# State v. Brett

> Washington Supreme Court · April 4, 1995 · 126 Wash. 2d 136

URL: https://www.frixlaw.com/law-library/cases/9543980

## Case

- **Full name:** The State of Washington, Respondent, v. James Leroy Brett, Appellant
- **Court:** Washington Supreme Court
- **Decided:** April 4, 1995
- **Citations:** 126 Wash. 2d 136; 892 P.2d 29; 1995 Wash. LEXIS 146
- **Precedential status:** Published
- **Opinion:** Concurrence by Dolliver
- **Judges:** Durham, Dolliver, Madsen, Utter
- **Cited by:** 355 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by In re the Personal Restraint of Brett, 142 Wash. 2d 868 (2001).
- Negative treatments: 1
- Distinguished by: 2
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9543980

## How later opinions describe it (automated extraction)

- holding that "[a]ggravating circumstances . . . are not elements of the crime, but "`"aggravation of penalty"'" factors" (quoting State v. Kincaid, 103 Wash.2d 304, 307, 692 P.2d 823 (1985))
- affirming the admission of a lay opinion that the defendant did not appear to be under the influence of alcohol, drugs, or any other substance based on the witness’s prior experience as a police officer
- holding no violation of double jeopardy when defendant was charged with aggravated first degree murder and first degree felony murder

## Opinion text

Dolliver, J.
(specially concurring) — The people of the state of Washington have expressed their will by enacting the death penalty, and my duty as a justice of this court is to uphold that law. However, I agree with the words quoted by Justice Blackmun in his dissent to Callins v. Collins, 510 U.S. 1141 , 127 L. Ed. 2d 435 , 114 S. Ct. 1127 (1994) that " '. . . the infliction of [death] is so plainly doomed to failure that it — and the death penalty — must be abandoned altogether.’ ” Callins, 114 S. Ct. at 1138 (Blackmun, J., dissenting) (quoting Godfrey v. Georgia, 446 U.S. 420, 442 , 64 L. Ed. 2d 398 , 100 S. Ct. 1759 (1980) (Marshall, J., concurring in the judgment)).
*217 Although I do not question my duty, I write this separate concurrence to state my objection to the death penalty in principle and to express the hope that some day we will eliminate the death penalty and be saved from cries of vengeance, revenge, or "justice” and thus become a more truly civilized community of citizens.
Until that point arrives, if the laws are both constitutional and exactly followed, as was the case here, the ultimate penalty must be enforced. I also do not question that whether one agrees, as I firmly do, with the majority’s rule for determining proportionality or one adopts the test in State v. Lord, 117 Wn.2d 829 , 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 , 121 L. Ed. 2d 112 , 113 S. Ct. 164 (1992), as proposed in Chief Justice Durham’s concurrence, the result in this case is the same: the imposition of the death penalty for this brutal crime is not disproportionate under the law.
Smith, J., concurs with Dolliver, J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9543980. Public record. Not legal advice.