State v. Jeffries

Pearson, J.

(dissenting) — I disagree with the conclusory fashion in which the majority disposes of the two critical issues in this case. The majority errs substantially in finding that sufficient evidence of aggravating factors exists in this case. This alone requires reversal of the aggravated murder convictions. Further, the trial court gave erroneous and prejudicial jury instructions on the aggravating factors. *441 The Legislature has clearly delineated the narrow circumstances which warrant the death penalty in this state. The death penalty should not be imposed where none of these statutorily described circumstances has been proved beyond a reasonable doubt. I therefore dissent from the majority's opinion on these issues. I would affirm the convictions for first degree murder, rather than aggravated murder, and remand for appropriate resentencing.

I

Sufficiency of Evidence of the Aggravating Factors

The United States Supreme Court has imposed several constitutional mandates upon the states in regard to death penalty statutes. A number of these are directly relevant in this case. As the Court stated in Godfrey v. Georgia, 446 U.S. 420, 427-28 , 64 L. Ed. 2d 398 , 100 S. Ct. 1759 (1980):

1. A state's death penalty law must provide a meaningful basis for distinguishing the few cases in which the penalty is imposed from the majority of cases in which it is not.

2. A state has a constitutional responsibility to "tailor and apply" its death penalty law in a manner that avoids the "arbitrary and capricious" imposition of the death penalty.

3. A state must channel the sentencer's discretion by "clear and objective standards" which provide "specific and detailed guidance" and which make the process "rationally reviewable".

Accordingly, the statutory aggravating factors play a paramount role in the constitutionality of Washington's death penalty scheme. These factors serve the required function of restricting the class of persons who are subject to the death sentence. The requirement that the State prove at least one aggravating factor beyond a reasonable doubt ensures that the jury's discretion is "guided" and "regularized", thus fulfilling the mandates of the Eighth Amendment. See State v. Bartholomew, 98 Wn.2d 173, 192 , 654 P.2d 1170 (1982), vacated and remanded, 463 U.S. 1203 , *442 defendant's cert. denied, 463 U.S. 1212 (1983); Woodson v. North Carolina, 428 U.S. 280, 303 , 49 L. Ed. 2d 944 , 96 S. Ct 2978 (1976).

In a case where the evidence is insufficient to prove any statutory aggravating factor beyond a reasonable doubt, the defendant is not a proper candidate for death penalty consideration by a jury. The imposition of the death penalty in such a case becomes arbitrary and capricious, since the jury's decision to impose death will then necessarily be based upon factors other than those few narrow factors carefully chosen as proper by the Legislature. The imposition of death under such circumstances is wholly incompatible with the Eighth and Fourteenth Amendments. See Godfrey v. Georgia, supra.

In the case at hand, the majority finds the evidence sufficient under the test enunciated in State v. Green, 94 Wn.2d 216 , 616 P.2d 628 (1980): Whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 6 To arrive at its decision, the majority draws a number of conclusions from the evidence, which it asserts are reasonable inferences. These "inferences", however, are totally speculative. Clearly, the majority misapplies the legal definition of "inference". The term, contrary to the majority's analysis, is not interchangeable with "assumption" or "speculation".

The test applicable to a trier of fact in regard to drawing inferences is that the inferences drawn must be rationally related to the proven facts. State v. Johnson, 100 Wn.2d 607 , 674 P.2d 145 (1983), overruled on other grounds in State v. Bergeron, 105 Wn.2d 1 , 711 P.2d 1000 (1985); *443 County Court of Ulster Cy. v. Allen, 442 U.S. 140 , 60 L. Ed. 2d 777 , 99 S. Ct. 2213 (1979). An inference may be rationally related to the proven facts if that inference is more likely than not to flow from those facts. See County Court of Ulster Cy. v. Allen, supra.

Certainly, a reviewing court logically cannot apply a different standard to its review of evidence than can a trier of fact. Thus, in this case we are allowed to draw only such inferences as are rationally related to the proven facts. The inferences drawn by the majority fail to meet even this minimal standard of rationality. Accordingly, the evidence here clearly fails to satisfy the Green test. No trier of fact, acting only on the evidence presented, could find that either aggravating factor exists beyond a reasonable doubt.

I turn now to an examination of the evidence to support the two aggravating factors found by the jury.

A

RCW 10.95.020(7)

Killing To Conceal a Crime or To Conceal Defendant's Identity as the Perpetrator of a Crime

Unquestionably, to satisfy the aggravating factor found in RCW 10.95.020(7), the law requires some evidence of the defendant's state of mind prior to the killings. In State v. Bartholomew, supra, where this precise aggravating factor was at issue, this court held that "[ujnless the jury is presented with evidence which suggests that the killing was intended to postpone for a significant period of time the discovery of the commission of the crime, the aggravating factor will not be established." (Italics mine.) Bartholomew , at 214. In Bartholomew , we held that the evidence was sufficient to prove the defendant killed the only witness to his robbery in order to conceal the crime and his identity. There, the defendant had stated his intention of leaving no witnesses prior to killing the victim.

Similarly, to find that Jeffries killed the Skiffs in order to conceal a theft, as the majority suggests, the record must *444 contain evidence which indicates Jeffries contemplated the theft prior to, or contemporaneous with, the killings. Theft, as an afterthought, is not relevant to proof of this aggravating factor. If the Legislature had intended to impose death on every criminal who killed and then subsequently decided to steal something, it could have, and would have, stated so clearly. That is not what RCW 10.95.020(7) says, nor is that what it means.

The majority correctly recounts the pertinent facts: Jeff-ries killed the Skiffs on March 19, 1983, sometime between 12 noon and 2:30 or 3 p.m. After 3 p.m. on that day, Jeffries lied to several persons regarding the whereabouts of the Skiffs. He attempted to sell a television belonging to the Skiffs at about 3:30 p.m. On the evening of March 19, Jeffries was seen at a bar with a large amount of cash, which he freely spent. Two days after the murders, Jeffries tried to sell gold belonging to Phil Skiff. When Jeffries left the Skiffs' home 4 days after the murders, he stole a number of the Skiffs' belongings: a truck, chain saw, television, food, blankets and guns.

Based only on this sparse evidence, the majority states at pages 407-08:

If Jeffries simply stole the Skiffs' property, without killing them, they presumably would have contacted the police and he would have been apprehended. Thus, he had to kill them in order to hide the fact that he committed the theft. By killing them Jeffries could escape detection for a substantial period of time.

These assertions can in no way be said to be inferences rationally related to the proven facts. The record in this case is absolutely devoid of any evidence which tends to show, more likely than not, that Jeffries contemplated theft prior to, or contemporaneous with, the murders. Actually, the proven facts and the inferences rationally related to those facts indicate that the theory propounded by the State, and adopted by the majority, is quite unlikely.

Notably, Jeffries lived with the Skiffs for 2 months prior to the murders. The Skiffs left Jeffries to house sit when *445 they traveled to California only about 1 month prior to the murders. Thus, Jeffries had prior opportunity to steal from the Skiffs. Furthermore, the testimony shows that the Skiffs took frequent trips, either for brief or extended periods of time, leaving Jeffries alone on the premises. The testimony also shows Jeffries was fully aware the Skiffs traveled frequently. Accordingly, a rational inference is that Jeffries knew he would have subsequent opportunities to steal from the Skiffs. Yet, the majority asks us to infer that, even knowing the Skiffs' habits, Jeffries suddenly determined that March 19, 1983, was the most advantageous day on which to perpetrate a theft against the Skiffs, even though he would need to murder both of them to commit this theft. Absent any evidence of theft as a cause of the murders, we should not indulge in the inference suggested by the majority that Jeffries planned his theft at a time which would most likely necessitate the murder of the Skiffs. Such an assumption is unwarranted in light of the uncontroverted evidence of prior opportunity and the high likelihood of subsequent opportunity to steal from the Skiffs at a time when that theft could remain undetected for a substantial period of time.

The majority's conclusion that theft motivated the murders is further undercut by the fact that Jeffries remained at the Skiffs' home for 4 days after the murders, in spite of the fact that numerous persons openly expressed their curiosity to Jeffries regarding the whereabouts of the Skiffs. Various persons also had seen Jeffries riding on a tractor to and from a vacant field on the last day the Skiffs were seen alive by any of these people. Because Jeffries had never ridden the tractor before, his actions on March 19 would clearly arouse suspicion. Yet, the majority would have us infer that Jeffries, having planned a theft and having murdered two persons to cover this theft, then stayed at the victims' home where he aroused the suspicions of the neighbors for several days before he departed. This is not a logical inference based upon the proven facts.

Rather, it is more likely than not that Jeffries had no *446 plans at all at the time of the murders, but simply remained at the Skiffs' home until he decided what to do next; or that the murders were perpetrated because the relationship between the Skiffs and Jeffries had grown increasingly uncomfortable and Jeffries feared that the Skiffs were not going to permit him to remain living with them. Significantly, almost all of the items he stole upon his departure to Canada 4 days after the murders were items needed by him to make that trip, e.g., a truck, food and supplies such as blankets. He left behind a number of valuable items which one would logically believe a thief would want (television, video recorder, valuable jewelry found at the house).

Finally, that the theory of the majority is most unlikely is further shown by the fact that a solid gold ring and a gold necklace and pendant were still on Mrs. Skiff's body when it was found. Accordingly, the most rational inference is that Jeffries did not have theft on his mind prior to or contemporaneous with the murder of Mrs. Skiff, or he certainly would have taken these valuables.

A fair evaluation of the evidence merely shows that Jeffries murdered the Skiffs and subsequently stole some of their property. The motive for these murders is unknown; nothing in the record sheds light on the question. Motive, however, must be shown to prove the aggravating factor in question. Unlike the case of a nonaggravated murder charge, where proof of motive is not necessary to a conviction, the aggravating factor specifically requires that the purpose of the killing be to conceal a crime. Unless such motive is proved beyond a reasonable doubt, no aggravated murder conviction may abide.

I empathize with the majority's frustration over the unanswered questions presented by this case. Nonetheless, where the answers are not provided, this court may not simply fill in the gaps by speculating as to events and motives. Rather, we must be content to uphold the conviction for first degree murder and to accept that, under the law, every murder will not qualify for the supreme penalty.

*447 Numerous courts have declined to uphold a death sentence where the evidence is clearly insufficient to establish any aggravating factor beyond a reasonable doubt. In State v. Goodman, 298 N.C. 1 , 257 S.E.2d 569 (1979) the jury found as an aggravating factor that the murder was committed to avoid or prevent lawful arrest. That court held that the evidence must show the killing was motivated by this purpose to establish the aggravating factor; the mere fact of death is not sufficient to invoke the factor. Further, that court stated that proof of the requisite intent must be "very strong". In State v. Rust, 197 Neb. 528 , 250 N.W.2d 867 (1977) the jury found as an aggravating factor that the murder was motivated by a desire for pecuniary gain. The court there held that where the motive was something other than desire for pecuniary gain, the aggravating factor is not proved merely because the result was that defendant was able to achieve such a gain. Similarly, in Young v. Zant, 506 F. Supp. 274 (M.D. Ga. 1980), rev'd in part, 677 F.2d 792 (11th Cir. 1982) the aggravating factor was that the murder was committed during the course of armed robbery and for the purpose of obtaining money. That court held that the factor is not proved where the only relevant evidence shows the defendant did not contemplate taking the money until after the murder. The court further stated that " [bjased on the evidence . . . that petitioner prior to the . . . murder had any intent to rob the victim is only speculation." Young, at 280-81. In State v. Gillies, 135 Ariz. 500 , 662 P.2d 1007 (1983), cert. denied, 470 U.S. 1059 , 84 L. Ed. 2d 834 , 105 S. Ct. 1775 (1985) an aggravating factor found by the jury was that the murder was committed in expectation of receipt of something of pecuniary value. There the court held that the receipt of money must be shown to be a cause of the murder, not merely a result.

Without some tangible evidence, or strong circumstantial inference, it is not for the sentencing court to conclude that because money and items were taken, the purpose of the murder was pecuniary gain. . . . [W]e do *448 not find any evidence that the receipt of pecuniary gain was a cause of the murder.

Gillies , at 512. Finally, in Foster v. State, 436 So. 2d 56 (Fla. 1983), cert. denied, 464 U.S. 1052 , 79 L. Ed. 2d 193 , 104 S. Ct. 734 (1984), the Florida court reviewed the jury's finding that the murder was committed to avoid lawful arrest and hinder law enforcement. The defendant in Foster shot two men in the back as they sat in a car. The men's pockets were turned inside out and their wallets were missing. That court stated, " [although we know . . . that both victims were shot from behind ... we do not know what events preceded the actual killing." Foster , at 58. The court held that the defendant's motive cannot be assumed and the State has the burden of proof to show the motive.

The present case is akin to these cases, and I believe it necessary that we hold that insufficient evidence exists to prove concealment of a crime, or of Jeffries' identity, as a cause of these murders.

B

RCW 10.95.020(8)

The Murders Were Part of a Common Scheme or Plan or the Result of a Single Act

Preliminarily, the State has not argued that the murders were a result of "a single act". Such an argument would fail because no evidence was presented which shows the Skiffs were killed together, in one act, by Jeffries. In fact, the State's theory, adopted by the majority, is that Phil Skiff was killed first and that Inez Skiff was murdered later that day. That theory precludes a conviction based on a "single act".

The majority asserts Jeffries had a scheme or plan to steal from the Skiffs and that he killed them to further this plan. As demonstrated above, however, there is absolutely no evidence Jeffries had conceived any larcenous plan prior to, or at the time of, the murders. Neither the State nor the majority opinion has advanced any other theory as to what Jeffries' preconceived plan or scheme might have been. Further, the record does not support any such theory *449 because there is simply no evidence which indicates what Jeffries' thoughts, plans, or motives were on or before March 19, 1983. No rational trier of fact could have found to the contrary.

Even applying the incomplete "nexus between the killings" definition to common scheme or plan, the record fails to support the jury's finding of this element beyond a reasonable doubt. No proven set of facts establishes any such nexus between the killings of Phil and Inez Skiff.

The evidence does show that each was shot numerous times and that Inez Skiff was shot from the front, Phil Skiff from behind. The evidence also shows that each was last seen alive on March 19, 1983.

However, the pathologist testified that it was impossible to tell the time of death of either victim due to the advanced decomposition of the bodies at the time of his examination. The pathologist's best estimate of the time of death of the Skiffs was that they had been dead at least 7 to 10 days prior to the discovery of their bodies.

Yet, the majority asserts that Phil Skiff was killed first and that his wife observed that murder. There is absolutely no support for this theory in the record. The fact that Mrs. Skiff was killed in the shop, at some time, and that the door was probably locked, does not lead me, as it does the majority, to this conclusion. The majority goes on to speculate that Mrs. Skiff fled for her life into the jewelry shop and was gunned down there immediately after her husband's murder. Again, the majority is building unjustified inferences to suit the State's preconceived theory of this murder. Yet, these assertions and speculations are presented by the majority as if they were proven facts or at least rational inferences drawn from the proven facts.

Actually, these assertions are an unwarranted example of judicial fiction. Based upon the proven facts, which are very scant, with many gaps, we cannot ascertain whether Mrs. Skiff was killed first, or whether Mr. Skiff was killed first. One of the victims may have been killed some time prior to and for a different reason than the second victim. Thus, the *450 evidence is insufficient to prove, beyond a reasonable doubt, any nexus between the killings.

Clearly, a nexus, for purposes of showing that a murder was part of a scheme or plan under RCW 10.95.020(8), is not established merely by showing that the bodies of two people who had been murdered were found in the same location. Nor does the fact that the victims are married to one another establish a nexus between the killings. A nexus between the killings is only shown where proof exists that the murders were committed to further a preconceived plan or scheme. No such proof exists here.

II

Jury Instructions

The jury was allowed to find two statutory aggravating factors in this case:

1. "The person committed the murder to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime". RCW 10.95.020(7).

2. "There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person". RCW 10.95.020(8).

The trial court, however, failed to define for the jury an essential element of each of these factors. First, the court did not specify what particular crime Jeffries allegedly intended to conceal by murdering the Skiffs. Second, the court did not define the phrase "common scheme or plan". I do not believe we can brush these errors aside; these instructions are fatally flawed and Jeffries has been undeniably prejudiced by the errors.

I turn first to the trial court's failure to define the crime which Jeffries allegedly intended to conceal. The majority concedes this omission constitutes error. This court recently held that jury instructions must define an underlying crime in a case where an element of the crime charged is intent to commit another crime. State v. Johnson, 100 Wn.2d 607, 624 , 674 P.2d 145 (1983).

However, in State v. Bergeron, 105 Wn.2d 1 , 711 P.2d *451 1000 (1985), this court partially overruled State v. Johnson, supra, holding that "the specific crime or crimes intended to be committed inside burglarized premises is not an element of burglary that must be included in the information, jury instructions or in the trial court's findings and conclusions." Bergeron , at 15-16. Even if Bergeron is now the correct rule in noncapital cases, a contention with which I disagree, this rule is absolutely impermissible in cases involving the death penalty. Accordingly, I would apply the rule enunciated in Johnson to this case.

The holding in Johnson is constitutionally mandated in capital cases for at least two reasons. Most importantly, it is "a basic principle of due process that jury instructions must define every element of the offense charged". Johnson , at 623. To ensure the constitutional requirement that the State retains the burden of proof for every element of the crime, those elements must necessarily be defined. Otherwise, this court cannot conduct a rational review of the sufficiency of the State's evidence to meet its burden of proof of every element beyond a reasonable doubt. Where the element to be proved is commission of another crime, the only possible way to define that element is by specification of that other crime. Johnson , at 624.

Additionally, a jury may only consider alternative methods of committing a charged crime if there is substantial evidence to support every alternative. State v. Johnson, supra. Thus, when each alternative (e.g., theft, rape, etc.) is not defined, the jury may impermissibly speculate as to any other "criminal acts it might imagine." Johnson , at 624. Clearly, where the instructions do not define the underlying crime, the jury might impermissibly convict the defendant based upon an alternative method of committing the charged crime for which insufficient evidence exists. This court has long condemned such convictions as erroneous. See State v. Mitchell, 29 Wn.2d 468 , 188 P.2d 88 (1947); State v. Thompson, 68 Wn.2d 536, 413 P.2d 951 (1966); State v. Bruton, 66 Wn.2d 111 , 401 P.2d 340 (1965); State v. Green, 94 Wn.2d 216 , 616 P.2d 628 (1980).

*452 In a death penalty case, the rule requiring definition of every element of the charged crime has special significance. A death penalty scheme, to meet constitutional mandates, must define the crimes for which death may be imposed in a way which eliminates standardless discretion in the jury. Godfrey v. Georgia, 446 U.S. 420, 428 , 64 L. Ed. 2d 398 , 100 S. Ct. 1759 (1980).

Here, an element of the aggravating factor for which death may be imposed is the concealment of another crime. The jury was not told what other crime or crimes it could consider, based on the evidence presented, as having fulfilled that element. Unquestionably, the jury was allowed to speculate as to the crime Jeffries might have intended to conceal.

Even if such speculation were permissible in a noncapital case, such guesswork should be absolutely forbidden in a death penalty case where the constitution requires that the jury's discretion be strictly guided.

Thus, the instruction given here fails to meet the Johnson standard and also falls woefully short of performing the vital function of checking the jury's discretion to impose death. I therefore disagree with the majority's ruling that this constitutional error was not prejudicial.

The majority dismisses the argument by asserting that the erroneous instruction is harmless because, based on the record, the jury could only consider theft to be the crime which Jeffries intended to conceal. I have examined this record in meticulous detail and am entirely baffled by this apparent extrasensory perception. Unlike the majority, I am completely unable to read the jurors' minds.

I concede that the State advanced the theory that theft was the crime Jeffries intended to hide by killing the Skiffs. Nonetheless, the jury was in no way limited to consideration of this crime as the one he intended to conceal by killing the Skiffs. In light of the fact that there is no evidence in the record to prove Jeffries contemplated theft prior to, or at the time of, the murders, I cannot believe we can indulge in the assumption that all of these jurors decided *453 Jeffries killed the Skiffs to cover a theft.

Conversely, not being privy to any special insight into the minds of these jurors, I decline to uphold a sentence of death when I cannot satisfy myself that the jurors found, beyond a reasonable doubt, that Jeffries intended to conceal a crime. The possibility that the jurors considered acts which they may have believed amounted to some crime, but which in reality was lawful, stops me short.

Unquestionably, Jeffries has been denied due process of law by this erroneous instruction. An error of constitutional magnitude is presumed to be prejudicial, with the burden on the State to prove it is harmless. State v. Stephens, 93 Wn.2d 186 , 607 P.2d 304 (1980). Further, a constitutional error cannot be deemed harmless unless shown to be so beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 , 17 L. Ed. 2d 705 , 87 S. Ct. 824 (1967).

Here, the error is prejudicial beyond a reasonable doubt because the jury was allowed to impose the death sentence in a completely unguided fashion. The majority authorizes the imposition of the death sentence based on speculation by the jury and compounds the error by its own speculation as to the jurors' deliberations.

I turn next to the trial court's failure to define the phrase "common scheme or plan" in the second aggravating factor found by the jury. Whether this phrase needs definition in noncapital cases is not controlling here. In a death penalty case, the defendant has a constitutional right to thoroughly defined elements of every aggravating factor. I would require this phrase to be clearly defined for the jury in those cases.

The majority dismisses the failure of the trial court to define this element as not erroneous because, "such a simplistic request needs no definition." Majority opinion, at 420. To the contrary, the history of this phrase as used in the aggravated murder context reveals confusion and a need for clarification of its meaning.

This court has interpreted or defined "common scheme or plan" as set forth in the aggravating factor, RCW 10.95- *454 .020(8), in several prior cases. See State v. Kincaid, 103 Wn.2d 304 , 692 P.2d 823 (1985); State v. Dictado, 102 Wn.2d 277 , 687 P.2d 172 (1984); State v. Rupe, 101 Wn.2d 664 , 683 P.2d 571 (1984); State v. Grisby, 97 Wn.2d 493 , 647 P.2d 6 (1982), cert. denied, 459 U.S. 1211 (1983).

In Grisby we held that "common scheme or plan” involves a nexus "between the killings and not the killers." There, two defendants had gone together to an apartment where several persons were then murdered. The court instructed the jury that it could find the aggravating factor if the murders were committed as part of a common scheme or plan. The jury was confused and asked the court to clarify whether "common" referred to the defendants acting in common, or whether "common" referred to the victims as the common factor. The court responded that "common scheme or plan" refers to the victims, not the defendants.

On appeal, the defendants argued that the phrase "common scheme or plan" was unconstitutionally vague because, as used in the law, it had several accepted meanings. We held that the trial court's definition of the phrase for the jury had removed any doubt as to the meaning of the language: common scheme or plan requires a nexus between the killings, not between the killers. Thus, with the clarifying instruction, the statute was not void for vagueness.

Significantly, the "nexus between the killings" definition of "common scheme or plan" was formulated in response to the specific question presented to the court by the jury in Grisby . The "nexus" definition only clarifies that whether the defendants acted in common is not relevant to this aggravating factor. Clearly, however, this definition should not be considered to be the complete or exclusive definition of "common scheme or plan". That result was not intended by this court in Grisby .

A more complete and meaningful definition is offered in Sheriff, Washoe Cy. v. Smith, 91 Nev. 729 , 542 P.2d 440 (1975), cited with approval in State v. Grisby, supra. There, the court interpreted the phrase as it was used in the Nevada capital murder statute and defined it as a sin *455 gle preconceived plan or scheme involving more than one killing.

This definition is more useful than the nexus definition, as it illustrates that the nexus must exist between the plan or scheme and the multiple murders. In other words, the murders must be committed in furtherance of a preconceived scheme or plan to murder or to achieve some other end. See State v. Dictado, supra, where the murders were committed in furtherance of the defendant's preconceived gambling scheme; State v. Kincaid, supra, where the defendant had a preconceived plan to kill his wife and murdered the wife's sister in furtherance of that plan. Thus, although this court has defined common scheme or plan as merely a "nexus between the killings", a careful review of the cases in which we interpreted the phrase, as used in the aggravated murder context, shows that we have required a nexus between a preconceived plan and the murders, not just some connection between the killings.

Accordingly, I would adhere to the holding in Grisby that the phrase "common scheme or plan" is not unconstitutionally vague if the court clarifies its meaning for the jury. That was not done in the present case. Under Grisby , the jury should have at least been instructed that a "nexus between the killings" is required. Moreover, where a man's life is at issue, I would require that the jury be given the complete and more precise definition of the element discussed above.

Additionally, for the same reasons the jury must be told what underlying crime Jeffries allegedly intended to conceal by killing the Skiffs, the jury should be told what specific plan or scheme Jeffries allegedly intended to further by killing the Skiffs. The jury's determination that Jeffries acted in furtherance of a preconceived plan when he killed the Skiffs is not rationally reviewable when the jury is allowed to speculate as to plans, motives and schemes. As demonstrated by the majority, all this court can do by way of review is speculate as to the jury's speculation. This is most injudicious in a capital case.

*456 Undoubtedly, the erroneous and prejudicial jury instructions denied Jeffries a fair trial on the aggravating factors. These errors require a reversal of the jury's findings of both of those factors. Because, as I have illustrated above, there is insufficient evidence in this record to support any aggravating factor beyond a reasonable doubt, a new trial on these factors, with proper instructions, is not appropriate. See Bullington v. Missouri, 451 U.S. 430 , 68 L. Ed. 2d 270 , 101 S. Ct. 1852 (1981). Thus, Jeffries should stand convicted of first degree murder.

Conclusion

The jury in this case has been allowed to make an egregious error. My review of the record leads me to the inescapable conclusion that the jury found Jeffries guilty of aggravated murder based on impermissible factors, factors other than those set out in the death penalty statute.

The evidence presented by the State is insufficient to prove the existence of any aggravating factor; this alone requires reversal of the aggravated murder convictions. In addition, the erroneous instructions on the aggravating factors are sufficiently prejudicial in and of themselves to require reversal of those convictions. Furthermore, these prejudicial instructions have greatly impeded our review of the sufficiency of the evidence.

The function of appellate review is to correct the errors of the lower courts. Meaningful appellate review is vital to avoid the arbitrary and capricious imposition of death. See Gregg v. Georgia, 428 U.S. 153 , 49 L. Ed. 2d 859 , 96 S. Ct. 2909 (1976). An appellate review of a death sentence must never deteriorate into a mechanistic rubber-stamping process, glossing over errors committed below.

The perfunctory review in which the majority engages has deprived Jeffries of a safeguard which is indispensable to a constitutional death penalty scheme: meaningful appellate review. For these reasons, I dissent.

Dolliver, C.J., and Utter and Brachtenbach, JJ., concur with Pearson, J.

In State v. Kincaid, 103 Wn.2d 304 , 692 P.2d 823 (1985), we held that the statutory aggravating factors are not elements of murder, which must necessarily be set out as part of the crime of aggravated first degree murder. Rather, we described these factors as "penalty enhancers" which, if found, will subject a defendant to the death penalty. Nonetheless, these factors, while not elements of any crime, do have elements of their own, each of which must be proved beyond a reasonable doubt by the State.