# State v. Bartholomew

> Washington Supreme Court · November 24, 1982 · 98 Wash. 2d 173

URL: https://www.frixlaw.com/law-library/cases/9605138

## Case

- **Full name:** The State of Washington, Respondent, v. Dwayne Earl Bartholomew, Appellant
- **Court:** Washington Supreme Court
- **Decided:** November 24, 1982
- **Citations:** 98 Wash. 2d 173; 654 P.2d 1170; 1982 Wash. LEXIS 1682
- **Precedential status:** Published
- **Opinion:** Concurring in part by Utter
- **Judges:** Pearson, Utter, Dolliver
- **Cited by:** 77 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by Washington v. Bartholomew, 463 U.S. 1203 (1983).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9605138

## How later opinions describe it (automated extraction)

- finding murder was committed to conceal robbery for long enough to allow defendant to escape

## Opinion text

Utter, J.
(concurring in part, dissenting in part)—I concur in sections II, IV, V, and VI of the majority opinion and concur in the result of section 1.1 would hold, however, that the Washington capital punishment scheme, no matter how construed, violates the Eighth Amendment and article 1, section 14 of our state constitution. Even as construed by the majority, the statute fails to provide sufficient guidance to the sentencing jury as to what facts and circumstances it may consider as aggravating factors in deciding whether to impose the death penalty. In addition, the Washington statute falls short of constitutional requirements by permitting imposition of the death penalty without a finding, at the sentencing phase, of at least one aggravating circumstance.
I
Initially, I agree that Henry v. Wainwright, 661 F.2d 56 *217 (5th Cir. 1981), vacated on other grounds, 102 S. Ct. 2922 (1982) is correct in limiting a sentencer's consideration of aggravating factors to those specifically delineated by statute. I also agree that this does not prevent the State from introducing evidence to rebut evidence of mitigating circumstances produced by the defendant. The mere fact that such rebuttal evidence introduced by the State also tends to independently prove some nonstatutory aggravating factor does not per se bar its admission. As the majority notes, the admissibility of the proffered evidence should turn on whether its probative value for rebuttal outweighs the danger of unfair prejudice, i.e., its tendency to prove an independent nonstatutory aggravating factor. ER 403 is the appropriate evidentiary rule to be applied.
I note two caveats, however, which must accompany the majority's analysis. First, the lower court must be especially alert to prejudice against the defendant and we must exercise close review. Generally, the trial court has wide latitude in balancing probative value against prejudice and will be reversed only for a clear abuse of discretion. State v. Thompson, 95 Wn.2d 888, 892 , 632 P.2d 50 (1981); 5 K. Tegland, Wash. Prac. 246 (2d ed. 1982). Moreover, some courts have suggested that the balance under ER 403 is generally to be struck in favor of admissibility. United States v. Day, 591 F.2d 861, 878-79 (D.C. Cir. 1978). Such standards are inappropriate in a case involving the dfeath penalty for it "is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." Gardner v. Florida, 430 U.S. 349, 358 , 51 L. Ed. 2d 393 , 97 S. Ct. 1197 (1977) (defendant must be made aware of information considered by sentencing judge).
The second caveat I note is that the majority's application of ER 403 in this context requires that it also extend the protections which accompany the rule. In particular, if rebuttal evidence is admitted which also has some prejudicial effect, the defendant is entitled to a limiting instruction *218 if he or she requests it. This is simply in accord with general evidentiary principles. See, e.g., ER 105; State v. Passafero, 79 Wn.2d 495, 498 , 487 P.2d 774 (1971); State v. Pitts, 62 Wn.2d 294, 297 , 382 P.2d 508 (1963).
II
Henry v. Wainwright, supra, does not, however, permit generalized consideration of the crime's facts and circumstances at a death penalty sentencing hearing. I concur in the majority's recognition that our statute permits the State to introduce, at the sentencing phase, evidence "concerning the facts and circumstances of the murder" when the sentencing jury differs from that which decided guilt. RCW 10.95.060(3). The necessary implication of this provision is that the jury may consider "the facts and circumstances of the murder" as an aggravating factor at the sentencing phase. I must disagree with the majority's implied holding that the federal and state constitutions permit unguided consideration of such a broad aggravating factor.
The policy underlying Henry v. Wainwright, supra, and the decisions of the United States Supreme Court is the effective channeling of the jury's discretion. See Wainwright, at 58-59.
[W]here discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.
Gregg v. Georgia, 428 U.S. 153, 189 , 49 L. Ed. 2d 859 , 96 S. Ct. 2909 (1976); Wainwright, at 58-59. Yet the Washington statute provides absolutely no direction as to what facts and circumstances the jury is to consider and how it is to consider them.
Moreover, the category of "facts and circumstances of the murder" (see RCW 10.95.060(3)) is hardly in itself a "'clear and objective [standard]' that provide[s] 'specific and detailed guidance,' and that 'make[s] rationally reviewable *219 the process for imposing a sentence of death.'" (Footnotes omitted.) Godfrey v. Georgia, 446 U.S. 420, 428 , 64 L. Ed. 2d 398 , 100 S. Ct. 1759 (1980). Indeed, it is one of two broad categories into which all aggravating and mitigating factors generally fall, the other being the "character of the individual defendant." See, e.g., Proffitt v. Florida, 428 U.S. 242, 251 , 49 L. Ed. 2d 913 , 96 S. Ct. 2960 (1976); Gregg v. Georgia, supra at 197. Permitting a jury to consider such a broad category of evidence with no further guidance will produce precisely "[t]he standardless and unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed jury" which was condemned in Godfrey v. Georgia, supra at 429. RCW 10.95.060(3) is therefore unconstitutional.
Ill
Even with RCW 10.95.060(3) removed, 4 however, the Washington capital punishment statute does not sufficiently channel jury discretion. The statute permits a jury to do exactly what was proscribed in Furman v. Georgia, 408 U.S. 238 , 33 L. Ed. 2d 346 , 92 S. Ct. 2726 (1972)— ” reach a finding of the defendant's guilt and then, without guidance or direction, decide whether he should live or die". Gregg v. Georgia, supra at 197. It is conceivable that, even with no additional evidence presented at a sentencing hearing, a defendant might be sentenced to death. If a defendant pleads guilty, a jury may apparently impose death having heard no evidence at all. 5 Such results are indistinguishable from those condemned in Furman .
I respectfully disagree with the majority's contention that *220 the Washington statute satisfies Eighth Amendment requirements by requiring proof of an aggravating circumstance at the guilt phase. In reality this simply narrows the class of crimes for which capital punishment may be imposed. Such narrowing does not render Furman inapplicable. One of the state court decisions which was vacated and remanded at the time Furman was decided, State v. Duling, 21 Ohio St. 2d 13 , 254 N.E.2d 670 (1970), vacated, 408 U.S. 936 (1972), involved a conviction under a statute much narrower than ours. See Duling, at 13 (defendant convicted of first degree murder of police officer); Ohio Rev. Code Ann. § 2901.04 (Page 1953) (separate statutory provision for murder of police officer); compare RCW 10.95.020. Similarly, in People v. Fitzpatrick, 32 N.Y.2d 499 , 300 N.E.2d 139 , 346 N.Y.S.2d 793 , cert. denied, 414 U.S. 1033 (1973), the New York Court of Appeals held the New York death penalty statute unconstitutional under Furman. Fitzpatrick, at 512-13. That statute allowed imposition of the death penalty for only those murders where the victim was a police officer or the defendant a prisoner and was thus much narrower than the Washington statute. Compare N.Y. Penal Law § 125.30 (McKinney 1967) with RCW 10.95.020. To make application of Furman turn on the breadth of the class of capital crimes would require appellate courts to engage in detailed line drawing entirely inconsistent with their function. 6
The statute approved in Jurek v. Texas, 428 U.S. 262 , 49 L. Ed. 2d 929 , 96 S. Ct. 2950 (1976) differed significantly from that at issue here. It did greatly narrow the class of crimes for which death could be imposed (Jurek, at 268); however, it also required proof of three additional facts at a *221 later sentencing phase. Jurek , at 268. Those additional facts were essentially aggravating factors. 7 In contrast, no additional facts need be proven at the sentencing phase under the Washington capital punishment scheme.
While Jurek does contain language which could be read to equate narrowing of the category of capital crimes with requiring proof of an aggravating factor at a sentencing hearing (see Jurek, at 270-71), that language is far from clear. Moreover, as I have noted above and other commentators have noted elsewhere, such a reading is inconsistent with the other decisions of the Supreme Court. See, e.g., Constitutional Law—State Statute Allowing Jury Discretion in Imposing the Death Sentence Which Is Not Arbitrary and Capricious Does Not Violate the Eighth and Fourteenth Amendments, 20 How. L.J. 500 , 507 (1977).
The requirement that an aggravating factor be proven at the sentencing phase is not of mere facial importance. Its most obvious advantage is that it expands the range of admissible evidence. See Gregg v. Georgia, supra at 191. This benefits not only the State in its effort to prove the aggravating factor but correspondingly benefits the defendant who seeks to rebut the State's evidence. If the defendant can bring in a wider range of rebuttal evidence, he or she will have a better chance of preventing the State from proving the aggravating factor.
Proof of the aggravating circumstance at the sentencing phase has other advantages as well. One of those is "the clarification of the issues in the jurors' minds". Knowlton, Problems of Jury Discretion in Capital Cases, 101 U. Pa. L. Rev. 1099 , 1135 (1953). Simultaneous consideration of aggravating and mitigating factors should aid the jury in focusing on the aggravating factor as a factor more relevant *222 to sentencing than to guilt. Moreover, making the aggravating factors part of the crime and having a jury separately consider them prior to considering any mitigating circumstances may cause the jury to attach disproportionate weight to the aggravating factors. Cf. Model Penal Code § 201.6, Comment 3, at 72 (Tent. Draft No. 9, 1959) (enumeration of only aggravating factors or requiring findings regarding only such factors might accord them disproportionate significance), quoted in Jurek v. Texas, supra at 271 n.6.
In sum, I believe that the Washington capital punishment statute, even as construed by the majority, does not pass constitutional muster. No similar statute has been approved by the Supreme Court and our statute is functionally indistinguishable from those disapproved by Fur-man.
IV
With respect to the validity of the defendant's conviction, I concede that the polygraph evidence would not of itself have been admissible at the guilt phase of the trial. See State v. Renfro, 96 Wn.2d 902, 905 , 639 P.2d 737 (1982). I am far from convinced, however, that confronting Rodney Bartholomew with the polygraph results in an adversary manner prior to trial would not have produced useful impeachment evidence, if not a change in Rodney's story.
In my view, this possibility is sufficient, for I believe the majority misreads United States v. Agurs, 427 U.S. 97 , 49 L. Ed. 2d 342 , 96 S. Ct. 2392 (1976). The "knowledge" of perjury required to bring undisclosed evidence within the first Agurs category described by the majority is not knowledge sufficient to prove perjury in court. Polygraph evidence which affirmatively indicates that a witness is lying, while not admissible in court, should raise doubt in the mind of a reasonable man as to the witness' truthfulness. Cf. United States v. Hart, 344 F. Supp. 522, 523 (E.D.N.Y. 1971). This is sufficient "knowledge" of perjury *223 under Agurs .
I would reverse the defendant's conviction. Barring such reversal, I concur in the majority's reversal of his death sentence but believe that established federal precedent renders both RCW 10.95.060(3), in particular, and RCW 10.95, as a whole, unconstitutional.
RCW 10.95.900 provides that the various sections of the capital punishment statute are to be construed as severable. The remainder of the statute is therefore uninfected by the unconstitutionality of RCW 10.95.060(3).
Since production of mitigating evidence by the defendant "opens the door" to rebuttal evidence of the State, a defendant might choose to waive his or her right to produce such evidence. In such a case, the only evidence which the State could then produce at the sentencing phase would be prior criminal history. If the defendant has no past convictions, no evidence at all would then be produced.
To date the only line drawing the courts have been required to perform has been along standard common law lines. See Enmund v. Florida, _U.S _, 73 L. Ed. 2d 1140 , 102 S. Ct. 3368 (1982) (death may not be imposed for felony murder where there is neither intent nor attempt to take nor actual taking of life); Coker v. Georgia, 433 U.S. 584 , 53 L. Ed. 2d 982 , 97 S. Ct. 2861 (1977) (death may not be imposed for rape). There is no common law basis for distinguishing between the different types of premeditated murder specified in the Washington statute.
The additional facts which had to be proved were: (1) that the defendant acted deliberately and with the reasonable expectation that death would result; (2) that there was a probability that the defendant would commit future acts of violence; and (3) that the defendant's conduct was an unreasonable response to any provocation by the victim. Jurek v. Texas, 428 U.S. 262, 269 , 49 L. Ed. 2d 929 , 96 S. Ct. 2950 (1976).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9605138. Public record. Not legal advice.