State v. YatesState v. Yates
Lead Opinion
FACTS AND PROCEDURAL HISTORY
¶2 The Pierce County Murders. Melinda Mercer turned to prostitution in November 1997 to support her heroin addiction. She was last seen alive on the night of December 6, 1997, leaving a Seattle tavern. According to the testimony of a friend, Mercer left the tavern to go to Aurora Avenue to make money for a heroin buy. On the following morning, Mercer’s nude body was found in some blackberry bushes in a vacant lot in Tacoma, a lot used as a dump site for garbage. Some of her clothing had been thrown on top of her, but other items were never recovered. An autopsy revealed that she had been shot three times in the back left side of the head. Only one of the three bullets penetrated her brain, but it did so without affecting the areas that control consciousness and motor response. Found nearby was a .25 caliber shell casing. Bloodstains on her blouse indicated that she had been clothed and upright when shot in the head. After shooting her, the killer encased her head in four plastic grocery bags. The two outer bags contained very little blood, but blood had pooled inside the two inner bags. Mercer’s nostrils and upper lip were visible through small tears in the two inner bags, which had been partially drawn into Mercer’s mouth; the holes suggested that Mercer was alive when the bags were tied over her head and that she had used her teeth to create the holes. Although Mercer could have died solely from the gunshot wounds, the oxygen deprivation would have hastened her death.
¶3 Connie Ellis likewise worked as a prostitute to support a heroin addiction. Ellis had reentered a methadone treatment program on September 8,1998, and she was last seen alive on September 17,1998, when she received a dose of methadone at the clinic (a urinalysis taken at that time revealed that she was again using heroin). On October 13, 1998, approximately 11 months after the discovery of Mercer’s body, a search and rescue dog that was engaged in an unrelated search in Pierce County discovered Ellis’s decomposed body 10 feet down an embankment in a greenbelt used as a dump site. The degree of decomposition suggested that Ellis had been killed a month prior, not long after her September 17 visit to the methadone clinic. Ellis’s body was clothed in jeans, a blouse,
¶4 The Spokane County Murders. On the day Ellis’s body was discovered, the Spokane County Sheriff’s Department learned of the Pierce County сase. In a phone call to one of the Tacoma detectives investigating the Ellis murder, a Spokane detective asked, “ ‘Will you just tell me one thing? Does she have plastic bags on her head?’ ” 52 Verbatim Report of Proceedings (VRP) at 4855. Detectives from Tacoma and Spokane shared information gathered on the 2 Pierce County murders and 10 unsolved murders committed in Spokane County between 1996 and 1998. As did Mercer and Ellis, the 10 Spokane victims had a history of drug abuse and worked in prostitution (all were last seen in the East Sprague Street corridor in Spokane, an area known for prostitution).
¶5 On April 18, 2000, a year and a half after the discovery of Ellis’s body, the Spokane police arrested Yates. The police first contacted him in July 1998, after the body of Michelyn Derning was discovered on July 7, 1998, a block north of Pantrol, a manufacturing company where Yates had worked since moving to Spokane in April 1996 after being released from the army. Yates gave the officer his name, date of birth, and address. A second contact occurred on November 9, 1998, when a police officer saw Yates pick up Jennifer Robinson in the East Sprague Street area. Yates told Robinson to say that he was one of her father’s friends, and Robinson complied. When asked for identification, Yates gave the officer his driver’s license. The officer ultimately let them move on, and Yates dropped Robinson off a few blocks away. Following the Pantrol interview and the Robinson incident, the police learned that Yates had once owned a white Corvette, a type of car that witnesses had reported seeing in relation to the disappearance of two of the earliest victims, Jennifer Joseph and Heather Hernandez. Late in 1999, a Spokane detective interviewed Yates, who claimed he never patronized Spokane prostitutes and owned no handguns. He admitted that he had previously owned a white Corvette and had sold it to a friend, Rita Jones. The police located Yates’s white Corvette in January 2000 and discovered under the front passenger seat the white mother-of-pearl button missing from Joseph’s blouse. Bloodstains found in the Corvette matched Joseph’s deoxyribonucleic acid (DNA).
¶6 Following Yates’s arrest, the police developed additional evidence. On the day after the arrest, Christine Smith, a former prostitute, contacted the police to identify Yates as the person who had picked her up in Spokane in August 1998 and shot and robbed her in the back of his van. In May 2000, officers searched Yates’s black Ford van, in the back of which Yates had installed a homemade wooden platform bed covered with carpet. The carpet, padding, and underlying wood tested positive for blood (later identified as that of Ellis and Murfin),
¶7 Yates was ultimately charged in Spokane County Superior Court with 10 counts of first degree murder and 1 count of attempted first degree murder. On October 13, 2000, in exchange for the Spokane County Prosecuting Attorney’s agreement not to seek the death penalty, Yates pleaded guilty to the Spokane County crimes, as well as to two counts of first degree murder in Walla Walla County and one in Skagit County. His statement on plea of guilty did no more than acknowledge that he had committed with premeditated intent the murders listed in the amended information, which had provided nothing more than the names and dates of the murders. Yates was sentenced to 408 years in prison.
¶8 Prosecution of the Pierce County Murders. On July 17, 2000, the Pierce County Prosecuting Attorney filed an information charging Yates with the aggravated first degree murders of Mercer and Ellis. On each count, the State alleged three aggravating factors and a firearm enhancement. At the time the information was filed, the State also provided Yates with notice of its consideration of a special sentencing proceeding, inviting Yates to submit mitigation material to the prosecuting attorney. At Yates’s arraignment on October 31, 2000, he entered a plea of “not guilty,” and the court read the State’s notice of consideration of a special sentencing proceeding. The court entered an order extending until January 15, 2001, the State’s deadline for filing its notice to seek the death penalty, a notice that the State timely filed on January 12, 2001.
¶9 Opening statements were delivered on August 12, 2002, and the State rested its case-in-chief on September 11, 2002. The defense rested the following day. The jury found Yates guilty on both cоunts of first degree murder and likewise determined that, with respect to each count, the State had proved beyond a reasonable doubt the existence of all three aggravating circumstances. Additionally, the jury found that Yates committed the murders while armed with a firearm. After hearing the evidence and closing arguments in the special sentencing hearing, the jury returned a verdict for a death sentence. At sentencing, the court rejected Yates’s argument that his death sentence had to be served consecutively to the 408-year sentence imposed in Spokane County. Yates filed a timely notice of appeal.
ISSUES PRESENTED
A. Issues Raised by Defendant
1. As a result of the Pierce County Prosecuting Attorney’s contacts with the Spokane County Prosecuting Attorney during the preliminary plea negotiations in Spokane County, should Pierce County have been barred from seeking the death penalty for the two murders that Yates committed in Pierce County?
2. Did the trial court violate Yates’s right to a fair and impartial jury?
3. In jury instruction 20, did the trial court substantially lower the State’s burden
4. Did the State offer sufficient evidence to prove the three alleged “aggravating circumstances” beyond a reasonable doubt?
5. Did the second amended information fail to allege all of the elements of the crime of aggravated first degree murder?
6. Did the trial court deny the jury the opportunity to convict Yates of the lesser offense of first degree murder?
7. Did the trial court abuse its discretion regarding expert testimony?
8. Did the trial court abuse its discretion by admitting certain photographic evidence?
9. Did the trial court abuse its discretion by permitting the State to use exhibit 544, a large summary chart of the evidence that the State presented regarding the Spokane County and Pierce County crimes? 10. Did Yates meet his burden of proving that the prosecutor engaged in misconduct and that the misconduct prejudiced Yates’s right to a fair trial?
11. Did the trial court err in ordering Yates to serve the sentence imposed for the Pierce County murders concurrently with the sentence imposed for the Spokane County crimes?
B. Mandatory Death Sentence Review and Related Issues Raised by Defendant
1. Was there “sufficient evidence to justify the affirmative finding to the question posed by
2. Was the sentence of death “brought about through passion or prejudice”? (
3. Was the sentence of death “excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant”? (
4. Is Washington’s death penalty statute unconstitutional?
ANALYSIS
A. Issues Raised by the Defendant
¶10 1. Plea Bargaining. Yates claims that, in light of the Pierce County Prosecuting Attorney’s initial involvement in the Spokane County plea-bargaining process, Pierce County should have been barred from seeking the death penalty for the two murders that he committed in Pierce County. Yates contends that Pierce County’s decision to seek the death penalty violated the doctrines of equitable estoppel and fundamental fairness.
a. Equitable Estoppel
¶11 On January 23, 2002, Yates filed a motion arguing that Pierce County should be equitably estopped from seeking the death penalty. The court ordered an evidentia-ry hearing. Because the parties anticipated that Pierce County Executive John Ladenburg would be testifying about events that had occurred when he was Pierce County’s elected prosecutor, the court ordered that the eviden-tiary hearing he held before a visiting judge. After hearing testimony, Grays Harbor County Superior Court Judge Gordon Godfrey denied Yates’s motion and issued findings of fact and conclusions of law. Yates now assigns error to the denial of the motion and, in particular, to the trial court’s “ruling that absent a challenge to his plea agreement entered in Spokane County, Mr. Yates could not seek to prevent the State from pursuing the death penalty in this case.” Br. of Appellant at 2 (Assignments of Error 2-3). Yates also assigns error to findings of fact 4, 5(a) and (b), 11, and 12. Id. at 2-3 (Assignments of Error 4-7).
¶12 Factual Background. At the evidentiary hearing, the court heard testimony from Spokane County Prosecuting Attorney Steven Tucker, former Pierce County Prosecuting Attorney John Ladenburg, and others. The testimony (and the court’s unchallenged factual findings) established that Yates was arrested in Spokane County on April 18, 2000, and charged with the murder of Jennifer
¶13 After the WAPA conference, some media reports raised Ladenburg’s concern that Tucker was seriously considering a Yates plea bargain. According to the trial court’s finding, Ladenburg took the following action:
When it became apparent to the Pierce County Prosecutors Office that Mr. Tucker was anticipating plea negotiations which included the possible elimination of the death penalty a phone conference was arranged between Mr. Tuckеr, Mr. Ladenburg, and other death penalty familiar prosecutors .... During that call, Mr. Ladenburg expressed his disapproval of Mr. Tucker’s suggestion that he might plea bargain the death penalty in this case at this juncture. Mr. Ladenburg also told Mr. Tucker that if he was considering plea bargaining the death penalty Mr. Ladenburg would not allow Mr. Tucker to handle the Pierce County cases. During this phone call Mr. Ladenburg revoked any and all authority implied or otherwise that he had given to Mr. Tucker to prosecute or plea bargain the Pierce County murder cases that are the subject of this matter.
Id. (FF 4) (emphasis added). Ladenburg suggested that the call occurred within days of the WAPA conference. Tucker testified that it occurred on June 28. The trial court found that the discussions between Tucker and Yates’s attorney “became more ‘concrete’ ” at the end of June: “The window of time for these discussions was June 28 to July 17, 2000.” Id. (FF 2).
¶14 Despite the June phone call following the WAPA conference, “[o]n July 1, 2000 Mr. Tucker made the decision to proceed with a plea agreement with the defendant” and, on July 13, faxed to Ladenburg a draft plea agreement that included the Pierce County murders. Id. at 2746 (FF 6). Three days later, Tucker faxed a letter to Ladenburg “requesting written authorization to file the Pierce County cases in Spokane County.” Id. (FF 7). On the following day, Monday, July 17, 2000, Ladenburg notified Tucker by letter and voice mail that Pierce County would file its own cases in Pierce County. On that same day, Ladenburg’s office filed an information charging Yates with two counts of first degree murder with aggravating circumstances.
¶15 After the Pierce County charges were filed, Tucker and Yates’s attorney continued to negotiate a plea agreement for the 10 Spokane murders. Although the July 13 draft had required Yates to disclose the location of Melody Murfin’s remains and to assist in locating the .25 caliber handgun he had used in some of the murders, Yates did not disclose the location of Murfin’s remains until October 2000, and he “never provided any assistance in the location of the .25 caliber handgun.” Id. (FF 6). On October 13, 2000, three months after Tucker’s initial draft and the filing of the Pierce County charges, Yates and the Spokane County Prosecuting Attorney entered into a plea agreement. The
¶16 Analysis. The doctrine of equitable estoppel is grounded in the principle “that a party should be held to a representation made or position assumed where inequitable consequences would otherwise result to another party who has justifiably and in good faith relied thereon.” Wilson v. Westinghouse Elec. Corp.,
¶17 As a threshold matter, Yates has provided no authority supporting the extension of the doctrine of equitable estoppel into the realm of criminal prosecutions. No Washington case has applied the doctrine to criminal cases, and federal authority exists discrediting such an application. In United States v. Anderson,
¶18 We hold that a criminal defendant may not rely on equitable estoppel to challenge a plea agreement. Here, Yates attempts to use equitable estoppel to gain what amounts to specific performance of a promise allegedly made in the context of plea negotiations — that is, Pierce County’s alleged promise not to seek the death penalty for Yates’s murders of Mercer and Ellis. As this court recently held in State v. Bisson,
¶19 Even if we were to permit a defendant to rely on equitable estoppel to seek enforcement of a promise allegedly made during plea negotiations, Yates’s equitable estop-pel argument would be unavailing. The trial court properly concluded that Yates had failed to provide clear, cogent, and convincing evidence of the essential elements of an equitable estoppel claim against the government. CP at 2747 (Conclusion of Law (CL) l).
b. Fundamental Fairness
¶20 In addition to appealing the trial court’s denial of his equitable estoppel motion, Yates raises for the first time on appeal his claim that Pierce County’s decision to seek the death penalty violated the guaranty of fundamental fairness inherent in the due process clause of the Fourteenth Amendment. Yates’s argument is, in essence, that the doctrine of fundamental fairness entitles him to specific performance of Pierce County’s alleged promise to forgo the death penalty. Even if we were to assume that Pierce County had offered to forgo the death penalty in exchange for Yates’s guilty plea (and there is no evidence that Pierce County ever extended such an offer), the doctrine of fundamental fairness provides no basis for specific performance of that plea proposal.
¶21 In State v. Wheeler,
¶22 2. Jury Selection. Yates contends that the trial court violated his federal and state constitutional right to a fair and impartial jury by granting the State’s challenges to jurors 39, 52, and 74; by denying the defense’s challenges to jurors 9, 29, 100, and 120; and by disallowing the defense’s proposed voir dire questions regarding religious affiliation.
a. Trial Court’s Exclusion of Jurors 39, 52, and 74 for Cause
¶23 Yates contends that the trial court improperly granted the State’s challenges to jurors 39, 52, and 74. Under the Sixth Amendment to the federal constitution and article I, section 22 of the Washington State Constitution, a defendant has a right to an impartial jury. State v. Brown,
¶24 Because “a juror’s competency to serve impartially’ is a credibility determination that the trial court is necessarily in the best position to make, this court applies a deferential standard of review and will reverse the trial court’s determination only if the court has manifestly abused its discretion. State v. Rupe,
¶25 As a prospective juror in the case, juror 39 filled out the lengthy written questionnaire. She responded “[n]o” to the following question: “In your opinion, should death ever be impоsed as a sentence for punishment of a crime?” Confidential Juror Questionnaire (CJQ) 39, at 29. Asked to indicate “[w]hich of the following best describe [d] [her] view of the death penalty,” she marked the box “Opposed in every possible circumstance” Id. (emphasis added). She left blank the questions asking for the
Q And your firm belief that — your strong belief that the death penalty, you’re generally opposed to it, won’t affect your ability to follow his instructions; is that right?
A No.
Id. at 2282. It is unclear whether juror 39 was agreeing with defense counsel’s statement or responding negatively to the tag question “is that right?” The trial court followed up:
I need to understand your answers. . . .
. . . Would you ever vote for the death penalty?
A I want to say, because my beliefs says, no. I would do that if it has occurred, yes, if I’m supposed to, weighing all the evidence, yes.
Id. at 2282-83.
¶26 Weighing the State’s motion to excuse juror 39 for cause, the trial court pointed to her written responses that the death penalty should never be imposed and that she was “opposed in every possible circumstance.” Id. at 2286. The trial court granted the State’s motion: “I’m convinced that her ability is substantially impaired by her personal beliefs, and even in response to my question she drew upon her personal beliefs.” Id. Here, the trial court’s ruling was not a manifest abuse of discretion. The court weighed her written and oral responses before concluding that her personal views would substantially impair her ability to impose the death penalty.
¶27 Juror 52 responded “[n]o” to the following written question: “In your opinion, should death ever be imposed as a sentence for punishment of a crime?” CJQ 52, at 29. To describe her view of the death penalty, she checked the box “Generally opposed with very few exceptions.” Id. Asked to “state in greater detail [her] opinion about the death sentence,” she wrote, “I guess because I’ve been brought up in church we’re not to take a life.” Id. Similarly, her “best argument against the death penalty” was that “[n]o one has the right to take another life.” Id. at 30. In response to questions from the State, she explained that she was a lifelong member of the Church of God and Christ, which opposed ever taking a life. 35 VRP at 2403-04. When asked whether she could vote for the death penalty, she reiterated that her religious views made such a question uncomfortable for her: ‘Would I vote? That’s a hard thing, because it’s like going against what I’ve been taught to go against, to take a life.” Id. at 2410, 2412. However, under questioning by defense counsel, juror 52 responded affirmatively to a series of questions regarding civic duty and her ability to follow the law impartially. Id. at 2413-15.
¶28 The trial court granted the State’s motion to excuse juror 52 for cause. Id. at 2418. The court concluded that juror 52’s “religious beliefs and personal commitment are such that she would decline the death penalty in the case.” Id. While the trial court heard her responses to defense counsel’s structured questioning, the court reasonably
¶29 In her written responses, juror 74 unequivocally expressed her “[v]ery” strong opposition to the death penalty. CJQ 74, at 29. She stated that the death penalty should never be imposed and described her view of the death penalty by checking the box “Opposed in every possible circumstance.” Id. (emphasis added). She wrote that she did not “believe in the death penalty,” that a “person’s life [was] not [hers] to take,” and that there was “[n]o good argument” for the death penalty. Id. at 29, 30. In response to the State’s questioning, she affirmed her written answers and explained that her views, which she had held for “[m]ost of [her] adult life,” were based on a religious and philosophical belief “that if we cause another human being death, we come down to the level of that person.” 37 VHP at 2686. Juror 74 admitted that there was “probably” no possibility she could vote for the death penalty because “it would be a real difficult thing for [her] to do” and “would cause [her] an extreme amount of anxiety.” Id. at 2686-87. When defense counsel asked her if she could follow the court’s instructions impartially, her answer was equivocal: ‘Yeah, if I had to, probably.” Id. at 2687-88 (emphasis added).
¶30 The trial court’s decision to grant the State’s motion to exclude juror 74 for cause was plainly no abuse of discretion. In light of her emphatic written and oral statements, the court reasonably concluded “that her beliefs or opinions would substantially impair the performance of her duties as a juror.” Id. at 2691.
b. Trial Court’s Failure To Exclude Jurors 9, 29, 100, and 120 for Cause
¶31 Yates claims that the trial court abused its discretion when it denied his motions to excuse jurors 9, 29, 100, and 120 for cause. Because Yates exercised a peremptory challenge following the denial of each motion, none of the four prospective jurors was seated on his panel. Moreover, at the close of voir dire, Yates retained three unused peremptory challenges. CP at 3746. On these facts, Yates cannot establish a Sixth Amendment violation. In United States v. Martinez-Salazar,
c. Trial Court’s Ruling on Proposed Voir Dire Regarding Religious Affiliations
¶32 The scope of voir dire is within the trial court’s sound discretion. State v. Robinson,
¶33 Yates claims that the trial court erred when it refused to include the following proposed questions in the jurors’ written questionnaire:
1. What is your religious affiliation, if any?
2. What is the fundamental teaching of your religion?
3. What influence has religion had in your life?
4. Describe your religious beliefs or philosophy.
CP at 2827. Expressing reservations about the first question, the trial court rejected it, subject to “getting some additional information from [the defense] or the State on whether that direct question can be asked”; the court apparently received no supplemental information. 23 VRP at 1200 (emphasis added). Regarding the three additional questions, the trial court invited counsel to expand questions 102 and 103, which inquired into the effect of the jurors’ religious beliefs on their ability to impose the death penalty. See supra note 11. However, here again, nothing in the record suggests that the defense sought any modification of the two questions. 23 VRP at 1190-91, 1200-01. Additionally, the trial court expressly stated that counsel could “appropriate [ly] . . . ask follow-up questions” of any jurors who responded affirmatively to the question, “Do you have any religious or philosophical views which may cause you to feel uncomfortable sitting as a juror in a criminal case?” 32 VRP at 1791; CP at 3281 (emphasis added). The record shows that the attorneys were permitted to follow up on questionnaire responses regarding the effect of a juror’s religious beliefs on his or her ability to impose the death penalty. See, e.g., 35 VRP at 2403-04, 2408-15; 36 VRP at 2507. In some instances, defense counsel asked jurors directly about their notions of mercy. See, e.g., 33 VRP at 1971; 39 VRP at 2965, 3001; 40 VRP at 3244.
¶34 Because the trial court gave Yates ample latitude to explore the prospective jurors’ religious beliefs as they related to the death penalty, Yates cannot show that the trial court’s tentative rejection of his proposed question on religious affiliation “substantially prеjudiced” his rights to a fair jury. Frederiksen,
¶35 3. Jury Instruction on “Common Scheme or Plan.” Yates argues that the trial court substantially lowered the State’s burden of proof by improperly defining, in jury instruction 20, the aggravating circumstance of
¶36 Because
A “common scheme or plan” means there is a connection between the crimes in that one crime is done in preparation for the other.
A “common scheme or plan” also occurs when a person devises an overarching criminal plan and uses it to perpetrate separate but very similar crimes.
CP at 4106 (Jury Instruction 20). The court’s instruction and the State’s proposed instruction
There are two different situations wherein the “plan” exception to the general ban on prior bad acts evidence may arise. One is where several crimes constitute constituent parts of a plan in which each crime is but a piece of the larger plan. ... A simple example would be a prior theft to acquire a tool or weapon to perpetrate a subsequently executed crime. The other situation arises when an individual devises a plan and uses it repeatedly to perpetrate separate but very similar crimes.
Id. at 854-55 (emphasis added). Rejecting the notion that the prior act had to be causally connected to (and done in preparation for) the charged act, the Lough court concluded that under ER 404(b) the State, in order to prove the charged crimes of indecent liberties and attempted rape, was entitled to present evidence that the defendant had previously drugged and raped four other women in much the same manner. Id. at 855-61.
¶37 In the present case, Yates argues that the trial court erred when it defined “common scheme or plan” in
¶38 Additionally, the second of the Lough court’s alternative definitions of “common scheme or plan” comports with legislative intent. Were this court to adopt Yates’s narrow notion of the “common scheme or plan” aggravator, the court would necessarily be holding “that the legislature did not intend to enact an aggravating circumstance
¶39 Thus, we hold that in jury instruction 20 the trial court properly defined “common scheme or plan.”
¶40 4. Sufficiency of Evidence Regarding “Aggravating Circumstances.” Yates concedes that the evidence was sufficient to prove beyond a reasonable doubt that he murdered Mercer and Ellis with premeditated intent.
Mr. Yates has waited patiently for almost two years for me to say to you that he killed Melinda Mercer and Connie LaFontaine Ellis. He did.
We are in trial because the State, through the Pierce County prosecutor, has decided that these are not premeditated murders as Mr. Yates has pled guilty to in Spokane, but premeditated murder with aggravating circumstances.
50 VRP at 4366.
¶41 However, Yates argues that the State’s evidence was insufficient to prove beyond a reasonable doubt the existence of the three alleged “aggravating circumstances” — that is, that he committed the murders as “part of a common scheme or plan,” “in furtherance of . . . [r]obbery,” and “to conceal the commission of a crime.”
a. Commission of Murders as “part of a common scheme or plan” (
¶42 As discussed above, to prove the “common scheme or plan” aggravating factor, the State was required to show that Yates “devise [d] an overarching criminal plan and use[d] it to perpetrate separate but very similar crimes.” CP at 4106 (Jury Instruction 20). Relying on additional evidence from the Spokane murders,
¶43 Yates does not dispute the State’s evidence; rather, he rests his challenge on the unpersuasive contention that the trial court incorrectly defined “common scheme or plan” in jury instruction 20. Viewing the evidence in the light most favorable to the State, we hold that “any rational trier of fact could have found” that Yates’s murders of Mercer and Ellis were “part of a common scheme or plan.” Brown,
b. Commission of Murders “in furtherance of. . . Hobbery” (
¶44 Yates claims that the evidence was insufficient to establish that he committed the murders “in furtherance of . . . Hobbery.”
¶45 The State presented evidence that women engaged in prostitution typically require payment prior to the negotiated sexual act and that, because they are often robbed, they commonly hide their money in their shoes, brassieres, or underwear. 50 VRP at 4432-33. On the evening that Mercer was last seen, she was wearing a tank top, a brassiere, a floral skirt, shoes, a denim jacket, and a black coat, and she was carrying a purse. 55 VRP at 5326-28, 5344-45. However, when Mercer’s nude body was discovered the following day, her tank top, brassiere, shoes, and purse were missing, and no cash was found on or near her body Id. at 5385-86; 56 VRP at 5468. Similarly, Ellis’s body was found clothed in a blouse, jeans, and socks, but lacking undergarments; a single shoe was found some distance from the body, and no purse or money was found nearby. 57 VRP at 5752-54; 58 VRP at 5906-07. Additionally, the State provided evidence that Yates and his wife had money problems that prompted them to make periodic inquiries regarding Yates’s paychecks for National Guard duty. 58 VRP at 5831-33.
¶46 Viewed in the light most favorable to the State, the State’s circumstantial evidence could have persuaded a rational trier of fact that Yates murdered Mercer and Ellis in furtherance of robbery. The jury could have reasonably believed that Yates negotiated the price of a sexual act, paid up front, murdered the women, and then took their money, disturbing or taking articles of clothing in which the women were likely to have concealed their money.
c. Commission of Murders “to conceal the commission of a crime” (
¶47 Yates contends that the evidence was insufficient to support the third alleged aggravating factor — that he committed the murders of Mercer and Ellis “to conceal the commission of” the crime of patronizing a prоstitute.
¶48 Even when viewed in the light most favorable to the State, this circumstantial evidence is insufficient to prove that Yates murdered Mercer and Ellis to conceal the misdemeanor crime of patronizing prostitutes. If Yates had killed every prostitute he patronized, one could rationally infer that he intended to eliminate any evidence that he had committed the misdemeanor of patronizing prostitutes, but as the defense showed, Yates patronized other prostitutes without killing them.
¶49 In sum, the evidence was sufficient to prove to a rational trier of fact that Yates committed the murders of Mercer and Ellis as “part of a common scheme or plan” and “in furtherance of . . . [r]obbery.”
¶50 5. Sufficiency of Second Amended Information. Under Washington’s capital punishment statutes, the jury must make three factual determinations before the death penalty can be imposed. First, the jury must conclude that the State has proved beyond a reasonable doubt the elements of the substantive crime of first degree murder: “A person is guilty of murder in the first degree when... [w]ith a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person.”
¶51 The second amended information charged Yates with two counts of “the crime of Murder In The First Degree With Aggravating Circumstances.” CP at 1003-04. As to count I, the information specified that Yates “with premeditated intent to cause the death of another person, did shoot Melinda L. Mercer, thereby сausing the death of Melinda L. Mercer,” and it asserted that “aggravated circumstances exist, to-wit: the murder was committed in the course of, in furtherance of, or in immediate flight from the crime of robbery in the first or second Degree and/or defendant committed the murder to conceal the commission of a crime; and/or defendant killed more than one victim and the murders were part of a common scheme or plan during the period of May 1996 through October 1998.” Id. at 1003. The information cited
¶52 Seeking reversal of his convictions, Yates asserts for the first time on appeal that the State’s second amended information violated the well-settled constitutional requirement that “all essential elements of the crime must be included in the charging documents.” State v. Tandecki,
¶53 Yates’s first two claimed defects concern the adequacy of the information’s description of two of the three alleged aggravators. Yates argues that the aggravators themselves are elements of the charged crime and that, consequently, the information should have specified the elements of the underlying aggravating crime of first or second degree robbery and should have defined the term “common scheme or plan.”
¶54 As to Yates’s third claimed defect (the information’s failure to allege the absence of mitigating circumstances), we have previously held that the absence of mitigating circumstances is not an essential element of the crime of aggravated first degree murder:
The statutory death notice here is not an element of the crime of aggravated murder. Instead, the notice simply informs the accused of the penalty that may be imposed upon conviction of the crime. While we require formal notice to the accused by information of the criminal charges to satisfy the Sixth Amendment and art. I § 22, we do not extend such constitutional notice to the penalty exacted for conviction of the crime.
¶55 We reject Yates’s claim that the second amended information was constitutionally inadequate. Adhering to our prior holdings in Thomas, Brett, and Clark, we conclude that the information apprised Yates of the charges against him by defining the base crime of first degree murder and setting forth the three alleged aggravators.
¶56 6. Jury Instruction on First Degree Murder. The court’s instructions included a “to convict” instruction for each of the two counts of first degree murder. The instructions provided that, “[t]o convict the defendant of the crime of murder in the first degree,” the State must prove five elements beyond a reasonable doubt: that Yates killed Mercer and Ellis, that he acted with intent to cause the deaths, that the intent was premeditated, that Mercer and Ellis died as a result of Yates’s acts, and that the acts occurred in this state. See CP at 4099, 4108 (Jury Instructions 13, 22). As to each count, the jury returned a verdict form stating that it found Yates guilty of the crime of first degree murder. See id. at 4163 (Verdict Form A Count I (Melinda Mercer)); id. at 4167 (Verdict Form B Count II (Connie Ellis)). Immediately following each of the “to convict” instructions on first degree murder were instructions on the State’s burden of proving beyond a reasonable doubt the existence of any or all of the three alleged “aggravating circumstances.” See id. at 4100, 4109 (Jury Instructions 14, 23). Those instructions made it clear that the jury’s determination regarding aggravators was necessary only “ [i]f you find the defendant guilty of premeditated murder in the first degree.” Id. Just as the jury had to return a verdict form regarding each of the “to convict” instructions, the jury was required to return spеcial verdict forms setting forth its unanimous determinations regarding each of the three “aggravating circumstances” on the two counts. See id. at 4164-65, 4168-69. For both the “to convict” instruction on first degree murder and the instruction on the alleged aggravators, the court relied on the Washington Pattern Jury Instructions: Criminal. See 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 26.02, 30.03 (2d ed. 1994).
¶57 Yates contends that the trial court erred in declining to give his proposed jury instruction explicitly labeling first degree murder a “lesser crime” included in the charged crime of aggravated first degree murder. CP at 4030. Yates’s proposed instruction stated that “[t]he crime of premeditated first degree murder with aggravating circumstances necessarily includes the lesser crime of premeditated first degree murder,” and the instruction went on to explain that, “[w]hen a crime has been proven against a person and there exists a reasonable doubt as to which of two or more crimes that person is guilty, he or she shall be convicted only of the lowest crime.” Id. Yates argues that by failing to adopt this instruction the trial court violated the Eighth Amendment under Beck v. Alabama,
¶58 7. Expert Witnesses. Yates argues that the trial court abused its discretion by admitting the expert testimony of FBI (Federal Bureau of Investigation) Agent Mark Safarik regarding crime scene analysis, and by permitting Lynn Everson to testify as an expert regarding the subculture and practices of women who work in prostitution. Yates also contends that the trial court erred by withholding funding for his proposed defense expert on prostitution.
a. Safarik’s Testimony
¶59 Under ER 702, the court may permit “a witness qualified as an expert” to provide an opinion regarding “scientific, technical, or other specialized knowledge” if such testimony “will assist the trier of fact.” The two key criteria for admission of expert testimony are a qualified witness and helpful testimony. State v. Cauthron,
¶60 The trial court found that Safarik was a qualified expert “in the fields of crime scene investigation, analysis, and linkage assessment” and that his testimony “[would] be helpful to the jury in understanding crime scene evidence, signature and linkage assessment.”
¶61 Even if we were to determine that the admission of Safarik’s testimony amounted to an abuse of discretion, we would conclude that the trial court’s evidentiary decision was harmless. Where evidence is improperly admitted, the trial court’s error is harmless “if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole.” State v. Bourgeois,
b. Everson’s Testimony
¶62 Yates contends that the trial court erred in permitting Lynn Everson to testify as an expert on prostitution. Yates argues, first, that Everson’s practical experience was insufficient to qualify her as an expert. Working for the Spokane Regional Health District, Everson had gained 13 years of experience providing outreach services to prostitutes; she worked in the needle exchange program and personally provided prostitutes with food, clothing, condoms, and treatment referrals. She had worked with approximately 300 individuals involved in prostitution. Yates argues that, because Everson had never been a prostitute herself or accompanied a prostitute on a job, the trial court erred in finding her qualified under ER 702. But an expert need not have acquired his or her knowledge through such personal involvement. See State v. Campbell,
¶63 Yates’s second argument is that Everson’s testimony constituted improper “habit” evidence under ER 406.
¶64 Even if the admission of Everson’s testimony were regarded as an abuse of discretion, the error was harmless. See Bourgeois,
c. Defense’s Requested Funding for Expert
|65 Yates also contends that the trial court erred by withholding funding for a defense expert on prostitution. CrR 3.1(f) governs the appointment of a defense expert at public expense:
(1) A lawyer for a defendant who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense in the case may request them by a motion to the court.
(2) Upon finding the services are necessary and that the defendant is financially unable to obtain them, the court . . . shall authorize the services.
(Emphasis added.) As this court stated in State v. Young,
¶66 Yates failed to demonstrate that his proposed expert was “necessary to an adequate defense.” CrR 3.1(f)(1). After the State notified the defense of its intention to call Everson as an expert on the practices of women engaged in prostitution, the defense brought an ex parte motion under CrR 3.1(f), requesting funds for its own expert on prostitution. Defense counsel stated that the defense “wanted Mr. Parker ... to give [his] insight into women’s behavior that are working on the street.” 16 VRP at 852. Counsel explained that “it relates to the aggravator primarily of robbery, and it addresses whether or not women typically carry purses, carry money, those kinds of things.” Id. Responding to a question from the court, counsel stated that she did not believe that “there [was] a lot of difference in opinion in general about.. . how these women operate,” and she acknowledged that she had “already disclosed to [the State] that [Mr. Parker’s] testimony would be similar to” the testimony of the State’s expert. Id. at 853, 854-55. Expressing a desire to have “more information” regarding the special contributions that the defense’s proposed expert would make, the court entered an order stating that the defense’s funding request was “[d]enied at this time subject to further hearing or information.” 16 VRP at 854-55; CP at 2511. The record is devoid of any further information that the defense provided concerning the anticipated testimony of its proposed expert on prostitution. Absent any evidence that his proposed expert would have provided “services necessary to an adequate defense,” CrR 3.1(f)(1), Yates cannot meet his burden of showing that the trial court abused its discretion and substantially prejudiced his defense. Young,
¶67 The trial court did not abuse its discretion by admitting the expert testimony of Safarik and Everson under ER 702 and by denying the defense’s motion under CrR 3.1(f) for public funds to retain its proposed expert on prostitution.
a. Autopsy Photographs
¶69 Autopsy photographs are admissible if they are “[a]ccurate,” and “if their probative value outweighs their prejudicial effect.” State v. Crenshaw,
¶70 Yates challenges the trial court’s admission of exhibit 325, a photograph showing the medical examiner’s incisions in the arm of Spokane victim Darla Scott. The incisions revealed subcutaneous puncture marks, demonstrating that Scott had been an intravenous drug user. The evidence was relevant to the State’s theory that, as an element of Yates’s overarching plan, he selected women with serious drug addictions. Because Everson had simply testified that Scott had an “issue” with street drugs and State’s witness Michael Mitchell had similarly speculated that Scott “was hooked on crack cocaine,” the medical examiner’s evidence of Scott’s intravenous drug use was relevant and was not cumulative. 50 VRP at 4452; 52 VRP at 4868.
¶71 Yates likewise argues that exhibit 444, a photograph showing the medical examiner’s incision in Ellis’s leg, was improperly admitted. However, because Ellis’s body was “extensively decomposed and skeletonized,” the photograph offered essential evidence that blood and muscle were available from which viable DNA material could be extracted. 26 VRP at 1483; 58 VRP at 5907. The DNA extracted from Ellis’s remains matched blood found in Yates’s Ford van and thus supplied a critical piece of evidence identifying Yates as Ellis’s killer.
¶72 The third autopsy photograph that Yates has challenged, exhibit 604, shows that the innermost plastic bags tied around Mercer’s head were perforated and drawn partially into her mouth. The photograph provided circumstantial evidence that Mercer was alive when Yates encased her head in four plastic grocery bags. The circumstantial evidence was relevant to, and probative of, Yates’s premeditated intent to kill Mercer. Yates arguably tied plastic bags over his victims’ heads not only to minimize blood evidence in his vehicles but also to ensure that his victims died from the wounds inflicted with his small caliber handguns.
¶73 The trial court did not abuse its discretion by admitting the three challenged autopsy photographs. Their “probative value” outweighed the “danger of unfair prejudice.” ER 403.
b. “In-Life” Photographs of Spokane County Victims
¶74 Yates contends that the trial court erred by admitting “in-life” photographs of the Spokane County victims. Following a pretrial hearing on the admissibility of the photographs, the trial court reserved its final ruling in order to review their relevance to the “common scheme or plan” aggravator and to afford the parties further opportunity to brief the issue. No further briefing was provided, and at trial all but 2 of the 10 photographs were admitted without a defense objection. The State concedes that the defense arguably preserved an objection to the “in-life” photographs of Oster and Derning.
¶75 In prior decisions, we have recognized that, because the State bears the burden of proving a victim’s identity, the trial court’s admission of “in-life” photographs of the victim was not an abuse of discretion. In Pirtle, we held that “in-life” photographs of the victims were relevant to prove identity
¶76 Here, we must ask the same two questions that the Pirtle court asked — whether the “in-life” photographs are relevant under ER 401 and, if so, whether they are more probative than prejudicial under ER 403. We conclude, as did the Pirtle court, that the trial court’s admission of the “in-life” photographs of the Spokane victims was not an abuse of discretion. For purposes of the admissibility inquiry, the fact that the photographs here are those of the Spokane victims and not of Mercer and Ellis is a distinction without a difference, given that the trial court’s admission of evidence of the Spokane crimes under ER 404(b) has not been challenged. As to the relevance of the “in-life” photographs, the State argues that they were relevant to prove an element of Yates’s overarching plan to murder women who were generally similar in appearance. Yates’s victims were white or light-skinned women with dark hair — “none of the women were blond,” and “[n]one of the women were African-Americans.” 65 VRP at 6952. The State maintains that, in addition to demonstrating an element of the common plan, “the in-life photographs . . . assisted the jury in processing what would otherwise appear to be repetitive testimony by attaching a face to the discovery and autopsy of each of the many bodies.” Br. of Resp’t at 154. For example, in addition to the “in-life” photograph of victim Oster, the State introduced (without objection at trial or challenge on appeal) a photograph of the recovery site of Oster’s body, three photographs of her body at that site, and eight autopsy photographs (including photographs of the plastic bags from Oster’s head, a close-up of bullet holes, and a “Defect in Skin”). CP at 4462-63 (listing Exs. 355-63, 365-67). Similarly, along with the “in-life” photograph of Derning, the trial court admitted the State’s proffered photographs (without a defense objection) of the recovery site of Derning’s body, her body at that site, and “Defects to Head.” Id. at 4465 (listing Exs. 423-26, 428-30). Applying the Pirtle court’s reasoning, this court cannot conclude that the challenged “in-life” photographs of Oster and Derning “could have added much additional prejudice,” in light of the graphic “after death” photographs that were admitted without objection.
¶77 The admission of the “in-life” photographs of Oster аnd Derning was not an abuse of discretion. The photographs were relevant to the State’s proof of a “common scheme or plan” and assisted the jury in assimilating the evidence. Under the Pirtle court’s ER 403 analysis, due to the admission of more graphic postmortem photographs, the potential “unfair prejudice” arising from the “in-life” photographs would be minimal and would not outweigh their “probative value.”
c. Photographs of Victims’ Possessions
¶78 Yates argues that the trial court improperly admitted exhibit 339, a photograph of victim Shawn Johnson’s car. The car was recovered from the East Sprague corridor, but the photograph was taken at the police vehicle processing station. The State explains that, on the night of Johnson’s disappearance,
¶79 Yates also claims that the trial court abused its discretion by admitting photographs of a jacket found in Yates’s house. The Mickey Mouse jacket belonged to Christine Smith, the woman whom Yates attempted to murder but who managed to escape after being shot in the head while performing oral sex on Yates in the back of his van. Two photographs show the jacket hanging in the closet, and the third and fourth photographs are of the front and back of the jacket. While Yates is technically correct that Smith left the jacket behind after he shot her, the photographs support the State’s position that Yates kept Smith’s property, an action consistent with his alleged robbery of his murder victims. The trial court did not abuse its discretion in admitting the photographs of Smith’s jacket hanging in Yates’s closet.
¶80 We find no abuse of discretion in the trial court’s admission of the three contested autopsy photographs, the “in-life” photographs of the Spokane victims, and the photographs of Smith’s jacket.
¶81 9. Summary Chart of Evidence. This court has recognized that “[t]he use of demonstrative or illustrative evidence is to be favored.” Lord,
¶82 Yates argues that the trial court improperly permitted the State to use exhibit 544, a large summary chart of the State’s evidence regarding the Spokane County and Pierce County crimes. The chart, approximately IV2 feet by 13 feet, listed the names of the 13 victims horizontally across the top, with 15 categories of evidence listed vertically down the left side.
¶83 Yates does not assert that the trial court failed to apply the safeguards set forth in Lord, but he claims that the chart was nonetheless inaccurate in three particulars.
¶84 Yates has failed to show that the chart was not “substantially accurate.” Lord,
¶85 10. Prosecutorial Misconduct. Yates claims that the prosecutor made several improper remarks during questioning and closing argument in the guilt phase, as well as during closing argument in the penalty phase. To prevail on his claim of prosecutorial misconduct, Yates bears the burden of proving, first, that the prosecutor’s comments were improper and, second, that the comments were prejudicial. State v. McKenzie,
a. Allegations of Misconduct in Guilt Phase
¶86 Yates first complains that the prosecutor committed misconduct by questioning witness Scott Carlson, the purchaser of Yates’s Ford van, about Yates’s ownership of guns and his interest in target shooting. Carlson testified that he and Yates “discuss [ed] a mutual hobby of target shooting” and that Yates said he had taught his daughters “how to shoot a .22 because that’s a quite easy gun for young people.” 58 VRP at 5884-85, 5889-93. Yates seems to argue that, by questioning Carlson about Yates’s enjoyment of target shooting and his use of the .22 caliber firearm, the prosecutor was improperly commenting on Yates’s constitutional right to possess a legal firearm. The argument is meritless. As stated in State v. Hancock,
¶87 Yates next contends that the prosecutor made an improper, prejudicial comment during cross-examination of defense witness Danielle Gorder, a woman who worked as a prostitute in Spokane. On direct examination, Gorder testified that Yates had used her services four to seven times in 1999 and that he was a “good date” who paid well. 66 VRP at 7067, 7071. The following exchange occurred on cross-examination:
Q And your gut feeling was that that man over there, Robert Yates, was a good guy to go with?
A Yeah.
Q And you went with him?
A Yes, ma’am, I did.
Q You are lucky to be alive, aren’t you?
Id. at 7093. Defense counsel objected immediately, asking the court to strike the comment as “argumentative,” and the court responded: “That question and response will be stricken from the record, counsel.” Id. The defense requested a mistrial, but after taking the matter under advisement, the court denied the motion, concluding that its instruction had cured the improper remark.
¶88 We find no error in the trial court’s determination that the prosecutor’s remark was improper though not prejudicial. The improper remark was promptly and clearly “stricken from the record,” and the court later instructed the jurors that they must “disregard any evidence ... that was stricken by the court.” CP at 4086 (Jury Instruction 1). Moreover, to declare the improper remark prejudicial, we would have to conclude that “there [was] a substantial likelihood the misconduct affected the jury’s verdict.” Brown,
¶89 Yates contends that the prosecutor made two improper, prejudicial comments in rebuttal closing argument. First, Yates maintains that in the following remarks the prosecutor misstated the law regarding the crime of robbery:
And it can be done with — even though it’s without their knowledge, provided the force prevented them from knowing it.
One way to do that is if a person goes into a market and pulls what appears to be a gun on the clerk[,] scares the dickens out of them and they run away and then the robber helps themselves to the till, well, that’s still robbery, even though the person who ran didn’t know that they actually took the money. It’s still robbery.
So, too, you can rob someone you just murdered. You prevented their knowledge of it by killing them, and it’s still robbery.
70 VRP at 7576-77. Defense counsel “object[ed] to the last statement that you can — robbery is just taking from the dead.” Id. at 7577. Overruling the objection, the trial court stated that it had “instructed the jury on the law” and that “[t]his is argument.” Id. We likewise conclude that the remark was not improper. The prosecutor’s argument comported with jury instruction 15, which provided, in part, that “[t]he taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom it was taken, such knowledge was prevented by the use of force or fear.” CP at 4101; see also State v. Craig,
¶90 Yates also argues that, at the end of rebuttal closing argument, the prosecutor committed misconduct by disparaging defense counsel:
The lawyers have had their say, and now you’ll have your say. We thank you for your patience during this lengthy trial. On behalf of all of the decent and law-abiding citizens of the state whom we are honored to represent—
... we thank you for your service. And on our behalf, we now ask you please return verdicts of guilty as charged. Thank you.
70 VRP at 7587-88. Defense counsel interposed an objection, but the trial court permitted the prosecutor to complete the remark. Defense counsel moved immediately for a mistrial or a curative instruction, but finding in the remarks no adverse implication about the defense attorneys, the court ruled that neither a mistrial nor a curative instruction was warranted.
¶91 Yates’s reliance on State v. Gonzales,
b. Allegations of Prosecutorial Misconduct in Penalty Phase
¶92 Yates claims that the prosecutor committed misconduct in argument during the penalty phase. Thе prosecutor attacked the sincerity of Yates’s religious conversion, a conversion that was the centerpiece of Yates’s allocution. Observing that Yates’s “claimed conversion occurred after his arrest,”
¶93 Specifically, Yates claims that in the following remarks the prosecutor improperly commented on Yates’s Sixth Amendment right to counsel: “Now, you’ve heard from ... one of his pastors that he might have revealed this information [the location of Murfin’s body] to his lawyers. The defendant said as much to you. That does not absolve him of the despicable decision ... to hold onto that information until such time as it might work to his advantage. ... Her location was not revealed until... six months after his arrest. Is that remorse on his part? Can he pass that off to his lawyers? No, he cannot.” Id. at 8223-24. Yates does not explain how the jury could have construed the remarks as an implication that, because he had counsel, he was guilty, a fact not at issue in the penalty phase. When placed in the context of the prosecutor’s general attack on the believability of Yates’s conversion and remorse, the clear point of the prosecutor’s comment was that, if, as Yates claimed, he had “c[o]me back to the love of God in Jesus Christ,” id. at 8198, he would not have made Murfin’s family wait six months to reclaim her remains from his yard. The remark was not an improper comment on Yates’s right to counsel.
¶94 Second, Yates contends that, by criticizing his refusal to reveal further information about his crimes, the prosecutor was improperly commenting on his Fifth Amendment right to remain silent. However, as this court held in State v. Clark,
¶95 Yates also claims that the prosecutor improperly denigrated defense counsel by suggesting to jurors that the defense was “playing the religion card.” 77 VRP at 8230-31. The prosecutor argued that “the defense
¶96 Finally, Yates argues that the following comment made in the prosecutor’s rebuttal closing argument was improper and prejudicial:
He was sentenced for the Spokane murders two years ago, 1998.... Assume that he lives 50 years beyond the time he was sentenced in 2000, so he lives to be 98 years old. In Spokane, he was sentenced for 13 murders and one attempted murder. Divide that number, 14 into 50. That’s a little over three years for each murder. Is human life that cheap?
Id. at 8300. The defense immediately objected, and the trial court sustained the objection: “Sustained. That’s improper argument. Jury is to disregard that argument.” Id. Yates argues on appeal that the prosecutor’s improper remark was “designed to appeal to the passion and prejudice of the jury.” Br. of Appellant at 197. We conclude that the trial court’s unequivocal response to defense counsel’s objection cured the improper remark. See Grisby,
¶97 In sum, Yates has failed to show that the prosecutor committed misconduct in the guilt or penalty phases. Of the comments that the defense challenges, only the prosecutor’s rhetorical question to defense witness Danielle Gorder— ‘You are lucky to be alive, aren’t you?” 66 VRP at 7093— was clearly improper, but that remark’s prejudicial effect, assessed in the context of the evidence in the case, is negligible.
¶98 11. Concurrent Sentences for Pierce County and Spokane County Crimes. Yates argues that the trial court erred in ordering him to serve the sentence imposed in the Pierce County case concurrently with the 408-year sentence imposed for the Spokane County convictions. Yates rests his argument on a provision in the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. The State argues that, if the SRA sentencing procedures apply to capital sentencing proceedings, Yates is relying on the wrong subsection of
¶99 Yates contends that under
(1)(a) Except as provided in (b) or (c) of this subsection, whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently. Consecutive sentences may only be imposed under the exceptional sentence provisions ofRCW 9.94A.535.
“Same criminal conduct,” as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim. This definition applies in cases involving vehicularassault or vehicular homicide even if the victims occupied the same vehicle.
(b) Whenever a person is convicted of two or more serious violent offenses arising from separate and distinct criminal conduct, the standard sentence range for the offense with the highest seriousness level underRCW 9.94A.515 shall be determined using the offender’s prior convictions and other current convictions that are not serious violent offenses in the offender score and the standard sentence range for other serious violent offenses shall be determined by using an offender score of zero. The standard sentence range for any offenses that are not serious violent offenses shall be determined according to (a) of this subsection. All sentences imposed under (b) of this subsection shall be served consecutively to each other and concurrently with sentences imposed under (a) of this subsection.
(Emphasis added.) Subsection (1)(a) explains how “a person is to be sentenced for two or more current offenses”— offenses for which offender scores are “being computed” “on the same date.”
¶100 The State argues (and the sentencing court agreed) that, if any SRA provisions are to apply to Yates’s sentencing in Pierce County, the only provision that could apply is
¶101 Under the State’s theory, however, subsection (3) does fit Yates’s situation:
[w]henever a person is sentenced for a felony that was committed while the person was not under sentence for conviction of a felony, the sentence shall run concurrently with any felony sentence which has been imposed by any court in this or another state or by a federal court subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that they be served consecutively.
¶102 We reject Yates’s argument that
¶103 Thus, we conclude that the trial court did not err in requiring that the Pierce County sentence be served concurrently with the Spokane County sentence.
B. Mandatory Death Sentence Review and Related Issues Raised by Defendant
¶104
(a) Whether there was sufficient evidence to justify the affirmative finding to the question posed byRCW 10.95.060(4) ; and
(b) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. . . ;
(c) Whether the sentence of death was brought about through passion or prejudice; and
(d) Whether the defendant was mentally retarded within the meaning ofRCW 10.95.030(2) .
¶105 1. Insufficiency of Mitigating Circumstances To Merit Leniency. At Yates’s special sentencing proceeding, the court instructed the jury that “the State has the burden of proving ... beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency.” CP at 4444 (Jury Instruction 3 (Special Sentencing Hr’g)). The court defined “mitigating circumstance” for the jury as “a fact about either the offense or about the defendant which in fairness or in mercy may be considered as extenuating or reducing the degree of moral culpability or which justifies a sentence of less than death, although it does not justify or excuse the offense.” Id. at 4446 (Jury Instruction 5 (Special Sentencing Hr’g)). Of the eight nonexclusive statutory factors that a jury may consider as mitigating circumstances, only one was specifically mentioned injury instruction 5: “Whether there is a likelihood that the defendant will pose a danger to others in the future.” Id.;
Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?
CP at 4448, 4445 (Jury Instructions 7, 4 (Special Sentencing Hr’g));
¶106
¶107 Viewing the evidence in the light most favorable to the State, we conclude that the Yates jury could have rationally found the mitigating circumstances insufficient to justify a grant of leniency. Yates’s mitigation evidence consisted of the testimony of family members, friends, and former high school teachers and coaches. Correctional officers from the Spokane County and Pierce County jails testified regarding Yates’s behavior in custody, and the jury also heard testimony from pastors and fellow inmates familiar with Yates’s postarrest religiosity Additionally, in his allocution, Yates apologized to the victims’ families and described his religious conversion. The State presented additional evidence of Yates’s criminal history, informing the jurors that Yates murdered Patrick Oliver and Susan Savage in 1975 and Stacy Hahn in 1988. The State also elicited testimony from relatives of Mercer and Ellis. The jurors could have reasonably been persuaded, as the State argued in rebuttal closing argument, that no leniency was merited for one whose upbringing had been “idyllic” but who had nevertheless killed 15 people and tried to kill a 16th. 77 VRP at 8292. The jurors may well have shared the State’s viewpoint that Yates’s postarrest conversion was self-serving and his allocution offensively self-indulgent. Id. at 8296-97.
¶108 We hold that “there was sufficient evidence to justify the affirmative finding to the question posed by
¶109 2. Passion or Prejudice.
¶110 We conclude that the jury’s verdict in the special sentencing proceeding was not “brought about through passion or prejudice.”
fill 3. Proportionality. In its mandatory review of each case in which the death penalty is imposed, this court must
a. Consideration of Crime and Defendant
¶112 In the Cross opinion, which was filed just one year ago, this court followed the customary four-factor approach and concluded that Cross’s death sentence was not “disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”
¶113 Regarding the first factor, the nature of the crime giving rise to the death sentence, Yates’s crimes were similar to Cross’s. First, while Cross murdered three women (his wife and two of her daughters), Yates murdered two, and as the Cross court pointed out, death sentences have previously been handed down in cases with fewer than three victims.
¶114 The second factor in proportionality review, the aggravating circumstances proved at trial, is closely allied to the first factor, the nature of the crime. Cross’s conviction for aggravated first degree murder was based on the “common scheme or plan” aggravator defined in
¶[115 To satisfy the requirement in
“Stenson was not lacking in normal intelligence, was not youthful, and was not the victim of a tragic background. We have compared this case and all the circumstances of the Defendant and his crime with other first degree aggravated murders which have and have not received the death penalty. Given the brutal, calculated nature of the crimes, the motivation of financial gain, and the lack of mitigating circumstances, we conclude the sentence was neither excessive nor disproportionate.”
Id. at 229 (quoting Stenson,
b. Related Constitutional Challenges
¶116 Yates raises additional issues related to the proportionality review. First, Yates argues that chapter 10.95 RCW is unconstitutional because it grants county prosecutors too much discretion in determining when to seek the death penalty. This court has repeatedly rejected the argument that prosecutorial discretion violates equal protection. See Cross,
¶117 Second, Yates argues that Washington’s death penalty statute is arbitrary and thus violates the Eighth Amendment prohibition against “cruel and unusual punishments.”
¶118 Third, pointing to his own sentence in Spokane County and to Gary Ridgway’s sentence in King County, Yates argues that his death sentence in Pierce County was disproportionate, freakish, wanton, and random. This argument is a more specific version of the two preceding arguments. That Yates was permitted to avoid the death penalty in Spokane County by pleading guilty to 13 counts of first degree murder and 1 count of attempted first degree murder was the product of the Spokane County Prosecuting Attorneys exercise of discretion. Likewise, the King County prosecutor exercised his discretion and allowed Ridgway to avoid a death sentence by pleading guilty to 48 counts of aggravated first degree murder. The effect of the Ridgway plea agreement on this court’s proportionality review was an issue squarely before the court in Cross. There, the majority rejected the view that one prosecutor’s discretionary decision could render chapter 10.95 RCW unconstitutional: “Ridgway’s abhorrent killings, standing alone, do not render the death penalty unconstitutional or disproportionate. Our law is not so fragile.” Cross,
¶119 Finally, Yates argues that this court cannot meaningfully engage in the proportionality review mandated in
¶120 We conclude that Yates’s death sentence was not “excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”
CONCLUSION
¶121 We conclude that Yates has failed to establish reversible error, and thus we affirm his convictions and sentence.
Alexander, C.J., and C. Johnson, Madsen, Bridge, and Fairhurst, JJ., concur.
Notes
The facts relevant to particular issues will be set forth in more detail in the analysis section below.
The 10 Spokane victims (with the dates their bodies were found) were Shannon Zielinski (June 14, 1996), Jennifer Joseph (Aug. 26, 1997), Heather Hernandez (Aug. 26,1997), Darla Scott (Jan. 5,1997), Shawn L. Johnson (Dec. 18, 1997), Laurie Wason (Dec. 8, 1997), Sunny Oster (Feb. 8, 1998), Linda Maybin (Apr. 1, 1998), Michelyn J. Derning (July 7, 1998), and Melody Murfin (who disappeared in 1998 but whose body was not recovered until 2000 after excavation at Yates’s house). See Br. of Resp’t at 21.
Joseph was shot with a .22, the remaining nine with a .25.
Johnson, Wason, Oster, Maybin, and Murfin (see supra note 2).
Scott and Derning (see supra note 2).
Just as Joseph’s blood was found in Yates’s white Corvette and Ellis’s and Murfin’s blood in the Ford van, Zielinski’s blood was found on the carpet of Yates’s Chevrolet van.
Specifically, the trial court concluded that Yates had failed to meet his burden regarding the third, fourth, and fifth equitable estoppel elements set forth above. CP at 2747-48 (CL 2, 4). Yates did not assign error to conclusions of law 2 and 4; rather, his general assignments of error appear to pertain to conclusions of law 3 and 5. See Br. of Appellant at 2 (Assignments of Error 2-3).
Under Wheeler, Yates’s only avenue for gaining specific performance of the alleged proposal is to prove that Pierce County in fact made such a proposal and that he detrimentally relied on it. Just as Yates was unable to establish the first three elements of his equitable estoppel claim — i.e., that he was injured by Pierce County’s reversal of its alleged offer to plea bargain the death penalty — he failed to show that Pierce County made such a proposed and that he detrimentally relied on it.
Yates relies on Hance v. Zant,
The dissent contends that the United States Supreme Court’s most recent opinion regarding death qualification does not support juror 39’s dismissal. Dissent at 803 (discussing Uttecht,
For example, question 102 provided as follows: “Do you hold beliefs or convictions, whether moral or religious or philosophical, that would cause you to automatically vote against a death sentence without regard to any evidence that might be presented at the trial? ... Do you belong to any groups that have taken a position on the death penalty? ... If yes, what group(s)?” CP at 3302. Question 103 asked the converse question: “Do you hold beliefs or convictions, whether moral or religious or philosophical, that would cause you to automatically vote in favor of a death sentence if you found evidence for a guilty verdict for Aggravated First Degree Murder?” Id.
“There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person.”
The State proposed the following instruction:
A “common scheme or plan” means there is a connection between the crimes in that one crime is done in preparation for the other or where crimes are part of a general criminal purpose.
A general criminal purpose occurs when a person devises a general plan, and uses it to perpetrate separate but very similar crimes.
CP at 3974 (State’s Proposed Jury Instruction 17).
For an application of the “common scheme or plan” aggravator to a serial killer, see “Statement of Defendant on Plea of Guilty,” at 7, State v. Ridgway, No. 01-1-10270-9 (King County Super. Ct., Wash.), available at http.7/www.metrokc .gov/kcsc/rulings/ridgway.htm: “I have discussed with my attorneys the ‘common scheme or plan’ aggravating circumstance charged in all these murders. I agree that each of the murders I committed was part of a ‘common scheme or plan.’ The plan was: I wanted to kill as many women I thought were prostitutes as I possibly could. . . . Another part of my plan was where I put the bodies of these women.”
“A person is guilty of murder in the first degree when . . . fwjith a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person.”
On a pretrial motion from the State, the trial court ruled that evidence of Yates’s 10 Spokane County murders was “relevant to prove identity [and motive] of the murderer of Ms. Mercer and Ms. Ellis” and “to prove that the murderer of Ms. Mercer and Ms. Ellis acted with premeditation.” CP at 3073; see ER 404(b) (stating that “[e]
See CP at 4099, 4108 (Jury Instructions 13, 22); CP at 4163 (Verdict Form A Count I (Melinda Mercer)); CP at 4167 (Verdict Form B Count II (Connie Ellis)).
See CP at 4100, 4109 (Jury Instructions 14, 23); CP at 4164-65 (Special Verdict Aggravating Circumstances Count I (Melinda Mercer)); CP at 4168-69 (Special Verdict Aggravating Circumstancеs Count II (Connie Ellis)).
See CP at 4445 (Jury Instruction 4 (Special Sentencing Hr’g)); CP at 4481 (Sentencing Verdict).
As noted above, this court has repeatedly held that no jury instruction defining “common scheme or plan” is warranted, since the phrase includes simple, easily understood terms. Brown,
Pursuant to
CP at 3243. “Linkage assessment involves analyzing crime scenes to determine if there are enough different and unique aspects to a behavior manifested at a crime scene to determine if the behavior at one crime scene is linked to another crime scene.” Br. of Resp’t at 130-31 (citing 65 VRP at 6846-47). Because Yates did not assign error to these findings, they are verities on appeal. State v. Hill,
Under ER 401, “ ‘[r]elevant evidence’ ” is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
In defense counsel’s opening statement, he acknowledged that Yates admitted murdering Mercer and Ellis.
“Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.” ER 406.
“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” ER 401.
Even if we were to conclude that the defense had properly preserved an objection to the “in-life” photographs of the other eight Spokane victims, the same analysis would apply, requiring the same result.
The categories were “(1) the date the victim was last seen, and the date the body was recovered, (2) the victim’s gender, (3) whether the victim had a history of prostitution and/or drugs, (4) the cause of death, (5) the bullet(s)/gun type, (6) whether Yates owned this type of weapon, (7) Yates’s method of contacting the victim, (8) whether plastic bags were found, (9) whether money was present or absent at the scene, (10) whether semen was found in the body, (11) whether the victim was transported, (12) whether the victim’s body was immediately found, (13) whether the victim’s clothing was removed/missing, (14) whether the victim’s blood was found on Yates’s property, (15) whether Yates pleaded guilty to the victim’s premeditated murder.” Br. of Resp’t at 159.
“Until God’s spirit working through the human agencies of law enforcement and our justice system woke me out of my spiritual blindness, I couldn’t see the enormous devastation I had created, the tremendous pain and suffering I had caused.” 77 VRP at 8197-98.
“For the purposes of this subsection, ‘similar cases’ means cases reported in the Washington Reports or Washington Appellate Reports since January 1,1965, in which the judge or jury considered the imposition of capital punishment regardless of whether it was imposed or executed, and cases in which reports have been filed with the supreme court under
See Furman v. Georgia,
32 State v. Gunwall,
Concurrence Opinion
¶122
(concurring) — For the most part, I concur with Justice Owens’ well reasoned opinion. However, while I agree that Robert Yates’ equitable estoppel argument should be rejected, I have considerable reservations about the sweeping scope of the majority’s statement that equitable estoppel may never be asserted by a criminal defendant against the State. Whatever the federal courts do, we may hold our State to a higher standard.
¶123 Estoppel helps ensure that our courts are courts of justice, not just of law. We should not hesitate to apply estoppel, even against the State, when justice so requires. See generally Dep’t of Ecology v. Campbell & Gwinn, LLC,
¶124 Restraint is appropriate, in part, because of our due respect for the agents of the executive branch, including prosecutors, and our due respect for the legislative branch. Our legislature has broadly vested county prosecutors with the power to prosecute violations of state law.
¶125 But from time to time, for whatever reason, a plea agreement may not fully reflect the reasonable expectation of the parties, and it may be unjust not to enforce the defendant’s understanding. In such a case, equitable estop-pel may provide us with the best vehicle to ensure that justice is done. Tо apply equitable estoppel against the government, Yates must prove by clear, cogent, and convincing evidence (1) that the State made a statement or act that is inconsistent with Pierce County’s pursuit of the death penalty, (2) that he relied upon this, (3) that he would be injured if the State is allowed to persist, (4) that equitable estoppel is necessary to prevent a manifest injustice, and (5) that application will not impair governmental functions. See Kramarevcky v. Dep’t of Soc. & Health Servs.,
¶126 In this case, after a full evidentiary hearing, a visiting judge found that Yates had failed to prove by clear, cogent, and convincing evidence that estoppel was appropriate. The judge found that the Pierce County prosecutor clearly communicated that any permission to negotiate the Pierce County
¶127 Finally, I respectfully disagree with the view expressed by my learned colleague Justice J.M. Johnson in his concurrence. Article I, section 22 of our state constitution grants rights to defendants. Among those rights is the right to be tried in the county where the crime was committed. Const. art. I, § 22. That is not some sort of exclusive, but waivable, grant of jurisdiction to the county where the crime was committed. Venue may be appropriate in a different county, and a defendant may insist that the case be transferred. See generally Const. art. I, § 22; CrR 5.2. But, as we have noted before, venue and jurisdiction are distinct matters. Dougherty,
¶128 The proper question is not whether Yates waived his right to be tried in Pierce County. The proper question is whether, in this case, the Pierce County prosecutor was bound to not seek the death penalty by the actions of the Spokane County prosecutor. I concur that Pierce County was not so bound. With those reservations, I join the majority.
I disagree with the majority that enforcing equity will necessarily interfere with Pierce County’s sovereignty. See majority at 739-40. Pierce County’s sovereignty, such as it is, is highly limited and must give way to the greater sovereignty of the State. See generally 1000 Friends of Wash. v. McFarland,
Concurrence Opinion
¶[129
(concurring) — I concur in the majority’s decision to affirm the judgment and sentence of the trial court. Majority at 794. I write separately to express my conclusion that Robert Yates’ claim that his plea agreement with Spokane County may affect his Pierce County murder charges is fundamentally flawed under our state constitution. Specifically, Yates’ argument must fail because he refused to waive his article I, section 22 right to trial in Pierce County for the murders committed there. This precluded Spokane County from exercising any authority over these Pierce County charges. Const. art. I, § 22.
¶130 Yates argues that his plea agreement with the Spokane County Prosecuting Attorney, under which that county agreed not to seek the death penalty, must also be effective as to his Pierce County charges for the murders of Melinda Mercer and Connie Ellis. However, Yates’ argument is finally rebutted by our state constitutional requirements. Yates’ offenses that occurred in Pierce County had to be tried in that county, absent waiver of Yates’ constitutional right to proper venue in the county in which the crime occurred. See Const. art. I, § 22; State v. Carroll,
¶131 Article I, section 22 of our state constitution provides, in pertinent part: “In criminal prosecutions the accused shall have the right... to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed.” Const. art. I, § 22 (emphasis added). A defendant may waive this right affirmatively or by failing to assert it prior to the time jeopardy attaches. State v. McCorkell,
¶132 Here, Yates was charged with two murders that occurred wholly within Pierce County. Under article I, section 22, trial for these offenses was requirеd to occur in Pierce County absent waiver by defendant. Carroll, 55 Wash, at 589-91. Apparently aware of this requirement, Spokane County prosecutors attempted to obtain a waiver from Yates through his counsel. 14 Verbatim Report of Proceedings (VRP) at 673. The proposal was refused by Yates’ counsel, on Yates’ behalf (and presumably reflecting Yates’ decision at that point in the negotiations). 14 VRP at 674. Hence, it remained constitutionally impermissible for Spokane County prosecutors to either try Yates for his Pierce County offenses or negotiate and enforce a valid plea agreement involving those offenses.
¶133 Due to Yates’ own actions in refusing to waive his right to proper venue for Pierce County crimes, the Spokane County Prosecuting Attorney was constitutionally precluded from negotiating a valid plea agreement that included Pierce County charges. Accordingly, Yates’ argument that his Pierce County charges were encompassed within his plea agreement with Spokane County must fail, regardless of the validity of his estoppel or fairness arguments. For this reason, I concur.
Dissenting Opinion
¶134 (dissenting)
A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it.
Witherspoon v. Illinois,
¶135 Because I cannot uphold a death sentence resulting from a trial riddled with constitutional error, I dissent.
The Trial Court’s Excusal of Juror 39 for Cause Violated Mr. Yates’ Federal and State Constitutional Right to a Fair and Impartial Jury
¶136 A criminal defendant is guaranteed the right to trial by an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution, as well as under article I, sections 3 and 22 of the Washington Constitution. Taylor v. Louisiana,
¶137 A juror may be challenged for cause if “the juror’s views on capital punishment would ‘ “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” ’ ” State v. Hughes,
¶138 Juror 39’s excusal was impermissible under Witt's impartiality test as she repeatedly assured the court she would listen to the evidence and follow the court’s instructions. In her confidential questionnaire, Juror 39 answered she did not “hold beliefs or convictions ... that would cause [her] to automatically vote against a death sentence without regard to any evidence that might be presented at the trial.” Confidential Juror Questionnaire (Juror 39) at 31. She also answered “No” to the question “Would your attitude about the death sentence prevent you from making an impartial decision about the guilt (phase 1) of a person charged with aggravated first degree murder?” and “No” to “Is there any reason you could not be fair to the prosecution or defense in a case where the death penalty is a possibility?” Id.
¶139 Juror 39 further affirmed her ability and willingness to set aside her personal beliefs and follow the court’s instructions during the State’s examination, which reads in relevant part:
Q ... [CJould you personally vote to execute the defendant?
A Yes, I would.
Q And what would you base that on?
A If all the evidence is there ... if it goes in that direction, I would do it, yes.
34 Verbatim Report of Proceedings (VRP) at 2279 (emphasis added).
¶140 Throughout her examination, Juror 39 never once stated she was unable to follow the court’s instructions regarding capital punishment. Instead, her responses evidenced “a fundamental acceptance of [her] duty to make an independent and thorough evaluation of the facts and a willingness to follow [the court’s] instructions and oath.” In re Pers. Restraint of Lord,
¶141 Both the trial court and the majority improperly cite to Juror 39’s personal opposition to the death penalty as evidence of her inability to perform her task as a juror. The trial court explained it excused Juror 39 for
¶142 Contrary to the majority’s implication, separating one’s personal beliefs from one’s ability to fulfill her duty as a juror is not contradictory, but precisely what the law requires. See Lockhart v. McCree,
¶143 Accordingly, the majority’s fixation on Juror 39’s personal opinions about the death penalty is improper. The appropriate question is not whether a juror harbors personal reservations against capital punishment but whether “a juror who believes that capital punishment should never be inflicted and who is irrevocably committed to its abolition could nonetheless subordinate his personal views to what he perceived to be his duty to abide by his oath as a juror and to obey the law of the State.” Witherspoon,
¶144 Even the United States Supreme Court’s most recent opinion regarding death qualification, Uttecht v. Brown, 551 U.S._,
¶145 Unlike Juror Z in Uttecht, Juror 39 never misstated or misunderstood the law; instead, she repeatedly assured the court she was able to fulfill her role as a juror, indicating no less than nine times in her examination and questionnaire that she was able to follow the court’s instructions and impose a death sentence if necessary. Indeed the Uttecht Court stressed Witt’s instruction that
¶146 But a trial court’s ruling that flies in the face of Witt’s impartiality standard should be owed no deference. And the fact that the court had exclusive province as to Juror 39’s demeanor may not trump that juror’s consistent, unambiguous commitment to impartiality or justify her erroneous removal. We must not underestimate the “significance of a capital defendant’s right to a fair and impartial jury.” Gray,
The Trial Court’s Erroneous Instruction on the “Common Scheme or Plan” Aggravator Lowered the State’s Burden of Proof by Eliminating the Requirement That There Be a Nexus between the Murders
¶147 The trial court lowered the State’s burden of proof by improperly defining, in jury instruction 20, the aggravating circumstance of
¶148 The court provided the following instruction defining “common scheme or plan”:
A “common scheme or plan” means there is a connection between the crimes in that one crime is done in preparation for the other.
A “common scheme or plan” also occurs when a person devises an overarching criminal plan and uses it to perpetrate separate but very similar crimes.
Clerk’s Papers at 4106 (Jury Instruction 20). The above instruction allowed the State to prove the presence of the common scheme or plan aggravator simply by showing Yates devised an overarching criminal plan and used it to perpetrate separate but very similar crimes. In short, the instruction eliminated the requirement this court has consistently demanded under
¶149 As the majority notes, the court’s instruction erroneously relies on the two alternative definitions of “common scheme or plan” this court developed in State v. Lough,
There are two different situations wherein the “plan” exception to the general ban on prior bad actsevidence may arise. One is where several crimes constitute constituent parts of a plan in which each crime is but a piece of the larger plan. . . . The other situation arises when an individual devises a plan and uses it repeatedly to perpetrate separate but very similar crimes.
Id. at 854-55. But what the trial court and the majority fail to recognize is that the alternative definition provided in Lough was developed solely with regard to the admission of evidence under ER 404(b), that is, the Lough court neither contemplated nor addressed the common scheme aggravator under
¶150 Not one of our cases has applied Lough’s alternative definition of common scheme or plan to
¶151 Because the trial court’s instruction eliminated the requirement that the murders be connected by a common plan, Yates’jury was free to find the presence of the common scheme or plan aggravator based only on the fact that Mr. Yates killed both victims in a similar fashion.
¶152 If just one aggravating factor is dismissed for lack of proof, Yates’ death sentence must be reversed. A jury in a special sentencing proceeding must consider the following question: “ ‘Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?’ ”
¶153 Because the trial court’s dismissal of Juror 39 and the court’s erroneous instruction regarding the common plan or scheme aggravator demand reversal of Yates’ death sentence, I dissent.
Reconsideration denied December 24, 2007.
A person is guilty of aggravated first degree murder ... if he or she commits first degree murder . . . and one or more of the following aggravating circumstances exist:
(10) There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person; ....
The majority concluded the evidence was insufficient to support the third alleged aggravating factor — that Yates murdered Melinda Mercer and Connie Ellis “ ‘to conceal the commission of’ the crime of patronizing a prostitute.” Majority at 755 (quoting