[No. 73155-1. En Banc.]
Argued November 30, 2006. Decided September 27, 2007.
[1] Estoppel Basis Purpose. The doctrine of equitable estoppel is grounded in the principle that a party should be held to a representation made or position assumed if inequitable consequences would otherwise result to another party who has justifiably and in good faith relied thereon. [2] Estoppel Governments Elements In General. A claim of equitable estoppel against the government requires clear, cogent, and convincing evidence of (1) an admission, statement, or act by a government agent that is inconsistent with a claim later asserted; (2) reasonable reliance on the admission, statement, or act; (3) injury to the relying party if the government were allowed to contradict or repudiate the prior admission, statement, or act; (4) the necessity of estoppel to prevent a manifest injustice; and (5) no impairment of the exercise of governmental functions if estoppel is applied. [3] Estoppel Governments Disfavored Status. Application of equitable estoppel against the government is disfavored. [4] Criminal Law Crimes Discretion To Charge Equitable Estoppel Applicability In General. In general, equitable estoppel will not lie to limit a prosecuting authority's prosecutorial discretion. [5] Prosecuting Attorneys Cooperation Between Prosecutors Plea Negotiations Agreement Enforcement Equitable Estoppel. Equitable estoppel will not lie to require specific performance of a nebulous, disputed, unwritten agreement between two county prosecuting attorneys allegedly made in relation to plea negotiations between one of the prosecuting attorneys and an accused concerning charges filed against the accused in that prosecutor's county. [6] Criminal Law Punishment Death Penalty Special Sentencing Procedure Prosecutor's Conduct Decision To Seek Death Penalty Participation in Plea Negotiations on Other Charges Effect Equitable Estoppel. A county prosecuting attorney that charges a defendant with aggravated first degree murder is not equitably estopped from seeking the death penalty by virtue of having participated, to some degree, with the prosecuting attorney for another county in plea negotiations with the same defendant over other first degree murder charges in which the prosecuting attorney for the other county agreed not to seek the death penalty in exchange for the defendant's plea of guilty if no actual promise was made to the defendant about the additional charges, the defendant did not detrimentally act in reliance on any promise made, or application of equitable estoppel in the circumstances would impair the exercise of governmental functions by encroaching on the sovereign right of the prosecuting attorney to determine how crimes in that prosecutor's county should be prosecuted. [7] Criminal Law Plea of Guilty Plea Bargaining Plea Proposal Enforceability. The guaranty of fundamental fairness inherent in the due process clause of the Fourteenth Amendment does not provide a basis for specific performance of a proposal made by the State in plea bargain negotiations with a criminal defendant if the proposal was not made a part of the offer "accepted" by the defendant by pleading guilty. A criminal defendant does not have a constitutional right to a plea bargain; thus, the failure to enforce a plea proposal, as opposed to an "accepted" offer, cannot violate substantive due process of law. [8] Jury Right to Jury Criminal Case Constitutional Right Impartial Jury In General. A criminal defendant has the right to an impartial jury under the Sixth Amendment and Const. art. I, § 22. [9] Jury Selection Death Penalty Opposition Disqualification Necessity. To ensure an impartial jury in a capital case, the trial court must "death qualify" the jury by satisfying itself that prospective jurors will be able to impose the death penalty if the State meets its statutorily mandated burden. [10] Jury Selection Death Penalty Challenge for Cause Test. In a capital case, the trial court may dismiss for cause any prospective juror whose views on capital punishment would prevent or substantially impair the juror from performing the duties of a juror in accordance with the court's instructions and the juror's oath. An equivocal juror, i.e., one who expresses personal opposition to the death penalty yet offers some assurances that he or she could set aside those views, may be dismissed by the court if the court is left with a definite impression of the juror's inability to apply the law impartially; the trial court need not find the juror's bias "unmistakably clear" before the juror may be dismissed. [11] Jury Selection Death Penalty Opposition Disqualification Determination Review. The question of a prospective juror's competence to serve impartially on a capital case is a credibility determination that the trial court is necessarily in the best position to make. On review, the Supreme Court applies a deferential standard of review and will reverse the trial court's determination only if the trial court has manifestly abused its discretion. Deference to the trial court is appropriate because the trial court is in a position to assess the demeanor of the venire and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors. [12] Jury Selection Death Penalty Opposition Disqualification Determination Written and Oral Responses. In a capital case, the trial court may properly dismiss a prospective juror for cause where the court weighs the juror's written responses on the juror questionnaire and oral responses to questioning on voir dire and reasonably concludes therefrom that the juror's personal views would substantially impair the juror's ability to impose the death penalty. [13] Jury Selection Challenge for Cause Denial Use of Peremptory Challenge Effect. When a criminal defendant exercises a peremptory challenge to remove a juror after the trial court denies a defense motion to excuse the juror for cause, any potential violation of the defendant's Sixth Amendment right to an impartial jury is cured. [14] Jury Selection Examination Scope Discretion of Court Review Standard of Review. The scope of voir dire of prospective jurors in a criminal case is a matter within the trial court's sound discretion. A trial court's ruling on the scope of voir dire will not be disturbed on appeal absent an abuse of discretion and a showing that the accused's rights have been substantially prejudiced thereby. [15] Jury Selection Examination Religious Affiliations and Beliefs In General. Although a prospective juror's religious affiliations and beliefs generally are not proper subjects of inquiry during voir dire, they may be inquired into if the case involves religious issues or the information is a necessary predicate for a voir dire challenge. [16] Jury Selection Death Penalty Questioning of Prospective Jurors Religious Affiliation or Belief. A trial court in a capital case does not abuse its discretion or substantially prejudice the defendant's right to a fair trial by denying the defendant's request to have prospective jurors provide written responses to questions about their particular religious affiliations, about their religion's philosophies or teachings, or about what influence religion has had in their lives if the written questionnaire submitted to prospective jurors by the trial court contains questions that explore whether a prospective juror's religious views would compromise his or her ability to impartially apply the law regarding the death penalty and the trial court allows both parties to follow up on the jurors' responses to the questionnaire by examining prospective jurors as to their religious beliefs as they relate to the death penalty. [17] Criminal Law Trial Instructions Review Standard of Review. A claim of error in a criminal jury instruction is reviewed by an appellate court de novo. [18] Homicide First Degree Murder Aggravated First Degree Murder Aggravating Circumstances Multiple Murder Victims Common Scheme or Plan Definition Validity. In a prosecution for aggravated first degree murder in which it is alleged as an aggravating circumstance that the murder was committed as part of a common scheme or plan, the trial court is not required to define the phrase "common scheme or plan," as it consists of commonly understood words, but neither does the court err by defining "common scheme or plan" to mean either "a connection between the crimes in that one crime is done in preparation for the other" or "when a person devises an overarching criminal plan and uses it to perpetrate separate but very similar crimes." [19] Homicide First Degree Murder Aggravated First Degree Murder Aggravating Circumstances Multiple Murder Victims Common Scheme or Plan What Constitutes. For purposes of the common scheme or plan aggravating factor of RCW 10.05.020(10) for a charge of aggravated first degree murder, a common scheme or plan may be shown where (1) several crimes committed by the defendant constitute constituent parts of a plan in which each crime is but a piece of the larger plan or (2) the defendant devised a plan and used it repeatedly to perpetrate separate but very similar crimes. [20] Homicide First Degree Murder Aggravated First Degree Murder Aggravating Circumstances Proof Sufficiency of Evidence. In a prosecution for aggravated first degree murder, the evidence presented is sufficient to establish an alleged aggravating circumstance if any rational trier of fact, viewing the evidence in the light most favorable to the State, could have found the aggravating circumstance beyond a reasonable doubt. For purposes of this rule, circumstantial evidence and direct evidence are equally reliable. [21] Homicide First Degree Murder Aggravated First Degree Murder Aggravating Circumstances Commission of Felony Relationship Test. In a prosecution for aggravated first degree murder in which it is alleged as an aggravating circumstance that the murder was committed in furtherance of the commission of another crime, a murder occurs in furtherance of another crime if the murder and the other crime are in close proximity in terms of time and distance and are causally connected. [22] Indictment and Information Sufficiency Notice of Charge Essential Elements What Constitutes. For purposes of the constitutional requirement that a charging document include all of the essential elements of the crime charged so as to apprise the defendant of the nature of the crime and to permit the defendant to prepare an adequate defense, an element is not "essential" if its specification is unnecessary to establish the illegality of the behavior charged. [23] Homicide First Degree Murder Aggravated First Degree Murder Aggravating Circumstances Status Role. Aggravating circumstances do not constitute elements of the crime of aggravated first degree murder under RCW 10.95.020. They are, rather, sentence enhancers that increase the statutory maximum sentence for first degree murder from life with the possibility of parole to life without the possibility of parole or death. [24] Homicide First Degree Murder Aggravated First Degree Murder Aggravating Circumstances Information Elements of Aggravating Circumstances. Inasmuch as aggravating circumstances do not constitute elements of the crime of aggravated first degree murder under RCW 10.95.020, the elements of crimes used as aggravating circumstances do not have to be set forth in an information charging aggravated first degree murder. [25] Homicide First Degree Murder Aggravated First Degree Murder Aggravating Circumstances Information Absence of Mitigating Circumstances. The absence of mitigating circumstances is not an element of the crime of aggravated first degree murder and is not required to be alleged in an information charging aggravated first degree murder. [26] Homicide First Degree Murder Aggravated First Degree Murder Aggravating Circumstances Information Sufficiency In General. An information charging aggravated first degree murder is constitutionally sufficient if it adequately defines the base crime of first degree murder and enumerates the alleged aggravators. [27] Homicide First Degree Murder Aggravated First Degree Murder Aggravating Circumstances Instructions First Degree Murder as Included Offense Necessity. A defendant charged with aggravated first degree murder does not have an Eighth Amendment right to an instruction explicitly labeling first degree murder as an included "lesser crime" if the instructions and verdict forms submitted to the jury make it clear that the jury's initial task is to determine whether the State has proved all of the elements of first degree murder and, only if it finds the defendant guilty of first degree murder, may it consider whether the alleged aggravators have been proved. When so instructed, the jury has three options: (1) to find the defendant not guilty of first degree murder, (2) to find the defendant guilty of first degree murder without any aggravating circumstances, or (3) to find the defendant guilty of first degree murder with one or more aggravating circumstances. The jury therefore has the opportunity to convict the defendant only of first degree murder, in which case the Eighth Amendment does not compel a "lesser crime" instruction. [28] Evidence Opinion Evidence Expert Testimony Test. Under ER 702, a trial court may permit a witness qualified as an expert to provide an opinion regarding scientific, technical, or other specialized knowledge if such testimony will assist the trier of fact. The two key criteria for admission of expert testimony are a qualified witness and helpful testimony. [29] Evidence Opinion Evidence Expert Testimony Review Standard of Review. A trial court's decision to admit expert testimony under ER 702 is reviewed for an abuse of discretion. If the reasons for admitting the evidence are fairly debatable, the trial court's exercise of discretion will not be reversed on appeal. [30] Criminal Law Evidence Suppression Findings of Fact Failure To Assign Error Effect. Findings of fact entered by a trial court in support of a ruling to admit evidence in a criminal trial are verities before a reviewing court if no error is assigned to them. [31] Homicide First Degree Murder Identity Proof Placed in Issue by Defendant Necessity. In a prosecution for first degree murder, the State may present evidence of the identity of the perpetrator of the killing whether or not the defendant has placed identity in issue. Where the case proceeds to trial, the State is bound to establish every element of the charge, including the identity of the victim's killer. [32] Homicide First Degree Murder Identity Proof Crime Scene Linkage Assessment Expert Testimony. In a prosecution for first degree murder, a qualified expert in the fields of crime scene investigation, analysis, and linkage assessment may be allowed to testify to linkages between the charged murders and other murders the defendant has been convicted of committing as proof of the identity of the killer of the victims of the charged murders. Linkage assessment involves analyzing crime scenes to determine whether there are enough different and unique aspects to a behavior manifested at a crime scene to determine whether the behavior at one crime scene is linked to another crime scene. Such testimony does not constitute an improper opinion as to the defendant's guilt inasmuch as the purpose of showing identity is to demonstrate the probability that the same person committed the crimes; nor does such testimony constitute improper propensity evidence where the trial court has balanced its probative value against the danger of unfair prejudice and given an appropriate limiting instruction. [33] Criminal Law Trial Instructions Adherence by Jury Presumption In General. The jury in a criminal trial is presumed to have followed the instructions given by the trial court. [34] Criminal Law Review Harmless Error Admission of Evidence Overwhelming Evidence. A trial court's improper admission of evidence in a criminal trial constitutes harmless error if the evidence is of minor significance in relation to the overall, overwhelming evidence as a whole. [35] Evidence Opinion Evidence Expert Testimony Qualifications Practical Experience. Practical experience can be sufficient to qualify a witness as an expert. A witness need not have acquired knowledge through personal involvement in order to qualify as an expert. [36] Evidence Opinion Evidence Expert Testimony Qualifications Social Service Provider Testifying About Prostitution. A person who spent several years at a regional health district providing outreach services to prostitutes, which involved working in needle exchange programs, providing prostitutes with food, clothing, condoms, and treatment referrals, and contacting hundreds of individuals involved in prostitution, may provide expert testimony on the behavior of prostitutes even though the person has never been a prostitute and has never accompanied a prostitute on a job. [37] Evidence Opinion Evidence Expert Testimony General Behavior of Class of Persons No Opinion of Individual Habits. Expert testimony about the general practices of persons within a particular occupation or subculture may be admissible under ER 702 and does not constitute impermissible habit evidence under ER 406 if no testimony is given as to the habits of specific individuals within such occupation or subculture. [38] Criminal Law Review Harmless Error Admission of Evidence Cumulative Evidence. The erroneous admission of evidence in a criminal trial may be harmless if it is merely cumulative of other evidence in the record. [39] Criminal Law Indigents Expert Witnesses Necessity Review Standard of Review. Whether expert services are necessary for an indigent defendant's adequate defense such as to require public funding thereof under CrR 3.1(f) lies within the sound discretion of the trial court and shall not be overturned absent a clear showing of substantial prejudice. The trial court's denial of a defendant's request for public funding of expert services does not constitute an abuse its discretion and is not prejudicial to the defense if the record does not contain evidence that the proposed expert would have provided "services necessary to an adequate defense" within the meaning of CrR 3.1(f)(1). [40] Criminal Law Indigents Expert Witnesses Necessity Burden of Proof. The burden of establishing that expert services are necessary for an indigent defendant's adequate defense such as to require public funding thereof under CrR 3.1(f) is on the defendant seeking to have the public pay for such services. [41] Criminal Law Evidence Photographs Victim After Death Autopsy Photographs. An autopsy photograph of a homicide victim may be admitted in the trial of the defendant charged with the death if the photograph is accurate, it is relevant to a fact in issue, and its probative value outweighs its prejudicial effect. An autopsy photograph has probative value if it is used to illustrate or explain the testimony of the pathologist who performed the autopsy, if it is used to establish the existence of sufficient tissue for obtaining viable DNA material for testing, or if it is used to establish that the slayer had premeditated intent. A trial court's decision to admit an autopsy photograph is reviewed for an abuse of discretion. [42] Criminal Law Evidence Photographs Victim Before Death Test. Photographs of a homicide victim taken when the victim was alive may be admitted in the trial of a defendant charged with murder if such photographs are relevant to a fact in issue and are more probative than prejudicial. Where after-death photographs of the same victim have been admitted without objection by the defendant, in-life photographs likely do not add much additional prejudice to the proceedings. [43] Criminal Law Evidence Photographs Victim Before Death Review Standard of Review. The admission of in-life photographs of a homicide victim in a criminal trial is reviewed for an abuse of discretion. [44] Criminal Law Evidence Photographs Balancing Test. The admission of a photograph in a criminal trial depends on a balancing of its relevance against its prejudicial effect. [45] Criminal Law Evidence Photographs Discretion of Court. The admission of photographic evidence in a criminal trial is discretionary with the trial court and is reviewed for an abuse of discretion. [46] Evidence Demonstrative or Illustrative Evidence Favored Status. The use of demonstrative or illustrative devices to assist a jury in evaluating evidence is a favored approach. [47] Criminal Law Evidence Demonstrative or Illustrative Evidence Summary Chart Accuracy Necessity. A chart summarizing the evidence in a criminal trial can appropriately assist the jury, especially if the evidence is complex and is established by multiple witnesses. While the trial court has wide latitude when ruling on whether to admit demonstrative evidence, the court must make certain that the summary is based on, and fairly represents, competent evidence already before the jury. Where the State is doing the summarizing, the court must ensure that the summary chart is substantially accurate by allowing the defense full opportunity to object to any portions of the summary chart before it is seen by the jury. To guard against the possibility that the jury will treat the summary as additional evidence, the trial court must instruct the jury that the chart is not itself evidence but is only an aid in evaluating the evidence. [48] Criminal Law Evidence Demonstrative or Illustrative Evidence Summary Chart Discretion of Court. An appellate court will not find that a trial court abused its discretion in a criminal trial by allowing the State to present to the jury a summary chart of the evidence admitted if the defendant fails to demonstrate that the chart is not substantially accurate. [49] Criminal Law Trial Misconduct of Prosecutor Argument Defendant's Burden In General. A criminal defendant claiming prosecutorial misconduct bears the burden of establishing the impropriety of the prosecutor's comments and their prejudicial effect. A comment will be deemed prejudicial only if there is a substantial likelihood the misconduct affected the jury's verdict. [50] Criminal Law Trial Misconduct of Prosecutor Argument Prejudice Determination Context. The prejudicial effect of a prosecutor's improper comments is not determined by looking at the comments in isolation but by placing the remarks in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. [51] Weapons Possession Evidence of Ownership Relevance to Prosecution. Evidence of a criminal defendant's ownership of a firearm may be admitted against the defendant if the evidence is relevant to a fact in issue. [52] Criminal Law Trial Misconduct of Prosecutor Argument Harmless Error Comment Stricken From Record Order To Disregard. A prosecutor's improper remark is not grounds for a new trial if, upon the defendant's objection thereto, the trial court promptly and clearly orders the remark stricken from the record and later instructs the jury that it must disregard any evidence stricken by the court. [53] Criminal Law Trial Misconduct of Prosecutor Argument Prejudice Factors Strength of State's Case. A prosecutor's improper remark at trial may have only limited prejudicial effect if the record contains overwhelming evidence of the defendant's guilt or the defendant has made a damning concession. [54] Criminal Law Trial Misconduct of Prosecutor Argument Explanation of Crime Consistency With Instructions. A prosecutor's arguments about the elements of a crime does not constitute misconduct if the arguments comport with the jury's instructions. [55] Criminal Law Trial Misconduct of Prosecutor Argument Disparaging Defense Counsel. A prosecutor's remarks do not improperly disparage defense counsel if the prosecutor does not refer to defense counsel's role and no direct contrast between the roles of prosecutors and defense attorneys is drawn by the prosecutor. [56] Criminal Law Trial Misconduct of Prosecutor Argument Prejudice Attenuated Argument. A prosecutor's improper statement is not grounds for a new trial if is too attenuated to have been prejudicial. [57] Criminal Law Punishment Death Penalty Special Sentencing Procedure Prosecutor's Conduct Argument Criticism of Defendant's Religious Conversion and Expressions of Remorse Improper Comment on Right to Counsel. In the penalty phase of a capital case, a prosecutor's argument that the defendant's religious conversion and expressions of remorse lack credibility because there is evidence that the defendant revealed to defense counsel the location of a victim but did not share that information with the State for several months until it became advantageous to do so and that the defendant cannot "pass that off" to defense counsel does not constitute an improper comment on the defendant's right to counsel. [58] Criminal Law Punishment Death Penalty Special Sentencing Procedure Prosecutor's Conduct Argument Rebuttal of Mitigation Statements in Allocution Improper Comment on Right To Remain Silent. In the penalty phase of a capital case, a prosecutor's criticism of the defendant's refusal to reveal further information about the defendant's crimes does not constitute an improper argument on the defendant's Fifth Amendment right to remain silent if the comments are made in rebuttal of claims made by the defendant in allocution, where the prosecutor juxtaposes the defendant's statements of remorse and sympathy with what the defendant did not say; i.e., where the prosecutor's intent is to undermine the mitigation evidence provided by the defendant in allocution, the prosecutor does not improperly comment on the defendant's right to remain silent. [59] Criminal Law Punishment Death Penalty Special Sentencing Procedure Prosecutor's Conduct Argument Criticism of Defendant's Religious Conversion and Expressions of Remorse Rebuttal of Mitigation Arguments. In the penalty phase of a capital case, a prosecutor's criticisms of the defendant's religious conversion is not necessarily improper, particularly where the defendant has made the conversion a cornerstone of the mitigation evidence. [60] Criminal Law Trial Misconduct of Prosecutor Argument Harmless Error Prompt Correction by Trial Court. A prosecutor's improper argument is not grounds for a new trial if the trial court sustains an immediately made defense objection to the argument with an unequivocal response that the argument is improper and that the jury is to disregard the argument. [61] Criminal Law Punishment Death Penalty Concurrent or Consecutive Sentence. Nothing in the Sentencing Reform Act of 1981 (chapter 9.94A RCW) requires or authorizes a death sentence to be served consecutively to a sentence previously imposed on the defendant in a separate prosecution. [62] Criminal Law Punishment Death Penalty Review Elements. Under RCW 10.95.130, the Supreme Court reviews a sentence of death to determine (1) whether there is sufficient evidence to justify an affirmative finding to the question posed by RCW 10.95.060(4); (2) whether the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant; (3) whether the sentence was brought about through passion or prejudice; and (4) whether the defendant was mentally retarded within the meaning of RCW 10.95.030(2). [63] Criminal Law Punishment Death Penalty Review Mental Retardation Claim by Defendant Necessity. When the Supreme Court reviews a sentence of death under RCW 10.95.130(2), the issue of whether the defendant is mentally retarded within the meaning of RCW 10.95.030(2) does not arise if the defendant makes no claim of being mentally retarded. [64] Criminal Law Punishment Death Penalty Review Sufficiency of Evidence In General. There is sufficient evidence to support a verdict in the penalty phase of a capital case that there are not sufficient mitigating circumstances to warrant leniency if the Supreme Court, after viewing the evidence in the light most favorable to the State, determines that any rational trier of fact could have found sufficient evidence to support the verdict beyond a reasonable doubt. [65] Criminal Law Punishment Death Penalty Special Sentencing Procedure Mitigating Circumstances Effect. The mere presence of mitigating factors in the penalty phase of a capital case does not require the jury to grant leniency to the defendant. If the jury is convinced that the circumstances of the crime outweigh the mitigating factors, it may rationally conclude that leniency is not merited. [66] Criminal Law Punishment Death Penalty Review Passion or Prejudice Presumption. When reviewing a sentence of death for passion or prejudice, the Supreme Court will presume, in the absence of evidence to the contrary, that the jury heeded the trial court's explicit instructions that it should bear in mind that its verdict must be based upon reason and not upon emotion and that, throughout its deliberations, it must not be influenced by passion, prejudice, or sympathy. [67] Criminal Law Punishment Death Penalty Review Proportionality Similar Cases What Constitutes Death Eligible Cases. For purposes of proportionality review of a sentence of death under RCW 10.95.130(2)(b), which requires the Supreme Court to determine whether the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant, "similar cases" means other death eligible cases. [68] Criminal Law Punishment Death Penalty Review Proportionality Factors. In conducting statutory proportionality review of a sentence of death, the Supreme Court considers (1) the nature of the crime, (2) the aggravating circumstances proved at trial, (3) the defendant's prior convictions, and (4) the defendant's personal history. [69] Criminal Law Punishment Death Penalty Review Proportionality Purposes. The Supreme Court's touchstone when conducting proportionality review of a sentence of death under RCW 10.95.130(2)(b) is whether the penalty in the particular case is freakish or wanton or given for a forbidden reason. [70] Criminal Law Punishment Death Penalty Review Proportionality Aggravating Circumstances Nature Versus Quantity. When engaging in statutory proportionality review of a sentence of death, the Supreme Court considers the nature of the aggravating circumstances in the case at bar as compared to those in other cases and does not merely look at the number of aggravators involved. [71] Criminal Law Punishment Death Penalty Validity Prosecutorial Discretion Equal Protection. The discretion granted to prosecutors under the death penalty statute (chapter 10.95 RCW) does not deprive defendants potentially subject to capital prosecutions to the equal protection of the laws. [72] Criminal Law Punishment Death Penalty Validity Prosecutorial Discretion In General. The death penalty statute (chapter 10.95 RCW) contains adequate standards to guide prosecutorial discretion when deciding whether to seek the death penalty in individual cases. [73] Criminal Law Punishment Death Penalty Validity Cruel and Unusual Punishment Test. The death penalty as imposed under chapter 10.95 RCW does not violate the Eighth Amendment prohibition against cruel and unusual punishment as it does not allow the penalty to be wantonly or freakishly imposed; it directs and limits the jury's discretion so as to minimize the risk of arbitrary or capricious action; and it allows for particularized consideration of relevant aspects of the character and record of each defendant, and the circumstances of the offense, before the sentence is imposed. The protections specified in the statute, along with statutorily mandated proportionality review, prevent arbitrary and capricious application of the death penalty. [74] Criminal Law Punishment Death Penalty Validity Cruel Punishment. The death penalty as imposed under chapter 10.95 RCW does not violate the Const. art. I, § 14 prohibition against cruel punishment as it does not allow the penalty to be wantonly or freakishly imposed; it directs and limits the jury's discretion so as to minimize the risk of arbitrary or capricious action; and it allows for particularized consideration of relevant aspects of the character and record of each defendant, and the circumstances of the offense, before the sentence is imposed. The protections specified in the statute, along with statutorily mandated proportionality review, prevent arbitrary and capricious application of the death penalty. [75] Criminal Law Punishment Death Penalty Validity International Covenant on Civil and Political Rights. A sentence of death will not be invalidated under the International Covenant on Civil and Political Rights (21 U.N. GAOR Supp. No. 16, at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171) absent argument as to why the covenant should be read more broadly than the Eighth Amendment. [76] Criminal Law Punishment Death Penalty Review Proportionality More Egregious Cases Death Penalty Not Sought Effect. The fact that the State did not seek the death penalty in other cases involving the brutal murder of multiple victims is insufficient, alone, to render the death penalty disproportionate in another case; i.e., a sentence of death is not rendered disproportionate by the existence of other cases where the prosecuting attorney, for legitimate reasons, elected not to seek the death penalty. [77] Criminal Law Punishment Death Penalty Review Proportionality Similar Cases Reports on File Sufficiency. The database of reports trial courts are required to submit under RCW 10.95.120 is sufficiently complete for the Supreme Court to conduct meaningful proportionality review of sentences of death. CHAMBERS and J.M. JOHNSON, JJ., concur by separate opinions; SANDERS, J., dissents by separate opinion. Nature of Action: Prosecution for two counts of aggravated first degree murder while armed with a firearm. For each count, the State alleged three aggravating factors. The defendant had previously pleaded guilty to several other charges of first degree murder and attempted first degree murder that were filed in another county. The plea was entered in exchange for the prosecutor's agreement not to seek the death penalty. The defendant was sentenced to 408 years in prison for those convictions. Superior Court: The Superior Court for Pierce County, No. 00-1-03253-8, John A. McCarthy, J., on October 9, 2002, entered a judgment on a verdict finding the defendant guilty of both counts and sentenced the defendant to death based on a verdict that there were insufficient mitigating circumstances to warrant leniency in sentencing. Supreme Court: Holding that no error was committed in the guilt or penalty phase of the trial that would warrant reversal of the conviction or sentence, that the jury's verdict in the penalty phase is supported by the record, and that the sentence of death is not excessive or disproportionate and was not brought about through passion or prejudice, the court affirms the judgment and sentence. Thomas M. Kummerow-, Gregory C. Link-, and Nancy P. Collins- (of Washington Appellate Project), for appellant. Gerald A. Horne-, Prosecuting Attorney, and Kathleen Proctor-, Deputy, for respondent. En Banc Ά1 OWENS, J. At trial in 2002, Robert Lee Yates Jr. was convicted of the 1997 aggravated first degree murder of Melinda L. Mercer and the 1998 aggravated first degree murder of Connie L. Ellis. At the special sentencing hearing, the jury found insufficient mitigating circumstances to warrant leniency. Yates was sentenced to death. He appeals his convictions and sentence. Finding no reversible error in the guilt or penalty phases, we affirm the judgment and sentence of the trial court. FACTS AND PROCEDURAL HISTORY Ά2 The Pierce County Murders. Melinda Mercer turned to prostitution in November 1997 to support her heroin addiction. She was last seen alive on the night of December 6, 1997, leaving a Seattle tavern. According to the testimony of a friend, Mercer left the tavern to go to Aurora Avenue to make money for a heroin buy. On the following morning, Mercer's nude body was found in some blackberry bushes in a vacant lot in Tacoma, a lot used as a dump site for garbage. Some of her clothing had been thrown on top of her, but other items were never recovered. An autopsy revealed that she had been shot three times in the back left side of the head. Only one of the three bullets penetrated her brain, but it did so without affecting the areas that control consciousness and motor response. Found nearby was a .25 caliber shell casing. Bloodstains on her blouse indicated that she had been clothed and upright when shot in the head. After shooting her, the killer encased her head in four plastic grocery bags. The two outer bags contained very little blood, but blood had pooled inside the two inner bags. Mercer's nostrils and upper lip were visible through small tears in the two inner bags, which had been partially drawn into Mercer's mouth; the holes suggested that Mercer was alive when the bags were tied over her head and that she had used her teeth to create the holes. Although Mercer could have died solely from the gunshot wounds, the oxygen deprivation would have hastened her death. Ά3 Connie Ellis likewise worked as a prostitute to support a heroin addiction. Ellis had reentered a methadone treatment program on September 8, 1998, and she was last seen alive on September 17, 1998, when she received a dose of methadone at the clinic (a urinalysis taken at that time revealed that she was again using heroin). On October 13, 1998, approximately 11 months after the discovery of Mercer's body, a search and rescue dog that was engaged in an unrelated search in Pierce County discovered Ellis's decomposed body 10 feet down an embankment in a greenbelt used as a dump site. The degree of decomposition suggested that Ellis had been killed a month prior, not long after her September 17 visit to the methadone clinic. Ellis's body was clothed in jeans, a blouse, and socks, but lacked any undergarments. Ellis died of a single gunshot wound to the left side of her head. The wound was consistent with a .25 caliber bullet. Her head was encased in three plastic grocery bags. Ά4 The Spokane County Murders. On the day Ellis's body was discovered, the Spokane County Sheriff's Department learned of the Pierce County case. In a phone call to one of the Tacoma detectives investigating the Ellis murder, a Spokane detective asked, " 'Will you just tell me one thing? Does she have plastic bags on her head?' " 52 Verbatim Report of Proceedings (VRP) at 4855. Detectives from Tacoma and Spokane shared information gathered on the 2 Pierce County murders and 10 unsolved murders committed in Spokane County between 1996 and 1998. As did Mercer and Ellis, the 10 Spokane victims had a history of drug abuse and worked in prostitution (all were last seen in the East Sprague Street corridor in Spokane, an area known for prostitution). Ά5 On April 18, 2000, a year and a half after the discovery of Ellis's body, the Spokane police arrested Yates. The police first contacted him in July 1998, after the body of Michelyn Derning was discovered on July 7, 1998, a block north of Pantrol, a manufacturing company where Yates had worked since moving to Spokane in April 1996 after being released from the army. Yates gave the officer his name, date of birth, and address. A second contact occurred on November 9, 1998, when a police officer saw Yates pick up Jennifer Robinson in the East Sprague Street area. Yates told Robinson to say that he was one of her father's friends, and Robinson complied. When asked for identification, Yates gave the officer his driver's license. The officer ultimately let them move on, and Yates dropped Robinson off a few blocks away. Following the Pantrol interview and the Robinson incident, the police learned that Yates had once owned a white Corvette, a type of car that witnesses had reported seeing in relation to the disappearance of two of the earliest victims, Jennifer Joseph and Heather Hernandez. Late in 1999, a Spokane detective interviewed Yates, who claimed he never patronized Spokane prostitutes and owned no handguns. He admitted that he had previously owned a white Corvette and had sold it to a friend, Rita Jones. The police located Yates's white Corvette in January 2000 and discovered under the front passenger seat the white mother-of-pearl button missing from Joseph's blouse. Bloodstains found in the Corvette matched Joseph's deoxyribonucleic acid (DNA). Ά6 Following Yates's arrest, the police developed additional evidence. On the day after the arrest, Christine Smith, a former prostitute, contacted the police to identify Yates as the person who had picked her up in Spokane in August 1998 and shot and robbed her in the back of his van. In May 2000, officers searched Yates's black Ford van, in the back of which Yates had installed a homemade wooden platform bed covered with carpet. The carpet, padding, and underlying wood tested positive for blood (later identified as that of Ellis and Murfin), Ά7 Yates was ultimately charged in Spokane County Superior Court with 10 counts of first degree murder and 1 count of attempted first degree murder. On October 13, 2000, in exchange for the Spokane County Prosecuting Attorney's agreement not to seek the death penalty, Yates pleaded guilty to the Spokane County crimes, as well as to two counts of first degree murder in Walla Walla County and one in Skagit County. His statement on plea of guilty did no more than acknowledge that he had committed with premeditated intent the murders listed in the amended information, which had provided nothing more than the names and dates of the murders. Yates was sentenced to 408 years in prison. Ά8 Prosecution of the Pierce County Murders. On July 17, 2000, the Pierce County Prosecuting Attorney filed an information charging Yates with the aggravated first degree murders of Mercer and Ellis. On each count, the State alleged three aggravating factors and a firearm enhancement. At the time the information was filed, the State also provided Yates with notice of its consideration of a special sentencing proceeding, inviting Yates to submit mitigation material to the prosecuting attorney. At Yates's arraignment on October 31, 2000, he entered a plea of "not guilty," and the court read the State's notice of consideration of a special sentencing proceeding. The court entered an order extending until January 15, 2001, the State's deadline for filing its notice to seek the death penalty, a notice that the State timely filed on January 12, 2001. Ά9 Opening statements were delivered on August 12, 2002, and the State rested its case-in-chief on September 11, 2002. The defense rested the following day. The jury found Yates guilty on both counts of first degree murder and likewise determined that, with respect to each count, the State had proved beyond a reasonable doubt the existence of all three aggravating circumstances. Additionally, the jury found that Yates committed the murders while armed with a firearm. After hearing the evidence and closing arguments in the special sentencing hearing, the jury returned a verdict for a death sentence. At sentencing, the court rejected Yates's argument that his death sentence had to be served consecutively to the 408-year sentence imposed in Spokane County. Yates filed a timely notice of appeal. ISSUES PRESENTED A. Issues Raised by Defendant 1. As a result of the Pierce County Prosecuting Attorney's contacts with the Spokane County Prosecuting Attorney during the preliminary plea negotiations in Spokane County, should Pierce County have been barred from seeking the death penalty for the two murders that Yates committed in Pierce County? 2. Did the trial court violate Yates's right to a fair and impartial jury? 3. In jury instruction 20, did the trial court substantially lower the State's burden of proof by improperly defining the aggravating circumstance of RCW 10.95.020(10), commission of the murders as "part of a common scheme or plan"? 4. Did the State offer sufficient evidence to prove the three alleged "aggravating circumstances" beyond a reasonable doubt? 5. Did the second amended information fail to allege all of the elements of the crime of aggravated first degree murder? 6. Did the trial court deny the jury the opportunity to convict Yates of the lesser offense of first degree murder? 7. Did the trial court abuse its discretion regarding expert testimony? 8. Did the trial court abuse its discretion by admitting certain photographic evidence? 9. Did the trial court abuse its discretion by permitting the State to use exhibit 544, a large summary chart of the evidence that the State presented regarding the Spokane County and Pierce County crimes? 10. Did Yates meet his burden of proving that the prosecutor engaged in misconduct and that the misconduct prejudiced Yates's right to a fair trial? 11. Did the trial court err in ordering Yates to serve the sentence imposed for the Pierce County murders concurrently with the sentence imposed for the Spokane County crimes? B. Mandatory Death Sentence Review and Related Issues Raised by Defendant 1. Was there "sufficient evidence to justify the affirmative finding to the question posed by RCW 10.95.060(4)"? (RCW 10.95.130(2)(a)) 2. Was the sentence of death "brought about through passion or prejudice"? (RCW 10.95.130(2)(c)) 3. Was the sentence of death "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant"? (RCW 10.95.130(2)(b)) 4. Is Washington's death penalty statute unconstitutional? ANALYSIS A. Issues Raised by the Defendant Ά10 1. Plea Bargaining. Yates claims that, in light of the Pierce County Prosecuting Attorney's initial involvement in the Spokane County plea-bargaining process, Pierce County should have been barred from seeking the death penalty for the two murders that he committed in Pierce County. Yates contends that Pierce County's decision to seek the death penalty violated the doctrines of equitable estoppel and fundamental fairness. a. Equitable Estoppel Ά11 On January 23, 2002, Yates filed a motion arguing that Pierce County should be equitably estopped from seeking the death penalty. The court ordered an evidentiary hearing. Because the parties anticipated that Pierce County Executive John Ladenburg would be testifying about events that had occurred when he was Pierce County's elected prosecutor, the court ordered that the evidentiary hearing be held before a visiting judge. After hearing testimony, Grays Harbor County Superior Court Judge Gordon Godfrey denied Yates's motion and issued findings of fact and conclusions of law. Yates now assigns error to the denial of the motion and, in particular, to the trial court's "ruling that absent a challenge to his plea agreement entered in Spokane County, Mr. Yates could not seek to prevent the State from pursuing the death penalty in this case." Br. of Appellant at 2, Assignments of Error 2-3. Yates also assigns error to findings of fact 4, 5(a) and (b), 11, and 12. Id. at 2-3, Assignments of Error 4-7. Ά12 Factual Background. At the evidentiary hearing, the court heard testimony from Spokane County Prosecuting Attorney Steven Tucker, former Pierce County Prosecuting Attorney John Ladenburg, and others. The testimony (and the court's unchallenged factual findings) established that Yates was arrested in Spokane County on April 18, 2000, and charged with the murder of Jennifer Joseph. On May 18, he was charged with the murders of seven additional Spokane women, as well as the attempted murder and attempted robbery of a ninth Spokane woman. Yates's public defender, Richard Fasy, "began to pursue the possibility of 'global resolution' discussions with the Spokane County Prosecuting Attorneys Office." Clerk's Papers (CP) at 2745, Finding of Fact (FF) 2. At a mid-June meeting of the Washington Association of Prosecuting Attorneys (WAPA), Tucker, Ladenburg, and other county prosecutors met informally about Yates's case. Tucker testified that, following the meeting, he believed he had some measure of consent to handle the Pierce County murders because Ladenburg "didn't say I couldn't handle them." 14 VRP at 649-50. Ladenburg testified that he never gave Tucker permission to handle the Pierce County cases and that he did not believe Tucker was seriously contemplating a plea resolution at that time. The trial court found that, "[b]ased on the conversations at that meeting with the prosecuting attorneys, including John W. Ladenburg, and based on the prosecutorial protocol of handling multi-venue prosecutions in one venue, Mr. Tucker believed and had reason to believe that he had the authority to prosecute the Pierce County murders . . . . Mr. Tucker subsequently conveyed that understanding to defense counsel, Mr. Fasy." CP at 2745, FF 3. Ά13 After the WAPA conference, some media reports raised Ladenburg's concern that Tucker was seriously considering a Yates plea bargain. According to the trial court's finding, Ladenburg took the following action: When it became apparent to the Pierce County Prosecutors Office that Mr. Tucker was anticipating plea negotiations which included the possible elimination of the death penalty a phone conference was arranged between Mr. Tucker, Mr. Ladenburg, and other death penalty familiar prosecutors . . . . During that call, Mr. Ladenburg expressed his disapproval of Mr. Tucker's suggestion that he might plea bargain the death penalty in this case at this juncture. Mr. Ladenburg also told Mr. Tucker that if he was considering plea bargaining the death penalty Mr. Ladenburg would not allow Mr. Tucker to handle the Pierce County cases. During this phone call Mr. Ladenburg revoked any and all authority implied or otherwise that he had given to Mr. Tucker to prosecute or plea bargain the Pierce County murder cases that are the subject of this matter. Id., FF 4 (emphasis added). Ladenburg suggested that the call occurred within days of the WAPA conference. Tucker testified that it occurred on June 28. The trial court found that the discussions between Tucker and Yates's attorney "became more 'concrete' " at the end of June: "The window of time for these discussions was June 28 to July 17, 2000." Id., FF 2. Ά14 Despite the June phone call following the WAPA conference, "[o]n July 1, 2000 Mr. Tucker made the decision to proceed with a plea agreement with the defendant" and, on July 13, faxed to Ladenburg a draft plea agreement that included the Pierce County murders. Id. at 2746, FF 6. Three days later, Tucker faxed a letter to Ladenburg "requesting written authorization to file the Pierce County cases in Spokane County." Id., FF 7. On the following day, Monday, July 17, 2000, Ladenburg notified Tucker by letter and voice mail that Pierce County would file its own cases in Pierce County. On that same day, Ladenburg's office filed an information charging Yates with two counts of first degree murder with aggravating circumstances. Ά15 After the Pierce County charges were filed, Tucker and Yates's attorney continued to negotiate a plea agreement for the 10 Spokane murders. Although the July 13 draft had required Yates to disclose the location of Melody Murfin's remains and to assist in locating the .25 caliber handgun he had used in some of the murders, Yates did not disclose the location of Murfin's remains until October 2000, and he "never provided any assistance in the location of the .25 caliber handgun." Id., FF 6. On October 13, 2000, three months after Tucker's initial draft and the filing of the Pierce County charges, Yates and the Spokane County Prosecuting Attorney entered into a plea agreement. The agreement provided that, in exchange for Yates's guilty plea to 13 counts of first degree murder (10 in Spokane County, 2 in Walla Walla County, and 1 in Skagit County), as well as 1 count of attempted first degree murder in Spokane County, the Spokane County Prosecuting Attorney would not seek the death penalty. Ά18 We hold that a criminal defendant may not rely on equitable estoppel to challenge a plea agreement. Here, Yates attempts to use equitable estoppel to gain what amounts to specific performance of a promise allegedly made in the context of plea negotiationsthat is, Pierce County's alleged promise not to seek the death penalty for Yates's murders of Mercer and Ellis. As this court recently held in State v. Bisson, 156 Wn.2d 507, 130 P.3d 820 (2006), specific performance of a provision in a plea agreement is available "only where the prosecutor's promise was not susceptible to more than one meaning." Id. at 524. Given that a defendant is not entitled to specific performance of an ambiguous provision in the written plea agreement itself, a defendant certainly should not be permitted to invoke equitable estoppel as a means of gaining specific performance of a nebulous, disputed, unwritten agreement between two county prosecutors. A defendant's reliance on equitable estoppel in the plea-bargaining context would not only create some murkiness in our law governing plea agreements, it could well have a chilling effect on the plea-bargaining process itself, making prosecutors reluctant to engage in such negotiations. We conclude that case law and public policy foreclose a defendant's use of equitable estoppel to alter the outcome of the plea-bargaining process. Ά19 Even if we were to permit a defendant to rely on equitable estoppel to seek enforcement of a promise allegedly made during plea negotiations, Yates's equitable estoppel argument would be unavailing. The trial court properly concluded that Yates had failed to provide clear, cogent, and convincing evidence of the essential elements of an equitable estoppel claim against the government. CP at 2747, Conclusion of Law (CL) 1. b. Fundamental Fairness Ά21 In State v. Wheeler, 95 Wn.2d 799, 631 P.2d 376 (1981), this court considered as an issue of first impression whether a defendant was entitled to specific performance of a prosecutor's initial plea proposal. As the court unequivocally stated, "[t]he weight of authority is that, absent some detrimental reliance by the defendant, the State may withdraw from any plea agreement prior to the actual entry of a guilty plea." Id. at 803. The Wheeler court explicitly rejected the notion that " 'the right to fundamental fairness embraced within substantive due process' " required enforcement of a plea proposal. Id. at 803-04 (quoting Cooper v. United States, 594 F.2d 12, 18 (4th Cir. 1979), abrogated by Mabry v. Johnson, 467 U.S. 504, 104 S. Ct. 2543, 81 L. Ed. 2d 437 (1984)). In the words of the Wheeler court, "[a] defendant does not have a constitutional right to plea bargain, see Weatherford v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977), and thus the failure to enforce a plea proposal, as opposed to an 'accepted' offer, cannot violate substantive due process." Id. at 804. Accordingly, we reject Yates's argument because the doctrine of fundamental fairness is inapplicable to proposals made in the context of plea negotiations. Ά22 2. Jury Selection. Yates contends that the trial court violated his federal and state constitutional right to a fair and impartial jury by granting the State's challenges to jurors 39, 52, and 74; by denying the defense's challenges to jurors 9, 29, 100, and 120; and by disallowing the defense's proposed voir dire questions regarding religious affiliation. a. Trial Court's Exclusion of Jurors 39, 52, and 74 for Cause Q And your firm belief thatyour strong belief that the death penalty, you're generally opposed to it, won't affect your ability to follow his instructions; is that right? A No. Id. at 2282. It is unclear whether juror 39 was agreeing with defense counsel's statement or responding negatively to the tag question "is that right?" The trial court followed up: I need to understand your answers. . . . . . . . . . . Would you ever vote for the death penalty? A I want to say, because my beliefs says, no. I would do that if it has occurred, yes, if I'm supposed to, weighing all the evidence, yes. Id. at 2282-83. Ά26 Weighing the State's motion to excuse juror 39 for cause, the trial court pointed to her written responses that the death penalty should never be imposed and that she was "opposed in every possible circumstance." Id. at 2286. The trial court granted the State's motion: "I'm convinced that her ability is substantially impaired by her personal beliefs, and even in response to my question she drew upon her personal beliefs." Id. Here, the trial court's ruling was not a manifest abuse of discretion. The court weighed her written and oral responses before concluding that her personal views would substantially impair her ability to impose the death penalty. Ά27 Juror 52 responded "[n]o" to the following written question: "In your opinion, should death ever be imposed as a sentence for punishment of a crime?" CJQ 52, at 29. To describe her view of the death penalty, she checked the box "Generally opposed with very few exceptions." Id. Asked to "state in greater detail [her] opinion about the death sentence," she wrote, "I guess because I've been brought up in church we're not to take a life." Id. Similarly, her "best argument against the death penalty" was that "[n]o one has the right to take another life." Id. at 30. In response to questions from the State, she explained that she was a lifelong member of the Church of God and Christ, which opposed ever taking a life. 35 VRP at 2403-04. When asked whether she could vote for the death penalty, she reiterated that her religious views made such a question uncomfortable for her: "Would I vote? That's a hard thing, because it's like going against what I've been taught to go against, to take a life." Id. at 2410, 2412. However, under questioning by defense counsel, juror 52 responded affirmatively to a series of questions regarding civic duty and her ability to follow the law impartially. Id. at 2413-15. Ά28 The trial court granted the State's motion to excuse juror 52 for cause. Id. at 2418. The court concluded that juror 52's "religious beliefs and personal commitment are such that she would decline the death penalty in the case." Id. While the trial court heard her responses to defense counsel's structured questioning, the court reasonably concluded that such responses were of less consequence than her written and oral statements about the importance of her church's teachings on capital punishment. See Patton v. Yount, 467 U.S. 1025, 1039, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984) (observing that the trial court "properly may choose to believe those statements that were the most fully articulated or that appeared to have been least influenced by leading"). The ruling was not a manifest abuse of the trial court's discretion. Ά29 In her written responses, juror 74 unequivocally expressed her "[v]ery" strong opposition to the death penalty. CJQ 74, at 29. She stated that the death penalty should never be imposed and described her view of the death penalty by checking the box "Opposed in every possible circumstance." Id. (emphasis added). She wrote that she did not "believe in the death penalty," that a "person's life [was] not [hers] to take," and that there was "[n]o good argument" for the death penalty. Id. at 29, 30. In response to the State's questioning, she affirmed her written answers and explained that her views, which she had held for "[m]ost of [her] adult life," were based on a religious and philosophical belief "that if we cause another human being death, we come down to the level of that person." 37 VRP at 2686. Juror 74 admitted that there was "probably" no possibility she could vote for the death penalty because "it would be a real difficult thing for [her] to do" and "would cause [her] an extreme amount of anxiety." Id. at 2686-87. When defense counsel asked her if she could follow the court's instructions impartially, her answer was equivocal: "Yeah, if I had to, probably." Id. at 2687-88 (emphasis added). Ά30 The trial court's decision to grant the State's motion to exclude juror 74 for cause was plainly no abuse of discretion. In light of her emphatic written and oral statements, the court reasonably concluded "that her beliefs or opinions would substantially impair the performance of her duties as a juror." Id. at 2691. b. Trial Court's Failure to Exclude Jurors 9, 29, 100, and 120 for Cause c. Trial Court's Ruling on Proposed Voir Dire Regarding Religious Affiliations Ά33 Yates claims that the trial court erred when it refused to include the following proposed questions in the jurors' written questionnaire: 1. What is your religious affiliation, if any? 2. What is the fundamental teaching of your religion? 3. What influence has religion had in your life? 4. Describe your religious beliefs or philosophy. CP at 2827. Expressing reservations about the first question, the trial court rejected it, subject to "getting some additional information from [the defense] or the State on whether that direct question can be asked"; the court apparently received no supplemental information. 23 VRP at 1200 (emphasis added). Regarding the three additional questions, the trial court invited counsel to expand questions 102 and 103, which inquired into the effect of the jurors' religious beliefs on their ability to impose the death penalty. See supra note 11. However, here again, nothing in the record suggests that the defense sought any modification of the two questions. 23 VRP at 1190-91, 1200-01. Additionally, the trial court expressly stated that counsel could "appropriate[ly] . . . ask follow-up questions" of any jurors who responded affirmatively to the question, "Do you have any religious or philosophical views which may cause you to feel uncomfortable sitting as a juror in a criminal case?" 32 VRP at 1791; CP at 3281 (emphasis added). The record shows that the attorneys were permitted to follow up on questionnaire responses regarding the effect of a juror's religious beliefs on his or her ability to impose the death penalty. See e.g., 35 VRP at 2403-04, 2408-15; 36 VRP at 2507. In some instances, defense counsel asked jurors directly about their notions of mercy. See e.g., 33 VRP at 1971; 39 VRP at 2965, 3001; 40 VRP at 3244. Ά34 Because the trial court gave Yates ample latitude to explore the prospective jurors' religious beliefs as they related to the death penalty, Yates cannot show that the trial court's tentative rejection of his proposed question on religious affiliation "substantially prejudiced" his rights to a fair jury. Frederiksen, 40 Wn. App. at 753. In light of the foregoing facts, we conclude that the trial court's ruling regarding Yates's proposed voir dire questions was not an abuse of discretion. A "common scheme or plan" means there is a connection between the crimes in that one crime is done in preparation for the other. A "common scheme or plan" also occurs when a person devises an overarching criminal plan and uses it to perpetrate separate but very similar crimes. CP at 4106, Jury Instruction 20. The court's instruction and the State's proposed instruction There are two different situations wherein the "plan" exception to the general ban on prior bad acts evidence may arise. One is where several crimes constitute constituent parts of a plan in which each crime is but a piece of the larger plan. . . . A simple example would be a prior theft to acquire a tool or weapon to perpetrate a subsequently executed crime. The other situation arises when an individual devises a plan and uses it repeatedly to perpetrate separate but very similar crimes. Id. at 854-55 (emphasis added). Rejecting the notion that the prior act had to be causally connected to (and done in preparation for) the charged act, the Lough court concluded that under ER 404(b) the State, in order to prove the charged crimes of indecent liberties and attempted rape, was entitled to present evidence that the defendant had previously drugged and raped four other women in much the same manner. Id. at 855-61. A "common scheme or plan" means there is a connection between the crimes in that one crime is done in preparation for the other or where crimes are part of a general criminal purpose. A general criminal purpose occurs when a person devises a general plan, and uses it to perpetrate separate but very similar crimes. CP at 3974, State's Proposed Jury Instruction 17. Ά37 In the present case, Yates argues that the trial court erred when it defined "common scheme or plan" in RCW 10.95.020(10) by relying on the Lough court's definition of the phrase for purposes of ER 404(b). Yates's argument is unpersuasive for at least two reasons. First, Yates ignores this court's earlier reliance on Lough in State v. Pirtle, 127 Wn.2d 628, 904 P.2d 245 (1995). In Pirtle, the court turned to "the traditional understanding of common scheme or plan within the rules of evidence" and specifically stated that "[t]his understanding . . . sheds light on the nature of the connection needed between the murders" for purposes of RCW 10.95.020(10). Id. at 662. The Pirtle court quoted only the first of the two Lough alternatives because Pirtle's murders were committed as " 'constituent parts of a plan in which each crime is but a piece of the larger plan.' " Id. (quoting Lough, 125 Wn.2d at 855). The Pirtle court found "ample evidence" that the murder of the second Burger King employee was connected to Pirtle's "larger criminal purpose" of robbing the Burger King and killing the first victim. Id. at 663. While the facts in Pirtle were applicable only to the first of the Lough court's alternative definitions of "common scheme or plan," the Pirtle court nonetheless broadly declared the Lough court's ER 404(b) definition a source of enlightenment for interpreting the same phrase in RCW 10.95.020(10). Ά38 Additionally, the second of the Lough court's alternative definitions of "common scheme or plan" comports with legislative intent. Were this court to adopt Yates's narrow notion of the "common scheme or plan" aggravator, the court would necessarily be holding "that the legislature did not intend to enact an aggravating circumstance applicable to serial killers who use the same plan or formula over an extended period of time to kill multiple victims." Br. of Resp't at 103; see id. at 104 (describing legislative history). Ά39 Thus, we hold that in jury instruction 20 the trial court properly defined "common scheme or plan." Ά40 4. Sufficiency of Evidence Regarding "Aggravating Circumstances." Yates concedes that the evidence was sufficient to prove beyond a reasonable doubt that he murdered Mercer and Ellis with premeditated intent. Mr. Yates has waited patiently for almost two years for me to say to you that he killed Melinda Mercer and Connie LaFontaine Ellis. He did. We are in trial because the State, through the Pierce County prosecutor, has decided that these are not premeditated murders as Mr. Yates has pled guilty to in Spokane, but premeditated murder with aggravating circumstances. 50 VRP at 4366. a. Commission of Murders as "part of a common scheme or plan" (RCW 10.95.020(10)) Ά42 As discussed above, to prove the "common scheme or plan" aggravating factor, the State was required to show that Yates "devise[d] an overarching criminal plan and use[d] it to perpetrate separate but very similar crimes." CP at 4106, Jury Instruction 20. Relying on additional evidence from the Spokane murders, Ά43 Yates does not dispute the State's evidence; rather, he rests his challenge on the unpersuasive contention that the trial court incorrectly defined "common scheme or plan" in jury instruction 20. Viewing the evidence in the light most favorable to the State, we hold that "any rational trier of fact could have found" that Yates's murders of Mercer and Ellis were "part of a common scheme or plan." Brown, 132 Wn.2d at 607; RCW 10.95.020(10). b. Commission of Murders "in furtherance of . . . [r]obbery" (RCW 10.95.020(11)(a)) Ά45 The State presented evidence that women engaged in prostitution typically require payment prior to the negotiated sexual act and that, because they are often robbed, they commonly hide their money in their shoes, brassieres, or underwear. 50 VRP at 4432-33. On the evening that Mercer was last seen, she was wearing a tank top, a brassiere, a floral skirt, shoes, a denim jacket, and a black coat, and she was carrying a purse. 55 VRP at 5326-28, 5344-45. However, when Mercer's nude body was discovered the following day, her tank top, brassiere, shoes, and purse were missing, and no cash was found on or near her body. Id. at 5385-86; 56 VRP at 5468. Similarly, Ellis's body was found clothed in a blouse, jeans, and socks, but lacking undergarments; a single shoe was found some distance from the body, and no purse or money was found nearby. 57 VRP at 5752-54; 58 VRP at 5906-07. Additionally, the State provided evidence that Yates and his wife had money problems that prompted them to make periodic inquiries regarding Yates's paychecks for National Guard duty. 58 VRP at 5831-33. Ά46 Viewed in the light most favorable to the State, the State's circumstantial evidence could have persuaded a rational trier of fact that Yates murdered Mercer and Ellis in furtherance of robbery. The jury could have reasonably believed that Yates negotiated the price of a sexual act, paid up front, murdered the women, and then took their money, disturbing or taking articles of clothing in which the women were likely to have concealed their money. c. Commission of Murders "to conceal the commission of a crime" (RCW 10.95.020(9)) Ά47 Yates contends that the evidence was insufficient to support the third alleged aggravating factorthat he committed the murders of Mercer and Ellis "to conceal the commission of" the crime of patronizing a prostitute. RCW 10.95.020(9); RCW 9A.88.110(1)(c), (3). The State presented the testimony of Jennifer Robinson to establish that Yates was anxious to avoid being identified by the police as a person who hired prostitutes. According to Robinson, Yates picked her up on November 9, 1998, and asked for oral sex. When a police car pulled up behind them, Yates told Robinson to tell the police officer that Yates knew her father and was giving her a ride home. After the officer allowed them to move on, Yates seemed "really nervous" and "really scared"; he dropped Robinson off some blocks away and steadfastly declined any interest in the sex act previously requested. 53 VRP at 5007. Additionally, the State presented evidence that Yates had applied for a full-time position with the National Guard and that a prosecution for patronizing prostitutes would have adversely affected his potential for advancing in the military. 58 VRP at 5830-31, 5826-27. Ά48 Even when viewed in the light most favorable to the State, this circumstantial evidence is insufficient to prove that Yates murdered Mercer and Ellis to conceal the misdemeanor crime of patronizing prostitutes. If Yates had killed every prostitute he patronized, one could rationally infer that he intended to eliminate any evidence that he had committed the misdemeanor of patronizing prostitutes, but as the defense showed, Yates patronized other prostitutes without killing them. Ά49 In sum, the evidence was sufficient to prove to a rational trier of fact that Yates committed the murders of Mercer and Ellis as "part of a common scheme or plan" and "in furtherance of . . . [r]obbery." RCW 10.95.020(10), (11)(a). Ά50 5. Sufficiency of Second Amended Information. Under Washington's capital punishment statutes, the jury must make three factual determinations before the death penalty can be imposed. First, the jury must conclude that the State has proved beyond a reasonable doubt the elements of the substantive crime of first degree murder: "A person is guilty of murder in the first degree when . . . [w]ith a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person." RCW 9A.32.030(1)(a). Ά51 The second amended information charged Yates with two counts of "the crime of MURDER IN THE FIRST DEGREE WITH AGGRAVATING CIRCUMSTANCES." CP at 1003-04. As to count I, the information specified that Yates "with premeditated intent to cause the death of another person, did shoot Melinda L. Mercer, thereby causing the death of Melinda L. Mercer," and it asserted that "aggravated circumstances exist, to-wit: the murder was committed in the course of, in furtherance of, or in immediate flight from the crime of robbery in the first or second Degree and/or defendant committed the murder to conceal the commission of a crime; and/or defendant killed more than one victim and the murders were part of a common scheme or plan during the period of May 1996 through October 1998." Id. at 1003. The information cited RCW 9A.32.030(1)(a) and RCW 10.95.020(9), (10), (11). Id. at 1004. Count II substituted the name of the second victim, Connie L. Ellis, but otherwise mirrors count I. Id. The statutory death notice here is not an element of the crime of aggravated murder. Instead, the notice simply informs the accused of the penalty that may be imposed upon conviction of the crime. While we require formal notice to the accused by information of the criminal charges to satisfy the Sixth Amendment and art. I § 22, we do not extend such constitutional notice to the penalty exacted for conviction of the crime. State v. Clark, 129 Wn.2d 805, 811, 920 P.2d 187 (1996) (citation omitted). The purpose of the charging documentto enable the defendant to prepare a defenseis distinct from the statutory notice requirements regarding the State's decision to seek the death penalty. Ά56 6. Jury Instruction on First Degree Murder. The court's instructions included a "to convict" instruction for each of the two counts of first degree murder. The instructions provided that, "[t]o convict the defendant of the crime of murder in the first degree," the State must prove five elements beyond a reasonable doubt: that Yates killed Mercer and Ellis, that he acted with intent to cause the deaths, that the intent was premeditated, that Mercer and Ellis died as a result of Yates's acts, and that the acts occurred in this state. See CP at 4099, 4108, Jury Instructions 13, 22. As to each count, the jury returned a verdict form stating that it found Yates guilty of the crime of first degree murder. See id. at 4163, Verdict Form A Count I (Melinda Mercer); id. at 4167, Verdict Form B Count II (Connie Ellis). Immediately following each of the "to convict" instructions on first degree murder were instructions on the State's burden of proving beyond a reasonable doubt the existence of any or all of the three alleged "aggravating circumstances." See id. at 4100, 4109, Jury Instructions 14, 23. Those instructions made it clear that the jury's determination regarding aggravators was necessary only "[i]f you find the defendant guilty of premeditated murder in the first degree." Id. Just as the jury had to return a verdict form regarding each of the "to convict" instructions, the jury was required to return special verdict forms setting forth its unanimous determinations regarding each of the three "aggravating circumstances" on the two counts. See id. at 4164-65, 4168-69. For both the "to convict" instruction on first degree murder and the instruction on the alleged aggravators, the court relied on the 11 Washington Practice: Washington Pattern Jury Instructions: Criminal (WPIC). See WPIC 26.02, 30.03. Ά58 7. Expert Witnesses. Yates argues that the trial court abused its discretion by admitting the expert testimony of FBI (Federal Bureau of Investigation) Agent Mark Safarik regarding crime scene analysis, and by permitting Lynn Everson to testify as an expert regarding the subculture and practices of women who work in prostitution. Yates also contends that the trial court erred by withholding funding for his proposed defense expert on prostitution. a. Safarik's Testimony b. Everson's Testimony c. Defense's Requested Funding for Expert (1) A lawyer for a defendant who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense in the case may request them by a motion to the court. (2) Upon finding the services are necessary and that the defendant is financially unable to obtain them, the court . . . shall authorize the services. (Emphasis added.) As this court stated in State v. Young, 125 Wn.2d 688, 691, 888 P.2d 142 (1995), "[w]hether expert services are necessary for an indigent defendant's adequate defense lies within the sound discretion of the trial court and shall not be overturned absent a clear showing of substantial prejudice." Ά66 Yates failed to demonstrate that his proposed expert was "necessary to an adequate defense." CrR 3.1(f)(1). After the State notified the defense of its intention to call Everson as an expert on the practices of women engaged in prostitution, the defense brought an ex parte motion under CrR 3.1(f), requesting funds for its own expert on prostitution. Defense counsel stated that the defense "wanted Mr. Parker . . . to give [his] insight into women's behavior that are working on the street." 16 VRP at 852. Counsel explained that "it relates to the aggravator primarily of robbery, and it addresses whether or not women typically carry purses, carry money, those kinds of things." Id. Responding to a question from the court, counsel stated that she did not believe that "there [was] a lot of difference in opinion in general about . . . how these women operate," and she acknowledged that she had "already disclosed to [the State] that [Mr. Parker's] testimony would be similar to" the testimony of the State's expert. Id. at 853, 854-55. Expressing a desire to have "more information" regarding the special contributions that the defense's proposed expert would make, the court entered an order stating that the defense's funding request was "[d]enied at this time subject to further hearing or information." 16 VRP at 854-55; CP at 2511. The record is devoid of any further information that the defense provided concerning the anticipated testimony of its proposed expert on prostitution. Absent any evidence that his proposed expert would have provided "services necessary to an adequate defense," CrR 3.1(f)(1), Yates cannot meet his burden of showing that the trial court abused its discretion and substantially prejudiced his defense. Young, 125 Wn.2d at 691. Ά67 The trial court did not abuse its discretion by admitting the expert testimony of Safarik and Everson under ER 702 and by denying the defense's motion under CrR 3.1(f) for public funds to retain its proposed expert on prostitution. Ά68 8. Admission of Photographic Evidence. Yates argues that the trial court improperly admitted three autopsy photographs, the "in-life" photographs of the Spokane victims, and photographs of certain possessions of two Spokane victims. a. Autopsy Photographs Ά70 Yates challenges the trial court's admission of exhibit 325, a photograph showing the medical examiner's incisions in the arm of Spokane victim Darla Scott. The incisions revealed subcutaneous puncture marks, demonstrating that Scott had been an intravenous drug user. The evidence was relevant to the State's theory that, as an element of Yates's overarching plan, he selected women with serious drug addictions. Because Everson had simply testified that Scott had an "issue" with street drugs and State's witness Michael Mitchell had similarly speculated that Scott "was hooked on crack cocaine," the medical examiner's evidence of Scott's intravenous drug use was relevant and was not cumulative. 50 VRP at 4452; 52 VRP at 4868. Ά71 Yates likewise argues that exhibit 444, a photograph showing the medical examiner's incision in Ellis's leg, was improperly admitted. However, because Ellis's body was "extensively decomposed and skeletonized," the photograph offered essential evidence that blood and muscle were available from which viable DNA material could be extracted. 26 VRP at 1483; 58 VRP at 5907. The DNA extracted from Ellis's remains matched blood found in Yates's Ford van and thus supplied a critical piece of evidence identifying Yates as Ellis's killer. Ά72 The third autopsy photograph that Yates has challenged, exhibit 604, shows that the innermost plastic bags tied around Mercer's head were perforated and drawn partially into her mouth. The photograph provided circumstantial evidence that Mercer was alive when Yates encased her head in four plastic grocery bags. The circumstantial evidence was relevant to, and probative of, Yates's premeditated intent to kill Mercer. Yates arguably tied plastic bags over his victims' heads not only to minimize blood evidence in his vehicles but also to ensure that his victims died from the wounds inflicted with his small caliber handguns. Ά73 The trial court did not abuse its discretion by admitting the three challenged autopsy photographs. Their "probative value" outweighed the "danger of unfair prejudice." ER 403. b. "In-Life" Photographs of Spokane County Victims Ά74 Yates contends that the trial court erred by admitting "in-life" photographs of the Spokane County victims. Following a pretrial hearing on the admissibility of the photographs, the trial court reserved its final ruling in order to review their relevance to the "common scheme or plan" aggravator and to afford the parties further opportunity to brief the issue. No further briefing was provided, and at trial all but 2 of the 10 photographs were admitted without a defense objection. The State concedes that the defense arguably preserved an objection to the "in-life" photographs of Oster and Derning. Ά76 Here, we must ask the same two questions that the Pirtle court askedwhether the "in-life" photographs are relevant under ER 401 and, if so, whether they are more probative than prejudicial under ER 403. We conclude, as did the Pirtle court, that the trial court's admission of the "in-life" photographs of the Spokane victims was not an abuse of discretion. For purposes of the admissibility inquiry, the fact that the photographs here are those of the Spokane victims and not of Mercer and Ellis is a distinction without a difference, given that the trial court's admission of evidence of the Spokane crimes under ER 404(b) has not been challenged. As to the relevance of the "in-life" photographs, the State argues that they were relevant to prove an element of Yates's overarching plan to murder women who were generally similar in appearance. Yates's victims were white or light-skinned women with dark hair"none of the women were blond," and "[n]one of the women were African-Americans." 65 VRP at 6952. The State maintains that, in addition to demonstrating an element of the common plan, "the in-life photographs . . . assisted the jury in processing what would otherwise appear to be repetitive testimony by attaching a face to the discovery and autopsy of each of the many bodies." Br. of Resp't at 154. For example, in addition to the "in-life" photograph of victim Oster, the State introduced (without objection at trial or challenge on appeal) a photograph of the recovery site of Oster's body, three photographs of her body at that site, and eight autopsy photographs (including photographs of the plastic bags from Oster's head, a close-up of bullet holes, and a "Defect in Skin"). CP at 4462-63, listing Exs. 355-63, 365-67. Similarly, along with the "in-life" photograph of Derning, the trial court admitted the State's proffered photographs (without a defense objection) of the recovery site of Derning's body, her body at that site, and "Defects to Head." Id. at 4465, listing Exs. 423-26, 428-30. Applying the Pirtle court's reasoning, this court cannot conclude that the challenged "in-life" photographs of Oster and Derning "could have added much additional prejudice," in light of the graphic "after death" photographs that were admitted without objection. 127 Wn.2d at 653. Ά77 The admission of the "in-life" photographs of Oster and Derning was not an abuse of discretion. The photographs were relevant to the State's proof of a "common scheme or plan" and assisted the jury in assimilating the evidence. Under the Pirtle court's ER 403 analysis, due to the admission of more graphic postmortem photographs, the potential "unfair prejudice" arising from the "in-life" photographs would be minimal and would not outweigh their "probative value." c. Photographs of Victims' Possessions Ά79 Yates also claims that the trial court abused its discretion by admitting photographs of a jacket found in Yates's house. The Mickey Mouse jacket belonged to Christine Smith, the woman whom Yates attempted to murder but who managed to escape after being shot in the head while performing oral sex on Yates in the back of his van. Two photographs show the jacket hanging in the closet, and the third and fourth photographs are of the front and back of the jacket. While Yates is technically correct that Smith left the jacket behind after he shot her, the photographs support the State's position that Yates kept Smith's property, an action consistent with his alleged robbery of his murder victims. The trial court did not abuse its discretion in admitting the photographs of Smith's jacket hanging in Yates's closet. Ά80 We find no abuse of discretion in the trial court's admission of the three contested autopsy photographs, the "in-life" photographs of the Spokane victims, and the photographs of Smith's jacket. Ά82 Yates argues that the trial court improperly permitted the State to use exhibit 544, a large summary chart of the State's evidence regarding the Spokane County and Pierce County crimes. The chart, approximately 7 1/2 feet by 13 feet, listed the names of the 13 victims horizontally across the top, with 15 categories of evidence listed vertically down the left side. Ά83 Yates does not assert that the trial court failed to apply the safeguards set forth in Lord, but he claims that the chart was nonetheless inaccurate in three particulars. First, he contends that, because one of the evidence categories was "Cause of Death," the chart should not have listed among the victims across the top of the chart, Christine Smith, the woman who survived after Yates shot her in the head. However, as the State points out, the notation entered under Smith's column was "Gunshot wound to head (survived)." Ex. 544. Moreover, because the State called Smith as a witness at trial, the defense cannot rationally claim that the chart could have misled the jury into thinking that Yates had succeeded in killing Smith as well. Second, Yates claims it was misleading to enter "yes" in the "Clothing Removed/Missing" category for victim Zielinski. The State's evidence established that Zielinski's body was found clothed only in a short one-piece dress pulled up to her upper torso area, with her socks, panty hose, and a boot found a short distance away. Third, Yates argues that the "yes" entered in the same category for Mercer was also inaccurate, but here again, the record supports the notation. Mercer's body was found nude dumped in some blackberry bushes, and while some of her clothing had been thrown on top of her body, her brassiere, tank top, and shoes were missing. Ά84 Yates has failed to show that the chart was not "substantially accurate." Lord, 117 Wn.2d at 856. The trial court did not abuse its discretion by permitting the State to use exhibit 544, the summary chart of evidence. a. Allegations of Misconduct in Guilt Phase Ά87 Yates next contends that the prosecutor made an improper, prejudicial comment during cross-examination of defense witness Danielle Gorder, a woman who worked as a prostitute in Spokane. On direct examination, Gorder testified that Yates had used her services four to seven times in 1999 and that he was a "good date" who paid well. 66 VRP at 7067, 7071. The following exchange occurred on cross-examination: Q And your gut feeling was that that man over there, Robert Yates, was a good guy to go with? A Yeah. Q And you went with him? A Yes, ma'am, I did. Q You are lucky to be alive, aren't you? Id. at 7093. Defense counsel objected immediately, asking the court to strike the comment as "argumentative," and the court responded: "That question and response will be stricken from the record, counsel." Id. The defense requested a mistrial, but after taking the matter under advisement, the court denied the motion, concluding that its instruction had cured the improper remark. And it can be done witheven though it's without their knowledge, provided the force prevented them from knowing it. One way to do that is if a person goes into a market and pulls what appears to be a gun on the clerk[,] scares the dickens out of them and they run away and then the robber helps themselves to the till, well, that's still robbery, even though the person who ran didn't know that they actually took the money. It's still robbery. So, too, you can rob someone you just murdered. You prevented their knowledge of it by killing them, and it's still robbery. 70 VRP at 7576-77. Defense counsel "object[ed] to the last statement that you canrobbery is just taking from the dead." Id. at 7577. Overruling the objection, the trial court stated that it had "instructed the jury on the law" and that "[t]his is argument." Id. We likewise conclude that the remark was not improper. The prosecutor's argument comported with jury instruction 15, which provided, in part, that "[t]he taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom it was taken, such knowledge was prevented by the use of force or fear." CP at 4101; see also State v. Craig, 82 Wn.2d 777, 782-83, 514 P.2d 151 (1973). The lawyers have had their say, and now you'll have your say. We thank you for your patience during this lengthy trial. On behalf of all of the decent and law-abiding citizens of the state whom we are honored to represent . . . . . . . we thank you for your service. And on our behalf, we now ask you please return verdicts of guilty as charged. Thank you. 70 VRP at 7587-88. Defense counsel interposed an objection, but the trial court permitted the prosecutor to complete the remark. Defense counsel moved immediately for a mistrial or a curative instruction, but finding in the remarks no adverse implication about the defense attorneys, the court ruled that neither a mistrial nor a curative instruction was warranted. Ά91 Yates's reliance on State v. Gonzales, 111 Wn. App. 276, 45 P.3d 205 (2002), review denied, 148 Wn.2d 1012 (2003), is unpersuasive. There, the court held that the prosecutor disparaged defense counsel by drawing the following sharp contrast: " 'I have a very different job than the defense attorney. I do not have a client, and I do not have a responsibility to convict. I have an oath and an obligation to see that justice is served.' " Id. at 283. Unlike the prosecutor in Gonzales, the prosecutor in the present case did not refer to defense counsel's role and drew no direct contrast between the roles of prosecutors and defense attorneys. Here, the trial court reasonably determined that the remark was not improper. Even if we were to declare the comment improper, the criticism of defense counsel was far too attenuated to have been prejudicial; little likelihoodcertainly not a "substantial likelihood"exists that the comment "affected the jury's verdict." Brown, 132 Wn.2d at 561. b. Allegations of Prosecutorial Misconduct in Penalty Phase Ά92 Yates claims that the prosecutor committed misconduct in argument during the penalty phase. The prosecutor attacked the sincerity of Yates's religious conversion, a conversion that was the centerpiece of Yates's allocution. Observing that Yates's "claimed conversion occurred after his arrest," He was sentenced for the Spokane murders two years ago, 1998. . . . Assume that he lives 50 years beyond the time he was sentenced in 2000, so he lives to be 98 years old. In Spokane, he was sentenced for 13 murders and one attempted murder. Divide that number, 14 into 50. That's a little over three years for each murder. Is human life that cheap? Id. at 8300. The defense immediately objected, and the trial court sustained the objection: "Sustained. That's improper argument. Jury is to disregard that argument." Id. Yates argues on appeal that the prosecutor's improper remark was "designed to appeal to the passion and prejudice of the jury." Br. of Appellant at 197. We conclude that the trial court's unequivocal response to defense counsel's objection cured the improper remark. See Grisby, 97 Wn.2d at 499 (noting that "[t]he jury is presumed to follow the instructions of the court"). In any case, when the prosecutor's improper remarks are placed in the context of the entire special sentencing proceeding, it cannot be said that there was a "substantial likelihood the misconduct affected the jury's verdict." Brown, 132 Wn.2d at 561; see CP at 4481; RCW 10.95.060(4). Ά97 In sum, Yates has failed to show that the prosecutor committed misconduct in the guilt or penalty phases. Of the comments that the defense challenges, only the prosecutor's rhetorical question to defense witness Danelle Gorder"You are lucky to be alive, aren't you?" 66 VRP at 7093was clearly improper, but that remark's prejudicial effect, assessed in the context of the evidence in the case, is negligible. Ά99 Yates contends that under RCW 9.94A.589, his sentence for the Pierce County crimes should run consecutively to his Spokane County sentence: (1)(a) Except as provided in (b) or (c) of this subsection, whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently. Consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.535. "Same criminal conduct," as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim. This definition applies in cases involving vehicular assault or vehicular homicide even if the victims occupied the same vehicle. (b) Whenever a person is convicted of two or more serious violent offenses arising from separate and distinct criminal conduct, the standard sentence range for the offense with the highest seriousness level under RCW 9.94A.515 shall be determined using the offender's prior convictions and other current convictions that are not serious violent offenses in the offender score and the standard sentence range for other serious violent offenses shall be determined by using an offender score of zero. The standard sentence range for any offenses that are not serious violent offenses shall be determined according to (a) of this subsection. All sentences imposed under (b) of this subsection shall be served consecutively to each other and concurrently with sentences imposed under (a) of this subsection. (Emphasis added.) Subsection (1)(a) explains how "a person is to be sentenced for two or more current offenses"offenses for which offender scores are "being computed" "on the same date." RCW 9.94A.525(1). The general rule, as expressed in subsection (1)(a), is that, where a person is being sentenced on multiple counts on the same day, the sentences for those "current offenses" are to run concurrently with one another. Yates relies on RCW 9.94A.589(1)(b), an exception to subsection (1)(a). Subsection (1)(b) describes how the offender score is to be computed for a person whose multiple current offenses are "serious violent offenses." Subsection (1)(b) requires the court to impose consecutive sentences for those current offenses that are "serious violent offenses." RCW 9.94A.589(1)(b) is inapplicable to Yates's sentencing proceeding in Pierce County. Plainly, his Pierce County and Spokane County convictions are not "current offenses" within the meaning of these SRA provisions. Ά100 The State argues (and the sentencing court agreed) that, if any SRA provisions are to apply to Yates's sentencing in Pierce County, the only provision that could apply is RCW 9.94A.589(3). While subsection (1) governs the calculation of an offender score for "current offenses" (again, those for which convictions are entered or sentences are imposed on the same date), subsections (2) and (3) define how the court is to sentence a person for a felony when that person is already under sentence for a different felony. Subsection (2)(a) requires that, where "a person while under sentence for conviction of a felony commits another felony," the sentence for the second felony must run consecutively to the preexisting felony sentence. Because Yates did not commit the Pierce County felonies while under sentence for the Spokane County crimes, subsection (2) does not apply to Yates. Ά101 Under the State's theory, however, subsection (3) does fit Yates's situation: [w]henever a person is sentenced for a felony that was committed while the person was not under sentence for conviction of a felony, the sentence shall run concurrently with any felony sentence which has been imposed by any court in this or another state or by a federal court subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that they be served consecutively. RCW 9.94A.589(3) (emphasis added). Yates was being sentenced in Pierce County for crimes that were "committed while [he] was not under sentence for conviction of" the Spokane County crimes. Id. (emphasis added). If this provision applies, then it requires that the Pierce County sentence run concurrently with the Spokane County sentence "unless the court pronouncing the current [i.e., Pierce County] sentence expressly orders that they be served consecutively." Here, the court concluded that, under RCW 9.94A.589(3), Yates's Pierce County sentence could run concurrently with the Spokane County sentence. Ά102 We reject Yates's argument that RCW 9.94A.589(1)(b) mandates consecutive Spokane County and Pierce County sentences. We reach this conclusion because the SRA provisions on concurrent and consecutive sentences (RCW 9.94A.589) cannot be sensibly applied when a jury in a special sentencing proceeding under chapter 10.95 RCW returns a verdict for a death sentence. The oddity underlying this sentencing issue is that, here, we have a defendant seeking a consecutive sentence, while the State argues for concurrent sentencing. Paradoxically, Yates seeks a more lenient punishment by invoking a provision intended to ensure a harsher sentence. Whereas RCW 9.94A.589(1)(b) requires those convicted of multiple "serious violent offenses" to serve a harsher sentence (consecutive terms) on those counts, Yates relies on that provision to lessen the severity of his sentence, effectively commuting his death sentence to life. Similarly, the State seeks the harsher sentence of death by relying on a provision that was intended to make the more lenient sentence the default. RCW 9.94A.589(3) makes the less harsh sentence (concurrent terms) the standard and permits the harsher sentence (consecutive terms) only as an exception that the sentencing court must "expressly order[ ]." RCW 9.94A.589(3). In sum, both the defense and the State ignore that they are relying on provisions that were intended to have effects opposite to the ones they desire. Clearly, it is the uniqueness of the death penalty that skews the positions the defense and the State have taken on this sentencing issue. Accordingly, we reject the application of the SRA provisions on concurrent and consecutive sentences to the imposition of the death penalty. Ά103 Thus, we conclude that the trial court did not err in requiring that the Pierce County sentence be served concurrently with the Spokane County sentence. B. Mandatory Death Sentence Review and Related Issues Raised by Defendant (a) Whether there was sufficient evidence to justify the affirmative finding to the question posed by RCW 10.95.060(4); and (b) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. . . . ; (c) Whether the sentence of death was brought about through passion or prejudice; and (d) Whether the defendant was mentally retarded within the meaning of RCW 10.95.030(2). RCW 10.95.130(2). Because Yates made no claim that he was mentally retarded, the inquiry required in subsection (d) is inapplicable. Yates provided no argument regarding subsection (a) and made only minimal comment on subsection (c), but he raised a number of now familiar issues related to the proportionality review of subsection (b). Ά105 1. Insufficiency of Mitigating Circumstances To Merit Leniency. At Yates's special sentencing proceeding, the court instructed the jury that "the State has the burden of proving . . . beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency." CP at 4444, Jury Instruction 3 (Special Sentencing Hr'g). The court defined "mitigating circumstance" for the jury as "a fact about either the offense or about the defendant which in fairness or in mercy may be considered as extenuating or reducing the degree of moral culpability or which justifies a sentence of less than death, although it does not justify or excuse the offense." Id. at 4446, Jury Instruction 5 (Special Sentencing Hr'g). Of the eight nonexclusive statutory factors that a jury may consider as mitigating circumstances, only one was specifically mentioned in jury instruction 5: "Whether there is a likelihood that the defendant will pose a danger to others in the future." Id.; RCW 10.95.070(8). The jury was instructed that it would receive "a sentencing verdict form" on which it would be required to record its answer to one yes-no question: Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency? CP at 4448, 4445, Jury Instructions 7, 4 (Special Sentencing Hr'g); RCW 10.95.060(4). The instruction stated that an affirmative response would result in a death sentence, and the sentencing verdict form included a similar explanatory note under the word "YES": "In which case the defendant shall be sentenced to death." CP at 4445, 4481. The jury at Yates's special sentencing proceeding unanimously answered "YES." Id. at 4481. Ά107 Viewing the evidence in the light most favorable to the State, we conclude that the Yates jury could have rationally found the mitigating circumstances insufficient to justify a grant of leniency. Yates's mitigation evidence consisted of the testimony of family members, friends, and former high school teachers and coaches. Correctional officers from the Spokane County and Pierce County jails testified regarding Yates's behavior in custody, and the jury also heard testimony from pastors and fellow inmates familiar with Yates's postarrest religiosity. Additionally, in his allocution, Yates apologized to the victims' families and described his religious conversion. The State presented additional evidence of Yates's criminal history, informing the jurors that Yates murdered Patrick Oliver and Susan Savage in 1975 and Stacy Hahn in 1988. The State also elicited testimony from relatives of Mercer and Ellis. The jurors could have reasonably been persuaded, as the State argued in rebuttal closing argument, that no leniency was merited for one whose upbringing had been "idyllic" but who had nevertheless killed 15 people and tried to kill a 16th. 77 VRP at 8292. The jurors may well have shared the State's viewpoint that Yates's postarrest conversion was self-serving and his allocution offensively self-indulgent. Id. at 8296-97. Ά108 We hold that "there was sufficient evidence to justify the affirmative finding to the question posed by RCW 10.95.060(4)." RCW 10.95.130(2)(a). A rational jury could have been convinced beyond a reasonable doubt "that the circumstances of the crime[s] outweigh[ed] the mitigating factors." Dodd, 120 Wn.2d at 25. Ά110 We conclude that the jury's verdict in the special sentencing proceeding was not "brought about through passion or prejudice." RCW 10.95.130(2)(c). a. Consideration of Crime and Defendant Ά112 In the Cross opinion, which was filed just one year ago, this court followed the customary four-factor approach and concluded that Cross's death sentence was not "disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." RCW 10.95.130(2)(b). Consistent with the Cross court's analysis, this court likewise concludes that Yates's death sentence for the murders of Mercer and Ellis was not disproportionate under RCW 10.95.130(2)(b). Ά113 Regarding the first factor, the nature of the crime giving rise to the death sentence, Yates's crimes were similar to Cross's. First, while Cross murdered three women (his wife and two of her daughters), Yates murdered two, and as the Cross court pointed out, death sentences have previously been handed down in cases with fewer than three victims. 156 Wn.2d at 632 (citing State v. Woods, 143 Wn.2d 561, 616, 23 P.3d 1046 (2001); State v. Stenson, 132 Wn.2d 668, 759, 940 P.2d 1239 (1997); State v. Elledge, 144 Wn.2d 62, 66, 26 P.3d 271 (2001)). Second, the Cross court recognized that "[t]here was a marked level of cruelty" in the murders: "At least one of Cross's victims was conscious and pleaded with him to either spare her life or kill her more quickly." Id. Yates's crimes were similarly cruel. For example, the evidence indicated that, after Yates shot Mercer three times with a .25 caliber weapon and tied four plastic grocery bags over her head, she survived long enough to chew through the two innermost bags and partially suck one bag into her mouth. 56 VRP at 5538-39; 57 VRP at 5626-28. Yates's crimes, in fact, reflected a more calculated cruelty than did Cross's crimes. The degree of planning in Yates's crimes was similar to that seen in the murders committed in Pirtle, 127 Wn.2d 628, and Brett, 126 Wn.2d 136, and Yates selected his victims from a particularly vulnerable class. Dodd, 120 Wn.2d 1. Ά115 To satisfy the requirement in RCW 10.95.130(2)(b) that this court consider not only the crime but also the defendant, the court relies on the third and fourth proportionality factors, the defendant's criminal history (prior convictions) and personal history. Yates has an extensive criminal history. He has been convicted of 13 first degree murders and 1 attempted first degree murder, and those crimes were committed over a period of more than 20 years. As the State pointed out, Yates's prior murder convictions place him in a unique category, since among those defendants included in the trial judge reports, only 13 had a prior conviction for murder or manslaughter, and of those, only 1 had more than one such conviction. Br. of Resp't at 228. As to Yates's personal history, the testimony at his special sentencing proceeding depicted a stable, happy childhood. The State has aptly compared Yates and another defendant who received a death sentence: "Stenson was not lacking in normal intelligence, was not youthful, and was not the victim of a tragic background. We have compared this case and all the circumstances of the Defendant and his crime with other first degree aggravated murders which have and have not received the death penalty. Given the brutal, calculated nature of the crimes, the motivation of financial gain, and the lack of mitigating circumstances, we conclude the sentence was neither excessive nor disproportionate." Id. at 229 (quoting Stenson, 132 Wn.2d at 760). As with proportionality factors one and two, the consideration of factors three and four (Yates's criminal and personal history) does not suggest that his death sentence was "excessive or disproportionate to the penalty imposed in similar cases." RCW 10.95.130(2)(b). b. Related Constitutional Challenges Ά120 We conclude that Yates's death sentence was not "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." RCW 10.95.130(2)(b). We also reject Yates's related constitutional arguments. CONCLUSION Ά121 We conclude that Yates has failed to establish reversible error, and thus we affirm his convictions and sentence. ALEXANDER, C.J., and C. JOHNSON, MADSEN, BRIDGE, and FAIRHURST, JJ., concur. Ά122 CHAMBERS, J. (concurring) For the most part, I concur with Justice Owens' well reasoned opinion. However, while I agree that Robert Yates's equitable estoppel argument should be rejected, I have considerable reservations about the sweeping scope of the majority's statement that equitable estoppel may never be asserted by a criminal defendant against the State. Whatever the federal courts do, we may hold our State to a higher standard. Ά123 Estoppel helps ensure that our courts are courts of justice, not just of law. We should not hesitate to apply estoppel, even against the State, when justice so requires. See generally Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 20, 43 P.3d 4 (2002) (citing Dep't of Ecology v. Theodoratus, 135 Wn.2d 582, 599, 957 P.2d 1241 (1998)). That said, I agree with the majority this far: estoppel should only be available in the rarest of plea bargaining cases. A plea bargain is an agreement between the defendant and the prosecutor. We should generally resist the urge to rewrite these agreements. Ά124 Restraint is appropriate, in part, because of our due respect for the agents of the executive branch, including prosecutors, and our due respect for the legislative branch. Our legislature has broadly vested county prosecutors with the power to prosecute violations of state law. RCW 36.27.005; .020(4) (the prosecuting attorney shall prosecute "all criminal and civil actions in which the state or the county may be a party"). The courts of one county have the power to hear disputes arising in any county, so long as the controversy falls within the court's subject matter jurisdiction. Dougherty v. Dep't of Labor & Indus., 150 Wn.2d 310, 317, 76 P.3d 1183 (2003). Similarly, a prosecutor in one county has the power to charge a defendant and negotiate a plea no matter where in the state the crime was committed. Cf. State v. Bryant, 146 Wn.2d 90, 108-09, 42 P.3d 1278 (2002) (Alexander, C.J., concurring) (citing Whatcom County v. State, 99 Wn. App. 237, 993 P.2d 273 (2000)). A defendant may bargain away constitutional rights during plea negotiations with the reasonable expectation that the prosecutor, and other prosecutors, will abide by the bargain. Ά125 But from time to time, for whatever reason, a plea agreement may not fully reflect the reasonable expectation of the parties, and it may be unjust not to enforce the defendant's understanding. In such a case, equitable estoppel may provide us with the best vehicle to ensure that justice is done. To apply equitable estoppel against the government, Yates must prove by clear, cogent, and convincing evidence (1) that the State made a statement or act that is inconsistent with Pierce County's pursuit of the death penalty, (2) that he relied upon this, (3) that he would be injured if the State is allowed to persist, (4) that equitable estoppel is necessary to prevent a manifest injustice, and (5) that application will not impair governmental functions. See Kramarevcky v. Dep't of Soc. & Health Servs., 122 Wn.2d 738, 743-44, 863 P.2d 535 (1993). Ά126 In this case, after a full evidentiary hearing, a visiting judge found that Yates had failed to prove by clear, cogent, and convincing evidence that estoppel was appropriate. The judge found that the Pierce County prosecutor clearly communicated that any permission to negotiate the Pierce County charges had been withdrawn before plea negotiations between Yates and the Spokane County prosecutor on the Spokane, Walla Walla, and Skagit charges had concluded. Perhaps most critically, the trial judge found Yates had not established detrimental reliance. Yates has not shown that the trial judge misapplied the law or misunderstood the facts. Accordingly, I concur in result, though I disagree that a blanket rule is appropriate. Ά127 Finally, I respectfully disagree with the view expressed by my learned colleague Justice J.M. Johnson in his concurrence. Article I, section 22 of our state constitution grants rights to defendants. Among those rights is the right to be tried in the county where the crime was committed. CONST. art. I, § 22. That is not some sort of exclusive, but waivable, grant of jurisdiction to the county where the crime was committed. Venue may be appropriate in a different county, and a defendant may insist that the case be transferred. See generally CONST. art. I, § 22; CrR 5.2. But, as we have noted before, venue and jurisdiction are distinct matters. Dougherty, 150 Wn.2d at 317. Further, article I, our state bill of rights, sets forth the rights of individuals. It makes little sense to me that our founders would have snuck a jurisdictional limitation into our bill of rights. Instead, I would expect to find such a structural detail in either article IV, which concerns the powers of courts, or in article XI, which concerns the organization of municipal governments. Ά128 The proper question is not whether Yates waived his right to be tried in Pierce County. The proper question is whether, in this case, the Pierce County prosecutor was bound to not seek the death penalty by the actions of the Spokane County prosecutor. I concur that Pierce County was not so bound. With those reservations, I join the majority. Ά129 J.M. JOHNSON, J. (concurring) I concur in the majority's decision to affirm the judgment and sentence of the trial court. Majority at 88. I write separately to express my conclusion that Robert Yates' claim that his plea agreement with Spokane County may affect his Pierce County murder charges is fundamentally flawed under our state constitution. Specifically, Yates' argument must fail because he refused to waive his article I, section 22 right to trial in Pierce County for the murders committed there. This precluded Spokane County from exercising any authority over these Pierce County charges. CONST. art. I, § 22. Ά130 Yates argues that his plea agreement with the Spokane County Prosecuting Attorney, under which that county agreed not to seek the death penalty, must also be effective as to his Pierce County charges for the murders of Melinda Mercer and Connie Ellis. However, Yates' argument is finally rebutted by our state constitutional requirements. Yates' offenses that occurred in Pierce County had to be tried in that county, absent waiver of Yates' constitutional right to proper venue in the county in which the crime occurred. See CONST. art. I, § 22; State v. Carroll, 55 Wash. 588, 590, 104 P. 814 (1909) (concluding that trial in county other than where offense was committed deprived appellant of his right to proper venue under article I, section 22); see also State v. Ashe, 182 Wash. 598, 48 P.2d 213 (1935) (discussing constitutional right to proper venue); State ex rel. O'Phelan v. Superior Court, 88 Wash. 669, 153 P. 1078 (1915) (same). Because Yates refused to waive his venue right, it remained constitutionally impermissible for Spokane County to adjudicate Yates' Pierce County charges. Thus, Yates' arguments that Spokane County effectively took action regarding his Pierce County offenses as part of its plea bargain with Yates cannot possibly succeed. Ά131 Article I, section 22 of our state constitution provides, in pertinent part: "In criminal prosecutions the accused shall have the right . . . to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed." CONST. art. I, § 22 (emphasis added). A defendant may waive this right affirmatively or by failing to assert it prior to the time jeopardy attaches. State v. McCorkell, 63 Wn. App. 798, 801, 822 P.2d 795 (1992). Absent waiver, however, a criminal trial may not go forward in a county other than the one in which the alleged offense was committed. Carroll, 55 Wash. at 589-91. Likewise, absent waiver, prosecutors of a county other than the one in which the alleged offense occurred may not negotiate and enforce a valid plea agreement. This latter prohibition logically follows because guilty pleas are essentially substitutes for a conviction pursuant to trial. See Brandon v. Webb, 23 Wn.2d 155, 160, 160 P.2d 529 (1945) ("Such plea is a confession of guilt and is equivalent to a conviction . . . ."). The correctness of this analysis is further supported by the fact that permitting guilty pleas regardless of proper venue would allow a prosecutor in another county to usurp the recognized authority of the elected prosecutor in the county where the crime was committed to control the enforcement of justice within his county. See State v. Bryant, 146 Wn.2d 90, 102, 42 P.3d 1278 (2002) ("The decision whether to prosecute or not, and the decision whether to enter into a plea bargain agreement or not, is generally within the discretion of each county prosecutor. How that discretion is exercised affects the quality of law enforcement and the administration of justice within each county, and thus it is of vital importance to the separate counties to determine, individually, the character and emphasis of prosecutions."). Ά132 Here, Yates was charged with two murders that occurred wholly within Pierce County. Under article I, section 22, trial for these offenses was required to occur in Pierce County absent waiver by defendant. Carroll, 55 Wash. at 589-91. Apparently aware of this requirement, Spokane County prosecutors attempted to obtain a waiver from Yates through his counsel. 14 Verbatim Report of Proceedings (VRP) at 673. The proposal was refused by Yates' counsel, on Yates' behalf (and presumably reflecting Yates' decision at that point in the negotiations). 14 VRP at 674. Hence, it remained constitutionally impermissible for Spokane County prosecutors to either try Yates for his Pierce County offenses or negotiate and enforce a valid plea agreement involving those offenses. Ά133 Due to Yates' own actions in refusing to waive his right to proper venue for Pierce County crimes, the Spokane County Prosecuting Attorney was constitutionally precluded from negotiating a valid plea agreement that included Pierce County charges. Accordingly, Yates' argument that his Pierce County charges were encompassed within his plea agreement with Spokane County must fail, regardless of the validity of his estoppel or fairness arguments. For this reason, I concur. Ά134 SANDERS, J. (dissenting) A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it. Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). Ά135 Because I cannot uphold a death sentence resulting from a trial riddled with constitutional error, I dissent. The Trial Court's Excusal of Juror 39 for Cause Violated Mr. Yates' Federal and State Constitutional Right to a Fair and Impartial Jury Ά136 A criminal defendant is guaranteed the right to trial by an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution, as well as under article I, sections 3 and 22 of the Washington Constitution. Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975); State v. Rupe, 108 Wn.2d 734, 748, 743 P.2d 210 (1987). A trial court infringes on this right when it excuses for cause jurors who voice "general objections to the death penalty or expressed conscientious or religious scruples against its infliction." Witherspoon, 391 U.S. at 522. As stated by Justice Harry A. Blackmun, writing for the majority in Gray v. Mississippi, "To permit the exclusion for cause of other prospective jurors based on their views of the death penalty unnecessarily narrows the cross section of venire members. It 'stack[s] the deck against the petitioner.' " 481 U.S. 648, 658-59, 107 S. Ct. 2045, 95 L. Ed. 2d 622 (1987) (alteration in original) (quoting Witherspoon, 391 U.S. at 523). Ά137 A juror may be challenged for cause if "the juror's views on capital punishment would ' "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." ' " State v. Hughes, 106 Wn.2d 176, 181, 721 P.2d 902 (1986) (quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985)). Excusing a juror who simply expresses conscientious objections to the death penalty violates the Witt test as "[t]he crucial inquiry is whether the venireman could follow the court's instructions and obey his oath, notwithstanding his views on capital punishment." Dutton v. Brown, 812 F.2d 593, 595 (10th Cir. 1987) (emphasis added). See also State v. Gregory, Ά138 Juror 39's excusal was impermissible under Witt's impartiality test as she repeatedly assured the court she would listen to the evidence and follow the court's instructions. In her confidential questionnaire, Juror 39 answered she did not "hold beliefs or convictions . . . that would cause [her] to automatically vote against a death sentence without regard to any evidence that might be presented at the trial." Confidential Juror Questionnaire (Juror 39) at 31. She also answered "No" to the question "Would your attitude about the death sentence prevent you from making an impartial decision about the guilt (phase 1) of a person charged with aggravated first degree murder?" and "No" to "Is there any reason you could not be fair to the prosecution or defense in a case where the death penalty is a possibility?" Id. Ά139 Juror 39 further affirmed her ability and willingness to set aside her personal beliefs and follow the court's instructions during the State's examination, which reads in relevant part: Q . . . [C]ould you personally vote to execute the defendant? A Yes, I would. Q And what would you base that on? A If all the evidence is there . . . if it goes in that direction, I would do it, yes. 34 Verbatim Report of Proceedings (VRP) at 2279 (emphasis added). Ά140 Throughout her examination, Juror 39 never once stated she was unable to follow the court's instructions regarding capital punishment. Instead, her responses evidenced "a fundamental acceptance of [her] duty to make an independent and thorough evaluation of the facts and a willingness to follow [the court's] instructions and oath." In re Pers. Restraint of Lord, 123 Wn.2d 296, 311, 868 P.2d 835 (1994). As such, the court's excusal for cause of Juror 39 runs counter to our precedent. See Gray, 481 U.S. at 653 (juror who expressed confusion but ultimately acknowledged she could consider the death penalty in an appropriate case was impermissibly struck for cause); Gregory, Ά141 Both the trial court and the majority improperly cite to Juror 39's personal opposition to the death penalty as evidence of her inability to perform her task as a juror. The trial court explained it excused Juror 39 for cause because "even in response to [the court's] question she drew upon her personal beliefs." 34 VRP at 2286. In the same vein, the majority cites to Juror 39's answers regarding her personal beliefs about capital punishment as indication of her inability to remain sufficiently impartial. See majority at 742-43 (citing to Juror 39's response that she was "[o]pposed in every possible circumstance" (emphasis omitted) to a question asking for a description of her view of capital punishment and citing to Juror 39's response that her views on capital punishment were based on " 'a philosophy of [hers], [her] personal opinion' " (alterations in original) (emphasis added) (quoting 34 VRP at 2276)). The majority also points out that Juror 39, after affirming her personal opposition to the death penalty and then indicating she could vote to impose the death penalty, "admitted the response was contradictory." Majority at 22. Ά142 Contrary to the majority's implication, separating one's personal beliefs from one's ability to fulfill her duty as a juror is not contradictory, but precisely what the law requires. See Lockhart v. McCree, 476 U.S. 162, 176, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986) ("It is important to remember that not all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law."). Ά143 Accordingly, the majority's fixation on Juror 39's personal opinions about the death penalty is improper. The appropriate question is not whether a juror harbors personal reservations against capital punishment but whether "a juror who believes that capital punishment should never be inflicted and who is irrevocably committed to its abolition could nonetheless subordinate his personal views to what he perceived to be his duty to abide by his oath as a juror and to obey the law of the State." Witherspoon, 391 U.S. at 514 n.7 (emphasis added). What the trial court describes as Juror 39's "dr[awing] upon her personal beliefs" in response to the court's questions is merely Juror 39 distinguishing her personal beliefs from her ability to perform her task as a venireman; in short, Juror 39's answers reflect exactly what the law demands. 34 VRP at 2286. Ά144 Even the United States Supreme Court's most recent opinion regarding death qualification, Uttecht v. Brown, 551 U.S. ___, 127 S. Ct. 2218, 167 L. Ed. 2d 1014 (2007), does not support the court's dismissal of Juror 39. The Uttecht Court, in a five to four decision, reversed the Ninth Circuit Court of Appeals' holding that Juror Z's excusal was unconstitutional. The Court determined dismissal was justified as "the transcript shows considerable confusion on the part of [Juror Z], amounting to substantial impairment." Id. at 2230. It observed Juror Z "had both serious misunderstandings about his responsibility as a juror and an attitude toward capital punishment that could have prevented him from returning a death sentence under the facts of this case." Id. at 2220. This court below also upheld Juror Z's excusal, opining, "On voir dire [Juror Z] indicated he would impose the death penalty where the defendant 'would reviolate if released,' which is not a correct statement of the law. He also misunderstood the State's burden of proof . . . ." State v. Brown, 132 Wn.2d 529, 604, 940 P.2d 546 (2006), aff'd sub nom. Uttecht, 551 U.S. ___, 127 S. Ct. 2218. The Uttecht Court affirmed Juror Z's excusal notwithstanding the fact the juror stated six times, over the course of questioning, "that he could consider the death penalty or follow the law." Uttecht, 127 S. Ct. at 2227. The Court stated such assurances "do not overcome the reasonable inference from [Juror Z's] other statements that in fact he would be substantially impaired in this case because there was no possibility of release." Id. at 2229. Ά145 Unlike Juror Z in Uttecht, Juror 39 never misstated or misunderstood the law; instead, she repeatedly assured the court she was able to fulfill her role as a juror, indicating no less than nine times in her examination and questionnaire that she was able to follow the court's instructions and impose a death sentence if necessary. Indeed the Uttecht Court stressed Witt's instruction that "reviewing courts are to accord deference to the trial court," stating, "[t]he judgment as to 'whether a veniremen [sic] is biased . . . is based upon determinations of demeanor and credibility that are peculiarly within a trial judge's province.' " Id. at 2223 (quoting Witt, 469 U.S. at 428) (second alteration in original). And the Court explained, "when there is ambiguity in the prospective juror's statements, 'the trial court, aided as it undoubtedly [is] by its assessment of [the venireman's] demeanor, [is] entitled to resolve it in favor of the State.' " Id. (alterations in original) (quoting Witt, 469 U.S. at 434). Ά146 But a trial court's ruling that flies in the face of Witt's impartiality standard should be owed no deference. And the fact that the court had exclusive province as to Juror 39's demeanor may not trump that juror's consistent, unambiguous commitment to impartiality or justify her erroneous removal. We must not underestimate the "significance of a capital defendant's right to a fair and impartial jury." Gray, 481 U.S. at 658. Because Juror 39's for cause dismissal denied Robert Yates of his constitutional assurance of an impartial jury, his death sentence must be reversed. See id. at 668 (Where the trial court excuses a juror who qualifies as impartial under Witt, the error is never harmless and the remedy is reversal of the death sentence.). The Trial Court's Erroneous Instruction on the "Common Scheme or Plan" Aggravator Lowered the State's Burden of Proof by Eliminating the Requirement That There Be a Nexus between the Murders Ά147 The trial court lowered the State's burden of proof by improperly defining, in jury instruction 20, the aggravating circumstance of RCW 10.95.020(10) A person is guilty of aggravated first degree murder . . . if he or she commits first degree murder . . . and one or more of the following aggravating circumstances exist: . . . . (10) There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person; . . . . Ά148 The court provided the following instruction defining "common scheme or plan": A "common scheme or plan" means there is a connection between the crimes in that one crime is done in preparation for the other. A "common scheme or plan" also occurs when a person devises an overarching criminal plan and uses it to perpetuate separate but very similar crimes. Clerk's Papers at 4106 (Jury Instruction 20). The above instruction allowed the State to prove the presence of the common scheme or plan aggravator simply by showing Yates devised an overarching criminal plan and used it to perpetuate separate but very similar crimes. In short, the instruction eliminated the requirement this court has consistently demanded under RCW 10.95.020(10)that there be a nexus between the murders. See State v. Finch, 137 Wn.2d 792, 835, 975 P.2d 967 (1999) ("Under [RCW 10.95.020(10)] multiple murders are required and there must be a ' "nexus between the killings." ' " (emphasis added) (quoting State v. Pirtle, 127 Wn.2d 628, 661, 904 P.2d 245 (1995) (quoting State v. Dictado, 102 Wn.2d 277, 285, 687 P.2d 172 (1984)))). See also Finch, 137 Wn.2d at 835 (a sufficient "nexus" exists between killings "when an overarching criminal plan connects both murders"). Ά149 As the majority notes, the court's instruction erroneously relies on the two alternative definitions of "common scheme or plan" this court developed in State v. Lough, 125 Wn.2d 847, 889 P.2d 487 (1995). The Lough court determined, There are two different situations wherein the "plan" exception to the general ban on prior bad acts evidence may arise. One is where several crimes constitute constituent parts of a plan in which each crime is but a piece of the larger plan. . . . The other situation arises when an individual devises a plan and uses it repeatedly to perpetuate separate but very similar crimes. Lough, 125 Wn.2d at 854-55. But what the trial court and the majority fail to recognize is that the alternative definition provided in Lough was developed solely with regard to the admission of evidence under ER 404(b), that is, the Lough court neither contemplated nor addressed the common scheme aggravator under RCW 10.95.020. Stated differently, "the standard announced in Lough merely identifies the parameters of a court's discretion to admit evidence as proof of a common scheme, and not the standard for when evidence will establish beyond a reasonable doubt that such a plan exists for purposes of RCW 10.95.020(10)." Br. of Appellant at 86-87. And, as Yates rightly points out, there is a "significant difference between what the State must proffer to convince a court to exercise its discretion to admit evidence and what the State must prove to obtain a conviction of aggravated first degree murder." Id. at 88. Ά150 Not one of our cases has applied Lough's alternative definition of common scheme or plan to RCW 10.95.020. And while the majority claims Yates ignores this court's earlier reliance on Lough in Pirtle, the Pirtle court cited only to the first of Lough's definitions, thereby continuing to require a "nexus" between the killings for proof of the aggravator. See Pirtle, 127 Wn.2d at 662 ("[T]he common scheme or plan aggravator requires the killings be connected by a larger criminal plan."). The Pirtle court did not, as the majority suggests, endorse application of Lough's alternative definition of common scheme or plan to RCW 10.95.020. Ά151 Because the trial court's instruction eliminated the requirement that the murders be connected by a common plan, Yates' jury was free to find the presence of the common scheme or plan aggravator based only on the fact that Mr. Yates killed both victims in a similar fashion. Ά152 If just one aggravating factor is dismissed for lack of proof, Yates' death sentence must be reversed. A jury in a special sentencing proceeding must consider the following question: " 'Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?' " RCW 10.95.060(4). "The jury is not instructed to consider the crime and separately consider the aggravating factors. Rather, the aggravators describe the circumstances of the 'crime' for which [the defendant] was found guilty." State v. Brett, 126 Wn.2d 136, 169, 892 P.2d 29 (1995), conviction rev'd, sentence vacated on other grounds sub nom. In re Pers. Restraint of Brett,142 Wn.2d 868, 16 P.3d 601 (2001). Thus, because Yates' jury, assessing leniency, considered two aggravating factors, Ά153 Because the trial court's dismissal of Juror 39 and the court's erroneous instruction regarding the common plan or scheme aggravator demand reversal of Yates' death sentence, I dissent.