*1 Given this it is for us to consider two holding, unnecessary additional contentions raised by Tollycraft. Tollycraft argues that, if "deemed McCoy's grant- even is application reopen ed", may nonetheless its RCW 51.52- Department employ to reconsider such a "deemed deci- authority granted" .060 it has a either under the due argues right, sion. It also of the Fourteenth Amendment or under the clause process on a "deemed decision as it Act, hearing granted" just to a to an decision to respect explicit departmental would with issues are moot because McCoy's appli- a claim. These reopen was not "deemed We therefore correctly granted". cation of whether "deemed decisions granted" reserve questions and the rights be reconsidered under RCW 51.52.060 may such decisions for challenge appropriate self-insurers future cases. and the case
The order of is reversed summary judgment this for further consistent with proceedings is remanded opinion.
Andersen, C.J., and Brachtenbach, Dolliver, Durham, JJ., concur. Johnson, Madsen, Smith, Guy, September 1993.] [No. En Banc. 57003-5. Washington, Michael The State of Respondent, Furman, Appellant. Monroe *3 pro Gombiner, Furman, se, Robert H. Monroe Michael appel- laña, Nance, Gombiner, for laña & Michael R lant. Attorney, Danny Prosecuting B. Clem, and Michael
C. respondent. Loginsky, Deputies, Savage B. and Pamela Amnesty Miller on behalf M. Andrus and Alice Beth appellant. curiae for International, amicus *4 Andersen, C.J. degree aggravated appeals mur- Furman his
Michael conviction, the We affirm and death sentence. der conviction resentencing. sentence, and remand vacate the death Case Facts brutally Eighty-five-year-old murdered Ann Presler was . body April her the home on 1989. A friend found her neigh- morning. spoke Mrs. Presler's next Detectives with they Furman bors, of whom said had seen Michael several walking looking day the murder. door to door for work the initially visiting Appellant house, denied Mrs. Presler's but eventually raped, murdered admitted that he robbed and her. appellant
According confession, entered Mrs. Pres- to his him she offered to wash her windows. $10 ler's house when glass cleaner, he went into the kitchen he ran out of When suggested She for more. he use dish and asked Mrs. Presler soap. punched angry her in the head three He became rag, He covered his hand with a fell to the floor. times. She pot. grabbed pot He a hit her with the went to a coffee got her the vase until vase, returned, and hit with bedroom, a got bedroom, vase, another to the it broke. He then went back raped He then it too broke. and hit her with it until returned money. He house for found then around the her and looked any purse. not so he would leave his hand covered her fingerprints, With purse He and removed $30. he searched the heavy returned with a into the bedroom and then went back crystal alive, and he did not He realized she was still vase. crystal vase witness, her to be a so he hit her with want Appellant also mentioned he certain she was dead. until was marijuana morning murder, and he of the he smoked pipe. they marijuana police would find his where told taking appellant's confession, obtained a the officers After During search, the officers his home. search warrant for wearing clothing appellant on said he had been found pipe. marijuana day They murder. also found pipe, photographed which was and seized The officers pipe placed police was later evidence room. then in the inadvertently lost. April
Appellant before 30,1989, 2 months arrested on initially charged age, birthday. his of his he was 18th Because *5 with murder court. a declination juvenile Following case hearing, was transferred to court for superior appel- lant's as an adult. The State then filed a notice of prosecution intent to seek the death penalty.
After the filed, contacted the in- charges appellant detective vestigating several times and made additional in- statements. He criminating moved to subsequently suppress those statements as well as the statements he made before the charges were filed. He also moved to dismiss the pre- meditation element of the aggravated degree murder on the charge ground that the State's loss of the marijuana denied pipe appellant opportunity have it tested. The trial court denied both motions.
Trial began of 1990. The January only issue at disputed trial was whether appellant premeditated the murder. He testified that he smoked one or two of marijuana bowls and two bowls of marijuana with sprinkled methamphetamine 30 to 45 minutes before going to Mrs. Presler's house. The made him drugs which "high", he described as a condition in on, which he knows what is but feels going different and acts without To thinking. claims of support diminished capacity intoxication, and defense counsel called two wit- expert nesses: Dr. Lloyd a Cripe, neuropsychologist, and Dr. Law- rence a Halpem, neuropharmacologist. Defense had counsel also arranged appellant to be examined a clinical psychologist, Dr. Bruce Olson. Dr. Olson did not testify be- fore the jury, but did prepare which was then report pro- vided to Drs. That Halpem Cripe. report contains detailed which description provided of his sexual appellant Dr. history. Cripe testified that has a appellant severe perso- nality disorder. In Dr. because Gripe's opinion, of this dis- order use, and appellant's it is drug very improbable that the murder was a deliberate, reflected action.
Dr. Halpern testified the effect of regarding methamphe- tamine on the mind and expressed opinion appel- lant's use of him made methamphetamine unable to reflect or deliberate about the mechanics or consequences of his Halpem appellant probably Dr. also said suffers actions. syndrome, person to Cluver-Busi which can cause a from any attempt person ob- sex with almost or even inanimate Halpem, methamphetamine jects. According to Dr. use impulse sexuality tend to increase decrease con- would objection, defense counsel's asked Dr. trol. Over Halpem history the sexual in Dr. about material contained report. Olson's jury capacity,
The trial court instructed the on diminished give appellant's proposed declined to instruction on vol- but jury appellant guilty aggra- untary found intoxication. *6 unanimously degree agreeing murder, that all five vated proved. Following aggravating alleged had the factors been jury proved phase, had found the State there the mitigating leniency. circumstances merit insufficient Appellant sentenced to death. was therefore
Issues jurisdic- juvenile declining in the court err Did One. Issue tion? of the marijuana pipe appel- Two. Did loss violate
Issue process rights? due lant’s ruling the trial in chal- Three. Did court err on
Issue jurors' regarding lenges on the for based the views cause penalty? death admitting appel- the trial court err in Four. Did
Issue police? to the lant’s statements admitting "in life" trial court err in an
Issue Five. Did the photo of the victim? allowing prosecu- court err in trial the Did the Six.
Issue appellant's expert appellant's about tor to cross-examine history? sexual failing give in trial err Seven. Did the court Issue voluntary proposed
appellant's instruction on intoxication? Eight. misconduct prosecutorial deny appellant Did Issue fair trial? a May appellant he executed for a crime be Nine.
Issue juvenile? while a committed
Decision One. Issue in court did not err declining The juvenile
Conclusion. jurisdiction. may court be transferred for juvenile
A case filed in the declina finding prosecution upon adult criminal the inter would be in best jurisdiction court juvenile tion of 13.40.110(2). In mak RCW the or the juvenile public. est of (1) is to consider: determination, the court juvenile this ing the pro and whether of the offense alleged the seriousness (2) declination; whether tection of the community requires violent, pre aggressive, the offense was committed an (3) manner; the offense meditated or willful whether (4) merit of or the persons only property; prosecutive against (5) and disposition the of trial complaint; desirability court, alleged the entire case one where defendant's (6) adults; sophistication maturity are accomplices (8) criminal juvenile's history; of the juvenile; of the and rehabili adequate protection public prospects services available in the juvenile through juve tation nile All factors need not be system.1 eight proven; these their is to focus and court's disc purpose guide juvenile retion.2 The be reversed if there only court's decision will has an been abuse that discretion.3
We find no such
court
consid
juvenile
expressly
abuse.
*7
(Kent
States,
ered each of the
Kent
v. United
383 U.S.
eight
(1966))
541, 16
84,
L. Ed. 2d
factors and quite
be in the best murder, most serious offense which can aggravated with confession, In view of appellant's in this state. be committed most Perhaps merit. prosecutorial had obvious charge less than 2 crime occurred months before importantly, tried a juvenile, If he had been as birthday. 18th appellant's for the 3 only years remaining been confined he could have not, therefore, He could have served birthday.4 21st until his offense. range penalty standard juvenile even clearly that time are during inadequate available services the public. protect
Issue Two. of the did not violate marijuana pipe
Conclusion. Loss due process rights. appellant's him the pipe precluded contends that loss of
Appellant
he used
tested,
it
have shown
having
might
from
which
meth
He claims the loss
marijuana.
as well as
amphetamine
his diminished capacity/intoxication
of evidence to support
in
under the analysis
due process rights
defense violated his
(1976)
v.
783,
P.2d 1
and State
87 Wn.2d
State v. Wright,
(1983).
in
As we
44,
explained
5SeeState v.
6 n.8, Yates,
449 v. in State outlined principles' six 'interpretive sis of the (1986)."7 Appellant 808 54, 720 P.2d Gunwall, 106 Wn.2d analysis our confine therefore We argument. no such offers constitution. to the federal the States on imposes the Constitution duty
"Whatever
limited to evidence
must be
evidence, that duty
to preserve
role in the sus
a significant
to play
be
might
expected
that
constitutional
this standard of
"To meet
defense."8
pect's
that
an
value
possess
exculpatory
must
materiality, evidence
destroyed,
was
be
the evidence
before
apparent
unable to obtain
the defendant would be
a nature that
such
available means."
reasonably
other
evidence
comparable
(Citation omitted.)9
exculpa
no apparent
The pipe possessed
men
had
Although appellant
when it was lost.
tory value
not claim
he did
to smoke marijuana,
tioned
using
pipe
he mention
use, nor did
that
impaired by
to have been
Moreover,
descrip
his detailed
use at all.
methamphetamine
impairment.10
indicated no mental
tions of the murder
value
exculpatory
not
an
possess
apparent
If evidence did
"poten
nevertheless
destroyed,
lost or
but was
when it was
that evidence constitutes
useftd", failure to
tially
preserve
can show
if "a criminal defendant
of due process
violation
at
conceded
on the
part
police".11Appellant
bad faith
of bad faith.
that
there is no evidence
trial
(1990); accord,
Motherwell,
v.
7State
Wethered,
(1988);
537,
n.1,
Worrell,
v.
(1988).
466, 472,
to smoke
after
nothing
appellant's
proved
drug,
about
would have
it
shown to contain
time of the offense.
mental state at the
Issue Three. death sentence Our vacation appellant's
Conclusion. *9 on rulings his the trial court's argument regarding moots challenges for cause.12 jurors' on the challenged rulings All of the were based challenges on rulings on the death Erroneous penalty. views bearing have "no on for cause related to such views of conviction."13 validity [the] Four.
Issue court did not err admitting The trial appel- Conclusion. to the police. lant's statements the voluntariness of a confes determining juvenile's
In
of the circum
sion,
totality
court must consider
experience,
capac
stances,
including
juvenile's age,
to the
According
him.14
warnings given
understand
ity to
was
to
iree
unchallenged findings, appellant
trial court's
not, there
his first statement.15 It was
leave when he made
at
fore,
rights
inform him of his constitutional
necessary to
informed of his constitutional
that
time.16
Appellant
Miranda,17
initial state-
following his
by
as
rights,
required
involving penalty phase eviden
12Appellant
issues
raises several additional
jury
tiary rulings
statute. These issues
instructions and the death
appellant's death sentence.
mooted
our vacation of
are also
492,
n.11,
Illinois, _U.S._,
2222
112 S. Ct.
13Morgan
119 L. Ed. 2d
509
v.
(1992).
510,
n.21,
776,
Illinois,
Accord, Witherspoon
2d
v.
391 U.S.
522
20 L. Ed.
(1968).
162,
McCree,
L. Ed. 2d
also Lockhart v.
476 U.S.
90
1770
See
88 S. Ct.
(1986)
jury
(process
qualifying
of death
does not result
Ct. 1758
106 S.
591, 596,
Irizarry,
panel);
111
conviction-prone
State v.
Wn.2d
(1988) (same).
707, 712-13,
C.,
2560
61 L. Ed. 2d
99 S. Ct.
Michael
442 U.S.
14Fare v.
(1980).
84, 87,
(1979);
State,
269
606 P.2d
Dutil
3.5(c) findings
unchallenged and there-
of fact are
15A11 the trial court's CrR
of
Christian,
P.2d
appeal.
806
fore verities on
States,
341, 48
L. Ed. 2d
96 S. Ct.
v. United
425 U.S.
16Beckwith
(Miranda
custody
deprived
suspect
his
warnings required
into
or
if
is taken
way).
any significant
action in
freedom of
694, 86
1602, 10
436, 16
Arizona,
A.L.R.3d
L. Ed. 2d
S.
384 U.S.
17Miranda v.
Ct.
incriminating
any
he made
additional
ment and before
point
Appellant
Fifth Amend
at no
asserted his
statements.
right
right
his
to remain
counsel.18Nor did he assert
ment
appellant's
after the
were made
Some of
statements
silent.19
right
counsel
filed,
after his
information was
and thus
§1,
art.
Sixth Amendment and Const.
attached under the
(amend. 10).20
appellant
repeatedly
advised
The detectives
attorney. Against
right,
the advice
however,
as did his
appellant repeatedly
the detectives and
counsel,
contacted
incriminating
This evidence
made additional
statements.
finding
clearly supports
that the statements
the trial court's
voluntary.21
Appellant
are involun
contends that his confessions
falsely
tary,
him that
however,
told
because the detective
linking
police
and,
murder
him to the
had found evidence
gave him
is
later,
and food. This contention with
Coca-Cola
*10
strength
Misleading
merit.
statements about the
out
confession
State's evidence dó not render an otherwise valid
involuntary.22
involuntary
A
if the inter
confession can be
rogating
suspect,
or
officers
food or
from
withhold
water
confess.23There is no
offer food or water as an inducement to
378,
Arizona,
477,
2d
statement
that fellow
had incriminated
Braun,
inadmissible);
voluntary
otherwise
confession
(same
admissibility
codefendant's
where
misstated
of
officer
confession).
Florida,
19 L. Ed. 2d
Issue Five. admitting Conclusion. The trial court did not err an picture "in life" of the victim. pictures inherently prejudicial, par
"In life"
are not
ticularly
jury
pic
as here the
has seen "after death"
where
body.24
ruling admitting
trial
of the victim's
The
court's
tures
photograph
showing
a
will not be reversed absent a
such
a
of discretion.25We find no such abuse
manifest abuse
here.
present
trial court did not allow the State to
the in-life
The
simply
picture until it could be tied to some issue other than
identity,
challenged.
picture
the victim's
which was not
ultimately
identify
eyeglasses
admitted to
the broken
death,
which were found in the victim's sink after her
wearing
picture.
which she was
in the
The trial court
reasonably
picture's
concluded that the
relevance for that
purpose outweighed any possible prejudicial effect.26
Issue
Six.
did
The trial
not commit reversible
court
Conclusion.
allowing
prosecutor
to cross-examine Dr. Hal-
error
history.
pem
appellant's sexual
about
provided by
history information
The sexual
had been
report
appellant
prepared
Olson, who
which
himself to Dr.
given
Halpem
reaching
was then
to Dr.
assist him in
presented
Halpem
at trial. Dr.
testified that
conclusions he
history,
report
relied on the sexual
at least
he read the
*11
reaching
An
extent,
some of his conclusions.
to some
underly
expert may
required to disclose the facts or data
be
ing
opinions. ER 705. Otherwise inadmissible evidence
his
denied,
577, 599-600,
(1988),
Rice,
cert.
v.
110 Wn.2d
24State
(1989).
U.S. 910
25Rice,
26See per expert's opinion explain may or to to be admissible given.27 weight jury be what it should to determine mit the ex- Appellant have been that the evidence should contends by outweighed was ER 403 because its relevance cluded under Appellant prejudicial relevance of understates the effect. its appellant's history. Halpem use of that Dr. testified his sexual methamphetamine drive and diminished increased his sexual validity capacity premeditate of that the murder. The his sexually appellant vio- if committed is undermined conclusion began using methamphetamine, as his sex- he lent acts before history indicated. ual vacating appellant's death sentence
Moreover, we are grounds, any possible error in the admission on other history the convic harmless as to the sexual evidence was is of "bad acts" evidence tion itself. The erroneous admission requires reversal dimension, and thus not of constitutional only probability the error affected if there is a reasonable only disputed guilt phase was issue the verdict.28 appellant premeditated clearest the murder. The whether appellant's question He confession. evidence on leaving getting weapons, repeatedly room, new described using returning attack. He also related to continue the Finally, leaving fingerprints. prevent he said he hit cloths to crystal alive she was still the victim with the vase because Particularly in view a and he did not want her to be witness. clearly premeditated a confession, which describes of this fully person of the conse aware mturder, committed probability quences is no reasonable actions, of his there history affected of the sexual evidence that admission guilt phase verdict.29 Seven.
Issue
give
failing
err in
The trial court did not
Conclusion.
voluntary
proposed
appellant's
intoxication.
instruction on
27
Sound,
Rev.,
Department
106 Wn.2d
Coop. Puget
Group
Inc.
Health
391, 400,
28State v.
29Robtoy, at 44.
454 substantially overlapping offered two
Appellant
—
intoxication.
voluntary
capacity
defenses
diminished
to
amounting
is a mental condition not
capacity
Diminished
the
from possessing
which
defendant
insanity
prevents
the crime
to commit
necessary
mental state
requisite
the
defense,
such,
not a
as
intoxication is
Voluntary
charged.30
if the
determining
consider
jury may
but a factor
mental
state necessary
with the specific
defendant
acted
evi
If there is substantial
charged.31
the crime
to commit
theories,
should be
jury
either of these
dence to support
argue
the defendant
to
which allow
instructions
given
is
capacity
premised
If the claim of diminished
defense.32
voluntary consumption
on the defendant's
or
wholly
partly
however,
can be ade
alcohol,
one instruction
or
drugs
theory
to
defendant's
argue
to
the defendant
quate
permit
292, 730 P.2d
Hansen, 46
App.
of the case. State v.
Wn.
(1987).
Hansen,
of Appeals
In
the Court
706,
Conclusion. None trial, fair to a right appellant's torial misconduct prejudiced penalty phase the prosecutor's challenge and appellant's death sentence. of the is mooted our vacation conduct denied, 942, 944, Ferrick, 414 U.S. P.2d cert. 506 v. 81 Wn.2d 30State 98, 103-04, Edmon, App. review (1973); 621 P.2d 28 Wn. (1981). denied, Coates, 9A.16.090; 31RCW Griffin, 670 P.2d
32State v. both establishing burden bears Appellant prejudicial and its conduct of the prosecutor's impropriety sentence, appellant the death vacating we áre Since effect.33 which misconduct by any he was prejudiced cannot show case. of the phase during have occurred may occurred claimed misconduct acts of majority vast improper allegedly The prosecutor's of the trial. phase *13 to have appears expert of appellant's guilt phase questioning an overall claim of only support appellant's raised been misconduct. prosecutorial of pattern the ques of transcript entire We have reviewed that ques the nature of Both expert. tioning appellant's are quite State's evidence the strength tioning 699 140, 684 P.2d Reed, 102 Wn.2d in v. than State different cases are similar relies. The two (1984), appellant on which to support witnesses defendant called expert in that the only in Reed diminished undisputed It was capacity. a claim of he killed intoxicated when extremely defendant was that the saw who Here, contrast, neighbors several his wife.34 noticed no impairment, the murder shortly before appellant the victim that he killed in his confession and he admitted Additionally, her to be a witness. he did not want because to believe not jury in Reed asked the prosecutor from out doctors" "city were they because experts defense can clearly argument That improper community.35 side the exami cross to the prosecutor's be realistically compared not jury not suggesting prosecutor nation here. of who he was because expert appellant's should disbelieve not his were from, opinions but because he came or where in drawing latitude A has wide credible. prosecutor (1991); Hughes, 51, 93, v. State Hoffman, 116 Wn.2d 33State v. 692, 726, Mak, (1986); 718 176, 195, v. 105 Wn.2d 721 106 (1986), writ habeas denied, vacated on sentence 479 U.S. P.2d cert. (W.D. 1991), aff'd, Supp. Wash. Blodgett, corpus 754 F. sub nom. Mak v. (1993). (9th denied, 1992), S. Ct. 1363 cert. Cir. 970 F.2d Reed, 684 P.2d 34State v.
35Reed, at 143. expressing inferences from the evidence.36While reasonable prosecutor expressed infer in those the manner which commended, themselves here cannot be the inferences ences they improper. is the were not Nor manner which deprive appel prejudicial as to affect the verdict or drawn so a fair trial.37 lant of Nine. Issue the death Neither the declination statute nor Conclusion. imposition penalty of the death statute authorizes by juveniles.
for crimes committed upheld imposition Supreme Court The United States has penalty against defendants who were 16 or 17 when the death Kentucky, 361, 106 492 U.S. their crimes occurred. Stanford Ct. 2969 The issue L. Ed. 2d 109 S. Stanford penalty, authorized that how was not whether a state statute applied Kentucky their state courts had ever. and Missouri upheld the defendants' in that manner and had state statutes Supreme Court was The issue before the death sentences. application in that manner violated ofthose statutes whether any Eighth issue is Before constitutional Amendment. Washington statutes here, conclude that raised we must first *14 imposition appellant's death sentence.38 authorize sentencing authority limited is
The "trial court's expressly laws Our criminal found in the statutes."39 to that young years apply 9A.04.050; as 8 old. RCW to children as (1984). juve- The 19, P.2d 557 102 Wn.2d 685 Q.D., State v. 36Hoffman, 116 at 94-95. Wn.2d (defendant is a substantial 37Hughes, must show there Wn.2d at 195 thereby depriving of a defendant affected the verdict likelihood the misconduct 726). trial) Mak, (quoting 105 Wn.2d at
fair
Maxwell,
(1991);
595, 599,
v.
Tingdale,
Admittedly,
an
return,
extremely young
would
a death sentence against
factor, however, is that such ver-
defendant. The significant
were interpreted
dicts would be
if our statutes
possible
for crimes commit-
penalty
authorize
of the death
imposition
v. Okla-
4-justice
Thompson
ted
by juveniles.
plurality
702,
capital can lead to the offender's execution."42 Under view, either our statutes would clearly be unconstitutional as if applied defendants 15 or to author younger interpreted ize of the death imposition penalty juris decline following diction in court. juvenile RCW 13.40.110 authorizes juveniles adults, to be tried as but does not mention the death penalty. RCW 10.95 authorizes of the death imposition but penalty, does not refer to crimes committed by juveniles. Most criti cally, neither statute sets minimum any age imposition penalty. the death " '[Wjherever possible, it is the of this court to con duty "43 strue a statute so as to its uphold constitutionality.' We cannot rewrite the court juvenile statute or death pen- statute to ally of the death expressly preclude imposition for crimes committed who are under penally by persons age 16 and thus from the death under exempt penalty Thomps on.44 there Nor is in either statute that could any provision be severed order to achieve that result. The statutes there fore cannot be construed to authorize of the death imposition for crimes committed Absent such juveniles. authorization, death sentence cannot stand.45 appellant's
Appellant's aggravated degree murder conviction is vacated, affirmed. The death sentence is the case is remanded for of a sentence of imposition life with- prison out the of release or possibility parole.
Brachtenbach, Dolliver, Durham, Smith, Guy, and John- son, JJ., concur. Oklahoma,
42Thompson v.
Utter, statute to exe- under the authority there exists no ing that, in compari- and hold juveniles. go cute I would further 10.95.130, pen- RCW son to other cases as mandated to that of other alty of death is excessive or disproportionate murder. juveniles degree convicted of aggravated treatment First, in our state receive different juveniles is, in It range legal categories. than adults across a broad of view, treatment for my wholly to this inappropriate suspend of the most severe available purpose imposing of Second, under our criminal there is no evidence system. execution standards in our state to community support of a who was a at the time of the offense. person juvenile join emerging I believe should Finally, Washington recognizing national trend of that it is legislatures improper to execute who at the time the crime persons juveniles were I was committed. write also to indicate that the prosecutor's
misconduct in this case was and would constitute egregious an Furman's sentence independent ground reversing of death on even if we were not his sentence invalidating another ground.
I Washington The Status of Minors Under Law different, Juveniles in receive indeed Washington protec- tive, treatment as to adults across a wide compared range vote, a minor's to legal categories. right State restricts consent, marry to serve on a to without even jury, parental See, to alcohol and RCW 26.28- purchase cigarettes. e.g., .015(3) State Con- Washington and article section vote); a to RCW 2.36- right stitution (restricting juvenile's to on a RCW jury); .070 a serve (restricting juvenile's right 26.28.015(1) a (restricting juvenile's 26.04.210 and RCW 26.28.080(1) a juvenile's right marry); (restricting to RCW are intoxicating liquors to right present places be 26.28.080(4) to sold); (restricting juvenile's right pur- a RCW (restrict- 26.28.070 chase or tobacco RCW possess products); RCW a to certain ing juvenile's right types employment); 26.28.080(2) a (restricting juvenile's right to be in a present 26.28.080(3) hall); or billiard RCW public pool a (restricting to or be juvenile's right gamble houses of present prostitu- 26.28.080(5) use); tion or RCW drug a (restricting juvenile's (restrict- or right a purchase possess handgun); RCW 9.68 or ing juvenile's right purchase, possess sexually explicit materials).
These
a recognition by
laws reflect
courts and commenta
tors alike that minors have less in the way of
developed
See,
faculties than
responsible decision-making
adults.
e.g.,
J.R.,
Parham v.
442 U.S.
61 L. Ed. 2d
99 S.
(1979) ("[m]ost children,
adolescence,
Ct. 2493
even in
sim
are not able to make sound
ply
judgments concerning many
*17
decisions");
Baird,
Bellotti v.
443 U.S.
61 L. Ed. 2d
(1979)
797,
Moreover, I it time the state Washington joined think executing persons legislatures recognizing impropriety
461
In the
several
past
years
for crimes committed as juveniles.
issue, and have ex-
at
five states have examined this
least
crime:
juvenile
cluded the
of the death
imposition
(N.J.
(West
1993),
Supp.
New
Ann.
Jersey
2C:ll-3(g)
Stat.
§
(Or.
A:4A-22(a) (West
2
Rev.
1993)); Oregon
1987 & Supp.
§
(Colo.
419.476(1)
161.620,
(1991));
Rev.
Stat.
Colorado
§§
(Neb.
16-ll-103(l)(a)
(1986
1992));
&
Nebraska
Supp.
Stat. §
(Ohio
(1989)); and
Rev. Code
Rev. Stat.
28-105.01
Ohio
§
2929.02(A) (Anderson 1993)).
Note, The Juvenile
Ann.
See
§
a Miti-
Death
Counsel’s Role in
Penalty:
Development of
(1987-1988).
53
L. Rev.
776 n.78
gation
Brook.
Defense,
II
Proportionality
I
already explained
length
have
at
reservations about
my
our
v.
proportionality analysis
Camp
under
statute. State
(1984)
bell,
41-49,
(Utter, J.,
691 P.2d
103 Wn.2d
929
denied,
471 U.S.
concurring
part, dissenting
part), cert.
398, 431-40,
(1985);
1094
State
717
Jeffries,
v.
(Utter, J.,
denied,
(Jeffries I),
cert.
479
dissenting)
(1986);
Harris,
784, 802-06,
v.
106
725
U.S.
State
Wn.2d
(1986)
denied,
(Utter, J.,
P.2d
U.S.
dissenting),
cert.
Lord,
829, 939-45,
822 P.2d
(1987);
(1991) (Utter, J.,
denied,
cert.
Putting reservations us death is excessive or to evaluate whether the sentence of cases. We as other similar compared disproportionate in which defend- should therefore consider similar cases murder, degree ant found first guilty aggravated was or actually imposed or not the death penalty whether 10.95.130(2)(b). As I have else- emphasized carried out. RCW is is the death where, penalty the relevant whether inquiry cases, it ever whether has in similar not generally imposed 462
been
such cases. See
imposed
Lord,
State v.
117 Wn.2d at
(Utter, J.,
In re
dissenting);
Jeffries,
(1990)
II).
To make
determination,
this
we must
compare
facts
and circumstances of Furman's crime with those of others
who have committed aggravated first degree murder while
still juveniles. This involves taking into account the presence
or absence
Lord,
of aggravating factors. See
An examination of similar crimes committed by juveniles clearly reveals visiting death on penalty juveniles aggravated for first degree murder is disproportionate. Since 1981, under eight people of 18 have age been convicted of aggravated first degree murder. In none was the death penalty Indeed, no imposed. juvenile has been executed in our Brown, state since 1932. See The Juvenile Death Penalty A Washington: State Constitutional Analysis, 15 U. Puget Sound L. Rev. Streib, V. Death Pen- (citing (1987)). Juveniles 207-08 alty It cannot then be said death is on generally imposed juveniles for aggra- fact, vated first murder. degree Given this the death penalty fails pass muster under the proportionality review man- dated RCWby 10.95.130. Furman,
Besides seven under the of 18 have people age been convicted of aggravated degree murder since 1981. The circumstances of their crimes and the sentences they are ultimately received set forth below. 50): (Questionnaire of the Trial
Report
Judge
No.
(Sean Allen),
Stevenson
Wn.
780 P.2d
App.
denied,
review
Age of first aggravated Allen convicted Sean Stevenson was of the of his sister and two counts degree murder for death of his and stepfather first murder for the deaths degree Stevenson, 727. 55 Wn. at App. mother. of a vic- rape was found: the
One circumstance aggravating (Stevenson), Clark/ tim, of the Trial Judge his sister. Report 87-1-00011-5, The evi- at 5. court cited Cy. Skamania cause (1) of circumstances: age of four statutory mitigating dence (4) (3) disturbed; and defendant; mentally prior histoiy; no find to and mother. stepfather failure to murder as aggravated (Stevenson), at The also of the Trial 6. court Report Judge nonstatutory cited evidence of one circumstance: mitigating (Stevenson), his of the Trial by stepfather. Report Judge abuse at 7. but death prosecutor originally sought his on the basis of a evaluation psychiatric withdrew request life jury of to the defendant. Stevenson sentenced (Stevenson), Trial at 7. Report Judge without of the parole. 61): (Questionnaire Trial No. Report Judge (Russell Duane), Wn. App. McNeil at date of offense: 17 Age (No. (codefendant McNeil of Herbert Rice
Russell Duane aggravated trial two counts of guilty prior to 70)).pleaded and first for death of Nickoloff degree Dorothy murder (as McNeil, death Mike Nickoloff. accomplice) an of elderly were (ages at 478-79. Both victims App. Wn. 82) death, badly muti- and and stabbed to their bodies (McNeil), 8, 9. the Trial at Judge lated. Report (by found circumstances were aggravating The following admission): and degree burglary concealment of crimes; common of those who committed identities victim; than murder scheme or with more one plan first degree in furtherance of committed the coruse of and (McNeil), at 5. mit- the Trial Two Report Judge burglary. age cited: the defendant's circumstances were igating lack of significant criminal history. of the Trial Report Judge (McNeil), at 6.
The prosecution gave notice it intended to seek the death penalty. trial, Before the State agreed withdraw its request *20 for the death in for exchange guilty McNeil. pleas by McNeil was sentenced to two consecutive life sen- exceptional tences without parole. of Report (McNeil), the Trial Judge at 13; McNeil, 59 478, Wn. at App. 479. 67):
Report of the Trial Judge (Questionnaire No.
State v.
Cummings (Susan), 44
146,
Wn.
App.
545,
P.2d
review
denied,
Age at date of offense: 16
Susan was convicted Cummings of aggravated first degree murder. Cummings, Wn. at 148. App. The following aggra- vating circumstances were found: murder in of, the course furtherance of or flight from robbery, first degree, and rape, first degree; intent to conceal commission of or of identity persons the committing crime of and rape murder. of Report the Trial Judge Walla (Cummings), Walla Cy. cause 85-1- 00044-4, at 5. Another factor aggravating cited was the vic- tim's advanced years. Report of the Trial Judge (Cummings), at 13.
The trial judge there reported was no credible evidence of statutory mitigating circumstances, Report of the Trial Judge at (Cummings), and two nonstatutory mitigating circum- stances: the defendant's and age; the fact the defendant did not use the that weapon caused death. of the Trial Report Judge (Cummings), at 7.
The trial judge noted in the posttrial questionnaire there were at least four other teenagers involved in the kill- No other ing. cofelon, however, received a sentence of life without release. this Despite acknowledged disproportional- of ity sentence, the trial judge had no alternative but to impose sentence of life imprisonment without release. Report Trial Judge at (Cummings), 13. 70): of the Trial
Report (Questionnaire Judge No. (Herbert Rice, A.), Jr. date of offense: at
Age (No. 61) (codefendant McNeil of Russell Rice Herbert A. 43)) (No. was con- Rice confused with David and not to be murder for degree aggravated counts of victed of two (as accomplice) an of Mike Nickoloff and the death The trial at 553. Rice, 120 Wn.2d Nickoloff. Dorothy death of aware of torture and were victims suffered found both judge murdered with brutally suffering; other's both were each victim minutes for wounds; many it took dozens of stab Trial Judge elderly. Report victims were die; both 88-1-00427-2, at 8. (Rice), Yakima cause Cy. circumstances trial, following aggravating At identity persons committed to conceal found: murder scheme victims; common crimes; committing multiplicity burglary course of first degree or committed plan; (Rice), at 5. of the Trial Judge robbery. Report mitigating claimed a list of long the defendant Although history limited criminal his including youth, circumstances *21 disturbance, the trial judge reported emotional and extreme was no credible evidence of that in the court's there opinion the Trial Judge circumstances. of statutory mitigating Report (Rice), at 6-7. was but the jury
The the death sought penalty, prosecutor (11 unanimous verdict as to its imposition unable to reach a to two Rice was sentenced death, 1 for life in prison). release the of possibility of life without consecutive sentences in the questionnaire The trial commented judge or parole. inappropriate. life sentence was given that he the thought (Rice), at Judge the Trial Rice, 555; at of Report 13. 110): No. (Questionnaire Judge of the Trial
Report (Michael 58 Wn. noted at E.), unpublished opinion Harris App. offense: 15 at date of
Age 111)) (No. (cofelon Massey of C. Barry E. Harris Michael murder. first degree of aggravated was convicted murder was found: circumstance trial, At one aggravating (Har- Judge the Trial of robbery. Report a during committed ris), 87-1-01354-7, Cy. Pierce cause at 5. The trial judge in made no notation the posttrial questionnaire regarding circumstances. The not mitigating prosecutor did seek the death Harris penalty. was sentenced to life in without prison possibility release or parole. Ill): of the Trial
Report
(Questionnaire No.
State v.
Judge
C.),
Massey
(1990),
60 Wn.
(Barry
App.
P.2d
denied,
cert.
Age at date offense: 13 (cofelon (No. 110)) Barry C. of Michael Massey E. Harris was of aggravated convicted first murder for the degree death of Paul Wang. Massey, 60 Wn. at 134. App. trial,
At two circumstances found: aggravating murder was committed and was during robbery; commit- ted to conceal commission of a crime and perpetrator. its of the Trial Pierce Report Judge (Massey), cause 87-1- Cy. 01354-7, The in at 5. trial made no judge post- notation trial circumstances. about questionnaire mitigating prosecutor did not seek penalty. Massey the death was sen- tenced to in prison life without of release or possibility parole. 122): Trial
Report Judge (Questionnaire No. (Ansel Court of 15786-1- Wolfgang) cause Appeals Hofstetter II; 15471-4-II (disposition pending).
Age at date offense: 16 Ansel Wolfgang aggravated Hofstetter convicted of trial, murder. At one circumstance degree aggravating of, was found: murder committed in the in course further- of, from, ance or in immediate first or flight robbery second Report (Hofstetter), of the Trial at 5. degree. Judge The trial made no notation judge posttrial question- *22 naire about circumstances. The did mitigating prosecutor not seek penalty. the death Hofstetter was sentenced to fife without the of release or prison possibility parole.
As the indicates, the death is not foregoing penalty gener- juvéniles on for murder. ally imposed degree first aggravated Further, the death is not for penalty generally imposed aggra-
467 the de rape when degree murder accompanied vated Lord, crime. v. is an at the time of the See State fendant adult 829, 942-46, 822 (Utter, J., dissent P.2d Thus, were authorization express legislative even if there ing). crime, at the juveniles were time of the persons to execute who fail to be and would disproportionate, such would punishment 10.95.130. under RCW scrutiny pass
m During Misconduct Prosecutorial Closing Argument argu- I also out that the prosecutor's closing write to point be improper ment at the was so it would phase if upholding for reversal even we were otherwise grounds the sentence of death. the charged, gener-
Where is defense improper argument the as well ally establishing impropriety bears burden from it. See State prejudice flowing Hoffman, as 93, are on the 51, Both patent Wn.2d on at least objected record before us. Moreover defendant Phase) vol. occasion, see Report Proceedings (Penalty one instruction, at and a which requested limiting Phase) vol. court denied. See Report Proceedings (Penalty 22, at 3523-28. if no conduct prosecutor's
Even
there had been
objection,
no
is so
ill
that
flagrant
is reviewable if it
intentioned
it
curative instruction could
eliminated the prejudice
have
93;
v. Belgarde,
Wn.2d at
engendered. Hoffman,
a case.
507,
by a says wife who he gun threatened her with a in '36. The little then, gun man with a gun September 26, little man with a on gun 1953. The little man with a big out at the resort when the got in fellow this man. He was the a ruckus with him. any There hasn't been change in yesterday, today, same and he will be to- morrow." Reeder, State v. 46 Wn.2d at Likewise, 891. in State v. Case, 49 66, 73-74, 298 P.2d 500 (1956), a prosecution carnal knowledge, this court held the deputy prosecuting attorney's closing argument mistrial, a compelled even absent a defense haye objection, because no instruction could cured the preju dice created. In Case the deputy he prosecutor suggested be lieved in the personally defendant's guilt, referred to the defendant's character herd", witnesses as "his entire Case, 49 Wn.2d at and stated further: "Is it uncommon person charged for a with a sex crime to be pillar society? a You can't pigeonhole [sic] characterise or this sort of top any segment crime in society. You can have the man, nation, the top man of the happened, even. It hasn't I sure, am but it could be. We have had men in the State
Department
that have been accused of things of that nature.
my
In
experience
own
it has occurred in the Seattle School
District, principals
convicted of sex deviations. It knows no difference. It is like a
accused,
of schools have been
charged and
disease. It
polio,
over,
is like
it hits all
pay any
it doesn't
is,
person
you
attention to who the
whether
had measles as a
child,
you
whether
had rickets or something.
something
It is
in
the brain and mind
goes
and
all over the area."
Case,
More
in
recently,
State v.
we
Belgarde, supra,
reversed the
defendants' conviction because the
made
prosecutor
prejudi-
cial comments to the jury about
defendants'
ties
alleged
to the
(AIM),
American Indian Movement
a
he charac-
group
terized as a "deadly
of madmen" and
group
"butchers". Bel-
garde,
Wn.2d at 506-08. We reasoned:
inflammatory
These
comments
appeal
deliberate
to the
jury's passion
prejudice
and
encouraged
it to render a
verdict
Belgarde's
based on
associations with AIM rather than
properly
flagrant, highly
admitted evidence. The remarks were
prejudicial and introduced "facts" not in evidence.
at
Belgarde, 110 Wn.2d
507-08.
"
reaffirmed our
in
reasoning
We
Case that
miscon-
'[i]f
it,
is,
duct is so
that no instruction
flagrant
can cure
there
effect,
trial
a mistrial
a new
is the
and the manda-
only
tory
you believe that his drug activity was part of the root of this problem. yet And juvenile California, when he's in detention in exposed not any drugs, what's he do. He exposes himself Well, he doesn’t have drugs as an excuse there. What excuse does he does he have having have when he's dog? sex with the What excuse brother, raping when he's his little or his sister? Or fantasizing about his grandma, having sex with her? (Italics mine.) Phase) Report Proceedings (Penalty vol. at 3540-41. In rebuttal closing argument he stated: brother,
How he treats his rapes anally. him he treats How people, burgles houses, other steals, [sic] their dope, smokes drops out of school. That's what we have here. We have a sitting right crimewave there. (Italics mine.) Phase) Report vol. Proceedings (Penalty at 3579.
References to Furman's acts of sexual alleged deviancy fatally are far more than the remarks we held damaging in the cases discussed above. They repug- prejudicial extreme, in the and at best would have distracted the nant its mandate to focus on the crime its jury statutory from decide whether there were sufficient miti- circumstances leniency. circumstances to warrant See RCW 10.95- gating .060(4). contends the trial court had admitted already
The State so phase, at the these references could guilt this evidence because the heard them prejudicial jury not have been maintains the statements had earlier. The State also some correct, value. Even the State is assuming arguendo rebuttal would still be closing argument improper the prosecutor's for reversal. grounds We sexual acts resulted convictions. alleged None Bartholomew, held in State v. factors that evidence of nonstatutory aggravating convictions, evi limited to the defendant's record of
must be
admissible at the guilt
dence that woúld have been properly
to rebut
the defendant's
and evidence
phase,
designed
Bartholomew,
See
[No. 1993.] 60036-8. En Banc. Respondent, Jones, Walter Stebbins, v. Arlen
et al, Petitioners.