ALEXANDER, J.
¶ 1 In 1997, Cecil Davis raped, robbed, and murdered 65-year-old Yoshiko Couch. A jury found Davis guilty of aggravated first degree murder and unanimously agreed that no mitigating factors warranted leniency. State v. Davis, 141 Wn.2d 798, 807, 10 P.3d 977 (2000). Davis was sentenced to death. On direct appeal, we upheld the conviction and sentence. We later granted Davis's personal restraint petition (PRP), reversing his sentence because jurors had seen him in shackles. In re Pers. Restraint of Davis, 152 Wn.2d 647, 101 P.3d 1 (2004). At the new penalty proceeding, the jury found no mitigating factors warranting leniency and Davis was again sentenced to death. This appeal followed. See RCW 10.95.130. Finding no reversible error in Davis's second penalty proceeding, we again affirm the sentence of death.
¶ 2 At approximately 2:30 a.m. on January 25, 1997, Cecil Davis was partying with friends outside his mother's home in the city of Tacoma when he said, "I need to rob somebody" and "I need to kill me a motherfucker." Report of Proceedings (RP) (Apr. 30, 2007) at 2638, 2641. Accompanied by his friend, Anthony Wilson, Davis proceeded to a home across the street from the party. Once there, Davis kicked open the door and started "beating on" and rubbing the breasts of an occupant of the home, Yoshiko Couch. Id. at 2643. At this point, Wilson left.
¶ 3 At approximately 11:30 a.m. the same day, friends of Couch found her dead in her bathtub, naked from the waist down, surrounded by bloody water and fecal matter. Wet towels were wrapped around Couch's head, and her vagina was red, raw, and covered in a white, powdery household cleanser. The bathroom smelled strongly of chemicals, and opened household cleansers were found within the room. Couch's wedding ring was missing from her ring finger, and her purse was lying open in a hallway.
¶ 4 An autopsy revealed that while alive, Couch's vagina had been lacerated by a hard object, not a penis; her face was bruised and marked in a manner consistent with manual suffocation; and her skin was degraded from xylene, a chemical found in cleaning agents. The physician who conducted the autopsy concluded that Couch died of asphyxia by suffocation and chemical toxicity.
¶ 5 Yoshiko Couch's husband, Richard Couch, who was disabled from a number of strokes and unable to walk, was downstairs in his bed when the crime occurred. The telephone that was usually on his nightstand had been moved to a closet and, thus, was out of his reach.
¶ 6 Extensive evidence connected Davis to the crime, including blood, hair, and fingerprint samples. Meat and cigarettes that were believed to have belonged to the Couches were found in Davis's possession. The morning after the crime, Davis offered to sell
¶ 7 Davis was charged in Pierce County Superior Court with premeditated first degree murder with aggravating circumstances of rape, robbery, and burglary. Davis, 141 Wash.2d at 821, 10 P.3d 977. In 1998, a jury found him guilty as charged. At the conclusion of the penalty phase of the trial, the jury found that there were no mitigating circumstances warranting leniency. Based on the jury's verdict, the trial judge, Frederick Fleming, sentenced Davis to death.
¶ 8 Davis filed a PRP challenging his conviction and sentence on several grounds, including that he received ineffective assistance of counsel because his attorney failed to object when jurors saw him in shackles. Davis, 152 Wash.2d at 757-60, 101 P.3d 1. We affirmed Davis's conviction but vacated the sentence, remanding for a new penalty phase based on our conclusion that shackling may have tainted the penalty proceeding and that his counsel was ineffective in not raising an objection to the shackling.
¶ 9 The second penalty proceeding took place in 2007 before a new jury. Judge Fleming again presided. Although the evidence presented at this penalty proceeding was similar to that presented in the first proceeding, the jury learned an additional fact — that in 2006, Davis had been convicted of second degree intentional murder for a killing that occurred the year before the murder of Couch. The jury did not find sufficient mitigating circumstances to warrant leniency, and Davis was again sentenced to death. Davis appealed, raising numerous issues that we address hereafter in addition to the issues this court is mandated to review pursuant to RCW 10.95.130.
¶ 10 In general, errors at a capital penalty proceeding are subject to heightened scrutiny. State v. Stenson, 132 Wn.2d 668, 743-44, 940 P.2d 1239 (1997). This requires a more careful look at the record but does not raise the standard of review.
¶ 11 After this court reversed the death sentence that had been imposed at Davis's first trial, the case returned to Judge Fleming's court for a new penalty phase. Upon agreement between Davis and the State, the trial court initially set trial for September 2005. By April 2005, Davis's counsel realized that they needed more time to prepare and, thus, sought a continuance. The trial court granted the defense request to continue the trial to April 2006.
¶ 12 On January 20, 2006, the defense again moved for a continuance, this time on
RP (Jan. 20, 2006) at 10-11.
¶ 13 Despite these concerns, Judge Fleming continued the trial to January 8, 2007, noting that he was continuing the penalty phase "for the final time." Clerk's Papers (CP) at 621. He went on to say:
RP (Jan. 20, 2006) at 18.
¶ 14 In October 2006, on his own and without consulting the parties, Judge Fleming decided to accelerate the trial date, apparently realizing that the penalty hearing would conflict with his scheduled February 2007 vacation. He envisioned a new schedule with voir dire beginning on December 4, 2006, and opening statements on January 2, 2007. To that end, Judge Fleming arranged for a courtroom, 150 potential jurors, and the necessary security to be available on December 4, 2006.
¶ 15 On October 24, 2006, a court reporter told Deputy Prosecuting Attorney John Neeb that Judge Fleming wanted Neeb to come to courtroom 550 at 1:30 p.m. Shortly before 1:30, Judge Fleming saw another deputy prosecuting attorney, John Hillman, in a hallway in the Pierce County Courthouse. Judge Fleming asked Hillman to prepare a scheduling order according to the new schedule, approve it, and then give defense counsel a copy for signature. Hillman did as he was told and approved the order. Deputy Prosecuting Attorney Neeb arrived shortly thereafter, received the same instructions,
¶ 16 Davis's counsel then moved to reschedule the trial date and for Judge Fleming to recuse himself based on what they alleged was improper ex parte contact. The State joined in the motion to reschedule the trial date but opposed the recusal motion. Following a hearing, Judge Fleming agreed to continue trial until April 2007 but denied the motion to recuse.
¶ 17 Davis contends that Judge Fleming's ex parte communication with the deputy prosecuting attorneys violated former Canons 1 (1995), 2(A) (1995), and 3(A)(4) (1995) of the Code of Judicial Conduct (CJC)
Although the CJC does not define "ex parte communication," the parties agree that the primary definition is "`communication between counsel and the court when opposing counsel is not present.'" State v. Watson, 155 Wn.2d 574, 579, 122 P.3d 903 (2005) (quoting Black's Law Dictionary 296 (8th ed. 2004)); Appellant's Opening Br. at 32; Br. of Resp't at 19.
¶ 19 A violation of former Canons 1, 2(A), or 3(A)(4) does not necessarily require a judge to recuse. Rather, the rule for recusal is set forth in former Canon 3(D)(1), which provides in relevant part that "[j]udges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned." In determining whether recusal is warranted, actual prejudice need not be proved; a "mere suspicion of partiality" may be enough to warrant recusal. Sherman v. State, 128 Wn.2d 164, 205, 905 P.2d 355 (1995). "The test for determining whether the judge's impartiality might reasonably be questioned is an objective test that assumes that `a reasonable person knows and understands all the relevant facts.'" Id. at 206, 905 P.2d 355 (quoting In re Drexel Burnham Lambert, 861 F.2d 1307, 1313 (2d Cir.1988)).
¶ 20 In Sherman, we held that a judge engaged in prohibited ex parte contact under former Canon 3(A)(4) when, at the judge's request, a judicial extern called an organization that played a key role in the case and discussed general procedures for monitoring people in the plaintiff's position. This ex parte communication warranted recusal under former Canon 3(D), we concluded, because the judge "may have inadvertently obtained information critical to a central issue on remand," leading a reasonable person to question his impartiality. Sherman, 128 Wash.2d at 206, 905 P.2d 355.
¶ 21 In In re Disciplinary Proceeding Against Sanders, 159 Wn.2d 517, 524, 145 P.3d 1208 (2006), this court held that former Canon 3(D) required a justice to recuse himself from a consolidated case involving several sexually violent predators (SVPs) when he met with a group of SVPs, including at least one who was a party to the consolidated case and who inquired about a central issue in the case. This court concluded the justice's actions violated former Canons 1 and 2(A) and required recusal because a reasonable person would question the judge's partiality.
¶ 22 Here, as we have noted, the State concedes that ex parte contact occurred. That still leaves the question of whether a reasonable person who knew all relevant facts would conclude that Judge Fleming was actually prejudiced or appeared prejudiced. In answering that question, we observe that the record shows that although neither defense counsel nor the prosecution wanted an earlier trial date, Judge Fleming decided to reschedule the trial to complete trial in time for his February 2007 vacation and to complete sentencing within a reasonable time. When the defense pointed out the problems an earlier date would cause, Judge Fleming
¶ 23 Unlike the problematic communications in Sherman and Sanders, nothing in Judge Fleming's ex parte communication revealed or implied a bias toward one party or that his future rulings in the case would be affected. The decision to accelerate trial, which the trial judged believed was purely ministerial, was made well before the communication occurred. Furthermore, the judge did not discuss any substantive issue during the communication. While Davis correctly points out that former Canon 3(A)(4) does not require the communication to be substantive for a violation to occur, the content of the communication is key in evaluating whether the judge appears partial for purposes of former Canon 3(D).
¶ 24 Davis further argues that the ex parte communication must be viewed in light of several "relevant facts." Reply Br. of Appellant at 1-3. In our view, none of Davis's observations alter the impartial nature of the ex parte communication that occurred. Many of the observations relate to the judge's desire to complete trial without long delays, a consideration he emphasized in open court as being important to both sides. E.g., RP (Jan. 20, 2006) at 10-11 ("[L]itigants, society, everyone has a right to have these matters resolved in a reasonable period of time."), 18 ("I want to be responsible and fair to both sides."); RP (Nov. 3, 2006) at 15 ("I consider it a court responsibility to have these cases tried, managed, in a manner that's fair to both sides. The defendant has a right to have this matter concluded, as do the people of the State of Washington."). If the desire to finish trial within a reasonable amount of time shows prejudice, trial judges would be forced to grant every continuance a defendant requested in order to avoid being considered partial. This is an untenable position.
¶ 25 In sum, Judge Fleming's conversation with deputy prosecutors and his conduct throughout the proceeding did not show bias toward the State or against Davis. Rather, it showed a desire to complete the penalty phase of Davis's trial within a reasonable length of time from Davis's conviction and in time for the judge to enjoy his scheduled vacation. We therefore reject Davis's claim that Judge Fleming's denial of the recusal motion was error.
¶ 26 In a written questionnaire, juror 1 indicated that she was in favor of imposing the death penalty on anyone who kills another person.
¶ 27 Judge Fleming then asked the juror which statement best described her feelings: "under no circumstance would you consider
¶ 28 After a colloquy with counsel, the judge called juror 1 back to the courtroom and reminded her of her earlier statement. The following exchange then occurred:
Id. at 352. In further questioning by the deputy prosecuting attorney and defense counsel, juror 1 reiterated multiple times that she did not know whether she could vote for the death penalty in the appropriate case. Defense counsel questioned her further:
Id. at 367. Soon afterward, over Davis's objection, the court dismissed juror 1 for cause, concluding that
Id. at 369.
¶ 29 Two days later, voir dire began for juror 39. After questioning, neither the prosecution nor Davis challenged this juror for cause. The juror then told the trial judge that her husband had told her, based on his Internet search, that he thought a juror in Davis's original trial had been influenced by seeing Davis in leg irons. Juror 39 said that she stopped her husband before he could elaborate. She also said that she could keep her husband from doing something like that again.
¶ 30 Although the State did not challenge juror 39 for cause, it asked the court to instruct the juror to disregard what she heard. Davis agreed and did not register a challenge for cause. The trial judge, however, decided to excuse juror 39 for cause, noting that
Id. at 870-71.
¶ 31 Davis contends the trial court abused its discretion in dismissing jurors 1 and 39 for cause. In support of that contention, Davis argues that juror 1's objections to the death penalty did not justify her dismissal for cause because "she said she could perform her duty as a juror despite her personal misgivings about imposing the death penalty." Appellant's Opening Br. at 48. Regarding juror 39, Davis asserts that her knowledge
¶ 32 We review a trial court's ruling on a challenge for cause for manifest abuse of discretion. State v. Gregory, 158 Wn.2d 759, 814, 147 P.3d 1201 (2006). "The reason for this deference is that the trial judge is able to observe the juror's demeanor and, in light of that observation, to interpret and evaluate the juror's answers to determine whether the juror would be fair and impartial." State v. Gentry, 125 Wn.2d 570, 634, 888 P.2d 1105 (1995).
¶ 33 The Sixth and Fourteenth Amendments to the United States Constitution, as well as article I, section 22 of the Washington Constitution, guarantee a criminal defendant the right to trial by an impartial jury. Taylor v. Louisiana, 419 U.S. 522, 526, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); see Gregory, 158 Wash.2d at 813, 147 P.3d 1201. These provisions are not offended by excluding from capital case penalty hearings jurors whose views would "`prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)); Gentry, 125 Wash.2d at 635, 888 P.2d 1105. However, jurors may not be dismissed simply because they have conscientious scruples against the death penalty if they can put aside those beliefs and follow the law. Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Gregory, 158 Wash.2d at 814, 147 P.3d 1201.
¶ 34 In Gregory, we held that a trial court did not abuse its discretion in dismissing for cause a juror who had indicated on her questionnaire that death was appropriate for serial murderers but testified during voir dire that she could follow the court's instructions and impose the death penalty if warranted. Gregory, 158 Wash.2d at 813-15, 147 P.3d 1201. The latter statement appeared to contradict other statements during voir dire that she could not vote for the death penalty. The juror explained the apparent contradiction by saying she could tell what answer the attorneys wanted and felt uncomfortable disagreeing. Id. at 814, 147 P.3d 1201. We held that "[g]iven juror 1's initial answers to questions regarding the death penalty and the suggestion that she changed her answers to please the attorneys, it is not surprising that the trial judge had the definite impression that juror 1 could not `faithfully and impartially apply the law.'" Id. at 815, 147 P.3d 1201 (quoting Witt, 469 U.S. at 426, 105 S.Ct. 844).
¶ 35 In Gentry, we upheld the trial court's exclusion of two jurors who testified they were "uncertain" they could impose the death penalty and "could not assure the trial court that they would be able to follow the instructions of the court regarding imposition of the death penalty." Gentry, 125 Wash.2d at 635, 888 P.2d 1105. Despite these jurors' lack of certainty, we concluded that the trial court reasonably determined that the jurors' beliefs would substantially impair their abilities to perform their duties, especially given the trial court's unique ability to observe the jurors' demeanor.
¶ 36 In light of our decisions in Gregory and Gentry, we are satisfied that Judge Fleming did not abuse his discretion in dismissing juror 1 for cause. Juror 1 indicated at least four times that she did not think she could personally impose the death penalty on anyone. Under Gentry, the fact that she prefaced her comments with "I think" does not bar the trial court from finding her beliefs would substantially interfere with her ability to perform her duty as a juror; unmistakable clarity is not required to support such a finding. As in Gregory, the contradictions in juror 1's testimony made her dismissal appropriate even though she said several times that she could follow the law.
¶ 37 Davis argues the trial court abused its discretion in dismissing juror 39 for cause on the basis that knowledge of prior proceedings does not establish prejudice under State v. Rupe, 108 Wn.2d 734, 750, 743 P.2d 210 (1987) and Patton v. Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). Appellant's Opening Br. at 44-46. RCW 4.44.170(2) allows the trial judge to dismiss a juror for cause who "cannot try the issue impartially and without prejudice."
¶ 38 In Rupe, we held the court did not abuse its discretion when it denied a challenge for cause to a juror who read or heard that the defendant had been sentenced to death in an earlier penalty hearing and said he thought the previous jury did a good job. Rupe, 108 Wash.2d at 750, 743 P.2d 210. The juror assured the trial court that he could render a verdict based on the evidence presented at the trial. We concluded that "[k]nowledge of prior proceedings alone is insufficient to establish juror bias." Id. Similarly, in Yount, the United States Supreme Court determined that the trial court did not abuse its discretion in allowing the defendant's trial to go forward with jurors who had been exposed to news coverage of the defendant's murder conviction four years earlier when the jurors assured the trial court they could make an impartial decision. Yount, 467 U.S. 1025, 104 S.Ct. 2885.
¶ 39 Davis's reliance on Rupe and Yount is misplaced for several reasons. First, Davis ignores the standard of review when he argues that the retention of the jurors in Rupe and Yount logically necessitates juror 39's retention here. Under a manifest abuse of discretion standard, the fact that a trial court did not abuse its discretion in retaining jurors does not mean that the court would have abused its discretion by dismissing the jurors. "The question is not whether we, as a reviewing court, might disagree with the trial court's findings, but whether those findings are fairly supported by the record." Gentry, 125 Wash.2d at 635, 888 P.2d 1105. Contrary to Davis's assertion, Rupe and Yount do not mandate the conclusion that retaining a juror with knowledge of prior proceedings is the only acceptable result.
¶ 40 Davis's case is also materially distinguishable from Rupe and Yount where the jurors' knowledge of the prior trial was not inherently prejudicial. In contrast, we reversed Davis's first death sentence because one juror's "partial and fleeting" view of Davis in shackles during the guilt phase of the trial prejudiced the penalty phase. Davis, 152 Wash.2d at 705, 101 P.3d 1. We reasoned that shackling implies the defendant is dangerous and unmanageable, potentially leading the jury to draw negative inferences regarding his future dangerousness. The partial and fleeting nature of the juror's view in Davis shows the inference of dangerousness arose not from the impact of repeatedly seeing the defendant in shackles over several weeks in the courtroom, but from the mere fact of the shackling, however brief. Thus, the trial court here could reasonably conclude juror 39 was prejudiced by simply knowing Davis had been shackled.
¶ 41 Finally, we believe that it is inappropriate to defer to a juror's assessment of his or her own ability to be objective when the knowledge at issue relates to shackling. In Rupe and Yount, the jurors' assurances that they could be impartial were critical to upholding
¶ 42 Davis also argues RCW 4.44.170 does not support juror 39's removal because that statute refers to the "challenged person," and neither Davis nor the State challenged the juror for cause. Reply Br. of Appellant at 8. CrR 6.4(c)(1) states that "[i]f the judge after examination of any juror is of the opinion that grounds for challenge are present, he or she shall excuse that juror from the trial of the case." This rule makes clear that a trial judge may excuse a potential juror where grounds for a challenge for cause exist, notwithstanding the fact that neither party to the case exercised such a challenge. In fact, the judge is obligated to do so. The trial court's dismissal of juror 39 for cause was, therefore, proper.
¶ 43 On May 7, 2007, slightly over a month into the penalty hearing, the trial court was called upon to decide whether videotaped interviews of Davis's paternal aunts, Eula Mae Brooks and Lillie Mae Jones, could be admitted.
¶ 44 In the interviews, Brooks and Jones each discussed their personal histories and early memories. They both mentioned that Davis's father had trouble learning and dropped out of school early. Brooks said that although she never visited Davis or Davis's mother, Cozetta Taylor, she would have tried to help Davis if she had known of his problems in school or with his temper. Jones said that she had occasionally visited Taylor. She indicated that Taylor did not take care of her children or seem interested in them. Both aunts discussed how their mother, Davis's paternal grandmother, was institutionalized for mental illness when Brooks and Jones were in high school.
¶ 45 After reading the declarations and viewing the redacted video, the trial court excluded the interviews, concluding that portions of each were inadmissible on the grounds of hearsay, lack of personal knowledge, and relevance. The trial court also reasoned that the videotaped interviews were inadmissible because the interviewees were not subject to cross-examination.
¶ 46 Davis argues that excluding his aunts' videotaped interviews violated his right to present mitigating evidence under the Eighth and Fourteenth Amendments to the United States Constitution; article I, sections 3 (due process) and 14 (cruel punishment) of the Washington Constitution;
¶ 47 Under the Eighth and Fourteenth Amendments, the finder of fact in a capital proceeding must "not be precluded from considering, as a mitigating factor, 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." Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Notwithstanding this requirement, the trial court maintains its traditional authority "to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense." Id. at 604 n. 12, 98 S.Ct. 2954; see also Gregory, 158 Wash.2d at 856-57, 147 P.3d 1201 (facts of other crimes resulting in the death penalty were not relevant mitigating evidence because not related to the particular defendant or crime at issue); State v. Pirtle, 127 Wn.2d 628, 671, 904 P.2d 245 (1995) (essay written by victim in opposition to the death penalty was not relevant mitigating evidence because not related to the defendant's moral culpability).
¶ 48 In the instant case, the trial court correctly determined that the vast majority of Jones's and Brooks's offerings were not relevant mitigating evidence. The stories regarding their childhoods, for example, clearly do not relate to Davis's character, record, or the circumstances of the offense. The fact that Davis's father may have had difficulty in school also is unrelated to Davis's character or moral culpability because the difficulty occurred before Davis was born. The fact that Brooks never visited Davis or his mother renders her opinion that Davis had a hard upbringing lacking in foundation and irrelevant.
¶ 49 The evidence of Davis's grandmother's mental illness is also irrelevant because it was not connected to Davis's mental health or upbringing. One of the defense mental health experts considered records showing that Davis's grandmother had been institutionalized for schizophrenia, but when asked what information he used to reach his opinion about Davis, the expert did not mention the grandmother's illness. RP (May 9, 2007) at 3247-48. Furthermore, there was no evidence that Davis suffered from schizophrenia or that Davis knew his grandmother or had any contact with her.
¶ 50 A few facts offered by Davis's aunts probably meet the low bar for relevance. Jones's observation that Davis had a difficult and troubled childhood is a relevant mitigating factor. See Eddings v. Oklahoma, 455 U.S. 104, 116, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). In addition, the aunts' concern had relevance on the issue of mercy, their testimony showing that two family members were willing to be interviewed on Davis's behalf. In Stenson, we held that the trial court did not err in excluding on relevance grounds testimony concerning the potential impact an
¶ 51 Davis argues that beyond the threshold requirement of relevance, the rules of evidence may not bar the admission of relevant mitigating evidence in a capital case. The State counters that while the rules of evidence are relaxed in capital penalty proceedings, "admissibility is not unfettered;" evidence still must be presented in a reliable form. Br. of Resp't at 44.
¶ 52 The United States Supreme Court has held that "`the hearsay rule may not be applied mechanistically to defeat the ends of justice'" by excluding reliable mitigating evidence from a capital penalty proceeding. Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (quoting Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)). The Court has not, however, totally prohibited use of the rules of evidence in death penalty cases. Because reliability is critical in determining whether to impose the sentence of death, the Eighth Amendment "does not deprive the State of its authority to set reasonable limits upon the evidence a defendant can submit, and to control the manner in which it is submitted." Oregon v. Guzek, 546 U.S. 517, 526, 126 S.Ct. 1226, 163 L.Ed.2d 1112 (2006).
¶ 53 RCW 10.95.060(3) appears to provide an unfettered right to admit evidence without regard to the rules of evidence in a capital penalty proceeding, as it states that "[t]he court shall admit any relevant evidence which it deems to have probative value regardless of its admissibility under the rules of evidence, including hearsay evidence." (Emphasis added.) Our case law, however, shows the trial court is not completely barred from considering reliability in capital penalty proceedings. In State v. Bartholomew, 101 Wn.2d 631, 646, 683 P.2d 1079 (1984) (Bartholomew II), we held that although polygraph evidence was inadmissible in a normal trial, absent stipulation, mitigating polygraph evidence was admissible in a capital penalty hearing if (1) the trial judge was convinced the examiner was qualified and the test conducted under proper conditions and (2) the opposing party had the opportunity to cross-examine the polygraphist. Bartholomew II shows that while the rules of evidence are relaxed in capital penalty phase trials, the trial court maintains its traditional ability to control the reliability of mitigating evidence.
¶ 54 We are satisfied that the trial court properly exercised its discretion in excluding the few relevant parts of the interviews because the interviews were presented in an unreliable form. As we have observed, Brooks and Jones had little to no contact with Davis during his childhood. Consequently, their opinions that Davis had a bad mother and childhood could have been based on family gossip, what they heard from the mitigation specialist in preparation for the interview, or even what they read in the newspaper about Davis's previous trials. Furthermore, the defense obtained and presented the evidence in a manner that gave the State almost no chance to explore these potential problems, even though a video deposition or in-person testimony appears to have been possible.
¶ 55 In sum, the trial court properly excluded the videotaped interviews because their content was largely irrelevant, and any relevant portions were not presented in a reliable form.
¶ 56 The defense presented the testimony of four experts regarding Davis's mental health: Dr. Richard Kolbell, psychologist; Dr. Barbara Jessen, neurologist; Dr. Zakee Matthews, psychiatrist; and Dr. Kenneth Muscatel, psychologist.
¶ 57 Kolbell, Matthews, and Muscatel each diagnosed Davis's mental condition based on examinations performed in 2006 or 2007. Although their exact diagnoses varied, the doctors all opined that Davis bordered on mentally retarded
¶ 58 Kolbell and Muscatel both testified about Davis's behavior during testing. Kolbell said that Davis's functional levels could be measured in part by his ability to converse, follow a train of thought, and speak coherently. Kolbell also noted that at the beginning of the interview, he asked Davis what day it was to check whether Davis was oriented. Muscatel noted that while his interview of Davis "was really not the focus of the examination, I wanted to see if he could answer questions, respond, you know, to me, if I had to adjust the testing to suit his individual needs." RP (May 10, 2007) at 3364. During cross-examination, without objection by the defense, Kolbell and Muscatel both said Davis was able to maintain a normal demeanor during their conversations.
¶ 59 Jessen testified regarding the results of an electroencephalogram (EEG) taken of the defendant's brain in August 1997. She concluded that the EEG showed a generalized slowing in Davis's brain that could have existed since birth or could have been caused by a later infection, head trauma, medications, or alcohol and drug use. Without objection, the State cross-examined Jessen about Davis's demeanor during a physical exam she conducted in July 1997. She agreed that Davis was alert, cooperative, oriented, spoke normally, had a reasonably good memory, and had no trouble using or pronouncing words.
¶ 61 Davidson testified that he had been a police officer for 26 years and, during that time, had interviewed hundreds of criminal suspects. Over relevance objections, Davidson testified that he had encountered people of different education levels and opined that academic education does not necessarily correlate with "street smarts." Id. at 3458-59. Davidson said he did not have any formal training in psychology or psychiatry, but rather used his own scale to make observations about people he interviewed. He indicated that if he interviewed someone and had questions about that person's mental health, he would notify the jail so it could properly deal with the person.
¶ 62 Davidson then discussed the interview with Davis on January 31, 1997, which he conducted along with three other detectives. He said Davis was paying attention and seemed to understand when advised of his rights. According to Davidson, Davis gave appropriate responses to questions during the two-and-a-half-hour interview and never showed signs that he did not understand why he was there or what they were discussing. Davidson said that Davis looked at the person asking the question and showed no confusion when the subject changed. Davidson concluded by stating that nothing about the interview gave him cause for concern about Davis's mental status.
¶ 63 Davis contends that the trial court erred in admitting Davidson's testimony during the State's rebuttal case on several bases. We review the trial court's evidentiary rulings for abuse of discretion. Finch, 137 Wash.2d at 810, 975 P.2d 967; Stenson, 132 Wash.2d at 701, 940 P.2d 1239.
¶ 64 Unlike with mitigating evidence, the introduction of aggravating factor evidence must strictly comply with the rules of evidence. Bartholomew II, 101 Wash.2d at 640-41, 683 P.2d 1079; Gentry, 125 Wash.2d at 626, 888 P.2d 1105. While the State may admit evidence to rebut the defendant's case, that evidence must be
Bartholomew II, 101 Wash.2d at 643, 683 P.2d 1079 (quoting State v. Bartholomew, 98 Wn.2d 173, 198, 654 P.2d 1170 (1982) (Bartholomew I), vacated, 463 U.S. 1203, 103 S.Ct. 3530, 77 L.Ed.2d 1383 (1983), aff'd on remand, 101 Wn.2d 631, 683 P.2d 1079). Relevant rebuttal evidence is subject to a balancing test similar to ER 403, where it is admitted "`"[o]nly if the rebuttal value of the evidence outweighs the prejudicial effect."'"
¶ 65 Davis first argues that Davidson's testimony was improper rebuttal evidence because, in his view, the professional opinions about his mental health could be rebutted only by expert testimony diagnosing his mental condition. However, the defendant's own experts established that Davis's conduct was relevant to determining whether he was affected by a mental illness. Kolbell said that Davis's ability to converse, follow a train of thought, and speak coherently factored into his "functional levels."
¶ 66 Davis also contends that Davidson's testimony about his interviewing experience and the difference between "street smarts" and academic knowledge had no relevance. In our view, this testimony laid a proper foundation for Davidson's testimony about Davis's behavior by showing why Davidson was capable of making the observations that he did. This aided the jury in weighing the credibility of Davidson's observations.
¶ 67 Davis is also incorrect that Davidson's testimony was unduly prejudicial under the ER 403-like balancing test for rebuttal evidence in a capital case. The probative value of Davidson's testimony was high because it provided a firsthand observation of Davis's mental state near the time of the crime and allowed the jury to weigh the mental health experts' after-the-fact evaluations. In contrast, the prejudicial value was low because the evidence was not particularly gruesome, technical, or otherwise likely to cause an emotional or irrational decision.
¶ 68 Davis argues, additionally, that Davidson's testimony was "thinly veiled" opinion testimony that Davis was not mentally impaired, an opinion that Davidson was not qualified to render since he was not qualified as an expert witness under ER 702. Appellant's Opening Br. 63. The State did not, however, seek to admit Davidson as an expert witness. He was a fact witness and, consistent with this understanding, he testified only to his personal observations of and reactions to Davis's behavior. The State specifically elicited testimony from Davidson that he was not trained in psychology or psychiatry. The requirements for expert testimony in ER 702 are therefore inapplicable.
¶ 69 Alternatively, Davis argues that Davidson's testimony was inadmissible lay opinion testimony under ER 701. "It is well established in Washington that a lay witness may testify concerning the sanity or mental responsibility of others, so long as the witness' opinion is based upon facts he personally observed, and the witness has testified to such facts." State v. Crenshaw, 27 Wn.App. 326, 332-33, 617 P.2d 1041 (1980)
¶ 70 In summary, the trial court did not abuse its discretion in admitting Davidson's testimony. It properly rebutted the defense's mental health experts because it gave the jury a tool by which to evaluate Davis's mental state near the time of the crime and thereby weigh Davis's expert testimony regarding his mental health. It was not unduly prejudicial and was an admissible lay opinion under ER 701.
¶ 71 The trial court gave the following instruction regarding mitigating evidence:
CP at 1165; RP (May 15, 2007) at 3490. The two mitigating circumstances listed in this instruction correspond to two statutory mitigating factors. RCW 10.95.070(2), (6). Over Davis's objection, the court rejected Davis's proposed instruction, which was identical to the instruction actually given except that it replaced the last paragraph with two nonstatutory mitigating circumstances: "[w]hether the defendant is mentally retarded" and "[w]hether the defendant suffers from a major mental illness." CP at 1119.
¶ 72 Davis contends that because the trial court's instruction on mitigating evidence led jurors to believe that the listed factors were the only mitigating factors relating to mental illness that it could consider, the instruction violated his right to have the fact finder consider all relevant mitigating circumstances.
¶ 73 In determining whether a jury instruction runs afoul of the constitutional requirement that the fact finder in a capital proceeding consider all relevant mitigating evidence, the test 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." Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990); In re Pers. Restraint of Benn, 134 Wn.2d 868, 921, 952 P.2d 116 (1998) (quoting Boyde, 494 U.S. at 380, 110 S.Ct. 1190). The instruction must be viewed in light of the overall charge to the jury, not in "`artificial isolation.'" Benn, 134 Wash.2d at 922, 952 P.2d 116 (internal quotation marks omitted) (quoting Boyde, 494 U.S. at 378, 110 S.Ct. 1190).
¶ 74 In Gentry, we held that "[t]here is no constitutional requirement that each relevant mitigating circumstance be the subject of a specific instruction to the jury. The requirement is that such evidence be allowed to be presented to the jury, but a specific instruction as to each potentially mitigating factor is not mandated." Gentry, 125 Wash.2d at 650-51, 888 P.2d 1105 (citing Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993)). While we did hold in Gentry that the trial court did not err when it included nonstatutory mitigating circumstances in the jury instruction, we noted that in future cases, the better practice would be to include any statutory mitigating factors requested by the defendant but not to enumerate nonstatutory factors.
¶ 75 Here, there is not a reasonable likelihood that the jury read the instruction to
¶ 76 Davis contends that several aspects of the prosecutor's closing argument constituted misconduct, denying Davis his constitutional rights to have the jury consider all mitigating evidence and to a fair trial. In particular, Davis assigns error to the prosecutor's (1) comments about compassion; (2) allegedly inflammatory remarks, including the re-creation of a possible dialogue between Davis and Couch during the rape and murder; (3) statement, "If not now, then when? And, if not Cecil Davis, then who[]?"; and (4) comments on whether Davis's actions showed remorse. He asserts, additionally, that even if these instances of alleged misconduct alone do not support reversal, collectively they do. RP (May 15, 2007) at 3495.
¶ 77 To make a successful claim of prosecutor misconduct, the defense must establish that the prosecuting attorney's conduct was both improper and prejudicial. State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007); State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991). Conduct is improper if, for example, it encourages the jury to make a decision based on passion or prejudice, or if it refers to matters outside the record. See State v. Belgarde, 110 Wn.2d 504, 507-08, 755 P.2d 174 (1988). To be prejudicial, a substantial likelihood must exist that the misconduct affected the jury's verdict. Yates, 161 Wash.2d at 774, 168 P.3d 359. Prejudicial effect must be judged by viewing the improper comments in context of the penalty phase as a whole, not in isolation. Id.
¶ 78 If the defense does not object at trial, "[r]eversal is not required if the error could have been obviated by a curative instruction which the defense did not request." Hoffman, 116 Wash.2d at 93, 804 P.2d 577. Failure to object to an allegedly improper remark constitutes waiver unless the remark is "so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." Stenson, 132 Wash.2d at 719, 940 P.2d 1239 (citing Gentry, 125 Wash.2d at 596, 888 P.2d 1105). If the defense does object to a prosecutor's comment, we review the trial court's ruling on the objection for abuse of discretion. Id. at 718, 940 P.2d 1239. This standard of review recognizes that the trial court is in the best position to determine whether prosecutorial misconduct actually prejudiced the defendant's right to a fair trial. Id. at 718-19, 940 P.2d 1239.
¶ 79 Before closing argument took place, the jury was instructed that a mitigating circumstance was "a fact about either the offense or about the defendant which in fairness or in mercy may be considered as extenuating." CP at 1165 (emphasis added); RP (May 15, 2007) at 3490. The jury was also instructed that "[t]hroughout your deliberations you must not be influenced by passion, prejudice or sympathy. You may find mercy for the defendant to be a mitigating circumstance." CP at 1159 (emphasis added); RP (May 15, 2007) at 3486.
¶ 80 In closing argument, the prosecutor said:
RP (May 15, 2007) at 3505-06. A summary of the prosecutor's comments regarding compassion was displayed to the jury in PowerPoint slides. Defense counsel did not object to this argument.
¶ 81 Davis argues these comments prohibited the jury from considering mercy and that this violated his Eighth and Fourteenth Amendment rights to have the jury consider all relevant mitigating circumstances. In particular, he contends that because the dictionary definition of "mercy" includes the word "compassion" and because the two terms have been historically associated, the prosecutor's closing argument improperly forbade the jury from considering mercy.
¶ 82 Even if the jury is required to be permitted to consider mercy,
¶ 83 Furthermore, there is no indication that the prosecutor's remarks about compassion
¶ 84 Davis argues that several elements of the prosecutor's closing argument played on jurors' passions and argued facts not in evidence. In particular, Davis identifies the following remarks as problematic:
¶ 85 1. The prosecutor's description of the bathtub as Couch's "death chamber." RP (May 15, 2007) at 3512.
¶ 86 2. The prosecutor's remarks encouraging the jurors to imagine Couch's final hour and what she must have said to Davis. For example, the prosecutor said when Davis entered the home, "[Y]ou can be sure that [Couch's] first reaction was, `Get out of my house. What are you doing in my house? What do you think you're doing?' Or anything along those lines." RP (May 15, 2007) at 3536. The prosecutor continued by saying that the moment when Davis started beating and rubbing on Couch was "probably when [she] started to beg. Maybe she changed her attitude about `get out of my house,' and at that point she was telling Cecil Davis, `Leave me alone. Take whatever you want. Take anything you want, just leave me alone, leave my house.'" Id. The description continued with more possible statements that Couch made.
¶ 87 3. The prosecutor's discussion of mercy at the end of the same description of the crime:
Id. at 3538-39.
¶ 88 4. The prosecutor's comment that while Davis received constitutional rights such as representation by counsel, the right to confront witnesses, and an impartial jury in determining whether he would live or die, Couch received no due process while facing death: "The defendant was her judge, jury, and executioner; no due process, no trial, no chance to present mitigation." Id. at 3502.
¶ 89 5. Comments implying that Davis scrubbed Couch's vagina while she was alive, when the evidence did not show whether the scrubbing occurred while she was alive or dead
¶ 90 6. The argument that Davis's background and psychological problems were not "true mitigation" but rather "excuse[s]." Id. at 3524.
¶ 91 The defense did not object to any of these remarks.
¶ 92 Davis bases much of his argument on Urbin v. State, 714 So.2d 411, 421, 422 n. 14 (Fla.1998), a case in which the Florida Supreme Court held that a prosecutor committed misconduct during his closing argument when he put imaginary words in the victim's mouth ("`Don't hurt me ....'"), argued that the jury should "`show [the defendant] ... the same amount of pity that he showed [the victim] on September 1, 1995, and that was none,'" and labeled the defense's mitigation evidence as "`excuses'" at least 11 times. Urbin is distinguishable because Florida law explicitly prohibited many of the comments at issue. It could be said, therefore, that the prosecutor's comments showed a flagrant disregard for precedent. See id. at 422 ("The fact that so many of these instances of misconduct are literally verbatim examples of conduct we have unambiguously prohibited in [several Florida cases] simply demonstrates that there are some who would ignore our warnings concerning the need for exemplary professional and ethical conduct in the courtroom."). In contrast, Washington law does not clearly prohibit a prosecutor from making the comments made in Davis's case.
¶ 93 Many of the remarks Davis identifies are proper. First, the description of the bathtub as Couch's "death chamber," while strong, is accurate and grounded in fact. See RP (May 1, 2007) at 2733-34 (medical examiner's testimony that Couch could have died in the bathtub). This comment did not incite the jury to make a decision based on improper grounds, but on a legitimate aggravating factor: the circumstances of the crime itself, and in particular, that Davis killed Couch by suffocating her with toxic chemicals in a bathtub. In contrast, see Belgarde, 110 Wash.2d at 506-08, 755 P.2d 174 (prosecutor's comments regarding the defendant's membership in the American Indian Movement were misconduct because they encouraged the jury to render a verdict based on that affiliation rather than the evidence).
¶ 94 Second, in Davis's first appeal, we rejected the argument that it was misconduct for the prosecutor to argue that the jury should show Davis the same amount of mercy that he showed Couch. Davis, 141 Wash.2d at 873, 10 P.3d 977. We also approved of the comment that Davis was Couch's "`judge, jury and executioner.'" Id. (quoting RP at 2518-19). Davis's only new support for the argument that these comments were prosecutorial misconduct is that the Florida Supreme Court did so in Urbin. As discussed earlier, Urbin is distinguishable because the prosecutor's comments there were explicitly forbidden under Florida law. Urbin, 714 So.2d at 422. We are not inclined to abandon our own, directly binding precedent in favor of distinguishable, nonbinding authority.
¶ 95 Third, calling the defense's evidence "excuses" was proper because context shows this label was directed at the evidence's weight, not its relevance. Significantly, the deputy prosecutor began discussing Davis's mitigating evidence by reminding the jury that it should judge Davis's mitigating evidence in the same way it judged any other evidence. The deputy prosecutor then pointed out several weaknesses of the evidence, such as that Davis's brothers and sisters were not violent despite their similar upbringings, that the defense witnesses were not credible, and that "[t]he defendant says he hears voices, but they don't tell him to kill people. They don't tell him to rob or rape people." RP (May 15, 2007) at 3523. The prosecutor then summarized these arguments by saying that the defendant's childhood and cognitive disorders were not true mitigation, but excuses. In this context, it is clear that there was no attempt to foreclose
¶ 96 Moreover, there is no indication that any of the foregoing comments were flagrant or ill intentioned, or that they could not have been cured by a jury instruction. In Gregory, 158 Wash.2d at 864-67, 147 P.3d 1201, we held it was flagrant, ill-intentioned prosecutor misconduct to comment on prison life when comments "blatantly violated" the trial court's order excluding such evidence.
¶ 97 The prosecutor's imagined dialogue between Couch and Davis during her rape and murder borders on improper. "In closing argument a prosecuting attorney has wide latitude in drawing and expressing reasonable inferences from the evidence." Gentry, 125 Wash.2d at 641, 888 P.2d 1105. While it is reasonable to infer that Couch would have resisted Davis's assault, inventing actual dialogue stretches the idea of a reasonable inference to near its breaking point. However, because Davis did not object to this argument, the trial court did not have an opportunity to stop the prosecutor. As noted, reversal in such instances is warranted only if the prosecutor's remarks were flagrant or ill intentioned. The context of the argument indicates that they were not. The deputy prosecutor began his re-creation of the crime by explaining that the jury should look beyond the sterilized, after-the-fact evidence to imagine the actual crime and actual pain:
RP (May 15, 2007) at 3535. As he went on to describe the crime, he often prefaced Couch's imagined comments with qualifying language, such as "[m]aybe he told her" or "you can be sure that." RP (May 15, 2007) at 3538, 3536, 3537. While the better practice would be to not put words in Couch's mouth at all, it was the prosecutor's responsibility to aid the jury in comprehending the brutality of the crime. Given the argument's context, the imagined dialogue was not so flagrant or ill intentioned that reversal is warranted in the absence of an objection.
¶ 98 The only remaining comment that could be considered improper is the implication that Couch's vagina was scrubbed before death. Davis does not dispute that the evidence showed that he scrubbed Couch's vagina; he argues only that it was inconclusive whether the scrubbing occurred while she was alive. That being the case, we reject the suggestion that Davis was prejudiced in any way by this comment.
¶ 99 In asking the jury to return a death penalty, the prosecutors asked the jurors during the opening statement and closing argument, "If not now, then when? And, if not Cecil Davis, then who[]?" RP (May 15, 2007) at 3495; RP (Apr. 27, 2007) at 2364. In both instances, the defense objected. Davis asserts that this question improperly appealed to emotion and argued facts not in evidence by implying that Davis's crime was worse than other aggravated murders.
¶ 100 In Gregory, a prosecutor made nearly identical arguments for imposing the death
¶ 101 Similarly, the prosecutors here properly argued that the death penalty was appropriate in Davis's particular case. Both times they asked, "[I]f not now, then when?"; it was in the context of arguing that the death penalty was appropriate given the circumstances of the crime and Davis's lengthy criminal history. The prosecutors never mentioned any other aggravated murders. Davis has not met his burden of showing impropriety, much less flagrance or ill intention.
¶ 102 The deputy prosecutor listed several actions of Davis's after the crime, asking, "Are those the actions of somebody who was remorseful?" RP (May 15, 2007) at 3569. Specifically, he noted that Davis stole Couch's wedding ring, money from her purse, and groceries from her kitchen; left her in the bathtub with her vagina exposed and rubbed her vagina with household cleanser and an abrasive pad to cover up the crime; said "`[t]hat bitch is next'" about a neighbor who was talking to police and pointing at his home; and told another inmate that he may have killed the "fucking old bitch," but he did not rape her. Id. at 3570. Each time the prosecutor asked if these actions showed remorse, the defense objected.
¶ 103 Davis argues that these comments constitute improper commentary on his right to remain silent because evidence of remorse could have come only from Davis's testimony. This argument is without merit. Davis gives no explanation for why only words, and not actions, could show remorse, and common sense suggests the opposite. It is a well settled principle of criminal law that a person's state of mind may be inferred from his or her actions. See 1 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 5.2(f) at 357 (2d ed. 2003).
¶ 104 Davis argues that even if no single comment of the prosecutors denied him a fair trial, the cumulative effect of the comments did. Davis has established that only two remarks were improper: the invented dialogue between Couch and Davis and the implication that Davis scrubbed Couch's vagina while she was alive. Since the latter comment is insignificant, as explained above, it adds little or nothing to the prejudice caused by the invented dialogue. Because the prejudice caused by the invented dialogue was tempered by its context, and because the impropriety was not flagrant or ill-intentioned, it does not warrant reversal.
¶ 105 Citing Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972),
¶ 106 Without the stricken appendices, little remains of Davis's federal constitutional challenge. What is left is an argument that Washington's death penalty violates the Eighth Amendment under Furman because "many of this state's most prolific killers are spared." Appellant's Opening Br. at 111. We recently rejected this argument in State v. Cross, 156 Wn.2d 580, 623-24, 132 P.3d 80 (2006), where we concluded that Furman's prohibition against the arbitrary and capricious application of the death penalty was satisfied by the eight protections set forth in Washington's special sentencing proceeding statutes, chapter 10.95 RCW. We again rejected the argument in Yates, 161 Wash.2d at 792, 168 P.3d 359. Today, we reaffirm the holding of Cross and Yates that Washington's death penalty does not violate the Eighth Amendment.
¶ 107 At trial, Davis brought two motions to dismiss arguing that the death penalty was unconstitutional. His discussion of the Washington Constitution was limited to the following paragraphs in one of the motions
CP at 714-15. The balance of the motion was based on federal law and uncited statistics about the death penalty's imposition. The trial court's order denying that motion did not mention article I, section 14.
¶ 108 On appeal, Davis has developed a full-fledged article I, section 14 challenge based on the four factors in Fain, 94 Wn.2d 387, 617 P.2d 720. He supports this argument in part by statistics and data in appendices that we have stricken. Significantly, Davis has not assigned error to any of the findings or conclusions in the trial court's ruling denying his motion to dismiss.
¶ 109 The State argues that Davis's state constitutional claim is inadequately preserved for review under RAP 2.5. RAP 2.5(a) states that an appellate court "may refuse to review any claim of error which was not raised in the trial court." The purpose of this rule is to give the trial court a chance to correct the error and give the opposing party a chance to respond. 2A KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE RAP 2.5 author's cmt. 1, at 233 (7th ed. 2011).
¶ 110 Notwithstanding the general rule, a party may raise a "manifest error affecting a constitutional right" for the first time on appeal. RAP 2.5(a). To be manifest, an error must result in actual prejudice, that is, the asserted error must have had
¶ 111 We decline to review Davis's state constitutional argument because it is inadequately preserved under RAP 2.5. Davis's cursory discussion of article I, section 14 in his motion to dismiss is inadequate to raise the claim for purposes of RAP 2.5. Important to our decision is the fact that Davis's motion to dismiss did not mention Fain, the case around which Davis's argument here is based. Davis appears to concede that the issue was not raised because he does not assign error to the trial court's denial of his motion and he responds to the State's preservation argument only by arguing that the claim is manifest constitutional error, not by arguing that the error was raised at trial.
¶ 112 The claimed error is not manifest because the record is insufficient to review it. The statistics in Davis's motion to dismiss were not supported by any citations or exhibits, and Davis did not attempt to rely on the motion to dismiss in his brief to this court. Rather, he attached new data in appendices, which we subsequently struck. The State did not present its own, competing data, arguing that it should have had a chance to do so at the trial court level. See Br. of Resp't at 90 n. 17 and accompanying text. Thus, we have a severe lack of information on the death penalty's implementation, which makes it difficult for us to perform any meaningful analysis of portions of Davis's claim, such as whether capital punishment serves the legislative goal of deterrence or what punishment Davis would receive in other jurisdictions for the same offense. At the trial court level, this lack of information meant the court could not have foreseen and corrected the error, and the State lacked sufficient notice to properly argue the issue.
¶ 113 Davis contends that cumulative error denied him a fair sentencing. The accumulation of errors may deny the defendant a fair trial and therefore warrant reversal even where each error standing alone would not. State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984); State v. Badda, 63 Wn.2d 176, 183, 385 P.2d 859 (1963). Here, few errors occurred, and those that did were not so egregious or unduly prejudicial that they denied Davis a fair trial. "`[A] defendant is entitled to a fair trial but not a perfect one.'" Brown v. United States, 411 U.S. 223, 231, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973) (alteration in original) (quoting Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)). Reversal due to the accumulation of errors discussed above is unwarranted.
¶ 114 RCW 10.95.130 requires that in addition to any appeal raised by the defendant, the Supreme Court must determine whether (1) sufficient evidence justified the jury's finding that there were not sufficient mitigating circumstances to merit leniency; (2) the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant; (3) the death sentence was brought about through passion or prejudice; and (4) the defendant has an intellectual disability.
¶ 115 The first statutory question we must consider is whether sufficient evidence
¶ 116 We upheld the evidence as sufficient in Davis's first sentencing hearing, concluding that a rational jury could find that Davis did not merit leniency when he presented mitigating evidence of a difficult childhood and low intelligence, but the crime was brutal and the victim's family testified to its lasting, traumatic impact. Although the evidence presented at Davis's second sentencing was largely the same, Davis now argues that it is insufficient to support the jury's verdict because his mental health declined between the two proceedings. Specifically, Davis's IQ declined from 81 at the first sentencing to 74, as measured by the State's expert, at the second sentencing. See Davis, 141 Wash.2d at 877, 10 P.3d 977; RP (May 10, 2007) at 3368. Additionally, Davis's diagnoses changed. At the first sentencing, experts opined that Davis suffered from a learning disability, impaired neuropsychological functioning, and antisocial, borderline, and "schizotypal personality disorders," while at the second sentencing, experts diagnosed him with a cognitive disorder not otherwise specified and major depression with psychotic features. Davis, 141 Wash.2d at 877, 10 P.3d 977; RP (May 9, 2007) at 3256. Finally, evidence of normal EEG test results was introduced at the first sentencing, while an EEG that showed slowing and disorganization in Davis's brain was introduced at the second sentencing. Davis, 141 Wash.2d at 877, 10 P.3d 977; RP (May 9, 2007) at 3216-17.
¶ 117 The evidence at Davis's second sentencing hearing, viewed in the light most favorable to the prosecution, is again sufficient to uphold the jury's finding that leniency was not merited. Despite the decline in Davis's mental health, no mental health professional opined that Davis was mentally retarded. Moreover, significant expert testimony tended to show that Davis's diminished mental capacity did not cause him to commit the crime. E.g., RP (May 9, 2007) at 3291-92 (defense expert testimony that auditory hallucinations did not tell Davis to kill other people and that major depression did not cause Davis to commit the crime). The jury could have rationally determined that given the calculated, heinous nature of the crime, mental slowness and a difficult childhood did not warrant leniency.
¶ 118 The second question we must consider in our mandatory statutory review is whether "the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." RCW 10.95.130(2)(b). If we answer this question in the affirmative, the sentence of death must be invalidated. RCW 10.95.140(1)(b). "`[S]imilar cases'" is defined as "cases reported in the Washington Reports or Washington Appellate Reports since January 1, 1965, in which the judge or jury considered the imposition of capital punishment regardless of whether it was imposed or executed, and cases in which reports have been filed with the supreme court under RCW 10.95.120." RCW 10.95.130(2)(b). In turn, RCW 10.95.120 requires trial judges to submit reports with information on the defendant, the victim, and the crime in all cases where the defendant is convicted of aggravated first degree murder. Accordingly, the statute instructs us to compare Davis's death sentence to the penalty imposed in all cases of aggravated first degree murder, regardless of whether the prosecutor pursued the death penalty or whether the fact finder returned a sentence of death or life imprisonment. We have described this review as comparing the case at bar to all "death eligible cases." Cross, 156 Wash.2d at 630, 132 P.3d 80.
¶ 20 After evaluating the four required factors, a five-justice majority concluded that the death penalty was proportional for Cross, a man who fatally stabbed his wife and two teenage stepdaughters and held his 13-year-old stepdaughter at knife point for hours. Regarding the nature of the crime, we observed that, like in other death penalty cases, Cross's murders exhibited a "marked level of cruelty" and "`involv[ed] substantial conscious suffering of the victim.'" Cross, 156 Wash.2d at 632, 132 P.3d 80 (internal quotation marks omitted) (quoting State v. Elledge, 144 Wn.2d 62, 81, 26 P.3d 271 (2001)). We concluded that "[w]e cannot say the prosecutor's decision to prosecute, and the jury's decision to sentence, were disproportionate based on the nature of the crime." Id. The single aggravating factor, that the crime involved the murder of multiple victims as part of a common scheme or plan, did not weigh for or against proportionality. Cross had a single prior conviction, leading us to conclude that "[w]e cannot say, based on this, that the death penalty is disproportionate." Id. at 633, 132 P.3d 80. Similarly, we concluded that Cross's abusive childhood and personality disorders, which did not rise to the level of destroying competence, "d[id] not necessarily render a death penalty disproportionate." Id. at 634, 132 P.3d 80.
¶ 21 In Yates, we closely followed the reasoning of Cross and upheld the death sentence against a proportionality challenge. The record showed that the defendant, Yates, murdered two women by shooting them and encasing their heads in plastic bags. We noted the defendant's marked cruelty and one victim's conscious suffering; two aggravating factors of common scheme or plan and robbery; extensive criminal history, including 13 first degree murder convictions; and lack of a troubled upbringing or other mitigating circumstances. Yates, 161 Wash.2d at 789-91, 168 P.3d 359.
¶ 122 In Davis's first appeal, we said regarding the nature of the crime that "`[a] brutal murder involving substantial conscious suffering of the victim makes the murderer more deserving of the death penalty.'" Davis, 141 Wash.2d at 882, 10 P.3d 977 (quoting Stenson, 132 Wash.2d at 759, 940 P.2d 1239); Cross, 156 Wash.2d at 632, 132 P.3d 80; see also Yates, 161 Wash.2d at 789, 168 P.3d 359 (discussing the victim's conscious suffering). Today, the same can be said about the brutal, cruel nature of Davis's crime and Couch's substantial conscious suffering. As we have observed above, Davis broke down the door of a 65-year-old woman's home, raped her to the point where her vagina ripped, strangled her, and left her to asphyxiate with chemical-soaked rags around her head in a bathtub filled with blood and feces. Her disabled husband was downstairs, unable to resist or react. After committing this act of violence, Davis rifled through Couch's purse, and took items from her refrigerator and cigarettes. He also took the wedding ring off her hand and then offered to sell it to his mother.
¶ 123 Davis argues that the nature of this crime compared to similar cases should be evaluated differently than in 2000 because since then, this court has affirmed only three death sentences: one where the defendant requested the death penalty and two in which there were multiple victims. Appellant's Opening Br. at 144 (citing Elledge, 144 Wash.2d at 69-79, 26 P.3d 271; Cross, 156 Wash.2d at 592, 132 P.3d 80; Yates, 161 Wash.2d at 728-32, 168 P.3d 359). He argues, additionally, that it is freakish and wanton to impose the death penalty on him when many others who killed multiple victims, including Gary Ridgway with 48 murders, were given life imprisonment.
¶ 124 We have upheld death sentences for other defendants based on the aggravated murder of a single victim. Elledge, 144 Wn.2d 62, 26 P.3d 271; Brown, 132 Wn.2d 529,
¶ 125 In both Cross and Yates, we directly addressed the fact that prosecutors did not seek the death penalty for Gary Ridgway, convicted of 48 murders, and found that it did not invalidate the death penalty in those cases on a disproportionate basis. In Yates, we wrote:
Yates, 161 Wash.2d at 793, 168 P.3d 359 (quoting Cross, 156 Wash.2d at 624, 132 P.3d 80). Nothing about Ridgway's case that is relevant to proportionality has changed since we came to this conclusion four years ago. Under Cross and Yates, Ridgway's sentence remains an isolated incident that does not bear on whether imposition of a sentence of death in Davis's case is excessive or disproportionate.
¶ 126 Turning to aggravating factors, the jury in the guilt phase of Davis's trial found three such factors: the murder was committed in the course of or in furtherance of robbery, rape, and burglary. Davis, 141 Wash.2d at 882, 10 P.3d 977; see also CP at 1195. The jury at Davis's second penalty proceeding knew of these aggravators. E.g., CP at 1161-62; RP (May 15, 2007) at 3487-88. In our opinion following Davis's appeal from his first death sentence, we indicated that three aggravators weighed in favor of proportionality because other defendants had been sentenced to death where only two or one aggravating factors were present. Davis, 141 Wash.2d at 883 n. 449, 10 P.3d 977 (listing cases); see also State v. Woods, 143 Wn.2d 561, 617, 23 P.3d 1046 (2001) (three or more aggravating factors were present in only 21 percent of death eligible cases in 2001). This observation has strengthened with time, as the three defendants whose death sentences have been upheld since Davis's first appeal were all found to have less than three aggravators. Yates, 161 Wash.2d at 789-90, 168 P.3d 359 (two aggravators); Cross, 156 Wash.2d at 633, 132 P.3d 80 (one aggravator); Elledge, 144 Wash.2d at 81, 26 P.3d 271 (one aggravator).
¶ 127 The nature of the aggravating circumstances, as well as the number, is important to consider. Cross, 156 Wash.2d at 633, 132 P.3d 80. It is difficult to weigh the nature of aggravating factors because they are, by definition, facts that make a murder particularly reprehensible. But it is safe to say that nothing about the nature of this rape, robbery, or burglary makes the death penalty disproportionate. The rape was particularly brutal, causing serious internal damage to Couch. The robbery of Couch's wedding band is particularly offensive because Davis had the callousness to look at her wounded or dead body and think of what more he could take, and because the object he took symbolizes an institution and commitment the courts have long revered and protected. See, e.g., Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967)("Marriage is one of the `basic civil rights of man,' fundamental to our very existence and survival."). And the burglary of a few cheap items, like meat and cigarettes, suggests that the true purpose of Davis's crime was the harm inflicted rather than the goods gained.
¶ 128 Finally, Davis's extensive criminal history supports the proportionality of his sentence even more than it did in 2000. When Davis was originally sentenced to
Davis, 141 Wash.2d at 883, 10 P.3d 977. We observed that this criminal history was "comparatively more extensive than that of other appellants who received the death penalty." Id.
¶ 129 In Davis's second sentencing hearing, the jury heard the same criminal history, plus an additional conviction of intentional murder in the second degree that was obtained in 2006. This additional murder conviction is significant because in Yates, we recognized that "Yates's prior murder convictions place him in a unique category, since among those defendants included in the trial judge reports, only 13[
¶ 130 Finally, the personal history presented at Davis's second sentencing was largely the same as that presented in his first sentencing: a difficult childhood, low intelligence, and personality disorders. As explained in this court's analysis of sufficiency of the evidence, Davis's decline in mental health since 2000 does not change the fact that he is not intellectually disabled and there is no indication that mental illness caused him to rape, rob, burglarize, and murder Couch. None of the mitigating factors now renders the death penalty disproportionate.
¶ 131 The dissent opines that the imposition of the death penalty in the instant case is "`excessive or disproportionate'" in comparison with the "dozens of life sentences imposed for aggravated murders similarly brutal to the one Cecil Emile Davis committed," and advocates remanding the case "for imposition of a sentence of life imprisonment without possibility of parole." Dissent at 85 (quoting RCW 10.95.130(2)(b)). Although the dissent purports to limit its reach to rejecting Davis's death sentence, the opinion strikes us as nothing less than a sweeping condemnation of Washington's death penalty regime, the dissent saying, "I cannot escape the truth about Washington's death penalty." Id. at 92. "One could better predict whether the death penalty will be imposed on Washington's most brutal murderers by flipping a coin than by evaluating the crime and the defendant." Id.
¶ 132 This denunciation of the death penalty's alleged "randomness" revives the proportionality challenge this court rejected in Cross, 156 Wn.2d 580, 132 P.3d 80, a decision the dissent mentions only in a footnote on an unrelated issue.
¶ 133 The dissent embraces the standard expressed in a number of our past decisions that "`"our duty"'" under RCW 10.95.130(2)(b) is to ensure "`"that no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generally and not wantonly and freakishly imposed."'" Dissent at 85 (quoting State v. Harris, 106 Wn.2d 784, 798, 725 P.2d 975 (1986) (quoting Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975)) and
¶ 134 In its effort to show that the "death penalty is not imposed generally in similar cases," dissent at 85, the dissent proceeds to list more than 40 murderers who received a sentence of life in prison instead of a death sentence for aggravated murders that it considers comparable to Davis's vicious slaying of Yoshiko Couch. See id. at 85-87. The dissent then observes that, in contrast, "only 13 death sentences other than Davis's have been imposed for murders involving rape or sexual assault." Id. at 87. Since more murderers have "escaped death for crimes comparable to those that support death sentences," the dissent concludes that "[c]onsidering the crime and the defendant, it is impossible to predict whether a defendant convicted of a brutal aggravated murder will be sentenced to life in prison or death." Id. at 85.
¶ 135 Contrary to the dissent's assertion, these "dozens of life sentences" do not prove that Davis's death sentence is disproportionate, and they certainly do not show that Washington's system of imposing the death penalty "defies rationality." Id. at 84, 92. RCW 10.95.130(2)(b) directs courts to consider "both the crime and the defendant." (Emphasis added.) In support of its position, the dissent has lined up dozens of gruesome aggravated murders that it suggests are similar to Cecil Davis's crime in that they involved rape or sexual assault; but while the dissent has considered the nature of the crime in compiling its list, it appears to us that the opinion does not give adequate consideration to the defendants and other relevant factors.
¶ 136 One factor jurors are asked to consider is "[w]hether the defendant has or does not have a significant history, either as a juvenile or an adult, of prior criminal activity." RCW 10.95.070(1). While Cecil Davis had an extensive criminal record, including a prior intentional murder, at least nine of the defendants on the dissent's list of similar crimes had no criminal history.
¶ 137 The dissent, in our view, ignores other factors entirely. For instance, jurors are asked to consider "[w]hether the age of the defendant at the time of the crime calls for leniency." RCW 10.95.070(7). The dissent does not report that a number of the defendants on its list might have been spared the death penalty in part because of their age.
¶ 138 Mitigating evidence is not the only reason a prosecutor might decide not to seek the death penalty. The strength of the State's case often influences that decision. For example, the trial judge's report regarding Martin Sanders states, "The plea agreement to recommend life without possibility of parole was due to the fact that the State felt there was a reasonable possibility of acquittal due to the circumstantial evidence available in the case." TR 81, at 6. The report goes on to reveal that the prosecutor consulted the victims' parents and the detectives in charge of the investigation. We learn from the report that the parents agreed to the plea because they did not want there to be "any chance" that the defendant might be set free by acquittal and "would have recommended life without the possibility of parole" at sentencing "in any event." Id. at 7. The detectives acknowledged the "appropriateness of this plea" provided the defendant offer a full confession and agree to speak with authorities about an unsolved murder in that jurisdiction. Id. Similarly, the report concerning Jack Spillman relates that "the prosecution's case did not include direct evidence of [the] defendant's involvement in the murders," although there was "strong circumstantial evidence," and that "members of the victims' family spoke at the sentencing hearing in support of the life sentence and resolution of the case." TR 167, at 14.
¶ 139 Although these reports offer significant insight into the prosecutor's decision not to seek a death sentence or, in Spillman's case, to stipulate that it "could not prove beyond a reasonable doubt that there were not sufficient mitigating circumstances to merit leniency," TR 167, at 6, the dissent does not divulge this information. We merely learn from the dissent that "Martin Sanders raped two 14-year-old girls, beat one in the head with a tire jack, then strangled them," and that "Jack Spillman III repeatedly, fatally stabbed one woman and bludgeoned another, then sexually mutilated and eviscerated them." Dissent at 86. Unfortunately, a reader of the dissent would have no
¶ 40 The dissent's failure to convey adequately the reason a defendant received a life sentence instead of death is on full display when it turns from statistical analysis to a comparison of Cecil Davis's case with that of Gerald Davis. The dissent is obviously struck by the facial similarity of the two cases: two defendants with the same name, roughly the same age, guilty of equally hideous murders committed in the same county only days apart, yet one was sentenced to death and the other to life in prison — the quintessence of randomness! Or is it? The dissent does concede that "small differences can be found between Cecil Davis's and Gerald Davis's cases," but, ignoring the possibility that "small differences" might legitimately matter, concludes that "without invading the jury's role, it is hard to fathom why Cecil Davis was sentenced to death while Gerald Davis was sentenced to life imprisonment." Dissent at 91.
¶ 141 The dissent's argument that the system is plagued by randomness would have greater force if the same prosecutor had looked at similar aggravated murders committed by similar defendants and decided to seek the death penalty in one case but not the other.
¶ 142 The fact that the life versus death decision in Gerald Davis's case came down in the end to the votes of two jurors is apparently unsatisfactory to the dissent, which would seemingly prefer a more predictable system. It is worth remembering, given the overriding importance the dissent attaches to predictability, that there was a time when the people of Washington voted to make the death penalty mandatory for aggravated murder. See former RCW 9A.32.046 (1975) (Initiative 316, § 2). At that time, it would have been possible to predict a defendant's sentence with perfect accuracy, but this
¶ 143 This court has said that "[p]roportionality review is not an inquiry into sentencing percentage comparisons," Benn, 120 Wash.2d at 690, 845 P.2d 289, but percentages are what the dissent features. The results of its analysis are that "over three times as many defendants received life sentences for aggravated murders involving sexual assault as were sentenced to death," that the "disparity in favor of life sentences increases to more than four-to-one when we consider cases where rape was found to be an aggravating factor," and that defendants with a criminal record "were still almost two and one-half times more likely to be sentenced to life in prison than sentenced to death." Dissent at 90. These results are not surprising or troubling.
¶ 144 The fact that more life sentences are imposed than death sentences does not prove that the system "defies rationality." Dissent at 92. In our view, it shows that the system is working as intended and that the different actors in the system are performing their assigned roles conscientiously — prosecutors in the exercise of discretion, jurors in considering mitigating evidence, and defense attorneys endeavoring to humanize defendants guilty of the most inhuman acts. While it is easy to imagine a system in which the death penalty is routinely sought and routinely imposed, that would not be a system superior to that extant in Washington and it would be inconsistent with the present values of our citizenry.
¶ 145 After endorsing the dissent's analysis of the death penalty's supposed "random and arbitrary nature," the justice specially concurring in dissent expresses his "deep concern that the death penalty might be much more predictable than we have recognized." Concurrence in dissent at 92. In this justice's view, the sentences that have been imposed in the last 30 years cannot be explained by aggravating and mitigating circumstances or other proper considerations, but can be explained by "the race of the defendant." Id. The justice asserts that "[a] review of the reports of prosecutions for aggravated first degree murder quickly discloses that African-American defendants are more likely to receive the death penalty than Caucasian defendants," attributing this "lopsided record"
¶ 146 We begin with the observation that the likelihood of a white defendant receiving the death penalty in Washington is practically the same as the likelihood of a black defendant receiving it: 8
¶ 147 This is not the first time that this court has considered the allegation that the death penalty is imposed in Washington on
The few statistics set forth in the concurrence in dissent do not convince us that our conclusion in Gentry was wrong or that the situation has since deteriorated.
¶ 148 The concurrence in dissent begins its analysis with the "73 aggravated first degree murder cases in which the prosecution sought the death penalty against African-Americans or Caucasians."
¶ 149 All told, the State has sought the death penalty in 61
¶ 151 The concurrence in dissent also fails to consider the results of special sentencing proceedings over time. The reports filed under RCW 10.95.120 between 1981 and 1991 reveal that prosecutors sought the death penalty in only 4
¶ 152 The concurrence in dissent states that "if the death penalty were color blind, one would expect to find that as a group, African-American defendants' crimes and past histories made them considerably more deserving of the death sentence than Caucasian defendants" but that "the trial reports contradict this expectation." Id. at 93. Our colleague claims, "When we consider key statistics for all African-Americans and Caucasians sentenced to death, it appears that African-American murder defendants as a group were no worse than Caucasian murder defendants." Id. (emphasis added). Mitigating evidence is certainly a "key statistic," perhaps the key statistic, jurors at a special sentencing proceeding being asked whether they are "`convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency.'" RCW
¶ 153 The foregoing statistics suggest that mitigating circumstances, rather than "[a]ttitudes about race," explain the "unequal imposition of the death penalty when the jury is asked to decide death." Id. at 92, 94. They also suggest that jurors genuinely base their decisions on proof that mitigating evidence is insufficient to merit leniency. Except for 20-year-old Covell Thomas, none of the black defendants sentenced to death presented any "credible evidence of ... mitigating circumstances as provided in RCW 10.95.070," and only a few offered some other "evidence of mitigating circumstances." RCW 10.95.120(3)(d), (c). The black defendants who received life sentences generally presented more mitigating evidence, and in some cases substantially more. See, e.g., TR 77; TR 88; TR 185. Again, that is exactly what one would expect to find.
¶ 155 The concurrence in dissent admits that its statistical analysis "cannot tell us that petitioner Cecil Davis would not have received the death sentence if he had not been African-American." Concurrence in dissent at 94. We could not have said it better, our review of the reports of aggravated first degree murders revealing that white defendants and black defendants are sentenced to death in the same proportion, 14 percent. Considering that no two cases of aggravated first degree murder are exactly alike, we find that fact remarkable. We acknowledge that "we are not statisticians," id. at 98, but we see no evidence that racial discrimination pervades the imposition of capital punishment in Washington and, therefore, see no reason to remand this matter to the superior court for an evidentiary hearing that the petitioner did not seek.
¶ 156 Finally, we take the opportunity to respond to the suggestion that we have hitherto "ignore[d]" the "danger that the death penalty might not be imposed in a fair, equal, or just manner." Id. at 92, 94. The concurrence in dissent deplores the fact that in Davis's previous personal restraint petition we relied on McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), in rejecting Davis's "submission of ... statistics that suggested that [the] death penalty is `imposed more frequently when the defendant is nonwhite and the victim is white, and never, or almost never, when the racial equation is reversed.'"
¶ 157 Under our mandatory statutory review,
Cross, 156 Wash.2d at 634-35 [132 P.3d 80] (alteration in original) (quoting Elledge, 144 Wash.2d at 85 [26 P.3d 271] (quoting BENNETT L. GERSHMAN, TRIAL ERROR AND MISCONDUCT § 2-6(b)(2), at 171-72 (1997))). Here, Davis's only argument that the jury's decision was based on passion and prejudice merely repeats the jury instruction and prosecutor misconduct issues, discussed above. We have already addressed and rejected these claims. There is no other evidence that the jury's verdict was based on an improper argument or improper motives. The jury was instructed not to be influenced by passion or prejudice, and we presume that jurors follow the court's instructions. Lord, 117 Wash.2d at 861 [822 P.2d 177]. RCW 10.95.130(2)(c) provides no basis for reversing Davis's sentence.
¶ 158 To have an intellectual disability considered by RCW 10.95.130(2)(d), the defendant's IQ must be 70 or below. RCW 10.95.030(2)(a), (c). At trial, no mental health expert testified that Davis's IQ was 70 or below. On appeal, Davis does not claim he is intellectually disabled or that he was intellectually disabled at the time of the crime.
¶ 159 We conclude Davis has failed to establish reversible error and that reversal is not required under RCW 10.95.130. We therefore affirm his sentence of death.
WE CONCUR: Chief Justice, BARBARA A. MADSEN, CHARLES W. JOHNSON, TOM CHAMBERS (result only), SUSAN OWENS, and JAMES M. JOHNSON, Justices.
FAIRHURST, J. (dissenting).
¶ 160 Washington statutes require us to reverse any death sentence that is "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." RCW 10.95.130(2)(b), .140(1)(b). While the majority purports to undertake the required analysis, it overlooks dozens of life sentences imposed for aggravated murders similarly brutal to the one Cecil Emile Davis committed. Our proportionality review will not tolerate the randomness that these sentences reveal in Washington's system of imposing the ultimate punishment. Davis's death
¶ 161 This court is required to evaluate every death sentence to determine whether it is "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." RCW 10.95.130(2)(b). "`[S]imilar cases'" is a term defined by statute as:
Id. Under RCW 10.95.120, trial judges must submit reports in all cases where the defendant is convicted of aggravated first degree murder, including where the defendant pleads guilty. Therefore, the plain language of our proportionality statute requires us to consider all aggravated first degree murder convictions, regardless of whether the prosecutor pursued the death penalty or whether the fact finder returned a sentence of death or life imprisonment. If we determine the defendant's sentence is excessive or disproportionate to the cases in this group, we must reverse the death sentence for the imposition of a life imprisonment sentence. RCW 10.95.140(1)(b).
¶ 162 We must avoid the temptation to confuse the question actually posed by RCW 10.95.130(2)(b) with the question of whether Davis's death sentence is proportionate to his crime. The statute does not ask us to evaluate Davis and his crime in a vacuum. Such an interpretation not only ignores the statute's plain language, it reduces proportionality to a tautology: aggravated murders are by definition the worst possible crimes, so they will always be proportionate to the worst possible punishment. Instead, the statute asks us to compare the defendant's sentence to the sentence imposed in all other aggravated murder cases, including life sentences and the results of plea bargains.
¶ 163 Having identified the correct pool of comparable cases — all aggravated murder convictions, regardless of whether the death penalty was pursued or imposed — we still must determine what it means for a sentence to be disproportionate. While we have approached this inquiry in a variety of ways, we have consistently stressed that
State v. Harris, 106 Wn.2d 784, 798, 725 P.2d 975 (1986) (alteration in original) (internal quotation marks omitted) (quoting Moore v. State, 233 Ga. 861, 864, 213 S.E.2d 829 (1975)); see also, e.g., State v. Brown, 132 Wn.2d 529, 555, 940 P.2d 546 (1997) (referencing the same standard); State v. Benn, 120 Wn.2d 631, 679, 845 P.2d 289 (1993) (same).
¶ 164 In my view, when we follow the statutory mandate to consider similar cases, it becomes apparent that the death penalty is not imposed generally in similar cases in Washington State. Considering the crime and the defendant, it is impossible to predict whether a defendant convicted of a brutal aggravated murder will be sentenced to life in prison or death. The majority fails to reach this conclusion because, despite the statute's plainly worded mandate, it does not meaningfully analyze cases where the death penalty was not sought or imposed. The only life sentence that the majority explicitly discusses is that of Gary Ridgway, who strangled 48 women and often returned to rape their corpses. Majority at 71-72. The majority characterizes Ridgway's sentence as an anomaly that could not alone render the death penalty disproportionate. Id. When we use the correct statutory pool, the same four factors analyzed by the majority illustrate that Ridgway's life sentence can no longer be characterized as unique.
¶ 65 The majority first considers the nature of the crime, which involved substantial conscious suffering due to the violent rape. Majority at 71. Since our death penalty statute was enacted in 1981, at least 45 murderers have been sentenced to life in prison for aggravated murders involving rape, sexual assault, or sexual mutilation. Report of Trial Judge
¶ 166 In contrast, since our death penalty statute was enacted, only 13 death sentences other than Davis's have been imposed for murders involving rape or sexual assault.
¶ 167 The majority next considers both the number and nature of the aggravating factors in Davis's case: robbery, burglary, and rape. Majority at 72. With regard to nature, the violent rape stands out as the distinguishingly heinous feature of Davis's crime. Rape is not always charged or found applicable in aggravating murder cases involving sex crimes, so the pool of defendants for whom rape was found to be an aggravator
¶ 168 With regard to number of aggravators, 38 defendants with three or more aggravating factors were sentenced to life in prison,
¶ 169 The third factor the majority considers is Davis's prior convictions. As the majority points out, Davis had a lengthy criminal history. Majority at 72-73. Accordingly, we might appropriately exclude from the pool of comparable cases those defendants with no criminal history. Of the 45 defendants listed above who received life sentences for sex-related murders, 32 had some criminal history.
¶ 170 The majority states that Davis is in a special category because few other aggravated murder defendants had prior murder or manslaughter convictions. Majority at 73. But nearly one-half of all defendants with prior murder or manslaughter convictions were sentenced to life in prison.
¶ 171 The final factor, Davis's personal history, revealed a difficult childhood, low intelligence, and personality disorders. It is virtually impossible to compare mitigating factors among all "similar cases," as that term is defined by statute, because a defendant does not present mitigating factors unless a special sentencing proceeding
¶ 172 If we do compare mitigating circumstances, notwithstanding the methodological problems mentioned, the trial reports reveal that while 36 defendants who presented evidence of two or fewer mitigating factors were sentenced to life in prison,
¶ 173 To summarize, over three times as many defendants received life sentences for aggravated murders involving sexual assault as were sentenced to death. The disparity in favor of life sentences increases to more than four-to-one when we consider cases where rape was found to be an aggravating factor. If we eliminate defendants with no criminal history, persons convicted of aggravated murder involving sexual assault were still almost two and one-half times more likely to be sentenced to life in prison than sentenced to death.
¶ 174 Certainly, our proportionality review is not merely a statistical task. See majority at 71-72. Anecdotally, we could also conclude that aggravated murderers whose crimes and histories are comparable to Davis's have received life sentences. For example, Gerald Davis tied up, raped, beat, and stabbed a 77-year-old woman and tied up, bludgeoned, and suffocated a 91-year-old. TR 186. He committed this crime just four days after Cecil Davis raped and murdered Yoshiko Couch. Id. Gerald Davis was 36 years old, a year younger than Cecil Davis, at the time of Couch's murder. Id. Like Cecil Davis, Gerald Davis had a low intelligence quotient of 77, and at trial, he presented mitigating evidence of an abusive, troubled childhood. Id. He was sentenced to life in prison. Id. Certainly, small differences can be found between Cecil Davis's and Gerald Davis's cases. But without invading
¶ 175 Or take Martin Sanders, who raped and strangled two 14-year-old girls, one of whom he also severely beat with a tire jack. TR 81. He was age 30 or 31 when he committed the crime and had a criminal history of kidnapping, assault, and sexual intercourse without consent. Id. There was evidence that Sanders had poor scholastic performance and a difficult upbringing, but he was found competent to stand trial. Id. On a plea bargain, he was sentenced to life in prison. Id.
¶ 176 Faced with these statistical and anecdotal comparisons, I cannot vote to affirm Davis's death sentence with assurance that the death penalty has been imposed generally in other similar cases throughout the state. See Harris, 106 Wash.2d at 798, 725 P.2d 975. Rather, Davis's case illustrates the randomness that plagues our system. While perfect consistency in deciding who is sentenced to death may not be attainable, our statutes do not permit the crime and the defendant to become meaningless as predictors of the sentence imposed. Yet this has, in fact, occurred: the nature of Davis's crime, his prior convictions, the aggravating factors found applicable, and his personal history do not reveal why he was sentenced to die.
¶ 177 The majority suggests that our death penalty system is proportional because death and life sentences can be explained by factors beyond the crime and the defendant, such as the strength of the State's case, the wishes of the victim's family, or facts known to the defendant about other, unsolved cases. In concluding that these factors make the death penalty proportional, the majority again ignores the language of RCW 10.95.130(2)(b), mistaking the question of whether a sentence is appropriate in an individual case for whether the sentence is generally imposed in similar cases. But the statute requires us to analyze the death penalty, a punishment unique in its severity and irrevocability, on a system-wide level.
¶ 178 When one takes the broad, statutorily directed perspective, factors that appear rational at an individual level become irrational. For example, the majority states that Martin Sanders's life sentence is due, in part, to the recommendation of one of the victim's parents and the fact that Sanders agreed to talk with authorities about an unsolved murder. Majority at 75 (citing TR 81). These are rational considerations when viewing Sanders's case alone. But when viewed as part of a system of deciding who dies and who lives, the same factors create irrational, perverse results. A murderer is more likely to escape death if he has concealed the details of an unsolved crime or fortuitously picked a victim whose family opposes the death penalty.
¶ 179 Other, impermissible factors may play an even greater role in whether the death penalty is imposed. While it is not yet clear that a causal relationship exists, I am troubled that since this court upheld Davis's first death sentence as proportional in 2000, the only counties where death sentences have been imposed are King and Pierce.
¶ 180 It is not an answer to pretend that the unique factors of each case tie our hands, making us impotent to perform our statutory duty because no truly "similar" cases exist. Certainly, crimes "`"cannot be matched up like so many points on a graph."'" Majority at 74 (quoting Benn, 120 Wash.2d at 680, 845 P.2d 289 (quoting Lord, 117 Wash.2d at 910, 822 P.2d 177)). The fact that each aggravated murder case is not identical need not reduce our statutory inquiry to a meaningless
¶ 81 When I look at the true statutory pool, I cannot escape the truth about Washington's death penalty. One could better predict whether the death penalty will be imposed on Washington's most brutal murderers by flipping a coin than by evaluating the crime and the defendant. Our system of imposing the death penalty defies rationality, and our proportionality review has become an "empty ritual." Benn, 120 Wash.2d at 709, 845 P.2d 289 (Utter, J., dissenting). I cannot agree that Davis's sentence is not excessive or disproportionate to the sentences imposed in similar cases. I therefore dissent.
I CONCUR: DEBRA L. STEPHENS, Justice.
WIGGINS, J. (concurring in dissent).
¶ 182 I concur with Justice Fairhurst's amply supported analysis of the random and arbitrary nature of the imposition of the death penalty in Washington. I write separately to add my deep concern that the death penalty might be much more predictable than we have recognized. I refer, of course, to the race of the defendant. A review of the reports of prosecutions for aggravated first degree murder quickly discloses that African-American defendants are more likely to receive the death penalty than Caucasian defendants.
¶ 183 I begin with the observation that Cecil Emile Davis committed a horribly cruel, painful, and heinous crime when he murdered Yoshiko Couch. In the abstract, Davis may well deserve execution. But we cannot look at Davis alone. The legislature has wisely charged us with the task of examining "[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." RCW 10.95.130(2)(b). We cannot ignore whether the defendant's race becomes a significant factor in imposing the death penalty.
¶ 184 Before examining the reports, I emphasize that this opinion does not accuse anyone in the criminal justice system of racism, whether they are police, prosecutors, defense counsel, witnesses, jurors, or judges. The African-American experience in this country has been complex and frequently tragic. Attitudes about race can be so deeply buried in our individual and collective unconscious that it is difficult to evaluate their effect on our judgments or the judgments of others. The point is not that African-Americans have been deliberately treated differently with respect to the death penalty; the point is that they have in fact been treated differently.
¶ 185 Our analysis of the death penalty cases begins with the 73
¶ 186 Excluding these 13 cases involving African-American defendants from the trial reports where the prosecution sought the death penalty, 60
¶ 187 This means that of all African-American and Caucasian defendants for whom the prosecution sought the death penalty, African-Americans were much more likely than Caucasians to be sentenced to death (62 percent versus 40 percent). Based on this record, if the death penalty were color blind, one would expect to find that as a group, African-American defendants' crimes and past histories made them considerably more deserving of the death sentence than Caucasian defendants. But the trial reports contradict this expectation. When we consider key statistics for all African-Americans and Caucasians sentenced to death, it appears that African-American murder defendants as a group were no worse than Caucasian murder defendants.
¶ 188 For instance, African-American defendants sentenced to death averaged fewer aggravating circumstances (2.0) than Caucasians (2.6).
¶ 189 The trial reports are evidence that once the prosecution seeks the death penalty against African-American defendants, those defendants are much more likely to be sentenced to death than their Caucasian counterparts. The majority attempts to disprove any disproportionality in sentencing by analyzing the pool of defendants eligible for the death penalty and concluding "the likelihood of a white defendant receiving the death penalty in Washington is practically the same as the likelihood of a black defendant receiving it." Majority at 78. This is a false comparison. The relevant issue is how often juries return a verdict of death when the prosecution seeks the death penalty. Including defendants against whom the prosecution has not chosen to seek the death penalty tells us nothing about unequal imposition of the death penalty when the jury is asked to decide death.
¶ 90 The majority again looks to the wrong statistical set when it divides the aggravated first degree murder cases into two time periods: 1981 to 1991 compared to 1991 to 2011. Majority at 80-81. No reason is suggested for this division, which appears to be arbitrary. Moreover, the number of African-American defendants is sufficiently small that a small adjustment in the time periods can give rise to wide variations.
¶ 191 Additionally, the majority claims the fact that the State has sought the death penalty in a higher percentage of cases against Caucasian defendants than African-American defendants "refute[s] the notion that attitudes about race have led prosecutors to discriminate against black defendants in capital cases." Id. at 79. But the majority examines only cases in which defendants are convicted of aggravated first degree murder, without examining whether prosecutors charge the two populations at the same rate. A deeper inquiry into charging rates may explain why African-Americans, despite comprising less than 4 percent of Washington's population,
¶ 192 Needless to say, these selective statistics do not tell the entire story, but they are objective quantitative measurements and not one of them explains why African-Americans seem so disproportionately sentenced to death. These statistics cannot tell us that petitioner Cecil Davis would not have received the death sentence if he had not been African-American. But the numbers warn of a significant danger that the death penalty might not be imposed in a fair, equal, or just manner. I would remand this case to the trial court for a hearing to evaluate whether racial disparities exist in the imposition of the death penalty and whether they are statistically significant.
¶ 193 I turn now to a review of the history of Washington's death penalty to evaluate the significance of this lopsided record.
¶ 194 In Washington, the legislature has mandated that we engage in a comparative proportionality analysis in every capital case. RCW 10.95.130. Our legislature adopted this statutory requirement in response to United States Supreme Court cases from the 1970s that addressed racial discrimination in capital punishment and the problem of imposing the death penalty in an arbitrary and capricious manner. See LAWS OF 1981, ch. 138, § 13; LAWS OF 1977, Ex.Sess., ch. 206, §§ 1-2, 7, 10. A brief review of these cases and our legislature's response to them is helpful in
¶ 195 In 1972, the United States Supreme Court considered the alarming issue of inconsistencies and racial disparities in the imposition of the death penalty. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Furman, a per curiam decision with five concurring and four dissenting opinions, brought to light several problems with the manner in which some states — there, specifically Georgia and Texas — imposed the death penalty. The concurring justices were primarily concerned that certain states' legislative grants of unfettered discretion to juries and judges in death sentencing were leading to arbitrary or racially discriminatory results. See, e.g., id. at 256-57, 92 S.Ct. 2726 (Douglas, J., concurring) ("[T]hese discretionary statutes are unconstitutional in their operation. They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on `cruel and unusual' punishments."); id. at 293, 92 S.Ct. 2726 (Brennan, J., concurring) ("[The infliction of the death penalty] smacks of little more than a lottery system."). Because of these concerns, the Court reversed and remanded the death sentences of three African-American men. Id. at 239-40, 92 S.Ct. 2726 (per curiam).
¶ 196 Following Furman, the states engaged in a flurry of legislation to ensure that their death penalty statutes and sentencing schemes were constitutional. See Franklin E. Zimring & Gordon Hawkins, Capital Punishment and the American Agenda 38-45 (1986) (discussing state legislative responses to Furman); see also Gregg v. Georgia, 428 U.S. 153, 179 n. 23, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion) (noting the increase in state legislative activities prompted by Furman). Georgia, whose laws were at the center of the controversy in Furman, reworked its statutes to provide safeguards ensuring that the death penalty was not applied in an arbitrary or discriminatory fashion. See 1973 Ga. Laws 159, § 4.
¶ 197 These new statutes quickly made their way back to the United States Supreme Court: in 1976, the Court upheld the new statutes because, "if the Georgia Supreme Court properly performs the task assigned to it under the Georgia statutes, death sentences imposed for discriminatory reasons or wantonly or freakishly for any given category of crime will be set aside." Gregg, 428 U.S. at 224, 96 S.Ct. 2909 (White, J., concurring in judgment). The Court noted that Georgia's new approach allowed the Georgia Supreme Court to compare "each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate." Id. at 198, 96 S.Ct. 2909. Confident that the new laws "afford[ed] additional assurance that the concerns that prompted [the] decision in Furman [were] not present to any significant degree," id. at 207, 96 S.Ct. 2909, the Court indicated that Georgia's statutory creation of comparative proportionality review appropriately addressed Furman's aims of eliminating freakish, arbitrary, and racially discriminatory sentences in the imposition of the death penalty.
¶ 198 On the same day that the Supreme Court heard Gregg, it also considered another common state legislative response to Furman. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). North Carolina and several other states, including Washington, had enacted statutes making the death penalty mandatory where certain aggravating circumstances were present.
¶ 199 In the wake of the Gregg and Woodson decisions, many state legislatures, including Washington's, returned to the drawing board to ensure that their death penalty statutes would meet constitutional muster. See Timothy V. Kaufman-Osborn, Capital Punishment, Proportionality Review, and Claims of Fairness (with Lessons from Washington State), 79 WASH. L. REV. 775, 790 (2004) (citing Barry Latzer, The Failure of Comparative Proportionality Review of Capital Cases (with Lessons from New Jersey), 64 ALB. L. REV. 1161, 1168 n. 29 (2001)).
¶ 200 The Washington Legislature sought the advice of the Attorney General, who provided a detailed opinion recommending that Washington model its death penalty laws after the Georgia statutes upheld in Gregg. 1976 Op. Att'y Gen. No. 15, at 11-13, 1976 WL 168499, at *6-7. The legislature responded by enacting legislation nearly identical to Georgia's statute, including the requirement of comparative proportionality review by the Washington State Supreme Court. Compare RCW 10.95.130, and former RCW 10.94.030 (LAWS OF 1977, Ex.Sess., ch. 206, § 7), repealed by LAWS OF 1981, ch. 138, § 24, effective May 14, 1981,
¶ 201 The legislative history regarding the enactment of comparative proportionality review in Washington also demonstrates that the legislature was responding to Gregg, Woodson, and Furman and believed the new statutory scheme would ensure that the death penalty in Washington would not be applied arbitrarily or discriminatorily. See, e.g., Memorandum from David D. Cheal, Counsel, House Judiciary Comm., to Representative Pearsall, Constitutional Requirements of Death Penalty Legislation 1 (May 12, 1977) ("[Comparative proportionality review] is a further protection against arbitrariness and wide discrepancies in the application of the death penalty.") (on file with House File on Substitute H.B. 615, 45th Leg., 1st Ex.Sess. (1977)); Transcript of Proceedings of H.R., Substitute H.B. 615, 45th Leg., 1st Ex.Sess. (Apr. 29, 1977) (arguments during floor debate regarding the disproportionate imposition of the death penalty on racial minorities) (on file with House File on Substitute H.B. 615, supra).
¶ 202 To summarize, the timing, language, and history of our death penalty statutes indicate that the legislature was primarily concerned with maintaining the constitutional availability of capital punishment in Washington by enacting laws that, according to the United States Supreme Court, remedied the problems identified in Furman.
¶ 203 Although the United States Supreme Court has indicated that comparative proportionality review is not constitutionally required, Pulley v. Harris, 465 U.S. 37, 43-44, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), RCW 10.95.130 still mandates it.
¶ 204 I find it problematic and unworkable that we have endorsed the view of the United States Supreme Court in rejecting statistics on the impact of race on the imposition of the death penalty. See In re Pers. Restraint of Davis, 152 Wn.2d 647, 753-54, 101 P.3d 1 (2004) (citing McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987)). McCleskey involved a black defendant convicted of murder for shooting a white police officer during a robbery of a furniture store in Georgia. 481 U.S. at 283, 107 S.Ct. 1756. At trial and throughout his appeals and habeas petitions, McCleskey presented a statistical study that "purport[ed] to show a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant."
¶ 205 In Mr. Davis's previous personal restraint petition, this court relied on McCleskey to reject Mr. Davis's submission of similar Washington statistics that suggested that the death penalty is "`imposed more frequently when the defendant is nonwhite and the victim is white, and never, or almost never, when the racial equation is reversed.'" Davis, 152 Wash.2d at 753, 101 P.3d 1 (quoting brief). But we did not examine the overall statistics on the frequency with which African-American defendants are sentenced to death compared to non-African-American defendants. Thus, our prior decision in Davis does not and cannot control our decision here.
¶ 206 Furthermore, the racial statistics in both McCleskey and Davis were put forth in the context of constitutional challenges under the cruel and unusual punishment clause of the Eighth Amendment to the United States Constitution. Those cases, even if decided correctly, are distinguishable from the statistics discussed in this opinion because these statistics focus on the duty imposed by our legislature to conduct comparative proportionality review to ensure that death sentences in Washington are not handed down arbitrarily or discriminatorily. I do not believe that we can address discrimination based on race or other factors in our death penalty cases if we do not consider the statistical trends that present themselves upon examination of trial reports in aggravated murder cases. If we refuse to engage in some form of statistical analysis, we render a nullity the entire statutory scheme we are charged with enforcing.
¶ 207 I am not alone in my confusion. Numerous commentators have expressed dismay over the failure of comparative proportionality review to address the issue of racial discrimination in capital punishment. Most of their criticisms attack McCleskey for presenting the judiciary with a convenient way to sidestep the issue of racial disparities in the imposition of capital punishment. See, e.g., David C. Baldus, George Woodworth & Catherine M. Grosso, Race and Proportionality Since McCleskey v. Kemp (1987): Different Actors with Mixed Strategies of Denial and Avoidance, 39 COLUMBIA HUM. RTS. L.REV. 143, 144 (2007) ("McCleskey has nearly eliminated the incentive of federal and state courts and legislatures to address
¶ 208 In addition to these criticisms, our own cases have repeatedly recognized that the purpose of conducting comparative proportionality review is "to avoid random arbitrariness and imposition of the death sentence based on race." In re Pers. Restraint of Elmore, 162 Wn.2d 236, 270, 172 P.3d 335 (2007) (emphasis added); see also State v. Cross, 156 Wn.2d 580, 639, 132 P.3d 80 (2006); In re Pers. Restraint of Stenson, 153 Wn.2d 137, 148, 102 P.3d 151 (2004); Davis, 152 Wash.2d at 750-51, 101 P.3d 1; State v. Elledge, 144 Wn.2d 62, 80, 26 P.3d 271 (2001); State v. Woods, 143 Wn.2d 561, 615, 23 P.3d 1046 (2001); State v. Davis, 141 Wn.2d 798, 880, 10 P.3d 977 (2000); State v. Elmore, 139 Wn.2d 250, 985 P.2d 289 (1999); State v. Brown, 132 Wn.2d 529, 554-55, 940 P.2d 546 (1997); State v. Stenson, 132 Wn.2d 668, 759, 940 P.2d 1239 (1997); State v. Brett, 126 Wn.2d 136, 209, 892 P.2d 29 (1995); State v. Gentry, 125 Wn.2d 570, 655, 888 P.2d 1105 (1995); Benn, 120 Wash.2d at 680, 845 P.2d 289; State v. Lord, 117 Wn.2d 829, 910, 822 P.2d 177 (1991); State v. Rupe, 108 Wn.2d 734, 767, 743 P.2d 210 (1987).
¶ 209 In the past, we have stated that our statutorily mandated task when we conduct comparative proportionality review is not to "`ascertain, in essence, mathematical proportionality.'" Cross, 156 Wash.2d at 639, 132 P.3d 80 (quoting Brett, 126 Wash.2d at 212-13, 892 P.2d 29). But I fail to see how we can assure capital defendants or the legislature that race does not affect whether a capital defendant receives the death penalty in Washington when we brush aside the very statistical data that would assist us in making this determination.
¶ 210 In light of this history of our death penalty statutory scheme, the conclusion is inescapable that we must examine the impact of the defendant's race upon the administration of the death penalty in Washington. But we are not statisticians. We cannot evaluate the significance or importance of these numbers without the assistance of competent experts. Pursuant to RAP 9.11, I would direct the superior court to conduct an evidentiary hearing into the statistical significance of the racial patterns that emerge from the aggravated-murder trial reports. I would direct the superior court to hear such relevant evidence as the parties offer and to make findings on the significance of the racial patterns. We would then be in a position to perform the proportionality analysis mandated by the legislature.
¶ 211 Alternatively, I join in Justice Fairhurst's dissent.
Former Canon 2(A) provides: "Judges should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."
CJC Canon 2.9(A)(1). Judge Fleming's ex parte contact would almost certainly be permissible under this exception.
"(c) Was there, in the court's opinion, credible evidence of any mitigating circumstances as provided in LAWS OF 1981, ch. 138, § 7?....
"(d) Was there evidence of mitigating circumstances, whether or not of a type listed in LAWS OF 1981, ch. 138, § 7, not described in answer to (3)(c) above?" E.g., TR 29, at 6-7; see RCW 10.95.120(3)(c), (d). It is relatively simple to assign a numerical value to judges' answers to (3)(c). Answers to (3)(d) are more difficult to quantify. We have based our computation of mitigating circumstances on a database compiled by the dissent.
I believe the foregoing practices of including and excluding certain trial reports are favorable to the majority, as they generally minimize the number of life sentences listed and generously include other death penalty cases as comparable to Davis's case. In using this methodology, I hope to demonstrate that the random imposition of death sentences in Washington is not merely a manipulation of the relevant numbers but a reality that emerges even when viewing our cases in the manner most apt to demonstrate that Davis's sentence is proportional.
