Opposition Brief — Blodgett v. Kwan Fai Mak

ORIGINAL = [Recewes

DISTRIBUTED . |

— i _ FEB ~1 193

SUPREME COURT, U.S.

IN THE SUPREME COURT OF THE UNITED ST

OCTOBER TERM, 1992

JAMES BLODGETT, Superintendent,

Petitioner,

Vv.

KWAN FAI MAK,

Respondent.

RESPONDENT'S MOTION FOR

LEAVE TO PROCEED

IN FORMA PAUPERIS

ee ee ee ee ee ee ee ee

Respondent Kwan Fai Mak, through counsel, moves pursuant to

Supreme Court Rule 39 for leave to proceed jin forma pauperis.

The undersigned counsel were appointed by the United States Court

of Appeals for the Ninth Circuit under the Criminal Justice Act.

Mr. Mak was granted leave to proceed jn forma pauperis by the

United States District Court on November 9, 1933, and continued

that status in the Court of Appeals.

DATED: January 27, 1993.

Respectfully submitted,

end (ltt2 __

KATHRYN LOND ROSS, WSBA #6894

Jones, Ross, Besman & Connolly

3405-188th Street S.W., #101

Lynnwood, WA 98037

Coun Re

Whirl Ley

HN/B. MIDGLEY, WSBA aa

erpgreen Legal Services

Institutional Legal

Services Project

101 Yesler Way, Suite 301

Seattle, WA 98104

(206) 464-0838

Attorneys for Respondent

Kwan Fai Mak

NO. 92-1128

IN THE SUPREME COURT OF THE UNITED STATES

~ OCTOBER TERM, 1992

JAMES BIODGETT, Superintendent,

Petitioner,

AFFIDAVIT OF SERVICE

Vv.

KWAN FAI MAK,

Respondent.

ee ee ee ee ee ee ee ee ee

STATE OF WASHINGTON )

: ss.

County of King )

I, John B. Midgley, a member of the Bar of this Court,

hereby certify that on the 27th day of January, 1993, I mailed,

first class postage prepaid, one copy of Respondent's Brief In

Opposition and one copy of Respondent's Motion To Proceed In

Forma Pauperis, to Petitioner's Counsel of Record:

Kathleen D. Mix

Senior Assistant Attorney General

Corrections Division

P.O. Box 40116

Olympia, WA 98504-0116.

I further certify that all parties required to be served

Ade wr Ls his ude’ by

/JOHN/B. MIDCLEY, WSB 72411

\Evergreen Legal Services’

Institutional Legai--

Services Project

101 Yesler Way, Suite 301

Seattle, WA 98104

(206) 464-0838

have been served.

SUBSCRIBED AND SWORN TO before me this day of

, 1993.

S. MLLER | NOTARY PUBLIC in and for

BEVERLY ;

STATE OF WASHINGTON [the State of Washington,

NOTARY ~e-- PUBLIC residing at:

My commission expires:

My Commission Expires 9-17-96 : ;

ORIGINAL

NO. 92-1128

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1992

JAMES BLODGETT, Superintendent,

Petitioner,

Vv.

KWAN FAI MAK,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

John B. Midgley, WSBA #6511

Evergreen Legal Services

Institutional Legal

Services Project Lynnwood, WA 98037

101 Yesler Way, Suite 301 (206) 771-5143

Seattle, WA 98104

(206) 464-0838 Counsel of Record

for Respondent

Kathryn Lund Ross, WSBA #6894

Jones, Ross, Besman & Connolly

#101

PAGE

CONSTITUTIONAL AND STATUTORY PROVISIONS .......+4.2..-. #1

a a a a er rr

1. Trials And Sentences Of Mr. Mak And His Co-Defendants 2

2. The Washington Capital Punishment Statute ..... 3

3. The Record Regarding Relative Culpability. .... 4

4. Verdict And Penalty Phase ........4.. + ae

REASONS WHY THE PETITION SHOULD BE DENIED .........4-. 7

I. |THE COURT OF APPEALS DECISION REGARDING THE PROHIBITION

ON DEFENSE PENALTY PHASE EVIDENCE WAS BASED ON TWO

INDEPENDENT GROUNDS; THE PETITION DOES NOT EVEN MENTION

ONE OF THE GROUNDS, AND ON THE OTHER THE COURT OF APPEALS

MADE A ROUTINE APPLICATION OF SETTLED PRINCIPLES OF THIS

COURT'S CAPITAL JURISPRUDENCE. ..... «+ «© «© © «© « « 8

A s To Challenge end ound

Ss h 4 » 2 6 . 8

B. e h s

Vv ce

At The Penalty Phase. . . . «© «© «© «© «© «© © © © © «© « 9

II. THE COURT OF APPEALS' INEFFECTIVE ASSISTANCE DISCUSSION

WAS MADE IN EXPLICIT CONFORMITY WITH STRICKLAND V.

WASHINGTON AND THE CIRCUIT DID NOT PRESUME

INEFFECTIVENESS OR OTHERWISE CONDUCT IMPROPER REVIEW. » a7

A. als " j ®

c oun a ase tai _Reco

unsel'

Phase Fell Below An Objective Standard Of

Reeeonahbleneses. . 2. «+s» s*e2 ese ee se eo eo wo oe wo eo eo

B. Ww ss

III. THE COURT OF APPEALS CORRECTLY IDENTIFIED THE IMPORTANT

CONSTITUTIONAL PROBLEMS WITH THE "UNANIMITY" INSTRUCTIONS

FROM RESPONDENT'S PENALTY PHASE, BUT DID NOT REST ITS

JUDGMENT ON THE PLAIN DEFECTS IN THOSE INSTRUCTIONS. .. 24

CONCLUSION ” o . . . . o . _ . + . 7 . . . . . . . . . . . . 28

CASES

’

ee oe a oa

‘

829 F.2d 1453 (9th Cir. 1987),

cert. denied, 488 U.S. 948 (1988) ..... +... +. 3, 21

’

£8) OU cea

Gardner v. Florida,

CI Sag ng Oa ee a ew eee ee

a ,

867 F.2d 351 (7th Cir. 1987),

cert... Genied, 479 U.S. 995 (1989) ..-«-e«-eeeee eb « 26

ak Vv ;

754 F. Supp. 1490, (W.D. Wash. 1991) ....... . passim

Mak v. Blodgett,

970 F.2d 614 (9th Cir. 1992). ........ +... . passim

McKoy v. North Carolina,

Se er Gt ee: a

Mills v. Maryland,

8 6 ge ee ee

Skipper v. South Carolina,

So SE er ee

Ww,

98 Wash. 2d 173, 654 P.2d 1170 (1982) (Bartholomew I),

vacated and remanded for reconsideration,

463 U.S. 1203 (1983), affirmed, 101 Wash. 2d 631,

683 P.2d 1079 (1984) (Bartholomew II) ........ 12, 13

State v. Bartholomew,

101 Wash.2d 631, 683 P.2d 1079 (1984) © & © © ee © 6 OS

State v. Jeffries,

105 Wash.2d 398, 717 P.2d 722,

cert. Genied, 479 U.S. 922 (1986) ..-«-+«e-+-ee ec e By Bl

’

105 Wash.2d 692, 718 P.2d 407,

cert. denied, 479 U.S. 995 (1986). ....... . . passim

Washi ,

fe i” fs

os £2 «

Wash. Rev. Code § 10.95.060(4) ere ee ee ee ee ee ee ee ae a

Wash. Rev. Code § 10.95.080 . . ... +e +e © © © © © © © © © Fy 15

Wash. Rev. Code § 10.95.080(2) c eglete 6. es we ee se 8 Oe

Wash. Rev. Code §10.95.080(4) . . +. +. + «+ © © © © © © © © © © 25

- iii -

NO. 92-1128

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1992

JAMES BLODGETT, Superintendent,

Petitioner,

Vv.

KWAN FAI MAK,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

The Respondent Kwan Fai Mak respectfully requests that this

Court deny the petition for writ of certiorari, seeking review of

the Court of Appeals' opinion in this case. That opinion is

reported at 970 F.2d 614 (9th Cir. 1992).

"4 8) ROVISIONS

The Petitioner has not included the full text of the several

provisions of the State of Washington's capital punishment

statute that are important to an understanding of this case. The

key provisions are Wash. Rev. Code. §§ 10.95.020 - 10.95.090, all

of which are attached in the Appendix hereto at pp. A-1 to A-8.

ATEMEN HE CASE

The state has failed in its petition to acknowledge or

adequately discuss key factual matters. We state these here.'

1. Trials And Sentences Of Mr. Mak And His Co-Defendants

As the district court found regarding the three young men

who were involved in the crimes in this case:

Benjamin Ng was tried first and convicted on ali

counts. He had fired most of the fatal shots. At the

penalty phase mitigating evidence was presented in his

behalf. The jury did not agree unanimously that the

state had proved beyond a reasonable doubt that there

were not sufficient mitigating circumstances to merit

leniency. Accordingly, Benjamin Ng was sentenced to

life in prison without possibility of parole.

[Habeas petitioner Mr. Mak, respondent here] was

twenty-two years old at the time of the crime. He had

come to this country from Hong Kong at age fifteen, as

an immigrant with his family. His trial, before a

different jury, followed that of Benjamin Ng.

Petitioner's trial also ended in a verdict of guilty on

all counts. The prosecution argued, and petitioner

denied, that he had planned the crime. In the penalty

phase virtually no mitigating evidence was presented in

his behalf. The jury found that there were not

sufficient mitigating circumstances to warrant

leniency. On October 1, 1983, petitioner was sentenced

to death.

Tony Ng was the last to be tried. He was captured in

Calgary, Alberta, in October, 1984. Because Canada has

no capital punishnent, had the prosecutor sought the

death penalty, Ng's attorneys and Canadian authorities

could have resisted extradition. The prosecutor's

decision not to seek he death penalty made possible

Tony Ng's return to Seattle. He was convicted on

thirteen counts of first degree robbery and one count

of second degree assault, and was sentenced to seven

consecutive life terms in prison.

Mak v. Blodgett, 754 F. Supp. 1490, 1491-1492 (W.D. Wash. 1991),

aff'd, 970 F.2d 614 (1992).

oF The record is cited as follows: The federal district

court Clerk's Record papers are cited as "CR" followed by the

docket number. The federal district court Reporter's Transcript

is cited as "TR" followed by the hearing date and page number.

The state court record is consecutively paginated and filed with

the federal courts in volumes. That record is cited by volume

and then page number as in the following example: "11 REC 3943".

- 2.

2. The Washington Capital Punishment Statute

Under the Washington capital punishment statute (all

relevant sections attached in the Appendix), a separate penalty

trial is convened if the defendant is convicted of aggravated

first degree murder. At this penalty proceeding the jury must

answer the following question:

Having in mind the crime of which the defendant has been

found guiity, are you convinced beyond a reasonable doubt

that there are not sufficient mitigating circumstances to

merit leniency?

Wash. Rev. Code § 10.95.060(4). "In order to return an

affirmative answer to the question posed by this subsection, the

jury must so find unanimously." Id. Unless the jury is

unanimously convinced that the mitigating circumstances are not

sufficient to merit leniency, the sentence is automatically

required to be life without possibility of parole. Wash. Rev.

Code § 10.95.080(2). Thus, there is no such thing as a "hung

jury" on penalty.

Even if convicted of aggravated first degree murder at the

guilt phase, a defendant enters the penalty trial with a

presumption that he is entitled to leniency, that is a sentence

of life without possibility of parole or release. Campbell v.

Kincheloe, 829 F.2d 1453, 1466 (9th Cir. 1987), cert. denied, 488

U.S. 948 (1988); State v. Jeffries, 105 Wash.2d 398, 425, 717

P.2d 722, cert. denied, 479 U.S. 922 (1986). Generally speaking,

subject to rebuttal evidence, only the defendant's criminal

record and mitigating evidence may be introduced in the penalty

phase. State v. Bartholomew, 101 Wash.2d 631, 683 P.2d 1079

(1984); Campbell, 829 F.2d at 1462.

3. The Record Regarding Relative Culpability.

The physical evidence showed that 26 of 32 shell casings

found at the Wah Mee came from a Ruger .22 automatic pistol. 9

REC 3118-3120. The state has conceded that co-defendant Benjamin

Ng, and not Mr. Mak, carried and fired this Ruger, and so

therefore did most if not all of the shooting. State's brief on

direct appeal, 26 REC 8991-8992; state's Brief in Court of

Appeals at 53.

In addition, Mr. Mak testified that he went to the Wah Mee

only to administer a beating at the behest of his tong leaders

but he had no plan or knowledge that people would be killed. See

9 REC 3262-3306.° Mr. Mak was acquitted of the aggravating

factor of having a scheme or plan which included murder(19 REC

6886), while co-defendant Benjamin Ng, identified by eyewitness

Wai Chin as entering the club separately with the bag of ropes

and ordering everyone to raise their hands (18 REC 6520-6523) was

convicted by the jury in his trial of the aggravating factor of

having planned or schemed the murders (18 REC 6573).

Mr. Mak's court appointed public defenders planned to

present, and discussed in opening statement, evidence that

Benjamin Ng was connected with one Hing Wong under circumstances

showing that Wong wanted to control illegal gambling in Seattle's

International District and that he and Ng, unbeknownst to Mr.

Mak, may well have planned and set in motion the robbery and

consequent killings at the Wah Mee in order to accomplish this.

6 REC 2254-2255. However, the trial court excluded the evidence

e/ The "tongs" involved are organizations that, among

other things, conducted illegal gambling operations and provided

protection for those operations. 9 REC 3225.

- 4-

during the guilt phase. E.g., 8 REC 3767-3785. The trial court

refused as well to allow any of this evidence to be presented as

mitigating evidence at the penalty phase. 11 REC 4098-4100.°

4. Verdict And Penalty Phase

The jury found Mr. Mak guilty of aggravated first degree

murder, finding two “aggravating circumstances", i.e. that the

murders were committed to conceal the commission of a crime and

in furtherance of a robbery. 19 REC 6886. However, as stated

above, the jury rejected the charge that the murders were in

furtherance of "a common scheme or plan" of Mr. Mak's (]d.),

while the jury in the Ben Ng trial had found that the murders

were pursuant to a "common scheme or plan" of Ng's. 18 REC 6573.

The penalty phase began about three hours after the

aggravated murder verdict was taken. 11 REC 4114.‘ Defense

counsel had failed to seek and therefore did not uncover and

produce at the penalty phase available mitigating evidence from

Mr. Mak's parents and other family members about Mr. Mak's

relationships and positive attributes, and expert testimony about

his personal and cultural background. Evidentiary hearing, TR

10/30/90 and exhibits admitted at that hearing. The district

court found that this "substantial and important mitigating

3/ Tony Ng, the third co-defendant who was tried long after

the other two when he was returned from Canada, testified at his

own trial. Among other things, he corroborated Mr. Mak's

testimony that Mak planned to beat someone up at the Wah Mee in

relation to the tong dispute and that murder was not discussed.

See 7 Tony Ng REC 2178- 2212. The state's assertion that the

Tony Ng testimony "firmly establishes that Mak planned the Wah

Mee murders..." (Petition at 24, n. 14) is inaccurate.

4/ As the district court found, "the defense lawyers made

an informal request, off the record for additional time to

prepare for the penalty phase. [Citing CR 306] They failed to

make or argue a motion, or do anything else on the record for

that purpose." 754 F.Supp. at 1501.

- 5 =-

evidence" was "readily available" at the time of trial. 754

F.Supp. at 1496. No family member testified, although many would

have had they been asked to provide evidence of Mr. Mak's good

qualities. Id. at 1496-1499. The district court also found that

"it is clear that counsel failed to present the available

mitigating evidence solely through oversight. There was no risk

in presenting it. There was no decision on their part to leave

it out." Id. at 1500.°

Without the "readily available" mitigating evidence

regarding Mr. Mak's positive qualities and background, the

prosecutor was able to argue in penalty phase summation:

What separates Willie Mak from the others, is the

same thing that distinguishes him from all other

murderers, the premeditation of this crime, the intent

to kill of this crime,

'

y.

11 REC 4170-4171 (emphasis added). No evidence to meet this

claim was presented by the defense. See also 11 REC 4143-4144,

4166 (prosecutor arguing that Ng verdict and testimony about the

vagaries of eyewitness identification -- the sum total of the

defense evidence at the penalty phase -- hardly relate to

mitigation for Mr. Mak).

The jury instructions given at Mr. Mak's penalty phase trial

were different from those given at Benjamin Ng's penalty phase.

5/ The state incorrectly claims that "counsel were aware

of many of the items of information Mak has now assembled."

Petition at 16. This assertion is without support in the record.

The state also incorrectly questions the district court's

strongly supported finding that there was no risk to presenting

the missing mitigation evidence. Petition at 7. The district

court based the "no risk" finding on the undisputed testimony of

both the two trial prosecutors and the two trial defense lawyers.

(754 F.Supp. at 1500, quoting and citing testimony), and had

before it cross-examination done by the state's lawyers for the

evidentiary hearing below, which revealed nothing damaging.

-6-

The state successfully proposed a new instruction specifically

for the Mak penalty phase that included the language "jurors have

a duty to consult with one another and to deliberate with a view

to reaching a unanimous verdict ..." (19 REC 6858-6859

(proposal); 19 REC 6881 (instruction given)), even though under

Washington law only a death sentence requires a unanimous verdict

and a nonunanimous verdict would result in a life sentence.

Wash. Rev. Code §§ 10.95.060(4); 10.95.080.

REASONS WHY THE PETITION SHOULD BE DENIED

As is shown below, the Petition fails to accurately describe

what the Court of Appeals did in the true context of this case.

The actual narrow, factually grounded, per curiam opinion

rendered by the Court of Appeals panel (which no active judge in

the Circuit thought questionable enough to call for a vote on the

question of rehearing en banc) refutes the state's claims about

it.

The Court of Appeals granted habeas relief because the trial

court prevented the defendant from presenting relevant mitigating

evidence to the sentencing jury. The court also found that trial

counsel failed to render effective assistance of counsel in the

penalty phase of trial and that the trial judge's charge to the

jury violated the Constitution, but did not determine whether

these latter two claims independently required relief in light of

its conclusion that the exclusion of mitigating evidence alone

required relief.* The state makes no case for review in this

6/ The state claims the Court of Appeals failed to

identify the errors that led it to affirm the district court's

grant of habeas relief as to sentence. Petition at 10, n. 4.

However, the opinion itself makes clear that the Court of Appeals

granted relief on the exclusion of evidence ground and also

(continued...)

ee

Court of what the Court of Appeals actually did.

I. THE COURT OF APPEALS DECISION REGARDING THE PROHIBITION ON

DEFENSE PENALTY PHASE EVIDENCE WAS BASED ON TWO INDEPENDENT

GROUNDS; THE PETITION DOES NOT EVEN MENTION ONE OF THE -

GROUNDS, AND ON THE OTHER THE COURT OF APPEALS MADE A

ROUTINE APPLICATION OF SETTLED PRINCIPLES OF THIS COURT'S

CAPITAL JURISPRUDENCE.

A. The State Fails To Challenge An Independent Ground For

The Decision In The Court of Appeals.

The state fails to mention in the Petition the key point

that the Court of Appeals' holding on the exclusion of mitigating

evidence at the penalty phase was based on two grounds, each of

which the court found "compelling." Mak, 970 F.2d at 624.

As the Court of Appeals recognized, a capital defendant has

a constitutional right to present any evidence relating to either

the circumstances of the offense or the characteristics of the

defendant that might tend to support a sentence less than death,

Skipper v. South Carolina, 476 U.S. 1 (1986), and as a close

corollary, the Constitution also requires that a capital

defendant be permitted to present evidence to rebut the

prosecution's evidence and arguments, Skipper, 476 U.S. at 5 n.1

(opinion of the court), 476 U.S. at 9-11 (Powell, J. dissenting

except on this point), both citing Gardner v. Florida, 430 U.S.

349 (1977).’ The Court of Appeals ruled for Mr. Mak on both of

these grounds. 970 F.2d at 622-624.

Taking first the second, "rebuttal", ground (ignored by the

$(...continued)

found, but did not attempt to judge prejudice from, serious

constitutional problems in the other two area that the state

itself complains about in the Petition.

"/ Thus, all nine Justices agreed in Skipper that the

prosecution's argument at sentencing that Skipper would be

violent in prison made his prison record and behavior relevant to

sentence.

state), the Court of Appeals correctly recognized that the

prosecution made the excluded evidence relevant by insisting that

Mak was the only leader:

Mak also argues that the actions of the prosecutor in

painting Mak as the ringleader made the issue of Hing

Wong's alleged participation in the massacre relevant,

even if it would not otherwise have been. In closing

argument, the prosecution said of Mak: "He made the

plan and he went out and he carried out the plan, and

the job of the defendant was the leader. His job was

to oversee everything else that was done by this two

crime partners. It was Willie Mak who was in charge.

He was not the confused outsider that he would have you

believe, but he was the leader of the crime, acting

with the motive to commit robbery."

These arguments not only made the issue of Mak's role

in the offense relevant, Mak argues, but also gave Mak

a due process right to an opportunity to rebut. In

Skipper, the Court stated:

Where the prosecution specifically relies on

a prediction of future dangerousness in

asking for the death penalty, it is not only

the rule of Lockett and Eddings that requires

that the defendant be afforded an opportunity

to introduce evidence on this point; it is

also the elemental due process requirement

that a defendant not be sentenced to death

"on the basis of information which he had no

opportunity to deny or explain."

476 U.S. at 5 n. 1, 106 S.Ct. at 1671 n. 1 (quoting

Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197,

1206, 51 L.Ed.2d 393 (1977)).

Under either due process argument, Mak's position is

compelling....

Mak, 970 F.2d at 623-624 (emphasis added). This wholly

independent ground for the granting of habeas relief as to the

penalty phase, unchallenged by the state in its Petition here,

completely supports the judgment below.

B. The Court of Appeals Otherwise Applied Settled

: jent on The Exclusi of Mitiaati Evid at

The Penalty Phase.

The state does try to challenge here the other prong of the -

Court of Appeals' holding on the exclusion of defense evidence.

However, the state's clairs are unfounded and this holding

presents neither any novel application of this Court's decisions

- 9 =-

nor any other issue of importance.

The state premises its claims on incorrect statements about

what the Court of Appeals did. As a telling example, the state

Claims that the Court of Appeals's version of Mak's offer of

proof, and the court's analysis of this claim, is derived

exclusively from the dissenting opinion ...f{in] the Washington

Supreme Court." Petition at 18, n.9 (emphasis in original).

Every word of this assertion is misleading. Most importantly,

the Court of Appeals's analysis of this issue was explicitly

based on this Court's opinions:

Mak argues he had a constitutional right to present

all relevant mitigating evidence related to his

character or the circumstances of the offense at the

sentencing phase of his trial. We agree. The Supreme

Court held in Eddings v. Oklahoma, 455 U.S. 104, 102

S.Ct. 869, 71 L.Ed.2d 1 (1982), that "the sentencer

(may } not be precluded from considering, as a

, any aspect of a defendant's

character or record and any of the circumstances of the

offense that the defendant proffers as a basis for a

sentence less than death.'" Id. at 110, 102 S.Ct. at

874 (quoting Lockett, 438 U.S. at 604, 98 S.Ct. at

2965) (emphasis in original). "Equally clear is the

corollary rule that the sentencer may not refuse to

consider or be precluded from considering ‘any relevant

mitigating evidence.'" Skipper, 476 U.S. at 4, 106

S.Ct. at 1671 (quoting Eddings, 455 U.S. at 114, 102

S.Ct. at 877). The state does not contest this reading

of the law. The issue upon which the parties disagree

is whether the evidence is relevant.

Mak, 970 F.2d at 623 (emphasis in original; footnote omitted).

The Court of Appeals did agree with the analysis of the dissent

in state court, but that is because that dissent, unlike the

majority, explicitly relied on this Court's cases regarding

admission of defense evidence at the penalty phase. See State v.

Mak, 105 Wash. 2d 692, 718 P.2d 407, 424 (majority), 448-450

(dissent), cert. denied, 479 U.S. 995 (1986).

The state's other assertion -- that the Court of Appeals

- 10 -

somehow followed the state dissent in misdescribing the defense's

offer of proof in serious deviation from the state court

majority's description -- is also incorrect. See the virtually

identical descriptions of the defense's offer as set out in,

respectively, the Washington Supreme Court majority and dissent.

718 P.2d at 423, 449.

The state does not deny that evidence of a connection

between the third party, one Hing Wong, and the Wah Mee incident

would be relevant to the death determination in this case;

indeed, the state specifically conceded this in oral argument in

the Court of Appeals, at which the state's counsel said "I think

everybody conceded that had there been evidence that Hing Wong

directed this crime that would certainly have been admissible

during the guilt phase and during the penalty phase." The state

could hardly claim otherwise, given the state's arguments at

trial that Mr. Mak was the ringleader and chief planner.®

Here, the state's claim is really that "Although Mak showed

a connection between Hing Wong and Benjamin Ng, he completely

failed to establish any link between Hing Wong and the Wah Mee

Massacre" (Petition at 20), and that there exists a reasonable

8) The deprivation of Mr. Mak's ability to present this

evidence is also notable because the prosecutors and the state

courts have tried to justify the death sentence on the claimed

basis that Mr. Mak was the planner of the Wah Mee killings. See

State's Brief on Appeal, 26 REC 8991-8992 (claiming that the

death sentence was justified for Mak when Ben Ng, the main

triggerman, got life, because the state thinks Mak was the

planner and leader). The Washington Supreme Court found that the

death penalty for Mr. Mak was justified when a jury found Ng did

not deserve death because, inter alia, there was evidence of

Mak's planning. 718 P.2d at 428. Mak's testimony contested

this, and the jury acquitted him of the aggravating factor of

having a scheme or plan that included murder, yet he was

precluded from adducing evidence even in the penalty phase

regarding Hing Wong's plans and motives as connected to Wah Mee.

- ll -

state court evidentiary ruling adequately accounting for

constitutional rights along with state court findings of

historical fact to support this to which the Court of Appeals did

not show sufficient deference (Petition at 19, 23). Each premise

of this alleged basis for review in this Court is flatly wrong.

First, trial counsel repeatedly demonstrated evidence of a

clear connection between Hing Wong and the Wah Mee through the

statement made to police by an informant:

But for the connection, though, there is that

indication from confidential informant number 30,

indicating that Hing Wong ... , the informant indicated

to Lieutenant Holter was the one that put Mak and Ng up

to this...

10 REC 3781. The police deemed this information "from this

informant that there was an individual directing the actions of

the people inside the Wah Mee club, directing them to kill the

people in the Wah Mee...sufficiently important to do follow-up on

the information that was given ... by C.I. 30" (quotation from

question from counsel at pretrial hearing, answered "Yes" by

police lieutenant, 2 REC 485-486).

This evidence, though it was hearsay (not speculation as

claimed by the state), would clearly have been admissible under

the Washington rule -- conceded but not revealed to its true

extent by the state in the Petition at 22 -- that the rules of

evidence do not apply to mitigation evidence:

The court [at a capital sentencing proceeding] shall

admit any relevant evidence which it deems to have

probative value regardless of its admissibility under

the rules of evidence, including hearsay evidence...

Wash. Rev. Code § 10.95.060(3) (pertinent part). The Washington

Supreme Court in State v. Bartholomew, 98 Wash. 2d 173, 654 P.2d

1170 (1982) (Bartholomew I), d anded fo

- 12 -

reconsideration, 463 U.S. 1203 (1983), reaffirmed, 101 Wash. 2d

631, 683 P.2d 1079 (1984) (Bartholomew II) has emphasized that

this means there are significantly relaxed standards of both

reliability and relevance:

Defendant's right tc present mitigating evidence is

limited only by the requirement of relevance. The

Rules of Evidence designed to ensure the reliability of

evidence received by the court do not apply to

mitigating information in a capital sentencing

proceeding.

Bartholomew I, 654 P.2d at 1184 (emphasis added); first sentence

quoted in Bartholomew II, 683 P.2d at 1087.

Therefore, only evidence which is not probative or not

relevant is excluded at the sentencing phase. With

regard to mitigating circumstances, less restrictive

Vance and ativ e j

vi c he sen j se at e

quilt phase.

Bartholomew II, 683 P.2d at 1088 (emphasis added).

The state fails as well to acknowledge other items of

evidence admissible at penalty that would support the connections

defense counsel sought to show. For example, the state claims

that Hing Wong's plan to control gambling in the International

District included "no talk about forcible robbery..." (Petition

at 20-21). This overlooks the statement given to police by Andy

Wong, who stated that robbery and terror were indeed

contemplated. 8 REC 3055. The prosecution conceded that such

"impeachment" existed (10 REC 3780), but, importantly, at the

penalty phase this would have been directly admissible hearsay.

Moreover, the state even misleads regarding Steve Chin's

testimony: the state suggests Chin said that Hing Wong talked

only about "showing muscle" (Petition at 20), but Chin's

testimony actually describes a more dangerous approach:

- « . they wanted to go in and show muscle, you know,

- 13-

show the guns and show them that they do mean business.

10 REC 3770 (emphasis added). The state also conveniently

overlooks testimony from Chin that Benjamin Ng, who shot most of

the people at the Wah Mee, was indebted to and devoted to Hing

Wong. 10 REC 3771-3773. Further, despite the state's suggestion

that Ben Ng and Hing Wong could not be proven to have been "in

contact . . . on the day of the Wah Mee murders" (Petition at

21), the prosecutor at trial admitted "There was contact [on that

day], that was the extent of it, there are witnesses who would

say that." 10 REC 3783.

Thus, the state is wrong to suggest that Mr. Mak had no

"actual evidence" (Petition at 24; emphasis in original).

Rather, the state just refuses to acknowledge the evidence Mr.

Mak did have.

Second, the state's premise that Mr. Mak somehow had to

conclusively "establish" a link between Wong and the Wah Mee

before the evidence could become relevant and go to the jury

betrays a much too restrictive understanding of "relevance":

"‘Ijt is universally recognized that evidence, to be

relevant to an inquiry, need not conclusively prove the

ultimate fact in issue, but only have ‘any tendency to

make the existence of any fact that is of consequence

to the determination of the action more probable or

less probable than it would be without the evidence."

-O., 469 U.S. 325, 345 (1985), quoting

Fed. Rule Evid. 401. The meaning of relevance is no

different in the context of mitigating evidence

introduced in a capital sentencing proceeding. As the

Chief Justice of the North Carolina Supreme Court

stated in dissent in this case:

"Relevant mitigating evidence is

evidence which tends logically to prove or

disprove some fact or circumstance which a

fact-finder could reasonably deem to have

mitigating value. Whether the fact-finder

accepts or rejects the evidence has no

bearing on the evidence's relevancy. The

relevance exists even if the fact-finder

fails to be persuaded by that evidence. It

- 14 -

is not necessary that the item of evidence

alone convinces the trier of fact or be

sufficient to convince the trier of fact of

the truth of the proposition for which it is

offered." 323 N.C. at 55-56, 372 S.E. 2d, at

45 (Exum, C.J., dissenting), citing M.

Graham, Handbook of Federal Evidence §401.1,

n.12 (2d ed. 1986).

McKoy v. North Carolina, 494 U.S. 433, 440 (1990). In

Washington, of course, "the fact-finder", indeed the final

sentencer, is the jury. Wash. Rev. Code §10.95.080.

Significantly, in a Washington penalty phase, Mr. Mak did

not have to prove mitigating circumstances by a preponderance, or

indeed affirmatively prove anything. The state had to prove

beyond a reasonable doubt the absence of sufficient mitigating

circumstances. Wash. Rev. Code § 10.95.060(4). Thus, any

evidence that would tend to raise a reasonable doubt as to

culpability would be relevant.

Third, the state is incorrect in suggesting that the

Washington Supreme Court majority adequately dealt with Mr. Mak's

constitutional rights at a capital sentencing procedure. The

state court majority incorrectly melded the distinct issues

regarding exclusion of evidence at the guilt and penalty phases

under merely an "abuse of discretion" standard:

ISSUE ELEVEN. Did the trial court err in excluding, at

both the quilt and penalty phases of the trial,

evidence concerning a claimed accomplice of the

defendant?

CONCLUSION. The trial court did not abuse its

discretion in excluding the testimony.

718 P. 2d at 423 (emphasis added). The majority analyzed in some

detail the guilt phase question whether one can show at a normal

criminal trial that another person was actually the perpetrator.

718 P.2d at 423-424. However, the majority then "resolved" the

penalty phase claim in three short paragraphs without citation to

- 15 -

any United States Supreme Court case, saying only that "the

defendant's proffered evidence in this regard was neither

relevant nor probative". 718 P.2d at 424.°

Finally, the state's claim that the state court majority

rejected Mr. Mak's penalty phase evidence claim on purely factual

grounds is not right, either. The state concedes that "the

ultimate determination of relevance would be characterized as a

mixed question of fact and law..." (Petition at 19) (and

therefore is subject to plenary review in federal court, Cuyler

Vv. ivan, 446 U.S. 335, 341-342 (1980)). In spite of this

abstract recognition that relevance is a legal issue, the state

neglects to acknowledge that the Washington Supreme Court

majority's penalty phase ruling was nothing but a conclusion on

neve.

relevance. See entire penalty phase analysis quoted, at

*/ Here is the entire analysis of the majority with

respect to the penalty phase:

During the special sentencing proceeding, the

defendant again offered this same evidence, and again,

the trial court_excluded the evidence on relevancy

grounds.

Defendant argues that in light of our holding in

State v. Bartholomew, 101 Wash.2d 631, 645, 683 P.2d

1079 (2984) (Bartholomew II), the evidence should at

least have been admitted in that phase of the trial.

However, as Bartholomew II pointed out:

The Washington capital punishment statute

requires admission at the sentencing phase of

“any relevant evidence which it deems to have

probative value regardless of its

inadmissibility under the rules of evidence

---" RCW 10.95.060(3). We have restricted

this provision to evidence in mitigation of

punishment. Therefore, only evidence which is not probative or

not relevant is excluded at the sentencing phase.

(Italics ours.)

The defendant's proffered evidence in this regard

was neither relevant nor probative.

718 P.2d at 424 (footnote omitted).

- 16 =-

a. 9."

The Court of Appeals' case-specific conclusion on this

record was simply that under settled constitutional law Mr. Mak

had a right to present "at the penalty phase circumstantial

evidence from which it might be inferred that Mak‘s co-defendant,

Ben Ng, and a third party, Hing Wong, rather than Mak, may have

planned the massacre." Mak, 970 F.2d at 622 (footnote omitted).

This unremarkable holding does not merit this Court's review.

II. THE COURT OF APPEALS' INEFFECTIVE ASSISTANCE DISCUSSION WAS

MADE IN EXPLICIT CONFORMITY WITH

STRICKLAND V. WASHINGTON

AND THE CIRCUIT DID NOT PRESUME INEFFECTIVENESS OR OTHERWISE

CONDUCT IMPROPER REVIEW.

, we + "

und That Based O j Cc n

Ss sel's © Ss

Ww bj iv a ss.

The circuit and district courts found that trial counsel in

this capital case who 1) failed to conduct an investigation into

their client's personal history and, 2) who failed even to

communicate to their client's Chinese speaking parents, that they

were their son's lawyers and not police (Evidentiary Hearing Ex.

2) and, 3) as a result of failing to look, failed to uncover a

10, The state tries to tease "factual findings" from the

quotation on page 19 of the Petition and then claim that these

are the "findings" that should have been given deference under 28

U.S.C. §2254(d). However, this quotation is from the state court

majority's discussion of admissibility at the guilt phase made

without consideration of penalty phase constitutional

jurisprudence. Moreover, the majority's guilt phase discussion

quoted contains a legal conclusion that there was a connection

between Hing Wong "and the crimes at the Wah Mee" shown by one

item of the proposed evidence (a connection the state itself

disagrees with the state court majority about, Petition at 21

n.12). The majority found that item inadmissible at the guilt

phase only because it was hearsay, but this does not bolster the

penalty phase ruling because of course hearsay is admissible in

the penalty phase. With respect to the penalty phase, the

majority discussed none of the proposed evidence, even this item

that concededly showed a connection between Wong and Wah Mee.

-17<-

volume of favorable mitigation evidence,'' and who 4) entered

the penalty phase having obtained no favorable or sympathetic

evidence about their client, even though such evidence was

readily available," fell below minimum standards of performance

3 ftte ciu'rcurt court summar2‘zeu’

in a capitar penarty fearing.

the penalty hearing: "Mak was depicted by the prosecution as a

killing machine, and the defense presented no humanizing evidence

whatsoever to offset that picture." Mak, 970 F.2d at 619.

The circuit and district courts did not depart in any way

from the standard set forth in Strickland:

---counsel has a duty to make reasonable investigations or

to make a reasonable decision that makes particular

investigations unnecessary. In any ineffectiveness case, a

particular decision not to investigate must be directly

assessed for reasonableness in all the circumstances,

applying a heavy measure of deference to counsel's

judgments.

Stri WwW on, 466 U.S. 668, 691 (1984).

Trial counsel testified at the evidentiary hearing, and the

"7 The mitigating testimony of Mr. Mak's mother, father,

brother, sister-in-law, nephew, and an expert on Chinese culture

and Chinese immigrants, are partially set forth or summarized in

the district court opinion. 754 F. Supp. at 1496-1499.

27 The state tries here, as it has tried before, to imply

that there was some risk to presenting evidence that Respondent

had good and decent aspects to his life, Petition at 17. As

shown above at p. 6, n. 5, this claim is unfounded.

37 The only item of evidence obtained by trial counsel in

preparation for the penalty phase of Mr. Mak's trial was the

verdict form from co-defendant Ben Ng's trial which showed Ng was

sentenced to life imprisonment without parole or release.

The expert testimony regarding eye-witness identification

was intended by trial counsel for the guilt phase but was

excluded by the trial court. Obviously, this testimony had

nothing to do with the personal characteristics of the defendant.

The testimony regarding the leadership of an uncharged

person, Hing Wong, in the crimes was also originally intended by

trial counsel for the guilt phase, as shown by defense counsel's

opening argument, but was excluded by from both phases by the

trial court. See Statement Of The Case at Pp. above.

4 b

- 18 -

district court found, after personally interrogating trial

counsel, that there was no tactical reason for counsel's failure

to obtain and present the available favorable mitigating

evidence. An expert witness testified in the district court that

trial counsel's preparation and conduct of the penalty phase did

not meet reasonable standards of defense. E.g., Ex. 17, pages 29-

34."* The state presented no countervailing testimony that

counsels' performance was reasonable in this case, and so the

record before the lower courts was devoid of any testimony that

trial counsel did meet "prevailing professional norms" for

defense at a capital sentencing proceeding.

This is clearly a fact-based decision that on this record

counsel's mitigation investigation and presentation was

deficient. Instead of presuming deficient performance for

failure to present mitigating evidence, the Court of Appeals was

express in noting other circumstances, including other Court of

Appeals cases and Strickland v. Washington, in which trial

counsel's failure to present mitigating evidence was reasonable:

In prior Supreme Court and Ninth Circuit cases dealing

with failure to admit mitigating evidence where performance

has been found reasonable, the attorneys had consciously

decided not to present mitigating evidence because of

reasonable tactical evaluations - specifically, they

determined the evidence would have opened the door to

damaging rebuttal evidence.

Mak, 970 F.2d at 618-619 (emphasis added; footnote citing cases

omitted).

This Court has ruled:

“7 This expert witness, Richard Cease, has been the

director of the Spokane, Washington, Public Defenders Office for

over twenty years, has tried several capital cases, and has been

charged with the supervision and training of public defender

staff attorneys for his entire public defender career.

- 19 -

...a court deciding an actual ineffectiveness claim must

judge the reasonableness of counsel's challenged conduct on

the facts of a particular case, viewed as of the time of

counsel's conduct. ‘

Strickland, 466 U.S. at 690. In the instant case, the lower

courts did precisely that and nothing else.

B. The Courts Below Discussed The Prejudice Standard In

The Context Of The Governing State Law.

This Court directed in Strickland:

In making the determination whether the specified errors

resulted in the required prejudice, a court should

presume... that the judge or jury acted according to law...

The assessment of prejudice should proceed on the assumption

that the decision maker is reasonably, conscientiously, and

impartially applying the standards that govern the

decision

in

defining the question to be asked in assessing the prejudice

for counsel's errors...

466 U.S. at 694-695. It could not be more clear that in

determining prejudice, that is in determining whether "there is a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different",

(Strickland, 466 U.S. at 694) the courts must determine whether

the results were likely to have been different under the

governing state law.

Under Washington law, which governed the penalty phase of

Mr. Mak's trial, the results would have been different, a death

sentence would not have been imposed, if the state failed to

convince the jury unanimously beyond a reasonable doubt that

there were not sufficient mitigating circumstances to merit

leniency.'* The governing law recognizes two possible verdicts,

57 The reviewing court would be required to consider the

probable effect of the "potentially powerful" mitigating evidence

here given the statutory presumption that sufficient mitigating

(continued...)

- 20 -

"yes" the jury is unanimously convinced that there are not

sufficient mitigating circumstances to merit leniency, and "no"

the jury is not unanimously convinced that there are not

ee

sufficient mitigating circumstances to merit leniency.'® Under

this scheme, there is no such thing as a hung jury, no such thing

as a hold out juror. In the context of this law, the courts are

required in determining prejudice under Strickland to consider

the reasonable probability that had counsel performed adequately

one or more jurors would have jin following the law failed to be

convinced of the absence of sufficient mitigating circumstances

to merit leniency.

That is exactly what the lower courts did here. The Court

of Appeals approved the district court's holding that had trial

counsel, rather than depriving their client of the right to

present mitigating evidence, instead had properly gathered and

presented mitigation evidence, this

very well might have [changed the outcome] -

since the death penalty could not be imposed if even

one juror was not convinced beyond a reasonable doubt

that it should be. There is thus a reasonable

probability that, but for the deprivation of counsel's

effective assistance at the penalty phase, the result

would have been different.

754 F. Supp. at 1501 (emphasis added). The lower courts thus

merely used Washington law's implicit provision that reasonable

3. ..continued)

circumstances exist to merit leniency (State v. Jeffries, supra),

and that the presumption of leniency alone may raise a reasonable

doubt as to whether tne state has proven an absence of mitigation

sufficient to merit leniency. Campbell v. Kincheloe, 829 F.2d

1453 at 1466.

6) The instant case was confused when the Court allowed a

third verdict option for penalty jury, a unanimous "no". There

is no authority under the Washington statute for the Court to

inquire whether the jury is unanimous against the death penalty.

- 21-

doubt in one or more lawfully acting jurors prohibits a death

sentence to inform the reasonable probability analysis.

The state's claim that the "'effect on one juror' approach

is a significant reduction of a defendant's affirmative burden under

Strickland to prove actual prejudice," Petition at p. 12, is

simply not true. As seen above, Strickland requires that

prejudice must be assessed With a presumption of lawful juror

behavior under the specific state law governing the proceedings

in a determination of whether counsels' deficient performance

prejudiced the client. The court of Appeals followed the

Strickland procedure.

Nor could the lower courts' analysis have a broader

application than was intendeq by Strickland. When Strickland

refers to a reasonable probapility that without counsel's error

the result would be different, it means a different verdict, not

a lack of a verdict and mistrial. The probability that a non-

unanimous jury would have resulted (what the state calls the

“effect on one juror" approach) is a proper determination for a

reviewing court only under a statute in which non-unanimity

results in a final verdict, such as the Washington death penalty

statute. There is nothing new or novel in the lower courts’

application of the Stricklang prejudice analysis under the state

law which governed the Proc€edings.

Cc. The Court of Appeais properly Approved Consideration Of

The Circumstances of Co-Defendant Benjamin Ng's Case On

The Question Of Prejudice.

The state makes the bolq claim that the Court of Appeals

“improperly inserted a sent€nce proportionality review into the

Strickland analysis...", Petition at p. 13. This is false. As

the state admits in a footncte, the lower courts expressly

‘ - @2°

rejected Respondent's claim that his death sentence was

disproportionate to his co-defendant's life sentence:

"The constitution does not require a general proportionality

review in death penalty cases. See Pulley v. Harris, 465

U.S. 37, 43-44 (1984). None of the cases cited by Mak

support the proposition that the eighth amendment requires

that co-defendants convicted of the same crime receive the

same sentence. The disparity in sentences in this instance

may be explained by the fact that the Ng [co-defendant's]

jury was presented with evidence of mitigating

circumstances, while the Mak jury was not, a matter dealt

with in the published portion of this disposition."

Unpublished memorandum decision, Appendix to the Petition at

p. B-21. |

However, Pulley v. Harris has nothing to do with how a court may

determine the existence of prejudice in a case of ineffective

counsel under the Sixth Amendment.

In determining whether counsel's deficient performance has

prejudiced a defendant, this Court requires:

The defendant must show that there is a reasonable

probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been

different.

Strickland, 466 U.S. at 694. In meeting this burden, nothing in

Strickland prohibited Respondent from directing the court's

attention to the fact that his co-defendant who was convicted of

the identical crimes, found to have planned the crime, and is

admitted by the state to be the main triggerman, produced

mitigating evidence and received a life sentence. Nothing in

Strickland requires a court to function in a vacuun.

Both of the lower courts considered the success of

mitigation evidence in the co-defendant's case as only part of

the prejudice analysis. More important in both courts was the

fact that the mitigation evidence undiscovered by trial counsel

would have moderated the penalty phase argument of the

prosecutor:

- 23 -

What separates Willie Mak from the others, is the same

thing that distinguishes him from all other murderers,

the premeditation of this crime, the total absence of

fundamental values. There's nothing here to lessen

moral culpability.

The district court found the omission of evidence of

Respondent's positive traits, cultural influences, and wholesome

family relationships prejudicial because that is precisely the

evidence which was reasonably likely to have raised a reasonable

doubt against the state's argument that Respondent was totally

lacking in "fundamental values." A reasonable doubt is all that

was necessary to change the outcome of Respondent's sentencing

trial.

The Court of Appeals did not definitively rule on prejudice

(because habeas relief was found necessary on the "exclusion of

evidence" ground), thus presenting no issue for review here, but

in any event there was no discernible problem with the Court of

Appeals statement that "On the whole, we cannot find fault with

the district court's prejudice analysis." 970 F.2d at 621.

III. THE COURT OF APPEALS CORRECTLY IDENTIFIED THE IMPORTANT

CONSTITUTIONAL PROBLEMS WITH THE "UNANIMITY" INSTRUCTIONS

FROM RESPONDENT'S PENALTY PHASE, BUT DID NOT REST ITS

JUDGMENT ON THE PLAIN DEFECTS IN THOSE INSTRUCTIONS.

The state has grossly mischaracterized the Court of Appeals'

opinion regarding instructional error. The court~below correctly

identified Mr. Mak's clain,

Mak argues that the court's jury instructions and verdict

form erroneously encouraged the jury to reach a unanimous

verdict on all issues. Because the death penalty was the

only issue that required a unanimous verdict, Mak alleges

that this encouragement of unanimity necessarily encouraged

jurors to vote for the death penalty and was contrary to

law.

970 F.2d at 622.

Under the Washington statute which recognizes only two

- 24 -

verdicts -- “yes" the jury is unanimously convinced the state has

proven an absence of sufficient mitigating circumstances to merit

leniency and "no" the jury is not unanimously convinced -- the

circuit found the trial court misstated the law to the

defendant's detriment in instructing the jury "...All twelve of

you must agree before you answer a question "yes" or "no". When

all of you have agreed fill in the answer to the question in the

verdict form to express your decision..." (Instruction 6), and in-

further instructing the jury to "deliberate with a view toward

reaching a unanimous verdict..." (Instruction 2).'’ The Court

of Appeals found the instructions not to be ambiguous but to

affirmatively misstate the statutory law and concluded,

"Challenged instructions number 2, 3 and the verdict form

combined to improperly emphasize to the jury that unanimous

agreement was required not to impose the death penalty...There is

no question that challenged instruction number 6 was an erroneous

statement of the law." 970 F.2d at 625."

7 Contrary to the suggestion in the Petition at 28, the

Washington Supreme Court did not expressly apply the death

penalty statute to instructions 2 and 6. The state court did not

mention Wash. Rev. Code §10.95.080(2) providing that the sentence

shall be life imprisonment if the jury fails to return an

affirmative answer to the statutory question, and it mentioned

Wash. Rev. Code §10.95.080(4) only to reference the statutory

sentencing question. Thus the circuit court could only look to

the clear language of the Washington statute to derive that

statute's meaning.

‘87 The state completely omits from its petition discussion

of penalty phase instruction no. 2 which directed the jury to

"deliberate with a view to reaching a unanimous verdict..." The

state must be aware, as was the Court of Appeals, that under

Washington law that instruction is tantamount to directing the

jury to "deliberate with a view to reaching a death verdict..."

because only an affirmative answer to the statutory question,

which results in a death sentence, requires unanimity. The

state should also be fully aware that no other instruction nor

the instructions read as a whole contained any language which

(continued...)

- 25 -

The Court of Appeals did no more than acknowledge here the

problem recently discussed by Justice Scalia with reference to

Mills v. Maryland, 486 U.S. 367 (1988):

Whether or not Maryland law could constitutionally

require unanimity, the Court of Appeals authoritatively

determined that it did not do so; and a death sentence

based upon an erroneous instruction to that effect

would have to be set aside. Justice BLACKMUN is

correct that "ambiguous jury instructions, even in a

capital case, do not violate the Eighth Amendment

simply because they are ambiguous," [citation omitted],

but

. - and it

is not essential to that violation that the law as

misstated be an unconstitutional law.

McKoy v. North Carolina, 494 U.S. at 459, n. 1, Scalia, J.

dissenting (first emphasis in original; second added).

The Court of Appeals did not abandon the criteria of Boyde

v. California, 494 U.S. 370 (1990) for reviewing jury

instructions. In quoting the prejudice analysis of Kubat v.

Thieret, 867 F.2d 351 (7th Cir. 1987), cert. denied, 479 U.S. 995

(1989) the Court of Appeals made reference to the reasonable

probability test for determining prejudice on a claim of

ineffective counsel. Of course, as made clear in Boyde itself,

the "reasonable probability" prejudice standard for ineffective

assistance claims jis the same as the Boyde "reasonable

likelihood" (that an instruction would be applied in an

unconstitutional way) standard for judging jury instructions.

Boyde, 494 U.S. at 380, n. 4, citing Strickland. Thus the state

8... continued)

would inform the jury that a unanimous verdict was not strongly

preferred by the Court. To the contrary, instruction no. 6,

increased the pressure to reach a unanimous verdict by commanding

the jury, "...All twelve of you must agree before you answer a

question "yes" or "no". When all of you have agreed, fill in the

answer to the question in the verdict form to express your

decision." Emphasis added.

- 26 -

complains (Petition at 28, n. 20) about the application of what

is in effect the Boyde standard."

The Court of Appeals did not determine whether the prejudice

created by penalty phase "unanimity" jury instructions was

sufficient alone to require reversal of Respondent's death

sentence because the erroneous exclusion of relevant mitigating

evidence offered by the defendant itself required reversal of

Respondent's death sentence. See 970 F.2d at 624, 625. In this

sense, the Court's determination of the instruction claim was

superfluous to its disposition of the case but was included so as

to helpfully identify a constitutional error for the parties and

trial court to avoid at any new sentencing proceeding.”

Unlike the state, which discusses only part of one

instruction, No. 6, the Court of Appeals' carefully set forth

pertinent language from and considered three jury instructions,

which were all the instructions dealing in any way with the

bad Discussing a challenged instruction this Court stated

in Boyde:

The instruction is not concededly erroneous, nor found so by

a court...The claim is that the instruction is ambiguous and

therefore subject to an erroneous interpretation. We think

the proper inquiry in such a case is whether there is a

reasonable likelihood that the jury has applied the

challenged instruction in a way that prevents the

consideration of constitutionally relevant evidence.

494 U.S. at 380 (citation omitted). The Boyde standard is to be

used to interpret ambiguous instructions. The Court of Appeals

in this case did apply but actually had no need to apply the

Boyde standard because instead of considering whether the

instructions were ambiguous and reasonably likely to be applied

in an unconstitutional way, the court found that the challenged

instructions unambiguously misstated the law.

207 Instructions similar to those found erroneous in this

case have not been routinely given in capital cases in

Washington. Subsequent to Respondent's trial uniform jury

instructions for capital sentencing hearings have been adopted

and do not include similar instructions.

- 27 -

unanimity or non-unanimity of the jury (numbers 2, 3 and 6),°'

and also set forth and considered the verdict form. 970 F.2d at

624. Furthermore, unlike the state, the circuit court carefully

considered the applicable death penalty law and the manner in

which the prosecutor used the challenged instructions in argument

to the jury. Far from considering the instructions in

isolation (Petition at 25), the court below could have done no

more to put the instructions in context.

CONCLUSION

For the foregoing reasons the petition for writ of

certiorari should be denied.

DATED: January 27, 1993.

Respectfully submitted,

Kez Lone ROSS, aon test OHN/B. MIDGIEY, esa

Jones, Ross, Besman & Connolly eae we Legal ines

3405-188th Street S.W., #101 itutional Legal ibe

Lynnwood, WA 98037 Project

101 Yesler Way, Suite 301

Counsel of Record Seattle, WA 98104

(206) 464-0838

Attorneys for Respondent

¢17 The Court gave only six penalty instructions in total.

Instruction 1 was the general introductory instruction, No. 4

explained the burden of proof and reasonable doubt, No. 5 defined

"mitigating circumstance".

22/7 The Court had before it the penalty phase closing

argument of the prosecutor which falsely suggested to the jury

that it had a duty to be unanimous in the penalty phase equal to

its duty to be unanimous in the guilt phase of the trial. The

prosecutor said as his nearly last word before the jury retired

to determine the sentencing question: "You have an instruction

here that jurors should consult with one another and deliberate

with a view of reaching a unanimous verdict if it can be done

without violence to individual judgment. You've already

deliberated through a case once, so you know what that's all

about..." 11 REC 4172.

- 28 -

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED,

APPENDIX

rae 10.95.02L. Aggravated first degree murder defined ‘

A person is guilty of aggravated first degree murder if he or she -

commits first degree murder es defined by RCW 9A.32.030(1)(a), es

now or hereafter amended, and one or more of the following

2ggravating circumstances exist:

(1) The victim was a Jaw enforcement officer, corrections officer,

or fire fighter who was performing his or her official duties et the

time of the act resulting in death and the victim was known or

reasonably should have been known by the nerson to be such at the

time of the killing;

(2) At the time of the act resulting in the death, the person was

serving a term of imprisonment, had escaped, or was on authorized

or unauthorized leave in or from a state facility or program for the

incarceration or treatment of persons adjudicated guilty of crimes;

(3) At the time of the act resulting in death, the person was in

custody in a county or county-city jail as a consequence of having

been adjudicated guilty of a felony;

(4) The person committed the murder pursuent to an agreement

that he or she would receive money or any other thing of value for

committing the murder;

(S) The person solicited another person to commit the murder

and had paid or had agreed to pay money or any other thing of

value for committing the murder;

(6) The victim was:

(a) A judge; juror or former juror; prospective, current, or for-

mer witness in an adjudicative proceeding; prosecuting atiorney;

deputy prosecuting attorney; defense attorney; a member of the

board of prison terms and pzroles;! or a probation or parole

officer; and

(b) The murder wes related to the exercise of officiz] duties

performed or 10 be performed by the victim;

(7) The person committed the murder to conceal the commission

of a crime or to protect or conceal the identity of eny person

committing a crime;

(8) There wes 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;

(9) The murder wes committed in the course of, in furtherance

of, or in immediate flight from one of the following crimes:

(2) Robbery in the first or second degree;

(b) Repe in the first or second degree;

(c) Burglary in the first or second degree;

(d) Kidnapping in the first degree; or

(e) Arson in the first degree;

(10) The victim wes regularly employed or self-employed as a

new's reporter end the murder wes committed to obstruct or hinder

the investigative, research, or reporting activities of the victim.

APPENDIX

10.95.030. Sentences for aggravated first degree murder

(1) Except es provided in subsection (2) of this section, eny

person convicied of the crime of eggrevated first degree murder

shal] be sentenced io life imprisonment without possibility of re-

Jezse or parole. A person senienced to life imprisonment under

this section shz]] not heve thet sentence suspended, deferred, or

commuted by eny juciciz] officer end ithe boerd of prison terms end

peroles' or iis successor mzy not pzrole such prisoner nor reduce

the period of confinement in eny menner whatsoever including but

not limited 10 eny sort of good-time ce)culation. The deperiment of

social end hezlih services or iis successor or any executive official]

Izy not permit such prisoner io periicipzie in eny sort of reJezse or

furlough progrem.

(2) If, pursvent io a speciz] seniencing proceeding held uncer

RCW 10.95.0350, the trier of fect finds thet there ere not sufficient

shel] be

mitigeting circumsiences 10 merit Jeniency, the sentence

dezth.

APPENDIX

10.95.040. Special sentencing proceeding—Notice—Filing—

Service

(1) If a person is charged with aggravated first degree murder as

defined by RCW 10.95.020, the prosecuting atiorney shall file writ-

ten notice of a special sentencing proceeding to determine whciher

or not the death penalty should be imposed when there is reason 10

believe that there are not sufficient mitigating circumstances lo

merit leniency.

(2) The notice of special sentencing procecding shall be filed and

served on the defendant or the defendant's attorney within thirty

days after the defendant's arrzignment upon the charge of aggrava-

ted first degree murder unless the court, for good cause shown,

extends or reopens the period for filing and service of the notice.

Except with the consent of the prosecuting attorney, during the

period in which the prosecuting attorney mzy file the notice of

special sentencing proceeding, the defendant may not tender a plea

of guilty to the charge of aggravated first degree murder nor may

the court accept a plea of guilty to the charge of egeravated first

degree murder or any lesser included offense.

(3) If a notice of special sentencing proceeding is not filed and

served as provided in this section, the prosecuting attorney may not

request the death penalty.

APPENDIX

10.95.050. Special sentencing proceeding—When held—Jury to

decide matters presented—Walver—Reconvening

same jury—Impanclling new Jury—Peremptory

challenges

(1) If a defendant is adjudicated guilty of aggravatcd first degree

murder, whether by acceptance of a plea of guilty, by verdict of a

jury, or by decision of the trial court sitting without a jury, a special

sentencing proceeding shall be held if a notice of special sentencing

procecding was filed and served as provided by RCW 10.95.040. No

sort of plea, admission, or agreement may abrogate the requirement

that a special sentencing procecding be held.

(2) A jury shall decide the matters presented in the special sen-

tencing proceeding unless a jury is waived in the discretion of the

court and with the consent of the defendant and the prosecuting

ailorncy.

(3) If the defendant's guilt was determined by a jury verdict, the

trial court shal] reconvene the same jury to hcar the special sentenc-

ing proceeding. The proceeding shall commence as soon as practi-

cable aftcr complction of the trial at which the defendant's guilt was

deicrmined. If, however, unforescen circumstances make it im-

practicable to reconvene the same jury to hear the special sentenc-

ing proceeding, the trial court may dismiss that jury and convene a

jury pursuant to subsection (4) of this section.

(4) If the defendant's guilt was determincd by plea of guilty or by

decision of the trial court sitting without a jury, or if a retrial of the

special sentencing proceeding is necessary for any reason including

but not limited to a mistrial in a previous special sentencing

procecding or as a consequence of a remand from an appcllate

court, the trial court shall impanel a jury of twelve persons plus

whatever alternate jurors the trial court deems necessary. The

defense and prosecution shal] cach be aiiowed to peremptorily

challenge twelve jurors. If there is more than one defendant, cach

defendant shall be allowed an additional peremptory challenge and

the prosecution shall be allowed a like number of additional chal-

lenges. If alternate jurors are selected, the defense and prosecution

shall each be allowed one peremptory challenge for each alternate

juror to be selected and if there is more than one defendant each

defendant shall be allowed an additional peremptory challenge for

each alicrnate juror to be selected and the prosecution shall be

allowed a like number of additional challenges.

‘

APPENDIX

10.95.060. Special sentencing proceeding—Jury instructions—

Opening statements—Evidence—Arguments—

Question for jury

(1) At the commencement of the special sentencing proceeding,

the trial] court shall] instruci the jury as to the nature and purpose of

the proceeding and as to the consequences of its decision, zs

provided in RCW 10.95.030.

(2) At the special sentencing proceeding both the prosecution and

Gefense shall be allowed 10 make an opening statement. The

prosecution shal] first present evidence and then the defense mey

present evidence. Rebuttal evidence may be presented by each

side. Upon conclusion of the evidence, the court shal] instruct the

jury and then the prosecution and defense shall be permitted to

present argument. The prosecution shall open and conclude the

argument.

(3) The court shal] edmit eny relevant evidence which it deems to

have probative value regardless of its edmissibility under the rules

of evidence, including hearszy evidence and evidence of the defen-

cant's previous criminal ectivity regardless of whether the defen-

dant hes been charged or convicted as a result of such activity. The

defendant shall be accorded a feir opportunity to rebut or offer any

hearsay evidence.

In addition to evidence of whether or not there ere sufficient

mitigating circumstances 10 merit leniency, if the jury sitting in the

specia] sentencing proceeding hes not heerd evidence of the eegcre-

vated first degree murder of which the defendant siends convicted,

both the defense end prosecution may introduce evidence concern-

ing the facts and circumstances of the murder.

(4) Upon conclusion of the evidence end argument at the special]

Sentencing proceeding, the jury shall retire 10 deliberate upon the

following question: “Having in mind the crime of which the defen-

dant has been found guilty, are you convinced beyond a reasonable

doubt that there are not sufficient mitigating circumstances to merit

leniency?"

In order to return an affirmative answer to the question posed by

this subsection, the jury must so find unanimously.

APPENDIX

10.95.070. Special sentencing proceeding—Factors which jury

may consider in deciding whether Jeniency merit-

ed

In deciding the question posed by RCW 10.95.060(4), the jury, or

the court if a jury is waived, may consider any relevant factors,

including but not limited to the following:

(1) Whether the defendant has or does not have a significant

history, either 2s a juvenile or an adult, of prior criminal activity;

(2) Whether the murder was committed while the defendant was

under the influence of extreme mental disturbance;

(3) Whether the victim consented to the act of murder;

(4) Whether the defendant was an accomplice .» a murder com-

mitted by another person where the defendant's participation in the

murder wes relatively minor;

(5) Whether the defendant acted under duress or domination of

another person;

(6) Whether, et the time of the murder, the capacity of the

defendant to eppreciate the wrongfulness of his or her conduct or

10 conform his or her conduct to the requirements of Jaw wes

substantially impaired es a result of mental disease or defect;

(7) Whether the age of the defendant at the time of the crime

calls for leniency; and

(8) Whether there is a likelihood that the defendant will pose a

danger to others in the future.

APPEnpIx

10.95.080. When sentenc, .u ueaii Ul SEMLENICE tu Lire Aidipiis-

onment shall be imposed

(1) If a jury answers affirmatively the question posed by RCW

10.95.060(4), or when a jury is waived as allowed by RCW 10.95.-

050(2) and the trial court answers affirmatively the question posed

by RCW 10.95.060(4), the defendant shall be sentenced to death.

The trial court may not suspend or defer the execution or imposi-

tion of the sentence.

(2) If the jury does not return an affirmetive answer to the

Question posed in RCW 10.95.060(4), the defendant shall] be sen-

tenced to life imprisonment as provided in RCW 10.95£.030(1).

APPENDIX

10.95.090. Sentence if death sentence commuted, held invalid,

or if death sentence established by chapter held

de - alt A

If any sentence of death imposed pursuant to this chapter is

commuted by the governor, or held to be invalid by a final judg-

ment of a court after all avenues of appeal have been exhausted by

the parties to the action, or if the death penalty established by this

chapter is held to be invalid by a final judgment of a court which is

binding on al] courts in the state, the sentence for aggravated first

degree murder if there was an affirmative response to the question

posed by RCW 10.95.060(4) shall be life imprisonment es provided

in RCW 10.95.030(1).