.
Guy, C.J., and Johnson, Madsen, Alexander, Talmadge, Ireland, and Bridge, JJ., concur.
Report of Proceedings (Jan. 23, 1998) at 1313.
Report of Proceedings (Jan. 22, 1998) at 1260-63.
Id.
Report of Proceedings (Jan. 27, 1998) at 1568-69; see Report of Proceedings (Feb. 4, 1998) at 2073.
Report of Proceedings (Jan. 22, 1998) at 1263.
Report of Proceedings (Jan. 23, 1998) at 1298; Report of Proceedings (Feb. 3, 1998) at 1948-49.
Report of Proceedings (Jan. 22,1998) at 1263; Report of Proceedings (Jan. 23, 1998) at 1292-98; see Report of Proceedings (Jan. 27, 1998) at 1570; Report of Proceedings (Feb. 4, 1998) at 2081.
See Report of Proceedings (Jan. 23,1998) at 1317; Report of Proceedings (Jan 27, 1998) at 1449-50; Report of Proceedings (Jan. 29, 1998) at 1709; Report of Proceedings, (Feb. 3, 1998) at 1974.
Report of Proceedings (Feb. 2, 1998) at 1784-86.
See Report of Proceedings (Feb. 3, 1998) at 1925.
Report of Proceedings (Jan. 27, 1998) at 1500.
Report of Proceedings (Feb. 2, 1998) at 1899-1900.
Report of Proceedings (Jan. 27, 1998) at 1502-03.
See Id. at 1505.
Report of Proceedings (Feb. 2, 1998) at 1889-90.
Report of Proceedings (Jan. 27, 1998) at 1505.
Id. at 1506; Report of Proceedings (Feb. 2, 1998) at 1890-91.
Report of Proceedings (Jan. 27, 1998) at 1507-08.
Id.
Id. at 1508-09.
Id. at 1525.
Id. at 1512.
Id. at 1508.
Id. at 1526.
Id. at 1532-33.
On January 30, 1997, Mr. Burks gave a recorded statement to Detective William Webb of the Tacoma Police Department relating the conversation he had with Codefendant Wilson the morning of January 25, 1997. Prior to making that statement, Mr. Burks had a telephone conversation with Detective Tom Davidson, at which time he denied any knowledge of the event. He admits he did not tell Detective Davidson the truth, but testified his statement to Detective Webb was true. Id. at 1509-11; see Report of Proceedings (Jan. 29, 1998) at 1710-11; see also Report of Proceedings (Feb. 3, 1998) at 1913-14. Mr. Burks also testified he was intoxicated the night of the event and was afraid of Appellant. Report of Proceedings (Jan. 27, 1998) at 1516, 1520.
Report of Proceedings (Jan. 22, 1998) at 1260-61.
Id. at 1260.
Id. at 1261.
Id.
Report of Proceedings (Feb. 3, 1998) at 1992.
Report of Proceedings (Jan 22, 1998), at 1261.
Id. at 1261-62.
Id. at 1262.
Id.
Id. at 1262-63.
Id. at 1263.
Id. at 1263-64.
Report of Proceedings (Jan. 23, 1998) at 1311.
Report of Proceedings (Peb 10, 1998) at 2377.
Report of Proceedings (Jan 23, 1998) at 1312.
Id. at 1313.
Report of Proceedings (Jan 22, 1998) at 1264-65.
Id. at 1268-69.
See Report of Proceedings (Jan. 23, 1998) at 1309.
Id. at 1313-14.
Id. at 1313-19.
Id.
Id. at 1319.
Id. at 1309-14.
Report of Proceedings (Jan 22, 1998) at 1272-73.
Report of Proceedings (Jan 27,1998) at 1438; see Report of Proceedings (Feb. 3, 1998) at 1927.
Report of Proceedings (Feb. 3, 1998) at 1927-28.
Report of Proceedings (Jan. 27, 1998) at 1335, 1437. (Comet Cleanser, a powdery scrubbing agent, is commonly known to destroy latent fingerprints).
Id. at 1494-95.
Id. at 1454; Report of Proceedings (Jan. 22, 1998) at 1335.
Id. at 1476.
See id. at 1440.
Report of Proceedings (Jan. 23,1998) at 1339-40; Report of Proceedings (Feb. 3, 1998) at 1943-44; Report of Proceedings (Feb 4, 1998) at 2073.
Report of Proceedings (Jan. 23, 1998) at 1337-39.
Id. at 1337.
Report of Proceedings (Jan. 27, 1998) at 1473-74.
Id.
Id. at 1475.
Report of Proceedings (Jan. 23,1998) at 1328-29.
Report of Proceedings (Feb. 4, 1998) at 2045-50.
Id. at 2051-52.
Id. at 2067.
Id. at 2057, 2061-63.
Id. at 2063-64.
Id.
Id. at 2057-64.
Id. at 2060.
Id. at 2054.
Id. at 2055.
Id. at 2069.
Id. at 2069-71.
Id. at 2074.
Id. at 2072-73.
Report of Proceedings (Jan 27, 1998) at 1537-40.
See Report of Proceedings (Jan 29, 1998) at 1748-49.
Report of Proceedings (Jan. 27, 1998) at 1546.
Id. at 1547.
Id. at 1553.
See id. at 1474 (State’s Ex. No. 93).
Report of Proceedings (Feb. 4, 1998) at 2065.
Report of Proceedings (Jan. 29, 1998) at 1716, 1737-39 (“flat oval shape .. . flat ribbon shape . .. tightly curled. ...”).
Id. at 1739.
Report of Trial Ct. Judge (Mar. 10, 1998) at 2; see Clerk’s Papers at 552.
Report of Proceedings (Jan. 29, 1998) at 1749-52.
Id. at 1730.
Id. at 1759-63.
Id. at 1767-68.
See id.
Report of Proceedings (Jan. 29, 1998) at 1664.
Id. at 1673.
Id. at 1676-77.
Id. at 1687-89.
Report of Proceedings (Feb. 4, 1998) at 2111-12.
Id. at 2144.
Id. at 2149-51. Ms. Couch was Asian-American of Japanese descent.
Report of Proceedings (Feb. 3, 1998) at 1956-57.
Id. at 1955-56.
Id. at 1969-71; see Report of Proceedings (Jan. 27, 1998) at 1558-59.
See Report of Proceedings (Jan. 27, 1998) at 1559.
Report of Proceedings (Feb. 2, 1998) at 1876.
Id. at 1875.
Id. at 1876, 1880.
Id.
Id. at 1876-78.
Report of Proceedings (Feb. 3, 1998) at 1964.
Id. at 1964-69.
Id. at 2033.
Id. at 2034.
Report of Proceedings (Feb. 2, 1998) at 1837-39.
Id. at 1839.
Id. at 1847.
Id. at 1896.
Id.
Id. at 1897.
Id. at 1839.
Id. at 1839-40.
Id. at 1790-91.
Id. at 1883.
Id. at 1884.
Id. at 1802.
Id. at 1789-90, 1898.
Id. at 1790.
Id. at 1857-59.
Id. at 1798-1800.
Id. at 1867.
Report of Proceedings (Feb. 3, 1998) at 1981.
Report of Proceedings (Feb. 2, 1998) at 1869.
Id. at 1868.
Id. at 1870.
Id. at 1871.
Id.
Id.
Appellant was arrested on January 28, 1997 on an unrelated warrant. See Report of Proceedings (Jan. 22, 1998) at 1155-58. He was arrested on the charge in this case on January 30, 1997.
Report of Proceedings (Feb. 3, 1998) at 1998-99.
Id. at 1999.
Id. at 2000.
Id.
Clerk’s Papers at 1-2.
Id.
Id. at 160-61.
Id. at 1-2.
Id. at 13.
In a pretrial motion before Judge Sebring, Appellant moved to exclude the statements by Codefendant Wilson to Keith D. Burks concerning the role Appellant played in the killing of Ms. Couch. Appellant argued admission of the statements would violate his Sixth Amendment right to confrontation. The trial court denied the motion and ruled the statements were excited utterances under Evidence Rule (ER) 803(a)(2) that did not offend the confrontation clause. (Clerk’s Paper’s at 350-52).
Report of Proceedings (Nov. 12, 1997) at 2-5.
Report of Proceedings (Nov. 12,1997) at 7. CrR 6.11(a) provides: “Disability of Judge During Jury Trial. If, before the judge submits the case to the jury, he is unable to continue with the trial, any other judge assigned to or regularly sitting in the court, upon familiarizing himself with the record of the trial, may proceed with the trial. Upon defendant’s objection to the replacement, a mistrial shall be granted.”
Report of Proceedings (Feb. 6, 1998) at 2306-07; see RCW 10.95.020(ll)(a), (b), or (c).
Report of Proceedings (Feb. 6, 1998) at 2307.
Appellant claimed inconsistent verdicts because the jury on Verdict Form A found him “guilty” of murder in the first degree, and on the interrogatory found him “guilty” of both aggravated premeditated murder and felony murder, in addition to finding, on the Special Verdict Aggravating Circumstances Form, that there were three aggravating circumstances. Report of Proceedings (Feb. 9,1998) at 2318-23.
rpjjg trial court relied upon State v. Howland, 66 Wn. App. 586, 832 P.2d 1339 (1992), review denied, 121 Wn.2d 1006, 848 P.2d 1263 (1993), reasoning that “the felony murder is merged in the aggravated murder, premeditated in the first degree!,] ... [a]nd as long as the court doesn’t sentence under the felony murder, the defendant is not prejudiced.” Report of Proceedings (Feb. 9, 1998) at 2322-23.
Report of Proceedings (Feb. 12, 1998) at 2553-54.
Report of Trial Ct. Judge (Mar. 10, 1998) at 13.
Turner v. Murray, 476 U.S. 28, 36 n.9, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986).
Washington Constitution, article I, sections 3 and 22.
State v. Parnell, 77 Wn.2d 503, 507, 463 P.2d 134 (1969).
Parnell, 11 Wn.2d at 507 (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751 (1961)).
Id. at 508.
Formal proceeding at beginning of a jury trial in which counsel and the court ask questions of prospective jurors testing their qualifications to serve. See Black’s Law Dictionary 1569 (7th ed. 1999).
Morgan v. Illinois, 504 U.S. 719, 729, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992); see United States v. Sarkisian, 197 F.3d 966 (9th Cir. 1999); see State v. Laureano, 101 Wn.2d 745, 758, 682 P.2d 889 (1984) (citing State v. Robinson, 75 Wn.2d 230, 231-32, 450 P.2d 180 (1969)).
Ristaino v. Ross, 424 U.S. 589, 594-95, 96 S. Ct. 1017, 47 L. Ed. 2d 258 (1976), (quoting Connors v. United States, 158 U.S. 408, 413, 15 S. Ct. 951, 39 L. Ed. 1033 (1895)).
Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981).
id.
See United States v. Jones, 722 F.2d 528, 529 (9th Cir. 1983).
United States v. Robinson, 475 F.2d 376, 380 (D.C. Cir. 1973); Haslam v. United States, 431 F.2d 362 (9th Cir. 1970), adhered to on reh’g, 437 F.2d 955, cert. denied, 402 U.S. 976 (1971).
Report of Trial Ct. Judge (Mar. 10, 1998) at 2; see Juror Questionnaire (Appellant and Codefendant George Anthony Wilson are African-American.); Clerk’s Papers at 552.
Report of Trial Ct. Judge (Mar. 10, 1998) at 8.
Formal act by the court on its own without a motion or request by any party to the proceeding. See Black’s Law Dictionary, 1437 (7th ed. 1999).
Report of Trial Ct. Judge (Mar. 10, 1998) at 12. The trial judge did not instruct the jury on exclusion of race or ethnic origin at trial.
Laureano, 101 Wn.2d at 758 (quoting State v. Tharp, 42 Wn.2d 494, 499, 256 P.2d 482 (1953)).
See Report of Proceedings at 71, 133, 176, 224, 273, 292, 711, 908, 915, 940, 967, 1001 and 1073-74, respectively.
See Appellant’s Reply Br. at 1 (“Appellant agrees with [Respondent that primary responsibility for conducting voir dire under Washington practice lay with [Appellant’s] trial counsel.”).
There is nothing in the record to indicate that defense counsel was not satisfied with the jury panel as constituted.
The subject of race was mentioned 13 times during voir dire to jurors: number 1, 6, 8,16,18, 20, 61, 87, 89, 90, 92, 94 and 96. See Report of Proceedings at 71, 133,176, 224, 273, 292, 711, 908, 915, 940, 967,1001 and 1073-74 . The 15 jurors selected included jurors number 5, 6, 9,15,16,18, 20, 28, 36, 54, 61, 66, 76, 77 and 82.
Turner, 476 U.S. at 36 n.8.
Rosales-Lopez, 451 U.S. at 190.
McCleskey v. Kemp, 481 U.S. 279, 311, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987) (quoting Peters v. Kiff, 407 U.S. 493, 503, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972)).
McCleskey, 481 U.S. at 311 (“The capital sentencing decision requires the individual jurors to focus their collective judgment on the unique characteristics of a particular criminal defendant.”).
Id. at 312 (alteration in original) (quoting Kenneth Culp Davis, Discretionary Justice 170 (1973)).
Turner, 476 U.S. at 36 n.8.
Mu’min v. Virginia, 500 U.S. 415, 422, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991) (affirming the capital murder conviction of a defendant, holding that his Sixth and Fourteenth Amendment rights under the United States Constitution were not violated when a trial judge properly exercised his broad discretion in refusing to question the venire about specific contents of news reports to which they had been exposed).
See Mu’min, 500 U.S. at 422-23 (citing Connors v. United States, 158 U.S. 408, 413, 15 S. Ct. 951, 39 L. Ed. 1033 (1895); Aldridge v. United States, 283 U.S. 308, 51 S. Ct. 470, 75 L. Ed. 1054, 73 A.L.R. 1203 (1931); and Rosales-Lopez, 451 U.S. at 189).
See id. at 422 (citing Ham v. South Carolina, 409 U.S. 524, 93 S. Ct. 848, 35 L. Ed. 2d 46 (1973); Ristaino, 424 U.S. 589, and Turner, 476 U.S. 28).
Id.
Id. at 422 (quoting Connors, 158 U.S. 408, 413, 15 S. Ct. 951, 39 L. Ed. 1033 (1895).
Id. at 422-23 (quoting Aldridge, 283 U.S. 308, 311, 51 S. Ct. 470, 75 L. Ed. 1054, 73 A.L.R. 1203 (1931).
See Rosales-Lopez, 451 U.S. 182, 184-94, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981).
See Ham, 409 U.S. 524, 525-29, 93 S. Ct. 848, 35 L. Ed. 2d 46 (1973).
Ristaino, 424 U.S. 589, 597, 96 S. Ct. 1017, 47 L. Ed. 2d 258 (1976).
Id. at 595 (footnote omitted).
Turner, 476 U.S. 28, 36-37, 106 S. Ct. 1683, 90 L. Ed. 27 (1986).
Id. at 33 (quoting Turner v. Bass, 753 F.2d 342, 345-46 (4th Cir. 1985)).
Id. at 37-38.
Ristaino, 424 U.S. at 596 n.8.
Aldridge, 283 U.S. at 310-11.
Rosales-Lopez, 451 U.S. at 189-90 (quoting Ristaino, 424 U.S. at 597).
Rosales-Lopez, 451 U.S. at 187-88.
Id. at 190.
Id. at 192.
Id. at 190.
Turner, 476 U.S. at 35 (The Supreme Court observed that in such cases “[bjecause of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected.”). Id. at 38 n.12. (“[T]he decisions that sentencing jurors must make involve far more subjective judgments than when they are deciding guilt or innocence.”).
McCleskey, 481 U.S. at 310 (citing Turner, 476 U.S. at 36 n.9).
The Washington statute, RCW 10.95.070, like the Virginia statutes, Va. Code
Turner, 476 U.S. at 36-37.
Id. at 37 n.10.
Id.
Id. at 37.
Morgan, 504 U.S. at 729.
See Br. of Appellant at 47-48.
Id. at 48. Appellant does not argue the Gunwall factors. See State v. Gunwall, 106 Wn.2d 54, 61-62, 720 P.2d 808, 76 A.L.R. 4th 517 (1986).
State v. Brown, 132 Wn.2d 529, 594, 940 P.2d 546 (1997); see State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986).
See Br. of Appellant at 46-47.
Appellant cites State v. Bartholomew, 101 Wn.2d 631, 640, 683 P.2d 1079 (1984), for the proposition that the Washington Constitution is not limited to the United States Supreme Court’s interpretation of the Sixth and Fourteenth Amendments of the United States Constitution.
The trial judge indicated in his report that the race or ethnic origin of the Appellant, victim or any witness was not an apparent factor at trial. Report of Trial Ct. Judge (Mar. 10, 1998) at 10.
In the trial court’s initial statements, it recited the “Death Penalty Opening Jury Instruction” to the venire which informed them that the purpose of voir dire examination was to select an “impartial jury,” which would decide the case solely
The African-American race of Appellant and his codefendant were disclosed in the jury questionnaire. The Japanese-American race of the victim, Ms. Yoshiko Couch, was not.
The document entitled “To Prospective Jurors” did not mention the race of either Appellant, his codefendant or Ms. Couch.
Report of Proceedings (Jan. 21, 1998) at 1117, 1137-40.
The other issues prospective jurors were questioned about during voir dire included their views on such subjects as potentially gruesome photographs, publicity in the local newspaper, accomplice liability and DNA evidence.
Report of Proceedings (Jan. 21, 1998) at 1129, 1142-43. A peremptory challenge is an objection for which no reason need be given and upon which the court will exclude the juror. See RCW 4.44.140.
See Report of Proceedings (Jan. 21, 1998) at 1112-13. (Trial court advised that each side had 16 peremptory challenges.) Appellant exercised 14 peremptory challenges. The State exercised eleven. Clerk’s Papers at 1023-24.
State v. Elmore, 139 Wn.2d 250, 277-78, 985 P.2d 289 (1999) (defendant must use all his peremptory challenges or he cannot show prejudice based on the selection and retention of a particular juror and is barred from any corresponding claim of error) (citing State v. Tharp, 42 Wn.2d 494, 500, 256 P.2d 482 (1953)), cert. denied, 121 S. Ct. 98 (2000); State v. Collins, 50 Wn.2d 740, 744, 314 P.2d 660 (1957) (prosecuting attorney’s voir dire of panel did not prejudice the defendant, where the defendant accepted the panel while not exercising four peremptory challenges); State v. Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105 (1995) (defendant’s constitutional right to a fair trial by an impartial jury was not violated where the defendant participated in voir dire and accepted the jury panel)).
In this case, no persons of Appellant’s or the victim’s race or ethnic origin were on the jury. See Report of Trial Ct. Judge (Mar. 10, 1998) at 10-11.
See State v. Green, 70 Wn.2d 955, 961-62, 425 P.2d 913 (1967); see Report of Trial Ct. Judge (Mar. 10,1998) at 10 (Trial judge indicated that under 10 percent of the population of Pierce County is the same ethnic origin as the defendant.).
See Death Penalty Opening Jury Instruction, Clerk’s Papers at 22-23.
Turner, 476 U.S. at 33-34.
Id. at 35 n.7.
Ristaino, 424 U.S. at 594.
Turner, 476 U.S. at 37.
ER 803(a)(2) is identical to the federal rule, Fed. R. Evid. 803(2).
See Br. of Appellant at 55.
See Br. of Appellant at 57. While Appellant does not suggest the Washington Constitution provides greater protection than the United States Constitution concerning this assignment of error, he does claim it was “prosecutorial misconduct” for' the prosecuting attorneys to offer the testimony of Mr. Burks, only to later “impeach the ‘excited utterance’ through the testimony of Asil Hubley.” See id. at 52-57; Appellant’s Reply Br. at 5-6. Appellant suggests the testimony of Mr. Burks and Mr. Hubley are impermissibly linked; Mr. Hubley’s testimony allegedly contradicts Codefendant Wilson’s statements to Mr. Burks; and suggests Mr. Wilson’s statements were fabricated.
State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995).
See State v. Palomo, 113 Wn.2d 789,798,783 P.2d 575 (1989) (quoting Dutton v. Evans, 400 U.S. 74, 88, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970)).
See Second Corrected Br. of Resp’t at 54-57; see also Clerk’s Papers at 350-52 (pretrial order admitting Defendant Wilson’s statements as excited utterances by Judge Sebring in open court on June 24, 1997).
See Second Corrected Br. of Resp’t at 61-75.
Lilly v. Virginia, 527 U.S. 116, 123-24, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999) (citing Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965) (Sixth Amendment applies to the states)).
State v. Strauss, 119 Wn.2d 401, 417, 832 P.2d 78 (1992).
127 Wn.2d 749, 903 P.2d 459 (1995).
Brown, 127 Wn.2d at 757-59.
Codefendant Wilson spoke to Mr. Hubley two days after his conversation with Mr. Burks. Clerk’s Papers at 670.
Report of Proceedings (Jan. 27, 1998) at 1532.
Report of Proceedings (Peb. 2, 1998) at 1870-71.
See ER 801(c); ER 802.
ER 801(d)(1) (Prior Statement by Witness) and (2) (Admission by Party-Opponent).
ER 802.
Ahearsay statement within the excited utterance exception may be admitted without showing the declarant is unavailable as a witness. See White v. Illinois, 502 U.S. 346, 356-57, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992); Palomo, 113 Wn.2d at 798.
Palomo, 113 Wn.2d at 796-98.
State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992).
Report of Proceedings (Jan. 27, 1998) at 1508-09.
Chapin, 118 Wn.2d at 688.
Id.
Id.
See id.; see also State v. Hardy, 133 Wn.2d 701, 714, 946 P.2d 1175 (1997).
Report of Proceedings (Jan. 27, 1998) at 1526.
Id. at 1507-08.
527 U.S. 116, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999).
See Br. of Appellant at 49-52.
Lilly, 527 U.S. at 123-24 (quoting Maryland v. Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990)).
Id. at 124 (citing California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970)).
Idaho v. Wright, 497 U.S. 805, 813, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990).
Craig, 497 U.S. at 849-50 (quoting Ohio v. Roberts, 448 U.S. 56, 63, 100 S. Ct. 2531, 65 L. Ed. 2d 597(1980)).
448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980).
Roberts, 448 U.S. at 66; see Lilly, 527 U.S. at 124-25.
White, 502 U.S. at 357.
Id. at 356 n.8.
See, e.g., White, 502 U.S. 346; United States v. Inadi, 475 U.S. 387, 395, 106 S. Ct. 1121, 1126, 89 L. Ed. 2d 390 (1986).
Lilly, 527 U.S. at 121-22.
Id. at 134; see Lee v. Illinois, 476 U.S. 530, 541, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986) (A codefendant’s confession obtained by police interrogation was “presumptively unreliable” because it did not bear a sufficient indicia of reliability, based upon a determination that “arrest statements of a codefendant have traditionally been viewed with special suspicion.” The Court explained, referring to its holding in Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965), that “when one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect and must be subjected to the scrutiny of cross-examination.”); see State v. Rice, 120 Wn.2d 549, 567, 844 P.2d 416 (1993) (A coconspirator’s hearsay statement which inculpates a coconspirator made during interrogation in police custody is unreliable for Confrontation Clause purposes.)
400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970).
Lilly, 527 U.S. at 132 n.2.
Id. (citation omitted) (emphasis added) (citing Dutton, 400 U.S. at 86-89) (The Supreme Court concluded where 20 witnesses, including an eyewitness to the murder, testified for the State, defense counsel had ample opportunity to cross-examine them, including the State’s witness who testified that defendant’s coconspirator stated, while both were incarcerated in prison, that if it had not been for defendant “we wouldn’t be in this now,” on the issue of whether the coconspirator had actually made the statement, was “spontaneous, and ... was against [coconspirator’s] penal interest to make it.” The Court found sufficient indicia of reliability that warranted admission of the coconspirator’s hearsay statement as testified to by the witness, and defendant’s rights under the Confrontation Clause were not violated. Dutton, 400 U.S. at 77-89).
Lilly, 527 U.S. at 126 (citing White, 502 U.S. at 355-56).
State v. Whelchel, 115 Wn.2d 708, 715, 801 P.2d 948 (1990) (trial court committed harmless error in admitting tape-recorded hearsay statement of nontestifying codefendants against the defendant at trial under the statements against penal interest hearsay exception).
Whelchel, 115 Wn.2d at 715. (Adequate indicia of reliability under Roberts is
Br. of Appellant at 78; Report of Proceedings (Jan. 27, 1998) at 1527.
Br. of Appellant at 78.
Second Corrected Br. of Resp’t 78-79.
State v. Powell, 126 Wn.2d 244, 256, 893 P.2d 615 (1995).
State v. Latham, 35 Wn. App. 862, 866-67, 670 P.2d 689 (1983), review denied, 100 Wn.2d 1035 (1984).
Under RAP 2.5(a), claims of error raised for the first time on appeal will be considered if the claimed error concerns (1) lack of trial court jurisdiction, (2) failure to establish facts upon which relief can be granted, and (3) manifest error affecting a constitutional right. An objection to the admissibility of evidence must be made to the trial court in order to preserve a claim of error on appeal. ER 103(a).
Br. of Appellant at 49.
Id. at 53.
Report of Proceedings (Feb. 2, 1998) at 1870-71.
id.
Report of Proceedings (Jan. 22,1998) at 1231-32; see Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).
Report of Proceedings (Jan. 26, 1998) at 1368.
Id. at 1370.
Id. at 1421.
Id.
Br. of Appellant at 74.
See id. at 75-76; Report of Proceedings (Jan. 22, 1998) at 1193-96.
See Br. of Appellant at 76-78.
Second Corrected Br. of Resp’t at 75-76.
State v. Finch, 137 Wn.2d 792, 812, 975 P.2d 967 (1999) (citing State v. Lord, 117 Wn.2d 829, 870, 822 P.2d 177 (1991)).
Elmore, 139 Wn.2d at 284-85 (citing State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
Id. (citing State v. Blight, 89 Wn.2d 38, 41, 569 P.2d 1129 (1977)).
Finch, 137 Wn.2d at 812 (citing Lord, 117 Wn.2d at 871).
Report of Proceedings (Jan. 22,1998) at 1190-91; Report of Proceedings (Jan. 23, 1998) at 1328-29.
Report of Proceedings (Jan. 22, 1998) at 1196-97.
According to Appellant, the statistics revealed there were “29,199 Hispanics and 8,826 Asians in Pierce County.” He argues such information was relevant to
Id. at 85. The Internet is a worldwide electronic communication and information network accessible principally through use of computers. Data may be printed in hard copy. ER 902(e) defines “official publications” as “[b]ooks, pamphlets, or other publications purporting to be issued by public authority” which are admissible as self-authenticating documents.
Second Corrected Br. of Resp’t at 81.
State v. Rivers, 129 Wn.2d 697, 709, 921 P.2d 495 (1996).
RCW 5.44.040.
Br. of Appellant at 60-61. Appellant also urges this Court to abandon the
Second Corrected Br. of Resp’t at 48.
State v. Brett, 126 Wn.2d 136, 157, 892 P.2d 29 (1995) (citing State v. Rupe, 108 Wn.2d at 748).
Elmore, 139 Wn.2d at 278-79.
Id. at 279 (citing Brett, 126 Wn.2d at 157); In re Personal Restraint Petition of Lord, 123 Wn.2d 296, 307-08, 868 P.2d 835 (1994) (citing Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 852, 83 L. Ed. 2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 2526, 65 L. Ed. 2d 581 (1980)).
Gentry, 125 Wn.2d at 634 (citing Wainwright, 469 U.S. at 425-26).
Id.
Lord, 123 Wn.2d at 309 (Some alterations in original).
Report of Proceedings (Jan. 7, 1998) at 127, 131.
Id. at 146-47.
Defense counsel asked juror number 6 the following questions and the responses were given:
Defense Counsel: Just like in the trial, the defense doesn’t have to put on*858 any mitigating factors. .. . Does the fact that. .. you may hear no evidence on Mr. Davis’ behalf,... leave you to think you probably would vote for the death penalty?
Juror number 6: If... the only evidence... presented to me was by the prosecutors, then if they offered and no rebuttal... I wouldn’t be left with any other choice.
Defense Counsel: And again, I don’t want to put words in your mouth, but if there were no mitigating factors present, then you feel like you would have to vote for the death penalty?
Juror number 6: Yes.
Defense Counsel: And please don’t let me put words in your mouth if I misstated that. You feel you would have to vote for it then?
Juror number 6: Yes, I would.
Id. at 146-53. Defense counsel objected to juror number 6 for cause. The Court said her questions were confusing and suggested she rephrase them. Defense counsel asked juror number 6: “Even if the defense puts on no evidence, you’re still going to make [the State] prove beyond a reasonable doubt that there isn’t any reason to impose life without parole?” He answered “That’s correct.”
Br. of Appellant at 60-63.
Second Corrected Br. of Resp’t at 49.
Gentry, 125 Wn.2d at 634 (citing State v. Mak, 105 Wn.2d 692, 707, 718 P.2d 407, cert. denied, 479 U.S. 995, 107 S. Ct. 599, 93 L. Ed. 2d 599 (1986); Wainwright v. Witt, 469 U.S. at 424; Adams v. Texas, 448 U.S. 38; Witherspoon v. Illinois, 391 U.S. 510).
Brett, 126 Wn.2d at 157.
Elmore, 139 Wn.2d at 278-79.
Report of Proceedings (Jan. 13, 1998) at 546-47 (The Prosecutor asked: “if you have a choice of life without parole, could you under any circumstances, given that other choice, vote for the death penalty?” Juror number 50 replied: “No, I don’t think I could vote for the death penalty if there was a chance that there would be life without parole.”).
Report of Proceedings (Jan. 12, 1998) at 487-88.
The Court: Let me make sure that I am understanding you. You have indicated that you would want to be 100 percent certain of the person’s guilt [before voting for the death penalty]?
Juror number 38: Right.
The Court: The law requires proof beyond a reasonable doubt. Not proof to a 100 percent certainty. Would you require proof to a 100 percent certainty before you would vote for death?
Juror number 38: Right.
Br. of Appellant at 79.
Id. at 81-83.
Second Corrected Br. of Resp’t at 83-87.
Id. at 88-89.
Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 84 A.L.R. 527 (1932); Wash. Const. art. I, § 22.
Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 1103, 67 L. Ed. 2d 220 (1981).
Cuyler v. Sullivan, 446 U.S. 335, 346-49, 100 S. Ct. 1708, 1717, 64 L. Ed. 2d 333 (1980) (In Sullivan, three codefendants were represented by the same two lawyers who were paid partially by funds raised by friends of the three defendants; no part of the balance of their fee was paid by Defendant Sullivan or his family. Defendant Sullivan’s trial preceded his codefendants’ individual trials. He was convicted while his codefendants were acquitted.).
Cuyler, 446 U.S. at 350.
See id. at 348-49 (emphasis added).
Id. at 346-47.
Id. The Supreme Court clarified that trial courts necessarily rely upon defense counsel’s professional and ethical duty to avoid conflicting representations that exist or will develop during the trial.
Prior to Mr. Johnson’s testimony, the parties discussed the admissibility of his criminal history. The parties agreed his misdemeanor convictions would not be admitted, with the exception of an obstruction conviction. Appellant Davis’ counsel wanted to review the police report regarding that conviction before agreeing to its inadmissibility. Report of Proceedings (Jan 28, 1998) at 1589-91.
id.
435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978).
100 Wn.2d 669, 675 P.2d 209 (1983).
Holloway, 435 U.S. at 484.
Id. at 477-80.
Id. at 479.
Cuyler, 446 U.S. at 346-47.
In re Richardson, 100 Wn.2d at 671-72.
Id.
Wood v. Georgia, 450 U.S. 261, 272, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981). (In Wood, three codefendants, while employed at the same adult theatre and bookstore, were convicted of distributing obscene materials. They were represented by the same lawyer who was retained and paid by their employer. At their probation revocation hearing, the Supreme Court observed “[t]he [trial] court must have known that it had imposed disproportionately large fines- — penalties that almost certainly were increased because of an assumption that the employer would pay the finest, and t]he court did know that petitioners” counsel had been provided by that employer and was pressing a constitutional attack rather than making the arguments for leniency that might well have resulted in substantial
Richardson, 100 Wn.2d at 677.
But see State v. White, 80 Wn. App. 406, 907 P.2d 310 (1995), review denied, 129 Wn.2d 1012, 917 P.2d 130 (1996).
Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (citing Cuyler, 446 U.S. at 348-50).
Br. of Appellant at 80.
See Strickland, 466 U.S. at 692 (Actual conflict requires defense counsel must have actually represented conflicting interests.).
Report of Proceedings (Feb. 3, 1998) at 1995-97.
Id. at 2004-05.
Jury Instruction Number 13 read:
If you find defendant Cecil Davis guilty of Premeditated Murder in the First Degree as defined in Instruction 9, you must then determine whether the following aggravating circumstance exists:
The murder was committed in the course of, in furtherance of, or in immediate flight from a Robbery in the First or Second Degree, a Rape in the First or Second Degree, or a Burglary in the First or Second Degree.
The State has the burden of proving the existence of an aggravating circumstance beyond a reasonable doubt. In order for you to find that there is an aggravating circumstance in this case, you must unanimously agree that the aggravating circumstance has been proved beyond a reasonable doubt. You need not be unanimous as to any one of the crimes listed within the aggravating circumstances.
Clerk’s Papers at 859.
State v. Jeffries, 110 Wn.2d 326, 752 P.2d 1338, cert. denied, 488 U.S. 948, 109 S. Ct. 379, 102 L. Ed. 2d 368 (1988).
Br. of Appellant at 85-86 and 90-91. Report of Proceedings (Feb 5, 1998) at 2189.
Id.
Second Corrected Br. of Resp’t at 91.
Appellant cites Crossen v. Skagit County, 100 Wn.2d 355, 360, 669 P.2d 1244 (1983), as authority for its position. In Crossen, this Court concluded jury instructions are sufficient if they “(1) permit each party to argue his theory of the case, (2) are not misleading, and (3) when read as a whole, properly inform the trier of fact of the applicable law.”
RAP 2.5(a)(3); State v. McDonald, 138 Wn.2d 680, 981 P.2d 443 (1999).
State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999).
State v. Deal, 128 Wn.2d 693, 698, 911 P.2d 996 (1996) (citing State v. Peterson, 73 Wn.2d 303, 306, 438 P.2d 183 (1968)).
Report of Proceedings (Feb. 5, 1998) at 2188-89.
State v. LeFaber, 128 Wn.2d 896, 913 P.2d 369 (1996).
110 Wn.2d 326. This Court rejected defendant’s argument that RCW 10.95.020(9) should be deconstructed into its disjunctive parts.
Id. at 339-40.
117 Wn.2d 829, 878, 822 P.2d 177 (1991).
Id. at 877.
Id. at 879-80.
Br. of Appellant at 93.
Id.
Brett, 126 Wn.2d at 162-66.
Clerk’s Papers at 863-67 (Jury Instruction numbers 17, 18, and 19).
Lord, 117 Wn.2d at 880-82.
Report of Proceedings (Jan. 27, 1998) at 1502-03.
Report of Proceedings (Jan. 22,1998) at 1261-62; Report of Proceedings (Jan. 27, 1998) at 1508-09.
Report of Proceedings (Jan. 23, 1998) at 1317; Report of Proceedings (Jan. 27, 1998) at 1449-50; Report of Proceedings (Feb. 3, 1998) at 1974.
Report of Proceedings (Feb. 4, 1998) at 2069-71.
Appellant attacks the State’s evidence of sexual assault, claiming only that the testimony of Mr. Burks was not credible. (Br. of Appellant at 94.)
Second Corrected Br. of Resp’t at 97-98.
Jury Instruction Number 20 read:
To convict defendant Cecil Davis of the alternative crime of Felony Murder in the First Degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 25th day of January, 1997, Yoshiko Couch was killed;
(2) That defendant Cecil Davis was committing or attempting to commit Robbery in the First or Second Degree, Rape in the First or Second Degree, or Burglary in the First or Second Degree;
*870 (3) That defendant Cecil Davis caused the death of Yoshiko Couch in the course of and in furtherance of such crime or in immediate flight from such crime;
(4) That Yoshiko Couch was not a participant in the crime; and
(5) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
The crimes listed in Elements Number (2) are alternatives. You must unanimously agree that defendant Cecil Davis was committing or attempting to commit one of those crimes, but you need not be unanimous as to any particular one of those crimes.
Clerk’s Papers at 868.
Clerk’s Paper at 878-79.
Even assuming the trial court’s instruction was erroneous, it is well settled that error without prejudice is not grounds for reversal. See Thomas v. French, 99 Wn.2d 95, 104, 659 P.2d 1097 (1983); see also State v. White, 74 Wn.2d 386, 392, 444 P.2d 661 (1968).
Appellant’s Reply Br. at 17.
Second Corrected Br. of Resp’t at 101.
Id. at 100 (citing Elmore, 139 Wn.2d 292, 985 P.2d at 314).
Report of Proceedings (Feb. 12, 1998) at 2506-22, 2540-47.
State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105 (1995) (quoting State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991)).
Id.; see State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
“We’re here to consider the death penalty, reserved only for the most heinous crime and the most awful criminals in our society. You consider the universe of criminal behavior and murder is a fairly small segment of it, first degree murder is smaller still, aggravated first degree murder is smaller yet, and among those aggravated murder cases the elected prosecutor has to decide which of those he would like to put before you, the question of the death penalty, assuming a conviction, and among that very small class of cases then of course the jury decides whether there are not sufficient grounds for leniency.” Report of Proceedings (Feb. 12, 1998) at 2506 (emphasis added).
“Thousands of years ago, when we had a less ordered society, it was the law of retribution ... carried out by individuals . ... [b]ut. .. a ... society.. . was developed where we give up that right of vengeance and retribution ... to the State and it is channeled into a criminal justice system. Now, that doesn’t mean that retribution, vengeance is gone, it’s still part of the human condition, punishment, it should be there and it remains there, but we rely upon our instructions to carry it out. Now, if our courts of law, our institutions of justice, are unwilling to impose the ultimate penalty where appropriate, it sows the seeds of anarchy, it invites the lynch law. It is important that our instructions not violate the social contract between us.” Id. at 2516-17 (emphasis added); see State v. Lord, 117 Wn.2d at 904.
See State v. Rice, 110 Wn.2d 577, 608-09, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910, 109 S. Ct. 3200, 105 L. Ed. 2d 707 (1989) (Prosecuting attorneys may ask the jury to view the crime from the victim’s perspective.) (quoting People v. Haskett, 30 Cal. 3d 841, 863-64, 640 P.2d 776, 790, 180 Cal. Rptr. 640 (1982)) (The court in Haskett also referred to the death penalty as “the ultimate sanction” and concluded “the prosecution’s invitation to the jurors to project themselves into the role of the surviving victim” was not inflammatory.).
“We submit that when a society is unwilling to overlook the abhorrent acts of someone like Mr. Davis, and recognize that the death penalty is the only appropriate response, that represents civilized society and we put the focus where it belongs, a failure to impose a death penalty in a case like this, in other words, it cheapens all of our lives.” Report of Proceedings (Feb. 12, 1998) at 2516-17. (Emphasis added.) See Rice, 110 Wn.2d at 608-09. The State may ask the jury to view the crime from the victim’s perspective if the prosecuting attorney’s argument is based upon facts surrounding the defendant’s criminal acts admitted into evidence during the guilt phase. See Brown, 132 Wn.2d at 565. A prosecuting attorney in a capital case has “wide latitude” in arguing the evidence supports imposition of the death penalty.
Report of Proceedings (Feb. 12, 1998) at 2518-19; see State v. Finch, 137 Wn.2d 792, 841-42, 975 P.2d 967 (1999) (citing United States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984)).
See Finch, 137 Wn.2d at 841-42 (citing Lester, 749 F.2d at 1301).
“There are certain murders where we must say no mercy is appropriate .... The defendant, he was merciless to Ms. Couch. You might consider showing him mercy in the same quality and degree and amount he showed her.” Report of Proceedings (Feb. 12, 1998) at 2515-16 (emphasis added).
See Finch, 137 Wn.2d at 842 (quoting Lester, 749 F.2d at 1301). (“ ‘[A]ppeals for the jury to act as a conscience of the community are not impermissible, unless specifically designed to inflame the jury.’ ”)
Report of Proceedings (Feb. 12 1998) at 2521.
Id. at 2508.
Id.; see Elmore, 139 Wn.2d at 292-93 (citing Brown, 132 Wn.2d at 561).
RCW 10.95.130(2)(a), (b), (c), and (d).
RCW 10.95.130(1).
See Appellant’s Br. at 38, 45-46.
Report of Proceedings (Feb. 12, 1998) at 2554.
Elmore, 139 Wn.2d at 305.
Report of Proceedings (Feb. 10,1998) at 2385; Report of Proceedings (Feb. 11, 1998) at 2440-46. Appellant’s mother, Ms. Cozetta Taylor, testified that his three children, ages 3,17 and 19, love him; see Report of Trial Ct. Judge (Mar. 10,1998) at 2.
Report of Proceedings (Feb. 11, 1998) at 2437-38.
Id. at 2439.
Id. at 2440-42.
See Id. at 2444-45.
Id. at 2429. The parties stipulated that Appellant had one major infraction during his period of incarceration in the Department of Corrections. Id. at 2447.
Report of Proceedings (Feb. 10, 1998) at 2390-93.
Id. at 2394-95.
Id. at 2396.
Id. at 2419.
Id. at 2398-2406. Appellant’s medical records revealed that, from a motor vehicle accident in 1982, he received multiple injuries to his body and his head which, according to Dr. Cripe, may have adversely affected his neurobehavioral functioning.
Report of Proceedings (Feb. 11, 1998) at 2465-68.
Id. at 2489, 2500-01.
Id. at 2470-72.
Id. at 2474-75.
See Elmore, 139 Wn.2d at 305.
Report of the Trial Ct. Judge (Mar. 10, 1998) at 13.
Report of Proceedings (Feb. 10, 1998) at 2373.
Id. at 2372.
Id. at 2373-75.
Id. at 2379-80.
Id. at 2378.
Id. at 2381.
Id. 2368-69, 2381.
Elmore, 139 Wn.2d at 305 (citing Brown, 132 Wn.2d at 553).
Brown, 132 Wn.2d at 554 (citing Lord, 117 Wn.2d at 907).
Elmore, 139 Wn.2d at 307-08 (citing Brown, 132 Wn.2d at 555); see also Gentry, 125 Wn.2d at 655.
Elmore, 139 Wn.2d at 308 (citing Brown, 132 Wn.2d at 555).
Compare Brown, 132 Wn.2d at 555 (citing Lord, 117 Wn.2d at 911) (suggesting a “family resemblances” approach) with State v. Benn, 120 Wn.2d 631, 680-93, 845 P.2d 289 (1993) (suggesting a statistically based approach).
Elmore, 139 Wn.2d at 308 (citing Brown, 132 Wn.2d at 555).
Id. citing Brown, 132 Wn.2d at 555-56.
Brown, 132 Wn.2d at 555, citing Lord, 117 Wn.2d at 910.
Elmore, 139 Wn.2d at 308 (quoting State v. Dodd, 120 Wn.2d 1, 26, 838 P.2d 86 (1992)); accord Lord, 117 Wn.2d at 910-11.
Report of Proceedings (Jan. 27, 1998) at 1502-05.
Report of Trial Ct. Judge, State v. Rupe, No. 81-1-00316-1 (Thurston County Super. Ct. June 7, 1983) (single gunshot wound to the head); Report of Trial Ct. Judge, State v. Benn, No. 88-1-01280-8 (Pierce County Super. Ct. June 12, 1990) (multiple gunshot wounds to the torso and head); Report of Trial Ct. Judge, State v. Hazen, No. 85-1-00322-5 (Clark County Super. Ct. Apr. 21, 1986) (multiple gunshot wounds with no prior struggle); Report of Trial Ct. Judge, State v. Harris, No. 84-1-01190-6 (Pierce County Super. Ct. Jan. 14, 1985) (multiple gunshot wounds; contract killing); Report of Trial Ct. Judge, State v. Jeffries, (Clallam County Super. Ct. Nov. 18, 1983) (multiple gunshot wounds); Report of Trial Ct. Judge, State v. Gentry, No. 88-1-00395-3 (Kitsap County Super. Ct. July 22, 1991) (victim chased, sexually assaulted and bludgeoned to death); Report of Trial Ct. Judge, State v. Lord, No. 86-1-00470-8 (Kitsap County Super. Ct. Aug. 18, 1987) (victim knocked unconscious, raped and beaten to death).
State v. Stenson, 132 Wn.2d 668, 759, 940 P.2d 1239 (1997) (citing Gentry, 125 Wn.2d at 657).
Clerk’s Papers at 883 (Special Verdict Aggravating Circumstances).
ROW 10.95.030(2).
Reports of Trial Judge, State v. Luvene, No. 97-1-00712-9 (Pierce County Super. Ct. July 10, 1987), Gentry, Benn, Harris (each finding death penalty not disproportionate based on a single aggravating factor); see also Reports of Trial Judge, Elmore, Jeffries, State v. Mak, No. 83-1-00504-0 (King County Super. Ct. Oct. 19,1983), Hazen (death penalty not disproportionate based on two aggravating factors).
Report of Trial Ct. Judge (Mar. 10, 1998) at 3, lists an additional conviction of assault in the fourth degree (DV) in 1989 which is not included in the Report of Proceedings on Feb. 10, 1998 at 2382-84.
The death penalty has been imposed in cases where the defendant had little or no criminal history. See Report of Trial Judge, State v. Rupe (no criminal history); Report of Trial Judge, State v. Mak (no criminal history); Report of Trial Judge, State v. Luvene (no violent history and nonviolent character); Report of
Brown, 132 Wn.2d at 559 (quoting State v. Pirtle, 127 Wn.2d 628, 688, 904 P.2d 245 (1995)).
Id. (citing Pirtle, 127 Wn.2d at 688).
See, e.g., State v. Lord, 117 Wn.2d 829, 906, 822 P.2d 177 (1991), cert. denied 506 U.S. 856 (1992) (jurors find despite drug and alcohol abuse and personality disorder defendant did not merit leniency); Brown, 132 Wn.2d at 553 (jurors find despite antisocial personality disorder defendant did not merit leniency, noting that the disorder explained, but did not excuse, his behavior); Rice, 110 Wn.2d at 592-96 (jurors find despite personality disorder and no evidence of organic disease or brain abnormalities defendant did not merit leniency); State v. Hazen, No. 85-1-00322-5 (Clark County Super. Ct. Apr. 21,1986) (jurors find despite organic brain disorder, child abuse and youth defendant did not merit leniency); Dodd, 120 Wn.2d at 11 (jurors find despite severe homosexual pedophilia defendant did not merit leniency); see also Brett (jurors find despite fetal alcohol syndrome and a difficult childhood defendant did not merit leniency); Pirtle, 127 Wn.2d 628 (jurors find despite diminished capacity, defendant did not merit leniency).
See Appellant’s Br. at 38, 45-46.
ROW 10.95.030(2)(a), (c).
Report of Proceedings (Feb. 11, 1998) at 2464; Clerk’s Papers at 924-25.
Dissenting Opinion
(dissenting) — I dissent for two reasons. First, as I read the record, the trial court erred in admitting the hearsay statement of George Anthony Wilson against Cecil Davis under the “excited utterance” exception to hearsay. Second, jury instruction 13, defining aggravators to first
I. HEARSAY
Davis claims the testimony of prosecution witness Keith Burks, in which Burks related statements made by codefendant George Wilson, are hearsay and should not have been admitted at trial under the “excited utterance” exception, ER 803(a)(2). In my view the majority errs both in its standard of review as well as its application of the law to the facts.
A. Standard of Review
The majority claims, “A determination by the trial court that a hearsay statement falls within the excited utterance exception under ER 803(a)(2) will not be disturbed on appeal absent an abuse of discretion.” Majority at 841 (citing State v. Strauss, 119 Wn.2d 401, 417, 832 P.2d 78 (1992)). Developments since Strauss have made it less clear whether the standard of review for excited utterances is de novo or abuse of discretion.
In State v. Brown, 127 Wn.2d 749, 758, 903 P.2d 459 (1995), we noted:
*889 While we are sympathetic to the Court of Appeals’ desire to defer to the trial court’s evaluation of the complaining witness’ credibility and hence ultimately of the tape’s reliability, this approach has no place in the excited utterance rule. The excited utterance exception is based on the idea that:
‘under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control.’ The utterance of a person in such a state is believed to be ‘a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock,’ rather than an expression based on reflection or self-interest.
Division Three has recently retreated from Sharp, stating “[t]he standard of review is again abuse of discretion. Unfortunately, application of this standard to the excited utterance exception has become a bit clouded by two recent decisions, one by the Supreme Court, State v. Brown, and one from this Division, State v. Sharp.” State v. Williamson, 100 Wn. App. 248, 255-56, 996 P.2d 1097 (2000) (footnotes omitted). However Division Three’s retreat from Sharp is inexplicable — strictly speaking the court did not persuasively explain its retreat — in light of the undeniable truth of its statement in Sharp that, “The trial court... is in no better position than we are to evaluate the circumstances surrounding [an excited] utterance.” Sharp, 80 Wn. App. at 461. That statement is more consistent with our approach to standard of review in Brown than the more deferential standard the majority gives to the trial court’s determination. I would review the record de novo. Moreover, I do not believe Burks’s relation of Wilson’s statement qualifies as an “excited utterance” under even a lesser standard.
B. The Purported Excited Utterance
At issue is the following testimony from prosecution witness Burks, who was told the following by codefendant Wilson approximately five or six minutes after Davis began to perpetrate the crime: “[Davis] went over there to rip the
The defense moved to exclude these statements as hearsay, but the trial court allowed them as excited utterance exceptions to hearsay. The three elements of the excited utterance exception are (1) a startling event or condition, (2) the declarant is under the stress of the startling event or condition, and (3) the declaration is related to the startling event or condition. ER 803(a)(2); Chapin, 118 Wn.2d at 686. Spontaneity is crucial to the determination. Williamson, 100 Wn. App. at 258. The passage of time between event and utterance is relevant but not dispositive. Strauss, 119 Wn.2d at 416-17. Other considerations include the declarant’s emotional state and whether the declarant had an opportunity to reflect on the event and fabricate a story. State v. Briscoeray, 95 Wn. App. 167, 173-74, 974 P.2d 912, review denied, 139 Wn.2d 1011, 994 P.2d 848 (1999). “[T]he ‘key determination is “whether the statement was made while the declarant was still under the influence of the event to the extent that [the] statement could not be the result of fabrication, intervening actions, or the exercise of choice or judgment.” ’ ” Brown, 127 Wn.2d at 759 (second alteration in original) (quoting Strauss, 119 Wn.2d at 416 (quoting Johnston v. Ohls, 76 Wn.2d 398, 406, 457 P.2d 194 (1969))).
In this case, five to six minutes passed between Wilson’s witness of Davis’s alleged attack on the victim and speaking to Burks about it. It apparently took Wilson five to six minutes to cross the street, as we know the house Burks
In fact later events further demonstrate Wilson’s self-serving story was unreliable. Two days after speaking to Burks, Wilson spoke with another prosecution witness, Davis’s 16-year-old nephew Asil Hubley. Wilson told Hubley three different versions of his involvement in the crime. First Wilson told Hubley he had been inside the upstairs bathroom of the Couch residence (where the victim’s body was found). After that Wilson changed his story to say he stayed on the couch in the Couch home and heard noises coming from the bedroom upstairs. Thereafter Wilson changed his story still again to say he did not go into the Couch home at all. Wilson’s latest admission is inconsistent with his putative excited utterance that Davis entered the home and began to assault the victim. Wilson thus fabricated at some point in the development of his story, which casts further doubt on the reliability of his original, self-serving, utterance. While “[t]he fact that a statement is self-serving does not make the statement inadmissible,” nevertheless “the self-serving nature of a statement may be an important factor in judging spontaneity in particular instances.” 5B Tegland, supra, § 803.6, at 423-24 (footnote omitted). Looking at the length of time between Wilson’s going from the victim’s home to Burks’ house, the fact his story is inconsistent with later statements, and the fact it was self-serving demonstrate the statements lacked the suddenness, spontaneity, and other indicia of reliability necessary to justify admission of hearsay as exceptions to the rule. The majority’s conclusory assertions to the contrary (“The opportunity for [Wilson] to reflect on the state
C. Constitutional Right to Confront Accusing Witness
Davis claims the trial court’s decision to admit Wilson’s hearsay statements violated his right under the Sixth Amendment to the United States Constitution to confront accusing witnesses. At the heart of the Sixth Amendment’s confrontation clause is the reliability of evidence against an accused at trial. Lilly v. Virginia, 527 U.S. 116, 123-24, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999) (“ ‘The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.’ ” (quoting Maryland v. Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990))). A hearsay statement must be reliable in order for its admission not to violate the confrontation clause. Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980).
Of course, hearsay statements are by definition unreliable, and hearsay statements from accomplices (we must recall Wilson was a codefendant of Davis) which implicate a criminal defendant are “inherently unreliable.” Lilly, 527 U.S. at 131. Nevertheless the Supreme Court has applied the “adequate ‘indicia of reliability’ ” requirement, stating that reliability can be inferred when a hearsay statement (1) “falls within a firmly rooted hearsay exception” or (2) contains “particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 66.
The majority claims, “The Supreme Court has stated that the excited utterance exception to the hearsay rule is a ‘firmly rooted hearsay exception’ that carries sufficient indicia of reliability to satisfy the reliability requirements
[T]he statement [at issue] was not made under circumstances of reliability comparable to those required, for example, for the admission of excited utterances or statements made for purposes of medical diagnosis or treatment. Given the presumption of inadmissibility accorded accusatory hearsay statements not admitted pursuant to a firmly rooted hearsay exception . . . we agree with the court below that the State has failed to show . . . incriminating statements . . . possessed sufficient “particularized guarantees of trustworthiness” under the Confrontation Clause to overcome that presumption.
(Citation omitted.) So assuming arguendo the “excited utterance” exception is firmly rooted, it apparently falls within the Roberts rule.
Notwithstanding, the reasoning necessary to achieve the majority’s conclusion is circular: “In this case, Codefendant Wilson’s statement to Mr. Burks is reliable because it falls within a ‘firmly rooted’ hearsay exception, the excited utterance exception under ER 803(a)(2), and does not offend Appellant’s rights under the confrontation clause.” Majority at 847. As noted above, the excited utterance exception to hearsay is based solely upon the presumption that statements made while the declarant is under the stress of a startling event (and thus unable to reflect, fabricate, etc.) are reliable. Strauss, 119 Wn.2d at 415-16. For confrontation clause purposes, a hearsay statement is presumed reliable if it falls under a firmly rooted exception. Yet it falls under the exception in the first place only if it is presumed reliable. This bizarre chain of reasoning makes no sense.
Even if it did make sense, my conclusion would be no different because I do not believe Wilson’s statement to Burks constituted an excited utterance. Therefore I agree
II. JURY INSTRUCTION 13
Jury instruction 13 is inconsistent with State v. Brett, 126 Wn.2d 136, 892 P.2d 29 (1995) and State v. Lord, 117 Wn.2d 829, 878, 822 P.2d 177 (1991) because it does not require unanimity as to a particular aggravating circumstance. It is particularly troubling in this capital context that the majority is willing to obviate numerous well-settled maxims of state and federal constitutional law in order to affirm a jury instruction which allows a nonunanimous conviction of our state’s most serious crime and sentence. I need not rehash, but will set forth for the record, my agreement with the searching criticism of nonunanimous aggravating circumstances instructions Justice Utter set forth in In re Personal Restraint of Jeffries, 110 Wn.2d 326, 349-55, 752 P.2d 1338 (1988) (Utter, J., dissenting). Developments in the case law since In re Personal Restraint of Jeffries confirm Justice Utter’s criticism.
In this case, jury instruction 13 reads:
If you find defendant Cecil Davis guilty of Premeditated Murder in the First Degree as defined in Instruction 9, you must then determine whether the following aggravating circumstance exists:
The murder was committed in the course of, in furtherance of, or in immediate flight from a Robbery in the First or Second Degree, a Rape in the First or Second Degree, or a Burglary in the First or Second Degree.
The State has the burden of proving the existence of an aggravating circumstance beyond a reasonable doubt. In order for you to find that there is an aggravating circumstance in this case, you must unanimously agree that the aggravating circumstance has been proved beyond a reasonable doubt. You need not be unanimous as to any one of the crimes listed within the aggravating circumstance.
Clerk’s Papers (CP) at 859.
In Lord, we found “incomplete” a jury instruction that allowed the jury to find rape or kidnapping was the underlying crime, and the jury was not required to unanimously agree as to which underlying crime — rape, or kidnapping, or both — was committed:
Each of the alternatives set out in both instruction 13 and Special Verdict Form A-l allowed the jury to find that either rape or kidnapping was the underlying crime. Because neither required the jury to unanimously agree as to which underlying crime — rape, or kidnapping, or both — was committed, the instruction was incomplete.
Lord, 117 Wn.2d at 878. The Lord instruction was “incomplete” in the sense it was similar to this instruction which lumped all aggravators together in the second paragraph, with the last sentence of the instruction excusing the jury from reaching a unanimous verdict on which aggravating factor, if any, applies.
Although the majority has apparently let the state draft this portion of its opinion,
Following the state’s lead, the majority claims Davis seeks the “means within a means” approach to jury instructions this court rejected in In re Personal Restraint of Jeffries, 110 Wn.2d at 339-40. However, here we deal with aggravating circumstances in a significantly different way than was instructed in Jeffries. Jeffries was convicted of aggravated first degree murder where the aggravating circumstances were commission of the murder in order to conceal the commission of the crime or the identity of the defendant and multiple victims in a common scheme or plan. In re Personal Restraint of Jeffries, 110 Wn.2d at 338-39; RCW 10.95.020(7), (8). We observed:
The trial court instructed the jury that each element of the crime of aggravated murder in the first degree must be proved beyond a reasonable doubt, and that if either of the aggravating circumstances was proved beyond a reasonable doubt, the*898 jury had a duty to return a verdict of guilty. In the same “to convict” instructions, the trial court also instructed the jury that the aggravating circumstances were alternatives, that only one need be proved, and that the jury must unanimously agree whether either had been proved.
Id. at 339. Furthermore the instruction separated out the two aggravating circumstances into two interrogatories rather than lumping them together. Id. The structure of the instructions in In re Personal Restraint of Jeffries was such that the jury “had to unanimously agree as to at least one of the alternative aggravating circumstances charged,” id., and do so by separate interrogatory. But the instructions here were significantly different.
Here the state alleged as aggravating factors that Davis committed the murder in the course of, in furtherance of, or in immediate flight from first or second degree robbery, first or second degree rape, or first or second degree burglary. CP at 859 (jury instruction 13); RCW 10.95.020(ll)(a)-(c). The instruction commingled three of the disparate aggravating crimes set forth in RCW 10.95.020(11) without requiring the jury to manifest unanimous agreement, by separate interrogatory, as to any aggravating crime Davis committed. Therefore less than a unanimous jury could have believed any particular aggravating crime existed — in fact less than even a bare majority of the jury — in order to unanimously find some aggravating crime had been committed.
Such an instruction offends well-settled constitutional principles. It is axiomatic that a criminal defendant can be convicted only on a unanimous verdict. State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994) (citing Wash. Const. art. I, § 21). An essential aspect of a unanimous jury trial is express juror unanimity on the means by which the defendant is found to have committed the crime. Ortega-Martinez, 124 Wn.2d at 707; accord State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980); State v. Whitney, 108 Wn.2d 506, 739 P.2d 1150 (1987); State v. Franco, 96 Wn.2d 816, 639 P.2d 1320 (1982). This instructional error demands
If alternative means of committing the crime are submitted to the jury, due process demands each alternative means charged must be supported by sufficient evidence. Franco, 96 Wn.2d at 823; Green, 94 Wn.2d at 232. The test for sufficient evidence is whether the evidence would justify a rational trier of fact to find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). This rule follows from the Winship doctrine that due process requires the government prove every element of a crime upon which a defendant is convicted beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).
Here, Davis raises serious doubt as to the sufficiency of the evidence supporting either the robbery or rape aggravator. With respect to the robbery, the jury was instructed that a person is guilty of robbery in the first degree if in the commission of a robbery or of immediate flight therefrom, he inflicts bodily injury, RCW 9A.56.200, and is guilty of robbery in the second degree when he commits robbery. RCW 9A.56.210; CP at 863 (jury instruction 17). With respect to rape, for our purposes, a person is guilty of first degree rape when he engages in sexual intercourse with another person by forcible compulsion and inflicts serious physical injury on the victim or feloniously enters the building where the victim is situated, RCW 9A.44.040(l)(c)-(d), and a person is guilty of rape in the second degree when, under circumstances not constituting rape in the first degree, he engages in sexual intercourse with another person by forcible compulsion. RCW 9A.44.050; CP at 865 (jury instruction 18).
A careful reading of the record in this case casts serious doubt on the sufficiency of the evidence supporting either the robbery or rape aggravators. First, the majority simply does not — because it cannot on this record — link the theft of certain items — cigarettes, food, beer, jewelry, etc., found on
Secondly, the most convincing evidence to implicate Davis as the rapist as opposed to his codefendant George Wilson is Wilson’s self-serving hearsay statements to Keith Burks admitted at trial over the objection of defense counsel, and discussed above. This is not a record where DNA (deoxyribonucleic acid) evidence links Davis to the rape. Rather it is a record of circumstantial evidence bolstered by a hearsay account which, in my view, should not have been admitted at trial.
Failing sufficient evidence to convict on the alternative means of committing aggravated first degree murder, we are left with the scenario of Green, in which a conviction must be reversed because:
In the instant case, the jury instructions and verdict form did not require the jury to unanimously find appellant committed or attempted to commit either first degree kidnapping or rape or both. As instructed, it was possible for the jury to have convicted Green with six jurors resting their belief of guilt upon kidnapping and the other six resting their belief upon rape. Thus, it is impossible to know whether the jury unanimously decided that the element of rape had been established beyond a reasonable doubt.
Green, 94 Wn.2d at 233. Likewise here we do not know whether the jury unanimously decided whether the rape,
Based on the jury instructions we reviewed in Brett and Lord, after In re Personal Restraint of Jeffries, we affirmed the necessity of unanimous jury verdicts as to each alternative aggravator, the lack of which renders, in Lord, the aggravating crimes instruction “incomplete.” This “incompleteness” is repugnant here because it leaves us in the constitutionally intolerable position of reviewing Davis’s death sentence on a conviction of aggravated first degree murder without having the slightest idea what aggravating circumstance, if any at all, the jury unanimously agreed existed.
I dissent.
Compare Majority at 867 (“Appellant’s argument merely reiterates the ‘means within a means’ argument rejected by this Court in In re Personal Restraint Petition of Jeffries . . . .”) with Second Corrected Br. of Resp’t at 92 (“Defendant’s argument merely reiterates the ‘means within a means’ argument rejected by this Court in Personal Restraint Petition of Jeffries.” (citation omitted)); Majority at 867 (“[T]his Court held that a jury instruction similar to jury instruction number 13 was incomplete because it and the special verdict form allowed the jury to find that either rape or kidnapping was the underlying crime.”) with Second Corrected Br. of Resp’t at 94 (“This Court held that the instruction was incomplete because the instruction (as well as the special verdict form) allowed the jury to find that either rape or kidnapping was the underlying crime.”); Majority at 868 (“There is no merit to Appellant’s argument there was not sufficient evidence to support the various crimes against him ....”) with