*1 January 1995.] [No. 58415-0. En Banc. Washington, Jonathan Respondent, Appellant. Gentry, Lee *7 Gentry, pro Gombiner, Nance, se; & Jonathan Lee Iaria Iaria; D. Gombiner, H. Frederick Leath- Robert Michael appellant. erman, Jr., for Prosecuting Attorney, Hauge, Mo- D. and Brian T.

Russell Deputies, Loginsky, Porter, for ran, J. Pamela B. and Donald respondent.

Gregory Civil Liber- J. on behalf of the American Wrenn Washington A. Ed- Foundation and Lawrance ties Union Association, Bar cu- Loren Miller amici wards behalf of appellant. riae for Seattle-King County Associa- Ellis of Public Defender

Jeff Families for Reconcilia- on behalf of Murder Victims tion appellant. tion, amicus for curiae Friends Diane Fami- Aaron Fine on behalf of Seth Victims, amicus curiae for Violent Crime lies and Friends of respondent. Organization on behalf of National Mark A. Panitch respon- Children, amicus for curiae Parents Murdered dent. Attorney Gregoire, General, V. Leslie

Christine O. respondent. Assistant, for Johnson, amicus curiae — Andersen, C.J.

Facts of Case Gentry appeals his conviction Lee Defendant Jonathan 12-year-old girl in of a for murder death sentence and Kitsap County. summary following were the facts that devel- approximately during oped weeks trial and 6-week *8 to each pertinent The facts hearings on related motions. in forth fully are set raised the Defendant more by issue discussion of the various issues. the her lived with 12-year-old the victim early June 11,1988, Pocatello, On June Idaho.

father and stepmother Washington, spend Kitsap County, she traveled to Bre- home with mother her near summer her at mother’s p.m., 4:30 approximately merton. On June at 6 a She was home young expected victim went for walk. dinner, but never returned. p.m. for large a found June behind body early

Her was through a running from a trail log path at the bottom of Course, near Rolling area Hills Golf adjacent wooded Bremerton, earring Washington. eyeglasses, The victim’s feet flowers found bouquet approximately and were and near the main trail. up footpath on assaulted, as sexually victim to have been appeared The and T-shirt her and down her jeans underpants pulled were bra Her sweatshirt had been removed pulled up. and blue She covering arm her face. pulled partially from one up, times, approximately had been struck the head suffering "significant” injuries. investigated the murder

Kitsap County sheriff deputies was splattered a trail of blood scene determined that trail, footpath down about 148 feet from the main that They 2.2-pound found a rock body where the found. The the fibers had blue fibers crushed into it. fibers matched red on it The rock also had spots the victim’s sweatshirt. rock was believed to be appeared to be blood. The weapon. murder victim had been killed autopsy showed that could autopsy her

one of the blows to head. results were which the blows received not show order autopsy victim. The did actually which blow killed the had been raped. victim conclusively young show from loose hairs were removed During autopsy several hairs An examination showed body. the victim’s hairs. with own them were the victim’s most of consistent fragments Two of hair from her T-shirt were recovered Negroid hair, hairs. A believed to were coarse brown pubic Caucasian, hair was found the victim’s from *9 thigh pigmented left and a hair was found on one of red Negroid to be her The hair was later determined shoes. genetically arm consistent with the Defendant’s brother’s County Kitsap at hair. not in the Defendant’s brother was produced was show that time of the murder. Evidence to family, Defendant, lived with his brother’s wore the who was no identifica- his brother’s clothes on occasion. There tion connected with the Caucasian hair. investigation eventually A focused on the Defendant. samples, clothing was

search his residence conducted and of including pair shoes, of Examination the of were seized. wiped from been the shoes. shoes indicated that blood had Spots and those blood- of blood were found on the shoelaces subject These the of number of scientific tests. stains were (GM), (Hp), gamma haptoglobin DQ- ABO, included alpha polymerase marker (PCRDNA), phos- and DNA chain reaction (PGM) testing. According phoglucomutase State’s ex- the performed perts, on the bloodstains none of the tests on as the the source of Defendant’s shoelaces eliminated victim haptoglobin GM, ABO, DNA are and PCR the blood. Since product independent genetically factors, was the rule1 used frequency showing percentage of to obtain cumulative population on Defend- which blood found from (The originated. test was have PGM ant’s shoelaces could enough final factor into the not to be definite determined probability.) test, ABO one of the blood- On the statistical Type type type O O had blood. was 0 and the victim stains population. percent 44.5 of Caucasian blood is found testing bloodstains that both of the shoelace The GM showed type type type 1,2,3,11.This 1,2,3,11 also had and victim were population. hap- percent of the Caucasian is found multiply "product one indi testimony allows was that the rule” 1The trial frequency factors that together for various frequencies obtain cumulative vidual statistically v. Cauth independent of another. See State one to be are determined ron, P.2d toglobin shoelace on the bloodstains showed one test type Hp type "2” Hp type "2”. had "2” and the victim to be population. percent There of the Caucasian is found in 36.1 expert testimony hav- number individuals Hp type ing type type 1,2,3,11 2 would ABO O GM testing percent The PCR DNA be 2.25 of Caucasians. type a PCR showed the bloodstains on both shoelaces frequency type 1.2, 3. The 1.2, was also 3 and the victim’s approximately percent type 1.2, of occurrence populations. American and African both Caucasian performed DNA PCR test- who The forensic scientist popula- ing percentage of the Caucasian testified that the type 1,2,3,11 GM blood with tion that would have percent. type Hp 1.2, DNA 3 would be .18 2 and PCR testing on a hair found PCR was also conducted yielded type T-shirt, 1.2,1.2, which which a PCR victim’s type, match his not the Defendant’s but does same type. brother’s *10 hearing Frye2 of 6 weeks.

A was over the course conducted the was The trial court concluded that scientific evidence reliable and should be admitted. linking the murder included

Other evidence Defendant to seeing testimony persons reported a man of who the three place matching description the near the of mur- Defendant’s murder, and three former and around the time of the der jailmates testified that the Defendant of the Defendant who testimony of them he had killed someone. The admitted to essentially as follows. these witnesses was they daughter had her K.T. testified that Witness E.S. and walking past E.S.’s home to- an African American man seen p.m. Rolling p.m. and 7 Hills Golf Course between ward jacket cap, sports wearing man a a 1988. The was June scruffy clothing and a slacks. His was described and light as the Defen- E.S. identified the individual color. later Gentry. murder, the De- dant, At time of the Jonathan the residing sis- home his brother and fendant was (D.C. 1923); States, State v. 2Frye 34 A.L.R. 145 Cir. 293 P. United Cauthron, supra. a and the Roll- ter-in-law distance from E.S.’s home short ing Hills Golf Course. a who had ridden the trails bicyclist

Witness F.B. was wooded Hills Golf Course number Rolling area near homicide, he On and day times. June main trail friend went area work and rode the to the after Road, course, golf course golf from Riddell south Road, along the and back. F.B. then traveled from Riddell During last time across main trail to McWilliams Road. this an 5:30 he saw African path, approximately p.m., standing just man off the main trail. F.B.’s de- American with E.S. given man was consistent that scription Kitsap County been Witness B.D. had incarcerated He with the summer of 1988. testified Jail Defendant when cards detec- playing that he the Defendant were hair in connec- samples arrived of Defendant’s tives to take B.D. testi- investigation with the of the victim’s murder. tion game, returned the card fied that when the Defendant said, hair on bitch.” "They my found When Defendant killed the young he had B.D. asked the Defendant whether prove it. they he said he had but that could girl, with the Defendant at T.H. had been incarcerated Witness Shelton in State Correctional Center at Washington He the De- December 1989 and 1990. testified January who girl told that he had killed 10-year-old fendant him he across street from his brother’s house because lived made, leading him on. This statement thought she was others, T.H., including according during game card L.S., present. inmate were told him that he had the Defendant

L.S. testified of her girlfriend disposed body. his killed guilty premeditated first found the Defendant *11 jury additionally murder. The degree felony murder and the identity was conceal found that the murder committed crime, an finding aggravating thus committing a person to the subjected possibility Defendant circumstance which a death sentence. began, of the proceeding

Shortly penalty phase before the ruling Payne issued its Supreme Court United States the Ct. 720, 111 S. Tennessee, 808, Ed. 2d U.S. L. impact of a victim holding that the admission murder case capital of a penalty phase statement into in the judge trial per not se unconstitutional. was father could that victim’s case determined present was statement jury and that make statement were there jury’s determination considered le- to merit in the case sufficient circumstances mitigating a sen- Gentry Jonathan received Defendant Lee niency. of death. tence appeal. are this presented

Nineteen basic issues Phase Guilt Issues (PCR) chain reaction method polymerase One. Issue Is ac- testing setting generally in the forensic DNA evidence and were the cepted community in the relevant scientific admitted into properly results of the PCR tests evidence Rule of Evidence 702? under results testing prop- marker gamma Two. Were

Issue admitted? erly of phospho-

Issue Three. Does the admission of the results (PGM) ER glucomutase analysis violate 702? presented support

Issue Four. Was sufficient premeditated jury’s verdict murder aof identity person it was to conceal committed committing a crime? denying court err Defend-

Issue Five. Did trial during motion evidence obtained pretrial suppress ant’s residence, personal and his person his search of Defendant’s effects? its in admit- the trial court abuse discretion

Issue Six. Did 47, 48, and 54? exhibits ting photographic trial, necessitating permeate Issue Seven. Did racism conviction? reversal Defendant’s Eight. "to convict” Did instruction jury Issue instruction, regarding what inform the properly in the first the crime of murder for conviction for required degree? *12 mistake in and the trial court’s Nine. Does counsel’s

Issue prior juror participating juror an alternate as a designating error? the reversible jury’s to deliberations constitute State, relating the by Issue Ten. Are the raised issues filing charges formal prior of counsel to the appointment investiga- the right during and to to protection Defendant’s stage, tive moot?

Penalty Issues Phase arise with Issues Eleven and Twelve. Two related issues regard impact to the victim evidence: bars the of the United States

1. Whether the Constitution father the victim at by introduction the the testimony capital sentencing proceeding; Washington by 2. such is barred testimony Whether State Constitution. excusing err in two

Issue Thirteen. Did trial court attitude of finding that for cause after prospective jurors death would penalty toward the juror each prospective abil- juror’s individual substantially or prevent impair juror? the duties of a ity perform phase penalty Did the introduction Issue Fourteen. the trial sentence judgment signed of the trial of a un- crimes judge prior one of Defendant’s regarding court an unconstitu- the Defendant or constitute fairly prejudice tional comment on evidence? necessi- Did the State commit misconduct

Issue Fifteen. during prosecutor’s death tating reversal of the sentence case? penalty phase closing arguments defining mitigat- err in the trial court Issue Sixteen. Did 5? instruction ing penalty phase circumstances declining err in Did trial court Issue Seventeen. regarding mitigating instruction give proposed the State’s circumstances? Eighteen. 10.95.060(4) unconstitutionally RCW Is

Issue vague? justify sufficient Was the evidence

Issue Nineteen. was the sentence penalty; the death impose decision to jury’s im- penalty disproportionate death excessive or considering De- posed and the crime in similar cases through pas- brought about fendant; the sentence and was prejudice? sion

Decision

Guilt Phase Issue One. testing using the of the DNA The results analysis Conclusion. properly admitted. PCR method of were from results trial, the State introduced

At the Defendant’s *13 haptoglobin polymerase typing, test, chain re- a ABO blood (GM) (PCR), phosphoglu- gamma marker tests action (PGM) analysis. comutase admissibility appeal of the On the Defendant concedes (1) testing haptoglobin argues: DNA but PCR ABO and tests (2) Washington prong Frye3 law; two of the test and

violates (3) Frye; testing pass prong not two of GM also does testing ER 702. admission of PGM violates proper recently test have in detail the We discussed of the State of review to be used in the courts standard Washington determining scientific evi whether novel Cauthron, 120 in State v. dence is admissible. That was also re 879, 886, wherein we 846 P.2d 502 Wn.2d newed our adherence Frye to the standard: deriving theory principle [EJvidence is a or from scientific general theory principle only has achieved admissible if that community. acceptance in the relevant scientific (quoting Frye States, Cauthron, v. United at 886 120 Wn.2d 1923)(hereinafter (D.C. Cir. 34 A.L.R. 145 293 F. Frye). (1) Frye prongs Washington, test: are two there theory upon evidence is which the scientific

whether the generally accepted scientific commu in the relevant based is (2) implement technique nity, used and whether the accepted by theory generally commun that scientific also is qualified dispute significant ity.4 between If is a there (D.C. 1923). States, 3Frye Cir. United F. 34 A.L.R. Cauthron, 879, 888-89,

4State v. experts validity evidence, either as to the of the scientific may technique, theory implementing it not as to the or the gener- prong, A asks whether he admitted.5 third which given ally accepted technique performed correctly Frye part test, occasion, is included in some states weight, prong inquiries go Washington, but in three admissibility.6 question underlying no scientific There is theory typing accepted in commu is the scientific DNA setting.7 nity purposes Howe identification in the forensic for Frye requires admissible, that both an ver, accepted theory in order to be implement technique and a valid community.8 generally accepted theory in the scientific recently DNA identification the We have ory, held that forensic length polymorphism fragment and the restriction (RFLP) generally accepted technique particular, are biology and of molecular scientific communities relevant Frye genetics pass population is test.9 The and therefore underlying theory not whether sue in this case thus testing generally accepted, the PCR but whether DNA accepted. generally technique is amplification in DNA which method of PCR involves copied sample millions of times. For of DNA can be a minute sequence genetically amplifies typing, informative DNA one *14 amplified product.10 genotype In foren in the the detects (the analysis analysis, DQ- PCR Cetus kit available for sic alpha the kit) hybridization at to detect variation reverse uses dot 5Cauthron, 120 Wn.2d at 887. 541, 525, 6Cauthron, 889; Kalakosky, 121 Wn.2d 120 Wn.2d at (1993). 895; 7Cauthron, Kalakosky, at 543. Nat’l Research at 121 Wn.2d 120 Wn.2d (hereinafter (1992) 133, Coun., NEC Technology 144-45 in Science DNA Forensic

Report). 8Cauthron, 120 at 889. 895, Cauthron, 911; Report, 543; at NRC

9Kalakosky, at 120 Wn.2d at 121 Wn.2d 133. Report, 40. at

10NRC DQ-alpha HLA-DQ-alpha kit was the locus.11The Cetus the Russell, 125 Wn.2d in this case and State v. test used (1994), involving PCR DNA the other case 882 P.2d 747 testing by considered court this term. We heard this admissibility technique now and it is the PCR Russell of technique DNA that the PCR settled law this state analysis passes Frye admissible evidence test and is prongs Washington.12 that both We therefore conclude theory Frye is met; of DNA identification test are technique implement- generally accepted13 as is the PCR ing theory.14 analy- argues DNA even if PCR Defendant also testing passes Frye particular test, in this case

sis been evidence should have was unreliable and therefore the disagree. ER 702. We excluded under Frye made, a defendant’s

Once determination objection particular testing procedures utilized in a to the given analyzed for the usual standards case should be under admissibility expert testi admission of evidence.15The mony governed by ER 702: knowledge specialized scientific,technical, will If or other or to deter- assist the trier of fact to understand the evidence 11NRC Report, at 68. Russell, pres State v. 12In 125 Wn.2d 882 P.2d 747 the author dissented, analysis stating opinion technique opinion of DNA ent the PCR community yet generally accepted in scientific for use on foren

is not the relevant However, accepted by majority of this court and those views were not sic evidence. by stare decisis to accede to the view of the I am therefore bound the doctrine of majority on this issue. scholarly development herein are to be commended for All counsel witnesses, legal record, expert complete presentation and for the and factual arguments complex scientific issue. on this argued present to this court in the same the Russell case and the case were Both regarding opinions evi- in the Russell expressed DNA and most of the views term present parties should be further applicable in this case are case. dence record, legal literature were the scientific and the case law and advised that of this court. painstakingly and discussed all members reviewed Cauthron, Kalakosky, supra; 121 Wn.2d 543. 13State v. Russell, P.2d 747

14State v. *15 540; Cauthron, 15Kalakosky, Wn.2d at 889. at 120 121 Wn.2d issue, by knowl- qualified expert a as an mine fact in a witness education, skill, training, may testify edge, experience, or form an otherwise. opinion thereto challenge alleged admissibility to errors When the testimony given expert test, the determination of whether court; unless the trial admissible is within the discretion of discretion, court will not has an this there been abuse of disturb the trial court’s decision.16 testing case, was care- there was evidence that this by by knowledgeable fully performed scientist, monitored subject expert, highly qualified was the a scrutiny by defense qualified Dr. Edward T. a number of scientists. criminology serologist Blake, a forensic with doctorate expert previously qualified evi- an in PCR DNA has who performed states, the PCR tests this in a number of dence DQ-alpha test he used He in detail the PCR case. described laboratory safeguard against error. the controls used to technique much can be used on that the PCR He testified samples degraded work than one could smaller and more analysis. widely using In his more RFLP when used with testimony, Sensabaugh George explained also that Dr. he work the PCR the defense to monitor had been retained him. made all data had been available and that particular case, such as in this The criticisms the test proper procedures out, whether were carried whether ampli- adequate, whether the number of were the lab notes questions laboratory protocol, are fications conformed regarding properly particular con- test this whether admissibility. weight, go to the issue and hence ducted jury. properly They As we submitted to were therefore explained, previously lab- in the forensic human error have inquiry. oratory However, the be relevant will continue matters. such factual address is best suited to trial court accepted, generally is determined to Once PCR evidence par- opponents proponents aof been, has then both as it necessary garner infor- be able ticular test should Swan, Cauthron, 890; 541; 16Kalakosky, State v. 121 Wn.2d at U.S. P.2d present whether errors issue of mation to both sides *16 given there factfinder when in a test to the were committed laboratory procedure.17 challenge validity of a is a to the precisely heard in this case. That is knowledgeable what occurred and the defense for both the State scientists validity par- length testify of these at on the issue of decision in the trial court’s ticular tests. We find no error concerning method of test- the PCR to allow the evidence go jury. ing DNA to Issue Two. agglutina- analysis based on The bloodstain Conclusion. testing generally accepted in the relevant

tion inhibition community tech- and reliable scientific scientific as valid nique properly evidence. "Gamma and was admitted into genetic antibody molecules that markers” are variations serologically. can be tested challenges case, the admis this the Defendant gamma prong

sibility based on two of the marker test results theory gamma Frye18 test. He concedes that testing generally accepted by for the marker testing scientists argues evidence, that the Wash

of crime scene but (Patrol) technique ington State Patrol used a which is argues only generally accepted. tech Defendant community testing nique accepted in the scientific for gamma microplate” method used markers is the "V-bottom disagree by Moses Schanfield.19We and conclude that Dr. generally gamma marker slide method used the Patrol is Frye community. accepted analysis, In a in the relevant scientific us, before the literature we look to the record jurisdictions.20 other the decisions from Washington George State Patrol is Mr. Chan of the typing ABO blood scientist who conducted the forensic testing gamma shoelaces and marker on the Defendant’s Cauthron, 17Kalakosky, at 890. at See 120 Wn.2d 121 Wn.2d 541-42. (D.C. 1923). States,

18Frye A.L.R. 145 Cir. 293 F. v. United gamma testing. expert case on marker was the State’s in this 19Dr. Schanfield 20Cauthron, at 888.. weapon. performed He rock used as the murder gamma marker GM tests. He testified that

duplicate ,an test and that testing inhibition agglutination refers to testing at to do this tech- there are least three methods method, mi- method, and the tube the slide nique: the test He all three variations plate crotiter method. said that technology gave and he essentially involve the same bowl, a plate example preferring eat from person Chan that all three methods plate. Mr. testified paper in the scientific commu- testing generally accepted were used the slide method explained He the Patrol nity. lab had spent Brian Wraxall and that the Patrol taught by test on tests before it used the running proficiency a year type technician was samples. required Each forensic the test. began using before the lab least 250 samples *17 Analyti- Schanfield, Ph.D., Laboratory Director Moses S. Center, Inc., in test- Testing specializing forensic Genetic cal is methodology gamma the marker test ing, testified that for ABO markers. He testified testing fluid body similar in in used foren- gamma markers were discovered worldwide, that, in Europe testing sic years. for has been used almost testing marker gamma probably forensic literature testified that the published He and the standard method in excess of 100 articles consists of blood, ag- in the "haem markers the detecting gamma for a test, is "absorption inhibition” inhibition” glutination Dr. use. for forensic generally accepted test which very old for procedures are different testified that there Schanfield which are all based inhibition test using agglutination of a procedures include use The various "3-drop test”. many slide meth- tube, microplate methods test several microplate and the both Schanfield testified that ods. Dr. scientific accepted within the generally are method slide technique that his also testified Dr. Schanfield community. of the (V-bottom a miniaturization was simply microplate) (used by method the Wraxall slide while procedure tube test Patrol) was a miniaturization Washington that no one further testified Schanfield method. Dr. old slide in the scientific accepted or less of the methods is more worldwide. methods are used community and that different Defendant’s refutes testimony Dr. Schanfield’s own only ac- technique contention that Dr. Schanfield’s markers. testing gamma for method to conduct cepted finding trial court’s and exhibits support The record witness knowledgeable a most that Dr. Schanfield was regarding testing. GM De- testimony. distorts Dr. Schanfield’s

The defense brief court that Dr. Schanfield represented fense counsel this gamma testing method used for marker agreed that description an inaccurate scientifically not reliable. This is Dr. brief also indicates that testimony. of his defense that Mr. Wraxall’s slide method has Schanfield testified in More ac- published peer journal. never been reviewed testified to is that he did not curately, what Dr. Schanfield method was reviewed because once peer believe Wraxall’s of time it’s methodology long period has been around for a difficult, if a new very impossible, just to have variation published.

Mr. Brian Wraxall21 is the director and forensic serolo- and the who gist Serological person at the Research Institute personnel gamma trained the Patrol’s forensic lab marker markers are stable testing. gamma very He testified and that large markers found concentrations the blood GM has been used in forensics since the 1960’s. He testing conducting are three for procedures also testified there technique, inhibition test: the tube slide absorption technique. and the microtiter He further testified technique, sci- generally accepted all were techniques three *18 community. entific opposition no scientific

The defense offered serious testing was well estab- gamma marker opinions scientific credibility ques background 21Although and were Wraxall’s educational Mr. hapto Frye hearing, only case was the test he conducted in this tioned at the dispute apparently challenged appeal. a vitriolic globin on There is test which is not Grunbaum, goes expert, back a Dr. which and the defense between Mr. Wraxall People Young, legal long appears of the case. See v. irrelevant to the issues time and (1986). 470, N.W.2d 270 425 Mich. 391 in the rele- accepted long generally lished and had been Ph.D., Bias, Wilma Bodman community. vant scientific Hopkins of Medicine at Johns Department Professor at the Medicine, witness was the defense University School done typing GM She testified that GM regarding testing. in the sci- generally accepted or labs is research clinical testing had agreed also that GM community. entific She whether she 1960’s. When asked early been done since for GM techniques used could comment on whether generally accepted testing in crime laboratories were she could not com- community, she stated the scientific she read did not cover ment as the literature had had know. She stated that she forensic area so she did not would defer years for 20 and that she known Dr. Schanfield how to conduct GM tests regarding to his judgment scene evidence. crime Dr. notes on the GM test Bias did criticize Chan’s

Dr. However, as manual. noted adequacy protocol above, test is conducted particular criticism how goes weight, generally is which given case an issue evidence. admissibility, not to the scientific GM which hold that have been cited located No cases A number cases is testing lacking general acceptance. discuss- specifically without gamma marker evidence discuss Court has admissibility.22 Supreme California ing its particular tech- testing, marker gamma held that Yorba, case, v. Frye People do test. pass used in this nique (1989). 1017, The Yorba Rptr. 257 Cal. 209 Cal. 3d App. that GM testimony and concluded expert court described community. in the scientific generally accepted testing stated: court cites, independent research has our party Neither admissibility concerning authority revealed, any published Nevertheless, the agglutination inhibition evidence. of forensic per- been testimony the test has established uncontradicted years many with globe around the for scientists formed (1991) 420-21, Phoenix, 567 N.E.2d 409 Mass. v. 22Commonwealth (the accepted testing generally in the scien testimony Dr. that GM Schanfield Schulz, unrefuted); People community in over countries tific and used App. Ill. 3d N.E.2d *19 supports degree the record high accuracy. Consequently, community ac- that the scientific the trial court’s conclusion reliable scientific agglutination inhibition as a valid and cepts technique.

Yorba, App. 209 Cal. 3d at 1025. in the Frye hearing present

The the experts’ testimony litera- body of scientific large that there is case indicates literature, legal, No medical or testing. GM regarding ture testing. of GM validity has been cited which questions testimony in this case here expert We conclude gamma conclusion that the marker supports the trial court’s case, generally in this are theory, technique used no community. in the scientific There is indication accepted law or expert testimony, the case the literature about among qualified debate scientists there exists serious testing. only marker The general acceptance gamma way was test particular test this challenge real conducted, go weight, not objections was such showing of an abuse of admissibility. There has been no court’s discretion under ER 702.23 trial Issue Three. the trial court’s discre- We find no abuse of

Conclusion. testing in admitting tion PGM results. phosphoglucomutase

There are tests to determine (PGM) Blake the PGM type samples. in blood Dr. conducted case "weak” result which he inter- got test this into with The PGM result was not factored caution. preted but used jury, introduced to the probability statistics eliminate the the results of the test did not only to show that was on the Defendant’s person victim whose blood shoelaces. the PGM test under challenge defense does have it test results should analysis; argues that

Frye above, the under ER 702. noted determi been excluded As under ER is admissible testimony nation of whether expert court; there trial unless is within the discretion Cauthron, 889-90, (1993); 23SeeState v. 846 P.2d 502 120 Wn.2d 525, 540-41, Kalakosky, 852 P.2d 1064 discretion, not disturb has an this court will been abuse the trial court’s decision.24 focusing” argues man- is the defense "isoelectric testing

ner done instead of the conventional PGM now brief that Dr. Schanfield testified method. The defense states type preferred PGM is isoelectric focus- that the method to ing. fact, what testified to is that isoelectric Dr. Schanfield *20 focusing sensitive, also is more but he testified that conven- subtyping primarily labs, and that tional used crime subtypes. both detect the both are used and that can The brief also states that Dr. Schanfield testified defense uninterpretable was and inconclusive. that the PGM result probably the fact, that he would have reached he testified (the Blake who eon- as Dr. forensic scientist same result test), reach a result that was unable to ducted the but he photograph specifically looking he He denied at alone. laboratory result an un- would have called the had said his interpreted or inconclusive result. testimony expert of defense defense also relies Bakken, manner in which Dr. Blake

Dr. who criticized explained Again, we in Cauth- test. as conducted the PGM performance alleged Kalakosky, infirmities ron and usually weight go evidence, its not to of a admissibility.25 test expert never case, defense had

In this Washington a PGM Mr. Chan of the conducted test. conducting PGM for he had tests Patrol testified that been years Blake’s PGM test he had Dr. and that reviewed probably Dr. to the same conclusion. would come results and performed case, had con- test in this Blake, who PGM explained was that it of PGM tests ducted thousands genetic done marker tests standard conventional one of the serological examinations. in all labs do crime record, we that the trial conclude From our review admitting the results not abuse its discretion court did test. the PGM 890). Cauthron, (citing

24Kalakosky, Wn.2d at at 541 Lord, L. 822 P.2d 177 25Seealso State Ed. 2d 112 argues pro the burden brief, Defendant In his se prosecuting unconstitutionally proof shifted when of attorney was they expert had whether defense witnesses asked samples. When tests on the forensic retested conducted that the State’s trial, the trial court ruled this issue arose regarding experts questions tested had whether the various they questions permissible, whether were but the evidence improper. The trial court were could have conducted tests regarding gave the burden instruction therefore curative jury: proof. told the The trial court You question. an last objection I have to the State’s sustained Every in a disregard it. Defendant criminal are instructed presumed presumption This continues case is to be innocent. trial, during your delib throughout you entire unless find by beyond it has overcome the evidence erations that been prov has the burden of plaintiff reasonable doubt. The State ing beyond each crime reasonable doubt. element exists, no doubt proving defendant has burden of reasonable evidence.[26] produce any and no burden to implication Any possible the Defendant had regarding proof this instruction burden corrected *21 presumption and the State’s burden the of innocence asking proof. questionable While it is whether scientific they duplicate experts have, did, or could conducted whether any testing possible all,27 is at case error error this confusing proof by the as to the burden of was cured the instructions.28 trial court’s simultaneous curative prosecuting attorney comment made brief closing hypothesis "[t]he is, of the defense’s consultants destroy evidence, And evidence of the state. the the scientific calling by making assumptions, by never can we do (June 20, 1991), Report Proceedings 26. 26 74 (Minn. 479, 1992); Blair, Jobe, 407, 418 117 State v. Wn.2d 27State v. 486 N.W.2d Corcoran, (1991); 491, McDougall Ariz. 735 v. 153 816 P.2d 718 State ex rel. 803, Bebb, aff'd, 767, (1987); App. P.2d 512 see 44 Wn. P.2d State v. (1987). 231-32, Viriyahiranpaiboon, 588 N.E.2d Mass. 28See Commonwealth 643, 649-50 any anybody, poraneous objection doing contem- never in this case.”29No tests subse- the defense was made. When quently on this com- made a motion for a mistrial based cautionary again give a ment, trial court offered to the by jury, the but that offer was refused instruction argument improper claimed, the defense defense. Where establishing impropriety of the bears the burden of the prejudi- prosecuting attorney’s as comments well their required if error could have cial Reversal is not the effect. by instruction, which the defense a curative been obviated object prosecuting request. at- The failure to to did torney’s improper er- a waiver of such remark constitutes flagrant and ill- remark is deemed be so ror unless the enduring resulting an intentioned that it evinces prejudice an ad- that could not have been neutralized jury.30The has satis- monition fied the the defense here neither showing impropriety of the comment burden any resulting prejudice. light repeated correct In proof, pre- regarding no instructions State’s burden judice has been shown. testing summary, PCR conclude that DNA we majority properly pursuant admitted results were (1994)

opinion Russell, P.2d 747 in State v. testing, technique marker and the used and ER 702. Gamma generally accepted in commu- case, are the scientific in this nity admissibility Frye in Wash- standard for and meet phosphoglu- ington ER no violation of 702. and there is (PGM) analysis properly under ER was admitted comutase 702. Issue Four. ju- support exists to Sufficient evidence Conclusion. young

ry’s victim was that the murder determination premeditated it committed conceal identity person committing the crime. sufficiency reviewing of evidence for

The standard whether, That case well standard is in a criminal settled. light viewing favorable to the most after *22 Proceedings, Report 5426. at 29 77 (1991). 51, 93, Hoffman, 804 P.2d 577

30State 116 Wn.2d v.

597 prosecution, any could have found rational trier fact beyond a doubt.31 of the crime reasonable elements sufficiency challenges evi- defendant When must dence, all from the evidence reasonable inferences strongly interpreted most drawn against favor of State in- Further, a who claims the defendant.32 defendant sufficiency all admits the truth of State’s reasonably from that evi- be drawn that can inferences dence.33 applies

This standard to determine whether circumstan- applies premeditation sufficient,34 is tial evidence of is whether circumstantial evidence sufficient determine aggravating support jury’s is that an factor determination present.35 challenged by only degree De- element sufficiency grounds first murder premeditation.

fendant on that of defining degree provides: The statute first murder (1) degree guilty person first when: A of murder (a) premeditated to causethe death of another With a intent person person, person;...[.] a third he or she causes death of such or of 9A.32.030(l)(a) (part). RCW involve more than a moment Premeditation "must 9A.32.020(1).

point It has been defined of time”. RCW upon intent to formation of and reflection "the deliberate "the a human life.”36It has further been held involve take Lord, (1992); Ortiz, 311-12, 294, State v. 117 31State v. 831 P.2d 1060 119 Wn.2d denied, Hoffman, 116 (1992); 829, cert. 121 2d 112 822 177 L. Ed. Wn.2d P.2d 398, 722, 82; 407, Jeffries, v. P.2d 479 State at 105 Wn.2d Wn.2d Green, (1980); Vir (1986); 216, v. v. Jackson State 94 Wn.2d P.2d U.S. 922 (1979). 560, ginia, 319, L. Ed. 99 S. Ct. 2781 443 U.S. 2d Ashcroft, (1992); Salinas, 192, 201, v. 32State v. 119 Wn.2d 829 P.2d 1068 App. 859 P.2d 60 71 Wn. 33Salinas, 201; Ashcroft, 71 Wn. App. 454. at at Ortiz, Hoffman, 312-13; at v. at 116 Wn.2d 83. 34State 119 Wn.2d 35Jeffries, 407-08. 105 Wn.2d at Ortiz, (1982); Robtoy, P.2d 284 119 Wn.2d 312.

36State *23 deliberation, beforehand, mental of reflec process thinking tion, time, of however reasoning for a weighing period short.”37 circumstantial evi may proved by

Premeditation dence drawn are reasonable by where the inferences finding is substant supporting jury’s and evidence A the suffi ial.38 number of cases have considered appellate and demon ciency respect of with to premeditation an range strate that a wide of facts will infer proven support Rehak, v. 67 Wn. premeditation. example, ence of For State (1992) 157, showing P.2d 651 held that evidence App. 834 head, three two times after he victim was shot times floor, premedita had fallen on the was sufficient to establish (1990), 131, App. State 803 P.2d 340 Massey, tion. v. 60 Wn. (1991) denied, that defend 499 U.S. 960 held evidence finding of brought gun supported ant a to the murder site 92, 53 Wn. 765 App. State v. premeditation. Woldegiorgis, (1989) denied, (1988), 1012 held 920 112 Wn.2d P.2d review finding of where the supported premeditation that evidence a attack, to was stabbed gone prior victim had bed times, long was had wounds there multiple defensive and defendant. State standing animosity between the victim 453, 67 review Wn. 761 P.2d Longworth, App. v. 52 (1989) weapon a held evidence that 112 Wn.2d 1006 was been and that victim stabbed procured, had keep was to her being while held another and killed by back finding to support was sufficient reporting burglary from Gibson, 309, App. 47 Wn. 734 P.2d State v. premeditation. of (1987) lapse was a sufficient evidence that there 32 held was suffi beating strangling the victim time between Bushey, State v. 46 finding premeditation. support cient (1987) that the held that evidence App. 731 P.2d 553 Wn. had blunt she received strangled, been victim had Brooks, (1987) Ollens, (quoting State v. 848, 850, 733 v. 37State P.2d Wn.2d Ortiz, (1982)). 873, 876, See also at 312. 651 P.2d 217 97 Wn.2d Rehak, App. 38Hoffman, 83; P.2d v. State 67 Wn. injuries was face, her hands had been tied her and that finding premeditation. support v. State sufficient Giff- (1986) App. ing, evi- held that 45 Wn. 725 P.2d 445 transported to an distance was some dence the victim approached spot her killed, when the attacker isolated sup- stabilizing her, her throat after from behind and slit Sargent, ported finding premeditation. 40 Wn. (1985) App. held evidence victim pass- head, with some interval struck ing two blows sup- lying down, blows, face while she was between ported finding premeditation. strangulation, alone, held that evidence of

This court has premeditation.39 support However, an inference does *24 premeditation found has to infer been sufficient evidence (2) (1) weapon multiple inflicted; a was where wounds were (4) (3) behind; there used; the was from and victim struck robbery motive, a or sexual assault.40 was evidence of such premeditation has been to infer also Sufficient evidence multiple knife inflicted a found where wounds were killing, killing place procured in at the took the site the away found, kitchen, knife a from the where the was room and the evi- was in the face where where the victim struck engaged prolonged in the had dence indicated that victim struggle.41 light present case, most facts of the viewed

The following. prosecution, show the favorable young on a trail attacked, she the victim was When was Rolling through Golf next the Hills a woodedarea that led heavily and thick The of the attack was wooded Course. site daylight, dark, and The even underbrush. area with part because of over- trail was almost like tunnel of the light, usually hanging foliage. and was Traffic on the trail transportation was Defendant, main form of the walking, whose generally familiar with the area. was at least Bingham, 39State v. Wn.2d 719 P.2d 109 Ollens, at 40State 853.

41Ortiz, at 312-13.

The the struggle evidence indicated that the between the through victim and her on main trail began attacker the area, evidently wooded where had been young victim flowers, connecting of a picking ended at bottom main found footpath, body 148 feet from the trail. Her was up, very large log. pulled behind a Her sweatshirt had been head, up her her had partially pulled over T-shirt been underpants middle of the breast area. Her jeans been her thighs. had down around pulled had and her young girl apparently picked The flowers the At began. glasses point were found near the where attack point up the murder apparently picked some the Defendant — large up The rock have weapon picked rock. could been an glasses on the trail north of where the victim’s just area rock, weighed was found pounds, were found. The which 2.2 tree, from at of a several maple yards base place” main It "out of where it was found. trail. looked her and head The rock was used strike the child on face times, possibly between 8 and more. attack trail, main trail. just victim continued down a foot off Luminol, used find blood or define a chemical solution scenes, the area. sprayed extent of blood crime that was luminol substance believed to be blood showed some 148 feet varying quantities down splattered was torn During struggle, earring victim’s foot trail. attacker, who fought her apparently from her ear. She *25 the "significant” injuries. Two of inflicted approximately enough by cause them- injuries head were serious to death these struck the victim’s sweatshirt selves. One of was after well face. final blow could been her up had over pulled large the after had been behind placed have been made she A depression found. log body eventually where her was a deep signif- "like her was 2 to inches the soil under head into down to her to it push had been head applied icant force the had into seeped from victim’s wounds the Blood the soil”. to have appeared A stick long of 10 inches. ground depth to a stick, which and the spot, her in that broken beneath head it a or fingerprint had hand- log, the partly against was by been made but that could have that was readable the was that the decedent appeared victim. It also the assault. victim of an sexual attempted fact a trier of sum, from rational presented the evidence child had deliber- that the killer this well conclude could victim; that his against to use large a rock picked up ately blows over during he had continuous opportunity the intent upon to form and reflect deliberately feet of trail victim; struggled that the victim to take the life face against attacker; were to both her her that blows struck head; final was inflicted the back of her that blow was covered with her shirt upon her forehead while her head body where her place it was inflicted at the and that victim, found; well, attempted as of an and that she was the sexual assault. before the hold that there was substantial

We determine be- from which rational trier fact could jury yond killing victim was reasonable doubt that premeditated. subject

A first murder can defend- premeditated degree if it penalty accompa- ant to death possibility forth 1 or more of 10 circumstances set aggravating nied murder in RCW 10.95.020. One of those factors that any identity conceal protect was committed person committing a crime.42 young girl the murder of the jury found iden- or conceal the

present protect case was committed a crime. person committing of a tity constitutional argues

The Defendant that in order meet in a be applied factor must requirements aggravating subject manner the class persons narrows argument, to this the Defendant penalty. respect death With aggravated murder statute interpret this court to urges elements before so to find a number of require involved here was determining factor aggravating argument regard. in this present. reject We Defendant’s 10.95.020(7). 42RCW *26 factors contained constitutionality aggravating

The of the Bartholomew, discussed in the statute was light of the 634-35, in Zant v. Stephens, decision Supreme States Court United (1983). In Bar 235, 103 Ct. 2733 862, 77 L. Ed. 2d S. 462 U.S. tholomew, we held: court, Supreme affirming Georgia the the its decision statutory requirements constitutional

Court clarified the aggravating factors must meet: the genuinely narrow circumstance must aggravating

[A]n class of and must rea- eligible penalty for the death persons sentence on imposition of a more severe sonably justify the guilty of murder. compared to others found the defendant omitted.) (Footnote Aggravating Ct. at 2742-43. 103 S. factors statu- Washington the narrowing under such a serve function dif- punishment statute Washington capital tory scheme. The Stephens in Zant v. Georgia considered from the statute fers that the ag- requires the consideration Washington scheme rather than guilt phase, determination factors at the gravating at Under the by Georgia the statute. required sentencing phase the guilty statute, persons Washington of that class of penalty the death murder, jury may consider degree first set forth RCW aggravating circumstances only if one of the genuinely narrows to exist. This is also found 10.95.020 constitutionally penalty as subject to the death persons class of required. ours.) Bartholomew, (Italics at 635. found circumstance aggravating sets forth statute

here as follows: the commission murder to conceal committed the person any person identity or conceal protect a crime or to

committing crimef.] 10.95.020(7).

RCW language by narrowed factor is aggravating

This killing purpose require itself to of the statute identity. be to conceal aggra this that where requires

The statute further be distinct found, crime must the predicate factor is vating held previously has This court from the murder. cannot identity killing to conceal motivates the

crime which need not be crime itself, predicate but the murder be the underlying jury.43 crime identified Here specifically under the However, was clear that it identified. presented, have found could well attempted underlying sexual crime was sexual assault assault.44 *27 require jury to follow is to the

Thus the correct standard statutory language was com- and find the murder the that person concealing identity purpose a the the of mitted for of underlying was a and that the crime who committed crime not the murder. argues jury the that the evidence before

Defendant finding present support jury’s the mur- the case did not person identity a com- committed to conceal the of der was mitting determining In sufficient evidence a crime. whether again presented support jury’s verdict, to we deter- was the light viewing whether, in a most favor- mine the evidence prosecution, any fact have rational trier of could able the premeditated murder was committed for found that purpose committing identity concealing person crime. prosecution, light in a most

Viewed favorable young relating victim was the facts to this issue are that the attempted rape. in the head victim of an She was struck heavy rock, at least one time numerous times with pulled shirt been over her face. She the forehead after her had and in the back of her head. The also was struck the face jury that the final blow was struck at could well have found lay body eventually place found, and as she where her was log, very large underbrush, with her sweat- behind a dense pulled her From these facts we conclude shirt over head. from which rational trier there was substantial evidence 398, 419-20, Jeffries, P.2d 479 U.S. 922 43State v. of, in further jury in the course 44The found that the murder was committed degree of, flight rape in the first or second from the crime of ance or in immediate murder, premeditated guilty felony degree, well as the Defendant but did find jury to convict the Defendant had in order murder. The been instructed committing murder, attempting to felony or must find the Defendant degree. degree rape in first or second commit beyond the of the doubt that a reasonable fact could conclude purpose identity of the murder was to conceal committing attempted person assault. an sexual Issue Five. denying Defen- err in The trial court did not Conclusion. pursuant suppress obtained evidence dant’s motion warrants. three valid search argues pro that the trial brief, the Defendant his se suppress motion to erred when it denied his

court pursuant The evidence three search warrants. obtained laces that scien- shoes and seized included the bloodstained tifically and further to the murder linked the Defendant police while the Defendant to statements made included being executed. warrants were making com- the sworn the detective Defendant claims intentionally support plaint or search warrants recklessly and inten- of material facts made misstatements tionally recklessly com- material facts from the omitted requesting argues plaint. warrants that the detective He *28 improperly who of two witnesses the statements set forth resembling seeing reported a mile within a man Defendant evening mur- of the the afternoon of the murder on and/or intentionally According Defendant, the detective der. to recklessly statements more sim- two witnesses’ or made the actually they Further, the detec- he claims were. ilar than from the com- or events omitted statements tive plaint. certain prevail issue, Defendant must on this In order to (1) any prove inten were or omissions that misstatements (2) recklessly material, is, tionally were made and or finding probable necessary Thus, they cause.45 were to prove or an intentional were able to if the Defendant even required omission, he still would or misstatement reckless probable would not the warrant cause to issue show that and been deleted false statements found had those have been included. the omissions (1992); Herzog, 870, 73 Wn. Garrison, State v. 827 P.2d 1388 45State v. 667, Delaware, (1994); 34, 54, U.S. 57 L. Ed. 2d

App. Franks v. 867 P.2d 648 Ct. 2674 98 S. hearing the defense on 2-day evidentiary Following of fact findings trial court entered suppress, motion signing the detective law, ruling and conclusions of material recklessly make intentionally did not complaint any challenge fails to The Defendant misrepresentations.46 veri be treated as they fact and will thus findings ties on appeal.47 judge motion found:

I. and made no Wright at all truthful times That Detective search complaint support his in in sworn misstatements all material and at other August on warrant times. issued II. way or untruthful Wright was no reckless That Detective support of search war- provided in in the information he in this cause.

rants issued V. some the lack of some notations That the Court finds composite artist lack made to and the statement reports regard cap does Schoening to a small billed Brian with

Detective Wright fabri- find Detective level to not rise to sufficient in his com- report, lied sworn police October cated the August on support of the search warrant plaint testifying pre-trial while perjured hearing. find that Detective open himself court have Court would otherwise the In order conclude gave perjured Wagner each [witness A] cap, regarding the small-billed testimony about the conversation he his when related perjured further himself A] and that [witness Wright his remem- to confirm with Detective later conversation subject. the black cap small-billed brance at 2749-50. Papers, Clerk’s record or in the argument Defendant’s

Nothing in the judge’s to the motion any substance challenge raises a findings of fact held, reviewing recently we findings. As those only we review following suppress, motion to entered *29 there is sub- Where assigned. has been to which error facts Law, Papers, 46Findings at 2749. Conclusions of Clerk’s of Fact and Harris, (1994); Hill, v. 641, 644, 870 P.2d 123 Wn.2d 47State (1987). 784, 790, 480 U.S. 940 Wn.2d stantial evidence in support properly the record to chal- facts, lenged those facts will binding appeal.48 event, In any even if the misstatements were alleged added, deleted and the alleged sup- omissions motion press would fail if a reasonable find magistrate could the information contained in the revised affidavit or com- plaint finding for search warrant supported probable cause.49

If the alleged information this case which is to be inac- curate were allegedly missing deleted and the information added, issuing following court would still have had the considering information before it in whether to issue the search warrants:

1. A 12-year-old girl sexually was assaulted and beaten to death on Rolling June the woods near the Hills significant Golf Course. There was a amount of blood at the shirt, murder scene. Two hairs her Negroid were found on which was her A hair pulled above breasts. Caucasian was leg. found on her There was for the apparent explanation no Negroid hairs on the Caucasian victim. they

2. Two witnesses informed had seen an police African American man within a mile of where the victim’s was body day ap- found on the of the murder and near the time of the murder. Both of the proximate say witnesses American; man they observed African both described being height; him as the same both described approximately long him as and a shirt or wearing pants long-sleeved jacket; tan; clothing being both described his as both de- partly hair; him hair facial having scribed short and no both described him as a dark hat or with no bill or wearing cap bill; walking. a small both described him as One of the wit- man nesses was able to take to the residence of the police she saw. Defendant, Jonathan

3. A resident at that home was the description man of the man seen Gentry, a who fit the with a frequently cap wore both witnesses. Defendant coat and tan slacks. sport small bill and also had tan 48Hill, at 647.

49Garrison, Cord, 873; State v. 693 P.2d 81 118 Wn.2d at *30 the Defen- sought were At time the search warrants 4. the degree of first charge trial on a awaiting dant was in jail girl a at knife- young have rape. alleged raped He was to had previously Defendant point garage in a Bremerton. bur- crimes, grand larceny, including served time for other awith charge a which ended glary degree first murder manslaughter conviction. cause, or com

To the affidavit probable establish forth suf plaint of the search warrant must set support a conclude that person facts to lead reasonable to ficient crim there that the defendant involved probability activity.50 inal that, of the based on this revised statement

We hold even the grounds warrant, for cause existed to issue probable the warrants. to the cause issue probable

Because we determine that existed, we do not the Defendant’s claim that warrants reach in- his was by the consent to search executed sister-in-law valid.

Issue Six. Conclusion; by The trial court did not abuse its discretion to which relevant admitting were autopsy photographs kill. and intent to premeditation issues trial, guilt of the the State introduced During phase severity which showed the autopsy photographs number of court of the head wounds. trial and number victim’s hearing outside the of the presence conducted argument regarding photographs which of the entertained testimony of the necessary demonstrate help were photo- of the The trial court admitted number pathologist. objected a number of those and refused admit graphs by defense. some of the the admission of argues

The defense autopsy at taken injuries of the victim’s head photographs Specifically, have been excluded. and should prejudicial repetitive 47 and were argues defense that exhibits 365-66. 50Cord,

exhibit 46. Exhibits 47 and 48 were of the closeup pictures different head it injuries; was easier to see the depth wounds in 47 and 48 than in 46. The prosecuting attorney argued to the trial court that exhibits 47 and 48 were nec- essary to demonstrate depth and nature of the wounds by caused the blows and that such evidence was relevant kill highly premed- contested issues of intent trial, itation. At were closeup photos used pathologist to demonstrate which blows to the victim’s head would have caused death and which would have only unconscious, rendered her and to demonstrate depth *31 the injuries.

The defense also argues unnecessary that exhibit 54 was and prejudicial. That exhibit is a of the skull af- photograph ter the skin was reflected and which fracturing shows the had occurred due aby to blows blunt instrument. The argues defense that a photo of the outside of the head or x ray drawings medical could have been used instead of the The trial x photograph. pathologist told the court that the ray just gross showed the of a frac- evidence massive skull ture and that any he could demonstrate of the small internal x using ray fractures the The used only. pathologist to the the photograph fragmentation demonstrate skull. attorney

The to the trial court that the prosecuting argued an injuries by photographs nature of the showed indication of the amount of force used and relevant kill. different disputed issue of intent The number of blows, injuries, caused is also relevant to the is- different of premeditation. sue (1991), Lord,

In State v. 117 Wn.2d 822 P.2d 177 denied, (1992), cert. 121 L. Ed. 2d 112 we discussed the admissibility explained: autopsy photographs

The is within the sound discretion photographs admission 51, 88, of the trial court. 116 Wn.2d Hoffman, State v. (1991). they where are Photographs probative have value testimony pathologist of the explain used to illustrate or 616, 628, Jones, State v. performing autopsy. (1981). if photographs are admissible P.2d 472 Gruesome outweighs prejudi- their probative trial court finds their value Harris, 88; Hoffman, cial effect. 480 U.S. 725 P.2d 975 Lord, 117 Wn.2d at 870-71. grue- most to admit

Although the trial court refused photo- the admitted inflammatory photographs, some and rel- However, highly also they were graphs gruesome. were and the force used different blows many evant to show the relevant These facts were injuries. to inflict the various kill and premeditation. of intent the contested issues present photographic is allowed to prosecution all charged and to rebut every element of the crime prove against prejudi- value balancing probative defenses.51 The trial court and is cial to the discretion of the effect left conclude that only reviewed for abuse of discretion.52 We determining trial did not abuse its discretion court outweighed prejudicial effect probative value photographs.

Issue Seven. so proceedings Racism did not permeate Conclusion. for ground a fair and thus is not a deny as to Defendant trial murder degree Defendant’s first reversing aggravated conviction. his racism so infected urges Defendant us to hold that first aggravated of his conviction for

trial reversal degree murder is mandated. *32 his court should reverse argues Defendant that this sentence, grounds, order policy and on public

conviction of racial reality discourage appearance both the Defendant system. Specifically, judicial unfairness in the C. by offensive out-of-court remark racially contends that Attorney, Clem, County Prosecuting Danny Kitsap and the attorney, pros- American trial Defendant’s African remark, requires of that subsequent explanation ecutor’s in this case. of the conviction reversal Crenshaw, (1990); Daniels, State v. App. 579 51State v. 784 P.2d 56 Wn. (1983). 789, 806-07, 488 659 P.2d 98 Wn.2d denied, (1987), 757, Rupe, cert. 486 U.S. 52State v. 743 P.2d (1988). position is cited authority No for Defendant’s degree first murder reversal of the conviction for aggravated not, we required under these facts. We therefore need not, do reach this issue.53 intend to declining issue, to examine this we do not

By of the remarks. To the convey any approval prosecutor’s finding contrary, agree we with the trial court’s prosecutor totally was racially offensive statement of and offensive. inappropriate

However, prejudiced is no that the remark there evidence any a fair It would be right way. the Defendant’s trial pros- of a disapproval for this court to show its inappropriate statement ecuting attorney’s racially offensive out-of-court sentence where the by reversing a Defendant’s conviction or of the trial was not affected statement. fairness deprived of a argues next that he The Defendant due the manner of the of racial influences verdict free Negroid hairs were that two presentation State’s to the ex- T-shirt due found on the Caucasian victim’s informant who was shown to have jailhouse of a amination tendencies. racist allegation Defendant’s support

The record does in an all- living a vision of victim the State created met a black it when she only destroyed to have white world person. as the victim’s killer was the Defendant identity man, An African American evidence. on circumstantial

based Defendant, the crime was observed near resembling Four human hairs murder. at about the time scene body were found her belong to the victim that did not geneti- Two hairs that were Negroid were during autopsy. popu- African American percent consistent with cally the Defend- taken from samples as with hair lation well were found on victim’s Negroid hairs brother. The ant’s which questions a number witnesses The State asked T-shirt. Negroid hairs in which ways narrow the would 2d 112 53State Lord, L. Ed. *33 in the As reflected on the T-shirt. placed could have been questions record, attorney’s prosecuting the tone of the as the Defendant identity aimed at proving De- jury against at prejudicing murderer and not prove for the State to of his race. In order fendant because had, it through the circumstantial identity character- physical on the State was to focus compelled of those similarity and the killer of the victim istics Defendant. to those of the characteristics police had told question informant jailhouse The Kitsap were incarcerated he the Defendant when "nigger” game card playing and were County Jail hair samples po- the room to provide the Defendant left game, the he returned to the card investigators. lice When on the said, my found hairs allegedly "They Defendant examination, attorney During prosecuting direct bitch”. word "nigger” about his use of the the informant questioned African Americans. his attitude toward about to have been appears of the informant questioning State’s at- racist impact apparent to soften the strategic attempt examination, rather them out on direct by bringing titudes them on cross ex- expose waiting than for defense counsel do questions tactic. The accepted That is an trial amination. pre- racial asked order evoke not to have been appear not of the informant testimony judices jury. anything, If relevancy grounds. on challenged appeal made to have appears of this witness State’s examination witness. him a less credible record, we conclude the entire thoroughly reviewing

After fair because of his trial Defendant was not denied that the race.54 statistics show argues that additionally

Defendant neutral racially in a imposed are not that death sentences that, point, at some implies He manner in the United States. are sentences that death similarly show may statistics during prosecutor additionally argues remarks of the that certain 54Defendant argu phase overtones. This argument penalty the trial had racial closing ment is addressed below. in the State imposed racially neutral manner

Washington. that he "reserves Defendant then states statute if challenge penalty this State’s death right” *34 challenge at some time analysis statistical a supports such or factually legally in fails to the future. The Defendant imposi- exists in the argument his that racial bias support of Washington. in Because penalty tion of death sentences claim, we are unable to on this inadequate briefing the meaningfully We challenge. the Defendant’s respond to arguments unsupported by will not address constitutional however, is, A discussed related issue adequate briefing.55 in review section. below the proportionality Eight. Issue not err in its instruction

Conclusion. The trial court did jury informed the degree properly on murder in the first of guilty for the Defendant finding of the requirements charged alternatives. part: in

The trial court’s instruction 10 states in of of Murder the First To the defendant the crime convict following must be Degree, elements of the crime each of the beyond reasonable doubt: proved a A) (Alternative Degree in the First Premeditated Murder degree] of murder in the first premeditated elements [lists the AND/OR B)

(Alternative Felony Degree in the First Murder degree] felony in of murder the first the elements [lists elements in that each you If find from B, has A of the elements Alternative Alternative each and/or doubt, your duty it will be beyond a then proved reasonable been only one guilty. of proved All the elements return verdict to beyond a doubt. You reasonable need be alternative must more of the alterna- unanimously agree as to which one or tives, B, beyond a reasonable doubt. proved A has been or evidence, hand, if, you weighing all of the after On the other elements in any as one of the doubt to have reasonable A, in Alternative any the elements and as to one of Alternative B, guilty. not duty to return verdict your then it will be at 2488-89. Papers, Clerk’s erroneously paragraph the last argues

The defense the Defendant acquit in order to jury informed (1994). Hill, 641, 648, v. 870 P.2d 55State to at alternative, find either must reasonable doubt it A and one element in alternative least one element It says. B. instruction alternative This is what must guilty”, "not there states that find the Defendant in both alterna any be reasonable doubt as to one element instruc an of the law. The tives. This is accurate statement challenged identical paragraph tion is clear given instruction language comparable jury Lord, L. Ed. 2d addressed what the Additionally, another instruction one, not the guilty do if it found the Defendant but should instruction 22 stated in part: other alternative. Court’s provided must fill blank Form A the You Verdict "guilty” guilty” according "not to the deci- word the words you sion reach. You must also fill in the blank or blanks your regarding A indicate decision or Alternatives B with the a[n]d alternative, you "yes” to any "no”. For answer "yes” answer doubt you unanimously beyond must be convinced reasonable *35 as to each element that alternative.

(Italics ours.) at Papers, Clerk’s 2501.

The Verdict Form A in provided part: GENTRY, Defendant, jury, the find LEE We the JONATHAN _of crime of IN the MURDER (Write "Guilty” Guilty”) in or "not charged. THE FIRST DEGREE as jurors The found: Murder_ A, Degree Alternative Premeditated First (Write "no”) "yes” or Murder_ B, Felony Degree First Alternative (Write "no”) "yes” Papers, Clerk’s at 2505. form, jury guilty

On the the found Defendant verdict "yes” answered to both alternatives. Each instruction and in the must be evaluated context instructions 10 was omission in instruction Any whole.56 conceivable We con provided plain language in instruction 22.57 no there was error these instructions. clude Benn, denied, 654-55, 289, 631, 2d v. cert. 126 L. Ed. 120 Wn.2d 845 P.2d 56State denied, Lord, 121 L. cert. 57State v. 117 Wn.2d Mak, (1992); 692, 735, 718 P.2d Ed. 2d 112 Issue Nine. counsel trial court and The mistake Conclusion. regular juror parties replacing alter- with an

for both juror reversible error. nate does not constitute reg- jury initially by parties included The selected jury jurors jurors. Prior selection ular and 3 alternate randomly 15 seats to be had 3 of the trial court selected peremp- party Each had total alternate seats. peremptory jurors tory challenges against regular challenge against exer- seat. Defendant each alternate against regular challenges peremptory 10 of his cised challenge against peremptory jurors. first He exercised a did not third alternate chair. He alternate chair and the challenge juror, "B”, for cause alternate Ms. the second against challenge peremptory her. did not exercise regular jurors day informed trial started one On thought had about the case over the court that she would not be had that she weekend and become convinced penalty. impose from was then excused She able to death by juror jury. court was selected The first alternate juror. replace the excused guilt phase the trial the court at- close of the At the jurors. remaining tempted alternate to excuse the two exchange place: following took you gentlemen, at the as I indicatedto

The Court: Ladiesand pick, beginning your proceed time, trial, at we would three of this anybodygot alternates, if sick or couldn’t to be so number again case, over wewouldn’thave start with numbers,or those seats mistrial. Andthose wouldn’thave a we were picked lot. particularly time, thank the alternates I want to So this *36 by they lot, and them. And announce that have been selected ["S”]. ["B”] Mrs. and Mrs. are you very insur- ladies, You been our thank much. have And hope appreciate policy frustrat- that. I it’s too and ance we you’ve through ing you able to serve it. won’tbe all this and sat to think that corpus Mak sub nom. v. vacated on writ habeas 995 U.S. sentence (9th 1992), (W.D. 1991), aff'd, Cir. Supp. 970 F.2d 614 Blodgett, Wash. 754 F. (1993). Ct. 1363 113 S. a Honor, for may we ask Prosecuting Attorney]: Your [The sidebar, please? same thought about the I think that we Counsel]: [Defense time.[58]

thing same at the attor- sidebar, court and the At an the trial unreported made had neys erroneously agreed judge apparently of the naming a with alternates. respect mistake However, fact, following the been the trial court had correct. conference, continued as follows: proceedings sidebar Prosecuting figure, [the As far as we can’t [sic] The Court: right. attorney] you with that? Are comfortable are. Counsel]: We [Defense ["B”], Then, evidently, I a mistake Ms. made The Court:

you not the are alternate. ["R”], you Mr. are. made, mistake gentlemen. I

First ever ladies 9] ..[5 so, ["S”], you I . And Mr. and Ms. thank . ["R”] During exchange, present this entire the Defendant his disagreement any the record does not indicate and state part. He now claims that his federal constitutional his rights his by particular jury to have case decided — by agreed were violated the inadvertent albeit choosing — an regular by juror. a alternate upon replacement juror tried right

A Defendant in a criminal case has to be panel by impartial, 12-person jury.60 an Selection A has no governed, part, by CrR 6.3 and 6.4. defendant by right particular juror particular to be tried cases, here, expected are to take jury.61 In like the one time, "may trial direct the selection judge considerable to be as alter jurors or more additional ... known one jurors”.62 nate Proceedings, Report of

58 71 at 5552-53. Proceedings, Report of at 5553-54.

59 77

60Const, 21; 719, Stegall, 1, State v. 881 P.2d 979 § art. Aberdeen, Straub, (1906) (citing 61Creechv. 44 Wash. P. (1896)). Wash. 47 P. 227 62CrR 6.5.

616 The Defendant were selected. jurors

Here three alternate reg- both panel, and the entire participated their selection alternates, by jurors ultimately accepted ular right an impartial his constitutional Defendant. Thus by selected him was not violated. gov- is juror by a an alternate regular

Replacement the trial challenge did not by erned CrR 6.5. Defendant any appeal. time before compliance court’s with CrR 6.5 the final agreed panel Defendant Instead, counsel for the replac- and, fact, that resulted participated error an ing juror a with alternate. regular with a compliance here is Since the issue involved issue, it may rule rather than constitutional procedural appeal.63 time raised for the first Further, has no result prejudice the Defendant shown and counsel’s error. trial court’s Ten. Issue is to the State relief available effective No Conclusion. The issues are motions.

regarding pretrial certain its therefore moot. the issue of whether this court address State asks pretrial the Defendant’s erred in granting

the trial court injunctive relief. for of counsel for appointment motions moot; State are argues the issues raised Defendant agree. we question court will not consider

Ordinarily, this longer A if can no case moot court purely academic.64 relief.65 effective provide that are questions us to answer

Essentially the State asks the trial court and to undo what controversy no longer too late for an effective ago. It is years some accomplished case, disapproval any expression in this remedy (1988). Coe, 842, 208 63State v. P.2d Wn.2d Cy., Grays 442 P.2d 967 Paper v. Harbor 64Grays Harbor Co. (1968). Comm., App. Cy. Cent. Wn. Democratic 65Washam Pierce review challenged "purely approval the action would be aca- inappropriate.66 demic” and thus

The issues are moot and we decline to consider them.

Penalty Phase

Issues Eleven and Twelve. or state We that there is no federal conclude Conclusion. per impact se constitutional bar to the introduction of victim *38 penalty phase capital evidence in such the case and that Washington Specifically, evidence admissible under law. testimony by in the case the before us the victim’s father properly was admitted and did not violate Defendant’s the process rights. due

Generally, impact the term "victim evidence” refers to ev- given by representa- crime, idence the victim of the or the victim, tive of the which describes the victim or the effect of family. the crime on the victim and his or her Often such impact evidence is referred to aas "victim statement”.

Shortly sentencing special proceed before the Defendant’s ing Supreme commenced, in this case the United States Payne Tennessee, 808, 115 Court decided 501 U.S. L. Ed. 2d (1991). Payne prior 720, 111 S. Ct. 2597 overruled federal law imposed presentation which had a constitutional bar on the impact capital sentencing proceedings. of victim evidence at Payne rights decision, Based on the 1989 victim’s Washington Constitution, amendment the trial impact court ruled that victim evidence could be admitted at special sentencing proceeding. the Defendant’s During proceeding, the father of the victim was called testify. interests, He testified about the victim’s and her plans young for the future. He discussed effects his family. daughter’s work, on his his emotions and his murder attorney closing arguments, prosecuting In recalled testimony noting opportunities of the much of this the lost family victim and her and how the crime had affected them. regarding family’s No was admitted the victim’s evidence Vidal, Turner, 731, 733, 658 (1983); 66State v. P.2d 658 State v. 74, 79, 508 P.2d 158 they or as to what crime, of the Defendant opinions ar- The Defendant felt was the appropriate punishment. allowing testimony such gues by the trial court erred sentencing argument proceeding. his during victim regard impact Two related arise with to this issues evidence: of the United States bars

1. Whether Constitution testimony by the father of the victim introduction capital sentencing proceeding; Washington is barred testimony 2. Whether such State Constitution. se per is no federal or state

We conclude that there evi- impact of victim constitutional bar the introduction and that such capital case penalty phase dence law. Washington Specifically, admissible evidence is under the victim’s father testimony by the case before us the Defendant’s and did not violate properly admitted rights. due process held Court Supreme the United States Payne, and un cruel prohibition against Amendment Eighth bar the admission of victim does not punishment

usual capital of a trial.67 sentencing phase impact *39 bar, but leaves per no se constitutional Payne imposes impact allow victim to decide whether individual states In sentencing Payne, penalty proceedings. in death evidence cases, two of its earlier Booth Supreme Court overruled 440, Ct. 2529 496, Ed. 2d 107 S. U.S. 96 L. Maryland, v. (1987) 805, Gathers, 104 L. 490 U.S. Carolina v. and South (1989), prohibited which had 876, 109 S. Ct. 2207 Ed. 2d Booth, In cases. penalty in such evidence death use of in capital impact of victim considered the use Court imposed an irrebuttable and had proceedings sentencing on such ev and irrelevance prejudice of undue presumption prohibits Amendment idence, determining Eighth in all cases.68 its introduction (1991). 720, Tennessee, 808, 111 Ct. 2597

67Payne L. Ed. 2d S. 501 U.S. v. 440, n.10, 496, 107 S. Ct. 2529 Maryland, 96 L. Ed. 2d U.S. v. 68Booth (1987) (the however, caveat, admissible that such evidence was provided a Court years pro later, Gathers, this Two the Court extended prosecutorial sentencing argument heari hibition to in death ngs.69 recently, Payne, Then, Court overruled more Payne Gathers and most of Booth.70The Court held permit impact if the of victim State chooses to the admission argument subject, prosecutorial evidence and Eighth on that per Amendment erects no se bar. argue

"Whilethe Defendant herein does not that the sentencing impact proceeding victim statement his made at Eighth appear argue Amendment, violates the he does that its admission violated his Fourteenth Amendment due process rights. Payne, Under when the such introduction of unduly prejudicial evidence is so that it leads to a fundamen tally may trial, unfair a defendant still seek relief under the Fourteenth Amendment.71 case, however,

In this the evidence which the victim’s presented, prosecuting attorney father and which the reiter- argument jury, unfairly prejudi- ated in to the was no more inflammatory argument cial or than the evidence and which — Payne was introduced case and which the Court did fundamentally not find to be unfair.72 Payne, brutally young the defendant had stabbed a aged children,

mother and her two 2 and 3. The mother and daughter wounds, Nicholas, died from the stab but 3-year-old boy, grandmother permit- survived. Nicholas’ testify ted to crime). See, Rice, e.g., v. directly

when it related circumstances of (1989). 577, 607-08, 757 P.2d 889 491 U.S. 910 Gathers, 69South Carolina v. 490 U.S. 104 L. Ed. 2d 109 S. Ct. 2207 propriety 70The of victim and survivor statements Court declined to discuss the Payne, crime, opinion appropriate about the the criminal and the sentence. U.S. at 830 n.2. 71Payne, at 825. U.S. 72Payne, People Raley, Rptr. at 826. See 2 Cal. 4th 8 Cal. *40 733, L.

2d 507 U.S. Ed. 2d S. Ct. State, State, (1993); 117, 131-32 (1994); Evans v. McMillian v. 333 Md. 637 A.2d (Ala. 1991). 1253, 1274 App. 594 So. 2d Crim. why she He cries for his to understand mom. He doesn’t seem his He comes doesn’t come home. And he cries for sister Lacie. Grandmama, me, many during me to times the week asks you my yes. says, miss I He I’m worried do Lacie. And tell him my about Lacie. 814-15.

Payne, at in referred attorney Payne In argument, prosecuting of the continuing on Nicholas and the effects effects for and the tragedy murders on other members family not find this family. Court did Supreme defendant’s The statement, attorney’s argu- or the impact prosecuting victim it, inflammatory. or unfairly prejudicial ment on based well, case, say jury’s present In the as we cannot hearing expectations about the victim’s interests de- feelings grief deprived natural about her father’s fact, Payne process. fendant of due the Court if it in order to determine victim accepted review explained, characteristics relating "personal evidence impact on the of the crimes impact the victim” and the "emotional sentencing a capital was admissible at family” victim’s which This was the kind evidence proceeding.73 exactly relatively way. abbreviated herein, and was admitted that he was denied argues The herein also Defendant he earlier the trial was not notified process due because impact intended to use victim the prosecution however, reflects, that defense The sentencing. at his record during trial the United States was aware counsel issue reconsidering impact the victim Court was Supreme informed the defense prosecution Payne case. to offer victim decided that it intended Payne same day Defense sentencing testimony proceeding. impact prior to the victim’s father was allowed to interview counsel of a continuance based court’s denial testimony. trial his evidence, not merit exclusion alleged surprise does from the failure possibility prejudice any since especially in this case.74 is remote delay sentencing 73Payne, at 817. Gould, 175, 181-82, App. 791 P.2d 569

74SeeState 58 Wn. *41 light In of in Supreme the United States Court’s decision Payne, we conclude that the Defendant’s federal constitu- rights tional were not of victim by violated the introduction evidence. impact Washington Defendant herein also argues (due 1,

State Constitution process) article section 3 and sec (cruel tion 14 punishment) bar the use of victim evi impact dence in in capital cases this state. The relies on Defendant prior law case from this court which limits what is constitu tionally admissible at penalty sentencing death proceedings, specifically, Bartholomew, 173, State v. 98 Wn.2d 654 P.2d (1982) (Bartholomew I), cert. granted State’s and re manded, 1203, 463 U.S. 463 U.S. defendant’s remand, adhered to on (1984) (Bartholomew II).

Capital punishment proceedings regulated are in the State statute, of Washington by II, RCW 10.95. Bartholomew this portions court found of that statute to be unconstitu- tional under our state constitution. We therefore must ex- statute, amine that along it, with the case law limiting in light of the issue of admissibility impact victim evidence at special sentencing proceedings.

Specifically, evidence admissible in a special sentenc- 10.95.060(3) ing proceeding determined RCW and .070. 10.95.060(3) RCW states pertinent part: any The court shall admit relevant evidence which it deems probative regardless to have rules of value admissibility its under the evidence, including hearsay evidence and evidence of previous the defendant’s activity regardless criminal of whether charged the defendant has been or convicted as a result of such activity.

RCW 10.95.070 provides: 10.95.060(4)

In deciding question posed by ["Having RCW in mind the guilty, crime of which the defendant has been found you beyond are convinced reasonable doubt that there are not mitigating leniency?”], sufficient to merit circumstances jury, may factors, any including . . . consider relevant but not following: limited to the [list factors.]

Thus, statute, Washington’s on the face of death penalty sentencing hearings evidence received at death is limited However, relevance. only by requirement language Bartholomew II held some this court kinds and limited the unconstitutional quoted above special at a sen- prosecution may present of evidence the aat presented tencing Noting proceeding. reliable, accurate, must be capital sentencing proceeding defendant, this court unduly prejudicial and not 10.95.060(3) and 10.95.070 violated found that RCW as sections 3 and well article Eighth Amendment also Constitution.75 The court Washington of our state constitution process found that the due clause capital cases conform that evidence introduced requires to the Rules Evidence. *42 found that consider Bartholomew II court further was which the Defendant of other crimes of

ation evidence process and cruel due punishment not violated the convicted In State Washington of the Constitution.76 sections (1991), Lord, 889-90, 117 121 L. Ed. 2d 112 ruling we clarified this chief, case in is limited to the State’s holding that this rule be of behavior can uncharged criminal and that evidence by the defend mitigation presented evidence fered rebut ant. II held that in Bartholomew addition, the court

In "any relevant evidence” to consider directives statutory mitigating evi- be limited to factors” must "any relevant Bartholomew II court found Finally, dence and factors. be factors must nonstatutory aggravating that "evidence record, that would evidence defendant’s criminal limited to evidence to guilt phase, at the been admissible have defendant”, mitigation by matters raised in rebut value of admitted if the rebuttal may only latter which We have con- outweighs the effect.77 prejudicial II, Wn.2d at 639. 75Bartholomew II, at 641-42.

76Bartholomew II, Wn.2d at 642-43.

77Bartholomew of Bar- sistently to these recently holdings adhered tholomew II.78 argues that Bartholomew should

The State II be overruled in its It entirety. asks that both victim statements impact and evidence of prior uncharged crimes be held admissible and that the Rules of Evidence be held to not be applicable in special sentencing proceedings. Such fundamental changes in the jurisprudence capital sentencing law in this state are unnecessary resolution of this case and we therefore decline the invitation to overrule Bartholomew II in case, its entirety. this there is no issue regarding prior uncharged crimes or application the Rules of Evi- dence. The only properly issue before us is the constitution- ality of the admission of victim evidence in impact capital cases. The question critical with regard to victim impact ev- relevance, idence is which would be a statutorily required prerequisite even of Bartholomew II.79 holdings without

In limiting the categories of evidence admissible aat death sentencing proceeding, stated in Bar- specifically court tholomew II it that was relying on state consti- independent grounds.80 tutional Under Bartholomew II, victim impact ev- idence does not fit within any categories of evidence held to be during admissible the special sentencing phase of a capital However, case. Bartholomew decided, when II (Const, (amend. rights the victims’ amendment art. 35§ 84)), was yet part Rather, of our state constitution. *43 398, 416, 722, denied, Jeffries, 78State v. 105 Wn.2d 717 P.2d cert. 479 U.S. 922 (1986); Mak, 692, 407, denied, (1986), State v. 105 Wn.2d cert. 479 U.S. 995 corpus Blodgett, Supp. sentence vacated on writ habeas sub nom. Mak v. 754 F. of (W.D. (9th 1991), 1992), denied, aff'd, Wash. 970 F.2d 614 Cir. cert. 113 S. Ct. (1993); 734, 761-62, Rupe, 755, (1987), State v. 108 Wn.2d 743 P.2d 210 cert. denied, (1988); Rice, 577, 609, (1988), 486 U.S 1061 State v. 110 Wn.2d 757 P.2d 889 denied, (1989); 379, n.5, Rupe, cert. 491 U.S. 910 In re 115 Wn.2d 798 P.2d 780 (1990); Lord, 829, 889-91, State v. 117 Wn.2d 822 P.2d 177 (1992); Ortiz, 294, 304, (1992);

L. Ed. 2d 112 State v. 119 Wn.2d 831 P.2d 1060 Dodd, 838 P.2d 86 10.95.060(3). 79RCW II,

80Bartholomew 101 Wn.2d at 644. a 1984, a which is construing the court was constitution The today. we examine different constitution than the one becomes, effect does the new here then what question have on our constitutional rights victims’ amendment to as it relates victim analysis penalty of the death statute therefore, state turn, to this new evidence? We impact constitutional amendment. Eiken Attorney at the of then General request give rights in an effort certain to

berry, Legislature, to encourage cooperate crime and to victims to victims crimes, Joint unanimously Senate Res prosecution passed 8200, offering Washington’s opportu electorate the olution constitut to the state nity rights provision to add victims’ overwhelmingly of Washington of the State ion.81 voters amendment; voting those cast bal accepted percent The amendment codified lots in amendment.82 favor of Const, (amend. 84), provides pertinent art. 35§ part: attorney, a victim a crime Upon notifying prosecuting and, be informed of felony right as a shall have the

charged presiding over the subject the discretion of the individual and all other court proceedings, or court attend trial trial attend, right has and to make proceedings the defendant any where the sentencing proceeding and at a statement at considered, subject to same rules defendant’s release rights. In event the govern the defendant’s procedure which minor, deceased, or otherwise unavail- incompetent, victim is able, representative attorney may identify prosecuting appear rights. to exercise the victim’s (Italics ours.) rights amendment creates

The addition the victims’ rights capital process the due potential tension between II) (as and the interpreted by Bartholomew case defendant Const, art. rights added § victims’ constitutional (the (amend. 84). and amicus Attor- prosecuting attorney General) "overrules” the the later amendment argue that ney (SJR (1989) 8200). Legislature Report, Legislative 51st 81Final State, Secretary 2529-30; Returns of the State Papers, Official 82Clerk’s 7,1989. held November General Election

625 conclude, how- We construction. prior state constitutional can be constitution ever, parts two of the that these harmonized. prior over prevails

A new provision constitutional (1) specifically repeals if it provisions the constitution (2) Neverthe them, or it cannot be harmonized with them. less, of one constitutional implied repeal it is settled that favored, not reasonable provision by every another that provisions;83 to both give effort will be made to effect in can be done this case. re- does not "specifically

The victims’ amendment rights this court’s peal” any provision of the state constitution or fact, this state due clause. In process construction the consider, Bartholomew in II discuss or court did not even admissibility impact rule on the evidence. victim Const, (due 1, pro- how art. question then is §§ cess and cruel Const, be harmonized with punishment) should 84) (victims’ (amend. rights). Harmony

art. can § (1) ways: be in we could that achieved one of two hold (and cannot) rights apply victims’ amendment does (but cases, in death such ev- impact penalty victim evidence (2) cases); we felony idence would be admissible other admis- categories can hold that of evidence which are sentencing proceeding expanded sible at a death can be include victim impact evidence. conclusion, irony

Should adopt we former most crimes of involving would be cases heinous all, prohibited would be from representative the victim’s while murder making impact victim statement other cases, make would be allowed to representative the victim’s Furthermore, victims’ amend rights such statement. right impact to use expressly contemplates ment victim conclude the victim is deceased”. We "[i]n evidence the event gives meaning clearly second more construction Although of the Constitution. Washington all parts had always substantial due defendants cases have capital (1974) 216, 232-33, (quot Longview Taxpayers, P.2d 83Port v. (Fla. 1969)). Gov’t, ing So. 500-01 2d Jackson Consolidated trial, during sentencing process rights phase these must rights84 now victim also has constitutional Bartholomew rights. be harmonized with the defendant’s process requires II held that the state due clause sentencing proceed- to capital Rules of Evidence be applied admissible, impact victim ings.85 order *45 ER 401 provides: to be relevant.86 has having any tendency to evidence” means evidence "Relevant de- consequence to any fact that is of the than make the existence termination would be it probable probable more or less the action without the evidence. evi- impact victim is the relevance of pivotal question

The in the death jury which a must answer question dence to the question: this jury The must answer sentencing proceeding. defendant has been "Having the crime of which the in mind beyond a reasonable doubt guilty, you found are convinced le- to merit mitigating circumstances there are sufficient niency?” ours.) 10.95.060(4).

(Italics RCW in Supreme Court of the United States majority The 720, S. Tennessee, 808, 115 L. Ed. 2d 501 U.S. Payne v. (1991) majority with that court’s disagreed prior Ct. 2597 L. Ed. 2d 482 U.S. Maryland, in Booth v. opinion (1987) characteristics of only 440, 107 Ct. 2529 S. were rele- circumstances of the crime and the the defendant in sentencing The Court determination. capital vant may by harm caused the murder specific Payne noted defendant’s a meaningful a in assessment play role blameworthiness, harm and that culpability moral historically has a result of crime by a defendant as caused Certainly, law.87 of the criminal an concern important been the loss of includes the harm caused this case (amend. 84). 1, 35§ 84Const. art. Ortiz, 119 at 304.

85Seealso 10.95.060(3). 401;

86ER RCW Tennessee, Ct. 2597 Payne L. Ed. 2d 111 S. 501 U.S. 87See by grief experienced hopes, life, dreams and child’s family. the child’s preclude Payne majority cannot noted that states mitigating considering any evidence from relevant

sentencer proffers, requiring defend- that the that the thus defendant being”. "uniquely Just ant as a individual human be treated unique individuals, evi- be treated as defendants should unique- each now be allowed show victim’s dence should expected being. case, an human In this ness as individual family death if he is sentenced to loss to the the defendant sentencing; has allowed be considered been family surely be at loss to must the innocent victim’s least as relevant. majority Payne on said that the Booth Court’s ban weighted impact unfairly scales

victim evidence had — placed capital virtually trial that while no limits were mitigating intro- a defendant could the relevant concerning circumstances, duce own the State his offering glimpse barred from either of the life which *46 demonstrating the defendant chose to take or the loss to family society. Supreme Hence, victim’s and to the Court Payne legitimately may concluded that a state conclude impact mur- evidence about the victim and about the family jury’s der is on the victim’s relevant to the decision penalty imposed; as or death be to whether not the should hereby we so conclude. do agree concurring opinion also with Justice Souter’s

We Payne. relevancy explains issue. He as fol- It addresses the every consequences has foreseeable and defen- lows. Murder capacity dant, if endowed with the mental for criminal by responsibility, she take that the life he or will knows person unique the of a and that homicidal behavior is that person probably "survivors”, associates, has to be killed close deprivations the as a result of suffer harms and who will neces- kill, to this victim’s death. When a defendant chooses being sarily an as- a and to whole human threatens relates may distinctly be The fact of others who hurt. sociation may of victim’s know the details defendant should not ob- life the needs survivors of victim’s always unique ato individual scure the facts that death is harm, consequence group is so and to some survivors a foreseeability virtually The as to be inevitable. foreseeable killing’s consequences with direct imbues them moral relevance.88 case, found to have where the murderer was this simply child, a cannot take life of we

intended to Defendant, conclude, that the we asked to do as are family Justice child’s is irrelevant. As harm caused to that points out: O’Connor depersonalization.” It trans- is the ultimate act "Murder living person hopes, dreams, into a with and fears a forms corpse, thereby taking away special unique about all that is preclude person. from The Constitution does not deciding givesomeof that back.

(Citation omitted.) (O’Connor, concurring). Payne, J., at 832 Again, agree. we Washington speaks powerfully to State Constitution (amend. 84) Const, principles. 1, § art.

these fundamental part: provides in relevant justice meaningful in the criminal To ensure victims a role dignity respect,

system victims and to accord them due herebygranted following basic crime are fundamental rights. felony charged shall have the a crime ... victim of sentencing. right. . In the eventthe . statementat . . to makea identify may attorney prosecuting deceased, . the . . victim representative rights. appear the victim’s exercise ours.) (Italics 84) (amend. Const, language §1, is without art. language nothing

exception. tory or the his- in either the There capital suggest cases should amendment to of this wording excepted amend- constitutional the clear from right representatives giving victims’ ment to murder Legislature and the conclude that make statements. We *47 Washington victim, a crime intended that of voters of the State representative, to make a allowed should be or a victim’s (Sbuter, J., concurring). 88Payne, at 835-39 impedi- constitutional is a direct unless there

statement impact Supreme evi- allowed victim Once the Court ment. any Payne, per bar to constitutional in se federal dence mandate of was removed. admission of such evidence Washington, expressed people the State of processes through culminat- amendment the constitutional rights ing adoption to our amendment victims’ right give of crime the constitution, to victims is to state making by judicial process participate a statement sentencing. this are bound to enforce We the defendant’s hereby prohibition,89 do so. law absent constitutional allowing argues case also this The Defendant allowing really impact "victim result in evidence will victim reputable of more and that the murder worth” evidence penalty may for a defendant in the death victims result may not. less stature murder of those with whereas the danger, recognize potential of such it is not we this While by consequence which all evidence that we should disallow crime. the Defendant’s learns of the harm caused essentially regard argument in- in this The Defendant’s legal policy and we defer to the and not a issue volves issue Legislature judgment on the wisdom and the voters adopt allowing impact Furthermore, we evidence. victim argu- Supreme response same of Nevada to this Court ment: key to criminal argument unpersuasive.

We find the ability the sentencer sentencing capital cases is the the individual characteristics upon and consider both focus he com- impact of crime and the nature and the defendant weigh truly the evidence Only then can the sentencer mitted. just Apropos to deserts. and determine defendant’s before it Justice Cardozo by the venerable point is the statement 97,122[, Massachusetts, Ed. 54 S. 78 L. Snyder 291 U.S. accused, is (1934), "justice, though due to the 338] Ct. must not be concept of fairness also. The due to the accuser keep We are to to a filament. till it is narrowed strained balance true.” im- portraying created the evidence Defendant] . . . [The and their loved his victims tragic consequences

mutably 471 U.S. Campbell, P.2d 929 89State v. *48 his complain that a hardly position ones. He is a given his peers exposure was a fair handiwork. 600, State, 137,

Homick v. 127, 825 P.2d 606-07 108 Nev. or state that there is no federal Having decided evi impact on the admission of victim constitutional ban cases, Legisla whether the capital dence in we must decide As ex first such evidence. statutorily ture must authorize above, already has authorized plained Legislature sentencing at special of all relevant evidence admission II, nar case.90 Bartholomew In we in a procedure capital based on this court’s rowed that class of admissible evidence light Washington State Constitution. construction to our con rights the victims’ amendment of the addition of stitution, the classes of relevant evidence expand we now to also include may constitutionally which be admitted impact victim evidence. statute, RCW sentencing special proceedings as broad

10.95.060, intent to allow legislative evinces at constitutionally permissible as class evidence Therefore, we that conclude capital of a trial. penalty phase Legisla- unnecessary require be an act to now it would impact a victim state- again reiterate its intent ture member family be made a murder victim’s ment may The constitutional sentencing case. phase capital having evidence introduction of such impediment removed,91 un- admissible properly such evidence been statute.92 existing der have, of states that join majority we

By ruling we impact capital of victim have considered the issue We con- it admissible.93 have concluded cases and 10.95.060(3). 90RCW Tennessee,

91Payne supra. v. 10.95.060(3).

92RCW (Ala. 1991); State, App. 93E.g., Crim. 594 So. 2d McMillian v. 436, 465-67, 787, 832-33, Rptr. Edwards, 1 Cal. 2d People 3d v. 54 Cal. State, (1992); Hodges 2d (1991), 595 So. Ct. 113 S. victim have some cur with those states that concluded impact ev- relevant, conclude that such evidence is and we pro- per due not violation idence does constitute se Washington Constitution. clause of cess not that such evidence does We also conclude prohibition against cruel violate our state constitution’s punishment.94 Dodd, 1, 21-22, P.2d In State v. penalty we of our death held that context Const, procedures, interpret § 14, art. review we need punishment constitution, more the cruel broadly clause of the state Eighth constitu than the Amendment federal *49 Const, questions regarding interpretation art. tion. In of community objective §1, 14, standards, we look to current of include the and of other indicia which statutes cases jurisdictions above, as noted case law well as our own.95As country from across the indicates that the introduction hearings impact sentencing capital victim statements increasingly Many gaining acceptance. have wide states impact statutes which allow for statements.96 enacted victim vacated, granted, reaff'd, 929, (Fla.), (1992), judgment cert. 33 619 So. 933 113 S. Ct. denied, Card, (1993); 432-33, 272, 425, cert. State v. 121 825 2d 114 S. Ct. 560 Idaho denied, Howard, 147 1081, (1991), (1992); cert. State v. P.2d 1088-89 113 Ct. 321 S. Pasch, 133, (1991); People 103, 1044, v. 604 2d 588 N.E.2d 1066-67 152 Ill. 2d Ill. dismissed, 294, 2927, granted, 113 S. (1992), cert. cert. 114 S. Ct. 337 N.E.2d 322 Ct. (Ind. State, State, (1993); 111, 1992); Bellmore v. v. Benirschke 602 N.E.2d 577 121 (Ind. denied, State, (1992); 576, 1991), cert. Evans v. 333 N.E.2d 578 112 S. Ct. 3042 Williams, 985, 660, 684-91, 117, 129-32 (1994); State v. 1001- Md. 637 239 Neb. A.2d State, 390, (1992); 127, 135-38, 600, 02, Homick v. 108 Nev. 825 P.2d 480 N.W.2d 401 Lorraine, 212, (1993), (1992); v. State Ohio St. 613 219 605-07 66 3d N.E.2d denied, Johnson, (1994); 547, 119, 132, 410 State v. cert. 114 S. Ct. 306 S.C. S.E.2d 715 Evatt, 33, denied, (1991), (1992); 31, Lucas v. 416 cert. 112 S. Ct. 1691 308 S.C. 555 Smith, denied, (Tenn.), 1, (1992); S. State v. cert. 857 14 114 S.E.2d 647 S.W.2d 1993). (Utah (1993); Young, v. State Ct. 561 1, § 94Const. art. 14.

95Campbell, at 31-34. Bartolo, Comment, Future Role The Kathryn Payne Tennessee: 96See E. v. Proceedings, Capital Sentencing Rev. Opinion Iowa L. Victim Statements Slowinski, Note, 1217,1246 (1992); South v. Gathers: L. Carolina nn.211-13 Richard Capital Prohibiting Punishment Proceed the Use Victim-Related Information ings, U. L. 216 n.10 40 Cath. Rev. impact general acceptance evi- Because of the of victim accep- country, well our own State’s dence across as as impact evidence, tance adoption victim as demonstrated (amend. Const, §1, 35 of RCW 7.69.030 and art. 84), Washington State Constitution we conclude that the prohibition against provide per a se introduc- does punishment. tion of such based on the bar to cruel impact statements Because we conclude that victim Washington per Constitution, this do not se violate the any all such evidence is admissible. does not mean that and applies sentencing capital II, ER 403 Under Bartholomew proceedings. place rea This allows trial court certain impact scope amount and of victim ev sonable limits on the Supreme California, which allows vic idence. Court capital impact case, that such tim evidence in warns agree. jury must face limits. We evidence not without obligations soberly rationally, should not be its given may reign impression over it emotion to allow Therefore, trial function in each case it is the court’s reason. probative and to prejudicial. careful balance between strike Raley, agree People Cal. 4th We with the decision Rptr. 870, 830 712,8 Cal. 2d 678 P.2d (1993) Supreme California Court wherein the S. Ct. regard explained follows: court’s function trial hand, argument on it should allow evidence On the one *50 legiti- provide though subjects that could relevant emotional mercy impose or to the sway jury to show reasons to the mate hand, the irrelevant information sanction. On other ultimate from jury’s the attention inflammatory that diverts rhetoric irrational, subjective purely re- or invites an proper its role sponse should curtailed. (citing People Edwards,

Raley, 54 Cal. 3d 4th at Cal. (1991)). Rptr. 436, 1 Cal. 2d 631 impact is evidence conclude victim We therefore capital sentencing phase cases and that admissible balancing proba- experienced the courts, in which are trial prejudicial, against informed their should exercise tive impact permissible deciding scope of victim in discretion given us, there was in In the case before evidence case. father’s state- the victim’s no error the admission of daughter young or about the his ments about murdered family. upon profound As her murder effect may prop- recognized, Payne impact evidence victim Court erly description suffered emotional trauma include a family. by the victim’s any argues that the introduction

The Defendant also proportionality impact review will make the victim evidence 10.95.130(2) engaged by pursuant this to RCW court impossible will and irrelevant evidence because emotional already explained above that victim be introduced. We have impact jury’s is decision evidence not irrelevant subject penalty phase capital is of a case and such evidence by balancing fact an test the trial court. The ER does not in a trial emotional some of the evidence murder proportional- proportionality impossible. A render ity review independent is an review conducted this court review which on the defendant and on the crime committed focuses systemic problems and which to avoid the of random seeks imposition of the death sentence based arbitrariness nothing about the introduc- on race.97There whatsoever constitutionally permissible impact tion of victim impossible. proportionality review which renders Thirteen. Issue did its discretion in The trial court not abuse Conclusion. jurors jurors

excusing prospective indicated two after those penalty, that, toward the of their attitudes death because they they court that would be able could not assure the trial proceeding. penalty phase to follow the law the grant argues trial court’s decision Defendant that the prosecuting attorney’s potential motion to excuse two penalty jurors con- for cause due to their views on death requiring error, of the death sentence.98 stituted reversal Lord, 121 L. Ed. 2d P.2d 177 97State v. subject underlying 98Only conviction is and not the sentence death erroneously ground juror being capital that a in a case reversed *51 634 in a capital a case process qualifying” "death Supreme States consistently by

has been United upheld Washington.99 has in It is specifically upheld Court and been juror may appropriately a process whereby prospective may then be penalty be about the death questioned challenged juror’s capital punish for if the views on cause perfor prevent substantially impair ment would his of his duties as a accordance with instruc juror mance tions and his oath.100 a ruling

A trial in a case on capital court’s chal for be prospective juror to a cause will not reversed lenge give we a manifest of discretion.101On review def absent abuse finding prospective to the trial court’s factual erence is juror’s respect penalty state of with to the death such mind fairly try impart that he or she can or cannot case judge reason deference that the trial ially.102 The for this and, light observe the demeanor juror’s able to observation, and evaluate answers to interpret juror’s impartial.103 whether would be fair and juror determine penalty. Wither juror’s attitude death for cause because of the toward the excused denied, Illinois, reh’g 776, 1770, spoon 510, v. 391 U.S. Ed. 2d 88 Ct. 393 U.S. 20 L. S. (1993). Furman, 440, 450, (1968); State v. 122 Wn.2d 858 P.2d 1092 898 denied, Mak, 707, 407, 692, cert. 479 99State v. 105 U.S. 995 Wn.2d Blodgett, corpus on Mak v. (1986), sentence vacated writ habeas sub nom. 754 F. denied, (W.D. (9th 1992), 1991), aff'd, cert. Supp. Wash. 970 F.2d 614 Cir. 113 1490 (1986) 176, 181, Hughes, (1993); (citing v. 106 Wn.2d 721 P.2d 902 1363 S. Ct. McCree, (1986); 162, 137, Ed. Ct. 1758 Lockhart v. 476 U.S. 90 L. 2d 106 S. Witt, (1985); 412, 424, 841, Wainwright Ad v. 83 L. Ed. 105 S. Ct. 844 469 U.S. 2d Texas, (1980); Witherspoon 38, 581, v. 100 S. ams v. 448 U.S. L. Ed. 2d Ct. 2521 Illinois, supra. Witt, (quoting Wainwright Hughes, v. 100State 106 Wn.2d at 181 U.S. 4.44.170(2). 424). 6.4(c); See also CrR RCW 734, 750, Rupe, 108 101Statev. 743 P.2d 210 486 U.S. (1988); Mak, 105 Wn.2d at 707. Lord, 425-26; 102Wainwright, In re 123 Wn.2d P.2d 835 U.S. at 426; Rupe, 103Wainwright, See also State v. Nol 469 U.S. at Wn.2d at 749. (1991) tie, (quoting Orland & B. 14 Lewis H. Karl 809 P.2d 190 (4th 1986)). Prac., Trial Practice Tegland, at 332 ed. § Wash. ruling applied court the trial The standard to juror following: prospective challenge for cause is the juror’s may capital at- if that for cause case be excused *52 prevent penalty or substan- would death titude toward the juror performance in tially impair ac- as of his duties the oath.104 and his with his instructions cordance potential judge present two in case excused The trial the finding regarding penalty jurors death their beliefs the after substantially performance impair of their duties the would jurors in this case. as questionnaire, jurors was

Each the filled a written out subjected by judge questioned to examina- the trial and then attorney by prosecuting and defense counsel. We tion the carefully questionnaires and the testi- have reviewed the jurors mony here. of the two involved prospective jurors part, independently testified, in that The impose they they be able to the that would were uncertain they penalty. They could not assure also testified that death they the instruc- would be able follow the trial court that regarding imposition penalty. of the death of the court tions granted motions to excuse each The trial court the State’s judgment jurors to the the of these for cause we defer question we, not whether trial each instance. The court might disagree reviewing court, court’s with the trial as findings, findings fairly supported by but those are whether the record.105 Lord, (citing Wainwright, 309; Hughes, at 104In re 181 123 Wn.2d at 424). U.S.

469 at challenges argues limit for cause to those that that this court should Defendant Illinois, Witherspoon v. U.S. at meet the set forth in a footnote standard Defendant, Witherspoon standard, require interpreted by the would n.21. cause, unmistakably juror juror may make it for the must that before a excused (2) (1) automatically juror against penalty death or vote the clear would prevent juror’s penalty her him or from the death would attitude toward during guilt phase. making impartial This referred to standard was an decision Wainwright, at As by Supreme 469 U.S. 422. stated Court in 1984 in as dicta Wainwright herein, Supreme Court the standard enunciated we follow (1980). Lord; Texas, re 581, 100 See In v. Ct. Adams L. Ed. S. 448 U.S. 2d Illinois, 719, 119 Mak, Morgan Rupe; U.S. Ed. 105 Wn.2d at 692. See also L. 492, 112 S. Ct. 2222 2d 105Wainwright, U.S. 434. respect court’s decision with supports record trial opportu- had an jurors.

to these the trial court Additionally, as they demeanor nity prospective jurors’ observe the A reasonable trier fact responded questions asked. of these evidenced responses jurors could determine that imposition penalty an attitude of the death toward abilities impair their prevent substantially would not err in juror. the duties of The trial court did perform excusing serving panel. them from Issue Fourteen. judgment admitting There no error

Conclusion. criminal past and sentence as evidence of the Defendant’s of the trial. during penalty phase record trial, at- During phase prosecuting of the penalty Defendant’s torney judgments read the and sentences of the judgments All jury. criminal convictions to the prior objection. were read without defense sentences *53 judgment exhibit of the Penalty phase copy a certified rape to a for the relating and sentence 1988 conviction the the Defendant degree, first included information that: in the that the maximum degree, had first rape committed pre- that imprisonment, for that crime was life term months, range 120 that there sentencing was 96 to sumptive an justifying and reasons compelling substantial existed sentence, 240 that he was sentenced to months exceptional to confinement, and that he was ordered certain court pay signed by Judge was Ter- The and sentence judgment costs. case. Hanley, judge trial in this ence 10.95.060(3) 10.95.070(1), prior and RCW RCW Under capital of a in the penalty phase convictions are admissible objection made no to admis Although case.106 the defense and sentences to copies judgments of the certified sion convictions, that argues the Defendant now past show what was beyond scope information admitted went admissible, was the sen- Judge Hanley that the fact that and (Bartholomew (1984) 631, 642, Bartholomew, P.2d 101 683 1079 106State v. Wn.2d Lord, 829, 890, ID; 121 177 L. Ed. v. State 117 112 2d

637 and fencing prejudicial was judge rape conviction on the evidence. an comment constituted unconstitutional ap- 609 should have been argues The now that ER defense conviction admissibility prior plied to determine therefore balanced the and trial court should have previous prejudicial and the information probative ER admissibility. to determine its judgment sentence 609(a). prior when apply ER 609 does disagree. We evidence; the rule are as substantive convictions admissible of a conviction.107 only relates impeachment case, a prior of a evidence of phase capital In the penalty credibility, but being is introduced not attack conviction an aggravating evidence which constitutes substantive factor.108 also that the infor appears arguing defense judgment

mation in the and sentence which indicates pre than the given longer the Defendant was sentence and therefore inadmis sumptive "prejudicial” sentence it "prejudicial” sible. Evidence is not excluded because is but Bartholomew, In State v. unfairly prejudicial.109 because it (Bartholomew (1984) 631, 641, ID, P.2d 101 Wn.2d aggravat explained categories this admissible court which is designed to disallow evidence ing evidence are A untrustworthy, unreasonably prejudicial.110 unreliable reliable judgment highly of a and sentence copy certified relevant prior of a sentence is imposition exceptional an phase exceptional imposition issue. penalty Court, See, Ray, cmt., e.g., Washington Rules 213. 107ER609 (1991) (ER applies prior are P.2d when convictions witness) Brown, credibility (citing being impeach State v. of a admitted *54 (1989)); 551-52, 906, 520, 1013, 989 5A Karl P.2d 80 A.L.R.4th Wn.2d 782 P.2d 787 1989) (ER (3d Prac., 234, only Tegland, at ed. 609 concerned B. Wash. Evidence 227 § witness). credibility attacking a purpose a conviction offered for with 10.95.070(1). 890; 642; Lord, II, 101 Wn.2d at 117 Wn.2d at RCW 108Bartholomew Lord, at 109See 117 Wn.2d 891. reliability Lord, (explaining that the of the evidence 110See 117 Wn.2d 890 also crucial).

is 638 statute, 120(2), is 9.94A.

sentence authorized RCW Gibson, law.111In State v. regulated 32 carefully by case denied, 217, 786, review 221, 97 App. Wn. 646 P.2d Wn.2d (1982), Durham, Ap- for the Court of writing 1040 Justice introduced, peals, recognized when a it conviction will show the of the offense and the extent of nature Furthermore, We the introduction of punishment.112 agree. a sentence is the copy judgment pre- certified ferred conviction when it way prior introduce judgment admissible.113 The information contained aggra- did admissible scope and sentence not exceed Bartholomew II. vating evidence under argues also that because the trial Defendant sentencing judge rape was also the convic judge prior tion, signature judgment his and sentence constituted Const, 4, art. 16. on the violation of comment § conveys jury is one impermissible An comment which of the case or attitudes toward the merits judge’s personal not from what the said did jury judge allows the infer testimony in judge quest that the believed the say personally case, At the merits penalty phase capital ion.114 there is convinced that are jury the case are whether leniency. to merit RCW mitigating sufficient circumstances 10.95.060(4). on that Judge made no comment issue. Hanley Judge Hanley made does not contend that

The Defendant opinions regarding of his statements front of any merited; he the act of contends what sentence Judge Hanley in which admitting prior rape conviction Allert, Nordby, 163-64, (1991); v. 156, State 815 111Statev. 117 P.2d 752 Wn.2d (1986). 514, P.2d 1117 denied, 713, Coles, 563, 572, review v. App. 112Seealso State Wn. 625 P.2d (1981). Wn.2d 1024 (1989); Drummer, State e.g., 113See, App. v. 54 Wn. Boerner, Johnson, (1982); also David see App. v. P.2d 1099 33 Wn. (1985). Washington Sentencing 6-15 6-14 to Swan, 498 U.S. 1046 P.2d 610 114State

639 presumed greater imposed the sen a than had sentence However, the the evidence. a comment on tence constitutes prior rape judgment not com was and sentence of the court in This evidence; it the evidence. ment on the was (1991), cert. 829, 822 P.2d 177 Lord, Wn.2d State v. 117 (1992) recently explained that denied, L. Ed. 2d 112 121 using charged to ensure is its discretion the trial court with improper proper admitted evidence is evidence is and that standing alone, evidence, can excluded. The admission of on the evi an unconstitutional comment not be considered a comment on the a remark constitutes dence.115Whether upon communication, the the content of evidence is based only the who made the remark. We conclude not penalty phase not an exhibit 3 did constitute admission by the trial the evidence comment on unconstitutional judge. Issue Fifteen. during closing arguments of the State Conclusion. objected

argument permissible bounds, not were were within prejudicial counsel, to the Defendant defense were not ground and not a for are reversal. argues attorney prosecuting commit-

Defendant penalty during closing argument in ted misconduct (1) prose- following ways: phase four of the trial (2) cuting attorney argued evidence; which were not in facts (3) prosecut- attorney prosecuting law; misstated the analogy ing attorney murder of a Biblical between the used (4) story Goliath; and David and and the victim argument unfairly attorney’s prosecuting was tone of the emotional. prosecutorial applicable misconduct

The law recently 116 804 v. Hoffman, summarized State (1991): P.2d 577 Mak, 115Lord, P.2d v. 863. See 117 Wn.2d at also (it convey when not is a comment on the evidence it does not cause), denied, 479 U.S. judge merits cert. personal toward the attitudes Blodgett, corpus mom. sub Mak on writ habeas sentence vacated (9th (W.D. 1992), 1991), aff'd, Supp. Cir. 970 F.2d 614 F. Wash. S. Ct. 1363 improper argument charged, Where is the defense bears the establishing impropriety prosecuting

burden of attor- prejudicial ney’s comments as well as their effect. Reversal by required not if the could have curative error been obviated request. which did The failure to instruction the defense object prosecuting attorney’s remark improper constitutes so waiver of such error unless remark deemed ill an flagrant enduring it intentioned evinces resulting by an prejudice that could not have been neutralized the jury. admonition to

(Footnotes omitted). 116 Wn.2d at 93.116 Hoffman, citations *56 in

Allegedly comments are to be viewed improper the of the argument.117 context entire object any Defendant of present

In the case the did not attorney’s closing the prosecuting statements made in the Therefore, now in argument challenged by and Defendant. reversal, Defendant must demonstrate that require order to any flagrant was so and ill intentioned improper remark that the inherently prej- that it was and further prejudicial, neutralized caused the remark could not have been udice by a instruction. jury im- prosecuting attorney

The Defendant claims that the jury during "new” information to the clos- properly provided ing attorney when inferred that argument prosecuting the degree rape in the of an- suspect the was a first Defendant killed in case. woman he the victim this young other before argues in the record to show nothing The Defendant there case, when a in the he was suspect rape when he became against who testified him. charged or prior in the rape and sentence entered judgment ex phase penalty phase penalty case was admitted the victim; rape exhibit the name of the the hibit 3. The shows rape trial and she was alive at time fact that 1988); 23, the date (Apr. the date the offense sentencing; 533, 540, (1990); Ziegler, P.2d 79 State v. Mc State v. 789 116Seealso (1994). 57, Farland, App. P.2d 660 73 Wn. 867 denied, Mak, 479 995 105 cert. U.S. 117State v. Blodgett, corpus F. nom. Mak v. vacated on writ habeas sub sentence (9th 1992), (W.D. 1991), aff'd, Supp. F.2d 614 Cir. Wash. S. Ct. 1363 (Oct. 1988); and that at jury guilt verdict (Dec. had 20,1988), Defendant been sentencing time 1988) (since with mid-September for days incarcerated knew that also offense. respect prior rape offense 13,1988, on another July he was incarcerated since incarceration, the De- that during period even that of the victim suspect fendant was a the murder attorney present closing argument prosecuting case. reasonable drawing expressing has wide latitude inferences from evidence.118 the judg- on the face of

From the information contained conviction, it is not prior rape ment and for the sentence identified the unreasonable to infer that victim-witness deadly with a rape weapon Defendant as the of a perpetrator may have occurred some months the identification trial It also not un- September rape. before the for identification, the De- reasonable infer that because of the investigation rape an for that fendant became focus of case. young present he killed the victim in the before attorney argues prosecuting The Defendant also pose danger that Defendant would improperly argued is a likeli- prison Whether there persons system. within danger pose Defendant will to others hood *57 determina- jury’s future is a relevant consideration the penalty phase.119 the during tion the during penalty phase

The introduced the rape Defendant had been convicted trial showed that as as well other weapon manslaughter, with a and of deadly crimes, degree first aggravated he was convicted of before case. murder this not for jury, it was unreasonable

From the facts before argue Defendant to prosecuting attorney a danger to present who would continue dangerous person while incarcerated. even 94-95; Mak, Hoffman, 105 Wn.2d at 698.

118Statev. 116 Wn.2d at 10.95.070(8). 119RCW

The "facts” but challenged statements here were new which drawn from the facts reasonably inferences could be argued. in evidence and which arguments

Even if we were to find the we improper, not, any pos- do an have instruction would cured note, how- requested. sible effect. None We prejudicial ever, showing there is no here that the Defendant was This prejudiced by prosecuting attorney’s statements. or argument prosecuting attorney require does not justify of the sentence. reversal attorney argues prosecuting

The Defendant also during closing law by misstating the case prejudiced law, argument. jury, The stated the instructions to following: is the A is a the offense mitigating fact about either circumstance may mercy or in

or about the defendant which fairness extenuating reducing degree of moral considered as culpability death, of less al- justifies or which sentence than though offense. justify it does not or excuse the (Clerk’s sentencing Papers, Special proceeding instruction 2614). argued: prosecuting attorney The factors can "mitigating circumstance”? What And what’s Well, I’ll you them in a minute. But thing read factors and discuss you’ll some consider? basically, "mitigating factor” some- fairness the defendant which in about the crime or not met its mercy you believe that the state has would lead burden.

(Italics ours.) at 5789. Report Proceedings, objected was not mercy fairness reference or prejudicial. have been appear purposeful and does not crime in went on to discuss the prosecuting attorney impact victim statement and to discuss the detail of the clos- portion At of that father. the conclusion victim’s asked attorney prosecuting ing argument, fair; was merciful? Was this this *58 at 5799. Report Proceedings, of this crime to consider the jury right impact had also for family.120 proper and It was victim her upon of the crime.121 to consider the circumstances jury attorney Furthermore, prosecuting this argument by argument Even if the was not to the defense. objected by regard, in this prosecuting attorney improper had been an by have been cured impact upon its could jury. instruction attor- argues prosecuting

The Defendant next that argument during closing to a ney’s story reference Biblical had a racial effect and was improper. Defendant, closing behalf of the

During argument his on and defense counsel references to Biblical stories made at from the quoted length Bible. attorney’s closing argu- to prosecuting rebuttal that following:

ment included Bible, and chapter We could stand here and cite verse forever, morality justice, speaks that book us about and interpretation. would everyone have different particular story But Bible particular brings this case mind, Goliath, everyone, I would and that David and submit, all was story. heard that And we know that Goliath has David, evil, plague he of Israel. And [the] was children story a stone. hero slew Goliath with 13th, That But evil won with stone. was on June holding (indicating). man that stone just justice. And Bible talks a lot about And that did, sought bring the evil he was slain for what he for

Goliath down on the children of Israel. ... Report Proceedings, 5816-17. remarks, if are attorney’s they

A even prosecuting if were invited grounds they for improper, are reversal her reply are his or defense counsel and provoked statements, not a pertinent the remarks are unless acts herein, impact 11 and at 617- of victim statements Issues 120Seediscussion 633. Rice, 10.95.060(4); 121RCW

denied, 491 U.S. 910 prejudicial reply or instruction are so that a curative *59 he would ineffective.122 argues to the

The Defendant State’s reference the story was intended to evoke Biblical of David and Goliath feelings. the Da- racist The claims that the use of Defendant image analogy evokes an of the outsider vid Goliath killing from another tribe a member of the "children interpretation view, In of the this is a Israel”. our tortured story. use of this Biblical by provoked

Instead, or rebuttal here invited the was during his use of Biblical stories defense counsel’s extensive pre- any closing argument. event, In if the remark own prejudicial judicial all, it could not have it was not so jury, cautionary explanation to the had been cured with requested. one been additionally argues that the tone

The Defendant argument unfairly appealed attorney’s closing prosecuting lengthy jury’s included a emotions because it graphic description of and a detailed and the victim’s death speculative future. vision her attorney’s argument prosecuting did detail the

The long permissible This so as of the crime. is circumstances subjec purely argument an or not invite irrational does response.123 tive attorney’s closing argument capsu- prosecuting

Here the killing regarding young and in- lized attorney brutality girl. prosecuting discussed the The nocent way provoked an would have crime, but not in a part jury. prosecuting response The on the irrational impact attorney’s and her on victim references to family improper. were not Dennison, 85-86, (1994); Russell, v. 882 P.2d 747 State v. 125 Wn.2d 122State Porte, (1967); La 58 Wn.2d 435 P.2d 526 Wn.2d (1961) (remarks including prosecuting attorney, that would remarks of a P.2d 24 invited, they grounds are improper, for reversal where are not otherwise statements). counsel's provoked, or occasioned defense (a attorney 123Rice, because prosecuting muted at 606-09 Fleetwood, 80, 84, 448 indignation); natural State v. arouse

acts committed P.2d 502 miscon- prosecutorial claim of sum, with respect argument duct, closing attorney’s the prosecuting bounds. appropriate trial was within penalty phase Issue Sixteen. the jury properly The trial court instructed Conclusion. mitigating on the definition of circumstances. very instruc- argues this court that the defense now circumstances, ac- which was mitigating tion it requested error. constitutes reversible cepted given, in relevant instruction is identical proposed defense’s in pertinent 31.07 which states to the current WPIC part part: the offense mitigating A fact about either circumstance mercy may be in fairness or in or about considered culpability the defendant which reducing degree of moral extenuating death, less al- justifies or which a sentence of than *60 justify offense.

though it does not or excuse the mercy is itself appropriateness The of the exercise determining mitigating you may factor in whether consider the death proved beyond State has a reasonable doubt that penalty is warranted. (Clerk’s 5 instruction Special sentencing proceeding (part) 5784). 2614; Proceedings, at Report at Papers, 80 court, to in the trial State objected The this instruction "in fairness in the instruction should read arguing that mercy”.124 The than in "fairness in court mercy” rather the defense. gave proposed by the instruction nevertheless argues disjunctive now that the use The defense because it allowed the consider reversible error and thus invited the emotional mercy to fairness untethered in In re Rupe, unacceptable reaction that this court found (1990). 379, P.2d 780 115 Wn.2d 798 not be reviewed argues

The that this issue should State adheres to error, This court if it was error”. because "invited may provides party that error doctrine which the invited complain appeal an and then later instruction request recognize given.125We instruction was requested Proceedings, Report of 124 5772. 352-53, (1989); Neher, State Kin 347, 125E.g., v. 330 State v. 112 Wn.2d

caid, 304, 314, 692 P.2d 823 103 Wn.2d 646 regarding law there is some confusion in our case cases. capital doctrine in applies

whether invited error Rice, v. State n.19, In 757 P.2d 889 577, 611 denied, cert. (1989), relied (1988), this court 491 U.S. 910 Mak, decision in State v. 105 Wn.2d upon our prior sentence cert. (1986), P.2d 479 U.S. 995 Blodgett, corpus nom. Mak vacated on writ habeas sub (W.D. aff’d, 1991), Wash. F.2d Supp. F. (1993) denied, (9th 1992), Ct. 1363 for Cir. S. capital in that case we would review proposition error. invited Mak does not

However, In fully this conclusion. support Mak, error, in we while we did review the alternative stated that error in connection therewith clearly "any complained appeal”.126 of on invited error and cannot be from an erroneous instruction is different except failure to instruction; an the former is actually proposing erroneous error, invited preserve failure to the latter error invited clarify asks this court to whether defense. cases, from citing will be cases capital error reviewed invited error rule jurisdictions apply other which capital cases.127 Rupe, In re 798 P.2d 780 proposed an which had been we reviewed instruction an the context of ineffectiveness

by defense counsel solution to the issue. We deem this best counsel the invited error doctrine apply issue of whether of the invited will adhere to our normal use capital cases. We instructional er doctrine, any but will review invited error *61 argu counsel with an ineffectiveness of ror in connection any which was indeed ment; will ensure that error this denied, Mak, 748, 407, 692, cert. U.S. 995 126State v. Wn.2d 718 P.2d 479 105 Blodgett, corpus nom. Mak v. (1986), F. on writ habeas sub 754 sentence vacated (9th denied, (W.D. 1992), 1991), aff’d, cert. 113 Supp. Cir. 970 F.2d 614 1490 Wash. (1993). S. Ct. 1363 127 1, 61, 18 1233, 1326, Rptr. People Cummings, E.g., 850 Cal. v. Cal. 4th P.2d 4 McPhail, 636, (1994); denied, (1993), State v. N.C. cert. 128 Ed. 2d 219 329 2d L. 796 (Tex. State, 523,534 591, 596 (1991); App. 642, 406 v. Crim. Tucker 771 S.W.2d S.E.2d (1989). denied, 492 U.S. 912 1988), cert.

647 grounds prejudicial additional for reversal. The could be prejudice required ineffec- a successful for factor actual that the is- in turn insure counsel claim128will tiveness of Supreme Court The California sue is serious dimension. recently in error held it will not review invited has by capital explained a deliberate tactic cases, but that even incompetent thus, and, one a defendant counsel be an can raising instructional error who barred from may of counsel error doctrine assert ineffectiveness invited prejudiced. People 610, 80, Wader, P.2d if v. 5 Cal. 4th 854 (1993). Rptr. 20 Cal. 2d 788 economy judicial there has

In the interest of and because scope review, in our will this been some confusion on we "mercy language case address the issue of whether the sentencing mitigation (special fairness” in the instruction 5) proceeding fact, exact instruction was erroneous. given language given in 5 in this case has been instruction penalty prior in cases.129 several death Rupe, 379, on In re 115 Wn.2d 798 The defense relies (1990) argument language support 780 its that the P.2d "mercy Although language Rupe must be and fairness”. conjunctive, not hold it is error was decision does only disjunctive. says sympa The case that the "no to use the (which case) thy” at issue in that did not instruction mitigating given which conflict the instruction defined with mercy Rupe, and fairness.130In we terms of circumstances sympathy.131 not base its decision on held that a should Gentry, appears equate "sympa herein, Mr. The Defendant holding "mercy” Rupe thy” that it with and relies on proposi- give sympathy” for "no instruction is correct to 772, (1993); Jeffries, 780, Riley, 105 P.2d 554 128In re 122 Wn.2d 863 (1986). 398, 418, 722, denied, 479 922 717 P.2d cert. U.S. Wn.2d denied, 398, 422, Jeffries, 479 U.S. 922 717 P.2d cert. 129State v. Harris, 752; (1986); Mak, 975 Wn.2d P.2d Wn.2d at State v. (1987). U.S. Rupe, re 130In Rupe, 388.

131Inre 115 Wn.2d at *62 by the alone, not be considered mercy, tion that should concepts; However, are different jury. sympathy mercy be either defendant can directed toward sympathy toward the only the victim whereas can be directed mercy case, phase jury trial penalty defendant. In this court’s instruction concluded: upon be based your You bear in mind that verdict must should upon Throughout your deliberations reason and not emotion. sympathy. by passion, prejudice or

you must not be influenced mitigating a may mercy You find for the defendant circumstance. assigned has er- at The defense Papers,

Clerk’s 2608-10. ror to this instruction. given penalty identical language

WPIC 31.07132uses the Further, the commit- quoted instruction 5 above. phase jury states: tee comment WPIC 31.03 a between The there was difference committee debated whether finding by sympathy and being passion, prejudice or influenced The con- mercy mitigating circumstance. committee to be sympathy were "emotional” passion, prejudice cluded that considerations, finding "mercy” would be based on while "reason”. cmt., at

WPIC 31.03 348. supported by prior comment is well our agree. We This which circumstance holding mercy proper decisions jury may case consider.133 capital is not erroneous. jury instruction 5 Penalty phase Issue Seventeen. give required The trial court was not

Conclusion. statutory mitigating list circumstances the entire jury pre- they not be listed. requested when the Defendant circum- instructing mitigating on jury manner of ferred factors statutory mitigating include whatever stances is to instructions, but requests defendant be included should be nonstatutory factors. specific not include recently Jury Washington Supreme has Instructions 132The Court Committee proceedings. penalty promulgated pattern for use death instructions (Utter, J., 754; Mak, Rupe, dissent Wn.2d at 407-08 In re 133See ing). fac- mitigating relevant may it consider other instructed tors offered defendant. case, instructed the trial court penalty phase this

the jury as follows: [defining mitigating circum- mitigating

A circumstance stance]. any mitigating . You are also to circumstances . . consider *63 you the that concerning

other the offense or defendant factors to, following: relevant, including, find but not limited the to be pose a the will a Whether there is likelihood that defendant future; others in the danger to death defendant’s regarding The circumstances of the father; $15,000 dealing of mis- defendant’s with The behavior placed money; impact of a death on and his The sentence of the defendant family. (Clerk’s Papers, Special sentencing proceeding instruction 5 5784). 2614; at Report Proceedings, at had an which listed instruction prosecution proposed statutory eight all The State mitigating circumstances. have all argues possible that the trial court should included not have statutory mitigating circumstances should ones. The regarding any specific nonstatutory instructed "individually mitigating that tailored” circum- argues the evi- may stances instruction constitute comment on Const, 16. dence violative art. § it not for the repeatedly

This court has held error mitigat- trial list of give jury statutory court to the entire clearly ing even some them were circumstances when particular Additionally, case.134 we have inapplicable from held also is not for the trial court to delete that it error (1984) (not 709-10, Rupe, error to instruct 101 Wn.2d 683 P.2d 134State v. though clearly apply, eight statutory and not er on all factors even several did not mitigating nonstatutory when the instruc ror to fail to instruct on circumstances factors, including, jury any but not limited tion told the it could consider relevant (1984) ones); 1,28, to, statutory Campbell, 103 Wn.2d the listed State v. (not statutory mitigating cir on the evidence for an instruction list comment defendant), by U.S. cumstances which were not asserted (1990) (an Rupe, P.2d 780 instruction which re lists, nonexclusive, jury any statutory relevant and informs the as factors proper). mitigating be factors can considered is mitigating circum- mitigation statutory instruction those stances which the did not wish to be listed.135 Defendant cir mitigating comments to WPIC regarding is the the Mak rule capital suggest cumstances cases factors asserted approach only better those in the instruc defendant to be should be included relevant prior we adhere to our agree. Although tion to the We jury.136 give decisions that it not error for the trial court are or inapplicable, the full list even when some listed, deleting those that the defendant did not wish which allows trial court to the better rule is the latter re statutory the defendant’s delete irrelevant factors including eight all quest. The State’s instruction proposed factors, error, is not the although preferred not reversible instruction.137

However, beyond deleting trial here went court nonstatutory mitigat- irrelevant factors and added statutory The com- ing requested by the Defendant. circumstances 3Í.07, at address this factual ments to the new WPIC situation follows: in- should be nonstatutory relevant factors

Whether is an issue to be jury the trial court. See instruction as matter law cluded *64 Bartholomew, State v. 101Wn.2d by resolved (1984), 844, 631, 710 104 Wn.2d appeal 683 remand P.2d 1079 after (1985). included, nonstatutory are those P.2d If factors 196 evidence, by law and the supported should be case factors should dence. commenting carefully on the evi- articulated to avoid that rel requirement no constitutional each There is in- specific of a subject be the mitigating evant circumstance 692, 757-58, statutory Mak, (eight 407 factors 135State v. 105 Wn.2d might determining jury wish to consider of the factors the serve as illustrations denied, leniency), mitigating cert. 479 to merit if are sufficient circumstances there Blodgett, corpus Mak v. habeas sub nom. U.S vacated on writ 995 sentence (9th (W.D. 1992), denied, 1991), Supp. aff’d, 970 614 Cir. cert. Wash. F.2d 754 F. 1490 (not 422, 398, (1993); Jeffries, P.2d 722 error 717 State v. S. Ct. statutory any request of the not to include court accede to defendant’s for trial (1986). instruction), mitigation U.S. in the factors cmt., 136WPIC31.07 358. 31.07, Mak, 758; at 357. Wn.2d at WPIC

137See evi- such is that jury. requirement The struction to a specific but jury, lie presented dence be allowed to is not factor mitigating potentially instruction as to each 2d Texas, 350, L. Ed. Johnson v. 509 U.S. mandated. Johnson, (1993). United States 113 S. Ct. 2658 ais youth although that held recently Court Supreme sentencing jury capital that a circumstance mitigating aas youth consider, an instruction be allowed to must mitigating as the long mandated so factor is not mitigating sen- reach of the 'the effective is "within evidence ”138 to con- jury allows the An instruction which tencer.’ con- any other factors mitigating circumstances sider as jury finds defendant that the offense or the cerning within the factors to be mitigating allows the be relevant case, language In this such jury.139 effective reach 5. instruction penalty phase jury was used mitigating factors case, nonstatutory listing In this of, the Defendant for the benefit by, and was requested How- instruction. no in the trial court’s and we find error cases, practice that the better ever, we conclude for future factors the defend- statutory mitigating to include whatever instructions, non- but that ant be included requests in the instruction. not be enumerated statutory factors may language should include instruction other factors con- any mitigating circumstances consider it finds relevant.140 or the defendant cerning the offense language used should avoid mitigation instruction (and by timely excepted court in this case the trial State) certain mitigating” consider as "are to jurors as to the decision mitigation; factors offered nonstatutory is, fact, should be mitigating whether proffered jury. left 306-07, Texas, 113 S. Ct. 2658 Ed. 2d 125 L. 509 U.S. 138Johnson *65 31.07, 2614; 5, Papers, at 357. at WPIC

139Penalty phase Clerk’s instruction (defendant pres be allowed to 140See, should Rupe, at 398 e.g., re 115 Wn.2d In evidence); Tuilaepa California,-U.S- mitigating v. see also ent all relevant 750, 114 S. Ct. 2630 Ed. 2d 129 L. Eighteen. Issue jury which statutory question capital

Conclusion. required unconstitutionally vague. is is not answer case, required

In penalty capital jury of a phase in- which was following statutory question to answer sentencing special proceeding cluded in the trial court’s (Clerk’s 2613): Papers, instruction has been Having in crime of the defendant mind the which doubt that guilty, you beyond are convinced reasonable found merit le- mitigating are circumstances to there niency? not sufficient 10.95.060(4). RCW (without authority) argues any supporting

The Defendant during jury decide question which vague unconstitutionally capital case is penalty phase of process Amendment and his due Eighth in violation of the rights. fact did raise issue below Defendant this As explained

requested substantially identical instruction. ap- error will be above, in the the doctrine of invited future cases, will address the this case we plied capital but issue. Benn, 845 P.2d

In v. 120 Wn.2d denied, (1993), argued defendant 114 Ct. 382 cert. S. failed to channel statutory question quoted above of law and discretion, unequal administration promoted sentencing We jury. comprehended could not be argument follows. answered particular question previously that the This court has stated by statute under RCW put jury as mandated which is 10.95.060(4) Eighth Amendment. process and satisfies due 422-23[, [398,] cert. Jeffries, 105 Wn.2d v.] See [State [1,] (1986)]; Wn.2d denied, Campbell, 103 [State v.] U.S. (1985)]; 28[, [State 471 U.S. 1094 691 P.2d 929 (1984)]; [631,] 647[, Bartholomew, 683 P.2d 1079 101 v.] (1984)]. [664,] 709[, P.2d 571 .683 Rupe, [State v.] Benn, Wn.2d at 669. 129 L. Ed. 2d Tuilaepa California,-U.S-, (1994) Court Supreme States the United Ct. 2630 S. *66 determina- individualized

explained requirement that can jury is met when tion cases required capital and of the character mitigating evidence consider relevant crime. and the circumstances of the defendant record and focus on state is to jury this capital This is what instruction by 4 was followed instruction jury penalty phase mitigat- to consider that it was jury which informed the the offense concerning any other factors ing circumstances sentenc- Special be relevant. that it found to or the defendant 2614). (Clerk’s We Papers, instruction ing proceeding in the that conclude, repeatedly past, as we have concluded 10.95.060(4) is constitutional. RCW Issue Nineteen. support There was sufficient evidence Conclusion. cir- mitigating not sufficient decision that there were

jury’s of death is not The sentence leniency. cumstances to merit was not a result or The sentence disproportionate. excessive or passion prejudice. statute, this court reviews Under our state’s death penalty by analyzing impose penalty decision to the death jury’s three issues: (a) justify the affir- there was sufficient evidence Whether 10.95.060(4); and finding question posed by to the RCW

mative (b) dispropor- or the sentence of death is excessive Whether cases, considering both penalty imposed in similar tionate to the crime and the defendant. .; . (c) through brought about the sentence of death Whether passion prejudice!.] 10.95.130(2) (part).141 RCW RCW question posed by "yes” answered

10.95.060(4): has been Having mind the crime of which the defendant doubt beyond a reasonable guilty, proven has the State found mitigating circumstances to merit not sufficient there are

leniency? at 2618. Papers,

Clerk’s the evidence for sufficiency The test to review that decision is whether: Lord, 121 L. Ed. 2d 822 P.2d 177 141State v. light favorable to viewing

after most have found suffi- prosecution, rational trier of fact could any finding beyond affirmative rea- justify cient evidence to this sonable doubt.

(Citations omitted.) Lord, mitigating at 906. his the Defendant include circumstances asserted him with him, one had ever discussed family loved that no father killing mother his abusive surrounding facts his had not he he was young, in self-defense when apparent oppor- had been an money some when there stolen testimony from was also extensive tunity to do so. There he had a friends that family Defendant’s number *67 his him and family and that raised loving mother extended also pre- death. Evidence was after his father’s brothers role male and female strong positive he had sented that neglect of was no evidence during youth. his There models are mitigating circumstances of the Defendant. or abuse crime and his prior in relation relatively unpersuasive history. criminal to death bludgeoning

The Defendant was convicted identity regarding his in order to conceal 12-year-old child He had been girl. previously assault the sexual two bur- manslaughter degree rape, of first convicted child, brutal, his victim particularly His was crime glaries. cir- mitigating was violent and the background his criminal this, light of we conclude minimal at best. In cumstances for a trier sufficient evidence rational was indeed there was not merited. leniency found that fact to have 10.95.130(2)(b) also determine: this court requires RCW disproportion- is excessive or of death Whether the sentence cases, considering both the in imposed similar penalty ate subsection, of this purposes For the crime and the defendant. Washington Reports reported cases "similar cases” means January 1, Reports since Washington Appellate or capital imposition jury considered the judge or which executed, imposed it regardless whether was punishment supreme been filed with the reports have and cases in which 10.95.120[.] court under RCW avoiding inis review proportionality

The concern arbitrari random in death sentences: systemic problems two on race.142 based of the death sentence imposition ness and a motivat- race was case, no evidence that In this there is sug- the Defendant’s contrary for the jury, factor ing murder cases aggravated degree of the first gestion, review Washington pattern imposition does not reveal or the the race of the defendant upon death based penalty to death large majority of those sentenced victim. the current statute have been Caucasian

Washington under Rice, Benn, Lord, Brian David Campbell, Gary Charles (e.g., Jeffries, Dodd, Bar- Wesley Dwayne Mitchell Rupe, Patrick Brett). Harris, tholomew, Furman, Benjamin Michael James death, 29,143 was sentenced to No. is an African American who killed African American defend- Many but he also had before. (and murder hence aggravated degree ants convicted of first eligible for death have not been sentenced penalty) (defendant Nash, was death. State v. Jose No. 103 E.g., female); State v. African American and victim was Caucasian (defendant Nash, Emmett No. 102 was African American (de- female); McKinley, was Caucasian State v. No. 105 victim and the victims were African fendant was African American (defendant Scott, females); No. 109 American State v. and the was an African American

African American victim (defendant Russell, female); No. 120 was African females); all were Caucasian American and three victims *68 (defendant Graves, American No. 126 was African State v. female); Brown, No. 131 and victim was Caucasian State v. (defendant Afri- was African American and the victims were Galbert, females); No. 33 can American and State v. Hispanic (defendant and the victim was Cauca- was African American (defendant male); was African sian State v. No. 79 Knight, Benn, cert. 142Lord, 909; v. State 120 Wn.2d 117 Wn.2d at denied, 114 S. Ct. 382 assigned sequential the trial court’s numbers 143The numbers refer to 10.95.120) they (required by this court. reports are received RCW 656 female); State v.

American and the victim was Caucasian (defendant Thomas, and the No. African American was Maryland, State v. female); No. was victim Caucasian (defendant and the victim was was African American (defendant Lewis, v. was female); No. 88 Caucasian male); and the was Caucasian African American victim (defendant Hankerson, State v. African Ameri- was No. 90 Fountain, State v. Asian); No. can was victim (defendant was American and the victim was African female). African American convic brief lists 15 other murder

The Defendant’s the defendants similarities for which superficial tions with this shows the argues were not sentenced to death in this case. We dis penalty disproportionate death they are distin cases we conclude agree. reviewing In those cases cited case. In none guishable present from the only ones of those the defendant killed before. had children, de either the cases where the murder victims were (State v. Hov history had of violent crimes prior fendant no (State land, 6) very intelligence had low or the defendant No. Brown, No. 2) v. plea bargain into a State had entered have in an which resulted because of lack of evidence could (State Lord, Sanders, 81). Furthermore, No. acquittal we explained: 117 Wn.2d be no to ensure that there can Our is not intended review basis, guarantee case-by-case nor to on a

variation similar circum- always imposed superficially penalty death only Requiring precise uniformity would . . .. stances unworkable, Indeed, penalty. effectively eliminate the death it would its decision to individ- jury is directed to tailor crime. circumstances of the ual the nature we examine

In a review proportionality circumstance, crime, the defendant’s aggravating history.144 personal convictions and prior Defendant, Gentry, guilty Jonathan Lee found cir aggravating with the degree first murder of premeditated Lord, 910-14, 121 L. 144Statev. P.2d (1992); Benri, Wn.2d at 680-93. Ed. 2d

657 The nature identity. of his being cumstance concealment facts of this The of the here was brutal. particularly crime Lord case, found not which we case similar to the very are Here, similar to other cases. to be disproportionate 16-year- 12 old than the younger years victim was even at in Lord. in apparently old crime this case victim The was longer period particularly a of time and spanned bludgeoned was and brutal; sexually victim assaulted case, a rock. As in the Lord pathologist death with blows, sequence exact was unable to determine the much the way and there no sure know how therefore died, struggle before but the apparent victim suffered she suffering before she the forest indicates and terror through murder conscious suf involving died. A brutal substantial fering deserving murderer more of the victim makes the Lord case, murder was penalty.145 death As this longer more a of time than encompassed period vicious cases where sentenced to some the defendants were where many death.146It was more brutal than murders was not death penalty imposed. history record prior Defendant’s criminal showed raped He killed before had 17-

violent behavior. had knife murder. year-old girl point long at not before this death is not on the disproportionate Defendant’s sentence Furthermore, mitigating basis of his criminal record. deserving mercy were as as some circumstances not See Rice sentence was imposed. other cases where death (severe abuse). (severe disturbance); Dodd mental childhood intelligence There indication lack of normal is no in some youthful was not cases Gentry mental disease See, State e.g., v. imposed. penalty where the death (de- (defendant Ortiz, retarded); State v. 93 Caffrey, No. No. 1 (defendant Stohs, v. ill); State mentally No. 82 fendant old). (defendant Reite, State v. old); years years No. Benn, (Utter, J., dissenting); Rupe, 108 at 120 Wn.2d 145See (1987) (Pearson, C.J., dissenting), 486 U.S. P.2d 210 146Lord, therein. at 912 and cases cited in this case that important consider it particularly

We felony violent which prior Defendant had been convicted of death, before this shortly had resulted the victim’s knife raped teenage girl murder the Defendant had *70 child, an innocent point, that the Defendant murdered her and terror before pain child suffered substantial relatively circumstances were mitigating death and that crime, years of the weak. Given the brutal nature tender of the and the victim, prior of convictions Defendant circumstances, we conclude mitigating lack of compelling disproportionate. not excessive or the sentence was or any passion of No evidence is offered the Defendant ad- in other issues and from that prejudice apart alleged prejudice argued of or allegation passion The dressed above. impact evi- of victim to have resulted from the introduction in of that issue. dence is addressed above the discussion of reiterations Lord, Benn and we the defendants’ rejected of the defend- parts in other alleged trial errors addressed argu- or a passion prejudice ants’ for appeals support prejudice independent allegation passion ment.147No of in the record. any and we found no evidence made for and the case is remanded The conviction is affirmed issuance a death warrant. JJ., Smith, Guy,

Brachtenbach, Dolliver, Durham, concur. — of this court (dissenting) majority approves J. Utter, To the in criminal cases. of unreliable evidence admission who be so, freeing may guilty it those

extent it does invites Both the National convicting may who be innocent. those a which this court relied Report, of Sciences Academy v. Frye scientists at the case, and the of the testimony previous 1923) (D.C. hear- 1013, Cir. States, 293 34 A.L.R. United F. trial, that, Gentry’s polymerase at the time ing established Benn, 114 Ct. 382 S. 147State 120 Wn.2d Lord, (1993); at 914-15. (DNA) (PCR) evidence chain acid deoxyribonucleic reaction capable methodology as a generally yet accepted was not on forensic reliable results consistently producing PCR evidence Furthermore, admission samples. performing this because scientist problematic case is protocols. failed to the manufacturer’s testing follow intro- the PCR should not have been Accordingly, test, prong Frye duced it fails the second because accepted methodology generally which requires may before its results be admitted court. arbitrary

I Gentry’s sentence is also dissent because 10.95.130(2)(b) against RCW capricious under when viewed other cases which did not result aggravated murder death. penalty of

I Admissibility Frye of Pcr Under admissibility juris- in this novel scientific evidence States, governed by diction is test. See v. United Frye Frye *71 at 1014. That admission of supra permits test evi- Frye deriving theory only dence from or if principle scientific the theory principle "general acceptance has achieved in Martin, scientific community”. relevant State v. (1984). 719, Wn.2d P.2d 651 (1)

The has is a test two whether there the- Frye prongs: in ory general acceptance which has achieved the scientific (2) so, and if used technique whether to community, theory generally in the implement accepted is also sci- Cauthron, entific community. State v. 888- (1993). among exists significant dispute 846 P.2d 502 If evidence, validity as to of the scientific qualified experts theory implementing either as to the or its underlying Cauthron, 120 Wn.2d at may it not be admitted. technique, inquires technique 887. A third which whether prong, weight, given goes was carried out in a instance properly 889; Cauthron, State v. Kala- admissibility. 120 Wn.2d at kosky, 121 Wn.2d in was reiterated Frye recently

Adherence to the test 886-89, which Cauthron, frag- held restricted v. (RFLP-DNA) evi- length DNA fragment polymorphism ment testing RFLP deciding dence admissible. In whether Cauthron, court in this Frye admissible under the standard Comm, to a and issued report looked new exhaustive Science, in Technology Technology on DNA in Forensic DNA (Nat’l 1992) (NRC Academy Report). Forensic Science Press held RFLP had report, on the Relying majority context, and as general achieved in the forensic acceptance Cauthron, supra. such was admissible under See State Frye. testing PCR has not same NRC states that Report in full context: acceptance achieved the forensic greatly summary, it well one can In is established that authenticity reliably one can amplify detect alleles or with and that locus with sequence amplified variation at the locus extremely analysis is any techniques. of a number of PCR powerful acceptance even technology, yet in medical but it has not achieved full setting. analysis, theory of PCR forensic DNA, as though analysis synthetic opposed is of it sample, scientifically accepted and has been ac- the natural However, cepted by a most forensic laborator- number of courts. energy development ies ogy in of RFLP technol- have invested their technology PCR development and left of forensic have Thus, broad base ex- to a few other laboratories. there no of testing. technique identity perience the use of gained respect with experienceshould be general, further identity the extent of the con- testing. Information on PCR ampli- analysis PCR and the differential problem tamination developed to be further samples of mixed needs fication be great information can obtained published. A deal this systems are available for PCR polymorphic when a number polymor- Ambiguous with number analysis. results obtained or mixtures DNA in signal contamination phic markers will a sample. explored, be to make Quantification of PCR needs to results gain experience with Laboratories that

the results more reliable. cycle relationship number between PCR should determine contaminating easily for each DNA detected percentage amplify amounts system primers that small used. Control amplifica- robustly added to test from the reliably need DNA *72 new general, polymor- information derived tions. easily quantifiable with conditions phic loci under standardized Considerable advances points results or end use PCR in forensic needed. soon; the method analysis expected can promise. had enormous

(Italics mine.) 70. NRC at Report, testing clearly Report PCR The NRC indicates substantively may subject af- to technical difficulties which Report reliability produced. The NRC fect the of the results namely problems, specifically differen- these also states that samples, amplification, mixed contaminated tial yet adequately samples, addressed. For have not been general yet methodology ac- reason, had not achieved this testing. ceptance in forensic accep- general concluding PCR has achieved

The error of community testing on forensic in scientific for tance samples comprehensively forth in the dissent set (1994).The dis- P.2d 747 Russell, 125 Wn.2d State v. ap- fully reasoning concurred, Russell, in I which sent’s plies equal fails to here. Because the evidence with force general acceptance part Frye requires meet the which implementing technique issue, erred in at the trial court admitting it. Report, disregarding of the NRC

Even the conclusion singularly given this court’s reliance which is awkward testimony report supra, Cauthron, State v. Frye hearing associated the numerous difficulties established applied producing when PCR is to fo- with reliable results reliability testimony samples. that the rensic The indicated very testing is at the least the of PCR the forensic context significant controversy subject in the scientific commu- generally Accordingly, majority’s nity. treatment of it as accepted is untenable. hearing Frye presented in- at the 6-week

The evidence expert scientist, Dr. witnesses and the forensic cluded seven admissibility whose is at is- Blake, conducted the tests who sue here. hearing agree. experts That testi- could not at the beyond any

mony, doubt that below, establishes summarized majority’s is admissible under the evidence conclusion generally accepted Frye is erroneous. it is because Haig following H. Ka- State: testified for the scientists Daiger, Stephen Henry Ph.D., Erlich, P. zazian, Jr., M.D., A. Beroldingen, Hlavaty Ph.D., T. and Edward Ph.D., Cecilia von *73 Blake, Bakken, Ph.D., Ph.D. For the were Aimee defense Bhagwat, Ph.D., An Ashok Adler. affidavit and Mr. David from Dr. was Richard Roberts also admitted. Haig Kazazian, Jr.,

Dr. of Center for Medical director diag- Hopkins, Genetics at used PCR for medical Johns had He nosis but had never tested crime scene evidence. testified samples. degraded that PCR used and old He can be Corporation’s kit, he stated had reviewed the Cetus PCR procedures used, he had and that the would be which not generally accepted community. Report of in the scientific Proceedings, Proceedings, Report 280; 11 at 444-45. at of Kazazian Dr. Blake’s and stated Dr. reviewed conclusions appeared Report of Proceed- the results ings, be accurate. 10 testimony he was a at At the time of his 292-93. Na- member of the National Research Committee Academy Sciences, released its tional report of which had not confidential, Kazazian

on DNA. it was Dr. Because its but that to the best testified he could not reveal contents knowledge the committee on of his was a consensus of there technology pur- DQ-alpha for of forensic use the Cetus Proceedings, poses. Report at 250. of biologist, Roberts, DNA has worked with Dr. molecular research at the assistant director for since 1972 Spring affidavit concluded New York. His Cold Harbor generally accepted method to assure there is not a product sought amplified amplification of to be PCR that "at our of a He concluded rather than contaminant. impru- ignorance, knowledge, present it of would state solely by rely upon the PCR method.” data obtained dent to testing performed Blake the PCR Dr. He also reviewed agree Blake with Dr. and concluded he could this case geno- unequivocally showed a that the shoelace bloodstains type 1.2, 3, there was contamination because (Frye). Ex. 15 1.1 allele. control which showed geneticist Henry Hu- and director A. Erlich is a Dr. Corporation, Department and has at Cetus man Genetics Report expert trials. an in other criminal been used as Proceedings, Report Proceedings, at 496. 466; 12 at 471, person understands if the is reliable He testified that PCR carefully principles the reactions PCR, carries out Report interpret of Proceed- the data. and knows how to ings, at 543. purposes examination admitted for cross

The trial court Casey, M.D., chairman C. Thomas an affidavit written College Baylor at for Molecular Genetics of the Institute diagnostic lab- of a DNA and the medical director Medicine oratory Baylor. was written October People His affidavit McSherry, McSherry 14 Cal. case. for use Rptr. *74 (1992) (ordered publication in withdrawn from 2d 630 testing reporter). new, PCR His affidavit concludes official excluding testing yet the validated, result and that the McSherry, incorrect. defendant, of the DNA was as a source changed thought Casey some had Dr. Erlich testified he Dr. writing McSherry opinions affidavit. the of his Report since Proceedings, at 711. of genet- professor Kidd, of

An from Dr. Kenneth K. affidavit University biology psychiatry of ics, School at Yale any of literature Medicine, concluded he was unaware problems in the forensic of PCR evidence addresses context. serologist a Blake, with doctorate T. a forensic

Dr. Edward regarding criminology previously PCR- testified in who has performed case. He evidence, PCR tests this DNA Gentry’s typed In the first of shoelaces. blood on both any testing, July 1989, was unable to obtain he conducted typing shoe- from the the material removed DNA because Report amplification reaction, Pro- of inhibited the laces (Frye). ceedings, However, he when 1286-88; at 3 at Ex. again April 1990, concluded that the he ran PCR tests genotype 1.2, 3, with consistent shoelace on each Proceedings, Report 853; 20 genotype at of victim. 13 (Frye). Proceedings, Report 1288, 1221; 4Ex. at of DQ-alpha and the con- test PCR Blake described the Dr. laboratory He testified contamination. he used to avert trols laboratory, Associates, was Science Forensic further that his using routinely laboratory on crime only PCR crime Proceedings, Report August at of 1990.19 scene evidence using By 1151. labs were March several other Proceedings, Report 1159-60, Dr. Blake test. 19 of at 1166. type amplification”, testified that each of "differential dropout mistyping of which can and a lead allelic Proceedings, sample, Report at has own remedies. of its 1193-94. genetics Daiger,

Stephen professor Ph.D, P. of medical University Texas, PCR in the foren- at the of testified that poses relatively probabil- low, measurable, context but sic (causing amplification ity al- that there will differential typically dropout) and it lead to the lelic would Proceedings, suspect. Report of erroneous exclusion presence He of two alleles at 817-18. Gentry testified that against dropout argued in this case. 18 test allelic acknowledged Report Proceedings, He also at 924-25. setting danger but stated in the forensic contamination help to eliminate contamina- that certain measures could Proceedings, Report at 912-15. He testified tion. 18 accepted testing generally done here was the reverse dot blot Proceedings, community, Report in the scientific gen- genetics population data bases were and that the Proceedings, erally accepted Report reliable, at 925- acceptable opined 26. found Dr. Blake’s results He DQ-alpha generally accepted protocols would be Cetus *75 Proceedings, community. Report 923,1016. of at scientific Beroldingen, Hlavaty Ph.D, DNA a forensic Cecilia von Laboratory, Oregon specialist Police Crime with the using DQ-alpha for case- PCR method forensic testified that amplification, that in but work does not alter usual PCR samples may exposed environmental DNA be to forensic comprised damage may be of the DNA and insults that biological samples, i.e., from two of stains mixtures mixed Proceedings, Report at of individuals. 23 different agreed report with its and She reviewed Dr. Blake’s 1655. Proceedings, Report She described of at 1609-10. results. 23 (the amplifica- preferential possibility dropout of allelic phenomenon amplification) which tion or differential being because it 1 allele not detected results in number amplified. opined in the had not occurred She this is not number of the amplification there was Gentry case because Proceedings, at 1613. 1 allele. 23 of Report at Ph.D., chemistry of Bhagwat, professor Ashok S. working University, years’ experience with 12 Wayne State testing, testified DNA, but who has not done forensic with lab testing in the research that the differences between PCR PCR are substantial and that the forensic context community in the scientific testing generally is not accepted problems for on crime scene evidence because testing samples preventing duplicate of contamination and limited 2238-40, 2290. Proceedings, at With of testing. Report contamination, powerful is so he stated that PCR regard devastating could be single that a cell contamination unlikely contamination is problem result and that of easily for from crime scenes. arising solved of at He that unless Report Proceedings, 2238-39. testified testing, sample perform duplicate there was sufficient as reliable. would not the results community accept scientific by 2239. He reviewed an article Report Proceedings, of at Polymerase An Evaluation Werrett, Westwood and Chain Reaction Method Forensic Applications, Forensic for (1990), it raised serious Science Int’l concluded that DQ-alpha kit application about the Cetus questions evi- interpreting and the dot blot use for forensic reverse 2253; Report Proceedings, (Frye). at Ex. 86 dence. See 28 to Improve He also reviewed the article Use Formamide HLA DQ-alpha Sequences, Comey, Jung Amplification of Budowle, BioTechniques no. and con- vol. 10 occur in the it said that allelic could dropout cluded that temperature if amplification process PCR even Pro- Report maintained. cycler properly thermal 2286; Ex. 87 ceedings, (Frye). at reli- report possible it was Bhagwat

Dr. testified because Gentry’s shoelaces from the tests run able result the shoelace part an taken from unstained the controls up not show in that control did and the allele DNA showed of Proceedings, 28 Report of the bloodstain. on the test affidavit that Dr. Robert’s Bhagwat agreed Dr. with 2256-57. *76 666 yet generally accepted use forensic

PCR not for was samples. Report Proceedings, 28 of at 2252-53. faculty mem-

Mr. Adler is a research associate David Washington degree University at with masters ber of biology of PCR in has conducted thousands molecular who setting. Report tests, in 29 of Proceed- not the forensic but ings, DQ-alpha PCR kit at He the Cetus 2385-90. testified community generally accepted not the scientific was Report evidence, of on crime scene 29 reliable for use regarding problems Proceedings, at and testified understanding thermodynamics, samples lim- mixed Report making testing impractical. samples duplicate ited Gentry Proceedings, He of at also criticized the 2398-2401. of contamination the environ- test conclusions because shoelaces, no mental duplicate and because there controls testing. Proceedings, Report at of 2440-44. Hayes professor Ph.D., Bakken, is a and researcher Aimee University Washington biology who has not done in any at the of testing has not evidence and DNA on crime scene testing. Proceedings, Report personally performed PCR in the 2086-87, She Dr. Blake’s conclusions at 2168. testified generally accepted Gentry in the scientific case would not be reading Report Proceedings, community. at 2097. Prom generally ac- literature, not she concluded PCR is community cepted as it is scientific for forensic use Proceedings, evolving technique. Report at an still 2176. approval majority’s of the admission of PCR evidence generally accepted it treats as case is erroneous because

this testing testimony Report NRC and the which the method generally accepted time was admit- at the it indicated was not problematic Dr. is also because ted. Admission of protocols in conduct- from Blake the manufacturer’s deviated Proceedings, ing testing. Report also at 2132.See See 27 majority Report Proceedings, 1217,1219. does aspect however, reason, It case. stands address this methodology by accepted generally even if there were testing, issue remain an it would which to conduct PCR from so deviated conducting the test scientist whether methodology of that generally protocols accepted *77 gener- followed that said he longer it could no be properly (repeat- at 55 NRC methodology. Report, See ally accepted with be conducted should emphasizing testing edly be admitted should not and that evidence protocols, proper reliable methods indicia that rigorous in court absent used). were standards at the DNA was admitted sum,

In when PCR trial, of the scientific acceptance there was Gentry’s time evidence, but no consensus PCR DNA theory underlying techniques of its reliability implementing about Furthermore, generally even if there were context. forensic testimony no it was followed methodology, there is accepted inadmissible in this case. evidence was therefore trial court. should have been excluded II Proportionality anal- majority’s proportionality

I also take issue with the conclusion, the death Contrary pen- ysis. majority’s 10.95.130(2)(b). alty proportionate is not under RCW 10.95.130(2)(b) this court to consider requires RCW is or disproportion- whether "sentence of death excessive in similar cases”. penalty imposed ate to the if it not A is excessive or has disproportionate sentence (Italics mine.) In imposed been similar cases”. "generally (1990); 485, 490, v. 114 789 P.2d 731 State re Wn.2d Jeffries, denied, (1987), P.2d 210 108 Wn.2d Rupe, Lord, 939, 822 (1988); 486 U.S. 1061 State v. (1991) denied, (Utter, J., 121 L.Ed. dissenting), cert. P.2d 177 "generally” imposed A unless sentence is not 2d v. similar cases. State least 50 imposed percent it is at dissenting), (Utter, J., 398, 437, 717 P.2d 722 Wn.2d Jeffries, 105 (1986); Lord, 117 Wn.2d rt. 479 U.S. ce 939. whether that we determine requirement

The legislative does in similar cases imposed generally death penalty with one murder to match exactitude require this court not against reasonably be However, case another. if it cannot generally imposed penalty shar- in cases said death ing propor- features, cases, it similar or worse cannot 10.95.130(2)(b). tionate under RCW Imposition always dispro- of death is not sentence portionate. Dodd, P.2d disproportionate there the sentence of death was not because penalty had not were no similar in which the death cases possible reasonably imposed. to 10.95.130(2)(b) con- been It was therefore penalty of under clude the death RCW imposed arbitrarily capriciously. That involved case prolonged multiple after murder of children who died ag- many torture, after as as 14 one hours torture. gruesome gravated reports "due murder describe the facts ages [11, 4], 12 and defendant’s extreme to degree victims’ pos- preoccupation, with of sexual and the obsession Judge sibility vivisecting Report the Trial children”. *78 (Dodd) (Aggravated Report) 76, at The trial No. 12. Murder practiced judge law case, "I criminal commented on his have years, attorney judge ranks an and for and this as among of I’ve in out most heinous that been involved the years.” Report of the some or 50 homicides over those (Dodd) Judge (Aggravated Reports) 76, at Trial Murder No. 13. possible

Similarly, Rice, 110 was in State v. Wn.2d it (1988) uphold penalty of under the death P.2d 10.95.130(2)(b). too, case, the of the RCW In that nature gratuitous involving brutality in crime, and the extreme pos- family, including children, made it an entire murder of being penalty of not visited the death was sible conclude capriciously. arbitrarily or defendant simply here. The most salient The same cannot be said age victim, the sexual in this case are the of the features Gentry’s history, assault, which of criminal the seriousness rape manslaughter conviction, conviction and includes a majority mitigating paucity The cor- of evidence. and engage rectly features, fails but identifies these salient explains their a manner that a discussion of relevance arguably why equally, more, cases which did or heinous circumstances, penalty Under the result death. penalty than other of death cannot considered arbitrary. Aggravated below, Murder

The cases from the culled involving multiple Reports, murders, ex- murder involve prolonged suffering part victim, and on the treme age. particularly these due none of a victim vulnerable imposed. majority’s penalty res- The cases death proportionality mur- issue cannot account for olution arguably prosecu- worse than this one in which the der cases impose, seek, or did not the death tor either did not penalty penalty. true, cannot To the extent that is the death proportionate in be considered this case. (No. 81). after

Martin Sanders Sanders killed two children multiple raping Aggravating victims, them. factors were plan. rape, had concealment and He common scheme mitigating kidnapping, rape. assault, No convictions for appear report. without circumstances He received life possibility parole. (No. 10). estranged Stephen Carey Carey his murdered by setting fire. wife and 18-month-old child their trailer on Carey, App. State v. review See Wn. denied, 106 The wife survived 18 hours percent degree her she third burns over 100 before died of body. report aggravating arson. circumstance was mitigating He without lists no circumstances. received life parole. possibility (No. 130). Camara Camara murdered two of his Cherno leg wife in children with a hatchet and struck his former causing escaped hatchet, She with a severe laceration. *79 degree prior had a for fourth Camara conviction survived. weapon. report display of a The and for the unlawful assault post traumatic stress disorder. indicates he suffered from penalty. jury impose The did not the death (No. 101). house, kill- to her Macas set fire Minviluz Macas ages 85-year-old ing children, and two of her her husband prior The did not seek no record. and 11. She had penalty. death (No. 99). child and two

Stanley Runion Runion killed a had for taking adults after them He two convictions hostage. weapon. mitigating assault with a No circumstances deadly possibil- are listed in He life report. received without ity parole. (No. 2). Roy raped

Arnold Brown and murdered his Brown assault, theft, prior niece. He had convictions for 7-year-old in the burglary. appears appel- and No evidence mitigating penalty. late did the death The reports. jury impose The was inap- failure to do so judge jury’s commented mitigating because there were no circumstances. propriate (No. 78). 3-year- Dayton Dayton Davis James murdered repeatedly with knife neighbor. old The victim was stabbed multiple hit had Dayton over the head numerous times. appears burglary mitigating No prior convictions. of pa- in the received without report. possibility He life role. (No. 70). Rice, elderly an

Herbert Jr. Rice murdered before The were tortured and mutilated be- couple. victims suffering. other’s The ing killed. Each was aware of the man’s The stab many woman was stabbed as times. indicated he expert wounds were so extensive the forensic a case. The indi- expert never before encountered such had The quickly. aggravat- victims did not die cated also that the victims, burglary, robbery, circumstances were ing multiple death impose penalty. did not and concealment. (No. 69). Sullen killed a husband Lawrence Sullen daughter. 11-year-old shot their She and beat and wife fire it. in the when Sullen set and was left house survived victims, com- multiple circumstances were aggravating mitigating cir- No scheme or concealment. plan, mon to life He was sentenced report. are listed cumstances parole. possibility without 64). (No. 89-year-old an Woods abducted

Jonathon Woods 2 to 4 and shot her woman, into a for hours stuffed her trunk her in the head. The before he shot legs times in the several one of re- the crime was were circumstances aggravating witness, to conceal was committed a former venge against *80 identity, in of a rob- and occurred the course defendant’s prior bery, burglary, kidnapping. and He had convic- two burglary robbery. jury was un- tions for and one for The unanimously agree. parole. to He life without able received (No. 65). Jeffrey of Woods Lane Lane was the codefendant (listed above). aggravators present. were The The same penalty. impose did not the death (No. 116). Pawlyk Pawlyk his murdered former

William girlfriend boyfriend. over her Both victims were stabbed and experienced great the victims suf- 100 times. It inferable fering they Pawlyk prior no He died. had record. before insanity jury rejected. pleaded not which the The State did possibil- penalty. life seek the death He received without parole. ity of death

It is evident from the above discussion that generally imposed multiple penalty is not even homicide particularly victims. Nor the death cases vulnerable penalty generally imposed where the victim endured more agony dying Gentry’s prolonged did victim. before than imposition circumstances, Under of the death these Gentry penalty proportionate be considered under cannot 10.95.130(2)(b). RCW J., J., I. Utter,

Johnson, concurs with issue — (dissenting) majority The errs conclud- Johnson, J. penalty phase ing impact victim statements Washington capital law. are under It effec- case admissible tively sentencing proceeding in which the has created a State, and but rather are the defendant adversaries majority and relies on this the defendant the victim. Rights Amendment characterization extend Victims’ meaning, explicit beyond and unwar- its and historical article sections 3 and ranted contravention of Washington sentencing apply special Constitution, penalty proceedings in death cases. requires argument prosecution an a criminal the defendant State and

evenhanded balance between the nature fundamentally purpose misconceives criminal One protections. state federal constitutional accused indi- affording rights constitutional purpose protect the State is to ac- imposing viduals limits on by the overreaching disproportion- cused individuals from Tennessee, 808, 860, State. U.S. ately powerful Payne v. (1991) J., (Stevens, L. Ed. 111 S. dis- 2d Ct. 2597 Harris, 79 L. senting). Pulley v. 465 U.S. See also *81 (1984) (constitutional 29, review Ed. 2d 104 S. Ct. 871 of "wholly capri- penalty arbitrary, death statutes to avoid cious, sentences”); Motor or freakish State v. Cater’s (1947) 667, 661, 496 Sys., Inc., 27 Wn.2d P.2d Freight (due arbitrary individuals from process guaranty protects powers government). of exercise I as to issue 12. therefore dissent

I whether to admit victim The decision is left to the states sentencing penalty of death phase statements impact Washington, capital punish- at In Payne, cases. 501 U.S. 827. statute, specific regulated by subject ment are proceedings held special sentencing proceeding limits. The constitutional imposed the death should be penalty determines whether mitigating sufficient circumstances whether there are RCW contains RCW 10.95.070 leniency. merit 10.95.030-.060. consider, all which relate jury may a list factors capital for the of- culpability to the defendant’s specifically are not Victim statements mentioned. impact fense. admissible limits on case law has further defined Our 173, Bartholomew, In P.2d evidence. (1982) (Bartholomew I), State’s cert. granted 463 U.S. remanded, 463 U.S. defendant’s remand, 101 Wn.2d reaff'd (1984) (Bartholomew II), found RCW portions we 10.95.060(3) to be unconstitutional. and RCW 10.95.070 jury may consider sentencing proceeding, special may introduce only prosecution and the mitigating factors only record,148 the defendant’s criminal which the defen for facts and circumstances of the murder (if sentencing jury being is not the dant is sentenced defendant), "addi evidence of that convicted the nonstatutory aggravating as its factors” insofar tional outweighs prejudicial Bar effect. its rebuttal value II, 101 I, 197-99; Bartholomew tholomew 98 Wn.2d at Wn.2d at 642-43. Supreme accepted certiorari States Court United I remanded the case for reconsideration

Bartholomew and light Stephens, 235, 103 L. Ed. 2d of Zant v. 462 U.S. (1983) determining eligi (statutory procedure S. Ct. 2733 for bility penalty adequately confines the class for death eligible category persons in which there is to a narrow imposition special justification for the of death sentence murder). compared guilty remand, we On to others found ap concluding I, criteria reaffirmed Bartholomew ply different thereby aggravating mitigating factors, factors than to stringent upon prosecution imposing a more standard capital sentencing phase of a case. than the defendant at the pri II, We identified two Bartholomew 101 Wn.2d 637-38. mary the admis and state constitutional limits on federal *82 sentencing proceed aggravating special factors at a sion of necessary ing, to afford the defendant both of which are (1) prejudicial to the defendant cannot be fair evidence trial: (2) sentencing phase; evidence admitted at admitted sentencing capital just during phase cases, as in all cases, and reliable. Bar must be accurate other criminal II, at 636-38. tholomew 101 Wn.2d Washington II, Con- we also noted that the

In Bartholomew provides protec- 1, 14, broader stitution, 3 and article sections Eighth interpretation Supreme tion than the Court’s II, 101 Wn.2d Amendments. Bartholomew and Fourteenth mitigation uncharged to rebut behavior can be offered 148Evidence of criminal 889, Lord, 829, by 117 822 P.2d presented State v. Wn.2d the defendant. (1992), 856, 121 L. 112, 113 denied, (1991), S. Ct. 164 Ed. 2d cert. 506 U.S. 177 clarified dented,-U.S-, 964, Lord, 737, L. Ed. 130 cert. in In re 123 (1994). 86, 115 146 2d S. Ct. 674 814, 817-18, Chrisman, 676

639. See also State v. 100 Wn.2d (1984) (federal "mini- only 419 provides P.2d constitution not limit the mal federal courts do rights” and decisions of Accordingly, right greater rights). of state courts to accord both on an interpretation while we rested our decision constitutions, we held the explicitly the state and federal Washington compel our result: Constitution grounds we have articu- independent state constitutional

[T]he themselves, to result adequate, compel are in and of lated Therefore, by Supreme any have . . . decision we reached. guaranties a manner limiting Court federal constitutional Const, 1, art. 3 and 14 interpretation inconsistent with our §§ our in this bearing will have no decision case. II, 644.149

Bartholomew 101 Wn.2d at II is unaffected in Bartholomew therefore result Eighth Amendment Court’s constriction of Supreme imposes min Amendment protection Payne. Eighth penalty cannot be below which the death imum threshold limiting sen from imposed prohibits and it the states circumstance any consideration relevant tencer’s death impose decline to could cause the sentencer 1, Oklahoma, 1, L. 2d v. 512 U.S. 129 Ed. Romano penalty. 824; (1994); 10, 114 McCleskey 2004 501 U.S. at Payne, S. Ct. 306, 262, 279, L. 2d 107 S. Ct. 1756 95 Ed. v. U.S. Kemp, 604, 586, 973, Ohio, 438 57 L. Ed. 2d (1987); v. U.S. Lockett limitations, Beyond the State Ct. these S. are death factors relevant may choose which substantive left determinations; explicitly Supreme Court penalty impact to allow state whether victim the states the decision death, at 824- sentencing. Payne, 501 U.S. penalty ments 25. acknowledged holdings of Bartholomew II. repeatedly have followed 149We denied, 722,

See, 398, 416, 717 Jeffries, U.S. e.g., v. cert. State P.2d 105 Wn.2d denied, (1987), 734, 762, Rupe, cert. (1986); v. P.2d 210 State 108 Wn.2d Rice, (1988); 757 P.2d 889 U.S. 1061 *83 Lord, (1990); 379, n.5, Rupe, (1989); re P.2d 780 In 115 Wn.2d 396 798 491 U.S. 910 (1992); Ortiz, 304, 294, 889-91; 1060 State v. 119 Wn.2d at Dodd, 1, 21-22, P.2d 86 120 Wn.2d II rights victims’ correctly majority concludes 35,150

amendment, 1, specifically does not article section this or Washington Constitution any of the repeal provision nor is any provision, court’s of constitutional construction provi- with another the amendment in unavoidable conflict correctly also concludes Majority, majority sion. at 625. provisions and cruel process punishment the due Const, 14,151 constitution, 1, as construed art. state §§ II, this court in Bartholomew proffered evidence require of sentencing to conform to the Rules special proceedings II, in Bartholomew Majority, Evidence. at 622. As we wrote charged protections these to one It makes no sense to afford capital in a case. We suspend a lesser crime but then them with so, facing a the death place will not do for this would defendant having potentially to rebut penalty perilous position a unreasonably before prejudicial unreliable or aggravated murder. To sus- already that has convicted him of criminally are all other pend protections these which afforded capital a case is charged phase at such a critical defendants embodied in the contrary reliability evidence standard Const, 1, art. 3. process due clause our state constitution. § (Italics mine.) II, Bartholomew at 640-41. all other qualitatively pun- differs from penalty

The death therefore, it is severity finality; of its ishments because reads, meaningful 1, part: victims a in relevant "To ensure 150Article section dignity respect, justice system them due role the criminal and to accord rights. following hereby granted basic and fundamental victims of crimes are charged felony right to be informed as a shall have the [A] ". . . victim of crime and, presiding trial or court subject over the to the discretion of the individual right proceedings has the proceedings, all court the defendant attend tried and other attend, sentencing any proceeding where the and at and to make statement gov- considered, procedure subject which to the same rules of release is defendant’s minor, deceased, incompetent, rights. event the victim is ern the defendant’s identify representative unavailable, attorney may prosecuting or otherwise Const, 84). (amend. rights.” appear art. 35§ to exercise the victim’s life, liberty, deprived provides person "[n]o shall he 151Article section 3 "[ejxcessive provides bail property, process of law”. Article section without due punishment imposed, inflicted”. required, nor cruel excessive fines shall not be *84 penalty impose the death critical that determination to Lord, 829, 888, 822 P.2d be reliable. State v. 117 Wn.2d (1991) (citing Mississippi, 578, 584, 100 U.S. Johnson v. (1988); II, 575, L. Ed. S. Bartholomew 2d 108 Ct. 638), 856, denied, L. Ed. 2d at cert. 506 U.S. Lord, 112, 113 in In re 123 Wn. S. Ct. 164 clarified 964, denied,-U.S-, 130 L. Ed. cert. 2d (1994). Murray Giarratano, 86, 115 S. Ct. 146 See also v. 2d (United (1989) 1, 109 1, 8, 106 L. Ed. 2d S. Ct. 2765 492 U.S. places special proce constraints on States Constitution capital and to to an accused of oifense dures used convict death, the exis him or her to in order to ensure sentence degree reliability); greater Lockett, 438 at of a U.S. tence degree penalty greater (finality requires death greater imposed). reliability reli for when it need statutorily procedure ability mandated is reflected special requesting penalty required and the for the death sentencing proceedings whether death determine guilt imposed penalty been established. once has should be 10.95; Rice, 757 P.2d 889 110 Wn.2d RCW (1988), Hence, notwith 491 U.S. 910 Washington Rights standing Amendment, the Victims’ Constitution, 1, sections 3 and continues article special sentencing pro require admitted that evidence ceedings capital to the Rules of Evidence. cases conform "stringent procedural provide of Evidence

The Rules sentencing proceedings necessary safeguards” are ensure fundamentally required by fair, as article sections 3 Bartholomew,II, 640; ER Under 101 Wn.2d at 102. 14. only may that is Evidence, evidence courts admit Rules unreasonably preju- trustworthy, reliable, and not relevant, 640-41; II, ER 401-403. Bartholomew dicial. allowing impact introduced statements be victim proceedings, majority penalty sentencing phase of death allowing disregards admission of Evidence the Rules unreasonably untrustworthy, unreliable, and irrelevant, prejudicial evidence. aggravated guilty of found a defendant has been

When attorney degree prosecuting has com- and the first murder sentencing proceeding special plied 10.95.040,a with RCW penalty should death whether the conducted to determine single jury imposed. proceeding, is to answer At this "Having question: which the defendant in mind the crime of you beyond guilty, a reason- are convinced has been found mitigating circum- able doubt that there are not sufficient 10.95.060(4).Only leniency?” stances to merit RCW "concerning mitigating and evidence circumstances may the murder” be introduced. facts and circumstances of 10.95.060(3). RCW 10.95.070sets forth factors RCW may deciding le- the defendant merits whether

consider niency. Significantly, exclusive, is not while the list of factors *85 personal responsi- all factors listed relate to the defendant’s guilt, bility im- moral not to victim characteristics Accordingly, family. pacts on friends and the victim’s mitigating deciding circum- whether there are sufficient jury’s leniency, in- of the to merit the entire focus stances quiry balancing sharply of the evidence is to be limited to against mitigating evidence of the facts circumstances of Rice, 110 Wn.2d at of the murder. See circumstances 607, 624. residing

Underlying notion, at the this limitation is the punish appropriate jurisprudence, of our criminal core imposed with each defendant’s consistent ment should guilt, personal responsibility in an and moral rather than arbitrary Tuilaepa California,-U.S. manner. v. or unfair (1994) (penalty 760, 114 -, 2d S. Ct. 2630 129 L. Ed. sentencing requires phase capital "individualized of case enough expansive relevant to accommodate and must be mitigating an assessment of so as to assure (penalty culpability”); Zant, U.S. at 879 defendant’s requires phase capital determina of case "individualized and the character of the individual tion on the basis of the crime”); Florida, v. 458 U.S. Enmund circumstances of the (1982) (decision S. Ct. 3368 782, 801, L. Ed. 2d turn on defendant’s whether death must impose penalty Mak, guilt”); and moral "personal responsibility (penalty capital of phase 718 P.2d 407 based case must include determination individualized on circumstances defendant’s character and record and (1986); crime), U.S. 995 RCW Washington’s Sentenc (setting 9.94A.010 forth purpose 1981). statements, which Act of Victim ing impact Reform death on effect the victim’s typically present ripple are community, family both the victim’s the victim’s blamewor to a determination of the defendant’s irrelevant and fam impact Unless the on the victim’s friends thiness. at time of the murder known to the defendant ily were bearing on an element probative and have some convicted, defendant was admission crime of which the sentencing proceed impact statements infuses the victim an wholly unrelated to ing arbitrary with factors that are personal of the defendant’s individualized determination II, 101 Bartholomew guilt. and moral See responsibility at 642-43. jury’s atten- capacity of its inherent to draw Because and the cir- character of the defendant away tion from the crime, of victim any probative value cumstances See outweighed by its effect. prejudicial statements impact J., (Stevens, dissenting). Introduction 501 U.S. Payne, determine the sen- statements invites the of such factors, victim in the status of the based on emotional tence worth”), (i.e., eloquence or the community "victim *86 rational family, through friends and rather than victim’s Pros- culpability. individual of the defendant’s consideration in an to show impact attempt statements ecutors use victim thereby generating similarity jurors, the victim’s to consideration. of reason and careful empathy place or fear in- unnecessarily jurors with may supply Such statements race, class, fac- and social religion, on formation the victim’s in the sentenc- considered ordinarily may be tors which (violation of at 291 n.8 U.S. McCleskey, decision. See ing laws on enforcement criminal to base equal protection race, or other arbi- religion, standard such unjustifiable (irrelevant classification); trary or at 885 Zant, 462 U.S. constitutionally impermissible race, reli- such as factors aggravat- gion, political be considered or affiliation cannot Admitting sentencing proceedings). ing capital factors in impact of victims: two classes statements creates victim their killer were so worthwhile those whose lives put so were not death, whose lives to and those should longer require killer. No the death of the worthwhile as to sentencing determination on an individualized based jury’s post hoc blameworthiness, but on defendant’s prejudicial context, determination, an and emotional "worthy” member of soci- defendant killed whether the impact "worthy” ety of victim citizen. Admission or a less jury thereby will act increases the risk that statements arbitrary capricious make invidious manner or in an and worth of the victim. distinctions as to the relative impact has the inev- statements The admission victim shifting putting trial, focus itable effect of the victim sentencing proceeding and the from the defendant of the friends crime the value the victim’s nature of his or her to Inviting family place a detailed nar- on the victim’s life. and sufferings ration of the emotional and economic family inquiring back- into their friends and victim’s grounds revictimizes the of their deceased loved one and that forcing family by the trauma of them to relive friends and places the victim’s friends a burden on the crime. It jury persuade family character of the victim’s family provide potential, pressures friends and and it wrenching possible emotionally graphic statement most one. worth of their loved of the in order to convince point jurors may where so inflame These statements effectively judge’s they instructions, the trial cannot heed giving appropriate preventing consideration them from inflammatory mitigation. factors cannot These evidence of leading decisionmaking process, jury’s help but infect the thereby penalty, imposition render- death inconsistent ing fundamentally sentencing proceeding unfair and Washing- guaranteed denying process of law due ton Constitution.

III a purported are as impact Victim statements not relevant evidence, necessary mitigation "balance” to the defendant’s sentencing proceed victims’ at the preserve rights special balance statements argument impact victim ing. of pro a flawed vision criminal mitigation evidence reflects wronged use crimi ceedings, may a vision which victims against vengeance or retribution proceedings nal to obtain proceeding private criminal criminal defendants. A benefit; is a victim’s it right proceeding of action for the State, people all the prosecutor, representing which restrain, deter, rehabilitate those punish, seeks and/or they an dangerous or are whose are so offensive actions State, 187 Wash. society. a civilized See v. Bergman affront to (1936); 699, Wayne R. 60 P.2d A.L.R. Jr., Law Scott, Criminal LaFave & Austin W. Substantive (1986).152 Boerner, 1.3(b), Sentencing in at 17-20 David § Cf. (1985) im for which sentences Washington (purposes 2.5§ 1981). Reform Act of posed Sentencing under 10.95.040-.070, counterbalance proper Under RCW of the facts circum mitigation evidence of evidence murder, including of aggravation. stances of the 631, 677-78, Benn, v. 120 Wn.2d See State 331, 114 (1993); 944, 126 L. Ed. 2d S. Ct. 382 510 U.S. However, may not Rice, prosecutors at 624. 110 Wn.2d ag nonstatutory crime” use the "circumstances facts spectrum to embrace entire gravating factor every Maynard Cartwright, homicide. v. present virtually community prosecution is a funda crimes as an affront to the entire 152The already jurisprudence, long standing Anglo-American well principle mental by the time of Blackstone: established wrongs public private, from of crimes misdemeanors The distinction of from wrongs, private injuries, principally to or civil consist in this: that civil seems belong rights infringement privation injuries, which an civil are wrongs, individuals, merely public or crimes and mis- as individuals: considered rights demeanors, public and duties due are a breach and violation of the aggregate capacity. community, community, in its considered as social whole England Blackstone, (adapted on Laws Robert M. Commentaries William (1962)). Kerr 356, 363,100 372, 108 (1988); 486 U.S. L. Ed. 2d S. Ct. 1853 428-33, 64 L. Ed. 2d Godfrey Georgia, U.S. (1980); Rice,

100 S. Ct. 1759 at 609. from Apart some dur limited statement based on evidence admissible ing guilt or to the defendant’s phase mitigation rebut *88 evidence, victim are unre impact generally statements crime, lated to the circumstances and therefore II, inadmissible. Bartholomew 101 Wn.2d at 642. Such statements are introduced for the purpose impermissibly inviting jury its sympathy base decision on for the victim or the family, victim’s friends and than rather as a moral response character, background, defendant’s 379, 387-88, and crime committed. In re 115 Wn.2d Rupe, Brown, 538, P.2d 780 See v. 479 U.S. California (1987) 545, 934, (O’Connor, J., 93 L. Ed. 2d 107 S. Ct. 837 concurring).

A further counterbalance provided by prosecutor’s cross examination defense witnesses and introduction of relevant evidence, evidence to rebut the thereby defendant’s ensuring the jury receives balanced and complete picture Lord, of the crime. 117 Wn.2d at if proffered 890. Even victim impact statement were relevant the defend- rebut evidence, ant’s mitigation it would be inadmissible unless its Lord, rebuttal value outweighs its effect. prejudicial 890-91; II, Wn.2d at Bartholomew 101 Wn.2d at 643. Because victim statements impact inherently are even as prejudicial, evidence, rebuttal such statements are unlikely to be admis- sible under the Rules of Evidence for any purpose during sentencing capital proceeding. nonstatutory aggra

Just as the admission of evidence of vating "opens factors too wide a door for the influence of determination”, arbitrary sentencing factors on the Bar I, 195, tholomew 98 Wn.2d at so the admission of victim does impact statements also defeat the constitutional mandate of sentencing channeled at of a jury phase discretion 463, 123 Creech, v. U.S. L. Ed. 2d capital case. Arave II, (1993); at 113 S. Ct. 1534 Bartholomew 101 Wn.2d in Admitting impact impermissibly 639. victim statements irrational, capital vites the to make an emotional sen- jury decision, appears is and to be tencing rather than one that Booth Rupe, based on reason. (citing at re Maryland, 482 U.S. L. 107 S. Ct. Ed. 2d (1987)).

Conclusion imposed arbitrarily To ensure the death is not penalty fac- aggravating must find least one jury invidiously, tor in the crime. To ensure the sentence is based involved the defendant’s moral an individualized determination blameworthiness, passion prejudice, and not on factor(s), including the circum- weigh aggravating must crime, mitigating pre- against stances of the A impact present- statement sented the defendant. victim the crime on the ing impacts information about friends, is not relevant family, community victim’s Admitting such jury’s inherently task and prejudicial. on trial and the character of the victim puts statement forcing family by victim’s friends and retraumatizes testimony to obtain present graphic them to emotional *89 jury sympathy. and the com- importance

"It is of to the defendant vital be, the death sentence impose decision to munity any be, caprice on rather than and based reason appear Gard- II, Bartholomew (quoting emotion”. Florida, Ed. 97 Ct. ner v. 51 L. 2d S. 430 U.S. (1977)). sentencing special Allowing By irrelevant and statements prejudicial to consider proceeding suffering victim’s and the as to the victim’s worth and arbi- majority invites emotional family, friends and information, resting on unreliable sentencing decisions trary impermissibly juries invidious distinctions allows victim, privatizes sympathy with the based their fami- friends and by permitting victim’s penalty death through state action. and retaliation vengeance lies to seek JJ., J. Johnson, Madsen, with Utter concur