State v. Harris

Utter, J.

(dissenting) — I cannot agree with the majority's analysis of the report of capital cases required under RCW 10.95.130. A closer examination of similar cases suggests that, out of the pool of contract murderers, Harris has been capriciously selected to die. I have elsewhere, see State v. Campbell, 103 Wn.2d 1, 42 , 691 P.2d 929 (1984) (Utter, J., dissenting), cert. denied, 471 U.S. 1094 (1985) and State v. Jeffries, 105 Wn.2d 398, 429-30 , 717 P.2d 722 (1986) (Utter, J., dissenting), discussed at length the problems attending a proportionality review under our statute. *803 Assuming arguendo that those problems have been overcome, I will address only the statute's application to the facts of this case.

One of the problems in such an analysis is the dearth of relevant cases. Nevertheless, comparison with the contract murder cases discussed by the majority dramatizes the unchecked discretion the prosecutor enjoys. Two cases, State v. Manthie, Kitsap County cause 82-1-00003-3 (Dec. 6,1983), and State v. Edmondson, Kitsap County cause 82-1-00244-3 (Mar. 22, 1983), involve a woman (Edmondson ) who solicited her ex-husband (Manthie) to kill her present husband. In his RCW 10.95.120 sentencing report (Report), the Edmondson trial judge recounted the grisly details of the murder:

Richard Manthie, the defendant's ex-husband, inflicted the harm prior to death, and caused the death. The known physical harm was a badly broken nose resulting from a kick to the face. Later, Manthie shot the victim four times in the head; the victim apparently never regained full consciousness after the first shot. Following the four shots, Manthie stomped the victim's chest in.

Report, at 8. The Manthie report observes that Manthie, while imprisoned in Montana, had been diagnosed as having an "anti-social personality with a violent temper." Report, at 3. The Report further notes that Manthie had been convicted and imprisoned for three different offenses (felony criminal mischief, burglary, and DWI) in the 2Vi years preceding the murder. This was in addition to "multiple juvenile offenses" he was known to have committed. Report, at 3. The Manthie trial judge observed, " [i]f the State had requested the death penalty it would likely have been imposed in my opinion." Report, at 13.

In another case cited by the majority, State v. Mitchell, King County cause 83-1-02643-8 (Apr. 24, 1984), the defendant's actions were even more grisly and appeared to have been carefully planned.

The victim had been badly beaten and had been strangled. His neck was broken. He had been shot twice, once *804 in the chest and once in the head. A pillow had been used to muffle the sound of the shot in the head. The victim's slacks were below his knees, the zipper and catch undone and his belt torn open. His hands and feet were bound with telephone cord and strapping tape. The tape was wound several times around his neck with a washcloth at his neck held by the tape. The washcloth was apparently a gag. The tape then extended to his hands and feet.

Report, at 8.

Because the prosecutor did not seek the death penalty, there was no special sentencing procedure to weigh the aggravating and mitigating factors. Nevertheless, the trial judge observed "that the crime was brutal and premeditated committed without provocation for the sole purpose of obtaining money or property. . . . [Tjhere was no indication of mitigating factors such as mental illness." Report, at 13. The Report also shows that in the 3V6 years prior to committing this crime, Mitchell had been fined or imprisoned four separate times for possession of stolen property, false reporting, false reporting and obstructing, or carrying a concealed weapon. Report, at 3.

To further expand the sample, I would look to the murder of two cannery union reformers in which three individuals were convicted of aggravated murder and in none of the cases did the prosecutor seek the death penalty. See State v. Guloy, King County cause 81-1-01924-9, State v. Ramil, King County cause 81-1-01924-9; State v. Dictado, King County cause 81-1-02795-1. As the trial judge observed in the Ramil and Guloy cases, the reformers had been elected to change the corruption conditions in the union. Ramil Sentencing Report, at 13. The murderers sought to protect their interests in that corrupt system. That both Ramil and Guloy received a life sentence was deemed "Appropriate [because] the Motive, Planning, and Commission of these Double Murders [had been] for Selfish and Corrupt Objectives." Guloy Sentencing Report, at 13. The trial judge in State v. Dictado did not comment on the appropriateness of Dictado's sentence.

The case before us reveals neither the calculation nor the *805 brutality found in the above cases where the death penalty was not even sought. The trial judge indicated that Harris did not engage in an obvious contract killing, even though the "contract" was the aggravating factor cited to justify executing the defendant. The motive for the killing is unclear, as is the source of funds from which the "offeree" was to receive payment. Report, at 13. See also Report of Proceedings, at 593-98. Most peculiar, however, is the fact that the defendant was involved in the actual murder. This hardly reflects the usual calculation associated with a contract murder. The pattern is even more anomalous because Harris's alleged offeree, Gregory Gay-Gay Bonds, was acquitted of the same murder charge in a later trial. There is the powerful suggestion that the State's key witness in both cases, a local heroin pusher and addict, became much less cooperative before the second trial because of two new charges brought against him in the interim — rape and murder. Report of Proceedings, at 777, 793-94.

Even if one assumes the State's witness testified evenhandedly, one is left with a contract murder in which there was only one party to the contract. This raises serious questions about the appropriateness of finding the aggravating factor, a contract, existed at all. All the more should one question the proportionality of the death sentence based on a putative contract in which one of the two parties is found not to have entered into the contract.

The capriciousness of the majority's result is heightened by the attention the majority pays to Harris's 1-year prison sentence for manslaughter. Majority, at 799. In comparing that record with the records of other defendants in the sample population, the majority determines that Harris's is uniquely serious. What the majority ignores, however, is the passage of time between Harris's single prior conviction (1969) and his present conviction (1984). In contrast, in the years preceding their capital crime, two of those convicted of the most violent of the above murders had been imprisoned several times for various offenses. Manthie's record shows "multiple juvenile offenses" some 7 to 9 years prior *806 to his murder conviction (1982), as well as burglary (1981) and felony criminal mischief (1979) convictions within 3 years of his murder conviction. Similarly, Mitchell shows four separate convictions within the 4 years prior to his murder conviction. The comparative relevance of Harris's 1-year sentence 15 years ago is attenuated at best.

In spite of these many incongruities, the majority concludes that Harris's death penalty "was not 'wantonly or freakishly' imposed." Majority, at 799. A proportionality review is required to demonstrate that. The majority's attempt at such a review fails the requirement. I dissent.

Pearson, J., concurs with Utter, J.

Reconsideration denied December 3, 1986.