*1 En 52955-8. Banc. June 1988.] [No. Respondent, Washington, The State of v. David Appellant. Rice, Lewis *3 Sheets, A. Frost Hal appellant. Michael and for Lasnik, Maleng, Prosecuting Attorney, Norm Robert S. Staff, Downing, L. Senior for Deputy, and William Chief of respondent. County Court found King Superior J. A
Durham, first aggravated David Lewis Rice on four counts of guilty in the con- degree special sentencing hearing murder and leniency penalty cluded that from the death was not mer- the trial sentenced Rice to death. Accordingly, ited. court We affirm.
Facts Eve early evening guests hours of Christmas Goldmark, attorney, arrived the home of Seattle Charles wife, Annie, holiday and their children to share a out, All and there was no lights dinner. but one were waited 15 response they rang guests when the doorbell. minutes, their sign or 20 but when there was still no hosts, telephone calls they repeated went home. After they and returned to yielded busy signal, became alarmed they could they thought the Goldmark residence. This time drove to They hear from inside the house. moaning coming Jeffrey Haley, they they home of where knew nearby They find a to the Goldmark house. returned to key could brother, and his Jeffrey Haley the Goldmark residence with Peter. house, Jeffrey Haley
When entered the Peter "very very disturbing." When moaning became loud stairs, body lying on top they saw got to room They entered the the floor of the master bedroom. were more bodies. The bodies those and found three children, wife, Annie, their two Goldmark, his Charles *4 12-year-old appeared Derek. Annie 10-year-old Colin and chest, in and the her while Charles to have a stab wound Charles and Annie all to have head wounds. boys appeared backs. their arms behind with their been handcuffed had but the floor about on thrashing and yelling was Charles pres- Haleys' the aware of did not seem his delirious state Charles' handcuffs to remove used a hacksaw They ence. ease his distress. attempt an arrived departments fire police the and
Members fighters The fire time later. residence a short the Goldmark police the victims and attention to the medical giving begem bedroom, the In the master evidence. began gathering apparently had steam iron that the knife and police found was family. Annie Goldmark attacking the been used found boys two were at the scene. The dead pronounced their necks around tightly sweaters knotted so with their under fingers insert fire could fighters wall, con- every virtually on splattered sweaters. Blood had pattern The the areas of the bodies. centrating around the victims room indicated around the the bloodstains lying were on been struck while probably had arrived, thereafter, treated Shortly personnel medical floor. Charles, Colin victims, hospital. took them to the and weeks. all within the next 5 and Derek died telephone call police received On December Sayfuddiya tell- Husayn Omar Robert Brown from a a/k/a in his apartment overnight guest his that an them belief ing before, night killings. in the Goldmark involved notebook, without his opened guest's had Brown "To saying, read a letter his and had guest, knowledge looking for concern, you I are may person am the whom it Brown near Police met Robert Goldmark case." him Brown said briefly. talked to apartment for some waiting David Rice. While name was guest's matching a man arrive, the saw police detectives walk down steps and apartment description descend him, he turned approached police street. As the later him a few blocks caught chased and police ran. The removed running, mid-chase, suspect stopped when, in contents, its drink from took a pocket, a vial from his *5 away police vial, retrieved the and threw the vial. The analysis liquid subsequent indicated that it contained nico- suspect Brown tine.1 The identified himself as David Rice. apartment building and retrieved the notebook from his police. gave it to the custody was of his
Rice was taken into and informed rights. A showed him the letter that Miranda detective given them, that he had and Rice admitted Robert Brown letter reads as follows: had written it. The full text of that may concern, it To whom person you looking in the Goldmark I are am for case. very thing. I terrible That I know that what did was a why you I am as see me now. perfectly else had I understood that no one want it anything I I went to to do with what did. whatsoever great lengths to make sure of that. person I I live with doesn't even know couple charge. She received a am wanted on a different messages machine, I them she on her but erased before got to them. purchased I rifle that I a few weeks did not use the you toy pistol ago, instead, which I fooled them with a ["pistol" storage I locker. threw the rifle will find away couple originally written, out] then crossed was weeks ago. anything Again, I that no one knew want it understood unnecessary any please suf- this, so do not cause about already people. fering I I've done think that to innocent enough. why you guess I I did what did. That I I should tell My people
way, you about it. life have to ask other won't my Anne has been since wife left. is a mess. It has been help straighten trying out, I'm but afraid me it complete if he asked Rice wanted The detective by writing, agreed, finished it note. Rice I much for me. am that she isn't able to do I am afraid much too far gone. day, police substitute that he used the nicotine as a Rice told the 1Later he would smoking, because he knew that and that he drank it mid-chase for any jail. while he was in not be allowed to have I school, job I could out and high go get When left town, I one. any any time needed I married, I scarce. got jobs starting get When were I & to find work. found walking searching had to do more myself line, unemployment more and more on the which getting longer longer. I what I could do government went to the offices to see situation, my employment alleviate recom- to mended that I & go engineering. to school learn tell point, police At this Rice told the that he wanted to to an happened, speak what had but he wanted to first attorney. telephone The detective let Rice use the to con- tact a short attorney, Lanning, Seattle William who arrived time Lanning thereafter. Rice conferred with for about an *6 half, and a after time Lanning gave police hour which statement that Rice had that Rice signed, indicating talk police though any wanted to even he knew that statements could be used him.2 against detectives,
In tape-recorded interview with two Rice In confessed that he was the Goldmarks' assailant. confession, acts, he described the motivations behind his preparations, the extent of his and the manner which he completed his murders. motivation,
As to Rice that his stated financial situation murders, had been deteriorating prior to the a situation he hoped by to alleviate robbing the Goldmarks. He had lost earlier, debt, job year deeper his more than getting and had been at the staying apartment of Anne Davis at various times since left August.3 When Davis for Christmas 2The text of full the statement reads as follows: ”1, Rice, hereby acknowledge I David Lewis have consulted with Bill Lanning attorney-client relationship, any in an that he has advised me that me; give probably against I I statement the authorities can and will be used That probably charged aggravated degree may prob- will be with 1st murder which ably penalty imposed. being will result in the death my complete "Notwithstanding give it is intention to a full and advice statement to the authorities." time, marry her to him. At the 3Rice was love with Anne Davis and wanted however, just Davis wanted them to be friends. vacation, she stay apartment she allowed Rice to her money help left him some food and a small amount of him by, apartment said that he had to be out of the get but pawned she was he gone, the time she returned. While her television for Rice stated that he faced "terminal $10. had run unemployment", unemployment compensation his earlier, place months and he had "no turn out or 5 [to] situation was the reason to". He indicated that his financial he why day he acted on the did. crimes,
Rice of a motivation for his spoke political also his mistaken belief that Charles Goldmark based on he Party. Communist stated that belonged to the local him hoped give Goldmark to information about force interviews, In local Communists. later he revealed other the ladder of what way up that his intent was to work his conspiracy a Communist to take over the perceived to be country. and his finan- political
Rice stated that both his beliefs his He estimated that cial situation motivated acts. later financial percent his motivations on Christmas Eve were 50 and 50 a desire to information. percent gain confession, prepa- the extent of his his Rice detailed to kill planning He indicated that he had been rations. months, approximately Annie Goldmark for Charles and primary day intent on the and that this was He planned killing any He had on children. murders. not any present children to be and would expect did not *7 any if he had known would be gone have to their house kill Nevertheless, family felt he had to the entire there. he him. they once had seen a look at the attempted get times he separate
Three November approximately and their house. On Goldmarks to "see neighborhood Goldmarks' Rice had traveled to the neigh- to check out the just house it was and what kind of anybody not see at that Rice did trip, borhood." On they absolutely positive" house and "wasn't Goldmark even know Rice did not point, lived there. At this even week Goldmark looked like. One Charles and Annie what building, office Charles Goldmark's later, visited Rice like. what he looked attempt to determine an apparently too, Finally, Rice returned was unsuccessful. attempt, This in the first week of December residence to the Goldmark there, nobody but again lived confirm that order to to be home.4 appeared he had the ensuring included preparations He an rifle purchased his mission. M-l complete
means to Goldmarks, it against using but later decided on the to use purchased pairs He also two its noise and bulk. because of handcuffs, quantity of chloroform. toy gun small in order he tested the chloroform on himself point, At one last. expected its effects could be long to learn how he also covered the manner which Rice's confession entry He to the Goldmark gained the murders. committed had a package as a taxi cab driver who posing residence house, mistakenly he arriving Before their to deliver. Upon neighbor. on the door of their next-door knocked error, house. proceeded correct discovering boys answered the door and called his One of the Goldmark Charles Goldmark package. father to receive the When door, turned quickly displayed what later reached the gath- the house. He then toy gun out to be the and entered in the master bedroom. family upstairs the entire ered his bed- showed Rice the he had on $14 Charles Goldmark counter, also noticed a wallet and Rice took it. Rice room it. Charles a bank card from lying there and removed be a false him what later turned out gave Goldmark lie the Goldmarks to for that card. Rice told access number Annie immobilized Charles and face on the floor and down He stated their hands behind their backs. by handcuffing Despite the children. not need to immobilize that he did investigating preparations at least one other the residence of 4Rice's included Goldmarks, robbery police he killed the target. that 1 month before Rice told the attorney, who Rice consid attempted of another Seattle to find the home he had being crook, house unable to find the aborted that mission after ered to be a but determining neighborhood was secure. and after *8 question assertions that he intended to the Gold- Party, marks about activities of local Communist so; there is he apparently, no indication that he ever did only money. discussed his need for As Rice was about to render his victims unconscious him using chloroform, Charles Goldmark told were at their expecting guests p.m. to arrive house 7:30 chloroform, proceeded Rice it first applying with the Charles, Annie, the children. Annie finally then to and point, Goldmark at the bad smell. At this struggled slightly it was and Rice realized that he approximately p.m. 7:15 only had arrive. He guests might a few minutes before began objects the house for household with which searching he could kill his victims. He first found a fillet knife with a 12-inch in He looking blade a kitchen drawer. continued a steam iron in a basement eventually storage found only area. The search took to 5 minutes. He returned to bedroom, him taking master with the iron and the knife. methodically
Rice began bludgeoning unconscious pointed victims with the of the iron. He end started with Goldmark, Charles him striking four five times back of the head. He then struck Annie Goldmark on the manner, side causing of her head the same her to start moving. couple Rice then hit her "a more times" and she stopped next, He turned to the children moving. hitting boy boy first five or six times and the second approximately four times in the same manner. Rice returned father's if body and checked the arteries his neck to see pulse beating. was still He found that both Charles and life, Annie still had he signs complete so "decided to Charles, job Turning with the knife". Rice inserted the point the knife some 5 inches into the skull fracture he had inflicted with the iron. The knife went in until it just skull, hitting opposite point was side of the at which manner, Rice "kind of stirred it around." the same stirred the knife in the brains of the children. finding Not opening skull, her the chest he stabbed in Annie's
similar again the knife around. stirred wearing gloves. Throughout After attacks, knifing victims, that his he noticed he had finished gloves splattered clothing He with blood. had been *9 gloves. wiped He left removed his the blood and off some of weapons As he was the handcuffs. behind the murder leaving lights. took with He house, he turned off get keys car, he was unable to but him to the Goldmarks' garage it. into the to take neighborhood. He walked to a the Goldmarks'
Rice left attempted nearby use Charles Gold- cash machine and any money. card, unable to withdraw mark's bank but was picture at that location A bank camera recorded walking p.m. began Anne He toward 7:34 and 7:38 between way apartment, he had left realized that Davis' but on the that he house. He believed the handcuffs the Goldmark might fingerprints the cuffs and decided on have left some apart- proceeded, however, to the them. He first to retrieve clothing, changed ment, and then took a taxi some of his began neighborhood. point He walk- near the Goldmarks' a ing police got home, closer he heard toward their and as he lights turned on. had been radios and saw that house finger- caught himself all but because He considered prints thought he before he had left on the handcuffs away put gloves.5 on foot and threw He left the area on paper slip keys, card, with the and the the car the bank ivy from into some a few blocks identification code residence. Goldmark descrip- gave
Throughout confession, Rice detailed this compass physical objects head- in terms of various tions of example, ings. the location in this manner he described For physical layout of the house residence, of the Goldmark objects the house. within itself, the location of various any fingerprints however, fact, police identifiable not find could 5In handcuffs. Rice on the police descriptions being as later confirmed these "completely accurate." apart- police Anne searched Davis'
On December many storage items of incrimi- ment area and found They nating to corroborate Rice's statements. evidence toy gun, among found, items, the of chloro- other bottle clothing during murders, form, he wore includ- and the ing pair gloves. interest of cloth Also of considerable appeared to have been were a number of materials by by Rice, fact that was confirmed later hand- written analysis. writing A notebook was found which Rice had of the Goldmark residence and written addresses attorney. building On office where Charles worked as an get page, Rice included directions on how to page Goldmark house bus. On another he had written an entitled, extended list "Basic Armament for One Man Mis- grap- knife, sion". Included in this list such items as a were plastic pling guns, garrotte, gas grenades, hook, tear days explosives page, had and 2 of rations. On a third *10 concerning military prepared- written a series of comments that, ness, fluid, & if I am such as "I must be mobile so counter-attack, attacked, retreat, I I deem can whichever ability any target, suitable", "I to attack and must have weapons, regardless capability. & of size This includes ” knowledge, physical logistics. stamina, & mental separate piece apartment in was a Also found Davis' paper part following list: on which Rice had written
Get knife legal [crossed out] out kind svcs. Find what [crossed out] he like Find out what looks When does he leave office
Does he drive kind of car
What up out] [crossed Set time to be there attorney] [the name and address of another Seattle by Rice described how the Another document written country regions, each to have should be divided into five reactionary ready repel enemy's "grand finale" forces was document, enemy's plan this According
attack. to be at Therefore, resistance had 1990. by out to be carried 1986. place partially least Rice had written letters discovered Finally, police statements corroborate These letters Anne Davis. motivations behind financial political he had both read, of these letters One his attack on the Goldmarks. Annie, Dear you will understand hopes writing I am into side". step take a the "dark I have decided to why mere A time long ago, force. very powerful Evil is for scurrying to send Satan enough was mention of God world, now. so, This is Satans anymore. This is not cover. break just than words to to take more And, it's going him. empire, strong, so an assault on
It is to take going resources to recover he have the quick that won't and so following paragraph: letter contained the Another you your with some of helped I could have I wish just me, I des- trying, Believe money. such as problems, perately, I would you. finally fix I decided that that for it, or, You know the outcome. trying. do die either returned to Seattle from Anne Davis On December days later and questioned her police her vacation. The were policeman Rice if a allow her to talk to then offered to from permission received agreed. police She present. in this to be conducted meeting counsel for the defense min- approximately Rice talked for manner. Davis and officer, asked Rice when Davis police According utes. did, "For responded, why he had done what why he had attacked once she asked money." More than in it too answered, "I was and he particular, children it, identify me." far, I could had to do time general this same during police Rice also told the on his influence good Davis had been a that Anne period *11 of Commu- that his choice life, doing, in so he stated chance. a matter of to a certain extent target nism as a was me if it had detective, stated to In the words of the "[H]e have done Davis, probably he would Anne not been for might something something not have been and that earlier might Communism, have even been Goldmarks, it not just to be Communism." it turned out but aggravated charged first four counts Rice was with prosecutor gave degree that he notice murder and general penalty. seeking entered a Rice the death would be plea guilty plea guilty not reason as a as well of not insanity. According however, counsel, there defense competency question to stand trial." [Rice's] about "no penalty phases. guilt In the into trial was bifurcated guilt phase, Rice contest the fact that did not the defense attempted prove that Goldmarks, but had killed the murders.6 time of the was insane at the appeal Although in this Rice raises of the issues most implicate psychiatric only tangentially used or evidence necessary to trial, review of that evidence available at complete penalty especially picture, in view of the imposed here. ways separate argued Rice was that two
The defense First, defense counsel the murders. insane at the time of including variety testimony witnesses, from a elicited establishing views. of Rice's unorthodox Davis, some Anne pending. example, war was that a nuclear Rice believed For big underground Colorado, shelter an He wanted to build enough years people number of for a hundreds of to house emerge with down, that he could so until the radiation died society. help Rice also believed new create a the others and put which he in his head into box that he had a black problems evidence that There was also not solve. he could guidance beings gave him that extraterrestrial Rice believed insanity by proving Washington, has the burden of defendant 6In a criminal Box, 9A.12.010(2); State v. preponderance of the evidence. RCW P.2d premeditation. jury argued was a lack of there also The defense murder, jury However, degree by finding guilty concluded of first appeal argued there was on Rice has not had been satisfied. this element Thus, we need reach this conclusion. for the insufficient evidence of this issue. address the facts *12 actions, him the by furnishing as with his such choosing shelter. building underground the specifications for videotaped interview of jury showed the The defense 27, 1986, some 3 months after March Rice held on interview was conducted Sam place. murders took but himself Keen, psychology, in the area of not an author interview, about that Rice talked psychologist.7 a clinical prevent mission to Communist self-appointed his country. He taking from over banking conspiracies enemy poised were at America's borders troops stated that that, fact, already been attack and Arizona had ready to his belief that he was insane at invaded once. He discussed down", his mind had "shut the time of the murders because experienced when he could periodically a condition that he or himself. questions certain about the world answer suggestible he was much more Rice also claimed that condition, killed that and that he experienced whenever he said, "He family point because Annie Goldmark at one in a war Finally, to kill us.''8 Rice said that he was going evil, that the Goldmarks was the lesser of against killing kill evils, that "sometimes soldiers have to two any person who argued jury die". The defense had to be insane. held all these beliefs that Rice was insane under The defense next contended M'Naghten This that a insanity. provides test for test if: person is insane opinion attempted give Keen his as to 7The defense to have Sam murders, sanity was time but the trial court ruled that he at the of the ruling, qualified expert testify insufficiently After this as an on that issue. jury's presence. proof question Keen defense made an offer of on this outside quality opinion, of his Rice did not understand the nature and stated that his murders, day thought right he it was to kill what because he acts on the however, admitted, opinion enemy. was not that his Keen considered to be psychological test data. based on trial, Annie Gold- Rice's idea that Keen dismissed as "ludicrous" 8At Sam family. Additionally, Dr. Kenneth Mus him to kill the
mark's statement caused "absolutely" theory psychological catel, rejected psychologist, this as a a clinical explanation Rice's actions. offense, as a At the time of the commission actor defect, mind of the or result of mental disease that: was affected to such an extent (a) quality the nature and perceive He was unable charged; he is the act with which (b) with refer- wrong to tell from He was unable charged. act particular ence to the 9A.12.010(1). that Rice met the argued RCW The defense he knew test, though even because prong second killing felt that killing wrong general, con- two evils. The defense was the lesser of Goldmarks evil, mental illness against tended in Rice's war *13 from distinguish right able to prevented being him from wrong. a bat- by presenting this evidence
The State countered insanity issue. Michael tery results relevant of test County psychiatric Jail Morrison, King member of the a Personality Multiphasic staff, the Minnesota testified about (MMPI) days to Rice that he administered Inventory test were "consistent The results of this after his arrest. pro- psychotic disorder rather than a with more a character distant, cold, be profile A with that would person cess. pretty it was unre- But very empathetic, self-centered. markable, than that." other of, Dr. by, request or at the
Other tests were conducted by the Muscatel, psychologist appointed clinical Kenneth a competency, a investigate 2 to January trial court on defense. Dr. Muscatel con- requested by step was to uncover whether Trail-Making designed ducted a Test revealed no in the This test existed brain. organic problems Mullins, Dr. Additionally, John problems. brain organic and physical "complete general conducted a neurologist, Rice and found "normal" examination" neurological Rice had "no evi- he concluded that Specifically, results. system disease any central nervous organic dence of intelligence, A test for intracranial abnormalities.” Scale, possessed showed Rice Intelligence Adult Wechsler A Ror- average intelligence." perhaps high "a normal or what he sees test, subject to describe requiring schach blots, "deep per- ink that Rice had a in various revealed childhood", but dis- a disordered sonality disorder and psychotic thinking. no inference of closed trial, in his opinion At Dr. Muscatel testified that sane at the time of the murders.9 He based legally many factors, dis- opinion including on the test results above, counsel, him by cussed certain materials given family interviews he mem- conducted with four of Rice's bers, nine in January, and interviews with Rice himself February, May as Although 1986. he characterized Rice "extremely disturbed", fea- having paranoid "schizoid and tures", he determined that Rice was neither nor a psychotic paranoid schizophrenic.
Dr. Muscatel as insane qualify decided that Rice did not M'Naghten under either the first prong test. As to he prong, quality concluded that Rice knew the nature and of his acts. Dr. pointed Muscatel out that Rice "committed crime planned that was high degree enacted with a organization, awareness, and He noted the cognizance." preparations extent of Rice's and the "full awareness Dr. deliberation" with which murdered his victims. Muscatel concluded that there was "no evidence of sub- stantial in the confusion or severe either disorganization, to, behavior crime." leading up during, or after the *14 Dr. as qualify Muscatel also concluded that Rice did not insane this M'Naghten prong, although under the second Muscatel, Dr. even question was closer. According though "difficulty" distinguishing right Rice had in from murders, wrong night capable doing on the of the he was of 9Oniy witness, Davis, one on this issue. She stated that in other Anne testified opinion right wrong or her Rice was unable to tell the difference between and however, quality testimony, night of his acts on the murders. This know expert opinion, personal represent in that it was based on her knowl did not an professional objection edge rather than on a examination. No of the defendant opinion, judge Davis stated her thus the trial did was raised when not have an admissibility. opportunity rule on its difficulty he belief that from his stated Rice's stemmed so. doing, considering justified himself to in what he was was against Dr. did not consider in evil. Muscatel be a war incapable telling right from of render Rice sufficient to wrong number of reasons. for a although as to his mis-
First, Rice's ideas he noted glance fighting "delusional, idio- at first in evil were sion syncratic, psychotically base[d]", on closer examination and they learned from that he had out to be ideas turned right-wing groups he with whom and individuals various including Therefore, his belief associated, Anne Davis.10 exception system, communi- the extraterrestrial with the of repre- truly all, at but rather cation, delusional was him. shared those around sented ideas general, killing wrong in Second, Rice knew that was killing justified the Gold- if felt that he was even he justification parents, in kill- he did not feel a similar mark ing respect children, Thus, least with the children. wrong. capable right distinguishing from Rice was many ways pointed Finally, Dr. out Muscatel also activity attempts showed that his Rice's to conceal which wrong killings society to be these he knew that considered gloves example, against to avoid used the law. For away leaving fingerprints, card and car the bank he threw discovered, keys been had that the bodies when he realized clothing wipe and to from took care to blood and he Additionally, lights house. left the before he turn out the acknowledged his acts which Rice wrote letters reasons, Dr. Muscatel For all these were criminal nature. telling right capable from that Rice was concluded wrong. conspiracies banking came concerning 10Many Rice's views Communist Club", political discus "Duck in Seattle's were involved from individuals who people's constitu perceived on group encroachments concerned about sion Muscatel, According to Dr. government. to control their tional means, however, his own and conspiracy by violent uncover this decision to him, although Rice seemed apparently views of those around not reflect the did approve the fact. his actions after would
think that *15 communications, Dr. Musca- extraterrestrial As to Rice's so much as them Rice described testified that tel laid-out certain to follow words, "urges" but as spoken time felt com- Muscatel, at no Rice Dr. According to paths. "I Muscatel Dr. telling urges, these to follow pelled if I didn't them, though or not follow follow them could If I did follow happen. them, tended things bad follow them, happen." tended to things good the State insanity arguments, of Rice's
In its refutation health his characterization out that Rice's pointed arrested, and December, he was when between late changed him. The began examining January, when the doctors incar- his during Rice had time was that State's contention bolster disease to evidence of mental to fabricate ceration prosecutor purposes, For illustrative insanity plea. his Rice's between many inconsistencies showed days after the MMPI, only administered responses health to of his mental murders, his characterization symptoms Various January on 27. neurologist test for appeared in the MMPI experiencing denied Dr. by Mullins. time when he was examined first emphasized State argument jury, In its closing to two by pointing of these inconsistencies importance of his mental First, facts. Rice's characterization further change a similar underwent day on the of the murders state in the March example, time For during period. shutting mind Keen, mentioned his with Sam interview at the whereas high degree suggestibility, and a down Doc- confession, were made. his no such indications time of process in focus to the change attributed this tor Muscatel fol- in the months that Rice underwent of rerationalization on, Rice's Moreover, time went the murders. as lowing similarly downplayed his motivations about statements Goldmarks, focusing instead to kill the intent premeditated Second, victims. from his information gain his desire on rule, reli- greater general that as a Dr. Muscatel testified in time to made close to statements ability is to be attached to later than is attached question actual events statements. it Accordingly, proper place greater weight on statements that Rice made in his confession (December 26) and on his answers to the questions MMPI 28) (December statements, than on subsequent with *16 their increased allegations of instability. mental
Although trial, Harris, he was not called at Dr. Christian psychiatrist, a Seattle was prepared testify that Rice was sane at the time of the examining murders. After defendant on three occasions viewing and after the Sam videotape, Keen Dr. Harris concluded that Rice "quite was capable" of knowing quality the nature and of his and acts telling right from wrong.
The jury rejected him insanity Rice's defense and found on all four guilty aggravated degree counts of first murder. The found jury three as to each count: aggravating factors murders were the commission of a committed to conceal crime, they part were plan of a scheme or to mur- common than victim, der more one were committed in the they of, or of, course furtherance a robbery burglary. Following verdict, this penalty phase death began before the trial same jury. presented The State no evidence in phase. additional four The defense called relatives, Rice's all of whom him testified that loved and that did not have acts. addi- history of violent tion, Rice, Randy brothers, one of testified David's older as a child mentally that David was abused physically and his brothers. jury's duty The was to answer during its deliberations following question: in mind the crime which "Having you defendant has been convinced found are guilty, a reasonable beyond doubt are not sufficient that there leniency?" circumstances While the mitigating to merit they requested were deliberating on this jurors question, confession After tape replayed. consulting Rice's be that counsel, apparently knowledge but of Rice with without himself, replayed jury, trial court for the tape had the everyone except was the jury, after the courtroom cleared of attorneys did reporter, Rice's judge, and bailiff. clerk court voluntarily procedure waived both object to this not presence the defendant's. their jury jury When its deliberations. resumed then however, verdict, it had reached that announced hospital having medical for taken available, been not Hospital ingesting substance”. a "tobacco after treatment although judge telephoned him that and told staff unresponsive signs to com- stable, he was were Rice's vital he could 2 hours before munication, be at least and it would Although brought known at not it was the courtroom. be attempt, and Rice would time, this was a suicide days many until courtroom to return to the been able have later. agreed re- could be verdict
After all counsel waived counsel after defense in Rice's absence and turned present, its verdict announced to be Accordingly, leniency sen- Rice was merited. was not *17 appeal brings current the to death. He now tenced statutorily review.11 death sentence mandated
Issues I Phase Guilt Photographs A. "In Life" photographs of the Goldmark The State offered four family. photograph of the member a different Each showed they family the murders. life", before is, "in that as were arguing objected admission, that their The defense to unfairly prejudicial Rice because to irrelevant and were they jury. the contended that inflame the The State would identity prove photographs the vic- of were relevant to attorney tims, the State's case. one of the elements of identity stipulate in order to to the victims' offered however, court, the case. The trial that issue from remove photographs. objection all four and admitted overruled appeal represent trial. him at on did not 11Rice's counsel Rice now claims that admission of these was photographs prejudicial error. admissibility
The
of victims'
"in life" is
photographs
an issue
first
On
apparently
impression Washington.12
occasions,
many
admissibility
this court has addressed the
photos showing
dead victims. The issues in those cases
usually involve the
relevance and whether
photographs'
would be so affected
gruesome
their
nature
prejudice
photo
unfair
defendant
outweighs
See,
Harris,
e.g.,
State v.
probative
value.
graphs'
denied,
784, 791,
cert.
(1986),
As an initial when an information alleges case, killed, victims have in the present named been as See must prove the identification. prosecution victims' (1968). Therefore, any Homicide Jur. 2d evi- Am. § tending prove is relevant under dence identification 401. ER contends, however, rele photographs'
vancy
negated
when he
stipulate
offered to
however,
identity
Contrary
of the victims.
to this argument,
is not
its
automatically precluded
presenting
State
from
merely
on an issue
evidence
because
defendant offers
(1935)
Hunter,
not clear if State v.
involved
12It is
183 Wash.
599
stipula
held
"a
Appeals
has
Court
stipulation.
to which there
parties
an
between the
agreement
tion is
Adler,
459,
App.
Wn.
v.
16
mutual
State
must be
assent."
v.
27 Wn.
(1976);
Tharp,
see
State
465,
P.2d
also
558
817
591,
198, 208,
(1980), aff'd, 96 Wn.2d
637
P.2d 693
App.
616
(1981).
stipula
agree
not
to the
P.2d 961
If the State does
tion,
proceed
the State can
open
the issue remains
fit,
to the
prove
subject
its case in
manner
it sees
Adler,
of evidence.
at
restrictions of ER 403 and other rules
789, 807,
P.2d
465;
Crenshaw,
v.
659
488
State
(1983).
way,
the State
slightly
Stated
a
different
unless unfair
stipulate
bound to
to the defendant's
offer
substantially
proffered
evidence's
prejudice
outweighs
(8th
942, 949
Ellison,
relevance. United States v.
793 F.2d
Cir.),
denied,
cert.
Ct.
has
principle
107 S.
415
This
in the
circuits15
overwhelmingly adopted
been
both
federal
Annot.,
the state
See generally
courts.
Offer of
Fact,
or Stipulate
Criminal Case To Concede
Defendant
Same,
as Affecting
Right
His Admission
Prosecution's
(1934)
To Introduce
A.L.R. 1478
Thereof,
Evidence
91
(and
decisions).
It
supported
book of
is also
supplemental
by
policy,
sound
in that
should be allowed to
the State
See,
Ellison,
present
e.g.,
the complete picture
jury.
result,
this rule. As
adopting
793 F.2d
949. We join
present
"in life"
case.
were relevant
photographs
that,
if
403,
even
rele
Turning
argues
ER
vant,
substantially outweighed
value was
photographs'
A
trial court's deci
prejudice
unfair
to the defendant.
for manifest abuse
only
sion in this area
can be reviewed
denied,
(8th Cir.),
Ellison,
15E.g.,
942,
cert.
United
v.
107
States
793
949
F.2d
(5th Cir.),
Davis,
(1986);
1299,
v.
cert.
United States
F.2d
1305
S. Ct. 415
792
Schwartz,
1059,
(3d
denied,
(1986);
v.
1061
United States
P.2d
cert.
(1986).
B. Clothing Exhibits The trial court admitted into evidence various blood- stained items crime, found at the scene of the including two sweaters, bathrobe, shirt, a eyeglasses, a handkerchief and a napkin. The judge the defense's objection overruled the probative value of these was outweighed by exhibits their prejudicial effect. ER 403. As discussed above with respect to the "in photos, life" this determination is re- viewable only for an abuse of discretion.
Rice entered
as a
plea
plea
of not
as well
of not
guilty
by
result,
guilty
reason of
As a
the State
insanity.
was
required to
prove the elements of murder
addition to
Crenshaw,
v.
rebutting
State
98
insanity defense.
789, 806,
(1983).
cases,
Wn.2d
In
659
murder
P.2d 488
general
by
rule is that
the victims at the
clothing worn
time
25
killings
Payne,
407,
admissible. State v.
Wn.2d
413-14,
(1946).
227,
171 P.2d
This
Nor to the defendant. prejudice unfair stantially outweighed merely it is because prejudicial evidence is not Competent Crenshaw, 806; Farley, State gruesome. (1955), denied, U.S. 858 cert.
19,
C. Statement of Law in the guilt phase, prosecutor In his the closing argument that the de- [insanity] requires the that jury "legal told that he reality completely has contact with so fendant lost beyond any of the influences of the criminal law." because argument improper Rice contends that was to in the instructions judge's it misstated the law set out to a deprived him of his constitutional jury the a correct was argument trial. The State asserts that this fair quota consisted of a direct of the law because it statement We opinions. court's language from some of this tion defense "is available insanity stated that the have indeed reality with so persons have lost contact only those who to the influences of any beyond are completely 551, 590, 374 White, State v. Wn.2d law.” 60 the criminal (1963), quoted (1962), denied, cert. U.S. 883 375 P.2d 942 McDonald, 89 Wn.2d Crenshaw, 797, at and in State v. (1977). Therefore, did prosecutor the 272, P.2d 930 256, law of this the state. not misstate improper. Nevertheless, argument prosecutor's the are to be confined the as to the law jury Any statements Mak, State instructions. jury the law set forth denied, cert. 407, 107 S. Ct. P.2d 105 Wn.2d 757, 760-61, (1986); State v. Davenport, gave insanity judge law on only P.2d 1213 The on the instruction based pattern was the jury MNaghten exceeded prosecutor's argument test.16 instruction. law of that only
However, proving Rice has the burden of its prejudicial of this but also impropriety argument Mak, so, that "there is at 726. To do he must show effect. affected misconduct alleged likelihood substantial of a fair thereby the defendant depriving verdict jury's Mak, likelihood existed 726. We find that no such trial." above, the First, argument as noted three reasons. here for Second, did not prosecutor the law. not misstate did quoted statement above. the one point beyond on this dwell any argument Third, disregard was instructed jury by the jury given the law supported that was not did not argument prosecutor's Accordingly, judge. error. amount to reversible "Intent" and "Premeditation"
D. Instructions on informed the guilt phase Instruction 5 ” degree in the first the crime of murder person commits [a] intent the death of premeditated when, with to cause *21 person of such person, he or she causes the death another (Italics ours.) person." third or of a by in instruction 10 trial court defined "intent" (Criminal) Washington Jury Pattern Instructions using (WPIC) intentionally or person "A acts with intent 10.01: accomplish a to objective purpose with the or acting when pertinent part "For a defendant to be reads in as follows: instruction 16That that, insanity you mental guilty find as a result of reason of must found not defect, an extent affected to such the defendant's mind was or disease perceive quality the acts with which to the nature and of unable defendant was wrong charged with reference to was unable to tell from or is the defendant charged." See also RCW 9A.12.0I0 which the defendant particular with acts test). (codification M'Naghten is derived crime." This language result which constitutes a 9A.08.010(l)(a). from RCW in instruction
The trial court defined "premeditated" by using portion a of WPIC 26.01: aWhen thought
Premeditated means over beforehand. any deliberation, forms an intent to take person, after life, killing may immediately human formation of the meditated. moment follow after pre- and it will still be purpose
settled
must
involve more than a
Premeditation
time,
requires
of time. The law
some
point
short,
kill is delib-
long
design
however
or
which a
to
erately formed.
proposed
instead the
instruction based on
following
Brooks,
in State v.
97 Wn.2d
language (1982): syn-
The terms "intent" and are not "premeditation" onymous. They separate are and distinct elements of the of murder in the first degree. crime "Intent" involves the mental state of acting with the purpose or objective accomplish to a result which consti- tutes a crime. hand,
On other the term "premeditate" encom- process hand, mental passes before delib- thinking eration, reflection, weighing or for a reasoning period time, Thus, however short. the objective purpose (sufficient take human life support second charge of murder) degree of must period have been formed after some deliberation, weighing reflection or the mind for the act constitute first murder. degree
Jury they permit if each instructions are sufficient case, to argue theory misleading, are not party whole, when read as a inform the trier of fact properly 520, 526, Mark, applicable law. State v. 94 Wn.2d 466, 480, (1980); Foster, P.2d 73 State v. (1979). Moreover, need not P.2d 789 instruction specific adequately when given general be a more instruction the explains parties the law and their argue enables 270, 273, Stone, 24 App. of the case. State v. Wn. ories P.2d 677
The judge's instructions were more than sufficient in covering point this of law. The proposed instruction was more in specific making clear that "intent" synony- is not mous with "premeditation", but given by instructions the judge, whole, when read as a made abundantly this clear. No error was in using committed the WPIC instruc- tions proposed instruction, instead of Rice's and similarly there was no violation of his constitutional rights.
E. Proposed Instruction as to Deific Commands
In
guilt phase,
the trial court gave the standard
instruction
on insanity,
20.01,
WPIC
incorporating
M'Naghten
pertinent
test. The
part of that
instruction is
set out at
trial,
footnote 16 above. At
Rice challenged the
sufficiency
general
of this
instruction
proposed
instruction
following
on deific commands be added:
One who believes that he is acting under
the direct
command of God is no less insane because he neverthe-
less knows murder
prohibited by
the laws of man.
This language
directly
is taken
opinion
from this court's
in
Cameron,
520, 526-27,
State
At argued this instruction was supported by evidence in the He pointed record. to the letter Rice wrote referring a battle with Satan and passage videotaped interview with Sam Keen where he mentioned Also, an being emissary of God. closing argument, defense suggested counsel extraterrestrial commu- "urges" examples nications —or of deific commands. —were appeal, On pointed any Rice has not other evidence in support of argument.
The trial court
not err
rejecting
did
Rice's pro
posed instruction. Cameron and other cases in this state
make clear that a
following
defendant
deific commands
qualifies as insane
if
only
his free will has been subsumed
Cameron,
his belief
527;
deific decree.
State v.
Crenshaw,
789, 798,
(1983);
Wn.2d
A on his party is to an instruction entitled in if the record only case there evidence is substantial Homes, Inc. Mobile support theory. Cooper's to Simmons, (1980); State v. 321, 327, Wn.2d 617 P.2d denied, App. 696, 704, review Quinn, Wn. 719 P.2d not been Wn.2d 1020 Because standard has this case, in proposed properly met this instruction was rejected.
II Penalty Phase A. Emotional Argument Nature of Closing appeal, closing Rice prosecutor's On contends that improper to the in was an argument penalty phase points to passion prejudice. particular, Rice appeal passages, two first of which reads: children, fact that two ten- of these victims were a boy and a year-old to Phase twelve-year-old boy, was irrelevant
1. It now you becomes for consider something 2. The family in Phase own fact that in their was killed home on 1. It Christmas Eve was irrelevant Phase crime, element part was not an but it is part and a those crime what makes this crime one of crimes that as very the penalty few screams out the death for only acceptable punishment. challenges prosecutor's also following part
closing argument: will, if two you shoes those yourself,
Put parents' have in their bed- gathered children who been And as they got gun. a man believe has room with who in their lay on the floor face down they're told down bedroom, parents' they comply. starting And it's to come to Derek and Colin that whatever child believes that parents protect anything, especially their can them from home, in their own is not true. And as Derek and Colin around the fastening hear the click of the handcuffs wrists of their father and the click of the handcuffs as mother, of their what they're gathering around the wrists are And as the defendant comes closer to thinking? them These are factors up tight. and cinches the sweaters you should consider mind the crime. having chloroform, Then the with the first to going defendant any Dad. And there is no indication that there was words mother, point. strug- at that Then to the who struggle nasty at the smell that the defendant talked about. gled finally point nasty where that smell of And then coming closer to their faces. And their last chloroform conscious thoughts on this earth are the terror That is the crime that the defendant commit- bedroom. have in you That is the crime that have to mind ted. has you weigh whether the State convinced when *24 beyond mitigating a reasonable doubt that cir- you cumstances, mitigating the so-called circumstances merit leniency.
Rice contends
these remarks
constituted
a
him
passion
to
and denied
a
appeal
prejudice
direct
Washington
fair trial. The law
criminal cases is that
”
a crime and
[although reference to the heinous nature of
prose
proper argument,
its effect on the victim can be
duty
prejudice
is to ensure a verdict
free of
cutor's
omitted.)
(Citations
v. Claflin,
State
38
based on reason."
(1984),
denied,
847, 849-50,
review
App.
607
(1968).
80,
penalty
In death
hear
84,
Appellate
state
argument
asking jurors
place
a
priety
prosecutor's
in the role of the victims. Some courts elsewhere
themselves
improper, although
that such
is
argument
have concluded
reversal,
a
as
necessarily
require
such
degree
penalty
sentencing phase
other than
death
trials
438,
v.
n.5
Gaspard,
See United States
744 F.2d
441
case.
denied,
(5th
1984),
(1985);
cert.
Cir.
issue of but *25 if the elements does not decide jury issue. tencing the nature of the met, weighs are rather the crime but The jury factors. any mitigating against criminal acts analysis, consider, part of that as be allowed should topic on that victims, and impact argument on the crime's the circum- it is restricted to to the extent that proper is v. 107 S. Ct. at Maryland, See Booth crime. stances of the 608 v. Brooks n.10; (11th Kemp, 1383,
2535
762
F.2d
1409
Cir.
remanded,
vacated and
1985),
rein
(1986),
[A]t facts, resolution of which turns not only on the but on jury's moral assessment of those facts as reflect on whether defendant should be put death. It is not only appropriate, but necessary, jury weigh sympathetic elements of defendant's background against may those that offend the conscience. In this process, one of the most significant is considerations the nature of the crime. underlying Hence assessment of the offense from the victim's viewpoint would appear germane to the task of sentencing.
(Citations omitted.) Haskett, People 841, 30 Cal. 3d 863- 776, P.2d Rptr. Cal. course, argument
Of must also be restricted to the evi- case, presented dence prosecutors so that cannot matters. See in extrinsic Claflin, at 849-52. bring case, present prosecutor restricted his argument those circumstances of the crime for which evidence had presented. been
Additionally, even argument is on proper conducted may still subjects be if improper presented it in an Fleetwood, State v. inflammatory manner. (1968). In
[T]he and should not be given the impression may that emotion over reason. In reign case, each therefore, the trial court must strike a careful balance probative between the prejudicial. On the hand, one it should allow evidence argument and could on emotional though relevant subjects
provide legitimate sway reasons to to show mercy hand, impose toor the ultimate sanction. On the other
irrelevant information inflammatory rhetoric *26 proper from its role attention jury's that diverts the should be irrational, response purely subjective invites an curtailed. to a its obvious relevance that because of
We conclude
crime,
invita-
prosecution's
the
moral assessment
tion to the
role
themselves
into the
jurors
project
to
insufficiently
in
victim
this case was
surviving
of the
inflammatory
Although
argument
the
justify
reversal.
is
response,
that reaction
no doubt evoked an emotional
of the crime
gruesome
more to the
nature
attributable
portrayed.
the
from which it was
perspective
than to
(Citations omitted.) Haskett,
These conclusions
864.
equally
present
case.
apply
in
the
Finally,
argues
prosecutor's
argument
Rice
in State v.
phase
principles
violated
set out
sentencing
Bartholomew,
may properly
any specific
they
discuss
instructions
think
particularly significant.
are
You should consider the
place
instructions as a whole and should not
emphasis
undue
any particular
part
on
or
instruction
thereof.
you
testimony
The evidence
are to consider consists of
evidence,
of the
in
ing hearing.
into
witnesses and the exhibits admitted
phase
special
during
one of this trial and
sentenc-
my duty
It has been
to rule on the admissi-
bility
yourselves
of evidence. You must not concern
with
disregard any
rulings.
the reasons
these
You will
for
evidence which either was not admitted
which was
or
by
stricken
the court.
determining
any proposition
whether
has been
proved, you
all
intro-
should consider
of the evidence
by
parties
question. Every party
bearing
duced
all
on the
pro-
is entitled to
benefit of the evidence whether
by
party
by
party.
duced
another
credibility
judges
You are the sole
of the
of the wit-
given
testimony
weight is to be
nesses and of what
testimony
you
considering
any witness,
each. In
ability
may
opportunity
take into account the
and
memory
observe, the
and manner
witness to
witness'
testifying, any
prejudice
interest,
while
ness
bias or
the wit-
may
testimony
have,
the reasonableness of the
light
evidence,
the witness considered
of all the
and
any
believability
weight.
other factors that bear on
arguments
remarks,
are
Counsel's
statements and
you
apply
help
intended to
the law.
understand the evidence and
They
you
evidence, however, and
should
are not
any
argument
disregard
remark,
which is
statement or
you
supported by
given
the evidence or the law as
not
by the court.
any
lawyers
duty
and the
to make
The
have
objections
appropriate.
objections
Such
which
deem
pre-
should make no
you
you,
not influence
should
counsel.
by
of objections
because
sumption
comment on the evi-
permit
me to
The law does
If
intentionally done so.
any way
and I have not
dence
commented, during
I
so
you
have
appears
it
instructions, you
of these
giving
the trial or
either
entirely.
comment
disregard
must
such
1.02 that was
of WPIC
instruction is a modification
This
Mak,
692, 750-51, 718 P.2d
in State
discussed
(1986).18
denied,
relevant
407, cert.
only
You have of law. The fact that inflicted case of violation be conviction cannot be considered may follow punishment may you tend to make careful. by you except insofar as it impartially officers of the court and must act You are to determine and declare the and with an earnest desire you will Throughout your verdict. deliberations proper permit you. nor to influence sympathy prejudice neither from WPIC 1.02 allowed argues that these omissions in arriving for the victims sympathy to consider cannot responds The State the instruction its verdict. *28 erroneous, in especially of the fact that light be held to be actually the that was requested both instruction parties given.19 that it was for analysis by noting proper
We our begin 1.02. the trial court to omit the last four sentences of WPIC course, in jurors to instruct inappropriate, It would be nothing that have to do with Rice's penalty phase the then important, Even more had the trial court punishment. directly point, the instruction 18Mak is not on however. Mak contended that leniency sympathy jury grant precluded arguing based on him from that the could Mak, Rice, hand, arguing is that the at 754. on the other for the defendant. erroneously sympathy jury base its decision on for instruction allows the victims. very objecting, though we Rice invited the error to which he is now 19Even Mak, objection, being capital See at 749. this a case. will review 612 permit sympathy jury "you
instructed the prejudice will neither nor you", to influence have created revers- would improperly ible error. Such an instruction would have sympathy precluded jury considering for the from sentencing defendant in its See State v. deliberations. Quinlivan, 124, 129-30, 1268, A.L.R. 499 P.2d (1972). 3d 835 only
Therefore,
if
issue is
the trial court should
paragraph making
jury
have added a
clear that the
should
sympathy
the victims
sentenc
not allow
for
to influence its
ing
reason,
A sentence of death must be based on
decision.
sympathy
Barthol
not on emotions such as
for the victims.
construing
Florida,
omew,
Gardner v.
jury could jury directed verdict, adequately instructions these its decision. of a reasoned importance on the of Confession Replaying C. to deliberations, asked jury phase penalty its
During summoned The trial court confession. taped rehear Rice's the proper discuss the courtroom to attorneys to the fol- decision until postponed any judge The response. the issue to research parties to allow the morning lowing next Rice. The attorneys to talk to to allow the defense and jury that with the State agreed the defense morning, to they object did tape was entitled to rehear the mix- through that The defense indicated procedure. that if asked Rice he wanted had not up communication and the Both the State present proceedings. to for these be opinion presence that Rice's attorneys defense were of necessary. judge was not playing tape for the way jury's accommodate decided that the best tape presence for them request replay was to himself, bailiff, clerk, reporter. and the court the court present tape be while the right All counsel waived the replayed. knowing he did not make a argues Rice now He contends voluntary right present. waiver of his to be Fifth, under the procedures rights these violated the paral- Amendments and Sixth, and Fourteenth Eighth of the state constitution. provisions lel concluded it recently has This court court, prior without notice for a trial improper in the jury defendant, replay tape deliberating for a Caliguri, State defendant's absence. should be no stated that there P.2d 466 We in the and the judge between the
communication
Moreover,
of the cases
examination
absence.
defendant's
consti
error is one of
Caliguri
shows that
relied on
dimensions,
the defendant's
violating
tutional
See
by counsel.
person
and defend himself
appear
Shutzler,
State v.
365, 367-68,
(1914);
Under erroneous, reversal. tape degree requiring was but not of a reporter, court by The was recorded proceeding they that had not heard replayed jurors was nothing Therefore, case in the trial. this is an even clearer earlier Caliguri harmless error. Rice's absence from than except the courtroom had been cleared proceeding, when for court did not his defense. personnel, prejudice
D. Presence at Verdict Defendant's sentencing on the issue jury began The its deliberations day, next at 11:45 a.m. on June 9. At some time on the in the ingested King "a tobacco substance" apparently Medical County and had to be taken to Harborview Jail the trial court jail Center for treatment. The staff informed min- Twenty development p.m. of this at 1:40 on June 10. later, to the bailiff that it had jury utes indicated p.m., judge a verdict. Just before 3 reached Rice's that Harborview staff had indicated that informed "unresponsive that he was vital were stable but signs still Rice's pump communication". Harborview staff had stomach, it would be at least estimated to the courtroom. brought hours before he could be time, Rice's actions con- it was not known at that Although attempt an at suicide. stituted on positions then asked counsel for their
The trial court defense stated verdict Rice's absence. The taking and waived required was not appearance Rice's above that the facts summarized found presence. judge 3.4(a) receiving for under CrR cause” "good constituted absence, to do so. proceeded and he verdict 3.4(a) as follows: provides CrR arraignment, at the present shall be The defendant empaneling of including the trial every stage of verdict, imposition and at and the return rules, these sentence, provided by except as otherwise of or as good cause the court excused or excluded for shown. (Italics ours.)21 case a defend- ordinary recognizes
This rule
verdict,
that under
receive the
but
present
ant should be
cause",
the defendant's
constituting
"good
circumstances
by other considera-
present
outweighed
to be
can be
*31
not, however,
any
as to
give
guidance
tions. The rule does
cause". The
qualify
"good
of considerations
as
types
what
exactly when Rice would
way
knowing
trial court had no
keeping
to
in court. He was also faced with
ready
appear
be
period of time after
jury sequestered
for an unknown
process.
must have been an arduous deliberative
what
21
3.4(b), although
par
pertinent
of this issue is CrR
Also
to the discussion
part
prosecu
provides in relevant
as follows: "In
ties have not cited it. That rule
death,
voluntary
punishable by
absence
tions for offenses not
the defendant's
presence
prevent continuing the
commenced in his
shall not
after the trial has
adopted
including
from
and
the return of the verdict." This rule was
trial to
Dowd,
4A
& D.
Wash.
Federal Rule of Criminal Procedure 43.
L. Orland
former
(3d
1983).
Prac.,
apply
"pros
Rules Practice
6212
ed.
Former rule 43 did not
§
capital
thought
punishable
in a
case a
death" because it was once
ecutions
present.
Wright,
right
Federal
his
to be
See 3A C.
defendant could not waive
(2d
1982). However,
in
federal rule was amended
1975
Practice
ed.
§
capital
noncapital
See Fed. R. Crim. P.
between
and
cases.
remove the distinction
Supreme
implication
changed
in
Court's
federal rule was
because of the
43. The
(1970),
337,
353,
Allen,
that a
U.S.
25 L. Ed. 2d
Nevertheless,
any
if
here,
error was committed
it
was harmless. Because we are
with
dealing
a rule violation
rather
constitution,
than a violation of the
the "harmless
beyond a reasonable doubt" standard discussed in
pre
ceding section is inapplicable.
Instead, such error
'"is not
unless,
prejudicial
within
probabilities,
reasonable
had the
occurred,
error not
the outcome of the trial would have
materially
been
Smith,
affected.'" State v.
772,
780,
(1986)
We next
question
address the
of Rice's absence as a pos
sible violation of his constitutional
rights. Under the Sixth
Amendments,
Fourteenth
a criminal defendant has the
right to
Snyder Massachusetts,
attend his trial. See
97, 105-08,
674,
U.S.
330,
78 L. Ed.
Const,
54 S. Ct.
617
See Ken
principles.
these
recently reaffirmed
Court has
631,
Ct.
Stincer,_U.S._,
96 L. Ed. 2d
107 S.
v.
tucky
522,
States v.
2658,
(1987);
Gagnon, 470 U.S.
2667
United
curiam).
(1985)
527,
486,
(per
Under the
his verdict.
present
to be
at the return of
process right
due
See State v.
have reached this same result.
Other courts
(1977);
State,
v.
Okumura,
425,
himself and that absolute fairness
(1943).
See,
State,
401,
244
e.g., Lee v.
Ala.
that the to waive at a were actu rights if Rice's decide must Finally, we rights A of constitutional waiver case. in this ally waived circumstance, In the latter implied. express be can either present to be waive his can a defendant example, for proceed himself from the absenting voluntarily at trial States, 414 U.S. L. Ed. 2d v. United Taylor ings. LaBelle, (1973); State v. App. 18 Wn. 94 S. Ct. *34 (1977). A of this constitutional waiver 380, P.2d 808 568 LaBelle, at 391 voluntary. and knowing both must be right (2d Tortora, 1202, 1208 v. 464 F.2d States (citing United (1972)). Rice's suicide denied, 1063 Cir.), cert. 409 U.S. Moreover, knowledge voluntary.23 fully was attempt here, if, the record as even can be satisfied requirement told of expressly was the defendant not disclose that does In Taylor, at regard, 19-20. present. be right his as follows: has stated Supreme Court who petitioner, that suggest incredible to wholly It is session bail, opening had attended liberty was at on (2d 1982). implications 723, of Wright, 18 n.2 ed. Federal Practice at 3A C. § Advisory Proce- Federal Rules of Criminal Committee for the Allen also led the right suggestion P. in Fed. R. Crim. 43 that former dure to eliminate 723, Wright capital presence at 18 n.3. waived in cases. 3A C. § cannot be concerning a recently, the dicta in Diaz has indicated that Even more the Court subject capital might inability presence trial be his at a to waive defendant's 103, 162, Missouri, Drope L. 2d 95 S. Ct. v. 420 U.S. 43 Ed. In reconsideration. dicta, choosing rely (1975), the Diaz reluctance to on the Court exhibited a also been shown. See that no waiver had its decision on the fact instead to base Cir.) (11th 311, (noting Supreme Wainwright, Court's F.2d Proffitt following resolving in Drope suit this issue and then in to address reluctance 1002, 1003 grounds), 464 U.S. cert. on other issue denied. Supreme in foregoing, unsettled light consider this issue to be we In today. way preclude opinions we reach the conclusion in no Court and its any except out of his own manner that Rice acted is no evidence 23There incompetent prior Rice had become establish that evidence does not free will. The guilt Indeed, attorneys agreed attempt. at the outset his suicide competency trial." question to stand phase "no about [Rice's] there was that depressed although and with Moreover, that Rice determined Dr. Muscatel psychotic attempt, in the midst of following "he was his suicide drawn being reality." There probably of touch with decompensation never out and was any other incompetency will had been overborne or that his no evidence voluntary. manner, Rice's acts were we conclude trial, duty trial, of his to be at the present and had any present about his to be entertained doubts us, every equally of his trial. It seems the Court of incredible to stage Appeals, as it did flees from a courtroom "that a defendant who the midst of a trial —where lawyers present judge, jury, ready witnesses and are consequence to trial not know that as a continue —would in his absence." could continue (Citations omitted.) States v. Taylor, (quoting at 20 United (1st Taylor, 689, 1973)), quoted 478 F.2d Cir. LaBelle, App. 18 Wn. at 396. This reasoning applies equally Furthermore, present case. the presumption Rice rights strengthened by already, knew his his having earlier, just days the verdict in the gone through process Therefore, guilt phase. knowing Rice's waiver was both voluntary.
E.
Ford v.
Application
Wainwright
Supreme
recent
Court
argues
precludes
case
Wainwright,
his execution.
Ford v.
477 U.S.
91 L.
(1986),
Ed. 2d
Rice that Ford v. argues should be applied "ability because his to distinguish between wrong substantially impaired by and is reason of mental matter, Appellant, illness." Brief of at 37. As an initial we incorrectly appropriate note that Rice has stated the test of sanity. M'Naghten "right wrong" prong and test applicable only sanity is at the time of the determining Henke, 185, 193, v. crime's commission. State 196 Wash. sanity P.2d 544 When the issue is a defendant's at is test trial, punishment, sentencing, the time of peril his appreciating capable properly "whether one is Henke, in his own defense." assisting rationally and of in slightly phrased has been recently, this test 193. More if trial to stand competent is person terms. different "[A] pro nature of the understand the capacity to he has the in his own if he can assist him and against ceedings 479, 482, P.2d 1069 Ortiz, v. State defense." (1986), RCW citing denied, 476 U.S. (1985), cert. Henke clear that 10.77.010(6) makes RCW 10.77.050. person's context of a equally applies this standard the time of as it does at of punishment at the time insanity trial. by the illness is established that his mental argues note, however, the trial at trial. We presented
evidence the formal competent for that Rice was court concluded after more than a month death sentence imposition of his based This conclusion was rendered its verdicts.24 recovered from that Rice had opinion on Dr. Muscatel's compe- "completely and was attempt his suicide effects of in the trial sentencing. Implicit proceed with tent" able to that Rice was finding is the court's conclusion could assist sentencing understand the nature of have attorneys appeal on attorney's preparations. way any changed condition has indicated that his not has been determined time. Once a defendant since that contrary to continue until sane, sanity presumed be Henke, showing No such at 193-94. is shown. evidence sane, made, Rice remains presume been we having terms does Wainwright by express its and, thus, Ford v. apply. Ford however, us to extend Rice asks Apparently, of the death imposition Wainwright preclude so as to who, compe though legally even prisoner against penalty was, There mental illness. sane, a substantial has tent case, Dr. illness mental indeed, evidence of some *36 appealed from this decision. has not 24Rice 622 extremely Rice as "an disturbed having
Muscatel
described
man,
paranoid
features." Never
who has both schizoid
theless,
uniformly refused
courts in
have
jurisdictions
other
against executing
persons
insane
prohibition
to extend the
insanity.
does not reach the level of
to those whose illness
42, 46-48,
1, cert.
Gretzler,
v.
Ariz.
659 P.2d
See State
135
(1983);
denied,
State,
v.
499 N.E.2d
461
971
Harris
U.S.
(Ind. 1986),
denied,
2490
723,
cert.
107 S. Ct.
726-27
State,
419, 422,
149
(1987); Farmer v.
101
P.2d
Nev.
705
(1985)
(1986);
,
denied,
cert.
U.S.
Commonwealth
476
1130
355-56,
1,
denied,
Banks,
318,
A.2d
108
513 Pa.
521
cert.
(1987);
Fahy,
211
Commonwealth v.
Pa.
S. Ct.
512
(1986).
316-17,
law
Historically,
F. of Death Statutes constitutionality Washington's Rice challenges statutes, 10.95, by RCW this court penalty asking death Camp in State v. its them upholding reconsider decision denied, (1984), 471 bell, P.2d 929 cert. 103 Wn.2d reason asks court to adopt U.S. 1094 dissent; is, capital hold our Campbell ing of of its punishment protection violates because equal scheme is void arbitrary application vagueness and that it for prosecutor has because of the discretion” "standardless J., (Utter, con seeking penalty. Campbell, the death However, part). this court has curring part, dissenting con rejected and similar repeatedly challenges these statutes, use stitutionality penalty of our death and "[n]o served this same purpose by again plowing ful would be Mak, 692, 758-60, P.2d State v. ground". denied, (and therein), Ct. 599 cases cert. 107 S. cited (1986) position unchanged. . Our on these issues remains
G. Death Sentence Review phase duty sentencing jury's in was to answer The following question: "Having of which the defendant has in mind the crime you beyond guilty, a reasonable are convinced been found mitigating circum- there are not sufficient doubt stances leniency?" to merit 10.95.060(4). unanimously jury this The answered RCW Washington's question statutes, in the affirmative. Under by sep- analyzing three this court is to review that decision 10.95.130(2)(a)-(c). RCW arate issues. Sufficiency the Evidence
1. if there was sufficient evidence We must first determine 10.95.130(2)(a). support jury's Rice verdict. RCW to urges apply which would this court to a standard review require light in of the evidence most favorable assessment argues Rice that because there was evi- the defendant. mitigating supporting dence the existence of one or more circumstances, insuffi- this court should find that there was support jury's cient evidence to decision. adopted court, however,
This
has
a different test.
viewing
if
Our task is to determine
"'after
the evidence
prosecution, any
light most favorable to the
rational
justify
found sufficient evidence to
trier of fact could have
beyond
finding
State
a reasonable doubt.'"
this affirmative
(1987) (quoting
Rupe,
734, 765,
Wn.2d
Nevertheless, the mere factors require jury grant leniency, long as it is does not so beyond any mitigating convinced a reasonable doubt that by outweighed the circumstances of the crime. factors are relatively mitigating case, In circumstances were unpersuasive. words, there evidence other was sufficient jury before the to warrant its decision. that we cannot affirm his sentence
Rice further contends beyond a reasonable doubt that unless we can conclude support jury's decision. there was sufficient evidence to appellate However, this mischaracterizes the role of an fully weigh assess the evidence and court. We do not mitigating way aggravating against factors factors note, however, being "wanted a different 25We that Rice referred to on Brown, charge" leading in the letter he wrote that was seen Robert arrest. position having so, did. We are not to do not directly testifying
the witnesses
before us. Our role is to
support
determine if there was sufficient evidence to
jury's
law,
fact,
verdict. Because this is an issue of
"beyond
apply
a reasonable doubt" standard does not
our
See
Jeffries,
n.5,
decision.
State v.
105 Wn.2d
(1986);
denied,
717 P.2d
cert.
Under RCW this court must consider determining both the crime and the defendant in if Rice's disproportionate pen- death sentence is excessive or alty imposed in similar cases. "Similar cases" include reported Washington Reports cases in the or the Wash- ington Appellate Reports January 1965, since where
imposition
capital punishment
considered,
was
reports
cases which
have been filed with this court
"
pursuant to
10.95.120,
RCW 10.95.120.Under
[i]n
RCW
person
aggravated
all
degree
cases which a
is convicted of
first
report
murder, the trial court shall” submit a
with
details about the
Thus,
defendant and the crime.
"similar
cases" include cases where the defendant was convicted
degree aggravated
regardless
of first
murder
of whether
penalty
sought.
the death
Rupe,
State v.
734, 767,
Proportionality requires that "a death sentence
gen
must not be affirmed where death sentences have not
*39
erally
imposed
cases,
been
in similar
nor where it has been
'wantonly
freakishly imposed.'" Rupe,
(citing
and
at 767
(1986),
Harris,
State v.
784, 798,
106 Wn.2d
Rice's sentence is Of all the aggravating that case involved the same three factors that fact, present majority opinion at In Rupe, are here. 768. report primary in as its judge's in used the trial Rupe in at comparison present case. 768. The three factors Rupe, (1) of the protection or concealment both cases were (2) multiple murders involved identity, perpetrator's (3) or part plan, victims as of a common scheme and murders were committed in the course of or furtherance Moreover, Rupe, robbery degree. in at 768. this the first aggravated first Rupe previous court in also examined aggravat- three degree involving murder cases two these ing Rupe's concluded that death sentence was factors and apply All equally these statements disproportionate. case, Rupe no been decided since and cases have change analysis. this would in committed
Rice's crime is also similar
nature to those
in which we
recently
in two other cases
before
court
In State v.
103 Wn.2d
Campbell,
affirmed death sentences.
denied,
(1985),
1,
(1984), cert.
Given the factors, severity number aggravating victims, his we cannot conclude that Rice's death sentence disproportionate, despite arguments excessive or was concerning circumstances. mitigating Prejudice
3. Passion or if "brought must determine Rice's sentence was We also 10.95.130(2)(c). RCW through passion prejudice". about or that his death sentence cannot be affirmed Rice contends doubt beyond can a reasonable unless court conclude finding passion prej- not the result of or jury's However, respect we with udice. as discussed above evidence, sufficiency applicable that standard is not of the court's on an issue of law. appellate to an decision attempts seven with which he arguments Rice advances the sentencing influenced passion prejudice to show that many parts We addressed of these other have phase. no merit. remaining arguments and the have opinion, our pas- the result of conclude that Rice's sentence was We not. or prejudice. sion
Conclusion in this case are affirmed. judgment The and sentence JJ., Goodloe, Brachtenbach, Andersen, Callow, concur.
Dore, J., concurs the result. reverse Rice's sentence (dissenting) J. would
Utter, —I sentencing phase based on serious errors committed at the prosecutor improperly argued of his trial. The using point sentence Rice of view of the children Additionally, present killed. Rice had a to be at the verdict, and he did not waive that rendering right. mayWe not assume the trial court's error to be harmless.
I proper holds that it was for the majority argument prosecutor urge jurors place themselves Majority, shoes of the two children. at 608. It relies on a California case that assessment of the offense from holding the victim's at the viewpoint improper guilt phase, but *42 608, "germane to the task of at sentencing." Majority, Haskett, v. quoting People 841, 863-64, 3d 30 Cal. 640 P.2d in Rptr. 180 Cal. This is not the law and it also is inconsistent with the United Washington, analysis States Court's latest under the Supreme eighth v. to the United States Constitution. Booth amendment 96 L. Ed. 2d S. Ct. Maryland,_U.S._, (1987) a "victim the (holding impact statement" sen- tencing phase capital prejudicial). of a case irrelevant and
In Washington,
sentencing
the
structure is intended to
penalize
proportion
defendants
to the
of their
magnitude
Supreme
crimes. RCW 9.94A.010. The United States
Court
jury's
sentencing
also holds that
the
determination
the
capital
only
of a
case must focus
on the individual
phase
crime;
the
the impact
characteristics of the defendant and
family
crime on the victim or the victim's
are not
of the
at 449. To hold
Booth, 96 L. Ed. 2d
sentencing.
to
relevant
of the death
imposition
arbitrary
would invite
otherwise
United
to the
amendment
eighth
and violate the
sentence
Victims of
Booth,
L. Ed. 2d at 448.
Constitution.
States
any
of
objects
type
sympathetic
of crime are the most
any
sentencing
to
procedure.
respect
Their desires with
criminal
may
defendants, however,
mercy
revenge,
for
whether
of
Booth,
on the issue
not,
the
be considered
holding
under
sentence.
the death
supra,
Booth v.
Maryland,
cites both
majority
(11th
1985),
Cir.
vacated
Booth, 96 the victims. place itself in the shoes of jury asked evidence error than the admission of greater is even This victims; take the it has the on effect crime's perspec- objective victims rather than an perspective *43 of the defendant. culpability tive on Court of Brooks, 1409, the 11th Circuit in Similarly, to focus exces- prosecutor improper it for Appeals held beyond go victims. To of the characteristics sively on victim, the vic- and to take of the on attributes focusing the sentence determining the crime perspective tim's Brooks court found scope argument is not within permissible.28 victim in the shoes of the place oneself argument
The
rule
do to the defend
"golden
argument":
is similar
you
you
for
if
were
you would wish to be done
ant as
do to
essentially
Here the
is
the same:
argument
plaintiff.
you
if
you
would wish
done for
you
defendant as
to be
universally held
the victim. Golden rule
are
arguments
were
Alumi
they
inflammatory.
are
Adkins v.
improper because
(1988);
Am.,
num Co.
II rendering finds no error majority wrongly in Rice's absence. Rice had a constitutional the verdict rendering waive. The present, to be which he did not Brooks, prosecutor personal the vic 28In "ticked off some attributes [of personalize comments did the evidence". The court stated: "These shown tim] they injected victim, enough that we cannot conclude that but were brief Brooks, sentencing at 1409. prejudicial material decision." or irrelevant into *44 632
of the verdict in his absence also explicit violated the terms of CrR 3.4.
Washington,
statehood,
both before and after
recog-
has
nized the
of
right
criminal
present
defendants
to be
at
every
trial,
stage of
the
of
including
rendering
the
ver-
dict, as a
Shapoonmash
v.
United
fundamental
right.
States, 1
Costello,
State v.
(1862);
Wash. Terr.
188
29
State
366,
P.
v. Schafer, 156 Wash.
Wash.
69
1099
(1902);
Const,
240,
The common law rule in accepted nearly every jurisdic- is capital tion in cases criminal a defendant must be verdict, may of present rendering right at the the and be An "overwhelming weight authority" not waived. of sus- the following propositions: tains felonies, capital,
First. In trial the of all not where the bond, has present throughout defendant is on and been delivery testimony, up rendition of the of verdict, absent at rendition but is of verdict vol- untarily, own dict not himself his permitted he will be avail absent, voluntarily in but wrong being thus the ver- in In
may properly be received his absence. other words, may right waive the to be when the present received, not, sup- verdict as popularly is which is seems very posed, right, though constitutional sacred right, common as well statute. by secured law as charge capital one, Second. Wherever the is a vitae, courts have held in uniformly, favorem right cannot waive to be present, his defendant in jail, power whether he be the court subject him, bond, on is fatal produce it error receive in verdict his absence. be capital,
Third. Even felonies if the defendant received, in jail when the verdict is it is fatal error.
633 defendant, capital, In cases not Fourth. presence his own when the bond, to waive he is on where received, strictly personal right, no is verdict him by his own counsel. exercised for can be such waiver 778, mine.) State, 774, 47 (Italics v. 93 Miss. So. Sherrod State, 657, v. 113 Neb. 204 N.W. (1908); see also Scott 554 Barbera, 339, La 274 N.Y. 8 N.E.2d (1925); People Annot., Accused Return Ver (1937); Absence Case, (1952), 23 A.L.R.2d cases Felony dict therein. cited Supreme Court reached the same
The United States States, L. v. United 223 U.S. Ed. Diaz conclusion (1912). Diaz, Ct. 32 S. Court stated dicta: *45 courts, accord, our felony In cases of with substantial of regarded right present] have the defendant to be [the extending every trial, stage as empaneling to the inclusive of the of verdict, of jury reception the the the and of being scarcely as less to the accused than important of right the trial itself. like have And with accord an regarded custody accused who in one who is is incapable waiving with as charged capital offense of one, the right; the because or absence not presence his control, because, his own in within and the other addition being usually to in he is deemed to suffer the custody, apprehension an of the naturally constraint awful the tody, incident to But, where would conviction. penalty follow is not in cus- capital is not and the accused offense been, if, the rule after trial prevailing the has voluntarily himself, in absents begun presence, has his prevent done nullify does not what has been trial, contrary, but, operates as completion a free to on be and leaves the court right present waiver of his to with with the trial in like manner and like proceed if he present. as were effect mine.)
(Citations 223 U.S. One omitted. Italics at 455. rea- in capital waivers cases is against allowing for the rule son policy protect against to a defendant himself the "jealous to him ..." Lee v. absolute fairness and to vouchsafe 404, State, 401, Ala. 13 2d 590 Another is to 244 So. consequences the serious of its deci- upon impress sion.
634 humanity of to let contrary
"It would be
dictates
advantage which a view his
waive the
[the defendant]
by
him
the hearts of
might give
inclining
sad
plight
with indulgence.11
jurors to listen
his defence
370, 372,
1011,
L. Ed.
States,
U.S.
Lewis v. United
(1892)
Commonwealth,
Prine v.
(quoting
This court has determined present be in grants a nonwaivable Constitution rendering the verdict. capital The including case Const, (amend. 10) signifi- differs art. wording of § However, not counterpart. it is nec- cantly from its federal here, because the essary for us to determine this issue there is law and CrR 3.4 both are clear that such a common right.29 3.4(b) part:
CrR states in relevant by death, not prosecutions punishable for offenses the trial absence after has voluntary the defendant's prevent continuing commenced shall not presence return the verdict. the trial to and including may means disputed It is this rule that defendants cases, every capital presence not waive their case rule interpreting counterpart federal to CrR 3.4 former (2d ¶ Moore, Federal has See 8B J. Practice 43.02 so held. 1988). explicit binding ed. statement CrR 3.4 is the I puzzled law this state. am therefore and disturbed attempts undercut rule a footnote: majority's *46 in rule to development change This the federal allow [the validity leads us the courts to determine the of waivers] 3.4(b)'s to CrR current dis- question advisability of noncapital and Neverthe- tinction between cases. capital written, less, even rule as it accepting presently is error was not committed. we conclude reversible mine.) (Italics 21. Footnote possible prefers where on the basis com 29This court to resolve cases law, referring The mon and statutes to constitution. absence of rules before
argument grounds deciding also this court from on state constitutional hinders Wethered, 466, 755 basis. See v. State P.2d 797 this case on that
635 infirmity chang- facto post from the ex Aside obvious trial, every princi- after his rule to Rice's detriment ing the we by bound rules requires this court to be ple fairness to established promulgated changed according have until to unwillingness majority's See GR 9. The procedures. trial, was binding at Rice's and admit that CrR 3.4 was to violated, with clearly only regard result in confusion can by More- every this court. promulgated that and other rule back over, repealed dating statutes Legislature recently right the nonwaivable capital 1881 defendants granting because those statutes at trial and judgment to be present 1984, 76, 29, 33 CrR Laws of ch. by 3.4. superseded were §§ 10.64.020). have 10.46.120 and RCW We (repealing RCW CrR The question applicability now the 3.4. right no allowing in to render verdict thus erred court in absence.
Ill if Rice had the is right presence, Even waive there custody, he did so. no indication Where a defendant is C. to be 3A right present express. waiver of should be 16, (1982); Annot., Federal Wright, supra Practice § § 494, cited and cases therein and the Later Case Ser- by "At least an on-the-record court open vice. statement v. Cross United required." the defendant himself should be 1963). (D.C. States, 629, holding 325 F.2d Cir. v. relies, United Taylor the case on the majority which (1973), 174, States, 2d 94 S. Ct. U.S. 38 L. Ed. not in cus- voluntary is a defendant limited to absence Gordon, States tody, here. inapplicable United (D.C. 1987). expressly never n.7 829 F.2d Cir. was unconscious present, waived his to be jury's hear the verdict when the court made the decision a series of erroneous makes in his absence. The majority the conclusion reaching presumptions assumptions a waiver. there was all, suicide concludes majority
First of so, doing 619. voluntary. Majority, at attempt *47 636
majority
wrongly places
first
the burden on Rice to show
James,
847,
his suicide
In re
96
voluntary.
was
Wn.2d
851,
(1982) ("The
18
heavy
P.2d
State carries a
burden
of demonstrating
voluntary,
knowing, and intelligent
Moreover,
waiver of any
right").
constitutional
there was
never any
hearing to determine the
fact-finding
cause of
facts,
Rice's
case
attempt.30
suicide
with similar
Supreme
United States
Court held that
there must be a
factual
whether
instability
determination
as to
mental
caused the
attempt
defendant
suicide before
render-
Missouri,
162,
ing
181-82,
Drope
verdict.
420 U.S.
103,
(1975).
43 L. Ed. 2d
Secondly,
majority presumes Rice
the scope
knew
present
right
his
to be
time of
attempt.
the suicide
However,
the record
affirmatively
must
show that
scope
the entire
defendant knows
the constitutional
right
Tetzlaff,
before it
found to be waived. State v.
may be
(1969).
652,
649,
Although
Wn.2d
638
(Footnotes omitted.) v. Zerbst, Johnson 458, 304 U.S. 464 1461, L. Ed. (1938), S. Ct. A.L.R. quoted Cross, 631. F.2d at
Here, the court could have obtained a statement from Rice as to whether not he intended waive consti- right present. tutional Its to be failure to do so was consti- tutional error.
IV The majority admits there is a constitutional to be right present at rendering However, it verdict. finds there was a waiver of that implies, and therefore actually only without CrR admitting, 3.4 the common in receiving law jury's were violated verdict in Rice's majority applies absence. therefore less strict stan- dard of review in whether there was determining harmless However, error. even applying most tolerant standard review, the court's error in receiving the verdict absence could have been harmless. *49 majority
The in essence error relating assumes that to a defendant's absence at the a is rendering of verdict harm- less. This in creates, conclusion every situation in which such occurs, error wrong remedy. a without a It is hard to imagine how prejudice proven disproven, could as it is be impossible to if a juror tell would look at a defendant and state his or her unless that assent to the death sentence actually happens.
The
the
District of
Circuit of
United States
Columbia
Court
Appeals
quandary
of
was
with a
faced
similar
States,
Wade v. United
1971).
(D.C.
It is to standard which reached. in the result ence occurred, however, is error reversible whether determine not whether whether dice," actually prejudiced, but accused was of possibility "any preju- reasonable there is met, this standard is considering In whether ... importance of a defendant's in mind keep we must presence trial has Indeed, of a aspect trial. stages of his at all in the prestige Sixth Amendment constitutional right to confront adverse witnesses —in of guarantee recognition of a psychological a constitutional part good influence. less the same perhaps degree, Though of confrontation pertains influence from the usefulness jury, aside defendant Moreover, . be to his . . there is may counsel. accused jury speculated possibility reasonable adversely to the defendant about his absence from courtroom. any
. . . counsel's disclaimer on the remand of Trial presence during to him of defendant's usefulness jury subsequently to the retirement proceedings acceptable might not an substitute for what have ... eventuated; is question nor is to a defendant's answer he know hearing, which indicated did not the remand have if sufficient to out- might present, done what to his case weigh helpfulness the reasonable possibility when present. previously if As noted absence proceedings court in engaged open were judge jury. processes of the directly bearing upon the decisional speculative. be too absence harmless would To hold his might what have reconstruct It would assume truly when that cannot present, eventuated had he been essential certainty degree with a be reconstructed prejudice. possibility avoid the reasonable mine.) Wade, at (Footnotes 1050-51. Italics omitted. at the verdict presence cases the defendant's capital assume, as crucial, justifiable it is far less more even *50 would presence does, defendant's the majority the difference qualitative is a no difference. There make to stating assent defendant juror facing a the between stating that facing verdict and the defendant any other him put to to death. he votes
640 of
The nature the decision the jury's sentencing phase impossible also makes it this to for court determine the finder, to jury error be harmless. When the as fact acts willing court has been to consider the of the evi- weight against E.g., dence the to error defendant find harmless. Cunningham, 831-33, v. 823, State 93 613 Wn.2d P.2d 1139 (1980). essence, In place such cases we are willing, position ourselves the of to determine fact finder what happened would have if had the defendant received a fair trial no jury sentencing phase capital with error. of a case, however, fact, as jury longer no acts finder of but instead is whether determining defendant deserves to jury die. The has wide discretion to withhold the death penalty. When an error interferes the jury's with determi- to withhold have penalty, nation the death we no basis if upon which to determine the outcome there had been no majority's jury error. The determination would have sentenced Rice to if death the trial court had preempts erred crucial in a See jury's capital role case. RCW 10.95.050. rendering
The
is
a
the verdict
not mere mechanical
recital of
the vote
room. The
has a
jury
defendant
6.16(a)(3).
right
poll
to a
of the jury. CrR
After
verdict
court,
is
announced
it may
accepted
not be
by
poll
court if a
taken before the
is
verdict
recorded indicates
a
of unanimity.
lack
"Jurors are not bound
in the
votes
jury
register
room
remain free to
dissent even after the
announced,
though
verdict has been
before
the verdict
(5th
Taylor,
166,
recorded."
States v.
United
507 F.2d
1975).
also, e.g.,
Cir.
Chipman
Superior Court,
See
v.
App.
Rptr.
(1982); People
Cal.
3d
182 Cal.
Kel
v.
ogg,
(1979);
Ill.
2d
641 1972) Sexton, Bruce (5th v. 961, (quoting 456 F.2d 966 Cir. Dairy, Chase 224, 225 Farms-Chevy v. Chestnut 126 F.2d 1942)). (D.C. Cir. their affording jurors opportunity change
Besides the to minds, upon them the need to be sure of polling impresses the vote of the may along their verdict. Jurors with go room, later, direct majority jury upon in the and then court, did original the assert that their vote questioning right poll not fact reflect their true decision. to "[T]he jury require juror individually is the each right state his assent to or dissent from the returned publicly verdict which has been announced in court in his open States, (1st presence." Miranda v. United 9, F.2d 18 255 Love, in United States v. 1958), quoted 81, Cir. 84 597 F.2d (6th 1979). Cir.
The
before the verdict
of a
is to
object
poll
give
juror
opportunity,
each
an
recorded,
in open
declare
court
his assent
to the verdict which the foreman has returned
and thus to enable the court and parties "to ascertain for
certainty
jurors approves
a
as returned."
that each of the
verdict
Edwards,
United States v.
(5th
1362,
469 F.2d
Cir.
1972)
Humphries
Columbia,
v. District
(quoting
174 U.S.
(1899)).
190, 194,
944,
L.
Ed.
accused shall be against face to brought face with the witnesses
him, but also with his triers. He has a to be right present only may that he see that is done or nothing omitted which tends to his but to have prejudice, of whatever his presence may benefit influence exert his favor. And at no time is the whole course of the trial step more valuable than at final when pronounce are to that decision which is to restore citizen, him or to him to the liberty consign prison. or to a felon's cell in the state scaffold Commonwealth, Temple Ky. majority
Rather
than
as the
assuming
prejudice,
lack of
does,
opinions
presume
the better-reasoned
of other courts
rendering
from the defendant's
absence at the
prejudice
verdict,
even if the defendant's
absence was his own
Okumura,
In State v.
The Court of Alaska also Supreme of the verdict could not be rendering ant's absence at the harmless error: by
A was affected Lee's absent right being substantial present when the returned its verdict. Had been jury of the taken. poll jury being he could have insisted on a if ask the this was judge jury generally While the did verdict, individually. confront polled members were not their the to the deprived right personally Lee was in difficulty in the reach- jury. Particularly light jury's decision, absence at the return of the verdict ing a Lee's distinction between significant. psychological was absence, requir- in poll and an individual general poll of his decision and each to assume the burden ing juror a minor one. presence affirm it in the defendant's is not hold that substantial Under these circumstances we affected, the error cannot be were and rights as harmless. regarded State, Lee v.
(Footnote omitted.) 1088, 509 P.2d 1094 (Alaska 1973). Likewise, Kentucky Appeals the Court has held: was appellant in the contention that
There is no merit attorney jury, the for polled because his prejudiced was jury see and know that the entire right he had the assenting jury requiring polling to the verdict him to state face with when face to juror each his verdict. verdict 222, 287 S.W. Commonwealth, Ky.
Riddle (1926). in verdict receiving jury's in error
The trial court's CrR 3.4 and necessarily violates absence, which even under harmless law, be found cannot common error. for nonconstitutional of review lenient standard more to be his constitutional did not waive Because error, a fortiori constitutional was also there present, more strin- under the found harmless cannot be that error doubt. beyond a reasonable of harmlessness gent standard P.2d Nist, See, State v. e.g., V argue prosecutor allowing I hold that would children's put themselves should jurors sentence, allowing deciding shoes were both was unconscious while Rice its verdict render sentence and I reverse the death errors. would reversible by RCW 10.95.050. required proceedings for remand require above reversal I the errors discussed Because find I perceive errors themselves, I not discuss here other do trial. phase of Rice's sentencing *53 Tern., Pro concur Pearson, C.J., J. Cunningham, J. Utter, with 16, 1988. August denied
Reconsideration 9, 1988.] June En Banc. 53003-3. [No. Company, Respondent, Insurance Enumclaw
Mutual Cox, Appellant. C. v. Clinton