State v. Lord

decision The Commission of the sanction. to the imposition service as to discontinue her ordering Niemi and censuring reversed. hereby judge pro tempore C.J., Brachtenbach, Andersen, Utter, Dore, JJ., concur. Smith, Guy, Johnson, Durham, 5, 1991.] [No. En Banc. December 54385-2. v. Brian Respondent, Keith Washington,

The State Lord, Appellant. Fitzer, and Michael Lord, Keith B.

Brian Bertha se, pro Trickey, J. appellant. K Asai Clem, and Irene Danny Prosecuting Attorney,

C. Pamela B. for respondent. Deputies, Loginsky, and 30, 1986, the half-clothed J. On September Durham, by was found a horse- Parker body 16-year-old Tracy murdered, and dumped had raped, back rider. She been the brush the side of a had by Tracy road. been missing for more than 2 weeks before she was discovered.

Brian Keith Lord was convicted in the by jury Kitsap County Court of Superior first aggravated degree murder. The jury found that there were not sufficient mitigating circumstances to warrant leniency, and Lord was sen- tenced to death. He appealed directly to this court pur- suant to the review mandatory provision of Washington's death penalty statute, RCW 10.95.100. no Finding revers- error, ible we affirm. begin

We with a brief statement of the State's theory the case in order to provide a context in which to assess the complicated facts of this case. The State relied on well over 100 of trace pieces evidence to its support theory. According State, to the Parker Tracy (Tracy) encountered (Lord)1 Brian Keith Lord at the house of a mutual acquaintance at approximately on p.m. Tuesday, Sep tember 1986. Tracy and Lord had known each other for approximately years. She was late home getting and asked Lord for a ride. He tricked her into going his brother's house after that no ensuring one was there. Once in his brother's Lord struck workshop, her from with hammer, behind her knocking unconscious, and her. He raped then struck her with repeatedly the ham mer, fracturing skull, her and an inflicting additional wound to her vagina. Lord then her wrapped dead body in a U-Haul blanket, it in the of his put back brother's blue truck, pickup and disposed body, blanket, and clothing separate locations. Lord immediately returned to his brother's house, where he hosed out back of workshop truck. The next returned morning he continued to Later, clean shop truck. attempted cover evidence of blood in workshop by rubbing grease into the on the spot Tracy's floor where had body been. confusion, through 1Toavoid defendant Brian Keith Lord shall be referred to opinion introduction, appropriate out this as "Lord". After other members of his family only. will be referred to their first names 838 acquaintances

Lord also offered to friends and to bribes cover his actions. Lord denied that he had committed the crime.

Facts presented We now turn to the evidence which was 16, 1986, September 16-year-old Tracy to On jury. p.m. 3 Parker arrived home from school at approximately Tracy told had riding. She her mother that she was going Sharon Wayne to ride horses to and permission belonging The less than whenever she lived Frye Fryes wanted. a access mile from hidden away Tracy keys provided and mother told Fryes' Tracy's house and area. equipment dark, and then by p.m., her to be home before 7 or 7:30 for left work. Frye one when

No was residence Sharon Frye when returned shortly p.m. left the house before she 8:20 or 8:30 She did notice next p.m. at approximately riding gear was day place. a to the and Tracy neighbor

At 7:15 rode house p.m., 10 or minutes. From 7:30 to to talk for about stopped babysit- who Tracy to visit a Mend p.m., stopped 7:45 left, she she at a residence. As said had ting nearby Tracy got mom home." She "hurry get home before her her the horse "[t]ake Mend she was going told At 8 p.m., to the house and home." Fryes' go straight back friend, called a from the residence. Tracy Frye apparently from work not home returned when her mother Tracy after 9 shortly p.m. defendant, Fryes Lord, Brian Keith had known and, September Lord is years. during a carpenter He

1986, he house. also helped their Fryes remodel keys where the house, access to their knew had he and had kept. Fryes Tracy through were met she came to with her a of times when number spoken home, he Tracy occasionally ride. Sometimes a ride gave Lord. brother, Kirk in a blue truck owned his pickup 16, Lord on met September Between 6:30 7 p.m. contractor, in the Silverdale area to Rongve, Chris with At that Lord was driving discuss construction work. point, friend, to his Parker girl Debby Camaro belonged (no Parker). relation to observed that Tracy Rongve Lord either wearing was an shirt and sweat- orange plaid gray or blue Levi's. also saw Lord take a drink pants Rongve a large meeting from beer bottle. Lord left the before 7:30 to meet with p.m. Although Rongve again Lord was the Lord day, next never appeared. 8-minute,

At 7:44 an p.m., long-distance Lord made call from to his to tell his Fryes' apartment girl house friend that he late for He also his would be dinner. called brother's house. theorized that Lord The State made these calls ensure that no one would be for him and looking one that no was at his brother's house. same

That Don and Carroll evening, Radwyn were also wife, at Kirk Lord's They house. are the of Kirk's parents Don Robin. had been firewood to all hauling Kirk's house day joined and was his wife third by on the Kirk trip. town, were out of Robin and the Carrolls had been watch- house. ing the The Carrolls arrived at Kirk's at approxi- 4:30 mately p.m. Radwyn saw Lord driving out of Kirk's driveway just as were they approaching it. did not They and talk with stop visit, him. During their Radwyn looked in Kirk's workshop noted that it looked At clean. time, Kirk's blue was in front pickup parked of the garage.

After Don firewood, unloaded the Carrolls left for They dinner. did not return to Kirk's house until approxi- 8:30 mately p.m. returned, Debby When they Parker's was parked Camaro workshop in front of the and the blue was pickup gone. "burn smoldering Don noticed a pile" yard side of the house. About 15 to 20 arrived, minutes Carrolls after the Lord up drove workshop the blue He was pickup. driv- "[pjretty fast" ing truck "smoking was and steam- Lord was aware that ing." the truck had a head faulty and that gasket he should not be the truck driving it though only Even was engine. it could ruin the because a shirt.2 wearing Lord was degrees, about 58 from the the house and watched Lord Don into went shirt, Lord, began washing still without window. hose, out the back of the he washed Using pickup. blue He took a it was full of debris. even though pickup, truck and threw it on the from the back blanket from the running where water in an area ground beige the blanket was remembered hose. Don orange. Lord, Lord told Don he talk to Don went out to

When for Kirk and Robin. But cabinet a stereo building walked toward work- to see it and when Don asked I to see it want said, "No, you yet, I don't want shop, it." Don and did not agreed first one to see Kirk to be the that evening. enter the workshop arrived home. 9 Kirk and Robin p.m., At approximately Kirk Robin and inside the visited with Radwyn Don and house, but he visited with did not enter the house. Lord minutes. Kirk the for several workshop Kirk in front of and a shirt. Lord gray pants Lord wearing remembered table, and Kirk also did Kirk cabinet any did not show that When the Carrolls evening. the workshop not enter 10:30 Lord was gone. p.m., left at approximately for that night had been planned A party dinner for him house, waiting had been and the guests Lord's brought to have called at 7:44 Lord was p.m. he when them to use that that he making table was dining they 10 by p.m., appeared When Lord had not evening. him. without ate 10:15 p.m., arrived finally approximately home at

Lord He stood shirt. sweatpants plaid and a wearing gray then walked into minutes, for a and couple doorway living Although the waited guests the bathroom. Lord had not left at 10:30 when p.m. of them room, some temperature approximately 10 miles September tbe recorded 2On Navy degrees p.m., at 8 United States was 59 from the murder scene degrees p.m. at 10 degrees p.m., at 9 acting finally appeared, he was come out. When Lord guests Lord fresh wound had a unusual. Two noticed he he had on Lord told them was late because his arm. say bring working, been but he did not where. He did a table home. morning, Tracy September 17, had not next began making telephone and her mother

returned inquiries. Fryes' it was the also went to the because She place Tracy speaking last knew had been. After to she Tracy's Frye, called the mother went home and Sharon report Tracy missing. In addition to sheriffs office to investigator notifying private sheriff, in, was called family used, searched the area bloodhounds were Tracy September not seen alive after 16. themselves. morning, At Lord at Kirk's 8 o'clock arrived back began cleaning the of the blue house. Lord debris out putting pickup it into his truck. There was about a pickup. in the Lord hosed out foot of debris blue then remainder of the debris. morning, workshop Kirk looked he

When into puddles had on the floor as if it been noticed water recently. possible photo A showed water washed out had stains on the bottom of all of doors that been workshop. Kirk said doors had not stored in the that the been stained before he went California. water Testimony given by Machinski, Robert who had According doing met Lord while construction work. September Machinski, Lord had called him on 15 to ask help scrap Approximately him bum wood at Kirk's. green panels old, stacked in sections of cedar fence were garage front to bum door and wanted them. brought scrap Lord Machinski had wood told he parked they pickup, After blue which was then at Kirk's. remaining scraps they swept lumber, and burned the pile paint chips a and then onto an and into sawdust orange they flipped the debris into U-Haul blanket. As dropped into the fire. his end of blanket fire, They sparks out blanket. shook saw on the Machinski pile near the it it on a of wood blanket, folded and set garage. wearing gray sweatpants, Lord was which night. again Machinski did not see Lord wear after that gray sweatpants The were never located. days again

A later, few Machinski was at Kirk's with pickup. pickup Lord to work on the blue Lord drove the halfway workshop. into the Machinski observed Lord scrape grease sludge engine some and off the and throw it workshop rag piece on the floor. Lord then took a or grease sludge cardboard and smeared the into the damage any middle of the floor. Grease would wood products it touched.

During September girl weekend of Lord and his searching friend told her father that the should occur "in good the Island Lake area because that would be a area to — somebody something happened look if had them." organized time,

At the same two members of an search jeans, jacket panties by shoes, team found a a dirt road near Island Lake. These clothes were identified as Tracy's. they addition, also a found red sweatshirt Company" was never identified. A "D.D. Bean & Sons print matchbook was found under the clothes. A tom red clothing towel was also found with the clothes. Once the found, had been the sheriff's office took over the investi- gation. Monday, September housing

On a search of a con- up orange struction area near Island Lake turned an Moving Storage" blanket with the words "U-Haul printed lying top on it. The blanket was found on vegetation yellow- brush. under the blanket had no ing, indicating only the blanket had been there moldy smelly. short time. The blanket was not Kirk reported owning orange an U-Haul blanket that was missing. When Machinski learned that the blanket had up, police been turned he went to the and told them that burning scrap he and Lord had used such a blanket when jobsite wood. Lord had worked at near where the blanket was found. blanket contained orange clothes and the

Both Tracy's Hair, washed the crime. tied Lord to trace evidence which charcoal, wood plaster, sand, and green paint chips, white all, categories all found. In and sawdust were chips more introduced, even representing trace evidence were of wood fragments These individual of evidence. pieces to 25 items separate and fibers were linked chips, paint her Kirk's locations, body, clothing, including Tracy's "O" human blood Type and the blue workshop, pickup. sweatshirt, towel, red jeans, found on the blue jacket, was was type blanket. blood Tracy's and also on the U-Haul human While there was also "O". Lord's blood is "A". type enough type. there was not panties, blood on the known as addition, enzyme blood contained an Tracy's of the white 2-1, only population. ADA found 9 percent on the U-Haul This was found the bloodstain enzyme blanket. also introduced to link

Evidence to hair was pertaining hair, crime. A coarse which could have body Lord to the Tracy, from Lord could not have come from come but A hair that had the found on the U-Haul blanket. head also found on the same characteristics as Tracy's A on the red sweatshirt which blanket. hair was found hair, Lord's or head but Tracy's was not similar to either Parker's hair found in the hair brush Debbie resembled coarse hairs on the red towel body car. There were also to both Lord's and Tracy's. which were similar of the red towel was dis- origin On September at Wayne Frye an interview with during covered his as a curtain on sheriff's office. had used towel Frye and put he had taken it down door. At some garage point, the evidence he was taken to it with other When rags. clothes, Tracy's the red towel found with room and shown identified it as his. he a forensic 29, 1986, Donald Phillips,

On September Crime State Washington employed scientist sheriff's County Kitsap came to Laboratory, detec- and two investigation. Phillips to aid in the request after one of the detec- workshop Kirk's investigated tives tives happened notice wood and sand at the work chips shop that were similar to the trace evidence found on Tracy's clothing. Samples this trace evidence were taken and sent to the crime laboratory comparison. then used leuco-malachite Phillips green3 examine the blue pickup, workshop, area for surrounding of blood. Some presence items were sprayed others were tested by applying green leuco-malachite with a swab. reaction, and the detectives noted a

Phillips positive blood, consistent with the on the presence workshop floor. The on the floor pattern shown to be in appeared concentric circles. He a 6-foot area near sprayed square the door and noticed a reaction in circular pattern approx- imately 18 inches in diameter at its widest point. Phillips the concentric opined pattern resulted from someone wiping stain, He also oil something up. sprayed large Lord, which had by been created that was on the floor. observed a reaction consistent with the Phillips positive presence blood around the of the stain. perimeter tested Phillips a number of tools without reaction. He then some coiled extension cords sprayed which were next lying to the stain on the floor. In so he doing, a claw hammer that was underneath sprayed lying cords. he the hammer When saw and noticed a positive reaction, he realized that he might have inadvertently the murder the crime sprayed weapon, thereby impairing further, do laboratory's ability to more specific, testing. He immediately took hammer out to the two detec- tives, who both saw the reaction. positive

There was also a reaction consistent with blood on a workshop. door stacked On the inside of the garage door, floor, about 6 to 18 inches above the there were if of blood as had hit the door at drops shaped they high green sensitivity reagent yields 3Leuco-malachite is a low a characteris- green tic color in a matter of 15 to 20 seconds when it comes contact with presumptive, specific, blood. It is a rather than test because leuco-malachite including vegeta- green presence will also react in the of other substances some metals, juices, ble some and rust. to be off the door some velocity. chipped drops Phillips Tracy's lab. These be drops proved at the crime tested "O" blood. human type, type blood over Phillips' In a arose controversy November The Washing- handling workshop. the evidence at an investigation, State Crime initiated Laboratory ton completed Phillips resigned was not because which trial, evidentiary an December 1986. extended During the extent of any possible was held to determine hearing Phillips misconduct or the State. Lord to evidence physical connecting addition to his crime, statements about Lord made inconsistent Wednesday, On September

whereabouts activities. the case first contacted Lord working detectives on time, Lord them had last his At that told he apartment. a or Tracy Wednesday seen about weeks either on prior, she He told Thursday Fryes' riding. when was at he had at his them that on been brother's September he his truck. He claimed that polishing house brother's in the making had been there alone afternoon early table and that "no one had either arrived coffee he was He had also made a "dump while there." departed Lord that between using run" his brother's truck. reported a Fryes' and 7 he had to the house. Lord used p.m. gone his He key hidden to enter the house call brother. minutes, then returned to his stayed about 5 brother's he expect- and for about an hour. Lord said was "partied" California, he his to return home from where ing brother Lord said he returned to his had been for several months. between and 10 apartment p.m. later, 27, Lord at

Three on was days September con- at the same time as two detectives. another Fryes' versation, he was Tracy Lord commented that hoped however, Lord evening, a Later that only missing person. see that he the last one to probably told a witness was had alive, no one knew that she Tracy yet even though been killed. 30, Lord. again questioned detectives September

On same account essentially he related though Even his September activities on there were inconsistencies. Lord said he had arrived at Kirk's house between 8 and 9 p.m. Although he had said that he had seen previously no there, one while he now claimed that Don and Radwyn Carroll were there the entire time. the Car- Contradicting rolls' recollection, Lord claimed he had last driven Kirk's blue on pickup 14, and that that was September also the last time he had seen Tracy.

Lord next with another spoke detective. He appeared and nervous his shaking during conversation. Lord told that detective that he drank beer and last smoked marijuana 3 weeks approximately earlier. He added that beer, when he smoked marijuana drank "he becomes a different person he loses control."

While Lord was on being questioned September was found. A Tracy's body horseback rider discovered the semi-nude body lying short distance from the edge Road, Clear Creek about 3 miles from Kirk's house.4 That evening, was arrested.

Detective Morgan immediately examined the scene where Tracy's was found. When he lifted a section of body hair, he observed a circular Tracy's indentation about size of a quarter, inch, three-fourths of an approximately to one-fourth inch one-eighth deep. depth even Reichert, within the entire indentation. Detective trained the Criminal specialist with Divi- Investigations Force, sion on Special trial, Task was also At he present. that whoever of the opined disposed body did not try carried, hide it. He also said that had been body He, therefore, blood to be transferred dragged. expected from the to the body person carrying it. This was consis- tent with the State's at trial that Lord theory hurriedly then cleaned disposed body, Kirk's. It also up — Lord's out of the he explained attempts stay light did not wish to have the blood on him detected. body speed 4The 3-mile distance from Kirk's house to the can he driven at the Fryes' in

limit 5 minutes 53 seconds. The 3-mile distance from the to Kirk's takes about 6 minutes 30 seconds. On October an body. was done on autopsy Tracy's The medical examiner testified that had died 10 to Tracy 20 days to the date of the He found evi- prior autopsy. dence six soft tissue wounds at various loca- separate tions on head. All of these Tracy's injuries were from a blunt wound, instrument that caused lacerations. One on head, circular, the back of her was roughly approximately VA inches 1 to diameter. There were also wounds to the side and front of her head that had fractures beneath them. The to cause such impact required fractures was the same as the of a fall from impact several stories and was of of force that could cause degree her death. There were also to injuries Tracy's all, front teeth. there had blows, been a minimum of more, seven impact possibly head. The Tracy's wounds have all been inflicted could within approximately frame, same time but it was impossible say which one came before another. They were all inflicted probably within a matter of minutes or hours. The blows which produced fracture to the right front death, of the skull caused probably not instantane- but ously, minutes, within a matter of and would render the victim unconscious. There were no defensive wounds on her A body. wound area, was discovered the genital approximately inch in length and three-fourths inch examiner which the medical deep, opined caused by blunt force. He also found sperm her All vagina. Tracy's injuries could have been caused a hammer.

The blue pickup was on impounded October 1. When floor from the sweepings side of passenger the cab of the examined, were pickup a matchbook from D.D. Bean & found, Sons Company which was similar to the one found with Tracy's body.

Testimony that, was also on given occasions, several from attempted jail to influence people change their statements. On October Lord told his friend him Machinski that he would have had given motorcycle Machinski come to visit him before telling the detectives visit, about the U-Haul blanket. At a second Lord told if the being pink, Machinski he remembered blanket $1,000 truck. instead of he could have and Lord's orange, DeMars, Lord was also visited in Thomas who jail by had known Lord for 3 or DeMars testified that years. him a visit on October Lord asked to tell during sheriff that DeMars was the blue on driving pickup Sep- he tember 16 7:30 and 8 Lord said that p.m. between anyone would his truck and a Yamaha dirt bike to give at driving pickup who would claim to have been the blue time. him visit, After DeMars said Lord called if a several times to see he had found such person. made statements while in a incriminating jail. Lord an inmate Lord Sonny Belgard, trusty, conversation with Tracy that he had "bonked" on "hypothetically" stated "left, hammer, a mallet or then panicked head with came back and her the blanket and up body wrapped Bel- it in the back of his truck and her." dumped threw story. testified that Lord was as he told this gard shaking and that he wished it had Lord said it was an accident that he was afraid of the Belgard He told happened. "eventually would prosecutor because prosecutor, together." this piece Jail trusty Kitsap County

Rex was also a at Harvey he was mop- there. He testified that while while Lord was if he "wanted to cell, near Lord's Lord asked the floor ping said: "I a did not Lord story." Harvey respond, hear When hammer, her the back raped hit her in the head with a or three her in the ditch." Two truck and threw my without later, Harvey, again Lord commented to days me around with cruising "I asked her to go prompting: she her kept I that's where remodeling, the house was hammer, her in raped horse. I hit her in the head with told Har- truck, her in a ditch". He threw my the back a U-Haul blanket." that he blood on vey "got first murder aggravated degree with charged Lord was filed timely The State first murder. felony degree After delibera- the death penalty. notice of intent to seek murder. degree of first tions, guilty found jury found that form, the also jury verdict special use of By Lord had committed aggravated first murder. The degree (1) factors aggravating were: the murder was committed to conceal the crime of first or second or first degree rape (2) or second degree the murder kidnapping; was commit- ted to protect or conceal identity any com- person the crime mitting of first or second degree rape, or first or (3) second degree kidnapping; the murder was com- mitted in immediate flight from the crimes of first or second degree rape first degree kidnapping. jury then reconvened for a special sentencing After

hearing. found there were no sufficient circumstances mitigating to warrant Lord was leniency, sentenced to death. Lord appealed directly to this court pursuant to the mandatory review provision of Wash- death ington's statute, penalty 10.95.100. RCW, Lord raises a number of issues based on alleged pro cedural and constitutional errors in both the guilt phase and the penalty phase his trial. Errors in con alleged nection with the guilt phase of a capital case are reviewed no than differently those in However, noncapital cases. as will be made clear in the discussion of the penalty phase, claims of error raised in connection with the sentencing phase of a capital case are subjected scru heightened tiny.

A number of the errors alleged by Lord are raised for the first time on appeal. The general rule is that courts appellate will not address issues not raised in the trial Scott, State v. 2.5(a); court. RAP 682, 110 Wn.2d 685, 757 P.2d 492 However, procedural rules are more liberally construed in capital cases. State v. Jeffries, 398, 418, cert. denied, 479 U.S. 922 Wn.2d P.2d (1986). Further, claims based on a "manifest error affect a ing constitutional right" may be raised for the first time 2.5(a)(3). on RAP appeal. Our review begins with errors in alleged connection with the guilt phase.

Guilt Phase Trace Evidence The State presented expert testimony by members of (crime lab) the Washington State Crime Laboratory on Microanaly- analysis. and blood microanalysis comparison of minute comparison parti- sis is identification and case, fibers, hair, metal cles and this objects. charcoal, chips, plaster wood and fragments, paint chips, using was typed electrophoresis. were The blood analyzed. detected an acid using The of seminal fluid was presence and done comparisons test. Hair fiber were phosphatase which consists two microscope, with comparison single an with a by optical bridge connected microscopes chips fragments and metal were set Paint eyepieces. x-ray spec- with fluorescent spectroscopy, tested infrared microscopy microspec- troscopy, epi-illumination trophotometer. indepen none of these tests were

Lord claims that in the scientific accepted as dently generally validated and, thus, do not meet the standards community States, 293 F. as set forth United admissibility Frye (D.C. 1923) this (adopted by 34 A.L.R. 145 Cir. Woo, 472, 473, 527 P.2d 271 court State v. 84 Wn.2d (1974)). be requires novel scientific evidence Frye on and methods which are principles based scientific acceptance sufficiently gained general established have community. in the scientific 1014. Frye, scientific and methods used principles are comparison microanalysis crime lab for blood are courts regularly admitted generally accepted elec of blood typing using all over the Evidence country. in most courts before long has been admitted trophoresis See, Smith, v. trial, People as as since. e.g., well (1989) (not 25, 678 19, Cal. 3d Cal. Rptr. 215 263 App. notice of judicial previous error for trial to take judge of Santillanes v. electrophoresis); findings acceptability of (1988) (there State, 699, 703-05, P.2d 1147 104 Nev. 765 of test's trustworthiness and was sufficient evidence Adams, v. results); State 418 N.W.2d permit reliability 1988) (sufficient (S.D. of reliabil 618, 621 documentation not admissi goes credibility, and test criticism of ity Partee, 231, 261-63, Ill. 3d v. 157 bility); App. People (forensic (1987) of testimony 1165 serologist's 511 N.E.2d

851 admissible, reliability results of electrophoresis denied, cert. (1988); of 484 U.S. 1072 question weight), State, v. Graham 23, 23-26, 168 Ga. 308 S.E.2d 413 App. (1983) State, v. Robinson (testimony expert admissible); of (1981) 558, 574-76, 47 Md. 425 A.2d 211 App. (electropho for resis found to be scientific of accepted community ensics). Lewis, But see v. 27, People 20, 160 Mich. App. (1987) 408 94 has not achieved (electrophoresis N.W.2d Young, v. People general acceptance scientific on (relying (1986))). 470, 425 Mich. 391 N.W.2d 270 The acid test is a phosphate regularly accepted pro cedure whether sexual has determining activity See, e.g., occurred. It is used in rape cases routinely. (Miss. 1989) (acid State, Evans v. 38, 547 So. 2d 39 phos test of phate part rape evidence kit collected examin (La. Neal, ing physician); State v. 757, 535 So. 2d 760 Ct. 1988) Commonwealth criminalist); of App. (testimony (tes Willie, (1987) 427, 430, 400 Mass. 510 N.E.2d 258 State, Andrade v. timony 585, 700 S.W.2d serologist); (Tex. 1985) Crim. medical App. (testimony county denied, cert. State v. examiner), (1986); 475 U.S. 1112 (Ct. 1984) Singleton, 66, 68, 102 N.M. 691 P.2d 67 App. serologist); State v. Harper, of forensic (testimony (Mo. 1982) (court 170, 171, S.W.2d Ct. ordered App. defendant to submit to acid test and a phosphate police results). testified as to the serologist In State v. Fagundes, 477, 483, 26 Wn. 614 P.2d App. denied, review 198, (1980), 94 Wn.2d 1014 our Court of expert testimony allowed as to the Appeals presence lab, acid witness from the crime phosphatase. expert trial, called at extensively who was also the Lord testified testing general acceptability about her methods and their in the scientific community. Suzuki testified at trial infrared spec-

Dr. Edward are x-ray widely fluorescent troscopy spectroscopy Ford, See State v. community. in the scientific accepted (scientific (1988) princi- 755 P.2d 806 Wn.2d accepted). established of infrared ples spectroscopy generally have also been microanalysis These methods 852 6, State, Irvin v. 28 Ark. See, App.

admitted in court. e.g., (1989) 12, (testimony criminologist 771 S.W.2d 26 Crabb, 107 fluorescence); State v. Idaho regarding x-ray (Ct. 1984) 305, 298, App. (testimony 688 P.2d 1203 infrared State v. spectroscopy); criminalist regarding (1979) 887, 591 P.2d 130 Needs, 883, (x-ray 99 Idaho Trock, admitted); v. Ill. 45 People fluorescence evidence (1977) 297, 836 of FBI 294, (testimony N.E.2d 3d 359 App. with fluores testing x-ray on bone employee crime lab Shea, 28, v. 28 Mass. Ct. 545 cence); App. Commonwealth (1989) (infrared in drug used spectroscopy N.E.2d 1185 Jones, 687, 688-94, 118 identification); Misc. 2d People v. 1983) (Intoximeter 962 Ct. 3000 (Albany Cy. 461 N.Y.S.2d admissible); infrared spectroscopy breath test based on 521, P.2d 523, 648 1304 Dorsey, App. State v. 58 Or. (1982) on infrared (intoxilyzer spectroscopy test based Moore, 548, v. 307 A.2d 549 (relying admitted on State (Del. 1973))). Ct. Super. dealing research did not reveal cases

Although any spe- this method of with cifically epi-illumination microscopy, is also It utilizes a with illumi- analysis microscope valid. coming sample nation down from side of the rather than light upward reflected off the sample, passing is do. It sample regular help- as through microscopes such as particles paints ful in analyzing nontransparent general microscopes and metals. The acceptability unquestionable. also used criminal widely are

Spectrophotometers See, e.g., Anderson, State v. 41 cases to examine evidence. (1985) 85, 99, testi- (criminologist Wn. 702 P.2d 481 App. chemically fied as to use of spectrophotometer compare on on other grounds, red shell rev'd markings casings), State, 745, (1987); 107 517 Williams Wn.2d 733 P.2d (1983) (results of 749, 756, 40 fiber 251 Ga. 312 S.E.2d admitted); using microspectrophotometer comparison (Hawaii 1988) DeMille, 5, App. P.2d 8 Ct. State v. 763 (instrument used alcohol State v. analysis); in blood (La. 1981) Lawson, (expert So. tes- 2d mass test concerning results of timony spectrophotometer performed admitted); drugs on State, Munson v. 758 P.2d (Okla. 1988) App. (testimony 324, 329 Crim. of criminalist spectrophotometer comparison), who used in metal cert. (1989); Dorsey, App. denied, 488 U.S. 1019 State v. 58 Or. (" 'spectrophotometers n.2, 648 P.2d 1304 are routinely by presence used chemists to test for the quantity compounds'" (quoting Dayton of certain v. Schenck, (Dayton 63 Ohio 14, 16, Misc. 409 N.E.2d 284 1980)), (1982); Mun. Ct. review denied, 294 Or. 295 Com Super. monwealth v. Seville, 266 Pa. 587, 589, 405 A.2d (1979) (spectrophotometer enzyme analysis 1262 used content). to show blood alcohol judge allowing

Lord contends that the trial erred in testify particular witnesses to items of trace evidence they "could have" shared a common source or that speculative testimony, had "similar" characteristics. This equal protection Lord, claims process violates his and due rights. arguments Lord's amount to a that, claim notwith- standing general acceptance of the methods used here, the trace evidence was inadmissible because by expert conclusions testified to witnesses were not sufficiently reliable. authority establishing

Lord cites no criminal litigants similarly purpose civil are situated for the equal protection analysis. Accordingly, we decline to reach this issue. See State Dennison, v. 609, 115 Wn.2d 629, 801 (1990). P.2d 193 process expert

As for Lord's due claim, we note that testimony "possible", couched in terms of have", "could or uniformly "similar" is admitted at trial. The lack of cer tainty goes weight given testimony, to the to be not to admissibility. part, its so, This is because the scientific process testimony. involved often allows no more certain App. Batten, State v. 17 Wn. 428, 563 1287, P.2d (1977), review denied, 89 Wn.2d 1001 the defendant argued language expert the "could have" testimony pertaining analysis witness's to hair lacked certainty give efficacy opin- sufficient to the witness's Appeals ion. The Court of held that the conclusion offered 854 art scientific the state of the the witness reflected App.

comparison at Batten, 17 437. See A. of hair. Wn. Starrs, Evidence in Moenssens, F. Inbau & J. Scientific (no (3d 1986) way § ed. known Criminal Cases 8.09 identifying having particu- positively as come from a hair individual). App. Bernson, v. 40 Wn. See also State lar (an expert's 736, 758 use of "could have" 729, "possibility" 700 P.2d where less than an has been allowed cases involved), process denied, is review 104 exact scientific 1016 Wn.2d gener weight given expert's conclusion be App.

ally jury. See Batten, 17 Wn. 438. also left (6th Cir.), Brady, 359, F.2d 363 cert. States v. 595 United (1979); Oaxaca, v. denied, United States 444 U.S. (9th Cir.) imprecise (necessarily nature of F.2d weight to the of the tes the hair identification went timony, admissibility), denied, cert. than its rather (1978); Cyphers, 553 F.2d U.S. 926 United States (7th (1977); Cir.), denied, 434 U.S. 843 1072-73 cert. (4th Cir.), 463, cert. Baller, v. 519 F.2d 466 United States (1975); denied, State, 408 So. 2d 423 U.S. 1019 Jent v. 1981) (Fla. (that analyst posi hair not 1024, 1029 could weight, tively identify went to not hair as defendant's (1982); People admissibility), 1111 v. denied, cert. 457 U.S. (1981) App. Novak, 1024, 3d 419 N.E.2d 393 1028, 94 Ill. (testimony microanalyst that hairs similar admissible weight up jury); speculative, Paxton v. too and not but (1981) (ex App. State, 175, 179, 159 282 S.E.2d 912 Ga. origin pert testimony could have common that hairs admissibility speculation question pure not of and weight), 231, denied, 248 283 S.E.2d 235 cert. Ga. but (11th Cir.), (1981), denied, 469 F.2d 1306 cert. aff'd, 735 (1984); People 40, 50, 421 Allweiss, 48 N.Y.2d 935 U.S. (1979) (generally conclusive 341, 396 N.E.2d 735 N.Y.S.2d analysis, required hair with are not and value of results recognized). limitations, its by Washington State sum, methods used the accepted Laboratory generally scien- within the are

Crime certainty community. expert's lack Further, an tific

855 goes weight testimony, admissibility. to the not its Accordingly, we conclude that the trace evidence was properly admitted.

Summary Charts process by Lord contends that he was denied due admission of demonstrative evidence in the form of two summary by charts and the decision to send the charts to during room deliberations. charts, exhibits 143, 141 and summarized the State's trace evidence. Lord argues during the admission and use of the charts deliberations amounted to an unconstitutional comment argues on the Furthermore, evidence. he that the charts they should not have been admitted because reduced the experts' speculative testimony nonspeculative terms improperly conclusory argumenta- and, such, as were tive.

The use of demonstrative or illustrative evidence is given to be favored and the trial court is wide latitude in determining whether or not to admit demonstrative evi Chapman, dence. State v. 84 373, 378, Wn.2d 526 P.2d 64 (1974); Tegland, 5 K. Prac., § Wash. Evidence at 300 (3d 1989). appropriate ed. Illustrative evidence is to aid understanding the trier of fact in evidence, other where accuracy the trier of fact is aware of the limits on the App. State, evidence. Norris v. 46 Wn. 822, 827, (1987). summary help jury organize P.2d 231 A "can factually complex and evaluate evidence which is fragmentally testimony revealed in the of a multitude of throughout witnesses Lemire, trial." United States v. (D.C. 1983), F.2d denied, Cir. cert. U.S. 1226 summary prose

Because a chart submitted very persuasive powerful cution can tool, be summary upon, court must make certain that the is based fairly represents, competent already evidence before (2d jury. Conlin, 534, the United States v. 551 F.2d 538 (1977). Cir.), denied, cert. 434 831 U.S. This does not controversy mean, however, that there can be no as to the presented. Rather, evidence the chart must be a substan- admitted. of evidence summary properly accurate tially the of weight the worth and judge is then free to jury The United v. Epstein in the chart. summarized evidence denied, 355 U.S. (6th Cir.), cert. States, 563, 570 246 F.2d (1957). very persuasive can be a fact charts summary that their use. with concerns associated tool also rise to gives sum in the the facts alleged might rely upon The jury or as been already proved facts had as if these mary of witnesses. credibility the assessing substitute (6th Cir.), cert. Scales, 594 F.2d 558, 564 States v. United denied, 441 U.S. 946 possibility There is also the additional evi summary the as will treat jury the summation will extra summary provide dence or that Lemire, 1348. These reservations at for the government. to instructions" of "guarding to the requirement have led evidence, is only but chart is not itself the effect that Lemire, Scales, 564; at the evidence. evaluating an aid at 1347. against the only protection are not

Such instructions charts. summary with associated the concerns sometimes such charts are ensure that has a to duty The trial court duty, this The court fulfills accurate. substantially object opportunity defense full by allowing part, by the before it is seen summary chart any portions upon jury might rely Moreover, the concern jury. already if had they as summary facts in the alleged cross minimized allowing complete proved been in connection testifying witnesses any examination Lemire, at 1348. summary. with the for illustrative or chart is used a summary When instructed the sum are jurors and the only purposes evidence, go should summary is not mary Am., Co. Old Line Ins. McCartney room. jury Life denied, review 581, 92, 472 P.2d 93-94, App. Wn. Prac., Evidence § K. Wash. (1970); Tegland, 5B Wn.2d 995 1989).5 (3d dur- only utilized It should be ed. at 386 writings, recordings, complicated contrast, summary or voluminous 5In does evidence that pursuant 1006 is substantive photographs to ER admitted Tegland 386. go § room. 5B K to the

857 in final testimony initial of and/or presentation the ing However, McCartney, at 93-94. if counsel. argument by if, is required only chart is sent with the reversal jury, the record, court determines a review of the entire upon United States the defendant was prejudiced. denied, 421 (9th 1974), cert. Abbas, 504 F.2d 125 Cir. which need Thus, 988 there are two questions U.S. (1) admitted for addressed: the charts properly be were (2) prejudiced by illustrative and purposes, being charts sent to the room? jury The exhibits 141 and 143. charts issue are State's of a of testimony Exhibit 143 summarized number trace evidence and reflected experts téstimony regarding flakes, fibers, charcoal, blood, of metal paints, plaster, of testimony wood This chart summarized chips. Nolan, Cwiklik, Michael Tom Chesterene Cindy Jay, Grubb, Donald Michael James Lynn McIntyre, Phillips, 141 was a much and John Brown. Exhibit Anthony chart, Edward M. Suzuki's smaller which summarized on trace evidence of metal flakes and testimony consisting The of his to white paint chips. portion testimony relating was reflected on exhibit 143. paint chips We our begin analysis by noting complex- the unusual of the scientific evidence in the 37 ity During this case. trial, wit- days jury of heard from testimony expert nesses trace 18 regarding days. evidence on all or of part Testimony 1,364 of the pages. State's experts spanned alone of gave period Brown of over a pages testimony Dr. of trial days. Suzuki's filled 183 testimony pages focus of transcript. Exhibit 143, primary which is the Lord's See challenge, grid. was set out in the form of Across the trace appendix. categories there were top, items or loca- side, evidence. Down the left there were 25 tions where trace There were a total evidence was found. some indicating of 118 "dots" on the correlation chart and items or between trace evidence location. specific is not evidence Trace evidence its nature which a by conclusion to be Any can examine. drawn jury readily necessity required microscopic from the evidence of scientific could testing. view the certainly evi- dence, but there was no it way could com- realistically pare, one wood example, chip with another. Moreover, evidence, if measured by number of types evi- dence and the number locations, items voluminous. The transcript trial testimony was 36 5,674 volumes and pages The charts long. served to help the jury understand and organize factually evi- complex dence introduced witnesses many during a lengthy trial.

Importantly, the jury was made aware repeatedly limits of the evidence reflected the charts. Each expert was examined as to his or her qualifications, experience, methods, and the limits of the method of testing used. Cross examination of each of the experts vigorous, was and the trial judge allowed defense counsel wide latitude scope degree. It also that the trial court appears made every reasonable effort to ensure that the charts were accurate. substantially The court ruled that charts could be modified to the extent were they inac- curate, took care to ensure that great defense counsel had full opportunity to make to the objections information on the charts they before were shown to the jury, invited the defense to make its own chart. While the defense did own, prepare chart of its number changes were made to the at Lord's request State's charts both during expert objections and in testimony response made before the of the jury saw the relevant charts. portions

During his made a number testimony, Dr. Suzuki additions to exhibit 141 He at Lord's added the request: words "different and "different microscopic appearances" compositions" to the "2 exhibit. He also wrote fragments S-08 not received his analysis." Similarly, during tes- Dr. timony, Brown made changes a number of and addi- tions to exhibit A again at Lord's dot request. for the broom #1 was added under red paint category. The word "truck" was crossed out in the category fibers, "carpet truck" and "pale-brown nylon carpet fibers" was changed cotton fabric" A "royal-blue fibers". carpet nylon to "brown for the red sweatshirt with dots added was added category was added "royal" The word U-Haul blanket. orange Three footnotes shirt". labeled "blue category polo to the 1 indicated 143: Footnote to exhibit were added found on fibers orange not determine when Brown could in the which was rope, blanket and on a the blue U-Haul Footnote those items. had been on deposited blue pickup, on the paint there a black undercoat indicated that 3 indicated from the truck. Footnote taken samples from the dissimilar cotton fibers found were royal blue shirt. polo taken from the blue royal control fibers defense objec response were also made Changes the relevant seeing portions to the prior tions "presump labeled category charts. On exhibit blood".6 to read "consistent with changed blood" was tively The chart was deleted. category A "burnt fabric" fence paint samples, there were two to reflect changed corrected regarding exhibit 141 was Similarly, not one. found near the workshop. metal fragments location of make some of the requested declined to The trial court that, to Lord's asser contrary The court ruled changes. of wood chips did tion, testimony support presence objected categories clothes. Lord also to the in the autopsy (defendant)", which was related to body "coarse hair hair", which blanket, body U-Haul and "coarse orange objected categories related to the towel. Lord to both with comport that did not description on the basis hair, or pubic that the hair could be chest hair testimony that it was not chest hair. The court ruled likely more and that had given inconsistent with that been testimony in the as any dispute was free to cross-examine to record. supported by These are testimony.7 rulings noted, court, specifically identifying category defense counsel 6In this for the shoes, door, to, object had dots next to the fact that the column did not but any specific objections. floor, despite being other if there were hammer asked and body Jay "coarse hair" connection 7Cindy that she uses the term testified pubic hair. hair and both chest with Lord also to objected "defendant", the word on the basis the testimony was that Lord could not be excluded as the source of the hair on the blanket. response, court ruled that because the issue of common source was subject dispute between the experts, it was "not inaccurate for [the to category notation] a hair as identify come from the having defendant when there was expert on testimony Furthermore, fact." any possible from prejudice this evidence was eliminated Lord's concession during that he closing argument had contact United States v. Abbas, with the orange blanket. Cf. (9th F.2d 123, 125-26 denied, cert. 1974), Cir. 421 U.S. After determining the charts were substantially accurate, the trial court admitted them as illustrative summaries with a limiting instruction: Exhibits Numbers 141 and 143 have been admitted in evi- dence. independent These exhibits have no existence or evidentiary value in evidentiary and of themselves. The given value to be entirely these exhibits is dependent upon the testimonial and/or documentary proof upon which they based, upon accuracy are and credibility and of the tes- documentary

timonial and/or proof upon which the exhibits are based. The exhibits are you admitted to assist in con- sidering the evidence and for that purpose you are entitled to consider them.

Instruction 8.

We conclude that the admission of the charts illus- trative purposes was not an of discretion. abuse charts were an necessary aid to the appropriate jury in understanding the voluminous trace organizing charts, evidence. Without the State aid of the would been have in the severely presentation of its hampered and, effect, case of legitimate denied the use and cru- cial scientific made evidence. The well aware of the level of able certainty were to experts testify through lengthy exhaustive cross examination. Defense counsel was given make ample opportunity objections disputed entries and chose not to its present Finally, limiting own chart. instruction was proper

861 summary use of the to disallow the If were we given. the circum- to conceive of chart, it be difficult would it would be permitted. stances which to send the decision

Turning to the trial court's room, generally noted earlier charts to the we jury However, room. jury sent to the charts should be of the entire a review reversible error does not occur unless States United that Lord was prejudiced. record establishes Cox, 633 F.2d v. Abbas, see also United States v. supra; Krasn, (9th F.2d United States 871, 1980); Cir. (9th 1980). from send resulting Cir. 1229, Prejudice can prevented chart to the be summary jury ing the trial procedures same protective precautionary admissi considering ensure accuracy court uses to when Abbas simultaneously analyzed The court bility. from prejudice of the charts and the admissibility possible Abbas, concluding at 125. In jury. the charts to the sending the court the defendant had not been prejudiced, an to cross- opportunity there noted that the defense had charts, any witnesses relative to the correct examine the Abbas, errors, and to its own chart. present purported above, the chart here an accurate 125. As noted evidence before the already jury. representation that no resulted from the prejudice To ensure however, we must further ask if the chart error, unduly Lord. For the follow the State's case emphasized against First, reasons, we find that it did not. the court ing no instructed the charts had properly jury to be considered value their own and were evidentiary of the accuracy credibility supporting light The to have heeded the testimony. presumed Grisby, court. State v. 97 Wn.2d instructions Frazier v. cert. denied sub nom. (1982), 647 P.2d 6 Washington, 459 U.S. 1211

Second, testimony, jurors after 18 days expert drawn from the aware that the conclusions to be were well to their addition charts were subject qualification. take notes recollection, during were allowed to jurors deliberations. trial, they during could refer to which notes, doubt, no jurors' supplemented explained expert and further refined testimony the chart.

Additionally, had the court allowed the State to present chart, and then denied the defense the same opportunity, a stronger argument could be made had that Lord been prejudiced However, thereby. the court allowed expressly the defense to make its own chart. The defense did not an alternative present chart, but instead relied summary on changes the made to the charts admitted into evidence. Furthermore, the chart had been altered in response to defense requests Thus, Lord's objections. denotations preserved were for the jury. The submission of the charts to the did jury not the prevent defendant from presenting any charts, evidence. The contradictory therefore, did not case, favor the State's but presented a balanced summary. Finally, assessing the prejudicial impact any given item, it necessary to view that evidence in the context of the entire trial. The State's case against Lord included his to the proximity location, victim time and his prescient whereabouts, comments about her demise and his bizarre crime, in cleaning behavior at the scene of the his attempts witnesses, to alibi his buy incriminating statements to trusties, the officers, statements to contradictory police and the vast of scientific evidence that array inextricably linked Lord to clothes, the blue pickup, shop, blanket, and, U-Haul to orange ultimately, Tracy's body. addition, effort every trial made judge possible ensure that that the jurors the charts were reliable and understood the Based on our use of the charts. proper record, review of the allowing we cannot that say to go unduly charts to the room deliberations jury during the State's to Lord's emphasized prejudice. case of the Lord next the admission charts argues Const, 4, 16, shall provides: "Judges violates art. which § fact, matters of nor com charge juries with respect thereon, ment shall declare the law." purpose but " from 4, jury article section 16 'is to prevent being to it the court conveyed influenced as to by knowledge the evidence submitted.'" Seattle v. the court's opinion (1971) App. Arensmeyer, 120, P.2d 1305 6 Wn. Protective Order (quoting & v. Benevolent Heitfeld Keglers, 655, 18 A.L.R.2d P.2d 685, 699, 220 36 Wn.2d (1950)). Arensmeyer, example, trial court's For say argument during closing he interruption of counsel an unconstitutional as to the evidence was mistaken a comment on "To constitute on the evidence. comment appear toward attitude the court's evidence, it must reasonably inferable from the of the cause are the merits State v. statements." of the court's nature or manner 267, 525 P.2d Carothers, 84 Wn.2d any made trial court that the not contend Lord does regarding opinion its in front of the statements argues alone "trans the chart Rather, Lord charts. speculative testimony expert form to from its forms the Appellant, at 81. He then Brief of certainties." absolute admitting sending the chart and act of that the concludes jury "subtly that the State's to indicated it to the and that the factual issue in fact credible were witnesses evidence] [of should be the trace source of common Appellant, at Brief of 82. We in the State's favor." resolved judge disagree. used in care which the trial The extreme already dealing discussed at 143 has been with exhibit support length. of subtle does not his accusation Lord single to the record. The trial reference influence with charged using with its discretion to ensure is court improper proper is evidence is admitted and evidence standing alone, can evidence, The admission excluded. on the be considered an unconstitutional comment not evidence. Investigation

Internal Phillips, who of Donald a forensic scientist The conduct employed supervisor at the of criminalistics had been as a investigation, during is and after the murder crime lab by alleged subject trial Lord. The of several errors Phillips' number related of motions ruled on a court testimony. summary begin of these motions with a We facts. and the related trial, any testimony by Lord moved to exclude

Prior to from report he had not received yet because Phillips scene or to the of the crime investigation related Phillips an interview with arrange Phillips. been able motion, the court ordered that Phillips to Lord's response present. be with both deposed parties learned that had Phillips Lord During deposition, test for the presence used green leuco-malachite items, On some he used a blood at Kirk Lord's workshop. applied, is and then dye a colorless 2-step process where On other step. an in a applied separate oxidizing agent items, method, dye where the used a Phillips 1-step then applied by spray- are oxidizing agent premixed hammer, which the State tested. The ing item being using was tested weapon, submitted was the murder exclude Phillips' moved to again latter method. Defense method used by contending 1-step testimony the scientific within generally accepted Phillips community. Lord became aware of Phillips' deposition,

As a result the crime lab of investigation Phillips' of an internal investigation. Lord with the murder conduct in connection of the records related motion for production made an oral court granted. Upon the trial which investigation, to the materials, Lord investigation summary of a receipt mistrial, excluding an order dismissal, a moved for Hudson and Wright and detectives testimony Phillips workshop. at the blood with testing connection hearing. evidentiary an also requested of the interviews tapes released notes The court with the internal in connection with crime lab personnel an extensive and conducted counsel to both investigation and activities the Phillips' evidentiary hearing regarding ordered the crime then The court internal investigation. the of all records copies counsel lab to both provide investiga- the concerning given statements summaries of and the Sweeney, of Brown the notes Phillips, tion of and notes sub- attached diagram, report, official written mitted by Phillips. lab indicated that the crime by

The records released homicide the during conduct Phillips' regarding complaint 26, 1986. received on November investigation method had used the 1-step that Phillips alleged complaint had Sweeney after workshop the test for blood to him The com- or method. 2-step drop to use a instructed lied by telling that had Phillips alleged further plaint method and had falsified his drop used the he had Sweeney hammer. The com- had swabbed the to that he report say asked detectives that had Phillips on to state plaint went — that report they indicate in their and Hudson to Wright — at the workshop. found the hammer had Phillips where Phil- noted an odd occurrence the Finally, complaint or dream had that a vision a fellow employee told lips weapon. hammer was the murder revealed that he being investigated, learned he was Phillips When medication, and began taking on sick leave 30-day went from the lab Phillips resigned including antidepressants. 26, 1986, was com- investigation on December before pleted. motions, after find- specifically

The court denied Lord's had no misconduct on the either part that there been ing The court went on to or the sheriff's office. the prosecutor occurred, it within the if misconduct had any say thus, and, only credibility. denying lab went counsel had never motion, the court noted that defense counsel knew from the false because by report been misled and Wright, detectives Hudson the interviews with both had used the Phillips and from Phillips' deposition, Further- workshop. to test for blood at method 1-step evidence more, impeachment abundant acquired docu- investigation crime lab hearing through there was insufficient concluded that ments. The court dismissal, to suppress or a mistrial prejudice grant discovery. cured evidence; had been any prejudice first argues he allegations, to Lord's Turning testify regarding allowing Phillips erred in trial court test for as a presumptive green use of leuco-malachite blood.8 He argues Phillips' testimony regarding testing should workshop have been excluded because the 1-step method spray used does Phillips not comport with the generally accepted standard in the scientific community. Before ruling on the admissibility of on testimony leuco-malachite green, the trial court heard Thornton, from John testimony Ph.D.

Thornton, Lord's own witness, expert testified leuco-malachite is a green generally accepted presumptive test for blood and testified that both methods are used. He testified that while the method 2-step gives slightly (because more specificity than the 1-step method some false positives out), can be ruled both tests are presump- tive, conclusive, for the presence blood. Thornton had reservations method, about the spraying which he believed was an "improvident" method of proceeding. However, he testified that the 1-step spray method is used when searching blood where the area has been cleaned and there is no blood visible to the naked eye. Spraying is also appropriate when searching for a pattern of blood. He noted that the decision on how to proceed is a judgment call to be made by the investigator. heard considerable testimony on this subject

from both Phillips Thornton. The defense had ade- quate to opportunity cross-examine Phillips regarding his actions at the workshop. Thornton's rebuttal testimony spanned pages. The trial court correctly concluded that Phillips qualifications 8Lord does not testify contend that lacks the to as an expert green, witness on the use of leuco-malachite nor that leuco-malachite green presumptive satisfy relevancy as a test for blood fails to and reliabil- ity requirements Frye test. scientific, technical, specialized If knowledge or other will assist the trier issue, of fact to understand the evidence or to determine a fact in a witness qualified by skill, expert knowledge, experience, training, education, as an may testify opinion thereto in the form of an or otherwise. Phillips education, experience ER 702. training testified as to his as a investigator. forensic scientist and crime scene The determination that wit- properly express qualified opinion expert ness is an as an is within the sound Nelson, 269, 276, discretion of the trial court. State v. 72 Wn.2d 432 P.2d 857 admissibility, weight, argument not the Lord's went the evidence. argues right process a fun- his due Lord next damentally the admission of fair trial was violated sprayed Phillips it with leuco-malachite hammer because green, testing. thereby precluding specific effect, more destroyed exculpa- intentionally he claims that the State tory evidence. process Fourteenth

Under the due clause of the the State's Amendment,9 it must demonstrated that be prevailing prosecution comported notions of of Lord with afforded a fairness such that Lord was fundamental meaningful opportunity complete present defense. To to prosecu opportunity, given this ensure that Lord was any exculpatory duty give to Lord tor had a constitutional doubt about his that would raise a reasonable evidence guilt. 479, 485, 81 Trombetta, 467 U.S. L. v. California (1984). 413, Ed. 2d 104 S. Ct. 2528 Phillips

Specifically, that, had used the Lord contends 2-step hammer, additional tests swab method to test the conclusively if there have done to determine could been and, so, it on the hammer if whether was blood Tracy's. If tests had the blood was not such shown argues, Tracy's, then he further a conviction would have perform highly unlikely. opportunity to Because the been specific once it had been tests on the hammer was lost Phillips' sprayed, tantamount Lord claims that actions are exculpatory preserve material a failure State to a fair trial. He concludes he thus denied evidence. that was argument rejected in Arizona v. makes was Youngblood, 281, 109 S. 51, L. Ed. 2d 57-58, U.S. (1988). Youngblood, In defendant was con- Ct. sample A of child molestation and sexual assault. victed to show that a sexual from the victim was used collected routinely procedure did not attack had occurred. Police grouping performed. require and none were tests for blood Washington process a claim under the due clause of the 9Lord does not raise Thus, Constitution, 1, is limited to federal law. section 3. our discussion article 859, 883, Straka, 810 P.2d 888 v. 116 Wn.2d See State sample again date, When the tested at a later any group test failed to detect blood substances. The victim's clothes were also tested for semen more than 2 months after the attack. The clothes had not been refrigerated They positive in the interim. tested testing group typing semen, but for blood was unsuccess- rights process ful. The defendant claimed that his due had samples been because, violated had the tested been shortly they gathered, properly after were or the clothes refrigerated, might eliminating there have been evidence Youngblood, him as the assailant. at 52-54. Youngblood, process the Court found that no due violation had if occurred. The Court noted that a due process claim is based on the State's failure to disclose exculpatory good evidence, material or bad faith on the part Youngblood, (citing of the State is irrelevant. at 57 Brady Maryland, 373 U.S. 10 L. Ed. 2d 83 S. (1963)). distinguished However, Ct. 1194 the Court cases preserve evidentiary where State fails "to material of no which more can be said than that it could have been

subjected might tests, the results of which have exoner Youngblood Youngblood, ated the defendant." held at 57. merely poten preserve that, faith, absent bad failure tially useful evidence of due does not constitute a denial process Youngblood, of law. at 57-58. analyzed using

Lord's contention should be the rule set Youngblood. forth Lord's claim that the hammer could yielded have more information is no different from the Youngblood. preserve poten- claim The State failed to tially subjected useful evidence have that "could been to might tests, the results of which have exonerated" him. Youngblood, part at Thus, 57. absent bad faith on the Phillips, process there is no due violation.

Although spraying Lord ham- characterizes the of the by Phillips evidence, mer as the "destruction" of there is Phillips intentionally. no evidence that The hammer acted lying was underneath extension and was the coiled cords inadvertently. sprayed Phillips did not see hammer sprayed until after he the cords. When he realized what unsuccessfully Phillips save a sam tried to done, he had using testing by material ple to take a swab further Phillips' not did actions hammer. claw of the from the Youngblood, Additionally, as in faith.10 constitute bad nothing handling hammer about the State's ham to the had access trial, the defense concealed Youngblood, testing. at 58. mer for testimony independent connect- addition, there was Phillips ing Two detectives to the crime. the hammer seeing positive with consistent reaction testified to all testified that examiner The medical on the hammer. blood Tracy's a hammer. inflicted could have been wounds carpenter his brother's tools at who used Lord was properly workshop. and no admitted hammer was process due violation occurred. right process a fair his due

Lord next claims that report Phillips he falsified the trial was violated when disagree. supervisors. As the trial We submitted to his on the false information noted, Lord never relied court report. detec- with the aware from interviews He was sprayed. he was had been When the hammer tives sprayed truthfully Phillips deposed, he had stated that deliberately Thus, the defense was the hammer. credibility Phillips' implicate actions his Rather, misled. evidentiary hearing provided Because as a witness. against impeachment Phil- evidence a wealth Lord with denying lips, trial, sense, rather than Lord a fair in a actually attempts report assisted defense counsel's false testimony. impeach his improperly Finally, contends that the trial court Phillips scope of his cross examination limited regarding may Phillips any possible have mental defects Phillips a vision statements made about and the had weapon. the murder the hammer Trombetta, 467 U.S. 81 L. Ed. 2d 10Lordrelies on California (1984) rising argue level of a due was bad faith to the that there S. Ct. 2528 Trombetta, inapposite. Under for a violation process Trombetta is violation. found, possess exculpatory value that process must an be the evidence due Trombetta, destroyed. at 489. apparent it was was before Generally, cross examination should be limited to the subject matter of the direct examination and mat ters affecting the credibility of the witness. However, court may permit inquiry into additional matters. ER 611(b). The scope of cross examination lies within the sound discretion of the trial State v. 611(b); court. ER Hoffman, (1991). 116 Wn.2d 96, 804 P.2d 577 trial court's will not ruling be on disturbed appeal unless no reasonable person would take the position adopted by Rice, court. State v. the trial 110 Wn.2d 600, 757 (1989). denied, cert. (1988), P.2d 889 491 U.S. 910 In Lord's denying limine, motion in the trial court ruled that Lord could not if inquire was under Phillips psy- chiatric care at the time of the homicide investigation. However, Lord could ask if Phillips was on medication during the relevant time. Lord agreed that inquiry only relevant relation to the use of medications. The court's ruling correct.

The trial court also ruled that Lord could not inquire about the reference to a vision about the hammer. The court ruled that this statement was more unfairly prejudi- cial than probative given had Phillips already admit- ted his mistake falsification, and that Nolan had testified about the repeated testings Phillips' request. sum, agree. We the trial court did not abuse its discre- tion in limiting the scope of cross examination of Phillips.

Autopsy Photographs error assigns to the of a admission number of color taken photographs head and skull Tracy's during He autopsy. contends should have they been excluded they because were so gruesome as to be unfairly prejudi- cial.

The admission of is within photographs the sound discretion of the trial court. State v. Hoffman, 116 Wn.2d 51, 88, 804 P.2d 577 Photographs have probative value where are they used to illustrate or explain the testimony autopsy. State pathologist performing (1981). Grue 628, 628 P.2d 472 616, Jones, v. 95 Wn.2d court finds if the trial are admissible some photographs effect. their prejudicial outweighs value their probative 784, 791, 725 Harris, 106 Wn.2d 88; State v. at Hoffman, " denied, '[A] 480 U.S. 940 (1986), cert. P.2d 975 in to a explained jury cannot be brutal crime bloody, Crenshaw, 98 Wn.2d State v. lily-white manner’". (1983) Adams, State (quoting 659 P.2d 488 (1969), rev'd on other 650, 656, P.2d 558 Wn.2d 855, 91 S. Ct. 2273 947, 29 L. Ed. 2d 403 U.S. grounds, (1971)). can be con Here, the admitted photographs while was aware of her clearly the trial judge sidered gruesome, she admitted the Although discretion. need to exercise of issue, Tracy's she excluded photographs photographs The exclusion of these that showed fractures. skull conclusion that dia exhibits was based on the court's fractures. were sufficient the grams depict photographs Admitted exhibits 26 31 are through head taken from a number of Each Tracy's angles. photo- shows a different head and the graph Tracy's portion to those areas. extensive voir dire con- injuries During Howard, nection with an offer of Dr. John Dale the proof, medical examiner who the testified performed autopsy, his direction to that were taken at estab- photographs identity pertinent lish and to document any injuries further that the death. He testified understanding the nature would be photographs helpful explaining In his opinion, photo- to the depth injuries jury. of the inju- representation were a more accurate graphs because decompo- ries than a This was so diagram. simple that the jury sition the wounds. He believed had altered as well as the changes would from those seeing benefit It was location, size, and nature wounds. specific the decomposi- to see the extent of important jury of the wounds tion alteration resulting because to draw about limited the conclusions he was able nature of the wounds.

Given the medical testimony examiner's the photo- aid graphs would his understanding testimony and were a more accurate representation injuries, we hold that the trial court did not abuse its discretion in exhibits 26 admitting through 31.

Other Evidentiary Rulings Lord also error to the assigns trial court's admission of truck, the matchbook found in the blue the photograph of the injury arm, on his and the evidence of his alcohol and marijuana use. We conclude there was no abuse of discretion in the admission of this evidence.

As to matchbook, Lord's objection it was not relevant because of the of time passage between Sep- tember 16 and October when the truck was impounded. The trial court correctly concluded that Lord's objection goes to weight, relevancy.

The of the on arm photograph injury Lord's was properly admitted. While the was taken photograph a month after Tracy's there was disappearance, testimony that Lord had an injury on his arm the of evening Sep- tember 16.

The evidence of Lord's alcohol and use marijuana also admitted. Lord told Detective properly Magerstaedt that when he smoked and drank beer "he marijuana a becomes different person and he loses control." The trial court ruled on the of evidence of Lord's mar admissibility 404(b) 404(b) use under ER ijuana and ER 403.11 ER applicable because marijuana prior use constitutes bad The court act. found that the evidence was admissible as an for explanation conduct, Lord's not to prove character. 404(b) provides: crimes, wrongs, 11ER or acts is not "Evidence of other admis prove person sible to the character of a in order to show that he acted in conformity may, however, purposes, therewith. It be admissible for other such proof motive, intent, opportunity, preparation, plan, knowledge, identity, as or absence of mistake or accident." provides, relevant, part: "Although may ER 403 evidence be excluded if probative substantially outweighed by danger its value is of unfair prejudice . . .". and intent, opportunity, to preparation, It pertained for the commis- explanation provided possible ER the court concluded this Under sion of crime. time, relevant because proximity the evidence was made statements, and activities with Lord’s own coupled to the and related rationally prohatively statements Furthermore, activity aspects any prejudicial crime. to the inflammatory nor similar neither particularly were crime at issue. of Jail Trusties

Impeachment erred by excluding the trial court argues intended to call whom the defense testimony of witnesses two Sonny Harvey, and Rex impeach Belgard prisoner to incriminat- Harvey testified about Belgard trusties. in the statements Lord made to them while he was ing awaiting Jail trial. The defense offered Kitsap County testify Belgard's Harvey's witnesses regarding for truthfulness. reputations 608(a)

ER provides: credibility may supported The be a witness attacked reputation, subject in the limi- by evidence form but (1) may only tations: fulness or the evidence refer character for truth- (2) untruthfulness, evidence of truthful only after the character of the wit- character admissible by reputation has been attacked evi- ness truthfulness dence or otherwise. 608(a) ER has broken down been application five into elements: — testimony the foundation for the first element of of witness attacked. knowledge reputation the the

the the Second, testimony must be limited to impeaching the veracity may and not for truth and reputation witness's Third, the general, reputation. to overall relate the witness's reputation be to the of the witness questions must confined Fourth, reputation must community his . . the issue in not be remote . Finally, in from the time of the trial. time upon reputation of witness must be based belief his upon opinion. he and not individual which has testified (Footnotes omitted.) Prac., Evi- 5A K. Wash. Tegland, 1989). (3d 231, at 202-04 ed. dence § testify regarding Lord offered three witnesses Bel- gard's reputation Lynch, Gayle for truthfulness: Donna community Gordon, and Sarah All Carlson. three were proof corrections officers. The trial court heard offers regarding Lynch these witnesses. was excluded after she opinion Belgard's testified that she did not an have as to reputation honesty. for truth and Belgard's

Gordon testified she had had contact with family, personnel, attorneys, judges, other correction personnel. law contacts, enforcement Based on these she Belgard good reputation testified that does have not for honesty justice system. criminal truth within the testimony The trial court excluded Gordon's community First, officer, several reasons. as a corrections only people Belgard contacts she had with who knew him his were with those who with interacted as a result family. criminal convictions and with his The court ruled that these contacts were insufficient for her to have knowl edge reputation community his for truth and veracity. through Belgard Moreover, contacts with justice system, opinion criminal Gordon an formed about particular reputa his behavior, criminal but about a veracity. Finally, testimony tion for Gordon's was too Belgard remote because she had had no contact with since jail he had been released from several months earlier.12 agree justice system We that the criminal does not con- community Belgard sys- stitute the in which This resides. [n]or enough generalized enough tem is neither "neutral community" to be classed as a an officer in the crimi- justice system equipped provide nal is not an unbiased general reputation and reliable of an evaluation inmate's telling. State, for truth 2d Parker 458 So. 753-54 (Fla. 1984), corpus, sentence vacated on writ habeas (11th Dugger, sub nom. Parker v. F.2d aff'd testimony 12After trial court ruled that Gordon's not admissible under testimony ER also be it noted that would excluded under ER because strictly behavior, through "the nature of her with him are his contacts criminal already proper which has been delineated and is before the its form." 1989), In 111 Ct. 731 remanded, and S. Cir. rev'd 282-83, P.2d 614 Swenson, 62 Wn.2d State v. reputation (1963), for truthful- that a witness's we held veracity among people did not of her church ness and testimony satisfy requirement be the offered veracity general in reputation for a truth limited to community of lack in which she resided. Gordon's the knowledge Belgard's reputation in the for truthfulness

of community, general coupled time, in with remoteness support testimony. of exclusion Gordon's testimony Carlson, who had also offered the of

Lord program. supervised Belgard work release She testi- in a Belgard's opinion her based on contacts with fied that family, system, people people in involved court general speak monitoring parole. to not his his She could honesty reputation and was of his for truth and aware reputation only family with his and herself. testimony under ER trial court excluded Carlson's testify Belgard's general First, to

608. she was unable to reputation Second, for if the definition even truthfulness. among general reputation reputation mean one's could opinion family, competent to offer an own Carlson was Belgard family. The trial was dishonest with his rulings were correct. court's Heeney testify sought as to

Lord also to have Ronald Harvey reputation Harvey's truthfulness. had several deception, prior or all for theft color aid convictions during Harvey's testimony. brought had out which been Heeney victim of one of these crimes and had was the Harvey dealings The trial court business with 1985. Heeney's testimony it was too remote excluded because testify "not that he knew time and because he was able honesty." Harvey's reputation for truth or The record Mr. ruling. supports sum, this we find no abuse discre- of these four witnesses. tion in the trial court's exclusion Instructions assigns Verdict to instruction error improperly arguing allowed to A-l, that the Form convict him without unanimously determining which — — underlying crime rape kidnapping served aggra vate his offense. The State has the burden of proving beyond reasonable doubt criminal defendant com mitted act every necessary constitute the crime charged. In re Winship, 358, 397 U.S. 25 L. Ed. 2d 90 S. Ct. 1068 Further, defendants in criminal trials may only be convicted by unanimous Mak, verdict. State v. 692, 735, Wn.2d denied, cert. 718 P.2d 479 U.S. 995 (1986), sentence vacated on writ habeas corpus sub nom. of Mak v. (W.D. 1991). Blodgett, F. Supp. Wash.

Instruction 13 provided: NO. 13 If, if, only you guilty find the defendant of Premedi- Degree tated First Premeditated First A, Murder as set forth as Alternative Degree Murder, in instruction No. 12 then it will necessary you be special return a verdict to the following question: prove Did the State beyond a reasonable doubt that one or more of the following aggravated circumstances existed? (a) The murder was committed to conceal the commission of the crime of First Degree Rape or Second Degree Rape or Degree the Crime First Kidnapping or Degree Second Kid- of napping-, or (b) The murder was committed to conceal the commission of the crime attempted Degree Rape of First attempted or Second Degree Rape or the attempted crime First Degree of Kidnapping attempted Degree or Second Kidnapping-, or (c) The murder was committed to protect or conceal the identity any of person committing the crime Degree of First Rape or Degree Rape Second or the Degree crime First Kid- of napping or Second Degree Kidnapping-, or (d) The murder was committed to protect or conceal the identity of any person committing the crime of attempted Degree Rape First or attempted Degree Second Rape or the attempted crime Second First Degree Kidnapping or attempted of Degree Kidnapping-, or (e) The murder was committed in the course of or in flight immediate from the crime Degree Rape of First or Degree Second Rape Degree or the crime First Kidnapping. of prove you beyond doubt, The State must a reasonable as defined, previously one or more of aggravating circum- stances. These aggravating circumstances are alternatives only proved. one need be You must unanimously agree set circumstances aggravating which, any, if upon awith provided be You will proved. has been forth before circumstance aggravating for each verdict form special you according to the decision no yes or you answer which reach. or considering all of the evidence fairly fully and If after deci- to reach a unanimous are not able you lack of evidence circum- aggravating any one of the any element sion as for that alternative. stances, fill in the blank do not (Italics ours.) Form A-l provided: Verdict

Special A-l FORM VERDICT SPECIAL answering as fol- special verdict We, jury, return lows: LORD, (a) commit Defendant, BRIAN KEITH Did the of First of the crime the commission murder to conceal crime or the Degree Rape or Second Degree Rape First Degree Kidnap- or Second Kidnapping Degree ping! _Yes_

ANSWER: "no") (write "yes" (b) LORD, defendant, KEITH commit BRIAN Did the of the crime the commission to conceal murder attempted Second Degree Rape or attempted First Degree First attempted or the crime Degree Rape of Kidnapping! Degree attempted Second Kidnapping or _ ANSWER: "no") (write or "yes" in (c) LORD, the defendant, KEITH commit BRIAN Did the identity any person the of or conceal protect murder to Rape or Second Degree of First committing the crime Degree Kidnapping First or the crime Degree Rape, of Kidnapping! Degree or Second _Yes_ ANSWER: "no") (write "yes" in or LORD, the (d) commit defendant, BRIAN KEITH Did the any person of identity the or conceal protect murder or Degree Rape attempted First crime of committing the the crime Degree Rape or Second attempted the crime of attempted Kidnapping or Degree attempted First of Kidnapping! Degree Second _ ANSWER: "no") (write "yes" in or LORD, the commit (e) KEITH defendant, BRIAN Did the flight from of, in immediate or in the course murder Degree crime of in Rape Rape Degree? the Second in the First or the Degree Kidnapping or the First in _Yes_

ANSWER: (write "no") in "yes" or . day July Dated of this 1987. _/s/ Crawford_ Gervais

FOREMAN (Italics ours.)

Each of set in the alternatives out both instruction Verdict Form A-l the Special allowed to find jury that either or rape was the crime. kidnapping underlying Because neither the required agree to unanimously — as to which or underlying crime or rape, kidnapping, — committed, incomplete. both the instruction was However, omission was cured instruc preceding tion and its related verdict form. Instruction 12 provided:

NO. To in convict the defendant of the crime of Murder Degree, following First each elements the crime must of of proved beyond he a reasonable doubt: (Alternative A) Premeditated Murder in the First Degree (1) day That on about the September, or 16th of Tracy Parker; defendant the death of caused (2) That the defendant acted with intent to cause the Parker; Tracy death of (3) That intent premeditated; to cause death was (4) Tracy acts; That Parker died as a result defendant's (5) County, Washington; That the acts occurred in Kitsap OR (Alternative B) in Felony Degree Murder the First (1) or day September, That on about the 16th killed; Tracy Parker was (2) committing That the defendant was or attempting Rape Degree the First Rape commit in the Second Degree-, (3) Tracy That the defendant caused death Parker or in course of and furtherance such crime immedi- crime; flight ate from such (4) crime; in Tracy participant That Parker was not a (5) That the acts which caused the death of decedent in Kitsap County, Washington; occurred OR (Alternative C) Degree First Felony Murder (1) day September, That on or about the 16th Tracy killed; Parker was (2) committing attempting That the defendant was or in the Kidnapping Degree Kidnapping commit in the First or Degree', Second (3) Tracy That the defendant caused the death of Parker in the course of and in immediate of such crime in the furtherance or crime; flight from such (4) crime; Tracy participant That Parker was not a in the (5) That the acts which caused the death of the decedent Kitsap County, Washington. occurred in If you find from the evidence that each of the elements in B, A or Alternative each of the elements in Alternative or C, each of the elements proved Alternative has been doubt, beyond your duty a reasonable then it will be guilty. only return a verdict of All of the elements of one proved. alternative need be unanimously agree You must as alternatives, A, B, C, to which one or more has been proved beyond a reasonable doubt. hand, if, weighing evidence, On the other after all of the you any have a reasonable doubt as to one of the elements in A, any Alternative and as to one of the elements Alterna- B, any C, tive and as to of the elements in Alternative then it your duty will be to return a verdict not guilty. (Italics ours.)

Verdict Form A provided: VERDICT FORM A We, defendant, jury, LORD, find the KEITH BRIAN Guilty of the crime of Murder in the First (Guilty Guilty) Degree, charged. or Not as jurors found: Yes A, Degree Alternative Premeditated First Murder "yes" Write in or "no" B, Yes Felony Degree Alternative First Murder in "yes" Write or "no" C, Yes Felony Degree Alternative First Murder "yes" Write in or "no" /s/ Gervais Crawford FOREMAN If, if, only Jury guilty found the defendant A then on questions Special Alternative answer the Verdict Form A-l. Instruction 12 and Verdict Form A required consider Alternative B and Alternative C (rape) (kidnap- if ping) and to determine all of the elements of separately, proven. clearly by each crime were As is demonstrated responses affirmative to Alternatives B and C on Verdict jury unanimously agreed Form A, that Lord was guilty rape kidnapping. any and of Thus, error result- ing from instruction 13 was cured instruction 12 and Verdict Form A. jury

Lord next contends that several of the instructions during guilt penalty phases both the and of the trial were complex jury too for the to understand. This contention is computer program ostensibly based on the use of a analyzes comprehensibility. written information for No objection was made on this trial, basis at nor was the com- puter program analysis and related offered for admission only Thus, trial. was the issue below, omitted but also it is based on evidence not contained in the record.

We decline to reach this issue because it is not based on affecting right". a "manifest error a constitutional RAP 2.5(a)(3). First, not all instructional errors are of constitu- magnitude. tional Neither the failure to instruct on lesser offenses, included the failure to define individual terms in instructions, nor the failure to define technical terms magnitude. instructions are errors of constitutional Scott, State v. n.5, 689, 110 Wn.2d 757 P.2d 492 "[t]he requirements process usually Second, of due jury are met when the is informed of all the elements of an offense and instructed that unless each element is beyond established a reasonable doubt the defendant acquitted." must be Scott, at 690. question jury

While we do not instructions any penalty complicated lengthy, death case are it is rights out of an abundance of caution for the defendant's precise. argument that we are so The discussed above regarding jury unanimity graphic is evidence of the need necessarily for detailed instructions. Precision entails complexity. judges failing -We cannot fault trial carefully jury, instruct a and then find error because the complicated. complex instructions are too nature of not, itself, instructions is in and of an instruc- magnitude warranting of constitutional tional error appeal.13 first on review for the time Sufficiency of the Evidence that the evidence was insufficient to con- Lord contends argues aggravated degree vict him of first murder. He first prove that he was the that the evidence is insufficient perpetrator, second, that the evidence is insufficient to rape kidnapping. support underlying crimes of sufficiency challenge ques raised, When a viewing if, in tion to be considered is after the evidence any light prosecution, rational the most favorable to the trier of fact could have found the essential elements of the beyond a State 105 Jeffries, crime reasonable doubt. 398, 407, 722, denied, 717 P.2d cert. 479 U.S. 922 Wn.2d (1986); Guloy, State v. 104 Wn.2d 705 P.2d 1182 (1985), denied, cert. 1020 Because the 475 U.S. underlying facts were set forth in considerable detail at beginning opinion, repeat the of this we need not them here. argues

Lord first that the evidence is insufficient prove perpetrator that he was the because it would have Tracy impossible, difficult, if him been not for to talk into rape dispose body ride, her, murder her and disagree. the clothes within the theorized time frame. We Tracy previously Because had asked Lord for rides getting home, when she was late the evidence does not support per- that he needed Lord's contention time Similarly, her to ride him. the suade with evidence does dispose require the inference that Lord had to of both not body during the clothes and the the same time frame. Don issue, given in the 13Whilewe do not reach this we note that the instructions changes change penalty phase, exception in the of minor word and a with upheld against request, parallel the instructions instruction 5 made at Lord's 692, 750-53, challenges Mak, P.2d in State v. 105 Wn.2d number (1986), denied, corpus sub U.S. 995 sentence vacated on writ habeas cert. (W.D. 1991). Indeed, Supp. Blodgett, when 754 F. Wash. nom. Mak v. instructions, any exceptions indicated if he had to the asked the court light they appropriate instructions in of Mak. that were the claim, supplement the this Lord's motion to Because we decline to review analysis program computer is denied. the and related record with Carroll was never asked if he saw the clothes. Neither Carrolls nor Kirk entered the workshop evening. Indeed, Lord asked Don Carroll not to into the work- go The shop. evidence does not lead to the inference that car, clothes were workshop not elsewhere the general vicinity.

Furthermore, and travel measurements were timing approximations, determinations. rigid driving time calculations were based on someone driving limit. At 8 posted speed Tracy was late p.m., already home. Lord was late to a dinner getting at his own party And, most Don Carroll testified apartment. significantly, fast", that Lord arrived at the workshop driving "[p]retty despite the fact that the truck was smoking steaming because of a defective The evidence gasket. supports inference that Lord was faster than the driving posted limits that evening. viewing all inferences most favor- State, able to the record shows that it was possible Lord to the crime within the time limits accomplish sug- gested by the evidence.

Lord also there argues is insufficient evidence to because, his conviction for first murder support degree words, his there is evidence that is unexplained incompat- ible with his To the extent this guilt. argument record, based evidence not in upon and never offered record, inclusion in the it is merit. to evi- without As dence in the record which Lord contends raises questions guilt, about his we conclude that he draws inferences are not in the record. compelling light totality of that,

Our review of the entire record establishes when State, in viewed most favorable to the the record light reflects sufficient evidence to convict Lord of first degree murder.

Lord also of the evidence challenges sufficiency sup- factors of porting aggravating rape kidnapping. the evidence in the most favorable to the Viewing light State, rational trier of fact could have found that any unconscious, Tracy had been rendered or at least unable resist, and then been The evidence was suffi- raped. support- an factor rape aggravating cient to establish as murder conviction. degree Lord's first ing aggravated if the evi- need not further as to Accordingly, inquire we sufficient to establish kidnapping. dence was also Assistance of Counsel Ineffective he denied effective Lord contends when assistance of counsel. The test to determine overturned for ineffective defendant's conviction must be in Strickland v. assistance of counsel was set forth 668, 687, 674, 104 S. Washington, 466 U.S. 80 L. Ed. 2d (1984) State Ct. 2052 this court adopted by denied, cert. Jeffries, 398, 418, 717 P.2d Wn.2d (1986). 479 U.S. 922

First, was deficient. performance the defendant must show that counsel's showing This that counsel made requires functioning as the errors so serious that counsel was not guaranteed "counsel" the defendant the Sixth Amend- Second, defendant must the deficient ment. show performance prejudiced that counsel's errors were so serious as to fendant of a fair requires showing the defense. This the de- deprive trial, a trial whose result is reliable. Unless showings, a defendant makes both conviction or death sentence resulted from a breakdown it cannot be said that adversary process that renders the result unreliable. If defense counsel's trial conduct can be characterized as tactics, trial then it cannot serve as legitimate strategy a basis for a claim that the defendant did not receive Adams, counsel. State v. effective assistance 91 Wn.2d 86, 90, 586 P.2d 1168 There is a strong presump- assistance tion that counsel have rendered adequate decisions in the exercise of reason- significant made all their conduct such that ably professional judgment reasonable range professional falls the wide within challenged The reasonableness of counsel's assistance. all of the circum- light must be viewed conduct case as of the time stances, on the facts of the particular Strickland, at 689-90. of counsel's conduct. defendant must aspect, "[t]he

Under the prejudice that, but for there is a reasonable probability show that unprofessional proceed- errors, counsel's the result of the ing Strickland, would have been different." at 694. prove both ineffective assistance of Because Lord must resulting may prejudice, the issue counsel and be resolved upon finding prejudice determining if of lack of without performance Strickland, counsel's was deficient. at 697. Lord contends that he received ineffective assistance of attorneys adequately counsel because his trial did not investigate prepare they case, and and because made arguments various trial decisions and that did not meet a degree competence. assuming, However, minimum arguendo, performance deficient, that trial counsel's establishing Lord has failed to meet his burden of prejudice. argues pursue

First, Lord that trial counsel failed to easily concerning obtainable evidence the number of County Kitsap matchbooks available in similar to the two admitted as evidence.14It can be assumed that are a common aware matchbooks item there was a likelihood that other similar matchbooks existed. The in the number matchbooks distributed probative area value of the match does diminish Moreover, books admitted into evidence. the matchbook only piece picture minute of the relied evidence was upon pile to establish a connection between Lord clothing found near Island Lake. alleges prejudice

Second, from his trial counsel's failure who claimed to have seen the vic to call witnesses day However, tim the after she was killed.15 the State appear produced sister, evidence that the victim's whose very Tracy's, searching had ance was similar to been out her. for her sister and could have been mistaken for More- appeal, supplement the record with evidence of the 14On Lord moved to Kitsap County surrounding distributed in number of similar matchbooks areas. This motion is denied. following: "Second, argument the defense did not 15Lord'sentire consists testimony Tracy day." produce of witnesses who saw alive the next Brief of Appellant, at 145. over, there was also testimony Tracy was not in school on 17. Lord has September not established that there is a reasonable that the probability testimony of these wit- nesses would have affected the outcome of the trial.

Third, Lord claims that trial counsel did not present demonstrative evidence illustrating the shortcomings the State's case. He argues that a chart showing deficien- cies the State's case would have diffused its strength. However, trial counsel vigorously cross-examined the State's expert witnesses concerning the contents of the charts and summary the limitations of the testing trace evidence. A number of corrections were made to the charts as a result of defense Trial objections. counsel out brought perceived deficiencies and inconsistencies in the State's case A during closing argument. chart of unconnected trace evidence would have been of questionable value. Lord also argues that counsel line should have made a time chart to establish that he did not have time to commit the crimes However, charged. trial counsel did refer to the time line produced and used by the State during closing argument.

Fourth, Lord that argues trial counsel should have dis- covered falsehoods Phillips' noted, sooner. As already trial counsel never relied on the false report, and when it known, became counsel had access to voluminous impeach- ment evidence against He was Phillips. cross-examined about vigorously, this issue.

As to Lord's remaining claims, he himself acknowledges that can be they categorized as "tactical judgments". Brief at 146. Appellant, Essentially, Lord that no argues competent counsel would delay statement until opening after Further, the victim's mother testified. he alleges that the closing argument content, was without "real organization persuasive Brief of ability." Appellant, 146. Neither the statement nor opening closing argument are evidence to Moreover, be considered by jury. review of the record leads us to conclusion that within opening statement fall closing argument of tactical and are not to purview judgments be second- guessed this court. by showing to meet his burden sum, Lord has failed ineffective alleged prejudiced

that he was trial counsel. assistance of Conduct

Ex Parte be his conviction must next contends denied by a fair trial was his right reversed because claims the prosecuting He conduct. prosecutorial ex Clem, parte engaged improper C. attorney, Danny exchanging vulgarities 4.2 by of RPC contact violation an affidavit Lord submitted him trial.16 during with him deroga called alleging prosecutor trial court him. about comments disparaging names and made tory account newspaper with a these stories Lord corroborates trial.17 after the Rotary to the Club of Clem's statements incidents alleged report Lord did Although is that trial, "likely he contends that it during his counsel in the nothing There is exchanges. the the observed" jury Both of the prosecu- his contention. supports record which no that there were stating tors submitted affidavits of the Lord "in the presence Clem and between exchanges affi- submitted attorneys Lord's trial of jury". Neither this motion. davits in of support trial a new requesting motion a brought posttrial if had jury determine the to fact-finding hearing and a and the prosecutor. between Lord contact any observed unnecessary that a was hearing court found The trial Lord's because, that presuming even the motion denied would not true, misconduct alleged the were allegations In this reaching trial.18 a new requiring to the level of rise conclusion, the court considered: client, lawyer representing shall not communicate provides: a "In 16RPC4.2 lawyer party to he subject representation the knows with a about the matter, lawyer consent lawyer has the by in the unless the represented another by lawyer to do so." is authorized law of the other papers. newspaper clerk's is not in the 17The article motion for a assigns denial of his to the trial court's error 18While Lord assignment support argument of this fact-finding hearing, no he offers error.

887 were trial, there two and-a-half months there overwhelming supporting evidence the conviction of the defendant, [and] that there was more than adequate evidence presented the phase in the penalty jury for the to have arrived death apply penalty decision the . . .

Lord relies on the Rules of Conduct Professional (RPC) to support allegation his miscon prosecutorial duct he which, argues, requires However, reversal. the for a remedy claimed violation of RPC is a request the bar discipline association. the context of crimi trial, nal Lord's allegation prosecutorial misconduct reviewed under case applicable law. of a new granting allegations trial based on

of prosecutorial misconduct is within the sound discretion of the trial court. Carr, State v. 704, 709, 13 Wn. 537 App. (1975). P.2d A trial new should if granted only be right defendant's to a fair trial prejudiced. The trial court is in best position most if effectively determine prosecutorial misconduct prejudiced a defendant's right Carr, a fair trial. Furthermore, at 709. Lord's conviction must be only reversed if there is a substantial likelihood alleged prosecutorial misconduct affected ver Wood, State v. dict. 139, Wn. App. 721 P.2d denied, review Wn.2d

Based on the us, record before we conclude that trial court did not abuse its discretion in Lord's denying motion. Additionally, we cannot conclude that there is a substantial likelihood that observed alleged much less that it exchanges, affected the verdict. Accord- ingly, Lord's claim of prosecutorial misconduct does not require reversal. found Having no reversible during error the guilt we turn now to the phase, penalty phase Lord's trial.

Penalty Phase Whenever the State requests the death penalty, spe- cial sentencing is held. After proceeding RCW 10.95.050. hearing argument, jury evidence and deliberates returns an answer to the following question:

888 "Having has been mind the defendant in the crime of which beyond you guilty, doubt a reasonable are convinced

found mitigating circumstances are not sufficient that there leniency?" merit 10.95.060(4). jury that an is then instructed The RCW question is If the be unanimous. answer must affirmative sentenced to affirmative, the defendant is in the answered present case found in the death. RCW 10.95.080. mitigating circumstances sufficient that there were not leniency. merit

Heightened Scrutiny alleged issues based on raises a number of phase penalty procedural errors in the constitutional penalty qualitatively death his trial. Because the punishments, reliabil there must be differs from all other appropriate ity is the in that death the determination Mississippi, punishment. 578, 584, 486 U.S. v. Johnson (1988); v. Bar Ct. 1981 State 100 L. Ed. 2d 108 S. (1984) (cit tholomew, 631, 638, 683 P.2d 101 Wn.2d ing 393, 97 Florida, 349, 51 L. Ed. 2d 430 U.S. Gardner v. (1977)). sentencing capital Thus, determina S. Ct. 1197 higher degree correspondingly subjected to a tions are noncapital scrutiny sentencing cases.19Caldwell than Mississippi, S. 320, 329, L. Ed. 2d U.S. Ct. 2633 just scrutiny heightened closer, means that: a

However, scrutiny Heightened of the record. more careful review example, of review. For the standard does not raise evidentiary ruling by challenge reviewing trial to an employ standard the abuse of discretion court, we still carefully penalty phase. however, will, more We upon the trial court relied which the factual basis review ruling complies with that standard. to ensure that scrutiny heightened in review of implies is to be utilized 19Thedissent Dissent, disagree. sentencing phase. at 925. We guilt phase as well as the only penalty phase. Heightened scrutiny applies to the

889 Examination of Cross Scope of his examination the cross that, during claims Lord evidence elicited Lord, improperly the State father, Leslie in viola charged been Lord had not with which of crimes Bartholomew, 98 Wn.2d 173, 654 P.2d of State v. tion (1982) (Bartholomew granted State's cert. I), 1170 denied, cert. remanded, 1203, 463 U.S. defendant's 631, 683 remand, 101 Wn.2d on (1983), U.S. reaff'd (1984) (Bartholomew II).20 He contends P.2d 1079 him his due process denied of this evidence admission to a fair trial. right that Bartholomew prohibits "unequivocally argues

Lord crimes." uncharged Reply relating of evidence the use holding mischaracterizes at 33. He Brief of Appellant, that, Bartholomew I and II held because of that case. is not per- crimes uncharged evidence of unreliability, its Bartholomew II, at 641 in State's case in chief. mitted 196-97). There, the evidence Bartholomew I, at (quoting wit- the State's through crimes was uncharged presented not dis- fact, does nesses. Bartholomew I, 179. In at of his introduced evidence the State properly pute Two sentencing phase. in the convictions its case prior Lord's as evidence of were submitted to the exhibits and his conviction for unlawful imprisonment conviction was pre- No other evidence degree for second murder. the State. sented the rule extend Lord is

Essentially, attempting in Bartholomew to the cross examination announced authority is no of the There stages penalty phase. rebuttal uncharged I held crimes violated 20Bartholomew the admission of I, Eighth The United States Amendment. Bartholomew 98 Wn.2d at 199. granted certiorari, Supreme and remanded Bar- Court and then vacated 862, light Stephens, 462 U.S. 77 L. of Zant v. tholomew for reconsideration original holding 103 S. Ct. 2733 This court reaffirmed Ed. 2d independent grounds entirety under article on both federal and state its based (cruel (due Washington process) punishment) State and 14 sections II, at Bartholomew 644. Constitution. extension, this and we decline to create any. To the contrary, Bartholomew II specifically noted the admissi- bility of rebuttal evidence: opinion, our prosecution should be pro- entitled to duce information necessary to mitigating rebut evidence

produced by defendant. II, 197). Bartholomew at 642 I, Bartholomew (quoting rule, The general then, provides as follows: Specifically, evidence of nonstatutory aggravating factors must be limited to record, defendant's criminal evidence that would have been admissible at guilt phase, and evidence to rebut matters raised in mitigation by the defendant. (Italics ours.) II, Bartholomew at 642.

Thus, when the defendant presents evidence of mitigat- circumstances, ing the prosecution is not restricted to the record of convictions. The State is entitled to cross- examine defense witnesses and introduce relevant evi- dence to rebut defendant's evidence so that the jury receives a balanced and complete picture. argu- Lord's ment the State should not be allowed to test allegations defense mitigation witnesses was specifi- cally rejected Bartholomew I: Unless the prosecution is permitted to test the reliability of defendant's evidence or attempt it, the jury may rebut well approach the crucial sentencing decision from a distorted per- spective. Such distortion arbitrary could lead to sentencing of Furman v. the kind struck Georgia, 238, down U.S. 346, 2d L. Ed. reasons, S. Ct. 2726 these For we prosecution hold that produce should be entitled to evi- dence to rebut mitigating produced evidence defendant. I, Bartholomew at 197-98. As is the case most eviden- tiary questions, reliability of the evidence is crucial. Bartholomew, we emphasized that objective, reliable evidence was admissible because of its value to the jury. I, Bartholomew at 196. As the of the reliability questioned — enhanced, evidence is as prejudice term is —here used is diminished.

Under II, Bartholomew must, the trial court there fore, employ balancing test to determine the proper scope of cross examination or the of rebuttal admissibility evidence:

The court must balance the extent to which the evidence mitigating tends to rebut defendant's the extent to which the to outweighs against information prejudicial evidence is otherwise Only defendant. if the rebuttal value of the evidence prejudicial effect should the evidence be admitted.

Bartholomew 198). Bartholomew II, at 643 I, (quoting The Bartholomew test restates essentially ER which provides, in part: relevant, "Although evidence may be excluded if its value probative is substantially outweighed by the danger of unfair . prejudice context, . ."In this we are concerned with the probativeness on testimony cross examination: its "rebuttal value". this test Although Bartholomew I and was set forth in dicta in II, we are convinced that it be a useful may rephrasing of ER and we hereby its adopt language.

This rule is to the rules analogous of evidence concern- ing testimony about defendant's character. Character evi- dence may be refuted on cross examination of defense 405(a): witnesses under ER In all cases in which of evidence character or a trait of person admissible, character of a proof may is by be made

testimony reputation. examination, as to On inquiry cross allowable into specific relevant instances of conduct. When a defendant presents character, evidence of his the State may inquire further reliability determine the of that evidence. A defendant's may character witness be cross-examined about his personal knowledge specific incidents of misconduct. State v. Styles, 93 Wn.2d (1980) 175, 606 P.2d 1233 Donaldson, State v. (quoting 513, 518, Wn.2d 21 (1969)); P.2d 5 K. Tegland, Wash. (3d Evidence Prac., 1989). at 451 ed. The broad § scope this rule is one explained by commentator as follows: scope sufficiently cross-examination is broad to dangerous

make it nesses unless the defendant for the defendant to call character wit- good has led a life. A character may only witness not be asked whether he "has heard" this defendant, may or that about the but he also be asked "Do you know" this or that about the defendant. omitted.) (Footnote In Styles, 5 K. at 450. we Tegland, reaffirmed the of this rule.21 continuing vitality sum,

In defense may witnesses be cross-examined con- relevant to a matter raised in cerning anything mitigation test. Bar- defendant, to the subject balancing tholomew (citing Bartholomew II, I, at 642-43 Wn.2d 197-98). The use of the rules of evidence this context serves to which is the truth-finding process enhance the touchstone of criminal law. specific evidentiary

We now these to the apply principles mitigation, matters In assigns to which Lord error.22 witnesses, Lord's including defense called a number of father, Lord's members, friends, and a family psychologist. activities, Leslie, testified about Lord's childhood Lord's skill as a family carpenter. relationship, addition, about testimony the defense forth brought convictions. Leslie circumstances Lord's surrounding prior and actions at the was about Lord's attitudes questioned time of crimes. The took following exchange place: both Q: you type Could describe for this what of child Keith degree murder]? [at was the time of the second good boy, loving just good kid and a real kid.

A: He was proud my I of him to have him for son. He was a — just family I mean he all the like we love great loved family. him. a real close We're Defense counsel concluded by asking: Les, of? Q: you do know what has been convicted Keith Yes, I do.

A: purpose impeach primary 21The of cross must be to defense examination witness, vilify Styles, at 176. Because this not defendant's character. one, may a fine be it is best left to the trial court evaluate the distinction during prosecution's motives cross examination. The trial court must determine State, allowed, questioning only good faith of the and if the we review discretion, ruling of discretion. Absent a manifest abuse of for an abuse Styles, court will be disturbed. at 176-77. the trial challenges "un- that Lord mischaracterizes the evidence he as 22Wenote only disputed charged The evidence relates to certain circumstances of crimes". properly jury. crimes which were before is, you? his don't Q: past know what You A: Yes. feel about him now? Q: you do How boy. good I him. He's dearly. I him love A: love examination, Leslie admitted State's cross During the from of his probation violated conditions that Lord had out of by dropping murder conviction second degree He also traffic offenses. two committing school and imprison- unlawftd the victim acknowledged offense. time of the at the ment was Lord's sister-in-law old she was. When did not know how He testified that he I in that age. "Somewhere asked if she was he replied: dur- objections The defense made no don't know her age." this ing testimony. in the the victim had been

Leslie also admitted that Lord and that by inflicted injuries because of hospital The prosecu- arrested. being fled from before police Lord still if he Lord was thought Leslie by asking tor concluded and violating convicted of murder being after good boy reiterated that he Leslie conditions of his probation. boy. Lord was a good did think allowed tes- the trial court improperly

Lord claims that in the course of the victim was assaulted timony no such evidence. There was imprisonment. unlawful asked was made when the objection question defense objec- a defense Leslie's over only testimony, sustained. However, Lord. tion, injured by was that the victim was uncharged evidence of an this cannot be characterized as case crime, as In the State's unfairly nor prejudicial. unlawful chief, the was told that Lord's conviction fraud, menace, violence, by was "effected imprisonment injuries infliction of State's exhibit 2. The and deceit". in a crime committed violence. inherent improperly trial court next claims and vio- fled from police that he had testimony allowed if this questioning To determine lated his probation. present Lord chose to test. apply balancing we proper, surrounding about circumstances mitigation testimony the murder and unlawful Further- prior imprisonment. more, a Leslie testified twice on direct that Lord was of boy". He referred to his Lord both at the "good opinion time of the second murder and now. The degree testimony that Lord had failed to follow the terms of his probation had on testimony and eluded the police expanded the of directly good and rebutted evidence presented character offered Lord's father. The by recounting incidents defendant's witness is specific impeach so, In this appropriate. it was since it setting, particularly indicated by that Leslie's of Lord was opinion unchanged the of his criminal behavior. Unless the knowledge evidence, prosecution is to rebut defendant's permitted the deci- jury may sentencing well the crucial approach Bartholomew I, 197. sion with an incomplete picture. that Moreover, testimony from any prejudice resulting violations, Lord two traffic dropped out of school and had that the or even given that he fled police, insignificant convictions prior was aware of Lord's jury properly of both most Indeed, single potentially for violent crimes. the the penalty phase prejudicial aspect the evidence sum, friend. family the second of a degree was murder was challenged testimony the effect of the prejudicial the minimal, by probative clearly outweighed was testimony concerning value of the rebuttal evidence. The from the was flight police Lord's violations and probation Lord. It the necessary give jury picture complete admitted under Bartholomew. properly in the Finally, argues that of the victim age No imprisonment case was elicited.23 improperly unlawful record, clarify testimony 14. victim was 23To there was no teenager only testimony age some as to her was that she was Leslie's if When Lord's older on cross examination around 14. sister was asked where imprisonment, she how old the victim at the time of the unlawful she knew did, however, affirmatively respond asked if She when she did not know. said only rely teenager on at that time. The was instructed to victim was a witnesses, given by presume testimony and we it and evidence as 493, 499, (1982), Grisby, 6 State v. Wn.2d 647 P.2d all instructions. followed Washington, U.S. 1211 nom. Frazier v. cert. denied sub regarding cross examination during was made objection a con- affecting A of manifest error testimony. this claim however, for the first time be raised right may, stitutional Hieb, P.2d 239 State v. 107 Wn.2d appeal. on 2.5(a)(3). the admission (1986); RAP Lord asserts of his violative as to be the victim's was so age prejudicial disagree. to a fair trial. We right due process insignificant on one relatively Lord's focuses argument — — being prejudicial of the as fact victim age imprisonment aspects of other impact ignores Lord's conviction prior contest. properly which he cannot he held use attack of a woman whom involved a violent fraud, viewed in the violence, menace, and deceit. When sta- crime, do not believe that her context of the entire we defendant. as a to the teenager unfairly prejudicial tus due generic Lord makes a Additionally, though claim, age he does not how the process specify and, thus, victim him was constitu especially prejudiced failed to tional error. In the absence of Lord has prejudice, was of magni show the claimed error constitutional Scott, so we need not review. See State tude, and 682, 688, Wn.2d 757 P.2d

It is in mind the context which important keep are made. In addition to the prejudice these allegations and murder which the re-lived premeditated jury violent learned jury of Lord's 1975 during guilt phase, murder of a degree family for second female conviction — friend, circumstances of that crime brutal two Lord and was guns by calling was shot with victim mortally she was wounded. also knew jury when help for unlawful imprisonment "by his 1980 conviction vio- menace, fraud, and deceit" of another female vic- lence, crimes, no remorse for his nor did he tim. Lord showed circumstances. extenuating offer any explanation of the circumstances conclusion, totality given are convinced that no jury, improper to the we presented above, noted Lord himself admitted. As evidence was crimes. forth evidence related to his prior chose to put rehable entirely testimony The challenged in Bar- we examined none of the presents problems tholomew. We will not disturb unanimous deci- jury's circumstances mitigating sion that there were insufficient merit leniency. of Juvenile Conviction Admission denied due process Lord contends that he was of his California admission protection equal murder. To the degree conviction for second juvenile from arguments we can distill what specific extent discussion, be essentially appears philosophical First, sentencing arguments. allowing two making Const, art. to consider a conviction violates jury juvenile 1, 2124 because do juveniles and the Sixth Amendment25 § Second, the underlying not have the to a trial. right jury California court did not conviction be defective if the may beyond be proved that each of its elements require reasonable doubt. for his first claim. authority

Lord cites no to a trial right constitutional Juveniles do not have a 21 or the Sixth Amend 1, under either article section 1, 16, 743 P.2d 240 ment. State v. Schaaf, 109 Wn.2d 654, 658-59, 591 P.2d Lawley, State v. 91 Wn.2d (1987); v. Pennsylvania, (1979) 403 U.S. McKeiver (citing (1971)). does due Nor Ct. 1976 545, 29 L. Ed. 2d 91 S. to a jury the right have require juveniles process Lawley, at 659. trial. that equal contends his second argument,

As to under a convicted concerns arise if he was protection However, other defendants. standard of than proof lesser and, after issue court addressed this specifically the trial law, applicable relevant documents reviewing utilized of proof the standard concluded right by jury part: provides, "The of trial shall 21 in 24Article section ..." remain inviolate prosecutions, provides, part: "In criminal all Amendment 25TheSixth jury..." trial, by impartial public enjoy right speedy an shall to accused

897 doubt. a reasonable beyond was guilt court California sup- He cannot conclusion. this challenge not Lord does basis. on this challenge an equal protection port "[wjhether consider sentencing jury may history, significant have a or does not defendant has activity", criminal adult, of prior or an either as a juvenile not suffi- if there are 10.95.070(1), determining RCW leniency. merit to circumstances mitigating cient merit. His claims are without Lord's constitutional to pursuant admitted properly conviction juvenile 10.95.070(1). RCW

Allocution to case, Lord chose its the defense concluded After He claims that jury. statement make an unsworn decision to trial court's process by he was denied due this following him to cross-examine allow the prosecutor exercising he was that, because statement. He contends to cross exami- subject allocution, he was his right had a right that Lord does not dispute nation. The State exami- that cross Rather, argues the State to allocution. Lord, fact, gave testimony because nation was proper in the of allocution. guise it is not intended to mercy; is a plea

Allocution allocution was Historically, facts. dispute advance or allowed: against pronounced [a why judgment should not be

to show conviction; or, he would like whether defendant] on verdict of any informa- present a statement on his behalf and to make tion in mitigation of sentence . . . 1990). (6th contrast, In tes Dictionary Black's Law ed. evi present at issue is offered to a fact timony dispute defensively. offers another fact which the accused dence of 407, cert. 729, 718 P.2d Mak, State v. Wn.2d vacated on writ denied, 479 U.S. 995 sentence (1986), F. Supp. Blodgett, sub nom. Mak habeas corpus 1991). (W.D. Wash. is not a vehicle Mak, that allocution we explained as to his version testify defendant which allows a cross examination. avoiding facts while seeking apparently defendant was that what the appears [I]t trial, to penalty phase right, at the end of be jury which would evidence on the issue present before unanswerable uncross-examined, unsworn, by argument. unrebuttable permits contemplates Nothing in the statute The defendant was rule. that, nor does our former allocution sentencing hearing jury at the given right speak his to to oath, again given and was being required to take an without the was actu- court before sentence speak to the trial right to right to of the defendant's There was no denial ally imposed. allocution. ours.) (Footnotes Mak, at 729. omitted. Italics that, ruled to on Mak and court here relied The trial he would allocution, engaged the extent that if his state- However, examination. not be to cross subject the State could cross-examine. evidence, ment presented the parties: to ruling The court this explained may says that he ask which The common sense limitation also, I jury is of some sort to the mercy plea based on a for I allocution. right think, don't principal the common-law historic allocution or the right of think the common-law of evi- presentation on the predicated right of allocution is evidence in begins present to dence, and once the defendant subject he is to cross- sense, I think then our historic examination. ments which it," "I not do then state- jury, did If he tells this they're if admis- rebuttal may be admissible subject cross- reasons, be the and will for other sible examination. tradition- the sense we evidence may produce He ... offense and not evidence, deny he cannot that is ally use where he admits the potential evidence with

be confronted he can issues on which be present factual and/or offense mercy. may for He may ask that He cross-examined. And so I'm not good person. own about his make statements mercy, but he cannot request denying right him to make and rebuttal. to cross-examination subject and not be testify that Lord effort to ensure also made a special The court allocution. of his right of the parameters was aware facts if he testified as to warned expressly Lord was examination: to cross subject he would be issue, matter, have concluded our witnes- we As a final ms. mandel: allocute and we his wish to Lord has indicated . . . Mr. ses. doing him that. against advised have jurors? Lord, speak you going are the court: Mr. Yes. the defendant: I ruled previously have the court: You understand subject you make may of statements certain kinds cross-examination? the defendant: Yes. you kinds of state- that other the court: And understand you subject may to cross-examination? ments not make Yes. the defendant: The court then stated: probably speaking, I take will Mr. Lord has finished When they prosecutor wish whether ascertain fromthe a recess and relevancy about so I can make the decision

to cross-examine get stand for that to in the witness and/or Mr. Lord seated occur. jury, During he had Lord said that his statement to the making anyone the him. He denied never asked to lie for jail testified. He said the trusties statements to which "changed around" state- officers had that law enforcement stated: ments he made to them. He then lawyers testify, my get was, to Then I didn't there since thing thought wanted to but was to have been able to wrong do, I for me to which that the was just to, I would have liked I told not and say my part testify able to the to be Fryes' Sep- story, you house, the after I left know. Because straight my my brother's, brother's, 16th, to I to tember went my property, never. from there I never left brother's drugs problems and alcohol relate his with He went on to including history, prior facts about the and his criminal by imprisonment He concluded stat- conviction. unlawful prosecutor County, ing police the had that during trial. lied jury. After finished, excused Lord the court

When hearing argument sides, the court ruled that from both permitted prosecutor to cross-examine Lord would be any regarding he had asked wit- his statement regarding leaving him, lie for his statement ness to Fryes', prior con- record. does not and his criminal ruling. scope prosecutor of this exceeded tend that argues error cross it was to allow Rather, Lord disagree. examination at all. We plea jury not a to the

Lord's discourse mercy. as an statement Instead, he used his unsworn presented dispute the State opportunity evidence night of the the events the his own version of and to offer testimony. words, he offered crime. other allocution, to the Lord limited his statement Had subject How- examination. to cross not have been it would types of certain ever, not. Lord was warned he did subject examination, and he to cross would be statements proceeded to Nonetheless, he that he understood. indicated give disputed issues. number of relevant evidence on a opened examination, as the comments to cross This correctly ruled. court trial Hearing Competency

Denial of phase beginning penalty trial, of Lord's At the hearing if Lord to determine moved for a counsel defense proceed. on competent based motion was request jail staff, Lord's made to Lord had statements Lord's counsel, and defense as Mr. Ness withdraw that family to tes- his not call defense counsel that insistence Lord's made at tify was not The motion on his behalf. contrary, that he was request. the court he told To the necessary. hearing competent not and that a ultimately its rul- motion, based on denied the trial court establishing a ing that such the threshold burden appeal, hearing required met. On had not been by process argues the trial of law that he was denied due hearing. refusal to conduct a court's capacity competent to A if he has defendant is against proceedings him and the nature of the understand Wicklund, 96 Wn.2d in his own defense. State v. assist to 10.77.010(6). (1982); An RCW 800, 638 P.2d 1241 798, incompetent person convicted, or sen tried, cannot be incapac his while of an offense for the commission tenced A de ity 10.77.050. Wicklund, 800; RCW at continues. among trial alternative not able to choose need be fendant strategies competent. Ortiz, 104 Wn.2d v. State to be

901 denied, U.S. cert. (1985), 476 479, 483, 706 P.2d 1069 (1986). Thus, the defendant a between disagreement to proceed, and counsel as to the manner which more, issue of competency. without does not raise the a A is "[w]henever competency hearing required insanity, reason of guilty by defendant has pleaded (Italics competency". there is reason to doubt his or her ours.) 10.77.060(1). defense Thus, insanity RCW unless an raised, if the court makes a hearing only a is required there is reason to doubt threshold determination determines defendant's If the court competency. fitness, the court to there is reason doubt defendant's statu in accordance with hearing must hold a competency 437, 441, Gordon, Seattle v. App. 39 Wn. tory procedures. denied, review Wn.2d 693 P.2d dis- trial court's determinations are within the These cretion. have to be A determine does not competency motion to filed, United States granted merely because it has been (5th denied, 409

McEachern, Cir.), cert. 465 F.2d (1972), raise a sufficient U.S. 1043 and is not of itself concerning competency. doubt Gordon, Thus, at 441. the motion must be supported verify the court Only inquire factual basis. then will Gordon, motion, In reviewing the facts. at 441-42. attorney's to the given considerable should be weight ability his client's regarding competency opinion Gordon, 442. assist the defense. motion, defense counsel of the present support Miller, the corrections

offered the of Jamie testimony Miller to court. jail Lord from officer who transported him "he had conver- Lord told day, said that earlier that devil asked him devil and the Lord and the sation with the drink his innocence". to prove to of his own blood cup he him when Miller to handcuff Also, Lord had asked afraid of what he Lord was in court because appeared by In to response questions Ness. attorney would do to raving ranting stated that Lord was Miller prosecutor, and, when he made the statement about the devil from his experience working jail, people in the situation Lord's try questions competency. to raise about their Defense then stated that Lord did not want Ness to continue as his attorney. response questions court, to from the that, stated while he did not want Ness to continue as his attorney, asking attorney he was not Mandel to withdraw. competent Furthermore, he said he believed he was to assist either or Mandel in his Ness defense. request

The court then denied Lord's to remove Ness as from counsel and ruled that a staff member Western Hospital Lord. The State would be allowed to interview object. gave an the defense State did not opportunity The court also expert Lord. The to its examine have own psychiatrist prosecutor arrangements and a made for a following morning, psychologist to examine Lord the present. the court authorized defense counsel to be following morning, attorney The informed Lord's they that, to make court arrangements because had not been able they expert Lord, for their own to examine proceed. would not to allow the scheduled examination The court then stated: record So far the defendant has not established sufficient testimony, report affidavit, statements of the medical or their own trigger competency hearing. appointment to attempt my experts yesterday be, Western State to was an opinion, extremely Lord, allow, at least fair to Mr. to before the Court even made about whether to a threshold decision competency hearing,

hold a which medical evidence with some proceed. The court that Lord and concluded that the defense's claim attorneys during agree proceed his did not on how to sentencing phase grounds for the court was not sufficient Specifically, competency find was at issue. any court noted that counsel had not made asser- defense tion that Lord was unable to recall relate facts sufficient sentencing phase. proceed for defense counsel to in the opportunity counsel The court next offered defense an support supplement of the motion. the record Lord was a hear- Defense counsel stated that entitled to anger to the his jailer, on his statements ing based irrational, as Ness, his counsel characterized which and that his as counsel his that Ness withdraw requests The court phase. family testify during penalty not responded: jail from the testimony yesterday

I understand there was testimony I testimony. I to that assume staff. listened I Lord for 10 weeks. observed accurate. I have observed Mr. respond I to him to the yesterday Mr. Lord in court. listened him his consult with questions from the Court. I've watched indi- prima facie attorney, point at this there is not sufficient hearing. competency full grant cia for the Court to a blown they supple- is if wish to asking . . . What I'm counsel now request and in their any way point, the record in at this ment I have not heard from Mr. Lord competency hearing. a And to have disagreement they have with counsel that the in strategy proceed than the as to how goes to other sentencing phase. hearing an in camera Defense counsel then requested of the motion. further information support to present the court to have an The court asked if wanted they from Western State as evaluation done the experts making medical evidence to be considered Defense counsel incompetency. threshold determination and chose to declined the offer of an evaluation again supplement with an in camera hearing proceed held, hearing information available to the court. The filed under of which transcribed and were proceedings ruled that cover. After the court hearing, separate threshold counsel had the required defense failed to make and, needed showing competency hearing therefore, denied the motion.26 record, transcript review of the

Upon including the in camera the trial court hearing, we conclude that its that defense determining did abuse discretion in counsel failed to meet The threshold burden of its burden. Lord, "although competent court also ruled that to stand trial and to 26The sentencing strategy participate phase, competent in the to make trial is not process by him control the . . . and it is not in his best interests for decisions Thus, sentencing presented phase." in the his case will be to the which withdraw, they proceed in a were directed to neither counsel was allowed to they best interests. manner believed to be Lord's establishing that there was reason to doubt Lord's com- petency was not met.

Prosecutorial Misconduct process by Lord claims that he was denied due miscon- during closing argument. duct the State's He contends prosecutor improperly argued that the that all murderers penalty improperly deserve the death discussed the penalty. deterrent effect of the death establishing Lord bears the burden of both the impropriety prosecuting attorney's of the comments and prejudicial Mak, their effect. State 692, 726, 105 Wn.2d (1986), 407, denied, 718 P.2d cert. 479 U.S. 995 sentence corpus Blodg vacated on writ habeas nom. sub Mak v. of (W.D. 1991). Supp. ett, 754 F. Wash. Because the penalty imposed death is unconstitutional when it is man datorily upon murderers, Carolina, all v. North Woodson (1976), 280, 301, 428 U.S. 49 L. Ct. 2978 944, Ed. 2d 96 S. improper argue Lord contends that it is to that all mur assuming derers deserve so, to die. Even that we are argument unconvinced that such an was made here. following portion prosecutor Lord relies on the Cleavenger's argument support Irene of this claim: Finally, just thoughts. these The life of each man should be sacred to each other tell man. The ancients us unflinch- ingly they They that executed murderers. realized it was not enough proclaim to inviolability the sacredness and the of human life. It by threatening must be secured as well those with the loss of their own lives. Those who violate what has proclaimed rights been as inviolable the of the innocent live, allows the invaluability of human life that's neither by proclamation credible or actually protected.

Nothing language suggests in this that all murderers penalty. argument the death This deserve does little more philosophical a than establish historical context for jury jury's The decision. was aware that the death mandatory penalty Indeed, is not for all murderers. jury very question the was to answer was if the death penalty imposed in was to be this case. Lord also contends prosecutor improperly that discussed the deterrent penalty effect of the death in violation of Hawkins v. P.2d Rhay, 78 Wn.2d Hawkins, concerning the "evidence the court stated opposed form of as penalty effect of one the deterrent Hawkins, 400. not be received." at shall another issue with Lord's characterization again We take lan- following Lord relies on the argument. prosecutor's guage: are profess that the lives its members society

No can who not innocent others continue secure if those do allow living living allowed to continue are themselves community. expense of the by incarcerat- punish Does secure life to the murderer this him in quality Murder differs ing from other pickpocket? as one does a therefore, deserves, punishment crimes and punishments. from other quality differs is a did the death argue penalty The prosecutor than life in without prison possi- more effective deterrent There was no error. bility parole. no

Having during phase found error penalty trial, turn to the mandated statutorily Lord's we now of his sentence. review

Statutory Review sentencing unanimously beyond found there were not sufficient mitigating reasonable doubt that Under leniency. Washington's circumstances merit statute, by this court reviews that decision penalty death analyzing separate three issues: (a) justify evidence to the Whether there was sufficient by RCW 10.95- finding question posed to the affirmative .060(4); and (b) or dis- of death excessive sentence Whether cases, in similar con- penalty imposed to the proportionate sidering .; crime and the defendant. . . both (c) brought death was about Whether sentence of

through passion prejudice. 10.95.130(2). RCW

Sufficiency analysis, evidence this sufficiency of the Under must determine if: court

906

" 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found sufficient evidence justify this finding affirmative beyond reasonable doubt.'" State v. Rupe, 734, 765, Wn.2d (1987) P.2d 210 (quoting Mak, State v. 692, 761, 105 Wn.2d (1986)). denied, P.2d cert. 107 S. Ct. 599 Rice, State v. Wn.2d 623, 757 (1988), P.2d 889 denied, cert. 491 U.S. 910 Our independent review of the record reveals the following possible cir mitigating cumstances: Lord him has family and Mends who love and would visit him in prison; he was 26 at the time of sentencing; he is a good carpenter; his family did not help him deal with or try to understand the murder of Sylvia Henderson; he would do well in prison because of the structured environment; if sentenced to life without possi bility parole, he would never be released; he had head injuries; and he has an antisocial personality disorder.

Viewed in the context of the totality evidence, these mitigating circumstances are relatively unpersua- sive. "[T]he mere presence mitigating factors does not require a grant leniency, so as long it is convinced beyond a reasonable doubt that any mitigating factors are outweighed circumstances Rice, crime." Here, 624. there was sufficient evidence to warrant jury's decision.

The psychologist called by the defense testified that while Lord's head injuries "could exacerbate his difficul- ties controlling impulses", the injuries "do not entirely, and of themselves, a loss explain of impulse control." More there importantly, was no evidence that Lord suffered from a head injury before he murdered Sylvia Henderson. The psychologist also testified that Lord has an antisocial personality However, disorder. he stated the disorder helps to explain, excuse, but does not Lord's Furthermore, behavior. one of the diagnostic criteria for the disorder is a history violating rights Thus, of others. the evidence that Lord suffered from an antisocial personality disorder may very well have been discounted the as a jury factor. mitigating case, convicted of aggravated In the current Lord was in first of a 16-year-old murder the degree premeditated a to death with Tracy bludgeoned Parker was girl. raped, road. hammer, the side of a body dumped by and her was for second degree Lord had two convictions: one prior through other for unlawful imprisonment murder violence, menace, fraud deceit. He has been convicted he knew. against times violent offenses women three life, in his things he "terrible" acknowledged doing While There was showed remorse for of his crimes. any he no a of fact to find that evidence for rational trier sufficient not merited. leniency was is note there not suffi- argue

We does jury's finding. cient evidence to affirmative support Rather, he death should not be argues penalty is support because there not sufficient evidence to imposed his conviction. This allegation has been addressed already guilt in our of the and is phase simply misplaced discussion Moreover, this of our to portion under review. Lord fails which, if circumstances argue any, mitigating the conclu- during sentencing phase support presented that no of fact could have suffi- sion rational trier found affirmative answer. support jury's cient evidence

Proportionality 10.95.130(2)(b) this RCW court determine: requires dispropor- is or Whether the sentence of death excessive cases, considering in similar penalty imposed tionate purposes and the defendant. For the of this both crime subsection, reported means in the "similar cases" cases Washington Reports or since Washington Reports January imposition was Appellate 1, 1965, judge in which the or considered the punishment it capital regardless whether executed, have imposed reports and cases in which supreme 10.95.120[.] filed court under RCW been with "similar starting point by defining The statute provides 10.95.120, "[i]n must be filed reports cases". Under RCW convicted of first aggravated all cases which person those The similar cases includes degree pool murder". sought the death and those penalty cases which it not. which

Defining concept disproportionate" of "excessive or guidance given is more difficult. There is no clear test or language begin in the of the statute. We with a brief impetus purpose historical review of for, and the of, proportionality review. process Washington response, was undertaken in Supreme

to the United States Court decision in Furman Georgia, v. 238, 408 U.S. 33 346, L. Ed. 2d 92 S. Ct. 2726 (1972); State v. Harris, 106 784, Wn.2d 725 P.2d 975 (1986), (1987). pro denied, cert. 480 U.S. 940 Furman sentencing procedures hibits which create a substantial imposed arbitrary risk that capri death will be in an Gregg Georgia, cious manner. v. 153, 188, 428 U.S. 49 L. reh'g 859, Ed. 2d 2909, 96 S. Ct. denied, 429 U.S. 875 (1976). penalty In words, other where the death is imposed wantonly freakishly, it is unconstitutional. (Stewart, concurring). Furman, at J., 310 Gregg, upheld constitutionality In the Court penalty by Georgia death statute enacted in the wake of Gregg, specifically Furman. at 207. The Court addressed statutorily proportionality mandated review and con prevent caprice cluded that it serves to in the decision to penalty by "substantially eliminat[ing] pos inflict the sibility person that a will be sentenced to die jury." Gregg, propor action of an aberrant Thus, at 206. tionality constitutionally required, pro review, while not safeguard against arbitrarily imposed vides a death _ U.S. sentences. Lewis v. Jeffers, _, 111 L. Ed. 2d (1990); Pulley 606, 622, 110 S. Ct. Harris, 3092 v. 465 (1984); 37, 29, U.S. 79 L. Ed. 2d 104 S. Ct. 871 State v. Rupe, (1987), 734, 766-67, 108 Wn.2d 743 P.2d 210 cert. denied, 486 U.S. 1061 proportionality cases,

In our earlier review was some part pool truncated, what because there was a limited comparison.27 of cases for case, each the court con- 27Initially, apparently only this court looked to those cases where the death penalty However, sought. 767, Rupe, supra had heen in State v. at it was made proper pool clear that the of cases to be reviewed includes all cases where the degree aggravated defendant was convicted of first murder whether or not the penalty sought. death RCW 10.95.120.

909 State v. not excessive. See eluded that sentence cert. (1984), 929 1, 30, 691 P.2d Campbell, 103 Wn.2d Jeffries, State v. 105 Wn.2d denied, 471 U.S. 1094 (1985); (1986); denied, 479 U.S. cert. 398, 430, 717 P.2d 407, cert. Mak, 692, 722, 718 P.2d State v. 105 Wn.2d writ (1986), sentence vacated on denied, U.S. 995 v. F. Supp. Blodgett, nom. Mak sub corpus habeas 1991). (W.D. Wash. Harris, at this court supra State Then, guidance little "provides the statute acknowledged sentence becomes a death point determine what Georgia's Because disproportionate." proportionate statute, to our we looked statute similar proportionality We guidance. of its statute to Georgia's interpretation test: then the current adopted less than a required not to determine that [T]his court is imposed in a case with some sentence was never death similar characteristics. On our death sentence contrary, it be the we view to to that no duty similarity the standard assure under through- is unless in similar cases affirmed imposed generally death been penalty

out the state the has . . "wantonly freakishly imposed," and . and not Harris, State, v. 861, 864, Moore 233 Ga. at 798 (quoting (1975)). on again aggravating 829 Relying 213 S.E.2d upheld as basis for this court comparison, factors found a not Harris determining in after it was the sentence Harris, at 799. freakishly" "wantonly imposed. Harris, in court has three times engaged Since this v. Rupe, of death sentences. State review proportionality Rice, v. State 577, 625, 757 supra 766-67; at 110 Wn.2d re denied, 491 In (1989); (1988), cert. 910 U.S. P.2d 889 489-90, 485, P.2d 731 114 Wn.2d 789 Jeffries, from Harris language we restated the in each case Although (R Rice, In Jeffries, re 625; 490), at 767; at at upe, to be test remains clarified. applying method of in mind of purpose propor is to helpful keep It in the limits inherent such review. review and tionality repeatedly acknowledged, Court has As the Supreme " which deciding 'no perfect procedure there can be to should be used authority impose governmental cases 910 "

death.' Zant v. Stephens, 862, 884, 462 U.S. 77 L. Ed. 2d (1983) 235, 103 S. Ct. 2733 Ohio, Lockett v. (quoting 973, U.S. (1978)), L. Ed. 2d Ct. S. Mak, cited in State v. at 724 and State v. supra Rupe, supra at Our is 766-67. concern with alleviating types systemic problems identified in Furman: major random imposition arbitrariness the death sentence based 188; Furman, race. at Gregg, J., on at 257 con- (Douglas, curring). Technical line-by-line inconsistencies a com- be with parison equated cannot those core concerns. Harris, Pulley Mak, v. v. State 54; 465 U.S. at supra 724; see also State Rupe, supra at 766-67.

Our is not review intended ensure that there can be no variation basis, on nor to case-by-case guarantee death is penalty always imposed simi- superficially lar As explained circumstances. we in a prior case: Simply comparing aggravating numbers victims other may similar,

factors where in superficially appear make two cases mitigating there are fact circumstances in one case explain jury's impose either verdict not to pen- death alty or a not prosecutor's decision to seek it. re Jeffries, supra at 490. Requiring uniformity precise unworkable, only would not be it effectively would Indeed, eliminate the death penalty. jury directed to tailor its decision the individual circumstances crime. A to impose could decline the death penalty However, because a defendant particular mercy. deserves mercy, the decision to afford one defendant yet another, Gregg, 199; does not violate the constitution. Mak, v. supra State at 724. have us his case would review as forensic scien- looking

tist for a number analyzes fingerprints, specified if one can identity points. Only conclusively determine swirl, each ridge, whorl both sam- present Crimes, is a match declared. decline to do this. We ples brutal extreme with we ones which particularly cases, are be deal death cannot penalty unique matched like so on a up many points graph.

Our be ex approach, can instead best perhaps, See L. as a search for resemblances". plained "family Philosophical Investigations 65-67 Wittgenstein, §§ do Although cases where death was imposed not have one or set necessarily characteristic of attributes common, we recognize they nonetheless are some- described; how related. This relation cannot be it easily consists of a complicated network similari- overlapping —ties much like members of the same can family, who be recognized relatives, as even do not all though they share one any Thus, set of features. we examine prior cases those which belong together they because each resemble other.

With the in mind, we have foregoing reviewed both the cases and the reported filed as RCW reports required by 10.95.130(2)(b). We turn now application.

We first consider the crime of which Lord con was victed. Lord victim, murdered a single 16-year-old Tracy Parker. Two other defendants who are under currently sentence of death were convicted of one only aggravated first degree murder. of the Trial Report Judge, State v. (Mar. Furman, Kitsap Cy. 9, 1990); cause 89-1-00304-8 Harris, of the Trial Report Judge, State v. Pierce Cy. (Jan. 1985). cause Moreover, 84-1-01190-6 unlike Fur- Harris, man and Lord had been previously convicted of murder.28 in other Similarly, single victim rape-murder cases where death the defendant had not sought, E.g., Report previously committed murder. of the Trial Thomas, State Judge, cause 86-1-04723-5 King Cy. (Feb. 1991). found Lord guilty degree first premeditated

murder with the following aggravating circumstances: The murder was committed to conceal the commission of before, only manslaughter, 28While Harris had he killed convicted of requires negligent which a reckless or mental state rather than the intentional degree Report supporting mental state Lord's second minder conviction. Judge, Trial State v. Harris. of, crime; to Lord's and in the course or identity; conceal from,

in the crimes of flight rape kidnap- immediate A; 10.95.020(7), (9); Verdict Form Ver- ping. Special RCW factor is needed for aggravating dict Form A-l. one Only seek, to or a to the death prosecutor impose, cir- mitigating there are not sufficient provided penalty, 10.95.020, RCW .030. leniency. cumstances to warrant sentences given Lord's sentence to proportionate found. other cases factors that were given aggravating Jeffries, Clallam Cy. of the Trial State v. Report Judge, (Nov. 1983) (conceal 29, identity multiple cause 6488 Thur- of the Trial State v. victims); Judge, Rupe, Report 1982) (conceal, 12, iden- ston cause 81-1-00316-1 Cy. (July victims, of robbery); the course tity, multiple Benn, cause Cy. of the Trial State v. Pierce Report Judge, victims). 1990) 23, (July (multiple 88-1-01280-8 death with a ham- Tracy Lord to Finally, bludgeoned head, teeth and mer, geni- blows to her inflicting multiple the medical examiner was unable tals. Because no blows, way of the there is sequence determine method before Lord's Tracy dying. tell how much suffered than that longer murder more vicious and took Report other defendants sentenced to death. by employed State v. wound Judge, Rupe (single gunshot of the Trial (quick State v. Harris head); Judge, of the Trial Report Hazen, v. Clark murder); Judge, of the Trial State Report 1986) (no struggle pre- cause 85-1-00322-5 Cy. (Apr. Trial State v. Judge, of the Report ceded gunshots); wounds). (no It torture; any gunshot evidence of Jeffries cases the murders several also more brutal than Trial Judge, Report death was imposed. where (Feb. 4, cause 86-1-01678-0 Knight, King Cy. State v. Thomas, King of the Trial State 1991); Judge, Report 1991). (Feb. 22, cause 86-1-04723-5 Cy. characteristics. consider Lord's personal Next we He has two of violent behavior. a pattern has established he against for violent crimes women prior convictions friend family shooting At he murdered a age knew. tele- while she was on the guns her with two different 19, he was he was convicted phone help. When calling sister-in-law, who his imprisonment the unlawful Lord. injuries as a result of inflicted hospitalized was his during information Additionally, Lord volunteered time to the that he had served jury unsworn statement driving into while for his car head on a truck jail driving accident, drunk, a of After the badly friend his. injuring marijuana. continued to drink and smoke he has a of pattern noncompliance Lord also established Lord and prison regulations. conditions probation with his from his second probation violated conditions of he conviction. He also told the degree jury murder wife to to him while smuggle marijuana had asked his convic- prison he was the unlawful imprisonment tion. of is sentence on the basis disproportionate

Nor Lord's currently record. on death his criminal One defendant no 770. Rupe, had convictions. 108 Wn.2d at prior row life, hav- Tracy's, Lord's to take another after willingness age, of murder at an indicates early been convicted ing Moreover, a to others. pose that he continues threat of sufficiently compelling Lord did not evidence present as in cases circumstances, such those noted mitigating the Trial Report Judge, death was of sought. where (Dec. 9, Ortiz, cause Cy. State v. Whatcom 81-1-00201-6 1981) (defendant the Trial retarded); Report Judge, cause 85-1-00044-4 Cummings, Cy. Walla Walla State (Dec. (defendant old). 1989) 16 years mur- raped at the time he years

Lord old However, age his relatively young Parker. Tracy dered Younger his disproportionate. does not render sentence been sentenced to death. Report defendants have (17 months); years, State v. Furman Judge, Trial (19 v. Hazen years). Trial State Judge, Report Given the nature crime, Lord's the number factors, aggravating his convictions prior and personal history, we cannot conclude that his death sentence was excessive or disproportionate. his crime and comparing cases, with similar personal history we find that Lord's case sufficiently resembles those in which a sentence of death imposed. Thus, we hold that the required proportionality present here.

Lord also contends on file with reports this court do not provide enough information for this court perform meaningful However, review. as the State notes, on reports file are in compliance with RCW are, therefore, 10.95.120 and sufficient under the statute. related, novel, argument, contends In. the trial should have judge allowed the to learn of "the sentences that other defendant's who had commit ted a murder the course of a during rape typically received." Brief of Appellant, 110. The sole authority cited for this 401, is ER argument which defines relevance. statute, death penalty which an illustra provides

tive list of eight factors the jury may consider in deciding if sufficient circumstances mitigating exist to merit leniency, allows the jury consider those circumstances arise in connection with the specific crime and defendant. State court, RCW 10.95.070. Decisions of this v. Jeffries, cert. 398, 422, 722, 105 Wn.2d 717 P.2d denied, (1986), 479 U.S. 922 and of the United States Oklahoma, 455 U.S. Court, Eddings Supreme 104, 110, 1, 71 L. Ed. 2d 102 S. Ct. 869 (1982); Lockett v. Ohio, 586, 604, 438 U.S. 57 L. Ed. 2d 98 S. Ct. 2954 Carolina, Woodson v. North (1978); supra are accord. The trial court this evidence correctly rejected as irrelevant. Prejudice

Passion or evi- no competent record discloses of the Our review came about death penalty the imposition dence that 10.95.130(2)(c), nor RCW or prejudice, through passion of his Rather, in support such evidence. Lord offer does already errors trial alleged reiterates claim, merely he conclude We opinion. of this parts in other addressed or prejudice. result of passion was not the sentence Lord's Penalty to the Death Challenges Constitutional of Wash- constitutionality challenges Finally, statute, 10.95, on a number RCW death ington's penalty (1) 14 issues: Does following He raises grounds. of (2) doctrine? Does of separation powers statute violate the of the fed- clauses equal protection violate the statute (3) unconstitutionally Is it and state constitutions? eral (4) it an unlawful Does constitute vagueness? void for to the executive branch authority legislative of delegation (5) of the death Does the imposition government? unusual punishment? cruel constitute penalty (6) indict- jury charged by grand Lord have been Should (7) combined Does the information? ment instead indict- jury obtaining grand and not effect of the statute doc- powers of separation the violation ment exacerbate (8) death mandatory amount to a the statute trine? Does article Amendment and the Eighth in violation of penalty (9) it uncon- Does the state constitution? 1, section on the death of proof shift the burden stitutionally (10) right Is defendant's to the defendant? issue penalty statute does not review denied because appellate circum- mitigating which to articulate require (11) Does weighed? were they found and how stances were 10.95.130(2)(b) encroach- legislative constitute RCW function, violating exclusively judicial an upon ment (12) separation powers doctrine? Does RCW 10.95- deny right process .120 a defendant the trial, to a fair due law, counsel, effective assistance of and confrontation by failing provide right defendant a to rebut informa (13) given judge? tion to the trial Does the statute promote unequal administration of law in violation of (14) Fourteenth Amendment? Is RCW 10.95.020 uncon genuinely stitutional because it does not narrow the class persons eligible penalty? for the death Each of these questions negative following was answered in the in the Campbell, cases: State v. 1, 103 Wn.2d 691 P.2d 929 (1984) (issues 1-5), (1985); denied, cert. 471 U.S. 1094 (issue (1985) Ng, 6); 763, State v. 104 Wn.2d 713 P.2d 63 (issues State v. Jeffries, 398, 105 Wn.2d 717 P.2d 722 7-12), (1986); denied, cert. Dictado, U.S. 922 State v. (1984) (issue 13); 102 Wn.2d 687 P.2d 172 State (1984) (Bar Bartholomew, 101 Wn.2d 683 P.2d 1079 II) (issue 14). tholomew through

Lord raises a number other issues both appellate pro counsel and his se brief. We have reviewed each of these issues and conclude that none of them merit individual attention. tragic surely conclusion, this case was one of the complex overwhelming

most tried in ever this state. The evidence, amount of technical witnesses, scores of charge legal seriousness of the combined to create mael- judge carefully protected Nonetheless, strom. the trial right Brian Keith Lord's to a fair trial and ensured that punishment imposed, just. harsh, while We com- mend her. judgment and sentence in this case are affirmed. Guy, JJ.,

Brachtenbach, Dolliver, Andersen, Tern., J. Pro concur. Callow, — dissent) C.J. in the (concurring result of the

Dore, previous review of capital punishment cases before this court, to wit:

State v. (1984) Campbell, 1, 103 Wn.2d 691 P.2d 929 Harris, State v. (1986) 784, 106 Wn.2d 725 P.2d 975 State v. Jeffries, (1986) 398, 105 Wn.2d 717 P.2d 722 Mak, State v. (1986) 692, 105 Wn.2d 718 P.2d 407 State Rice, v. (1988) 577, Wn.2d 757 P.2d 889 State (1987) Rupe, Wn.2d 743 P.2d 210 State v. (1984) Rupe, 101 Wn.2d 683 P.2d 571 I affirmed the jury verdicts of death. For the first time in the 10 years I have been on the Supreme Court I now dissent on a capital punishment case.

I dissent because I feel the defendant did not have a fair trial. I in concur Justice Utter's dissent based on the following particulars:

I agree with the dissent that the trial court committed reversible error in the allowing chart into summary go the jury room with the I also that jury. agree the court when, erred during the sentencing it admitted phase, information elicited from Lord's father Lord's concerning convictions second degree murder and unlawful imprisonment and his probation violations and from flight police. prejudicial effect of this evidence greatly out- value. State v. Bartholomew, 101 weighed its rebuttal 631, 643, Wn.2d 683 P.2d 1079 This case should be reversed and remanded for a new trial. — J. I dissent (dissenting) for four reasons.

Utter, First, the challenged summary chart29 is inaccurate and argumentative. result, As a the trial court erred in both the chart admitting it to the sending jury room. 29My phrase "summary use of the chart" refers to exhibit 143. Exhibit 143 is purports testimony an 8- 4-foot chart to summarize the of several experts. Although problems 143,1 I believe there are with both exhibits 141 and directly only problems will address those related to 143. the cross Second, during the State elicited the evidence did not Lord's father was prejudicial examination Therefore, admission any mitigating rebut evidence. Bar State v. rule set out evidence violates the (1984) (Bar tholomew, 631, 683 P.2d 1079 101 Wn.2d II).30 Third, allowing trial court erred tholomew the Lord's allocution statement. State to cross-examine Fourth, is to that disproportionate gener Lord's sentence in similar cases. ally given con chart summary

The error in admission to due right since it violates Lord's stitutional error reversal unless requires Therefore error process. the error State reasonable doubt proves beyond State v. 412, 425, Guloy, Wn.2d was harmless. (1986). The denied, cert. (1985), 475 U.S. 1020 P.2d burden, has its should State not met we reverse case, if Even that were not the the errors finding guilt. sen sentencing phase in the the vacation require Therefore, I tence. dissent.

I Summary Chart in a out, As the majority correctly points danger summary jury "might rely chart is that upon if already facts in the as these facts had alleged summary the assessing credibility or as substitute for proved been at That is the Majority exactly of witnesses." 856. opinion, case. in this problem his

The Lord killed Parker theory State's is that orange her in an workshop, body brother's wrapped blanket, and truck to of dispose U-Haul used his brother's theory, that the State body. support presented the To link of purportedly hundreds of trace evidence that pieces blanket, the The Parker the truck. workshop, sur- testimony summarizes supposedly experts' chart rounding that evidence. (Bartholomew (1982) I), Bartholomew, 1170 98 Wn.2d 654 P.2d 30State denied, remanded, granted U.S. cert. cert.

State's defendant's (1983) by Supreme Court and the case vacated the United States U.S. for reconsideration. remanded fact, In chart does not summarize that accurately the State's Instead, the chart summarizes testimony. All of the interpretation experts' testimony. experts' of and inconclusive. necessarily speculative testimony Yet the chart takes that inconclusive tes- speculative, definitive, conclusory and converts it into state- timony In doing, unfairly argues only ments. so chart the case. theory State's

For is a on the chart labeled example, category there The of evidence key piece "T. Parker Head Hairs". all of the trace evidence to Lord allegedly linking Parker is the The crime lab found orange U-Haul blanket. a human hair testified it is Cindy on the blanket. Jay to determine for certain who is the source of a impossible hair The she could conclude was particular sample.31 best that Parker cannot be eliminated as the source" "Tracy chart, however, the hair found on the blanket.32 The head hairs was positively shows that one of Parker's found on the at the chart one reaches looking blanket. the inevitable conclusion that Parker had contact with that blanket. Thus the chart takes tes speculative Parker's, that the infer timony might the hair be draws State, ence most favorable to the and improperly the hair is Parker's. for the jury concludes there is a on the chart labeled category Similarly, (Defendant)". however, "Coarse Hair The Body testimony, established the hair "could have" come from only again unfairly defendant.33 The chart draws the conclu the hair is that of the defendant. sion for the concludes from the majority any possible prejudice hair "was eliminated Lord's con- body category coarse cession that he had contact during closing argument Lord, 860. Majority with the blanket." at orange opinion, XXIII, 31Report Proceedings vol. at 3815. XXIII,

32Report Proceedings vol. at 3905. 3920; XXX, Proceedings XXHI,

33Report of vol. vol. at 4914. guilt not in the however, testify He did nothing. conceded did concede closing, the trial. His phase attorney, of "concession", the That Lord had contact with blanket. the however, is not of issue of whether dispositive the Furthermore, that state- in fact from Lord. hair did come jury may that the ment is not substantive evidence consider. it con when shaky ground

The travels over majority a fact may in a case "concede" cludes an criminal attorney conclusion Such a client. attorney's nontestifying the of ineffective assistance about questions raises serious silent. remain right counsel and about the defendant's attorney's It argument also the that an ignores precept In the support dangerous proposition, evidence. this Abbas, United States v. cites 504 F.2d 123 majority only (9th denied, 1974), cert. Cir. There is 421 U.S. in Abbas, however, no referring to conces language any Abbas sim either sions of the defendant his attorney. ply does not the conclusion on this support majority's issue.

A few other will of the chart's inaccuracies examples to show suffice how it mischaracterizes tes unfairly expert No examined wood or testified timony. chips had a links all they that common source.34 Yet chart together and leads conclusion chips inescapable to the are there chips Similarly, from a common source. a common testimony orange "could have" fibers so urce.35 Yet the links all of the conclusively chart fibers The same is all of the sam together. paint true of metal testimony ples fragments listed. source, they "could have" common or that always links all were "similar". Yet the chart they conclusively chart cannot but together, help them and one viewing did in from a all of trace come conclude evidence fact source. common XXXVIII, Proceedings

34Report 6072. vol. XXXVI, Proceedings

35Report of vol. at 5922-25. The prosecutor very this to the argued point jury. her the closing prosecutor referred to the chart and said:

the [trace evidence] items within here match the orange with blanket, match items shop, with from the with items match body, on Tracy Parker's match with the truck .... Report XLVI, of vol. Proceedings at 7312. While it is for proper prosecutor the such inferences from draw the it is for testimony, improper the chart to show the evi- States, dence in a Lloyd v. United such conclusory form. (5th 1955). 9, 226 F.2d 17 Cir.

The results such prejudice from evidence is clear. The State used the of testimony all the differ- concerning . ent of blanket, trace samples evidence to link Lord to the and the blanket to the victim. That is a certainly proper inference for the prosecutor to draw from the evidence. chart, The however, moves out the realm of of inference and into the realm of fact. The chart leads an inescapably observer to conclude that all of trace evidence did in the (for fact come from source, the same and that therefore example) the red found on Parker's hair is paint Tracy the same as the red found on the blanket and the paint on broom Kirk Lord's Thus the workshop. testimony three red is paint chips were "similar" transformed into statement the When chips were the same. taken together, the transformation of the inconclu- speculative, sive all of testimony about hundreds of pieces the trace evidence into a fact display unduly conclusive Lord. prejudiced by unfairly The chart misleads the jury case, the it the emphasizing impres- State's creates sion that the which the chart is underlying facts upon based been Therefore, have established. the conclusively Accord, trial court erred in chart. 5 J. admitting the 1006[07], Berger, Evidence Weinstein & M. 1006-15 § The trial court then the error compounded by sending the chart the room. Inaccurate summary charts Cox, United States v. should not be sent to the jury room. (9th denied, cert. 1980), 633 F.2d 874 Cir. 454 U.S. (1981).36 picture unfair "presentís] Such evidence an for weapon at trial and can be testimony potent the Cox, 633 F.2d at its great harm due to persuasiveness." inaccurate, charts inevitably Admitting misleading 874. revérsal. United requires the defendant prejudices 1955). (2d Altruda, Cir. States F.2d by caused any prejudice to the According majority, heard by jurors errors in the chart were cured fact the testi- and uncertain nature of the equivocal experts' heard majority jurors The believes that because the mony. all could testimony, they then not have been misled by fact, chart's inaccuracies. true. opposite out, majority points experts

As State's testified testimony all or of 18 Much of the part days. repetitive experts and monotonous. referred many two three different iden exhibits and sometimes within all testimony tification numbers.37 Buried of that of were the statements various trace equivocal pieces have" from a common source.38 Thus evidence "could come the have been confused as to what easily could jurors to. Once the were in being jurors testified exactly 36Accord, Abbas, supra; Espinosa, v. United 771 United States States v. F.2d (5th (10th 1985); Co., Ramsey 1985); Pierce Cir. 1382 Cir. Winch 753 F.2d 416 (6th Scales, Cir.), denied, 441 U.S. States v. 594 F.2d 558 cert. 946 United (2d denied, (1979); Conlin, Cir.), States v. 551 F.2d 534 cert. 434 United U.S. (1977). 831 exchange following problem.

37The illustrates this 1, begin [paint] you assign type with did To No. which into that classifi- "Q: Any just of these talked cation? that we've about?'1 assigned Type sweepings 1 I No. from EO 1. Those are the from the "A: 3, workshop, 06, post, AK the fence which is the debris that’s also N Tracy leg." Parker's from you microscopically paint samples did at from AK which is When look "Q: Proceedings Proposed IB, Report Exhibit 13 as in baker?" of vol. State's XXXVI, at 5847. XXXV, 38See, Report Proceedings (paint chips e.g., at were "simi vol. 5757 (white XXXVI, lar"); paint chips source); have" a common vol. 5760 "could "similar”); (same); (yellow paint paint chips chips (green are 5858 5841 5909 source"); (orange have from the same 5925 fibers "could come "could have come grayish blanket"); XXXVII, (pale "could from vol. at 5944 brown fibers share the origin"). a common deliberations, their it would have easy been and perhaps natural for them to on rely heavily the chart and its inaccuracies.

Thus the jury may have relied "upon the facts alleged the as if these summary facts had already proved been as a substitute assessing credibility witnesses." Scales, 594 F.2d at Furthermore, 564. chart sending the jury room allowed the chart to become a continuing voice for the State's interpretation of the evidence. The fact that have jury may relied on the inaccurate chart is enough to establish prejudice.

Reversal unless required the State proves beyond reasonable doubt the error was harmless. The error was harmless if the only untainted evidence is so over whelming that it necessarily leads to a finding guilt. State v. Guloy, 412, 426, 104 Wn.2d (1985), P.2d 1182 cert. denied, 475 U.S. 1020 (1986). The State has not met its burden of proving the error harmless.

The majority concludes caused prejudice by sending chart to the room eliminated by court's instruction, limiting the defense cross examination However, instruc experts. limiting where, here, tions cannot cure the error as the chart is too conclusory and too much of the emphasizes State's case. (6th Scales, United States v. cert. Cir.), F.2d denied, 441 U.S. 946 Abbas, on United States v. relies majority primarily (9th denied, cert. 1974),

504 F.2d 123 Cir. 421 U.S. 988 (1975), to that a support argument instruc limiting tion and an opportunity cross-examine cures error. Abbas is distinguishable because there the court found the charts challenged contained no errors related to the counts for which the convicted the defendant. contrast, 504 F.2d at 126. exhibit 143 here contained numerous errors by inaccurately summarizing the ex testimony inconclusive as perts' conclusively proven facts. Krasn, also cites United States v. The 614 majority (9th 1980). Krasn, F.2d 1229 Cir. There is in nothing

925 in the in fact errors indicates there were however, that challenged chart. cases the the

The most critical distinction between majority of the cases the case is that none cites and this majority capital majority cor are cases. As the relies on heightened rectly required apply scru observes, to we are noncapital reasoning tiny capital in Thus the cases.39 dispositive. not cases is purpose heightened scrutiny is to the

The of assure greater reliability degree of that is existence of the required penalty may imposed. be Mur- before the death ray 1, 1, Ed. S. Giarratano, 8-9, v. 492 U.S. 106 L. 2d 109 greater scrutiny majority only apply 39The that court to insists this should Supreme recently sentencing phase capital Court stated in the of a trial. As the 2765, 8, 1, Giarratano, 1, Murray 109 Ct. 2770 492 106 L. Ed. 2d S. v. U.S. (1989): recognized more one occasion that the Constitution "We have on than procedures accused a places special on used to convict an of constraints the particular, capital the him to death." In Court Beck offense and sentence (1980) 625, 392, recognized Alabama, 447 U.S. 65 L. 2d 100 S. Ct. 2382 the Ed. judicial guilt sentencing importance heightened scrutiny of both of the capital phases an rule case. The Court Beck invalidated Alabama that of guilt phase prohibited in the an instruction on a lesser included offense of a noting significant capital After there is constitutional difference trial. that penalty punishments, Court wrote: between the death and lesser the penalty imposed the of To death is indeed on basis "reason insure the caprice emotion," procedural rules we rather than have invalidated reliability sentencing the determination. same tended to diminish the reliability guilt reasoning apply must the deter- rules that diminish mination. omitted.) (Footnote heightened appropriate scrutiny 447 U.S. is at 638. Such case, during guilt phase procedural irregularities capital of a dur- the because penalty. ing phase unfairly expose guilt can to the death a defendant higher Recently, Kentucky Supreme recognized standard of Court phases penalty guilt penalty where the death review at both cases 1989). Commonwealth, 367, (Ky. imposed. Cosby v. S.W.2d Moreover, phase capital recognized guilt this cases court itself has guilt phase noncapital example, qualitatively cases. For different from the is 418, denied, 722, Jeffries, 479 U.S. 922 P.2d cert. in State v. 105 Wn.2d (1986), construing procedural approach rules in the cotut took a liberal this Jeffries, guilt phase capital the defendant to of a case. In this court allowed though objection challenge jury made at trial. to them was instructions even no proper review an issue where The usual rule is that this court does not Theroff, objection 622 P.2d 1240 at trial. State v. Wn.2d made assertion, guilt phase capital Thus, contrary majority's of a identically. noncapital guilt phase are of a case not treated case and the (1989). greater degree 2765,

Ct. reliability That requires only heightened scrutiny, requires not a it also special procedures constraints on used to convict a de- capital Murray, fendant of a offense. 492 U.S. at 8-9. Thus procedures permissible noncapital that are in a case are always capital not' allowable in a case. Ohio, Lockett v. 586, 604, 438 U.S. 973, 57 L. Ed. 2d (1978), capital juries

98 S. Ct. 2954 the Court held cannot precluded considering any mitigating be from relevant including aspects evidence, of the defendant's character. acknowledged, legislatures Court however, that state noncapital may are free to limit the evidence a sentencer acknowledged consider. 438 U.S. at 603. The Court also legislatures mandatory are free to enact in sentences noncapital legislature may cases. 438 U.S. at 605 n.13. A mandatory penalty. not, however, enact a death Woodson v. North Carolina, 280, 944, 428 U.S. 49 L. Ed. 2d 96 S. Ct. 2978

In Beck Alabama, 447 U.S. 65 L. Ed. 2d (1980), may S. Ct. 2382 the Court held a death sentence imposed prohibited jury not be where a statute from considering noncapital included, a lesser offense. The require Court noted that while the constitution does not giving of lesser included offense instructions in non- capital heightened reliability capital cases, the need give cases means the trial court must such instructions where warranted the evidence. 447 U.S. at 637-38. requires only engage Thus the constitution that we closer, in a more record, careful review of the it also requires procedures us to determine that used meet reliability. the standard of increased The trial court erred admitting sending both in the chart and in that chart to jury room. Even if that error could be corrected noncapital by giving limiting case instruction and allow- ing qualitative examination, cross difference between penalty any punishment requires the death other us apply procedures heightened scrutiny stricter the trial of the chart The admission this case.40 the chart decision send subsequent court's decision. jury's reliability room undermine of guilt. the finding this court should reverse Therefore II of Bartholomew. A. Violation Bartholomew, P.2d 1079 631, 101 683

State v. Wn.2d (Bartholomew II) (1984) may State limits evidence the The trial. State of a penalty phase capital at the present is record, that would defendant's criminal evidence

limited to have phase, at the and evidence guilt admissible been mitigation by in the defendant. rebut raised matters State 642. evidence the offers Any 101 Wn.2d at rebuttal to that subject contemplated is to a test similar balancing is only ER 101 Such evidence by 403. Wn.2d 643. if its outweighs prejudicial admissible its rebuttal value effect. 101 Wn.2d at 643.

As evidence this case below, discussed the challenged Addi- does not evidence. properly any mitigating rebut if rebuttal tionally, slight even that evidence had some value, prejudi- that value is the evidence's outweighed by admitting all cial effect. Therefore the court erred evidence. challenged the Bartholomew test majority acknowledges it a then ER 405. That basic analogizes analogy ignores 405(a) ER states: difference between the two tests. or a trait of all cases evidence of character admissible, which person proof may of a is be made character examination, reputation. inquiry is testimony as On cross conduct. specific allowable into relevant instances of is intro- Thus, 405, ER once character evidence under is rebuttal evidence presumption duced there is that admissible. 231, 320, 329, Mississippi, 472 U.S. 86 L. 2d 105 S. Ct. Ed. Caldwell 40Cf. (1985) .("the punishments qualitative from difference of death all other sentencing degree scrutiny capital greater requires correspondingly determination").

Under test, Bartholomew however, there is a pre- sumption rebuttal evidence is inadmissible. The rule as stated in Bartholomew II is:

Only if the rebuttal value of the evidence outweighs the prejudicial effect should the evidence be admitted. 101 Wn.2d at 643 (quoting Bartholomew, State v. Wn.2d 198, 654 P.2d (1982), State's cert. granted remanded, 463 U.S. cert. defendant's (1983)). denied, 463 U.S. 1212 Thus the presumption rebuttal evidence is inadmissible. The State can overcome that presumption by proving that the evidence's rebuttal value outweighs its prejudicial effect.

Applying Bartholomew test is a 2-step process. The first is to step determine whether the offered evidence has rebuttal any value. If the evidence has no value, rebuttal it is inadmissible. Once it is established that the evidence has some value, rebuttal the second is to step determine whether rebuttal outweighs value the evidence's prejudicial not, effect. If it does then the evidence is inad- missible.

Lord assigns error to the admission of evidence elicited during father, the State's of cross examination his Leslie.41 Specifically, argues the trial court erred in allowing the State to elicit concerning information the facts under lying Lord's second murder conviction and his con degree viction for unlawful the fact imprisonment, that he violated probation, and the fact that he fled from the police. Because I both that none believe of that evidence evidence, was proper rebuttal and that the evidence is I prejudicial, would vacate Lord's sentence.

The concludes that all of majority the challenged evi- dence was admitted to rebut properly "evidence of good character offered Lord's father." by Majority opinion, at 894. As an of the example supposed evidence of "good character", cites majority two in exchanges which Les- lie said his son a "good was Read in boy". the proper majority's terminology 41Iwill follow the and refer to the defendant as "Lord" family by and to all other members their first name. examination, however, those entire direct context as as offered being be seen properly comments cannot character. good evidence following such comment occurred

The first exchange: of child Keith Q: type this what you describe for Could age until of 14? up good a kid---- boy, loving just a kid and real good

A: He was a L, 7723. Taken in proper at Proceedings vol. Report good his was a was that son context, testimony Leslie's evidence challenged of 14. All of the age until boy up turned 14. after Lord that happened concerns events good not "a Lord was suggests is no evidence that There Thus none of the State's evidence 14. boy" turning prior testimony. rebuts Leslie's the end of the following occurred exchange examination of Leslie.

defendant's direct Les, Q: Keith been convicted of? you do know what has Yes, A: I do. Q: is, you? past You know what his don't A: Yes. Q: you him now? How do feel about good boy. I dearly. A: him love him. He's a I love L, at That was the last Proceedings vol. 7730. Report direct examination. Taken and answer question context, boy" statement cannot reason- good "[h]e's a character. as of Lord's ably interpreted good be evidence Instead, it a father's love for simply profession son, The statement his all of the son's mistakes. despite rebut- that warranted was not factual assertion positive "How do question to the response tal. It was an emotional (Italics mine.) about [defendant]?" you feel answer Leslie's later This conclusion is borne out to the response prosecutor's questions. one of the his he still considered of whether question prosecutor's "Well, I still love him. boy, to be a Leslie good replied: son This L, at 7740. Proceedings vol. my He's son." Report as objective an offering opinion Leslie was not shows that to his son's Instead, character. he was simply reaffirming that he still loved his son.

This a case where a witness must be impeached specific with instances of the defendant's bad conduct order to give proper context for evaluating testimony. witness' Leslie testified he knew about all of convictions, his son's the facts the Tracy about murder, Parker but still his son. The jury loved knew bias, about Leslie's could evaluate how much weight give his testimony. light that, there was no need to "impeach" Leslie. in his attempt Nothing testimony could have left a false as reasonably to Lord's impression only character. The impression could have testimony left with the reasonably jury was that Leslie still loved his son.

Leslie did offer as evidence the fact mitigating that his good carpenter son was a and that son his had been serious car accident. The that fact Leslie loved his son may also be considered mitigating See, e.g., evidence. Tennessee, _ U.S. _, 720, Payne 115 L. Ed. 2d 111 S. (1991); Ct. Butler, Jones v. 864 F.2d (5th 1988), Cir. denied, cert. 490 U.S. 1075 However, none of the State's evidence challenged rebuts that evidence. mitigating Therefore the evidence's rebut tal value is nonexistent, it was error to admit evidence. value,

Even if evidence has some rebuttal rebuttal value does not outweigh evidence's prejudi- cial effect. Therefore still court erred in admit,ting that evidence.

On cross examination State elicited information victim Lord's unlawful imprisonment convic- tion hospitalized. asserts majority this was not prejudicial because the knew jury already the crime was " violence, by menace, fraud, 'effected and deceit'." The concludes majority injuries "[t]he infliction is inherent in a crime committed violence." opinion, Majority

931 sense and the both common 893. That conclusion defies law. of inherent a crime viol is an of part not simply

Injury is as a offense" defined "violent Washington, ence.42 A felony. to a class A commit any felony attempt class or 9.94A.030(33). encom obviously That definition RCW to injury result the crimes that do not passes many (5th ed. Dictionary, at 1408 Similarly, victim. Black's Law 1979) defines "violence” as: force, usually with the Unjust unwarranted exercise of or Physical vehemence, fury. or . outrage . . accompaniment of any physical of unlawfully exercised; . . . The exertion

force force so as to injure, damage abuse. (Citations omitted.) encompasses also definition That in injury. acts that do not result many Lord violated More statute importantly, the California necessarily including injury. does not define "violence” as of of 236 the a section pleaded to violation guilty the general section defines California Penal Code. That then on to goes Section 237 imprisonment. crime of false imprisonment as imprisonment define false felony menace, fraud, or deceit". "Violence" violence, "effected force used to of physical is defined as "the exercise necessary to reasonably the force restrain over above — Instructions Jury effect such restraint." California 1988). (5th Thus, under the Criminal 9.60, ed. at 512 § conviction, injury Lord's California law applicable not an inherent of "violence". part the examination fact

The State also on cross elicited was a imprisonment that the victim of the unlawful conclusion, that infor- the teenager. Contrary majority's the cross examination mation was also Prior to prejudicial. the defendant had Lord, the only of Leslie knew jury of woman. imprisonment been convicted unlawful examination, knew victim was After the cross and that teenager, hospitalized, injured were, testimony much further. Leslie Lord testified if it here went 42Even just injured, hospitalized as a result of victim was but she that the L, Proceedings injuries. Report vol. 7737. her 932

incident involved the defendant the victim a ride in giving his car. Thus cross examination improper elicited information highlighted the similarities between the unlawful conviction and the murder imprisonment It is Tracy similarity Parker. between the improperly elicited evidence and the murder Parker that creates Pam, State v. 748, 761-62, prejudice. 98 Wn.2d Cf. (1983) result) (Utter, J., P.2d concurring from (prejudice arising introduction of crimes under prior ER 609 is where the is similar great prior crime Bowen, State crime); charged App. Wn. (1987) (same).

P.2d 316 State The also elicited evidence that Lord violated the probation escape conditions of his from attempted The from police. argues any arising majority prejudice that evidence is given that was "insignificant jury aware of of for properly both vio- prior Lord's convictions lent crimes." Majority opinion, at 894. Taken to its logical conclusion, mean no majority's argument would almost error would ever a prejudice a past. defendant with violent Indeed, the next logical in the step majority's is to analysis conclude that prejudice would be insignificant given that was already of properly aware the circum- of stances the Parker all, murder. After how prejudicial a in probation light violation of a for conviction aggravated degree would, first murder? Such a decision course, of Bartholomew I and mockery a in make reasoning II. ignore It also our responsibility would to assure that any sentenced death is afforded due person process. Furthermore the evidence of the vio- alleged probation lation is the kind of exactly unreliable evidence warned in Bartholomew II. against The evidence of only any pro- bation violation came out the cross examination of Les- following lie. The exchange shows how unreliable evidence is. Q: obey proba- [the defendant] So did not the Court's order of he probation after for crime placed tion murder in on of degree? second Well, I really

A: don't know if did or not. he Q: spend days jail Did he have because he did not obey the rules for homicide? probation this jail he I for that. know I know sure about A: wouldn't — days or it was 30 I remember whether there don't for. it was was, and I don't recall what days, but he The State L, pre- at 7734-35. of vol. Report Proceedings ever found guilty that Lord was sented no other evidence alleged evidence of that Thus the of violation. probation it admis- to make reliability necessary lacks the violation Bartholomew See capital sentencing proceeding. sible in a II, at 101 Wn.2d 640-41. Bartholomew earlier, creates out pointed

As The is inadmissible. rebuttal evidence presumption beyond proving can overcome that presumption State out- rebuttal value the evidence's a reasonable doubt is as the evidence effect. Where prejudicial its weighs vio- of the alleged probation as is the evidence unreliable lation, meet that burden. the State can never alleged evidence of Lord's

There is also no reliable to flee the the course of cross attempt police. During examination, Leslie testified his son left the scene of the police false crime and that chased his imprisonment Report L, testimony son. vol. at 7739. That Proceedings he had police reports was based on Leslie's recollection acknowledged and which he he could not "years ago" read L, vol. Proceedings remember. accurately Report with his son. 7737. Leslie never discussed the incident L, evidence of only vol. at 7738. Proceedings Report hearsay the attempted flight incomplete Lord's not reliable surely of Leslie. That evidence is recollections case. to have value in a enough any capital rebuttal elicited information concern The State also improperly The Lord's murder conviction. cross ing degree second inflammatory out facts brought examination improperly no reliable of the murder. There was about the details facts, of those any many evidence of corroborating not relevant to Those facts were hearsay.43 on were based was she murdered? How 43"Q: shot. "A: She was gun guns? two From one "Q: Well, guns they involved. said there was two "A: with; correct, guns separate that Mr. Lord? she was shot isn't Two "Q: L, said, Report Proceedings they yes." vol. at 7731. "A: That's what rebut any mitigating evidence. Therefore the court erred in allowing that cross examination. majority

The concludes that none of challenged evi dence discussed above was unduly prejudicial. pro The closing secutor's argument belies that conclusion. In her closing argument the prosecutor all emphasized erroneously admitted evidence. She paid particular atten tion to facts Lord's surrounding previous two convic tions, and made powerful arguments that could not help but on play the jurors' emotions.44 She that emphasized the victim in the false a teen imprisonment case "was ager, just like Parker." vol. Tracy Report Proceedings LI, at 7883. Thus all of the elicited informa improperly tion was to used Lord's prejudice. to

Improperly admitting the evidence allowed State argue to nonstatutory aggravating jury. factors danger allowing such evidence is it opens arbitrary too wide a door the influence of on factors sentencing determination. I, 98 Bartholomew Wn.2d at Henry Wain- (quoting (5th 1981)). wright, F.2d Cir. Allowing jury to consider nonstatutory factors aggravating also defeats the constitutional mandate of channeled discretion. Bartholomew 98 Wn.2d at 195. In I, this court decided those dangers dictate that the court limit the evidence put jury. before the 98 Wn.2d at 196. this Specifically, court held: relating Information to defendant's criminal past should

therefore be limited his record of convictions. at 197. 98 Wn.2d The evidence admitted this goes case beyond the I Bartholomew scope does not properly rebut any evidence. In mitigating concluding the evidence admitted, Bartholomew properly majority ignores II's warning [the court] not . the prosecution do[es] intend . . be

permitted produce any long evidence it cares to so as it imply anything improper 44Ido mean I nor do believe there with prosecutor gave closing argument. manner in which the her

935 slight or matter how of rebuttal no some element points incidental. 198). I, Any Bartholomew (quoting Wn.2d at 643 101 certainly has is evidence challenged the rebuttal value that evi- of Therefore introduction incidental. slight and Lord's sentence vacate error, and we should dence was untainted by sentencing proceeding and remand a new admitted evidence. the improperly necessary under both In Bartholomew II, it we deemed of federal constitution the amendment the eighth to channel 1, this state's constitution article section 14 of a capital of sentencing phase at the the discretion jury's of limit- the recognized importance case. In that case we factors at nonstatutory aggravating admission of ing the the stage. majority's approach But now sentencing factors nonstatutory aggravating door for effect opens majority's generous The sentencing phase. during evidence will allow constitutes rebuttal notion what nonstatutory about prosecutors get just any phase, regard- factors during sentencing aggravating it on the rebuts reliability, pretext less of their The also fails to take seri- mitigating majority evidence. testimony effect of the that was ously prejudicial Thus, majority's in this case. will approach admitted efforts to channel undermine the court's significantly cases. That capital in the sentencing phase discretion in Bartholomew II, is at holding odds with our approach constitutional on the state and federal infringes defendants. rights capital Court cases Supreme

Our review of United States Eighth Bartholomew II indicated the strictures consideration Amendment require jury's of a sentencing stage at the factors be limited aggravating Wn.2d at 635-39. The case. Bartholomew II, 101 capital the defendant long opportunity Court has allowed See factors. any mitigating introduce relevant California 934, S. Ct. Brown, 538, L. Ed. 2d 541, 93 v. 479 U.S. Ohio, L. Ed. 586, 604, 57 (1987); Lockett 438 U.S. 2d however, 98 S. Ct. Court, has taken a more view what kinds of stringent aggravating evidence can be admitted. As the Court wrote in 153, v. Gregg Georgia, 203-04, 428 U.S. 49 L. Ed. 2d (1976): 859, 96 S. Ct. 2909 wisely

We think the Georgia court has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing approve open far-rang- and to and ing argument. arguments long ... So as the evidence introduced the presentence hearing made at the not prejudice do a defendant, think before it as it preferable is not to impose restrictions. We it desirable for the to have as much information possible it makes sentencing when the decision. (Italics mine.) See v. Ramos, 992, also 463 U.S. California n.23, 1171, 1186, 1009 77 3446, L. Ed. 2d 103 S. Ct. 3457 (1983). Estelle, 880, 926, v. 463 U.S. 77 L. 2d Ed. Barefoot 1090, 1125, 3383, 103 S. (1983); Ct. 3411 Zant v. Stephens, 862, 886, 462 235, 256, U.S. 77 L. 2d Ed. 103 S. 2733, Ct. 2748 As the court II Bartholomew noted, this "prejudice" concept evidence submit- subjects ted by prosecution to a more standard than rigorous that advanced defendant at the sentencing phase of a capital II, trial. Bartholomew 101 Wn.2d at 637. The Bartholomew II court also provisions noted that (due (cruel 1, article sections 3 14 process) punish- ment) of the Washington State Constitution limit range evidence a prosecutor may introduce. 101 Wn.2d Therefore, at 639. to majority's approach the Bar- tholomew test on infringes the federal and state constitu- rights tional of capital defendants.

B. Cross Examination of Lord's Allocution Statement. Prior to closing Lord argument, exercised his common law to allocution. The right of allocution purpose pro- the defendant an opportunity vide for plead leniency. 791, 793, See State v. 94 Wn.2d Happy, (1980); 620 P.2d 97 Camera, Marshall, Lights, Allocution: Contemporary Rele- Dream?, 207, vance Director's 62 L. Tul. Rev. 211 (1987). Allocution assures the sentencer will consider the defendant's position sentencing pronouncing on prior

937 868, Peterson, 864, 651 v. Wn.2d that sentence. State (1982).45 P.2d 211 correctly points majority out, case, as the

In this engaged beyond in more He of allocution. went the bounds just plea mercy. Nonetheless, still court than allowing Lord. the State to cross-examine erred exchange By is an between definition, allocution does involve sentencer. Allocution defendant majority prosecutor. cite the any nor the State Neither the right case that holds there is a to cross-examine language Instead, after cites defendant allocution. each denied, Mak, v. 105 Wn.2d 718 P.2d cert. State (1986), 479 corpus vacated on writ habeas U.S. sentence (W.D. Supp. Blodgett, sub nom. Mak F. 1991). Wash. request rejected Mak,

In the trial court the defendant's closing jury following to make statement to the language by argument.46 majority the The cited the merely may not a state State holds defendant make closing jury argument. Thus, the Mak ment to after oppor proposition the have stands for the State must an any tunity That rebut statement the makes. to defendant cross not, however, does have to take the form of rebuttal language simply There is no Mak that examination. says right on there is a to cross-examine the defendant his statements. allocution P.2d cert.

State Wn.2d Jeffries, (1986) proper manner denied, 479 U.S. 922 illustrates the dealing for with a defendant's allocution. Jeffries, during testify guilt either defendant did not right Peterson, supra, interpreted the allocution 45The court in State v. Nonetheless, reasoning applies equally to the CrR the court's under former 7.1. right common law of allocution. request opinion specifically state that defendant's 46The Mak does inevitable, argument. closing conclusion statement after Such a is make a "prior however, opportunity to make a statement from the fact Mak refused an Additionally, closing arguments". this 105 Wn.2d at 729. court's observation by requested argument", 105 statement would be "unanswerable that Mak's 729, only request if make a after makes sense Mak's was to statement Wn.2d at argument. penalty phases of the did, trial. He however, exercise his right allocution. In closing argument the prosecutor referred to defendant's allocution:

Well, you have heard the Defendant in a situation where he does not have to take an oath and in a situation that I can't cross-examine him statement, and his I submit is one insulting that is intelligence. to the 105 Wn.2d at 415. The prosecutor used the closing argu ment to rebut the allocution.47

That is the proper way to address allocution. The essence of the majority's is argument State must be allowed to cross-examine in order to rebut "testimony" offered during his allocution. Cross not, however, examination is necessary to rebut the allo- Instead, cution. the prosecutor could object that the state- ment beyond bounds of proper allocution. During closing argument the prosecutor remind may jury any introduced properly evidence rebuts defendant's statements. prosecutor make may reasonable inferences and argument related to the allocu- tion. The also, prosecutor may as did the prosecutor Jeffries, remind the defendant's statement is unsworn and not subject to cross examination. In that way, the prosecutor can sufficiently rebut any defendant's statements.

The rule the majority is a adopts trap the unwary defendant. The majority the burden places on the solely defendant, and in so doing fails to majority protect that defendant's A rights. better rule would be to require the prosecutor to object whenever he or she believes the defendant has gone beyond the proper bounds of allocu- tion. That rule would protect both the State's and the defendant's A interests. proper objection would protect State's interest in not having the defendant put unsworn before the testimony It would jury. also allow the court to prosecutor's assumption 47Inote in we did not comment on the Jeffries right that he had no to cross-examine after allocution.

939 assur- mercy, by to right plead the defendant's protect bounds of not go beyond proper the defendant does ing allocution. due his right

The examination of Lord violated cross Therefore, I his to remain silent. would right process, as well. ground the sentence on this vacate Proportionality. C. is

The Lord's sentence majority proportionate holds in I similar cases. imposed the sentences on defendants conducting discussed the difficulties in previously have See State review under our state statute. proportionality (1984) 42, (Utter, Campbell, v. 1, 103 Wn.2d 691 P.2d 929 denied, cert. J., in in 471 concurring part), part/dissenting 435-37, Jeffries, State (1985); 105 U.S. 1094 Wn.2d (1986). denied, 479 (.Jeffries cert. I), 922 717 P.2d 722 U.S. to clarify proportionality The review majority's attempt I refer my does not eliminate the the court difficulty. earlier for farther discussion of issue.48 this opinions correctly

The out majority points proportionality cases review must include all where the defendant was murder, not the aggravated convicted of whether or State 10.95.120, .130; penalty. the death RCW sought majority goal at 908 n.27. Our is to ascertain whether opinion, death excessive to the disproportionate "sentence of 10.95.130(2)(b). RCW similar cases". penalty imposed if it has disproportionate The sentence is excessive and (Italics "generally been in similar cases". imposed mine.) 485, 490, Jeffries, In re 114 Wn.2d 789 P.2d 731 (1990) Rupe, State v. 734, 767, II); 108 Wn.2d 743 (Jeffries (1988). denied, cert. (1987), U.S. A 210 486 1061 P.2d it is "generally" imposed imposed is not unless sentence I, of the similar cases. least 50 percent Jeffries (Utter, J., dissenting). Wn.2d at on those cases which death focuses majority little It actually imposed. expends precious penalty Comment, Washington's Comparative Proportionality Review: 48See also Penalty Washing Appellate Review Death Cases Under Toward Effective Constitution, ton State L. Rev. Wash. ink in a few describing similar cases in which the death penalty was either not or imposed sought by prosecutor. It does not list all of the similar cases. When the majority does mention cases, such it does not describe the aggravating factors and factors in mitigating those cases. It does not describe the defendant's convic- prior in tions those cases. It superficially those distinguishes cases from this one without all of meaningfully comparing the relevant factors in those cases to the ones in this case. The then majority concludes that Lord's sentence is proportionate, because, in view, majority's death penalty has been in imposed similar cases.

This analysis ignores both the plain of the language statute and the basic purpose of proportionality review. Our statute us to requires consider all cases in which the defendant was found of guilty first aggravated degree murder, "regardless whether [the death penalty] 10.95.130(2)(b). imposed executed". RCW Our task is not to determine whether the death has ever penalty been case, in a similar imposed but to determine whether it is generally imposed similar cases. task,

To perform that we must the facts and compare circumstances of Lord's crime with those of all other simi- lar aggravated first degree murder convictions. This com- involves parison more than just simple matching factors. aggravating II, 114 Wn.2d at 490. Jeffries Nonetheless, our cases make it clear that similarity factors is an aggravating element of proportionality See, e.g., II, review. Wn.2d at 491. Jeffries Because we must compare factors, I am aggravating compelled briefly to address whether there is sufficient evidence to support jury's determination that Lord committed the murder in the course or furtherance that, crime of kidnapping. majority concludes because there is sufficient evidence to support finding rape, it is to address the unnecessary sufficiency of evidence of kidnapping. This conclusion is correct with regard whether is there sufficient evidence to support jury's verdict of With guilt. regard review, to proportionality use an unfair fundamentally it be however, would similar the universe of determining factor in aggravating to support insufficient evidence if there was cases I there insufficient evidence factor. Because believe not consider that I would finding kidnapping, support similar selecting the universe of factor aggravating cases. there is sufficient evi- whether determining

The test for a reasonable guilt beyond of justify finding dence to most whether, evidence in the viewing light is the doubt trier of fact rational prosecution, any favorable to the of crime essential elements the could have found the Green, doubt. State v. Wn.2d beyond reasonable case, In this there is insuffi- 220-21, 616 P.2d 628 the Green test. evidence to meet cient is that Lord lured Parker to Kirk theory The State's her to employing under the workshop pretense Lord's that Lord "deceived" argues finish cabinets. The State kid- into to the and therefore going workshop, Parker the State support theory her To that napped by deception. Parker a in June job that Lord offered presented evidence that Lord fre- The State also evidence presented 1986. Finally, Parker rides home. the State gave quently two from that Lord made calls phone evidence presented The day disappeared. the on the Parker Frye residence calls assure that no one was State theorized those were to looking that no one would be workshop, at the Lord. the State's

The record is insufficient to establish to theory. The first of Lord's calls was speculative placed mile from away his friend while Parker was almost a girl is to indicate Lord knew nothing the house. There Frye she horse, or that would be riding Parker was out her Thus there at house in the near future. Frye the arriving the support theory in the record to nothing speculative is assure no one would be look- Lord the call to placed that for him. ing support speculation to nothing

There also job with a offer. workshop lured Parker to original earlier, offer was made 6 months and there is no evidence to indicate Lord ever renewed the offer. There- fore, the State's evidence is insufficient to support kidnapping charge.

Because there is insufficient evidence support finding that the murder was committed during course or furtherance we kidnapping, disregard must Therefore, finding. we need only following consider three aggravating factors: the murder was committed crime, conceal commission of a conceal identity of a perpetrator crime, and in the course further- ance the crime of rape.

We must more factors, do than look at just aggravating however. We also must examine relevant any mitigating II, factors. Wn.2d 490. Lord on put mitigat- Jeffries ing evidence he has an antisocial dis- personality order, he has substance problems abuse with alcohol and marijuana, and his loves him. He also family presented evidence that he is a good carpenter.

In performing review, we proportionality must also criminal take into consideration the defendant's record. convictions, has prior two one for a including second degree he murder committed when he 14 years old.

A trial review of judge reports published and cases reveals 24 in cases which the defendant was of convicted with aggravated murder as an rape aggravating factor. Juries death in imposed sentences three of only those (Clark Dodd 89-1-01133-6, cases: causes Westley Cy. 89-1-01134-4); Michael Cy. Furman cause 89-1- (Kitsap 00304-8); and Lord. this yet Because court has to review sentence, either Dodd's or Furman's conviction and those cases have value proportionality little for review pur- Nonetheless, it is Dodd noting worth poses. pleaded brutally to and three children. guilty raping murdering The facts for of Dodd's convictions three counts of aggra- not vated murder do seem similar to Lord's case. Furman's case also seems dissimilar. The found jury case, factors in Furman's as to opposed five aggravating three Lord's case. Three of the factors the same were

943 in Furman’s case also found cases, the jury but both of in the course or furtherance the crime he committed had more convic- prior Furman also and burglary robbery. crimes. Lord, property for mostly tions than albeit Lord, there are six Dodd, Furman, and In addition to exis- in which the found the jury cases rape/murder other six, Of those least three factors. aggravating tence at similar to Lord's case. being should consider five as we premeditated A David Duhaime jury convicted a murdering and degree raping murder in the first Duhaime, girl. State App. Wn. 17-year-old (1982).49 denied, review (1981), P.2d 964 Wn.2d of rape, kidnapping, found Duhaime jury guilty The also "brutally all first Duhaime degree. and robbery, and left her in the body lying stabbed" his victim to death any no in the case of mitigating snow. There is mention the death jury impose penalty. factors. The did her, his stran- up, raped James tied victim Dykgraaf Clark her, Judge, shot her. of the Trial Report gled The aggravating cause found four Cy. jury 86-1-00111-5. circumstances: murder was committed conceal and the murder was commit- identity perpetrator, burglary, ted in the course or furtherance rape he evidence that robbery. Dykgraaf presented mitigating a and that his father personality has "mixed disorder" a had sis- raped Dykgraaf's man who "domineering" has for first degree ters. one conviction Dykgraaf prior has Thus, Lord, intent like rape. Dykgraaf assault with The did not jury violence toward women. history penalty. the death impose 23-year-old jogger. Report

Russell Stenger kidnapped He took cause 87-1-00951-3. Judge, Cy. of the Trial Clark locations, her raped repeatedly different her two her. to a and shot then tied his victim tree each. Stenger found felony He has convictions. prior three credible evidence factors. There was no aggravating three killing The trial described mitigating judge of factors. 14, 1981, prior May trial occurred 49Because Duhaime's conviction report judge required this court. See RCW 10.95.120. to submit a as "most heinous". The State did not seek the death penalty.

Ronald Thomas "hog-tied" his bed, victim to her raped her and strangled her. of Report the Trial Judge, King Cy. cause 86-1-04723-5. The jury found three fac- aggravating tors: the murder was committed to conceal the of identity the perpetrator and the murder was committed in the course or furtherance rape robbery. There was no credible evidence of factors. mitigating Thomas has three convictions, prior one including for armed robbery. The State did not seek the death penalty.

Daniel Yates raped murdered a 13-year-old girl. of the Trial Report Judge, cause Kitsap Cy. 87-1-00444-7. The jury found Yates guilty of three counts of first degree rape and two counts of first attempted degree murder. Yates has five priors, one including for armed robbery. The jury found the same three aggravating factors as in case, Lord's plus the additional factor the murder was committed in the course or furtherance of kidnap- There was no ping. credible evidence of factors. mitigating The jury did not impose the death penalty.

The above cases have similar numbers types factors. aggravating Proportionality review requires we do more than match just factors, aggravating however. In re Jeffries, 485, 490, Wn.2d 789 P.2d 731 We must also examine the facts of the crime and the characteristics of the defendant. Thus there are several other cases that we should consider as similar being purposes proportionality review. beat,

Bruce Bushey raped, and strangled woman he had met a few hours before the murder. Report of the Trial Judge, cause King Cy. 84-1-02746-7. His con- prior viction for second degree establishes rape pattern violence against women. There was no credible evidence of mitigating factors. The did not the death impose penalty.

Kenneth Hovland "brutally" and sodomized a raped 16-year-old of the Trial girl. Report Judge, Snohomish Cy. cause 81-1-00678-1. He stabbed her and suffo- repeatedly jury her into mud. The found two by cated her face forcing in the committed factors: the murder was aggravating further- and in the course or or furtherance of rape course for prior Hovland has two convictions ance of kidnapping. of credible evidence There was no nonviolent offenses. death did not seek the The State factors. mitigating penalty. retired strangled 67-year-old Ihde and raped

Michael 87-1- Judge, of the Trial Clark cause Report Cy. nurse. Ihde anally. orally, He her raped vaginally, 00126-1. convictions, one including rape has four prior felony to kill. The found two jury and one for assault with intent in the the murder committed aggravating factors: was of and in the course or further- course or furtherance rape ance There no credible evidence robbery. death The State did seek the factors. mitigating penalty. victim. Knight raped

Sherwood his strangled cause 86-1- County of the Trial Report Judge, King factors that jury aggravating 01678-0. The found or furtherance murder was committed in the course Knight of robbery. and in the course furtherance rape convictions, has three felonies. There prior including six The mitigating evidence of circumstances. no credible penalty. State did not seek the death is not penalty A the cases indicates the death review of is no to There in cases similar Lord's. generally imposed Lord's case from those cases way distinguish principled Therefore death was not penalty imposed. which the I would and disproportionate. Lord's sentence excessive vacate sentence. Conclusion summary admitting trial court erred both

The into the room. chart and in chart sending by converting evidence inaccurately chart summarizes testimony into and inconclusive speculative expert's empha- unfairly so the chart conclusory doing facts. testimony of that interpretation sizes the State's draws conclusions jury. for the Admission of the chart right Therefore, violated Lord's to due I process. would reverse finding of guilt. reversed, if finding

Even is not the errors in guilt the sentencing phase us to vacate the sentence. require The trial erred in allowing court the State to elicit the facts Lord's That underlying previous convictions. evidence is prejudicial and does not rebut properly evi- any mitigating dence offered Lord. The trial court also erred in allow- ing the prosecutor cross-examine Lord after Lord exercised right his allocution. Allocution is not subject to Instead, cross examination. should prosecutor have objected to any alleged violation of the limits of allocution. objection, Absent such prosecutor cannot complain that Lord exceeded the bounds of allocution. proper I

Finally, dissent because Lord's of death sentence is dis- to the proportionate sentences on other imposed defend- ants who committed A similar crimes. sentence of death is unless it is in similar disproportionate generally imposed cases. To imposed, be a sentence must generally be least 50 imposed percent the cases. My analysis rape/murder reveals nine cases that are similar Lord's case. None defendants those nine other cases was death, sentenced despite eight fact that of those cases judge the trial determined there no credible Therefore, I mitigating evidence. would Lord's vacate sen- tence as being disproportionate.

Smith, J., J. Utter, concurs with Reconsideration denied March 1992.

Case Details

Case Name: State v. Lord

Court Name: Washington Supreme Court

Date Published: Feb 7, 1992

Citation: 822 P.2d 177

Docket Number: 54385-2

Court Abbreviation: Wash.