State v. Kwan Fai Mak

Furthermore, we it would be trial. believe aspect of finding authorities to have expect law enforcement unreasonable in Ringer prior to its line rule drawn bright foreseen the Ringer In sum, the rule announced has announcement. function of a criminal truth-finding do with little to clearly disrupt would retroactive application and considerations, we justice. Weighing these administration rule announced exigent conclude the circumstances retroactively Ringer apply should not to cases on collateral denied. petition review.

Dolliver, C.J., JJ., and Brachtenbach, Utter Cun- Tern., ningham, J. Pro concur. JJ., concur in

Dore, Andersen, Callow, Durham, the result. April En Banc. 49966-7.

[No. 1986.] Respondent, Washington, Kwan Appellant. Mak, Fai Lobsenz, Eric E. J. Thoenig, H. James Raymond

ggy Washington Appellate Association, Nielsen of Defender for appellant. Maleng, Prosecuting Attorney,

Norm and Robert S. Las- nik L. Downing, and William Senior Deputies, respon- for dent. J.

Andersen,

Facts of Case aIn crime which set a new in gauge cowardly for murder state, the Wah Mee Club in downtown Seattle's Inter- national District was robbed and all of its patrons and employees were shot in the people head. The three armed who perpetrated up this deed held the club at gunpoint, hog-tied and robbed the men and woman the club and then systematically each them in they shot of the head as lay bound and died helpless. Twelve there on floor of Club; the Wah Mee shortly one succumbed afterward at Hospital; Harborview and the 14th victim survived to iden- tify the perpetrators, defendant, including Kwan Fai Mak, whom he knew. presented

The evidence at trial overwhelmingly estab- that Mak planned, supervised lished helped commit robbery systematic the armed murder cold blood of beings 13 human up cover of an robbery establish- ment where was he known. convicted the defendant all 13 counts of

aggravated degree murder the first and the 1 count of first degree assault with which he was In charged. special sentencing proceeding conviction, which followed the same also unanimously determined beyond rea- sonable doubt that no sufficient mitigating circumstances leniency. existed to merit In accordance with this state's law, (Laws capital punishment RCW 10.95 ch. 138), the judge then sentenced the defendant to be executed. have

We reviewed the entire record of the 2-week trial 1,000 and have considered the pages appellate almost We conclude briefs filed this case. fairly the law and tried, under convicted and sentenced the sentence

affirm on all counts and the conviction death. pursuant mandatory review is before us on case

RCW 10.95.100. Issues many assignments raising being as of error

There place in the issues, will be same each issue set out opinion respect issue, rather our decision with point setting together in the the issues out at this than opinion. all counsel, of and to avoid For the convenience unnecessary the confusion, have endeavored to discuss we nearly possible in the in the order which issues as defendant raised them. Decision deputy prosecuting attorney, in clos- Did the Issue One. present argument guilt phase

ing during trial, the a the of presented theory with the at the case inconsistent one of separate perpetrators of the of one of the other the trial Ng? Benjamin crime, Kin clearly that the The record demonstrates Conclusion. argument attorney closing

deputy prosecuting in at the end theory phase present guilt of the case did not a the presented the other inconsistent with the one at the case defendant's trial. prosecutor closing argument,

In has wide latitude express from the evid to draw and reasonable inferences argument Challenges made in final must ence.1 to remarks they judged in which are made.2 More be the context determining over, trial court has broad discretion the challenged portion argument affected whether the Rose, (1963); Harvey, State v. 382 P.2d 513 1State v. (1983). App. Wn. 664 P.2d (1976); Kroll, Papado State v. 2State v. 397, 400-01, App. poulos, P.2d 59 34 Wn.

ggg verdict, jury's showing prejudicial and the burden of error is on the defendant.3

The defendant at Benjamin Ng's claims that who held the murder argued Benjamin Ng was shots, and fired whereas the State weapon argued the fatal in the trial it was the case that present Mak who and fired the fatal shots. weapon held the same This, defendant, him of his to due argues deprived right process. factually This incorrect argument proceeds from process. basis and the denied due defendant Mak was not This by Benjamin Ng same was made his contention In appeal. deprivation there ruling prejudice was no process case, due we held as follows:4 In theory. both trials the one basic prosecutor argued He planner maintained that master who Mak was the carry recruited his him reliably help ruthless friend toNg plan. out his in both prosecutor emphasized also trials that mur- convict the defendant of aggravated der, need actually not determine who fired trial, shots that killed did prosecutor In Ng's victims. argue that Ng Contrary Ng's fired the Ruger. assertion, however, prosecutor at Mak's trial never that Mak argued fired that gun.

A that, review of the record indicates arguably, prosecutor presented inconsistency factual one the two trial, trials. In Ng's prosecutor argued the Ruger and, trial, Ng's; argued Mak's he pur- Mak chased the if gun. arguments inconsistent, Even these are the inconsistency the bearing has no on basic issues at Furthermore, trial. trial, Ng, unlike Mak testified at his a placing body new of evidence the require on record. To the prosecutor to make identical the arguments when record contains well different evidence contradicts the established sonable State v. rea- proposition prosecutor may argue that a See

inferences trial. presented from facts at Kroll, 87 Wn.2d 558 P.2d 173 That holding dispositive of this issue.

3Harvey, at 740. (1985); Benjamin 763, 777-78, Ng, see also 4State v. pages 768-70. denying defendant's Did the trial court err Issue Two. by dep- question on asked a a mistrial based motion for uty prosecuting attorney during of a cross examination expert witness? defense Considering whole, and the record as a Conclusion. may

bearing have in mind information the that merely question from the was cumulative on derived question shootings, did that the went issue who prej- unanswered, we was conclude that the defendant question. by the udiced Phillip Lindsay, a

At trial the defense called Dr. Seattle psychiatrist, as a This witness. witness had testified at the Benjamin Ng Ng earlier trial of suffered from demen- tia. deputy prosecutor examination,

On cross as the was questioning Lindsay diagno- concerning Dr. of his basis Ng, following colloquy sis occurred: [Deputy history [Benja- Q. Prosecutor] You from took Ng] regards injuries? min to head Lindsay] [Dr. A. Yes. you aspects him? Q. life with And discussed other of his A. Yes. your diagnosis? making In Q. terms of Right.

A. [Ng] you [the . it was . . defend- Q. And . . . told people . . . [club], at the Mak] ant who shot he? didn't question, objected point

At this defense counsel motion for mis- it and reserved a the court to strike asked argued conclusion the witness' testi- to be trial objection. mony. the defendant's The trial court sustained testimony, jury was ended his After the witness the mistrial motion. court considered the trial excused and diagnosis of if his he had based The the doctor court asked made as the codefendant on statements codefendant The answered the affirmative. doctor massacre. for mistrial. motion the defendant's trial court then denied question originally proceeded objected stricken nor ordered answered was neither

701 the court. placed Benjamin this question

The defendant claims that (Mak's) testimony before the and violated his Ng's his accuser. right constitutional to confront in the to make position Since the trial best judge observations, she is accorded wide discretion firsthand he or 5 should with trial The trial court dealing irregularities. only prej has so grant a mistrial when the defendant been insure that nothing udiced that short of a new trial can fairly. affecting will be tried errors the out Only defendant trial will come of the be deemed prejudicial.6 determining In whether a trial irregularity prejudiced deny trial, so defendant his to a fair we right (1) (2) will consider: the seriousness of the irregularity; (3) evidence; whether the statement at issue was cumulative the jurors properly whether were instructed disregard remarks of supported evidence; counsel not by the (4) whether the prejudice was so grievous nothing short of a new trial remedy could the error.7

We cannot conclude that the trial court erred when it First, denied defendant's mistrial motion. the serious- ness of irregularity was not major. question was never answered. perceive We faith in prosecutorial no bad asking question hearsay since statements are generally purposes Second, admissible for diagnosis.8 medical it was cumulative on the issue of whether the par- ticipated trial, shootings. point At this evi- already dence had presented been the State's case an (Mak) interrogating police officer that the defendant had Gilcrist, 603, 612, (1979); Taylor, 5State v. v. 60 Wn.2d 590 P.2d 809 State 32, 42, (1962). 371 P.2d 617 Gilcrist, Weber, (1983), quoting 6State v. (1984). 612; Hightower, App. 536, 547, See State v. 36 Wn. P.2d 1016 757, 761-62, Davenport, 100 Wn.2d P.2d 7Weber, at 165-66. 803(4).

8ER (Mak) all of the vic- him he was the one who shot told tims. perhaps although

Third, better had would have been question the stricken the or instructed the trial court disregard time, the end of it at the nonetheless at to disregard all to trial, the trial court did instruct jurors The are as evidence. remarks that were not intended presumed that instruction.9 to have followed

Finally, ruling mistrial, for the trial on the motion before by fully argument both counsel heard considered court and impact probable question on the unanswered had on supports jury. The record the trial court's decision prejudiced so that he was denied the defendant trial.10 fair admitting trial err in into Three. Did the court Issue pursuant seized

evidence the firearms to search warrants his from defendant's bedroom and from the bedroom of Benjamin Ng? confederate trial court did not its discretion abuse Conclusion. ruling that the the issues of firearms were relevant to premeditation.

intent and argues for the The defendant that it was reversible error appar- court admit were to firearms into evidence that robbery ently He not used the Wah murders. Mee and inflammatory prejudicial, argues that such evidence was right his to arms self- violated constitutional bear defense. within the admission of evidence is relevant of the trial and will not be reversed discretion court

sound Relevant evi- a manifest abuse that discretion.11 absent 9Weber, at 166. (1981); Hightower, See Evans, at 547. 10State v. 96 Wn.2d

Davenport, n.1. at 761 (1983); 421, ITT- State, 439, Goodell v. 671 P.2d v. 11Petersen (1978); Servs., Inc., Maicke 573 P.2d Support Federal RDH, Inc., App. 683 P.2d 37 Wn. exis- make the tendency to having any is "evidence dence the determina- consequence is of to any fact that tence of than it probable less probable action more tion of the Moreover, trial court evidence."12 without would be if value is sub- probative evidence its may exclude relevant prejudice.13 unfair stantially danger outweighed are left to the sound discretion Such determinations theory of party's to establish a tending trial court.14 Facts held to be relevant.15 generally the case will be relevant Here, question directly were the firearms probative and their premeditation the issues of intent linked They effect. outweighed prejudicial value (Mak Benja- had sold Benjamin Ng guns accessibility to min and demonstrated the defendant's Ng) in the testimony a relevant matter weaponry, light to, Moreover, under the facts as testified the firearms case. robbery and murders. probative planned were as to who by was Any possibility prejudice dispelled of undue testimony wherein he admitted involve- defendant's own firearm illegal including illegal ment various activities constitutional, error, evidentiary no sales. There was the firearms into evidence. admitting (1984), v. relied Rupe, State 683 P.2d 571 There, defendant, firearms by distinguishable. on into evidence at the owned the defendant were admitted relationship no to phase capital They of a case. had the testi presented the crime committed. The State also this the State mony experts. of several firearms From impose the defendant's as a reason to argued dangerousness case, there Rupe, In the unlike penalty. present the death 12ER 401.

13ER 403. 772, 782, Coe, Wn.2d 684 P.2d 668

14State v. 101 Co., 15Fenimore v. Donald M. Drake Constr. Maicke, (1976); at 752. argument that consti- defendant's exercise of "that no arms) (to right meant that he deserved the bear

tutional Rupe, penalty. . ." at 707. death it denied Did the trial court err when

Issue Four. discovery request approximately pages for defendant's Department's Police internal the Seattle of materials investigation files? materials The defendant's claim that the

Conclusion. may question his defense led evidence critical to have to materiality showing a was insufficient to establish request. grant compelled court to would have the trial requested pretrial hearing, During a defendant turn these files. The State answered over from the discoverable material had turned over all "spot in camera check" file. The trial court conducted question bore out the materials and when that request. review of assertions, it denied the the State's to failure The defendant now claims that the trial court's discovery preserve rules and the files contravenes right appeal. him his to denies duty prosecuting attorney to disclose is under a preserve material and favorable evidence that is generally be held to a failure to do so will right fair trial.16

violate accused's constitutional discovery Additionally, scope is within the however, be disturbed and will not sound discretion of the trial court discretion.17 absent a manifest abuse of that requests disclosure, he further must If an accused requested is material information show that preparation possibility The mere defense.18 the accused's (1963); Maryland, 16Brady 10 L. Ed. 2d S. Ct. 1194 U.S. (1984); 772, 783, Renfro, Coe, P.2d State v. Wn. v. 668 28 State 684 902, aff'd, 737, 251, (1981), App. 248, 96 P.2d cert. 1295 Wn.2d 639 622 P.2d (1982); 842, 86, denied, 103 S. Ct. 94 CrR 4.7. L. Ed. 2d 459 U.S. 74 168, (1982). Lauterbach, App. P.2d 17State v. 33 Wn. 1320 4.7(e)(1). 18CrR might helped have

that an item of undisclosed evidence might trial, defense or have affected the outcome of the "materiality" however, not establish the constitu- does tional sense.19

Our review of the this case record demonstrates speculative concerning nature of the defendant's claim sought. showing requested the files He no made that the contrary, information was material his To the defense. "may his claim have is that files contained information "might critical to the defense"20 or lead to other evi- showing This not sufficient to a establish dence."21 materiality discovery compel grant such as to the court to nothing suggested Moreover, at trial the avail- request.22 ability withholding exculpatory information that being could have affected the outcome trial.23 That required so, the trial court was not an in conduct camera Department's review of the Seattle Police internal investi- gative necessary files, is not for court to address assigned questioning propriety error of the in cam- era review and record made thereof. The trial court did denying not abuse its discretion the defendant's discov- ery request. excusing prospec- Five. Did the err in trial court Issue juror juror impose

tive for cause because could penalty? death properly The trial court ascertained that the Conclusion.

prospective juror question against held an bias actual Agurs, 112-13, 19United States v. 427 U.S. 49 L. Ed. 2d 96 S. Ct. (1976); Gerber, 214, 218, App. (1981); State v. 28 Wn. 622 P.2d 888 (1978). Hudspeth, App. Dictado, 22 Wn. P.2d 548 State v. Cf. 298-99, 20Opening Appellant, Brief of 122.

21Opening Appellant, Brief of at 129. Gerber, supra.

22See State v. Dictado,

23See at 298. granting penalty, abuse its discretion and did not death challenge juror for cause. to the the State's colloquy following During examination, voir dire juror for cause: who excused occurred with the penalty phase, get of the If one Q. [The Court]: we you penalties considered is death. How would that will be penalty? your feelings . . . about the death describe best [Prospective a and as I've stud- Juror]: A. ied the I'm Christian ... the button I come to the conclusion life Christ have of myself, push I'm sure. I that could not you juror room, back to the If a and went sat as Q. and beyond you a doubt that reasonable were convinced proper proven was the sentence death the State had you law, answer that and under the could the facts under question yes? A. No. juror prospective was then excused. prospective by excluding this claims that

The defendant inability impose juror of to the death for cause because her religious beliefs, trial court violated her due Const, juror prohibits "in a § art. 11 which exclusion of religion". consequence opinion of his matters of on party provided Legislature to an that either has by peremptory may juror prospective chal- a action excuse may Challenges lenge be either for cause or for cause.24 challenge particular.25 general can causes Particular or (1) of the facts is the existence be a bias as when for: "such juror" disqualifies judgment ascertained, law (2) bias);26 (implied of mind of a state on existence "the part juror . . the action . which in reference of the person try challenged cannot that the satisfies the court prejudice impartially substantial and without issue 24RCW 4.44.130. 4.44.150.

25RCW 4.44.170(1).

26RCW (actual bias);27 (3) rights party or the challenging" of a physical juror existence defect would render the or her incapable performing his duties without prejudic- ing rights the substantial the party challenging.28

If the trial court determines prospective juror actually biased, impliedly then juror must be However, juror excused for cause.29 with preconceived disqualified need if ideas not be he or she can these '"put aside and decide the case the notions on the basis of evi- given by at the trial and the law him given dence the court."'30 settled;

The law in this state is a trial court does not by its discretion a excusing prospective abuse juror for in capital case when the prospective cause will juror penalty.31 the death In impose determining a pro whether spective juror properly excused for cause because his to inability impose sanction, or her the death reviewing courts focus on whether juror the holds an or an actual implied bias.32 In rejecting an argument like the made one here, this in Leuch, court State v. 331, 336-37, 198 Wash. (1939), 88 P.2d 440 quoting People Rollins, 793, v. 179 Cal. 797, (1919) P. 179 209 observed: 4.44.170(2).

27RCW 4.44.170(3).

28RCW Gosser, 433, 428, (1982); App. v. Wn. 29State 33 656 P.2d RCW 4.44 514 see 6.4(c)(1). -170; CrR 30Gosser, 433, White, 551, quoting 569, at State v. 60 Wn.2d P.2d 942 374 denied, (1962), 883, 113, (1963); cert. U.S. 375 11 L. Ed. 2d 84 S. Ct. 154 RCW 4.44.190. Leuch, Jeffries, 411, (1986); 398, v. v. 31State 105 Wn.2d 717 P.2d 722 State 331, Illinois, 335-37, (1939); Witherspoon 88 198 Wash. P.2d 440 see v. 391 U.S. 776, 20 L. Ed. 2d 88 S. Ct. 1770 Witt, 841, Wainwright 412, 32See v. S. Ct. 83 L. Ed. 2d U.S. Smith, (1985); (1968), part, vacated in Leuch, (1972); 33 L. 2d 408 U.S. Ed. 92 S. Ct. 335-37. provision Certainly to be held cannot the constitutional reasonably preclude looking legislation to the exclusion any any person by challenge whose in case of from from cause whatever mind is he such condition try in accord with the the cause and determine cannot thereto.[33] applicable law quoted pro- portion the the record shows spective juror actual bias in the case demonstrated instant juror penalty.34 if against the The court asked death responded impose and she death she could removing negative. did not err The trial court juror for cause.35 denying defendant's Did the trial court err Six.

Issue sequester jury during trial? the entire motion to protective measures the Given the extensive Conclusion. preju- jurors were not court used to insure that publicity case, did not trial court on the diced separate jury to when it its discretion allowed abuse commencing prior deliberations. to coverage argues newspaper The defendant inflammatory, uninterrupted sensational, case was its dis- massive; court, therefore, and that the trial abused retiring prior allowing separate cretion on the verdict. deliberate judge state,

In this a trial has broad discretion jury sequestered determining a be whether not should prior during to trial, For defendant the to deliberations.36 discretion, must indicate the abuse of that record claim publicity during the trial or the nature of the that either publicity probability jury's exposure to that created the Fields, 680, Rptr. People 329, v. 197 Cal. 803 33See also Cal. 3d 673 P.2d 35 (1984). denied, 469 U.S. (1983), cert. 83 L. Ed. 2d 105 S. Ct. 267 4.44.170(2). 34See RCW Gosser, Leuch, supra. supra; supra; v. Jeffries, State State v.

35See Wixon, 36Dictado, 299; App. P.2d State v. 1033 Wn. at prejudice.37 is clear. mea- record The trial court took extensive any jury prejudiced by to was

sures insure the not publicity regarding During jury selection, outside case. the example, for trial court itself conducted voir individual prospective jurors impact pre- dire of to determine the publicity. required prospective jurors It trial also to answer questionnaires assessing impact. detailed aimed at such began, jurors daily Once the trial were instructed they any exposure reports were to avoid to media on the importance repeatedly impressed trial upon of this was Every day morning them. from arrival in the to dis- day, jury kept together missal at the end of the was supervision Finally, jury under sequestered of the bailiff. was guilt

when it undertook deliberations on the phase throughout penalty phase of the case and then Although widespread the trial. this case did receive media coverage during coverage trial, both before and was primarily showing factual no has been made that the actually exposed it. to The trial court did sequester declining not abuse its discretion in during prior long beginning its deliberations.38 rulings Seven. Did the err in trial court it made Issue during cross for examination of two witnesses the State? Although prosecu- an in a accused criminal Conclusion. great cross-examining tion is afforded latitude State's scope bias, witnesses to show of such cross examination remains within the sound discretion of the trial court and ruling the trial court's will be disturbed absent a show- ing facts, of abuse. Under the no such abuse was shown here. proposed trial,

At the defendant two of cross-examine participation their the State's witnesses as to with the Ng, (1985); Dictado, Benjamin 37State v. 713 P.2d 299. Wixon, 38See at 74.

710 hoped robbery. alleged to The 1981 defense in an thereby favor- were accorded that these witnesses establish exchange tes- for their authorities treatment able timony in this trial. proposed first wit- examination of the defense cross

The police provided after he have revealed that ness would attempt to the to recruit information as defendant's with robbery killings, he then con- Wah Mee him for the robbery involving himself and both fessed to a 1981 examination court ruled that cross The trial defendant. providing to his information witness as motives of this open police the door to redirect examination would initially provided concerning he in which the context State, on redi- This have allowed would information. respect question rob- with to the 1981 rect, bery. the witness ruling, did not cross- defense counsel Because of testifying. for this witness as to his motives examine proposed witness, cross defense As to the second several months after examination would have revealed that connecting providing police with the defendant information massacre, Wah he admitted his involvement Mee too robbery. trial court the defendant the 1981 The with proffered an "insuffi- ruled that the cross examination was therefore, was, bias", cient foundation to establish irrelevant. ruling assigns to the trial court's

The defendant error impeachment prosecution would witnesses of these two open that the defendant the door to evidence on redirect robbery. participated uncharged in scope within the sound lies cross examination disturbed court and will not be discretion discretion.39 accused a manifest abuse of that absent prosecution course, is, of afforded considerable criminal cross-examining state witness an essential latitude _ denied, (1984), Campbell, cert. P.2d 929 39State Knapp, (1985); App. State v. U.S._, 14 Wn. L. Ed. 2d 105 S. Ct. 2169 107-08, (1975); P.2d 898 ER 611. bias,40 show and has the to a right cross-examine witness bias, to elicit facts showing the witness' or inter- prejudice est.41

As this court held an analogous situation 455, Gefeller, (1969), 76 Wn.2d 458 P.2d 17 however: It would be a curious rule of evidence which allowed one party up to a bring subject, it at a where drop point him, might appear advantageous bar and then all party inquiries other from further about it. Rules of designed are evidence aid truth. establishing the To receiving close the door after only part a of the evidence only suspended not markedly advantageous leaves matter point air at a

to the party opened who door, it is well might proof but limit the Thus, to half-truths. that, sound general a rule when a party up a opens on subject inquiry direct or cross-examination, he contemplates the rules will permit cross-examina- examination, tion or redirect be, as the case may within the scope the examination in the subject which mat- ter was introduced. first (Citations ours.) omitted. Italics The trial court did not abuse its discretion ruling it did.42 Did the trial err Eight. court when it denied

Issue defendant's motion to suppress evidence seized during search of the defendant's pursuant bedroom search warrant? carefully trial court weighed the testi-

Conclusion. mony and found as a fact the police had valid consent they when initially entered the defendant's home and bed- room. The subsequent was, issuance of the search warrant therefore, proper and the trial court did not err when it declined to suppress the evidence obtained as a result of the search pursuant conducted to the search warrant. Tate, 107-08, 40Knapp, citing App. at State v. Wn. 469 P.2d 999 (1970). Robbins, 41Knapp, citing at State v. 107-08; 403; Knapp, 42See ER ER 611. argues to search the consent

The defendant voluntarily; freely given was defendant's bedroom pursuant evidence seized thus, claims that he prior by exploitation of the warrant was obtained search sup- namely illegality, consent, be invalid and should disagree. pressed. We following issue, facts: court found the the trial

On this opened which was knocked on the door The officers appeared. soon Defendant's brother defendant's father. Sergeant briefly badge, informed showed his Sanford the homicides and in the residence of individuals two Benjamin looking for Kwan Mak fact that he Ng. response they in. In to this come He if could asked opened and nodded. the door further the father indicating response in the affirmative. made a brother Finding 7. of fact Ng Ben if defendant or inside, officers asked Once Ng responded present. that Ben was The brother

were not but that he wasn't if was. sure Finding of fact 8. they Sergeant if asked could inside, Sanford Once presence out verify or absence. check defendant's to pointed assent, the bedroom of indicated

father defendant, "Willie". and said

Finding of fact 9. opened Sergeant the door and entered Sanford patted bulging and down the bedcovers. While bedroom plain view a observed holstered hand- in the room he appeared large

gun what to be amount of cash. and Finding 10. of fact place weight

Reviewing on considerable courts findings especially findings fact, when the trial courts' contradictory testimony.43 Nevertheless, arise out independent reviewing own examination make its court will rights are fundamental constitutional when of the record property, and a warrant without The search of involved.44 Rhay, 43McNear v.

44McNear, at 535. voluntary probable proper cause, without but with and consent, valid under Fourth Amendment.45 Whether freely given question not is a to consent fact by totality circumstances,46 be determined of the and by convincing is on burden the State to show clear and given freely evidence that the consent was informed and voluntarily.47 and testimony

The trial court heard believed the of the investigating testimony and, detective based on that therefrom, reasonable inferences found that consent freely given. Moreover, enter the house and bedroom was only "plain view" observations were thereafter made until the search warrant was issued. Based on our review the totality sup- record, we conclude that the of circumstances port findings.48 the trial court's ruling Nine. Did the trial err in court Issue misrepre- search warrant affidavit contained no material sentation? support The affidavit in of the search war- Conclusion. misrepresentations.

rant did not contain material proper by search warrant was and the trial did court not err suppress refusing the evidence obtained as a result it.of The affidavit states that the sole survivor identified two gunmen as the codefendant and "an individual known . . . [the survivor] [defendant's] sole the . . . tape last placed A name". was made of this statement and was listening evidence for trial court to hear. After tape, the trial court concluded that the survivor did suppress in fact state the defendant's name and declined to the evidence as a result of obtained the search conducted Mathe, 572, 576, (1983). App. McNear, 45State v. 35 Wn. P.2d 668 599 See at 535; Rodriguez, 758, App. 763, (1982). State v. 32 Wn. Bustamonte, 218, 854, v. 46Schneckloth 412 L. U.S. 36 Ed. 2d 93 S. Ct. 2041 (1973); Mathe, 576. at 47 Shoemaker, 207, 210, (1975); Mathe, State v. 85 Wn.2d P.2d 533 123 at 576. McNear, Mathe, 535-37; 48See at 576-77.

7X4 to the warrant.

pursuant however, tape that establishes argues, The defendant individual identified another the sole survivor using a result of that, therefore, recovered as the evidence be suppressed. search warrant should validity of a An is entitled to challenge accused duty issuing The of the judge warrant affidavit.49 search cause exists to issue war probable whether to determine rant, will be accorded considerable and that determination will be resolved courts.50 Doubts appellate deference favor of the search warrant.51 evi- case, decision to admit

In the trial court's by the defendant's own independently supported dence is he had admitted testimony. At the survivor acknowledged tape listened to magis- made to the showing name. had his last used issuing of discretion and no abuse trate was sufficient pursu- undertaken search warrant was shown.52 search was valid. ant the search warrant allow refusing Ten. Did the trial court err Issue eyewitness on identification expert testimony proffered guilt phase of the trial? by declining The trial did not err court Conclusion. testimony eyewitness identification. admit the on trial, defense counsel phase of the During guilt expert concerning an testify to have a witness offered unreliable. eyewitness can make identification factors that to exclude this witness' tes- In the State's motion granting observed that appropriately the trial court timony, knowledge testimony is within the general "subject (1978); 154, 667, Delaware, L. 2d 98 S. Ct. 2674 49Franks v. U.S. 57 Ed. 438 120, (1984). 117, Haywood, App. Wn. P.2d 1337 State v. 684 (1984). Hightower, App. P.2d 1016 50State v. 36 Wn. denied, Fisher, 457 U.S. P.2d cert. 51State 1355, 102 Ct. L. Ed. 2d S. Hightower, at 544.

52See

7X5 lay and that cross examination of experience jury" and a eyewitness would reveal inconsistencies. proof an offer of outlining The defense submitted testimony. It indicated that the witness would have offered (1) amnesia persons suffering retrograde from testified that: (2) existence; person experiencing aware of its may not be in in gaps or fills order to gaps memory perception (3) mind; within the complete logical picture suggestive influences immediately the incident questioning following (4) fill uses to type person gaps; of information by used fill the post-event person information is also (5) gaps; subject's and confidence his version of the facts increases each time it is recalled and recounted to another. the trial argues court abused its dis- allowing testify

cretion the witness to and cites ER 702: scientific, technical,

If specialized or other knowledge trier of fact will assist the to understand the evidence or issue, to determine a fact qualified witness as an skill, expert by cation, experience, edu- knowledge, training, or may testify thereto the form of an opinion otherwise.

The decision of whether or not to admit expert opinion evidence is within the discretion of the trial court,53 we discretionary will not disturb a ruling of this sort absent a showing of abuse.54 There was no abuse shown here. Did the trial court err in excluding, at

Issue Eleven. trial, both the guilt phases of the evidence concerning accomplice a claimed of the defendant? The trial court did not abuse its discretion

Conclusion. excluding testimony. trial, At defense counsel offered evidence that Cook, 165, 174, (1982); 53State v. App. see State v. 31 Wn. 639 P.2d 863 (1985). Guloy, 104 Wn.2d 705 P.2d 1182 Petrich, 54State v. See ER 702. party to the crimes at the claimed would connect a third proof Wah Club. offer of consisted the follow- Mee (1) plan ing: party gambling third had a to control a certain (2) party District; in the International contacted Ben- Ng, perpetrators jamin one of the crimes at the Wah (3) day robbery killings; Club, and Ben- Mee on the party's jamin Ng's was at that restaurant for an hour car (4) party Ng crime; sell a before the proof that offered to bullet- (5) party crime; a a vest week before gambling District club that for an International ''banker" (6) anonymous just down; an informant told had closed and young party gang police members. that this directed proof offer of did not trial ruled that the defendant's court necessary party "the connect the third to the crime with specific to render admissible. factual connection" ruling argues that as it did the trial

The defendant guilt deprived evidence at the court of critical phase error. the trial and therefore committed a defendant can introduce evidence con

Before charged, proper person necting with the crime another in State v. be The rule is stated foundation must laid.55 (1932): 664, 667, 1 Downs, 13 P.2d 168 Wash. testimony received, must can there be Before such be proof crime, such a train of

such connection with clearly point as tend out some- circumstances facts or one besides the accused guilty party. as the omitted.) (Citations perhaps rule The rationale for this People explained Mendez, case, v. 193 in a California best (1924), approval this 39, 52, P. 65 cited with 223 Cal. P.2d Kwan, 104 in State v. 174 Wash. court (1933): this rule a sound basis for us that there is

It seems to upon fundamentally the same consid- rests and that it eration which adoption early of the elemen- led to the tary admissible must be both rules evidence be (1980), Jones, citing App. v. P.2d 190 State v. 26 Wn. 55State 664, 13 (1933); Downs, Kwan, 168 Wash. P.2d P.2d 104 174 Wash. upon necessity relevant and material. It rests orderly expeditious, trials of cases must be both that they end, must come to an and that it should be necessary scope logical end. To this end it is that the inquiry strictly unimportant into collateral issues must be quite apparent limited. It is if evidence of upon part persons motive alone of other were involving killing admissible, that in a case of a man aggressive might who had led an active and life it eas- ily possible produce be for the defendant to evidence tending persons to show that hundreds of other had against deceased; some motive or animus that a many great days might pur- be consumed in the inquiries expected suit of which could not be to lead to any satisfactory conclusion. The trial record reveals that several items that prove light through defendant offered to did come to testimony support witnesses, of other but failed to defense proof. only counsel's offer of connection shown alleged "accomplice" between the and the crimes hearsay whereby Wah Mee Club was a statement accomplice Benjamin Ng claimed offered to sell a bullet- proof vest a week before the crimes were committed at the Contrary Wah Mee Club. contention, to defendant's this hearsay prove statement is because it was offered to alleged accomplice truth of the matter stated —that bulletproof Benjamin Ng.56 offered to sell a vest to The proof satisfy offer of did not the Downs test. Based on proper foundation, lack of the trial court did not abuse its by denying discretion admission of the evidence.

During special sentencing proceeding, the defendant again again, evidence, offered this same the trial court relevancy grounds. excluded the evidence on argues light holding Defendant that in of in our Bartholomew, 631, 645, State v. 101 Wn.2d 683 P.2d 1079 (1984) (Bartholomew II), the evidence should at least have phase However, admitted in been of the trial. as Bar pointed tholomew II out: 801(c);

56See ER ER 802.

718 requires statute Washington capital punishment evi- sentencing phase "any at the of relevant

admission probative regardless it to have value dence which deems . . admissibility under the rules evidence of its 10.95.060(3). provision this We have restricted RCW only Therefore, punishment. mitigation evidence relevant or not probative evidence which is excluded sentencing phase. at the (Italics ours.)57 regard this was proffered

The defendant's evidence probative. relevant nor neither Did trial court err when allowed a Twelve.

Issue he familiar with the testify police officer to the crimes involved prior last name defendant's case? on based argument decline to review an

Conclusion. We objection at trial was made rule evidence when one of a different rule of evidence. on the basis testified charge investigation officer police that he was familiar with examination on redirect in con- it mentioned last name before he heard defendant's objected Defense counsel on the with this case. nection In the in which this it was not relevant. context ground out, relevant, clearly prop- and the trial court came it was Now, argues objection.58 erly overruled objection the trial court should have sustained rule of other excluding violated the evidence because it at trial on this basis. objection crimes.59 No was made Ferguson, v. recently As we reiterated (1983), 131, 138, P.2d 68 Wn.2d (1984) (Bartholo Bartholomew, 645, 631, 57State 683 P.2d 1079 (1984); Rupe, State v. II). P.2d mew See also State v. 101 Wn.2d denied, (1982), Grisby, cert. 75 L. 459 U.S. Ed. 103 S. Ct. 1205 2d 58ER 402. 404(b).

59ER

it is well established specific is objection overruled and the evidence [i]f admitted,

question appellate court will not reverse on the basis that the evidence should have been excluded under a different rule which could have been, not, argued but was at trial. (2d Prac.,

5 K. Tegland, Wash. Evidence at 25 ed. § 1982); ER 103. The claimed error also does not warrant review as an raised error for first time on appeal under RAP 2.5. Did the trial court err when it denied

Issue Thirteen. the defendant's for motion mistrial based an improper on remark by made one of the detectives who searched the defendant's bedroom? whole, Considering the record as a and par-

Conclusion. ticularly the trial court's instruction disregard remark, detective's the defendant was prejudiced. not

At the beginning of trial defendant moved limine to exclude reference to marijuana during found search defendant's parties bedroom. The agreed that no such testimony would be presented. During the testi- mony of one the detectives who searched the defendant's bedroom, however, he mentioned a baggie "small of green vegetable matter" found the defendant's bedroom. Defense counsel objected instructed disregard it. The jury was excused the deputy prosecu- tor for apologized the officer's violation of the trial court's ruling. Defense counsel's motion for mistrial was denied. argues

Defendant although may error trial, itself warrant a new when taken conjunction with numerous other errors does warrant reversal. We dis- agree.

Again, the in the best judge being position to evalu- remark, ate potential of such a the claimed prejudice error will be reviewed under the abuse of discretion stand- record, ard.60 As read the remark appears we inadver- Weber, High (1983); 60State State v. tower, App. 36 Wn. P.2d backdrop against of this Furthermore, factual the tent. finding "green vegetable matter" some case, the mention of error whether is not reversible in defendant's closet the conjunction claimed in with other alone or considered wanted himself later testified that he defendant errors. The previously, drug dealing. a As discussed in to be involved only granted when a defendant has been be mistrial should nothing prejudiced of new trial can insure short a so that fairly.61 prejudice such was shown he will be tried No that at time. this case impaneled have a Should the trial court Issue Fourteen. penalty phase jury because, at the of the trial the new for jury guilt phase the trial, the heard evidence of of the uncharged committed but involvement defendant's planning three other crimes as about the crime well were never committed? which punishment capital mandate statutes

Conclusion. may impanel only a new the court the time penalty phase circumstances is when unforeseen for the jury. impracticable There reconvene the same make it here; hence, com- error was not no such circumstances were regard. mitted this presented

During guilt phase trial, the State the planned burglary planned and a evidence of two robberies according plans, were to be killed where, to the witnesses committed) (but robbery one were never which crimes tape. by victim was bound that was committed where the testimony, implicated According defendant that such evidence The trial court concluded all of these. probative to the issues the defendant's was relevant and knowledge purpose going to Wah armed intent, testimony rebut his own Club, as well as to Mee robbery killings would he no idea the effect that had properly balanced and The trial club. court occur against probative weighed its the evidence value of Gilcrist, P.2d 61State potential admitting before it.62 prejudice for

Then, trial, penalty phase in the the trial court instructed the could consider all of evidence previously during guilt phase. admitted challenges now the use of this evidence during phase.

The capital punishment statutes if a require guilt defendant's is determined jury, same jury penalty phase "shall" hear trial unless "unfore seen circumstances" it impracticable make to reconvene the same in which jury, impanel event the trial court will a new jury.63 intent, contrary legislative Absent is "shall" mandat Thus, ory.64 circumstances, absent unforeseen the trial court is to reconvene same required jury the for the penalty phase trial.65 of the

The in question statutory evidence related to the aggra- vating in jury phase circumstances found the the guilt the It case.66 was in properly guilt phase; admitted therefore, it was admissible in the penalty phase.67 Such evidence did not constitute a showing of "unforeseen cir- cumstances" requiring impaneling of a new at the penalty phase of the case. Fifteen.

Issue Is the defendant's death sentence exces- sive or in disproportionate penalty to the imposed similar cases?

Conclusion. We it not. hold is Saltarelli, 358, 361-63, (1982). 62State v. 98 Wn.2d P.2d 697 655 (4). 10.95.050(3), 63RCW Lewis, (1980). Nugent

64State ex v. rel. 93 Wn.2d Bartholomew, 173, (1982) J., 224, (Dolliver, 65State v. 654 P.2d 1170 (Bartholomew 1), concurring part, part) granted, dissenting State's cert. 463 1383, 3530, denied, U.S. 77 L. Ed. 2d 103 S. Ct. cert. 463 U.S. defendant's 77 L. Ed. 2d 3548 S. Ct. 10.95.020(7); 10.95.020(9)(a). 66See RCW RCW II, 67Bartholomew at 643. sentence, In death one of reviewing defendant's "is the sen- required are to determine

things we [w]hether disproportionate pen- is excessive or tence of death cases, the crime considering both alty imposed similar ours.) 10.95.130(2)(b). (Italics RCW and the defendant." First, proportion- crime". Insofar as the we consider "the concerned, say we need this crime to other crimes is ality of ascertain, this is able to only so far as we have been history. murder in our state's premeditated mass largest Instead, seem otherwise. suggest does not defendant his phase of the trial of penalty he that since at argues could not Ng), in crime (Benjamin confederate life), (thus it sparing Ng's unanimously agree68 Benjamin (Mak's) crimes penalty for same that his death follows This does not follow. disproportionate. is 310-11, Kincaid, Recently, (1985), law relat- Washington P.2d we summarized degree first murder and the crime of ing aggravated therefor: penalty At the procedure. a bifurcated provides for statute trial, is whether it determined

first, guilt phase in the murder guilty premeditated is one and, so, if then it is determined whether degree, first statutory exist. aggravating circumstances or more of the not, has not asked If death been [as premedi- Kincaid], guilty the defendant who found first one or more degree murder where tated aggravating exist, life the is sentenced circumstances but, if of possibility parole; without imprisonment sepa- shifts into a the trial then penalty sought, death is is determined sentencing where capital phase rate circumstances mitigating whether there are sufficient and, not, imposed. if the death is leniency penalty merit pun- levels three of Washington provide statutes thus first premeditated convicted of persons ishment for first premeditated of Persons convicted murder. degree imprisonment sentenced to life murder alone are degree premedi- convicted of parole. of Persons possibility with the stat- murder, where one or more of degree first tated (1985). 763, Benjamin Ng, 68State v. 104

723 found, and the death are circumstances utory aggravating to man- obtained, sentenced are or sought is penalty pre- of convicted And persons datory imprisonment. life of the murder, or more where one degree meditated first found, are circumstances statutory aggravating to death are sentenced penalty sought, is where the death mitigating there are not sufficient if it is determined that of one It is the existence leniency. to merit circumstances which statutory circumstances aggravating more of the narrowing of imperative the death constitutional satisfies class of and which eligible for persons of the more severe sentence. imposition justifies omitted.) (Footnotes there be an penalty phase that at important

It basis of the character on the determination individualized 10.95.130(2)(b)) (see as well as on RCW "the defendant" of pur- crime.69 It is the of the circumstances the basis ours, statutes, to avoid such channeled discretion of pose consideration particularized allow the failing the vice of "to each con- and record of the character aspects relevant of him of a sen- upon imposition defendant before the victed of death."70 tence 40, 1, 691 v. 103 Wn.2d Campbell, in State As observed _ denied, (1984) J., cert. (Rosellini, concurring),

P.2d 929 (1985): 526, 2169 U.S._, L. Ed. 2d 105 S. Ct. 85 narrows statutory scheme specific points, At four first, on penalty: the death subject to persons the class of the basis murder; sec- specific aggravated elements the death to seek ond, prosecutor's decision with third, circumstances; with of mitigating for lack penalty the fourth, circumstances; and mitigating jury's consideration pro- prior review of the this court's ultimate with favorably Georgia plan with compares This ceedings. (1984) (Rosellini, J., 1, 40, con Campbell, P.2d 929 691 69State v. 235, 251, 862, Ct. Stephens, Ed. 2d 103 S. (citing 77 L. curring) Zant v. 462 U.S. (1985). 526, denied, _U.S. _, 2169 (1983)), L. Ed. 2d 105 S. Ct. 85 cert. 2733 944, Carolina, L. 2d 96 S. Ct. Ed. 428 U.S. v. North 70Woodson 859, Georgia, 2d 96 S. Ct. (1976). Gregg 49 L. Ed. U.S. See denied, Ct. 197 2909, reh'g L. Ed. 2d 97 S. U.S. 724

upheld Stephens, L. 862, 77 Ed. 2d [462 in Zant v. U.S. (1983)]. 235, 103 S. Ct. 2733 Supreme by required Court, the United States

As degree Washington's aggravated murder statutes thus first aspects particularized of relevant of consideration allow individuals to be considered before and record of character penalty. imposition Thus, it is obvious that the death type every crime, or who commits the same necessarily given crime, be indeed the same will necessarily penalty. the dif This does not mean that same prejudice disproportionality; it sim ference is based on ply if differences shown means that there are demonstrable penalties defendants, in may and record of the character disproportionate considering "the not be defendant". expressed Supreme it: Court As the United States may occasionally Any capital sentencing scheme produce are outcomes. Such inconsistencies aberrational systemic cry major defects identified a far from the Georgia, 238, L. Ed. 2d Furman v. 408 U.S. 33 [Furman (1972)]. acknowledged in 346, As we have 92 S. Ct. 2726 deciding perfect procedure past, for "there can be 'no the in which cases authority governmental should be used to Stephens, impose 862, 884, 77 U.S. [462 death.'" Zant v. (1983)], quoting Lockett v. 235, L. 2d 103 S. Ct. 2733 Ed. 973, 2954 586, L. 2d 98 S. Ct. Ohio, 605[, 438 U. S. 57 Ed. (1978)]. Pulley Harris, 37, 54, L. Ed. 2d 104 S. Ct. v. 465 U.S. 79 Georgia, Gregg also And as that Court said reh'g L. 2d 96 S. Ct. U.S. Ed. (1976): 875, L. 97 S. Ct. 197 denied, U.S. 50 Ed. 2d suggests Nothing that the decision of our cases mercy violates the consti- individual defendant afford an tution. capital punish- imposition us,

In the case before imposed although Mak, it was not ment on the defendant Ng, Benjamin not an "aberrational confederate, his on mitigation and the defendants' The evidence outcome". Ng's respective case, In were different. roles the crime experts testify medical/psychiatric heard three Ng a childhood dementia as the result of suffered from beating.71 injury aggravated On the other head a later hand, in the defendant Mak's case had evidence the reasonably it which it conclude that there before from could leniency except mitigating meriting were no perhaps circumstances time); youth (apparently for his he was at the years planned that it was the defendant Mak for had who gambling witnesses; it to rob a club and eliminate the assist was the defendant Mak who tried to recruit others to crime; that, testified, in the the as the sole survivor it was gun who, hand, defendant Mak with a in his stood above issuing orders; short, and, the victims like a leader in that it planned, supervised was the defendant Mak who and helped carry robbery out the and murders.

Significantly, jury in the the defendant Mak's case was Benjamin Ng's not unaware of the outcome of case. The jury testimony concerning Benjamin in the Mak case heard mandatory Ng's testimony sentence, life and also heard (which prior by Ng jury a murder committed in about Ng's evidentiary case did not hear because of bars laid cases).72 prior penalty Despite down this court death despite testimony that, and the fact that heard Benjamin Ng from which it could conclude that principal triggerman was (or, arguably, triggerman), the sole special case, returned a that in verdict the defendant Mak's mitigating there were not sufficient circumstances merit leniency. nothing penalty suggests sum,

In the death arbitrarily capriciously imposed against or the defendant 10.95.070(6): statutory mitigating by Ng 71A factor relied on was RCW "Whether, murder, capacity appreciate at the time of the of the defendant wrongfulness of his or her conduct or to conform his or her conduct substantially impaired requirements of law was as a result of mental disease or defect;" Benjamin Ng, Report Judge, State v. the Trial at 6. see Bartholomew, I, 197; 72See Bartholomew 98 Wn.2d at (1984) (Bartholomew II). 638-39, 683 P.2d 1079 consid- Mak,73 disproportionate or that it was excessive defendant. both the crime ering attorney, deputy prosecuting Did Sixteen. Issue trial, violate phase at the closing argument impartial right to a fair and the defendant's constitutional self-incrim- trial, process privilege against of law and due ination? suggests before us Nothing the record Conclusion. argument during deputy prosecutor's closing jury's affected the

penalty phase inappropriately verdict. attorney

In has a argument, prosecuting closing infer expressing reasonable drawing wide latitude prosecutor A arguing ences from the evidence.74 not, course, into personal his or her beliefs may interject credibility of case, certainly comment on the may but argu as to the law Any closing witnesses.75 statements instruct are to be confined to the law set forth the ment concerned, it is the improper argument So far as ions.76 only of establishing who bears the burden defendant remarks, prosecutor's also their impropriety of the but the a sub The is then whether there is effect. issue prejudicial the alleged that the misconduct affected stantial likelihood a fair thereby the defendant of depriving verdict jury's the Moreover, the of this issue is within trial.77 resolution the court.78 discretion of sound deputy prosecutor's argument the The record shows was well within penalty phase to at the the case jury the Campbell, generally at 41. 73See (1983). App. Harvey, v. Wn.

74State 34 (1975); 101, 110-11, App. Knapp, P.2d 898 v. v. 14 Wn. 75State (1971). 151-52, Walton, App. Wn. 486 P.2d 757, 760-61, Davenport, P.2d 1213 76State 77Harvey, at 740.

78Harvey, at 740. advocacy. opening judicial statement, In his bounds of the deputy prosecutor and the outlined his role how differed guilt phase at of the trial. Then from that which he had the prosecutor during closing deputy argument, the summa- carefully arguments. perused closing rized. We have deputy prosecutor jury The did not misinform the on proof read burden as the defendant now claims.79When contrary argument, in the context of the to defendant's appeal, deputy prosecutor person- assertions on ally did not per- credibility witnesses, vouch for the assert his opinion penalty, appeal jury's sonal passion on the death sympathy families,

and for the and their victims jury the law. mislead as to

Specifically, argues prosecutor's "[t]he defendant argument jury improper statements constitute testify [the defendant's] comment on ..." When failure penalty phase in context, is not In read this so. of the jury trial, the court's instructions to the included the fol- lowing: you testimony

The are evidence to consider consists of evidence, the phase witnesses and the exhibits admitted into during special one of this trial and sentenc ing proceeding.[80] guilt phase trial, testified at the testimony length, at was, therefore, some and that penalty phase. before at the As defense counsel argued penalty phase, got stand, at the "Mr. he Mak on the you background." told phase about his at the fully

was thus entitled to consider defendant's testimony phase guilt mitigation of the trial of his similarly, deputy prosecutor argue act; was entitled leniency. Indeed, merit evidence was insufficient to that was the issue. improper dep-

Defendant has shown no comments any uty prosecutor's closing argument prejudice resulting or Davenport, 79See at 760-61. (sentencing phase).

80Court's instruction 1

therefrom.81 right his to the defendant denied Seventeen. Was Issue 7.1(a) at by former CrR

allocution afforded the trial? phase of not denied. The of allocution was right Conclusion. 7.1(a) tried, perti- CrR read this case was

At the time part: nent deferring an sen- imposed shall be or order

Sentence delay. Pend- shall be entered without unreasonable tence or commit may such action the court release ing defendant, CrR 3.2. Before pursuant disposition to speak to and opportunity shall afford counsel an court if make statement ask the defendant he wishes to shall any mit- present in his own behalf and to information igation punishment. provisions amended.82 The rule has since been

The mandatory, were and the trial court was former rule opportunity speak an to required to give "immediately imposition of sentence".83 Under prior trial, time of a defendant had the this rule as it was behalf; (1) in his her to make a statement own right: (2) mitigation punish- information present ment.84 statutes, turn, provide fol- capital punishment

lows: prosecu- both the sentencing proceeding the special

At make opening shall be allowed to an and defense tion statement. and then the evidence of present evidence prosecution shall first may Rebuttal present defense evidence. presented by Upon each side. conclusion may be evidence, instruct and then court shall present be permitted and defense shall prosecution Harvey, at 740. 81See July were 1984. See 101 to former rule CrR 7.1 effective 82The amendments 7.1, 1113, 1115; CrR CrR 7.2 comments thereto. Happy, P.2d 97

83State 84Happy,at 793. prosecution open The shall conclude

argument. argument. 10.95.060(2).

RCW trial, penalty phase of the the trial court During ruled that the defendant could make an unsworn personally the jury prior arguments statement to to to the closing jury. later, Then at the time the trial court actually pronounced sentence, the trial speak court also invited the defendant to on his own behalf. On both occasions the defendant speak. declined to colloquy

From the between the trial and both court counsel, it appears apparently that what the defendant was seeking penalty was the at the end of the right, phase trial, present jury to evidence on the issue before the which uncross-examined, unsworn, would be unrebuttable by argument. unanswerable the statute85 con Nothing that, templates permits nor does our former allocution rule.86 The defendant was his to to the given right speak sentencing hearing being required without oath, speak take an and was to the again given right actually trial court before sentence was There was imposed. right no denial of defendant's to allocution. Eighteen. Did the trial court err

Issue allowing deputy attorney make prosecuting opening an statement at the phase of the trial? (RCW trial court followed the statute

Conclusion. 10.95.060(2)) when it allowed both the and the prosecution defense opening to make statements at the outset of the penalty phase completely proper. of the case. This was

The defendant error to the trial court's assigns ruling an statement permitting prosecution opening to make made no penalty phase at the of the trial. trial court specifically prescribes such. Since a statute "ruling" as prosecu- special sentencing proceeding both "[a]t 10.95.060(2). 85RCW 7.1(a). CrR See footnote 82.

86Former opening an to make be allowed shall defense tion and permitted simply to do counsel court statement",87 the trial objection was voiced. to this no the trial so. At Campbell, recently in State held this court As (1984), denied,_U.S. cert. P.2d 929 1, 15-16, 691 (1985), capital also a 105 S. Ct. _, L. 2d 85 Ed. opening prosecutor's con statement should be case, "[a] case, an out the issues of statement fined to a brief anticipated evidence, and reasonable material line of the deputy prosecuting therefrom." to be drawn inferences attorney's opening phase penalty con statement short in this no error There was admonition. to this formed regard. argues, effect, that when

The defendant present plan addi court it did informed the phase penalty the trial this some at the tional evidence principles. changed This is incorrect. As these how provide special sentencing statutes above, the discussed guilt phase jury of the case hears the which that the same penalty phase is waived unless will also hear the impan necessitate circumstances or unless unforeseen jury.88 eling Further, for some if a new must of a new may parties impaneled, evi then introduce both reason be concerning of the murder facts and circumstances dence contemplate jury.89 thus These statutes the new before guilt phase case will be considered from the evidence proceed right phase.90 had a The State at the present obligated party additional was it did. Neither party The State did desired to do so. unless that evidence 10.95.060(2) (part). 87RCW 10.95.050(3).

88RCW 10.95.060(3).

89RCW concurring), (1984) (Rosellini, J., Campbell, 90State 691 P.2d 929 _ denied, _, 105 S. Ct. 2169 t. 85 L. Ed. 2d U.S. cer (1984) (Bar Bartholomew, Accord, State v. II). tholomew not present evidence at the and the defend- penalty phase, ant did. That fully appropriate. Did the defendant receive effective

Issue Nineteen. assistance of counsel during penalty phase of the trial? record, the entire Considering

Conclusion. was afforded effective assistance of counsel throughout trial.

The test for whether a criminal defendant was if, of counsel is denied effective assistance after considering record, the entire it can be said that the accused was representation afforded and a impartial effective fair trial.91 Under this standard the defendant is not guaran teed assistance of counsel.92 To establish ineffec successful counsel, tive assistance of defendant bears the burden of proving First, two things: record, considering the entire that he or she was denied representation, effective second, that he she was prejudiced by such ineffectiven ess.93 If defense counsel's trial conduct can be character legitimate tactics, ized as trial strategy or then it cannot serve as a basis for a claim that the defendant did not receive effective assistance of counsel.94

In the us, case before the defendant alleges numerous instances which he now claims amount to the denial of effective assistance of counsel. He claims that trial counsel (1) was ineffective because: counsel failed exception to take to the trial court's penalty phase instruction relating to the (see State's burden 26); (2) of proof Issue counsel failed to object to the trial court not an giving instruction on the presumption of mitigation and failed propose to such an Thomas, 470, 471, (1967); 91State v. 71 Wn.2d Brad 429 P.2d 231 State v. bury, 367, 370, App. (1984). 38 Wn. 685 P.2d 623 Adams, 86, 90, White, (1978); v. 92State v. 586 P.2d 1168 State 223, 225, (1972). Wn.2d 500 P.2d 1242 Jury, App. 262-63, (1978); 93State v. Strickland 19 Wn. see (1984). Washington, v . 466 U.S. 80 L. Ed. 2d 104 S. Ct. 2052 94Adams, at 90. (3) (see the 27); object failed to to Issue counsel

instruction the that it was not to con- instructing trial court not jury at the testify spe- fact that the defendant did sider the to an proceeding propose and failed such sentencing cial n (see (4) 28); to propose instruction Issue counsel failed it the appropriate instruction that for to stating jury an sympathy determining consider whether the defendant 24). (see receive the death sentence Issue should the carefully Considering We reviewed these claims. have must, whole, as a as we we con- trial court's instructions the the they jury clude that informed of law properly fully the his they permitted argue that also defendant to the theory the case.95 The defendant has failed to meet his was first burden he denied prong proof —that representation.96 effective he regard with the defendant's claims this

Continuing (5) representation contends that he did not receive effective request trial counsel failed dismissal of because to penalty that the State was not learning death notice after phase penalty further evidence at going present to in our discussion of For the reasons stated case. (Issue 18), proceed had right previous issue State did; therefore, it claim is nonmeritorious. (6) counsel failed argues The defendant further edu- poorly was a present jury to the assertion, Contrary present cated defendant's immigrant. trial defense guilt phase shows that at the record testimony, and that present did such counsel it.97 consider phase could instructed at point Furthermore, argue this defense counsel did special sen- at the close of closing argument his as follows: example being one such tencing proceeding, Johnson, (1986); v. Jeffries, State P.2d 722 95See 811-12, App. 29 Wn. P.2d 413 96Jury, 262-63. (sentencing phase).

97Court's instruction got stand, Mr. Mak on the he told [Defense Counsel:] you background. good. about his Doesn't sound It is a young immigrant black mark on all of us. A came to this country, assimilated . . . speak English very got well, couldn't never (7) Finally, defendant contends defense counsel request guilt "a failed substantial recess" between the phases argues, This, turn, he the trial. disposition. agree. in an unfair resulted We do not guilt phase of the case the return of concluded with guilty during verdict the noon trial court asked hour. The agreeable phase begin sentencing counsel if it was p.m. Nothing the case at 3 Both counsel in the said it was. ready by suggests record that both counsel were not fully prepared time or that defense counsel was not then Furthermore, as he have would been later. defendant's present argument statutory regard disregards in this special sentencing proceeding admonition practicable completion shall commence as soon as after guilt of the trial at which the defendant's was deter- mined.

(Italics ours.) 10.95.050(3) (part). RCW showing

The defendant has failed to meet his burden of deprived that trial defense counsel made errors that which, turn, defendant of effective assistance of counsel deprived preju- him of a fair trial —let alone that he was thereby.98 diced Did the trial court commit reversible error Twenty. Issue phase failing, guilt trial, at the of the instruct the requirement unanimity?

as to the Through neglect part or error on the Conclusion. paragraph inadvertently staff, court or the final omit- concluding This did result ted from the instruction. error, however, instructional adequately because other instructions jury unanimity. Further- covered the matter of dispelled conclusively any question more, on the matter was Thomas, supra; Jury, supra. State v. State v. 98See of by polling jury. the the concedes, the that alleges,

Defendant and the State to of the of the instruction page concluding omission last (instruction 15), in jury the the filed set of Court's Instruc- to Jury neglect tions the was a result of or phase), (guilt on of part error the the trial court. nonetheless,

The per- that the trial court argues, sonally to read the of the instruction page concluding final " that is jury from its set of instructions own [i]t a difficult would have detected such imagine nobody to is at the glaring given omission which a stock instruction was taken exception close of case." clear that no every It is defendant, The on of instruction. giving hand, reversal because requires other this error argues that containing the final the instruction on was the one page unanimity in the verdict. a instruction be concluding State had proposed trial, the final phase paragraph at the of the

given guilt which as follows:99 read case, all you twelve must Since this is a criminal you to a verdict. all of

agree you return When have for form of verdict to proper express fill agreed, so sign notify The foreman will it and your decision. you your into court to declare bailiff who will conduct verdict. ours.)

(Italics propose concluding The defendant did not by proposed The instruction the State was instruction. Concluding Instruction100 fit this Basic modified pattern instruction, is equivalent, Such of case. an its kind trials of language given jury instructional indeed "stock" criminal cases. the proposed the final paragraph problem trial court's guilt instruction is from the missing

concluding This papers. the clerk's contained phase instructions containing above is the one paragraph final missing (guilt phase). proposed instruction 99State's WPIC 155.01. reading The trial court's of the instruc- language. italicized from the bench is not contained jury tions to the proceedings, presumably because the report verbatim short, In did not it. based on the reporter report court presented by parties, record to us it is not appellate if possible paragraph to determine final was or missing actually was not read the trial court. That jury so, phase being signed guilt and because the trial judge instructions the bottom of the conclusion 1-page instruction, final quoted we must assume that the above not read to the paragraph concluding instruction was it. given or otherwise " The law of this state is settled: Washington, [i]n may only be convicted when a unanimous concludes that the criminal act the information charged (Italics ours.)101 has A been committed." careful of reading given they the other instructions that were show that suffi ciently jury point. By instructed the on this the aggravated instruction, murder in the first "to convict" the degree jury specifically was instructed:102 words, which, you agree any,

In other must all if of these proved beyond elements has been a reasonable doubt. (Italics ours.) This instructed the sufficiently jurors as to duty unanimously phase their on the agree guilt general Furthermore, verdicts. the special jury additionally was phase special instructed with reference to the verdict guilt as follows:103

If murder, find the defendant you guilty aggravated degree of first

indicate special on the verdict form which of the you unanimously circumstances have aggravating beyond exist a reasonable doubt. found is inquiry Nor that the end of our on this issue. On (1984). Petrich, v. 101State 683 P.2d 173 phase (part)). (guilt instruction 7 The full text of instruction 7 is 102Court's 21. set out in connection with our discussion of Issue (guilt phase (part)). 103Court's instruction 15 point Mickens, in State is this court's decision stating There, the the instruction requirement It, was also omitted. of a unanimous verdict single involving defendant. The too, criminal case was holding however, conviction, the court affirmed jury polled, the ver- there is no doubt that the was since dict was unanimous and juror's was of each the result individual determination. entry journal Here, too,

Mickens, at a minute 87. general jury its returned that when the establishes special court, read aloud to the the verdicts were verdicts reading, immediately following entirety. such Then, their juror polled open jurors court. Each were the individual her individual was his or affirmed that each of verdicts entry jury. on minute of the That verdict and the verdict polling reads: polled. jury By Twelve is direction the Court jurors verdicts and the are their individual The answer these jury jury. is are filed and verdicts verdicts retired jury room. reported, polling and also of the transcribed part fully min- verifies the made a of the record herein. It purpose entry. polling jury is ute "The of the for determining signed foreman that the verdict holding jurors here that . . ."104 our of the individual It is polling omission from that the established concluding the final outcome did not affect instruction harmless error case, thus was no more than event.105 (1963), 176, P.2d 859 cited Badda,

State v. 63 Wn.2d contrary by Mickens; defendant, hold does not approval. quotes with Badda Mickens indeed, it cites simply case, of that which the facts that under holds could not conclude from two the court defendants, involved (1974). 406, 402, Agtuca, App. 529 P.2d 1159 v. 12 Wn. 104State (1962). 87, Mickens, v. See State Wan 377 P.2d 61 Wn.2d 105State row, all jurors". the record that there was a "total concurrence of above, set forth we have no doubt that For the reasons jurors general case all 12 concurred on both the special guilt verdicts returned at the conclusion of phase of case. guilt Did the trial court err Twenty-One.

Issue a verdict phase by submitting single special of the case circumstances" issue "aggravating form to the on the in the first aggravated degree? for all 13 counts murder As discussed under Issue two instruc- Conclusion. tions informed the jury jurors had to be unani- mous as to the presence any circumstance aggravating respect with to each of the 13 counts. The trial court did not abuse its special discretion one verdict submitting form for all 13 counts.

At phase case, the close of the of the guilt the trial court only submitted to the jury special one verdict form on aggravating circumstances for all 13 counts aggravated degree. murder the first It was not That excepted to. form, thereto, verdict with jury's responses is as follows: We, the find jury, proved beyond the State has a reasonable doubt following circum- aggravating stance^) I exist as to counts XIII: through

yes (a) The defendant accomplices and his no) (yes or committed the murder to conceal the

commission of a crime or to or protect identity conceal the com- person crime; mitting (b) no There was more than one victim and no) (yes or part murders were of a common defendant; plan

scheme or yes (c) The murder was committed in the no) (yes robbery. course of or furtherance of a special The defendant claims that since this verdict form count, did not provide separate special finding on each impossible determine whether decided that either one or both of the circumstances found aggravating Thus, proved argues, were each of the counts. he 738 special verdict not show that its decision was

jury's does aggravating unanimous the factors as to all 13 counts. on Bartholomew, held State v. 98 recently As court n.2, (1982), cert. 173, 192 P.2d 1170 State's 654 1203, 3530, L. Ed. U.S. 2d 103 S. Ct. granted, 463 denied, U.S. L. cert. Ed. 2d defendant's (1983) (Bartholomew I), 103 S. Ct. 3548 death be it rationally in order that a must at sentence reviewable a possible be for court to deter- reviewing least were statutory mine the 10 factors aggravating which of than proved beyond a more found one reasonable doubt. If . . . the aggravating put jury, the factor before requested be which aggravating must specify proved a doubt. beyond it reasonable factors found ours.) (Italics trial, phase gave

At the of the the court guilt 5, listing alleged each instruction the name of the victim gave following convict" instruction count. Then "to setting out the elements of the offense:106 No. 7

Instruction To Kwan Mak of crime convict defendant Fai aggravated charged of murder in the degree, first count, following each of the elements of the crime be proved beyond must a reasonable doubt: (1) February, That on or 19th of day about of the accomplice the defendant or an caused death named; individual (2) cause with the intent That the defendant acted death; (3) intent premeditated acted with That death; cause (4) of the acts of the death was a result That his accomplice; defendant or

(5) following aggravating fac- or of the That one more tors was present:

(a) committed accomplice defendant and his a crime or to to conceal the commission murder any person commit- identity conceal the protect or crime, ting or ’Court's instruction 7 (guilt phase).

(b) There was more than one victim and the mur- plan ders scheme part were common or defendant, (c) The murder was committed the course of or crime robbery; furtherance of the (6) County, in King Washing- That acts occurred ton. you (1), (2), the that evidence elements If find from (6), (5)

(3), (5)(b), (4), (a), (5)(c) and either or have been proved beyond a count, reasonable doubt as to any then your it a will be to return verdict duty guilty as to of (5)(b) (5)(a), (5)(c) that count. Elements are alter- only must, however, natives and need You proved. one be (5) (a) agree unanimously that has been or that proved, (5)(b) (5)(c) has been proved, or that been proved. has In words, other you which, any, must all agree these if of has elements been proved beyond reasonable doubt. hand, if,

On the other after of weighing all the evi- dence, you have a reasonable doubt as to one of any these then elements, your duty will be to return verdict of not as guilty to the charge aggravated of first degree murder toas that count.

(Italics ours.) reading

Our of this instruction establishes that the was informed jurors that the had to be unanimous as to the of presence the aggravating factors found connec tion with each of the 13 As counts. under discussed Issue (instruction 15) concluding the instruction also told form, special completed them verdict this. when which the aggravating indicated of jury, circumstances unanimously in reaching found its of guilty verdict on This requirement all counts. met the of Bartholomew I. We also observe at the trial of the case raised, no issue was presented, evidence indicate other than that circumstances aggravating alleged were the same with respect and all of the to one victims. We perceive no error in this regard. Did the by instructing trial court err Twenty-Two.

Issue jury that be could convicted of aggra- vated murder the first based degree accomplice on an theory? accomplice err in its court did not Conclusion. accomplice principles in It did instruct on

instructions. degree aggravated first murder with the connection degree premeditated murder, first elements that constitute part aggravated proper. murder In and that was pertaining aggravating degree in the first instructions instructions did allow factors, however, the trial court's on of enhanced the basis to be sentence the defendant's principles. accomplice quote part again clarity,

In the interest of we out the elements of convict" instruction which sets "to degree, aggravated time, first in the crime of however, murder accomplice portions italicized:107 thereof with 7No.

Instruction of the crime Kwan Fai Mak convict the defendant To charged degree, elements aggravated murder in the first following of the crime count, each proved beyond doubt: a reasonable must be (1) day February, 1983, on the 19th That or about accomplice the death of the caused defendant or an named; individual (2) with the intent to cause acted That the defendant death; the (3) premeditated intent the acted with That defendant death; to cause the (4) of a result of the acts the That the death was accomplice; or his defendant (5) following aggravating fac- That one or more of the present: was tors (a) accomplice committed and his defendant crime of a or to the murder to the commission conceal any person protect identity commit- of or conceal the ting crime, a or (b) and the mur- one victim There was more than plan part a scheme or ders were of common defendant, or (c) in the of or in course The murder was committed robbery; the crime furtherance of of (6) County, Washing- King That the acts occurred ton. Court's instruction (guilt phase).

(Italics ours.) verdict, jury found the exis- By special of three factors in this aggravating alleged tence two of the 5(a) case, 5(c) namely, specified in of paragraphs those the above instruction. Kincaid, recently As we State v. observed " (1985), [conceptually, the crime is in the murder first with

premeditated degree aggravating Commonly, however, circumstances. crime is often by 'aggravated referred to the courts and others first then degree explain: murder'." We continued on A statutory circumstance aggravating relates crime of murder in the first a premeditated degree as deadly armed with a being weapon relates to the commission certain of felonies while so armed. In the statutory framework which statutory aggravating exist, they circumstances now but are are not elements of a crime "aggravation penalty" provisions pro- which vide for an the crime penalty increased where the circumstances

aggravate gravity of the offense. The crime for which the defendant was tried and convicted in con- nection with the death of his premeditated wife was murder in the first degree, correctly and the was instructed as to the elements of that offense.

for that murder properly enhanced to life imprison- ment possibility without when the parole jury unani- mously by special found of a verdict existence statutory had been aggravating proved circumstance the State beyond reasonable doubt.

(Footnotes omitted.) Kincaid, at 312.

Thus, aggravated the first elements of the four murder instruction, above, the first convict" set forth degree "to the substantive of premeditated state elements of crime degree. murder Then fifth first element out sets alleged penalty" "aggravation provisions which, when found, or mandatory one more is increase the penalty to life, death, depending on the determination made in capital where, here, of the sentencing phase the case as the sought penalty. has death The death prosecutor Kincaid, not in sought separate had been Kincaid. In a alleged instruction on the factors was aggravating given court, here, the above as can be seen from the trial whereas aggravating factors instruction, the trial court included (element 5). That of the offense an element pointed inappropriate in Kincaid: for, as out we also referring our to hold herein Nor is it intention "aggravated as the in instructions crime this crime of alleged degree", including any and murder first aggravating would he error. While structured its offense, as an element circumstance of the manner which the trial court may this case instructions only conceptually way preferred manner, it is not the be the jury may properly on the mat- instructed that a be ter. ours.)

(Italics Kincaid, at 313. gave following present case, trial court also In the liability:108 (complicity) accomplice instruction on Instruction No. person accomplice of commission A who is an guilty of crime. crime is person accomplice of a A an in the commission is promote knowledge crime, if, or facilitate with that it will crime, he either: the commission (1) requests encourages, solicits, commands, another or person crime; to commit the or (2) person planning agrees or aids or to aid another committing crime. given by whether The word "aid" means all assistance presence. support encouragement, words, acts, Mere activity presence knowledge criminal person enough is an another are not to establish necessary accomplice intent for the crime and has charged. present person A at the scene and is who is ready presence aiding in the commis- is to assist bv his sion of the crime.109 excepted to.

This instruction was not arguing here, on based What the defendant seems be accomplice principles statutory liabil- construction only way ity, con- defendant could be as follows: the phase). (guilt 108Court's instruction See WPIC 10.51. (for aggravated degree

victed of murder in first which may imposed) proved if death be is the State (1) beyond a was in reasonable doubt: that (and prosecutor fact the shooter concedes that the evi- (2) conflicting); regard an dence in this is that as accom- (who plice Benjamin clearly Ng did at to least some Benjamin Ng shooting), knew armed the defendant was and Benjamin Ng's intent to commit the crime and his shared committing they purpose aggravating in when factors (and together the Wah Mee Club intent went into which denied). testimony purpose the defendant his and argues further Mak Defendant above instructions require, jury convictions, did so not and his therefore, should be reversed. legal syllogism argument predicated

The on which this is basically be seems to as follows:

(a) accomplice (complicity) The in statute found (RCW 9A.08.020(1)) Washington Criminal Code relates only McKim, to "crimes" in Code. contained (1982). Davis, 653 P.2d See State v.

(b) statutory aggravating factors which were used premeditated this case to enhance in the murder first degree aggravated degree murder in the first are not Washington 9A, "crimes" Code, Criminal Title RCW but are sentence enhancement in RCW factors contained Kincaid, Title 10. at 312-13.

(c) quoted above, instructions 7 and court's allowed the aggravated to enhance the defendant's sentence theory. accomplice liability murder an on (d) syllogism goes, Therefore, follow that this must this was reversible error inasmuch as the instructed that to have the defendant had to be found Benjamin Ng's shared purpose intent to commit the crimes and his committing aggravating factors before he supra. McKim, could be convicted. See State v. previously paragraphs through discussed,

As 4 of premeditated 7, above, out instruction set the elements of required degree.110 in the first Thus the State was murder prove defendant acted with the intent to cause that the premeditated. his intent was each victim's death and that required prove paragraphs four also the State to These first ours) (italics accomplice" caused or an that "the defendant accomplice principles inis accord with the the deaths. This above, with the established instruction stated accomplice 9A.08.020; State v. RCW law of state. supra. degree Davis, the first Premeditated murder Washington Code, Criminal RCW statute found in 9A.32.030(l)(a), complicity is, therefore, statute expressly applicable crime, to that RCW 9A.04.090. Fur- exception thermore, 7. was not taken to instruction paragraph Turning above, which 5 of instruction to specifies alleged aggravating circumstances that serve as the pun- factors" with reference "sentence enhancement only ishment, to "accom- will seen that the reference it be requirement plice" paragraph in is the contained to (ital- accomplice" jury that the find "the defendant and his ours) the commission ics committed the murder to conceal paragraph protect If of the crime or to their identities. this accomplice," we had referred defendant or his to "the required be rest of the defendant's would deal with the theory, not, but it we it. Since since does need not address jury had to find accom- the that "the defendant his plice" their committed murder conceal crime or finding aggravating identities, not this factor was accomplice liability. predicated This aggravating not arise on issue does in factor found all connection with the other at by during jury, i.e., the course of a committed murder "accomplice" robbery, in used was not since word 5(c)). (instruction para. part the instruction required situa- Thus, are in case to address we not presented Florida, in Enmund v. tions such as that (1982), but note 782, L. 2d 102 S. Ct. 3368 U.S. 73 Ed. required we draw is to illustrate the distinction Enmund 9A.32.030(l)(a); see WPIC 26.02. RCW here. In Enmund a death sentence was reversed on the Eighth basis of the Amendment and the Fourteenth Amendment because the death sentence was based on felony case, defendant's conviction of murder. In that getaway Enmund was the car driver for two robbers. He sat parked awaiting in the car outside a house their return. They robbery. during killed two victims the course of the killings planned per- were not Enmund did not sonally participate any way finding and there was no he Washington, felony intended kill. In the State of murder (although degree) it is murder the first cannot be the predicate charge upon aggravated which a in the murder only proper predicate degree premedi- based; first is degree. Kincaid, Enmund, tated murder the first 307; at by Further, above, at 789 n.6. as discussed its guilty verdict this case found that the defendant Mak premeditated did have a intent to kill. Twenty-Three. guilt Did the trial court err

Issue phase by instructing of the case not on the "lesser premeditated included offense" of murder the first degree? A

Conclusion. by court does not commit error an giving included offense instruction that was never requested defendant, and which would have con- flicted with the theory defendant's of the case had been given. assigns

The failure to the trial court's error premedi- instruct the on the offense of lesser included degree by tated first RCW murder as defined 9A.32.030- (l)(a). only This was not was no error because not such requested by defendant,111 instruction but had the the given sponte, court such an instruction sua would have theory in been direct conflict with the defendant's of the case. theory that,

It was the defendant's at trial while he had Dowell, (1980); 111State v. App. State v. 26 Wn. 613 P.2d 197 Walker, App. 545, 550, Wn. go kill, Club on the did to the Wah Mee no intent to night he gun crime, the time armed with a and of the by personal property person fear— a force or from did take premises, his one or both of two and after he left (Benjamin Ng Tony Ng) companions killed the victims. and clearly opening so in his statement counsel stated Defense guilt phase testified; case; so of the the defendant at the argued at the conclusion counsel so defense guilt phase of the case. explaining gave following instruction trial court The offense":112 "included 6.No. beyond you a reasonable doubt that not satisfied If are charged, guilty is of the crime the defend-

the defendant ant sion charged, any may guilty crime, the of lesser commis- be found necessarily included the crime is of which sufficient to establish the is if evidence beyond guilty crime a reason- such lesser of defendant's able doubt. degree aggravated murder in The crime first necessarily in the crime murder lesser includes degree. first person against proven crime has When a been two to which of doubt as there exists reasonable degrees person guilty, he shall be convicted is more only degree. lowest (Italics ours.) portion is of this instruction italicized language on the sub- identical from a similar instruction by ject proposed the defendant. by foregoing aggravated instruction was followed (instruc- degree first

murder "to convict" instruction 7) felony was, turn, murder tion which followed "to instruction:113 convict"

No. 8. crime Fai Mak convict defendant Kwan To charged degree, count, first of murder phase). (guilt 4.11. This WPIC instruction 112Court's phase). (guilt This is WPIC 26.04. 113Court's instruction

[747] following crime each of the elements of the must be proved beyond a reasonable doubt: (1) day February, 1983, on or 19th That about the killed; the individual named was (2) committing robbery That the defendant was in the degree; first (3) participant That another caused the crime in the of and in death course furtherance of such flight crime; inor immediate from such (4) participant That was deceased not a in the crime; and (5) That the acts caused which the death of the dece- King County, Washington. dent occurred you If find from the evidence that each of these ele- proved beyond ments has been any a reasonable doubt as to your duty count, then it will be to return a verdict of guilty as that count. to weighing hand, if, On the other after all of the evi- you any dence, have a reasonable doubt as one of these your duty count, elements as then it will be guilty return a verdict as to that count. exception just quoted. No was taken to the instructions argues

The defendant now it was reversible given error not to have an instruction on the "lesser premeditated included offense" of degree.114 murder the first Workman, He cites State v. (1978) Parker,

P.2d 382 and State (1984) proposition prejudicial P.2d 189 for give error to not a lesser included offense instruction when support assuming there is evidence to it. that, Even how ever, it still did not constitute reversible error for the trial give court not to an on an instruction included offense that (a) (b) requested was never did not accord with the theory put defendant's of the case forth at the trial testimony. on the counsel based defendant's own In both Parker, Workman lesser included offense instruc question requested; tion was here it not. closing argument guilt phase,

In his counsel argued clearly for the defendant that "the facts indicate RCW 9A.32.030(1)(a). felony regard Mr. And further: to Mak." murder with any part taking though he not have Even did guns money, though take the even he himself did not guns people, when still there he from the two were personal property, from taken, he theft of took robbery, guilty accomplice force, he's another, a used his got guilty people shot, he's of murder resulted, murder aggravated degree. guilty of But he's not first premeditated intent, intent had no no

murder. He cause the death. opposite: deputy prosecutor argued just the aggra- degree murder, an a first this was

This was not vated first nothing. degree or it's murder clearly unequivocally he testified and The defendant felony lawyer argued with murder. His committed had clarity unequivocation equal had the defendant and way attempt felony by an murder; this was committed paying for with the from his crimes defendant save the felony premeditated penalty. murder nor Neither death capital degree in this are offenses state —nor murder first mandatory imprisonment.115 they punishable life are premeditated of either Thus, the defendant's conviction felony degree murder would have had murder or first preserva- effect, of the death same avoidance possibility parole. tion of the (1) circumstances, we that:

Under these hold given, that was not hav offense instruction lesser included ing excepted case;116 trial, the law the been to at became (2) any was invited error and in connection therewith error (3) complained appeal;117 error in cannot on be Kincaid, 115See at 310. denied, Louie, 312, (1966), cert. 304, U.S. 116State v. P.2d 7 386 68 Wn.2d 413 287, Byrd, (1967); App. State v. 1042, 18 25 Wn. L. 2d 87 Ct. 1501 Ed. S. (1980). P.2d 321 Kincaid, (1984); Pam, v. 117State 101 Wn.2d 680 P.2d 304, 314-15, P.2d beyond

that connection was harmless a reasonable doubt.118 clearly all, If error at was not reversible error. argues felony

The defendant also that since murder requires proof that the crime was "in committed the course felony,119 properly of and in furtherance of" the it was not aggravated degree an "included offense" of first murder at gave all, thus, the trial court also erred on this basis when it felony murder included offense instruction. Even accepting present premise defendant's that it was error to felony give the instruction, murder included offense for just each and all of the same three stated, reasons it was not reversible error. Twenty-Four Thirty-Three. through

Issues presents array penalty phase a broad of further given, instructions which he now feels should have been given and instructions that were but which he now feels given, raising question should not have been thus any together, these, whether of or all of them amount to reversible error?

Conclusion. None of the instructions defendant now argues given proposed should have been were at trial as they preserve any must have been to error, claimed and no exceptions were taken to those instructions which were given necessary preserve any as is to claimed error as to being capital them. This case, and since some of the arguments allege error, constitutional we have nonetheless reviewed these claims.120We have evaluated them consider- ing totality including circumstances, the instruc- given jury, arguments weight tions to the counsel, of of the evidence and other relevant factors. We conclude Burri, 175, 182, (1976). Chapman 118State v. 87 Wn.2d 550 P.2d 507 See 18, 24, 17 California, 1065, reh'g 386 U.S. L. Ed. 2d 87 S. Ct. 24 A.L.R.3d denied, 987, 18 (1967); Johnson, L. 386 U.S. Ed. 2d 87 Ct. S. State v. 244-45, 427 P.2d 705 9A.32.030(1)(c). 119See RCW Griffith, (1958);

120See State v. RAP 2.5. constitutionally therefrom that the defendant did receive trial121 and there is no reversible error with fair respect assignments error, whether to these of considered individually collectively. or necessary understanding of the numerous and

It to an is intricately argued connec- issues raised this sometimes given tion, full of the instructions that the text phase of the case be set out. at the close of the were as follows: These your duty the facts this case from It is to determine your duty produced in court. It also is the evidence accept personally you regardless court, of what the law from the ought are the law or to be. You believe is way apply decide the case. the law to the facts and this given has these instructions are no The order which importance. attorneys significance may properly relative as to their any specific they think instructions discuss particularly significant. You should consider the are instructions place and should undue a whole any particular part emphasis or on instruction thereof. you are to consider consists of the testi- The evidence mony into of witnesses and the exhibits admitted special phase during evidence, in one of this trial and duty hearing. my sentencing It has to rule on the been your- admissibility of must not concern evidence. You rulings. You disre- the reasons for these will

selves with any gard which either not admitted or evidence by stricken the court. which was determining proposition whether has been In you proved, all the evidence intro- consider of should Every party by parties bearing question. duced is all on pro- whether to the benefit the evidence entitled party by party. another duced credibility judges the wit- You are sole testimony weight given be and of what nesses you any considering testimony witness In each. ability opportunity and [sic] take into account make memory observe, man- the witness' interest, and witness to prejudice any testifying, or bias ner while Kentucky (1983); Lile, 224, 228, 581 121See In re 668 P.2d 100 denied, 2088, reh'g Whorton, 444 Ct. 60 L. Ed. 2d S. U.S. L. 2d 100 S. Ct. 186 U.S. Ed.

75I may have, witness the reasonableness testimony the witness considered of all light evidence, and any other factors that bear on believability and weight. remarks,

Counsel's statements and arguments are help you intended to understand the evidence and apply They the law. evidence, are not however, you and should remark, disregard any statement or argument which is not supported by the evidence or the law given you by the court. lawyers have the right duty and the any make

objections they which deem appropriate. Such objections should not you, you influence should pre- make no sumption because of objections by counsel.

The law permit does not me to comment on the evi- in any way dence I have not If intentionally done so. it appears you I have commented, so during either the trial or giving of these instructions, you must disregard such comment entirely.

Court's instruction (penalty phase).

Jurors should consult with one another and deliberate with a view to reaching verdict, unanimous if it can be done without violence to individual judgment. Each of you must decide yourself the case for but only after an impartial consideration of the evidence with your fellow In jurors. deliberations, course of you should not hes- itate to your re-examine own views and change your opinion if you are convinced it However, is erroneous. you should not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinions your fellow jurors, or for the mere purpose of returning a verdict.

Court's instruction (penalty phase). question you

The Having required are to answer is as follows: mind the crime of which the defendant has been found able doubt are guilty, you convinced beyond a reason- there are not sufficient cir- mitigating cumstances to merit leniency?

If you unanimously answer "yes," the sentence will be death. If you unanimously "no," answer if you are unable to agree be life imprisonment answer, on a unanimous the sentence will possibility

without of parole. In deciding question posed, may the jury consider factors, relevant including but not limited to the fol- lowing: (1) age of at the time Whether the crime leniency; calls for

(2) accomplice a the defendant an Whether person where the another murder committed defendant's participation rela- in the murder was tively minor; (3) under duress or the defendant acted Whether person. of another domination possibility imprisonment or of release Life without (1) parole his shall not have that: the individual means by any judi- suspended, deferred, commuted or sentence cial (2) Paroles or Prison Terms and officer; the Board of parole the individual or reduce shall never its successor the (3) person period confinement; shall not be of any type good calculation; time of released as a result of (4) permit Department Corrections nor shall furlough program. any person participate in or release (penalty phase). instruction Court's proceeding, special sentencing During the State beyond convincing you a reasonable has the burden mitigating sufficient circum- there are not doubt that leniency and that the death merit stances to should therefore imposed. be for which a reason exists and A doubt is one reasonable may lack of It is from evidence or evidence. arise mind of a reasonable would exist such a doubt as fairly carefully considering fully, person the evidence all of after If, after such considera- or lack of evidence. abiding you tion, that there are not suffi- have an belief leniency, you mitigating are circumstances to merit cient satisfied beyond a reasonable doubt. phase). (penalty instruction Court's mitigating A is a fact about either circumstance in fairness or which or about the defendant offense extenuating reducing mercy may or be considered as culpability justifies degree a sentence which moral justify although death, or excuse does of less than the offense. mercy appropriateness is itself of the exercise of determining you may mitigating factor consider beyond proved a reasonable doubt the State has whether penalty is warranted. that the death mitigating are consider as circumstances You also to you concerning the defendant other factors find

to be relevant. (penalty phase). Court's instruction 5 you Because have found the defendant Kwan Fai Mak guilty aggravated you murder, have been reconvened special sentencing proceeding. for this duty It foreman's to see discussion is carried orderly fashion, on in sensible that the issues sub- your fully fairly mitted for decision are and discussed every juror and that has a to chance be heard and to participate before upon question in the deliberations each jury. will You be with all of the furnished exhibits admitted sentencing evidence, these instructions verdict form. question. you must one All You answer twelve of must you agree all question "yes" before you answer a or "no". When agreed, question fill in of have the answer to the express your you in the verdict form to decision. When by

have filled for form, answer called the verdict notify sign it foreman will the bailiff who will you your conduct into court to declare verdict. argument You will now listen of counsel. Frank D. Howard

/s/ Judge (penalty phase). Court's instruction 6 Following special jury is the verdict returned fol- lowing penalty its deliberations at the conclusion of phase:

ToAs I-XIII Counts Having in mind the crime which the of defendant has you guilty, beyond been found are convinced a reasonable mitigating doubt that there are not sufficient circum- leniency? stances to merit

Answer: (In which case the defendant shall be sen- "Yes" [x] death) tenced to (In

[ ] "No" case which the defendant shall be sen- imprisonment possi- tenced to life without bility parole) Agree" Unanimously (In which case To "Unable

[ ] life shall be sentenced parole) imprisonment possibility without namel_ [foreman's /s/ Foreperson we have summarized reasonably possible, To the extent error. instructional each of these claims of decision on our These are as follows. (Issue 24).122 "sympathy". instruction on

Lack an made phase, court penalty the outset At separate sentencing pro- this was a clear to the to consider right gave Instruction 5 ceeding. "mercy" "Mercy" find relevant. might factors it

as well as other "compassion". both defined terms of "sympathy" and 123 are and did leeway sympathy had full to argue The defense so. the death should

Lack of an instruction that spirit imposed solely or in a of ven exact retribution be (Issue 25). geance. Rhay, 78 Wn.2d Hawkins v. at the (1970), an instruction requiring P.2d such case, was decided particular in that

retrial of the defendant in their enacted penalty statutes were before the death penalty proceeding is form, separate there a present where is on proceeding the entire focus and wherein circumstances mitigating or not are sufficient whether there contrary to the leniency. argument merit Defendant's to in in argue this case did notwithstanding, solely to exact penalty seek the death vengeance of spirit complained of statements as "the Such retribution.124 124, 130, Quinlivan, 1268, 72 A.L.R.3d 835 122See State v. 81 499 P.2d (1972). Dictionary 1413, International 2317 Third New 123Webster's Florida, 782, 798, 2d v. L. Enmund in U.S. 73 Ed. that 458 124We observe (1982), Supreme Court states: the United States S. Ct. (1976),] Gregg Georgia 96 S. Ct. 2909 49 L. Ed. 2d v. U.S. [428 "In crime, pun- man is the for this for this proper punishment crime, that is the by law for this provided ishment Considering improper argument. were not of death" penalty indeed. committed, mild statements they were the crimes "convincing you" The use instruction (Issue 26). 10.95.060(4) "proving you". RCW to instead provides: at the and argument of the evidence

Upon conclusion shall retire proceeding, jury special sentencing deliberate in mind "Having upon following question: found guilty, the defendant has been the crime of which there beyond a reasonable doubt are are not sufficient iency? convinced you merit len- circumstances mitigating " ques- an affirmative answer In order to return find subsection, must so by posed tion unanimously. ours.) in accord- (Italics instructed the The trial court in its instructions 3 and as well therewith ance (which proposed the form verdict special defendant). express- While excepted None of these was to. than rather "proving" burden terms of the State's ing language in the instructing "convincing" preferable, language in the Instructing usually proper.125 is also statute presented. here error the situation was not of the statute mitigating circum- sufficient instruction that Lack of an 27). presumed. (Issue leniency Instruc- are to merit stances reasonable doubt" standard "beyond a 4 contains the tion burden on State has the provides specifically ver- special language jury. before the the issue in this burden the State's underscores then itself dict regard. along proceeds this issue on argument

The defendant's death is said opinion announcing judgment observed '[t]he capital crimes purposes: deterrence of principal retribution and social two serve omitted)." (footnote S., by prospective 428 U. at 183 offenders.' (1982); Price, State v. App. P.2d 1191 33 Wn. 125See State (1979). Levage, App. 594 P.2d 23 Wn. of inno- presumption lines: the omission of a the following error in a criminal case is a constitutional instruction cence McHenry, State v. (citing reversal requires which (1977)); he 213-14, presumption (i.e., mitigat- in this case there are sufficient advocates constitu- leniency) merit is likewise circumstances to ing the defendant at though that even tionally required; mitigating no instruction on this sufficient proposed (and to exception took no presumption circumstances basis), a con- any being 4 on that or other this instruction compelled to error, this court is nonetheless stitutional (RAP 2.5) reverse the and should on this basis consider it defendant's conviction. is that there argument in the defendant's

The flaw of sufficient right presumption constitutional is no leniency. presump merit circumstances mitigating hand, very innocence, lies at the foun on the other tion of law; its of our criminal dation of the administration Deuteronomy, through traced from antecedents have been the common law of law, common law and English Roman ancient equivalent There is no simply States.126 the United presumption constitutionally required similar antecedent or circumstances to merit mitigating "sufficient respect with been convicted of already who has leniency" person for Thus, is no in the first there degree. murder aggravated regard. error reviewable claim of stating that the fact the defendant an instruction Lack of sentencing proceeding testify special is not to did not (Issue 28). against him. Had such an instruction used be have been presumably given. would requested, been however, event. This Here, unnecessary it was before the testimony actually was because the defendant's guilt phase, had testified at the since the defendant for testimony 1 that before instruction phase. its consideration States, 432, 453-54, L. Ct. 394 United U.S. Ed. 15 S. 126Coffin jury, during instruct the a failure to there was Whether (as consequences phase, penalty of its decision to the as the 10.95.060(1)). (Issue 29). required was There no RCW penalty phase, the trial of failure. At the outset the such " specifically jury will [t]he the sentence court informed possibility imprisonment of life without the be either parole, special penalty penalty." phase the The death entirely also made this clear. verdict part 1, of informed Whether that instruction which testimony jury it the and evidence the could consider improper guilt phase, at was and an unconsti the admitted (Const, 16). 4, § the evidence art. tutional comment on (Issue 30). 14, As connection with Issue discussed Similarly, proper. part it was not a the instruction convey to because it did not the on the evidence comment judge jury personal of the toward the merits the attitudes of the cause.127 improperly compelled jury the the

Whether instructions unanimity. (Issue 31). They did The not. instruc- to reach para- together particularly tions, with the last when read option special gave graph verdict, to the the unanimously statutory question agree to the answer (RCW 10.95.060(4)) jury. before the could consider

Whether relevant factors (see deciding statutory question 3, instruction at issue eight para. (3)) factors" should have included all "relevant just (RCW 10.95.070), than in the rather listed statute 32). (Issue it This is the converse three that did. respect usually presented question with has been statutory listing eight "relevant of all (i.e., that statute prejudicial imparted error into in the instruction factors" case).128 eight 10.95.070 factors contained RCW Johnson, Foster, 466, (1979); State v. 481, v. P.2d 789 127State 91 Wn.2d 589 (1981). 807, 810-11, P.2d 413 29 Wn. App. Campbell, (1984); Rupe, 128State v. 663 P.2d 101 Wn.2d (1984), denied, _U.S__, Ed. 2d cert. 85 L. S. Ct. function of miti to the nature and merely provide guide circumstances; serve as illustrations of the fac they gating if determining there wish to consider jury might tors the leniency.129 merit circumstances mitigating are sufficient at the time the colloquy between court and counsel were shows that instructions settled penalty phase jury having any counsel the gave option trial court defense in instruction 3 statutory mitigating factors included discussed, cir previously mitigating that he chose. As instruction, instruction also defense gave cumstances within There was no range argue. counsel a broad which to err or.130 appropriate single special

Whether a verdict form was phase. (Issue 33). on this argument Defendant's special respect is much the same as it was with point phase; verdict in the our answer is also much guilt penalty phase was instructed at the jury same.131 question unanimously agree it on the answer to the had to issue,132 specify to so place and the verdict contained a There unanimously agree. in the event the could not unanimity. Further- of inappropriate requirement was no more, the trial as to phase there was no issue either of the crime or the difference either being any there victim as respect any situation with to one defendant's error.133 with other victim. This not compared The defend- through Thirty-Four Forty-Nine. Issues what listing his of error with a assignments ant concludes capital 14 fatal defects in Washington's he considers to be he statutes two other claims what terms punishment plus error". "supplemental assignments of 129Campbell, at 28. Jeffries,

130State v. P.2d 21. 131SeeIssue (penalty phase). instruction 6

132Court's Jeffries,

133See at 419-20. 16 final assignments these We conclude Conclusion. without merit. error are capital punishment in the statutes defects The claimed Issue 34: Does RCW 10.95.040 14 issues. following raise the doctrine? Issue 35: Should separation powers violate the by indictment charged grand jury have been the defendant Issue 36: Did the combined information? by instead of obtaining grand RCW 10.95.040 and effect of separa- indictment exacerbate the claimed violation vio- Issue 37: Does RCW 10.95.040 doctrine? powers tion of federal and state equal protection late the clauses of the unconstitutionally Issue 38: Is RCW 10.95 constitutions? an Issue 39: Does RCW 10.95 constitute for vagueness? void the executive authority delegation legislative unlawful promote Issue 40: Does RCW 10.95 government? branch of in violation of the Four- administration of law unequal 41: capital punishment Amendment? Issue Do the teenth constitute, effect, death mandatory penalty statutes Amendment and article Eighth statute in violation of the section of this state's constitution? the statu- our of the issues raised listing

We continue cap- in the tory defects the defendant claims are contained 10.95.060(4) 42: Issue Is RCW punishment ital statutes. on proof the burden of unconstitutional because shifts Issue 43: Because issue the defendant? the death miti- articulation of which require jury do not the statutes they were were found and how circumstances gating deny right appellate defendant's they do weighed, 10.95.130(2) (b) a legislative 44: Is RCW review? Issue function, hence a exclusively judicial an upon encroachment Issue 45: doctrine? powers separation violation to rebut deny right a defendant RCW 10.95.120 Does 46: Is RCW Issue judge? to the given information genuinely it does not because 10.95.020 unconstitutional penalty? death for the persons eligible the class of narrow because the unconstitutional And, 47: Is RCW 10.95 Issue punishment? and unusual constitutes cruel death "supple- terms by what the defendant The issues raised 760 Issue 48: Was it error assignments

mental of error" are two. scruples for all who held absolute jurors to exclude cause by 49: Did the find- jury, Issue against penalty? the death factors, defendant's double violate ing aggravating two multiple punishments for rights by imposing jeopardy same act? answered in the negative have been issues foregoing in opinions following opinion, or our recent this 398, (1986); v. 105 Wn.2d 717 P.2d 722 Jeffries, State

cases: (1985) 844, Bartholomew, 104 v. Wn.2d State 763, v. 104 (Bartholomew III); Ng, State Wn.2d Benjamin Kincaid, 304, v. (1985); State 103 Wn.2d 692 P.2d 63 713 1, (1985); State v. 103 691 P.2d Campbell, Wn.2d P.2d 823 denied,_U.S._, 526, (1984), 85 L. 105 cert. Ed. 2d 929 Dictado, (1985); 277, v. 2169 State 102 Wn.2d 687 S. Ct. (1984); Rupe, 664, v. P.2d 172 State 101 Wn.2d 683 P.2d (1984); Bartholomew, 631, v. P.2d State 683 571 (Bartholomew (1984) Bartholomew, II); 98 1079 173, (1982), State's cert. granted, 654 P.2d 1383, 1203, 3530, 77 L. 2d Ct. U.S. Ed. 103 S. defendant's denied, L. 2d Ct. cert. U.S. Ed. 103 S. I). (1983) (Bartholomew be purpose useful would No therefore, this we by again ground; same plowing served to do decline so. Fifty Fifty-Two. are These three issues through

Issues by the for court to specifically posed Legislature those this in our review all death sentences. The appellate answer for us requiring questions statute so states to determine as follows:

(a) evidence justify Whether there sufficient question 10.95- finding posed affirmative RCW .060(4); and

(b) sentence or dis- Whether of death excessive cases, penalty imposed similar proportionate For the the crime and the defendant. considering both subsection, cases" means cases purposes "similar Washington Reports Washington or reported Appellate Reports January

since which pun- imposition capital considered the judge

761 exe- was or imposed it of whether regardless ishment been filed with have reports in which cuted, and cases 10.95.120; RCW court under supreme about brought was (c) of death the sentence Whether passion prejudice. through 10.95.130(2)(a)-(c) (part).

RCW 50). (Issue Sufficiency The question the evidence. " course, was, [hjaving this: required was to answer jury found has been of which the defendant mind the crime doubt that beyond a reasonable you are convinced guilty, merit circumstances mitigating there are not sufficient returned jury penalty phase, At leniency?"134 question "yes". answering verdict special unanimous sufficiency of aspect the first of our We perform that, analysis by using review function the evidence in the most favorable light the evidence viewing after have found suf trier of fact could rational prosecution, beyond a finding this affirmative justify ficient evidence to Virginia, v. 443 U.S. the Jackson doubt. This is reasonable (1979) 560, S. Ct. 2781 test for 307, 319, L. Ed. 2d 99 61 in State v. by this state (adopted the evidence sufficiency of (1980)) 221, and which 216, Green, 94 Wn.2d by the statute.135 question posed the first apply we here crime the facts of the concerning the evidence Viewing test, the defendant was crime of which to this according murder of 13 premeditated was the intentional found guilty up robbery and for cover the course of a during people, claimed factors mitigating purposes. (2) twenties; he (1) early was in his his age were: —he per- another murder committed accomplice to a was an minor; was in the murder participation where his son of another domination (3) under duress or he acted 10.95.060(4). 134RCW denied, 242, 280, State, 276, 454 cert. 276 S.E.2d 247 Ga. v. 135See Justus 1093, denied, 193, 366, reh'g L. 70 Ed. 454 U.S. 102 Ct. L. Ed. 2d S.

U.S. State, (1981); McClesky S.E.2d 633, 102 245 Ga. 2d S. Ct. denied, S. Ct. 253 66 L. Ed. 2d 449 U.S. cert. likely did showed that by its verdict person.136 factors. mitigating or the third not believe either the second decided he armed, but whether The defendant if he was not a unknown. Even or not is "triggerman" was a where, as however, determinative is not "triggerman", he is the one who here, overwhelming the evidence is in killings carry out supervised helped and planned, of his confederates. identity and that order to conceal his Campbell, here, concluded as the court We conclude to find suffi- find it difficult that "we too 103 Wn.2d leniency. Thus we to merit circumstances mitigating cient jury's justify there was sufficient evidence conclude finding." affirmative dis- death excessive or the defendant's sentence of

Was cases, penalty imposed proportionate con- similar to the (Issue 51). sidering For the crime and the defendant? under Issue we answer length reasons discussed at "no". question brought of death was about

Whether the sentence (Issue 52). connection, through passion prejudice? In this or allega- reiterates various of his his brief discussed separately raised and previously tions of error our by reiterating served purpose No valid would be above. here; say, they suffice to do not on these matters decisions the sentence of death was showing constitute com- prejudice. or No other through passion about brought the death sen- presented showing petent evidence through passion prejudice. or tence in this case came about any time defendant did not at We further note that either King County, from before change seek a of venue jurors, very voir dire examination after extensive felt he could the defendant suggesting thus at least County. in King receive a fair trial a detailed review up. We have conducted

To sum reread the trial, and have read and record of this lengthy that none of filed herein. We are satisfied voluminous briefs ’See court's instruction (penalty phase). the assignments of error is well taken and that none of issues raised shows reversible error. The defendant was tried, fairly convicted on all pay counts and sentenced to the supreme penalty prescribed by the laws of this sover- state. eign

Affirmed.

Dolliver, C.J., Brachtenbach, Dore, and Callow, Goodloe, Durham, JJ., concur.

Utter, J. (dissenting) disagree with the majority's —I disposition appellant Mak's claims concerning admission of certain evidence during both the guilt sentencing phases of which the trial connected a party third crimes at the Wah Mee Club. My more fundamental con cerns with the constitutional objections pen to the death alty already statute have discussed, been see State v. Campbell, (1984) (Utter, J., concurring part, dissenting part), denied, cert. 105 S. Ct. 2169 These address many of the other issues raised the defendant and I refer the court to them. There would seem to be little that could be said that might convince jury a that one who participated in the kill- ing of 13 people should have his spared. life yet, And under the case, bizarre facts of this two of the three participants in this crime have been spared One, the penalty. death Tony Ng, Canada, because he escaped to not could be with charged capital a successfully offense and be extra- dited to the United participant, States. The other fired who shots, most of the penalty. Only did not receive the death one actor in this most brutal of all committed killings within this state received the penalty. appellant death The here characterized the State as the one planner, who event, orchestrated the whole and on this basis State argued, as one he of its two distinct grounds, deserved the death penalty when the other two participants in this crime did not. from

The defendant attempted to introduce evidence 764 in fact someone else orchestrated argue

which he could role, and, in as the particular, Benjamin Ng's crime shots, most was more central than firing one of had To fail to allow evidence maintained. prosecution I cannot reconcile with either jury something before the process. constitutional due statutory procedures or our the penalty in at least have been admitted evidence should prop- RCW 10.95.060. It also was of the trial under phase trial and admissible phase erly guilt offered 401. under ER

I at the mitigating for the admission of evidence The rule v. capital cases was stated Lockett sentencing phase of (1978): Ohio, 586, 973, L. 2d S. 2954 U.S. 57 Ed. 98 Ct. 438 that the require and Fourteenth Amendments Eighth . a . . be from as precluded considering, sentencer mitigating any defendant's character factor, aspect of the circumstances of the offense that or record than proffers the defendant as a basis for sentence less death. omitted.)

(Footnote 604, approval 438 at cited with U.S. Bartholomew, 631, 645-46, P.2d State v. 683 (1984). rule that corrective mecha- recognizes 1079 This See 438 at capital nisms are not available cases. U.S. 605. Eddings Oklahoma, v. 455 L. Ed. 2d also U.S. 71 (1982). S. Ct. case, course, Washington In present the relevant evi- relevant permits present any statute evi- dence, of its under the rules regardless admissibility Bartholomew, 101 also v. 10.95.060. See State dence. RCW P.2d 642; Rupe, Wn.2d this, the trial Despite appellant, sentencing that, if to consider evidence judge refused to allow impose true, taken have influenced the may well dis- concludes, without a lesser majority only sentence. nor cussion, proba- relevant evidence was neither this tive. evi- "relevant Rule of Evidence 401 defines

Washington dence" follows: having any tendency

evidence to make the existence any fact that consequence is of to the determination probable the action more be than it would probable or less without evidence. 1979). (5th

See also Dictionary Black's Law rev. ed. Furthermore, relevancy this court has declared the test of "'tendency to be "whether the has a to make the evidence proved probable existence" the fact to be "more or less without the evidence'." State v. probable than it would be (1982), cert. Renfro, L. denied, U.S. Ed. 2d 103 S. Ct. 94 686-89, we that evi supra In State v. concluded Rupe, probability dence that tended to increase the of defendant's Likewise, was relevant. evidence tends guilt probability a guilt decrease of defendant's is relevant. majority's proffered classification of the evidence as probative neither relevant nor is not warranted. Appellant (1) Mak's offer of proof consisted of the evidence: following party planned third to control gambling the Interna- (2) District; tional party third contacted Benjamin Ng day (3) on the of the Wah Mee killings; party was a "banker" for an International District gambling club that down; (4) had just closed an informant told police (5) person members; this directed young gang Benjamin Ng's car had been person's seen at the an restaurant hour crime; (6) before the person offered to sell Benja- min aNg bulletproof vest a week before the Wah Mee inci- dent. evidence,

Without the jury possible was unaware of a connection, third party which appellant connection about evidence, if Mak claims he was ignorant. Because the believed, tended to it was appellant decrease Mak's guilt, relevant ER under the definition outlined in Renfro 401.

However, if under even the evidence was not admissible is not definition outlined ER that definition for controlling. RCW 10.95.060. Less standards restrictive 766 applied probative are evidence

relevance and value to phase sentencing mitigating of trial. circumstances at the Bartholomew, v. 683 P.2d 1079 (1984). ques- This "when faced with the is because is put death, be tion whether or not the defendant should to any evidence of the defendant should be allowed to submit mine.) (Italics ..." . . . the circumstances offense 604). (citing Ohio, 438 at Wn.2d at 646 Lockett v. U.S. party clearly rele- Evidence of the involvement of a third is directly jury's Mak vant to decision to sentence claim that relevant answer State's the defendant Blankenship in this case deserved See alone to die. (1983). State, Ga. 308 S.E.2d 369 appellant presented regard- Where, here, as has evidence ing party, the involvement of a third such evidence should during phase sentencing received be of the trial. Such appellant judged evidence assures that the is an individ- supra. Ohio, See Since, ual. Lockett v. under ER 401 and relevant, RCW 10.95.060 the evidence was the trial court refusing during erred to receive this evidence the sen- tencing phase of trial.

II Additionally, majority statement concludes by party Benjamin Ng, third have which would necessary appellant for Mak's established foundation hearsay. hearsay, proof, Although is the statement offer 804(b)(3). under ER was admissible 804(b)(3) provides: ER Hearsay (b) Exceptions. following are by hearsay if the declarant is unavail- rule

excluded as a witness: able (3) Against which A Interest. statement Statement contrary making far its so the time of proprietary far pecuniary interest, soor declarant's liability, subject toor him to civil or criminal tended to render invalid a against another, that a claim him position not have made his would

reasonable man in true. A statement be he believed it to statement unless tending expose the declarant to criminal liability and exculpate offered to the accused is not admissible unless corroborating clearly circumstances indicate the trust- worthiness of the statement.

Although the offer to sell a bulletproof vest to Benjamin 1 week before Ng the Wah Mee murders is not a direct statement against interest, the third party's that fact is not controlling. statement "need not have been a clear and unequivocal admission of criminal conduct." State v. Par ris, All that required is that the declaration would tend to him subject liability. Barrett, to criminal United States v. 539 F.2d (1st 1976), Cir. Parris, cited with in State v. approval supra. Barrett,

In the defendant offered testimony witness which tended exculpate to him as a participant in the theft and sale a stamp of collection. The Appeals Court of for the First Circuit held that the remarks tended to subject declarant, Tilley, to liability criminal they strongly because implied his participation Barrett, the stamp crimes. at 251.

Other jurisdictions have also followed the rule that a declaration against interest is not confined to "clear confes- (5th sions." In Alvarez, United States v. 584 F.2d 694 Cir. 1978), the court held that statements made the purpose for setting up a drug against transaction were declarant's penal See interest. also United Bagley, States v. 537 F.2d (5th 1976); 162 Cir. United States Benveniste, v. 564 F.2d (9th 1977). 335 Cir.

Here, declarant offered sell bulletproof to vest Ben- to jamin Ng. Although this clearly statement does not and unequivocally amount to an conduct, admission of criminal it does imply that the declarant was involved the Wah Thus, Mee murders. the statement was made furtherance of a criminal act qualifies and as an admission against penal within interest Barrett holding set and cited with approval Parris.

The statement also satisfies the other two prerequisites 804(b)(3). First, must unavailable of ER the declarant be Valladares, State efforts to locate him. v. despite good faith case, In appel- 99 Wn.2d himself, but call declarant a witness lant offered to Thus, made a good faith effort appellant was refused. prerequisites to the court within avail the declarant 804(b)(3). ER by corrobora

Secondly, accompanied the statement was Valla its trustworthiness. ting indicating circumstances dares, evaluating other factors Among 99 Wn.2d 668. statements, considera extrajudicial the trustworthiness of the declara proximity tion to the close given should be crime, spontaneous the statements were tion whether interest, there and whether penal declarant's against Dictado, v. to lie. State reason for declarant apparent was (1984) v. (citing 687 P.2d 102 Wn.2d (1976)). Boast, 553 P.2d before the Here, only was made week the statement above, the statement Secondly, as discussed murders. interest, finally, state penal against declarant's exculpatory, implicating than ment was rather inculpatory Thus, not in interest it was declarant's only the declarant. Parris, 154, 654 P.2d 77 lie. See State (1982) (Williams, J., dissenting). have been I the statement should

Because believe admitted, appellant's proof I conclude that offer further Downs, in Wash. stated State satisfied test 716). (1932) at The trial court (majority, P.2d 1 proof. offer of refusing appellant's erred in Ill raises, in evidence The court's refusal admit issue, does not majority turn, which the proportionality crimes, a life Benjamin Ng received the same discuss. For justifies must die. sentence, Mak appellant while (1) characterized as Mak is grounds: on two result similar crime, being role Ng's orchestrated one who crime, in the Brief only participated in that he also (2) 88; differences between personal Ng at Respondent, the different results. Mak justify the first of these Had the

My quarrel is with two bases. admitted, it evidence been could have raised contested in alleged autonomy about Mak's and control doubts the issue central crime. Because of Mak's control was so penalty proceedings, party's the evidence of a third involvement the crime was relevant both to the issue of control and the issue itself premeditation. should have been allowed weigh that evidence deter- whether mining accomplices Mak should die while his live. This seems true especially when State has conceded Mak, that it believes Ng, not killed most of the victims. Brief Respondent, 88. Presented with evidence control, rebutting Mak's as well as State that concessions shots, Ng fired most of the well have been jury might death, reluctant to sentence Mak to knowing Ng would we, Mak, spared. Mak, be Neither nor will ever know. how- ever, speculate has less time to about the possibility. elsewhere,

IAs have indicated see Campbell, 103 Wn.2d J., (Utter, at 41 concurring part, part), I dissenting do not believe that our death penalty statute meets constitu- Nevertheless, issue, tional standards. even I conceding that hold, reasons, would for the above the trial court erred to admit the evidence and refusing would remand so that the jury consider all relevant evidence might before decided Mak should die while his coconspirators live. J., J. Pearson, Utter, concurs with Reconsideration denied 1986. August

Case Details

Case Name: State v. Kwan Fai Mak

Court Name: Washington Supreme Court

Date Published: Apr 24, 1986

Citation: 718 P.2d 407

Docket Number: 49966-7

Court Abbreviation: Wash.