State v. Hoffman

Dore, J.

(dissenting)—I dissent. The defendants did not receive a fair trial. The trial court's instructions to the jury improperly instructed the jury regarding an issue of fact. The instructions undermined a defense asserted by defendants, violating article 1, section 22 (amendment 10) and article 4, section 16 of the state constitution. The jury instructions also directed a verdict on aggravation. The issue of aggravation is a jury question and the instructions given removed that factual issue from the jury in violation of defendants' rights of due process, guaranteed by the Fourteenth Amendment. Those constitutional errors were prejudicial. I would reverse and remand for a new trial.

Facts

Elmer McGinnis and his son, Patrick Hoffman, are members of the Colville Indian Tribe and, at the time of *114 the incidents herein, resided on the Colville Indian Reservation. McGinnis had a stormy relationship with the tribal management. He believed that the Colville Tribe Business Council was corrupt and he attempted to document abuses and misuses of tribal funds. McGinnis often appeared at community meetings where he questioned tribal business council members regarding their business practices. McGinnis contacted tribal council members and the police almost on a daily basis.

McGinnis was suffering from a personality disorder, diagnosed as paranoid type. McGinnis became convinced that the Tribe was trying to silence him and had placed a bounty on him and Hoffman. McGinnis, concerned for his safety, told tribal police Chief Harry Smiskin that he knew that there were tribal council bounties on himself and Hoffman, and that he had begun to arm himself for protection.

During the summer of 1986, McGinnis became embroiled in a dispute with a neighbor, Don Ferguson, over payment for a motorcycle sold by the McGinnis family to the Fergusons. Ferguson complained to tribal authorities concerning what he considered a trespass by McGinnis to demand payment. Subsequently, the tribal prosecutor filed a criminal complaint in Tribal Court alleging Trespass Lands, a class C offense under the Tribal Code. The summons was sent by certified mail to McGinnis' post office box and directed him to appear on August 29, 1986, at 9:30 a.m. On August 21, 1986, the certified mailing was returned marked "Refused." The tribal prosecutor then obtained a bench warrant for McGinnis' arrest based on McGinnis' refusal of the summons, alleged new threats made by McGinnis, and the possession of weapons by McGinnis.

On August 25, 1986, McGinnis appeared at tribal council headquarters in Nespelem. Tribal council member, Dale Kohler, aware of the bench warrant issued for McGinnis, alerted police Chief Smiskin of McGinnis' presence. Two uniformed police officers arrived to arrest McGinnis on the warrant. Shortly thereafter Chief Smiskin arrived with the *115 actual warrant. McGinnis asked to see the warrant which he then crumpled and tossed to the floor asserting that the police lacked jurisdiction over him. A scuffle broke out as the police attempted to arrest McGinnis. During the altercation McGinnis was knocked to the floor. He began to complain of chest pains and an ambulance was called.

McGinnis was initially examined at the Tribal Health Clinic and then was transported to Coulee Community Hospital for further diagnosis. After his examination, McGinnis was released to the tribal police who took him to Okanogan County Jail because of his possible health problems and because of security concerns at the minimum security tribal jail. McGinnis was booked at the Okanogan County Jail on a "Tribal hold" in reference to the warrant and on additional charges of resisting arrest and assaulting an officer. Later that evening, McGinnis again appeared to be experiencing medical problems. At 11 p.m. he was taken by ambulance to Mid-Valley Hospital in Omak.

At the hospital, McGinnis was transferred back to tribal custody because the County did not have the personnel to watch him. The tribal police did not place a guard with McGinnis as he was attached to a heart monitor which would sound an alarm if disconnected and the hospital also had a separate alarm connected to the sheriff's office.

McGinnis was unexpectedly discharged by the attending physician at 7 p.m. on the following day, August 26. Hospital personnel contacted county and tribal authorities, but received no definite instructions until McGinnis was dressed and preparing to leave the hospital in the company of Hoffman and four of McGinnis' daughters, Lila, Elsie, and Laura McGinnis and Frances Peoples. Susan Peterson, a nurse, attempted to keep McGinnis at the hospital until the police arrived. McGinnis left the hospital with his family. The family, with Hoffman driving, left in Lila McGinnis' car, and headed to Elmer McGinnis' home in Nespelem.

Tribal police arrived at the hospital after McGinnis and his children departed. They obtained a description of the *116 car carrying McGinnis. A tribal police officer spotted the car 10 miles outside Nespelem traveling in the opposite direction. The police car turned around and followed them. The patrol car, with its rotating blue and red lights turned on, pursued the McGinnis automobile coming within 100 yards of it. Concerned that his children might be hurt, McGinnis demanded to be let out of the car. Wanting to avoid a confrontation with the police, Hoffman turned off the main road and stopped the car.

Hoffman and McGinnis then set out on foot toward McGinnis' home, a distance of 6 to 8 miles in mountainous terrain. Before leaving the car, Hoffman removed a gym bag from the trunk of the car which contained a tee shirt, stocking cap, a .45 caliber semiautomatic handgun, a .22 caliber revolver, a 9 mm. semiautomatic handgun, ammunition for the handguns, a marine flare kit, a hunting knife, a can of mace and a set of nunchucka sticks. Hoffman and others testified that it was his habit to carry these weapons at all times. Hoffman held a permit to carry a concealed weapon. He also filed a State Firearms Application when he purchased the 9 mm. semiautomatic handgun.

After losing sight of the McGinnis vehicle on the road, the tribal police conducted a search for McGinnis. McGinnis' daughters, who had returned to the main highway, were stopped by the police. Discovering that McGinnis and Hoffman were on foot, the police assumed that they were headed for home. After failing to locate McGinnis and Hoffman, Chief Smiskin discontinued the search until morning and placed the McGinnis property under surveillance.

At approximately 1:38 a.m., August 27, Officer Phillips was conducting surveillance and observed two individuals he could not identify enter the property. Officer Phillips radioed for assistance. Five marked patrol cars responded and arrived at the scene within 15 minutes. The officers did not employ emergency lights or sirens as they arrived. An emergency rescue truck also responded. The officers used *117 their patrol headlights and spotlights and the three searchlights of the rescue truck to conduct an open view search of the property. The floodlights were employed in that fashion for approximately 15 minutes.

Upon arriving home, Hoffman and McGinnis found themselves locked out of the house as the only key was in the possession of one of McGinnis' daughters. Hoffman and McGinnis, noticing the floodlights being shined on the property, retreated behind the chicken coop in hopes of avoiding a confrontation with the officers.

Officers John Dick and Louis Millard crossed a fence surrounding the McGinnis property and approached the main house and chicken coop. The headlights, spotlights, and searchlights had been turned off and Officers Dick and Millard approached using police flashlights. At no time did the officers announce themselves as police officers nor was an announcement of their identification or intention ever communicated. Once the lights were dimmed, police officers at the scene testified that the property was in total darkness; they could not clearly distinguish the terrain; they could not distinguish other officers nor their location on the property; and that it was too dark to see the police uniforms and markings on the police vehicles. Officer Dick stated that he did not know whether, in the dark, the people on the property could see the intruders were police officers.

Q. . . . [D]id it occur to you . . . that if there were people on the property that they would not know that you were police officers?

A. I don't know if they could see in the dark . . .".

Report of Proceedings vol. VII, at 93 (Mar. 6, 1987). The visibility was so poor that the police requested a special night scope be brought to the property, but an officer did not bring the scope to the site until after the exchange of gunfire occurred.

A gun battle ensued. Who fired the first shot is disputed, but after the first shots were fired, gunfire from the chicken *118 coop continued and a series of flares were fired, illuminating the area. Officers Dick and Millard returned fire and attempted to seek cover.

Officer Millard was struck by a 9 mm. bullet in the upper left chest and died within 15 minutes. Hoffman admitted firing the .22 revolver and a flare gun from behind the chicken coop where the guns themselves were later discovered. Two ejected 9 mm. cartridges were found in the same vicinity. Officer Dick was wounded in the shoulder. The bullet which struck Dick was never found, but the entry wound was large, consistent with a .45 round rather than the smaller .22 or 9 mm.

A wounded McGinnis was discovered by police at daybreak near the scene. One of the shots fired by Officer Dick had struck McGinnis in the chest. The police took McGinnis into custody. Hoffman escaped and appeared 2 days later at the home of a friend, Jeff Epperson, near Keller, Washington. Hoffman later voluntarily surrendered.

Hoffman and McGinnis were originally charged by federal authorities with violations of 18 U.S.C. § 1111 (first degree murder) and 18 U.S.C. § 1114 (attempted murder of a federal official). That indictment was later dismissed without prejudice, and the defendants were charged by information in Okanogan County Superior Court with aggravated first degree murder and first degree assault. Defense motions for change of venue, severance, the appointment of an expert on police procedures and for the appointment of a psychiatric expert to examine Officer Dick were denied by the trial court. Both defendants were convicted by a jury of aggravated first degree murder and sentenced to life in prison without possibility of parole.

Defendants appealed their convictions to Division Three of the Court of Appeals. That court certified the case to this court to answer the question of whether the State of Washington has jurisdiction over Indian defendants accused of assault and murder committed on Indian lands. This court accepted certification of the case in its entirety.

*119 The Trial Court Improperly Instructed the Jury Regarding Issues of Fact

It is a question of fact for the jury as to whether the defendants knew or should have known that the individuals with whom they exchanged gunfire were police officers. The trial court completely removed that factual issue from the jury through three instructions:

Instruction No. 26:

The arrest of Elmer McGinnis on August 25, 1986 was a lawful arrest.

Instruction No. 27:

Louis A. Millard and John Dick were law enforcement officers on August 27, 1986.

Instruction No. 28:

The entry by police officers onto the McGinnis property at about 2:15 a.m. on August 27, 1986 was lawful.

Clerk's Papers, at 1150, 1149, 1148. In addition, instruction 1 told the jury that

[i]t also is your duty to accept the law from the court, regardless of what you personally believe the law is or ought to be. You are to apply the law to the facts and in this way decide the case.

Clerk's Papers, at 1178. The trial court's instructions 26, 27 and 28 stated that those facts existed as a matter of law and the jury was bound to accept those conclusions as the law of the case.

The conclusions of law stated in the trial court's instructions undermined the defense put forth by the defendants, resulting in the defendants receiving an unfair trial. The defendants asserted a defense of justifiable homicide. Instruction 17 stated:

Homicide is justifiable when committed in the lawful defense of a slayer or any person in a slayer's presence or company when a slayer reasonably believes that the person slain intends to inflict death or great personal injury and there is imminent danger of such harm being accomplished.

(Italics mine.) Clerk's Papers, at 1159. After entering the McGinnis property the officers did not identify themselves *120 to the defendants as police officers. The defendants undisputedly argue that because it was dark and the police never identified themselves, they did not know who these intruders were. They further testified that they fired their guns in self-defense after the intruders fired the first shots. There is no evidence or inference of evidence on this fact to the contrary.

The trial court specifically instructed the jury that Millard and Dick were police officers and that they were lawfully on the McGinnis property at the time of the killing. By directing the jury that those facts existed as a matter of law, the trial court precluded the jury from finding that the defendants could have reasonably believed that the person slain intended to inflict death or great bodily harm upon them. Had the defendants been aware that the intruders were police officers, then defendants could not assert that they "reasonably believed" that the police intended to kill or injure them. Absent the court's instructions, a reasonable juror could have concluded that the defendants reasonably believed unknown intruders intended to kill or harm them and that the defendants acted in self-defense.

The defendants' assertion that they did not know that the intruders were police officers is plausible in view of the fact that the police did not identify themselves as they approached the McGinnis home. The incident occurred at approximately 1:38 a.m. in what one police officer described as total darkness.

A. [Ejverything was all total dark at that time .... I could see no further than twenty, thirty feet... it was all black.

Report of Proceedings vol. XIII, at 189 (Mar. 16, 1987) (testimony of Officer Carden). A reasonable juror could have determined that in these circumstances the defendants believed that the intruders were not police officers but were other individuals, attempting to inflict bodily harm. The trial court's instructions precluded the jury from considering that alternative and accepting or rejecting it.

*121 The Trial Court's Instructions to the Jury Violated Defendants' Constitutional Rights

The trial court's instructions improperly removed issues of fact from jury determination and undermined the defense asserted by the defendants resulting in a violation of defendants' constitutional rights. The trial court's instructions violated the Washington Constitution article 1, section 22 (amendment 10) guaranteeing the right to a jury trial and article 4, section 16 which provides specifically that "Judges shall not charge juries with respect to matters of fact. . .''. The trial court's instructions constituted legal conclusions. By definitively stating that those facts were proven, the trial court relieved the jury of its duties as trier of fact.

The defendant is entitled to argue his theory of the case based on the evidence presented. Even where the evidence is overwhelming, article 1, section 22 (amendment 10) bars instructing the jury that a fact or element has been established as a matter of law. State v. Primrose, 32 Wn. App. 1, 3 , 645 P.2d 714 (1982). In simply stating the legal conclusions contained in instructions 26, 27 and 28 the court wrongly performed the jury's function. A new trial is mandated on this issue alone.

The Trial Court Improperly Directed a Verdict on Aggravation

The instructions directed a verdict on issues which were for the jury, in violation of the defendants' rights to due process as guaranteed under the Fourteenth Amendment. The instructions in question related to the charge of aggravating circumstances. The category of aggravation with which the State charged Hoffman and McGinnis consists of three elements: *122 RCW 10.95.020(1). The trial court's instructions directed a verdict on two of these three elements. Instruction 27 explicitly required the jury to find that Millard's status as a law enforcement officer had been proven. Instructions 26 and 28 further limited the jury's power to make an independent determination by directing a finding against the defendants on two theories they advanced against the contention that Millard was engaged in "official duties." The defendants had argued that Millard was not making a valid arrest of Hoffman and/or McGinnis at the time he was killed and that Millard was engaged in an illegal search at the time he was killed.

*121 The victim was a law enforcement officer . . . who was performing his or her official duties at the time of the act resulting in death and the victim was known or reasonably should have been known by the person to be such at the time of the killing!.]

*122 The instructions state legal conclusions which on the surface seem clear and unambiguous. However, it is important to keep in mind that those conclusions result from applying the law to the facts, a function which is for the jury to determine, not the court. More important, the underlying facts were vigorously disputed.

For example, the defendants argued that Millard could not have been engaged in official duties because he was making an invalid arrest at the time of his death. In order to arrest Hoffman and/or McGinnis, the tribal police required either a warrant or an exception to the warrant requirement. Defendants argue that the officers had neither.

A warrant had been obtained for the arrest of McGinnis. If that warrant had already been executed and McGinnis had been released from custody, as a result of due process of law, however, it could not provide authority for a subsequent rearrest. See Carlson v. Landon, 342 U.S. 524, 546 , 96 L. Ed. 547 , 72 S. Ct. 525 (1952). Whether or not McGinnis had been released from custody turned on the nature of his hospital stay and the circumstances under which he was released. The defendants contended that McGinnis was discharged from custody because neither the County nor the tribal police posted a guard at his door. The State argued that McGinnis had not been released from custody because the police took steps to ensure that they received *123 notice of his leaving the hospital and because McGinnis' attorney had been told McGinnis was still in custody. Whether McGinnis was an escapee, so that a warrant was in force and Millard was engaged in official duties at the time of his death, depends on how these factual issues are resolved. Cf. Roberts v. State, 14 Mo. 138, 146, 147 (1851). The trial court substantially prejudiced the defendants when it took this issue from the jury because it precluded proper resolution of these factual issues by the trier of fact.

The question whether a warrantless arrest might have been proper, again bringing Millard within the scope of official duties for aggravation purposes, turns on many of the same disputed facts. In order to make a valid warrant-less arrest of either Hoffman or McGinnis, the case must fall within the terms of RCW 10.31.100. That statute authorizes warrantless arrests where there is probable cause to believe a suspect has committed a felony, where a misdemeanor is committed in the officer's presence and for certain other specified misdemeanors and traffic offenses.

The State argues that McGinnis committed second degree escape, a felony justifying a warrantless arrest. Second degree escape, however, involves escape from a "detention facility" by one who has been "charged" with a felony. RCW 9A.76.120(1)(a). The State contends that McGinnis need not have been formally charged with a felony, but even if this court accepted that contention, whether the hospital was, for present purposes, a detention facility is a question of fact. The State also argues that there was probable cause to believe that McGinnis had committed third degree escape, which involves only escape from custody. RCW 9A.76.130(1). Again, however, whether McGinnis was in custody while in the hospital is disputed. Furthermore, third degree escape is only a gross misdemeanor that would not justify a warrantless arrest under RCW 10.31.100 unless it involved physical harm or the threat of physical harm. The State relies on previous threats that McGinnis allegedly made against the Ferguson family in support of this argument. However, those threats and whether they were *124 sufficiently connected with the alleged escape are disputed factual issues. 93 The question of whether a warrantless arrest was possible, and whether Officer Millard was accordingly engaged in official duties at the time of his death, therefore, were questions for the jury. The defendants were prejudiced by the court's instructions, which foreclosed the jury's deliberations on these issues.

The defendants also argued that Millard was not engaged in official duties for aggravation purposes because he had made an illegal entry onto the McGinnis property. Payton v. New York, 445 U.S. 573 , 63 L. Ed. 2d 639 , 100 S. Ct. 1371 (1980) holds that police may not make a warrantless arrest on private property without a warrant or consent authorizing their presence. Payton contains an express exception for arrests made under exigent circumstances, which this court elaborated in State v. Terrovona, 105 Wn.2d 632, 644 , 716 P.2d 295 (1986).

Dorman [v. United States, 435 F.2d 385 (D.C. Cir. 1970)] enumerates six elements to aid in determining when a warrantless police entry into a home is justified: (1) a grave offense, particularly a crime of violence, is involved; (2) the suspect is reasonably believed to be armed; (3) there is reasonably trustworthy information that the suspect is guilty; (4) there is strong reason to believe that the suspect is on the premises; (5) the suspect is likely to escape if not swiftly apprehended; and (6) the entry is made peaceably. Dorman, at 392-93.

Arguably, Officer Millard was operating under exigent circumstances in attempting to discover and arrest Hoffman and McGinnis. McGinnis was wanted for assault on police officers, a grave offense involving violence. The police suspected Hoffman and McGinnis to be well armed, and in fact believed that the bulk of their arsenal was at the McGinnis home. There was reason to believe that McGinnis was guilty of third degree assault and that Hoffman and/or *125 McGinnis was guilty of eluding a police vehicle, since those crimes were committed in the presence of police officers. There was reason to believe Hoffman and McGinnis were on the property since the two men were known to be at large and could be expected to try to return home and since two persons had been observed walking onto the McGinnis property by Officer Phillips. The suspects were likely to escape since McGinnis had already escaped from the hospital with Hoffman's assistance and Hoffman and McGinnis had eluded a police vehicle earlier in the day. Finally, there was evidence that Dick and Millard made a peaceable entry, with their service revolvers holstered. All of these questions, however, are factual questions. Whether or not exigent circumstances were present in this case is the issue that a jury, not the court, must decide.

Even Millard's status as a law enforcement officer, which was not as hotly contested, was nevertheless a factual issue. In order to meet its burden on aggravation, the State was required to present evidence of Millard's commissions or the testimony of superiors. That evidence was introduced. If the question before this court were the sufficiency of the evidence to support the jury's determination, there would be no difficulty answering it. The problem is that by instructing the jury that Millard was a police officer, the trial court obviated any question of sufficiency by taking the question out of the jury's hands altogether. In doing so, as explained below, the trial court denied the defendants due process.

If aggravation were an element of the crime charged here, I would have no difficulty in holding that the defendants' rights had been violated by these instructions. It is well established that a trial cotut may not direct a verdict on an element of the crime charged, because to do so violates the defendant's right to a jury trial, a right guaranteed by the state and federal constitutions. Washington Const. art. 1, § 22 (amend. 10); U.S. Const. amend. 6; State v. Christiansen, 161 Wash. 530 , 297 P. 151 (1931); United States v. Martin Linen Supply Co., 430 U.S. 564 , 51 L. Ed. 2d 642 , *126 97 S. Ct. 1349 (1977). However, the actual question before us is somewhat more complicated.

The aggravating factors of RCW 10.95.020 are not, properly speaking, elements of a crime. As this court explained in State v. Kincaid, 103 Wn.2d 304 , 692 P.2d 823 (1985), they relate only to sentencing, not to the substance of the crime:

A statutory aggravating circumstance relates to the crime of premeditated murder in the first degree as a defendant being armed with a deadly weapon relates to the commission of certain felonies while so armed. In the statutory framework in which the statutory aggravating circumstances now exist, they are not elements of a crime but are "aggravation of penalty" provisions which provide for an increased penalty where the circumstances of the crime aggravate the gravity of the offense.

Conceptually, the crime is premeditated murder in the first degree with aggravating circumstances. Commonly, however, the crime is often referred to by the courts and others as "aggravated first degree murder".

(Footnote omitted.) Kincaid , at 312. Accord, State v. Irizarry, 111 Wn.2d 591, 763 P.2d 432 (1988). This distinction between the elements of a crime and penalty factors is critically important where a defendant claims a right to a jury determination. There is no Sixth Amendment right to a jury trial on penalty factors. Spaziano v. Florida, 468 U.S. 447 , 82 L. Ed. 2d 340 , 104 S. Ct. 3154 (1984). This court has also held under Const. art. 1, § 22 (amend. 10) that the state jury right extends only to issues of fact which determine guilt or innocence. State v. Price, 59 Wn.2d 788 , 370 P.2d 979 (1962). Even if this court were inclined to do so, this is not a proper case in which to formulate a separate state constitutional rule. See State v. Gunwall, 106 Wn.2d 54, 61-62 , 720 P.2d 808 , 76 A.L.R.4th 517 (1986). The jury instructions at issue here, thus, did not violate Hoffman or McGinnis' constitutional rights.

The fact that the Sixth Amendment and Const. art. 1, § 22 (amend. 10) are inapplicable does not end the inquiry, however. Where a state has provided by statute for a jury determination on a sentencing issue, it is a violation of due *127 process to deprive the defendant of that statutory jury right. Hicks v. Oklahoma, 447 U.S. 343 , 65 L. Ed. 2d 175 , 100 S. Ct. 2227 (1980). In Hicks , a trial court instructed the jury that, if it found the defendant guilty, it should impose a sentence of 40 years' imprisonment. Oklahoma law, however, provides that punishment shall be fixed by a jury. Okla. Stat. tit. 22, § 926 (1971). The Supreme Court vacated the Oklahoma sentence on the ground that the Fourteenth Amendment's due process clause is violated where a defendant is deprived of a statutory right to a jury determination.

It is argued that all that is involved in this case is the denial of a procedural right of exclusively state concern. Where, however, a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant's interest in the exercise of that discretion is merely a matter of state procedural law. The defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State.

(Citation omitted.) Hicks , at 346.

The question, then, is whether the question of aggravating circumstances under RCW 10.95.020 is for the jury to decide. If it is, then Hoffman and McGinnis were deprived of a statutory jury right in violation of due process. I would hold that aggravation is a jury question and that the defendants' rights to a fair trial were violated.

There is no question that aggravating circumstances is a jury question, even though RCW 10.95.020 does not expressly state that it is. To see why, it is helpful to view the section in the context of RCW 10.95 as a whole. As this court outlined the procedure in Kincaid:

The statute [RCW 10.95] provides for a bifurcated procedure. At the first, the guilt phase of the trial, it is determined whether the defendant is guilty of premeditated murder in the first degree, and, if so, it is then determined whether one or more of the statutory aggravating circumstances exist. If the death penalty has not been asked (as in this case), the defendant who is found guilty of premeditated murder in the first *128 degree where one or more aggravating circumstances exist, is sentenced to life imprisonment without possibility of parole; but, if the death penalty is sought, the trial then shifts into a separate capital sentencing phase where it is determined whether there are sufficient mitigating circumstances to merit leniency and, if not, the death penalty is imposed.

(Footnote omitted.) Kincaid , at 310. In the second, capital sentencing phase, the issue is whether or not sufficient mitigating facts exist to justify not imposing the death penalty. This question is for the jury, and the verdict must be unanimous. RCW 10.95.050(2); 10.95.060(4).

In the context of this scheme, it is clear that the decision on aggravating factors under RCW 10.95.020 is a question for the jury. Both the elements of the substantive criminal charge and the presence or absence of mitigating factors are jury questions. It is unlikely that the Legislature intended the question of aggravating factors to be plucked from the middle of this process and decided separately by the trial court. In fact, the statute requires that aggravation is to be determined at the first, guilt phase of the trial. This court has noted before that this is an unusual feature of RCW 10.95, since other states decide the question of aggravating circumstances separately, in the second, sentencing phase. State v. Bartholomew, 98 Wn.2d 173, 189-90, 654 P.2d 1170 (1982) (Bartholomew I), State's cert. granted, judgment vacated and remanded, 463 U.S. 1203 , defendant's cert. denied, 463 U.S. 1212 (1983), conviction aff'd on remand, 101 Wn.2d 631 , 683 P.2d 1079 (1984) (Bartholomew II). I would conclude that the Legislature included the question of aggravation in the guilt phase for a reason: because it wanted aggravating circumstances to be determined in the same manner, by the same body, as the substantive questions decided at the guilt phase; that is, by the jury.

This conclusion is bolstered by other language in Bartholomew I, the case in which this court upheld the relevant portion of RCW 10.95 against a constitutional *129 challenge. 94 In summarizing our reasoning there, this court wrote:

In sum, the Washington statute shares the principal features of the approved schemes: Capital crimes are limited to premeditated murder; the death sentence may not be imposed unless additional aggravating factors are found by the jury; sentencing is considered at a separate phase of the trial at which the sentencer may consider a variety of factors in addition to the crime itself in determining whether or not to impose death; and each death sentence is subject to an elaborate automatic review procedure which brings it under the scrutiny of this court. The Washington procedure therefore conforms in broad outline to approved schemes.

(Italics mine.) Bartholomew I, at 192. It has always been this court's understanding that aggravating circumstances under RCW 10.95.020 is a jury question. I see no reason to depart from that understanding.

Given that Hoffman and McGinnis had a statutory right to have aggravation determined by the jury, it was a violation of due process to deprive them of that right. The instructions at issue here are directly comparable to the improper instruction in Hicks . Even though aggravation is a penalty factor rather than an element of a crime, Hoffman and McGinnis have been unconstitutionally deprived of a jury determination. The record demonstrates that Hoffman and McGinnis were prejudiced by the instructions since central facts of the case which relate to aggravation were hotly contested. A new trial is required.

The State argues that instructions 26, 27 and 28 were given because the questions presented were too complex. *130 This argument has some appeal, as our own discussion of the disputed facts in relation to the question of aggravation may indicate. The search and arrest issues relate to the scope of the officers' authority, which relates to their acting within "official duties" which relates to the question of aggravation. However, it is well established that the complexity of legal issues cannot be used to deprive a civil defendant of his right to a jury determination under Const. art. 1, § 21. Peters v. Dulien Steel Prods., Inc., 39 Wn.2d 889 , 239 P.2d 1055 (1952). The same conclusion surely follows where a criminal defendant is guaranteed a jury trial by the Fourteenth Amendment.

The State argues that these questions were of a sort which is ordinarily the province of the court. If that is true, it is only because the questions usually arise in the context of suppression hearings. If the same questions arise, as they did here, in the context of an aggravation charge, they are questions for the jury.

The record in this case is complete and this court could make a determination of sufficiency of the evidence on all points. However, sufficiency of the evidence to support the jury's verdict is not the issue before this court. Given the trial court's instructions, the jury was not permitted to decide critical factual questions in the first instance. I would hold that instructions 26, 27 and 28 violated the Fourteenth Amendment's guaranty of due process.

Conclusion

1. The trial court improperly and prejudicially instructed the jury as a matter of law on factual issues and presented issues of fact as conclusions of law;

2. The trial court's instructions denied defendants a fair trial because it precluded the jury from considering the defendants' contentions that they were unaware they were engaged in a gun battle with law enforcement officers; McGinnis did not escape but was discharged from *131 custody when he left the hospital; and the events preceding the police officers' entry onto McGinnis' property did not constitute "exigent circumstances";

3. The trial court's instructions violated Const. art. 1, § 22 (amend. 10) which prohibits judges from charging juries with respect to matters of fact;

4. The trial court improperly directed a verdict on two of the three aggravating elements of aggravated first degree murder and, thus, violated defendants' right to due process, guaranteed by the Fourteenth Amendment.

I would remand for a new trial.

The State also argues that probable cause existed to arrest for a violation of RCW 46.61.024, "Attempting to Elude Pursuing Police Vehicle”, and third degree assault, former RCW 9A.36.030(1)(a), both felonies. (Former RCW 9A.36.030 is now codified at 9A.36.031.) Both of these grounds for a warrantless arrest also turn on disputed facts.

Bartholomew I also held that RCW 10.95.060(3), which authorized the admission of evidence of prior criminal activity (not convictions) at the sentencing phase, violated the Eighth Amendment. Bartholomew I accordingly limited the prosecution's opening statement at sentencing, RCW 10.95.060(2), to references to prior convictions. Bartholomew I at pages 198 and 199 also held that evidence admitted under RCW 10.95.060 and RCW 10.95.070 must be limited to mitigating factors. The remaining portions of RCW 10.95, which are relevant here, were severable. RCW 10.95.900.

Following remand of the case by the United States Supreme Court, this court affirmed these holdings in Bartholomew II on state and federal constitutional grounds.