# State v. Irizarry

> Washington Supreme Court · October 27, 1988 · 111 Wash. 2d 591

URL: https://www.frixlaw.com/law-library/cases/9851126

## Case

- **Full name:** The State of Washington, Respondent, v. Ricardo M. Irizarry, Defendant, Michael Alan Ransom, Appellant
- **Court:** Washington Supreme Court
- **Decided:** October 27, 1988
- **Citations:** 111 Wash. 2d 591; 763 P.2d 432; 1988 Wash. LEXIS 250
- **Precedential status:** Published
- **Opinion:** Concurrence by Utter
- **Judges:** Andersen, Utter, Callow
- **Cited by:** 77 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9851126

## Opinion text

Utter, J.
(concurring) — I agree with the majority's analysis that felony murder is not a lesser included offense of aggravated murder. However, I must point out that this court has never heard argument on or decided the issue of whether excusing scrupled jurors subjects a defendant to a conviction-prone jury and is thus unconstitutional under the Washington Constitution. The cases to which the majority refers were briefed and decided with reference to the federal constitution. Because this court has not yet interpreted the Washington Constitution's restrictions on this issue, until this court has the benefit of briefing that considers at least the nonexclusive factors of State v. Gunwall, 106 Wn.2d 54 , 720 P.2d 808 (1986), this is still an *597 open question. State v. Wethered, 110 Wn.2d 466 , 755 P.2d 797 (1988).
Despite the similar language of the sixth amendment to the United States Constitution and article 1, section 22 of the Washington Constitution, both entitling defendants to trial "by an impartial jury", this court does not presumptively apply the federal analysis if that analysis is not supported by the language, history and context of our constitution. State v. Reece, 110 Wn.2d 766 , 757 P.2d 947 (1988); State v. Gunwall, supra; State v. Coe, 101 Wn.2d 364 , 679 P.2d 353 (1984). I note that studies are establishing through more and more accurate methodologies the correlation between the exclusion of scrupled jurors and conviction. See Fitzgerald & Ellsworth, Due Process vs. Crime Control: Death Qualification and Jury Attitudes, 8 Law & Hum. Behav. 31 , 74 (1984) ("As the controlled simulations become more realistic, the differences between death-qualified and excludable jurors becomes more pronounced."). Further, I find compelling Justice Marshall's dissent to Lockhart v. McCree, 476 U.S. 162 , 90 L. Ed. 2d 137 , 106 S. Ct. 1758 (1986) noting, among other concerns, the great difference between a jury happening to be stacked against the defendant, and it being stacked against the defendant through a scheme of excuses for cause by the prosecution. Lockhart, 90 L. Ed. 2d at 161 (Marshall, J., dissenting).
This court may well reject the federal analysis on this issue if we are presented with adequate briefing on the Washington Constitution. Nothing in the majority should be read to discourage Ransom in his new trial or future defendants from fully asserting their rights protected by the Washington Constitution.
Pearson, C.J., concurs with Utter, J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9851126. Public record. Not legal advice.