State v. Jeffries

Utter, J.

(dissenting) — This court has the responsibility to review death sentences, considering both the crime and the defendant, "to determine whether the death 'penalty is nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime.'" State v. Campbell, 103 Wn.2d 1, 30 , 691 P.2d 929 (1984) (quoting Pulley v. Harris, 465 U.S. *432 37 , 79 L. Ed. 2d 29 , 104 S. Ct. 871 (1984)), cert. denied, 105 S. Ct. 2167 (1985). Proportionality review, as dictated by the United States Supreme Court, therefore requires that this court look to similar cases, as defined by RCW 10.95-.130(2)(b). Campbell , at 29. The majority rewrites the mandate of RCW 10.95.130(2) (b) and ignores the statutory command by limiting its proportionality review to cases in which the death penalty was imposed. This flies directly in the face of the statutory command. Because the majority rewrites without justification the death penalty statute, I am compelled to dissent.

The legislative definition of similar cases is specific and clear. RCW 10.95.130(2)(b) defines the two types of "similar cases" as

cases reported in the Washington Reports or Washington Appellate Reports since January 1, 1965, in which the judge or jury considered the imposition of capital punishment regardless of whether it was imposed or executed, and cases in which reports have been filed with the supreme court under RCW 10.95.120; . . .

(Italics mine.) The cases covered under RCW 10.95.120 are all cases in which a person is convicted of aggravated first degree murder. The trial court is required to submit to the Clerk of the Supreme Court a detailed report of these cases. In many instances where a person was convicted of aggravated first degree murder, e.g., State v. Kincaid, 103 Wn.2d 304 , 692 P.2d 823 (1985), a death sentence was not sought; however, a report was filed consistent with the language of RCW 10.95.130(2)(b) and RCW 10.95.120. As is clear from the statute and contrary to the majority, "similar cases" includes aggravated first degree murder cases where the prosecutor did not seek the death penalty. This court should not on its own initiative narrow our already severe death penalty statute.

No other state defines "similar cases" in its capital punishment statute to include similar death-eligible prosecutions, whether or not the prosecutor sought the death penalty. Georgia, however, has interpreted its "similar *433 cases" provision to "compare cases as to which the death penalty could have been sought by the prosecutor but was not." Horton v. State, 249 Ga. 871 , 880 n.9, 295 S.E.2d 281 (1982). See also Castell v. State, 250 Ga. 776 , 795 n.12, 301 S.E.2d 234 (1983). The Pennsylvania Supreme Court "conducts an independent evaluation of all cases of murder of the first degree convictions which were ... or could have been" death penalty prosecutions. Commonwealth v. Frey, 504 Pa. 428, 443 , 475 A.2d 700 , cert. denied, 469 U.S. 963 , 83 L. Ed. 2d 296 , 105 S. Ct. 360 (1984). Nine other states by case law establish a pool of cases for proportionality review composed of all capital murder prosecutions whether the penalty imposed was life or death. See Flamer v. State, 490 A.2d 104, 138-39 (Del. 1983); Tichnell v. State, 297 Md. 432 , 468 A.2d 1, 16-17 (1983); State v. McIlvoy, 629 S.W.2d 333, 334-42 (Mo. 1982); State v. Coleman, 185 Mont. 299 , 605 P.2d 1000 (1979), cert. denied, 446 U.S. 970 (1980); State v. Moore, 210 Neb. 457 , 316 N.W.2d 33 (1982); Petrocelli v. State,_Nev._, 692 P.2d 503, 511 (1985); State v. Williams, 308 N.C. 47 , 301 S.E.2d 335 (1983); Cartwright v. State, 695 P.2d 548, 555 (Okla. Crim. App. 1985); Whitley v. Commonwealth, 223 Va. 66 , 286 S.E.2d 162 (1982).

Some states, without statutory language similar to or as broad as ours, restrict proportionality review to similar cases in which the death penalty was imposed. McQueen v. Commonwealth, 669 S.W.2d 519 (Ky. 1984); Wilcher v. State, 455 So. 2d 727, 732 (Miss. 1984); State v. Copeland, 278 S.C. 572 , 300 S.E.2d 63, 72-77 (1982), cert. denied, 460 U.S. 1103 , 76 L. Ed. 2d 367 , 103 S. Ct. 1802 (1983). Courts in other states have no established procedure for proportionality review. E.g., State v. Price, 195 N.J. Super. 285 , 478 A.2d 1249 (1984).

Evidently, legislatures and courts in other states have widely divergent views on what constitutes adequate proportionality review. Some states limit that review to other cases in which death has been imposed, as the majority suggests we do. If that is what the Washington Legislature *434 meant, however, it could easily have said so. Instead, the Legislature specifically requires us to review from a pool of cases as broad as that reviewed by Georgia, a pool of cases surpassed in breadth only by the pool reviewed by the Pennsylvania Supreme Court.

Once the pool of "similar cases" has been determined as provided by RCW 10.95.130(2)(b), the capital punishment statute provides little guidance as to how we assure that the death sentence is not "excessive or disproportionate" or at what "threshold frequency" a death sentence becomes proportionate. The language of this portion of our statute is identical to that of the Georgia death penalty statute and most of the other statutes which expressly provide for proportionality review, and these states provide us guidance for this problem. See Ga. Code Ann. § 27-2537 (c) (1978).

Because of this identity of language and the likelihood that our statute was patterned on the Georgia statute, the Georgia Supreme Court's interpretation of its statute is helpful. Cf. Tichnell v. State, 287 Md. 695 , 415 A.2d 830 (1980) (using Georgia statute as guideline in interpretation of Maryland statute because of similar wording). The test which Georgia has enunciated for proportionality, cited with approval by the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859 , 96 S. Ct. 2909 (1976), is whether death sentences have been imposed "generally" in similar cases. See Moore v. State, 233 Ga. 861, 864 , 213 S.E.2d 829 (1975), cert. denied, 428 U.S. 910 (1976), quoted in Gregg, at 205.

[T]his court is not required to determine that less than a death sentence was never imposed in a case with some similar characteristics. On the contrary, we view it to be our duty under the similarity standard to assure that no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generally and not "wantonly and freakishly imposed,"

(Italics mine.) Moore, at 864, quoting Furman v. Georgia, 408 U.S. 238 , 33 L. Ed. 2d 346 , 92 S. Ct. 2726 (1972) *435 (Stewart, J., concurring). This standard has been recited and adopted by most of the courts which have attempted to set forth a general standard. See Tichnell v. State, supra at 739; State v. Coleman, 185 Mont. 299 , 605 P.2d 1000, 1020 (1979), cert. denied, 446 U.S. 970 (1980); Coppola v. Commonwealth, 220 Va. 243, 258-59 , 257 S.E.2d 797 (1979), cert. denied, 444 U.S. 1103 (1980).

I

The validity of proportionality review procedures depends on the thoroughness and accuracy of the review process. See Hubbard, Burry & Widener, A "Meaningful" Basis for the Death Penalty: The Practice, Constitutionality, and Justice of Capital Punishment in South Carolina, 34 S.C. L. Rev. 391 , 443 (1982). The Campbell majority declined to adopt a methodology for "[a] more definitive proportionality review" until "another day when this court will be confronted with a capital case with far fewer and less severe aggravating factors." Campbell , at 30. That day has arrived.

How then should this court compare cases? Several problems arise. One is the problem of comparing "apples" and "oranges". How many multiple victims (see RCW 10.95.020(8)) makes such a case comparable to murder-for-hire (see RCW 10.95.020(4))? How much worse, or less worse, is a robbery murder (see RCW 10.95.020(9)(a)) compared to the killing of a police officer (see RCW 10.95-.020(1))? The "similar cases" chosen for proportionality review could be limited to only those cases with the same characteristics; if more than a very few characteristics are considered, however, no exactly similar cases are likely to exist.

Another problem is that this court will have to weigh the evidence on various aggravating and mitigating factors without the benefit of factual findings on many of them. This is an even greater problem when evaluating cases decided prior to Furman and in considering aggravated murder cases not appealed. Under pre-Furman statutes no *436 express finding of any aggravating circumstance was necessary, except in the case of felony murder in which case no express finding of premeditation was necessary. In addition, the judges' reports in some aggravated murder cases are too skimpy to be of much use.

Various methods of dealing with these problems have been suggested. One group of commentators has advocated a multiple regression approach under which a "culpability score" is calculated for any given defendant. See Baldus, Pulaski, Woodworth & Kyle, Identifying Comparatively Excessive Sentences of Death: A Quantitative Approach, 33 Stan. L. Rev. 1 , 23-31, 35-36 (1980). While such an approach may have the advantage of objectivity, it seems overly complex and quantitative for a court not made up of statisticians. Accord, State v. Williams, 308 N.C. 47 , 301 S.E.2d 335, 355-56 (1983). The validity of such an approach also appears to turn on the premise that the wide range of aggravating and mitigating circumstances which may be considered can be valued in terms of some common measure.

An alternative approach, and also the one seemingly taken by the Georgia Supreme Court, has been labeled the "salient features" approach. See 33 Stan. L. Rev. at 32-35, 48-52. Under this approach, the appellate court would (1) identify some major aggravating and mitigating factors, (2) pool all cases having those characteristics, and (3) compute the death penalty frequency within that pool. This approach has the advantage of relative simplicity and also avoids the apples/oranges comparison problem. It has the disadvantage, however, of greatly reducing the pool of cases for comparison (see 33 Stan. L. Rev. at 53).

The concerns which have been expressed may be reconciled to an extent, however, by a balancing approach superimposed upon a "salient factors" approach circumscribed in part by the trier of fact's findings of fact. Such an approach involves two steps. First, to select a universe of "similar cases" from the statutorily defined pool by selecting three or four of the most important factors of the subject case. *437 See Flamer v. State, 490 A.2d 104 (Del. 1983) (narrowing the pool of similar cases for comparison in light of the particulars of the offense and the characteristics of the defendant). Selection of such a small number of "salient factors" makes it more likely that a sufficient universe of similar cases will exist. In selecting these "salient factors", particular consideration should be given to factors expressly found by the trier of fact or shown by unquestionable evidence. The second step would then be to compute the frequency of death sentences within the pool of similar cases. If the frequency is less than "generally", the death sentence should be reversed. Use of the word "generally" suggests that the "threshold frequency" at which a death sentence becomes appropriate is significantly greater than 50 percent. See Webster's Third New International Dictionary 944 (1971) (defining "general" as "applicable or pertinent to the majority of individuals involved" or "prevalent, usual, widespread").

This approach is relatively simple; it also manages to retain a reasonable amount of objectivity by defining a general "threshold frequency" and identifies specific factors by which to select "similar cases." The main disadvantage is that it is not feasible in some cases where a limited selection of salient factors will make the case unique. In such situations, the court will probably have to turn to a more subjective comparison of the "severity" of dissimilar cases. See, e.g., State v. Campbell, supra.

II

In this case, and probably in most cases this court will review for proportionality, I believe the salient factors include (1) the number of victims; (2) the conscious amount of suffering imposed on the victim; (3) the degree of premeditation; (4) the aggravating circumstances found; and (5) the personal background of the accused.

Since passage of the most recent death penalty statute in 1981, this court has collected data from trial judges who have presided over 34 aggravated first degree murder con *438 victions. Of those 34 aggravated murder convictions, 13 involved multiple victims. In only 6 of those cases did the State seek the death penalty. The jury imposed the death penalty in 4 out of 13 cases, including the case at hand. Other double murder cases include the following:

A 28-year-old man was convicted of the arson murder of his wife and 18-month-old son. State v. Carey, Whatcom County cause 82-1-00291-0 (sentenced Feb. 10, 1983). For these gruesome deaths, the death penalty was not sought.

Three persons planned and carried out the execution slaying of two union reformers elected to office to eliminate corrupt practices. State v. Guloy, 104 Wn.2d 412 , 705 P.2d 1182 (1985); State v. Dictado, 102 Wn.2d 277 , 687 P.2d 172 (1984). The death penalty was not sought.

A man pleaded guilty to the murder of his brother's 21-year-old wife and her 20-year-old brother with an M-l .30 caliber carbine. State v. Defrates, Mason County cause 84-1-00120-8 (sentenced Mar. 6, 1985). The State did not seek the death penalty.

A man killed his common law wife, mother of his 2-year-old child, and her uncle. State v. Brown, King County cause 82-1-03429-7 (sentenced Apr. 13, 1983). The State did not seek the death penalty.

At her sister's house, a woman told her husband, from whom she was separated, that she did not want to reconcile arid that she planned to keep their child with her. The husband followed his wife and her sister upstairs, where he heard them discussing him and the marriage. He went downstairs and retrieved a 12-gauge shotgun from his truck outside. He returned upstairs where the sister saw him and screamed for her boyfriend, who was downstairs. The boyfriend started up the stairs in response, but retreated when the husband pointed the shotgun at him and threatened to shoot. The boyfriend gathered up the three children of the wife and her sister and put them in his car.

The husband then shot his sister-in-law in the neck and jaw, killing her. He then kicked in the door to the bathroom where his wife had locked herself in, and shot her in the *439 back of the head, killing her instantly. State v. Kincaid, 103 Wn.2d at 306. The State did not seek the death penalty.

A young man killed the parents of the woman he planned to marry shortly after she called off the marriage. State v. Martin, Spokane County cause 83-1-00762-4 (sentenced Jan. 10, 1984). The jury refused the State's request to put the defendant to death.

In a case just decided, Charles Evino Harris was convicted of the aggravated murder of a 33-year-old nurse from Philadelphia visiting friends in Bellevue. State v. Harris, King County cause 85-1-00093-1 (sentenced Aug. 26, 1985). He was also convicted of the first degree murder of his 29-year-old fiancee and the attempted murder of two others, all shot down by him within a few minutes. Although Harris killed two people and attempted to kill two more, the prosecutor did not seek the death penalty.

One case decided within the pool required for review by the death penalty statute demands special attention in this proportionality review. In State v. Carothers, 84 Wn.2d 256 , 525 P.2d 731 (1974), as in this case, the victims, Ronald and Wanda Buck, were a retired husband and wife living in Port Angeles. The shooting of Wanda Buck appears to have occurred after that of her husband, possibly to prevent detection of that crime. Our decision summarized testimony by Carothers' accomplice Joseph Lalak:

Lalak stated that he remained in the car while the petitioner went to the door and knocked. The door opened and the petitioner disappeared inside. Very shortly Lalak heard three shots fired. The petitioner appeared at the window and beckoned to Lalak, who then went in the house and observed a man lying on the kitchen floor in a pool of blood. The petitioner had a pistol in his hand, which he was loading, and which he put in its holster and handed to Lalak. This was the revolver which was found in Lalak's possession at the scene of the automobile accident some weeks later. It appears that it was not fired at the scene of the crimes.

Lalak saw a woman come out of one of the two bed *440 rooms, holding her hands over her face, apparently dazed. Leaving Lalak to keep watch, the petitioner took the woman into the other bedroom, saying he was going to tie her up. In a few moments, Lalak heard another shot. The petitioner came out of the bedroom, walked to a place at the back of the kitchen, and then reappeared, carrying a wallet. Before the two left the house, the petitioner fired another shot at the man on the kitchen floor.

Carothers , at 259. As in Jeffries, the Clallam County prosecutor sought the death penalty. As in Jeffries, the defendants were recently released from prison prior to the crime. Venue was moved to King County on Carothers' motion where a unanimous jury returned a special finding against imposition of the death penalty. State v. Carothers, 9 Wn. App. 691, 695 , 514 P.2d 170 (1973).

The similarities between Carothers and this case are remarkable, yet the simplistic and superficial proportionality review engaged in by the majority opinion, as it misreads the death penalty statute, never mentions Carothers. I can find no rationale to support a finding that this sentence is not disproportionate when compared with Caro-thers, a case strikingly similar in most respects. It is also disproportionate when other multiple victim aggravated murder convictions where the death penalty was not imposed, or even sought, are considered.

I cannot find that the death penalty has been generally imposed, as that term is commonly defined, in similar cases and believe the manner in which multiple murders have been prosecuted in this state during the legislative time period we are to consider makes this sentence constitutionally disproportionate.