State v. Campbell

Rosellini, J.

(concurring) — I concur in the majority's analysis and conclusion that defendant Campbell was properly found guilty of aggravated murder. His death sentence violates neither the state nor federal constitution. I feel compelled, however, to respond specifically to the dissents of my fellow Justices, reiterating arguments made in the majority opinion. Justice Utter questions two aspects of the statutory scheme for imposing the death penalty: (1) prosecutorial discretion in seeking the death penalty in cases of aggravated murder; and (2) a lack of standards to guide the jury in imposing the death sentence and to guide the reviewing court as to proportional application. Justice Dolliver questions the majority's discussion of both state and federal prohibitions against cruel punishment, and its conclusion that the statutory scheme does not violate those prohibitions.

In responding to these issues, it may be well to outline Washington's statutory scheme, since the relationship between the various elements determines its inherent fairness and its compliance with directives set down by the United States Supreme Court and this court.

1. The statute delineates specific circumstances which constitute aggravated murder, thus narrowing the class of *38 persons subject to life imprisonment or death. RCW 10.95-.020. In this respect the statute conforms to the requirements of Furman v. Georgia, 408 U.S. 238 , 33 L. Ed. 2d 346 , 92 S. Ct. 2726 (1972). That case requires that the extreme sanction of death should "not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner." Gregg v. Georgia, 428 U.S. 153, 188 , 49 L. Ed. 2d 859 , 96 S. Ct. 2909 (1976).

2. The statute provides that any person found guilty of aggravated murder shall serve a life sentence without possibility of release; or, alternatively, the person shall be subject to a special sentencing proceeding to consider imposition of the death penalty. RCW 10.95.030. This bifurcated process complies with that suggested by the United States Supreme Court as "more likely to ensure elimination of the constitutional deficiencies identified in Furman.” Gregg, at 192.

3. At the prosecutor's discretion, a special sentencing proceeding may be sought "when there is reason to believe that there are not sufficient mitigating circumstances to merit leniency." RCW 10.95.040(1)- Further, the statute requires that the prosecutor give written notice to defendant within 30 days of arraignment that a special sentencing proceeding will be sought because of an absence of sufficient mitigating circumstances. RCW 10.95.040(2).

In Gregg , the Court denied a challenge to prosecutorial discretion under the Georgia statute, denying as well challenges to discretionary opportunities in the hands of the jury or Governor. Gregg , at 199. Moreover, this court reached a similar conclusion in a unanimous decision in State v. Dictado, 102 Wn.2d 277 , 687 P.2d 172 (1984).

The prosecutor's discretion to seek or not seek the death penalty depends on an evaluation of the evidence of mitigating circumstances. This evaluation must determine if sufficient evidence exists to convince a jury beyond a reasonable doubt that there are not sufficient mitigating circumstances. . . .

*39 . . . The prosecutor does not determine the sentence; the prosecutor merely determines whether sufficient evidence exists to take the issue of mitigation to the jury. This type of discretion does not violate equal protection.

(Citation omitted.) Dictado , at 297-98. See also State v. Rupe, 101 Wn.2d 664, 699-700 , 683 P.2d 571 (1984).

4. The statute next outlines who will hear the special sentencing proceeding. RCW 10.95.050. It provides for the continuation of the same jury that heard and determined the guilt phase, unless jury trial is waived by the defendant, or unless circumstances necessitate the impaneling of a new jury.

5. The statute then provides for the conduct of the special sentencing proceeding, including opening statements and presentation of evidence. The statute contemplates that evidence from the guilt phase will be carried forward into the sentencing phase:

In addition to evidence of whether or not there are sufficient mitigating circumstances to merit leniency, if the jury sitting in the special sentencing proceeding has not heard evidence of the aggravated first degree murder of which the defendant stands convicted, both the defense and prosecution may introduce evidence concerning the facts and circumstances of the murder.

RCW 10.95.060(3), in pertinent part. Our decision in State v. Bartholomew, 101 Wn.2d 631 , 683 P.2d 1079 (1984) limited the new evidence which may be presented by the prosecution at the sentencing phase.

As noted in the majority opinion, the defense may not be limited in its presentation of factors which would argue for lenience, citing Eddings v. Oklahoma, 455 U.S. 104 , 71 L. Ed. 2d 1 , 102 S. Ct. 869 (1982); Lockett v. Ohio, 438 U.S. 586 , 57 L. Ed. 2d 973 , 98 S. Ct. 2954 (1978).

What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.

Zant v. Stephens, 462 U.S. 862, 879 , 77 L. Ed. 2d 235 , 103 S. Ct. 2733 (1983).

The statute, however, does provide examples of relevant *40 factors which may be considered by the jury, but does not limit those factors. RCW 10.95.070. In Bartholomew , we considered the necessity of defining "mitigating circumstances" for the jury. In that case, we concluded that the trial court's reading to the jury of the factors delineated in RCW 10.95.070 "adequately guided the jury as to the nature and function of mitigating circumstances." Bartholomew , at 647. See also State v. Rupe, supra at 701.

6. As a final check against an unjustified imposition of the death penalty, the statute requires this court to review every death sentence and determine whether there was sufficient evidence; whether "the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant"; and whether the sentence was the result of passion or prejudice. RCW 10.95.130(2)(b). In this regard, the trial court shall have submitted to this court detailed answers as to the defendant, the evidence, and the existence of mitigating circumstances. RCW 10.95.120.

At four specific points, the statutory scheme narrows the class of persons subject to the death penalty: first, on the basis of specific elements of aggravated murder; second, with the prosecutor's decision to seek the death penalty for lack of mitigating circumstances; third, with the jury's consideration of mitigating circumstances; and fourth, with this court's ultimate review of the prior proceedings. This compares favorably with the Georgia plan upheld in Zant v. Stephens, supra.

The Georgia scheme provides for categorical narrowing at the definition stage, and for individualized determination and appellate review at the selection stage.

Zant, 462 U.S. at 879 . The Georgia plan similarly provides for Supreme Court review to determine whether the death sentence "was arbitrary, excessive or disproportionate." Zant , at 879-80.

This court must draw a fine line to preserve defendant's unrestricted right to argue any factors meriting leniency, while at the same time preserving standards which prevent *41 capricious imposition of the death penalty. Our statute, as interpreted by case law, achieves that balance.

Justice Dolliver's concurring/dissenting opinion appears to question this court's ability to consider a constitutional issue not fully briefed by the parties. His position, however, fails to note that Justice Utter specifically raises the issue of "cruel punishment," by arguing a violation of Const, art. 1, § 14. The issue of proportionality is discussed extensively in Justice Utter's concurring/dissenting opinion. Historically, proportionality has been measured under both the federal and state constitutional prohibitions against cruel punishment. The majority opinion appropriately traces this history, and concludes that the statutory scheme for imposing the death penalty violates neither state nor federal prohibition.

More importantly, this court would be remiss in its duty were it to overlook any apparent or implied constitutional challenge to imposition of a sentence of death. In criminal cases, this court liberally interprets its own rules to permit assertions of constitutional rights. RAP 2.5(a). See Aripa v. Department of Social & Health Servs., 91 Wn.2d 135 , 588 P.2d 185 (1978) (issues not presented to trial court will not be heard on appeal "except for cases involving denial of fundamental constitutional rights in criminal trials . . ." Aripa, at 141). See also State v. Lampshire, 74 Wn.2d 888 , 447 P.2d 727 (1968). Where a man's life is in balance, we are the more obligated to consider all issues raised.

Finding no constitutional defects in defendant's trial or in the statute on which it was based, I concur with the majority in affirming Campbell's conviction and sentence.

Dore, J., and Cunningham, J. Pro Tern., concur with Rosellini, J.