State v. Frampton

April 45570, 45634, 45811, 1981.] EnBanc. [Nos. 45922, 46328, 47285. Respondent, Washington, v. Morris Appellant. Frampton, John Respondent, Floyd Washington, v. The State Appellants. al, Marr, et William Respondent, Nedley Washington, v. The State Appellant. G. Jr., Norman, Respondent, Washington, v. Howard The State of Appellant. Eugene Foren, Respondent, Washington, Michael The State of Appellant. G. Robtoy, Timothy Appellant, Washington, The State Defendant, Scott Pauley, Carl Robert Respondent. Smith, Appellant, Washington, v. Robert The State of Respondent. DeAngelis, Teitge, Savage, Timothy Anthony Jr., Carl Ford, K. Middaugh, Yaroshefsky, Deutscher, David Ellen Robert Riley, Farra, L. for defendants. and John Stewart Norm Maleng, Prosecuting Attorney King County, for Canova, Gregory Moore, Hunt, P. Stephen E. J. Robin Yeatts, Senior Deputies, and Frederick L. Senior Trial Attorney; Herron, Don Prosecuting Attorney Pierce for County, Joseph Mladinov, D. Senior Ells- Deputy, Connolly, worth Deputy; Campiche, Prosecuting Jeff Attorney County, Jeremy Spe- Randolph, Pacific for Clem, cial C. Deputy; Danny Attorney Prosecuting for Kitsap County, Franz, and Ronald A. Deputy; Civil Chief M. Janhunen, and Curtis Prosecuting Attorney Grays for County, Harbor for State. J. —These cases pursuant are before the court

Dolliver, 10, 1980, to an order of October for briefs calling and oral argument penalty. on certain relative to the All issues death attempt cases involve an impose the State to death aggravated the crime of murder degree. 9A.32.040-.047; first RCW 10.94.010-.030. Norman, Nedley Jr., Foren, Robtoy, Howard Michael Marr, Floyd William and Morris Frampton are here on appeal from degree first murder convictions and sentences imposed sentencing after hearings pursuant held to RCW 10.94.020. Each their death sentences was imposed by 9A.32.040(1), the trial judge pursuant to RCW after the returned affirmative answers to each of the 10.94.020(8)-(10). sentencing posed by RCW questions Douglas on appeal Justice is here from his conviction imprisonment first and the murder sentence of life without him possibility parole or imposed release negative after his returned a answer the "mitigating circumstances" sentencing question posed by RCW 10.94- .020(8).

Scott Smith and Robert DeAngelis are here on interlocu- tory appeals by the of trial rulings State court penalty constitutionally not in light death could imposed Martin, of State v. 1, (1980), 94 Wn.2d 614 P.2d and Jackson, United States v. 570, 138, 390 U.S. 20 L. Ed. 2d case, Ct. In 88 S. court Smith's the trial ruled Martin, light penalty the death was unconstitutional impris- could still receive life but held that the defendant if was convicted possibility parole without he onment case, court dis- DeAngelis trial guilty plea. a not indicating without what of death penalty missed the notice convicted at if the was punishment was available trial. plea Robtoy, plead who and had

Except for declined court, at all have guilty of not entered all defendants charges. to these pleaded times not murder issued our review of the order Defendant Smith contests by the This was considered the trial court. matter Sep- Supreme an order dated Court Commissioner of the ruled the order tember Commissioner 23, 1980, we denied appealable. trial court to be On October modify ruling. His Smith's motion to the Commissioner's Pauley par- is not a properly before us. Defendant case in this ticipant proceeding. argument court for accepted

The five issues which the are: statutory imposing present

1. Whether scheme of penalty light the death is unconstitutional Martin, (1980); P.2d 164 so, may imposed

2. If seek and have the State still murder, aggravated cases first imprisonment possibility parole; life without impos- special sentencing proceeding for 3. Whether unconstitutionally from ing withdraws sentence; question appropriate prediction possible 4. for a to make Whether it is which is of a defendant dangerousness as to the future 10.94.020(10)(b); required by pun- and unusual by hanging 5. is cruel Whether death ishment. in this sequence. will be

The issues dealt (1) penalty is considering whether We are Eighth Amendment and violates the per se unconstitutional Const, (2) "the sentence whether art. § any of these or disproportion- excessive [in cases] penalty imposed cases, ate in considering similar 10.94.030(3)(b). both the crime and the defendant." RCW 10.94.020(1) RCW provides:

If of notice intention to request penalty the death has by been prosecution served and filed in accordance 10.94.010, with RCW ing special then a sentencing proceed- in shall be held the event defendant found of guilty murder the first degree under RCW 9A.32- (a). .030(1) 10.94.020(2) provides, part:

RCW the trial a jury returns verdict of murder the first [If] degree 9A.32.030(l)(a), then, under RCW at such time as returned, the verdict is shall judge trial reconvene the jury special same trial a sen- separate determine tencing proceeding whether there are one or more aggra- . . . . vating . and . . . . mitigating and to circumstances . . special answer . questions Martin, supra the court found was there "no statutory provision current that authorizes the impan- eling of special a to decide the death issue penalty a capital pleads when We guilty." held that since statutory there is no means penalty the death can a imposed be when defendant pleads guilty, the maximum penalty imposed which could plea guilty be a of to first degree imprisonment murder is life possibility a parole. however, argues, State now that within existing stat-

utes, there is a whereby method can be when imposed guilty plea degree there is a a case of first result, murder. To it urges reach this that we construe RCW in pari 10.49.010 materia with either RCW 10.94- .020(1) 10.94.020(2). or RCW 10.49.010, a unchanged

RCW statute enacted 1854 and then, provides: since

If, any arraignment person, on the he shall plead murder, if be guilty, charged the offense the court testimony, shall, the amount discretion, in their hear determine punishment if inflicted; but kind to be plead charge murder, to a a the defendant testimony, impaneled determine the be hear shall therefor. murder and the plea guilty, analysis following State, Under the impan- jury, 10.49.010, would as authorized (RCW sentencing proceeding" "special 10.94- under eled .020(1), procedures (2)), pursuant deliberate 10.94.020(3)-(10), special in RCW contained questions answer portion of the and determine under statute imprisonment whether sentence would be death or life the parole. without (1975 1977) to RCW

Prior the enactment of 9A.32 and (1977), Washington to and RCW 10.94 the statutes relative by jury degree trial and in the RCW murder first were guilty plea 9.48.030, A RCW RCW 10.01.060and 10.49.010. plea, and, in the it was allowed tory event of such a was manda- testimony, jury impaneled then and a "be to hear degree punishment and there- determine the murder the system, degree of for." RCW 10.49.010. Under this the punishment jury murder and the was determined the pleaded guilty guilty. whether a defendant or not See State Davis, P.2d 641 plead Martin, a could we held defendant guilty ruling, the under the current statutes. Given posed by pleads question the is: defendant State When a jury guilty aggravated degree to is a to be first murder impaneled to under RCW 10.49.010 determine therefor, murder and the and is same special sentencing proceeding to under then conduct a legislature RCW Did intend the old scheme 10.94.020? plea impaneling guilty to a in the event of a it did. continued do not believe under new statutes? We legislature RCW and If the had meant 10.49.010 10.94.020(1) (2) together when a to be RCW read pleaded guilty, to believe defendant it is unreasonable say to RCW RCW 10.94 are would have failed so. 9A.32 and drafted, carefully complex They and interrelated statutes. represent an attempt legislature provide to for the when imposition penalty the death certain conditions readily have met. It apparent been that RCW 9A.32 and they RCW 10.94 as to pertain are meant to as be read an in the integrated legisla- whole. Nowhere history tive or in language is there statute slightest suggestion the contrary.

RCW 10.94.010 up procedure whereby: sets charged

When the crime murder 9A.32.030(l)(a), the first degree as defined RCW prosecuting or attorney attorney's the prosecuting desig- nee shall file a written notice of intention request proceeding to pen- determine whether not the death alty should be imposed prosecution when has reason circumstances, to believe that aggravating one or more as set forth RCW 9A.32.045 now or hereafter amended, was present prosecution intends prove presence of such circumstance or circumstances sentencing a special under 10.94.020. proceeding RCW special sentencing by RCW 10.94- proceeding provided .020(1) (2) in great is described detail in RCW 10.94- .020(3)-(10). For say this court now to legislature, the case of a plea when the State requests expected penalty, or authorized 10.49- reference .010, an 1854 statute whose entire reference had been to previous statutes, places homicide too strain on great a statutory construction. of in addition the lack reference to RCW 10.49.010 statutes,

the penalty history shows a legislative by legislature failure proposed consider the scheme supra Martin, v. State by in State. As was outlined at (Horowitz, J., 19 in concurring), was language there House Bill 615, which original of contained version RCW 10.94, "if providing pleaded guilty degree, penalty murder in the first proceeding the death shall purpose be conducted impaneled before 615, 68, such cannot be waived.'" Bill House § (1977). 45th Legislature

477 of regular in session Bill introduced the 1977 House 615 "Comprehensive Sen- to be the was stated legislature, 615, 1. It Bill was referred of House tencing Act 1977". § committee, it in Judiciary. While on the House Committee lim- was Bill 615 which by House replaced was Substitute House passed and was penalty ited to the death 68, ante, in was elimi- language 1977. section May The Journal, House 45th House Bill 615. nated from Substitute at Legislature, 1178. it where Bill to the Senate

Substitute House 615 went The bill Judiciary Committee. referred to the Senate was out "Do Pass". reported amended in committee and was Journal, On floor Legislature, at 1517. Senate 45th Senate, substantially to its amended the bill was Journal, Legisla- form in RCW 10.94. 45th present Senate ture, language at 2204. The cited section 68 was Bill 615 passed the bill as the Senate. Substitute House adopted referred to the the Senate again was House Journal, 1765. The Legislature, amendments. House 45th at importance legislative activity correctly was stated by Justice Horowitz: be over significance rejection of this should not ascertaining legislative

looked intent. Consideration held legislative history long the to be a of an enactment has been legitimate determining legislature's method Seattle, Ropo, Inc. v. intent. Wn.2d 409 P.2d 148 159 Hamilton, (1965); State ex rel. Fair Wash. Hama Co. v. Hama P. majority Bd., Hearings Shorelines 85 Wn.2d P.2d 157 (1975), circum acknowledged appropriate the value Hama considering sequential stances drafts a bill. Bd., Hearings supra Hama Co. v. Shorelines 450. case, Unlike the enactment considered errors, inconsistencies, 10.94 is not "replete insight clear apparent oversights," and thus some from statute's gained examining can be legislative history. It is that members presumed prior aware of state of law and legislature were See time drafts of the bill at the RCW 10.94 was enacted. Fenter, State (1977); P.2d 67 Wn.2d ex Hamilton, rel. Fair v. supra 352; Sands, at 2A C. Sutherland's Statutes Statutory Construction § 48.04, (4th 1973). at 197 ed. It presumed therefore is legislature did not intend to special allow a sentenc- ing procedure for infliction of penalty the death on a first degree murder defendant who pleads guilty. There is no evidence which overcomes this presumption.

Martin, at 19. may While it be contended legislature eliminated section 68 because it was aware of the existence 10.49.010, of RCW there is nothing suggest to this was the case and if this was so it is reasonable to believe the. legis- lature would have said so.

Furthermore, times, as has been many observed death as a is different. When a defendant's life is at stake, the courts have particularly been sensitive to insure Gregg v. Georgia, 428 U.S. every safeguard is observed. 153, 187, (1976). 49 L. Ed. 2d 96 Ct. S. The con- nection between RCW 10.49.010 and RCW 10.94.020 is too tenuous to be used as a vehicle to condemn a defendant death in State v. execution. We reaffirm our position Martin, supra, there is neither a statutory "current provision that authorizes impaneling special jury decide penalty the death capital issue when a (Martin, 8) pleads guilty" "statutory nor a pro- means Martin, vided which the penalty death can imposed." at 9. RCW 10.49.010 fitted in with the of previous scheme homicide and Baker, statutes. See State v. penalty 474 P.2d 254 It applicable is not the present system.

The maximum penalty for a defendant pleads who guilty to first murder is life imprisonment without possibility parole. A pleads defendant who is subject trial penalty. receive the death Where, pursuant to statutory procedure, is imposed upon conviction following plea not guilty trial, and a but imposed is not when there is a plea guilty, that statute is unconstitutional. United States v. Jackson, L. 390 U.S. Ed. 2d 88 S. Ct. 1209 (1980) Martin, P.2d 164 (1968); State v. 614 J., for the (Horowitz, Washington concurring). The statutes needlessly defend penalty chill a of the death imposition a plead guilty to not and demand rights constitutional ant's v. Jack United States process. due jury trial violate son, the state supra. They not meet the standards of do constitutions. federal it policy a next contends that as matter State in capital cases. This require jury be allowed to a

should implementa but for its may salutary policy request be a a must be to the this court. We legislature, tion directed of the Court agree Supreme views United States Jackson, supra States v. United pages at 584-85: true no right It is insist that a defendant has constitutional jury, rather a judge

that he be tried than States, Singer v. United 24 L. 2d 380 U. S. Ed. [13 (1965)], Ct. criminal 85 S. defendant accepted 705, and it also true "that a guilty plea to have his right has absolute [no] Overholser, Lynch v. U. S. the court." (1962)]. L. 2d Ct. But Ed. 82 S. [8 occasionally jury pleas may fact that waivers and guilty rejected hardly implies be that all defendants be jury to submit to a full-dress trial as a matter required Quite impact from cruel of such a apart course. who greatly those would requirement prefer upon defendants not to it even the contest their is clear —as guilt, rejection automatic recognizes Government all of its —that pleas of much guilty process "would rob the criminal flexibility." has As one federal court observed: power accept plea guilty "The of a court necessary traditional and fundamental. for the Its existence is . . . . . . crimi- practical administration of the unambigu- Consequently, require nal law. should an withhold expression part Congress ous on the of the States authority specified this cases." [United Willis, (D.C. 1948).] 75 F. Supp.

Finally, since the Texas State asserts similar, the rea- Washington adopt are we should statutes construing of the courts in our statute. We soning Texas argument. similarity between the reject major Washington leg- Texas statutes and mentioned (see Journal, (1971), Legislature islative debate House 42d 1160) question prediction is the to the as to the IV, future dangerousness. See As to the Texas stat- infra. utes which guilty pleas, requirement concern of a capital trial identity sentencing case and the jury, we do not find the scheme the Texas statute to be complex, system to the interrelated of Wash- comparable ington. Martin, supra, holding

We reaffirm our that a pleads guilty defendant who cannot subjected the enhanced penalties for first murder under RCW 9A.32.040. We hold that the procedure imposing for defendant, any is unconstitutional either pleads a defendant who guilty by or one who is found Jackson, v. United States supra. jury. a

II Jackson, of United States The principle constitutional supra, is that if severity is punishment depen- dent upon e.g., way guilt plea a of determined — guilty a jury imposes impermissible trial —this an burden on the exercise of constitutional The rights. ques- tion whether, we must now consider although the death penalty may imposed, may not be the State still seek and imposed murder, have in aggravated cases of first degree punishment of imprisonment life without the possibil- ity of parole. We hold it not.

Before turning argument, to the constitutional we note in guilty plea event of a the same hiatus exists procedure 10.94 for for reconvening of purposes imposing a sentence of without possibility life of parole as there is for All imposing penalty. the death sentencing procedures, including life with possibil- ity parole, are predicated filing of a notice of request intention to with penalty the death accordance Thus, penalty RCW 10.94.010. if the death scheme is fil- be, for unconstitutional, procedure it to as we hold obvia- the death notice of intention seek ing without imprisonment question life ted and may not be considered. parole possibility striking the reasons for also constitutional There are parole. possibility without imprisonment sentence of life Jackson, supra, involved the United States Although not confined to its rationale is penalty, v. New Corbitt State, however, relying upon The penalty. (1978), Ct. Jersey, 439 U.S. L. Ed. 2d 99 S. Jackson has no application. contends Corbitt, it was held that Jackson did to the apply Jersey Jersey. Under the New punishment scheme New statutes, whether murder was juries designated homicide mandatory degree. or second first imprison- of first murder was life degree those convicted ment; maximum sentence degree second murder carried a to the court years. penalty. There was no death Trials pleas were permitted murder cases were not However, nolo contendere pleas forbidden. of non vult or If court had discretion accepted, were allowed. the trial murder sen- or the second impose life sentence murder was actually without whether the determining tence Court stated degree. Supreme of the first or second difference between Jackson and Corbitt: Court Jersey Supreme agree

We the New this case and there are substantial differences between Jackson, Jackson does not require a reversal and that difference is that principal Corbitt's conviction. The to forgo plead charge to trial and to pressures in Jackson. First, they case are not what penalty, were severity which in its and irrevocabil- "unique L. 2d ity," Gregg Georgia, Ed. 428 U. S. 187 [49 (1976), Although is not involved here. 96 S. Ct. 2909] Jersey court that with the New agree we need Jackson plea cases where a is limited to those rationale being penalty's any of the death possibility avoids imposed, law the maximum Jersey under the New it is a material fact that imprison- life for murder penalty Jackson, Furthermore, any risk ment, not death. could be avoided suffering the maximum Here, although punishment when a pleading guilty. murder is life guilty first-degree finds a defendant punishment is not com- imprisonment, the risk of non vult because the judge pletely by pleading avoided authority impose a life accepting plea has the Jersey punish- not reserve the maximum term. New does trial. for murder for those who insist on a ment Jersey, (Footnote omitted.) supra Corbitt New at 217. Jersey statute and its apparent As is from the New Court, by the it was effect a statute Supreme treatment in Cor- As was observed encouraged plea bargaining. Jersey, bitt v. New supra 223-24: pages it plea accepted Had Corbitt tendered a and had been years this would imposed, and a term of less than life fact there had been a simply plea recognized have constitutionally permis- sentencing and that it is into account. The States and the sible to take that fact guilty pleas abolish Federal Government are free to action, as the Constitu- plea bargaining; but absent such cases, tion in our it is not forbidden has been construed leniency guilty return for proper degree to extend a Jersey has done no more than that. pleas. New discern no of retaliation or vindictiveness We element suggestion There is no against going Corbitt for trial. charges. to unwarranted Nor does subjected that he was was for exer- being punished this record indicate that he Indeed, as this record a constitutional insofar cising right. reveals, may plea Corbitt have tendered a was no doubt those homicide defend- refused. There is non vult treated willing plead ants who are trial, but withhold- leniently go than those who more cannot be ing possibility leniency from the latter our equated long as impermissible undisturbed. sustaining plea bargaining cases Those remain said, cases, recognize unequivocally as we have leniency extending propriety the constitutional extending and of not exchange plea for a leniency to those who have not demonstrated those attri- leniency butes on which is based.

(Footnote omitted.)

483 In scheme, Jersey sys- our statutory contrast to the New judge impose tem allowed the either maximum or upon minimum for of non vult. plea sentence murder murder, Even though may degree the facts indicate second plea trial court a of non vult sentence a might any 10.94, life imprisonment. Under RCW risk of the more severe can penalty pleading be avoided guilty; penalty only the maximum is reserved for those who assert right jury plead guilty. their to a trial not

In other jurisdictions where this issue has arisen and involved, where penalty has not been the courts consistently legislation constitutionally have found the C., People defective. See v. 79, 620, 27 N.Y.2d N.E.2d 261 Veilleux v. Springer, 313 (1970); 33, N.Y.S.2d 695 131 Vt. Hass, State v. (1973); (N.D. 300 A.2d 620 268 N.W.2d 456 Nichols, State v. 1978); (Iowa In re N.W.2d 1976); 247 249 Lewallen, Cal. 3d P.2d Rptr. 23 590 152 Cal. 528 (1979). A which penalty statute exacts a demanding for a jury trial Bethea, Commonwealth v. unconstitutional. 474 (1977). Pa. A.2d 379 102 State not statute offer "an individual a reward for waiving a fundamental right, penalty constitutional or [impose] harsher People C., supra at asserting it". the Supreme 86. As Jackson, States v. Court out in supra United pointed page 583:

For the evil it federal statute is not that necessar- coerces ily pleas simply waivers but encourages needlessly it A procedure need not them. he inherently coercive it to impose order be held an impermissible upon burden the assertion a constitu- tional right. so, contends,

Even State without life sentence possibility sufficiently or parole is not different release from possibility parole life imprisonment with given parole grace the fact that matter of or is a favor legislature may such conditions as sees attach fit, George, the same. See re Fain, P.2d (1978); P.2d Wn.2d however, think legislature It did apparent, imprisonment with- penalties the two be the same. Life only for those is reserved possibility parole out release com- to have first murderers who the also finds of life with- The "aggravated" mitted an murder. sentence deferred, or possibility parole suspended, out of cannot be of Prison by any judicial officer. The Board commuted grant parole, period reduce Terms and Paroles cannot for behavior. good of or a defendant confinement release forbidden. or are Temporary furlough programs release 9A.32.040(2). penalties, of these The reservation exactly is absolute, guilty not plead which are to those who by constitution. kind of is forbidden burden which life of and we find legislature believed to be sub- imprisonment hope parole without or release parole. stantially possibility life with the different than United principle This enunciated difference violates Jackson, Ct. States v. 570, 20 L. Ed. 2d 88 S. 390 U.S. life may constitutionally seek We hold not parole without release or imprisonment possibility mur- first guilty aggravated those who are found severability clause fact RCW 10.94 contains a der. The 10.94.900) (RCW remaining, as portion if the irrelevant here, is still unconstitutional.

m in RCW sentencing procedures contend the Defendants constitutionally ques because defective 10.94.020 are sentencing proce tions must answer jury which the and to the special questions dure are the nature legal from to deliberate free jury's] power "infringe [the Ogull, F. United States Supp. fetters". (S.D.N.Y. 1957). by defendants difficulty as seen 165, 182 Spock, States v. 416 F.2d United spelled out (1st 1969). Cir. It is perhaps open, answering subtle, direct effect that special questions may upon jury's have ultimate con- way perhaps reach, clusion. There is no easier approach step by step. force, a verdict of than juror, wishing acquit, may formally A By require tant the be catechized. progression questions each of which seems to defendant, an answer unfavorable to the a reluc- may juror which, be led to vote for a conviction large, he would have resisted. The result accomplished by majority jury, but the course judge,

has been initiated and directed him through questions. the frame of the unanimously 10.94.020, Under RCW must be beyond (1) convinced a reasonable doubt that one or more statutory aggravating proven circumstances have been (RCW (2) 10.94.020(7)); statutory there are sufficient nonstatutory mitigating leniency circumstances to merit (RCW (3) 10.94.020(8)); presented the evidence trial guilt certainty establishes the of the defendant with clear (RCW (4) 10.94.020(10)(a)); probability there the defendant would commit additional criminal acts continuing violence that would constitute a threat soci- (RCW ety 10.94.020(10)(b)). only objection

Defendants not raise to these questions, they general also state there must be a verdict by jury rendered the to the It sentence. should be noted by jury that the cases cited the defendants involve verdicts guilt sentencing procedure. as to or innocence and not the may requirement capi Whatever cases, the these sentencing procedures tal case the contained the Wash ington acceptable statutes are to the United States Supreme penalty procedure, Court. The Texas death like Washington, requires jury special the to answer questions general sentencing. but has no verdict for upheld Texas Texas, 262, statute was v. Jurek 428 U.S. (1976). Gregg Georgia, 929, 49 L. Ed. 2d Ct. In 96 S. v. (1976), 428 U.S. 49 L. Ed. 2d 96 S. Ct. there special questions general jury. were and a verdict from the sentencing In discussing upheld. was Georgia statute Gregg court said: the procedure, in Furman expressed concerns summary, the 2d 92 S. Georgia, L. Ed. v. U.S. [Furman imposed not be of death (1972)] penalty that the Ct. 2726 be met manner can arbitrary capricious or in an sentencing the that ensures carefully drafted statute As guidance. and information authority given adequate is by a best met concerns are proposition these general at which proceeding for a bifurcated system provides information authority apprised sentencing the provided and of sentence imposition relevant to the information. its use guide standards Georgia, Gregg supra at 195. Ohio, 586, 604, L. Ed. 2d

In Lockett 438 U.S. that: (1978), Court concluded Supreme Ct. 2954 98 S. case, sentencer capital kind of the rarest all but [the [I]n mitigating aas considering from may] precluded not be or record character of a defendant's factor, any aspect offense that circumstances any of the and less than basis for a sentence as a proffers death. 9A.32.045(2), omitted.)

(Footnotes to RCW Pursuant any miti considering not from sentencing precluded jury cir mitigating there are deciding "In whether factor: gating leniency, sufficient merit cumstances to, limited factors, but not including, any relevant consider procedures Washington Consequently, following:". Gregg violate the do not requirements both meet of Lockett. strictures enunciated requirements meet the as the statutes long

So Court so that Supreme States by the United arbitrarily capriciously imposed is not information authority given adequate sentencing sentencing is general verdict guidelines, a statutory scheme We hold that under required. general in state a verdict penalty this the death imposing constitutionally is not to the sentence by jury required, infringe questions upon and that asked do not jury. prerogatives of the

IV 10.94.020(10)(b) RCW reads: you jury] beyond [the

Are convinced a reasonable probability doubt there is a would commit additional criminal acts of violence that continuing society? would constitute a to threat question vague claim Defendants is so and the issue presents imponderable provide it it to so fails fairly rational for limited basis the decision whether or impose penalty. disagree contrary not and, to We position question defendants, to the find that this has been the United considered answered States Supreme supra. Texas, in Court Jurek v. Supreme pro Jurek,

In Court reviewed a vision of the Texas death statute which is identical 10.94.020(10)(b). question discussing in to the provision opinion statute, court, of the Texas an signed by three Justices said: Focusing statutory question second that Texas requires impose considering to answer whether to petitioner argues sentence, a death that it is impossible predict ques- future behavior and that vague meaningless.

tion is, course, is so as to be It easy predict future such behavior. The fact that difficult, however, determination is does not mean that it prediction Indeed, cannot be made. of future criminal many conduct is an essential element of the decisions throughout system. justice rendered our criminal bail, decision whether to admit a defendant judge's prediction instance, turn must often on a any sentencing future And defendant's conduct. author- ity predict person's probable must a convicted future engages process determining conduct what prison, when impose. For those sentenced to predictions parole these same must made perform authorities. The task answering Texas must that a statutory question basically issue is thus performed no from different the task countless times system of criminal day the American throughout each it jury is that have before justice. What is essential the individual possible information about all relevant law fate it must determine. Texas defendant whose will be adduced. that all such evidence clearly assures 274-76, Texas, v. omitted.) 262, Jurek (Footnotes 428 U.S. (1976). L. Ed. 2d 96 S. Ct. 2950 judgment. Chief Justice Burger Justice concurred White, by Rehnquist, the Chief Justice and Justice joined us reviewed specifically before was question concurred. Discussing concurring opinion Justice White. of vagueness, issue the concurrence stated: upon questions claims that the additional Petitioner which the death sentence essence the but that the issues commonsense core depends vague are so sentencing power; jury possesses standardless agree with Justices Stewart, Powell, Stevens a sentencing proceeding in the have posed meaning juries and that criminal them. capable understanding should be Jurek, essence, upheld In Supreme at 278-79. Court (1) predicting on future events because language Texas has common core mean prediction future behavior (2) of future prediction ing juries can understand having sufficient information depends behavior it have statute the would before and under Texas about the individual possible relevant information "all Jurek, 276. whose fate must determine." clearly to meet Washington statute is sufficient 10.94.020(7), (8), (10)(a), RCW (b); 9A.32- standard. Jurek can be .045(2). rationale and results of Certainly the See, Jurek e.g., Due Process Death: Black, argued. Cases, Companion Texas and U.L. Rev. 1 26 Cath. believe, however, validity of We the constitutional 10.94.020(10) (b) which is to RCW Texas statute identical Supreme Court majority of has been considered constitutionality come upheld. This same issue has and its Collins Appeals. Court of Criminal before the Texas denied, State, cert. (Tex. 1976), App. Crim. S.W.2d 368 (1977). Ct. 51 L. Ed. 2d S. 430 U.S. probability" in Collins, the Texas court held the words "a unconstitutionally vague of the statute are the context or overbroad. urge process clause of the next that the due

Defendants person Washington Constitution, "No article section liberty, property, deprived life, without due shall be process higher law", four- standard than the set Constitution and teenth amendment the United States long control. We that federal cases con- should have held struing process con- the various due clauses federal they given great weight should but that are not stitution Const, necessarily controlling 1, § of our construction art. (1979); Young Konz, v. Wn.2d 588 P.2d 3. 91 1360 Schwager, P. Herr 145 Wash. 258 1039 prediction believe, however, dan- We future gerousness admittedly vague difficult is nor while neither so imponderable Although as to be unconstitutional. the case concerned an attack on the commitment law for criminal insanity predictive language

and the was "a substantial repeating proba- likelihood of bility" similar acts" rather than "a committed, would certain criminal acts we believe analysis holding by Morris, the court in Alter v. 85 (1975), Wn.2d grounds, P.2d on other 630 overruled Harris, 430, 436, In re P.2d (1980), applicable While, we in Alter at here. observed page danger- 420, "the social and scientific determinants of especially per- dangerousness, ousness, future from are far fect", nonetheless we found the standard not to be unconstitutional: safety strong [T]he State's interest of its citizens is leeway enough legislature to allow the some formulat- ing essentially theory predictive what standards. The Eire underlying is two- of mentsd commitment both statutes preventive detention,

fold: ute authorizes commitment and detention ground stat- and treatment. Neither on the sole person's protection treatment; of a need for deprivation primary justification for the citizens is the Emindividual's liberty under these statutes. Protection statutes, pre- our prediction; under prevention requires prior dangerous part the fact diction based process doubt. Full due proved beyond acts reasonable proof. predic- The fact that safeguards surround that attempt. not discredit foolproof tion cannot be does knowledge of our about point development At this in the not an behavior, dangerousness standard is human one. unreasonable Morris, supra

Alter v. at 420-21. 10.94.020(10)(b) meets the standards We hold RCW federal the state both the constitutions.

V (RCW by hanging contend that execution Defendants 10.70.090) United eighth to the violates the amendment Const, 14. emphasize art. We Constitution and States § constitutionality before us is not the again issue only particular whether a penalty per se but con- violates the executing method stitution. number of the consti upholding

The State cases cites These cases tutionality of as a of execution. hanging means years old, long apply more exception without are than 50 determining cruel unusual discarded standards (State Burris, N.W. 38 Iowa (State v. (1922)), any fail to standards simply discuss (1927)). Butchek, 141, Oregon 121 P. 1951 253 367 The Ore. constitutionality case cited does not even discuss Leland, v. 598, P.2d Ore. 227 by 190 hanging. death (1951). authority cites no modern 785 The State by hanging holds execution be constitutional. States, v. 349, 378, L. Ed.

In Weems United 217 U.S. 54 (1910), 793, Court Supreme S. Ct. 544 observed 30 "is not fas- concept punishment of cruel and unusual obsolete, public as may acquire meaning but tened to Even by justice." a humane enlightened becomes opinion applied rigors Eighth Amendment were before the California, v. 660, L. Ed. in Robinson U.S. 8 370 the states (1962), recognized that 758, 1417 court 2d 82 S. Ct.

491 humanity Anglo-American of modern traditional [t]he unnecessary the exe- pain infliction of law forbids the against Prohibition cution of the death sentence. from the into our law has come pain wanton infliction Bill in our appear words of 1688. The identical Rights prohibit would Amendment. The Fourteenth Eighth state a cruel clause execution process its due manner. Resweber, 459, 463, 91

Louisiana ex rel. Francis v. 329 U.S. 422, dissenting Jus- L. Ed. S. Ct. 374 The four 67 agreed: tices by unnecessarily cruel means shocks

Taking human life It of civilized man. the most fundamental instincts procedure not be under the constitutional possible should of a . . . self-governing people. the exe-

. . . all-important consideration is that substantially pain- cution shall be so instantaneous reduced, as nearly less that shall be to no more than that death possible, itself. (Italics ours.) Resweber, at 473-74. Gamble, v. Estelle recently, Supreme

More Court 97, 251, (1976), 102-03, L. Ct. 429 U.S. 50 Ed. 2d 97 S. 285 stated:

It concern of the draft- primary suffices note that " " other barbar proscribe ers was to torture [s]" [ous]" Nor Cruel and [Granucci, punishment. methods Original Meaning, Unusual Punishment Inflicted: (1969)], Accordingly, Cal. L. Rev. at 842. 57 Court first by comparing applied Eighth Amendment concededly inhuman challenged methods of execution to Utah, See Wilkerson U. techniques punishment. (1879) ("[I]t L. to affirm S. Ed. is safe [25 345] . . . punishments of torture and all others by that unnecessary cruelty, line of are forbidden same Kemmler, re ."); . U. amendment. S. [34 (1890) ("Punishments L. Ed. 10 Ct. are S. 933] lingering or a they cruel when involve torture ."). . . cases, however, have held

Our more recent barbarous physically more than proscribes Amendment Georgia e.g., Gregg See, U.S. punishments. [428 492 859,

L. Ed. 2d (1976)], supra, Ct. (joint 96 S. 2909 at 171 Dulles, Trop opinion); 86, v. 356 U. S. 100-101 L. Ed. [2 630, 590, Weems v. United (1958); 2d Ct. 78 S. 597-98] States, 349, 793, 544, 217 U. S. 373 L. Ed. Ct. 30 S. [54 (1910). The Amendment embodies "broad and ide- 551] concepts dignity, standards, alistic of humanity, civilized Jackson v. Bishop, 404 F.2d .," decency 571, . . (CA8 1968), against which we penal must evaluate mea- Thus, sures. we repugnant Eighth have held to the Amendment punishments which are with incompatible "the evolving decency standards of that mark the Dulles, of a maturing society," Trop supra, progress v. at Gregg Georgia, 101; supra, see also v. at 172-173 (joint States, Weems v. supra, United opinion); 378, at which "involve unnecessary and wanton infliction of v. pain," Gregg Georgia, supra, (joint opinion); at 173 see Resweber, also Louisiana ex rel. Francis 459, 329 U. S. Wilkerson 422, 374, L. (1947); 463 v. Ed. 67 S. Ct. [91 376] Utah, supra, at 136. (Footnote omitted.)

Although prior hanging nearly to 1900 was the universal execution, form of present the English time world, speaking parts only jurisdictions provide four by Delaware, execution hanging: Washington, Montana Indigni and South Africa. See Gardner, Executions An Eighth ties: Amendment Assessment Methods Punishment, Inflicting Capital Ohio L.J. St. Death Row U.S.A. (1978); Fund, Legal NAACP Defense (June 30, 1980); Furman v. Georgia, 408 U.S. L. Ed. (1972) (Brennan, J., 2d 92 S. Ct. 2726 concurring). by hardly These hanging facts alone indicate execution can compatible evolving decency "the standards Dulles, Trop society." mark the progress maturing 86, 101, 2 L. 356 U.S. Ed. 2d Ct. 78 S.

A presented amount of been substantial information has of proof, defendants their offers authorized court in there is some its order December 1979. While dispute experts between the of the State and defendants as hang- properly performed of a pain and suddenness per- testimony experts is far more defendants'

ing, factual of State. The State's that suasive than by of execution physiological on the effects presentation by patholo- in two is contained two brief affidavits hanging Both P. E. Drs. and Gale Wilson. gists, Charles Larson in of spinal hanging conclude that results severance unconsciousness, Dr. Wilson although cord and immediate of matter "immediately to mean "a unconscious" qualifies have physicians Although seconds." both perhaps ten in many experience years' impressive credentials and. showing either pathology, no claim or that forensic there is any judicial hanging. has in research on expert participated in or any monographs Nor does cite medical treatises either an Dr. testified as support of his conclusion. Larson has in Wash- "several hundred times" courts expert witness elsewhere, tes- say does not that he ever ington and but he happens to the condemned expert tified as an what by three death occurs. He witnessed person hanging before 1945; duty his was as medical officer judicial hangings not told We are pronounce person the executed dead. any of those whether unconsciousness was instantaneous Dr. wit- cases. There is no that Wilson has ever allegation by an hanging. nessed execution contrast, by is By presented the evidence defendants detailed, lengthy, by persuasive scientific supported persuades us medical Our of this evidence research. review by does majority cases great hanging that of death slow, Rosse, Dr. lingering Cornelius chairman involve death. University of Anatomy Department of at Medicine, medical reviewed the Washington School has common subject, and concludes that literature on disruption of the is due to belief that death instantaneous very but small fraction spinal cord is incorrect all instantaneous, its cause actual cases. Where death suffocation, that can process strangulation probably minutes. take severed Phillip Neurology Swanson,

Dr. D. Professor and head University department Washington, of that also subject. researched the medical literature on the Dr. Swan- spinal son has testified even if cord severed instantaneously, necessarily this does not cause uncon- person may although lapse sciousness, into uncon- oxygen. Again, due sciousness to lack would death strangulation. Moreover, caused suffocation or cases complete spinal cord, of less than severance of the considerably longer. could take Harry Patton,

Dr. D. Professor Chairman of the Department Physiology Biophysics University at the Washington agrees Medicine, School of with his col- leagues question judicial that there is a considerable hanging spinal cord, severs the and adds nature of judicial hanging the characteristic fracture caused might actually provide protection spinal some cord the by decompression. remarkably Studies similar lesions in encountered automobile accident victims who suffered high-velocity spinal forcible dorsiflexion of the head on the (so-called fracture") "hangman's column have shown that subjects suggesting survived, all of the that such lesions do spinal produce not sever the and cord indeed seem to sur- prisingly damage. explains: little neural Dr. Patton logical It seems true conclude that the cause of judicial hanging strangulation death in due to either [compression

tracheal occlusion or cerebral ischemia carrying the of the brain] arteries blood to to occlusion the due supply both. blood —or again emphasizes Dr. Patton that even clean severance of spinal per cord not "does se cause loss of conscious- experiments ness," and describes where the head of isolated spinal a cat is in maintained a conscious condition after the (He parenthetically cord has been severed. mentions experiments by such common are consent banned as inhu- country reputable journals mane in this and that scientific studies.) accept papers reporting will not such eyewitness have numerous Defendants also submitted Duffy, hangings. Clinton onetime warden of actual accounts hangings. participated Prison, Here is Quentin at 60 hanging San portion description which he of the first of his officiated: put over man's head with the noose

The executioner gave OK, nod, I ... and a knot under left ear. men in little room saw his hand these he raised that man hit bottom and I observed that he and trap. they springs sprung cut which fighting was trying wheezing, whistling, get pulling straps, on the oozing cap. through I black air, and that blood was droppings urinated, defecated, observed also he floor, fell witnesses ness room. Some of them the stench was also saw terrible. pass out to be from the wit- and have carried up. threw a doctor After had placed ripped man, stool front of the he his shirt open, put stethoscope heart, over and between his eight pronounced later, and thirteen minutes the doctor the man dead no heartbeat. cap removed, When was down and the man taken his black "big Duffy he of flesh were torn testified noticed that hunks eyes been, "his off" of his had the side face where noose hanging popped," tongue from were his was "swollen and purple. his and he mouth" had turned hanging judicial have victims Instances instantaneously, lingering and at died but have suffered history. Washington violent deaths numerous times Newspaper are during Washington accounts of executions century soon reveal that one case came as minutes, but death took 20 minutes cases several (As admissibility reports, see ER more. to the these County 803(16); 901(b)(8); v. Commercial Union ER Dallas 1961). (5th Co., Cir. Assurance 286 F.2d 388 Sociology Schrag, the Uni- Dr. at Clarence Professor versity Washington of Corrections former Director and Washington Department Institutions, for the hanging Walla: described a at Walla through trap trap sprung. door He fell [T]he was my standing sight going feet, I was out of since door some platform. disappeared my view; He from but when hit he the end of the he rope bounced so that his head up shoulders came back above the floor of plat- form, which was surprise to me. He bounced several times. again, contrary He then to what was shown

films, engaged gyrations. Though his ankles and wrists motion, were bound together, there was a great deal continued, torso perhaps twisting, recall, motion Ias minutes; five and then began decline fre- quency and amount.

After ten minutes so saw no further motion. Schrag waited for what min- might have been a total of 20 utes, but when he felt for the victim's pulse, he was startled by the fact that severely, tendons were contracted irregular there was an but strong pulse. be,

Grim as these accounts the results can be only described as horrifying hanging when the is not prop- erly performed. May 1910 edition of the Seattle Times described an execution in which it took the victim over minutes die because of alleged bungling by the executioner. strangled The unfortunate man to death as he pleaded pitifully with him the attendants to take up and spring So drop again. conscious was throughout he his agony that he was able unbuckle the straps that bound drop his arms and straps ground.

A perhaps more shocking repulsive miscalculation occurred in the execution of Grant Rio in 1951. Albert Rembolt, a former employee Penitentiary at the State Walla, that, Walla witnessed the execution. He recalls rope long, because the was left too Rio cut had his neck badly and was partially decapitated trap when the door was opened. Nineteen Rio pronounced minutes later was dead.

The evidence is overwhelming that the executions per- formed Washington century not been has instantaneous. These horror stories not unique. are Other states which hanging earlier used had the same experience. Teeters, Hang (1967); See By N. The Neck 173-81 defend- proof, Furthermore, ants' offer of 11. item it is conceded an art and execution is properly performed that a the State uncontested that involved. It considerable skill is that Peni- Washington the State no hangers there are trained in any aware of the prison nor the authorities tentiary, are United States. judicial hanging, evidence demonstrates

The medical hanger, involves the performed by competent even when torture, slow unnecessary pain, lingering infliction of and no assurance give can therefore death. in in future will involve performed this state the hangings the cir- lingering painful deaths. Under anything but and cumstances, by inescapable hang- find it that execution we cruel, and barbarous act which is that kind of wanton ing decency and cannot be held offends civilized standards Const, Eighth under the Amendment and constitutional art. 14. § (1) then, present statutory

In hold: summary we unconstitutional; imposing penalty scheme for death the (2) statutes, under not and have these the State seek in cases of first murder imposed aggravated punishment imprisonment possibility of life without (3) sentencing imposing parole; special proceeding unconstitutionally withdraw does sentence; (4) question appropriate from the 10.94.020(10) (b), requires to make a dangerousness to the future the defendant prediction as (5) constitutional; by hanging and violates Const, Amendment art. 14. Eighth § C.J., I, III, and IV. concurs as to issues Brachtenbach, in concur (concurring specially) J. Williams, —I Furthermore, by Dolliver. majority opinion Justice issue, in Justice expressed I with the reasons agree first opinion part, dissenting part. concurring Utter's addition, my I concern over register feel compelled concurring and dis- expressed the views several whether death senting opinions regard the issue hanging constitutes cruel and punishment unusual under eighth amendment to the United States Constitution Const, art. 14. opinion concurring Justice Stafford's § part dissenting part appears legis- to defer to the lative judgment hanging is a constitutional form of capital impli- crimes. am troubled legislature, courts, cation that rather than the is the body proper only to of punish- determine the nature ment, constitutionality but also to evaluate the of that punishment.

As Justice majority opinion plain, Dolliver's makes the Supreme United States Court has held numerous cases that courts have the of responsibility evaluating punish- See, e.g., ments to Eighth claimed violate the Amendment. v. Georgia, Coker 982, L. 2d 433 U.S. 53 Ed. 97 S. Ct. (1977); 491-92, majority opinion, 2861 at and cases cited addition, In therein. recently several federal courts have emphasized the of importance judiciary assessing In claims of constitutional challenging violations. an action conditions, prison example, explained: court has one rights Whatever . . . prison gates, one lose at the protections eighth the full tainly cer- amendment most point whole the amend- remain force. of ment is to protect persons convicted crimes. Eighth protections by prior amendment are not forfeited one's Mechanical to the findings state acts. deference in the context prison eighth amendment officials would reduce that context to a provision nullity precisely necessary.

where it is most duty The ultimate the federal court to order that conditions of con- state necessary finement be altered where to eliminate cruel punishments and unusual is well established. Procunier,

(Citations mine.) v. Spain omitted. Italics 600 v. (9th 1979). See also Williams F.2d 193-94 Cir. Edwards, (5th v. Newman 1977); 547 F.2d Cir. Alabama, (5th 1974). 503 F.2d Cir. involving a case a claim that the life sentence imposed statute, 9.92.090,

under the habitual criminal cruel, unconstitutionally recently this court has stated: to decision legislative do must and defer [W]e Lee, State on recidivists. impose an enhanced (1976). Yet, legislative Wn.2d 558 P.2d 236 by constitu- authority ultimately circumscribed duty to punishment. cruel Our forbidding mandate tional imposed penalty legislatively determine whether constitutionally assume is not one we excessive from responsibility. do our eagerly, but we not shrink Fain, 387, 402, P.2d 720 Wn.2d dissenting opinions of Justices concurring duty it is the disagree and Dore do not that Rosellini constitutionality particular courts determine Rather, opinions those conclude punishment. form subject dispute, where the evidence is circumstances body testimony and legislature is the to take proper Rosellini, J., dissenting part, data. weigh conflicting Dore, J., 512; dissenting concurring, at 527-28. emphasized urgency importance It must the parties, of these this court to invite prompted cases order, issue of death submit a factual record court hanging. presume contemplated order Moreover, would is not a novel assess evidence. independently this a fac- for court to evaluate undertaking claim cruel deciding resting record in case on a of tual a Const, 1, under the Amendment and art. punishment Eight v. in very thing A majority 14. of this court did that § (1980) Smith, 329, 333-35, 339-44, P.2d 93 610 869 Wn.2d pos- (holding possible 5-year a sentence felonious that of not constitute cruel and unusual marijuana session does punishment). historically to been plain

It is thus me that courts have evolving to responsibility with the enunciate "the charged maturing the of decency mark a progress standards of that 630, Dulles, 101, v. 86, 2 L. 2d Trop society." U.S. Ed. 356 Gamble, Estelle (1958). 429 especially 78 S. Ct. See 251, n.8, L. Ed. Ct. 285 & 2d S. U.S. 102-04 duty (1976). Indeed, important perform our to this failure meaningless prohibition the constitutional would render Procunier, supra. Spain against punishment. cruel Moreover, we undertaken cases and in prior have these if necessary cases make a factual determination to decide Smith, State v. of supra. a claim cruel In punishment. light the evidence of consequences hanging presented issue, I by the record on voluminous this am persuaded execution within hanging clearly falls the prohibi- against tion cruel embodied the Eighth Const, Amendment and art. 14. § Rosellini, with (dissenting part) agree J. cannot —I majority's interpretation of the which regulate statutes imposition penalty, nor the conclusion that those statutes are unconstitutional. 10.94.010,

Under RCW prosecutor authorized seek wherever first degree murder charged if he has reason believe there are aggravating elects, If circumstances. he so a special sentencing proceed- shall ing be held if found first 10.94.020(1). degree judge murder. RCW shall recon- which vene the same tried case to determine presence aggravating circumstances, mitigating among the matters to be is the strength considered 10.94.020(2). guilt evidence of the trial. It should apparent intended first legislature that all murder be tried to But jury. majority cases way court has found intent from the expunge statute. problem is here because of this court's interpretation Martin, in State v. aggravated murder statute (1980).

Wn.2d If 614 P.2d 164 of that interpre- error recognized, tation is statutes are invalid under Jackson, United States v. L. 390 U.S. Ed. 2d fact, 88 S. Ct. 1209 precisely our statutes are the Supreme approved what Court of in that case. Jackson held that an act of Congress permitted escape by to the death penalty pleading guilty chilled the right jury of an accused to demand a trial and was therefore unconstitutional. in Jackson was based on the fact

However, holding no a provision requiring law there was under federal cases, authorizing the court capital trial in all or jury penalty. jury a to decide impanel the statute this give The Government would have us indi- slightest without strangely meaning bifurcated any such Not contemplated scheme. Congress cation that history much as hints a word in the so legislative a by court conviction a a plea guilty conviction a separate a be followed sitting jury might without a If power penalty jury. proceeding before sentencing elsewhere recognized had been impanel jury such a system the Federal Congress when enacted the federal Act, on the perhaps Congress' total silence Kidnaping incorporation as a tacit subject could be viewed background But the sentencing practice into the new law. any Congress was barren legislated against procedure for we are sentencing the sort precedent told Congress impliedly authorized.

Jackson, 578. degree to fix the jury

Our for trial provide statutes and the penalty. murder Jackson the State of Supreme approved Court

Washington's statutory penalty. for the death scheme in which a limiting cases goal recommends it entirely one. But that legitimate an

jury can without those defendants goal penalizing be achieved trial. some plead and demand who States, imprison- between life example, for the choice every capital punishment ment and is left has been guilt of how the defendant's regardless case — determined.23 g., 9.48.030, 10.01.060, 23See, e. Wash. Rev. Code §§ (Supp. Cf. Cal. Penal Code 190.1 10.49.010 1966). § Jackson, at 582. RCW still in effect. and 10.49.010 are 10.01.060 in pertinent part: provided

9.48.030 be punishable shall Murder the first life, unless penitentiary in the state imprisonment jury death; shall find that the in shall be and every for in shall, trial murder the degree, jury first the if it find the guilty, also find a special verdict as to whether the death penalty inflicted; shall be and if alty special affirmative, such verdict is in pen- the the death, otherwise, shall be it pro- shall be herein vided. of 1919,

Laws ch. 274. p. § replaced by RCW 9.48.030 been has and 9A.32 10.94, provide which for process jury detail deter- mination. Supreme difficulty United States Court had no

construing RCW 10.01.060 to require and 10.49.010 trial all capital to cases and harmonize with the first degree murder statute. harmony That with respect exists to the present statutory scheme. Martin, to State v.

The majority today to decides adhere supra, where it held statutory provision that there is no imposition penalty, or a life sentence without possibility parole, upon pleads guilty one who to charge stand, of first Taking murder. this it reaches inescapable conclusion that RCW 9A.32 10.94 are reaching unconstitutional. the course of this result, the court ignored has principles fundamental construction, statutory and has undercut the legislature's prerogative in deciding what crimes there shall be and how they punished. shall be legislature, accepting will of people

expressed measure, in an initiative has decreed that there murder, aggravated shall be a crime of pun- and that finality ishment shall death. Mindful of the awesome that punishment, legislature has taken to pains provide a procedure designed to only assure that the most outra- offenses, geous committed persons, least redeemable Nevertheless, shall penalty. invoke the majority, while unconstitutional, not finding penalty con- itself has strued the act to an I have effect which am certain was intended, never so has rendered invalid. dissent my forth set for the reasons both disagree here, for the additional

Martin, repeat I will not which follow. which reasons legisla- to a attest which three statutes are at least

There By capital cases. trial all require purpose tive hand, managed court has sleight judicial some consti- and federal Both the state all of them. emasculate would One jury. trial right guarantee tutions uphold statutes diligent courts to be expect the surmise escape It is difficult right. implement dis- authorized than for the it is more distaste to fol- laws, majority which leads with the satisfaction most would assume course here. low a different distaste, if all even with that sympathize people sensitive Still, consideration appropriate it. it is not an do not share of a statute. meaning for the to the court its search guide federal of a state or the legislative It is for the branch determine, or federal constitu within state government to limits, constitute a kind of conduct which shall tional may which nature and extent crime and the Criminal Law Wharton's Torcía, 1 therefor. C. imposed be Criminal Wharton's (14th Anderson, 1978); 1 R. 10 ed. § Hor v. (4th 1957); Law and Procedure 16 ed. § McInturf (1975). ton, 704, ambigu While an P.2d 499 85 Wn.2d 538 in favor of strictly construed criminal should be ous statute Court, (State District County v. Whatcom 92 the accused court, (1979)), 35, objective P.2d Wn.2d 593 546 the intent is to ascertain legislation, all studying as other limits, it effect. 3 and, give if it is within constitutional Statutory Construction 59.06 Statutes Sands, C. § Law 12 Criminal Wharton's (4th Torcia, 1974); 1 C. § ed. (1974). 2d Statutes 295-96 (14th 1978); Am. 73 Jur. ed. §§ interpretation, than one to more open Where a statute is would render while the other will render it invalid and one prevail. should constitutional, construction the latter it (1980); State, 257, P.2d 683 v. 623 Woodson 95 Wn.2d (1971). Finally, Dixon, P.2d 931 479 State 78 Wn.2d together. be read should pari materia statutes are St. v. Rhay, Peter (1960). 56 Wn.2d 352 P.2d They should be harmonized possible wherever and effect should County Snohomish PUD 1 v. Broadview given to both. Co., Television State v. 91 Wn.2d P.2d (1978); Wright, 84 Wn.2d 529 P.2d 453 Martin,

In and in majority opinion here, we find scant attention paid to controlling these principles. The holding Martin rested upon majority arbitrary an inter- pretation 4.2(a), of CrR procedural a rule.1 The relation- 4.2(a) ship between CrR and statutes which affect the trial proceedings capital cases was never explored. The rule scarcely itself can be viewed having right created a plead guilty. essentially It is a restatement of the statutes (RCW superseded 10.40.150, .160) which it it insofar as deals with guilty pleas. statutes, rule, Those like the did not purport to create rights substantive but rather designated the kind of pleas acceptable and the form of entry.2 their 1Having right plead guilty announced that the court has created a in all cases, through rules, procedural criminal majority the office of its in State v. Martin, (1980), 94 Wn.2d 614 P.2d 164 went on to hold that "a criminal right plead guilty unhampered prosecuting attorney's defendant has the Martin, opinions holding or desires.” at 5. It based its on the fact that no statute requires prosecutorial approval may plead guilty. rule before a defendant While true, that, by pleading guilty, this is capital does not follow contrary. case avoid a trial. This court held has to the Davis, 696, 704, (1940), defendant, P.2d charged murder, pleaded guilty upon plea, first had and stood although interposed plea guilty by his counsel on his behalf a of not reason of insanity. (now This court cited Rem. Rev. Stat. § [Pierce's Code § 9169] 10.49.010) RCW and said: bar, necessary had, notwithstanding In the case at it was that a trial be plea appellant's guilty, degree might in order that the of murder be deter- by jury. Appellant confession, pleaded guilty, mined a had made a and had but by neither, proving the state was bound nor in limited the method of its case. (Citations omitted.) interpretation by rejected legislature That of the statute has never been the by Thus, prosecutor nor disturbed this court. not matters whether the can hamper plea guilty "opinions a significant with his or desires." What is is that statutory right present he has a concerning to a his evidence imposed. the crime and the to be pleas plea "There are but three to the indictment or information. A of— "(1) Guilty; 1891, ch. been in the Code of These had enacted statutes 57, 58. §§ statutes, these like supplanted or which The rule rules themselves, in conjunction be the statutes must read 10.01.060 as modifying include RCW other statutes. These 9A.32, 10.94, RCW by Laws of ch. amended § and 10.49.010. majority the same

It is to find the here at astonishing (where Martin procedural rule had been time a approving statutes) modify declaring held death penalty in RCW 9A.32 and statutory that scheme embodied in pari complete 10.94 and autonomous statutes is so if RCW no force effect. submit materia can be of whole express 10.94 9A.32 and are indeed intended they cover, then this court's which upon subject law which are rules no than are the statutes operative are more materia, every capital be trial pari and there must case, plea entered. The statutes regardless of To trial. provision give make no for a conviction without a their must be trial requirements, effect to all there every prosecutor requests case where the statutory If then the proceeding. requirement, this is the death pen- which invalidated the objection constitutional Jackson, States v. 570, 20 United alty 390 U.S. provision (1968), present not here. L. Ed. 2d Ct. 1209 88 S. "(2) guilty; Not "(3) charged, acquittal judgment offense of conviction or A former plea guilty.” may pleaded of not RCW 10.40.150. be with or without following may substantially plea in the form: be entered on the record “The "(1) guilty plea guilty: pleads the offense that he is A The defendant (or may be); charged case in the indictment information ”(2) pleads guilty guilty: plea that he of not A defendant (or be); may charged the case in the indictment information as offense "(3) pleads acquittal: that he plea The defendant A of former conviction be) (or may formerly acquitted of the offense as the case has been convicted be), (or judgment of charged as the case in the indictment information 19_ (naming (naming it), of_A.D. the_day rendered the court of time).” RCW 10.40.160. 10.40.170, providing: See also open only put court.” plea himself "The can 506 Martin, if,

But as the court in beyond held it must look intent, RCW legislative log- 9A.32 and 10.94 to find the the place ical dealing to turn is to statutes with other the same subject. treated in Martini

How First, were these statutes majority disposed RCW 10.01.060. section provides: That

No person informed or indicted against for a crime thereof, shall by be convicted unless admitting truth of by in by court, in charge plea, his confession open jury, the verdict of a accepted by and recorded however, Provided court: cases, in except capital That person against where the informed or indicted for a crime counsel, represented by is person may, such with court, by assent of jury waive trial and submit to trial by the court. opinion proviso

The declares that has been inter- preted denying to an accused a case the capital option waiving a trial jury to a trial submitting by court. interpretation submit has much been v. Baker, than that. The court cited broader 78 (1970). Wn.2d 474 P.2d 254 issue there was right whether the accused had a constitutional to submit by contention, a trial court. rejecting we said: question 9.48.030, There is no but that RCW RCW 10.01.060, require and RCW 10.49.010 trial when person a charged with degree. murder the first Baker, at 334. Webb,

Brandon v. (1945), P.2d 23 Wn.2d Martin, remaining case cited the majority con- no tains mention RCW 10.01.060 its interpretation was not at there. issue Martin refused to find majority any the act legislative

intimation intent capital that all cases should be to a This jury. exactly opposite tried to the court took in State v. Boggs, view n.1, P.2d language There it said unquestionable revealed an intent to require trial. The court construing was the section pari materia 9.48.030; penalty provision. another act —the death only occupied one provision 1. That Laws of ch. § to the stat- striking contrast penal law —in section of the it. But there nevertheless replaced which have utes right denies a in Neither similarity language. expressly vital require and but both refer to the "trial" plead guilty; determination. in the jury" participate "the statutes, Thus, and new the neces- under both the old yet And expressed. than sity implied trial is rather jury a essentially Martin Boggs in and construed this court ways. in exactly language opposite same 10.01.060, any in RCW all doubt ambiguity If there That reading 10.49.010. should removed a of RCW be provides: section

If, any person, plead he shall arraignment on the murder, the court charged if the be not guilty, offense shall, discretion, testimony, and determine their hear inflicted; if punishment amount and kind of to be but the the murder, jury plead charge a a testimony, to hear and determine the impaneled shall and the therefor. degree murder clearly degree first requires This section a trial all jury so cases, degree murder to determine the of crime as well as holdings upon the punishment, that the court's former this would Faced with seem- subject appear unassailable. pursuit of course ingly impregnable obstacle to the its it disposed speak- Martin reasoning, majority tense, everyone though in the ing past of the statute here long expired. majority knew it had assumes since sub silentio. legislature repealed has it that the not a 10.49.010 is Contrary to supposition, repealed legislature expressly statute. The has defunct it is it, implied repeal, an if RCW 10.94 has worked easily harmonized The court rules can be only partial a one. conflict, I submit necessary a it; with and were there statute in the embodied of substantive law enough there is It embod- rule. any predominate conflicting over make impo- respect to public expression policy an ies within a matter penalty, sition of Smith, See legislative exclusively. domain Wn.2d 527 P.2d 674 attacks. State v.

The statute has withstood constitutional Baker, supra; Music, State v. 79 Wn.2d P.2d (1971) (vacated part remanded, grounds other (1972)). 408 U.S. L. Ed. 2d S. 92 Ct. 2877 Horner, In re (1943), P.2d 151 that, statute, court held under this an accused cannot waive jury, and superior court is without power judg- to enter ment and sentence unless and until jury determines degree of crime.

If these two statutes conjunction are read with RCW 10.94, materia, with which they pari readily are it will be in every seen that prosecution first murder there is case", indeed a "tried the and this legislature which the to try declared should be reconvened question of punishment, under RCW 10.94.020. The majority recites from episodes legislative history the 10.94, of RCW from which it legislature infers did that the to intend a special sentencing procedure authorize where there is a of plea guilty. theory If the of the majority correct, is legislature consciously the deliberately and enacted designed a statute to be I unconstitutional. As Martin, pointed in my out to dissent the that the fact act as passed contained no reference to a is guilty plea consis- tent with legislative a intent that there should be no avoid- ance of entry history trial the a plea guilty. is equivocal, at best. The court well advised to look to the language of the and principles statutes the of construction intent, to find legislative the rather than to try extract it from spotty ambiguous the and course proposed enact- ments.

In another exercise in ingenious the reasoning, majority, while making assumption proper legislature the that the was aware of affecting the existence of other statutes the cases, trial capital that it expressly concludes would have adopted those it statutes if had I apply. intended them sup- statutory construction of no rule am aware repeal by implication intends legislature that the poses enact- time of an at the statutes effect harmonious all presumption the contrary, and rule is to the ment. The these repealed have legislature would should be that to the statutes, inapplicable expressly made them if its intent. legislation, that had been present is not 10.49.010 be that RCW suggested Now it 10.94.020, because, under entirely compatible with RCW while former, punishment, jury determines only upon which sen- finds the facts under the latter more difference to law. This pursuant is entered tence substance, assuming the two cannot of form than of but harmonized, only superseded earlier has been statute inconsistency. Airway Heights that extent there an Schroeder, (1959); P.2d 1 J. Suther- (3d Statutory Statutes and Construction land, ed. § 1943). statute, remaining portion requiring murder, together trial to taken jury determine statutes, complete workable with the other constitute scheme, statutory which is mani- accord the intent namely, fest RCW 10.94 when read as a whole — cases, jury capital intent there be a in all should pun- find which control should the facts ishment. court's rules that scheme? submit disrupt

Do this they do not. 9.48.030, 10.01.060, were RCW and RCW 10.49.010 (designating CrR 4.2 when April

all effect 6.1(a) cases) CrR permissible pleas criminal writing) trials must be (providing that waivers State Judicial Washington adopted. were Neither proposed Force which these Council Criminal Rules Task they super- suggested nor this court ever that rules itself statutes, imposition of regulating the any seded of these all fact, 6.1(b)(1), authorizing In penalty. CrR noncapital accept of less than jury defendants cases to a statutes, adopted was to obvious reference all these requiring trial in jury capital cases.

We have generally principle proceed- adhered to the that ings which are created be governed by statute are to that Womack, statute. State v. 82 Wn.2d 510 P.2d 1133 Parsons, re Adoption (1973); 457 P.2d Passmore, Passmore v. (1969); Wn.2d 359 P.2d mean, not course, This does the court's play part rules no such a proceeding. It if does mean that they scheme, conflict with statutory they must give way, statutory purpose may frustrated, else the be is the case But it not necessary here. to question reach the conflict.

I submit that this court's in no rules are wise inconsistent statutory with a requirement jury there be all capital cases.

CrR 4.2 lays general down a rule that a criminal defend- ant plead guilty, not guilty by insanity, reason of or guilty. This is a range delineation of the of permissible pleas. It purport legislature's does not power limit the crimes, jury mandate a trial for it certain where deems such trial to be in public the interest of the defendant. 6.1(a), literally,

CrR if read appear would to authorize jury cases, waiver in regardless all of legislative expressions so, If upon subject. it cannot be reconciled with CrR 6.1(b)(1). examined, But if the background of that rule is it will seen was to protect intended the constitu- tional right (save jury to a trial all criminal cases those involving offenses), petty and not to confer an affirmative trials, right to legislative avoid such regardless provision. The Task Force which adoption recommended rule made this comment:

This present section has no Washing- direct source ton law. It general right establishes to a trial. Such right exists and continues unless exist waives it writing. The rule is written so as guard against by failing the silent waiver of trial to demand a jury as civil cases. This section reflects [in]

511 be Criminal cases should feeling Task Force's the to rule, in order a by jury general tried a overt must make an the defendant procedure, avoid that size. jury, to waive the or lessen its action Force, Washington Proposed Rules Criminal Rules Task 6.1(a), Procedure, to rule Criminal Comment § (1971). the under- again Task Force's

This comment reveals all —that the which be to standing of that should obvious and not application to be one of general rule is meant otherwise. specific provide control where laws law, rules the procedural court's have effect Since this they should by the being expressly legislature, authorized object construed. The should as other laws are be construed statutes, so legis- them with relevant be to harmonize achieved, them as purposes lative rather than use substantive laws. implements nullifying otherwise valid general special laws general rule is that where concurrent, special subject matter applies are law Fur- contemplated by general it to of the law. the exclusion thermore, subsequent of a statute which enactment minute phase of the a more general subject treats same way repeals tanto consequently pro provisions v. Airway Heights with which it conflicts. general statute Schroeder, Walls, Accord, Wn.2d supra. State P.2d 9A.32, rule, Under of these of the RCW phases both 10.01.060, 10.49.010, 10.94, being RCW and RCW statutes, necessity of a special question control rules, trial, which prevailing gen- are jury over court's eral nature. construed,

Thus, court, reasonably when the rules of the legislative offer no achievement obstacle capital intent. That intent —to trial all require to a right constitutional implements defendant's cases — other harmony trial and is with and facilitated given to their pari If effect is statutes are materia. If that intent, are constitutional. manifest statutes substituted, they is ignored intent and a different intent cannot stand. relevant con- principles statutory struction direct the court to a construction the statutes would overrule which render them constitutional. Martin, (1980), 614 P.2d and hold that a person may not, charged capital pleading offense guilty, avoid a jury trial.

I agree with majority its conclusion that submitting questions of to proce- the the sentencing dure, pursuant 10.94.020, to RCW does not unconstitution- " ally infringe upon jury's from power to 'deliberate free legal fetters'". to designed The statute was and does fact conform to by the standards set the United Supreme States in Gregg Georgia, v. 153, 859, Court 428 U.S. 49 L. Ed. 2d (1976). Ct. 96 S.

I agree majority's also with the of disposition the conten- tion regarding predictability future conduct. The sufficiency of support jury's the evidence to can findings be examined court question wherever the arises individual cases. It would be to con- inappropriate make a clusive abstract time. judgment upon matter at this Upon question whether is a hanging constitutional execution, means I do not find before the court sufficient undisputed to evidence warrant conclusion pro- this cedure is excessively Any cruel. death inflicting means cruelty. embodies But there is medical evidence record that almost hanging invariably produces immediate death least loss of excep- consciousness. There are tions, case, but appears this to be the whatever the means It legislature, chosen. is for prescriber as the crime, for to what determine method shall be used, in showing the absence unneces- definitive sary cruelty is involved. There is no showing such here.

Dore, J., Rosellini, concurs with J. Stafford, J. (concurring part, dissenting part) —I compelled am agree majority under statute, reads, it is unconstitutional now Jackson, 570, 20 L. 2d Ed. United States 390 U.S. Martin, (1968). State v. Ct. 1209 88 S. the reasons stated (1980), is correct both

P.2d points because, persuasively Utter as Justice therein and out, prohibits of our state constitution article section 37 to amend RCW 10.49.010 legislature attempting from was amendment by RCW 10.94.020. That such an dissent Rosellini's from Justice attempted implicit be read the two statutes should suggested wherein is a constitutional together one scheme. Such to make pre- sought It impossibility. precisely the situation vented the framers our constitution. issue, I Dimmick. with Justice agree

As to the second with or without imprisonment between life The differences sufficiently to be an possibility parole great Eire plead impermissible of a defendant encouragement Thus, within guilty. situation falls the framework Jersey, Corbitt New L. 2d 99 S. Ed. 439 U.S. impediment prosecutors Ct. no also see to file procedure of RCW 10.94 using special sentencing without life imprisonment a notice of intention to seek legis- of possibility parole, given of the clear manifestation (severability) and in both RCW 10.94.900 lative intent without imprisonment be life (penalty RCW 9A.32.047 shall if is held possibility parole of release or death unconstitutional). issues, I with Jus- agree the third fourth

Regarding and tice majority opinion. Dolliver's issue, I Although fifth I to the must dissent.

As to be hanging find personally thought abhorrent, of a more employment prefer and would method, subjec I for that speedy more cannot and reliable not A should hold law tive reason alone it unconstitutional. not like one does just unconstitutional because declared constitutional only it. It a statute contravenes a is when it must be invalidated. provision principle or that The majority says hanging punish- cruel and unusual ment decency. because offends civilized standards of This reaction, purely subjective is a legislature however. mentally morally as attuned as the members of this court to precisely determine the at which civilization point is in "evolving decency" standard of or where such a in. In wholly fits a case such as this wherein involved, subjective reasoning observations are we legislature's should defer judgment. legislature is, all, body after closely representative most people of decency whose standards are said to be impacted. presume body cannot members are less any "decent" or or capable "civilized" less determining community's "evolving decency" standard than are general members this court or the populace. Without question there are methods of imposing death that would clearly contravene the Eighth Amendment and Const, art. 14. We clearly are not within such a defined § area, Rather, gray however. we are the bounds of zone adequately which cannot be defined resort mere subjective standard the method "offends civilized decency" standards or offends standards of "evolving decency". While subjective may standards suffice to meet a case, clear-cut one must resort to a objective more approach to resolve emotional issue before us. Absent objective some will many criteria there be as answers as there are people differing with phil- moral intellectual osophies. Such a nebulous approach, possibility results, uncertain no intolerable matter which moral philosophical view majority one advocate. The has necessary employed the objectivity. C.J., J.

Bkachtenbach, Stafford, concurs with Dimmick, JJ., J., Stafford, Hicks and concur with as to V. issue

Utter, (concurring part, J. dissenting part) —I agree with the majority as to IV. On that issue except issue

515 10.94.020(10) (b) process I violates the due believe RCW both Washington States the United guaranties Constitutions. must process, penal

To be consistent with due statute standards, people so that of reason- contain ascertainable will not be understanding, acting jurors, when able Seattle required guess meaning at the of the enactment. Drew, v. 405, 408, 522, P.2d A.L.R.3d 827 423 25 (1967). constitutional, explicit For criminal statutes necessary arbitrary enforce- guard against standards are Jacksonville, Papachristou ment of the law. 405 U.S. (1972). 156, 110, L. Ed. 2d Ct. In capital 31 92 S. 839 sen- tencing, guard against the need to arbitrariness is even contexts, greater than other criminal and the constitu- stringent. Godfrey Georgia, tional requirements are more 398, 1759.(1980). 446 L. Ed. 2d Ct. U.S. 100 S. sentencing statute must "channel sentencer's discretion objective provide 'specific 'clear and standards' guidance,' rationally detailed and that 'make reviewable the (Footnotes process for imposing a sentence of death.'" omitted.) Godfrey, at 428. 10.94.020(10) (b) constitutional re violates

quirement certainty clarity. its inadequacy terminology empirically frequency has been shown with which additional deliberating juries requested have "probability" instructions the terms and "criminal acts Due Process in the United States Scofield, of violence." Supreme Court and the Death the Texas Mur Capital Statute, der Am. L. J. Crim. The statute is obscure to find required probability "a beyond ably by two Jus a reasonable doubt." As discussed (Tex. State, in Jurek v. Crim. tices 522 S.W.2d Texas, 1975), aff'd, Jurek v. L. 2d 428 U.S. Ed. (1976): 96 S. Ct. 2950 Legislature provided

What did the mean when it exists a upon man's life or death shall rest whether there in the acts perform will certain that he "probability" a proba- read, mean, words is there Did it as the future? bility, may say We any probability? probability, some it will rain that probability twenty percent is a there tomorrow, Though probability. or five percent or a ten a probability, yet is some probability, small this be a or no say probability would it is no one probability, and "It that probable It has been written: probability. not a "A and contrary probability," things happen will many thousand ute does not but The absence of a ability The stat- make one fact." do not probabilities degree probability particular require found. some need be probability only directs that prob- to what specification as in the inherent vagueness required is itself under- common sense in this issue. Our term as used pass vague too leaves the statute standing of the term constitutional muster. omitted.) Furthermore,

(Footnotes "beyond a "probability" of a of the existence concept only puzzling can be doubt" is and reasonable mind-boggling —even In mathe- anybody. strict or to a—to strictly ame- terms, subject dealing with a matical nable treatment, possible it is of course to mathematical "beyond a only probability" to reasonable mathematicians way. there "is a assert non- certainty. But but to a doubt" nor think such a language neither use "beyond a reasonable "probability" terms in the another at war with one repugnant doubt" are us, talk and like all juries, speech common think. and Compan- v. Texas Death: Jurek Due Process of

Black, (1976). Cases, 4 ion Cath. U.L. Rev. 26 unreliability indicates the the evidence Additionally, in this field The research dangerousness. future predicting future violence ability predict shows in this supra at 32-41. Scofield, The evidence unproven. future violent behavior predict shows that no one can case agree accuracy. experts Most percent more than 35 predictability about "very strong doubt" there is a likely person to commit an act than not is more whether a A board parole expert violence. state testified that pre- specu- "sheer constitutes behavior criminal dieting violent predict result, is asked when a lation." As more behavior, decision is its violent of future possibility crime than by the nature influenced likely to be of future violence. likelihood (b) 10.94.020(10) due violates

To conclude Morris, Alter v. with Jurek not inconsistent process is (1975), on other overruled P.2d Wn.2d Harris, P.2d 739 In re grounds, does not violate like ours Jurek holds only that a statute Gregg Georgia, 428 U.S. Eighth Amendment. (1976), was where review Ct. 2909 L. Ed. 2d 96 S. (423 1082), the Jurek U.S. same issue as granted on the lim was writ of certiorari that plurality opinion states Gregg in constituted death sentence ited to whether n.51; see Gregg, 162, 201 at punishment. unusual cruel and Florida, n.11, L. Ed. 2d 242, 49 also v. U.S. 254 428 Proffitt (1976). this, the California 913, Recognizing 96 S. Ct. 2960 unconstitutionally a Cali vague held as Appeals Court of It in upheld after the one fornia statute modeled Proffitt. standards, process due vagueness, that as measured held v. People Court. Supreme had not been considered 210, 365, Court, Rptr. 164 Cal. Superior App. 105 Cal. 3d vacated, L. 2d Ed. granted, judgment cert. 449 U.S. 66 (1980) case (judgment vacated 101 S. Ct. 344 based result was whether California remanded to determine law). on federal state Alter, of this case.

Alter outcome not control the does likelihood "a substantial controlling language was than vague less significantly That is similar acts." repeating conveys doubt" —for beyond a reasonable probability "a Also, court in the latter. notion absent quantitative commitments of mental Alter noted the nature essentially what are leeway formulating requires "some Alter, Leeway permissible 421. is standards." predictive may also further mental commitment there because Morris, supra; v. Alter of the committed. best interest Addington Texas, L. U.S. Ed. 2d 99 S. feature, Ct. 1804 That and thus justification standard, some imprecision from is absent the death penalty adjudication. capital murder defendant not going any to receive adjudication treatment —the Furthermore, his or her noted, best interest. already severity of penalty requires the utmost solicitude for reliability.

Lastly, neither Jurek nor Alter considers our state due process guaranty. provision vitality That independent has a of its federal counterpart, and can protective be more when the evidence and reasoning suggest necessary. that such is See Prods., Forest Inc. Olympic v. Chaussee Corp., Konz, Young (1973); Wn.2d 511 P.2d 532, 546, (1979) J., (Utter, 588 P.2d dissenting). nearly Because the uncontroverted evidence this case legislative indicates requires nothing standard 10.94.020(10) (b) speculation, more than sheer vio- lative this state's due process clause. Consequently, unreliability of the factual finding required by RCW 10.94- .020(10)(b), as well as its vagueness, pro- violates the due of both the United States and Washington guaranties cess Constitutions.

II but, The dissent on appears its face convincing, addi- tion to already given by the reasons majority, the dis- First, sent two important points. overlooks constitutes such a severe that usual rules statutory construction given cannot be their usual applica- Carolina, v. Woodson North tion. 280, 305, 428 U.S. 49 Cf. Ohio, 944, L. Lockett v. Ed. 2d (1976); 96 S. Ct. 2978 438 586, 973, (1978). L. U.S. 57 Ed. 2d 98 S. Ct. 2954 If there is any scheme, ambiguity sentencing a death as present here, it must be resolved the defendant's favor. Const, 2, 37, ignores Washington dissent also art. § which prevents RCW being 10.94.020 and 10.49.010 from read in pari materia.

519 Const, any act 37, requires art. Washington § or revised forth the must set amending another revising must either statute in full. The new amended sections statute it to the indicate how relates in itself or complete 37, 39, State, Wn.2d Washington Educ. Ass'n 93 amends. things, (1980). ensures, among other This P.2d 950 legislative of each is aware of the full effect legislature Morris, P.2d 769 Flanders v. enactment. (1977). purport its terms does

Although RCW 10.94.020 amendatory, 10.49.010, may be an act to amend RCW Tax Gruen v. State on its face. though not an amendment (1949). An Comm'n, 1, 24, 211 P.2d act Wn.2d of an scope and effect amendatory when it either alters statute, without refer- implemented or cannot be existing Ass'n, Educ. Washington supra; ring to enactment. another County, King Co. Wn.2d 592 P.2d Weyerhaeuser Mitchell, ex rel. Arnold v. (1979); 55 Wash. 518, 104 P. 791 and 10.49.010 should be

By arguing that RCW 10.94.020 materia, two conceding pari read the dissent and cannot exist without the other. interdependent are However, does not to RCW since RCW 10.94.020 refer Const, 10.49.010, together two would violate reading the be, Therefore, as the dissent appealing art. 37. § me from prevent constitutions our state and federal it. accepting Utter, J.'s,

Brachtenbach, reasoning C.J. —I concur with opinion by IJ support herein appearing under issue Utter, J., I Dolliver, J., I. do not concur with on issue issue IV.

Dore, dissenting part)— (concurring part, J. matter, about nothing ambiguous I find preliminary As a 9A.32.040, 10.94.030, 10.94.900, 10.94.010, 10.94.020, 9A.32.045, 9A.32.046, comprise and 9A.32.047 amendatory act When a statute is unam question. Auto interpretation. no room for biguous, judicial there is Department Drivers Local 882 v. Retirement mobile of Sys., (1979). 598 P.2d 379 Thé above cited who procedure sentencing sections create a a defendant I find unclear in the nothing has been convicted murder. nor conflict procedure, Washington do find with other statutes. on sentencing procedure impact has no the defend- plea. guilty by jury,

ant's If defendant is found of murder a sentencing procedure judge is activated and the trial 10.94.020(2). If jury". "shall reconvene the same trial RCW jury conviction plea guilty, impaneled is based by authority provides, part: of RCW 10.49.010 which If, . . . arraignment any person on the the defend- murder, plead charge ant to a shall be impaneled testimony, degree and determine the hear punishment of murder and the therefor.

Thereafter, follows special sentencing proce- 10.94.020(1)-(10) dure as set forth to "determine murder and the therefor." harmonized, in pari materia are to be where Statutes (1974). Jur. 2d Statutes Am. possible. at 386-87 § Clearly, RCW and RCW deal with the 10.94.020 10.49.010 materia) (i.e., they subject they pari same are can be consistently majority read with each other. The now creates new rule: "If had meant RCW 10.49.010 legislature 10.94.020(1) (2) together and RCW to be read when a it pleaded guilty, is unreasonable believe say at 475. Is it Majority opinion, would have failed so." legislature not more reasonable to assume that was of construction that two statutes aware the familiar rule given meaning both to which are not conflict are assumed to have had RCW 10.49- legislature effect? The 10.94.020; court in mind when it enacted RCW .010 if con- legislature must view the latter statute as had Country McFadden Elma prior sidered its enactments. Club, P.2d App. 26 Wn.

II construction. statutory business I turn now to the is to statute which construes a of the court role primary effect give and to legislature, intent of the determine N., Johnston, Inc. Wn.2d Burlington that intent. (1977). end, must be read the statute To this 572 P.2d 1085 single sen- by a whole; intent is not to be determined as a (or, case, "reconvene the single phrase tence this Fenter, P.2d jury"). same intended to legislature argue Who could but perpetrate for those who capital punishment provide feels majority apparently crimes? The the most heinous penalty intended to extend the death legislature plead guilty not to only enough to those who were foolish aggravated murder. investigated, legislative history of the statute

When holding grounded majority's becomes clear that a fiction. (HB 615)

1. Bill House House originated scheme as present penalty The (1977) (HB 615). Bill It was intro- Legislature 45th Journal, only. Legislature duced title The House 45th (House (1977) Journal), "An Relating introduces Act at 209 criminal and lists those sections procedures" to crimes and which are to be amended Washington of Revised Code House absolutely nothing by the new act. There any provisions substantive Journal which indicates HB against for or legislator HB Not ever voted single 615. 615. 615) (SHB

2. Bill 615 Substitute House HB bill for substituted another judiciary The committee page 969 as Sub- the House Journal designated 615). (SHB Judiciary House Bill 615 The stitute House Bill 615 Substitute House Committee recommended that "Do Pass". (ESHB 615)

3. Engrossed Substitute Bill House discussions, Subsequently, points of inquiry, changes were made to SHB 615. Those amendments were engrossed onto SHB 615 and the engrossed passed bill the House and was sent to the Senate.

4. Senate Amendments to Engrossed Substitute

House Bill 615 engrossed Senate referred the bill to judiciary committee. Certain amendments were considered Senate, Journal, reflected Legislature Senate 45th (1977) (Senate Journal). made, change most dramatic however, was the motion to "Strike everything after the enacting clause Engrossed SHB and insert the fol- [of 615] lowing". At juncture, a comprehensive Senate amend- ment comprising the Senate's death scheme was (No. attached onto 615); the House's engrossed bill Senate Journal, at 1984. The House bill was dead. The Senate chamber, "amendments" passed subsequently in the House. It completely was ESHB 615 as amended the Senate amendments which was enacted into law and is 10.94.010, 10.94.020, now 10.94.030, known as RCW 10.94- .900, 9A.32.040, 9A.32.045, 9A.32.046, and 9A.32.047. majority grounds legislative its determination of intent on the omission one section of HB from 615 SHB end, 615. To this majority the adopts concurring opin- the ion of Justice Martin, State v. in 1, Horowitz 614 (1980), P.2d 164 to wit: legislative history present penalty of the death [T]he legislature expressly rejected,

statute shows that the proposed provision that would have authorized the impaneling of capital sentencing jury in which 615, cases pleads the guilty. defendant House Bill No. the original statute, provided version the "If that: the trial waived, jury has been or if guilty the defendant pleaded murder the first degree, penalty proceed- the death ing shall be conducted jury impaneled before a for that purpose and such cannot Bill be waived." House No. In bill, 68. enacting legislature the the eliminated § provision. (Horowitz, J., Martin, mine.) concur- supra at (Italics words, which was by omitting section other ring). statute, the penalty prior found draft legislature must have intended majority reasons sentencing pro- penalty limit applicability death guilty". "not Justice plead those who cedures to defendants of sec- "express" rejection omission Horowitz called this an agree. tion 68.1 cannot

First, any meaning whatso- if drafts of an act have prior finally ever, be of the law which was they prior must drafts shown, only has been Senate enacted. As scheme, number, bill was before attached to the House major- no arguments by see defendants legislature. enacted law support their ity prior here that drafts pleads is to who position statutory exempted from the scheme. provisions appear no substantive

Second, of HB the text of both HB 615 the House or Senate Journals. For SHB must be made to reference Forty-fifth Washington Legislature, Printed Bills Session, House, 601-715, 1977, Extraordinary Regular and (Printed Bills). It Bills Sessions is obvious that the Printed Martin, supra, both were relied on Justice Horowitz case, opin- subject although in the neither majority Going journals them. behind the is not reli- ion mentions Hama Hama intent, legislative able determination Hearings Bd., Co. v. Shorelines Wn.2d 536 P.2d (1975), particularly in the of an omission a subse- case Statutes draft, quent 752-53. C.J.S. § of legislative sources proper Even if the Printed Bills are intent, We majority's position unsupported. of section a number of inferences from exclusion draw (2) (1) inadvertent, in sub- They was 68. are: the exclusion from down to the HB its 116 sections stantially paring 615, the commit- judiciary substituted as SHB sections light was the superfluous tee felt that section 68 (3) who 10.49.010, defendant or committee wished a pleaded to guilty escape imposition of the death pen- alty, marking change a radical existing law. Whatever was the reason for omission of it section cannot legislative stand as a statement intent. knowWe that not single legislator against any voted for ever section 68 or Furthermore, other section of HB 615. House Journal fails to any show that the legislators, considering when SHB were directed this supposedly intentional and certainly radical from departure long-established Washing- ton law of for a providing sentencing jury after pleaded guilty inquiry first murder. No reflected in either the House or Senate Journal which indi- cates legislators considered that such a change law was before them. that no departure submit such was legislative before either chamber. This court has previ- ously cautioned

against over-emphasis and upon over-reliance the fact or an absolute deter- happenstance of successive drafts minant, rule, or interpreting tool for a statute. Hama Hama Co. v. Hearings Bd., Shorelines supra at 449. challengers of this statute have failed meet burden A imposed upon them law. is presumed statute Harbert, In re to be constitutional. 85 Wn.2d 538 P.2d (1975). To overcome this presumption, the challenge Sator beyond must be proved a reasonable doubt. Revenue, Department P.2d any simply This means that if there is reason to constitutional, hold a statute courts find cannot statutes, By unconstitutional. harmonizing the two subject 10.49.010, RCW 10.94.020 with RCW which I believe was intent, legislature's there is no need to hold the 1977 above, unconstitutional. noted statutes As explanation there is more than one for section reasonable proven, from 615. It has not been 68's exclusion SHB beyond doubt, a reasonable the omission of section 68 was for defendants who purpose allowing plead escape penalty proce- of the death imposition dures. intended a legislature that the concludes majority murder, depending aggravated for punishment

different If this guilty. or not pleaded guilty defendant whether a ESHB 615 that, 615 and true, as SHB logical is it not were enactment, toward legislative halls through the moved that legislators the would have advised or member sponsor of the bill would provisions under the punishment, capital the defendant murder event only apply aggravated convicted, and was, subsequently, guilty not and pleaded he maximum pleaded guilty, if that such would be "life" by way of punishment could receive parole. of possibility death Journals reflect that this The House and Senate debated, numerous amend- was penalty thoroughly bill were accepted were some ments offered —some and were of points asked were rejected; questions numerous no strange of. it not order raised Is disposed were to be admin- type mention was made of pleaded guilty aggra- of an istered the event a defendant permissible A opposed guilty? vated murder to not leg- inquiry inference from such absence such provided well RCW islators were aware of 10.49.010 sentencing procedures plead guilty for for defendants who It court to "legislate" murder. unthinkable against the intent of the legislature. legislature

Finally, the statute itself indicates no distinction those defendants intended to make between plead Legisla- who not plead guilty. who and those first, possible, if from the stat- gleaned, tive intent be In re Lyons, Estate P.2d ute itself. scheme, codified at Section 6 of the enacted 9A.32.047, as follows: reads sen- event that commutes governor be is held to tence or event that or court supreme United States unconstitutional the the penalty supreme Washington court the state in the state imprisonment under RCW be 9A.32.046 shall or of release penitentiary possibility for life without A parole. person imprisonment sentenced to life under not suspended, this section shall have that sentence deferred, officer, by any commuted judicial prison board of and paroles parole terms shall never prisoner nor period reduce the The con- confinement. person any victed of shall as a type released result of time good calculation nor department shall permit social and health person services convicted participate any temporary or furlough pro- release gram. then,

Life without of possibility parole, resulting is the sen- by tence if a death is or if sentence commuted the Governor statutory the enacting penalty scheme is held invalid the If A pleads courts. defendant to first guilty degree murder and B to pleads guilty defendant first murder, they must be equally treated before the law. If B defendant could be to possibil- sentenced life without ity of A parole, only but defendant could the lighter face sentence of life with possibility parole, equal protec- of tion clause be legis- constitution would violated. The lature presumed constitutionally thereby to act creating Har- In re presumption an that act is constitutional. bert, supra. that RCW 9A.32.047 makes no distinction (whether pleas they between the plead guilty defendants or not guilty) and that to constitu- presumed statute is be tional, that section strong legislative demonstrates intent penalty death triggered scheme is to be either a plea of or not guilty guilty. in

Also to be noted RCW effect of 9A.32.047 light majority majority court opinion. The this has found to penalty be unconstitutional. The above cited will to operate section the sentences of those change now on death row to life without possibility parole. legislature had foresight severability to enact a clause. RCW 10.94.900.

III states dissenting opinion concurring and Utter's Justice be read cannot RCW 10.49.010 RCW 10.94.020 and Const, art. do so violates to pari § materia because which reads: ref- by mere be or amended

No shall ever revised act or the section title, the act revised to but its erence length. forth at full shall be set amended 10.94, as RCW I Utter's conclusion. disagree Justice dissent, nor revises I of neither section discussed com- The death statute amends 10.49.010. no statute has of the latter plete itself. enactment both They on the the former statute. operation effect mur- convicted of sentencing a defendant concern the However, merely provisions RCW 10.49.010 allows the der. if pleads triggered of RCW 10.94.020 to be Const, read 37 has not been charge. to the art. § read which are past bring within its ken all statutes change. I see no to now make pari materia. reason IV III IV. disposition I concur issues majority's however, should III, question feel that a fifth As issue the defendant be sentenced put jury: Shall "no”. This "yes" with a simply to be answered death? of the penalty death imposition final determination jury. of the province should not be taken from the V V, to issue I in Justice Rosellini's dissent as concur eighth amendment by hanging whether death violates I Additionally, note that United Constitution. to the States the mode of equipped to determine legislature is better fact I notice imposed. judicial take execution be Washington very currently before the subject this nei- this court can legislature, Unlike the Legislature. State issue. hearings on this testimony live nor conduct hear ther VI

Conclusion majority clear, has found a orderly well reasoned and ambiguous, statute be legislative and has fabricated stated, intent from impermissible Simply inferences. court has substituted its for legislature. intent our From usurpation legislative of the I power, dissent.

I uphold would constitutionality the 1977 amen- datory providing for act capital and overrule Martin, State v. 614 P.2d 164 J., Rosellini, J. Dore, concurs with Dimmick, J. part, (concurring dissenting part) —I concur reasoning with the and result reached the dis- I, sents of Justices Rosellini and Dore as to issue and would Martin, likewise overrule P.2d Wn.2d (1980). However, since Martin is stare decisis, and since the majority unconstitutional, has held the penalty death I myself address II. issue

The majority holds that "the State not con stitutionally seek life imprisonment without possibility of parole release or for those who are found of aggra vated first murder." I disagree with that holding. provides

RCW 9A.32.047 if this court holds the unconstitutional, penalty "the under RCW imprisonment shall penitentiary 9A.32.046 the state possibility parole." life without of release or The sever- ability 10.94.900, provision, RCW indicates this directive can although parts stand alone other are held statute invalid. Given the unambiguous legislative manifestation of here, intent we present must heed this it directive unless constitutionally infirm. present

Is the statutory scheme unconstitutional? do believe is. The dispositive Supreme United States cases, Jackson, United States v. Court 20 L. U.S. and Corbitt v. New Jer- (1968), Ed. 2d 88 S. Ct. 1209 sey, (1978), U.S. L. 2d 439 58 Ed. S. Ct. 492 99

529 impermissibly inducing a only from prohibit a state to forego right to his a plead guilty and constitutionality of the inducement To assess the trial. whether a defend- present in this case we must determine and is a life sentence pleads guilty given ant who sufficiently different parole is treated possibility a carries a and is sen- goes who trial before from a defendant parole. without a imprisonment possibility to life tenced sub- penalties two are majority, believe these Unlike scheme, similar, statutory there- stantially present and the fore, impermissibly encourage a defendant does plead guilty. clearly parole granted court recognized

This has strictly by grace through the Board Prison Terms grace is grant The discretion to or withhold this Paroles. Fain, See State v. virtually unfettered unreviewable. George, In re 94 Wn.2d 387, 394-95, (1980); 617 P.2d 720 90, 94, Accordingly, Wn.2d P.2d guilty and receives a life sentence pleads defendant who he will possibility parole expect with a must serve life will, sentence. He fact, sentence as a serve the identical by jury and was right defendant who exercised his trial parole; possibility sentenced to life without unless mollify his life deigns to exercise its discretion and Furthermore, goes to trial and is sentence. defendant who is not possibility parole to life without a sentenced majority opin See hope," majority "without as the states. ion, may commute an inmate's sen at 484. The Governor judicial restraint. any legislative time from tence at free mur 12 convicted example, For of at least the sentences years. in the derers were commuted last inmates, following to life for first who were all sentenced 3The former murder, Ray during of Governor the term of office had their sentences commuted Washington superintendent upon State Peniten recommendation (2) 11/6/70, 1/12/81; (1) tiary: Finnegan, Edmond commuted sentenced Michael 1/12/81; sentences, Gray, life commuted to three consecutive sentenced 4/22/60 (4) Harry 12/20/71, 1/8/81; (3) Kelly Messinger, L. Van commuted D. sentenced (5) Henault, 2/28/69, 1/8/81; DeVenter, John E. sentenced commuted sentenced The two penalties, identical, obviously while are sub- stantially similar. That is all the constitution requires. Corbitt, Here, inas a defendant who pleads guilty and is sentenced to life with possibility of parole is not substan- tially better oif than a defendant who goes trial and is sentenced to life without a possibility parole. Under our Corbitt, statutory scheme, Jersey's as under New freely defendant who abandons his right by jury to trial may receive the same penalty as the who makes prove his guilt at trial. Given similarity Jackson's narrow prohibition penalties, against needless encouragement pleas, clearly 390 U.S. absent I this case. accordingly dissent from II of issue the majority opinion.

I concur with III majority on issues and IV. Hicks, J., J. Dimmick, concurs with C.J., J., Brachtenbach, concurs Dimmick, II. issue my J. —In I

Rosellini, dissent upheld have penalty statute entirety, its which would provide for the penalty of imprisonment life without possibility of parole. any order to avoid misunderstanding, signing am also Justice opinion. Dimmick's May 20,

Reconsideration denied 1981. (6) 5/26/64, 1/5/81; Mesaros, 4/6/62, commuted Donald sentenced commuted (7) 10/22/80; Lee, 6/7/74, (8) 10/22/80; A. Richard sentenced commuted Robert Reed, 2/20/74, (9) 10/22/80; Huff, Lee sentenced L. commuted Katherine sen- 11/3/67, (10) 5/16/78; Nichols, 3/18/66, tenced commuted Ronnie J. sentenced (11) 5/16/78; Huson, 5/26/67, (12) 3/1/78; commuted Robert sentenced commuted Anthony Takahashi, 3/31/67, sentenced commuted 3/30/77.

Case Details

Case Name: State v. Frampton

Court Name: Washington Supreme Court

Date Published: Apr 16, 1981

Citation: 627 P.2d 922

Docket Number: 45570, 45634, 45811, 45922, 46328, 47257, 47285

Court Abbreviation: Wash.